how to control development_russ stevenson presentation
TRANSCRIPT
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How Citizen Involvement Can
Improve Development Russ Stevenson
Chesapeake Legal Alliance
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Introduction • Who are we?
• Why should citizens become involved in development? o To protect the quality of life and the environment
o To make sure development follows the law
• What is the purpose of this presentation? o Enhance citizen participation
o Help you understand the legal requirements for development
o Introduce you to some legal tools available to citizens
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Overview • The subdivision process: how it works and
how to get involved
• Special legal tools o Adequate Public Facilities Law
o Environmental Site Design
o Special Exceptions and Variances
o Critical Area Law
o Forest Conservation Act
o Wetlands Permits
o Endangered Species Act
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Subdivision Process
• What are subdivisions?
• What approvals are necessary for new subdivisions?
• How can citizens affect the process?
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Subdivision Process
Must include basic aspects of the development, including:
o Location of storm water management utilities
o Landscape plan
o Forest stand delineation
o Bog protection plan
o Existing and proposed drainage areas,
o Traffic impact study
o Equivalent dwelling unit worksheet,
o Proof of pre-submission community meeting
Developer holds pre-submission community meeting
Developer submits "sketch plan" (for subdivision) or "preliminary plan" (for site development approval) to OPZ
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Subdivision Process
Developer submits final plan o After often extensive discussion with
OPZ
Developer holds community meeting on final plan
OPZ issues final approval • Posted on county website within 5 days
• This is currently the only public notice
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• Get on the distribution list for notices related to development by contacting Community and Constituent Services in the County Executive’s office
• Attend the initial community meeting and gather information about the project
• When a preliminary sketch plan is filed, get a copy from the Office of Planning and Development
What Can You Do?
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• Monitor progress by communicating with the County so you will know as soon as the final plan is approved.
• Let the County know of any concerns
• Attend the final community meeting to find out what has changed.
• If necessary, appeal the final approval decision or any variance granted as part of it within 30 days
What Can You Do?
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• Final approvals can be appealed to the Board of Appeals o To have standing, you must be “aggrieved”
o “Aggrieved” = injury different from public at large
o Generally, it helps to be the owner of nearby property
• Decisions of Board of Appeals may be appealed to the courts o To have standing, you must have participated before Board of Appeals
Appeals
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Adequate Public Facilities Law What Does It Require?
o Roads
o Schools
o Fire protection
o Sanitation,
o Water, and
o Sewer
Adequate to support the
development
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Adequate Public Facilities: Process • Developer must submit studies showing whether existing facilities are
adequate
• Proposed project is reviewed for adequacy by the relevant state or county agencies
• If project would cause facilities to fall below minimum standard, developer must undertake or pay for mitigation
• Ultimate decision on adequacy is made by the relevant agency, with little opportunity for public involvement
• Alleged inadequacy can serve as grounds to appeal approval of project
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Environmental Site Design
• Relatively new approach
• Enforced by Office of Planning and Zoning
• Little opportunity for citizen input
• Can still discuss with County planners
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Environmental Site Design • Must employ environmental site design
(ESD) to “maximum extent practicable”
• In general, goal is to reduce “structural practices” to a minimum by maximizing the use of “micro-scale practices” (e.g., rain gardens, grassy swales, etc.)
• ESD criteria found in the County Stormwater Manual, which is available online
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Special Exceptions and Variances • Special exceptions are uses
permitted by zoning code when specified standards are met o Standards set forth in zoning code
• Variances permit departures from normal requirements of zoning code where justified by “practical difficulties” or “unnecessary hardship”
• There are special standards for variances and special exceptions in critical area and bog protection areas
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Special Exceptions and Variances • Requests for special exceptions and
variances are heard by the Administrative Hearing Officer (AHO)
• Applicant must give public notice by posting sign and mailing to nearby property owners
• Hearing is public – anyone can appear and participate
• Can participate in person or by sending letter
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Special Exceptions and Variances: Appeals
• First to Board of Appeals, then to Circuit Court
• To appeal must have participated in earlier proceedings AND must be “specially aggrieved”
• Standing requirements for environmental claims are not as stringent as for most others
• Appeal must be filed within 30 days of final decision
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Critical Area Law • What is the Critical Area
about?
• Where is the Critical Area?
• What are the restrictions in the Critical Area?
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What is the Critical Area About? • An “overlay” to basic zoning
and planning laws
• During the subdivision process, developers must satisfy the County that they are in compliance
• Objections based on the Critical Area requirements must be raised with the Office of Planning and Zoning, and if necessary on appeal to the Board of Appeals
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What is the Critical Area About? • Three categories of land
o Intense Development Area: Already heavily developed with limited natural habitat
o Limited Development Area: Less-intensively developed
o Resource Conservation Area: Not developed
• Restrictions vary among these three areas
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Where is the Critical Area?
• In general, the area 1000 feet inland from tidal waters or tidal wetlands
• Each county responsible for mapping the Critical Area in the county
• A map of the Critical Area is available online
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Restrictions in the Critical Area • Intense Development Area (IDA)
o No special lot coverage restrictions
o Pollution from impervious surface must be reduced by 10%
o Certain other minor restrictions
• Limited Development Area (LDA) o Permitted density is lesser of four houses per acre or permitted density under zoning
classification
o Only permitted uses those in underlying zoning classification
• Resource Conservation Area (RCA) o Very limited uses (mostly residential and agricultural)
o Permitted density not more than one house per 20 acres (except for “grandfathered lots”)
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Restrictions in the Critical Area • Certain activities generally not permitted in Critical Area, e.g.,
o Transportation facilities and utility transmission facilities
o Permanent sludge handling, storage, and disposal facilities
o Solid or hazardous waste collection or disposal facilities
o Sanitary landfills
• Special lot coverage requirements
• Special stormwater management requirements
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Restrictions in the Critical Area • The “buffer”
o The area 100 feet from the mean high water line of tidal water, tidal wetlands, or tributary streams (200 feet for subdivisions in Resource Conservation Areas)
o Expanded to include any contiguous sensitive areas, including all land within 50 feet of the top of a steep slope
• As a general rule, no development within the buffer
• Buffer management plans required for any disturbance within buffer resulting from development
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Forest Conservation Act (FCA) • Intended to protect tree cover,
in particular “priority forests”
• In general applies to projects over 40,000 square feet (about one acre) o Does not apply to building on single
lots
• Administered by municipalities with oversight from Department of Natural Resources
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Protection of “Priority Forests” • Priority for areas adjacent to streams or wetlands,
steep or erodible soils or within or adjacent to large contiguous blocks of forest or wildlife corridors. o Must be protected unless developer can demonstrate that the
development plan “cannot reasonably be altered”
• Also protected are rare or endangered species, those with historical significance, and larger trees o Must be protected unless developer can obtain a variance by showing
that “owing to special features of a site or other circumstances, [protecting the trees] would result in unwarranted hardship to an applicant”
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“Afforestation” or “Reforestation” • Afforestation: depending on
land use, site must have a certain percentage of forest cover on it, and if it has beneath that threshold developer must afforest up to it
• Reforestation: if there is clearing, trees must be planted to bring site up to specified threshold
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The Process • Developer submits a “forest
stand delineation plan” as part of the initial application for subdivision approval
• The plan must include: o Identification of existing forest stand
o Location of streams and steep slopes
o Soils map
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The Process • Developer submits a “forest
conservation plan” during the approval process
• The plan must describe the limits of disturbance for the proposed project and how the existing forested and sensitive areas will be protected during and after development
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How to Use the FCA • Challenge the accuracy of
the Forest Delineation Plan o (Not a final decision, therefore not
appealable)
• Challenge the adequacy of the Forest Conservation Plan
• Use inadequacy of the Forest Conservation Plan as one of the grounds for appeal of an approval of the subdivision
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Wetlands Permits • Most activities that would disturb a wetland or its buffer require a permit
from the state
• Most also require a permit from the Army Corps of Engineers under § 404 of the Clean Water Act (CWA)
• Applications generally administered jointly
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State: Nontidal Wetlands • In general, to get permit, applicant must
demonstrate that the project: o is water-dependent and requires access to the nontidal wetland as a
central element of its basic function, OR
o is not water-dependent and there is “no practicable alternative” to disturbing the wetlands
• In addition, applicant must demonstrate that the project o will minimize alteration or impairment of the nontidal wetland,
o will not cause or contribute to degradation of groundwaters or surface waters, and
o is consistent with any comprehensive watershed managed plan
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State: Tidal Wetlands Licenses • Most tidal wetlands below mean high
tide belong to the state
• Cannot dredge or fill in them without a license
• If anyone requests a hearing on application, decision is made by Board of Public Works on recommendation of MDE
• In general a license may be granted if it o “is in the best interest of the State, taking into
account the varying ecological, economic, developmental, recreational, and aesthetic values”
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Federal Permits • CWA § 404 permits issued by Corps of Engineers required for dredging or
filling wetlands that are “waters of the United States”
• Definition of “waters of the United States” unsettled, but covers all tidal waters, most streams and lakes, and wetlands that connect with them
• Corps must determine that the issuance of the permit is in the public interest, taking into account the effect on the environment
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Wetlands Permitting Process • Applicant submits an application.
• MDE issues public notice of an opportunity to submit written comments or request a hearing o Notice sent to all contiguous property owners as well as being published
• MDE grants or denies the permit within 45 days of a public hearing or 60 days of receipt of complete application if no hearing
• Federal process similar
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How to Use Wetlands Permitting • Request a public hearing
• Review the application
• Appear at the hearing and present argument why the project does not meet the standards for a permit
• Appeal the permit or license if necessary
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Endangered Species Act (ESA) • A federal statute established to conserve
endangered and threatened species of fish, wildlife, and plants.
• Applicable to federal agencies, businesses, and individuals.
• Administered by the US Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)
• Species designated as endangered or threatened are listed on FWS and NMFS websites.
Puritan tiger beetle
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ESA Consultation • Federal agencies must ensure that their
action(s) will not jeopardize a protected species or a species proposed for listing or adversely modify designated critical habitat.
• This applies to approvals or permits granted by federal agencies
• If an agency action or approval might jeopardize a protected species or adversely modify critical habitat, the agency must “consult” with FWS or NMFS Sensitive Joint Vetch
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ESA Consultation • Focuses on “jeopardy” and “adverse modification” and, if the
action is likely to jeopardize a protected species or cause adverse modification of critical habitat, the development of “reasonable and prudent alternatives”
• The FWS/NMFS decision is set forth in a Biological Opinion.
• The federal agency must consider the Biological Opinion before taking any action that might cause jeopardy of a protected species or adverse modification of critical habitat
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The “Take” Prohibition • The ESA prohibits a “take” of a protected species, but
authorizes the US to permit unintentional “takes” incidental to otherwise lawful action
• Permission must be granted before the “take” occurs and actions that might result in a “take” must be consistent with terms and conditions identified by the FWS/NMFS
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How to Use the ESA • Review and, if appropriate, comment on draft Biological
Opinions
• Review and, if appropriate, comment on Habitat Conservation Plans and the related permit application.
• Review and, if appropriate, comment on Incidental Take Statements
• Attend public hearings/meetings. If appropriate, testify or provide a written statement
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How to Use the ESA • The ESA also authorizes citizens’
suits to: o stop any “person” from violating the ESA or
the ESA regulations
o compel FWS or NMFS to enforce the “take” prohibition
Swamp Pink
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Thank you for your attention. Now please go help us make a difference.
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