Town of Denton, MD Part A CA - Critical Area Overlay District.

§ 128-18 Regulation and applicability; general requirements; accommodations.

A. The Town Critical Area Program - The Town of Denton Critical Area Program consists of the Chapter 128 Denton Zoning Ordinance and the Official Critical Area map(s).[1] Related provisions may be found in Chapter 73, Land Subdivision.

[1] Editor's Note: The Official Critical Area Map(s) are on file in the Town offices.

B. Regulated activities and applicability. Any applicant for a permit or license to pursue activities within the Critical Area, including, but not limited to, development or redevelopment, grading, sediment and erosion control, timber harvesting, shoreline erosion control, installation of a septic system and drain field, operation of a waste collection or disposal facility, operation of a commercial or private marina or other water-related commercial or industrial operation (whether public or private), mining (whether surface or subsurface) or quarrying, farming or other agriculture-related activities, shall have such permits or licenses issued by the duly appointed local approving authority after review to determine compliance with Chapter 128 and any related development provisions found in Chapter 73 Land Subdivision.

C. Critical Area Overlay District Map.

(1) The Official Critical Area Overlay District Map is maintained in force as part of the Official Zoning Map for Denton. The Official Critical Area Map delineates the extent of the Critical Area Overlay District that shall include:

(a) All waters of and lands under the Chesapeake Bay and its tributaries to the head of tide, and all state and private wetlands designated under Title 16 of the Environment Article of the Annotated Code of Maryland; and

(b) All land and water areas within 1,000 feet beyond the landward boundaries of those resources indicated in Subsection C(1)(a) of this section.

(2) Critical Area Overlay Map. Within the designated Critical Area Overlay District, all land shall be assigned one of the following land management and development area classifications:

(a) Intensely Developed Area (IDA).

(b) Limited Development Area (LDA).

(c) Resource Conservation Area (RCA).

(3) The Critical Area Overlay District Map may be amended by the Town Council in compliance with amendment provisions in this article, the Maryland Critical Area Law, and COMAR Title 27, as amended from time to time.

D. Notification of project approval. The Town shall send copies of applications for all developments, subdivisions, and site plans wholly or partially within the Critical Area as specified in COMAR 27.03.01.04 to the Critical Area Commission for review and comment.

(1) The application shall be accompanied by a completed "Project Notification Application" form downloaded from the Critical Area Commission's website.

(2) The Town may not process an application that has been sent to the Critical Area Commission for notification until it has received notice of receipt by the Critical Area Commission or prior to the close of the fifth business day, whichever comes first. The Town may contact the Critical Area Commission to verify receipt.

(3) Any action by the Town in violation of these procedures shall be void.

Summary of Notification Requirements Critical Area Commission (COMAR 27.03)
		Requires Notification to the Critical Area Commission Yes/No
Type of Application		IDA	LDA	RCA
1.	Disturbance to a Habitat Protection Area	Y	Y	Y
2.	Physical disturbance to the Buffer (see Note 1)	Y	Y	Y
3.	Variance from Critical Area provisions	Y	Y	Y
4.	Development resulting in less than 5,000 square feet of disturbance	N	N	N
5.	Development resulting in between 5,000 and 15,000 square feet of disturbance	N	N	Y
6.	Development resulting in greater than 15,000 square feet of disturbance	Y	Y	Y
7.	Subdivision of 3 lots or fewer	N	N	Y
8.	Subdivision of 4 to 10 lots	N	Y	Y
9.	Subdivision of greater than 10 lots	Y	Y	Y
10.	Subdivision affecting Growth Allocation	N/A	Y	Y
11.	Intrafamily transfer	N/A	N/A	Y
12.	Rezoning that would partially within the Critical Area occur wholly or	Y	Y	Y
13.	Special exception or conditional use for industrial commercial, institutional, non-residential, or multi-family	N	Y	Y
14.	Substantial alteration to applications previously submitted to the Critical Area Commission	Y	Y	Y

Note 1: Shoreline stabilization measures and private piers that do not involve disturbance to the Buffer and are not permitted by MDE do not require Critical Area Commission notification.

E. 

General Requirements in all Critical Area Overlay Zones.

(1) 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.

(2) Development and redevelopment shall be subject to the Habitat Protection Area (HPA) requirements prescribed in Chapter 128.

(3) Development and redevelopment shall be subject to the water-dependent facilities requirements of Chapter 128.

(4) Utility transmission facilities:

(a) 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:

(i) The facilities are located in IDAs; and

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

(b) These provisions do not include power plants.

(5) Roads, bridges, and utilities are prohibited in a Habitat Protection Area (HPA) unless no feasible alternative exists. If a road, bridge, or utility is authorized, the design, construction, and maintenance shall:

(a) Provide maximum erosion protection;

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

(c) Maintain hydrologic processes and water quality.

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

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

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

(c) Provide a natural substrate for stream beds; and

(d) Minimize adverse water quality and quantity impacts of stormwater.

(7) Reasonable accommodations for the needs of disabled citizens.

(a) An applicant seeking relief from the Critical Area standards contained in this Chapter to accommodate the reasonable needs of disabled citizens shall have the burden of demonstrating by a preponderance of the evidence the following:

(i) The alterations will benefit persons with a disability within the meaning of the Americans with Disabilities Act;[2]

[2] Editor's Note: See 42 U.S.C.A. § 12101 et seq.

(ii) Literal enforcement of the provisions of this Chapter would result in discrimination by virtue of such disability or deprive a disabled resident or user of the reasonable use and enjoyment of the property;

(iii) A reasonable accommodation would reduce or eliminate the discriminatory effect of the provisions of this Chapter or restore the disabled resident's or user's reasonable use or enjoyment of the property;

(iv) The accommodation requested will not substantially impair the purpose, intent, or effect of the provisions of this Chapter as applied to the property; and

(v) The accommodation would be environmentally neutral with no greater negative impact on the environment than the literal enforcement of the statute, ordinance, regulation, or other requirements or would allow only the minimum environmental changes necessary to address the needs resulting from the particular disability of the applicant/appellant.

(b) The Planning Commission shall determine the nature and scope of any accommodation under this Chapter. It may award different or other relief than requested after giving due regard to the purpose, intent, or effect of this Chapter's applicable provisions. The Planning Commission may also consider the size, location, and type of accommodation proposed and whether alternatives exist that accommodate the need with less adverse effect.

(c) The Planning Commission may require, as a condition of approval, that upon the termination of the need for accommodation, that the property be restored to comply with all applicable provisions of this Chapter. Appropriate bonds may be collected or liens placed to ensure the Town's ability to restore the property should the applicant fail to do so.

(8) Where applicable, development and redevelopment shall include mitigation and adaptation measures that address sea level rise, storm surge, precipitation-induced flooding, other extreme weather events, migrating wetlands, and coastal forests, including measures to enhance the climate resiliency of the critical area by identifying, restoring, and creating and conserving existing and projected future natural and nature-based features.

F. State and local agency projects.

(1) For all development in the Critical Area resulting from state and local agency projects, the Town of Denton shall comply with the provisions of COMAR 27.02, as amended from time to time. If applicable, consistency reports shall be submitted to the Chesapeake Bay Critical Area Commission.

(2) The Town of Denton will ensure the equitable distribution of the benefits and burdens of development, restoration, and mitigation within the critical area and equity in the public participation process for identified underserved and overburdened communities within the critical area for all Town projects.

§ 128-19 Intensely Developed Areas (IDA).

A. The following uses may only be permitted in the IDA 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:

(1) Nonmaritime heavy industry;

(2) 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.

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

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

D. New, expanded, or redeveloped industrial or port-related facilities and the replacement of these facilities may be permitted only in those portions of IDAs that have been designated as Modified Buffer Areas (MBAs).

§ 128-20 Limited Development Areas (LDA).

A. Development standards. For all development activities in the Limited Development Areas, the applicant shall identify any environmental or natural feature described below and shall meet all of the following standards:

(1) If the Department of Natural Resources identifies a wildlife corridor system on or near the site, the following practices are required:

(a) 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;

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

(c) A public or private group shall preserve the wildlife corridor.

(2) Development on slopes of fifteen percent (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.

(3) Except as otherwise provided in this subsection, lot coverage is limited to:

(a) When a site is mapped entirely as LDA, fifteen percent (15%) of the total site;

(b) When a portion of a lot or parcel is mapped as an LDA, fifteen percent (15%) of that portion of the lot or parcel and

(c) In the case of a growth allocation award:

(i) Fifteen percent (15%) of the growth allocation development envelope or

(ii) Fifteen percent (15%) of the acreage proposed for growth allocation.

(d) 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 twenty-five percent (25%) of the parcel or lot.

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

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

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

(i) 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.

(ii) Lot coverage associated with new development activities on the property has been minimized;

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

(iv) 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 A(3)(e) or 5,445 square feet, whichever is greater;

(v) The following table summarizes the limits set forth in Subsection A(3)(g)(i) through (iv) above:

Table A(3)(g)(v) Lot Coverage Limits
Lot/Parcel Size (square feet)	Lot Coverage Limit
0 to 8,000	25% of the 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 to 43,560	15% of a parcel

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

(i) 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

(ii) 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.

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

(iv) For development that uses pervious materials that the Critical Area Commission has approved, the limits established in Subsection A(3)(g)(iii), and (iv) of this subsection may be exceeded by up to 500 square feet.

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

(a) The total acreage in forest and developed woodlands within the Town in the Critical Area shall be maintained or preferably increased;

(b) 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;

(c) If an applicant is authorized to clear more than twenty percent (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 twenty percent (20%) of the forest or developed woodlands cleared.

(d) An applicant may not clear more than thirty percent (30%) of a forest or developed woodlands on a lot or parcel unless the Board of Appeals grants a variance and the applicant replaces forest or developed woodlands at a rate of three (3) times the areal extent of the forest or developed woodlands cleared.

(e) 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 the Town.

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

(a) The applicant shall ensure that any plantings that die within twenty-four (24) months of installation shall be replaced. A performance bond in an amount determined by the Town shall be posted to assure satisfactory replacement and plant survival;

(b) A permit is issued by the Town before forest or developed woodlands are cleared. Clearing forests and developed woodlands before obtaining a Town permit is a violation; any forests and developed woodlands cleared before obtaining a Town permit shall be replanted at three (3) times the areal extent of the cleared forest or developed woodlands;

(c) Clearing of forest or developed woodlands that exceed the maximum area allowed in Subsection A(4) above shall be replanted at three (3) times the areal extent of the cleared forest or developed woodlands;

(d) 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.

(6) 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 fifteen percent (15%).

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

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

(7) All forests, including afforested areas, shall be maintained through conservation easements, restricted covenants, or other protective instruments.

(8) 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.

B. Process. Prior to commencing a development activity on a site in a Limited Development Area, the applicant shall follow the following process:

(1) The applicant shall conduct a site-specific field investigation to identify forest areas, specimen trees, streams, wetlands, sensitive environmental areas, and rare, threatened, or endangered species habitats that may be present. Forested areas and specimen trees shall be identified and shown on all site development and subdivision plans in order to ensure that appropriate protection measures are implemented.

(2) The applicant shall prepare a plan clearly showing the limits of disturbance for the project and forested areas to be conserved. The applicant shall show appropriate temporary tree protection devices, including fencing, signs, berms, etc., necessary to protect existing trees and forests.

(3) For projects that involve clearing or require afforestation, the location of afforestation and reforestation areas shall be clearly shown on a planting plan that will include all specifications for implementing the planting and include a construction sequence and proposed maintenance and monitoring agreement.

(4) The Town shall monitor afforestation and reforestation areas for two (2) years following completion of the project, and the developer will be responsible for replacing any trees or plantings that do not survive and are necessary to maintain compliance with the site plan and/or planting plan.

§ 128-21 Resource Conservation Areas (RCA).

A. Development standards. For all development activities and resource utilization in the Resource Conservation Areas, the applicant shall meet all of the following standards:

(1) Land use management practices shall be consistent with the policies and criteria for the Habitat Protection Area provisions of this article.

(2) Land within the Resource Conservation Area may be developed for residential uses at a density not to exceed one (1) dwelling unit per twenty (20) acres. The Town may not grant a variance to this density restriction per COMAR 27.01.02.05.C(4).

(3) Development activity within the RCAs shall be consistent with the requirements and standards for LDAs as specified in this Chapter. For the purposes of calculating limitations on lot coverage, it is as follows:

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

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

(4) 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 (1) dwelling unit per twenty (20) acres.

(5) New and/or expanded institutional, industrial, and commercial uses are prohibited in the RCA, except as expressly authorized under Table A(1) in §§ 128-22 and 128-23.

B. Process. Prior to commencing a development activity on a site in a Resource Conservation Area, the applicant shall follow the following process:

(1) The applicant shall conduct a site-specific field investigation to identify forest areas, specimen trees, streams, wetlands, sensitive environmental areas, and rare, threatened, or endangered species habitats that may be present. Forested areas and specimen trees shall be identified and shown on all site development and subdivision plans in order to ensure that appropriate protection measures are implemented.

(2) The applicant shall prepare a plan clearly showing the limits of disturbance for the project and forested areas to be conserved. The applicant shall show appropriate temporary tree protection devices, including fencing, signs, berms, etc., necessary to protect existing trees and forests.

(3) For projects that involve clearing or require afforestation, the location of afforestation and reforestation areas shall be clearly shown on a planting plan that will include all specifications for implementing the planting and include a construction sequence and proposed maintenance and monitoring agreement.

(4) The Town shall monitor afforestation and reforestation areas for two (2) years following completion of the project, and the developer shall be responsible for replacing any trees or plantings that do not survive and are necessary to maintain compliance with the site plan and/or planting plan.

C. Density. Land within the RCA may be developed for residential uses at a density not to exceed one (1) dwelling unit per twenty (20) acres. The Town may not grant a variance to this density restriction per COMAR 27.01.02.05.C(4). In calculating the 1-in-20-acre density of development that is permitted on a parcel located within the RCA, the Town:

(1) Shall count each dwelling unit; and

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

(a) Only when using transfer of development rights; and

(b) The area of private wetlands shall be field delineated when certifying development rights for transfer.

§ 128-22 Land use.

A. Permitted uses.

(1) Permitted uses in the Critical Area shall be limited to those uses allowed by the underlying zoning classification as modified by Table A(1) and the supplemental use standards in § 128-23, provided such uses meet all standards established by the Critical Area Overlay Zone.

Table A(1) Permitted Uses
LEGEND: P = Permitted if allowed in the underlying zoning district PC = Permitted with conditions if allowed in the underlying zoning district NP = Not Permitted
		Land Use Management Designation
Item	Use Description	IDA	LDA	RCA
1.00	RESIDENTIAL
1.10	Accessory dwelling unit	P	P	PC
2.00	INSTITUTIONAL
2.10	Existing institutional uses	P	P	PC
2.20	New institutional uses	P	P	NP
2.30	Cemetery	P	P	PC
2.40	Group home	P	P	PC
2.50	Daycare	P	P	PC
3.00	COMMERCIAL
3.10	Existing commercial uses	P	P	PC
3.20	New commercial uses	P	P	NP
3.30	Home occupation	P	P	PC
3.40	Bed-and-breakfast facility	P	P	PC
4.00	MARITIME/WATER DEPENDENT
4.10	Expansion of existing commercial marinas	P	P	PC
4.20	New marina, commercial	P	P	NP
4.30	Community piers and noncommercial boat docking and storage	P	P	PC
4.40	Public beaches and public water-oriented recreational and educational areas	P	P	PC
4.50	Research areas	P	P	PC
4.60	Fisheries activities	P	P	P
4.70	Private pier	P	P	P
5.00	RECREATION
5.10	Golf course	P	P	PC
6.00	INDUSTRIAL
6.10	Existing industrial uses	P	P	PC
6.20	New industrial uses	PC	PC	NP
6.30	Non-maritime heavy industry	PC	NP	NP
7.00	TRANSPORTATION/PARKING/COMMUNICATIONS/UTILITIES
7.10	Utility transmission facilities	PC	NP	NP
8.00	PUBLIC/QUASI-PUBLIC
8.10	Sanitary landfill; rubble fill	PC	NP	NP
8.20	Solid or hazardous waste collection or disposal facilities	PC	NP	NP
8.30	Sludge facilities	PC	NP	NP
9.00	OTHER
9.10	Non-Water Dependent Structures on Piers	PC	NP	NP

§ 128-23 Supplemental use standards.

The following supplemental use standards apply to the permitted uses listed in Table A(1) above and shall apply when the permitted use is allowed in the underlying zoning district.

A. Accessory dwelling unit.

(1) Within a Resource Conservation Area, the Planning Commission may consider one additional dwelling unit per lot or parcel as part of a primary dwelling unit for the density calculation under this subsection if the additional dwelling unit:

(a) Does not require a variance to any critical area development standards; and

(i) 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 total enclosed area; or

(ii) is located within the primary dwelling unit and by its construction, does not increase the amount of lot coverage already attributed to the primary dwelling unit by greater than 900 square feet.

(2) The provisions of this section may not be construed to consider an additional dwelling unit as part of a primary dwelling unit for the density calculation under this subsection.

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

(4) An additional dwelling unit that exceeds 900 square feet shall count towards the density calculation.

B. Existing institutional uses.

(1) Existing institutional facilities, including those that directly support agriculture, forestry, aquaculture, or residential development, shall be allowed in Resource Conservation Areas.

(2) Expansion of existing institutional facilities and uses in the Resource Conservation Area shall be subject to the nonconforming use provisions of this article and the grandfathering provisions in § 128-25 and may require growth allocation.

C. New institutional uses.

(1) New institutional facilities and uses, except those specifically listed in Table A(1), shall not be permitted in Resource Conservation Areas.

(2) Certain institutional uses may be permitted in a Resource Conservation Area if allowed in the underlying zoning district and if the use complies with all requirements for such uses as provided in the Town Zoning Ordinance. These institutional uses are limited to:

(a) A cemetery that is an accessory use to an existing church, provided man-made lot coverage is limited to fifteen percent (15%) of the site or twenty thousand (20,000) square feet, whichever is less;

(b) A day-care facility in a dwelling where the operators live on the premises, and there are no more than eight (8) children; and

(c) A group home or assisted living facility with no more than eight (8) residents; and

(d) Other similar uses determined by the municipality and approved by the Critical Area Commission to be similar to those listed above.

D. Existing industrial and commercial uses.

(1) Existing industrial and commercial facilities and uses, including those that directly support agriculture, forestry, aquaculture, or residential development, shall be allowed in Resource Conservation Areas.

(2) Expansion of existing industrial and commercial facilities and uses in the Resource Conservation Area shall be subject to the nonconforming use provisions of this article and the grandfathering provisions in § 128-25 and may require growth allocation.

E. New commercial uses.

(1) New commercial uses, except those specifically listed in Table A(1), shall not be permitted in Resource Conservation Areas.

(2) Certain commercial uses may be permitted in the Resource Conservation Area if allowed in the underlying zoning district and if the use complies with all requirements for such uses as provided in the Town Zoning Ordinance. These commercial uses are limited to:

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

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

(c) Other uses determined by the municipality and approved by the Critical Area Commission to be similar to those listed above.

F. Expansion of existing commercial marinas.

(1) Expansion of existing commercial marinas may be permitted within Resource Conservation Areas, provided that;

(a) Water quality impacts are quantified, and appropriate best management practices that address impacts are provided;

(i) It will result in an overall net improvement in water quality at or leaving the site of the marina;

(ii) The marina meets the sanitary requirements of the Department of the Environment and

(iii) Expansion is permitted under the nonconforming use provisions of this article.

(2) Expansion of existing commercial marinas may be permitted in the buffer in the Intensely Developed Areas and Limited Development Areas provided that the applicant demonstrates that:

(a) The project meets a recognized private right or public need;

(b) Adverse effects on water quality, fish, plant, and wildlife habitat are minimized;

(c) Insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the buffer and

(d) Expansion is permitted under the nonconforming use provisions of this article.

G. 

New marina, commercial.

(1) New commercial marinas shall not be permitted in Resource Conservation Areas.

(2) New commercial marinas may be permitted in Limited Development Areas and Intensely Developed Areas if allowed in the underlying zoning, provided:

(a) New marinas shall establish a means of minimizing the discharge of bottom wash waters into tidal waters.

(b) New marinas meet the sanitary requirements of the Maryland Department of the Environment.

(c) New marinas may be permitted in the buffer in the Intensely Developed Areas, and Limited Development Areas provided that it can be shown that:

(i) The project meets a recognized private right or public need;

(ii) Adverse effects on water quality, fish, plant, and wildlife habitat are minimized; and

(iii) Insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the buffer.

H. Community piers and noncommercial boat docking and storage.

(1) 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 article, provided that:

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

(b) The facilities are community-owned, established, and operated to benefit the residents of a platted and recorded riparian division.

(c) The facilities are associated with a residential development approved by the Town for the Critical Area and consistent with all state requirements and the requirements of this article applicable to the Critical Area;

(d) Disturbance to the buffer is the minimum necessary to provide a single point of access to the facilities and

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

(2) Number of slips or piers permitted. The number of slips or piers permitted at the facility shall be the lesser of Subsection H(2)(a) or (b) below:

(a) One slip for each fifty (50) feet of shoreline in the subdivision in the Intensely Developed and Limited Development Areas and one slip for each three hundred (300) feet of shoreline in the subdivision in the Resource Conservation Area; or

(b) A density of slips or piers to platted lots or dwellings within the subdivision in the Critical Area according to the following schedule:

Table H(2)(b) 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

I. Public beaches and public water-oriented recreational and educational areas.

(1) 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.

(2) These facilities may be permitted within the buffer in Limited Development Areas and Resource Conservation Areas, provided that:

(a) Adequate sanitary facilities exist;

(b) Service facilities are, to the extent possible, located outside of the buffer;

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

(d) Disturbance to natural vegetation is minimized; and

(e) Areas for possible recreation, such as nature study, hunting and trapping, and education, may be permitted in the buffer within Limited Development Areas and Resource Conservation Areas if service facilities for these uses are located outside of the buffer.

(3) When assessing areas for these facilities, consideration will be given to underserved communities.

J. Research areas.

(1) Water-dependent research facilities or activities operated by State, federal, or local agencies or educational institutions may be permitted in the Buffer if nonwater-dependent structures or facilities associated with these projects are located outside of the Buffer.

K. Fisheries activities.

(1) Commercial water-dependent fisheries and aquaculture including, but not limited to, structures for crab shedding, fish off-loading docks, shellfish culture operations, shore-based facilities necessary for aquaculture operations and fisheries activities, and a facility or activity that supports water quality restoration may be permitted in the Buffer in Intensely Developed Areas, Limited Development Areas, and Resources Conservation Areas.

L. Golf course.

(1) A golf course, excluding main buildings and/or structures such as the clubhouse, pro shop, parking lot, etc., may be permitted in Resource Conservation Areas, provided that:

(a) Such use is permitted in the underlying zoning; and

(b) Development is in accordance with the official guidance adopted by the Critical Area Commission on August 3, 2005.

M. Existing industrial uses.

(1) Existing industrial facilities and uses, including those that directly support agriculture, forestry, or aquaculture, may be permitted in Resource Conservation Areas.

(2) Expansion of existing industrial facilities and uses in the Resource Conservation Areas shall be subject to the nonconforming use provisions of this article and the grandfathering provisions in § 128-25 and may require growth allocation.

N. New industrial uses.

(1) New industrial uses shall not be permitted in Resource Conservation Areas.

(2) New, expanded, or redeveloped industrial facilities may only be permitted in Limited Development Areas and Intensely Developed Areas if permitted uses in the underlying zoning district, provided such facilities meet all requirements for development in the Limited Development Area and Intensely Developed Areas.

(3) New, expanded, or redeveloped water-dependent 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.

O. Nonmaritime heavy industry.

(1) Nonmaritime heavy industry may be permitted if:

(a) The site is located in an Intensely Developed Area; and

(b) 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.

P. Utility transmission facilities.

(1) 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 that:

(a) The facilities are located in Intensely Developed Areas; and

(b) 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.

(2) These provisions do not include power plants.

Q. Sanitary landfill; rubble fill.

(1) Sanitary landfills or rubble fills shall 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 in order to correct an existing water quality or wastewater management problem.

(2) Existing, permitted facilities shall be subject to the standards and requirements of the Department of the Environment.

R. Solid or hazardous waste collection or disposal facilities.

(1) Solid or hazardous waste collection or disposal facilities, including transfer stations, shall 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 in order to correct an existing water quality or wastewater management problem.

(2) Existing, permitted facilities shall be subject to the standards and requirements of the Department of the Environment.

S. Sludge facilities.

(1) Permanent sludge handling, storage, and disposal facilities, other than those associated with wastewater treatment facilities, shall not be permitted in the Critical Area unless:

(a) The facility or activity is located in an Intensely Developed Area; and

(b) The applicant 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.

(2) 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 one-hundred-foot buffer.

T. Nonwater-Dependent Structures on Piers.

(1) Except as provided in Subsection T(2) and (3) 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 nonwater dependent project located on State or private wetlands within the Critical Area.

(2) The Town may issue a building permit or any other approval to authorize a nonwater dependent project located on State or private wetlands within the Critical Area if the project:

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

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

(c) Is located in an IDA;

(d) Is approved by the Planning Commission;

(e) Allows or enhances public access to State wetlands;

(f) Does not expand beyond the length, width, or channel ward encroachment of the pier on which the project is constructed;

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

(h) Is up to 1,000 square feet in total area; or

(i) Is located on a pier that was in existence on or before December 31, 2012,

(ii) Satisfies all of the requirements under Subsection T(2)(a) through (g) of this section; and

(iii) If applicable, has a temporary or permanent roof structure or covers up to 1,000 square feet in total area.

(3) The Town may issue a building permit or other approval to authorize a nonwater-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:

(a) 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;

(b) Is located in:

(i) The Chesapeake and Atlantic Coastal Bays Critical Area and the project is authorized under a program amendment to the Denton's Critical Area Program approved on or after July 1, 2013, if the approved program amendment includes necessary changes to Denton's zoning, subdivision, and other ordinances so as to be consistent with or more restrictive than the requirements provided under this subsection; or

(ii) An area that has been excluded from Denton's Critical Area Program that has been adopted or approved by the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays;

(c) Is approved by the Planning Commission;

(d) 

A building permit or other approval issued under the requirements in Subsection T(3) above may include the installation or placement of:

(i) A solar energy system attached to a pier of the device or equipment associated with that system does not extend more than:

[1] Four (4) feet above or 18 inches below the deck of the pier; or

[2] One (1) foot beyond the length or width of the pier;

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

(iii) 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;

(iv) 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 channel ward encroachment of the pier;

[2] Deleteriously alter longshore drift or

[3] Cause significant individual or cumulative thermal impacts on aquatic resources or

(v) A wind energy system attached to a pier if there is only one (1) wind energy system per pier for which:

[1] The height from the deck of the pier to the blade extended at its highest point is up to 12 feet;

[2] The rotor diameter of the wind turbine is up to four (4) feet, and

[3] The setbacks of the wind energy system from the nearest property line and from the channelward edge of the pier to which that system is attached are at least 1.5 times the total height of the system from its base to the blade extended at its highest point.

§ 128-24 Growth allocation.

A. Growth allocation acreage.

(1) Growth allocation available to the Town includes:

(a) An area equal to five percent (5%) of the RCA acreage located within the Town and/or;

(b) Growth allocation available to the Town as provided for by Caroline County.

(2) As of the date of adoption of this article, there is no specific acreage of growth allocation allotted to the Town. The county will review potential growth allocation requests from the Town on a case-by-case basis.

(3) The Town shall deduct acreage from its growth allocation reserves in accordance with COMAR 27.01.02.06-4.

B. Growth Allocation Floating Zone District.

(1) Designation of floating zones.

(a) The Growth Allocation District shall be a floating zone.

(b) The Growth Allocation District provides for changing the land management classification of Resource Conservation Areas and Limited Development Areas in the Critical Area Overlay District.

C. Standards. When locating new Intensely Developed Areas (IDA) or Limited Development Areas (LDA), the following requirements shall apply:

(1) A new IDA shall only be located in an LDA or adjacent to an existing IDA.

(2) A new LDA shall only be located adjacent to an existing LDA or an IDA.

(3) New IDA shall be at least twenty (20) acres in size unless:

(a) They are contiguous to an existing IDA or located in an LDA; or

(b) They are a grandfathered commercial or industrial use that existed as of March 1989, and the project is consistent with the Town's Comprehensive Plan. The amount of growth allocation deducted shall be equivalent to the area of the entire parcel or parcels subject to the growth allocation request.

(4) No more than 1/2 of the Town's growth allocation may be located in Resource Conservation Areas (RCA) except as provided in Subsection C(9) below.

(5) A new LDA or IDA shall be located in a manner that minimizes impacts to Habitat Protection Areas as defined herein and in COMAR 27.01.09, as amended from time to time, and in an area and manner that optimizes benefits to water quality.

(6) A new IDA shall only be located where it minimizes impacts on the permitted land uses of the RCA.

(7) A new IDA or an LDA in an RCA shall be located at least three hundred (300) feet beyond the landward edge of tidal wetlands or tidal waters unless the Town proposes and the Commission approves alternative measures for enhancement of water quality and habitat that provide greater benefits to the resources.

(8) New IDA or LDA to be located in RCA shall conform to all criteria of this article for such areas, shall be so designated on the Town Critical Area Maps, and shall constitute an amendment to this article, subject to review and recommendation by the Planning Commission and the approval of the Town Council and the Critical Area Commission, as provided herein.

(9) Locate new IDAs and LDAs outside of areas vulnerable to climate change unless the Town proposes and the Critical Area Commission approves measures that:

(a) Assess climate resiliency and vulnerability, and

(b) Incorporate siting, design, construction, and other natural features to enhance climate resiliency and reduce vulnerability significantly.

(10) The Town Council recognizes that the Town may not be able to utilize growth allocation acreage in the locations outlined in Subsection C(1) and (2) above and/or may not satisfy the 20-acre size threshold outlined in Subsection C(3) above. In addition, the Town Council recognizes that most of its critical area lands for which growth allocation is planned are currently classified as Resource Conservation Areas. Accordingly, if the Town is unable to satisfy any or all of the criteria outlined in Subsection C(1) through (4), the Town may utilize a portion of its growth allocation in a manner that varies from Subsection C(1), (2), (3), and/or (4) above, provided that the area receiving growth allocation meets the following standards:

(a) Any development will be serviced by public water and sewer;

(b) The area is located in a Priority Funding Area;

(c) The development is consistent with the Denton Comprehensive Plan and

(d) The development will have an overall economic benefit to the community or implement a specific goal, objective, or policy of the Denton Comprehensive Plan.

(11) For residential development, the area to be developed shall be limited to no more than the underlying zoning requirements or 85% of the site, whichever is the lesser amount.

(12) In addition to meeting the minimum requirements of the Critical Area regulations, the Planning Commission reserves the right to require additional water quality and/or wildlife habitat improvements in the project design.

(13) For residential development, a community pier shall be provided rather than individual private piers consistent with standards included in § 128-23 and Table H(2)(b).

D. Additional factors. In reviewing map amendments or refinements involving the use of growth allocation, the Town shall consider the following factors:

(1) Consistency with the Town's adopted Comprehensive Plan and whether the growth allocation would implement the goals and objectives of the adopted plan. "Consistency with" means that a standard or factor will further, and not be contrary to, the following items in the Comprehensive Plan:

(a) Policies;

(b) Timing of the implementation of the plan of development and rezoning;

(c) Development patterns;

(d) Land uses; and

(e) Densities or intensities.

(2) For a map amendment or refinement involving a new LDA, whether the development is:

(a) To be served by a public wastewater system or septic system that uses the best available nitrogen removal technology;

(b) A completion of an existing subdivision;

(c) An expansion of an existing business; or

(d) To be clustered.

(3) For a map amendment or refinement involving a new IDA, whether the development is:

(a) To be served by a public wastewater system;

(b) If greater than twenty (20) acres, to be located in a designated Priority Funding Area; and

(c) To have a demonstrable economic benefit.

(4) The use of existing public infrastructure, where practical;

(5) Consistency with state and regional environmental protection policies concerning the protection of threatened and endangered species and species in need of conservation that may be located on or off the site;

(6) Impacts on a Priority Preservation Area;

(7) Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams; and

(8) Environmental impacts associated with the location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development.

E. 

Application.

(1) An application for the GA Floating Zone shall include the following submissions:

(a) The subdivision history of parcels designated as RCA. The date of December 1, 1985, is the date used for the original Critical Area mapping and shall be used as a beginning point of analysis;

(b) Concept Plan, as provided in Subsection E(2) below.

(c) Information required by COMAR 27.01.02.06-1;

(d) Environmental report as per COMAR 27.01.02.06-2; and

(e) The Planning Commission or the Town Council may require other information and documentation.

(f) Ten (10) copies of the application for the GA Floating Zone and all required submissions submitted to the Planning and Codes.

(2) Concept Plans. Unless waived by the Planning Commission at the applicant's request, concept plans accompanying applications for the GA Floating Zone shall include the following information:

(a) Boundary Survey, including identification of adjacent property owners;

(b) Existing conditions, including:

(i) Topographic survey (minimum 1' contour interval);

(ii) Soils;

(iii) Forested areas and tree lines;

(iv) Wetlands, wetland buffers, floodplain, hydric soils, streams, and water features;

(v) Habitat protection areas;

(vi) Steep slopes;

(vii) Easements and deed restrictions;

(viii) Roads, driveways, and rights-of-way;

(ix) Existing buildings;

(x) General location of storm surge boundaries for all categories of storm events; and

(xi) Existing land uses.

(c) Proposed open space, protected areas, and public and private parks;

(d) Pedestrian and vehicular circulation plan showing the dominant street configuration and pedestrian walking and biking alignments;

(e) A detailed plan of at least one (1) phase, showing all applicable features:

(i) Road alignments;

(ii) Lot configuration;

(iii) Commercial area plan, if applicable;

(iv) Public and private open space(s);

(3) Studies and reports by qualified professionals:

(a) Nontidal wetlands delineation;

(b) Habitat protection areas study prepared by qualified professionals; and

(c) A concept plan indicating how stormwater will be managed on the site.

(d) Report describing mitigation and adaptation measures that address sea level rise, storm surge, precipitation—induced flooding, other extreme weather events, migrating wetlands, and coastal forests. Identify measures to enhance climate resiliency, including restoring, creating, and conserving existing and projected future natural and nature-based features.

(e) Assessment of the impacts of mitigation, restoration, conservation, and adaptation to climate change on underserved communities and description of measures to ensure the equitable distribution of the benefits and burdens of development, restoration, and mitigation.

F. Process. Growth allocation floating zone amendments shall be processed as provided in § 128-187 and § 128-195 prior to submission to the Critical Area Commission for review and approval.

§ 128-25 Grandfathering.

A. Continuation of existing uses.

(1) The continuation, but not necessarily the intensification or expansion, of any use in existence on April 3, 1989, may be permitted unless the use has been abandoned for more than one year or is otherwise restricted by existing municipal ordinances.

(2) If any existing use does not conform with the provisions of this article, its intensification or expansion may be permitted only in accordance with the variance procedures in § 128-26.

B. Residential density on grandfathered lots.

(1) 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 article.

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

(b) Land that received a building permit subsequent to December 1, 1985, but prior to March 1989;

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

(d) 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 article or the area of the land has been counted against the growth allocation permitted under this article.

(e) Any land on which development activity has progressed to the point of pouring of foundation footings or the installation of structural members.

C. Consistency. The Town 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 to implement this regulation. Nothing in this section may be interpreted as altering any requirements of this article related to water-dependent facilities or Habitat Protection Areas.

§ 128-26 Variances.

A. Applicability. The Town has established provisions where, owing to special features of a site or other circumstances, implementation of this article or literal enforcement of provisions within this article would result in unwarranted hardship to an applicant, a Critical Area variance may be obtained.

(1) In considering an application for a variance, the Town shall presume that the specific development activity in the Critical Area that is subject to the application and for which a variance is required does not conform with the general purpose and intent of the Natural Resources Article of the Annotated Code of Maryland, § 8-1801, COMAR Title 27, as amended from time to time, and the requirements of this article.

(2) "Unwarranted hardship" means that without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested.

B. Standing. In accordance with Natural Resources Article, § 8-1808(d)(2), Annotated Code of Maryland, if a person meets the threshold standing requirements under federal law, the person shall have standing to participate as a party in a local administrative proceeding.

C. Standards. The provisions for granting such variance shall include evidence submitted by the applicant that the following standards are met:

(1) Special conditions or circumstances exist that are peculiar to the land or structure involved, and that literal enforcement of provisions and requirements of this article would result in unwarranted hardship;

(2) A literal interpretation of the provisions of this article will deprive the applicant of the use of land or a structure permitted to others in accordance with the provisions of this Critical Area Ordinance;

(3) The granting of a variance will not confer upon an applicant any special privilege that this Critical Area Ordinance would deny to other lands or structures within the Critical Area;

(4) The variance request is not based upon conditions or circumstances that are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed, nor does the request arise from any condition relating to land or building use, either permitted or nonconforming on any neighboring property; and

(5) The granting of a variance shall not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the Critical Area, and the granting of the variance will be in harmony with the general spirit and intent of the State Critical Area Law and this article.

D. Process. Applications for a variance will be made, in writing, to the Board of Appeals, with a copy provided to the Critical Area Commission. The Board of Appeals shall follow its established procedures for advertising and notification of affected landowners.

(1) After hearing an application for a Critical Area Ordinance variance, the Board of Appeals shall make written findings reflecting an analysis of each standard.

(2) If the variance request is based on conditions or circumstances that are the result of actions by the applicant, the Board of Appeals shall consider that fact.

(3) The applicant has the burden of proof and the burden of persuasion to overcome the presumption of nonconformance established in Subsection A above.

(4) The Board of Appeals shall notify the Critical Area Commission of its findings and decision to grant or deny the variance request in accordance with Subsection G below.

E. Findings. Based on competent and substantial evidence, the Board of Appeals shall make written findings on whether the applicant has overcome the presumption of nonconformance as established in Subsection A above and, if applicable, Subsection B above. With due regard for the person's technical competence and specialized knowledge, the written findings may be based on evidence introduced and testimony presented by:

(1) The applicant;

(2) The Town or any other government agency; or

(3) Any other person deemed appropriate by the Board of Appeals.

F. If the variance request is based on conditions or circumstances that are the result of actions by the applicant, the Board of Appeals shall consider that fact and whether the application has met the requirements of Subsection I below.

G. The applicant has the burden of proof and the burden of persuasion to overcome the presumption of nonconformance established in Subsection A above.

H. Within ten (10) working days after issuance of a written variance decision, the Board of Appeals shall notify the Critical Area Commission of its findings and decision to grant or deny the variance request.

I. After-the-Fact Requests.

(1) The Town will not accept an application of a variance to legalize a violation of this subtitle, including an unpermitted structure or other development activity until:

(a) Issues a notice of violation; and

(b) Assesses an administrative or civil penalty for the violation.

(2) The Town will not approve an after-the-fact variance unless an applicant has:

(a) Fully paid all administrative, civil, and criminal penalties imposed under Natural Resources Article, § 8-1808(c)(1)(iii)14-15 and (2)(i), Annotated Code of Maryland;

(b) Prepared a restoration or mitigation plan, approved by the local jurisdiction, to abate impacts to water quality or natural resources as a result of the violation; and

(c) Performed the abatement measures in the approved plan in accordance with this Chapter or posted a bond for the abatement measures pending the outcome of the variance request.

(3) If the Board of Appeals denies the requested after-the-fact variance, then the Town shall:

(a) Order removal or relocation of any structure; and

(b) Order restoration of the affected resources.

(4) Application for an after-the-fact variance constitutes a waiver of the right to appeal the terms of a notice of violation and its final adjudication, including the payment of any penalties and costs assessed.

J. Appeals. Appeals from decisions concerning the granting or denial of a variance under these regulations shall be taken in accordance with all applicable laws and procedures of the Board of Appeals for variances. Variance decisions by the Board of Appeals may be appealed to the Circuit Court within thirty (30) days of the date on which the Board of Appeals issues its written decision in accordance with the Maryland Rules of Procedure. Appeals may be taken by any person, firm, corporation, or governmental agency aggrieved or adversely affected by any decision made under this article.

K. Conditions and mitigation. The Board of Appeals shall impose conditions on the use or development of a property that is granted a variance as it may find reasonable to ensure that the spirit and intent of this article are maintained, including, but not limited to, the following:

(1) Adverse impacts resulting from the granting of the variance shall be mitigated as recommended by the appropriate local body or approving authority, but not less than by planting on the site per square foot of the variance granted at no less than a three-to-one basis.

(2) New or expanded structures or lot coverage shall be located at the greatest possible distance from mean high water, the landward edge of tidal wetlands, tributary streams, nontidal wetlands, or steep slopes.

L. Commission notification. Within ten (10) working days after a written decision regarding a variance application is issued, a copy of the decision will be sent to the Critical Area Commission. The Town may not issue a permit for the activity of the subject of the application until the applicable thirty-day appeal period has elapsed.

§ 128-27 Lot consolidation and reconfiguration.

A. Applicability. The provisions of this section apply to the consolidation or a reconfiguration of any nonconforming legal grandfathered parcel or lot in the Limited Development Area (LDA) and Resource Conservation Area (RCA). These provisions do not apply to the reconfiguration or consolidation of parcels or lots that conform to or meet all Critical Area requirements. "Conforming" does not include a parcel or lot:

(1) For which a Critical Area variance is sought or has been issued or

(2) That is located in the Resource Conservation Area and is less than twenty (20) acres in size.

B. Procedure. An applicant seeking a parcel or lot consolidation or reconfiguration shall provide the information required in COMAR 27.01.02.08.E, as amended from time to time, to the Town.

(1) The Town may not approve a proposed parcel or lot consolidation or reconfiguration without making written findings in accordance with COMAR 27.01.02.08.F, as amended from time to time.

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

(3) 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 ten (10) business days by U.S. mail to the Critical Area Commission's business address.

§ 128-28 Amendments.

A. Amendments. The Denton Town Council may, from time to time, amend the Critical Area provisions of this article. Changes may include, but are not limited to, amendments, revisions, and modifications to the Critical Area regulations, Critical Area Maps, implementation procedures, and local policies that affect the Town's Critical Area. All such amendments, revisions, and modifications shall also be approved by the Critical Area Commission as established in § 8-1809 of the Natural Resources Article of the Annotated Code of Maryland. No such amendment shall be implemented without the approval of the Critical Area Commission. Standards and procedures for Critical Area Commission approval of proposed amendments are as set forth in the Critical Area Law § 8-1809(i) and § 8-1809(d) of the Natural Resources Article of the Annotated Code of Maryland, respectively.

B. Zoning Map amendments. Except for ordinance amendments or ordinance refinements developed during a ten-year comprehensive review, a change to a critical area designation may be granted by the Town Council on proof of mistake if the proposed critical area classification:

(1) Conforms to the State critical area mapping criteria.

(2) Is based on land uses or natural features in existence as of December 1, 1985, or for areas included in the critical area due to remapping, is based on land uses or natural features in existence at the time of the remapping.

(3) Follows the Town's documented mapping methodology for critical area classifications at the time of the original program adoption and

(4) Is consistent with the purposes, policies, and goals of this subtitle and all criteria of the Critical Area Commission.

C. A Zoning Map Amendment may be granted if the zoning map amendment:

(1) Is wholly consistent with the Critical Area land classifications (IDA, LDA, RCA, and MBA) as shown on the adopted Critical Area Overlay Map.

(2) Proposes the use of a part of the remaining growth allocation in accordance with the growth allocation provisions of this Chapter or

(3) Proposes to change the land classification from either an Intensely Developed Area to a Limited Development Area or a Resource Conservation Area, or a Limited Development Area to a Resource Conservation Area.

D. Process.

(1) When an amendment is requested, the applicant shall submit the amendment to the Planning Commission for review and recommendation. Upon completing findings of fact, these documents shall be forwarded to the Town Council.

(2) The Town Council shall hold a public hearing at which parties of interest and citizens shall have an opportunity to be heard. At least fourteen (14) days' notice of the time and place of such hearing shall be published in a newspaper of general circulation in the Town of Denton.

(3) After the Town Council has approved an amendment, it shall send in writing to the Critical Area Commission, within sixty (60) days after the completion of review, the following information.

(a) A statement certifying that the required review has been accomplished.

(b) Any necessary requests for program amendments, program refinements, or other matters that the Town wishes the Commission to consider.

(c) An updated resource inventory and

(d) A statement quantifying acreages within each land classification, the growth allocation used, and the growth allocation remaining.

§ 128-29 Enforcement; violations and penalties.

A. Consistency. The Critical Area provisions of this article, in accordance with the Critical Area Act and criteria, supersede any inconsistent law, chapter, or plan of the Town of Denton. In the case of conflicting provisions, the stricter provisions shall apply.

B. Violations.

(1) No person shall violate any provision of this article. Each violation that occurs and each calendar day that a violation continues shall be a separate offense.

(2) Each person who violates a provision of this article shall be subject to separate penalties, abatement and restoration orders, and mitigation for each offense.

(3) Noncompliance with any permit or order issued by the Town related to the Critical Area shall be a violation of this article and shall be enforced as provided herein.

C. Responsible persons. The following persons may each be held jointly or severally responsible for a violation:

(1) Persons who apply for or obtain any permit or approval;

(2) Contractors;

(3) Subcontractors;

(4) Property owners;

(5) Managing agents; or

(6) Any person who has committed, assisted, or participated in the violation(s).

D. Required enforcement action. In the case of violations of this article, the Town shall take enforcement action, including:

(1) Assess penalties as necessary to cover the costs associated with performing inspections, supervising, or rendering assistance with identifying and citing the violation, issuing abatement and restoration orders, and reviewing mitigation plans and ensuring compliance with these plans;

(2) Issue abatement, restoration, and mitigation orders as necessary to:

(a) Stop unauthorized activity;

(b) Restore and stabilize the site, as appropriate, to its condition prior to the violation or to a condition that provides the same water quality and habitat benefits; and

(c) Require the implementation of mitigation measures, in addition to restoration activities, to offset the environmental damage and degradation or loss of environmental benefit resulting from the violation.

E. Right to enter the property. Except as otherwise authorized and in accordance with the procedures specified herein, the Town Council or its 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 Town has probable cause to believe that a violation of this article has occurred, is occurring, or will occur. The Town shall make a reasonable effort to contact a property owner before obtaining access to or entering the property. If entry is denied, the Town may seek an injunction to enter the property to pursue an enforcement action.

F. Penalties. In addition to any other penalty applicable under state or town law, every violation of a provision of the Natural Resources Article of the Annotated Code of Maryland, § 8-1801, and/or the Critical Area provisions of this article shall be punishable by a penalty as established by the Town of Denton penalty schedule adopted by resolution of the Town Council and may be amended from time to time, with a maximum penalty of up to $10,000 per calendar day. In addition to the standards as set forth herein, prosecution of violations and penalties shall be in accordance with Chapter 94, the Denton Property Maintenance Code, and Chapter 38, the Denton Building Code.

(1) Before imposing any penalty, the person(s) believed to have violated this article shall receive written notice of the alleged violation(s) by certified mail, regular mail, property posting, etc., including which, if any, are continuing violations, and an opportunity to be heard. The amount of the penalty for each violation, including each continuing violation, shall be determined separately for each violation and in accordance with this section. For each continuing violation, the amount of the penalty shall be determined per day and deemed a separate offense. In determining the amount of the civil penalty, the Town shall consider:

(a) The gravity of the violation;

(b) The presence or absence of good faith of the violator;

(c) Any willfulness or negligence involved in the violation, including a history of prior violations;

(d) The environmental impact of the violation; and

(e) The cost of restoration of the resource affected by the violation and mitigation for damage to that resource, including the cost to the Town for performing, supervising, or rendering assistance to the restoration and mitigation.

(2) Penalties for continuing violations shall accrue for each violation every day each violation continues, with no requirements for additional assessments, notices, or hearings for each separate offense. The total amount payable for continuing violations shall be assessed per day for each violation multiplied by the number of days that each violation has continued.

(3) The person responsible for any continuing violation shall promptly provide the Town with written notice of the date(s) the violation has been or will be brought into compliance and the date(s) for the Town's inspection to verify compliance. Penalties for continuing violations continue to accrue as set forth herein until the Town receives such written notice and verifies compliance by inspection or otherwise.

(4) Assessment and payment of penalties shall be in addition to and not in substitution for recovery by the Town of all damages, costs, and other expenses caused by the violation.

(5) Payment of all penalties assessed shall be a condition precedent to the issuance of any permit or other approval required by this article.

(6) Unpaid expenses in the prosecution of a violation or violations shall be subject to a lien against the property.

G. Cumulative remedies. The remedies available to the Town under this article are cumulative and not alternative or exclusive, and the decision to pursue one remedy does not preclude the pursuit of others.

H. Injunctive relief. The Town is authorized to institute injunctive or other appropriate actions or proceedings to bring about the discontinuance of any violation of this article, an administrative order, a permit, a decision, or other imposed conditions.

(1) The pendency of an appeal to the Board of Appeals or subsequent judicial review shall not prevent the Town 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.

I. Variances pursuant to a violation. Upon citing a violation, the Town may accept an application for a variance regarding a parcel or lot that is subject to a current violation of this subsection or any provisions of an order, permit, plan, or this article in accordance with the variance provisions of this article. However, the application shall not be reviewed, nor shall a final decision be made, until all abatement, restoration, and mitigation measures have been implemented and inspected by the Town of Denton. The property may be required to post a bond equal to 125% of the value of the cost of all abatement, restoration, and mitigation measures. Application for a variance constitutes a waiver of the right to appeal under Subsection K below.

J. Permits pursuant to a violation. Failure to complete the required conditions of approval shall constitute a separate violation. The Town may not issue any permit, approval, variance, or special exception unless the person seeking the permit has:

(1) Fully paid all penalties as set forth in Subsection F above;

(2) Prepared a restoration or mitigation plan, approved by the Town, to abate impacts to water quality or natural resources as a result of the violation;

(3) Performed the abatement measures in the approved plan in accordance with the Town regulations; and

(4) Unless an extension of time is approved by the Town 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.

K. Appeals. An appeal in accordance with Chapter 94, Means of appeal, of the Denton Property Maintenance Code may be filed by any person aggrieved by any order, requirement, decision, or determination by an officer or official of the Town of Denton in connection with the administration and enforcement of this article.

(1) An appeal is taken by filing a written notice of appeal with the Board of Appeals in accordance with the provisions in the Denton Zoning Ordinance and accompanied by the appropriate filing fee.

(2) An appeal must be filed within 20 days after the date of the decision or order being appealed; and

(3) An appeal stays all actions by the Town seeking enforcement or compliance with the order or decisions being appealed unless the Town certifies to the Board of Appeals that (because of facts stated in the certification) such stay will cause imminent peril to life or property. In such a case, action by the Town shall not be stayed except by order of the Board of Appeals or a court on application of the party seeking the stay.

§ 128-30 Buffer standards.

A. Applicability and delineation. An applicant for development activity or a change in land use shall apply all of the required standards for a minimum one-hundred-foot buffer as described in this section. Governmental or public development activity shall comply with the provisions of the Code of Maryland ("COMAR") Title 27 Subtitle 02. The minimum one-hundred-foot buffer shall be delineated in the field and shall be shown on all applications as follows:

(1) The minimum one-hundred-foot buffer is delineated landward from:

(a) The mean high-water line of tidal water;

(b) The edge of each bank of a tributary stream; and

(c) The upland boundary of a tidal wetland.

(2) The buffer shall be expanded beyond the minimum one-hundred-foot buffer as described in Subsection A(1) above and the minimum two-hundred-foot buffer as described in Subsection A(3) below, to include the following contiguous land features:

(a) 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;

(b) A nontidal wetland to the upland boundary of the nontidal wetland;

(c) The one-hundred-foot buffer that is associated with a nontidal wetland of special state concern as stated in COMAR 26.23.06.01, as amended from time to time;

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

(i) The landward edge of the hydric or highly erodible soils; or

(ii) Three hundred feet, where the expansion area includes the minimum one-hundred-foot buffer.

(3) 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:

(a) An expanded buffer in accordance with Subsection A(2) above; or

(b) 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.

(4) The provisions of Subsection A(3) above do not apply if:

(a) 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;

(b) The application involves the use of growth allocation.

B. Permitted activities. 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 F of this section.

(1) A new development or redevelopment activity associated with a water-dependent facility or located in an approved Modified Buffer Area;

(2) A shoreline stabilization activity constructed in accordance with COMAR 26.24.02, COMAR 27.01.04, as amended from time to time, and this article;

(3) A development or redevelopment activity approved in accordance with the variance provisions of this article;

(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 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 one-hundred-foot buffer; and

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

(5) A new or replacement septic system on a lot created before April 3, 1989, where:

(a) The Caroline County Health Department has determined the buffer is the only available location for the septic system; and

(b) Mitigation is provided at a one-to-one ratio for the area of canopy cleared of any forest or developed woodland.

(6) Riparian access for water access, where mitigation is required at a rate of 2:1.

C. Buffer establishment in vegetation. An applicant for 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 one-hundred-foot buffer shall establish the buffer in vegetation if the buffer is not fully forested or fully established in woody or wetland vegetation. The Town shall require a Buffer Management Plan in accordance with the standards of this Section.

(1) The provisions of this section apply to:

(a) A new subdivision or a new lot;

(b) A lot or parcel that is converted from one land use to another;

(c) Development or redevelopment of a lot or parcel created before January 1, 2010.

(2) The provisions of this section do not apply to the in-kind replacement of a structure.

(3) If a buffer is not fully forested or fully established in woody or wetland vegetation, the buffer shall be established through planting in accordance with COMAR 27.01.09.01-1C, as amended from time to time.

(4) 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.

D. Mitigation for impacts to the buffer. An applicant for a development activity that includes disturbance to the buffer shall mitigate 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, shoreline stabilization permit, building permit, grading permit, a septic system approved by the Caroline County Health Department on a lot created before April 3, 1989, and special exception.

(2) All authorized development activities shall be mitigated according to COMAR 27.01.09.01-2, as amended from time to time.

(3) All unauthorized development activities in the buffer shall be mitigated at a ratio of 4:1 for the limit 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, then 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.

(c) A fee in lieu as referenced in Subsection G below.

(5) The installation or cultivation of new lawn or turf in the Buffer is prohibited.

E. Buffer planting standards.

(1) An applicant 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, as amended from time to time.

(2) A variance to the planting and mitigation standards of this article is not permitted.

F. 

Required submittal of Buffer Management Plans. An applicant 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, as amended from time to time, with the application for the specific activity. The provisions of this Section do not apply to maintaining an existing grass lawn or an existing garden in the buffer.

(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 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 for a subdivision application until the Buffer Management Plan has been reviewed and approved by the Town.

(4) The Town may not approve a Buffer Management Plan unless:

(a) The plan indicates that all planting standards under Subsection E of this Section 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 the implementation of a Buffer Management Plan; or

(b) Provides financial assurance to cover the costs for:

(i) Materials and installation; and

(ii) 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, as amended from time to time.

(6) Concurrent with the 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 permit for development activity will not be issued for a property with the violation.

(8) An applicant shall post a subdivision with permanent signs prior to final recordation in accordance with COMAR 27.01.09.01-2 as amended from time to time.

(9) Buffer Management Plans that include natural regeneration shall follow the provisions of COMAR 27.01.09.01-4.

G. 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 the Town's general fund and may only be used for projects within the Critical Area to enhance wildlife habitat, improve water quality or otherwise promote the goals of the Denton's Critical Area Program. The funds cannot be used to accomplish a project or measure that would have been required under existing Town, State, or federal laws, regulations, statutes, or permits;

(2) Fees-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 twenty percent (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.

(5) The Town will make the fee-in-lieu fund plans and accounting procedures available to the public, and the status of these funds must be reported in Denton's quarterly reports.

(6) Any fees-in-lieu collected under these provisions shall be placed in an account that will ensure their use only for projects within the Critical Area to enhance wildlife habitat, improve water quality, or otherwise promote the goals of the Town's Critical Area Program.

H. 

Shoreline stabilization projects. Shoreline stabilization measures are permitted activities within the buffer in accordance with the following requirements:

(1) An applicant for a shoreline stabilization project that affects the buffer in any way, including, but not limited to, access, vegetation removal, pruning, or backfilling, shall submit a Buffer Management Plan in accordance with the requirements of this section; and

(2) Comply fully with all of the policies and criteria for a shoreline stabilization project stated in COMAR 27.01.04 and COMAR 26.24, as amended from time to time.

(3) The Town, in reviewing any application for a permit for structural erosion control devices, shall refer the application to the Soil Conservation District and the Maryland Department of the Environment for field verification of the need for structural erosion control as well as for recommendations on proposed erosion control mechanisms.

(a) Any application made to the Town for the installation of an erosion control device must, at a minimum, include the following information:

(i) Photograph of erosion problem;

(ii) The specific location of the site on a USGS 7.5-minute topographic map;

(iii) Soil type and erodibility;

(iv) Proposed and existing land use.

(b) Applications must include appropriate authorization from the Maryland Department of the Environment and the U.S. Army Corps of Engineers. Mitigation is required for any disturbance above mean high water, including tree removal.

§ 128-31 Modified Buffer Area (MBA) provisions.

A. Applicability. The following provisions apply to areas designated and mapped by the Town as Modified Buffer Areas (MBA) and shown on maps available to the public held by the Town. The Critical Area Commission must approve all MBA maps and provisions.

B. 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 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 shall comply 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 fifty (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 local setback for the zoning district or twenty-five (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 local setback for the zoning district, whichever is greater. In no case shall new development be located less than fifty (50) feet or redevelopment be located less than twenty-five (25) 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 Town of Denton has determined there are no other locations for the structures. The area of new accessory structures shall not exceed five hundred (500) square feet within twenty-five (25) feet of the water and one thousand (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 one-hundred-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 A(9)(a) above may 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 A(9)(a) or (b) above shall pay $1.50 per square foot of mitigation requirement into a fee-in-lieu program as follows:

(i) Applicants shall submit two (2) cost estimates from qualified landscape businesses for planting the equivalent of twice the extent of the development within the Buffer. The estimate shall include the cost of stock, planting, staking, mulching, and a one (1) year guarantee.

(ii) The Town shall determine the amount of the fee-in-lieu based on the average of the two (2) estimates.

(d) Any fees-in-lieu collected under these provisions shall be placed in an account that will ensure their use only for projects within the Critical Area to enhance wildlife habitat, improve water quality, or otherwise promote the goals of the Town's Critical Area Ordinance. 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.

(e) 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.

§ 128-32 Other Habitat Protection Areas.

A. 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:

(1) Threatened or endangered species or species in need of conservation;

(2) Colonial waterbird nesting sites;

(3) Historic waterfowl staging and concentration areas in tidal waters, tributary streams, or tidal and non-tidal wetlands;

(4) Existing riparian forests;

(5) Forest areas utilized as breeding areas by future interior dwelling birds and other wildlife species;

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

(7) Natural Heritage Areas; and

(8) Anadromous fish propagation waters.

B. Standards.

(1) 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.

(2) If the Department of Natural Resources confirms the presence of a Habitat Protection Area, the applicant shall develop a Habitat Protection Plan in coordination with the Department of Natural Resources and, as necessary, the United States Fish and Wildlife Service.

(a) 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, and as updated.

(b) 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.

(3) 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.

§ 128-33 Water-dependent facilities.

A. Applicability. The provisions of this Chapter 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 by reason of the intrinsic nature of its operation.

B. Identification. Water-dependent facilities include but are not limited to, ports, intake and outfall structures, marinas, and other boat docking structures, public beaches and other public water-oriented recreation areas, fisheries activities, and any other water-dependent facility or activity that supports water quality restoration in the Chesapeake Bay, the Atlantic Coastal Bays, or their watersheds. Excluded from this regulation are individual private piers installed or maintained by riparian landowners that are not part of a subdivision that provides community piers.

C. Standards. In accordance with COMAR 27.01.03 and the standards below, the following shall apply to new or expanded development activities associated with water-dependent facilities:

(1) New or expanded development activities may be permitted in the Buffer in the IDAs and LDAs provided that it can be shown:

(a) That they are water-dependent;

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

(c) That adverse effects on water quality, fish, plant, and wildlife habitat are first avoided, or if unavoidable, minimized;

(d) That, insofar as possible, nonwater-dependent structures or operations associated with water-dependent projects or activities are located outside the Buffer; and

(e) That the facilities are consistent with an approved local plan as set forth below.

(2) New or expanded development activities may not be permitted in those portions of the Buffer that occur in RCAs, except as otherwise provided. Applicants for water-dependent facilities in an RCA, other than those specifically permitted herein, must apply for a portion of Growth Allocation as set forth in this Chapter.

D. Evaluating plans for new and expanded water-dependent facilities. The Town shall evaluate on a case-by-case basis all proposals for expansion of existing or new water-dependent facilities. The Town shall work with appropriate State and federal agencies to ensure compliance with COMAR 27.01.03 and other applicable regulations.

§ 128-34 Reserved.