Article IV The Chesapeake Bay Critical Area Overlay District

Development and redevelopment shall be subject to the habitat protection area requirements prescribed in this chapter. (See § 340-26.)

Reasonable accommodations for the needs of disabled citizens. (See § 340-138.)

New solid or hazardous waste collection or disposal facilities, or sanitary landfills or rubble fills, including transfer stations, may not be permitted in the critical area unless no environmentally preferable alternative exists outside the critical area, and these development activities or facilities are needed to correct an existing water quality, wastewater management problem. Existing permitted facilities shall be subject to the standards and requirements of the Department of the Environment.

Development and redevelopment shall be subject to the water-dependent facilities requirements of this chapter.

Utility transmission facilities. Utility transmission facilities, except those necessary to serve permitted uses, or where regional or interstate facilities must cross tidal waters, may be permitted in the critical area provided:

The facilities are located in intensely developed areas; and

Only after the activity or facility has demonstrated to all appropriate local and state permitting agencies that there will be a net improvement in water quality to the adjacent body of water.

These provisions do not include power plants.

Roads, bridges, and utilities are prohibited in a habitat protection area unless no feasible alternative exists. If a road, bridge, or utility is authorized, the design, construction, and maintenance shall:

Provide maximum erosion protection;

Minimize negative impacts on wildlife, aquatic life, and their habitats; and

Maintain hydrologic processes and water quality.

All development activities that must cross or affect streams shall be designed to:

Reduce increases in flood frequency and severity that are attributable to development;

Retain tree canopy to maintain stream water temperature within normal variation;

Provide a natural substrate for streambeds; and

Minimize adverse water quality and quantity impacts of stormwater.

Activities not permitted. Certain new development activities or facilities, or the expansion of certain existing facilities, because of their intrinsic nature or because of their potential for adversely affecting habitat and water quality; may not be permitted in the critical area unless no environmentally acceptable alternative exists outside the critical area, and these development activities or facilities are needed to correct an existing water quality or wastewater management problem. These include:

Solid or hazardous waste collection or disposal facilities, including transfer stations; or

§ 340-15 Intensely developed areas (IDA).

Sanitary landfills.

Mapping standards.

Areas where residential, commercial, institutional, and/or developed industrial uses predominate and where relatively little natural habitat occurs. At the time of the initial mapping, these areas shall have had at least one of the following features:

Housing density equal to or greater than four dwelling units per acre;

Industrial, institutional, or commercial uses are concentrated in the area; or

Public sewer and water collection and distribution systems are currently serving the area, and housing density is greater than three dwelling units per acre;

Also, these features shall be concentrated in an area of at least 20 adjacent acres or that entire upland portion of the critical area within the boundary of a St. Michaels unless:

The Commission has approved an alternative standard for designation of an intensely developed area; and

The area is part of a growth allocation approved by the Commission.

Activities authorized only in IDA. The following uses may be permitted in the IDA only after the activity or facility has demonstrated to all appropriate local and state permitting agencies that there will be a net improvement in water quality to the adjacent body of water. These activities include the following:

Non-maritime heavy industry;

Permanent sludge handling, storage, and disposal facilities, other than those associated with wastewater treatment facilities. However, agricultural or horticultural use of sludge under appropriate approvals when applied by an approved method at approved application rates may be permitted in the critical area, except in the 100-foot buffer.

General policies. The critical area article[1] contained in this chapter hereby incorporates the following policies for intensely developed areas. New or expanded development or redevelopment shall take place in such a way as to:

Improve the quality of runoff from developed areas that enters the Chesapeake Bay or its tributary streams;

Accommodate additional development of the type and intensity designated by the Town in this article provided that water quality is not impaired;

Minimize the expansion of intensely developed areas into portions of the critical area designated as habitat protection areas and resource conservation areas under this program;

Conserve and enhance fish, wildlife, and plant habitats, as identified in § 340-26, Other habitat protection areas, to the extent possible within intensely developed areas; and

Encourage the use of retrofitting measures to address existing stormwater management problems.

Editor's Note: See Art. IV, The Chesapeake Bay Critical Area Overlay District.

Development standards. For all development activities in the intensely developed areas (IDA), the applicant shall identify any environmental or natural feature described below and meet all the following standards:

[Amended 2-10-2021 by Ord. No. 519]

Development activities shall be designed and implemented to minimize the destruction of forest and woodland vegetation;

Stormwater shall be addressed in accordance with the following provisions:

All development and redevelopment activities shall include stormwater management technologies that reduce pollutant loadings by at least 10% below the level of pollution on the site prior to development or redevelopment as provided in the Critical Area 10% Rule Guidance Manual — Fall 2003 and as may be subsequently amended.

Stormwater management to meet 10% requirements shall be provided on site to the maximum extent practicable.

Where the 10% requirement cannot be met on site, the following options are available:

Fee-in-lieu for 10% requirements may be provided at $35,000 per pound of phosphorus removed.

Other offsets as described in the Maryland Chesapeake and Atlantic Coastal Bays Critical Area 10% Rule Guidance - Fall 2003 and as may be subsequently amended. Offsets must remove a phosphorus load equal to or greater than the remaining 10% requirement.

The Town shall track and report annually to the Critical Area Commission all stormwater fees-in-lieu collected and expended, as well as any authorized stormwater offsets.

Areas of public access to the shoreline, such as footpaths, scenic drives, and other public recreational facilities should be maintained and, if possible, increased within intensely developed areas.

Ports and industries that use water for transportation and derive economic benefits from shore access shall be located near existing port facilities. The Town may identify other sites for planned future port facility development and use if this use will provide significant economic benefit to the State or Town and is consistent with the provisions of the Water Dependent Facilities section of this chapter and other state and federal regulations.

To the extent practicable, future development in the IDA shall use cluster development to reduce impervious areas and to maximize areas of natural vegetation.

When the cutting or clearing of trees in forests and developed woodland areas are associated with current or planned development activities, the following shall be required:

Individual trees removed shall be in accordance with the Tree Replacement and Mitigation Table in § 340-182;

[Added 7-12-2023 by Ord. No. 540[2]]

Editor's Note: This ordinance also redesignated former Subsection D(6)(a) through (c) as Subsection D(6)(b) through (d), respectively.

Participation in programs established by the Town for the enhancement of forest and developed woodland resources, such as programs for urban forestry that involve street tree plantings, gardens, landscaping, and open land buffer plantings;

Development activities shall be designed and implemented to minimize the destruction of forest and woodland vegetation; and

§ 340-17 Limited development areas (LDA).

Development activities shall address the protection of existing forests and developed woodlands identified as habitat protection areas in this chapter.

§ 340-16 Administrative enforcement.

See § 340-120.

Mapping standards.

Limited development areas are those areas that are currently developed in low or moderate intensity uses. They also contain areas of natural plant and animal habitats. The quality of runoff from these areas has not been substantially altered or impaired. At the time of the initial mapping, these areas shall have had at least one of the following features:

Housing density ranging from one dwelling unit per five acres up to four dwelling units per acre;

Areas not dominated by agricultural, wetland, forest, barren land, open water, or open space;

Areas meeting the conditions of intensely developed area but comprising less than 20 acres;

Areas having public sewer or public water, or both.

General policies. St. Michaels hereby incorporates the following policies for limited development areas. New or expanded development or redevelopment shall take place in such a way as to:

Maintain or, if possible, improve the quality of runoff and groundwater entering the Chesapeake Bay and its tributaries;

Maintain, to the extent practicable, existing areas of natural habitat; and

Accommodate additional low- or moderate-intensity development if:

This development conforms to the water quality and habitat protection criteria in Subsection C below; and

The overall intensity of development within the limited development area is not increased beyond the level established in a particular area to change its prevailing character as identified by density and land use currently established in the area.

Development standards.

If a wildlife corridor system is identified by the Department of Natural Resources on or near the site, the following practices are required:

The applicant shall incorporate a wildlife corridor system that connects the largest undeveloped or most vegetative tracts of land on and adjacent to the site;

The Town shall require and approve a conservation easement, restrictive covenant, or similar instrument to ensure the maintenance of the wildlife corridor;

The wildlife corridor shall be preserved by a public or private group.

Development on slopes 15% or greater, as measured before development, shall be prohibited unless the project is the only effective way to maintain or improve the stability of the slope and is consistent with the policies and standards for limited development areas.

Except as otherwise provided in this subsection, for stormwater runoff, lot coverage is limited to 15% of a lot or parcel or any portions of a lot or parcel that are designated limited development area.

If a parcel or lot of 1/2 acre or less in size existed on or before December 1, 1985, then lot coverage is limited to 25% of the parcel or lot.

If a parcel or lot greater than 1/2 acre and less than one acre in size existed on or before December 1, 1985, then lot coverage is limited to 15% of the parcel or lot.

If an individual lot one acre or less in size is part of a subdivision approved after December 1, 1985, then lot coverage may exceed 15% of the individual lot; however, the total lot coverage for the entire subdivision may not exceed 15%.

Lot coverage limits provided in Subsection C(3)(a) and (b) above may be exceeded upon findings by the Planning Commission or its designee that the following conditions exist:

The lot or parcel is legally nonconforming. A lot or parcel legally developed as of July 1, 2008, may be considered legally nonconforming for lot coverage requirements.

Lot coverage associated with new development activities on the property have been minimized;

[3]

For a lot or parcel 1/2 acre or less in size, total lot coverage does not exceed the lot coverage limits in Subsection C(3)(a) by more than 25% or 500 square feet, whichever is greater;

[4]

For a lot or parcel greater than 1/2 acre and less than one acre in size, total lot coverage does not exceed the lot coverage limits in Subsection C(3)(b) or 5,445 square feet, whichever is greater;

[5]

The following table summarizes the limits outlined in Subsection C(3)(d)[1] through [4] above:

Table 17C(3)(d)[5]
Lot/Parcel Size (square feet)	Lot Coverage Limit
0 to 8,000	25% of parcel plus 500 square feet
8,001 to 21,780	31.25% of parcel
21,780 to 36,300	5,445 square feet
36,301 or more	15% of the parcel

If the Planning Commission or its designee makes the findings set forth in Subsection C(3)(d) above and authorizes an applicant to use the lot coverage limits set forth in that subsection, the applicant shall:

Demonstrate that water quality impacts associated with runoff from the development activities that contribute to lot coverage have been minimized through site design considerations or the use of best management practices to improve water quality; and

Provide on-site mitigation in the form of plantings to offset potential adverse water quality impacts from the development activities resulting in new lot coverage. The plantings shall be equal to two times the area of the development activity.

[3]

If the applicant cannot provide appropriate stormwater treatment and plantings due to site constraints, then the applicant shall pay a fee to St. Michaels in lieu of performing the on-site mitigation. The amount of the fee shall be $1.50 per square foot of the required mitigation.

The alteration of forest and developed woodlands shall be restricted and shall be mitigated as follows:

The total acreage in the forest and developed woodlands within St. Michaels in the critical area shall be maintained or preferably increased.

All forests and developed woodlands that are allowed to be cleared or developed shall be replaced in the critical area on not less than an equal area basis.

If an applicant is authorized to clear more than 20% of a forest or developed woodlands on a lot or parcel, the applicant shall replace the forest or developed woodlands at 1.5 times the areal extent of the forest or developed woodlands cleared, including the first 20% of the forest or developed woodlands cleared.

Except for grandfathered lots less than 30,000 square feet, clearing more than 30% of any forest or developed woodland is prohibited unless authorized under a variance. See § 340-137 for variance procedures. Grandfathered lots less than 30,000 square feet are exempt from clearing limits, provided that mitigation or fee-in-lieu is provided at 1.5 times the entire area of forest or developed woodland being removed.

If an applicant is authorized to clear any percentage of forest or developed woodlands associated with a subdivision or site plan approval, the remaining percentage shall be maintained through recorded, restrictive covenants or similar instruments approved by St. Michaels.

The following are required for forest or developed woodlands clearing as required in Subsection C(4) above:

The applicant shall ensure that any plantings that die within 24 months of installation shall be replaced. A performance bond in an amount determined by St. Michaels shall be posted to assure satisfactory replacement as required in Subsection C(4) above and plant survival.

A permit issued by St. Michaels before forest or developed woodlands are cleared. Clearing forests and developed woodlands before obtaining a St. Michaels permit is a violation; any forests and developed woodlands cleared before obtaining a St. Michaels permit shall be replanted at three times the areal extent of the cleared forest or developed woodlands.

Clearing of forest or developed woodlands that exceed the maximum area allowed in Subsection C(4) above shall be replanted at three times the areal extent of the cleared forest or developed woodlands.

If the areal extent of the site limits the application of the reforestation standards in this section, the applicant may be allowed to plant off-site at the required ratio or pay a fee in lieu of planting at a rate of $1.50 per square foot.

If no forest is established on proposed development sites, these sites shall be planted to provide a forest or developed woodlands cover of at least 15%.

The applicant shall designate, subject to the approval of the Town, a new forest area on a part of the site not forested; and

The afforested area shall be maintained as forest cover through easements, restrictive covenants or other protective instruments approved by the Town Attorney.

§ 340-18 Resource conservation areas (RCA).

New, expanded or redeveloped industrial facilities may only be permitted in LDA if such use is permitted in the underlying zoning district and provided such facilities meet all requirements for development in the LDA.

[Amended 2-10-2021 by Ord. No. 519]

Development standards. For all development activities and resource utilization in the resource conservation areas, the applicant shall meet all the following standards:

Land use management practices shall be consistent with the policies and criteria for the habitat protection area provisions of this chapter.

Land within the resource conservation area may be developed for residential uses at a density not to exceed one dwelling unit per 20 acres.

Development activity within the resource conservation areas shall be consistent with the requirements and standards for limited development areas as specified in this chapter.

Lot coverage is limited as follows:

When a site is mapped entirely as RCA, lot coverage is based on the entire site area; and

When a portion of a lot or parcel is mapped as RCA, lot coverage is based on the area of the RCA.

Nothing in this section shall limit the ability of a participant in any agricultural easement program to convey real property impressed with such an easement to family members, provided that no such conveyance will result in a density greater than one dwelling unit per 20 acres.

§ 340-19 Land use and density in RCA.

Permitted uses. Permitted uses in the critical area shall be limited to those uses allowed by the underlying zoning classification, which may include the following:

Existing industrial and commercial facilities, including those that directly support agriculture, forestry, aquaculture, or residential development not exceeding the one-per-twenty-acre density, shall be allowed in RCAs. New or expanded uses in the RCA may require growth allocation.

Expansion of existing industrial facilities and uses in the resource conservation area shall be subject to the nonconforming use provisions of this chapter and the grandfathering provisions in § 340-20 and may require growth allocation.

Additional land may not be zoned or used for industrial, commercial, or institutional development, except as provided by the Town's growth allocation provisions. New commercial, industrial, and institutional uses shall not be permitted in resource conservation areas, except as provided for in the Town's growth allocation provisions or as listed below:

Occupation as an accessory use on a residential property and as provided for in this chapter;

A golf course developed in accordance with the official guidance adopted by the Critical Area Commission on August 3, 2005, 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 lot coverage is limited to 15% of the site or 20,000 square feet, whichever is less;

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

A day-care facility in a dwelling where the operators live on the premises, and there are no more than eight children cared for at one time;

(f)

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

The maximum permitted density in the RCA.

The maximum permitted density in the RCA shall be one dwelling unit per 20 acres.

Calculation of one-in-twenty-acre density of development. In calculating the one-in-twenty-acre density of development that is permitted on a parcel located within the resource conservation area, the Town:

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 based on vegetative information as designated on the state wetlands maps or by private survey approved by the Town, the Critical Area Commission, and the Maryland Department of the Environment.

One additional dwelling unit (accessory dwelling unit) as part of a primary dwelling unit may be permitted in the resource conservation area, provided the additional dwelling unit is served by the same sewage disposal system as the primary dwelling unit and:

Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit and does not exceed 900 square feet in a total enclosed area or is located within the primary dwelling unit and does not increase the amount of lot coverage already attributed to the primary dwelling unit.

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

The provisions of this section may not be construed to authorize the granting of a variance unless the variance is granted in accordance with the variance provisions contained herein.

§ 340-20 Grandfathering.

Continuation of existing uses.

The continuation, but not necessarily the intensification or expansion of any use in existence on May 10, 1988, may be permitted unless the use has been abandoned for more than one year or is otherwise restricted by existing municipal ordinances.

If any existing use does not conform to the provisions of this section, its intensification or expansion may be permitted only in accordance with the variance provisions in § 340-137.

Residential density on grandfathered lots.

Except as otherwise provided, the following types of land are permitted to be developed with a single-family dwelling, if a dwelling is not already placed there, notwithstanding that such development may be inconsistent with the density provisions of this chapter and the provisions of § 340-19:

Any land on which development activity has progressed to the point of pouring of foundation footings or the installation of structural members;

A legal parcel of land, not being part of a recorded or approved subdivision that was recorded as of December 1, 1985;

Land that received a building permit after December 1, 1985, but before May 10, 1988;

Land that was subdivided into recorded, legally buildable lots, where the subdivision received final approval between June 1, 1984, and December 1, 1985; and

§ 340-21 Variances from critical area overlay district provisions.

Land that was subdivided into recorded, legally buildable lots, where the subdivision received the final approval after December 1, 1985, and provided that either development of any such land conforms to the intensely developed area, limited development area or resource conservation area requirements in this chapter or the area of the land has been counted against the growth allocation permitted under this chapter.

For purposes of implementing this regulation, a local jurisdiction shall have determined, based on land uses and development in existence on December 1, 1985, which land areas fall within the three types of development areas described in this chapter.

Consistency. Nothing in this section may be interpreted as altering any requirements of this chapter related to water-dependent facilities or habitat protection areas.

See § 340-137.

§ 340-22 Lot consolidation and reconfiguration.

Applicability. The provisions of this article apply to consolidation or a reconfiguration of any nonconforming legal grandfathered parcel or lot. These provisions do not apply to the reconfiguration or consolidation of parcels or lots which are conforming or meet all critical area requirements. Nonconforming parcels or lots include:

Those for which a critical area variance is sought or has been issued; and

Those located in the RCA and are less than 20 acres in size.

Procedure. An applicant seeking a parcel or lot consolidation, or reconfiguration shall provide the required information required in COMAR 27.01.02.08E.

The Town may not approve a proposed parcel or lot consolidation or reconfiguration without making written findings in accordance with COMAR 27.01.02.08F.

The Town shall issue a final written decision or order granting or denying an application for consolidation or reconfiguration.

After a final written decision or order is issued, the Town shall send a copy of the decision or order and a copy of any approved development plan within 10 business days by U.S. mail to the Critical Area Commission's business address.

Appeal.

The period during which the Commission may file an appeal or a petition for judicial review begins on the date of the Commission's receipt of the final written decision or order.

§ 340-23 Accommodations for needs of disabled in the critical area.

Unless a local ordinance or other local legal authority specifies a period greater than 30 days, the Commission may file an appeal or a petition for judicial review within 30 days of the date of the Commission's receipt of the final decision or order.

See § 340-138.

§ 340-24 100-foot buffer.

Applicability and delineation. An applicant for a development activity or a change in land use shall apply all the required standards as described below. The buffer shall be delineated in the field and shall be shown on all applications as follows:

A buffer of at least 100 feet is delineated and expanded as described in Subsection A(3), based on existing field conditions landward from:

The mean high water line of tidal water;

The edge of each bank of a tributary stream; and

The upland boundary of a tidal wetland.

Applications for a subdivision or development activity on land located within the RCA requiring site plan approval after July 1, 2008, shall include a minimum buffer of at least 200 feet from a tidal waterway or tidal wetlands. In the following instances, the 200-foot buffer does not apply, and the buffer shall be delineated in accordance with Subsection A(1) and A(3):

The application for subdivision or site plan approval was submitted before July 1, 2008, and legally recorded (subdivisions) or received approval (site plans), by July 1, 2010; or

The application involves the use of growth allocation.

The 100-foot buffer shall be expanded beyond 100 feet as described in Subsection A(1) above, and beyond 200 feet as described in Subsection A(2) above, to include the following contiguous land features:

A steep slope at a rate of four feet for every 1% of slope or the entire steep slope to the top of the slope, whichever is greater;

A nontidal wetland to the upland boundary of the nontidal wetland;

The 100-foot buffer that is associated with a nontidal wetland of special state concern as stated in COMAR 26.23.06.01; and/or

For an area of hydric soils or highly erodible soils, the lesser of:

The landward edge of the hydric or highly erodible soils; or

Three hundred feet where the expansion area includes the minimum the 100-foot buffer.

Development activities in the buffer. The Town may authorize disturbance to the buffer for the following activities, provided mitigation is performed in accordance with Subsection D of this section, and an approved buffer management plan is submitted as required Subsection F:

A new development or redevelopment activity associated with a water-dependent facility.

A shore erosion control activity constructed in accordance with COMAR 26.24.02 and this chapter.

A development or redevelopment activity approved in accordance with the variance provisions of this article.

A new development or redevelopment activity on a lot or parcel that was created before January 1, 2010, where:

The buffer is expanded for highly erodible soil on a slope less than 15% or is expanded for a hydric soil, and the expanded buffer occupies at least 75% of the lot or parcel;

The development or redevelopment is located in the expanded portion of the buffer and not within the 100-foot buffer; and

Mitigation occurs at a 2:1 ratio based on the lot coverage of the proposed development activity that is in the expanded buffer.

A septic system on a lot created before May 10, 1988, where mitigation is provided at a 1:1 ratio for the area of canopy cleared of any forest or developed woodland.

Buffer establishment.

The requirements of this regulation apply to:

A development or redevelopment activity that occurs on a lot or parcel that includes a buffer to tidal waters, a tidal wetland, or a tributary stream if that development or redevelopment activity is located outside the buffer; and

The approval of a subdivision that includes a buffer to tidal waters, a tidal wetland, or a tributary stream.

If an applicant for a subdivision of a lot uses or leases the lot for an agricultural purpose, the applicant:

In accordance with local land recordation requirements, shall record an approved buffer management plan under Subsection F of this section; and

If authorized by the Town, may delay implementation of the buffer management plan until the use of the lot is converted to a nonagricultural purpose.

The requirements of this regulation do not apply to an in-kind replacement of a structure.

An applicant shall establish the buffer in vegetation in accordance with the table below and Subsection E of this section and provide a buffer management plan under Subsection F of this section when an applicant applies for:

Approval of a subdivision;

Conversion from one land use to another land use on a lot or a parcel; or

Development on a lot or a parcel created before January 1, 2010.

When the buffer is not fully forested or is not fully established in existing, naturally occurring woody or wetland vegetation, an applicant shall establish the buffer to the extent required as provided in COMAR 27.01.09.01-1C.

The Town may authorize an applicant to deduct from the total establishment requirement an area of lot coverage removed from the buffer if:

The lot coverage existed before the date of local program adoption or was allowed by local procedures; and

The total area is stabilized.

Mitigation for impacts to the buffer. An applicant for a development activity that includes disturbance to the buffer shall mitigate for impacts to the buffer and shall provide a buffer management plan in accordance with the standards set forth in this subsection.

All authorized development activities shall be mitigated based on the ratios noted in the table below, in addition to the area of canopy coverage removed for an individual tree, developed woodland or forest.

Table 24D(1) Buffer Mitigation Ratios
	Mitigation Ratio
Activity	Permanent Disturbance	Temporary Disturbance
Septic on a lot created before local program approval if located in existing grass or if clearing is not required	Not applicable	0
Septic system in a forest or developed woodland on a lot created before local program approval if clearing is required	1:1	Not applicable
Shore erosion control	1:1	1:1
Riparian water access	2:1	1:1
Water-dependent facility	2:1	1:1
Variance	3:1	1:1

All unauthorized development activities in the buffer shall be mitigated at a ratio of 4:1 for the area of disturbance in the buffer.

Planting for mitigation shall be planted on site within the buffer. If mitigation planting cannot be located within the buffer, then the Town may permit planting in the following order of priority:

On site and adjacent to the buffer; and

On site elsewhere in the critical area.

The installation or cultivation of a new lawn or turf in the buffer is prohibited.

Buffer planting standards.

An applicant that is required to plant the buffer to meet establishment or mitigation requirements shall apply the planting standards set forth in the table below.

Table 24E(1) Landscape Stick Credit
Vegetation Type	Minimum Size Eligible for Credit	Maximum Credit Allowed (square feet)	Maximum Percentage of Landscape Stock Credit
Canopy tree	2-inch caliper	200	Not applicable
Canopy tree	3/4-inch caliper	100	Not applicable
Understory tree	3/4-inch caliper	75	Not applicable
Large shrub	3 feet high	50	30%
Small shrub	18 inches high	25	20%
Herbaceous perennial	1 quart or based on the area covered by plugs or seed mix	2	10%
Planting Cluster A (for less than 1/2 acre of planting)	1 canopy tree; and 3 large shrubs or 6 small shrubs of size listed above	300	Not applicable
Planting Cluster B (for less than 1/2 acre of planting)	2 understory trees; and 3 large shrubs or 6 small shrubs of size listed above	350	Not applicable

A variance to the planting and mitigation standards of this section is not permitted.

Required submittal of buffer management plans. An applicant that is required to plant the buffer to meet establishment or mitigation requirements shall submit a buffer management plan in accordance with COMAR 27.01.09.01-3. The provisions of this chapter do not apply to maintaining an existing grass lawn or an existing garden in the buffer.

Any permit for a development activity that requires buffer establishment or buffer mitigation will not be issued until the Town approves a buffer management plan.

An applicant may not obtain the final approval of a subdivision application until the buffer management plan has been reviewed and approved by the Town.

The Town may not approve a buffer management plan unless:

The plan indicates that all planting standards under Subsection E of this section will be met; and

Appropriate measures are in place for the long-term protection and maintenance of all buffer areas.

For a buffer management plan that is the result of an authorized disturbance to the buffer, a permit authorizing final use and occupancy will not be issued until the applicant:

Completes the implementation of a buffer management plan; or

Provides financial assurance to cover the costs for:

Materials and installation; and

If the mitigation or establishment requirement is at least 5,000 square feet, long-term survivability requirements as set forth in COMAR 21.01.09.01-3J(2)(d).

Concurrent with recordation of a subdivision plat, an applicant shall record a protective easement for the buffer.

If an applicant fails to implement a buffer management plan, that failure shall constitute a violation of this chapter. A permit for development activity will not be issued for a property that has the violation.

An applicant shall post a subdivision with permanent signs prior to final recordation in accordance with COMAR 27.01.09.01-2.

Buffer management plans that include natural regeneration shall follow the provisions of COMAR 27.01.09.01-4.

Fee-in-lieu of buffer mitigation. A fee-in-lieu of mitigation will be collected if the planting requirements of Subsection D above cannot be fully met on site, in accordance with the following standards:

Fee-in-lieu monies shall be collected and held in a special fund, which may not revert to the St. Michaels' general fund;

Fee-in-lieu shall be assessed at $1.50 per square foot of required buffer mitigation;

A portion of fee-in-lieu money can be used for management and administrative costs; however, this cannot exceed 20% of the fees collected; and

Fee-in-lieu monies shall be used for the following projects:

To establish the buffer on sites where planting is not a condition of development or redevelopment; and/or

§ 340-25 Buffer management area (BMA) provisions.

For water quality and habitat enhancement projects as described in an agreement between the Town and the Critical Area Commission.

Development and redevelopment standards. New development or redevelopment activities, including structures, roads, parking areas, and other impervious surfaces, lot coverage or septic systems will not be permitted in the buffer in a designated BMA unless the applicant can demonstrate that there is no feasible alternative and the Board of Zoning Appeals finds that efforts have been made to minimize buffer impacts. The development shall comply with the following standards:

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

Variances to other local setback requirements have been considered before additional intrusion into the buffer.

Commercial, industrial, institutional, recreational, and multifamily residential development and redevelopment shall meet the following standards:

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 minimum required setback for the zoning district or 50 feet, whichever is greater. Structures on adjacent properties shall not be used to determine the setback line.

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 25 feet. Structures on adjacent properties shall not be used to determine the setback line. A new structure may be constructed on the footprint of an existing structure.

Single-family residential development and redevelopment shall meet the following standards:

New development or redevelopment shall minimize the extent of intrusion into the buffer. New development shall not be located closer to the water (or the edge of tidal wetlands) than principal structures on adjacent properties or 50 feet, whichever is greater. In no case shall redevelopment be located less than 25 feet from the water (or the edge of tidal wetlands).

The existing principal or accessory structures may be replaced in the same footprint.

New accessory structures may be located closer to the water than the setback if the Town has determined there are no other locations for the structures. The area of new accessory structures shall not exceed 500 square feet within 25 feet of the water and a total of 1,000 square feet in the buffer.

Variances to other local setback requirements shall be considered before additional intrusion into the buffer is permitted.

Development and redevelopment may not impact any habitat protection area (HPA) other than the buffer, including nontidal wetlands, other state or federal permits notwithstanding.

Buffer management area (BMA) 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.

No natural vegetation may be removed in the buffer except that required by the proposed construction.

(9)

Mitigation for development or redevelopment in the BMA approved under the provisions of this subsection shall be implemented as follows:

Natural forest vegetation of an area twice the extent of the footprint of the development activity within the 100-foot buffer shall be planted on-site in the buffer or at another location approved by the Planning Commission.

Applicants who cannot fully comply with the planting requirement in Subsection A(9)(a) above may offset by removing an equivalent area of existing lot coverage in the buffer.

Applicants who cannot comply with either the planting or offset requirements in Subsection A(9)(a) or (b) above shall pay $1.50 per square foot into a fee-in-lieu program.

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 to enhance wildlife habitat, improve water quality, or otherwise promote the goals of the Chesapeake Bay Critical Area Overlay District. The funds cannot be used to accomplish a project or measure that would have been required under existing local, state, or federal laws, regulations, statutes, or permits. The status of these funds must be reported to the Critical Area Commission on an annual basis.

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

Notification requirements. 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.

Review process. The Planning Commission shall make written findings documenting that all the criteria in this chapter are met, including that the disturbance to the buffer is the least intrusion necessary. These findings shall be available to the Commission upon request.

Modified buffer area mapping standards. The following standards shall apply for the mapping of new modified buffer areas:

Only lots of record as of December 1, 1985, are eligible for mapping as modified buffer areas (MBAs).

The parcel or lot being considered for MBA status shall contain a buffer that was significantly impacted by development at the time of program adoption and that prevent the buffer from fulfilling its functions.

Developed parcels or lots shall contain a buffer intrusion by the principal structures (excluding utilities or septic systems).

Undeveloped or vacant parcels or lots (i.e., infill) may be designated as an MBA 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.

If only part of a parcel or lot meets the criteria for designation as a modified buffer area, then only portions of the parcel or lot shall be designated as a modified buffer area. The portion of the parcel designated as a modified buffer area will be subject to the modified buffer area requirements. Portions of the property that are not designated as a modified buffer area shall comply fully with the 100-foot buffer restrictions.

Any proposal by the Town for designation of an area as an MBA shall include, at a minimum, a written evaluation and supporting reasons which demonstrate the degree to which the proposed MBA does not perform each of the following buffer functions:

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

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

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

Maintain the natural environment of streams; and

§ 340-26 Other habitat protection areas.

Protect riparian wildlife habitat.

Identification. An applicant for development activity, redevelopment activity, or change in land use shall identify all applicable habitat protection areas and follow the standards contained in this section. habitat protection areas include:

Threatened or endangered species or species in need of conservation;

Colonial waterbird nesting sites;

Historic waterfowl staging and concentration areas in tidal waters, tributary streams or tidal and nontidal wetlands;

Existing riparian forests;

Forest areas utilized as breeding areas by forest interior dwelling birds and other wildlife species;

Other plant and wildlife habitats determined to be of local significance;

Natural heritage areas; and

Anadromous fish propagation waters.

Standards.

An applicant proposing a subdivision or a site plan for a site within the critical area that is in or near a habitat protection area listed above shall request a review by the Department of Natural Resources Wildlife and Heritage Service for comment and technical advice. Based on the Department's recommendations, additional research and site analysis may be required to identify the location of threatened and endangered species and species in need of conservation on a site.

If the presence of a habitat protection area is confirmed by the Department of Natural Resources, the applicant shall develop a habitat protection plan in coordination with the Department of Natural Resources.

[Amended 2-10-2021 by Ord. No. 519]

If potential Forest Interior Dwelling Species (FIDS) habitat is identified, the proposed development shall conform to the Critical Area Commission's FIDS Guidance Manual, dated June 2000 as updated.

If potential anadromous fish propagation waters are identified, the proposed development shall conform to the policies and criteria listed in COMAR 27.01.09.05.

§ 340-27 Environmental impact assessment (EIA).

The applicant shall obtain approval of the habitat protection plan from the Planning Commission. The specific protection and conservation measures included in the plan shall be considered conditions of approval of the project.

Applicability. The Town may require an environmental impact assessment (EIA) for the following:

Development or redevelopment activities in the critical area requiring site plan approval;

Development or redevelopment activities in the critical area requiring subdivision approval;

Development or redevelopment activities within a habitat protection area other than a detached single-family dwelling;

An application for growth allocation; or

An application for a variance other than for a detached single-family dwelling.

§ 340-28 Water-dependent facilities.

Applicability. The provisions of this section apply to those structures or works associated with industrial, maritime, recreational, educational, or fisheries activities that require location at or near the shoreline within the buffer. An activity is water-dependent if it cannot exist outside the buffer and is dependent on the water because of the intrinsic nature of its operation.

Identification. Water-dependent facilities include, but are not limited to, ports, the intake and outfall structures of power plants, water-use industries, marinas, and other boat docking structures, public beaches, and other public water-oriented recreation areas, and fisheries activities. Excluded from this regulation are individual private piers installed or maintained by riparian landowners, and which are not part of a subdivision that provides community piers.

General policies. The policies of the Town with regard to water-dependent facilities shall be to limit development activities in the buffer to those that are water-dependent and provide by design and location criteria that these activities will have minimal individual and cumulative impacts on water quality and fish, wildlife, and plant habitat in the critical area.

Standards. The following standards shall apply to new or expanded development activities associated with water-dependent facilities:

New or expanded development activities may be permitted in the buffer in the intensely developed areas and limited development areas provided that it can be shown:

That they are water-dependent;

That the project meets a recognized private right or public need;

That adverse effects on water quality, fish, plant, and wildlife habitat are minimized;

That, insofar as possible, non-water-dependent structures, or operations associated with water-dependent projects or activities are located outside the buffer; and

That the facilities are consistent with a local approved plan as set forth below.

New or expanded development activities may not be permitted in those portions of the buffer, which occur in resource conservation areas. Applicants for water-dependent facilities in a resource conservation area, other than those specifically permitted herein, must apply for a portion of the Town's growth allocation as set forth in this chapter.

Evaluating plans for new and expanded water-dependent facilities. The Town shall evaluate on a case-by-case basis all proposals for the expansion of existing or new water-dependent facilities. The Town shall work with appropriate state and federal agencies to ensure compliance with applicable regulations. The following factors shall be considered when evaluating proposals for new or expanded water-dependent facilities:

That the activities will not significantly alter existing water circulation patterns or salinity regimes;

That the water body upon which these activities are proposed has adequate flushing characteristics in the area;

That disturbance to wetlands, submerged aquatic plant beds, or other areas of important aquatic habitats will be minimized;

That adverse impacts to water quality that may occur as a result of these activities, such as nonpoint source runoff, sewage discharge from land activities or vessels, or boat cleaning and maintenance operations, is minimized;

That shellfish beds will not be disturbed or be made subject to discharge that will render them unsuitable for harvesting;

That dredging shall be conducted in a manner, and using a method which causes the least disturbance to water quality and aquatic and terrestrial habitats in the area immediately surrounding the dredging operation or within the critical area, generally;

That dredged spoil will not be placed within the buffer or elsewhere in that portion of the critical area which has been designated as a habitat protection area except as necessary for:

Backfill for permitted shore erosion protection measures;

Use in approved vegetated shore erosion projects;

Placement on a previously approved channel-maintenance spoil disposal areas; and

Beach nourishment.

That interference with the natural transport of sand will be minimized; and

(9)

That disturbance will be avoided to historic areas of waterfowl staging and concentration or other habitat protection areas identified in this article.

Industrial and port-related facilities. New, expanded or redeveloped industrial or port-related facilities and the replacement of these facilities may be permitted only in those portions of intensely developed areas that have been designated as modified buffer areas and are subject to the provisions set forth in this article.

Marinas and other commercial maritime facilities. New, expanded, or redeveloped marinas may be permitted subject to the requirements set forth below:

New, expanded, or redeveloped marinas may be permitted in the buffer within intensely developed areas and limited development areas.

New marinas or related maritime facilities may not be permitted in the buffer within resource conservation areas except, expansion of existing marinas may be permitted within resource conservation areas 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 and existing marinas shall meet the sanitary requirements of the Department of the Environment as required in COMAR 26.04.02. New marinas shall establish a means of minimizing the discharge of bottom wash waters into tidal waters.

Community piers. New or expanded community marinas and other noncommercial boat-docking and storage facilities may be permitted in the buffer subject to the requirements in this chapter, provided that:

These facilities may not offer food, fuel, or other goods and services for sale and shall provide adequate and clean sanitary facilities;

The facilities are community-owned and established and operated for the benefit of the residents of a platted and recorded riparian subdivision;

The facilities are associated with a residential development approved by the Town for the critical area and consistent with all state requirements and program requirements for the critical area;

Disturbance to the buffer is the minimum necessary to provide a single point of access to the facilities; and

If community piers, slips, or moorings are provided as part of the new development, private piers in the development are not allowed.

The number of slips or piers permitted in community piers. The number of slips or piers permitted at the facility shall be the lesser of Subsection I(1) or (2) below:

One slip for every 50 feet of shoreline in the subdivision in the intensely developed and limited development areas and one slip for every 300 feet of shoreline in the subdivision in the resource conservation area; or

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

Table 28I(2) Number of Slips Permitted
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

Public beaches and other public recreation or education areas. Public beaches or other public water-oriented recreation or education areas, including, but not limited to, publicly owned boat launching, and docking facilities and fishing piers may be permitted in the buffer in intensely developed areas. These facilities may be permitted within the buffer in limited development areas and resource conservation areas provided that:

Adequate sanitary facilities exist;

Service facilities are, to the extent possible, located outside the buffer;

Permeable surfaces are used to the extent practicable if no degradation of groundwater would result;

Disturbance to natural vegetation is minimized; and

§ 340-29 Non-water-dependent structures on piers.

Areas for possible recreation, such as nature study, and hunting and trapping, and for education, may be permitted in the buffer within resource conservation areas if service facilities for these uses are located outside of the buffer.

Research areas. Water-dependent research facilities or activities operated by state, federal, or local agencies or educational institutions may be permitted in the buffer, if non-water-dependent structures or facilities associated with these projects are, to the extent possible, located outside of the buffer.

Fisheries activities. Lands and water areas with high aquacultural potential will be identified by the Town in cooperation with the state when applications for new or expanded fisheries or aquaculture facilities in these areas are submitted to the Town. These areas are encouraged for that use and, if so used, should be protected from degradation by other types of land and water use or by adjacent land and water uses. Commercial water-dependent fisheries, including, but not limited to, structures for crab shedding, fish off-loading docks, shellfish culture operations, and shore-based facilities necessary for aquaculture operations and fisheries activities may be permitted in the buffer in intensely developed areas, limited development areas, and resource conservation areas.

Except as provided in Subsections B and C of this section and notwithstanding any other provisions of the law, the Town may not issue a building permit or any other approval to authorize a non-water-dependent project located on state or private wetlands within the critical area.

The Town may issue a building permit or any other approval to authorize a non-water-dependent project located on state or private wetlands within the critical area if the project:

Involves a commercial activity that is permitted as a secondary or accessory use to a permitted primary commercial use;

Is not located on a pier that is attached to residentially, institutionally, or industrially used property;

Is located in an intensely developed area (IDA) and the project is authorized under a program amendment to Town's Critical Area Program approved on or after July 1, 2013, if the approved program amendment includes necessary changes to Town's zoning, subdivision and other ordinances so as to be consistent with, or more restrictive than, the requirements required under this subsection; or

Is approved by the Planning Commission or the Board of Zoning Appeals after the Town program amendment under Subsection B(3) above, if applicable, has been approved;

Allows or enhances public access to state wetlands;

Does not expand beyond the length, width, or channelward encroachment of the pier on which the project is constructed;

Has a height of up to 18 feet unless the project is located at a marina; and

Is up to 1,000 square feet in total area, or:

Is located on a pier that was in existence on or before December 31, 2012;

Satisfies all the requirements under Subsection B(1) through (7) of this section; and

If applicable, has a temporary or permanent roof structure or covering that is up to 1,000 square feet in total area.

The Town may issue a building permit or other approval to authorize a non-water-dependent project for a small-scale renewable energy system on a pier located on state or private wetlands within the critical area if the project:

Involves the installation or placement of a small-scale renewable energy system that is permitted as a secondary or accessory use on a pier that is authorized under Title 16 of the Environment Article of the Annotated Code of Maryland;

Is located in critical area and the project is authorized under a program amendment to the Town's Critical Area Program approved on or after July 1, 2013, if the approved program amendment includes necessary changes to the Town's zoning, subdivision,[1] and other ordinances so as to be consistent with or more restrictive than the requirements provided under this section; or

Editor's Note: See Chapter 290, Subdivision of Land.

Is approved by the Planning Commission or Board of Zoning Appeals after the Town's amendment in accordance with Subsection B(3) above, if applicable, has been approved;

A building permit or other approval issued under the requirements in this Subsection C above may include the installation or placement of:

A solar energy system attached to a pier of the device or equipment associated with that system does not extend more than four feet above or 18 inches below the deck of the pier; or one foot beyond the length or width of the pier;

A solar energy system attached to a piling if there is only one solar panel per boat slip;

A solar energy system attached to a boathouse roof if the device or equipment associated with that system does not extend beyond the length, width, or height of the boathouse roof;

A closed-loop geothermal heat exchanger under a pier if the geothermal heat exchanger or any associated devices or equipment do not: 1) extend beyond the length, width, or channelward encroachment of the pier; 2) deleteriously alter long-shore drift; or 3) cause significant individual or cumulative thermal impacts to aquatic resources; or