KENT COUNTY COMMISSIONERS PUBLIC HEARING

Code Home Rule Bill No. 3-2003

A Public Hearing was held on Tuesday, July 15, 2003, at 7:00 p.m. in the County Commissioners' Hearing Room, County Government Center, Chestertown, Maryland on Code Home Rule Bill No. 4-2003 which is: an Act to repeal and reenact with amendments Article III, Section 1; Article V, Sections 1.2, 1.5.B.1, 1.5.B.2, 2.7.B.3.a.i, 5.7.B.3.a, 9.7.B.3.a.i, 9.7.B.4.b, 12.7.B.3.a, 13.1, 13.6.B.3.a.i, 13.6.B.4.b, 16.2, 16.7.B.3.a, 17.1, 17.2, 17.7.B.3.a.i, 17.7.B.4.b; Article VI, Sections 3, 5.4, 6.4; Article VII, Sections 7.24, 7.26; Article IX, Sections 2.2.1, 2.2.3, 3.1.1; and Article XI, Section 2 of the Kent County Zoning Ordinance; complying with the policies and criteria of the Chesapeake Bay Critical Area Commission; revising enclave provisions of Agricultural Zoning District for consistency within the Zoning Ordinance and with the Comprehensive Plan; deleting provision for manufacture/processing of hot mix asphalt in the ICA and ICA-LDA Districts; adding priorities for shore erosion control protection; adding requirements for plot plans and subdivision narrative; adding requirements for buffer, steep slope, and impervious surface variances; adding criteria for reviewing water dependent uses; clarifying standards for buffer establishment, habitat and other areas of special concern, farm employee housing density, and potential uses for growth allocation associated with golf courses; removing hedgerows as permitted use; deleting hedgerow setback requirements; deleting "pier length" as an allowable variance for residential properties; adding definitions for "protected lands" and "modified buffer areas;" amending the definitions of "boathouse," "modified buffer," and "non-functioning buffer;" and making certain technical changes.

County Commissioners Roy W. Crow and Scott D. Livie were in attendance as well as Susanne Hayman, County Attorney, and T. Edward Robinson, County Administrator, Gail Owings, Director, Planning and Zoning Administration, Carla Martin, Community Planner, Amy Moredock, Environmental Planner, Elizabeth Morris, Chairman, Reverend Ruben Freeman, Patricia Langenfelder, Joe Hickman, and Jay Lancaster, representing the Planning Commission, and approximately 12 interested persons. William W. Pickrum was not in attendance due to a previous work commitment.

Notice of the public hearing was read into the record by Commissioner Crow. Commissioner Livie read the procedure for testifying. Hand outs of the proposed legislation were distributed.

Commissioner Livie welcomed those attending and thanked all for their valued input. He stated that this Board has been charged with a mission of planned growth while keeping the obligation to have the growth meld into the character of the community.

Mrs. Owings gave a brief overview of the legislation. She stated that the Land Use Ordinance was adopted December 2002, contingent upon review and approval by the Chesapeake Bay Critical Area Commission. She advised that the Planning Commission approved and recommended the following amendments:

2002 Kent County Land Use Ordinance

Article/Section	Page	Proposed Change
Article V, Section 1.2.10	p. 9	Deleting hedgerows as a permitted use
Article V, Section 1.5.B.1	p. 17	Adding the following standards: - Lot line setback from Protected Lands - 600 feet - Maximum number of enclaves - 1 per parcel
Article V, Section 1.5.B.2	p. 18	Adding the following standards: - c. The design and location of the Enclave shall minimize the impacts to neighboring agricultural operations and hunting so as not to restrict the rights of adjacent landowners. - e. Enclaves shall be located so as to leave large blocks of open agricultural land throughout the Agricultural Zoning District. - n. Deed restrictions shall include language recognizing that the lots are in an agricultural area and refer to the right to farm law. Changing the following standard to add the word "buffering:" - i. The Enclave shall be planned and designed as a single unit with careful consideration given to the relationship of structures to one another, landscaping, buffering, screening, views, light and air, and internal circulation.
Article IX, Section 2.2.1	p. 448	Deleting "pier length" as an allowable variance for residential properties. - The Kent County Board of Appeals may authorize, upon application, variances from the yard (front, side or rear), height, bulk, parking, loading, shoreline cliff, 15% slope, pier length (only in the Marine District), impervious surface, stream protection corridor, and buffer requirements …
Article IX, Section 3.1.1	p. 453	Adding "protected lands lot line setback" as an allowable waiver
Article XI, Section 2	p. 460	Adding "protected lands" to the definitions. "Protected lands" shall be defined as the following: - A Maryland Agricultural Land Preservation Foundation Agricultural Preservation District or any other conservation easement

Requested Changes of the Critical Area Commission

Article/Section

Page

Proposed Change

Article III, Section 1

p. 2-3

Adding "As of December 1, 1985" to the following:

- As of December 1, 1985, these areas had at least one of the following features:

- This change will be made for each of the Critical Area designations

Article V, Section 2.7.B.3.a.i

Article V, Section 5.7.B.3.a.i

Article V, Section 9.7.B.3.a.i

Article V, Section 12.7.B.3.a.i

Article V, Section 13.6.B.3.a.i

Article V, Section 16.7.B.3.a.i

Article V, Section 17.7.B.3.a.i

p. 35

p. 85

p. 158

p. 210

p. 230

p. 288

p. 310

Deleting "activities necessarily associated with" from the following in all Critical Area Districts:

- This restriction does not apply to activities necessarily associated with water-dependent facilities that meet the criteria set forth below.

Article V, Section 5.7.B.3.a

Article V, Section 12.7.B.3.a

Article V, Section 16.7.B.3.a

p. 85-6

p. 210

p. 288-9

Adding the following as 3.a.iii:

- Where agricultural uses of lands within the buffer cease and the lands are proposed to be converted to other uses, the buffer shall be established. In establishing the buffer, management measures shall be undertaken to provide forest vegetation that achieves the buffer functions as defined in Article XI of this Ordinance.

Article V, Section 9.7.B.4.b.i

Article V, Section 13.6.B.4.b.i

Article V, Section 17.7.B.4.b.i

p. 160

p. 231

p. 312

Deleting "An approved forest harvest plan is followed."

Article V, Section 13.1

Article V, Section 17.1

p. 225

p. 301

Adding the following to the Statement of Intent in IDA Districts:

The Marine/Industrial - Critical Area District is intended to:

- Improve the quality of runoff from developed areas that enter the Chesapeake Bay or its tributary streams.

- Accommodate additional mixed use development provided that water quality is not impaired.

- Minimize the expansion of intensely developed areas into portions of the Critical Area designated as habitat protection areas and resource conservation areas.

- Conserve and enhance fish, wildlife, and plant habitats to the extent possible within intensely developed areas.

- Encourage the use of retrofitting measures to address existing stormwater management problems.

Article V, Section 16.2.6

Article V, Section 17.2.6

p. 279

p. 302

Deleting "Manufacture, processing and distribution of hot mix asphalt" as a permitted use

Article/Section

Page

Proposed Change

Article VI, Section 3.7

p. 334

Adding the following as a new section under Section 3.7:

- The Department of Planning and Zoning shall review all applications for water-dependent facilities to determine that:

a. The activities will not significantly alter existing water circulation patterns or salinity regimes;

b. The water body upon which these activities are proposed shall have adequate flushing characteristics in the area;

c. Disturbances to wetlands, submerged aquatic plant beds, or other areas of important aquatic habitats shall be minimized and mitigated;

d. Adverse impacts to water quality that may occur as a result of these activities, such as nonpoint source runoff, sewerage discharge from land activities or vessels, or from boat cleaning and maintenance operations shall be minimized;

e. Shellfish beds shall not be disturbed or be made subject to discharge that will render them unsuitable for harvesting;

f. Dredging shall be conducted in a manner, and using a method, which causes the least disturbance to water quality and aquatic and terrestrial habitats in the area immediately surrounding the dredging operation or within the Critical Area generally;

g. Dredged spoil shall not be placed within the buffer or elsewhere in that portion of the Critical Area which has been designated as a Habitat Protection Area unless the Board of Appeals grants a special exception and only as is necessary for:

i. Backfill for permitted shore erosion protection measures;

ii. Use in approved vegetated shore erosion projects;

iii. Placement on previously approved channel maintenance spoil disposal areas; and

iv. Beach nourishment.

a. Interference with the natural transport of sand shall be minimized;

b. Information necessary for evaluating dredge spoil applications if not available locally, shall be obtained from appropriate State and Federal agencies.

Article/Section	Page	Proposed Change
Article VI, Section 3	p. 333	Adding the following as a new section: Section 3.10 Shore Erosion Protection Works - The purpose of this section is to encourage the protection of rapidly eroding portions of the shoreline in the County by public and private landowners. When such measures can effectively and practically reduce or prevent shoreline erosion, the use of nonstructural shore protection measures shall be encouraged to conserve and protect plant, fish and wildlife habitat. The following criteria shall be followed when selecting shore erosion protection practices: 1. Nonstructural practices shall be used whenever possible. 2. Structural measures shall be used only in areas where nonstructural practices are impractical or ineffective. 3. Where structural measures are required, the measure that best provides for the conservation of fish and plant habitat and which is practical and effective shall be used. 4. If significant alteration of the characteristics of a shoreline occurs, the measure that best fits the change may be used for sites in that area.
Article VI, Section 3.7.13.2	p. 336	Deleting "Minor Subdivision--Two shared slips for each lot"
Article VI, Section 3.8.3	p. 337	Deleting "of 300 feet in width"
Article VI, Section 3.8.6	p. 337	Adding "and Species in Need of Conservation with their habitat"
Article VI, Section 5.4.A	p. 348	Adding the following as a new requirement for plot plans: - Where applicable, existing and proposed impervious surface coverage, existing forest and proposed clearing, the minimum 100-foot buffer, topography and soils.
Article VI, Section 6.4.A	p. 362	Adding the following as a new requirement for subdivision narratives: - Proposed impervious surface coverage for the subdivision and where applicable, impervious surface coverage allotted to each lot
Article VI, Section 5.4.C.8.f Article VI, Section 5.4.D.7.f Article VI, Section 5.4.E.8.g Article VI, Section 5.4.F.9.f	p. 350 p. 352 p. 353 p. 355	Adding "state and private" to the following: - Tidal, state and private, and non-tidal wetlands
Article VI, Section 6.4.B.10.f Article VI, Section 6.4.C.9.f Article VI, Section 6.4.D.10.g Article VI, Section 6.4.E.13.f	p. 363 p. 365 p. 366 p. 368	Adding "state and private" to the following: - Tidal, state and private, and non-tidal wetlands

Article/Section	Page	Proposed Change
Article VI, Section 5.4.C Article VI, Section 5.4.D Article VI, Section 5.4.E Article VI, Section 5.4.F	p. 349 p. 351 p. 352 p. 354	Adding the following as a new requirement for site plans: - Vicinity map, with site location clearly marked
Article VI, Section 6.4.B.3 Article VI, Section 6.4.C.3 Article VI, Section 6.4.D.3 Article VI, Section 6.4.E.3	p. 363 p. 363 p. 366 p. 368	Adding "with site location clearly marked" to the following: - Vicinity map, with site location clearly marked
Article VII, Section 7.24	p. 427	Adding the following to farm employee housing: - In RCD, farm employee housing shall meet the density requirements
Article VII, Section 7.26.k.iii	p. 428-9	Changing "may" to "shall": Separating accessory uses for golf courses that shall require growth allocation from those that shall not - Accessory uses such as clubhouses, restaurants, bars, day care, pro shops, pools, tennis courts, comfort facilities, maintenance facilities, golf cart storage, driving range, sod farm for the golf course, practice holes, practice putting green and parking. In RCD the following accessory uses shall require growth allocation: clubhouses, restaurants, bars, day care, pro shops, pools, tennis courts, comfort facilities, golf cart storage and parking.
Article IX, Section 2.2.3.f	p. 449	Adding the following as new requirements for Critical Area variances: ix. Due to special features of a site, or special conditions or circumstances peculiar to the applicant's land or structure, a literal enforcement of this Ordinance would result in unwarranted hardship to the applicant. x. The Board of Appeals finds that the applicant has satisfied each one of the variance provisions. xi. Without the variance, the applicant would be deprived of a use of land or a structure permitted to others in accordance with the provisions of the critical area program. g. In considering an application for a variance, the Board shall consider the reasonable use of the entire parcel or lot for which the variance is requested.

Article/Section	Page	Proposed Change
Article XI, Section 2.33	p. 463	Changing the definition of Boathouse to the following: - A building constructed for the purposes of storing a boat and boat gear.
Article XI, Section 2.193	p.479	Amending the definition of Modified Buffer to the following: - An area of 100 feet measured horizontally from mean high tide, the edge of tidal wetlands, or tributary streams and located within a Modified Buffer Area. This modified buffer shall include a 25-foot area of existing naturally vegetated area or an area established in vegetation and managed to protect aquatic environments, wetlands, shoreline, and terrestrial environments from man-made disturbances. Sites with a non-functioning buffer shall be required to have a modified buffer.
Article XI, Section 2		Adding a definition for Modified Buffer Areas. "Modified Buffer Areas" shall be defined as the following: - Those areas as mapped by the Kent County Department of Planning and Zoning and approved by the Critical Area Commission
Article XI, Section 2.208	p. 480	Amending the definition of "Non-functioning Buffer" to read as follows: - A buffer will be considered non-functioning if: a. More than 50% of the buffer on-site is impervious, or b. More than 75% of the buffer on the site is disturbed either with stone, decks, septic systems, or other obvious human impacts. The site shall include all contiguous parcels under single ownership. *c. The site* is located within a Modified Buffer Area.** Contiguous buffers of natural vegetation of 100 feet of shoreline are considered functioning buffers.

Mapping Amendment:

The Modified Buffer Areas in Kentmore Park on Tax Maps 5 and 6 have been amended to delete parcels in which tiger beetle habitat has been identified by the Department of Natural Resources Heritage and Wildlife Division.

Mrs. Owings advised that the Planning Commission approved and recommended the following amendments (not relating to Critical Area): "Grandfathering" types of projects for a period of two years : Subdivisions and site plans that have received preliminary approval; minor subdivisions and Adjustment of Lot Lines under review by the Technical Advisory Committee; additional phases of Andover Acres- Phase II, Hunters Run - Phase II and Barrett Family Limited Partnership.

Mrs. Owings advised that the Planning Commission did not recommend any mapping changes.

Testimony was then entertained by those individuals who signed in to speak.

Richard "Dick" Lutterell, Chestertown, reviewed his experience as a surveyor with pier/dock design, marine development and requested that the amendment eliminating the ability to appeal the pier length be removed. He advised that, although rarely there are exceptions to pier length based strictly on environmental issues. He expressed concern that a property owner would no longer have the right to appeal the process. Mr. Luttrell concluded by stating that he would not expect big demand for pier extensions and did not feel it environmentally sound to outlaw that particular right for an individual to appeal.

Dan Saunders, Esq., representing George Jones, Kelly's Park, made several requests. Mr. Saunders presented maps and ariel photographs of the 1.5 acre property located adjacent to the Skinners Neck Public Landing. The property is located in a residential neighborhood and is served by community sewer. He advised that the Jones property is currently zoned for commercial marine use. Mr. Saunders stated that the property should be rezoned to reflect the residential neighborhood.

Mr. Saunders concurred with Mr. Luttrell and also requested pier extension applicants have a variance option.

Mr. Saunders spoke in favor of "grandfathering" based on fact that many projects have had lengthy delays due to extreme weather conditions.

Mr. Saunders described a problem of another client relating to road ordinances. Mr. Saunders described an example of a family farm in Agricultural Land Preservation Program in which a building lot was provided for each of their two children and a road would be needed to be extended. He requested that the road variance waiver be implemented so that in circumstances where no more lots will be subdivided, county road standards need not apply.

Mr. Saunders concluded by complimenting the Planning Commission on a job well done.

Commissioner Livie thanked all involved for their time and sacrifice for their diligent work on the land use regulations. He also introduced new members to the Planning Commission who were present, Patricia Langenfelder and Joe Hickman.

The Commissioners thanked all for attending.

Third reading of this legislation will be held on August 5, 2003, the next legislative day.

This hearing was taped for reference and adjourned at 7:45 p.m.

KENT COUNTY, MARYLANDCOUNTY COMMISSIONER'S

PUBLIC HEARING

KENT COUNTY, MARYLAND
COUNTY COMMISSIONER'S