Reply to MOCO - County Wide Upzoning, Everywhere

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[quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous][quote=Anonymous]Here's the backdoor change to local zoning authority that the MM housing proposal will provide for any land owned by non-profits

A LOCAL JURISDICTION MAY NOT IMPOSE ANY UNREASONABLE LIMITATION
OR REQUIREMENTS ON A QUALIFIED PROJECT UNDER THIS SUBTITLE, INCLUDING
LIMITATIONS ON OR REQUIREMENTS CONCERNING:
(1) HEIGHT; (2) SETBACK; (3) BULK;

[/quote]

I can’t imagine wanting to invest in a project where I had to litigate whether a height or setback requirement was reasonable, especially in a Maryland court. There are plenty of lots (sadly, not near metro or MARC, and not even elimination of setbacks would make multifamily a better play than single family near metro) where I could build profitably and not have to litigate anything. Who wants to spend a million dollars on a lot and hundreds of thousands of dollars litigating whether something is unreasonable [b]when you could just buy something else, build right away, and exit with a nice profit within 12 months?[/b][/quote]

I don't think you're very familiar with the development process in Montgomery County.

[/quote]

Yes it doesn’t always take actual litigation to force the county to do something. Oftentimes the threat of litigation is enough to force the county to do what developers want. [/quote]

By “force” you mean go through an exceptive process and involving planning staff. That’s deadly. Maybe even worse than litigating. [/quote]

[b]Planning will create the rules and standards for this administration process[/b] with no accountability to the voters. It is a power grab by the planning department to circumvent the will of voters and ignore their obligations to MOCO. [/quote]

Look, people may not like the policy decisions being made, but there is nothing wrong with the process being used.  That is exactly how it is supposed to work.  There is no "power grab" when a group is exercising the power they were created to exercise.[/quote]

That is not their role. They are supposed to analyze the impact of policies and make recommendations for the county. [b]Not create zoning ordinances that give them control over the process by removing elected officials from rezoning[/b]. [/quote]

I genuinely don't understand this.

This is the first line of the most recent press release:  "Planning Board votes 5-0 to [b]recommend[/b] allowing more types of homes to be built countywide; [b]sends proposal to the County Council for review and approval[/b]
The last line of that press release:  "The final report [b]will be transmitted to the Montgomery County Council for review[/b] and Planning staff members are scheduled to brief the Council’s Planning, Housing, and Parks (PHP) Committee on June 24. The committee will hold work sessions on the recommendations this summer.

[u]There is no power being taken away from elected officials.[/u][/quote]

That’s not necessarily true because they acknowledge in their report the possibility that their recommendations will vitiate municipal regulation of lot coverage, height, and setback. These rules were adopted by and may be modified by local municipal council members and mayors, who are elected officials. Otherwise, I agree with you. Nothing happens unless the county council, which is directly elected, approves. 
[/quote]

I missed the part where the County itself is doing anything that may impede on local municipal authority.  Sincere question, where is that?
I know that the state legislation may, but not this proposal by the county?[/quote]

It’s in the report. [b]The state only allows municipalities without their own planning authority to regulate massing for single family homes.[/b] If multifamily is allowed by right on what are currently single family lots, then municipal setback requirements may not apply to new multifamily dwellings. The simple fix, if you want to protect the discretion of local elected officials, is to make clear in the ZTA that any local massing regulations for SFH apply to multifamily. Otherwise, it would require the state legislature to amend the authorities of municipal governments. If the municipal authority is re-established after the ZTA takes effect, it may not be enforceable for three years because state law enjoins enforcement of massing regulations for three years after the effective date. [/quote]

Huh?  I know for a fact that municipalities in MoCo have the authority to set and enforce lot size/massing/setback requirements for multi-family development....in fact every type of development including commercial.

I've read the report and don't see this in there.[/quote]

It’s on Page 50. [b]The municipalities without planning authority include Somerset, Chevy Chase, Kensington, and Takoma Park[/b]. I don’t think it’s right to claim that new multifamily will fit inconspicuously in the neighborhood if you’re also gutting the massing regulations, which play a big role in defining the built environment. [/quote]

That's just plain wrong. The Town of Somerset (incorporated 1906), the Town of Chevy Chase (1918), the Town of Kensington (1894), and the City of Takoma Park (1890) all have their own planning authorities. [/quote]

PP who admitted not knowing anything about this- if it is wrong, then the County got it wrong in their final report.  The PP who referenced page 50 had it right.  The report enumerates municipalities with planning authority- Brookeville, Poolesville, Laytonsville, Rockville, Barnesville, Gaithersburg, and Washington Grove.  Presumably, the others, while they may have planning departments that do some stuff, they don't have legal authority on planning?[/quote]

They do have legal authority on planning, though.

This is what it says on page 50: ZONING authority. Not planning authority.

[i]Municipalities with their own zoning authority (Brookeville, Poolesville, Laytonsville, Rockville,
Barnesville, Gaithersburg, and Washington Grove) are not affected by any changes to county zoning.
Under Section 20-509 of the State Land Use Article, other municipalities without their own zoning
authority may:
• Regulate only the construction, repair, or remodeling of single-family residential houses or
buildings on land zoned for single-family residential use as it relates to:
o residential parking;
o the location of structures, including setback requirements;
o the dimensions of structures, including height, bulk, massing, and design; and
o lot coverage, including impervious surfaces
Within the scope of this provision, a municipality may have more restrictive conditions under any of
these topics. For example, the Town of Chevy Chase generally has more restrictive setbacks and
height requirements than required in the county’s zoning code[/i]

https://montgomeryplanning.org/wp-content/uploads/2024/06/2024-AHS-Final-Report.pdf[/quote]

Ah, I see.  So is there a practical difference for purposes of the impact?  Or are you just correcting a minor error of saying "planning authority" v "zoning authority"?[/quote]

So if MOCO eliminates single family zoning wouldn’t Chevy Chase lose the authority to create different setbacks?[/quote]

No.[/quote]

Can you explain how you reach this conclusion?  I'm sincerely trying to understand.  The language in the report is ambiguous.  But at a minimum it indicates that there is a different impact on municipalities without zoning authority than those that do.  What is that difference?[/quote]

The difference is that Montgomery County does not have zoning authority over municipalities that have their own zoning authority. Whatever changes the County Council decides to make to the zoning code will not apply to municipalities that have their own zoning authority, because they have their own zoning authority.

Plus, if the county changes the zoning to allow for duplexes/triplexes/quadplexes, the land will still be zoned for single-family residential use. As far as I know, single-family residential use is allowed everywhere with residential zoning.[/quote]

The question that you answered "no" to was this:  "So if MOCO eliminates single family zoning wouldn’t Chevy Chase lose the authority to create different setbacks?"

Chevy Chase does not have zoning authority.  This means that CC only has authority to impose setback requirements in areas zoned as SF.  I gather you are saying that they are still zoned as SF even though other uses are permitted, therefore setback rules imposed by CC on SFH would also apply to multiplexes?

If that were an accurate reading, what would be the purpose of the state law OR the reference in the County report?  What do you think actually IS the distinction being drawn?[/quote]

That is possible you are correct. However, I don’t think this question can be answered with a high level of certainty unless there is existing state legal precedent to support this statement or until the state courts rule on this specific question. There will definite[/quote]

Can't they write it with contingencies to be clearer so people actually know what the impact would be?

Separately, this is one of the reasons people are suggesting the process is rushed. Why do this now? Why not wait until we learn more about the state law? Waiting would also reveal more about the impacts of policies like this in Arlington and Alexandria.[/quote]

I agree we need clarity on this issue.  I do not think that the County has the authority to resolve the issue in what they write, but they do have the ability to work with the state to do the legal analysis and clarify the impact.

I disagree that anything about this is "rushed."  It isn't a done deal and there have been years of development and engagement and will continue to be at least months before any version of this goes into effect.  The entire point of what is happening now is for people to review the recommendations and provide feedback that can be incorporated, or not before it goes to the Council for approval.

By analogy- last year Gov Moore introduced his "housing package" of legislation to make housing more attainable.  What came out the other end at the close of the legislative session was significantly different from the package.  Certain language and sections were tweaked and certain initiatives simply didn't pass.  That is where we are....

[/quote]

It is not the planning staffs fault this unexpected zoning change was thrown into the process, at the last minute.  However, it is irresponsible to pass a very significant and wide reaching ZTA without a comprehensive evaluation of how it interacts with the new state law.  [/quote]

PP here.  I agree with you.  But I don't think there is any chance it WILL be passed without that analysis.  There is time for that to happen.[/quote]

Aren’t they planning on voting for it in 2-3 months. It seems unlikely the planning department will have sufficient time to work on this analysis in that time frame. They have many other responsibilities that require their time and it took them years to get to this point on the project. I doubt there is enough time to conduct a thorough analysis in a couple months with current staffing levels. [/quote]

They can delay the vote if they need to.  It also isn't really a complicated analysis, and would likely not be conducted by the planning departments themselves, but rather legal council.[/quote]

It is complicated they need the legal group to analyze it, research how it will be apples and see whether court precedents exist. Then the planing staff needs to identify every parcel in the county that has ever been owned by the state government, federal government or a non-profit to determine the scope of parcels potentially covered under this law. There are more than 200 years of property records to search through. [/quote]

Any ownership history since 1787 potentially creates eligibility for the some of the provisions under this law.[/quote]

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