§ 27-213.13. Map amendment approval.

(a)

Mistake rule.

(1)

Except for Subsection (b), no application for amendment of a Chesapeake Bay Critical Area Overlay Zone shall be granted without the applicant proving that there was a mistake in the original zoning or subsequent rezoning.

(b)

Expansion of Intense Development and Limited Development Overlay Zones.

(1)

The boundaries of the Intense Development and Limited Development Overlay Zones may be expanded within the Chesapeake Bay Critical Area only in accordance with the following:

(A)

Acreage. The maximum area of future additional Intense Development or Limited Development Overlay Zones shall be five percent (5%) of the total area designated as Resource Conservation Overlay Zones at the time of adoption of the initial Chesapeake Bay Critical Area Overlay Zoning Map Amendment. A maximum of fifty percent (50%) of the permissible growth increment may be used to rezone a Resource Conservation Overlay Zone to another Chesapeake Bay Critical Area Overlay Zone.

(B)

Location. Expanded Intense Development or Limited Development Overlay Zones may be approved subject to the following locational criteria:

(i)

New Intense Development Overlay Zones shall:

(aa)

Be located in existing Limited Development Overlay Zones or contiguous to existing Intense Development Overlay Zones;

(bb)

Be located at least three hundred (300) feet from tidal waters or tidal wetlands if the land was originally designated in the Resource Conservation Overlay Zone, except for Water-Dependent Uses; and

(cc)

Be located in a manner that minimizes impacts to the defined land uses of the Resource Conservation Overlay as noted in subsection 27-548.15.

(ii)

New Limited Development Overlay Zones shall:

(aa)

Be located contiguous to existing Limited Development Overlay Zones or Intense Development Overlay Zones;

(bb)

Be located at least three hundred (300) feet from tidal waters or tidal wetlands if the land was originally designated in the Resource Conservation Overlay Zone, except for Water-Dependent Uses; and

(cc)

Be located in a manner that minimizes impacts to the defined land uses of the Resource Conservation Overlay as noted in subsection 27-548.15.

(C)

Additional considerations. In reviewing map amendments or refinements involving the use of growth allocation, the following factors shall be considered:

(i)

Consistency with the General Plan; all applicable master and sector plans; the current water and sewer plan; and Priority Funding Areas; and whether the growth allocation would implement the goals, objectives, policies and strategies of the adopted plans.

(ii)

For a map amendment or refinement involving a new L-D-O, whether the development is:

(aa)

To be served by a public wastewater system or septic system that uses the best available nitrogen removal technology;

(bb)

A completion of an existing subdivision;

(cc)

An expansion of an existing business; or

(dd)

To be developed using the Conservation Subdivision option;

(iii)

For a map amendment or refinement involving a new I-D-O:

(aa)

To be served by a public wastewater system;

(bb)

To have an allowed average density of at least 3.5 units per acre as calculated under section 5-7B-03(h) of the state Finance Procurement Article;

(cc)

For a new I-D-O that is greater than 20 acres, to be located in a Priority Funding Area, as described under Section 5-7B-02(1) and 5-7B-03 of the state finance and procurement article; and

(dd)

To have a demonstrable economic benefit to the area.

(iv)

The use of existing public infrastructure, where practical;

(v)

Consistency with State and regional environmental protection policies concerning the protection of threatened and endangered species and species in need of conservation that may be located on- or off-site;

(vi)

Impacts on a priority preservation area, as defined under § 2-518 of the Agriculture Article;

(vii)

Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams; and

(viii)

Environmental impacts associated with location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development.

(D)

Additional requirements. Prior to developing land in an expanded Chesapeake Bay Critical Area Overlay Zone, the area shall be mapped and submitted to the Chesapeake Bay Critical Area Commission for informational purposes only. This submission shall include an analysis of:

(i)

The manner in which the proposed expansion conforms to the locational criteria;

(ii)

How the proposed expansion affects the total growth allocation; and

(iii)

How the proposed expansion will accommodate the growth needs of municipalities impacted by the Chesapeake Bay Critical Area Overlay Zones.

(c)

Conditional approval.

(1)

When it approves a Zoning Map Amendment for a Chesapeake Bay Critical Area Overlay Zone, the District Council may impose reasonable requirements and safeguards (in the form of conditions) which the Council finds are necessary to:

(A)

Protect surrounding properties and property within the Chesapeake Bay Critical Area Overlay Zones from adverse effects which might accrue from the requested amendment; or

(B)

Further enhance the coordinated, harmonious, and systematic development of land within the Chesapeake Bay Critical Area Overlay Zones, including the use of time limitations for the commencement of construction.

(2)

In no case shall these conditions waive or lessen the requirements of, or prohibit uses allowed in, the approved Overlay Zone.

(3)

All building plans shall list the conditions and shall show how the proposed development complies with them.

(4)

Conditions imposed by the District Council shall become a permanent part of the Zoning Map Amendment, and shall be binding for as long as the Overlay Zone remains in effect on the property (unless amended by the Council).

(5)

If conditions are imposed, the applicant shall have ninety (90) days from the date of approval to accept or reject the rezoning as conditionally approved. He shall advise the Council (in writing), accordingly. If the applicant accepts the conditions, the Council shall enter an order acknowledging the acceptance and approving the Zoning Map Amendment, at which time the Council's action shall be final. Failure to advise the Council shall be considered a rejection of the conditions. Rejection shall void the Zoning Map Amendment and revert the property to its prior zoning classification. The Council shall enter an order acknowledging the rejection, voiding its previous decision, and reverting the property to its prior zoning classification, at which time the Council's action shall be final.

(6)

All Zoning Map Amendments which are approved subject to conditions shall be shown on the Zoning Map with the letter "C" after the application number.

(d)

Noncompliance with conditions.

(1)

All conditions imposed shall be mandatory. The failure to comply with any condition shall constitute a zoning violation and shall be grounds for the Council to:

(A)

Annul the Map Amendment;

(B)

Revoke a grading, building, or use and occupancy permit;

(C)

Institute appropriate civil or criminal proceedings; or

(D)

Institute any other action necessary to obtain compliance.

(2)

Before the District Council annuls an approved conditional Zoning Map Amendment for a Chesapeake Bay Critical Area Overlay Zone, the Zoning Hearing Examiner shall hold a public hearing, in accordance with Section 27-129, and transmit a written recommendation on the matter. The following procedures shall be followed:

(A)

A petition shall be filed with the Clerk of the Council by the Director of the Department of Permitting, Inspections, and Enforcement (or his designee) requesting the Council to annul the Zoning Map Amendment. The petition shall state the reasons for the request. At the same time, a copy of the petition shall be sent to the Planning Board.

(B)

The Planning Board shall submit a written recommendation on the petition to the Council.

(C)

After the close of the hearing record, the Zoning Hearing Examiner shall file a written recommendation with the District Council.

(D)

Any person of record may appeal the recommendation of the Zoning Hearing Examiner within fifteen (15) days of the filing of the Zoning Hearing Examiner's recommendation with the District Council. If appealed, all persons of record may testify before the District Council.

(E)

Persons arguing shall adhere to the District Council's Rules of Procedure, and argument shall be limited to thirty (30) minutes for each side, and to the record of the hearing.

(e)

Approval of a zone different from that requested.

(1)

The District Council may approve a less intense zone than that requested by the applicant for any part of the subject property involved in the application.

(2)

If the subject property is located within the boundaries of a municipality, a less intense zone may only be approved if there was testimony on the less intense zone and an opportunity provided for the municipality to make a recommendation.

(f)

Effect on Special Exceptions.

(1)

When any land upon which a Special Exception has been approved is reclassified to a zoning category different from that category in which it was classified at the time the Special Exception was approved, the following shall apply, unless otherwise specified elsewhere in this Subtitle:

(A)

If, at the time of the rezoning, the approved use requires the approval of a Special Exception in the new zone, and the specific Special Exception requirements governing the use are the same in both zones, the Special Exception, as approved, shall remain in full force and effect.

(B)

If, at the time of the rezoning, the approved use is not permitted in the new zone, or requires approval of a Special Exception with different requirements, and the use or construction authorized by the Special Exception has commenced and has not ceased, the Special Exception shall not terminate and the use may continue as a nonconforming use. Notwithstanding the provisions of this Subtitle relative to nonconforming uses, the use and development authorized under this subparagraph shall be subject to Part 4, Division 1, Subdivisions 10, 11, and 12.

(C)

If, at the time of the rezoning, the approved use is not permitted in the new zone, or requires approval of a Special Exception with different requirements, and the use or construction authorized by the Special Exception has not commenced or has ceased, the Special Exception shall terminate, and all provisions of the new zone shall apply to the use and development of the property.

(D)

If, at the time of the rezoning, the approved use is permitted in the new zone without approval of a Special Exception, the Special Exception shall terminate, and all provisions of the new zone shall apply to further use and development of the property.

(CB-72-1987; CB-57-1989; CB-56-1993; CB-1-2004; CB-76-2010; CB-29-2014)