Whenever any provision of this chapter and any
other provisions of law, whether set forth in these regulations or
in any other law or regulation, impose, overlap or contradict existing
regulations or contain any restrictions covering any of the same subject
matters, that provision which is more restrictive or impose higher
standards or requirements shall govern.
[Added 8-2-2011 by Bill
No. 2011-07]
A. The Planning Director or his/her designee may make reasonable accommodations for the benefit of disabled citizens to avoid discrimination on the basis of physical disability. Reasonable accommodation for the needs of disabled citizens may be permitted in accordance with the requirements set forth in Subsection
B of this section.
B. An applicant shall have the burden of demonstrating by a preponderance
of the evidence that:
(1)
There exists a disability within the meaning of the Americans
with Disabilities Act;
(2)
Literal enforcement of the statute, ordinance, regulation, or
other requirement would result in discrimination by virtue of such
disability or deprive the applicant/appellant of the reasonable use
and enjoyment of the property;
(3)
A reasonable accommodation would reduce or eliminate the discriminatory
effect of the statute, ordinance, regulation, or other requirement
or restore the applicant/appellant's reasonable use or enjoyment
of the property;
(4)
The accommodation requested will not substantially impair the
purpose, intent, or effect of the statute, ordinance, regulation or
other requirement as applied to the property;
(5)
The accommodation will be environmentally neutral with no greater
negative impact on the environment than the literal enforcement of
the statute, ordinance, regulation or other requirement; and
(6)
Only the minimum environmental changes necessary to address
the needs resulting from the particular disability of the applicant/appellant
will be allowed.
C. The Planning Director or his/her designee shall determine the nature
and scope of any accommodation under this section and may grant different
or other relief than requested after giving due regard to:
(1)
The purpose, intent, or effect of any applicable statute, regulation
or ordinance; and
(2)
The size, location, nature and type of accommodation proposed
and whether alternatives exist, which accommodate the need with less
adverse effect.
D. The accommodation granted shall be documented in a written agreement
between the County and applicant. This agreement shall reference the
property the accommodation is being allowed on, the property's
deed number, the accommodation being granted and the purpose of the
accommodation. The agreement shall state when the need for the accommodation
ceases, the property will be returned to its original condition. This
agreement shall be recorded in the land records of Wicomico County
and bind all future owners.
E. Upon termination of the need for any accommodation, as determined
by the Planning Director or his/her designee, the property shall be
restored to comply with all applicable statutes, ordinances, regulations
or other requirements.
F. In the event that the Planning Director or his/her designee denies
a reasonable accommodation, the applicant may appeal this decision
to the Board of Appeals, provided that said appeal is taken within
30 days after the final decision was rendered.
[Amended 7-6-2004 by Bill No. 2004-6]
It is expressly provided that if any property
owner, developer or any other person interested therein is dissatisfied
with any final ruling as to the interpretation or application of the
terms and conditions herein provided, they may appeal to the Board
of Appeals, provided that said appeal is taken within 30 days after
the final decision has been rendered.
[Amended 6-26-2001 by Bill No. 2001-11; 10-17-2006 by Bill No. 2006-11; 8-2-2011 by Bill No. 2011-07]
A. Whenever a violation of this chapter occurs or is alleged to have
occurred, any person may file a written complaint. Such complaint,
stating in full the causes and basis thereof, shall be filed with
the Department of Planning, Zoning and Community Development. The
Planning Director or his/her designee shall properly record the complaint,
investigate and take action thereon. Every violation identified by
the Planning Director requires an enforcement action. A violation
of this chapter shall include, but not be limited to, the following:
(1) Violation of any existing Wicomico County Board of Appeals order,
condition or restriction;
(2) Violation of the Wicomico County Critical Area Program;
(3) The existence of unpaid fines or penalties assessed by the Wicomico
County courts related to a citation or other violation issued by an
official of the Wicomico County Department of Planning, Zoning, and
Community Development;
(4) Unpaid administrative, civil or criminal penalties imposed on the
violator;
(5) Failure to prepare a restoration and/or mitigation plan approved
by Wicomico County to abate the impacts to water quality or natural
resources as a result of a violation; or
(6) Failure to perform the abatement measures in the approved restoration
and/or mitigation plan approved by Wicomico County.
B. Any person who shall violate any of the provisions of this chapter
shall be guilty of a civil infraction and shall be subject to a fine
not to exceed $10,000 per violation. A schedule of fines may be established
by resolution of the County Council.
(1) Any person who shall violate this chapter shall be deemed guilty
of a separate offense for every day that the violation shall continue.
(2) A person shall be subject to separate civil penalties, orders and
sanctions for each violation.
(3) For continuing violations, civil penalties continue to accrue for
each day each violation continues without a separate requirement for
an additional assessment, notice or opportunity for hearing for the
separate offense.
(4) The person responsible for a violation or any continuing violation
shall promptly provide the Planning Director or his/her designee with
written notice of the date(s) the violation has been or will be brought
into compliance and the date(s) for the County inspection to verify
compliance. Civil penalties for continuing violations continue to
accrue as set forth herein until the County receives such written
notice and verifies compliance by inspection or another manner.
(5) For civil penalties imposed for violations of the Critical Area Program,
the following criteria shall apply to determine the amount of the
civil penalty:
(a)
The gravity of the violation;
(b)
The willfulness or negligence, if any, of the violation;
(c)
The environmental impact of the violation; and
(d)
The cost to restore the affected resource, mitigation for damage
to that resource and costs to the state and County for performing,
supervising or assisting with restoration and mitigation.
(6) Payment of all civil penalties shall be a condition precedent to
the issuance of any permit or other approval required by this Code.
C. Any person who shall violate any of the provisions of this chapter
may be subject to the following additional penalties:
(1) Restoration and/or abatement of the area disturbed; and/or
(2) Additional plantings as required by Subsections
H and
I.
D. The owner or tenant of any building, structure, premises or part
thereof and any architect, builder, contractor, agent or other person
who commits, participates in, assists in or maintains such violation
may each be found guilty of a separate offense and suffer the penalties
herein provided. "Person," for the sake of this provision, includes
any individual, partnership, corporation, organization, or other entity,
or combination thereof.
E. The Planning Director or his/her designee may obtain access to and
enter a property in order to identify or verify a suspected violation,
restrain a development activity or issue a citation if the Director
or his/her designee has probable cause to believe that a violation
of this chapter has occurred, is occurring or will occur. The Planning
Director or his/her designee shall make a reasonable effort to contact
a property owner before obtaining access to or entering the property.
If entry is denied, Wicomico County shall have recourse to every remedy
provided by law to secure entry onto the property.
F. The Planning Director or his/her designee shall have authority to
issue citations for civil infractions of this chapter.
G. The Planning Director or his/her designee also has the authority
to issue a stop-work order, in addition to civil fines and penalties,
requiring a person to discontinue any further development, construction
or other land disturbance activity until a violation has been corrected.
(1) A stop-work order must include the following information as may be
applicable:
(a)
The name and address of the person charged;
(b)
The nature of the violation;
(c)
The place where and the approximate time that the violation
occurred;
(d)
A clear statement indicating the action that must be taken or
discontinued to cure the violation, including, when appropriate, instructions
to restore and stabilize the site to the required condition;
(e)
A clear statement indicating the requirement to prepare a planting plan per Subsections
H and
I;
(f)
A clear statement requiring the person to apply for a permit,
approval, special exception or variance required by this chapter;
(g)
The time within which any required action is to occur, taking
into account the specific action required to comply with the order;
and
(h)
A certification by the Planning Director or his/her designee
attesting to the truth of the matters set forth in the order.
(2) The stop-work order must be prominently displayed in close proximity
to the location where the violation has occurred. In addition, the
Planning Director or his/her designee may deliver or mail, as practical,
a copy of the order to the last known address of the person that secured
approval.
(3) When a stop-work order has been posted, the recipient must immediately
discontinue any further construction activities until such time as
the property is brought into compliance and the stop-work order is
rescinded.
H. Planting, as required, shall be in addition to any required abatement
or restoration activities. In evaluating the type and amount of planting,
the Planning Director or his/her designee shall consider the severity
of the impact on water resources. The stop-work order shall advise
the person that the following may be required:
(1) To implement appropriate water quality improvements or habitat enhancement
measures that are sufficient to offset adverse impacts to the critical
area resulting from the violation as follows:
(a)
Planting is required at a three-to-one ratio for the area disturbed
or the area of the development activity outside the one-hundred-foot
Buffer and expanded Buffer;
(b)
Planting is required at a six-to-one ratio for the area disturbed
or the area of the development activity within the one-hundred-foot
Buffer and expanded Buffer;
(c)
In the event plantings are required, they shall take place within
two growing seasons of the notification of violation; and
(d)
Failure to complete the additional plantings will result in
an additional fine at the rate of $1.50 per square foot of remediation
required.
(2) To prepare or have a qualified professional prepare a planting plan that includes water quality improvement or habitat enhancement measures to offset adverse impacts to the critical area resulting from the violation specified in Subsection
H(1)(a) above; or
(3) To pay a fee in lieu of planting, with the Planning Director's
or his/her designee's concurrence, that shall be deposited in
a dedicated Critical Area Restoration Fund and used exclusively to
conduct or facilitate activities or projects that promote the goals
of the Critical Area Program and to ensure its effective implementation
within Wicomico County.
I. For planting requirements that exceed 1,000 square feet or involve
expenses exceeding $1,000. The Department of Planning, Zoning and
Community Development shall:
(1) Collect a bond or other financial security to ensure that the planting
plan is properly completed;
(2) Hold a bond for at least two years to ensure the survival of the
plantings. The two years will start from the date the plantings are
installed; and
(3) Schedule and perform an inspection of the property after two years
as necessary to ensure compliance and promptly release the bond or
other financial security when compliance is confirmed.
J. Anyone who knowingly makes any false statements in any application,
record, or plan required by this chapter shall be guilty of a civil
infraction and subject to the penalties provided in this section.
K. The County may, in addition to other remedies herein provided, institute
any appropriate action or proceeding in the Circuit Court, either
by injunction or otherwise, to prevent any unlawful development activity
and/or to restrain, correct or abate such activity or violation, to
prevent the occupancy of such building, structure or land and to prevent
any illegal act, conduct, or use in or about the critical area.
(1) The pendency of an appeal to the Board of Appeals or subsequent judicial
review shall not prevent the County from seeking injunctive relief
to enforce an administrative order, permit, decisions, or other imposed
condition or to restrain a violation pending the outcome of the appeal
or judicial review.
(2) In an action for injunctive relief to enforce an administrative order,
the court may also impose civil penalties up to $10,000 for each day
that an administrative order was violated after considering:
(a)
The willfulness of the violation;
(b)
The harm to the environment or the community in which the violation
occurred; and
(c)
The cost to the County for enforcing the administrative order.
(3) In any action or proceeding in which the County substantially prevails,
the County may recover all costs incurred to enforce the terms of
this chapter, including attorney's fees and litigation expenses.
L. The Planning Director or his/her designee may decline to issue or
renew, or may suspend or revoke any permit or license issued under
the authority of, or required by this chapter.
(1) Such action may be taken on the following grounds:
(a)
False, misleading, inaccurate, incomplete or incorrect information
given on any application; or
(b)
Serious or repeated violations of this chapter, or any terms,
conditions or restrictions in the permit or license itself.
(2) The Planning Director or his/her designee shall give written notice
and opportunity to be heard before any nonissuance, nonrenewal, suspension
or revocation and shall render a written decision on the matter, which
shall be considered an administrative order and may be appealed to
the Board of Appeals.
[Added 8-2-2011 by Bill
No. 2011-07]
The provisions of this section govern applications for any review,
permit, approval, special exception or variance related to a violation
of the Critical Area Program.
A. No County department, commission or agency, including the Planning
Commission or Board of Appeals, may:
(1) Accept an application for any review, approval, permit, special exception
or variance to legalize a critical area violation until a notice of
violation has been issued and a separate civil penalty has been assessed
for each violation of the Critical Area Program on the affected property;
(2) Issue any review, permit, approval, special exception or variance
for property on which a violation of the Critical Area Program exists
until and unless:
(a)
All civil monetary penalties imposed under this chapter have
been paid in full;
(b)
A restoration and/or mitigation plan to abate impacts to water
quality and natural resources caused by or related to the violation
has been prepared and approved by the County;
(c)
All restoration and/or mitigation has been performed or guaranteed,
as set forth in the approved plan; and
(d)
All abatement measures have been performed or guaranteed, as
set forth in any administrative order or any other order.
B. Satisfaction of all conditions specified under Subsection
A above shall be a condition precedent to issuance by any County department, commission or agency, including the Planning Commission or Board of Appeals, of any review, permit, approval, variance or special exception for the affected property.
C. Unless an extension of time is appropriate because of adverse planting
conditions, within 90 days of the issuance of a permit, approval,
variance or special exception for the affected property, any additional
mitigation required as a condition of approval for the permit, approval,
variance or special exception shall be completed.