Agenda - Planning Commission - 10/07/2010

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Zoning Bulletin September 10, 2010 !Volume 4 I No. 17 8- 1817.) Effectively, under the Critical Area Law and regulations pro- mulgated under its authority (COMAR 27.01.09.01 C(1)), most devel- opment activities were prohibited on the Island. In 2001, Daryl Wagner, a member of DCW acting on behalf of DCW, demolished an existing cottage and sheds on the Island. He then constructed: a new home; replacement sheds; a gazebo; a boat ramp and concrete driveway; sidewalks; and a pool and deck. The new struc- tures approximately doubled the impervious surface area on the Island. Additionally, Wagner regraded some of the slopes on the Island. Wagner did not obtain any permits or approval for the demolition or construc- tion. He failed to observe requirements of the. Critical Area Law for each of the structures and improvements on the Island. In 2004, county authorities discovered the construction activities and notified DCW of the "numerous violations." DCW then sought variances from the unobserved requirements of the Critical Area Law. The Critical Area Law vested local jurisdictions with the authority to grant a variance to the Critical Area criteria when a "literal enforcement of provisions ... would result in unwarranted hardship to the applicant." In 2005, a county administrative hearing officer granted some of the requested variances. Wagner appealed administratively the denials. The county Board of Appeals (the `Board ") ultimately revised the hearing of- ficer's decision in order to impose certain conditions on the grant of vari- ances. Various organizations challenged the grant of variances. While the challenges to the variances were pending, in 2008, amend- ments Were made by the state legislature to the Critical Area Law. One of the amendments required that "before a local jurisdiction could is- sue a permit, approval, variance, or special exception, the applicant [had to] prepare, and the local jurisdiction [had to] approve, a 'resto- ration or mitigation plan ... to abate the impacts to water quality or natural resources as a result of the violation ....'" (§ 8- 1808(c)(4)(ii).) Based on this amendment, the chair of the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the "Com- mission") filed a legal action in court against DCW and Wagner. The Commission contended that because DCW had not prepared or car- ried out an approved restoration or mitigation plan as required by the. 2008 amendments, the variances granted by the Board were "null and void." The Commission asked the court to order: "`deconstruction,' re- moval, and abatement of the structures and improvements erected by Wagner "; and "Wagner and DCW to restore and provide mitigation in accordance with a mitigation plan to be approved by the [c]ounty." DCW and Wagner (hereinafter, collectively, "DCW ") asked the court to dismiss the action. DCW argued that the 2008 Amendment © 2010 Thomson Reuters 3 65