[HISTORY: Adopted by the County Commissioners of Kent County 7-7-2009 by Bill No. 3-2009.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Boats and boating — See Ch. 68.
[1]
Editor's Note: This bill was adopted as Ch. 80 but was
renumbered to maintain the alphabetical organization of the Code.
A.
It is declared the policy of Kent County to conserve, protect, and
encourage the development of seafood operations. It is in the public
interest to promote a clearer understanding between the seafood and
fishing industry and the general public concerning the normal operations
and potential inconveniences associated with the seafood and fishing
industry.
B.
It is also the policy to reduce the loss of the County's fishing
and seafood operations by limiting the circumstances under which commercial
seafood and fishing operations that adhere to generally accepted practices
may be considered a nuisance or trespass.
C.
This chapter shall not in any way restrict or impede the authority
of the state or County to protect the public health, safety, or welfare.
D.
This chapter is not intended to and shall not modify or abridge local,
state or federal laws relating to health, safety, zoning, licensing
requirements, or environmental standards. The provisions of this chapter
do not supersede the Kent County Land Use Ordinance and do not alter
in any way the County, state or federal permitting process.
As used in this chapter, the following terms shall have the
meanings indicated:
Includes, but is not limited to, all matters of harvesting
seafood and charter boat fishing in Kent County, including boats and
patrons leaving and returning at all hours; painting of crab pots;
storage of boats with a current license, crab pots, oyster tongs,
bait, clam rigs, generators, chum, ice trucks, salt, paint, and other
equipment; and soft crab shedding with its associated equipment and
lighting.
Those methods used in connection with the commercial seafood
and fishing industries which do not violate the Kent County Land Use
Ordinance or applicable federal, state, or local laws, public health,
safety or welfare, including practices which are recognized as the
best management practices by various and appropriate government agencies
for the harvesting of seafood. If a generally accepted practice has
not been identified by a government agency, the Kent County Department
of Planning, Housing and Zoning may consult with the Maryland Department
of Natural Resources, Maryland Watermen's Association, the Kent
County Health Department, individuals with a working knowledge of
the seafood industry and other individuals, businesses, or governmental
agencies that the Department deems appropriate.
A.
When conducted within standard and generally accepted seafood and
fishing industry practices, neighboring property owners shall have
no recourse against the inherent effects of commercial seafood and
fishing operations. These inherent effects include, but are not limited
to, smoke; noise; vibration; odors; fumes; dust; the operation of
machinery of any kind during any twenty-four-hour period; movement
of equipment or boats; the shedding of crabs; the storage of crab
pots, oyster tongs, bait, clam rigs, generators, refrigerators, chum,
ice trucks, salt, paint, boats, and other equipment; boats and patrons
arriving and leaving at all hours; and the painting and repair of
crab pots and other equipment.
B.
A private action may not be sustained with respect to any seafood
or fishing operation conducted substantially in accordance with generally
accepted seafood and fishing industry practices on the grounds that
the seafood or fishing operation interferes or has interfered with
the use and enjoyment of property, whether public or private, if the
seafood or fishing operation has been in existence at the site for
at least one year and such operation was not a nuisance at the time
it began operation.
C.
Notwithstanding any provision of this section, no action alleging
that a seafood or fishing operation has interfered with the reasonable
use or enjoyment of real property or personal well being may be filed
in the court if the plaintiff has not sought and obtained a final
judgment of the Kent County Seafood Resolution Board.
A.
There is hereby established the Kent County Seafood Resolution Board
("Board"). The Board shall arbitrate and mediate disputes involving
seafood operations in Kent County and issue findings concerning whether
or not such operations are conducted in a manner consistent with generally
accepted practices.
B.
The Board shall be composed of five voting members appointed by the
Kent County Commissioners. Initial appointments shall not exceed three
years beginning September 2009. Subsequent appointments shall be staggered
for three-year terms with at least one term expiring each year. Members
may serve no more than three consecutive terms. Board meetings are
open to the public. The Board shall convene to elect a Chairman and
Vice-Chairman one of whom shall have a seafood industry background
and the other of whom shall not be connected to the seafood industry.
The Board shall establish rules of procedure, which shall be submitted
to the Kent County Commissioners for review and approval. Upon the
request of a party or upon his own initiative, the Chairman of the
Board, or Vice-Chairman in the absence of the Chairman, shall have
the power to issue subpoenas for the presence of witnesses, the production
of evidence, or both. Board members shall serve without monetary compensation.
The members of the Board shall be composed of:
C.
The Board may request that an attorney be present at the meeting
where the members believe legal advice is required to resolve the
dispute. In such event, the Board shall be advised by the County Attorney
or such other attorney as the Board may appoint subject to authorization
by the County Commissioners or the Kent County Administrator. The
attorney shall be compensated at a rate not to exceed the rate of
compensation then in effect for the Kent County Attorney.
D.
Staff from the Kent County Department of Planning, Housing and Zoning
shall prepare staff reports and record and maintain minutes of the
Board in a permanent record file. The entirety of the file shall be
available for public review upon request.
A.
Complaints. Complaints of nuisances that allegedly affect the reasonable
use and enjoyment of property shall be made to the Kent County Department
of Planning, Housing and Zoning (Department of Planning). Complaints
that allege an impact to public health also shall be forwarded to
the Kent County Health Department.
B.
Investigation. Upon receipt of a written complaint, a copy shall
be provided to all parties involved and the Department of Planning
shall initiate an investigation. The Department of Planning shall
contact both parties involved in the dispute to ensure full understanding
of the nature of the complaint. When necessary, the Department of
Planning shall enlist the professional expertise of the Maryland Department
of Natural Resources, the Maryland Watermen's Association, or
other qualified experts in the relevant field to clarify the issues
pertaining to the complaint. Once the investigation is complete, the
Department of Planning shall prepare a staff report with all pertinent
information and send same to both parties. Prior to submitting the
staff report to the Kent County Seafood Resolution Board, the Department
of Planning shall confirm that both parties wish to proceed with a
hearing before the Board.
C.
Resolution.
(1)
Upon receipt of the staff report from the Department of Planning,
the Board may request further information from the Department of Planning
staff. In accordance with the rules of procedure, the Board may, on
its own initiative, or shall, at the request of any party, issue subpoenas
for witnesses or pertinent evidence to be produced at the hearing.
Board members shall visit the site of the complaint prior to the formal
hearing.
(2)
Within 45 days of receipt of the written complaint and the staff report from the Department of Planning, the Board shall schedule a formal hearing. Notice shall be sent to all parties at least 10 days prior to the hearing. The Board may request legal assistance as provided in § 89-4C. All parties involved in the complaint shall have an opportunity to present pertinent facts, be represented by counsel, examine and cross-examine witnesses, and present oral and written information to the Board. The formal rules of evidence shall not apply. The proceedings shall be recorded, and a record shall be kept of all exhibits offered by any party.
(3)
The Board shall decide whether the particular practice does or does
not conform to generally accepted practices. The Board's decision
in this respect creates a rebuttable presumption which shall be admissible
in evidence in any subsequent civil proceeding in the Kent County
District or Circuit Court arising out of the matters set forth in
the complaint. In addition, if the Board finds that a particular practice
alleged in the complaint does not conform to generally accepted practices,
it may specify and recommend alternative practices which do conform.
If all parties consent to the adoption and enforcement of those practices
in full and final resolution of the dispute, the Board shall prepare
and issue a written decision to that effect which shall be treated
in all respects as a final and binding arbitration award.
(4)
After the formal hearing, the Board may render an immediate verbal
decision or may decide to render a written decision within 30 days
after the formal hearing, which shall include findings of fact and
a statement of reasons for the decision. A copy of any written decision
shall be mailed to the parties.
(5)
The decision of the Board may be appealed in the Kent County Circuit
Court in accordance with Title 7, Chapter 200, of the Maryland Rules.
Any appeal shall be filed within 30 days of the date of the decision.
In the absence of an appeal, the Board's decision shall be final.
For any subdivision approved within the Chesapeake Bay Critical Area or abutting an existing seafood or fishing operation, the plat shall contain a statement acknowledging the existence of this chapter that shall be substantially in the form set forth in § 89-7 of this Code.
The subdivision plat disclosure statement is as follows:
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Kent County has adopted a Right to Fish and Conduct Seafood Operations Act (Chapter 89 of the Code of Public Laws of Kent County) that protects fishing and seafood operations if such operations are conducted in accordance with generally accepted practices. This subdivision is located adjacent to or near water or seafood operations, and the owners of lots in the subdivision may be subject to inconveniences arising from such operations.
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