SECTION IV. Recommended Motion: Staff recommends the following motion (with modifications and additions following discussion):

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1 ST. MARY S COUNTY GOVERNMENT DEPARTMENT OF LAND USE AND GROWTH MANAGEMENT William B. Hunt, AICP, Director Kathleen Easley, Deputy Director COMMISSIONERS OF ST. MARY S COUNTY James R. Guy, President Michael L. Hewitt, Commissioner Tom Jarboe, Commissioner Todd B. Morgan, Commissioner John E. O Connor, Commissioner MEMORANDUM Date: September 17, 2018 To: From: Subject: Board of Appeals Yvonne Chaillet, Zoning Administrator VAAP # , Nicol Property Board of Appeals hearing of September 27, 2018 SECTION I. Development Data: Request: The Applicants request a variance from Section of the Comprehensive Zoning Ordinance to disturb the Critical Area Buffer to replace a single-family dwelling. Owner: Bruce Nicol and Ryan Nicol (the Applicants ) Location: Smiths Nursery Road, Hollywood, Maryland Tax Map: 27 Grid: 05 Parcel: 35 Election District: 6 Acreage: 33,280 square feet Zoning: Rural Preservation (RPD) District, Limited Development Area (LDA) Overlay Land Use: Rural Preservation SECTION II. Notification: The property and variance request were advertised in The Enterprise on September 12, 2018 and September 19, The agenda was posted on the County s website on Thursday, September 20, SECTION III. Applicable Regulations: St. Mary s County Comprehensive Zoning Ordinance (Ordinance) 1. Section Specific Standards for Granting Variances in the Critical Area 2. Section The 100-Foot Critical Area Buffer SECTION IV. Recommended Motion: Staff recommends the following motion (with modifications and additions following discussion): In the matter of VAAP # , Nicol Property, having made a finding that the standards for granting a variance in the Critical Area and the objectives of Section of the St. Mary s County Comprehensive Zoning Ordinance (have / have not) been met, I move to (approve / deny) the variance request to disturb the Critical Area Buffer to replace a single-family dwelling. P.O. BOX 653 PATUXENT BUILDING LEONARD HALL DRIVE, LEONARDTOWN, MD PHONE X1500 FAX LUGM@STMARYSMD.COM

2 VAAP # , Nicol Property Board of Appeals hearing of September 27, 2018 Page 2 of 5 SECTION V. Property and Critical Area Case Information: 1. The subject property (the Property ) is a grandfathered lot in the Critical Area of St. Mary s County because it was recorded in the Land Records of St. Mary s County prior to the adoption of the Maryland Critical Area Program on December 1, The existing singlefamily dwelling was built in 1965 according to Real Property Data, Maryland Department of Assessments and Taxation. The Applicants plan to remove the existing house and build a new one in the same location, but with an expanded footprint. A private well and septic system serve the Property. 2. The Property fronts Cuckold Creek and is constrained by the Critical Area Buffer (the Buffer ), which has been measured 100 feet landward from the mean high water line of Cuckold Creek, pursuant to the Code of Maryland Regulations (COMAR) E(3). All but the southwest corner of the Property is within the Buffer, and the existing house is entirely within the Buffer. A portion of the driveway is outside the Buffer. 3. The existing soil type on the Property is Mattapex silt loam (MuC2) according to the Natural Resources Conservation Service, U.S. Department of Agriculture, Web Soil Survey. This soil type is considered moderately sloping and is found mainly in areas along the major streams of the County. It is neither hydric nor highly erodible in nature. Tidal wetlands and steep slopes, or slopes greater than 15 percent, can be found along the Property s shoreline. 4. Special Flood Hazard Area Zone AE encroaches on the Property along its shoreline, according to the 2014 Flood Insurance Rate Maps (FIRM), panel 182F. Zone AE is defined in the County s floodplain management regulations as Special Flood Hazard Areas subject to inundation by the 1-percent annual chance (100-year) flood; base flood elevations are determined; and floodways may or may not be determined. In areas subject to tidal flooding, the Limit of Moderate Wave Action (LiMWA) is delineated to define the landward limit of the Coastal A Zone. The base flood elevation of the AE zone on the Property is five (5) feet. Development is proposed outside zone AE. 5. Approximately 15,760 square feet of woodland and other vegetation cover the Property. The Applicants do not plan to clear any vegetation or woodland in order to demolish the existing house and construct a new one. Mitigation is required at a ratio of three to one per square foot of the variance granted and at a ratio of one to one for the area of temporary disturbance in accordance with COMAR

3 VAAP # , Nicol Property Board of Appeals hearing of September 27, 2018 Page 3 of 5 6. According to the site plan prepared by Nokleby Surveying, and as shown in the table below, the Property contains a single-family dwelling with two attached porches, a detached garage, driveway, and walkway for a total of 4,801 square feet of lot coverage on the Property. All but 460 square feet of this amount, or 4,341 square feet, is in the Buffer. The Applicants plan to remove 2,278 square feet of lot coverage from the Buffer, leaving a total of 2,063 square feet of lot coverage in the Buffer. The Applicants plan to add 2,321 square feet of lot coverage in the Buffer for a total of 4,384 square feet of lot coverage in the Buffer. This amount plus the 460 square feet of driveway located outside the Buffer equals a total of 4,884 square feet of lot coverage on the Property. The allowed amount of lot coverage on a property of this size is 5,445 square feet. Lot coverage in C.A. Buffer shown in square feet Existing To be removed Remaining Proposed Following construction Net increase in Buffer 4,341 2,278 2,063 2,321 4, Lot coverage outside C.A. Buffer shown in square feet Existing To be removed Remaining Proposed Following construction Net increase outside Buffer Totals 4,801 2,278 2,523 2,321 4, The St. Mary s Health Department approved the site plan on July 5, 2018, and the St. Mary s Soil Conservation District (SCD) approved the site plan on June 25, Less than 5,000 square feet of disturbance is proposed; therefore, an engineered erosion and sediment control plan was not required. Stormwater management was not required for this same reason. The Maryland Critical Area Commission provided comments which are attached to this report. The Commission does not oppose the variance. 8. If the variance is granted, the Applicants must comply with Section 24.8 of the Ordinance pertaining to lapse of variance. Variances shall lapse one year from the date of the grant of the variance, if the Applicants have not complied with Section SECTION VI. Critical Area Standards: Pursuant to Section 24.4 of the Ordinance, before a Critical Area variance may be granted, the Board of Appeals must find the following: a. That special conditions or circumstances exist that are peculiar to the land or structure involved and that strict enforcement of the Critical Area provisions of this Ordinance would result in unwarranted hardship. In order to conclude that the Applicants have met the unwarranted hardship standard, the Board must find that the Property is unique, in and of itself, and that this uniqueness will

4 VAAP # , Nicol Property Board of Appeals hearing of September 27, 2018 Page 4 of 5 create a disproportionate impact on the Property when Section of the Ordinance is applied to the proposed development. Finding uniqueness, the Board must then determine whether or not the prohibition against development in the Critical Area Buffer, as specified in Section , creates an unwarranted hardship. Pursuant to (d)(1) of the Natural Resources Article, Annotated Code of Maryland, In this subsection, unwarranted hardship means that, without a variance, an applicant would be denied reasonable and significant use of the entire parcel or lot for which the variance is requested. The Board must evaluate the replacement single-family dwelling, proposed within 100 feet of the mean high water line of Cuckold Creek, and conclude that without the variance to develop the Property as proposed, the Applicants would suffer an unwarranted hardship. b. That strict interpretation of the Critical Area provisions of this Ordinance will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Critical Area of St. Mary s County. In order to find that the Applicants have met this standard, the Board must consider the unwarranted hardship and whether or not the proposed development is reasonable given the constraints of the Property, a finding that must be made for similar variance requests in the Critical Area. If the Board finds that the Applicants have an unwarranted hardship, then the Board may conclude that the Applicants have met the strict interpretation standard, and find that the granting of the variance will allow development of the Property, a right commonly enjoyed by other properties in the LDA. c. The granting of a variance will not confer upon an applicant any special privilege that would be denied by the Critical Area provisions of this Ordinance to other lands or structures within the Critical Area of St. Mary s County. In order to find that the Applicants have met this standard, the Board must have concluded under standard a that the Applicants have an unwarranted hardship. Finding an unwarranted hardship, the Board may then conclude that the granting of the variance to construct a replacement single-family dwelling in the Critical Area Buffer would not confer upon the Applicants a special privilege that would be denied by the Critical Area provisions of the Ordinance to other lands or structures in the Critical Area. d. The variance request is not based upon conditions or circumstances that are the result of actions by the applicant. If the Board concluded that the Applicants met the unwarranted hardship standard to construct the replacement dwelling in the Critical Area Buffer, a finding based on special conditions or circumstances peculiar to the land, then the Board may find that the variance request is not based upon conditions or circumstances that are the result of actions by the Applicants.

5 VAAP # , Nicol Property Board of Appeals hearing of September 27, 2018 Page 5 of 5 e. The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the Critical Area, and that the granting of a variance will be in harmony with the general spirit and intent of the Critical Area program. The Critical Area program recognizes grandfathered properties and the rights of property owners to develop or redevelop them. The Maryland Critical Area Commission has determined that potential adverse impacts resulting from development on these properties can be mitigated by planting trees and shrubs. In accordance with COMAR mitigation is required at a ratio of three to one per square foot of the variance granted and at a one to one ratio for the area of temporary disturbance. The required vegetation will improve plant diversity and habitat value for the site and will improve the runoff characteristics for the Property, which will contribute to improved infiltration and reduction of non-point source pollution leaving the site in the future. If the Board has determined that the Applicants have an unwarranted hardship and that the proposed development is reasonable given the size and constraints of the Property, then the Board may find that the required mitigation will offset any adverse impacts to water quality, fish, wildlife, or plant habitat, and that the granting of the variance will be in harmony with the general spirit and intent of the Critical Area program. f. The variance is the minimum necessary to achieve a reasonable use of the land or structures. In order to conclude that the Applicants have met this standard the Board must consider its findings under the unwarranted hardship standard. Finding an unwarranted hardship, the Board may then conclude that the requested variance to disturb the Critical Area Buffer to construct a replacement single-family dwelling is the minimum necessary to achieve a reasonable use of the land. SECTION VII. Attachments: Attachment 1: Standards Letter from Bruce Nicol and Ryan Nicol, dated September 12, 2018 Attachment 2: Critical Area Commission Comments dated July 10, 2018 Attachment 3: 2017 Ortho Photo / Environmental Features Map Attachment 4: Site Plan Variance Application Date: June 18, 2018 STAFF EXHIBIT 2

6 September 12,20tB Yvonne Chaillet Department of Land Use & Growth Management P.O. Box 653 Leonardtown, Maryland (301) RE: Lot Ingleside Subdivision Tax Map 27,Grid 05, Parcel 35 Control Number: L Dear Yvonne, ADDRESSING OF STANDARDS GENERAL FOR A CRITICAL AREA VARIANCE Per Section A-F LUGM Control No A. That special conditions or circumstances exist that are peculiar to the land or structure involved and that strict enforcement ofthe Critical Area provisions ofthis 0rdinance would result in unwarranted hardship; and Response: There is qn existing dwetling on this properqt, our objective is to remove the dwelting and replace it with a new and safer structure. we have placed the dwelling in the same area of the existing dwelling holding the southeastern moin wall line along Cuckold Creek and moved it slightly further away from Cuckold Creek along the existing northeastern wall line of the existing dwelling to be removed. B. That strict interpretation ofthe Critical Area provisions ofthis Ordinance will deprive the applicant of rights commonly enjoyed by other properties in similar areas within the Critical Area of St. Mary's County; and Response: The applicants request to replace the existing dwelling would allow for their continued rights commonly enioyed by other properties located in similar areas within the Criticat Arei of St, Mary's County, further making for a safer condition for all concerned. c. The granting of a variance will not confer upon an applicant any special privilege that would be denied by the critical Area provisions ofthis ordinance to other lands or structures within the Critical Area of St Mary's County; and Response: The granting of this varionce ond many similar to it, will not give this applicant any special privilege compared to other properties in the Critical Area. D. The variance request is not based upon conditions or circumstances that are the result of actions by the applicant; and Response; The variance request is the result of age and current condition of the existing structure through no fault of the applicant. ATTACHMENT 1

7 E. The granting of a variance will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat within the Critical Area, and that the granting ofthe variance will be in harmony with the general spirit and intent of the Critical Area program; and Response: The granting ofthe variance would be in harmony with the general spirit and intent of the Critical Area program and before any construction is done on this site the Environmental Site Design plan will need to be approved by all affected agencies. Specifically the Soil Conservation District which will further approve the devices necessary to control any sediment or erosion control on site during construction activities as to not impact the Critical Area Habitat in any way. F. The variance is the minimum necessary to achieve a reasonable use of land or structures. Response: The applicant believes this variance is the minimum necessary to achieve a reasonable use of this property, the same as other landowners within the Critical Area of rt Mary's County. Yours truly, Bruce and Ryan Nicol ATTACHMENT 1

8 Larry'Hogan Gorcmor Boyd K. Rutherford l,t- Gorernor Charles C. Deegan Chairnan Katherine Charbomeau Ercantire Direclor STATE OF MARYLAND CRITICAL AREA COMMISSION CHESAPEAKE AND ATLANTIC COASTAL BAYS 1804 West Street, Suite 100. Annapolis, Mar)1and (410) Fax: (410) \\ \\,$.dnr.statc.md.uvcriticalarea/ July 10, 2018 Ms. Yvonne Chaillet St. Mary's County Government Department of Land Use and Growth Management P O Box 653 Leonardtown, Maryland Re: Variance # Nicol Replacement House Dear Ms. Chaillet: Thank you for forwarding this variance request to this office for review and comment. This property is acres and is located in the Limited Development Area (LDA). The applicant proposes to raze an existing dwelling and locate a new dwelling in largely the same footprint. This lot is mostly encumbered by the 100-foot Buffer. The proposed house does not appear to be further waterward than the existing house to be removed. The proposal is within the lot coverage limits. We do not oppose this variance request. The applicant is responsible for mitigating the disturbance to the Buffer at a ratio of 3:1 for permanent disturbance and I :1 for temporary disturbance. A Buffer Management Plan should be provided to the County for revieu.and approval. The lot coverage to be removed may be deducted from the total mitigation requirement. From the information submitted in the application, it appears that there is 1 0,814 square feet ofmitigation required' A fee in lieu may be collected for any mitigation requirement that cannot be located on site. Thank you for the opportunity to provide comment. Please include this letter in your file and submit it as part ofthe record for the variance. Please notifo the Commission ofthe decision made in this case. [fyou have any questions, please contact me at (410) Sincerely, Julie Roberts Natural Resources Planner sm RECEIVED JUL TTY Users (800) Via Maryland Relay Service St' Mary'6 County Land Use & Growth Management ATTACHMENT 2

9 5093 Smiths Nursery Road aa : Tidal Wetlands!.,'cl l:i rt- 5O Feet BP #18-1O53, Nicol 2017 Orthoph( KE 09/12t201 ATTACHMENT 3

10 ATTACHMENT 4