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General Assembly Passes Overhaul Of Critical Areas Act

House Bill 1253, the first major overhaul of Maryland’s Critical Areas law in a quarter century, was one of the key pieces of legislation coming out of Annapolis this year. The bill received substantial media coverage and, having been amended eight times over the course of the session, it can be difficult to sort out fact from fiction. This Legal Bulletin is designed to give our clients and associates a better handle on how this legislation may affect their interests.

Lot Coverage

Since originally enacted in 1985, Critical Areas has imposed restrictions on the amount of impervious surface permitted on most properties falling within the Critical Area. Generally, properties designated either Limited Development Areas (LDA) or Resource Conservation Areas (RCA) were restricted to 15% impervious surface. The bill retains the 15% limit, but instead of restricting impervious surfaces, the law will now restrict the amount of "Lot Coverage." What is Lot Coverage? Essentially lot coverage is any manmade structure on a property other than a wood mulch path, a narrow fence, or a deck with wide gaps between planks. Pavers, gravel or stone —which previously would have been considered "permeable," and thus not counted toward the 15% limit — now count as "lot coverage."

The lot coverage provisions apply unless you submit: (1) an application for a building permit or a grading permit by October 1, 2008 and the permit is issued by January 1, 2010; or (2) an initial application for development that satisfies all local requirements for submittal by October 1, 2008 and the development plan is approved by July 1, 2010. To maintain one of these exemptions, permits or plans must remain valid, and a detailed Lot Coverage Plan must be submitted and closely followed. For existing projects expanding lot coverage, you must have (1) a building permit by July 1, 2008 (2) construction started and (3) an inspection performed before July 1, 2009.

Growth Allocations

As if obtaining growth allocations were not challenging enough, the bill makes important changes to approval standards. What were previously "guidelines" for local jurisdictions are now "standards," which will further limit local discretion on location and use of growth allocation. The bill also adds a standard requiring that new Intensely Developed Area and LDA be located to minimize "impacts to the defined land uses of the RCA." New factors guiding Commission consideration include the availability of public wastewater systems, whether allocations in excess of 20 acres are in Priority Funding Areas, and whether the project will have "demonstrable economic benefits." The net impact of these changes will be to make it more difficult to get a growth allocation approved unless the project is clearly in an area that the Commission deems acceptable.

Buffer Expansion

One of the most publicized aspects of the bill was the expansion of the 100’ buffer, the most restricted area within the Critical Area. Originally, the bill proposed expanding the buffer from 100’ to 300’, though this was amended to 200’. The key, however, is that the expansion applies only to property that is now and will remain in the Resource Conservation Area. For most developers, this issue will have little impact though individual owners may see impacts.

Other Changes

If we attempted to detail all of the provisions of this 47-page bill, this would be a legal book instead of a bulletin, but the bill also includes: 
· provisions for new regulations on a host of things including buffer management
· a preference for soft shorelines
· revised mapping
· tougher penalties for violations and expanded enforcement authority
· possible license revocation for contractors involved in violations