Wednesday, October 10, 2012

Follow-Up Response to Councilmember Mel Franklin on CB-79

On October 9, over on Greater Greater Washington, I wrote a post critiquing CB-79, a controversial zoning bill proposed by Councilmember Mel Franklin (D-District 9). The bill seeks to exempt development projects within a half-mile of Metro stations from public hearings and site plan review. 

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,