S.B. 694
VETOES
Preamble
WHEREAS, With the enactment of the Chesapeake Bay Critical Area
Protection Act in 1984, State lawmakers recognized the major detrimental impact of
development activity along the shoreline of the Chesapeake Bay and its tributaries,
an area that is pivotal to the preservation and protection of water quality and natural
habitat; and
WHEREAS, Two years later, in approving the State Critical Area program and
its criteria, the General Assembly specified the need for a shoreline buffer of at least
100 feet, and this minimum buffer has been an essential critical area component ever
since that time; and
WHEREAS, Also considered fundamental to the critical area criteria since their
inception in the mid-1980s is, under certain circumstances, the allowance of
variances to a local jurisdiction's critical area program; and
WHEREAS, In keeping with an equitable application of critical area
requirements, on average 90% or more of the variances requested each year have
been granted; and
WHEREAS, The General Assembly has always recognized, nevertheless, that
attainment of critical area program goals necessitates a clear authority in support of
local jurisdictions when, in their discretion, a variance must be denied; and
WHEREAS, From the beginning of the critical area program in the mid-1980s
through 1999, courts consistently interpreted the variance standard of unwarranted
hardship in accordance with the intent of the General Assembly, that is, as a
deprivation of the reasonable use of the entire property which is equivalent to an
unnecessary or unreasonable hardship; and
WHEREAS, In 2002, with a particular awareness of the growing danger to
water quality and natural habitat presented by the magnitude of waterfront
development, the General Assembly expanded the application of critical area
protections so as to include the ecologically sensitive Atlantic Coastal Bays and their
tributaries; and
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
decision makers 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,
- 2846 -
|