Bay Journal

Rona Kobell is a former writer for the Bay Journal and Baltimore Sun.

Maryland’s shoreline protections keep getting nibbled away

A decade after reform effort, UM study finds lax local oversight of state's Critical Area law regulating waterfront development

  • December 18, 2016
Maryland counties grant a high proportion of waterfront property owners' requests for variances from the state Critical Area law restricting building activity on and near the shoreline, a University of Maryland study has found. (Jane Hawkey/Integration and Application Network, University of Maryland Center for Environmental Science)

Maryland’s Critical Area law was part of a revolutionary suite of environmental protections passed in the wave of enthusiasm to save the Chesapeake Bay that followed the 1983 launch of the federal-state restoration effort. .

The idea was to protect water quality and waterfront wildlife habitat by restricting development within 1,000 feet of the shoreline, and by largely prohibiting any disturbance of the land or vegetation within 100 feet of the water. That amounted to 5,200 miles of shoreline, covering more than 1,000 square miles on the state’s marshy Eastern Shore and its more solid parts in Southern Maryland and the Baltimore suburbs.

While the law has managed to slow large-scale development of the state’s remaining pristine shoreline, the protective shield has been chipped away at bit by bit, as waterfront property owners build gazebos, pools and additions. Most of the time, counties approved requests for variances from the development restrictions to build such structures. Some landowners didn’t even bother to ask, constructing homes, porches, even lighthouses on their private islands with nary a permit.

Counties, lacking the staff and resources to monitor compliance with the law, have generally only acted when neighboring property owners complain. And courts have tended to go easy on violators.

A Chesapeake Bay Foundation study in 2008 revealed that 75 percent of the time, property owners who sought variances got them, and that those who flouted the law were rarely forced to tear down their whole properties. The Sun reported on the study as well as highlighted several interesting cases. You can find that story here (by a couple writers who've since joined the Bay Journal).

Even on Little Island in Anne Arundel County, where developer Daryl Wagner built a house on a Magothy River parcel of land without a single approval, the property was allowed to stand.

Though extreme cases like Wagner’s may be less likely nowadays, the law is hardly robust or uniformly enforced, according to a new study by the University of Maryland’s law clinic. You can find the whole report here.

Their 136-page look at the Critical Area law, county by county, shows overwhelming approval of variances and scant oversight from the state, as well as a lack of record-keeping to keep track of cases. They looked at data from 2012 to 2014. In six counties with extensive Bay waterfront that were scrutinized, the law clinic team found variance requests granted from 89 to 100 percent of the time.

The law clinic authors have various recommendations for tightening up the law. One is to set some boundaries on using the term “unwarranted hardship” as a justification for one’s variance.

“Although there is no bright line rule applicable to all variance requests, it seems clear that the inability to construct a house on one’s property would constitute an unwarranted hardship. In contrast, the inability to construct a pool most likely would not constitute an unwarranted hardship. Other development activities fall somewhere in between those two ends of the spectrum,” they write.

Under the O’Malley administration, the Maryland General Assembly passed legislation intended to strengthen enforcement of the law. Among the provisions: contractors working in the Critical Area needed a Home Improvement License, and there were stricter penalties for violators. It also tightened requirements to give counties less discretion over approving development in the Critical Area.

The Maryland Association of Counties supported the 2008 law. One provision of the original bill that was dropped to gain counties’ support would have given the state Critical Area Commission the final authority on variance decisions.
“MACo does not believe the CAC should be able to override local decisions carte blanche,” Leslie Knapp Jr., the association’s legal and policy counsel, said.

At the Bay Journal’s request, Knapp read the 136-page report. He said that the law is not a “one-size-fits-all” approach and that the counties need to have the authority to make their own decisions. Perhaps, though, he said, county planners need better training to “incorporate Critical Area law issues” into those decisions.

Alison Prost, Maryland executive director of the Chesapeake Bay Foundation, said in a press release that the group is worried about further erosions to the law’s provisions. The patterns so far, she said, should “worry every Marylander” who believed the law protected the state’s most sensitive shorelines.

“The report clearly shows a lack of accountability and transparency on the part of local governments,” she said. “It also suggests a lack of leadership on behalf of Maryland and the Critical Area Commission, both of which seem lax in overseeing local government actions.”

Anne Arundel County, with 530 miles of shoreline and tremendous development pressure, granted 89 percent of the 375 variances requested, which were more than the combined variance requests of the other five counties studied. More than half of Anne Arundel’s requests were for changes to the buffer, according to the report.

When asked about the county’s enforcement resources, spokesman Owen McEvoy said Anne Arundel does not have a dedicated inspector to check on Critical Area compliance. Rather, that’s among the responsibilities assigned to more than 20 field staff that have primary duties to oversee construction grading, code compliance and stormwater management, he said. And though the  county does not have its own boat to patrol the shoreline  for Critical Area violations, the spokesman said inspectors can use the police department’s helicopter and boats if needed..

The law clinic report urges the General Assembly to clarify the standard for granting variances and get counties to apply it uniformly. It recommends counties become more proactive in enforcement and have strong enough fines to deter violations, which could also help fund their inspection programs.

The report also calls for changes in law or regulation to forbid local jurisdictions from allowing pools in the buffer area, and to require local jurisdictions to defer to the state commission when it opposes a variance request.

And the report proposes that the General Assembly tighten up the “hardship factor” in the law to make it more difficult to get a variance after a homeowner has already made the alterations. Anne Arundel, for example, granted two-thirds of requests for after-the-fact variances, according to the report.

But those strengthening recommendations are not a certainty. Maryland Gov. Larry Hogan, a Republican, is looking to make the state more business-friendly.  His Regulatory Reform Commission has recently issued a report calling for eliminating some rules and streamlining others.

The Bay Foundation says it’s concerned about two of the regulatory reform panel’s recommendations involving the Critical Area program. One calls for a memorandum of understanding that would eliminate review by the state Critical Area Commission of certain “classes of projects.”  The panel’s report describes these as “benign development activities, but doesn’t specify. The other recommendation urges “identifying flexible options for meeting critical area requirements.” Essentially, these options would give the state less say over how local governments make  Critical Area land-use decisions.

Asked if his county sought increased "flexibility" in how counties enforce the law, McEvoy said, “We're happy with the current framework, but face obstacles to do our more than 530 miles of shoreline and so much waterfront property.”

We will likely hear more about those plans when the legislative session begins in January.

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About Rona Kobell

Rona Kobell is a former writer for the Bay Journal and Baltimore Sun.

Read more articles by Rona Kobell


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