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 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

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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

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Subdivision Process

• What are subdivisions?

• What approvals are necessary for new subdivisions?

• How can citizens affect the process?

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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

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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

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• 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?

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• 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?

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• 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

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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

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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

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Environmental Site Design

• Relatively new approach

• Enforced by Office of Planning and Zoning

• Little opportunity for citizen input

• Can still discuss with County planners

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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

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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

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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

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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

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Critical Area Law • What is the Critical Area

about?

• Where is the Critical Area?

• What are the restrictions in the Critical Area?

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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

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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

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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

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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”)

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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

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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

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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

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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”

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“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

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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

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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

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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

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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

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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

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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”

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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

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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

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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

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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

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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

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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

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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

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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

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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

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

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