Wicomico County, MD: Special Buffer areas.

§ 125-10 Expansion.

The Buffer shall be expanded to include contiguous sensitive areas on the parcel whose development or disturbance the Wicomico County Planning and Zoning Commission determines may impact streams, wetlands or other aquatic environments. This expansion will occur whenever development, forestry, agriculture or other land-disturbing activities are proposed. Sensitive areas have the following features:

(1)

Hydric soils and soils with hydric properties as designated by the Soil Conservation Service;

(2)

Highly erodible soils with a X value greater than 0.35; and

(3)

Steep slopes greater than 15%.

The expanded Buffer must be shown on plans required for such development or land disturbance.

The Buffer shall be expanded according to the following rules:

(1)

The Buffer shall be expanded four feet for every percent of slope or to the top of the slope, whichever is greater; and

[Amended 6-26-2001 by Bill No. 2001-11]

(2)

The Buffer shall be expanded to the upland limit of adjacent hydric soils, soils with hydric properties and erodible soils whose development or disturbance the Wicomico County Planning and Zoning Commission determines may impact the critical area.

§ 125-11 Special Buffer areas.

[Amended 6-26-2001 by Bill No. 2001-11]

Special Buffer area - residential.

(1)

Definition. "Special Buffer area" means an area officially mapped by the County and approved by the Critical Area Commission as a special Buffer area, where it has been sufficiently demonstrated that the existing pattern of residential, industrial, commercial, institutional or recreational development in the critical area prevents the Buffer from fulfilling its intended functions for water quality protection and wildlife habitat conservation as specified in COMAR 27.01.09.01.B.

(2)

General policy. The provisions herein are intended to accommodate limited use of shoreline areas for single-family detached residential development while protecting water quality and wildlife habitat to the greatest extent possible.

(3)

Applicability. The following criteria applies to new development or redevelopment on single-family detached residential properties located in mapped special Buffer areas as defined herein. This policy only applies to lots of record at the time of original program approval.

(4)

Standards.

(a)

(b)

New development or redevelopment shall minimize the shoreward extent of intrusion into the Buffer. New development and redevelopment shall not be located closer to the water (or the edge of tidal wetlands) than principal structures on adjacent properties or the local setback for the zoning district, whichever is greater. In no case shall new development or redevelopment be located less than 25 feet from the water (or the edge of tidal wetlands).

(c)

Existing principal or accessory structures in the Buffer may be replaced in the same location. Any increase in impervious area within the Buffer shall comply fully with the requirements of this policy.

(d)

New accessory structures may be permitted in the Buffer in accordance with the following setback requirements:

[1]

New accessory structures may be located closer to the water or edge of tidal wetlands than the dwelling only if there are no other locations for the accessory structures.

[2]

The area of the accessory structures within the Buffer shall be minimized and the cumulative total area of all new and existing accessory structures on the property shall not exceed 500 square feet within 50 feet of the water and 1,000 square feet total.

[3]

In no case shall new accessory structures be located less than 25 feet from the water (or edge of tidal wetlands).

(e)

Variances to local setback requirements should be considered before additional intrusion into the Buffer.

(f)

Development may not impact any HPAs other than the Buffer, including nontidal wetlands, other state or federal permits notwithstanding.

(g)

No natural vegetation may be removed in the Buffer except that required by the proposed construction. The applicant will be required to maintain any other existing natural vegetation in the Buffer.

(h)

BEA designation shall not be used to facilitate the filling of tidal wetlands that are contiguous to the Buffer to create additional buildable land for new development or redevelopment.

(i)

Any development or redevelopment in the special Buffer area requires mitigation, in the form of plantings, offsets, or fees-in-lieu.

(j)

Any required reforestation/mitigation/offset areas must be designated under a development agreement or other instrument and recorded among the land records of the County.

(5)

Mitigation. Mitigation measures shall be implemented in the following order of preference:

(a)

Natural vegetation of any area twice the extent of the footprint of the development activity within the one-hundred-foot Buffer shall be planted on site in the Buffer or other location as may be determined by the County. If it is not possible to carry out offsets or other mitigation within the critical area, any plantings or other habitat/water quality improvements should occur within the affected watershed.

(b)

Applicants who cannot comply with the planting requirement may use offsets to meet the mitigation requirement. Offsets may include the removal of an equivalent area or existing impervious surfaces in the Buffer, the construction of best management practices for stormwater, wetland creation or restoration, or other measures that improve water quality or habitat.

(c)

Applicants who cannot comply with either the planting or offset requirements in Subsection A(5)(a) or (b) above are required to pay into a fee-in-lieu program administered by the local jurisdiction. A jurisdiction shall establish rates that will generate adequate funds to carry out planting or offset programs. Any fee-in-lieu collected under these provisions shall be placed in an account that will assure their use only for projects within the critical area for the benefit of wildlife habitat and water quality improvement. The status of these funds must be reported in the jurisdiction's quarterly reports.

(d)

Alternative provisions for meeting the mitigation requirements may be proposed by a local jurisdiction and approved by the Critical Area Commission.

(6)

Notification requirements.

(a)

The Planning Director, or his designee, will document that all the criteria in this section are met, including that the disturbance to the Buffer is the least intrusion necessary. That documentation will be available to the Commission upon request.

(b)

The reporting of development activity carried out under this provision must be included in the jurisdiction's quarterly reports.

(7)

Requirements for mapping new special Buffer areas.

(a)

Only grandfathered lots are eligible for mapping as a special Buffer area.

(b)

For each special Buffer area, the lots that comprise the special Buffer area shall contain a Buffer which is, at the time of the proposal, significantly impacted by development activities that existed at the time of program adoption and that prevent the Buffer from fulfilling its functions. Development parcels or lots shall contain a Buffer intrusion, at the time of proposal, caused by the principal structures (excluding utilities or septic systems). Undeveloped or vacant residential parcels or lots (i.e., infill) may be designated as a special Buffer area if development within the Buffer cannot be avoided based on the size of the parcel or lot, area of the parcel or lot within the Buffer, or the surrounding pattern of development.

(c)

Any proposal by the jurisdiction for designation of an area as a special Buffer area shall include, at a minimum, the jurisdiction's written findings of and supporting reasons which demonstrate the degree to which the proposed special Buffer area does not perform each of the following Buffer functions (1) through (5):

[1]

Provide for the removal or reduction of sediments, nutrients, and potentially harmful toxic substances in runoff entering the bay and its tributaries;

[2]

Minimize the adverse effects of human activities on wetlands, shorelines, stream banks, and aquatic resources;

[3]

Maintain an area of transitional habitat between aquatic and upland communities;

[4]

Maintain the natural environment of streams; and

[5]

Protect riparian wildlife habitat.

(8)

Definitions. For the purpose of implementing this section, the following words have the following meanings. (In the case of conflicts with other definitions, the stricter provisions shall apply.)

ACCESSORY STRUCTURE

A structure that is detached from the principal structure, located on the same lot and clearly incidental and subordinate to the principal structure; or if there is no principal structure on the lot, a structure that is customarily incidental and subordinate to a principal structure.

DEVELOPMENT ACTIVITY

The construction or substantial alteration of residential, commercial, industrial, institutional, recreational or transportation facilities or structures. Development activities include, among other things, structures, roads, parking areas, and other impervious surfaces, mining and related facilities, clearing, grading and septic systems. For purposes of implementing this policy, development activity does not include subdivision.

GRANDFATHERED PARCEL/LOT

A parcel of land or lot that was subdivided into recorded, legally buildable lots where the subdivision received final approval before December 1, 1985.

NATURAL FOREST VEGETATION

Vegetation consisting of canopy trees, understory trees, shrubs, and herbaceous plants that are typically found in riparian areas in Maryland. Areas of natural forest vegetation planted to meet the mitigation requirements in this policy shall be designed to mimic the structure and species composition of natural forests.

NEW DEVELOPMENT

A development activity that takes place on a property with pre-development imperviousness less than 15% as of December 1, 1985.

PRINCIPAL STRUCTURE

For the purpose of establishing setbacks, the primary or predominant structure on any lot or parcel. For residential parcels or lots, the principal structure is the primary dwelling, excluding utilities and the septic system.

REDEVELOPMENT

A development activity that takes place on a property with pre-development imperviousness greater than 15% as of December 1, 1985.

SPECIAL BUFFER AREA

An area officially mapped by the local jurisdiction and approved by the Critical Area Commission as a special Buffer area, where it has been sufficiently demonstrated that the existing pattern of residential, industrial, commercial, institutional or recreational development in the critical area prevents the Buffer from fulfilling its intended functions for water quality protection and wildlife habitat conservation.

Special Buffer area - commercial, industrial, institutional, recreational and multifamily residential.

(1)

Definition. "Special Buffer area" means an area officially mapped by the Planning Commission and approved by the Critical Area Commission as a special Buffer area, where it has been sufficiently demonstrated that the existing pattern of residential, industrial, commercial, institutional or recreational development in the critical area prevents the Buffer from fulfilling its intended functions for water quality protection and wildlife habitat conservation (as specified in COMAR 27.01.09.01.B).

(2)

General policy. The provisions herein are intended to accommodate limited use of shoreline areas for commercial, industrial, institutional, recreational and multifamily development while protecting water quality and wildlife habitat to the greatest extent possible.

(3)

Applicability. The following criteria applies to new commercial, institutional, recreational, and multifamily residential development or redevelopment within 100 feet of tidal waters, tidal wetlands, and tributary streams and only applies to lots of record at the time of original program approval.

(4)

Standards.

(a)

New development or redevelopment activities, including structures, roads, parking areas and other impervious surfaces or septic systems will not be permitted in the Buffer unless the applicant can demonstrate that there is no feasible alternative, and the County finds that efforts have been made to minimize Buffer impacts based on the following guidelines:

[1]

Development and redevelopment activities shall be located as far as possible from mean high tide, the landward edge of tidal wetlands or the edge of tributary streams.

[2]

Variances to other local setback requirements shall be considered before additional intrusion into the Buffer.

[3]

Convenience or expense shall not be factors considered when evaluating the extent of allowable impacts to the Buffer.

(b)

New development, including accessory structures, shall minimize the extent of intrusion into the Buffer. New development shall not be located closer to the water (or edge of tidal wetlands) than the County setback for the zoning district or 50 feet, whichever is greater. Structures on adjacent properties shall not be used to determine the setback line. The fifty-foot setback shall be maintained for all subsequent development or redevelopment of the property.

(c)

Redevelopment, including accessory structures, shall minimize the extent of intrusion into the Buffer. Redevelopment shall not be located closer to the water (or edge of tidal wetlands) than the local setback for the zoning district or 25 feet, whichever is greater. Structures on adjacent properties shall not be used to determine the setback line. Existing structures located within the setback may remain or a new structure may be constructed on the footprint of an existing structure or impervious surface. Opportunities to establish a twenty-five-foot setback should be maximized.

(d)

Development and redevelopment may not impact any HPAs other than the Buffer, including nontidal wetlands, other state or federal permits notwithstanding.

(e)

No natural vegetation may be removed in the Buffer except that required by the proposed construction. The applicant will be required to maintain any other existing natural vegetation in the Buffer.

(f)

Special Buffer area designation shall not be used to facilitate the filling of tidal wetlands that are contiguous to the Buffer or to create additional buildable land for new development or redevelopment.

(g)

Any development or redevelopment in the special Buffer area requires mitigation, in the form of plantings, offsets, or fees-in-lieu.

(h)

Any required reforestation / mitigation / offset areas must be designated under a development agreement or other instrument and recorded among the land records of Wicomico County.

(5)

Mitigation.

(a)

The following mitigation measure shall be implemented for all development and redevelopment projects:

[1]

A forested or landscaped buffer yard, 25 feet wide, shall be established on the project site between the development and the water. This buffer yard shall be densely planted with trees and shrubs in accordance with Table 1, below.

[2]

On redevelopment sites, if existing structures or those rebuilt on an existing footprint limit the area available for planting, then appropriate modifications to the width of the planted buffer yard may be made on a case-by-case basis.

Table 1 Required Buffer Yard Planting
Area	Quantity and Stocking	Suggested Species
For every 100	5 trees; and	White or Red Oak, Pin linear feet of Oak, Willow Oak, Red buffer yard Maple, American Holly, Eastern Red Cedar
	10 understory trees/ large shrubs; and	Dogwood, Mountain Laurel, Bayberry, Shadbush, Winterberry
	30 small shrubs; and	Pepperbush, Chokeberry, Strawberry Bush, Sweetspire
	40 herbaceous plants, grasses, etc.	Wild Columbine, Butterflyweed, Common Milkweed, Asters

(b)

In addition to establishing a twenty-five-foot buffer yard on site as described above, one of the following mitigation measures shall be implemented based on the following order of preference:

[1]

Natural forest vegetation of an area twice the extent of the footprint of the development activity within the one-hundred-foot Buffer shall be planted on site in the Buffer or at another location, preferably on-site, as may be determined by the County.

[2]

Applicants who cannot fully comply with the planting requirement in Subsection B(5)(b)[1] above, may use offsets to meet the mitigation requirement. Offsets may include the removal of an equivalent area of existing impervious surfaces in the Buffer, the construction of best management practices for stormwater, wetland creation or restoration, or other measures that improve water quality or habitat.

[3]

Applicants who cannot comply with either planting or offset requirements in Subsection B(5)(b)[1] or [2] above, are required to pay into a fee-in-lieu program administered by Wicomico County. The County shall establish rates that will generate adequate funds to carry out planting or offset programs and that provide a sufficient deterrent to location in the Buffer. Any fees-in-lieu collected under these provisions shall be placed in an account that will assure their use only for projects within the critical area for benefit of wildlife habitat and water quality improvement. The status of these funds must be reported in the County's quarterly reports.

[4]

Any required mitigation/offset areas must be protected from future development through an easement development agreement, plat notes or other instrument and recorded among the land records of Wicomico County.

(6)

Notification requirements.

(a)

Within special Buffer areas, all new commercial, industrial, institutional, recreational, multifamily residential development or redevelopment projects shall be submitted to the Critical Area Commission in accordance with COMAR 27.03.01.03. Mitigation plans shall be included as part of the project submission.

(b)

The Planning Director shall document that all the criteria in this section are met, including that the disturbance to the Buffer is the least intrusion necessary. This documentation shall be available to the Commission upon request.

(c)

The reporting of development activity carried out under this provision must be included in the County's quarterly reports.

(7)

Requirements for mapping new special Buffer areas.

(a)

Only grandfathered lots are eligible for mapping as a special Buffer area by the County.

(b)

For each special Buffer area, the lots that comprise the special Buffer area shall contain a Buffer which is, at the time of the proposal, significantly impacted by development activities that existed at the time of program adoption and that prevent the Buffer from fulfilling its functions. Developed parcels or lots shall contain a Buffer intrusion, at the time of proposal, caused by the existing principal structures (excluding utilities or septic systems). Undeveloped or vacant residential parcels or lots (i.e., infill) may be designated as a special Buffer area if development within the Buffer cannot be avoided based on the size of the parcel or lot, area of the parcel or lot within the Buffer, or the surrounding pattern of development.

(c)

If only part of a parcel or lot meets the criteria for designation as a special Buffer area, then only those portions of a parcel or lot shall be designated as a special Buffer area. The portion of the parcel designated as a special Buffer area will be subject to the special Buffer area development restrictions. Portions of the property that are not designated as a special Buffer area shall comply fully with the one-hundred-foot Buffer restrictions.

(d)

[1]

Provide for the removal or reduction of sediments, nutrients, and potentially harmful or toxic substances in runoff entering the bay and its tributaries;

[2]

Minimize the adverse effects of human activities on wetlands,

[3]

Maintain an area of transitional habitat between aquatic and upland communities;

[4]

Maintain the natural environment of streams; and

[5]

Protect riparian wildlife habitat.

(8)

Definitions. For the purpose of implementing this policy, the following words have the following meanings. (In the case of conflicts with other definitions, the stricter provisions shall apply.)

ACCESSORY STRUCTURE

BUFFER YARD

An area, at least 25 feet wide, located between development activity and the water (or edge of wetlands or streams), planted with vegetation consisting of native species and other appropriate plantings. This area shall be maintained primarily for the purposes of wildlife habitat and water quality and shall not be maintained in a manner that conflicts with these purposes such as by mowing or the application of herbicides.

DEVELOPMENT ACTIVITY

GRANDFATHERED PARCEL/LOT

A parcel of land or lot that was subdivided into recorded, legally buildable lots where the subdivision received final approval before December 1, 1985.

NATURAL FOREST VEGETATION

NEW DEVELOPMENT

A development activity that takes place on a property with pre-development imperviousness less than 15% as of December 1, 1985.

PRINCIPAL STRUCTURE

REDEVELOPMENT

A development activity that takes place on a property with pre-development imperviousness greater than 15% as of December 1, 1985.

SPECIAL BUFFER AREA

§ 125-12 Buffer alterations.

[Amended 6-26-2001 by Bill No. 2001-11]

No natural vegetation shall be removed nor shall the slope of the land surface be altered in the Buffer, including clearing of existing natural vegetation to create new agriculture lands.

Commercial harvesting of trees is permitted, under an approved forest management plan, to the edge of intermittent streams and to within fifty feet of the mean high-water line or tidal wetlands when harvesting involves clear-cutting of loblolly pine and tulip polar and selective cutting of other species.

Limited cutting or clearing of trees shall be permitted for the following purposes under an approved woodland management plan:

(1)

For personal use, provided that Buffer functions are not impaired and trees cut are replanted.

(2)

To prevent trees from falling and blocking streams, causing damage to dwellings or other structures or resulting in accelerated erosion of the shore or streambank;

(3)

In conjunction with horticultural practices used to maintain the health of individual trees;

(4)

To provide access to private piers;

(5)

To install or construct an approved shore erosion protection device or measure; or

(6)

To protect forests from extensive pest or disease infestation or threat from fires, if approved by the Department of Agriculture or the Bay Watershed Forester.