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How Citizen
Involvement Can
Improve Development
Russ Stevenson
Chesapeake Legal Alliance
Introduction
• Who are we?
• Why should citizens become involved in
development?
o To protect the quality of life and the ...
Overview
• The subdivision process: how it works and
how to get involved
• Special legal tools
o Adequate Public Facilitie...
Subdivision Process
• What are subdivisions?
• What approvals are
necessary for new
subdivisions?
• How can citizens affec...
Subdivision Process
Must include basic aspects of the
development, including:
o Location of storm water management
utiliti...
Subdivision Process
Developer submits final plan
o After often extensive discussion with
OPZ
Developer holds community mee...
• Get on the distribution list for notices related to development by
contacting Community and Constituent Services in the ...
• Monitor progress by communicating with the County so you will
know as soon as the final plan is approved.
• Let the Coun...
• Final approvals can be appealed to the Board of Appeals
o To have standing, you must be “aggrieved”
o “Aggrieved” = inju...
Adequate Public Facilities Law
What Does It Require?
o Roads
o Schools
o Fire protection
o Sanitation,
o Water, and
o Sewe...
Adequate Public Facilities: Process
• Developer must submit studies showing whether existing facilities are
adequate
• Pro...
Environmental Site Design
• Relatively new approach
• Enforced by Office of Planning and
Zoning
• Little opportunity for c...
Environmental Site Design
• Must employ environmental site design
(ESD) to “maximum extent practicable”
• In general, goal...
Special Exceptions and Variances
• Special exceptions are uses
permitted by zoning code when
specified standards are met
o...
Special Exceptions and Variances
• Requests for special exceptions and
variances are heard by the
Administrative Hearing O...
Special Exceptions and Variances:
Appeals
• First to Board of Appeals, then to
Circuit Court
• To appeal must have partici...
Critical Area Law
• What is the Critical Area
about?
• Where is the Critical Area?
• What are the restrictions in
the Crit...
What is the Critical Area About?
• An “overlay” to basic zoning
and planning laws
• During the subdivision process,
develo...
What is the Critical Area About?
• Three categories of land
o Intense Development Area: Already
heavily developed with lim...
Where is the Critical Area?
• In general, the area 1000
feet inland from tidal
waters or tidal wetlands
• Each county resp...
Restrictions in the Critical Area
• Intense Development Area (IDA)
o No special lot coverage restrictions
o Pollution from...
Restrictions in the Critical Area
• Certain activities generally not permitted in Critical Area, e.g.,
o Transportation fa...
Restrictions in the Critical Area
• The “buffer”
o The area 100 feet from the mean high water line of tidal water, tidal
w...
Forest Conservation Act (FCA)
• Intended to protect tree cover,
in particular “priority forests”
• In general applies to p...
Protection of “Priority Forests”
• Priority for areas adjacent to streams or wetlands,
steep or erodible soils or within o...
“Afforestation” or “Reforestation”
• Afforestation: depending on
land use, site must have a
certain percentage of forest
c...
The Process
• Developer submits a “forest
stand delineation plan” as part
of the initial application for
subdivision appro...
The Process
• Developer submits a “forest
conservation plan” during the
approval process
• The plan must describe the
limi...
How to Use the FCA
• Challenge the accuracy of
the Forest Delineation Plan
o (Not a final decision, therefore not
appealab...
Wetlands Permits
• Most activities that would disturb a wetland or its buffer require a permit
from the state
• Most also ...
State: Nontidal Wetlands
• In general, to get permit, applicant must
demonstrate that the project:
o is water-dependent an...
State: Tidal Wetlands Licenses
• Most tidal wetlands below mean high
tide belong to the state
• Cannot dredge or fill in t...
Federal Permits
• CWA § 404 permits issued by Corps of Engineers required for dredging or
filling wetlands that are “water...
Wetlands Permitting Process
• Applicant submits an application.
• MDE issues public notice of an opportunity to submit wri...
How to Use Wetlands Permitting
• Request a public hearing
• Review the application
• Appear at the hearing
and present arg...
Endangered Species Act (ESA)
• A federal statute established to conserve
endangered and threatened species of
fish, wildli...
ESA Consultation
• Federal agencies must ensure that their
action(s) will not jeopardize a protected
species or a species ...
ESA Consultation
• Focuses on “jeopardy” and “adverse modification” and, if the
action is likely to jeopardize a protected...
The “Take” Prohibition
• The ESA prohibits a “take” of a protected species, but
authorizes the US to permit unintentional ...
How to Use the ESA
• Review and, if appropriate, comment on draft Biological
Opinions
• Review and, if appropriate, commen...
How to Use the ESA
• The ESA also authorizes citizens’
suits to:
o stop any “person” from violating the ESA or
the ESA reg...
Thank you for your attention. Now
please go help us make a difference.
42
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How To Control Development_Russ Stevenson presentation

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Here is your opportunity to:
* Find out how to get involved from the beginning to the end of proposed developments
* Learn about the legal requirements for development
* Become aware of legal tools citizens can use to influence decisions

Published in: Environment
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  • DOWNLOAD FULL BOOKS, INTO AVAILABLE FORMAT ......................................................................................................................... ......................................................................................................................... 1.DOWNLOAD FULL. PDF EBOOK here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... 1.DOWNLOAD FULL. EPUB Ebook here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... 1.DOWNLOAD FULL. doc Ebook here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... 1.DOWNLOAD FULL. PDF EBOOK here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... 1.DOWNLOAD FULL. EPUB Ebook here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... 1.DOWNLOAD FULL. doc Ebook here { https://tinyurl.com/y8nn3gmc } ......................................................................................................................... ......................................................................................................................... ......................................................................................................................... .............. Browse by Genre Available eBooks ......................................................................................................................... Art, Biography, Business, Chick Lit, Children's, Christian, Classics, Comics, Contemporary, Cookbooks, Crime, Ebooks, Fantasy, Fiction, Graphic Novels, Historical Fiction, History, Horror, Humor And Comedy, Manga, Memoir, Music, Mystery, Non Fiction, Paranormal, Philosophy, Poetry, Psychology, Religion, Romance, Science, Science Fiction, Self Help, Suspense, Spirituality, Sports, Thriller, Travel, Young Adult,
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How To Control Development_Russ Stevenson presentation

  1. 1. How Citizen Involvement Can Improve Development Russ Stevenson Chesapeake Legal Alliance
  2. 2. Introduction • Who are we? • Why should citizens become involved in development? o To protect the quality of life and the environment o To make sure development follows the law • What is the purpose of this presentation? o Enhance citizen participation o Help you understand the legal requirements for development o Introduce you to some legal tools available to citizens 2
  3. 3. Overview • The subdivision process: how it works and how to get involved • Special legal tools o Adequate Public Facilities Law o Environmental Site Design o Special Exceptions and Variances o Critical Area Law o Forest Conservation Act o Wetlands Permits o Endangered Species Act 3
  4. 4. Subdivision Process • What are subdivisions? • What approvals are necessary for new subdivisions? • How can citizens affect the process? 4
  5. 5. Subdivision Process Must include basic aspects of the development, including: o Location of storm water management utilities o Landscape plan o Forest stand delineation o Bog protection plan o Existing and proposed drainage areas, o Traffic impact study o Equivalent dwelling unit worksheet, o Proof of pre-submission community meeting Developer holds pre-submission community meeting Developer submits "sketch plan" (for subdivision) or "preliminary plan" (for site development approval) to OPZ 5
  6. 6. Subdivision Process Developer submits final plan o After often extensive discussion with OPZ Developer holds community meeting on final plan OPZ issues final approval • Posted on county website within 5 days • This is currently the only public notice 6
  7. 7. • Get on the distribution list for notices related to development by contacting Community and Constituent Services in the County Executive’s office • Attend the initial community meeting and gather information about the project • When a preliminary sketch plan is filed, get a copy from the Office of Planning and Development What Can You Do? 7
  8. 8. • Monitor progress by communicating with the County so you will know as soon as the final plan is approved. • Let the County know of any concerns • Attend the final community meeting to find out what has changed. • If necessary, appeal the final approval decision or any variance granted as part of it within 30 days What Can You Do? 8
  9. 9. • Final approvals can be appealed to the Board of Appeals o To have standing, you must be “aggrieved” o “Aggrieved” = injury different from public at large o Generally, it helps to be the owner of nearby property • Decisions of Board of Appeals may be appealed to the courts o To have standing, you must have participated before Board of Appeals Appeals 9
  10. 10. Adequate Public Facilities Law What Does It Require? o Roads o Schools o Fire protection o Sanitation, o Water, and o Sewer Adequate to support the development 10
  11. 11. Adequate Public Facilities: Process • Developer must submit studies showing whether existing facilities are adequate • Proposed project is reviewed for adequacy by the relevant state or county agencies • If project would cause facilities to fall below minimum standard, developer must undertake or pay for mitigation • Ultimate decision on adequacy is made by the relevant agency, with little opportunity for public involvement • Alleged inadequacy can serve as grounds to appeal approval of project 11
  12. 12. Environmental Site Design • Relatively new approach • Enforced by Office of Planning and Zoning • Little opportunity for citizen input • Can still discuss with County planners 12
  13. 13. Environmental Site Design • Must employ environmental site design (ESD) to “maximum extent practicable” • In general, goal is to reduce “structural practices” to a minimum by maximizing the use of “micro-scale practices” (e.g., rain gardens, grassy swales, etc.) • ESD criteria found in the County Stormwater Manual, which is available online 13
  14. 14. Special Exceptions and Variances • Special exceptions are uses permitted by zoning code when specified standards are met o Standards set forth in zoning code • Variances permit departures from normal requirements of zoning code where justified by “practical difficulties” or “unnecessary hardship” • There are special standards for variances and special exceptions in critical area and bog protection areas 14
  15. 15. Special Exceptions and Variances • Requests for special exceptions and variances are heard by the Administrative Hearing Officer (AHO) • Applicant must give public notice by posting sign and mailing to nearby property owners • Hearing is public – anyone can appear and participate • Can participate in person or by sending letter 15
  16. 16. Special Exceptions and Variances: Appeals • First to Board of Appeals, then to Circuit Court • To appeal must have participated in earlier proceedings AND must be “specially aggrieved” • Standing requirements for environmental claims are not as stringent as for most others • Appeal must be filed within 30 days of final decision 16
  17. 17. Critical Area Law • What is the Critical Area about? • Where is the Critical Area? • What are the restrictions in the Critical Area? 17
  18. 18. What is the Critical Area About? • An “overlay” to basic zoning and planning laws • During the subdivision process, developers must satisfy the County that they are in compliance • Objections based on the Critical Area requirements must be raised with the Office of Planning and Zoning, and if necessary on appeal to the Board of Appeals 18
  19. 19. What is the Critical Area About? • Three categories of land o Intense Development Area: Already heavily developed with limited natural habitat o Limited Development Area: Less- intensively developed o Resource Conservation Area: Not developed • Restrictions vary among these three areas 19
  20. 20. Where is the Critical Area? • In general, the area 1000 feet inland from tidal waters or tidal wetlands • Each county responsible for mapping the Critical Area in the county • A map of the Critical Area is available online 20
  21. 21. Restrictions in the Critical Area • Intense Development Area (IDA) o No special lot coverage restrictions o Pollution from impervious surface must be reduced by 10% o Certain other minor restrictions • Limited Development Area (LDA) o Permitted density is lesser of four houses per acre or permitted density under zoning classification o Only permitted uses those in underlying zoning classification • Resource Conservation Area (RCA) o Very limited uses (mostly residential and agricultural) o Permitted density not more than one house per 20 acres (except for “grandfathered lots”) 21
  22. 22. Restrictions in the Critical Area • Certain activities generally not permitted in Critical Area, e.g., o Transportation facilities and utility transmission facilities o Permanent sludge handling, storage, and disposal facilities o Solid or hazardous waste collection or disposal facilities o Sanitary landfills • Special lot coverage requirements • Special stormwater management requirements 22
  23. 23. Restrictions in the Critical Area • The “buffer” o The area 100 feet from the mean high water line of tidal water, tidal wetlands, or tributary streams (200 feet for subdivisions in Resource Conservation Areas) o Expanded to include any contiguous sensitive areas, including all land within 50 feet of the top of a steep slope • As a general rule, no development within the buffer • Buffer management plans required for any disturbance within buffer resulting from development 23
  24. 24. Forest Conservation Act (FCA) • Intended to protect tree cover, in particular “priority forests” • In general applies to projects over 40,000 square feet (about one acre) o Does not apply to building on single lots • Administered by municipalities with oversight from Department of Natural Resources 24
  25. 25. Protection of “Priority Forests” • Priority for areas adjacent to streams or wetlands, steep or erodible soils or within or adjacent to large contiguous blocks of forest or wildlife corridors. o Must be protected unless developer can demonstrate that the development plan “cannot reasonably be altered” • Also protected are rare or endangered species, those with historical significance, and larger trees o Must be protected unless developer can obtain a variance by showing that “owing to special features of a site or other circumstances, [protecting the trees] would result in unwarranted hardship to an applicant” 25
  26. 26. “Afforestation” or “Reforestation” • Afforestation: depending on land use, site must have a certain percentage of forest cover on it, and if it has beneath that threshold developer must afforest up to it • Reforestation: if there is clearing, trees must be planted to bring site up to specified threshold 26
  27. 27. The Process • Developer submits a “forest stand delineation plan” as part of the initial application for subdivision approval • The plan must include: o Identification of existing forest stand o Location of streams and steep slopes o Soils map 27
  28. 28. The Process • Developer submits a “forest conservation plan” during the approval process • The plan must describe the limits of disturbance for the proposed project and how the existing forested and sensitive areas will be protected during and after development 28
  29. 29. How to Use the FCA • Challenge the accuracy of the Forest Delineation Plan o (Not a final decision, therefore not appealable) • Challenge the adequacy of the Forest Conservation Plan • Use inadequacy of the Forest Conservation Plan as one of the grounds for appeal of an approval of the subdivision 29
  30. 30. Wetlands Permits • Most activities that would disturb a wetland or its buffer require a permit from the state • Most also require a permit from the Army Corps of Engineers under § 404 of the Clean Water Act (CWA) • Applications generally administered jointly 30
  31. 31. State: Nontidal Wetlands • In general, to get permit, applicant must demonstrate that the project: o is water-dependent and requires access to the nontidal wetland as a central element of its basic function, OR o is not water-dependent and there is “no practicable alternative” to disturbing the wetlands • In addition, applicant must demonstrate that the project o will minimize alteration or impairment of the nontidal wetland, o will not cause or contribute to degradation of groundwaters or surface waters, and o is consistent with any comprehensive watershed managed plan 31
  32. 32. State: Tidal Wetlands Licenses • Most tidal wetlands below mean high tide belong to the state • Cannot dredge or fill in them without a license • If anyone requests a hearing on application, decision is made by Board of Public Works on recommendation of MDE • In general a license may be granted if it o “is in the best interest of the State, taking into account the varying ecological, economic, developmental, recreational, and aesthetic values” 32
  33. 33. Federal Permits • CWA § 404 permits issued by Corps of Engineers required for dredging or filling wetlands that are “waters of the United States” • Definition of “waters of the United States” unsettled, but covers all tidal waters, most streams and lakes, and wetlands that connect with them • Corps must determine that the issuance of the permit is in the public interest, taking into account the effect on the environment 33
  34. 34. Wetlands Permitting Process • Applicant submits an application. • MDE issues public notice of an opportunity to submit written comments or request a hearing o Notice sent to all contiguous property owners as well as being published • MDE grants or denies the permit within 45 days of a public hearing or 60 days of receipt of complete application if no hearing • Federal process similar 34
  35. 35. How to Use Wetlands Permitting • Request a public hearing • Review the application • Appear at the hearing and present argument why the project does not meet the standards for a permit • Appeal the permit or license if necessary 35
  36. 36. Endangered Species Act (ESA) • A federal statute established to conserve endangered and threatened species of fish, wildlife, and plants. • Applicable to federal agencies, businesses, and individuals. • Administered by the US Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) • Species designated as endangered or threatened are listed on FWS and NMFS websites. Puritan tiger beetle 36
  37. 37. ESA Consultation • Federal agencies must ensure that their action(s) will not jeopardize a protected species or a species proposed for listing or adversely modify designated critical habitat. • This applies to approvals or permits granted by federal agencies • If an agency action or approval might jeopardize a protected species or adversely modify critical habitat, the agency must “consult” with FWS or NMFS Sensitive Joint Vetch 37
  38. 38. ESA Consultation • Focuses on “jeopardy” and “adverse modification” and, if the action is likely to jeopardize a protected species or cause adverse modification of critical habitat, the development of “reasonable and prudent alternatives” • The FWS/NMFS decision is set forth in a Biological Opinion. • The federal agency must consider the Biological Opinion before taking any action that might cause jeopardy of a protected species or adverse modification of critical habitat 38
  39. 39. The “Take” Prohibition • The ESA prohibits a “take” of a protected species, but authorizes the US to permit unintentional “takes” incidental to otherwise lawful action • Permission must be granted before the “take” occurs and actions that might result in a “take” must be consistent with terms and conditions identified by the FWS/NMFS 39
  40. 40. How to Use the ESA • Review and, if appropriate, comment on draft Biological Opinions • Review and, if appropriate, comment on Habitat Conservation Plans and the related permit application. • Review and, if appropriate, comment on Incidental Take Statements • Attend public hearings/meetings. If appropriate, testify or provide a written statement 40
  41. 41. How to Use the ESA • The ESA also authorizes citizens’ suits to: o stop any “person” from violating the ESA or the ESA regulations o compel FWS or NMFS to enforce the “take” prohibition Swamp Pink 41
  42. 42. Thank you for your attention. Now please go help us make a difference. 42

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