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SB 844 Department of Legislative Services
SB 844
Department of Legislative Services
Maryland General Assembly
2008 Session
FISCAL AND POLICY NOTE
Revised
Senate Bill 844
(The President, et al.) (By Request Administration)
Education, Health, and Environmental Affairs
Chesapeake and Atlantic Coastal Bays Critical Area Protection Program -
Administrative and Enforcement Provisions
This Administration bill makes several changes to the Chesapeake and Atlantic Coastal Bays
Critical Area Protection Program. In general, the changes
provide greater authority to the
Critical Area Commission;
update the basic components of the program, including the
Critical Area boundary;
enhance buffer and water quality protection; coordinate new
development more closely with Smart Growth principles and other environmental
protection/planning processes; and
strengthen enforcement and variance provisions.
The bill generally takes effect July 1, 2008. The boundary provisions take effect two years
after the State map is completed. With respect to new subdivisions, the bill does not apply to
property for which an initial application for subdivision was submitted before January 1,
2008 and for which a final plat is recorded by December 31, 2008.
Fiscal Summary
State Effect: The Critical Area Commission and other affected State agencies could handle
the bills changes with existing resources. The bills enhanced enforcement provisions and
the bills changes to the professional licensing statutes applicable to home improvement
contractors are not anticipated to significantly affect State finances or operations.
Local Effect: Potential increase in local expenditures for program administration and
enforcement. Potential increase in local fine revenues due to the bills enhanced enforcement
provisions. This bill imposes a mandate on a unit of local government. SB 844 / Page 2
Small Business Effect: The Administration has determined that this bill has minimal or no
impact on small business (attached). Legislative Services concurs with this assessment.
Analysis
Bill Summary: The bills major changes are described below.
Commission Authority to Adopt and Amend Regulations
The bill provides explicit authority to the commission to adopt and amend regulations as
necessary and appropriate to administer and enforce the program.
The bill specifies
minimum requirements for the regulations. Among other things, the regulations must
establish comprehensive standards for buffer establishment, maintenance, and long-term
protection.
The regulations must provide flexibility wherever possible in order to
accommodate variations among local programs.
Update Basic Components of State and Local Programs
The bill requires the Department of Natural Resources to develop a new Critical Area
boundary as part of the ongoing State Base Map project. Once complete, copies are to be
provided to each local critical area program. Each local program is required to adopt an
amended map within 24 months.
Local updates are to be completed as part of the
six-year review of the local program that is required under current law. The Critical Area
boundary is to be updated at least once every 12 years.
Local programs must follow the State minimum requirements for all elements of their
programs, whether or not they have formally adopted those requirements into their local
codes.
Local programs must include provisions for bringing specified grandfathered
lands into conformance with the program, and must include procedures that are to be
approved by the commission and that assure that those lands are brought into
conformance with the program to the extent possible.
The bill also authorizes the
commission to amend the criteria for program development and approval.
The bill requires the commission to review a finding of a mapping mistake when a local
program applies for reclassification of Critical Area land based on a mistake. The bill
extends the 90-day clock for the commissions review of program amendments to 130
days. The bill also extends the timeframe for the commission to send notice of receipt of
specified applications. SB 844 / Page 3
The commission must receive written notice of local decisions on project approvals
within 10 working days after the date of issuance. The bill establishes a related reporting
requirement for local jurisdictions.
Enhance Buffer and Water Quality Protection
The bill recasts current limits for impervious surfaces in terms of lot coverage so as
to allow for technological improvements in paving materials while maintaining the
current ceilings on development. Under the bill, lot coverage means the percentage of
a total lot or parcel that is
occupied by a structure, accessory structure, parking area,
driveway, or roadway; or
covered with a paver, walkway, decking, or other manmade
material.
The term includes the total ground area covered or occupied, including
elements protruding from a building such as a stairway, cantilevered deck, chimney, or
overhanging deck or balcony. The term does not include a fence or wall that is less than
one foot in width that has not been constructed with a footer.
In the buffer, lot coverage may not exceed the minimum amount necessary for water-
dependent facilities, except for buffer exemption areas or by variance.
For any new subdivision within the Resource Conservation Area (RCA), the standard
buffer is increased from 100 feet to 300 feet, except under specified conditions.
Current guidelines for locating new Intensely Developed Areas (IDAs) or Limited
Development Areas (LDAs) are modified to become standards. The bill also establishes
a standard for locating new IDAs in a manner that minimizes their impacts to the defined
land uses of the RCA. The bill provides flexibility with respect to the existing 300-foot
buffer that applies when locating a new IDA or LDA in an RCA by providing for
alternative local proposals if approved by the commission.
Shore erosion control projects must be nonstructural except under specified conditions.
Coordinate Growth Allocations with Smart Growth Principles and Other Environmental
Protection and Planning Processes
The bill specifies several factors the commission must consider in reviewing map
amendments or refinements involving the award of growth allocation.
Among other
things, the commission must consider the consistency with the local comprehensive plan,
consistency with the States Smart Growth policies, consistency with various
environmental protection policies and measures, and specified environmental impacts. SB 844 / Page 4
Strengthen Enforcement and Variance Provisions
The bill provides the chair of the commission with the authority to prosecute or sue
violators and to bring an action against a person who clears or cuts trees in violation of
the law or a local program. The bill establishes a three-year statute of limitations for a
criminal prosecution or a suit for a civil penalty.
The bill requires local jurisdictions to consider certain factors when determining the
amount of the penalty authorized under current law (up to $10,000) to be assessed. In
addition to specified items that local jurisdictions are currently authorized to consider, a
local jurisdiction must consider the cost of restoration and mitigation.
The bill requires local programs to include specified administrative enforcement
procedures in accordance with regulations adopted by the commission. Among other
things, the procedures must provide that
each violation constitutes a separate offense;
each day is a separate offense;
for each offense, a person is subject to separate fines,
orders, sanctions, and other penalties;
the local code enforcement personnel must
impose the amount of the penalty;
and payment of all penalties and correction of the
violation must be a condition precedent to the issuance of any permit, approval, variance,
or special exception. The bill provides for local variation if local requirements are at
least as stringent as those required by the regulations adopted by the commission.
The bill provides right-of-entry authority to local authorities to identify or verify
suspected violations, restrain development activities, or issue citations.
The bill
establishes various provisions relating to this authority.
A local authority that identifies a violation is required to take enforcement action.
Appropriate restoration and mitigation must be required, and in some cases, a bond or
other financial security is required.
The commission must notify the Maryland Home Improvement Commission of any
contractor who violates the Critical Area law. The bill also modifies the definition of
home improvement under the professional licensing statutes applicable to home
improvement contractors to include a shore erosion control project and the construction,
improvement, alteration, or replacement of land or any structure in the Critical Area.
The commission must receive written notice from a local jurisdiction regarding its
decision on each variance application within 10 working days after issuance.
The bill establishes several provisions relating to after-the-fact variances. In general, a
development activity commenced without a required permit, approval, variance, or SB 844 / Page 5
special exception is a violation, and a local jurisdiction may not accept an application for