All posts by David Lublin

Yes to Racial Equity and Social Justice. No on this Legislation.

Montgomery County has decided to tackle racial equity and social justice with legislation sponsored by Council President Nancy Navarro and supported by the entire County Council and County Executive. As Bethesda Beat reported:

The bill would establish a countywide racial equity and social justice program, according to language introduced Tuesday in a council session. It also calls for a separate Office of Racial Equity and Social Justice.

It would require a countywide equity action plan and individual plans for each of the more than 30 executive departments and offices, including Montgomery County Public Libraries and the county’s police department.

The act would require a racial equity and social justice impact statement at the end of every bill, program, or master plan submitted before the council.

Unfortunately, this bill will do little to address either racial equity or social justice in any meaningful way. But it will create a new county office and take up many hours of time by county bureaucrats in other offices that could be better spent on county services, including existing policies that promote the goals of the legislation.

What Will Happen

Bureaucrats will respond to the requirement for action plans by deploying personnel to writing plans that demonstrate (surprise!) that their current approach promotes racial equity and social justice. These numerous new reports will be more produced than read but will satisfy the new mandate from their political masters.

Similarly, all new bills, programs and master plans will have racial equity and social justice impact statements arguing for their positive impact. It’s hard to imagine that the people who write the impact statements on new bills or new master plans will write negative reviews of proposals by the people who employ and supervise them.

What is Racial Equity and Social Justice?

Debates over the nature of racial equity and social justice give the writers of these many new required plans and impact statements more flexibility than Gumby. Consider the following examples:

Raises for County Employees. As I pointed out not too long ago, the County Council voted to give delayed pay increases to all county unions except MCGEO–the only majority female and majority minority union in the county. Yet Navarro still took umbrage at the idea that she had overlooked racial equity.

Ironically, Navarro focused on the budget as a primary reason to pass her racial equity legislation: “Budgetary decisions are where the rubber meets the road.” The bill’s primary sponsor failed her own blue chip test for racial equity. Or else the idea is so malleable as to lack real meaning.

Purple Line. The new light rail line is touted as making it easier for poorer people to travel to work. Except that transportation access raises property values, making it harder for poorer people to continue to afford rents around light-rail stops. It also encourages property owners and developers to redo or to tear down existing apartments to attract higher paying tenants, rendering existing residents homeless.

The Purple Line has already created pressure to rezone areas populated by low income residents and businesses. The County Planning Board rejected a proposal to rezone the light industry area in Greater Lyttonsville along the Purple Line to a CR (commercial-residential zone) on a 4-1 vote. This highly diverse area (see pp. 12-13) is home to many small businesses owned by African Americans and Latinos that would have been displaced by the zoning change. The sole vote in favor was Planning Board Chair Casey Anderson, who was recently unanimously reappointed by the same Council that sponsored the racial equity and social justice bill.

Casey can reasonably argue that the decision will reduce the county tax base over the long term, giving it less money to spend on racial equity and social justice. Possibly true but cold comfort for the immigrant and minority-owned businesses that would have been ejected. In any case, arguments can be marshaled for or against policies like the Purple Line and zoning changes on racial equity and social justice grounds. The required reports will likely often be political documents rather than objective analyses.

Won’t Address the Problems Cited by Councilmembers

Here are some of the rationales for the legislation reported in Bethesda Beat:

Council member Will Jawando said he experienced racism for the first time in fourth grade — a lobbed slur as he brushed past an older white women [sic] on the street.

Unemployment is three times higher in District 5, a diverse region with a majority black population, than in the rest of Montgomery County, Council member Tom Hucker said.

Council member Craig Rice raised two daughters who thought people didn’t see skin color, he said, until one of them was the target of a racist taunt on the school bus last week.

“It’s a reminder that there’s a systemic issue here and we need to make sure we’re doing everything we possibly can to change things,” Council member Sidney Katz said at the council session.

Churning out more reports isn’t going to stop racists from calling people ugly and awful racist slurs or prevent children from learning them. I wish it would. I would love for Will Jawando not to experience them, and Craig Rice not to have to explain them to his beautiful daughters.

Most of the county budget goes to schools and basic services like police and fire, so the county’s ability to tackle larger problems like the unemployment rate gap is somewhat limited beyond its very smart decision to continue investing heavily in Montgomery College. In any case, systemic reports won’t do anything about it.

Our Past and Ongoing Commitment

If one views our county’s budget as a moral document, it reflects the county’s long-term commitment to racial equity and social justice.

We dedicate roughly one-half of our spending to the public schools, as part of our effort to assure that every kid has an opportunity. The county schools continue to include more kids of color and more from poorer backgrounds (often not the same). Moreover, MCPS directs substantially more funding to the schools with poorer kids who tend to have greater needs and parents with less means to meet them.

In short, the wealthier areas of the county pay a disproportionate share of taxes, but a disproportionate share of funding goes to schools outside their neighborhoods. That’s entirely as it should be. It’s makes me proud to live in Montgomery. This is not new policy but a very long-term commitment.

In a similar vein, we pay county employees well and give them good pensions. The county works hard to make sure that pensions are fully funded, a commitment that Ike Leggett worked mightily hard to keep as the county coped with the economic downturn’s enormous budget crunch and newfound demands from rating agencies for higher funding. It goes without saying that the county supports and works with unions.

If all of this isn’t social justice, then what is?

I also have little doubt of the concern of each and every councilmember in this area. I don’t think that Nancy Navarro believes that she or other longtime councilmembers, like Craig Rice or Hans Riemer, have failed this test year after year. Marc Elrich became county executive on a platform to combat exactly these sorts of problems.

Did past councils, who put the progressive structure of our county government in place, really ignore these questions? I may often disagree with this or that Montgomery politician, but I’d be hard pressed to name one who doesn’t care. Did Ike Leggett in his long tenure on the county council or three terms as county executive ignore these problems? How about Howie Denis? Or was it Roger Berliner, Nancy Floreen, and George Leventhal?

I’ll take the county council at its word that the proposed bill comes out of a sincere desire to represent the support of Montgomery voters to continue to move forward on these issues. But instead of passing a bill that will mainly generate mounds of reports, it should spend more time engaging with the tough work on issues from affordable housing to making sure students from all backgrounds have the skills and support they need.

Nevertheless, I have no doubt that the proposal will pass easily. The chances of the Montgomery County Council voting this down are about as likely the Montgomery County Republican Party sending me an email in support of undocumented immigrants. No Democrat wants to be seen opposing racial equity or social justice. It is just not worth the ire from progressives attacking one as a racist or insufficiently committed to stamping it out.

That’s a pity. We need fewer totems of our commitment and more of the hard and sadly often not headline-grabbing work of delving into policy that making real change on these difficult issues entails.

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Jealous’s Latest Float Vaporizes

Ben Jealous had invited speculation that he’d run for mayor of Baltimore but pulled out as the race picked up. In the wake of Rep. Elijah Cummings’s sad passing, history has repeated itself at a faster pace around the open seat:

Jealous said in a text that his attention is “on running the kids to baseball and rowing practices, keeping door open to run for governor.”

Weird how the kids don’t need to attend practice in gubernatorial election years. Of course, it’s no stranger than the Democrat who got blown away with just 43.5% in a stellar Democratic year thinking that he should run again. That’s a lower share than received by any Democratic nominee in the last 50 years.

Regardless, Jealous would have been an odd successor to Cummings. While Jealous is a Juul consultant , Cummings broke ground in the fight against big tobacco:

In the Maryland House of Delegates, where Mr. Cummings served from 1983 to 1996, he championed a ban on alcohol and tobacco ads on inner-city billboards in Baltimore — the first prohibition of its kind in a major U.S. city.

The 1980s were the glory days when you could still smoke on airplanes and Joe Camel marketed smoking as cool to kids. Ben Jealous’s client, Juul, has been accused of similarly targeting teenagers.

The sales campaigns for Juuls — now hugely popular with teenagers across the nation — are at the heart of a federal investigation into whether the company intentionally marketed its devices to youth. The attorney general of Massachusetts, also investigating the company, contends that Juul has been luring teenagers to try the product and has introduced many to nicotine.

“From our perspective, this is not about getting adults to stop smoking,” the Massachusetts attorney general, Maura Healey, said in an interview. “This is about getting kids to start vaping, and make money and have them as customers for life.”

Elijah Cummings took the battle for kids against big tobacco to Annapolis. “Progressive” Ben Jealous just took the money.

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Filling Sad Vacancies

Rep. Elijah Cummings was one of those people who truly grew in stature and value to the country over time. His indefatigable stand against ceaseless efforts to deprave our institutions from the Benghazi witch hunt to his ringing words fighting Trump’s seemingly bottomless corruption provided badly needed moral voice and leadership. Nor did he forget problems at home even as he led on national questions.

Seventh District Vacancy

The Baltimore Sun explained the process for filling this sad vacancy:

Gov. Larry Hogan has 10 days to issue a proclamation stating a special primary election and a special general election will be held to fill the vacancy, according to the law. The seat will remain vacant until then.

The special primary election shall be held on a Tuesday that is at least 65 days after the proclamation was issued and the special general election shall be held on a Tuesday that is at least 65 days after the primary.

That’s near the end of February at the absolute earliest.

“The whole process could be five months,” said Jared DeMarinis, the state elections board’s director of candidacy and campaign finance. “And that’s moving it along.”

Hogan’s spokesman, Mike Ricci, said Thursday morning that it wasn’t clear yet when the special election would take place.

The elections board needs that window of time to get procedures in order. Ballots will need to be printed and sent out, along with other logistics.

“What we’re waiting for is when the governor issues the proclamation,” DeMarinis said. “That fills in all the gaps.”

In short, it depends how fast Gov. Hogan moves to call the election. The Third District takes in portions of Baltimore City, Baltimore County and Howard County.

While I imagine many will be eyeing this rare opening, I suspect that Cummings’s widow and current Maryland Democratic Party Chair Maya Rockymore Cummings would be a lock for the seat if she seeks it. Beyond being this respected representative’s widow, she raised her own profile through her gubernatorial run and then her successful run for Democratic Party Chair in the wake of the 2018 election.

Oversight Chair Vacancy

Cummings’s passing is a also a loss for Maryland’s influence in the U.S. House. On the House Oversight and Reform Committee, Cummings’s chairman’s gavel will be up for grabs. The committee has played a critical role in the impeachment inquiry.

Based on strict seniority, the post would go to Carolyn Maloney (NY 12), who has been named acting chair. Just behind her are Eleanor Holmes Norton (DC AL) and William Clay (MO 01). Norton, who also possesses significant legal chops, would be the first DC delegate to chair a committee.

Rep. Jamie Raskin (MD 08) is also a rising star on this committee. After just a couple of terms, he’s already eighth in seniority, which puts him ahead of fifteen other Democrats but still probably too junior to leapfrog into the post.

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Progressive Juuling with Ben Jealous

After Gov. Larry Hogan trounced him at the polls in 2018, Ben Jealous moved fast from his job as a venture capitalist to combining it with new work as a corporate consultant for Juul. Jealous’s hiring appears part of a larger effort to blackwash the vaping company through strategic donations and hiring connected African-American leaders.

The corporately credulous may believe that Jealous is taking Juul’s money in order to keep kids away from vaping. The FDA called out Juul for illegally claiming that its harmful products are safer than cigarettes. Juul is also being sued for marketing to youth. Montgomery County filed its own lawsuit against Juul last week.

Progressive Maryland (PM) has not only ignored Jealous’s ties to a truly awful corporation but also embraced him since he started working for Juul.

PM brought Jealous in to speak on mass incarceration at a September event. During his campaign, Jealous oddly used statistics from Georgia rather than Maryland on this topic. He also made no mention of significant reforms made thanks to General Assembly Democrats. Maryland Matters coverage of the PM event similarly quotes Jealous on the issue from a national rather than a state perspective.

Jealous used Progressive Maryland’s platform to tout a potential 2022 gubernatorial bid. This comes shortly after he dropped a floated bid for mayor of Baltimore because he wants to spend more time with his 7- and 13-year old kids. “I’ve really got to focus on running my daughter to rowing practice in South Baltimore and running my son to baseball practice in Roland Park.”

Jealous nonetheless felt okay with running for governor two years ago and already is making soundings for a 2022 run, so it seems more likely that other reasons came into play. Hogan criticized Jealous for his recent residence in Maryland—the 2018 primary was the very first in which he voted in Maryland. His Baltimore residency is of even more recent vintage.

Running for mayor might also have entailed needing to explain all that addictive Juul money. Taking big bucks from a company that is being sued for getting kids hooked on vaping instead of phonics may go down well at Progressive Maryland. A harder sell to the electorate.

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Jones and Miller Appoint Former Pharmaceutical Lobbyist to Drug Affordability Board

Speaker Adrienne Jones and Senate President Mike Miller have appointed Van Mitchell, one of the most experienced and trusted Marylanders on health care policy, to the Prescription Drug Affordability Board. Unfortunately, Mitchell also has conflicts of interest that would give most pause before making the appointment.

Van Mitchell is awash in valuable experience for his new position on the Prescription Drug Affordability Board. A former Democratic legislator from Charles County, Mitchell served on the appropriations committee and understands the importance of health care in balancing the state budget. Known as a bipartisan, straight shooter, Mitchell also served as principal deputy health secretary under Gov. Bob Ehrlich and later as secretary of health during the first two years of Gov. Larry Hogan’s first term.

But Mitchell worked as a lobbyist between his two stints at the Department of Health. He joined Cornerstone Government Affairs shortly after leaving the Hogan administration. Records reveal that Mitchell represented Pfizer, a major pharmaceutical manufacturer, in 2014 and 2015.

Though Mitchell is not currently representing drug companies, one of his colleagues at Cornerstone, former Montgomery Sen. P.J. Hogan, does. Hogan currently represents AstraZenaca, Biotechnology Innovation Organization, and Johnson & Johnson. As a result, Mitchell is part of a firm that has a financial interest in pro-pharma outcomes.

None of this means that Mitchell might not be an outstanding member of the Board. He has direct political, administrative and legislative knowledge on this issue. He is also seen by a variety of different actors as someone who is trustworthy and tells it like it is.

At the same time, these are the sort of conflicts that normally raise red flags. No doubt it is exactly these sorts of connections that make progressives suspicious about the health care industry’s tentacles in health care public policy. Nevertheless, Mitchell made the right noises about drug prices in Jones and Miller’s press release.

Some might make the case that these sorts of problems plague anyone who has been deeply involved with an issue for decades. Many would argue that this shows why these officials should be prohibited from lobbying but others would contend that these limits drive people out of public service.

Except that not everyone becomes a lobbyist for the industry they used to oversee after they leave the legislature or administration. While Mitchell knows a lot and is trusted by Democrats and Republicans alike, Democrats would go banana cakes, to borrow one of Adam Pagnucco’s favorite expressions, if Republican Gov. Hogan appointed someone with these conflicts.

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Redistricting’s Biggest Losers

The current crop of state legislators is just one year into their current term. But after next year’s session they’ll have to begin grappling with redistricting—one of the most potentially divisive issues that the General Assembly faces. The State Constitution gives Republican Governor Hogan the upper hand in theory. However, the Democratic supermajority can impose their own plan if they remain united.

Population shifts along with Maryland’s requirement to adhere to county and municipal boundaries where possible without violating the federal Voting Rights Act create clear winners and losers in the process.

Which districts are most below the ideal population for a district? Once again, Baltimore City looks set to play an evil game of musical chairs, as its districts will be below the ideal district population. Here are the districts falling shortest in population according to the 2013-2017 American Community Survey estimates:

  1. Baltimore City District 40, 86.5% of ideal.
  2. Baltimore City District 45, 90.6%.
  3. Baltimore City District 41, 91.0%.
  4. Baltimore County District 44B (2 delegates), 92.5%.
  5. Baltimore County District 43, 93.0%.
  6. Allegany/Washington Counties 1C (1 delegate), 93.3%.
  7. Prince George’s District 25, 93.4%.
  8. Baltimore City District 44A, 93.8%.
  9. Prince George’s District 23A (1 delegate), 94.0%.
  10. Garrett/Allegany Counties 1A (1 delegate), 94.8%.
  11. Prince George’s District 24, 94.8%.
  12. Allegany County 1B (1 delegate), 95.7%.

As these estimates are based on surveys conducted between 2013 and 2017, they likely indicate only 50% of the decade’s changes. Unless population dynamics change a lot towards the end of the 2010s, these areas will likely be farther below the state requirement by the 2020 Census.

When possible, Maryland reallocates prisoners back to their home last place of residence, which may aid some districts a bit but will further hurt districts where prisons are located. For example, prisoners housed at Frostburg located in District 1, already one of the biggest losers, will be allocated back to their previous residence where possible. As in past decades, District 1 will have to continue its steady march east into Washington County with Garrett’s share of District 1A declining again.

Baltimore City faces a much greater challenge. It currently has five full legislative districts along with a one delegate subdistrict. However, based on the survey, it only now merits 4.85 districts. One delegate is already gone with Subdistrict 44A the obvious nominee to take the hit.

My guess is that, even after adding prisoners back, population figures could make the case for taking one more delegate away (i.e. straddling one district into Baltimore County as now). No doubt Baltimore legislators will fight fiercely to keep the whole district within the City in the name of respecting municipal boundaries. Republicans won’t like this idea but will be ill-positioned to stop it if Democrats can remain united around a plan.

Assuming Baltimore City succeeds in staunching the hemorrhage, Districts 40 would slide west and District 41 would ooze south to eat up disappearing District 44A. Districts 43, 45 and 46 would then move west a bit into current Districts 40 and 41 to even out population across the City a bit. Other line changes could occur if, for example, a powerful legislator wants to draw the home of a possible challenger or successor out or into the district.

The fun and acrimony are just getting started.

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Create Gridlock Now?

In an unusual move, three members of the Montgomery County Council wrote the Planning Board to ask them to reverse their decision regarding the Capital Crescent Trail crossing at Little Falls Parkway. The Planning Board made the right call. Retaining the status quo both increases traffic and reduces biker and pedestrian safety.

In the wake of a tragic accident that took the life a recumbent cyclist trying to cross Little Falls on the CCT, the parkway was changed to reduce it from two lanes to one between Hillendale and Arlington Rds, located close by the trail. Unsurprisingly, taking away a lane and forcing a merge before busy Arlington Rd. has increased traffic in this area. More cars have also started cutting through residential Kenwood to avoid the new tie-up.

Instead of calling it an “intentional traffic jam” by cutting off use of an already existing and paid for road, proponents use the creative euphemism of a “road diet” to put a positive spin on it. Voters don’t much like sitting in traffic but diets connote virtue and health.

The major argument for the created traffic is biker and pedestrian safety with proponents arguing that fewer accidents have occurred than under the previous configuration. This might be a very good argument if it were truly needed to improve safety. Except it’s not. The Planning Board didn’t vote for a return to old trail crossing but to move it just a few yards away to a traffic light at Arlington Rd.

This is a much better solution all around for safety because it forces everyone to stop. Cars that face a red light have to stop and won’t even be allowed to turn right. Bikers and walkers will know they need to stop when they don’t have the light. Sounds simple, easy and cheap. Also a lot safer than a crosswalk even across one lane of traffic. Whether or not they see you, cars have to stop at red lights but, as in the case of the tragic accident, cars won’t stop if they don’t see you.

The people most unhappy with the Planning Board’s sensible solution are commuter cyclists. Instead of being able to race through at a straightaway if they see no traffic, fast moving commuter bikes will now have to slow down and stop as they bike a few yards down to light. Of course, if bikes have to slow down, one would think that would help reduce accidents.

The head of the Washington Area Bicyclists association has spoken out vehemently against the change, calling it unsafe because cars won’t stop at the traffic signal and make illegal right turns on to Arlington Rd., while pedestrians will be tempted to race across—either at the light or at the existing crossing even if the trail is moved.

In short, he is arguing that people will violate the law so we shouldn’t bother. I look forward to the county jacking up speed limits and eliminating speed cameras for the same reason. It also puts the county’s relatively recent anti-jaywalking campaign in a perplexing light. Pedestrians and cyclists also have responsibilities when it comes to safety and reducing the number of accidents. Drivers face significant penalties for making illegal turns.

The idea that people cross where it’s easiest is also more complicated than presented. People do sometimes jaywalk. But jaywalkers or jaycyclers tend to be selective about it. Otherwise, we’d have way more accidents at the many intersections without lights or crosswalks at the intersections of the county’s grand avenues like Georgia, Wisconsin, and Connecticut.

Beyond danger and the law, jaycycling could also be easily disincentivized by restoring the original terrain and putting up a few 3-foot concrete barriers where the CCT meets Little Falls. Like the red light, this tells people that you must stop and is certainly no harder or uglier than the bollards cutting off a lane of traffic.

I’m not unsympathetic with the idea that we don’t want to impede people unnecessarily. But it also seems to make sense to place this “minor inconvenience” on the vastly smaller number of commuter cyclists than on the far greater number of parkway users. Maybe we could call it a “speed diet” to make it more appealing?

The final argument for the “road diet” is that it has cut accidents by one-half so we shouldn’t make any changes. Except that the Planning Board isn’t going back to the old configuration. Putting the trail where motorists and cyclists must stop, as opposed to a crosswalk where they can drive through if they don’t spot anyone, should improve safety. Unlike the three councilmembers, the Board held a public hearing and heard from all sections of the community.

Traffic is also about to get much worse if “road diets” are now our preferred solution. According to the county database, for example, many pedestrian accidents occur in a short section of Georgia Ave. in Aspen Hill. I bet if we forced cars there to merge from three lanes into one, it will indeed be safer as no one will be going anywhere.

Pedestrian and cyclist safety are important. But induced traffic jams seem a dubious solution at best and benighted, when perfectly good alternatives exist. Indeed, the current solution got a two-year test, so why not give the Planning Board’s considered idea the same?

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Former Planning Board Member Meredith Wellington on Accessory Dwelling Unit Proposal

ACCESSORY DWELLING UNITS  ZTA 19-01— UPDATE

Background.  On January 15, 2019, County Councilmember Hans Riemer sponsored Zoning Text Amendment (“ZTA”) 19-01, a proposal to relax the restrictions that currently limit County homeowners from creating “Accessory Dwelling Units” (“ADUs”) on their property. ADUs are separate dwelling units on the same lot as a single-family principal residence. The dwelling may be traditional rental apartments or, after one year, may be converted to a short-term, “airbnb-type” unit. The latterrequires a different category of license, and it must not have a full kitchen.

After a hearing before the County Council, the Council’s Planning,Housing and Economic Development (“PHED”) Committee chaired by Councilmember Riemer held work sessions on ZTA 19-01, and it has now sent a revised version of the legislation to the full County Council for a vote likely next month. Over the objections of County Executive Marc Elrich and civic groups throughout the County, the PHED Committee is recommending a version of ZTA 19-01 that eviscerates current restrictions on ADUs that protect single-family neighborhoods. 

Current Proposal. Homeowners in small lot communities (those zoned R-60, R-90 or R-200) can already create separate rental apartments in their homes (“attached” ADUs). However, these ADUs are now subject to strict limitations designed to assure neighborhood preservation and compatibility. Under Councilmember Reimeroriginal proposal and the PHED Committees revisionsmost of the limitations on attached ADUs will no longer apply. 

Even worse, detached ADUs would for the first time be permitted in the backyards of 120,000 to 160,000 small lots in single-familyneighborhoods throughout the County. These ADUs could range fromtrailers and converted cargo containers to three-bedroom apartments in new structures and renovated garagesdepending on the lot’s sizeA table comparing the current rules for both attached and detached ADUs with those in ZTA 19-01 is attached.

Impacts on Single-Family Neighborhoods. Especially problematic are the provisions for detached ADUs, which are capable of altering the character of a neighborhood by blanketing the County without regard to location, lot size, compatibility, environmental concerns, best design practices for infill development, or provisions in existing master and sectorplans. These structures would be allowed without meaningful parking requirements to protect nearby homeowners or environmental requirements for sediment control, storm water management, or preservation of the existing tree canopy.

Contravention of Sound Planning Principles. According to Councilmember Riemer, ZTA 19-01 is intended to allow property owners to create “granny flats” and “in-law suites” inside their homes, and “tiny houses” and “cottages” in their backyards, all of which will increase the County’s affordable housing stock for lower income families and individuals. In fact, the proposal is “one-size-fits-all” legislation that is likely to produce the opposite result. Unless accompanied by dedicated public financing programs, this proposal may simply enable wealthy property owners and real estate developers to build expensive second homes on residential lots, thereby driving up rather than reducing housing costs.

In response to the myriad of concerns about the County’s failure to enforcecurrent zoning and rental licensing regulations with respect to existing ADUs, members of the PHED Committee promised during their work sessions to examine the budget and staffing of the County’s Department of Permitting Services (“DPS”) and its Department of Housing and Community Affairs. (“DHCA”). However, there is nothing on the Council’s agenda regarding these enforcement issues, and the PHED Committee is asking the Council to adopt ZTA 19-01 without addressingthe acknowledged deficiencies in County code enforcement. 

Recommendations for Detached ADUs. County planning officials should utilize sound planning tools to assure that detached ADUs will complement existing housing stock and in fact add to much-needed affordable housing. Here are some ideas for successful planning:• Detached ADUs should not be allowed as a housing type in small lots zoned R-60, R-90 and R-200. Instead, these structures should be permitted only on lots larger than 10,000 square feet, and only if recommended as part of an overlay zone in a master or sector plan for a specific community. If planned properly, detached accessory apartments can be compatible with the surrounding neighborhood as was done in Kentlands — a development oft-cited in the PHED Committee work sessions.• Technically, the property owner sis required to live in either the primary dwelling or the ADU, but County officials acknowledge serious problems with enforcement. Enforcement of this requirement should be a priority of both DPS and SHCA.• Detailed design guidelines should be provided to assure neighborhoods that valuable green space and trees will not be destroyed by dense over-building on small lots that leave only concrete in their wake.  • Planning officials should consider whether backyard trailers and cargo containers are appropriate building types even on larger lots throughout the County.• The PHED Committee should explore the need for a housing program that will help homeowners, rather than developers, finance detached ADUs to make their own homes and rental units more affordable.    

Recommendations for Attached ADUs. Unfortunately, ZTA 19-01 removes most of the protections in the current zoning code that protectsmall lot communities from the adverse impacts of attached ADUs. which would be largely unregulated in the future. Here are somerecommendations for these dwelling units:• Spacing requirements for attached ADUs in the current zoning ordinance should be retained (e.g., 300 feet between attached ADUs on same block in the small lot zones; 500 feet for attached ADUs on the same block in large lot zones). 
 • ​Parking requirements should be adopted based on data showing neighborhood road widths, as well as the volume of cars normally parked on the streets in question, with homeowners given priority for parking space in front and near their homes. Proximity to transit should not be the only consideration, and one mile from transit is too far.• ​Maximum square foot limits for attached ADUs should be maintained. Large basement areas and additions should not be transformed into large housing units within a single-family home, thereby creating a new form of “mansionization” incompatible with small-lot neighborhoods.• If the principal dwelling is a new home, all the current infill requirements (height, set back, lot coverage, and other restrictions) should apply to any space used to create an attached ADU. • The protection in the current zoning code against over-concentration should be reinstated (i.e., in small lot zones, the ADU must be located at least 300 feet from any other attached or detached ADU along the same block face).• Workable strategies should be established to assure that the owner either lives in the primary or accessory residence. Right now, this requirement is not being properly enforced.

Conclusions.  The County needs housing legislation that will result in exciting new communities with mixed affordable housing, as well as a housing program that makes new dwelling units available to large, diversecommunities of residents. This can be accomplished by identifying appropriate locations in master plans, and by adopting innovative housing programs that provide financing together with code enforcement.

The current proposal offers the worst of all worlds. Without a financing program, only wealthy property owners will be able to create ADUs,which in all likelihood will increase housing prices throughout the County and generate new housing types that will irrevocably overwhelm and degrade the County’s single-family neighborhoods. 

What can you do? Contact County Council members and let them know your concerns: 

Gabe Albornoz                 240-777-7959, Councilmember.Albornoz@montgomerycountymd.gov;

Andrew Friedson            240-777-7828,Councilmember.Friedson@montgomerycountymd.gov;

Evan Glass                         240-777-7966, Councilmember.Glass@montgomerycountymd.gov;

Tom Hucker                      240-777-7960, Councilmember.Hucker@montgomerycountymd.gov;

Will Jawando ​  240-777-7811, Councilmember.Jawando@montgomerycountymd.gov;

Sidney Katz                       240-777-7906, Councilmember.Katz@montgomerycountymd.gov;

Nancy Navarro                240-777-7968, Councilmember.Navarro@montgomerycountymd.gov;

Craig Rice                         240-777-7955, Councilmember.Rice@montgomerycountymd.gov;

Hans Riemer                     240-777-7964, Councilmember.Riemer@montgomerycountymd.gov.

Meredith Wellington

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County ReMARCs: County Executive Marc Elrich on Accessory Dwelling Units

The following is a detailed explanation and analysis by County Executive Marc Elrich of the major changes to zoning law proposed by Councilmember Hans Riemer:

Dear Resident,

There is a proposed amendment to the County’s zoning code that would fundamentally alter virtually all residential areas in the County now zoned for single-family detached homes. In a nutshell, ZTA 19-01, Accessory Residential Uses would delete several existing requirements that must be met by property owners who want to build an additional living unit on a lot zoned for a single-family detached dwelling.  Yet as I have traveled around the County, I’ve discovered that most residents are either unaware of the proposed zoning changes or may not have a clear understanding of what they are.

Accessory apartments, also known as accessory dwelling units (ADUs) are allowed today in virtually all residential zones in Montgomery County. They can be built by converting part of an existing home, building an addition, or in some zones by constructing a free-standing unit in the back yard. They can answer the need for additional housing options, whether for extended families or as a source of supplemental income that makes homeownership more affordable for more people.

Although I supported recent legislation intended to encourage more ADUs in the County, I have questioned whether ZTA19-01 provides the right framework for addressing our housing needs while maintaining the quality of life that has attracted so many people to our single-family neighborhoods. Despite the rhetoric that ADUs are a tool for affordable housing, it is highly unlikely that they will help the extremely low-income households (defined as 30 percent of the area median income) that most need affordable housing.

Here are some questions and answers about the ZTA as approved by the County Council’s Planning, Housing, and Economic Development Committee (PHED). I hope you will have time to read this and share your thoughts with me, your civic and/or community association, and with councilmembers prior to their review of the legislation, scheduled for mid-June.

What problem is ZTA 19-01 trying to solve?
Councilmember Hans Riemer introduced ZTA 19-01 to encourage the creation of more ADUs (Accessory Dwelling Units) in single-family neighborhoods throughout Montgomery County. He and others see them as a means of producing additional housing options, including but not limited to affordable housing. (However, there are no requirements to ensure affordability.) Councilmember Riemer has explained that ADUs can be an apartment over a garage, a basement apartment, or a “tiny house” on a side lot or back yard – a second, separate living unit on a single-family lot, with a full kitchen and bathroom, and accessed by a separate entrance.

Are ADUs, including “tiny houses,” already allowed in Montgomery County?
Yes, they are. They can be built in, or as an addition to, an existing home and as a detached unit on lots of one acre or more. There are 414 licensed ADUs in the County; 356 of them (86 percent) are in the County’s smaller-lot residential zones found in areas like Wheaton, Silver Spring, Aspen Hill, Bethesda, Kensington, Takoma Park, Colesville, and Germantown. There are also unlicensed ADUs, but the County does not know how many.

Didn’t the Council make changes to ADU requirements last year?
Yes. Until last fall, ADUs were approved via conditional use (formerly known as a special exception) – a complicated, time-consuming, and sometimes costly process. To ease the approval process and encourage more ADUs, the previous County Council amended the zoning code in October 2018, removing the requirement for conditional use approval and allowing ADUs as a “limited” accessory residential use that meets certain standards. This change means that a homeowner’s application for an ADU can be approved as long as the ADU meets the standard requirements for parking, size of the ADU, and distance from other ADUs.

Is ZTA 19-01 needed so that I can have a separate unit for my in-laws?
Probably not. In virtually every neighborhood, your in-laws can have their own dwelling unit within your home, and depending on the zone you live in, you can construct a detached unit if you meet the conditions mentioned above.  If your application for an ADU is denied because of parking or distance-separation requirements, you can apply for a waiver of those requirements through the process established in last year’s revisions to the zoning code. As a councilmember, I supported the changes made last fall because I believed they would provide more opportunities for ADUs without compromising the underlying intent of the County’s single-family zoning.

If the ADU approval process was just recently amended, why is this ZTA needed now?
That is a question I am wondering about myself. The Council made some important changes, but the changes are still new; they did not take effect until January 15, 2019 – the same day that additional changes were introduced via ZTA 19-01. While additional changes may be needed, such as adjusting the parking requirements, it makes sense to assess the effectiveness of the recent changes first and to do a better job of getting input from residents around the County about potential future changes. It also makes sense to have a companion bill that addresses related issues in the County’s code – issues that can’t be dealt with in a zoning text amendment.

Would ZTA 19-01 allow a detached ADU on any single-family lot regardless of size?
Yes. Current zoning regulations allow detached ADUs in certain “large-lot” zones on at least one acre. ZTA 19-01 would allow them in virtually all areas zoned for single-family detached dwellings, including areas where the average lot size is 6,000 square feet or less. This is a major Countywide change to single-family detached zoning, which currently allows homeowners to build an accessory structure in the back yard (i.e. a shed or other outbuilding) while ZTA 19-01 would allow a second, separate living unit.

What are the proposed size limitations for these detached ADUs?
Council staff summaries of the PHED Committee discussions refer to limiting the size to the least of  “50 percent of the gross floor area of the principal dwelling or 10 percent of the lot area or 1,200 square feet of gross-floor area.” It isn’t clear whether gross-floor area refers to the footprint of the principal dwelling or the gross-floor area of all levels of the principal dwelling. The detached ADU can be up to 20 feet (2 stories) high.  There is also a provision to allow an ADU up to 32 feet long (i.e. a trailer or manufactured home).

Will ADUs have an impact on already overcrowded schools?
If the intent of the ZTA is to encourage larger, family-sized units, it is possible that there will be an increase in the number of students. And although the owner of a newly built home must pay a school impact fee, a freestanding ADU for a family generates no fees.

Does ZTA 19-01 propose changing parking requirements?
Yes.  Under the current zoning code, if two off-street parking spaces are required for the principal dwelling unit, one additional off-street space is required for an ADU. Homeowners can request a waiver of this requirement if there is adequate on-street parking. ZTA 19-01 would eliminate the requirement for one additional off-street parking space if the property is located within one mile of a Metro station or within the boundaries of the City of Takoma Park.

What happens if I live on a street with little or no off-street parking and I’m less than a mile from the Metro?
Parking may get very difficult in your neighborhood since there is no requirement and no assurance that the additional residents will not have cars.

What are the parking requirements in neighborhoods that don’t have driveways?
A homeowner who wants to convert part of the principal dwelling or build an addition or separate ADU would be required to build a driveway with two off-street parking spaces. This is true under the existing zoning code and apparently does not change under ZTA 19-01. It isn’t clear whether this can be appealed through the waiver process.

Can my neighbor build an ADU and then turn it into an Airbnb?
Yes, after one year under the existing zoning code and under ZTA 19-01. There is no language that requires a property owner to get approval for this change.

Are there potential environmental impacts?
In some cases, yes. There shouldn’t be any if an ADU is created within an existing dwelling unit, but environmental impacts can occur if an addition or separate dwelling unit is built in a back yard. Land disturbance during construction and the resulting replacement of green space with hard (impervious) surfaces means that less stormwater can be absorbed. This can lead to changes in the amount, velocity, and direction of rainwater runoff. Also, ground disturbance and construction can lead to the removal of trees or impacts to their root zones. There are no provisions in ZTA 19-01 that address these issues, although other jurisdictions that allow ADUs have requirements to protect and preserve trees and control stormwater runoff.

Why haven’t I heard about ZTA 19-01 before receiving this email?
Most ZTAs go through the review process without a huge public outreach component, primarily because most deal with specific, fairly narrow changes to the zoning code. There was a public hearing for ZTA 19-01, and shortly after its introduction in January 2019 Councilmember Riemer held a “community policy forum” inviting anyone interested in “reforming” the County’s existing ADU regulations to attend; most forum attendees were enthusiastic supporters of the ZTA.   There were also three PHED Committee work sessions in March and April. For most residents, the County Council’s open meetings process is “inside baseball” – not something that they keep track of or follow on a regular basis. Recent comments from residents of the County’s suburban single-family neighborhoods indicate that very few were aware of these public discussions of the ZTA and are concerned because of its potential consequences. Some councilmembers have responded by reaching out to their constituents to get feedback on the proposed changes, but to my knowledge no other efforts have been made to expand public outreach so that County residents whose neighborhoods would be directly impacted by the proposed changes have the opportunity to weigh in on the recommended changes

Will ADUs provide affordable housing?
There is no specific language in this ZTA that assures that the rents for ADUs will be affordable; it is premised on the idea that the easier it is to add ADUs, the more housing there will be, and the price of that housing will be lower.  Unfortunately, there is no evidence that this is how rental prices for ADUs work, primarily because construction costs are high, especially for detached units. It is also possible that allowing two dwelling units on any lot will drive up the value of the property and other homes in areas of the County that now offer a rich supply of affordable housing in modest-sized homes.

What are some of the best practices in other areas that allow ADUs?
Some jurisdictions in the DC area and around the country are embracing ADUs, but not without standards, programs, and processes to ensure their successful assimilation into single-family neighborhoods. Here are some of the best practices my staff and I have reviewed:

  • Other jurisdictions have significantly smaller size limits (which may increase the likelihood that rents will be affordable);
  • Several have robust information programs, education outreach, and even financial support to help with the high cost of building an ADU;
  • Many have regulations on other issues – like stormwater management, tree protection, amnesty programs to encourage illegal ADUs to apply for licensing, design standards to encourage compatibility with the look and scale of the principal dwelling, a regular inspection regime, and incentives to keep ADUs from being converted from long-term to short-term rentals. Some of these could be addressed in ZTA 19-01; others could be wrapped into a companion bill that would revise relevant parts of the County code.

What changes will the full Council review in June?
The following provisions have been approved by the PHED Committee and will be reviewed by the full Council:

  • Remove the current requirement for one additional onsite parking space if a property is in the City of Takoma Park or within one mile of a Metrorail Line station;
  • Remove the minimum one-acre lot size for detached ADUs, thereby allowing them on any residential lot regardless of lot size – detached ADUs would be allowed in all residential zones including the smaller-lot R-60, R-90, and R-200 zones where they are currently not allowed (attached ADUs are allowed in all residential zones);
  • Allow a detached ADU that is up to 32 feet long;
  • Limit the size of ADUs located in the interior of a house to 1,200 square feet unless the proposed ADU is in a basement whose footprint is larger, in which case the ADU in the basement can match the larger footprint regardless of size;
  • Limit the size to the least of 50 percent of the gross-floor area in the principal dwelling or 10 percent of the lot area or 1,200 square feet of gross-floor area.
  • Delete the maximum size of an addition that can be used as an ADU (the current zoning code says that the maximum floor area used for an ADU in a proposed addition to the principal dwelling unit must not be more than 800 square feet if the proposed addition increases the footprint of the principal dwelling);
  • Allow an accessory structure built before May 31, 2012 to be used as an ADU without regard to setbacks if it was legally constructed and there is no increase to the footprint or height of the structure; if an existing structure violates the setback standard, a new window on any wall on the side of the setback violation may not be constructed;
  • Delete the distance requirement between ADUs;
  • Delete the requirement that a house must be five years old before creating an ADU.

As I’ve indicated, I believe it is important to establish a responsive, well-regulated, and fair approval process for ADUs for property owners seeking alternative housing options, whether to address multigenerational needs or generate a source of income to provide mortgage relief or allow seniors to age in place. However, this is not a “one-size-fits-all” County, and how we achieve these goals matters if we want to successfully integrate a larger number of ADUs into our single-family neighborhoods. This is where you come in.  If you have specific changes you would like to suggest or views you want to share about ZTA 19-01 or ADUs in general, please let me know by sending an email to Marc.Elrich@montgomeryCountymd.gov with “ADU” in the subject line. I also encourage you to share your views with councilmembers.

Thank you for taking the time to read this,

Marc Elrich
County Executive

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