Councilmember Franklin responded to the post later that afternoon. On October 10, I wrote back to him, providing some feedback and suggested alternative approaches that might accomplish his goals of expediting and incentivizing transit-oriented development around Metro stations. Below is the text of my reply:
Dear Mel,
Thanks for your
reply. As I stated earlier, I applaud and join in your desire to find
ways to incentivize TOD around Metro stations. It’s sorely needed in this
county, and I and many others in the community stand ready to assist in that
effort. But I think the main thing folks are trying to stress to you at
this juncture is that (1) CB-79 isn’t the way to accomplish this goal, and (2)
even if it were, it’s being proposed in such a way and on such a fast track
that it doesn’t allow for proper deliberation, debate, and buy-in by all
stakeholders—particularly including the citizens who reside near these Metro
and MARC stations. These citizen voices,
and the voices of professional planners and smart growth advocates, matter just
as much as developer interests.
Finding the right
solution on TOD—a solution that the public can understand, trust, and believe in—is
not something that can be done at the
tail end of a legislative session, with an expedited zoning bill. This
discussion should happen early in the 2013 legislative session, through a
series of public meetings, where all stakeholders get a chance to hear each
other. Any major zoning changes regarding procedures relating to Metro station
area developments should wait until then.
As for your specific
comments on Subtitle 27A (the Urban Centers Code), I generally agree with you
that the “front-end” process, where the prescriptive regulating plan is
developed, should result in a more streamlined and certain development review
process on the “back end.” There is
certainly room to improve Subtitle 27A in that regard, and should definitely
have those discussions during the 2013 legislative session.
One Possible Solution: Eliminate
Council “Call-Up” Review from Subtitle 27A
One of the constant
points raised by the development community during the previous public meetings
on Subtitle 27A was that the site plan review process is too politicized,
arbitrary, and lengthy because of the Council’s “call-up” review
prerogative. As originally drafted by
M-NCPPC and the outside professional consultants, the Urban Centers Code did
not contain “call-up” review authority.
However, the Council added it in—thus re-introducing the uncertainty and
politicization of the regular Zoning Ordinance to the new Urban Centers Code.
One possible solution
to avoid such politicization and uncertainty would be to amend Subtitle 27A to (1)
remove the Council “call-up” review from the process and (2) have any
party-of-record adjudicatory appeals of the Planning Director’s final
administrative decision on any permit site application be heard by the Board of
Appeals instead of the Council, within certain specified time limits (e.g.,
hearings within 45 days; decisions within 45 days after hearing). Any further
appeals from the Board of Appeals would lie to the Circuit Court, not the
Council.
Under this proposal,
and as currently provided in Section 27-125.01, adjoining property owners, previous
parties of record, civic associations, and municipalities would be sent an
informational mailing in advance of the applicant’s submission of the permit
site plan to M-NCPPC and also upon the M-NCPPC’s acceptance of the
application. In addition, upon
acceptance of the permit site plan application, the property would be
posted
with a “Notice of Permit Application” sign, advising interested parties
of
their right to review the application, become parties of record, and
submit comments to M‑NCPPC. (This
would be similar to the existing procedure in Section 27-125.03(b),
except that
the party of record would not be entitled to request a public hearing
before the Planning Board in lieu of Planning Director review.) A copy of the
M-NCPPC Staff Report would be sent to parties of record. Then, all
parties
of record would be sent a notice
of the Planning Director's final administrative decision on the permit
site plan application. That notice would advise all parties of
their right to request a de novo adjudicatory hearing before the
Board of
Appeals within 20 days of the sending of the notice. The burden of
proof in any such hearing would be on the Planning Director to establish
that her decision on the permit site plan application was in full
compliance with Subtitle 27A and the applicable regulating plan. That
would be the one and only administrative hearing available in connection
with a permit site plan under Subtitle 27A -- thus eliminating the
duplication, uncertainty, and politicization of a second hearing before
the Council.
Let’s Allow Enough Time for Serious
Study and Discussion of These Important Issues
The above is only one
suggested approach. There are undoubtedly other approaches that may work just
as well to reduce politicization, arbitrariness, and delay in the process,
while still respecting public notice and hearing rights and providing accountability on all sides. All of these ideas should be discussed and
debated thoroughly, so that the County can arrive at the best solution. To do that, though, we should have this
discussion early during the 2013 legislative term.
Thanks again, Mel,
for your time. I look forward to
discussing these and other issues with you again soon.
Best regards,
Brad
