Regular Monthly Meeting April 2, 2009

Members Present:

Lina Vlavianos, Chair
Sally Hornor, Vice Chair
Dan Haas
Charlotte Lubbert
Kurt Riegel
Joe Rubino
Jeff Schomig
Debra Smith 
Bob Whitcomb
Scott Hymes, MD DNR (Ex officio)
Veronica Jagoe for AACo.Councilman Benoit (Ex officio)

Guests and Staff:

Brenda Reiber, AACo. County Executive’s Office
Harry Sinclair, Jr., Community activist

Members Absent:

Virginia P. Clagett, MD House Delegates (Ex officio)
Sam Shropshire, City Council (Ex officio)                     

CALL TO ORDER

Chair Vlavianos called the regular monthly meeting of the Severn River Commission (SRC) to order at 4:00 p.m. in the Severn Room, 2664 Riva Road, Annapolis, MD.  A quorum was declared present. 

Mr. Bob Winchester from AACo. Inspection & Permits (I&P), SRC members, guests and staff were introduced. Mr. Winchester had been invited to talk to the Commission about Critical Area (CA) enforcement. He started his dialogue by noting that I&P’s job is to enforce not only the CA ordinance, but the construction code and the grading and sediment control and stormwater management ordinances in order to minimize the impact of development activities on the Bay and its tributaries and to respond to complaints about authorized government activities.

I&P has four separate field enforcement groups: (1) zoning (junk cars, junk/debris, illegal signs, etc.); (2) construction code (building permits have scheduled inspections that are required as a matter of law); (3) environmental code (handles grading permits inclusive, stormwater management requirements, anything from construction of a new house within the CA to commercial site, anything subject to an engineer grading permit); and (4) code compliance (set up two years ago to primarily respond to complaints that were coming in relative to non-permitted development activities, construction, someone building something, someone pushing over trees/otherwise grading). 

Many of the complaint investigations are very labor intense and cannot properly be handled during the course of the day by other inspectors. Most of these cases are going to eventually be adjudicated by the courts. The idea is to have a dedicated staff to handle the non-permitted violations. The Code Compliance division has a forestry section which is responsible for review and approval of buffer management plans, standard vegetation management plans, enforcement of reforestation plans which are required as a matter of development projects and also is responsible for reforestation efforts which are related to expenditure of fee-in-lieu monies which are collected for CA reforestation and Forest Conservation Act reforestation which is applied to everything outside the CA.  If someone pays a fee-in-lieu for reforestation requirements, it becomes the county’s obligation to expend those monies for reforestation efforts either in the CA or outside of the CA depending on where the money was originating from project wise.

Mr. Winchester stated he was reluctant to talk about complaint enforcement numbers because they mean one thing to one person and nothing to another.  During calendar year 2008, there was a total of 1,141 complaints - of those, 505 were in the Chesapeake Bay CA. The total fines assessed were $243,875.  The majority of these fines ($190,000) were assessed in the CA.  Grading complaints totaled 958, with the majority in CA. Grading fines amounted to almost $180,000; of those, $120,000 are in the CA. The fines (the uniform civil citation) are no different than a traffic ticket - meaning when someone is cited they have the right to due process. Many people think the fines are not high enough and others think the fines are ridiculous. Mr. Winchester noted that only a few of the people who have contested tickets have been found not guilty. 

In response to numerous questions: fines/penalties are established in the County Code; not every complaint leads to a violation - the activity may be a permitted site that is in compliance; people have been jailed not because they disregarded what was told them they had to do but because they disregarded what the court said they must do; less than 5% of decisions are appealed; certain cases go directly to Circuit Court depending on the nature of the case; the CA Commission has requested that quite a few violations be referred to them for action; the State’s penalties are much more severe than the county’s;  patrolling is not as effective as we think it might be; and fines that are mandated by law increase for each violation.

Mr. Winchester described in detail three cases that were prosecuted by MDE through the attorney general’s office in the last five years. Shoreline hardening comes under MDE and is only allowed in areas that are subject to heavy fetch or are granted a waiver. The law says you cannot cut in the buffer area without prior approval and the approval comes in relation to a building permit, a grading permit or a buffer management plan.  Vegetation can be removed under a standard vegetation management plan with an obligation to replant on an equal basis. The cutting of invasive species in the buffer is an accepted horticultural practice.  A variance is needed if there is new construction going into the buffer. In the process of redeveloping a single-family dwelling in the CA one is subject to stormwater management. There is no provision in the state or local law that exempts you from addressing stormwater management. A two-day flyover assessment of the entire county shoreline is done every two years with the Office of Information Technology. Aerial photographs and a video resource show what was there last spring. The County will not acknowledge complaints that are not associated with a postal address. A change in this policy would need to come from the County Executive through the Director of I&P. 

Mr. Winchester said to help I&P do their job more efficiently, encourage people when they see something that doesn’t look right to call in and report the activity so it can be investigated. The most important thing to do is educate people about proper stewardship. 

Commission members thanked Mr. Winchester for his presentation and the useful information he provided to help better understand the CA enforcement process. Vlavianos noted this information will be discussed at the next SRC meeting.

The Minutes for the March 5, 2009, regular monthly SRC meeting was presented for approval. Minor spelling corrections were noted.

MOTION:  A MOTION, TO APPROVE THE MINUTES FOR THE MARCH 5, 2009, REGULAR MONTHLY MEETING OF THE SEVERN RIVER COMMISSION, WITH MINOR SPELLING CORRECTIONS, WAS MADE BY LUBBERT AND SECONDED BY SMITH.  THE MOTION WAS PASSED BY UNANIMOUS VOTE AND THE MINUTES WERE APPROVED AS CORRECTED.

Each March the SRC membership elects a Vice Chair.  Following a brief discussion, Hornor was re-elected as Vice Chair to the Commission.

MOTION:  A MOTION, TO RE-ELECT SALLY HORNOR AS SRC VICE CHAIR, WAS MADE BY REIGEL AND SECONDED BY LUBBERT.  THE MOTION WAS PASSED BY UNANIMOUS VOTE.

1. Shropshire was unable to attend the April meeting and Clagett was not present.
2. Riegel was appointed to the Article 16/17 Review Committee.
3. The SRC 2007-2008 Biennial Report was delivered.
4. The Indian Creek cleanup is scheduled for Saturday, April 4, 2009 headed up by Whitcomb.  Mike Robinson, brother of a former SRC member, is heading the Jabez cleanup.
5. The Severn River Association (SRA) is sponsoring a forum with the Severn River watershed County Council representatives on April 21, 2009.
6. A thank you letter was sent to David Bolton from MGS for his presentation to SRC on March 5, 2009, regarding the groundwater flow study.
7. Received a letter from the State Highway Administration (SHA) regarding the 61.5 acres, owned by SHA on Jabez Branch.  A decision was made to use the property for future SHA mitigation purposes and is not to be sold.

Critical Area Legislation (CA)

Schomig feels someone from County Forestry is needed to address the questions regarding the CA tree cutting policy and explain the scientific basis behind it.  He also has two other issues he wants addressed:  (1) does the state’s elimination of the Natural Resources Police air unit have any impact on the county’s ability to patrol its shorelines for CA violations, and (2) the effective practice, in his opinion, using criminal antitrust cartel enforcement.  Schomig will contact Mr. Winchester via email with these questions and will copy SRC members on the correspondence.

Vlavianos will request a County Forestry person to explain the logic of cutting trees leaning into the water.

Articles 16/17 Revisions

Riegel reported that the stormwater management committee is presently reviewing current regulations.  The next meeting will be held in June.  County staff is looking at the progress made thus far by the committee.

Annapolis

Smith will follow up with Steve Carr regarding Vlavianos’ suggestions at the Annapolis Watershed Forum.  The Commission is interested in what initiatives will be implemented and how successful they are.

General Development Plan (GDP)

Hornor reported the next Advisory Committee is scheduled for April 13.  Contentious discussions persist on future growth.  The final report is due late April.

Jabez Environmental Overlay Zone

Vlavianos reported that she has not heard from the County since the Subcommittee last met with AACo. Planning & Zoning Officer Larry Tom and his staff.  In a public statement last week about the Severn Report, Councilman Jamie Benoit acknowledged he is working on the Jabez Environmental Overlay Zone.

Whitcomb reported his replacement septic system permit has been issued.  The process was frustrating and long. 

Following a discussion and suggestion to follow-up, Whitcomb will draft a letter for Vlavianos’ signature to the AACo. Health Department requesting information about the number of applications and replacements of nitrogen reducing systems in the Severn River watershed were received and installed and the preliminary results on how effective the new systems are.

MOTION:  A MOTION, THAT WHITCOMB WILL DRAFT A LETTER TO THE AACO. HEALTH DEPARTMENT REQUESTING THE ABOVE INFORMATION, WAS MADE BY SCHOMIG AND SECONDED BY HORNOR.  THE MOTION WAS APPROVED BY A UNANIMOUS VOTE.

Lubbert reported the SRC website had 1,595 hits in March.  The monthly meeting agenda is now being posted on the website.

VOTE TO EXTEND MEETING

According to SRC Bylaws “. . . each meeting shall not exceed two and one-half hours unless extended by majority vote.”  The following motion was made and approved.

MOTION:  A MOTION, THAT THE MEETING BE EXTENDED TO DISCUSS THE REMAINING AGENDA ITEMS, WAS MADE BY REIGEL AND SECONDED BY WHITCOMB.  THE MOTION WAS PASSED BY UNANIMOUS VOTE.

NEW BUSINESS

Anyone interested in a Back Creek Park/Annapolis tour, contact Lubbert.

Schomig reported that DNR staff informed him that throughout the Bay and its tributaries, including the Severn River, the yellow perch spawning run this year appears to be one of the best in memory.  DNR believes, for whatever reason, the upper Bay has had such a bumper crop of yellow perch over the last several years they are migrating into other places.

Vlavianos noted that Nancy Duden’s (AACo. Office of Law) email she forwarded to SRC members was the result of her inquiry about the application of the Open Meetings Act at SRC meetings.  This came about because people who are not members of the SRC want to be given the right to speak at the Commission meetings.  Ms. Duden pointed out that “. . . the public is not afforded any right to participate but only to observe, is upheld in the case City of New Carrollton V. Rogers, 287 Md. 56,510 A.3d 1070 (1980).”  At a SRC retreat in 2000, the Commission had a lengthy debate about this topic and voted unanimously not to permit people to speak at the beginning of the meeting but to allow them to speak at the end.  Two issues are involved: (1) when to permit the public to speak; and (2) how to address interruptions to the meeting by the public.  Some SRC members feel it is important to show the Commission is open to public input from other sources; and when votes occur based on known information at that time, it is unfortunate only to provide for public input after the decisions have been made. It is better to get input earlier than later.  Others feel the public can contact a Commission member with their concerns and request it be brought up for discussion.  A suggestion was made to follow the model used in most institutions, to have a hard scheduled time early in the meeting that is rigorously enforced. 

Vlavianos reported that the AACo. Office of Law suggested that prior to SRC meetings she make an announcement that although this is an open meeting, the public is present to act as observers.  She has every right to hold all public comments until the designated time at the end of the meetings. 

On a trial basis the public will be given three (3) minutes at the beginning of the meeting to address a topic on the agenda.  All other topics will be addressed at the end of the meeting under Public Input.

Vlavianos reported The Capital is interested in publishing as a guest editorial an article she submitted on a topic that has not been seriously addressed.  She hopes the article will generate serious discussion by the Commission as well as the outside community.

PUBLIC INPUT 

There was no public input.

ADJOURNMENT

The meeting was adjourned at 6:45 p.m. The next monthly SRC meeting is scheduled for Thursday, May 7, 2009, 4:00 p.m., in the Severn Room (4th floor), 2664 Riva Road.