Talbot County Proposed Ordanance: "Right to Fish"

During my campaign for County Council in 2006, I offered an initiative to create a zoning ordanance similar to our existing "Right to Farm" to protect the interests of our watermen and, more important to me, to protect long standing traditions, our rural character, quality of life in, perhaps, the very future of the most unique place in all of Maryland if not the entire United States. There is simply no other place like Talbot County, its worth every once of energy to preserve its heritage and our watermen are very much a significant component of our heritage. I recently (Dec 2008) provided our County Council with a draft of an ordanance I believe would "fill the bill". To date, our Council has elected to ignore this draft, essentially relegating it to the dust bin of history. I disagree and have decided to share my draft publically. The text of my draft follows:

129-1 Findings and policy.
A. It is declared policy of Talbot County to preserve, protect and encourage the
development and improvement of its waterways for the harvesting of seafood. It is the
purpose of this chapter to reduce the loss to the County of its commercial seafood and
fishing industry by limiting the circumstances under which commercial seafood and
fishing industry operations may be deemed to constitute a nuisance, trespass, or other
interference with the reasonable practices associated with the preparation and activity of
and to handle, harvest, buy, sell, load, unload, transport and process commercial seafood,
including, but not limited to, boats leaving and returning at all hours, painting crab pots,
chemicals, paints, dust, power tools, maintenance of boats and any and all other
equipment, running and operation, noise, smell and presence of machinery and equipment
associated with commercial seafood operating at any and all hours; provided that nothing
in this chapter shall in any way restrict or impede the authority of the state and of the
County to protect the public health, safety and welfare.
B. It is in the public interest to promote a clearer understanding between seafood industry
operations and residential neighbors concerning the normal inconveniences of seafood
industry operations which follow generally accepted seafood industry practices and do
not endanger public health or safety.
C. This chapter is not intended to and shall not be construed as in any way modifying or
abridging local, state or federal laws relating to health, safety, zoning, licensing
requirements, environmental standards (including those standards which relate to air and
water quality), and the like.
D. An additional purpose of this chapter is to promote a good neighbor policy by advising
purchasers and users of property adjacent to or near commercial seafood operations of the
inherent potential problems associated with such purchase or use. These potential
problems include, but are not limited to, boats leaving and returning at all hours, painting
crab pots, chemicals, paints, dust, power tools, maintenance of boats and any and all
other equipment, running and operation, noise, smell and presence of machinery and
equipment associated with commercial seafood operating at any and all hours. It is
intended that, through mandatory disclosures, purchasers and users will better understand
the impact of living near commercial seafood operations and be prepared to accept
attendant conditions as the natural result of living in or near rural and urban areas.
However, this chapter shall be effective regardless of whether disclosure was made in
accordance with § 129-5 herein ("Right to operate Seafood Industry and Real Estate
Transfer Disclosure").
129-2 Definitions.
COMMERCIAL SEAFOOD OPERATION
Includes, but is not limited to, all matters relating to the harvest of seafood in Talbot
County, including boats leaving and returning at all hours, painting of crab pots, bait, salt,
paints, dust, power tools, maintenance of boats and any and all other equipment, running
and operation, noise, smell and presence of machinery and equipment associated with
commercial seafood operating at any and all hours but not limited to workers, boats,
generators, ice making, refrigerated trucks, chum trucks, boilers, steam generators,
cooking, fork lifts, heating equipment, cooling equipment, soft crab shedding equipment,
tanks, pallets, cooking baskets and drums.
GENERALLY ACCEPTED SEAFOOD INDUSTRY PRACTICES
Those methods used in connection with the commercial seafood and fishing industries
which do not violate applicable federal, state or local laws or public health safety and
welfare and which are generally accepted commercial seafood and fishing practices in the
commercial seafood and fishing industry. Generally accepted seafood industry practices
include practices that are recognized as best management practices and those methods
which are authorized by various governmental agencies, bureaus and departments. If no
generally accepted seafood industry practices exist or there is no method authorized by
those agencies mentioned herein which governs a practice, the practice is presumed to be
a generally accepted seafood industry practice.
HEALTH OFFICER
The Director, Talbot County Health Department or his designee.
LAND
All real property within the boundaries of Talbot County and all territorial waters,
rivers, bays and creeks located within or definingTalbot County.
129-3 Limitation of actions.
A. A private action may not be maintained with respect to a seafood industry operation
on the grounds that the seafood industry operation interferes or has interfered with the use
or enjoyment of property, whether public or private, if:
(1) The seafood operation has been under way for a period of one year or more and if the
operation or any future change in the operation did not constitute a nuisance from the
date the operation or change in the future operation began; and,
(2) The seafood operation is conducted substantially in accordance with generally
accepted seafood industry practices.
B. Notwithstanding any provision of this section, no action alleging that a seafood
industry operation has interfered with the reasonable use or enjoyment of real property or
personal well-being shall be maintained if the plaintiff has not sought arbitration through
Seafood Reconciliation Committee.
129-4 Resolution of disputes and procedure for complaints, investigation and
declaration.
A. Nuisances which affect public health.
(1) Complaints. A person may complain to the Dorchester County Health Department to
declare that a nuisance which affects public health exists.
(2) Investigations. The Health Officer may investigate all complaints of nuisance
received against a seafood industry operation. When a previous complaint involving the
same condition resulted in a determination by the Health Officer that a nuisance
condition did not exist, the Health Officer may investigate the complaint but the Health
Officer may also determine not to investigate such a complaint. The Dorchester County
Health Department may initiate any investigation without citizen complaint.
(3) After the Health Officer has completed his investigation, he will report his findings to
the Seafood Reconciliation Committee, to aid in its determination as to the existence of a
nuisance.
B. Seafood Reconciliation Committee.
(1) If any conflict cannot be resolved regarding an interference with the use or enjoyment
of property from seafood industry operations, the parties to that controversy may file a
written complaint with the Seafood Reconciliation Committee.
(2) There is hereby established the Dorchester County Seafood Reconciliation
Committee, which shall arbitrate and mediate disputes involving seafood operations and
issue opinions on whether such seafood operations are conducted in a manner consistent
with generally accepted seafood industry management practices.
(3) The Seafood Reconciliation Committee shall be composed of five persons, all County
residents, all of whom shall have a seafood industry background, and shall be appointed
by the County Council. Members of the Committee shall serve a three-year term;
however, the initial appointments shall be as follows:
(a) One member shall be appointed to serve a one-year term;
(b) Two members shall be appointed to serve a two-year term;
(c) Two members shall be appointed to serve a three-year term.
(d) After these initial appointments, all appointments shall be for a full three-year term.
(4) The Seafood Reconciliation Committee will conduct its proceedings in an informal
manner and the rules of evidence shall not apply. In each case before it the Seafood
Reconciliation Committee shall engage in nonbinding arbitration in controversies arising
out of seafood industry operations, including but not limited to the invasion of property
and personal rights by seafood industry operations.
(a) If the Seafood Reconciliation Committee or a court finds that the conduct of a party in
bringing or maintaining an action in connection with a seafood industry operation was in
bad faith or without substantial justification, the Seafood Reconciliation Committee or
court shall require that party to pay to the owner of the seafood industry operation (or any
other party opponent) the costs of the proceeding and the reasonable expenses, including
reasonable attorney's fees, incurred by that party in defending against the action.
129-5 RIGHT TO OPERATE SEAFOOD INDUSTRY, REAL ESTATE
TRANSFER DISCLOSURE
A contract or an addendum to the contract of sale for any real property in Talbot County
shall contain in conspicuous type the following disclosure statement:
RIGHT TO OPERATE SEAFOOD INDUSTRY, REAL ESTATE TRANSFER
DISCLOSURE
Notice To Buyer
TALBOT COUNTY ALLOWS SEAFOOD INDUSTRY OPERATIONS (as defined in
the Talbot County Seafood Industry Right to Work, Chapter XXX of the Talbot County
Code). You may be subject to inconveniences or discomforts arising from such
operations, including but not limited to boats leaving and returning at different hours of
the day, odors, fumes and noises associated with the maintenance of boats and any and all
other equipment, noise, smell and presence of machinery and equipment associated with
commercial seafood operating at various hours, including but not limited to workers,
boats, generators, refrigeration, ice making, refrigerated trucks, chum trucks, all other
trucks, boilers, steam generators, boats, cooking, fork lifts, heating equipment, cooling
equipment, soft crab shedding equipment and lighting. Talbot County has determined that
inconveniences or discomforts associated with such seafood industry operations shall not
be considered to be an interference with reasonable use and enjoyment of land, if such
operations are conducted in accordance with generally accepted seafood industry
practices. Talbot County has established a reconciliation committee to assist in the
resolution of disputes which might arise between persons in this County regarding
whether seafood industry operations are causing an interference with the reasonable use
and enjoyment of land or personal well-being and whether those operations are being
conducted in accordance with generally accepted seafood industry practices.
Seller:
Date:
Seller:
Date:
I/WE ACKNOWLEDGE RECEIPT OF A COPY OF THIS STATEMENT:
Buyer:
Date:
Buyer:
Date:
IF YOU DESIRE LEGAL ADVICE, CONSULT YOUR ATTORNEY.