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

1. How Citizen
Involvement Can
Improve Development
Russ Stevenson
Chesapeake Legal Alliance

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. 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. Subdivision Process
• What are subdivisions?
• What approvals are
necessary for new
subdivisions?
• How can citizens affect
the process?
4

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. 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. • 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. • 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. • 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. 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. 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. 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. 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. 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. 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. 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. Critical Area Law
• What is the Critical Area
about?
• Where is the Critical Area?
• What are the restrictions in
the Critical Area?
17

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. 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. 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. 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. 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. 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. 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. 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. “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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. Thank you for your attention. Now
please go help us make a difference.
42