Article Re Critical Area Law Protection in Annapolis-area

[goose70]

Below is an article that appeared in today's Capitol, an Annapolis-area paper. It concerns a letter written by the chair of the Maryland State Critical Area Commission expressing concern about certain hearing officers in the County's Board of Appeals - a quasi judicial organization charged with, among other things, determining whether to grant variances to environmental land use restrictions.

As many of us know, the Maryland Critical Area Act was intended to provide heightened protections from harmful development within 1,000 feet of the Bay or its tributaries. Unfortunately, the law as originally written was largely ineffective, and even after considerable strengthening over the last several years, much development continues to occur within the critical area. Some have accused the Anne Arundel County Board of Appeals of being openly hostile to state Critical Area Commission witnesses, who in the past have testified at variance hearings in an attempt to ensure that the County does not circumvent the law. Yet, the County Council now seems poised to re-appoint all hearing officers despite the CAC's written, serious concerns that they do no take the critical area law seriously.

Development along the Bay should be a serious concern for anyone who wants decent water quality and fishing. Here's the article:

http://www.hometownannapolis.com/news/gov/2011/01/03-08/Appeals-board-rebuked.html

[goose70]

I agree, Jim, although I also believe that the CAC's experts need to grow a thicker skin and show up to testify, regardless.

Last year I watched one such witness testify. The hearing officer (not a BOA member, but the first-level-officer) was very courteous, competent and an expert on the critical area laws (his late wife is one of the people who came up with the critical area protection idea). While the expert was certainly well-qualified in the field of critical area law, she was not well prepared to answer the specific questions posed by the developer's attorney. As a result, she was bashed pretty well on cross-examination. I was there to testify against the project, too, but I have to admit that the developer's attorney conducted a professional, courteous but very tough and effective cross examination of the CAC's expert. I sent him a short note after the hearing congratulating him on a job well done.

Bottom line: Life at trial (or other hearings) is not for the faint of heart even when everyone acts professionally. One must further prepare for the occasional jerk or incompetent judge/hearing officer, becuse lawyers and professional experts should be able to effectively deal with these issues when they arise. That does not excuse some of the behavior described in the article -- and one would hope that the County Council would more seriously consider the suitability of certain BOA members for the job, having now heard these complaints from a respected state commission. But this does not let the CAC off the hook from testifying in person where such testimony might be more effective than a written letter.

On a broader note, this speaks to a foundational problem of Bay recovery. We all want the other guy (usually the government) to fix its pollution mess, but when we are told that we cannot develop or expand structures on our own property, we go berserk with indignation. Many of these BOA hearing officers are simply reflecting what many (perhaps most) property owners want -- to do what they want, when they want on their own property, damn the consequences to surrounding property and the public's natural aquatic resources.

[uno]

Personally, I'm glad to see the local gov'ts and boards having the final authority. They are the closest to "The People" who are the most affected by these regulations.

[goose70]

Actually, the courts have final authority if a person chooses to appeal the BOA's decision, although they are somewhat limited in the amount of second-guessing that they can do regarding the BOA's factual findings.

The local v state government issue is always a tension in land use decisions. On the one hand, MD's strong tradition of local control over land use issues does as you say....it places a greater nexus between decision makers and property owners. It also allows loacalities to more easily tailor-fit land use decisions to what the local populace wants.

On the other side of the coin, it makes State action on environmental issues much more difficult, has resulted in severe shoreline degregation throughout the watershed and caused a dangerous reliance by local governments on short-term development and real estate revenue, all while kicking the larger expenses this creates down the road. Also, local governments are usually less well equiped to enforce the local rules or hear cases.

I recently was presented with a plan, and cost estimate, of what it would take Anne Arundel County to meet the EPA's new nutrient reduction requirments for Chesapeake clean-up. The cost is in the billions, just for AA County. It is more than the entire County annual budget for everything. In other words, it would require a doubling of County taxes.

But, it needs to be done since this reduction is a requirment, not a request. What this represents is the cost associated with local control of development that our local government ---and we as the citizens directing that government --refused to recognize over the past few decades. When you take that cost and compare it with the revenue and other economic gain from that development, you begin to see that local control of development was not nearly as lucrative in the long term as we were told. And you begin to wonder whether a less directly involved entity, such as the state, would have recognized and addressed this problem earlier (I have my doubts, but who knows?).

P.S.: I should add that this is just the environmental cost, and does not include the infrastructure and personnel costs that the citizens must incur to keep up with the school, road, police, fire, etc. demands. Also, to put things in perspective (which may have interesting corrolaries to the current, international financial mess), impervious surface in Anne Arundel County increased over the past decade at a rate several times that experienced in the past decade, yet the population remained flat. That means that much more forest, field, and swamp land was converted to asphalt, roofs and cement than before, all to accomidate the same number of people. That kind of growth is very costly. Bigger houses, more retail.....you see the results.

[goose70]

I'm all too familiar with the process, since it took us more than 5 yrs. to gain approval for minor construction on our family subdivision in Talbot County for which the original famiy subdivision had been applied for and approved 20 yrs. prior. In the end, after numerous hearings, separate meetings, letters, plans, proposals, permit applications... we were granted permission to build and then given an 18 month window to complete construction before the permits would be revoked and the land reverted back to one parcel vs. three. In our case, we took farmland, primarily cornfields, alternated every few years with soybean, with a heavy nutrient load and replaced it with a home 125 ft. from the water, converting the farmland back to completely natural - original habitat - 0 fertilizer, controlled stormwater management, modern septic system (far from the water). We also planted more than 1000 trees plus other plants and used no pervious surfaces for roads. We significantly reduced the nutrient load, predominantly nitrogen, from heavy to nearly O. I am familiar with the impact of agriculture, both residential and commercial development. We have known the farmers in that area, going back many generations and our land had been farmed since the 1700s, originally tobacco. In the end, the County is quite pleased with the new land usage and enviromental improvements vs.what could have happened with more pressure from developers influencing politicians. Controlling it requires going to war with a pea-shooter against greatly superior forces.

Great story, Jim. That sounds like a neat project and (eventually) a win-win. I'd like to see more creative approaches like that; the problem is that many folks want to maximize the development density. I'd like to see more carrots offered to people who want to do just as you did.

[Southern Grin]

Okay here I go, my 2-cents: FWIW, I don't think the Government should be allowed to tell anyone what to do with THEIR property. That is the problem with Maryland, too much Government. The whole critical laws thing is a joke. The people that live along the water pay a much higher tax:why ? Where does that inflated waterfront tax go ? Does it go into a special fund to upgrade sewage treatment plants ? NO. Does it go to help fund research for the disease resistant oyster crassostrea ariakensis ? NO. Why doesn't the Government take some of that "extra" tax burden and put it to something useful such as buying land along the waterfront and keeping it natural ? As you can tell I have a major issue with the Government telling anyone what they can do with their land !! To me that is way out of bounds and a form of socialism/communism in the name of conservation. It obviously hasn't worked, the Chesapeake Bay is no better off than if we had fewer regs ! The only thing that these permits processes and hearings, meetings do is extract more money from a taxpayer to fill the coffers of the Government. Don't get me wrong, I am not a developer/builder, I want a cleaner Chesapeake Bay, but at the rate we are going, telling people what to do with their land is the wrong approach.

[uno]

Okay here I go, my 2-cents: FWIW, I don't think the Government should be allowed to tell anyone what to do with THEIR property. That is the problem with Maryland, too much Government. The whole critical laws thing is a joke. The people that live along the water pay a much higher tax:why ? Where does that inflated waterfront tax go ? Does it go into a special fund to upgrade sewage treatment plants ? NO. Does it go to help fund research for the disease resistant oyster crassostrea ariakensis ? NO. Why doesn't the Government take some of that "extra" tax burden and put it to something useful such as buying land along the waterfront and keeping it natural ? As you can tell I have a major issue with the Government telling anyone what they can do with their land !! To me that is way out of bounds and a form of socialism/communism in the name of conservation. It obviously hasn't worked, the Chesapeake Bay is no better off than if we had fewer regs ! The only thing that these permits processes and hearings, meetings do is extract more money from a taxpayer to fill the coffers of the Government. Don't get me wrong, I am not a developer/builder, I want a cleaner Chesapeake Bay, but at the rate we are going, telling people what to do with their land is the wrong approach.

Well said.

[Matt]

AA county is notorious for turning the screws to waterfront development. If you live on the water in that county, you can't even cut down a poison ivy vine without getting put on report and fined. Ironically, the county's shoreline is one of the most densely developed in Maryland. Its truly amazing how many communities there are 100% bulkheaded, with nary a tree between the waterfront mcmansions and their million-dollar views. Yet the county maintains one of the most contentious critical area programs in Maryland. IMHO this is mostly nonsense. Good housekeeping simply isn't limited to anything within a foot of the sink. We need to keep the whole house clean. Frankly, critical area rules in Maryland are little more than a progressive tax, with deepest pockets owning the greatest liability. I'm okay with a progressive tax structure, but I'm not okay with rules to save the bay that don't actually save the bay. There's countless mcmansions in the Anne Arundel watershed chewing up virtually their entire parcel with impervious surface who get a free pass to run their stormwater directly to the bay. Why shouldn't these rich kids own a financial responsibility for saving the bay? If you believe Pennsylvania is responsible for polluting the bay, then you should also believe a house in AA County that’s 1001 feet from the water is also part of the problem. It turns out one of the biggest and fastest growing forms of pollution in the bay is stormwater runoff. Make no mistake, all those houses running all that rainwater directly into storm drains ARE part of the problem. I think critical area rules should be restructured such that any development in the watershed should be incentvized to mitigate their footprint like waterfront. If a family of four chooses to live in a palace with twenty bathrooms, they should simply have a commensurate recurring liability for wastewater treatment. And if a brick front taj mahal chooses to divert the rainwater off their 1/4 acre lot, they should pay for that too. We also need to stop pretending that planting agreements are the answer. People need to harvest rainwater, or contain it in self-funded, on site mitigation basins. Trees and bushes are not enough. And if the rules provided tax waiver for people who actually mitigated their runoff, harvested stormwater, invested in grey water recycling etc etc etc, we might actually begin to save the bay.

[goose70]

Regarding private property rights and government regulation, no rights are absolute and for good reason. Do you want freedom of speech to extend to someone blasting a megaphone of propaganda 24/7 outside your home? Do you want freedom of assembly to include me setting up a bike-athon on the beltway at rush hour (that would be interesting)? Do you want your neighbor to have the right to built a mega-trash incenator on his property that blows toxic particulates into your house and destroys your landscaping? If not, then why do you want a neighbor to be able to do other things that significantly degrade your water, your fishery and your health?

Now, regarding some of the other points, I agree. The first one we hear often: the critical area laws seem to make life miserable for the "little guy" who simply wants to expand his deck, build a small shed, add a small addition to the house. At the same time, the "little guy" can look around his river and see that virtually everyone else has developed right down to the water, destroyed the shoreline with bulkheads, etc. Worse yet, he sees that a developer just got approval to mow down large sections of waterfront forest so that it can build a bunch of 10,000sf homes, while the "little guy's" 5-foot deck extension has been denied. Obviously, this is frustrating as hell. So, why does it happen?

Without getting into too much detail, the critical area law essentially allows anyone to develop an undeveloped waterfront parcel (the definition of parcel can become very complex, especially where older lot plats are concerned). It restricts how much (what percent) of the parcel can be covered with hard surfaces (deck, pavement, roof) and allows the government to require mitigation, through plantings and other measures, for vegitiation that is removed in the development process. The larger the lot, the larger the size of the allowed hard surface, since the percentage of hard surface would remain the same.

For structures built/approved prior to the enactment of the critical area law in the 1980s, property owners are not required to tear down, or otherwise mitigate, environmental damage that occured up until the law's enactment. Those properties are grandfathered. However, if those properties are already at or exceed the critical area maximum, then they cannot further expand without demonstrating that a failure to expand would cause them to incur "substantial hardship." This is why the undeveloped lot can have a new house built, while the existing, neighboring house might not be able to add another foot to its existing patio. Of course, that does not change the fact that the new development is likely causing much more environmental impact to the watershed then the small deck expansion would. This is, in my view, the chief irony of the critical area act but property rights make remedying this problem very difficult (although I'm working on it).

Matt, I agree regarding looking at the entire watershed. Focusing not just on the 1000 feet near the shore makes more sense. I also think that we spend too much to preserve farms, not enough to preserve forest, and don't encourage enough creative development of farms (and urban brownfields) in a way that allows development to actually improve the nutrient and sediment flow of a property. In my view, the development industry has the potential to be a significant partner in improving nutrient runoff, but this will require significant rethinking and retooling of both regulators and the industry.

But regarding your poison ivy example, that is simply not accurate. A vegitative management plan is relatively easy to obtain. I've done it many times and have closely watched the process for others....at least in AA County over the past four years.

The above is a very basic, simplified accout of critical area laws that certainly does not cover all of the bases. I'll add more to this discussion when I get a chance later next week. I'm chairing a meeting on Thursday afternoon at the AA County Dept. of Public Works to discuss changes to the critical area law, its enforcement and other related critical area issues. I'm happy to report on that, too. (BTW, I'm a consultant to AA County on this issue, not a policymaker nor do I draw a paycheck from the gov't).

To summarize for now, my view is that the critical area law has been very effective in some locations (see, e.g., Rays Pond on the Severn River), but local governments have applied it unevenly, enforcement has been spotty, the law itself places the most severe restrictions on existing homes while still permitng significant NEW development, and the extreme focus on the critical area has probably taken many policymakers' and environmentalists' attention away from signficant, harmful activities farther inland.

[uncljohn]

Too many people take advantage and mess it up for the rest of us. Thats why regulations are necessary and unfortunately, the small guy gets the shaft in most cases. Like Dobbin Island- I mean who could build a structure on a tiny island w/ no permits and get away with it? Answer- A rich person. Too many people with a distorted sense of entitlement. Like the person who, after Isabel, got a permit to rebuild his shoreline and, wow, accidentally the contractor added an extra 6' to his property out into the waterway! Seriously?!?!?

Entitlement and selfish attitudes ruin it for the rest of us.

[Matt]

But regarding your poison ivy example, that is simply not accurate. A vegitative management plan is relatively easy to obtain. I've done it many times and have closely watched the process for others....at least in AA County over the past four years.



That’s a pretty good summary and thanks for clarifying on my poison ivy example. I should have said, in AA county, if you cut down anything on the shoreline including poison ivy, there's a good chance you will get reported. That county literally requires an application to cut down even poison ivy, in the buffer. Without a plan, you can get reported and fined. Hopefully that’s more accurate. To me it’s a little disturbing too. The county, in my opinion, has created a hostile environment. For what gain? Are the hatfields and mccoys saving the bay? The answer is no. The relative little bit of shoreline vegetation in question has very little to do with the frequent deluge of urban stormwater runoff coming from a little farther uphill. A lot of resources are being squandered on shorline oversight and we still don't have effective controls on storm and wastewater. This kind of oversight, in my opinion, is pennywise pound foolish, and the bay is not being saved.

[scottdd1]

Glad you agree with my property rights Mr. Rockfish supporting my desire to use my land as I chose within the law. My desire right now is to grow grain, which supports my family, sent my kids to college and pays my bills.
I would imagine you are on septic, so your 0 N discharges is a stretch; however I applaud your conscientious manner in which you developed your property. Unfortunately, you and many developers over simplify the equation as you may displace the discharge from a cornfield, which in your estimation is a net polluter - the support roads, shopping, utilities, services will more than erase any gains from development conducted with best practices.
CBF agrees with this stance as well.

[uncljohn]

in AA county, if you cut down anything on the shoreline including poison ivy, there's a good chance you will get reported. That county literally requires an application to cut down even poison ivy, in the buffer.

Just spray that ivy w/ some Round-Up at night and then- walah- "My poison ivy died! Whatever am I to do?"

Seriously though, Maryland NEEDS a poison ivy irradication plan. That stuff is everywhere!