March 20, Mr. Steven Dodd, Executive Secretary Dorchester County Board of Zoning Appeals County Office Building P.O. Box 307 Cambridge, MD 21613

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1 March 20, 2008 Mr. Steven Dodd, Executive Secretary Dorchester County Board of Zoning Appeals County Office Building P.O. Box 307 Cambridge, MD RE: Dorchester County Board of Zoning Appeals Case #2338 Dear Mr. Dodd and members of the Board: The Chesapeake Bay Foundation (CBF) appreciates this opportunity to provide comments on the application of William W. McAllister, Jr., Esquire, on behalf of Horsey Family, LLC, for a special exception to operate a sand and gravel extraction facility at 5603 Sharptown Road, Rhodesdale, Maryland. CBF maintains a substantial interest in the use of lands on and around the subject property. Our nationally-recognized environmental education program maintains a use agreement with a property in the immediate vicinity of the proposed mine site. Several days each year, our field educators lead trips that include camping and paddling along Marshyhope Creek near the proposed mine site. CBF also conducts community outreach through its Heart of the Chesapeake project office based in Salisbury, MD, where promoting sound land use policy in the Nanticoke region is a priority. In 1996, CBF published a detailed Natural and Cultural Resources Atlas of the Nanticoke River watershed. As an important Eastern Shore tributary to the Chesapeake Bay, we maintain a strong interest in the entire Nanticoke River complex. Position Summary The subject site is centrally located in one of the most unique and valuable natural areas remaining in the Chesapeake Bay watershed. Large tracts of undisturbed forest and marsh filter nutrient and sediment pollution to such a degree that the Dorchester County 1996 Comprehensive Plan affirmed the Nanticoke River as the most pristine, untouched river on the Eastern Shore. 1 The State of Maryland s Green Infrastructure inventory identifies the 1 Dorchester County 1996 Comprehensive Plan, p. 7-1.

2 subject site as part of a highly productive hub of environmental resource lands, 2 and the site is also classified as part of a Natural Heritage Area. 3 The Maryland Department of Natural Resources has identified 10 rare, threatened or endangered species and two rare community types (one globally rare) that are likely to be severely impacted by the proposed surface mine. 4 Within this context, the Board of Zoning Appeals is directed to evaluate whether a surface mine on this site would have a greater adverse impact than other sites in the same zoning district 5 (see also Schultz v. Pritts, 291 MD. 1 (1981)). In allowing surface mines as special exceptions, rather than permitted uses, the County Code anticipates that certain sites within the AC and AC-RCA districts are not appropriate for surface mining. Given the unique characteristics described in these comments, CBF strongly believes that the subject site is a highly inappropriate location for surface mining within the County s agricultural zoning districts. In this instance a surface mine would result in unique, atypical and severe adverse impacts. CBF submits the following in support of this position: 1. The application does not meet several standards pursuant to Section (C) of the Dorchester County Code; and 2. The application is inconsistent with certain state and local statutes, regulations, and guidelines, including the Dorchester County Critical Area Program. In consideration of these issues, the Chesapeake Bay Foundation, Inc., in its own right and on behalf of its members, joins with many local stakeholders to request that the Board deny the application for a surface mine on the subject site. Standards for granting a special exception Consistency with the Comprehensive Plan In order to grant this special exception, the Board must find that the proposed use is consistent with the County s Comprehensive Plan. 6 While the 1996 Dorchester County Comprehensive Plan supports surface mining in natural resource areas generally, the Plan specifically targets the lands along the Marshyhope for very limited development, for preservation, and for the encouragement of tourism-based uses (see map entitled Land Use Concept Plan, attached). 7 2 Green Infrastructure Hubs and Corridors [shapefile] v5.1, Maryland Department of Natural Resources, Maryland s Natural Heritage Areas boundaries [shapefile], Maryland Department of Natural Resources, Letter to Steven Dodd dated March 12, 2008 from the Maryland Department of Natural Resources, pp County Staff Report dated March 20, 2008, p (c)(1)(a) of the Dorchester County Code. 7 Figure 2.1 Land Use Concept Plan, 1996 Dorchester County Comprehensive Plan; also see 2-17 to 2-19.

3 As preservation, and to a certain degree eco-tourism, are incompatible with major industrial uses, the Comprehensive Plan does not favor this particular site for use as a surface mine. Harmony with the general character of the neighborhood Among other considerations, the Board must find that the proposed surface mine would be in harmony with the intensity and character of activities within the surrounding area. 8 CBF notes that current activities in the vicinity of the proposed mine are largely limited to agricultural, low density residential, forested, and conservation uses. Both CBF and the Boy Scouts conduct outdoor education at the nearby Walnut Landing Farm and Henson Scout Reservation. In addition, the neighborhood also consists of an unusually high proportion of preserved lands (see map entitled Protected Lands Dorchester County, MD, attached). 9 The location of this particular site within a corridor where field education and land conservation are shown to be predominant uses demands the Board s most intense scrutiny of whether an activity classified as industrial by the County Code 10 is in harmony with the activities of the surrounding area. CBF believes that the proposed use is incompatible with the character of the area. Potential detriment to surrounding properties Before granting a special exception, the Board must find that the proposed use will not have an unusually large detrimental impact upon the use, peaceful enjoyment, and economic value of surrounding properties. 11 As previously discussed, substantial investments have been made in the procurement and use of nearby and adjoining properties for conservation and field education purposes. 12 The value of these properties within the context of conservation is tied to the continued viability of their exceedingly rare environmental resources. Case law has established a precedent for the Board s consideration of environmental impacts when determining the suitability of a particular site for a proposed special exception. 13 The Maryland Department of Natural Resources projects significant long-term adverse impacts to these resources, including the globally rare Wades Savanna habitat, if surface mining proceeds on this site. 14 Thus, CBF believes that the proposed use threatens the conservation investments made in surrounding properties. While a surface mine of the same design would be expected to change local hydrology in most any location, there are likely many sites within the AC zoning district with local environmental conditions far less sensitive to such a change (c)(1)(b) of the Dorchester County Code. 9 Protected Lands Dorchester County, MD map, Eastern Shore Land Conservancy, dated February 26, Table of Permitted Uses by Zoning District, Dorchester County Code, p (c)(1)(c) of the Dorchester County Code. 12 For example, see the letter to the Board of Zoning Appeals dated March 10, 2008, from the Boy Scouts of America, pp Moseman v. County Council of Prince Goerge s County, 99 Md. App. 258 (1994). 14 Letter to Steven Dodd dated March 12, 2008 from the Maryland Department of Natural Resources, pp. 1-4.

4 Consistency with applicable statutes, regulations, and guidelines 15 Restoration guaranty The Dorchester County Code requires that the Board shall obtain an adequate bond or other satisfactory guaranty to ensure the restoration of the land to a safe and usable condition 16. County Staff reports that this condition has not been addressed. 17 Most importantly, CBF relying upon the expert commentary supplied by the Maryland Department of Natural Resources - submits that the impacts to the hydrology of the Wades Savanna on and offsite would be severe and irreversible. Habitat Protection Areas The County Code restricts surface mining from Habitat Protection Areas. 18 The State of Maryland Critical Area Commission has determined that the proposed mining project is prohibited based on the presence of and impacts to HPAs. 19 Wetland Buffers The state Department of Natural Resources recognizes Wades Savanna as a Non-tidal Wetland of Special State Concern. The application does not meet the 100 wetland buffer required in the Code of Maryland Regulations, nor does it account for the extensive hydrologic impacts projected by MD-DNR. In addition, the Department of Natural Resources guidelines for Delmarva Fox Squirrel habitat call for expanded wetland buffers (100 to 300 ) that are not reflected in the application. 20 Dorchester County Critical Area Program A significant portion of the proposed surface mine would be located within the Resource Conservation Area (RCA) of the Chesapeake Bay Critical Area. As such, the proposed use is subject to the provisions of the Dorchester County Critical Area Program in addition to local zoning requirements. Restrictions on surface mines in the RCA are codified under Article V.C. Mineral Resources Plan of the County s Critical Area Program, in accordance with COMAR Among other restrictions, these provisions prohibit surface mining where: threatened or endangered species, rare groupings of species, areas of scientific value, or other important natural resources occur, and; 15 The Board of Zoning Appeals must find that all applicable requirements have been satisfied pursuant to (c)(1)(h) of the Dorchester County Code (BB)(3) of the Dorchester County Code 17 County Staff Report dated March 20, 2008, p (E)(5) of the Dorchester County Code. 19 Letter to Steven Dodd dated March 20, 2008 from the State of Maryland Critical Area Commission. 20 Letter to Steven Dodd dated March 12, 2008 from the Maryland Department of Natural Resources, p. 4.

5 where the use of renewable resource lands would result in substantial loss of long range (25 years or more) productivity of forest and agriculture, the degradation of water quality, or loss of vital habitat. 21 The applicant proposes the permanent conversion of approximately 140 acres (43.82 acres in the Critical Area) of agricultural land and forested FIDS/Delmarva Fox Squirrel habitat 22 to an open-water lake. 23 In addition, the application fails to provide the required wetland buffers that are necessary to protect the state and globally rare wetland areas located on and adjacent to the property. 24 These vital habitat losses directly conflict with the above listed surface mining provisions of the County s Critical Area Program. These conflicts are described in greater detail by a letter from the State of Maryland Critical Area Commission, and CBF incorporates that letter into these comments by reference. 25 Conclusion To grant approval to the application, the Board must find that the special exception will not cause more harm on this site than if it were located somewhere else in the same zone. 26 The passing and non-specific reference by the applicant to similar mining facilities exist[ing] in this area of Dorchester County is not sufficient to establish this particular site s suitability for surface mining under the strictures of the County Zoning Ordinance, the County Comprehensive Plan, the County Critical Area Program, and certain state regulations. Atypical, unique and severe impacts, as defined by the Board s standards, are highly likely to occur as a result of the proposed use on this particular site. In addition, the application does not appear to meet certain applicable regulations and requirements. Lastly, we do believe that this project would cause less harm if it were located on a site that is not adjacent to a river, next to properties used for recreation and environmental education, and located amidst several thousand acres permanently protected for the benefit of wildlife and water quality. Therefore, the Chesapeake Bay Foundation respectfully requests that the Board deny the special exception application. 21 Dorchester County Critical Area Program (2001), p Letter to Steven Dodd dated March 12, 2008 from the Maryland Department of Natural Resources, p Applicant s Overall End Use Plan, undated. 24 Letter to Steven Dodd dated March 12, 2008 from the Maryland Department of Natural Resources, p Letter to Steven Dodd dated March 20, 2008 from the State of Maryland Critical Area Commission. 26 Schultz v. Pritts, 291 MD. 1 (1981). The Schultz standard is summed up in the following quotation: the special exception use is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general intent and purpose of the plan These standards dictate that if a requested special exception use is properly determined to have an adverse effect upon neighboring properties in the general area, it must be denied.

6 CBF appreciates the Board s dedication to Dorchester County and its thoughtful consideration of the special constraints applicable to the subject site in this case. The Board should feel welcome to contact Alan Girard at with any questions it may have in regard to the issues raised herein. Sincerely, Kim Coble, Maryland Executive Director Chesapeake Bay Foundation