Maryland Natural Resources Section 8-1808

      (a)      (1)      It is the intent of this subtitle that each local jurisdiction shall have primary responsibility for developing and implementing a program, subject to review and approval by the Commission.

            (2)      (i)      The Governor shall include in the budget a sum of money to be used for grants to reimburse local jurisdictions for the reasonable costs of developing a program under this section.

                  (ii)      Each local jurisdiction shall submit to the Governor a detailed request for funds that are equivalent to the additional costs incurred in developing the program under this section.

                  (iii)      The Governor shall include in the fiscal year 2003 budget a sum of money to be used for grants to reimburse local jurisdictions in the Atlantic Coastal Bays Critical Area for the reasonable costs of developing a program under this section.

            (3)      The Governor shall include in the budget annually a sum of money to be used for grants to assist local jurisdictions with the reasonable costs of implementing a program under this section. Each local jurisdiction shall submit to the Governor by May 1 of each year a detailed request for funds to assist in the implementation of a program under this section.

      (b)      A program shall consist of those elements which are necessary or appropriate:

            (1)      To minimize adverse impacts on water quality that result from pollutants that are discharged from structures or conveyances or that have run off from surrounding lands;

            (2)      To conserve fish, wildlife, and plant habitat; and

            (3)      To establish land use policies for development in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area which accommodate growth and also address the fact that, even if pollution is controlled, the number, movement, and activities of persons in that area can create adverse environmental impacts.

      (c)      (1)      At a minimum, a program sufficient to meet the goals stated in subsection (b) of this section includes:

                  (i)      A map designating the critical area in a local jurisdiction;

                  (ii)      A comprehensive zoning map for the critical area;

                  (iii)      As necessary, new or amended provisions of the jurisdiction's:

                        1.      Subdivision regulations;

                        2.      Comprehensive or master plan;

                        3.      Zoning ordinances or regulations;

                        4.      Provisions relating to enforcement; and

                        5.      Provisions as appropriate relating to grandfathering of development at the time the program is adopted or approved by the Commission;

                  (iv)      Provisions requiring that project approvals shall be based on findings that projects are consistent with the standards stated in subsection (b) of this section;

                  (v)      Provisions to limit the amount of land covered by buildings, roads, parking lots, or other impervious surfaces, and to require or encourage cluster development, where necessary or appropriate;

                  (vi)      Establishment of buffer areas along shorelines within which agriculture will be permitted only if best management practices are used, provided that structures or any other use of land which is necessary for adjacent agriculture shall also be permitted in any buffer area;

                  (vii)      Requirements for minimum setbacks for structures and septic fields along shorelines, including the establishment of a minimum buffer landward from the mean high water line of tidal waters, tributary streams, and tidal wetlands;

                  (viii)      Designation of shoreline areas, if any, that are suitable for parks, hiking, biking, wildlife refuges, scenic drives, public access or assembly, and water-related recreation such as boat slips, piers, and beaches;

                  (ix)      Designation of shoreline areas, if any, that are suitable for ports, marinas, and industries that use water for transportation or derive economic benefits from shore access;

                  (x)      Provisions requiring that all harvesting of timber in the Chesapeake Bay Critical Area or the Atlantic Coastal Bays Critical Area be in accordance with plans approved by the district forestry board;

                  (xi)      Provisions establishing that the controls in a program which are designed to prevent runoff of pollutants will not be required on sites where the topography prevents runoff from directly or indirectly reaching tidal waters;

                  (xii)      Provisions for reasonable accommodations in policies or procedures when the accommodations are necessary to avoid discrimination on the basis of physical disability, including provisions that authorize a local jurisdiction to require removal of a structure that was installed or built to accommodate a physical disability and require restoration when the accommodation permitted by this paragraph is no longer necessary;

                  (xiii)      Except as provided in subsection (d) of this section, provisions for granting a variance to the local jurisdiction's critical area program, in accordance with regulations adopted by the Commission concerning variances set forth in COMAR 27.01.11; and

                  (xiv)      Penalty provisions establishing that, in addition to any other penalty applicable under State or local law, a person who violates a provision of this subtitle or of a program is subject to a fine not exceeding $10,000.

            (2)      In determining the amount of the penalty to be assessed under paragraph (1)(xiv) of this subsection, a local jurisdiction may consider:

                  (i)      The gravity of the violation;

                  (ii)      Any willfulness or negligence involved in the violation; and

                  (iii)      The environmental impact of the violation.

      (d)      (1)      In this subsection, "unwarranted hardship" means that, without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.

            (2)      (i)      In considering an application for a variance, a local jurisdiction shall presume that the specific development activity in the critical area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of this subtitle, regulations adopted under this subtitle, and the requirements of the local jurisdiction's program.

                  (ii)      If the variance request is based on conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed, a local jurisdiction may consider that fact.

            (3)      (i)      An applicant has the burden of proof and the burden of persuasion to overcome the presumption established under paragraph (2)(i) of this subsection.

                  (ii)      1.      Based on competent and substantial evidence, a local jurisdiction shall make written findings as to whether the applicant has overcome the presumption established under paragraph (2)(i) of this subsection.

                        2.      With due regard for the person's experience, technical competence, and specialized knowledge, the written findings may be based on evidence introduced and testimony presented by:

                        A.      The applicant;

                        B.      The local jurisdiction or any other government agency; or

                        C.      Any other person deemed appropriate by the local jurisdiction.

            (4)      A variance to a local jurisdiction's critical area program may not be granted unless:

                  (i)      Due to special features of a site, or special conditions or circumstances peculiar to the applicant's land or structure, a literal enforcement of the critical area program would result in unwarranted hardship to the applicant;

                  (ii)      The local jurisdiction finds that the applicant has satisfied each one of the variance provisions; and

                  (iii)      Without the variance, the applicant would be deprived of a use of land or a structure permitted to others in accordance with the provisions of the critical area program.

            (5)      This subsection does not apply to building permits or activities that comply with a buffer exemption plan or buffer management plan of a local jurisdiction which has been approved by the Commission.

      (e)      (1)      The Commission shall adopt by regulation on or before December 1, 1985 criteria for program development and approval, which are necessary or appropriate to achieve the standards stated in subsection (b) of this section. Prior to developing its criteria and also prior to adopting its criteria, the Commission shall hold at least 6 regional public hearings, 1 in each of the following areas:

                  (i)      Harford, Cecil, and Kent counties;

                  (ii)      Queen Anne's, Talbot, and Caroline counties;

                  (iii)      Dorchester, Somerset, and Wicomico counties;

                  (iv)      Baltimore City and Baltimore County;

                  (v)      Charles, Calvert, and St. Mary's counties; and

                  (vi)      Anne Arundel and Prince George's counties.

            (2)      During the hearing process, the Commission shall consult with each affected local jurisdiction.

      (f)      Nothing in this section shall impede or prevent the dredging of any waterway in a critical area. However, dredging in a critical area is subject to other applicable federal and State laws and regulations.

      (g)      In adopting the initial land classification for the Atlantic Coastal Bays Critical Area, the local program:

            (1)      Of the Town of Ocean City shall classify as an intensely developed area that area that is within the municipal boundaries of Ocean City as of January 1, 2002; and

            (2)      Of Worcester County shall classify as an intensely developed area that area located on the western mainland that is east of Golf Course Road, south of Charles Street, and north of Route 707 (Old Bridge Road).

      (h)      The provisions of this subtitle and Title 27 of the Code of Maryland Regulations apply to the Atlantic Coastal Bays Critical Area.