Critical Areas Change Includes All Of Ocean City

OCEAN CITY – Resort officials this week tabled a vote on the pending Critical Areas legislation when it became evident the proposed changes would include the entire town.

Several years ago, Maryland adopted stringent Critical Areas legislation pertaining to new development in waterfront areas around the state. The intent was to establish minimum setbacks from the water and wetlands for new construction, create buffers and require property owners to include landscaping and increase impervious surface in and around sensitive areas where possible. When meeting the requirements is not possible, property owners and builders are allowed to make mitigation payments used to make in-kind improvements in other areas.

Counties and municipalities were required to develop their own Critical Areas plans and submit them to the state for approval, tailoring them to their own unique geographic circumstances while meeting the general intent of the state law. Ocean City is nearing the finish line for approval of its own Critical Areas plan, and town officials appeared poised to vote on it this week, but a review of a handful of changes returned by the Critical Areas Commission put a halt, at least temporarily to the process.

Because of its unique geography, with its complex system of canals that feed into the coastal bays, most of Ocean City is already included in the Critical Areas, but some not so subtle changes in the setback requirements for new development could place the entire island under the state’s stringent environmental law.

Because state law defines the critical area as all property within 1,000 feet of the waterfront, or over three football fields, the canals that reach nearly to Coastal Highway in many areas could place ocean-side properties in the protected zone. That revelation appeared to catch some council members by surprise on Tuesday.

“If you’re placing the entire town in the critical area, is this going to effect ocean block properties?” asked Councilman Jim Hall.

City Engineer Terry McGean explained Ocean City’s Critical Areas law as written did include the entire town because practically all of the property on barrier island drains into the coastal bays regardless of which side of the highway they are on.

“Eighty-five percent of the town is already in it,” he said. “Because the entire town drains into the bay, the entire town needs to be in the Critical Area. Since all properties drain into the bay, all should share in the cost of mitigation.”

McGean explained the revisions in the town’s Critical Areas ordinance called for a graduated setback size based on the size of the lot in question. Naturally, larger lots can afford a large setback, and smaller, non-conforming lots have narrower setback requirements under the proposed changes. Complicating the formula is the existence of wetlands on many undeveloped lots, which would have their setback requirements altered under the proposed changes.

“The issue that came up is the setback requirements increase as the parcel gets larger,” he said. “The thinking is, a larger parcel allows for a larger setback. What happens if you have a parcel that’s 40,000 square feet, but the buildable portion of it is only 20,000 square feet?”

Councilman Joe Hall questioned if including the wetlands in the setback formula amounted to lowering the value of the property. However, Planning Director Jesse Houston explained the intent is not to reduce the density on the smaller lots, but rather to establish a setback distance that allows the lots to be built on while meeting the law’s intent.

“The purpose is not to reduce density,” he said. “The purpose is to better delineate the size of the setback. We’re not devaluing because we’re actually helping the property owner.”

While the discussion went back and forth about lot sizes and setbacks, some on the council could not get past the fact the proposed ordinance included the entire town.

“The canals in some areas come all the way up to Coastal Highway,” said McGean. “Some property owners even on the ocean block could be affected by this.”

Property owner Steve Brophy voiced concern about the wording in some sections of the proposed Critical Areas legislation, particularly in terms of the setback requirements for smaller lots that include wetlands, referring specifically to a piece of property he owns and hopes to build upon in the future. However, state Critical Areas Regional Program Chief Kate Charbonneau attempted to allay his concerns.

“It’s intended to help property owners with small lots that can’t meet the Critical Areas requirements,” she said. “I think in the end, you’ll see it will help them.”

Unsatisfied with the response, Brophy said the law as written was subject to interpretation and voiced concern the playing field might change further down the road.

“It’s okay to have somebody come here and give their interpretation, but if you read this closely, that’s not what it says,” he said. “It’s okay today, but what about two, three, four years down the road when somebody else is interpreting it.”

Joe Hall questioned whether there was tangible evidence the state Critical Areas laws were doing what they were intended to do before saddling resort property owners with tougher development standards or more expensive mitigation payments.

“When does the Critical Areas Commission come back and show us a report that what we’re being asked to do is effective?” he said. “When do we see evidence that there are more crabs out there, or more clams out there. We’re asking property owners to dig out more and we should be able to tell them why they have to and what is being done in terms of improvements.”

After considerable debate, town officials decided to table the vote on the proposed critical areas changes until they could fully interpret just what they might mean.

“I can’t stress to the public enough how important this is,” said Councilman Doug Cymek. “I don’t know how we can move forward with this today.”

Councilman Lloyd Martin, who was chairing Tuesday’s meeting for absent Council President Joe Mitrecic, said he went through the stringent Critical Areas process when he recently redeveloped his property, and while the intent was good, the proposed changes needed more review before a vote was taken to finalize them.

“I went through the process and it’s a good process,” said Martin. “This is extremely important and we need to make sure we understand the changes.”

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