Wicomico County, MD Development Standards

Residential densities in resource conservation areas (RCAs) shall be limited to no more than one dwelling unit per 20 acres, except as provided for in §§ 125-15 and 125-17 and Article V. In calculating the 1-in-20 area density of development that is permitted on a parcel located within the resource conservation area, the County:

Shall count each dwelling unit; and

May permit the area of any private wetlands located on the property to be included, under the following conditions:

The density of development on the upland portion of the parcel may not exceed one dwelling unit per eight acres; and

The area of private wetlands shall be estimated on the basis of vegetative information as designated on the state wetlands maps or state verified field analysis.

Within a resource conservation area, one additional dwelling unit per lot or parcel may be considered as part of a primary dwelling unit for the purpose of the density calculation under this subsection if the additional dwelling unit:

Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit; does not exceed 900 square feet in total enclosed area; and is served by the same sewage disposal system as the primary dwelling unit; or

Is located within the primary dwelling unit; by its construction, does not increase the amount of lot coverage already attributed to the primary dwelling unit; and is served by the same sewage disposal system as the primary dwelling unit.

An additional dwelling unit meeting all the criteria of this section that is separate from the primary dwelling unit may not be subdivided or conveyed separately from the primary dwelling unit.

The provisions of this section:

Apply to density calculations only; and

May not be construed to authorize the County to grant a variance, unless the variance is granted in accordance with the requirements and standards in this chapter.

The County shall maintain records of all building permits issued under this section for additional dwelling units considered part of a primary dwelling unit, and shall provide this information on a quarterly basis to the Critical Area Commission.

Determining density.

Determination of density shall be based on the gross site area of the parcel, excluding tidal wetlands, except that in determining residential densities for a site in the RCA, private wetlands may be included in the calculation of one unit per 20 acres' density, provided that the development density on the upland portion of the site does not exceed one dwelling unit per eight acres.

Nothing in this regulation shall limit the ability of a participant in the Agricultural Easement Program to convey real property impressed with such an easement to family members, provided that no such conveyance shall result in a density of greater than one dwelling unit per 20 acres, except as provided in § 125-15 below.

§ 125-15 Intrafamily transfers.

The one-unit-per-twenty-acre density limitation shall not prevent a bona fide intrafamily transfer to members of the owner's immediate family, subject to the following limitations:

Intrafamily transfers will be permitted on parcels of land in the Critical Area District where it is shown that the parcel was recorded on or before March 1, 1986, and such parcel is at least seven acres and not more than 60 acres in size.

A bona fide intrafamily transfer shall be subject to all requirements of the Wicomico County Subdivision Regulations,[1] and a notation shall be placed on the final subdivision plat denoting the lot(s) that are created under these provisions.

Editor's Note: See Ch. 200, Subdivision of Land.

Subdivision of land under the bona fide intrafamily transfer provisions contained herein shall be subject to the following limitations:

Parcels seven acres to less than 12 acres cannot be subdivided into more than a total of two lots.

Parcels 12 acres to less than 60 acres cannot be subdivided into more than three lots.

Lots created pursuant to these provisions shall not be created for purposes of ultimate commercial sale. A lot created pursuant to these provisions may not be subsequently conveyed to any person, except as provided herein:

Where the conveyance is to a member of the owner's immediate family; or

Where the conveyance of the lot is as part of a default on a mortgage or deed of trust.

Any lot created under this section may not be transferred or sold to a third party who is not a member of the owner's immediate family or holder of a mortgage or deed of trust on the property unless and until the Wicomico County Planning and Zoning Commission has determined that the following conditions apply:

A change in circumstances has occurred since the original transfer, not of the owner's own doing, which would warrant permitting a subsequent transfer, when such circumstances are consistent with the warrants and exceptions contained herein; or

Other circumstances necessary to maintain land areas to support protective uses of agriculture, forestry, open space and natural habitats in RCA warrant an exception.

Deeds of transfer shall include a covenant stating that the lot is subject to the provisions of this section, as amended. These covenants shall restrict the subsequent transfer or sale of a lot or lots created pursuant to the intrafamily transfer provisions contained herein to a third party who is not a member of the owner's immediate family or a holder of a mortgage or deed of trust on the property, except as provided in Subsection E above.

§ 125-16 Special guidelines for resource conservation areas.

It is the intent of the County to place all residential lot owners in developments in the resource conservation areas on notice that Wicomico County promotes the preservation of the County's valuable and irreplaceable farmland and commercial forests. Further, it is the intent of the County to discourage intense development in resource conservation areas that are not adjacent to existing growth centers. In these areas, the County wants, to the extent possible, to preserve, encourage and protect farm and forest resources and their productivity to ensure that agriculture and forestry enterprises will continue to have the necessary flexibility to adjust as economic conditions change. Therefore, the County will give priority to agriculture and forestry activities in these areas. Furthermore, there will be no basis, under County chapters, for recourse against the effects of normal farming and forestry operations as permitted, including but not limited to noise, odor, vibration, fumes, dust or glare. To accomplish this end, the following guidelines shall apply in resource conservation areas that are not adjacent to existing development centers:

Minimum open space requirements for all residential development on parcels of land located in resource conservation areas that are not immediately adjacent to designated growth area as of October 13, 1989, or as subsequently amended, including development through the use of the growth allocation bonus density, should be as set forth in the following table of minimum open space area guidelines:

	Table of Minimum Open Space Guidelines
	Acres in the Critical Area District	Recommended Minimum Open Space Area as a Percentage of Acres in Critical Area District
	Fewer than 16	0
	16 to fewer than 21	25
	21 to fewer than 26	40
	26 or more	50

Permitted uses in required open space areas on parcels of land located in resource conservation areas that are not immediately adjacent to a LDA or IDA shall be limited to agriculture, forestry, wildlife management or natural cover, except that individual wells, septic drain fields or shared facilities may be located in the open space area.

A minimum one-hundred-foot buffer should be established and maintained between all developed areas and adjacent farm and forest land. This buffer may be reduced to 50 feet if it is planted or retained in forest cover.

§ 125-17 General regulations and prohibitions.

Except as provided below, permitted uses, accessory uses and special exception uses in the Critical Area District shall be limited to those permitted within the existing applicable underlying base zoning district, as shown on the Official Wicomico County Zoning Maps.

Existing industrial and commercial facilities, including those directive supporting agriculture, forestry and aquaculture, shall be allowed in the RCA. New commercial, industrial, and institutional uses shall not be permitted in resource conservation areas, except as provided for in the County's growth allocation provisions. Additional land may not be zoned or used for industrial, commercial, or institutional development, except as provided by the County's growth allocation provisions. Nonindustrial activities which support surface mining, agriculture and forestry may be established or expanded, provided they conform with the other requirements of this chapter.

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

The following uses are prohibited in the Critical Area District due to their high potential for adverse impact on plant and wildlife habitats and water quality, unless it has been demonstrated that the activity will create a net improvement in water quality to the adjacent body of water.

Nonmaritime heavy industry; and

Transportation facilities.

The following uses are prohibited in the Critical Area District:

New solid or hazardous waste collection or disposal facilities, excluding dumpsters and trash receptacles.

New sanitary landfills.

New sludge handling, storage and disposal facilities, other than those associated with wastewater treatment facilities.

New commercial and industrial maritime or related facilities in the Buffer within resource conservation areas (RCA's).

The application of sludge in the Buffer.

New wash plants for surface mining and mineral extraction uses in the Buffer.

New sand and gravel mining and related uses in the Buffer.

Land use in the RCA. In addition to the uses specified above, certain nonresidential uses may be permitted in resource conservation areas if it is determined by the Department of Planning, Zoning and Community Development that the proposed use is one of the following:

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

A home occupation as an accessory use on a residential property and as provided for in the County's Zoning Ordinance;

A golf course, excluding main buildings and/or structures, such as the clubhouse, pro shop, parking lot, etc.

A cemetery that is an accessory use to an existing church, provided impervious surfaces are limited to 15% of the site or 20,000 square feet, whichever is less.

A bed-and-breakfast facility located in an existing, grandfathered residential structure and where meals are prepared only for guests staying at the facility.

A gun club or skeet shooting range or similar use, excluding main buildings and/or structures, such as a clubhouse, snack bar, etc.

A day-care facility in a dwelling where the operators live on the premises and there are no more than eight children.

A group home or assisted living facility with no more than eight residents.

(8)

Other uses determined by the County and the Critical Area Commission to be similar to those listed above.

§ 125-18 Water-dependent facilities.

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

New water-dependent facilities must comply with the provisions for such facilities contained in the Wicomico County Critical Area Program. Insofar as possible, new buildings, structures, activities and facilities that are not water-dependent and that are permitted in the underlying zoning district shall be located outside of the Buffer, except as follows:

Boathouses, community piers, individual private piers, docks and launching ramps are permitted in the Buffer as follows:

For community piers, only the following uses shall be permitted to locate in the Buffer:

Slips.

Docks, piers, launching ramps, access roads and paths.

[3]

Loading/unloading areas.

Where community slips or community piers are to be provided in a subdivision that is approved after October 13, 1989, the number of slips and piers shall be the lesser of Subsection A(1)(b)[1] or [2] below:

Up to one slip for every 50 feet of shoreline in subdivisions in the limited development areas (LDA) and intensely developed area (IDA), and one slip per 300 feet of shoreline in the subdivision in the resource conservation area (RCA); or

A density of slips or piers to platted lots or dwellings in the subdivision according to the following schedule:

	Platted Lots or Dwellings in the Critical Area	Slips
	Up to 15	1 for each lot
	16 to 40	15 or 75%, whichever is greater
	41 to 100	30 or 50%, whichever is greater
	101 to 300	50 or 25%, whichever is greater
	Over 300	75 or 15%, whichever is greater

New commercial marinas are permitted in LDA and IDA, provided that, insofar as possible, non-water-dependent uses and activities are not located in the Buffer.

Expansion of existing commercial marinas is permitted in the RCA, provided that it is sufficiently demonstrated that the expansion will not adversely affect water quality, and that it will result in an overall net improvement in water quality at or leaving the site of the marina.

New or expanded water-dependent maritime industrial uses may only be located in an intensely developed area where a buffer exemption has been granted.

Special conditions for the location of public beaches and recreation areas in limited development areas and resource conservation areas. (See COMAR 27.01.03.08(B).) Public beaches and other public water-oriented recreation and education facilities, uses and related structures shall be permitted, provided that, insofar as possible, non-water-dependent uses and activities are not located in the Buffer.

Fisheries and related commercial water-dependent facilities shall be permitted, provided that, insofar as possible, non-water-dependent uses and activities are not to be located in the Buffer.

Research facilities operated by County, state or federal government agencies or educational institutions conducting marine-related studies shall be permitted.

§ 125-19 Intensely developed areas.

All development and redevelopment in IDA's shall be subject to the following development standards and/or conditions, in addition to those established elsewhere in this chapter, except that development on lots qualifying under § 125-8 must only comply with these provisions insofar as possible as determined by the Wicomico County Planning and Zoning Commission.

All sites for which development activities are proposed shall identify environmental or natural features on that portion of the site within the critical area and shall obtain a Chesapeake Bay Critical Area compliance certificate.

Except as is provided for water-dependent facilities, no structure or uses associated with development in an intensely developed area shall be permitted within the Buffer, except as provided for in §§ 125-11 and 125-12.

Development and redevelopment shall be subject to the habitat protection requirements of the Wicomico County Critical Area Program.

Development and redevelopment shall be required to identify stormwater management practices appropriate to site development which achieve the following standards:

Redevelopment proposals shall demonstrate that the best management practices for stormwater assure a ten-percent reduction of predevelopment pollutant loadings.

New development shall demonstrate that practices for stormwater management will reduce predevelopment pollutant loadings by 10%.

Redevelopment or development which cannot demonstrate it meets the requirements of Subsection D(1) or (2) above may be approved only if it can be demonstrated that mitigation measures or offsets will be provided to achieve equivalent water quality benefits elsewhere in the same watershed.

Determination of compliance with the ten-percent pollutant reduction requirement shall be consistent with methodologies as those outlined in current Critical Area Commission policies and guidance documents. Methods of determining mitigation measures necessary to achieve ten-percent reductions outlined in Subsection D(1) and (2) above or in determining alternative offsets required in Subsection D(3) above shall be consistent with methodologies such as that outlined in the Critical Area Commission's Guidance Paper Number 5.

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

Development and redevelopment projects shall delineate those site areas not covered by impervious surfaces that are to be maintained or established in vegetation. Where vegetation is not proposed, the developer shall demonstrate why plantings for such portions of the site are impracticable. The types of planting and vegetation proposed shall be in accordance with guidelines established in § 125-21.

A minimum twenty-five-foot buffer shall be established around all nontidal wetlands as identified and defined in the Wicomico County Critical Area Program in compliance with the nontidal wetlands Buffer requirements in Section 9.2 of the Wicomico County Critical Area Program.

Proposed development and redevelopment activities shall include measures for stabilizing significantly eroding shoreline reaches on the proposed development site or otherwise protecting property as established in the shore erosion protection provisions (Section 4) of the Wicomico County Critical Area Program. Nonstructural shoreline erosion control measures shall be used unless it can be conclusively demonstrated that such measures would be impractical or ineffective.

Development on grandfathered lots must fully comply with the critical area provisions or a variance shall be required.

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

§ 125-20 Limited development areas and resource conservation areas.

All development and redevelopment in LDA's and RCA's shall be subject to the following development standards and/or conditions, in addition to those established elsewhere in this chapter, except that development on lots qualifying under § 125-8 must only comply with these provisions insofar as possible as determined by the Wicomico County Planning and Zoning Commission.

Site development shall be designed to assure that those features or resources identified as habitat protection areas in Section 9 of the Wicomico County Critical Area Program are afforded protection.

Roads, bridges and utilities serving development shall be so located as to avoid disturbances to habitat protection areas. When no alternative exists and such infrastructure must cross or be located in habitat protection areas, the developer shall show that impacts to habitats have been minimized and that no feasible alternative location for such infrastructure exists.

All development activities that must cross or affect streams in the critical area shall:

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

Be located outside of the Buffer and shall be designed in a manner to reduce increases in flood, frequency and severity.

Provide for the retention of natural streambed substrate.

Minimize adverse impacts to water quality and stormwater runoff.

Retain the existing tree canopy so as to maintain stream water temperature within normal variation.

Development activities shall be located and designed to provide for the maintenance of the existing wildlife and plant habitats on the site and to maintain continuity with those on adjacent sites. When wildlife corridors exist or are proposed, they shall include any existing habitat protection areas and connect large forested areas on or adjacent to the site. Maintenance of wildlife corridors shall be ensured through the establishment of conservation easements, restrictive covenants or similar instruments through which the corridor is preserved by public or private groups, including homeowners' associations, nature trusts or other organizations approved by the County.

That the total acreage in forest cover shall be maintained or, preferably increased. Forest and developed woodlands, as defined by the Wicomico County Critical Area Program, shall be created or protected in accordance with the following:

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

When less than fifteen-percent forest exists on the site, at least fifteen-percent of the gross site area shall be afforested. The location of the afforested area should be designed to reinforce protection to habitats on the site or to provide connections between forested areas when they are present on adjacent sites.

When forests or developed woodland exists on the site and proposed development requires the cutting or clearing of trees, areas proposed for clearing shall be identified on the proposed development plan.

The developer shall submit proposed plans for development showing areas to be cleared, reforested and/or afforested to the Maryland Forest, Park and Wildlife Service for comments and recommendations and shall transmit the comments to the Department of Planning, Zoning and Community Development.

A grading permit shall be obtained prior to any clearing or cutting associated with proposed development. No grading permit shall be approved until the proposed development activity has been reviewed and received a final Chesapeake Bay Critical Areas compliance certificate.

Cutting or clearing which is associated with development shall be subject to the following limits and replacement conditions:

Removal of forest or developed woodland cover in the Buffer is prohibited.

All forests cleared or developed shall be replaced on not less than an equal-area basis on the site or on an alternative site in the critical area approved by the Planning and Zoning Commission.

No more than 20% of the forested or developed woodland within the site proposed for development may be removed (except as provided for below), and the remaining 80% shall be maintained as forest cover through the use of appropriate instruments (e.g., easements or recorded restrictive covenants) as approved by the County.

The clearing of forest or developed woodlands of up to 20% shall be replaced on an area basis of 1:1. A developer may propose clearing up to 30% of the forest or developed woodland on a site, provided that the reforested area shall consist of 1.5 times the total surface acreage of the disturbed forest or developed woodland.

If more than 30% of the forest on a site is cleared, the forest is required to be replanted at three times the total area of the cleared forest.

(f)

If the cutting of forests occurs before a grading permit is obtained, the forest is required to be replanted according to the requirement in Subsection F(5)(e) above.

Surety in the form of a performance bond or other means acceptable to the County shall be provided in an amount suitable to assure forest replacement as required.

The forests and developed woodlands required to be retained or created through afforestation or reforestation shall be maintained through restrictive covenants, easements or similar instruments in a form approved by the County.

Development on slopes of 15% of greater shall be prohibited unless such development is demonstrated to be the only effective way to maintain or improve slope stability.

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

Except as otherwise provided in this subsection for stormwater runoff, man-made impervious surfaces are limited to 15% of the gross site area except as follows:

[Amended 6-13-1991 by Bill No. 1991-2; 6-26-2001 by Bill No. 2001-11]

If a parcel or lot 1/2 acre or less in size existed on or before December 1, 1985, then man-made impervious surfaces are limited to 25% of the parcel or lot. Impervious surfaces on such parcels or lots may cover up to 31.25% of the parcel or lot or 500 square feet more than 25% of the parcel or lot, whichever is greater, provided the conditions as stated in Subsection H(4) below are met.

If a parcel or lot greater than 1/4 acre and less than one acre in size existed on or before December 1, 1985, then man-made impervious surfaces associated with that development are limited to 15% of the parcel or lot or 5,445 square feet, whichever is greater, provided the conditions as stated below are met.

If an individual lot one acre or less in size is part of a subdivision approved after December 1, 1985, then man-made impervious surfaces of the lot may not exceed 25% of the lot. However, the total of the impervious surfaces over the entire subdivision may not exceed 15%.

If impervious surfaces are expanded beyond 25% in accordance with Subsection H(1) above or 15% in accordance with Subsection H(2) above, the following conditions must be met:

Water quality impacts associated with runoff from the new impervious surfaces have been minimized through site design considerations; and

The property owner performs on-site mitigation to offset potential adverse water quality impacts from the new impervious surfaces.

[1]Proposed development and redevelopment activities shall include measures for stabilizing significantly eroding shoreline reaches on the proposed development site or otherwise protecting property as established in the shore erosion protection provisions (Section 4) of the Wicomico County Critical Area Program. Nonstructural shoreline erosion control measures shall be used unless it can be conclusively demonstrated that such measures would be impractical or ineffective.

Editor's Note: Former Subsection I, which required establishment of a minimum twenty-five-foot buffer, was repealed 6-26-2001 by Bill No. 2001-11. Said bill also redesignated former Subsection J as Subsection I.

Development on grandfathered lots must fully comply with the critical area program provisions or a variance shall be required.

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

All development of critical area programs shall be subject to the following complementary existing state laws and regulations:

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

For soil erosion and sediment control (COMAR 26.09.01):

In order to prevent soil erosion and sedimentation, a soil erosion and sedimentation control plan shall be required whenever a development within the critical area will involve any clearing, grading, transporting, or other form of disturbance to land by the movement of earth. This plan shall be consistent with the requirements of Natural Resources Article § 8-1101 through 8-1108, the Environment Article § 4-103 through 4-108 and 4-116, Annotated Code of Maryland, and local ordinances. Sediment control practices shall be appropriately designed to reduce adverse water quality impact.

Jurisdictions shall require erosion control as the basis of sediment control plans within the critical area.

For stormwater runoff (COMAR 26.09.02):

Limitation on stormwater runoff. Development may not cause downstream property, watercourses, channels, or conduits to receive stormwater runoff at a higher volume or rate than would have resulted from a ten-year storm were the land in its predevelopment state.

Storage capacity. All stormwater storage facilities shall be designed with sufficient capacity to achieve water quality goals of this chapter and to eliminate all runoff caused by the development in excess of that which would have come from the site if it were in its predevelopment state.

NONRESIDENTIAL DEVELOPMENT RIGHT

Stormwater management measures shall be consistent with the requirements of Environment Article § 4-201 ET seq., Annotated Code of Maryland.

§ 125-20.1 Transfer of development rights.

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

Transfer of development rights is the conveyance of development rights by deed, easement or other legal instrument authorized by local law to another parcel of land and the recordation of that conveyance among the land records of Wicomico County, Maryland.

Definitions. As used in this section, the following terms shall have the meanings indicated:

INSTRUMENT OF TRANSFER

An instrument, in the form required by this section, by which one or more development rights are transferred.

The use of a residential development right to increase nonresidential floor area of impervious surfaces beyond what is otherwise allowed under this chapter.

ORIGINAL INSTRUMENT OF TRANSFER

An instrument of transfer by which development rights are initially transferred from a transferor parcel by the original transferor.

ORIGINAL TRANSFEROR

A transferor who is the owner of the transferor parcel from which the rights are transferred; and

RESIDENTIAL DEVELOPMENT RIGHT

All persons who have any mortgage, deed of trust, or other lien or encumbrance on the transferor parcel

RECEIVING PARCELS

The parcel that is eligible to receive development rights from a transferor parcel. These include any parcel in a RCA District located within the Chesapeake Bay Critical Area.

The right to erect a dwelling unit on property, as such is inherent in fee simple ownership of land.

TRANSFER

A relocation of development rights from a transferor parcel to a receiving parcel by an instrument of transfer. "Transfer" includes any intermediate transfers to or among transferees.

TRANSFEREE

A person to whom development rights are transferred; and

All persons who have any lien, security interest, or other interest with respect to development rights held by a transferee.

TRANSFEROR

A person who transfers development rights; and

All persons who have any lien, security interest, or other interest with respect to development rights held by a transferor.

TRANSFEROR PARCEL

The parcel from which development rights can be transferred. A transferor parcel may be less than all of a lot owned by an original transferor; however, a transferor parcel must be at least 20 acres or 1/2 of the size of the transferor parcel, whichever is less. A transferor parcel within the Chesapeake Bay Critical Area shall be at least 20 acres in size.

Right of transfer.

In general. TDR allows a property owner to sell his/her development rights thus separating such rights from the bundle of rights associated with land ownership. A development right of a transferor parcel may be transferred and used to increase residential or nonresidential development on a receiving parcel in accordance with the provisions of this section.

The TDR option allows the landowner to potentially double the density of a cluster subdivision by transferring additional development rights to the subdivision from another RCA District property.

Limitations.

A development right may not be used in any manner inconsistent with the provisions set forth in this section.

A development right may not be used to increase density for receiving parcels located within the critical area resource conservation area beyond the density allowed within the parcel's zoning district.

The property from which the additional development rights are transferred must place a reservation of development rights on 20 acres for every one development right which is transferred from the RCA in accordance with the RCA density limitations.

Intermediate transfer. Subject to the provisions of Subsection D below, a development right may be transferred to a transferee prior to the time when its use for a specific receiving parcel has been finally approved in accordance with this chapter.

Effect of transfer. After development rights have been transferred by an original instrument of transfer:

The transferor parcel:

May not be subdivided or reconfigured;

Shall be used only for agricultural uses, other than farm residences; and

May not be used in connection with any determination of site area or site capacity, except as may be necessary in determining the number of development rights involved in the transfer; and

All development rights that are the subject of the transfer, and the value of such rights, shall be deemed for all other purposes, including assessment and taxation, to be appurtenant to the transferor parcel, until such rights have been finally approved for use on a specific receiving parcel and transferred to the County Council.

Certificate of Planning Director.

General requirement. A transfer may not be recognized under this chapter unless the original instrument of transfer:

Contains a certificate of the Planning Director that the number of development rights that are the subject of the transfer represent the number of development rights applicable to the transferor parcel; and

Is recorded by the Planning Director as provided in this chapter.

Responsibility. The transferor and the transferee named in an original instrument of transfer shall have sole responsibility to:

Supply all information required by this section;

To provide a proper original instrument of transfer; and

To pay, in addition to any other fees required by this section, all costs of its recordation among the land records of the County.

Application for certificate. An application for a certificate shall:

Contain information prescribed by the Planning Director, as may be necessary to determine the number of development rights involved in the proposed transfer;

Include five copies of a plat of the proposed transferor parcel, prepared by a registered land surveyor on the basis of an actual on-site survey; and

Be accompanied by such fee(s) as may be prescribed by the County Council.

On the basis of the information submitted, the Planning Director shall affix a certificate of the Planning Director's findings to the original instrument of transfer. The certificate shall contain a specific statement of the number of development rights that are derived from the transfer parcel.

Effect of determination. The determination of the Planning Director may not be construed to enlarge or otherwise affect in any manner the nature, character, and effect of a transfer, as set forth in Subsection D of this subsection.

Instruments of transfer.

In general. An instrument of transfer shall conform to the requirements of this section.

An instrument of transfer, other than an original instrument of transfer, need not contain a metes and bounds description or plat of the transferor parcel.

Contents. In addition to any necessary covenants, an instrument of transfer shall contain:

The names of the transferor and the transferee;

A covenant that the transferor grants and assigns to the transferee and the transferee's heirs, personal representatives, successors, and assigns a specified number of development rights from the transferor parcel;

If the instrument is not an original instrument of transfer, a statement that the transfer is an intermediate transfer of rights derived from a transferor parcel described in an original instrument of transfer (which original instrument shall be identified by its date, the names of the original transferor and transferee, and the liber and folio where it is recorded among the land records of the county);

A specific statement of the number of development rights included within the transfer;

A covenant by which the transferor acknowledges that the transferor has no further use or right of use with respect to the development rights being transferred;

(f)

Except when development rights are being transferred to the county in accordance with this section, a statement of the rights of the transferee prior to final approval of the use of those development rights on a specific receiving parcel, as provided in Subsection D of this section; and

[Amended 10-17-2006 by Bill No. 2006-11]

(g)

County covenants.

[Amended 10-17-2006 by Bill No. 2006-11]

A covenant that at the time when any development rights involved in the transfer are finally approved for use on a specific receiving parcel, the rights shall be transferred to the County for no consideration; or

In cases when development rights are being transferred to the County after approval, a covenant that the rights are being transferred to the County for no consideration.

Original instruments of transfer.

Contents of original instruments of transfer. In addition to fulfilling the requirements of Subsection F of this section, an original instrument of transfer shall also contain:

A metes and bounds description of the transferor parcel, prepared by a licensed surveyor named in the instrument.

A covenant that the development rights being transferred represent all development rights with respect to the transferor parcel under the existing or any future zoning or similar ordinance regulating the use of land in the county;

A covenant that the transferor parcel may not be subdivided or be reconfigured;

A covenant by which use of the transferor parcel is restricted to, and may be used only for, open spaces uses other than farm residences;

A covenant that all provisions of the instrument of transfer shall run with and bind the transferor parcel and may be enforced by the County Executive or his designee; and

[Amended 10-17-2006 by Bill No. 2006-11]

(f)

The certificate of the Planning Director required by this section.

Recordation of original transfer.

After it is properly executed, an original instrument of transfer shall be delivered to the Planning Director.

The Planning Director shall:

Deliver the original instrument of transfer to the Clerk of the Circuit Court for Wicomico County, together with the required fees for recording furnished by the original transferor and transferee; and

Immediately notify the original transferor and transferee in writing of the recording.

Application for use on receiving parcel.

Application. The owner of a proposed receiving parcel shall file with the Planning Director an application to use transferred development rights with respect to the development of the proposed receiving parcel.

Contents. The application shall:

Contain information as may be prescribed by the Planning Director;

Include five copies of a plat of the proposed receiving parcel, prepared by a registered land surveyor on the basis of an actual on-site survey;

Be accompanied by such fee as may be prescribed by the County Council; and

[Amended 10-17-2006 by Bill No. 2006-11]

Be accompanied by:

Original or certified copies of a recorded original instrument of transfer involving the development rights proposed to be used and any intervening instruments of transfer through which the applicant became a transferee of those rights; or

A signed, written agreement between the applicant and a proposed original transferor that contains the plat of a proposed transferor parcel and other information required by Subsection E of this section and in which the proposed transferor agrees to execute an original instrument of transfer from the proposed transferor parcel to the applicant at the time when the use of such rights on the proposed receiving parcel is finally approved.

Consideration of application for use.

Review of application. The Planning Director shall review the instruments of transfer or agreement submitted with the application and determine their sufficiency to fulfill the requirements of this chapter.

Determination. The Planning Director shall:

Determine the number of development rights that are available for use under the terms of the instruments submitted with the application.

Determine the number of development rights that this section allows to be used on the proposed receiving parcel; and

Report the preliminary determination of the Planning Director in writing to the applicant within 30 days after all information necessary to make the determinations has been received.

The Planning Commission must approve a request to utilize development rights if the request:

Does not exceed the limitation on the density or number of dwelling units permitted in the zone and in the applicable comprehensive plan;

[Amended 10-17-2006 by Bill No. 2006-11]

Is in accordance with the provisions of this chapter;

Is in accordance with Chapter 200, Titled "Subdivision of Land";

Is consistent with other recommendations of the comprehensive plan; and

[Amended 10-17-2006 by Bill No. 2006-11]

Achieves a desirable development compatible with both site conditions and surrounding existing and future development.

Effect. Any determination by the Planning Director under this section:

Is not final; and

Shall be subject to amendment, modification, or rescission until the time when the transfer is final in accordance with Subsection J of this section.

Final approval of use.

When final. Transfer from a transferor parcel to a receiving parcel is final at the time when:

Final subdivision approval or final site plan approval with respect to the receiving parcel, based upon use of development rights, has been given; and

All development rights upon which such approval was based have been transferred to the county as provided in Subsection J(2) of this section.Council

[Amended 10-17-2006 by Bill No. 2006-11]

Required instruments. Final approval may not be given to any site plan or subdivision plan that involves the use of development rights transferred under the provisions of this section until satisfactory evidence is presented that such of the following instruments as may be required to effect transfer of those rights to the county have been approved as to form and legal sufficiency by the County Attorney and recorded among the land records of the county:

[Amended 10-17-2006 by Bill No. 2006-11]

An original instrument of transfer to a transferee, other than the county;

An instrument of transfer to the owner of the receiving parcel;

Instrument(s) of transfer between any intervening transferees; and

An instrument of transfer from the owner of the receiving parcel to the county.

§ 125-21 Reforestation and afforestation.

Where reforestation or afforestation is required, the following minimum standards within the Critical Area District shall be used:

The replacement or establishment of forest or developed woodlands shall assure a diversified plant community, but may include other types of tree plantings where necessary to correct an existing soil stabilization problem. Diverse forest plantings shall include a canopy layer, an understory layer and a shrub layer.

For each acre of land where woodlands must be replaced or established, plantings shall consist of trees and/or wildlife shrub species spaced approximately at eight-foot intervals in rows eight feet apart, or other suitable spacing as determined by the Bay Watershed Forester on a site-by-site basis, which result in a minimum of 400 stems per acre after the first growing season.

Planting plans, bonds and inspections. Required planting plans shall be prepared and submitted with the site plan or preliminary and final subdivision plat. A planting plan shall be included as a required public improvement with site plans or subdivisions plats. The planting plan must demonstrate compliance with the minimum standards for reforestation and afforestation specified above. It is required that the planting plan shall be prepared by a professional registered forester, landscape architect or an experienced landscape designer. The planting plan shall show:

The site plan, building outlines (remaining and proposed), walls, fences, parking spaces, loading spaces, driveways, walks, storage areas, public rights-of-way, easements and the general location of structures and uses of abutting properties.

Existing and proposed grades.

Existing vegetative cover and existing vegetation to be retained, and the location, general size and type of such vegetation.

The methods for protecting plant materials after construction.

A plant schedule and plan listing plants to be used, giving their botanical and common names, size at time of planting and quality of each.

An indication of whether plants are balled-and-burlapped, container-grown or bare-root.

An indication of the spacing and location of all proposed trees, shrubs and ground covers.

Plant materials and planting schedule.

Tree or shrub species for afforestation or reforestation shall be screened by the Bay Watershed Forester for suitability.

All planting should be completed between the month of November and the month of May. For the first two years, steps should be taken to control competing vegetation. Technical assistance from the state's Bay Watershed Forester is highly recommended.

The planting plan shall be accompanied by an estimate of the installation cost for all afforestation and reforestation. Upon approval of the plan and the cost estimate, the developer or owner shall enter into an agreement with the county to provide plantings as may be required. The agreement shall be accompanied by a performance bond or other approved surety executed by the owner or developer in the amount of 120% of the proposed plant materials, labor and maintenance costs. The following provisions shall apply to the planting plan agreement:

If all afforestation and reforestation is not completed within two years after the first spring planting date following recordation or if the requirements set forth in the approved planting plan are not met, the surety shall be forfeited (or if a bond or surety has been posted, payment in full to the county shall be ordered). The funds so received shall be used by the county to defray the cost of providing the approved Buffer afforestation or reforestation for the site.

If the foregoing costs exceed the amount of the deposit bond or other approved surety, the excess shall be a continuing obligation of the property owner.

All bonds or other forms of surety shall be in a form acceptable to and approved by the County Attorney.

[Amended 10-17-2006 by Bill No. 2006-11]

All security posted will be held for a period of two years after installation of the planting to assure the proper maintenance and growth. Failure to maintain or replace the dead portions of the planting shall result in a forfeiture of the surety posted for the amount necessary to replace the dead plant materials.

As appropriate, the County Attorney or his designated representative may release portions of the surety.

[Amended 10-17-2006 by Bill No. 2006-11]

Where existing vegetation is to be used to meet the requirements contained herein, the surety requirement may be modified appropriately. However, to the extent that existing vegetation is or will be inadequate to meet the standards set herein, a planting plan meeting all of the requirements herein must be submitted.