[Amended 7-11-2022 by Ord. No. 2022-001]
An applicant for a development activity or a change in land use shall apply all of the required standards for a minimum 100-foot Buffer as described in this article. The provisions of this chapter do not apply to an area of the Buffer that is designated as a Modified Buffer Area (MBA) under § 120-8.6.3. The minimum 100-foot Buffer shall be delineated in the field and shall be shown on all applications as follows:
A. 
The minimum 100-foot Buffer is delineated based on existing field conditions landward from:
(1) 
The mean high water line of tidal water;
(2) 
The edge of each bank of a tributary stream; and
(3) 
The upland boundary of a tidal wetland.
B. 
The Buffer shall be expanded beyond the minimum 100-foot Buffer as described in Subsection A above and the minimum 200-foot Buffer as described in Subsection C below to include the following contiguous land features:
(1) 
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;
(2) 
A nontidal wetland to the upland boundary of the nontidal wetland;
(3) 
The 100-foot Buffer that is associated with a nontidal wetland of special state concern as stated in COMAR 26.23.06.01;
(4) 
For an area of hydric soils or highly erodible soils, the lesser of:
(a) 
The landward edge of the hydric or highly erodible soils; or
(b) 
Three hundred feet where the expansion area includes the minimum 100-foot Buffer.
C. 
Applications for a subdivision or for a development activity on land located within the RCA requiring site plan approval after July 1, 2008 shall include:
(1) 
An expanded Buffer in accordance with Subsection B above; or
(2) 
A Buffer of at least 200 feet from a tidal waterway or tidal wetlands and a Buffer of at least 100 feet from a tributary stream, whichever is greater.
D. 
The provisions of Subsection C above do not apply if:
(1) 
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.
(2) 
The application involves the use of growth allocation.
A. 
Buffer disturbance. If approved by the Town, disturbance to the Buffer is permitted for the following activities, provided mitigation is performed in accordance with an approved Buffer management plan as required per Subsection E of this section:
(1) 
A new development or redevelopment activity associated with a water-dependent facility;
(2) 
A shore erosion control activity constructed in accordance with COMAR 26.24.02, COMAR 27.01.04, and this Part 8;
(3) 
A development or redevelopment activity approved in accordance with the variance provisions of this Part 8;
(4) 
A new development or redevelopment activity on a lot or parcel that was created before January 1, 2010, where:
(a) 
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.
(b) 
The development or redevelopment is located in the expanded portion of the Buffer and not within the 100-foot Buffer.
(c) 
Mitigation occurs at a 2:1 ratio based on the lot coverage of the proposed development activity that is in the expanded Buffer.
(d) 
A septic system on a lot created before the local program's adoption date, where mitigation is provided at a 1:1 ratio for area of canopy cleared of any forest or developed woodland.
(e) 
Riparian access for water access, where mitigation is required at a rate of 2:1.
B. 
Buffer establishment in vegetation. An applicant for a development activity, redevelopment activity or a change in land use that occurs outside the Buffer but is located on a riparian lot or parcel that includes the minimum 100-foot Buffer shall establish the Buffer in vegetation if the Buffer is not fully forested or fully established in woody or wetland vegetation. A Buffer management plan in accordance with the standards of Subsection E below is required.
(1) 
The requirements of this regulation are applicable to:
(a) 
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
(b) 
The approval of a subdivision that includes a Buffer to tidal waters, a tidal wetland, or a tributary stream.
(2) 
If an applicant for a subdivision of a lot uses or leases the lot for an agricultural purpose, the applicant:
(a) 
In accordance with local land recordation requirements, shall record an approved Buffer management plan under Article 8.6 of this Part 8; and
(b) 
If authorized by the local jurisdiction, may delay implementation of the Buffer management plan until the use of the lot is converted to a nonagricultural purpose.
(3) 
The requirements of this regulation are not applicable to an in-kind replacement of a structure.
(4) 
A local jurisdiction shall require an applicant to establish the Buffer in vegetation in accordance with the table below and Article 8.5 of this Part 8 and to provide a Buffer management plan under Article 8.6 of this Part 8 when an applicant applies for:
(a) 
Approval of a subdivision;
(b) 
Conversion from one land use to another land use on a lot or a parcel; or
(c) 
Development on a lot or a parcel created before January l, 2010.
(5) 
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 in the following table:
Development Category
Lot Created Before August 8, 1988
Lot Created After August 8, 1988
Development on a vacant lot
Establish the Buffer based on total square footage of lot coverage outside the Buffer
Fully establish the Buffer
Subdivision
Fully establish the Buffer
New lot with an existing dwelling unit
Establish the Buffer based on total square footage of lot coverage outside the Buffer
Conversion of a land use on a parcel or lot to another land use
Fully establish the Buffer
Addition, accessory structure, or redevelopment
Establish the Buffer based on net square footage increase in lot coverage outside the Buffer
Substantial alteration
Establish the Buffer based on total square footage of lot coverage outside the Buffer
(6) 
A local jurisdiction may authorize an applicant to deduct from the total establishment requirement an area of lot coverage removed from the Buffer if:
(a) 
The lot coverage existed before the date of local program adoption or was allowed by local procedures; and
(b) 
The total area is stabilized.
C. 
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 section.
(1) 
Authorized development activities may include a variance, subdivision, site plan, shore erosion control permit, building permit, grading permit, and special exception.
(2) 
All authorized development activities shall be mitigated according to COMAR 27.01.09.01-2H.
(3) 
All unauthorized development activities in the Buffer shall be mitigated at a ratio of 4:1 for the area of disturbance in the Buffer.
(4) 
Planting for mitigation shall be planted on-site within the Buffer. If mitigation planting cannot be located within the Buffer, the Town may permit planting in the following order of priority:
(a) 
On-site and adjacent to the Buffer; and
(b) 
On-site elsewhere in the Critical Area.
D. 
Buffer planting standards.
(1) 
An applicant that is required to plant the Buffer for Buffer establishment or Buffer mitigation shall apply the planting standards set forth in COMAR 27.01.09.01-2 and 27.01.09.01-4.
(2) 
A variance to the planting and mitigation standards of this article is not permitted.
E. 
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 as provided in COMAR 27.01.09.01-3 with the application for the specific activity. The provisions of this subsection do not apply to maintaining an existing grass lawn or an existing garden in the Buffer.
[Amended 5-22-2023 by Ord. No. 2023-003]
(1) 
A Buffer management plan that includes planting for establishment shall be submitted with all other application materials, clearly specify the area to be planted and state if the applicant is:
(a) 
Fully establishing the Buffer;
(b) 
Partially establishing an area of the Buffer equal to the net increase in lot coverage; or
(c) 
Partially establishing an area of the Buffer equal to the total lot coverage.
(2) 
Any permit for development activity or tree and/or shrub clearing that requires Buffer establishment or Buffer mitigation will not be issued until the Town approves a Buffer management plan.
(3) 
An applicant may not obtain final approval of a subdivision application until the Buffer management plan has been reviewed and approved.
(4) 
The Town will not approve a Buffer management plan unless:
(a) 
The plan clearly indicates that all planting standards under § 120-8.6.2D will be met; and
(b) 
Appropriate measures are in place for the long-term protection and maintenance of all Buffer areas.
(5) 
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:
(a) 
Completes implementation of a Buffer management plan; or
(b) 
Provides financial assurance to cover the costs for:
[1] 
Materials and installation; and
[2] 
If the mitigation or establishment requirement is at least 5,000 square feet, long-term survivability requirements as set forth in COMAR 27.01.09.01-2.
(6) 
Concurrent with recordation of a subdivision plat, an applicant shall record a protective easement for the Buffer.
(7) 
If an applicant fails to implement a Buffer management plan, that failure shall constitute a violation of this article.
(a) 
A permit for development activity will not be issued for a property that has the violation.
(8) 
An applicant shall post the property proposed for subdivision with durable signs prior to final recordation in accordance with COMAR 27.01.09.01-2.
(9) 
Buffer management plans that include natural regeneration shall follow the provisions of COMAR 27.01.09.01-4.
F. 
Fees in lieu of Buffer mitigation. A fee in lieu of mitigation will be collected if the planting requirements of the Buffer management plan cannot be fully met on-site in accordance with the following standards:
(1) 
Fee-in-lieu monies shall be collected and held in a special fund, which may not revert to Chesapeake City's general fund;
(2) 
Fee-in-lieu shall be assessed at $1.50 per square foot of required Buffer mitigation;
(3) 
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
(4) 
Fee-in-lieu monies shall be used for the following projects:
(a) 
To establish the Buffer on sites where planting is not a condition of development or redevelopment.
(b) 
For water quality and habitat enhancement projects as approved by the Critical Area Commission or by agreement between the Town and the Critical Area Commission.
G. 
Shore erosion control projects. Shore erosion control measures are permitted activities within the Buffer in accordance with the following requirements:
(1) 
An applicant for a shore erosion control project that affects the Buffer in any way, including but not limited to access, vegetation removal and pruning, or backfilling, shall:
(a) 
Submit a Buffer management plan in accordance with the requirements of this section; and
(b) 
Comply fully with all of the policies and criteria for a shore erosion control project stated in COMAR 27.01.04 and COMAR 26.24.04.01.
A. 
Applicability. The following provisions apply to areas designated and mapped by Chesapeake City as Modified Buffer Areas (MBA) and shown on maps available to the public held by Chesapeake City. All MBA maps and provisions must be approved by the Critical Area Commission.
B. 
Development and redevelopment standards. New development or redevelopment activities, including structures, roads, parking areas and other impervious surfaces or septic systems, will not be permitted in the Buffer in a designated MBA unless the applicant can demonstrate that there is no feasible alternative and the Planning Commission finds that efforts have been made to minimize Buffer impacts and the development complies with the following standards:
(1) 
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.
(2) 
Variances to other local setback requirements have been considered before additional intrusion into the Buffer.
(3) 
Commercial, industrial, institutional, recreational and multifamily residential development and redevelopment shall meet the following standards:
(a) 
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.
(b) 
Redevelopment, including accessory structures, shall minimize the extent of intrusion into the Buffer. Redevelopment shall not be located closer to the water (or edge of tidal wetlands) than the minimum setback for the zoning district or 25 feet, whichever is greater. 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.
(4) 
Single-family residential development and redevelopment shall meet the following standards:
(a) 
New development or redevelopment shall minimize the shoreward extent of intrusion into the Buffer. New development and redevelopment shall not be located closer to the water (or the edge of tidal wetlands) than principal structures on adjacent properties or the minimum setback for the zoning district, whichever is greater. In no case shall new development or redevelopment be located less than 50 feet from the water (or the edge of tidal wetlands).
(b) 
Existing principal or accessory structures may be replaced in the same footprint.
(c) 
New accessory structures may be located closer to the water than the setback if the Planning Commission has determined there are no other locations for the structures. The area of new accessory structures shall not exceed 500 square feet within 50 feet of the water and 1,000 square feet total in the Buffer.
(5) 
Variances to other local setback requirements shall be considered before additional intrusion into the Buffer is permitted.
(6) 
Development and redevelopment may not impact any Habitat Protection Area (HPA) other than the Buffer, including nontidal wetlands, other state or federal permits notwithstanding.
(7) 
Modified Buffer Area (MBA) 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.
(8) 
No natural vegetation may be removed in the Buffer except that required by the proposed construction.
(9) 
Mitigation for development or redevelopment in the MBA approved under the provisions of this subsection shall be implemented as follows:
(a) 
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.
(b) 
Applicants who cannot fully comply with the planting requirement in Subsection B(9)(a) above may use offset by removing an equivalent area of existing lot coverage in the Buffer.
(c) 
Applicants who cannot comply with either the planting or offset requirements in Subsection B(9)(a) or (b) above shall pay into a fee-in-lieu program as follows:
[1] 
Applicants shall submit to the Planning Commission two cost estimates from qualified landscape businesses for planting the equivalent of twice the extent of the development within the 100-foot Buffer. The estimate shall include the cost of stock, planting, staking, mulching and a one year survival guarantee.
[2] 
The Planning Commission shall determine the amount of the fee-in-lieu based on the average of the two estimates.
[3] 
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 City's Critical Area Program. 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 in the jurisdiction's quarterly reports.
[4] 
Any required mitigation or offset areas shall be protected from future development through an easement, development agreement, plat notes or other instrument approved by the Town and recorded among the land records of the county.