ROBERT L. EHRLICH, JR., Governor

Ch. 526

WHEREAS, Also in During that same legislative session, in Chapter 431 of the
Acts of 2002, the General Assembly overruled three then-recent decisions by the
Maryland Court of Appeals that, by undermining the variance standard of
unwarranted hardship, had, in effect, substantially weakened undermined the
authority of local jurisdictions' critical area programs in the denial of to deny
variances; and

WHEREAS, Despite the authority of Chapter 431 and its clear direction that
local jurisdictions are to consider the entire parcel or lot in determining if a variance
applicant would be subject to unwarranted hardship, some courts and administrative
decisionmakers continue to focus on only part of the property, the 100-foot buffer; and

WHEREAS, In its recent decision of Lewis v. Department of Natural Resources,
the Court of Appeals suggested that a prohibition on new development in the buffer,
even when viable alternatives exist elsewhere on the parcel, may constitute a taking
of property without just compensation, and the General Assembly profoundly
disagrees with this suggestion; and

WHEREAS, A recent decision by Moreover, in its Lewis ruling, the Court of
Appeals, Lewis v. Department of Natural Resources, has: rejected the finding of the
General Assembly that the cumulative impact of development is harmful to the
critical area; shifted the burdens of proof and persuasion to local jurisdictions with
respect to the denial of a critical area variance application, thus adding burdensome
requirements and unnecessary expenses to their consideration of variance
applications; and opened the door for citizens to view unpermitted development
activity in the critical area as viable due to the lack of detrimental consequence; and

WHEREAS, The Although the Lewis ruling is holding and its associated dicta
are clearly contrary to the intent of the General Assembly's enactment of both the
Chesapeake Bay Critical Area Protection Act and the Atlantic Coastal Bays
Protection Act, these erroneous understandings have already been cited by lower
courts and administrative decisionmakers as binding precedent or at least as
persuasive authority, and it is the goal of the General Assembly to put an end to this
developing trend as soon as possible; and

WHEREAS, Over the past two decades, despite the vigilant efforts of the State
and local critical area programs and the ongoing focus of the General Assembly, State
agencies, advocacy groups, and private citizens, the health of the Chesapeake Bay has
continued to deteriorate, as has water quality overall, and this fact has been
substantiated in dozens of studies by a variety of government and private interest
groups; and

WHEREAS, It has become readily apparent that local jurisdictions must have
more viable enforcement options available to them if their critical area programs are
to be implemented as intended by the General Assembly; and

WHEREAS, Acting out of this long-standing and consistent commitment to the
preservation of the Chesapeake and Atlantic Coastal Bays and their ecosystems,
which are among Maryland's most precious resources, it is the intent of the General
Assembly that this Act shall overrule the Lewis decision and re-establish critical area

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