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Updates to the Critical Area Law*

On April 24, 2008, Governor Martin O’Malley signed HB 1253 into law. HB 1253 was broad in scope; not only did it amend certain portions of the Critical Area Law (as codified in the Natural Resources Article in the Annotated Code of Maryland), but it also amended various portions of the Business Regulation Article (with regard to regulatory authority of the Home Builder Registration Unit and the Department of Natural Resources).

Understanding the basics of the Critical Area Law:

The Critical Area consists of property that is located within 1,000 feet of tidal waters or the edge of tidal wetlands, including the Chesapeake Bay and its tributaries. The Critical Area Buffer (CAB) is the portion of property that is located within 100 feet (landward) from the Mean High Water Line of tidal waters or the edge of tidal wetlands and the top of the bank of tributary streams. The expanded CAB is at least 100 feet from tidal waters, tidal wetlands and the top of tributary streams. The CAB is extended for hydric soils and streams (an additional 100 feet). The CAB is extended for highly-erodible soils (edge of the soil).

The Maryland General Assembly adopted the State Critical Area Law. The Critical Area Commission promulgates regulations to administer the law. The Critical Area Law requires local jurisdictions to adopt local Critical Area Programs (subject to the approval of the Critical Area Commission). Local jurisdictions are primarily responsible for enforcement of the local program.

How HB 1253 changed the Critical Area Law:

Terminology used to define regulated activity: impervious surface vs. lot coverage. In the past, the Critical Area Law restricted the amount of impervious surface on a lot. Impervious surface was defined as any “man-made surface that is resistant to the penetration of water,” and included materials such as concrete, brick paving, roofs, and heavily used gravel roads and parking areas. HB 1253 deleted references to “impervious surface” and now the Critical Area Law restricts the amount of permissible “lot coverage.” Lot coverage is the “proportion of a total lot/parcel that is: (a) occupied by a structure, accessory structure, parking area, driveway, walkway, or roadway; or (b) covered by gravel, stone, shell, impermeable decking, a paver, permeable pavement, or any manmade material.” Exceptions to lot coverage include: (a) Fencing/walls without a footer that is less than 1 foot wide; (b) walkway in the buffer or expanded buffer, including a stairway that provides direct access to a pier; (c) wood mulch pathway; or (d) decks that contain gaps to allow water to pass freely.

As a general rule, lot coverage is limited to 15% of a parcel/lot. However, there are two exceptions to that rule. First, lots created prior to December 1, 1985 that are one-half acre or less in size, the lot coverage limitation is 25% of the lot. Second, where lots have been created after December 1, 1985, lot coverage for the entire subdivision must not exceed 15%, but there is no “cap” on the amount of lot coverage on a single parcel/lot. For lots that were created (recorded) prior to the adoption of the Critical Area Law, the local jurisdiction may provide for exceptions if certain conditions have been met

Restrictions within the Resource Conservation Area (RCA): HB 1253 established a 200-foot-wide buffer from tidal waters and wetlands and 100-foot-wide buffer from a tributary stream

Reclamation activities: Shoreline stabilization efforts to preserve the natural environment are limited to non-structural means (e.g. marsh creation) unless the property owner demonstrates to MDE that the non-structural stabilization measures are not feasible (e.g. area of excessive erosion, heavy tides).

Violations of Critical Area Law, local program, etc.: Violations of the Critical Area Law are classified as misdemeanors, which are subject to a fine (not to exceed $10,000) or imprisonment (not exceeding 90 days) or both.

Grandfathering Provisions:

HB 1253 included “grandfathering” provisions to accommodate development projects that were under design or in various stages of construction (at the time that HB 1253 became effective). Therefore, there were exceptions to the application of the new lot coverage limitations (subject to additional requirements). HB 1253 would not apply to: (a) building permits issued before July 1, 2008, provided that construction was completed by July 1, 2009; (b) an application for building/grading permit was filed by October 1, 2008, and the permit was issued by July 1, 2010; and (c) an application for development filed by October 1, 2008, and the development plan was approved by July 1, 2010.

* As presented to the Commercial/Industrial Committee of the Southern Maryland Association of Realtors (SMAR) on September 23, 2010.

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