*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 firstname.lastname@example.org.