Category Archives: planning

It’s the CIP, Stupid!

By Gus Bauman.

Finally! After many years of heated controversy, Montgomery County is about to squarely confront its use of land use moratoria as a part of its growth policy regulations. The County Planning Board, after much study for its regular update of the County’s Growth Policy, has crafted a proposal to largely eliminate land use moratoria in the County. The County Council will ultimately decide the terms and scope of the Growth Policy (titled in more recent years as the Subdivision Staging Policy.)

This correspondent is the former chairman of the Maryland-National Capital Park & Planning Commission and its MoCo Planning Board (appointed in ’89, reappointed in ’93). Let me offer some background and candid insight that may prove useful in the coming months as the proposal enters the political windstorm.

The MoCo Annual Growth Policy (the AGP; that was its name for many years) was created in 1986. Why? Because during the ‘80’s, the County was experiencing high growth. It had previously created an Adequate Public Facilities Ordinance (APFO), which was embedded in the Subdivision Ordinance to apply to all new subdivision proposals.

To manage the APFO, the AGP was later instituted as a timing mechanism to match school and transportation needs with corresponding infrastructure development. Buried in the AGP system was the moratorium nuclear bomb—if school or transportation capacity in any defined area of the County became overloaded, then no new subdivision could be approved in that area until the county’s capital budget (the Capital Improvements Program, or CIP) indicated that help was on the way through public improvements and/or private contributions to fix the identified public need.

The moratorium concept was always intended to be a rare, drastic action of last resort. It was never meant to be a routine tool in the planner’s toolbox. Indeed, the very idea of a moratorium is contrary to comprehensive planning, zoning, and budgeting—i.e., to responsible government. For adopting a moratorium is, by definition, an admission of governmental failure. Doing it on a normative basis should be downright embarrassing.

Land use moratoria were supposed to be as rare as snow in June—they were to delay development approvals for a brief time in order that public and sometimes private funds could then target as quickly as possible where the infrastructure need was and fix it. In fact, the very purpose of a looming moratorium was to immediately direct capital funds to the targeted area in order to avoid the moratorium bomb from exploding.

This system only worked, however, where there was both a high growth rate that continued to pay taxes and where infrastructure spending was duly targeted by the County government to any area about to be thrown into moratorium.

But those two preconditions began sliding away in the late 1990’s, and by the turn of the century, they were largely gone. Montgomery County’s growth rate has been in the basement for some 15 years now. Yet the moratorium mechanism, meant to be only an emergency measure in the AGP, never went away. Indeed, it became a favorite fixture of the no-growth crowd. And that crowd has always controlled certain votes in County government.

The rich irony here is that a moratorium is, in truth, all about fiscal and budgetary policy and not a growth or density matter. Whether density on some tract is to be low, medium, or high, whether growth in some area is to be slow, moderate, or rapid, is a land use dynamic regulated by the community master plan as well as the zoning placed on properties. But during the 1990’s, exclusionary forces in Montgomery County realized that use of moratoria could become a normal convenience to accomplish what they otherwise could not accomplish through planning, zoning, and environmental regulations.

Just starve the CIP of transportation spending on certain projects called for in County master plans, and SURPRISE!, the roads in an area are suddenly over capacity. Just redirect school capital funding projects away from certain developing and redeveloping areas, and SURPRISE!, schools in those areas become over capacity. The most extreme example of this practice was how prior County governments allowed the East County to be frozen for many years in moratorium while significant capital funding flowed west, north, and south.

Today’s County Council can see what moratoria have wrought over the past two decades. When an area is placed into moratorium, neither new taxes nor fees can be generated in that area, creating the perverse effect of killing off the very revenues needed to help solve the identified problem. The County Planning Board knows what moratoria have wrought. The practice telegraphs to the business community to avoid investing in Montgomery when so many other nearby options exist called DC, Frederick County, Prince George’s County, and the multiple jurisdictions in Northern Virginia.

Moratoria are all about erecting walls. The Montgomery County government should be knocking down walls. The County should be using its highly detailed master plans, its incredibly rigorous zoning, its adequate public facilities ordinance, its huge budget, as well as its growth policy, to channel public infrastructure improvements where they are needed.

It is telling that Montgomery County prides itself on having the toughest, most “sophisticated” planning, zoning, environmental, and transportation controls in the region as well as being blessed with a large tax base and corresponding budget, yet, simultaneously, it is the only regional jurisdiction that regularly applies that admission of governmental failure, the moratorium.

To paraphrase the famous presidential campaign slogan of the 1990’s, “It’s the CIP, stupid.”

Gus Bauman is an attorney who lives in Silver Spring. He served two terms as chair of the Montgomery County Planning Board.

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Elrich Requests That Planning Board Limit Work to “Noncontroversial” Issues

By Adam Pagnucco.

In a letter to Council President Sidney Katz, County Executive Marc Elrich has asked the council to limit the work of the Planning Board to “noncontroversial” issues during the COVID-19 crisis.

Elrich begins his letter by noting that the council has delayed some hearings on non-budget issues due to problems of public participation stemming from social distancing. Elrich contrasts that with the planning board’s policies. He writes:

The Planning Board continues to meet, have substantive presentations, and take action on controversial matters important to the public. While its meetings are available on the website and the Planning Board has provided a form for public participation, the new process is complicated and subject to ‘technical difficulties,’ as happened on Thursday, April 2nd. The result is little, if any, participation by a distracted public.

After noting two issues of public interest before the board – an amendment to environmental overlay zones in Ten Mile Creek and ongoing work on the Subdivision Staging Policy – Elrich writes:

I ask that the Council give direction to the Planning Board consistent with its own decision to delay certain public hearings until such time as the public can more fully participate. Because sensitive environmental and major policy decisions require full public participation, I recommend that the Board limit its actions to those agenda items that are noncontroversial, necessary for the administrative functioning of the agency, and unrelated to major policy decisions that will come before the Council.

It’s unclear whether the council has the specific authority to direct the Planning Board in how to perform its work. The council does fund the agency and it appoints Planning Board Members. Complicating the issue is Elrich’s barely veiled contempt for Planning Board Chair Casey Anderson. Last year, Elrich told Bethesda Beat that he was “not a fan” of Anderson but the council unanimously reappointed him as chair anyway.

We reprint Elrich’s letter below.

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Planning Board Forum

The County Council will soon fill two important vacancies, including the position of Chair, on the Montgomery County Planning Board. The LGBTQ Democrats are holding a forum for the candidates moderated by Adam Pagnucco on Monday night:

The LGBTQ Democrats of Montgomery County invite you to a public forum to hear from candidates for the Montgomery County Planning Board. The forum will be held on Monday, June 3, from 7:00pm – 8:30pm at the Silver Spring Civic Center and moderated by Adam Pagnucco, opinion columnist for Bethesda Magazine

The five-person Montgomery County Planning Board plays a major role in the land use decisions throughout Montgomery County––from zoning, building heights and density to creation of new parks and developments affecting the 1.1 million county residents.

There are two vacancies on the Planning Board and a total of 24 applicants. In June, the County Council will narrow the field of candidates and then select two appointees. 

Prior to the Council making their final selection, the Montgomery County LGBTQ Democrats want to educate the public on the critical role the Planning Board plays in shaping our communities and future growth of the county. We believe that it’s important to hear directly from candidates about their goals for zoning, development and other planning issues –– especially as they relate to LGBTQ people.

We hope that you can join us for this important discussion

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The County Executive’s Least Known Power

By Adam Pagnucco.

Montgomery County’s Charter lays out the County Executive’s powers and responsibilities.  The best known include nominating department heads, drafting recommended operating and capital budgets, vetoing legislation, representing the county in public and in Annapolis and directing the operations of county government.  It’s a powerful office.  But the least known, and one of the most interesting, powers of the Executive doesn’t appear in the charter and has not been used in more than thirty years.  If it is exercised by the next Executive, its use could have a significant impact on the county’s future direction.

Land use is a huge issue in county government.  It is largely the province of the County Council and the Planning Board.  The board makes many recommendations to the council on master plans, zoning, impact taxes, transportation projects, its own agency budget and numerous other matters.  In serving in its advisory capacity, the board’s recommendations are subject to final action by the council.  But the board has its own powers too, especially in deciding preliminary plans, site plans and other development applications.  Individual projects need to conform to applicable master plans, statutes and regulations but it is the board that decides how and whether they do.  That’s an enormous amount of authority resting with the board.

The five Planning Board Members are appointed to staggered terms by the County Council.  Because of the board’s power and influence, these appointments are taken very seriously by the council and everyone else with an interest in land use decisions.  But here is something that relatively few people have known about until now:

The County Executive can veto Planning Board appointments.

Maryland Land Use Code Ann. § 15-103, which we reprint below, lays out the process by which Planning Board appointments are made.

Note that SEVEN of the nine votes on the County Council are required to override an Executive’s veto of an appointment.  Under the county charter, six votes are required to override an Executive veto of a bill or budget item.

The last time we know of an Executive vetoing a Planning Board appointment occurred in 1986.  At that time, the council appointed Rosalie Silverberg, a civic activist from Bethesda, to the board.  County Executive Charles Gilchrist vetoed the appointment because the other four board members were also from Bethesda and the Executive desired geographic diversity on the board.  So the council appointed attorney Nancy Floreen, who then lived in Silver Spring, to the board instead.  (That turned out to be a momentous decision as Floreen would later go on to be a hugely influential four-term County Council Member and chair of the council’s Planning, Housing and Economic Development Committee.)

The Executive is not commonly regarded as a major player in county land use decisions as the County Council and the Planning Board have direct authority over them.  But a determined Executive would only need three allies on the County Council to exert control over the Planning Board through his or her veto power.  Such control would not be absolute; the Executive can only veto whereas the council alone can nominate.  But it’s easy to see how Planning Board appointments could be high stakes, political confrontations in such a scenario.  And when politics gets involved, well… who knows what could happen?

The point here is that an Executive’s land use views matter and he or she has the power to make them stick.  Whatever your views on the subject, that is worth remembering in the voting booth.

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Montgomery County Land Use 101

Today, I am pleased to present a guest post by Del. Marc Korman about former Planning Board Chair Royce Hanson’s new book on the history of planning in Montgomery County.

Rumors abound that there could be more than 50 candidates running for the Montgomery County Council in the next election cycle (after attending the recent Montgomery County Democratic Party Spring ball, I think that could be an under-estimate).  I would recommend that each of them dive into Suburb: Planning Politics and the Public Interest, by Royce Hanson.

Royce Hanson is a legendary figure in Montgomery County.  He chaired the Planning Board from 1972 to 1980 and was brought back in as something of an elder statesman from 2006 to 2010 to clean-up improprieties fond related to development in Clarksburg.  His most lauded accomplishment is the establishment of the Agricultural Reserve which covers about one-third of Montgomery County although he oversaw numerous sector and master plans during his two tenures.  Mr. Hanson has had less success as a political candidate in the County.

Suburb is closely related to a series of speeches Mr. Hanson gave at the Planning Board Department in 2014 and 2015, which can be watched online and may be more accessible for some than the book.  Hanson’s book—like the lectures—tells the story of planning in Montgomery County essentially from the establishment of the bicounty agencies Washington Suburban Sanitation Commission and Maryland-National Capital Park and Planning Commission (the Planning Board) in the 1910s virtually up until the present.  Hanson sees County land use through three lenses.

First, land use decisions are usually the outcome of the back and forth between what he calls the “Miniature Republic”—homeowners, taxpayers–and the “Commercial Republic”—major land owners and developers.  At different times and in different locations, the power rests more heavily with one than the other.

Second, he traces land use decisions through several political regimes in the County’s history, which will be of particular interest to many local readers: The [Blair] Lee regime dominated by an insider political machine; the builders and the bar regime in which land use attorneys controlled the planning process; the progressive regime that emerged from the new Executive form of government in the 1970s, which he views himself as a product of; and the current “pure political” regime which Hanson views as lacking a cohesive vision for County land use.

Third, Hanson sees ultimate planning decisions as the place where the logic of consequentiality—the more technical and planning-based logic of bureaucrats–meets the logic of appropriateness—the politician’s changes to satisfy certain parties and make planning decisions more palatable.

The book marches through a number of “case studies” beginning with the 1964 General Plan, known as Wedges and Corridors; reimagining Bethesda and Friendship Heights for Metro; the resurgence of Silver Spring; updating White Flint for the 21st century; development of corridor cities such as Gaithersburg, Rockville, Montgomery Village, and Germantown; the huge and scandalous errors with Clarksburg development; the creation of the Agricultural Reserve; and the growth policy regularly updated by the Planning Board and County Council and now called the Subdivision Staging Policy.  Each of these chapters is rich with detail, but at times it feels as though you are just reading a series of facts and events as opposed to any type of analysis.  There are insights about what political and planning compromises worked (and sometimes didn’t work) in specific locations in Montgomery County at particular times, but broader conclusions about planning and process are hard to discern.

Indeed, Hanson even recognizes this late in the book when he concedes that it “is hazardous to overgeneralize from the experience of Montgomery County”, although he goes on to say that examples, analogies, insights, and more can be drawn and applied elsewhere, which is true in the broad sense that another place could redevelop a suburban strip mall near transit, come up with transferable development rights, or target specific neighborhoods through sector plans.  As someone more interested in the Montgomery County story, this approach helped focused on facts and events suited me fine but may be seen as a shortcoming to others.  Indeed, while as I said I think this book is important to read for County Council candidates, I’m not sure who else besides them, other local elected officials, and committed local activists would really appreciate this book.  I certainly did, but I’m in one of those relatively narrow buckets.

Hanson may have been torn between writing a history of Montgomery County planning politics and case studies that could potentially be used to teach planners anywhere and sometimes he did not find the balance he was looking for.  Those interested in the history will want to know who the unnamed councilmembers were who voted against appointing Norman Christellar Planning Board Chair and planning students will probably want to know why the failed plan to build another Mall of America in Silver Spring is relevant to their studies.  I, of course, understand why a pure Montgomery County history book was not written, as it would clearly have a small audience.  It has also been pointed out to me that the history of the County’s actions over race are almost entirely omitted.  I am sure others who lived through some of these planning efforts will note their own omissions.

Still, for you local history buffs there are plenty of interesting facts.  For example, County Executives used to control some appointments to the Planning Board and, for a time under County Executive Kramer, they could revise plans before they went to the Council.  Neil Potter devolved these powers back to the Council after defeating Kramer.  Hanson is also open with his criticism of some local County players and even relies on Adam Pagnucco research in making his attacks.  Former Councilwoman Idamae Garrott comes off as particularly responsive to the current mood of the best organized voters.

If you sit in lots of meetings about sector plans, dream about being on the County Council, or read blogs like this one, then this book is for you.  It covers interesting history and can be a good reference regarding particular parts of the County.   But for those not fitting that description, this book and its detailed history of Montgomery County land use may be more of a slog.  For the right audience, this book can provide a useful baseline of how Montgomery County developed over the last century and why.

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