Maryland Bar Bulletin
Publications : Bar Bulletin : August 2008

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During the 2008 legislative session, the Maryland General Assembly passed sweeping changes to the Chesapeake and Atlantic Coastal Bays Critical Area Law (the “Critical Area Act”). These legislative changes to Maryland’s shoreline protection program erect new hurdles for property owners located within 1,000 feet of mean high tide line of the Chesapeake Bay and the Atlantic Coastal Bays (the “Critical Area”). The very mention of the term “Critical Area” incites strong reactions – to some these words are confusing, to others these words mean protection and conservation of coastal resources, and to many property owners and the development community they mean endless time, expense and aggravation.

The Critical Area Act was passed by the Maryland General Assembly in 1984 to prevent further deterioration of the Chesapeake Bay’s water quality and resources, and to guide development within the Critical Area. The Act’s stated purposes are (1) to foster more sensitive development activity in shoreline areas, and (2) to implement the law on a cooperative basis between the State and local governments. Under the Act, local jurisdictions (counties and municipalities) adopt local Critical Area Programs with the oversight and guidance of the state Critical Area Commission. The Commission consists of 29 members, appointed by the Governor. In 2002, the Critical Area Act was expanded to regulate land surrounding the Atlantic Coastal Bays.

During the 2008 legislative session, in response to a perception that law was ineffective, the General Assembly attempted an ambitious rewrite of portions of the law, resulting in the passage of House Bill 1253. HB 1253 gives the Commission greater authority over the growth allocation process, grants rule-making authority to the Commission, further restricts impervious surface limitations, expands the critical area’s “no build” buffer in agricultural areas and drastically increases the Commission’s enforcement powers and the penalties for violating the law. The legislation also promotes the use of “living shorelines” and directs the Department of Natural Resources to undertake a comprehensive remapping of the entirety of Maryland’s Chesapeake and Coastal Bays shorelines in light of changed physical conditions since the law’s inception 24 years ago.

While the ultimate impacts of HB 1253 will not be known for some time, several issues seem settled. In the immediate term, any type of waterfront development will become more complicated and expensive, and both state and the local governments will more aggressively pursue violations. In the longer term, it appears that the Commission will take a more active role in regulating waterfront development statewide, impinging upon the traditional autonomy of local governments in Maryland over land-use issues.

As noted during the public hearings concerning HB1253, the Commission stressed that it supported the legislation because local governments were either not enforcing the existing law stringently enough or were not adhering to their own local Critical Area programs. The Commission and other supporters further noted that the legislation would bring consistency, efficiency and predictability to the overall management of the Critical Area program.

Part and parcel of the Commission’s quest for consistency, and thus ability to control overall development within the Critical Area, is the Commission’s ability to adopt and promulgate regulations. Until the passage of HB 1253, the Commission did not have authority to develop regulations, and instead developed a series of “policies” to further the goals of the Critical Area Act. These policies or guidelines have served as the Commission’s tools in approving, modifying and, on occasion, rejecting development projects or local program amendments. The new legislation now allows the Commission to adopt regulations in accordance with the Maryland Administrative Procedure Act in the areas of buffers, community piers, public access to water, mapping the Critical Area, water dependent facilities, conservation and protection of resources, development activities and growth allocation, to name some of them.

It is anticipated that the proposed regulations will begin to be circulated for public review during the next six months, and will be finalized and codified in COMAR within 12 to 18 months. This newfound regulatory authority will allow the Commission to take a more formal and likely active role in local land-use decisions. It may also allow greater transparency in what to date has been an extremely confusing and frustrating process for some individuals and entities with a development projects in the Critical Area.

One thing is for sure, the Commission is here to stay and be heard. With the passage of HB 1253, the Commission will have most of the necessary tools to control local land-use decisions. As the Commission begins to exercise its newly-granted rulemaking authority, perhaps it is not too soon to speculate that in future legislative sessions the Commission will be granted status of a full-fledged independent administrative agency directly exercising land-use controls in coastal areas.

Charles R. Schaller, Jr., is a Partner in the Annapolis office of Linowes & Blocher LLP, and Benjamin Starbuck Wechsler is an Associate in that office. Each practices in environmental and land-use law with an emphasis on waterfront development issues.

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Publications : Bar Bulletin: August 2008

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