(a) This section is intended to establish conditions for development in the Chesapeake Bay Critical Area and the Atlantic Coastal Bays Critical Area in addition to those established in criteria of the Commission. However, in the event of any inconsistency between the criteria and the provisions of this section, this section shall control. (b) The growth allocation for a local jurisdiction shall be calculated based on 5 percent of the total resource conservation area in a local jurisdiction: (1) In the Chesapeake Bay Critical Area at the time of the original approval of the local jurisdiction's program by the Commission, not including tidal wetlands or land owned by the federal government; or (2) In the Atlantic Coastal Bays Critical Area at the time of the original approval of the local jurisdiction's program by the Commission, not including tidal wetlands or land owned by the federal government. (c) (1) In paragraphs (3)(i) and (4)(i) of this subsection, "consistent with" or "consistency with" a jurisdiction's comprehensive plan means that a standard or factor will further, and not be contrary to, the following items in the plan: (i) Policies; (ii) Timing of the implementation of the plan; (iii) Timing of development; (iv) Timing of rezoning; (v) Development patterns; (vi) Land uses; and (vii) Densities or intensities. (2) When locating new intensely developed or limited development areas, local jurisdictions shall use the following standards: (i) Locate a new intensely developed area in a limited development area or adjacent to an existing intensely developed area; (ii) Locate a new limited development area adjacent to an existing limited development area or an intensely developed area; (iii) Locate a new limited development area or an intensely developed area in a manner that minimizes impacts to a habitat protection area as defined in COMAR 27.01.09, and in an area and manner that optimizes benefits to water quality; (iv) Locate a new intensely developed area or a limited development area in a resource conservation area at least 300 feet beyond the landward edge of tidal wetlands or tidal waters, unless the local jurisdiction proposes, and the Commission approves, alternative measures for enhancement of water quality and habitat that provide greater benefits to the resources; (v) Locate new intensely developed areas and limited development areas in a manner that minimizes their impacts to the defined land uses of the resource conservation area; (vi) Locate new intensely developed areas and limited development areas outside of areas vulnerable to climate change unless the local jurisdiction proposes and the Commission approves: 1. Areas identified by the local jurisdiction as vulnerable to climate change as required under § 8-1808(c)(1)(iii)16 of this subtitle; and 2. Measures that: A. Assess climate resiliency and vulnerability; and B. Incorporate siting, design, construction, and other natural features to significantly enhance climate resiliency and reduce vulnerability; (vii) Except as provided in item (ix) of this paragraph, no more than one-half of the expansion allocated in the criteria of the Commission may be located in resource conservation areas; (viii) New intensely developed or limited development areas involving the use of growth allocation shall conform to all criteria of the Commission and shall be designated on the comprehensive zoning map submitted by the local jurisdiction as part of its application to the Commission for program approval or at a later date in compliance with § 8-1809(g) of this subtitle; and (ix) In Calvert, Caroline, Cecil, Charles, Dorchester, Kent, Queen Anne's, St. Mary's, Somerset, Talbot, Wicomico, and Worcester counties, if the county is unable to utilize a portion of the growth allocated to the county in items (i) and (ii) of this paragraph within or adjacent to existing intensely developed or limited development areas as demonstrated in the local plan approved by the Commission, then that portion of the allocated expansion which cannot be so located may be located in the resource conservation area in addition to the expansion allocated in item (vii) of this paragraph. A developer shall be required to cluster any development in an area of expansion authorized under this paragraph. (3) A local jurisdiction may use a standard that varies from the standards required under paragraph (2)(i) and (ii) of this subsection if: (i) The alternative standard is consistent with the jurisdiction's adopted comprehensive plan; and (ii) The Commission has approved the alternative standard as part of the local program. (4) In reviewing map amendments or refinements involving the use of growth allocation, the Commission shall consider the following factors: (i) Consistency with the jurisdiction's adopted comprehensive plan and whether the growth allocation would implement the goals and objectives of the adopted plan; (ii) 1. For a map amendment or refinement involving a new intensely developed area, whether the development is: A. To be served by a public wastewater system; B. To have an allowed average density of at least 3.5 units per acre, as calculated under § 5-7B-03(h) of the State Finance and Procurement Article; C. For a new intensely developed area that is greater than 20 acres, to be located in a priority funding area, as described under §§ 5-7B- 02(1) and 5-7B-03 of the State Finance and Procurement Article; and D. To have a demonstrable economic benefit to the area; and 2. For a map amendment or refinement involving a new limited development area, whether the development is: A. To be served by a public wastewater system or septic system that uses the best available nitrogen removal technology; B. A completion of an existing subdivision; C. An expansion of an existing business; or D. To be clustered; (iii) The use of existing public infrastructure, where practical; (iv) 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; (v) Impacts on a priority preservation area, as defined under § 2-518 of the Agriculture Article; (vi) Environmental impacts associated with wastewater and stormwater management practices and wastewater and stormwater discharges to tidal waters, tidal wetlands, and tributary streams; (vii) Environmental impacts associated with location in a coastal hazard area or an increased risk of severe flooding attributable to the proposed development; and (viii) Environmental impacts on underserved or overburdened communities. (5) The Commission shall ensure that the standards and factors in paragraphs (2), (3), and (4) of this subsection have been applied in a manner that is consistent with the purposes, policies, goals, and provisions of this subtitle, and all criteria of the Commission. (d) (1) Subject to the conditions under paragraphs (2) and (3) of this subsection, if a jurisdiction has within its territorial limits an area that is subject to the Chesapeake Bay Critical Area program and an area that is subject to the Atlantic Coastal Bays Critical Area program, the growth allocation for that jurisdiction may be utilized within either critical area, as the jurisdiction's local program considers appropriate. (2) A local jurisdiction's program may not utilize the growth allocation from another critical area unless the growth allocation remaining in either critical area is insufficient to allow approval of a growth allocation proposal associated with a program amendment for which the local program seeks Commission approval. (3) A local jurisdiction's program may not transfer more than 150 acres of growth allocation to another critical area. (e) (1) Except as authorized under paragraph (2) of this subsection, in calculating the 1-in-20 acre density of development that is permitted on a parcel located within the resource conservation area, a local jurisdiction: (i) Shall count each dwelling unit; and (ii) May permit the area of any private wetlands located on the property to be included, under the following conditions: 1. Only when using transfer of development rights; and 2. The area of private wetlands shall be field delineated when certifying development rights for transfer. (2) (i) Within a resource conservation area, a local jurisdiction may consider one additional dwelling unit per lot or parcel as part of a primary dwelling unit for the purpose of the density calculation under this subsection if the additional dwelling unit: 1. Does not require a variance to any critical area development standards; and 2. A. I. Is located within the primary dwelling unit or its entire perimeter is within 100 feet of the primary dwelling unit; and II. Does not exceed 900 square feet in total enclosed area; or B. I. Is located within the primary dwelling unit; and II. By its construction, does not increase the amount of lot coverage already attributed to the primary dwelling unit by greater than 900 square feet. (ii) The provisions of this paragraph may not be construed to require a local jurisdiction to consider an additional dwelling unit as part of a primary dwelling unit for the purpose of the density calculation under this subsection. (iii) An additional dwelling unit meeting all the criteria under subparagraph (i) of this paragraph that is separate from the primary dwelling unit may not be subdivided or conveyed separately from the primary dwelling unit. (3) An additional dwelling unit that exceeds 900 square feet shall count towards the density calculation.
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