Baltimore County Council Bill 57-22 strikes at the heart of Maryland’s critical area law that protects the Chesapeake Bay and its tributaries from pollution.
Introduced by Councilwoman Cathy Bevins, the bill would result in a financial windfall for existing marinas and waterfront restaurants with liquor licenses by giving them an unprecedented exemption from certain building restrictions within the critical area “buffer.”
The bill would allow those marinas and full-service restaurants to expand “up to the edge of the water with no mitigation or buffer yard requirements” and to develop or redevelop pervious areas without mitigation – in other words, to replace vegetated, permeable surfaces with asphalt parking lots.
Marinas also would be allowed to expand the footprints of existing accessory structures by up to 25% without regard to other critical area regulations.
[UPDATE: On 8/30/22 Bevins withdrew the bill.]
The proposal has drawn an unusual amount of attention from environmentalists and state lawmakers, indicating concern that the bill may have legs.
If it does, it is because of the apparent support by County Executive Johnny Olszewski.
The critical area law governs construction and other disturbances of land within 1,000 feet of Maryland’s tidal waters and tidal wetlands.
Each city or county with jurisdiction over land in this zone must have a management program consisting of local laws and regulations approved by the state Critical Area Commission (CAC).
At the core of the program is establishment and maintenance of a vegetated buffer immediately adjacent to the waters or wetlands. The minimum width of the buffer is 100 feet, which may be expanded because of site conditions, such as steep slopes or highly erodible soils.
The buffer acts as a filter that prevents sediment, nutrients and other pollutants from entering waters and wetlands and is essential to the health of the bay. It also provides habitat for native plants and wildlife.
The general prohibition of development within the buffer does not apply to “water-dependent facilities” such as piers, marinas and boat ramps.
Construction of water-dependent facilities is allowed, but only under specified conditions and in accordance with individually approved plans intended to allow reasonable use of a property with minimum degradation of the buffer.
Carving Out Exemptions
Allowing a by-right expansion of accessory structures of 25% for existing marinas would be a financial windfall for their owners.
It’s a free pass, if you will, issued by Baltimore County allowing the marina owners to bypass the regulations otherwise governing expansion.
The second business category that would benefit from the bill is waterfront restaurants.
A restaurant is not a “water-dependent facility,” and there is no physical justification for allowing a restaurant to disregard the laws that protect the critical area buffer.
The bill would elevate waterfront restaurants to a unique status, giving them an unprecedented categorical exemption from buffer requirements on the basis of their stated importance to the local economy.
Jon Mueller, longtime attorney for the Chesapeake Bay Foundations, said he was unaware of any other local jurisdiction in Maryland that has asked for a simultaneous exemption and believes the bill “violates state law.”
Maryland Assistant Attorney General Kathryn Rowe reached the same conclusion as Mueller in an August 18 letter of advice to Delegate Dana Stein (D-Pikesville).
Rowe stated that it “seems clear” the bill would violate requirements for mitigating disturbances to the buffer established by state law, while noting that the CAC will get the last word on compliance if the bill passes.
Delegate Cathi Forbes (D-Towson) also has signaled her opposition to the bill.
Who is Behind the Bill?
Bevins is a lame-duck member of the County Council from Middle River who has implied that her career in politics is over.
There are waterfront restaurants in her district that have sought expansions and could benefit from the bill, including Bowleys on the Bay in Bowleys Quarters.
Another potential beneficiary is Tiki Lee’s Dock Bar, located in Sparrows Point on Back River.
Laying the groundwork for the specious argument that letting a handful of favored businesses expand into the critical area buffer is no big deal
It is doubtful that the councilwoman, with close ties to the county Democratic Party and to local developers, would have introduced such a controversial bill without the apparent support of Olszewski and Councilman David Marks.
Marks is running for re-election, and some of those waterfront restaurants are within his newly drawn district. He also is Baltimore County’s representative on the CAC.
In discussing the bill, Marks said that there needs to be “balance” between “the need to preserve the integrity of the waterfront” and the interests of business owners that have created “proven destinations for thousands of people every day,” echoing talking points by the Olszewski administration.
The County Council will hear testimony on Bill 57-22 tomorrow (August 30) at a 4:00 p.m. work session that can be viewed virtually here. Vote scheduled for September 6. Comments on the bill can be sent to the County Council at firstname.lastname@example.org and to the County Executive at email@example.com
Olszewski’s acting chief of staff, Dori Henry, says that the county executive wants to support “waterfront businesses that contribute to our local economy without significant environmental impact.”
Henry added that “we look forward to working with Councilwoman Bevins to ensure that any legislation that moves forward addresses both of these priorities.”
By referring to “significant” environmental impact, Henry is laying the groundwork for the specious argument that allowing a handful of favored businesses to expand into the buffer is no big deal.
Marks and Henry miss the point that the balance between environmental and economic interests is already built into critical area law.
Once you start exempting entire categories of businesses from the law, you are not “addressing priorities,” you are weakening environmental protections for the sake of creating economic winners.
There is no evidence that the existing businesses who will benefit from the bill cannot prosper without it. They just want to prosper more.
A Campaign Promise
Olszewski’s promise to be a good steward of the environment was a centerpiece of his 2018 campaign for county executive.
He received the endorsements of the Maryland Sierra Club and the Maryland League of Conservation Voters.
Olszewski is now putting his standing with those organizations at risk by not condemning an ill-advised and unlawful bill.
Representatives of the Chesapeake Bay Foundation and Maryland Sierra Club already have indicated they will oppose the bill.
To my knowledge, the Maryland League of Conservation Voters has not yet taken a position. Marisa Olszewski, the county executive’s wife, is the environmental policy manager for that organization.
[UPDATE: Replying to our query after deadline, a spokeswoman confirmed that Maryland LCV opposed the bill and co-signed a letter of opposition along with 20 partner organizations.]
• David A. Plymyer is a former Anne Arundel County Attorney. He retired in 2014.