Gov. Hughes: Fix my Critical Area law

The Capital, February 29, 2008

Pamela Wood - The Capital Former Gov. Harry R. Hughes, shown earlier this year, is pushing lawmakers to update the Critical Area law he conceived back in the 1980s.

Former Gov. Harry R. Hughes made a personal appearance in the General Assembly yesterday to ask lawmakers to reform the landmark shoreline protection law he conceived back in 1984. The 57th governor said the Critical Area law is past due for an update, as property owners and developers have exploited holes in the law and enforcement has been uneven.

"The Critical Area law has not proven to be what we thought it would be ... experience has shown there are weaknesses in the law," Mr. Hughes told members of the Senate Education, Health and Environmental Affairs committee.

The Critical Area law was passed in 1984 and sets restrictions on building within 1,000 feet of the state's tidal waters. The toughest restrictions are in the closest 100 feet. It's a statewide law, but it's handled primarily at the local level.

Mr. Hughes said the reasoning behind the law is that activities on the land can have a negative effect on the water. When trees near the water are cut down and replaced with pavement and rooftops, the land loses its natural ability to filter pollutants that rush toward the water.

"The quality of the bay and its tributaries is really an interest of the state ... Marylanders love the bay," Mr. Hughes said.

State lawmakers are considering a bill that makes scores of changes to the Critical Area law, including:

Moving the 100-foot buffer to 300 feet for some new subdivisions.

Allowing fines to be issued for each day a violation continues.

Making it possible to take the license away from contractors who violate the law.

Giving the state Critical Area Commission, an independent agency, the ability to create regulations for minor changes in the program.

Requiring more review for after-the-fact variances, which is when local governments give property owners permission to skirt the law after they've already done it. Also, making violators fix their damage and pay fines before seeking variances.

Mr. Hughes, who has been an adviser to Gov. Martin O'Malley, supports the reform effort.

"It seems to me and many other people, it's time to act. It's time to improve the law," Mr. Hughes said.

Yesterday's hearing was the first opportunity lawmakers had to discuss the details of the bill. The hearing stretched into the evening as senators struggled with both the broad intent of the bill as well as the minute details.

Some lawmakers questioned if the bill would do enough to prevent such cases and cut down on harmful development.

"Are the proposals you're making here serious enough to make the Critical Area work? ... Is Gov. Hughes going to have to come back in five years or 10 years or 24 years?" asked Sen. Jim Rosapepe, D-College Park.

Sen. Roy P. Dyson, D-St. Mary's, noted that even when people seek variances the proper way - before construction - local governments might feel pressured to give approval even if the variance isn't really needed.

"The well-heeled and well-connected can get what they want and local governments are giving it to them ... It's hard for local government to turn people down," Mr. Dyson said.

A study by the Chesapeake Bay Foundation in four counties (including Anne Arundel and Queen Anne's) found that variances are granted 76 percent of the time.

Margaret McHale, chairman of the Critical Area Commission, said the bill leaves local authority intact, despite misgivings from people like Mr. Dyson.

The lobbying groups for local governments, however, said they don't feel like their power is being preserved. Officials from the Maryland Association of Counties testified against a portion of the bill that would allow the Critical Area Commission to give the thumbs-up or thumbs-down to after-the-fact variances.

Sally Iliff, an attorney for Anne Arundel County, said local governments must balance property rights with the need to protect the environment.

That desire to protect the environment "bumps up against the individual property owners who come in with bulging plans in hand for their dream house and stars in their eyes. What we have to do is come to reality," Ms. Iliff said.

Despite high interest in the bill, attendance from senators dwindled during the hearing. At times, only three members of the nine-member committee were present.

The committee chairman, Sen. Joan Carter Conway, D-Baltimore, said a work group will be created to discuss the bill in more detail.

(Revised Mar 2008)