Building a Green Maryland : Maryland Green Building Lawyer & Attorney : Megan Reuwer : The Law Offices of Megan L. Reuwer, P.A. : MD Green Building, Sustainability

Howard County Council Member Calvin Ball has introduced a bill, co-sponsored by Council Member Courtney Watson, that would give property tax credit relief to homeowners of newly constructed R-2 and R-3 zoned homes in Howard County if those homes are rated LEED Silver, or found to be an equivalent to LEED Silver by the Director of Inspections, Licenses, and Permits.

The bill, CB-55-2011, marks the first time that Howard County has considered a residential property tax credit for green homes.  It could prove to be a major incentive to potential home buyers who are otherwise on the fence about purchasing a "green" certified home, for it provides that the homeowner may receive a 100% property tax credit for the first year, a 75% property tax credit for the second year of ownership, a 50% property tax credit for the third year of ownership, and a 25% property tax credit for the fourth year of ownership.  After four years, the credit will expire, and the homeowner will assume full responsibility for payment of the property tax. [Several news publications have incorrectly read the bill, and have confused the amount of the property tax credit along with the qualifications for attaining the credit.]

It's important to note that the property tax credit runs with the land - thus, if the owner of an R-2 or R-3 home that has received the credit sells his or her home after year 1, the new owner of the green home is eligible to receive the property tax credit for year 2 and beyond (assuming the new owner retains ownership and makes application to the County to receive the credit). An R-2 or R-3 home, as defined by the County, includes single family detached homes, townhomes, and low-rise apartment buildings (that do not have a commercial component).

I think that CB-55-2011, if enacted, could prove to be a win-win situation for both homeowners in Howard County and for the County itself.  The building industry has, as we all know, slowed down considerably during this economic downturn.  If CB-55-2011 can provide this great incentive directly to a homeowner, while simultaneously promoting green construction in the County, then everyone benefits.

There will be a Legislative Public Hearing on CB-55-2011 on Monday, November 21, 2011 at 7:30pm in the Banneker Room, George Howard Building, 3430 Court House Drive, Ellicott City, MD 21043.

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Yesterday, the American Council for an Energy-Efficient Economy (ACEEE) released its 2011 Scorecard which ranked Maryland 10th , taking into account best practices and leadership in energy efficiency policy and program implementation. This is Maryland's first appearance in the top 10, and it is also one of the six most improved states on the 2011 ACEEE Scorecard.

The ACEEE Scorecard provides a comprehensive assessment of policy and programs that improve energy efficiency in our homes, businesses, industry, and transportation sectors. The Scorecard examines six state energy efficiency policy areas and presents these results in six chapters: (1) utility and public benefits programs and policies; (2) transportation policies; (3) building energy codes; (4) combined heat and power; (5) state government initiatives; and (6) appliance efficiency standards. States can earn up to 50 possible points in these six policy areas combined, with the maximum possible points in each area weighted by the magnitude of its potential energy savings impact.

"I am thrilled that Maryland is being recognized as one of the top ten states and one of the most improved states for energy efficiency," said Malcolm Woolf, director of the Maryland Energy Administration. "As a result of Governor O'Malley's vision in establishing one of the nation's most aggressive energy efficiency goals, Marylanders have already saved over 700,000 MWh of electricity and over $91 million dollars since 2009, and our peak demand program has helped us avoid major blackouts during our record-setting summer heat wave.”

Quote source: http://www.aceee.org/press/2011/10/aceee-massachusetts-overtakes-califo

Rosa Cruz, Deputy Director of Communications and Marketing for the Maryland Department of Housing and Community Development, writes that:

“The Department of Housing and Community Development is proud to contribute to this effort by helping thousands of families improve their home's energy efficiency through our Weatherization program and retrofit initiatives. Also, in the last year, we've launched "Be SMART" which is a loan program to assist single family homeowners, rental property owners and small businesses in making energy efficient improvements.”

This is exciting and timely news, Maryland, since October is Energy Awareness month!  Congratulations to all involved in our state’s efforts to become more energy efficient.

*Photo source: http://www.aceee.org/sector/state-policy/scorecard

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On May 11, 2011, HB 972 was signed into law. This is enabling legislation that allows the Department of Housing and Community Development to adopt by regulation the International Green Construction Code and authorizes local jurisdictions to adopt and make local amendments to the International Green Construction Code.  It becomes effective on March 1, 2012.

Will we soon see local jurisdictions begin to adopt the IGCC in its entirety or make amendments to the Code?

• Probably. Maryland is an environmentally progressive state, and many of its jurisdictions have been quick to incorporate some form of green building requirements or incentives into their local laws, therefore, it's easy to anticipate that provisions of the IGCC may be appealing to local governments as they continue to mandate "green."

So what is the IGCC?

• It is intended to provide model code language that is designed to link together concepts of green building design, building performance, and building safety. It is an overlay code that is intended to advance our existing codes, and uses provisions of the International Energy Conservation Codes as a baseline.

Similar to other green building initiatives, the IGCC focuses on things like energy conservation, water efficiency, building owner responsibilities, site impacts, building waste, and materials and resource considerations. Unlike other green building initiatives (LEED being one example), the IGCC, if adopted by your local jurisidiction (in whole, or in part), will become enforceable and mandatory as part of regular code compliance.

Therefore, the provisions that local jurisidictions choose to adopt and/or to amend will be very important for builders and developers. If and when your local jurisdiction introduces legislation to adopt the IGCC, you will want to become involved in that process as early as possible to voice your concerns. The beauty of HB 972 is that it gives local governments the flexibility to pick and choose those provisions of the IGCC that will work based on that locality. We'll take a look at some of the model language from the IGCC in a follow-up post so you'll be aware of some of the important provisions of the code.

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I've had the wonderful opportunity to act as the Project LEED AP for Site Development for Howard County's first 'Green Neighborhood" project, a residential subdivision known as "Locust Chapel." Locust Chapel is located in Ellicott City, Maryland, at the intersection of Ilchester and Beechwood Roads, and the project is being developed by Ellicott City Land Holding, Inc.. This project has been a lot of fun, and will feature some outstanding green amenities. I'm chronicling the site development work over at www.locustchapel.com, and I invite you to take a look if you get a chance.

Howard County's Green Neighborhood program is an exciting initiative designed to reward builders and developers for designing and building a site to green standards.  It is a County- developed certification program that consists of two components - a site development portion, and a homes portion.  At this time, the project has attained its initial designation as a Green Neighborhood for Site Development.

In terms of site development, we are implementing some great green technologies, including:

1. Site design around the natural grade of the site to reduce the amount of disturbance to natural land areas and grading;
2. Infrastructure materials sourced from recycled materials located within 200 miles of site to reduce the amount of transit needed to bring materials to site
3. A construction waste management plan to reduce the amount of trash on-site and recycle materials that can be recycled (including cans and also oil).
4. Reusing any trees that need to be cleared as mulch to line a natural surface trail that will link the community. Benches and educational kiosks will be located along the trail system.
5. 36 homes will have rain barrels sized to treat a 1 inch rain event. Water collected by the barrels can be re-used for gardens and lawn and will help reduce stormwater runoff from the roof of the residence.
6. A community pavilion featuring a green roof and solar panels

This is a just a sampling of the many features of Locust Chapel. Check out www.locustchapel.com for more information!

Feel free to contact me with any questions about Howard County's Green Neighborhood program or about Locust Chapel, specifically. I'm happy to share my experiences with you.

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Quick Synopsis:

Current Maryland law does not specifically address comprehensive green building standards with respect to residential structures; HB 630 changes the status quo to require that the Maryland Department of Housing and Community Development (DHCD) encourage the construction of new "high-performance homes."

Current Green Building Law in Maryland:

•  Maryland High Performance Buildings Act (Ch 124 of 2008): requires that most new or renovated State buildings and new school buildings meet or exceed either USGBC’s LEED criteria for a Silver rating or a comparable rating according to a nationally recognized, accepted, and appropriate standard approved by the Department of Budget and Management and the Department of General Services.
• Maryland High Performance Buildings Act (Ch 527 & 528 of 2010): further required that community college capital projects that receive State funds comply with the State’s High Performance Buildings Act (i.e., achieve at least a LEED Silver rating). Chapters 527 and 528 allow community colleges to receive a waiver from this requirement under the Act’s existing procedures.
• Maryland has also adopted several energy efficiency and conservation related building code standards deemed important to reducing greenhouse gas emissions and lowering energy costs. Chapter 294 of 2009 required DHCD to adopt the International Energy Conservation Code (IECC) and to consider changes to the International Building Code (IBC) to enhance energy conservation and efficiency.

HB 630:

• The bill requires the Maryland Department of Housing and Community Development (DHCD) to encourage the construction of new “high-performance homes.”  A high-performance home is defined as a new residential structure that meets or exceeds the current version of either the Silver rating of the International Code Council’s 700 National Green Building Standards, or the Silver rating of the U.S. Green Building Council’s (USGBC) Leadership in Energy and Environmental Design (LEED) for Homes Rating System.

Analysis:

A couple of thoughts:

1. It’s great that this Bill puts in place the flexibility to choose between LEED and the National Green Building Standard (for previous posts analyzing the differences between LEED and the NGBS, click here and here). Flexibility in choosing what system works best for each individual project is key.
2. Whether this Bill will be implemented with any teeth remains to be seen – what does “encourage” the construction of high-performance homes really mean? To me, this reads as somewhat of a “feel good” bill – it has nice intentions, but no real teeth. This isn’t exactly a criticism: given the economy and the general state of the residential housing market, a new government mandate demanding that builders build homes to a Silver level would not be feasible; therefore, a bill “encouraging” green residential building may be just the thing to keep the green ball rolling while, at the same time, remaining sensitive to current market conditions.

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I want to very briefly announce the formation of my new law practice, The Law Offices of Megan L. Reuwer, P.A. The opening of my own doors is a very exciting milestone in my life and I am thankful for those who have helped to make it possible! If you're ever in the area, I invite you to stop by for a tour of my new space located at 5300 Dorsey Hall Drive, Suite 107, in Ellicott City, Maryland. I look forward to keeping you informed of developing legal issues impacting the building and development industry on this blog, and I look forward to working with you in the future should you ever require real estate related legal services.

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As many of my readers know by now, Governor O'Malley announced in his State of the State address last Thursday his proposal to ban "major" housing developments that use septic systems in an effort to further combat the leakage of pollution into the Chesapeake Bay.  This obviously is a major concern for builders in rural areas as well as those parts of Maryland that are within developing areas but that currently do not have sewer connectivity. Based on some reports and administration officials, this proposal, if enacted, could impact housing developments with as few as 6 homes. 

For an insightful article detailing the reactions of members of the building industry as well as local planning directors and state environmental agencies, check out an article appearing in the Baltimore Sun, authored by Timothy B. Wheeler, titled "Developers distressed over bid to curb septic systems". 

What are your reactions to O'Malley's proposal?

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It's 2011, and that means the final Chesapeake Bay TMDL is now available! In the final TMDL, only New York, Pennsylvania, and West Virginia received allocations that differed from those proposed in their final Phase I WIPs. Furthermore, because EPA determined that many of the jurisdictions’ final Phase I WIPs met all target allocations and/or met EPA’s expectations for reasonable assurance, EPA reduced or eliminated many of the backstop allocations that it had included for those jurisdictions in the September 24, 2010, draft Chesapeake Bay TMDL.

Although Maryland was not "threatened" with any of these backstop allocations as a result of its Phase I WIP, it continues its streak of rising above the crowd and is praised by EPA for establishing the goal of EXCEEDING the interim target allocations. Let's take a closer look...

In its December 29, 2010 Executive Summary, EPA notes that Maryland developed a final Phase I WIP input deck with nitrogen, phosphorus, and sediment controls that more than met the interim target allocations by achieving a 70 percent reduction by 2017, and met the nitrogen, phosphorus, and sediment target allocations by 2020. Maryland’s final Phase I WIP also met EPA’s expectations for providing reasonable assurance that these allocations will be met. As a result, EPA based Maryland’s final allocations entirely on Maryland’s final Phase I WIP.

 Maryland Allocations

Maryland meets its nitrogen, phosphorus, and sediment allocations for each basin in the final TMDL, based on EPA’s quantitative and qualitative evaluation of Maryland’s final Phase I WIP. Maryland submitted proposed modifications to its nitrogen, phosphorus, and sediment allocations in each of its five basins. EPA used the Chesapeake Bay Water Quality Model to confirm that these modifications would still attain applicable WQS. Maryland’s final Phase I WIP input deck resulted in jurisdiction-wide loads that are 0 percent over modified nitrogen, phosphorus, and sediment allocations. Maryland’s Bay TMDL jurisdiction-wide allocations are nitrogen 39.09 mpy; phosphorus 2.72 mpy; and sediment 1218.10 mpy.

 Maryland Agriculture

Maryland’s final Phase I WIP showed significant improvements from its draft Phase I WIP in the agriculture sector, including a strong contingency statement that significantly bolsters EPA’s reasonable assurance that Maryland will meet its agriculture targets by committing to explore new policy measures and mandatory BMP compliance options. For example, these could include a regulatory change that cover crops be planted on the highest risk acres. The Maryland final Phase I WIP also provides more detail on phosphorus management, strengthens contingencies, improves coordination with USDA, develops a plan for increasing staff levels, and selects a subset of strategies to implement by 2017.

EPA will maintain ongoing oversight of Maryland’s agriculture sector. EPA will use its national review of CAFO State Technical Standards in 2011 as an opportunity to identify any deficiencies in the State Technical Standards for protecting water quality. Through its review of State Technical Standards, EPA also will evaluate whether Maryland’s phosphorus management program is sufficient to address phosphorous imbalances and water quality concerns. If deficiencies are identified that are not addressed by Maryland or a CAFO permit does not include other conditions to achieve nitrogen and phosphorus reductions identified in the final Phase I WIP, EPA may object to permits if they are not protective of water quality.

Maryland Urban Stormwater

Maryland’s final Phase I WIP also showed significant improvement in its commitment to urban stormwater management. In the final Phase I WIP, Maryland committed to several actions to ensure reductions, including limits on lawn fertilizer use, use of natural filters such as riparian buffers and stream restoration, and an increase in watershed restoration requirements for MS4s by requiring additional nitrogen, phosphorus, and sediment reductions. The WIP also included a contingency plan whereby if local utilities or other systems of charges are not underway in 2012, Maryland will seek legislation requiring development of local stormwater utilities via a statewide system of fees. The final Phase I WIP also included descriptions of the policy, financing, and tracking mechanisms for implementing urban stormwater retrofit programs.

Maryland also included in its final Phase I WIP specific activities and milestones for urban stormwater program implementation, including the following:

• Renewal of Phase I MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate urban stormwater controls.
• Renewal of Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 20 percent of the impervious surface that does not have adequate urban stormwater controls.
• Renewal of State Highway Administration Phase I and Phase II MS4 permits to require nutrient and sediment reductions equivalent to urban stormwater treatment on 30 percent of the impervious surface that does not have adequate controls.
• Regulation of fertilizer applications on 220,000 acres of commercially managed lawns.

 

While EPA is satisfied overall with Maryland’s demonstration of reasonable assurance, EPA will closely track the nitrogen, phosphorus, and sediment reductions expected to result from these urban stormwater retrofits. EPA will maintain ongoing oversight of Maryland’s urban stormwater sector and will assess how well Maryland is able to track and quantify outcomes from the retrofits projected in its final Phase I WIP.

Maryland Wastewater

Maryland’s final Phase I WIP also showed significant improvement in the wastewater sector. Maryland committed to identify options to structure the Bay Restoration Fund (BRF) fee in order to fully fund Enhanced Nutrient Removal (ENR) upgrades at 67 public major wastewater treatment plants. Options include fees based on consumption, income, or other criteria; and, in 2012, to propose an amendment to the BRF statute to change the BRF fee in order to provide funding needed to complete the upgrades.. Maryland’s final Phase I WIP also included a contingency that if the BRF statute is not amended, “All funding for ENR projects will be reduced from 100 percent grant to provide partial grant funds for each remaining project. Local governments would be responsible for the balance of the necessary funding. State low interest loan funds would be available to assist.”

EPA will maintain ongoing oversight of Maryland’s wastewater sector to ensure that the actions detailed in the final Phase I WIP occur and achieve the expected pollutant reductions.

Maryland Conclusion

EPA applauds Maryland for following up a strong draft with an even stronger final Phase I WIP. Maryland clarifies how its existing programs will implement nitrogen, phosphorus, and sediment reductions ahead of schedule. Both Maryland and EPA are committed to carefully review progress and adopt contingency actions as necessary to achieve and maintain the nitrogen, phosphorus, and sediment reductions.

Maryland planners responsible for the Phase I WIP get a grade "A" from EPA...I just hope that the implementation phase is conducted smoothly and without too many growing pains.

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The draft Chesapeake Bay TMDL -which extends over portions of six states and Washington, DC, an area of 64,000 square miles, a total of 92 watersheds, and 17 million inhabitants -was published on September 24, 2010, and was available for review and public comment through November 8, 2010. The EPA’s stated plan is to produce a final TMDL by the end of 2010. Because the TMDL is being held out as a potential model in the formation of other TMDL's and nutrient reduction programs, and because the Chesapeake Bay TMDL will have a significant impact on the building industry, it's helpful for us to know what is being said about the draft TMDL via the public comments submitted to EPA.

The comment submitted by NAHB, the National Association of Home Builders, makes some excellent points specifically about the TMDL's impact on builders and developers.  Here are a few excepts from its comment dated November 8th, 2010 (the complete version of NAHB's public comment is available here as a pdf on www.regulations.gov):

1. The Chesapeake Bay TMDL's requirements will become a part of the National Pollutant Discharge Elimination System permits issued for controlling the stormwater discharges from construction sites, and will therefore become a part of the stormwater permits issued for homebuilding projects in the Bay watershed.
2. EPA intends to hold states, municipalities, NPDES permit holders, and citizens responsible if the states do not live up to EPA's visions of compliance.
3. The stringency of the new pollutant reduction requirements will significantly strain the already challenged state and local government budgets and may simply be unaffordable for the states and localities covered by the rule.

If local governments and municipalities cannot afford the costs associated with the TMDL - who is going to pay?

NAHB alleges that: The costs of the TMDL will be borne by the construction industry in the form of land, planning, and carrying costs; installation and maintenance of BMPs; and, in affected states that have no pollutant allocation set aside for future growth, the requirement to offset all pollutant loadings from new construction activities. These will ultimately be felt in the market as a combination of higher prices and lower output for the construction industry. As output declines and jobs are lost in the construction industry, other sectors of the economy that buy from or sell to the construction industry will also contract and lose jobs. Builders and developers already are being crippled by the economic downturn and the ability of the home-buying public to absorb significant new costs and the TMDL will further exacerbate these challenges. Further, because compliance costs are incurred prior to the home sales, builders and developers will be required to pay carrying costs, which add additional cost to projects.

-    Page 17 of the NAHB's comment on EPA-R03-OW-2010-0736.

These are troubling allegations for the building industry. It will be interesting to see if EPA responds to these and other points relating to inconsistencies in modeling in the final version of the TMDL.

Interested to see what other industry and agricultural sectors had to say? The complete set of public comments is available here, on the regulations.gov website.

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Based upon deficiencies in several of the draft Phase I Watershed Implementation Plans submitted by Chesapeake Bay watershed states in September, the EPA released its draft TMDL plan on September 24, 2010 with newly incorporated federal backstops. As a quick refresher, remember that the TMDL is designed to ensure that all pollution control measures to fully restore the Bay and its tidal rivers are in place by 2025.  The final TMDL will be established by December 31.

EPA's backstop measures include tightening controls on federally permitted point sources of pollution, such as wastewater treatment plants, large animal agriculture operations, and municipal stormwater systems. Let's take a quick look at all proposed backstops, then jump to those proposed specifically for Maryland.

All Federal Backstops (applied in varying degrees per jurisdiction):

1. Expand coverage of NPDES permits to sources that are currently unregulated;
2. Increase oversight of state-issued NPDES permits;
3. Require additional pollution reductions from point sources such as wastewater treatment plants;
4. Increase federal enforcement and compliance in the watershed;
5. Prohibit new or expanded pollution discharges;
6. Redirect EPA grants; and
7. Revise water quality standards to better protect local and downstream waters

In the draft TMDL, EPA proposes more extensive backstop allocations for Pennsylvania, Virginia, New York, Delaware and West Virginia - only minor changes were made to the plans for Maryland and the District of Columbia.

Federal Backstops for Maryland:

1. Maryland's Phase I WIP Analysis: EPA found some deficiencies - but found that it meets overall statewide allocations for nitrogen, phosphorus and sediment, with several individual river basins exceeding the allocations for nitrogen, phosphorus, or sediment.
2. Maryland's Federal Backstop Allocation: EPA asserts that it made "minor level" backstop allocations for Maryland's non-point source load allocations to meet nitrogen, phosphorus, and sediment allocations in each major basin within Maryland. EPA believes that the TMDL does not institute changes to point source wasteload allocations that would affect NPDES permit conditions.

While it is somewhat reassuring to read that EPA believes that the NPDES permit program would not require further federal oversight in Maryland, this is by no means a guarantee. If no new NPDES permits can be issued, then this would stymie the building industry.

The release of the draft TMDL begins a 45-day public comment period that will include public meetings in the watershed states. Maryland's scheduled meetings are as follows:

• Oct. 12, 2-4 p.m., The Easton Club, 28449 Clubhouse Drive, Easton, MD
• Oct. 13, 2-4 p.m. Sheraton Annapolis, Annapolis, MD
• Oct. 14, 2-4 p.m. Hagerstown Hotel and Convention Center, Hagerstown, MD

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State Phase I Watershed Implementation Plans (WIPs) for the Chesapeake Bay TMDL were due yesterday, September 1, to EPA for its review and approval.  Some states did not meet that deadline, but all WIPs should be done within the next few days and forwarded to EPA.  The WIPs will be available on this website.  As of  today, the WIPs that are available on the website are for Delaware; Washington, DC; West Virginia; Pennsylvania; New York; and Maryland.  I've linked to Maryland’s DRAFT WIP via the "Useful Links" section (below).  Virginia has notified EPA that it will have its WIP done by end of this week.   

Maryland's draft Plan was developed by the Maryland Departments of the Environment, Natural Resources, Agriculture, and Planning, using the State’s BayStat process, to comply with the new EPA Chesapeake Bay Total Daily Maximum Load (TMDL) requirements due by the end of this year. The agencies are now seeking public comment and input on the draft Plan and will hold four regional meetings over the next five weeks.

Useful Links:

• Maryland's Draft Phase I WIP - Executive Summary
• Maryland's Draft Phase I WIP
• Transmittal Letter to EPA
• Public Meetings - Save the Dates

The WIPs are to be finalized in November of this year and will be a part of the Chesapeake Bay TMDL package to be published on September 24, 2010.  

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Here are some upcoming meetings on Maryland's Phase I Watershed Implementation Plans and the Chesapeake Bay TMDL to add to your Outlook calendar - - -

(The picture at left admittedly is not directly on point...but my lab, Emerson, has been begging to be featured on the blog- and he absolutely loves water!)

The following meetings are hosted by Maryland’s Tributary Teams:

September 27, 2010

5:30-6:30  Elected Officials

7:00 to 9:00  Public

Host- Upper Potomac Trib Team

South Hagerstown High School Auditorium,

1101 South Potomac Street, Hagerstown, MD 21740

September 30, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts: Choptank, Upper & Lower Eastern Shore Trib Teams

Talbot County Community Center, Wye Oak Room

10028 Ocean Gateway (US Rte 50) Easton, MD  21601

October 4, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts- Upper Western Shore & Patapsco/Back Trib Teams

MD State Fair Grounds, DNR Bldg/State Fair Museum

2200 York Road, Timonium, 21093 (Use the York Road gate)

October 6, 2010

5:00-6:00  Elected Officials

6:30 to 8:30 Public

Hosts- Patuxent River Commission, Middle Potomac,

Lower Potomac & Lower Western Shore Trib Teams

Prince George’s Soil Conservation District   

5301 Marlboro Race Track Road

Upper Marlboro, 20772  (301) 574-5162 X3

Environmental Protection Agency (EPA) Public Meetings on the Chesapeake Bay TMDL:

Tuesday October 12

2:00-4:00pm

The Easton Club

28449 Clubhouse Dr

Easton, MD

Wednesday October 13

2:00-4:00pm

Sheraton Annapolis

173 Jennifer Road

Annapolis, MD

Thursday October 14

2:00-4:00pm

Hagerstown Hotel & Convention Center,

1901 Dual Hwy

 Hagerstown, MD

(Meeting and Webinar) 

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*This post is guest authored by Jessica Snow Barnes, a land use, zoning, and environmental law associate in O'Malley, Miles, Nylen & Gilmore, P.A.'s Charles County office in La Plata, Maryland.*

Environmental laws and regulations promulgated by the Maryland General Assembly and State administrative agencies seek to protect the State’s natural resources by imposing restrictions on development-related activities. One area of law that has developed over the years is the Chesapeake Bay Critical Area Protection Program (the “Critical Area Act”), which was first adopted by the Maryland General Assembly in 1984 (Natural Resources Article, § 8-1801, et seq.). Two cases handed down from the Maryland Court of Appeals on July 22, 2010, have implications regarding the Critical Area Act and its interpretations by local jurisdictions charged with the responsibility of local enforcement.

1.        Margaret McHale v. DCW Dutchship Island LLC, et al.

 Since its inception, the Critical Area Program has been revised and expanded. Perhaps one of the most notable amendments to the Program occurred with the passage of Maryland House Bill 1253 in 2008 (the “2008 Amendments”), which included increased buffer standards, increased restrictions on new development by broadening the definition of those items that could be considered as impervious surfaces (i.e., lot coverage), and increased penalties for violation of the Critical Area Act such as those violations that occurred on Little Dobbins Island.   

On July 22, 2010, in an opinion filed by Judge Harrell in the case of Margaret McHale v. DCW Dutchship Island, LLC, et al., the Maryland Court of Appeals was asked to consider whether a provision in the 2008 Amendments could be fairly applied to a variance application filed by an applicant as a result of prior violations to the local jurisdiction’s Critical Area Program. At issue in McHale was a provision within the 2008 Amendments that requires an applicant to have an approved restoration or mitigation plan prior to obtaining a variance.

The Court of Appeals concluded that the provision at issue in the case could not be applied retrospectively to the variance application submitted on behalf of DCW Dutchship, which was required as the result of a series of Critical Area violations that were discovered on Little Dobbins Island in 2004. All statutes are presumed to operate prospectively.

“This presumption” Judge Harrell wrote, “is based on the ‘fundamental principle…that retroactive application of new laws is usually unfair” because doing so “increases the potential for interference with persons’ substantive rights.”

Citing the uncodified language in Section 5 of HB 1253, the Court of Appeals concluded that the challenged provision in the 2008 Amendments (requiring an approved restoration or mitigation plan prior to the issuance of a variance) could not be applied retroactively. The pertinent part of Section 5 reads as follows: “…for the purpose of a criminal prosecution under § 8-1815(a)(2)(ii) of the Natural Resources Article…this Act shall be construed prospectively to apply only to a Critical Area violation alleged to have arisen out of an act or omission that originated on or after July 1, 2008, and this Act may not be applied or interpreted to have any effect on or application to an alleged critical area violation that originated before the effective date of this Act (emphasis added)."

2.          Sara Caldes, et al., v. Elm Street Development, et al.

At issue in Caldes, was a 2006 Order entered by the Anne Arundel County Board of Appeals granting certain requested variances for development, as required by the local zoning ordinance. There were several issues that the Court of Appeals addressed in its opinion, however, this discussion is limited to the issues pertaining to the Critical Area. One of the first issues addressed by the Court of Appeals was the apparent conflict between the “base” or underlying land use classification and the “overlay” zone applied to the Elm Street Property. The Elm Street Property is located in an R-1 Residential District, which mandates a minimum lot size of 40,000 square feet (less than one acre). The property is also located within the Critical Area Overlay Zone (specifically the Resource Conservation Area), which dictates a maximum permitted density of not more than one dwelling unit per 20 acres.The Court concluded that Anne Arundel County’s “Antiquated Lots Law” (now the “Lot Merger Law) was a “grandfathering” provision permitting the Elm Street property to be developed with more than one dwelling per 20 acres. 

Another legal issue peculiar to land use and zoning cases presented in Caldes: the notion of a “variance” and the sufficiency of an application for a local zoning officer to issue the variance as requested. In affirming the variances approved by the Anne Arundel County Board of Appeals, the Maryland Court of Appeals noted the

“burden on an applicant seeking a variance is very high” because the Critical Area Program requires the local jurisdiction to “presume that the specific development activity in the critical area…does not conform with the general purpose and intent” of the Critical Area Act.

The approach taken by the Court of Appeals as stated in Judge Murphy’s opinion is instructive: an appellate court gives “considerable weight” to an administrative agency’s (Anne Arundel County Board of Appeals) “interpretation and application of the statute which the agency administers.” The Court’s deference to these principles is demonstrated by the fact that large portions of the Board of Appeals’ opinion and statements by the Critical Area Commission were quoted in Judge Murphy’s opinion.

Conclusion:  The Critical Area Act and local Critical Area Programs adopted by local jurisdictions such as Anne Arundel County (the location of both Little Dobbins Island and the Elm Street property) continues to be a developing area of Maryland law. The local jurisdictions (and the property owners in each of the respective areas) rely heavily upon the Critical Area Act itself, COMAR, and the local Critical Area programs that have been approved by the Critical Area Commission to guide development. While these opinions appear quite specific to the local jurisdiction (Anne Arundel County), they can be applied across the State. Environmental protection is an issue of local and national concern. While the decisions that have been handed down in these two cases are final, the degree of mitigation and restoration required under the Critical Area Act and the constraints placed upon private property rights in Maryland is not.   

If you have questions on this article or on land use, zoning and environmental law in general, Jessica can be reached at jbarnes@omng.com.

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Last Thursday, July 15th, I attended the last scheduled Bay Watershed Implementation Plan Regional Exchange, held at the Prince George's County Soil Conservation District Office in Upper Marlboro...and let me tell you - The. Room. Was. PACKED! There's obviously a lot of interest in how this plan is going to be created, implemented, and then monitored, and rightly so! The plan will have a huge impact on how we address nutrient and sediment deposits in the Bay watershed.

The purpose of this meeting was twofold: first, for the primary host, Maryland's Department of Natural Resources, to explain a bit about the eventual phases of the Plan (there are three) and the basic tasks that they've been charged with addressing in the plan; and second, for input from citizens on how to tackle the challenges of meeting the interrelated goals established by the TMDL and by the President's Executive Order (see this post for general information on the WIP, this post for information on the recently announced TMDL allocations for Maryland, and this post for information on the President's Executive Order on the Chesapeake Bay).

Highlights from Catherine Shanks (Department of Natural Resources) informative presentation include the following:

• The state can and will allocate loads to sectors and sources - this means eventually allocating nutrient and sediment maximums per County (probably in Phase II of the WIP). (My editorial: important questions here include: What branch of the County government will be responsible for implementing, tracking, and monitoring the plan? How will land use designations be correlated amongst counties in determining the allocations? How will allocations within the County be doled out? What happens when maximum capacity is reached?)
• Accounting for growth will be a major component of the plan. (My editorial: this could have a profound impact on the building industry).
• The WIP's interaction with other water management plans is still something that is on the table - how will the plan interact with MS4 programs?
• DNR is considering implementing water policies at the state level as a possibility to address growth issues, including zoning and transportation factors.
• Anne Arundel and Caroline counties are currently in pilot programs at the county level, and the results of these programs will likely be attached to the Phase I WIP as an addendum.
• Phase I of the WIP will be available for public comments starting on September 24 and concluding on November 8, 2010.

The public pulse - here are a few comments and ideas generated at the meeting:

• The amount of nutrient and sediment flowing into the watersheds near already developed/urban areas will likely be higher than in less developed, rural areas. How are we going to prevent the unintended consequence of pushing development into more rural areas that have less nutrient and sediment impact (i.e., will the plan create higher allocations at urban centers to encourage infill and redevelopment?)
• MDE should raise its permit fees to help pay for inspection and monitoring (My editorial: this is of concern - the concept of increasing already high fees simply because these permitees are easy targets doesn't gel).
• There should be a critical area type program created for ALL the waters of the state
• Make those responsible for the nutrient deposits responsible for the cost of implementing the plan (My editorial: this could be very fair for the industry - many studies and reports show that farming activities are the highest producers of nutrient and sediment deposits in the watershed).
• The state should create legislation mandating a tax/fee on impervious surface area created.

As you can see, some of the comments made, if taken into consideration in the WIP, will be very unfavorable towards the industry. It's going to be important to comment during the public review phase (September 24- November 8, 2010) to get the industry's voice heard.  There were a few representatives of the industry present at the meeting who spoke quite eloquently and appealed to the plan makers on the concept of growth management, but the meeting was primarily attended by citizen environmental activists and environmental groups.

If you're interested in reading comments made at other regional exchange meetings, MDE has posted each meeting in PowerPoint format on its website, available here.

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