Critical Area Study Raises Local Variance & Enforcement Concerns

The Environmental Law Clinic at the University of Maryland’s Francis King Carey School of Law released a new report on variances and enforcement of Maryland’s critical area law by selected counties. The report criticized the lack of uniformity in the granting of variances at the local level and called for a greater oversight role by the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (CAC). Maryland’s critical areas are those areas within 1,000 feet of the shoreline of the Chesapeake or Atlantic Coastal Bays or their tributaries. Development is restricted within the critical area and severely restricted in the “buffer area” defined as being within 100 feet of the shoreline.

A full list of the report’s recommendations can be found in the report’s Executive Summary:

Variance Criteria

  • The General Assembly, the Commission, and local jurisdictions should consider revising the variance process to focus on recognizing, minimizing, and mitigating impacts.
  • The General Assembly should clarify the unwarranted hardship standard.
  • The General Assembly should strengthen the self-created hardship factor.
  • The General Assembly should adopt a requirement that a variance represents the minimum necessary to afford relief from the Critical Area Program’s development restrictions.

Critical Area Commission

  • Local jurisdictions should defer to the Commission when it opposes a variance.
  • The Commission should promulgate regulations for lot coverage variances.
  • The Commission should promulgate regulations that prohibit pools in the critical area buffer.

Existing Requirements

  • Variance decisions should include a substantive analysis of each variance factor in the state and local critical area program.
  • Local jurisdictions should submit a copy of all variance decisions to the Commission.

Transparency, Accountability, and Reporting

  • The Critical Area Program would benefit from increased transparency
  • The Critical Area Program would benefit from increased accountability and reporting, including uniform recordkeeping of inspection and enforcement information.
  • The Commission should prepare annual reports on the implementation and enforcement of the Critical Area Program.
  • Local jurisdictions should document circumstances in which potential applicants decide not to apply for a variance upon consultation with county staff.

Enforcement

  • Local jurisdictions should be more proactive in enforcing their critical area programs, and ensure that penalties are substantial enough to deter critical area violations.

Education

  • Education courses for local planning commissions and Boards of Appeals should cover case law and legislative history of the Critical Area Program, in addition to the currently required subjects.
  • The Commission and local jurisdictions should better educate property owners about the Critical Area Program and its role in protecting the Chesapeake and Atlantic Coastal Bays.

The Critical Area law and the CAC underwent a major statutory revision in 2008 (HB 1253) that considered and rejected giving the CAC binding authority over local variance decisions. Instead, the CAC is notified of each variance application, can offer its recommendation, and has the authority to intervene as a party if it wishes to challenge a particular variance decision.

A Bay Journal article (2016-12-18) provides further reactions to the report and some of the issues raised in the 2008 legislation:

[The Environmental Law Clinic’s] 136-page look at the Critical Area law, county by county, shows overwhelming approval of variances and scant oversight from the state, as well as a lack of record-keeping to keep track of cases. They looked at data from 2012 to 2014. In six counties with extensive Bay waterfront that were scrutinized, the law clinic team found variance requests granted from 89 to 100 percent of the time. …

Under the O’Malley administration, the Maryland General Assembly passed legislation intended to strengthen enforcement of the law. Among the provisions: contractors working in the Critical Area needed a Home Improvement License, and there were stricter penalties for violators. It also tightened requirements to give counties less discretion over approving development in the Critical Area.

The Maryland Association of Counties supported the 2008 law. One provision of the original bill that was dropped to gain counties’ support would have given the state Critical Area Commission the final authority on variance decisions.

“MACo does not believe the CAC should be able to override local decisions carte blanche,” Leslie Knapp Jr., the association’s legal and policy counsel, said.

At the Bay Journal’s request, Knapp read the 136-page report. He said that the law is not a “one-size-fits-all” approach and that the counties need to have the authority to make their own decisions. Perhaps, though, he said, county planners need better training to “incorporate Critical Area law issues” into those decisions.

Alison Prost, Maryland executive director of the Chesapeake Bay Foundation, said in a press release that the group is worried about further erosions to the law’s provisions. The patterns so far, she said, should “worry every Marylander” who believed the law protected the state’s most sensitive shorelines.

“The report clearly shows a lack of accountability and transparency on the part of local governments,” she said. “It also suggests a lack of leadership on behalf of Maryland and the Critical Area Commission, both of which seem lax in overseeing local government actions.”

Useful Links

Report: Maryland’s Critical Area Protection Program: Variances and Enforcement in Selected Jurisdictions from 2012 to 2014

Environmental Law Clinic Website

CAC Webpage

HB 1253 of 2008