Chapter 60 Critical Area Program

§ 60-1 Implementation of Critical Area Program; purpose and goals.

Editor's Note: This ordinance also repealed former Ch 60, Critical Areas, adopted 11-14-1988 by Res. No. 8-88.

Goals. The goals of the Town's Critical Area Program are to accomplish the following:

Minimize adverse impacts on water quality that result from pollutants that are discharged from structures or runoff from surrounding lands;

Conserve fish, wildlife, and plant habitat; and

Establish land use policies for development in the critical area, which accommodate growth as well as address the environmental impacts that the number, movement, and activities of people may have on the area.

Critical Area Program. The Town's Critical Area Program consists of the Zoning Ordinance[1] and the Town's Official Critical Area Map(s). Related provisions may be found in the Subdivision Regulations.[2]

Editor's Note: See Ch. 155, Zoning.

Editor's Note: See Ch. 131, Subdivision Regulations.

Applicability. The Town Administrator or his/her designee shall review a permit or license for a development or redevelopment activity in the critical area for compliance with this chapter prior to issuance of that permit or license.

Critical Area Overlay District Map.

The Official Critical Area Overlay District Map is maintained as part of the Official Zoning Map for the Town. The Official Critical Area Map delineates the extent of the Critical Area Overlay District that shall include:

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 Environment Article Title 16, Annotated Code of Maryland; and

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

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

Intensely Developed Area (IDA).

Limited Development Area (LDA).

Resource Conservation Area (RCA).

The Critical Area Overlay District Map may be amended by the Mayor and Town Council in compliance with the amendment provisions in this chapter, the Maryland Critical Area Law, and COMAR Title 27.

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.

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

The Town may not process an application which has been sent to the Critical Area Commission for notification until it has received notice of receipt by the Critical Area Commission.

§ 60-2 Development standards in the critical area.

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

Summary of Notification Requirements

Critical Area Commission

(COMAR 27.03.01)

		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 occur wholly or partially within the Critical Area	Y	Y	Y
13.	Special exception or conditional use for industrial commercial, institutional, nonresidential or multifamily	N	Y	Y
14.	Substantial alteration to applications previously submitted to the Critical Area Commission	Y	Y	Y

Note 1: Shore erosion control 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.

General requirements in all Critical Area Overlay Zones.

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 in order to correct an existing water quality wastewater management problem. Existing permitted facilities shall be subject to the standards and requirements of the Department of the Environment.

Development and redevelopment shall be subject to the Habitat Protection Area (HPA) requirements prescribed in this chapter.

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

Utility transmission facilities.

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

The facilities are located in IDAs; and

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

These provisions do not include power plants.

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

Provide maximum erosion protection;

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

Maintain hydrologic processes and water quality.

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

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

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

Provide a natural substrate for stream beds; and

Minimize adverse water quality and quantity impacts of stormwater.

Reasonable accommodations for the needs of disabled citizens.

An applicant seeking relief from the critical area standards contained in this chapter in order to accommodate the reasonable needs of disabled citizens shall have the burden of demonstrating by a preponderance of evidence the following:

The alterations will benefit persons with a disability within the meaning of the Americans with Disabilities Act;[1]

Editor's Note: See 42 U.S.C. § 12101 et seq.

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;

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;

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

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 requirement; or would allow only the minimum environmental changes necessary to address the needs resulting from the particular disability of the applicant/appellant.

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

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

Non-water-dependent structures on piers.

Except as provided in Subsection A(8)(b) of this section and notwithstanding any other provisions of the law, the Town may not issue a building permit or any other approval to authorize a non-water-dependent project located on state or private wetlands within the critical area.

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

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

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

Is located in an IDA;

Is approved by the Planning and Zoning Commission;

Allows or enhances public access to state wetlands;

[6]

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

[7]

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

[8]

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

[a]

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

[b]

Satisfies all of the requirements under Subsection A(8)(b)[1] through [8] of this section; and

[c]

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

Intensely Developed Areas (IDA).

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

Nonmaritime heavy industry;

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

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

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

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).

Limited Development Areas (LDA).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following table summarizes the limits set forth above:

Table C.(3)(d). Lot Coverage Limits
Lot/Parcel Size (square feet)	Lot Coverage Limit
0 to 8,000	25% of parcel + 500 square feet
8,001 to 21,780	31.25% of parcel
21,781 to 36,300	5,445 square feet
36,301 to 43,560	15% of parcel

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

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

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

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

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

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

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

An applicant may not clear more than 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 times the areal extent of the forest or developed woodlands cleared.

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

The applicant shall ensure that any plantings that die within 24 months of installation shall be replaced. Financial assurance in a form and amount determined by the Town shall be provided to assure satisfactory replacement as required in Subsection C(4) above and plant survival;

A permit issued by the Town before forest or developed woodland is cleared. Forests and developed woodlands which have been cleared before obtaining a permit from the Town is a violation and shall be replanted at three times the areal extent of the cleared forest;

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

If the areal extent of the site limits the application of the afforestation or reforestation standards in this section, the applicant may be allowed to plant offsite or pay a fee in lieu of planting.

If no forest exists on proposed development sites, these sites shall be planted to provide a forest or developed woodland cover of at least 15%. The applicant shall designate, subject to the approval of the Town, a new forest area on a part of the site not forested.

All forest, including afforested areas, shall be maintained through conservation easements, restricted covenants, or other protective instruments.

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

Resource Conservation Areas (RCA).

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

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

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, is as follows:

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

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

Density.

Land within the RCA may be developed for residential uses at a density not to exceed one dwelling unit per 20 acres. In calculating the one-in-twenty-acre density of development that is permitted on a parcel located within the RCA, the Town:

Shall count each dwelling unit; and

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

[a]

The density of development on the upland portion of the parcel may not exceed one dwelling unit per eight acres; and

[b]

The area of private wetlands shall be estimated on the basis of vegetative information as designated on the state wetlands maps or by private survey approved by the Town, the Critical Area Commission, and Maryland Department of the Environment.

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

Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit and does not exceed 900 square feet in total enclosed areas; or

Is located within the primary dwelling unit and does not increase the amount of lot coverage already attributed to the primary dwelling unit.

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

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

RCA uses.

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

Expansion of existing industrial facilities and uses in the RCA shall be subject to the nonconforming use provisions of this chapter and the grandfathering provisions in § 60-8 and may require growth allocation.

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

A home occupation as an accessory use on a residential property and as provided for in the Zoning Ordinance;[2]

Editor's Note: See Ch. 155, Zoning.

A golf course developed in accordance with the official guidance adopted by the Critical Area Commission on August 3, 2005, excluding main buildings and/or structures such as the clubhouse, pro shop, parking lot, etc.;

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

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

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

§ 60-3 Buffer.

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

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

The mean high-water line of a tidal water;

The edge of each bank of a tributary stream; and

The upland boundary of a tidal wetland.

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

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

The application involves the use of growth allocation.

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

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

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

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

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

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

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

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

A new development or redevelopment activity associated with a water-dependent facility as described in § 60-6.

In accordance with COMAR 26.24.02, a shore erosion control measure under COMAR 26.24.04, and this chapter.

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

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

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

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

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

A septic system on a lot created before January 11, 2021, where mitigation is provided at a 1:1 ratio for area of canopy cleared of any forest or developed woodland.

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

Buffer establishment.

The requirements of this regulation are applicable to:

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

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

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

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

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

The requirements of this regulation are not applicable to an in-kind replacement of a structure.

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

Approval of a subdivision;

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

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

When the buffer is not fully forested or is not fully established in existing, naturally occurring woody or wetland vegetation, an applicant shall establish the buffer to the extent required in the following table:

Table 3.C(5). Buffer Establishment Requirements
Development Category	Lot Created Before January 11, 2021	Lot Created After January 11, 2021
Development on a vacant lot	Establish the buffer based on total square footage of lot coverage outside the buffer	Fully establish the buffer
Subdivision	Fully establish the buffer
New lot with an existing dwelling unit	Establish the buffer based on total square footage of lot coverage outside the buffer
Conversion of a land use on a parcel or lot to another land use	Fully establish the buffer
Addition, accessory structure, or redevelopment	Establish the buffer based on net square footage increase in lot coverage outside the buffer
Substantial alteration	Establish the buffer based on total square footage of lot coverage outside the buffer

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

The lot coverage existed before the date the Town's Critical Area Program was adopted or was allowed by Town procedures; and

The total area is stabilized.

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

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

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

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

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

On-site and adjacent to the buffer; and

On-site elsewhere in the critical area.

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

Buffer planting standards.

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

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

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

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

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

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

The Town may not approve a buffer management plan unless:

The plan clearly indicates that all buffer planting standards under Subsection E above will be met; and

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

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

Completes the implementation of a buffer management plan; or

Provides financial assurance to cover the costs for:

Materials and installation; and

If the mitigation or establishment requirement is at least 5,000 square feet, long-term survivability requirements as set forth in COMAR 27.01.09.01-2.

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

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

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

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

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

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

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

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

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

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

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

§ 60-4 Modified buffer area (MBA).

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. All MBA maps and provisions must be approved by the Critical Area Commission.

Development and redevelopment standards. New development or redevelopment activities, including structures, roads, parking areas, other impervious surfaces, and 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 Mayor and Town Council find that efforts have been made to minimize buffer impacts, and the development shall comply with the following standards:

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

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

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

New development, including accessory structures, shall minimize the extent of intrusion into the buffer. New development shall not be located closer to the water (or edge of tidal wetlands) than the minimum required setback for the zoning district or 50 feet, whichever is greater. Structures on adjacent properties shall not be used to determine the setback line.

Redevelopment, including accessory structures, shall minimize the extent of intrusion into the buffer. Redevelopment shall not be located closer to the water (or edge of tidal wetlands) than the local setback for the zoning district or 25 feet, whichever is greater. Structures on adjacent properties shall not be used to determine the setback line. A new structure may be constructed on the footprint of an existing structure.

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

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 or redevelopment be located less than 50 feet from the water (or the edge of tidal wetlands).

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

New accessory structures may be located closer to the water than the setback if the Town Administrator or his/her designee has determined there are no other locations for the structures. The area of new accessory structures shall not exceed 500 square feet within 50 feet of the water and 1,000 square feet total in the buffer.

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

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

Modified buffer area designation shall not be used to facilitate the filling of tidal wetlands that are contiguous to the buffer or to create additional buildable land for new development or redevelopment.

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

(9)

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

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

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

Applicants who cannot comply with either the planting or offset requirements in Subsection B(9)(a) or (b) above shall pay into a fee-in-lieu program as follows:

Applicants shall submit to the Mayor and Town Council two 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-year guarantee.

The Mayor and Town Council shall determine the amount of the fee in lieu based on the average of the two estimates.

Any fees in lieu collected under these provisions shall be placed in an account that will assure their use only for projects within the critical area to enhance wildlife habitat, improve water quality, or otherwise promote the goals of the Town's Critical Area Program. The funds cannot be used to accomplish a project or measure that would have been required under existing local, state, or federal laws, regulations, statutes, or permits. The status of these funds must be reported in the jurisdiction's quarterly reports.

§ 60-5 Other habitat protection areas (HPA).

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 for St. Mary's County.

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

Threatened or endangered species or species in need of conservation;

Colonial waterbird nesting sites;

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

Existing riparian forests;

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

The following locally significant habitats found in Leonardtown:

McIntoch Run.

McIntosh Run South.

Natural heritage areas; and

Anadromous fish propagation waters.

Standards.

An applicant for a development activity proposed for a site within the critical area that is in or near an HPA listed above shall request review by the Department of Natural Resources and, as necessary, United States Fish and Wildlife Service, for comment and technical advice. Based on the Department of Natural Resource's recommendations, additional research and site analysis may be required to identify the location of threatened and endangered species and species in need of conservation on a site.

If the presence of any HPA is confirmed by the Department of Natural Resources, the applicant shall follow all recommendations from the Department of Natural Resources and, as necessary, United States Fish and Wildlife Service.

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.

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.

The specific protection and conservation measures recommended by the Department of Natural Resources and the United States Fish and Wildlife Service shall be included on the site plan and shall be considered conditions of approval for the project.

§ 60-6 Water-dependent facilities.

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.

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

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

New or expanded development activities may be permitted in the buffer in the IDAs and LDAs, provided that it can be shown:

That they are water dependent;

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

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

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

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

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

Evaluating plans for new and expanded water-dependent facilities. The Mayor and Town Council shall evaluate on a case-by-case basis, with recommendations from the Town Administrator or his/her designee, 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 applicable regulations. The following factors shall be considered when evaluating proposals for new or expanded water-dependent facilities:

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

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

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

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

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

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

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

Backfill for permitted shore erosion protection measures;

Use in approved vegetated shore erosion projects;

Placement on previously approved channel maintenance spoil disposal areas; and

Beach nourishment.

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

(9)

That disturbance will be avoided to historic areas of waterfowl staging and concentration or other HP As identified in the HPA chapter.

Industrial and port-related facilities. New, expanded, or redeveloped industrial or port-related facilities and the replacement of these facilities may be permitted only in those portions of IDAs that have been designated as MBAs as described in this chapter and are subject to the provisions set forth in that Chapter.

Marinas and other commercial maritime facilities. New, expanded or redeveloped marinas may be permitted in the buffer within IDAs and LDAs subject to the requirements set forth in this chapter. New marinas or related maritime facilities may not be permitted in the buffer within RCAs except as provided in this chapter. Expansion of existing marinas may be permitted by the municipality within RCAs, provided that it is sufficiently demonstrated that the expansion will not adversely affect water quality, and that it will result in an overall net improvement in water quality at or leaving the site of the marina. New and existing marinas shall meet the sanitary requirements of the Department of the Environment as required in COMAR 26.04.02. New marinas shall establish a means of minimizing the discharge of bottom wash waters into tidal waters.

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

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

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

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

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

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

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

One slip for each 50 feet of shoreline in the subdivision in the IDAs and LDAs and one slip for each 300 feet of shoreline in the subdivision in the RCA; or

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

Table H(2). Number of Slips Permitted
Platted Lots or Dwellings in the Critical Area	Slips
Up to 15	1 for each lot
16 to 40	15 or 75%, whichever is greater
41 to 100	30 or 50%, whichever is greater
101 to 300	50 or 25%, whichever is greater
over 300	75 or 15%, whichever is greater

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

Adequate sanitary facilities exist;

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

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

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

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

§ 60-7 Growth allocation.

Growth allocation acreage and deduction.

Growth allocation available to the Town includes:

An area equal to 5% of the RCA acreage located within the Town; and

Growth allocation available to the Town as provided for by St. Mary's County and in accordance with Resolution No. 2018-33.

The Town's current growth allocation acreage remaining is 200 acres, provided to the Town from the county per Resolution No. 2018-33, as of January 11, 2021.

[Amended 2-13-2023 by Ord. No. 215]

A local jurisdiction shall deduct acreage from its growth allocation reserves in accordance with COMAR 27.01.02.06-4.

Purpose. Growth allocation is available for use in an RCA or in an LDA in the Town's Critical Area Overlay District. The purpose is to authorize a change in the critical area classification to develop at a higher density or use than the current classification allows.

Process. An applicant shall submit to the Town a complete application for growth allocation that complies with the submittal and environmental report requirements of COMAR 27.01.02.06-1 — .06-2. A growth allocation request shall be approved by the Mayor and Town Council prior to submission to the Critical Area Commission.

Requirements. When locating new IDAs or LDAs, the following requirements apply:

Except as set forth in Subsection E(2) below, a new IDA shall be at least 20 acres.

[Amended 2-13-2023 by Ord. No. 215]

No more than 1/2 of the Town's growth allocation may be located in RCAs except as provided in Subsection D(3) below.

If the Town is unable to utilize a portion of its growth allocation as set out in Subsection D(2) above, then that portion of the growth allocation which cannot be so located may be located in the RCAs if the growth allocation is consistent with the Comprehensive Plan, as per Natural Resource § 8-1808.1, Annotated Code of Maryland.

Standards.

When locating new IDAs or LDAs, the following standards shall apply:

Except as set forth in Subsection E(2) below, a new IDA shall only be located in an LDA or adjacent to an existing IDA.

[Amended 2-13-2023 by Ord. No. 215]

Except as set forth in Subsection E(2) below, a new LDA shall only be located adjacent to an existing LDA or an IDA.

[Amended 2-13-2023 by Ord. No. 215]

A new LDA or IDA shall be located in a manner that minimizes impacts to HPA as defined herein and in COMAR 27.01.09 and in an area and manner that optimizes benefits to water quality;

New IDAs shall only be located where they minimize their impacts to the defined land uses of the RCA;

A new IDA or an LDA in an RCA shall be located at least 300 feet beyond the landward edge of tidal wetlands or tidal waters; and

(f)

New intensely developed or LDAs to be located in RCAs shall conform to all criteria of the Town for such areas, shall be so designated on the Town's Critical Area Maps and shall constitute an amendment to this chapter subject to review and approval by the Planning and Zoning Commission, the Mayor and Town Council, and the Critical Area Commission as provided herein.

The Town may use a portion of its growth allocation in a manner that varies from Subsections D(1) and E(1)(a) and (b) above, provided that the area to receive growth allocation meets the following standards:

[Amended 2-13-2023 by Ord. No. 215]

Any development will be serviced by public water and sewer.

The area is located in a priority funding area.

The development is consistent with the Comprehensive Plan; and

The development will have an overall economic benefit to the community, or implements a specific goal, objective or policy of the Comprehensive Plan.

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

Consistency with the Comprehensive Plan and whether the growth allocation would implement the goals and objectives thereof.

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

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

A completion of an existing subdivision;

An expansion of an existing business; or

To be clustered.

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

To be served by a public wastewater system;

If greater than 20 acres, to be located in a designated priority funding area; and

To have a demonstrable economic benefit.

The use of existing public infrastructure, where practical;

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-site;

Impacts on a priority preservation area;

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

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

§ 60-8 Grandfathering.

Continuation of existing uses.

The continuation, but not necessarily the intensification or expansion, of any use in existence on January 11, 2021, may be permitted, unless the use has been abandoned for more than one year or is otherwise restricted by existing municipal ordinances.

If any existing use does not conform with the provisions of this chapter, its intensification or expansion may be permitted only in accordance with the variance procedures in § 60-9 and §§ 155-63 through 155-66 of the Zoning Ordinance.

Residential density on grandfathered lots.

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

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

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

Land that received a building permit subsequent to December 1, 1985, but prior to January 11, 2021, may;

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

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 IDA, LDA or RCA requirements in this chapter or the area of the land has been counted against the growth allocation permitted under this chapter.

Implementation.

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

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

§ 60-9 Variances.

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

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 Natural Resources Article Title 8, Subtitle 18, Annotated Code of Maryland, COMAR Title 27, and the requirements of this chapter.

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.

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.

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

Due to special features of the site or special conditions or circumstances peculiar to the land or structure involved, a literal enforcement of provisions and requirements of this chapter would result in unwarranted hardship;

A literal interpretation of the provisions of this chapter will deprive the applicant the use of land or a structure permitted to others in accordance with the provisions of this chapter;

The granting of a variance will not confer upon an applicant any special privilege that would be denied by this chapter to other lands or structures within the critical area;

The variance request is not based upon conditions or circumstances which are the result of actions by the applicant, including the commencement of development activity before an application for a variance has been filed;

The request does not arise from any condition relating to land or building use, either permitted or nonconforming on any neighboring property;

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 chapter.

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 Town shall follow its established procedures for advertising and notification of affected landowners.

After hearing an application for a Critical Area Program variance, the Board of Appeals shall make written findings reflecting analysis of each standard. 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:

The applicant;

The Town or any other government agency; or

Any other person deemed appropriate by the Board of Appeals.

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 E below.

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

Within 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.

After-the-fact requests.

The Town may not accept an application of a variance to legalize a violation of this subtitle, including an unpermitted structure or other development activity until the local jurisdiction:

Issues a notice of violation; and

Assesses an administrative or civil penalty for the violation.

The Town may not approve an after-the-fact variance unless an applicant has:

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;

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; and

Performed the abatement measures in the approved plan in accordance with the local Critical Area Program.

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

Order removal or relocation of any structure; and

Order restoration of the affected resources.

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.

Appeals. Appeals from decision concerning the granting or denial of a variance under these regulations shall be taken in accordance with all applicable laws and procedures of the Town for variances. Variance decisions by the Board of Appeals may be appealed to the Circuit Court of St. Mary's County 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 chapter.

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

Adverse impacts resulting from the granting of the variance shall be mitigated as recommended by the Town Administrator or his/her designee, but not less than by planting on the site per square foot of the variance granted at no less than a 3:1 basis.

§ 60-10 Lot consolidation and reconfiguration.

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

Commission notification. Within 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 that was the subject of the application until the applicable thirty-day appeal period has elapsed.

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

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

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

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

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.

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

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

§ 60-11 Amendments.

Amendments. The Mayor and Town Council may from time to time amend the critical area provisions of this chapter. Changes may include, but are not limited to, amendments, revisions, and modifications to these zoning 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 Natural Resources Article § 8-1809, Annotated Code of Maryland. No such amendment shall be implemented without approval of the Critical Area Commission. Standards and procedures for Critical Area Commission approval of proposed amendments are as set forth in Natural Resources Article § 8-1809(i) and § 8-1809(d), Annotated Code of Maryland, respectively.

Zoning Map amendments. Except for program amendments or program refinements developed during a six-year comprehensive review, a zoning map amendment may only be granted by the Mayor and Town Council upon proof of a mistake in the existing zoning. This requirement does not apply to proposed changes to a zoning map that meet the following criteria:

Are wholly consistent with the land classifications as shown on the adopted Critical Area Overlay Map; or

The use of growth allocation in accordance with the growth allocation provisions of this chapter is proposed.

Process.

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

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

After the Mayor and Town Council approve an amendment, they shall forward their decision and applicable resolutions along with the amendment request to the Critical Area Commission for final approval.

§ 60-12 Enforcement.

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

Violations.

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

Each person who violates a provision of this chapter shall be subject to separate administrative civil penalties, abatement and restoration orders, and mitigation for each offense.

Noncompliance with any permit or order issued by the Town related to the critical area shall be a violation of this chapter and shall be enforced as provided herein.

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

Developer or any persons who apply for or obtain any permit or approval;

Contractors;

Subcontractors;

Property owners;

Managing agents; or

Any person who has committed, assisted, or participated in the violation.

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

Assess administrative civil 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;

Issue abatement, restoration, and mitigation orders as necessary to:

Stop unauthorized activity;

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

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.

Right to enter property. Except as otherwise authorized and in accordance with the procedures specified herein, the Mayor and Town Council or their 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 chapter 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 or other legal relief to enter the property to pursue an enforcement action. In the event such relief is granted, the property owner shall be responsible for the Town's fees and costs incurred in seeking such relief, including reasonable attorneys' fees and court costs.

Administrative civil penalties. In addition to any other penalty applicable under state or town law, every violation of a provision of Natural Resources Article Title 8 Subtitle 18, Annotated Code of Maryland, or the critical area provisions of this chapter shall be punishable by a civil penalty of up to $10,000 per calendar day.

Before imposing any civil penalty, the person(s) believed to have violated this chapter shall receive written notice of the alleged violation(s), including which, if any, are continuing violations, and an opportunity to be heard. The amount of the civil penalty for each violation, including each continuing violation, shall be determined separately. For each continuing violation, the amount of the civil penalty shall be determined per day. In determining the amount of the civil penalty, the Town shall consider:

The gravity of the violation;

The presence or absence of good faith of the violator;

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

The environmental impact of the violation; and

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.

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

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 Town inspection to verify compliance. Administrative civil 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.

Assessment and payment of administrative civil penalties shall be in addition to and not in substitution for recovery by the Town of all damages, costs, including reasonable attorneys' fees and court costs, and other expenses caused by the violation.

Payment of all administrative civil penalties assessed shall be a condition precedent to the issuance of any permit or other approval required by this chapter.

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

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 chapter, an administrative order, a permit, a decision, or other imposed condition.

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, decision, or other imposed condition, or to restrain a violation pending the outcome of the appeal or judicial review.

In the event injunctive or other relief sought by the Town to bring about discontinuance of any violation of this chapter, an administrative order, a permit, a decision, or other imposed condition is granted, the person(s) determined to be in violation shall be responsible for the Town's fees and costs incurred in seeking such relief, including reasonable attorneys' fees and court costs.

Variances pursuant to 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 subtitle or any provisions of an order, permit, plan, or this chapter in accordance with the variance provisions of this chapter. 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. Application for a variance constitutes a waiver to the right to appeal under Subsection K below.

Permits pursuant to a violation. The Town may not issue any permit, approval, variance, or special exception, unless the person seeking the permit has:

Fully paid all administrative, civil, or criminal penalties as set forth in Subsection F above;

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;

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

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.

Appeals. An appeal to the Board of Appeals may be filed by any person aggrieved by any order, requirement, decision, or determination by the Town in connection with the administration and enforcement of this chapter.

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

Editor's Note: See Ch. 155, Zoning.

An appeal must be filed within 30 days after the date of the decision or order being appealed; and