All posts by David Lublin

Guys Like Del. Jalisi Don’t Belong in Public Office

Del. Mary Ann Listanti (D-Harford) has been roundly and rightly called out for using a horrible racist slur ever since Ovetta Wiggins’s reporting over at the Washington Post brought it to public attention. Many of her colleagues, party officials, and activists have called for her resignation.

Bizarrely, however, the General Assembly has appeared far more tolerant of Del. Jay Jalisi’s (D-Baltimore County) repeatedly harmful actions in his public and private life as opposed to Lisanti’s hurtful words. Recall that Wiggins also reported that Del. Jay Jalisi’s daughter successfully applied for a protective order in 2015:

According to court documents, Jalisi’s daughter, 18-year-old Alizay Jalisi, applied for the protective order after her father allegedly slapped her late last month during an argument, the Associated Press reported. He was not criminally charged in the case, and Jalisi has denied the allegations.

“I just chose to be the parent and end the dispute with my child and save my family from more trauma,” Jalisi said in a text Monday night. “There was no finding of guilt by the court. And I am sure everything would be normalized within my family soon since the media spotlight would not be on us after today.”

Personally, I don’t believe Del. Jalisi’s denial, as no one, least of all someone in public office, would willingly accede to a protective order due to a domestic violence claim if it had not occurred. Even if the judge didn’t find him legally “guilty,” there was sufficient evidence to grant the order. As an elected official and a physician, Del. Jalisi also certainly had the agency and the ability to fight the allegations. (In an unusual career path, Del. Jalisi has now left medicine to become a real estate investor.)

The only consequence for Jalisi in the General Assembly was a transfer of committee assignments. Now, the Ethics Committee reports that Del. Jalisi has been abusing his staff and cheating them out of pay that they earned for years and has flouted past committee judgements. His atrocious behavior began soon after he was sworn into the House in 2015:

According to sworn testimony and contemporaneous emails, Delegate Jalisi instructed an aide to work approximately 100 hours of overtime, but refused to approve timesheets reflecting those hours. Delegate Jalisi also refused to allow the aide to leave work when the Maryland General Assembly was on liberal leave status and all bill hearings had been canceled due to inclement weather

According to sworn testimony, Delegate Jalisi’s behavior toward his 2015 legislative staff was “unpredictable” and often “volatile.” Delegate Jalisi treated his staff as “truant” if they left to go to the restroom or to get lunch, and required his staff to keep daily logs of their work and justify to him how the tasks listed on their logs met their job requirements. Delegate Jalisi belittled his staff and accused them of failing to complete their tasks.

Once again, Del. Jalisi denied everything despite a wealth of testimony, evidence and contemporary written accounts of his behavior. Del. Jalisi was similarly “bullying,” “abusive” and “belligerent” in 2016, 2017, 2018, and now in 2019. State troopers were called in during one incident at the Clerk’s office. People in an adjoining office filed a complaint after overhearing his loud abuse of staff. Unacceptable behavior is not a one-off for Del. Jalisi.

The General Assembly reacted very slowly to Del. Jalisi’s repeat offenses:

  • In 2015, the Ethics Committee sent him an admonishing letter stating that his behavior “reflected poorly” on the General Assembly.
  • The Speaker and Majority Whip spoke to him about the complaint and further bad behavior in 2016.
  • In 2017, the Speaker and the Majority Whip “counseled” Del. Jalisi in March and again in October about his improper treatment of staff in both the Human Resources and Clerk’s offices.
  • The Ethics Committee recommended in 2018 that Del. Jalisi not be allowed to have staff starting in 2019 if he did not complete anger management training. The committee essentially reiterated its recommendation when another incident occurred.

Del. Jalisi didn’t complete anger management training by the start of the 2019 session. According to the Ethics Committee report, he nonetheless hired staff and then later falsely promised that his company would pay the staffer when it became clear that the General Assembly would not.

The Ethics Committee recommendations are now stronger, recommending a reprimand by the full House of Delegates and that Del. Jalisi lose committee assignments as well as staff if he doesn’t completely anger management by the start of the 2020 session.

This is too little, too late. Del. Jalisi should resign.

Since Angry Delegate seems unlikely to pursue that course, he should be immediately removed from committees and prohibited from participating in any House activities beyond casting his vote, including county delegation and Democratic Caucus meetings. This should continue until he shows a stronger commitment beyond one anger management course towards mending his ways and should include restitution in some form to the many people he has abused in public office.

The people of Baltimore County and the citizens of Maryland deserve better. Though I laud its recent report, the Ethics Committee also needs to examine why it did not take action with meaningful consequences until the fourth year of Del. Jalisi’s unacceptable pattern of bullying and abuse.

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Improving the Accessory Dwelling Units (ADU) Bill

Councilmember Hans Riemer’s proposal to greatly ease restrictions on accessory dwelling units (ADUs) has a lot of flaws, as I have detailed in previous posts. The presentation of inaccurate information also undermines confidence that it has been well thought out. The county’s very poor enforcement of existing housing law further reduces trust. Moreover, recent legislation designed to promote ADU construction is just now going into effect.

Fortunately, two easy fixes to Hans’s proposal can assure that it will better accomplish his stated goals of increasing smart-growth oriented affordable housing and minimize any negative effects on the county finances and residents.

Fix #1: Locate ADUs Near Transit

The county wants to promote transit-oriented growth so let’s limit ADUs to within a three-quarters mile radius of Metro, MARC, and future Purple Line stations. As one can rarely walk directly in a straight line to transit from a single-family neighborhood, a three-quarter mile radius is really greater in terms of travel distance and provides a very generous zone. (This would include my Metro-walkable single-family neighborhood.)

The bus network is also largely oriented towards these nodes, so people living in these areas will have maximal public transit access. Transit accessibility will also likely reduce the share of ADU residents who have cars, or at least a second car. This simple fix will assure that we continue to promote growth where smart growthers claim to want it—away from car dependent neighborhoods.

Fix #2: Reduce, Rather than Increase, ADU Size

Hans’s zoning text amendment (ZTA) proposes to allow ADUs larger than the current 1200 square foot maximum up to the one-half of the size of main home. This is a disastrous idea as it encourages the construction of larger, and therefore less affordable units. It also incentivizes the construction of bigger homes, which also runs counter to the idea of smart growth.

While Hans has repeatedly spoken about his ZTA in terms of promoting “cottages” and as part of the “tiny house movement,” the legislation runs directly counter to this idea. According to The Tiny Life, a publication promoting tiny homes, tiny homes have a maximum of 400 square feet, and the average tiny home has just 186 square feet.

At 1200 square feet, Montgomery’s current limit is already three times the maximum size for a tiny home and over six times the average tiny home size. (Scouring the web, the most generous maximum for a tiny home was 600 but this was on a builders’ website and is still only one-half of what the county already permits.)

Instead of increasing the size limit and encouraging the construction of less affordable ADUs, we should be reducing it to 750 square feet. This smaller size would assure that new ADUs would be truly fit within the affordable, smaller home ideal, instead of large second homes or apartments out of the range of people struggling to find housing.

Additionally, it will minimize any negative impacts on neighborhoods and the county. Smaller homes mean it’s less likely that schools will face as substantial an additional burden as if we amp up the home size instead. Fewer people also usually means fewer cars. Existing units larger than 750 square feet would be grandfathered.

The smaller size also reduces any additional hardscape, especially important since the chance of the county adopting more meaningful storm water control standards is about nil. Smaller homes cut down the added burden on existing aging infrastructure not to mention on dumping water into neighboring basements.

Bottom Line: Make this an Affordable Housing Bill

These changes to Hans’s ZTA would turn it from a bill that undermines affordable housing by incentivizing big into one that would encourage the building of smaller, more affordable units in transit-accessible areas. It would retain the proposed elimination on the construction of an ADU in close proximity to another one, allowing for substantially more construction in zones near transit.

As bill proponents claim loudly that they are promoting small development and favor smart growth, adopting these amendments to gather community support ought to be easy. A special exception process could be included to accommodate unusual circumstances that require more space or location away from transit. But any such process should require real scrutiny and difficulty in order to keep the focus on affordable.

The bottom line is that adopting these changes would turn the bill into one truly focused on transit-oriented affordable housing and a genuine win for Hans. On the other hand, if self-proclaimed proponents of affordable housing continue to argue for larger rather than smaller units, it will reveal plainly that they are simply interested in promoting development rather than affordable and that this is really an effort to undermine recently adopted zoning codes and Master Plans.

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Just Say No to E-Cig Lobbyists

E-Cig Lobbyist David Pasch’s car

Late last month, I received the following note from Raymond Glendening, the CEO of Scarlet Oak Strategies lobbying firm:

I hope you’re well.  I wanted to reach out for an idea for Seventh State.  As you likely know, the e-cig industry is currently being regulated by the FDA and there is looming regulations coming out of Annapolis (21 bill) and Baltimore City (flavor ban).

We are reaching out to see if you have interest in interviewing the vaping industry’s national spokesperson, David Pasch, on one of your talk shows.

We want to help balance the coverage, as there is considerable evidence that vaping products and e-cigarettes are among the most useful tools to help adult smokers’ quit traditional cigarettes, as noted in this recent study by the New England Journal of Medicine.

This new tax would make it harder for adults to gain access to these life changing products which are not only 95% safer than combustible cigarettes, they have been proven nearly twice as effective as other nicotine replacement products – like patches and gum – at helping adults quit smoking.

David Pasch, a spokesperson for Voices for Vaping, is available to further discuss the impact this tax would have, especially for adults seeking alternatives to smoking. David previously served in a senior communications role at the U.S. Department of Health & Human Services, as a Communications Director in the House of Representatives, and for various non-profit organizations active in the healthcare and public health space. 

Maryland became one of the first states to ban smoking in indoor workplaces in the country under the leadership of the then-Gov. Parris Glendening, Raymond’s father. While e-cigs may help smokers quit, they have also proven to be quite the gateway drug for teenagers, who are more likely to take up smoking if they used e-cigs. Of course, there is nothing healthy about e-cigs, which contain nicotine and formaldehyde among other noxious chemicals.

Trump Cheerleader David Pasch is one heck of a choice of a representative for this industry, as Politico reported:

David Pasch, who ran HHS’ digital communications until this month, regularly parked his car — with “FAKENWS” vanity license plates — outside agency headquarters.

This Trump hack ought who went from HHS to advocating for the tobacco industrial complex ought to be a real hit on State Circle. Of course, it helps to have the son of a former Democratic governor paving the way

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Riemer Admits ADU Error and Responds

Even if a reply on twitter isn’t quite the same as a publicly-funded email blast, this is the first time I’ve seen Hans correct the record, so that’s a positive step. Except the inaccurate 133 number has been bandied about and propagated a lot, including by Hans at his own forum on ADUs, if memory serves, and without correction by either Casey Anderson or Lisa Govoni from Planning at the meeting.

Additionally, Hans continues to underestimate the number of ADUs. As Andy Harney points out, the number on the county website arbitrarily excludes many ADUs given a different classification but that are ADUs. While 473 is over 3.5 times the figure given by Hans, the 1268 identified by Harney is over 9.5 times Hans’s inaccurate numbers.

I don’t why Hans ended up inadvertently using incredibly outdated information – there were far more than 133 ADUs even in 2012. But the existence of nearly 10 times more ADUs than he claims exists would seem to be an important difference to many, though reasonable people can disagree on this as on so many issues.

Moreover, I have had both detractors and supporters of ADUs point out that the count excludes many illegal or unregistered ADUs. As a result, the legal ADU count greatly underestimates the number of ADUs in reality. The unknown true number is well off from Hans’s erroneous representation.

ADU supporters hope that Hans’s legislation will make it easier to legalize illegal units. While perhaps so in some cases, I’d hope that units that, say, don’t meet the fire code would not be legalized. Either way, the presence of many illegal units reinforces the truth of claims regarding the total inability or unwillingness of the County to enforce its laws.

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Riemer Massively Understated Number of Existing ADUs

In his effort to push forward his zoning text amendment on accessory dwelling units (ADUs) that would radically alter building conditions and Master Plans throughout single-family neighborhoods, Councilmember Riemer has lamented the lack of existing ADUs, claiming that only 133 exist throughout Montgomery County.

Except that figure is completely false. It greatly understates the number of existing ADUs by a factor of at least 3.5 and probably more. The information showing it’s untrue is readily available on Montgomery County websites. Indeed, memos provided to the Council in the past directly contradict the claims made by Hans in his publicly funded communications.

The county’s own website says that there are 473 existing ADUs – over three times more than advertised by Hans Riemer and other advocates of his ZTA.

Look at the teeny-tiny print on the bottom left for the total count

A look at requests for ADU approvals under existing rules reveals 257 applications in recent years with only a small minority withdrawn or denied. The number of applications refutes Hans’s claim that virtually no one can legally build them under existing rules in Montgomery County. And this is before rules adopted just a few years ago to make it easier to build them have gone into effect and had a chance to have an impact.

In devastating follow-up testimony sent to Council President Nancy Navarro, Andy Leon Harney, explained in more detail that even these higher figures sorely underestimate the number of existing legal ADUs:

The figure often quoted that there are only 133 ADUs for a county of 1 million is simply false. In 2012, when the Council was considering ZTA 12-11, the Board of Appeals, which approved special exception accessory apartments said that between 1983 and 2012, they had approved 605 accessory apartments. Mr. Zyontz in memos to the Council at the time (10/8/12 p. 7 and 10/22/12 page 10) reported there were either 413 or 431 (probably a typo). At the same time, there were also 698 Residential Living Units—that is rent free accessory apartments approved for use by a relative, elderly parent or caregiver which are still legal and over time may well have been converted to rental units.  That would mean there were at least 1,111 ADUs plus guest houses which are no longer allowed but were grandfathered in with the passage of ZTA 12-11. The 133 number so often quoted is not accurate, and in fact there are 157 ADUs that have been approved since 2012, making the total ADUs closer to 1268, with others in the pipeline. If the Council is data driven, these facts should matter. If the Council allows itself to be persuade by an inaccurate number of “only 133 ADUs in a County of 1 million”, they are being misled.

Andy Harney is the Village Manager of Chevy Chase Section 3.

As I’ve previously explained, Hans’s legislation is deeply flawed for a number of reasons. In a post later this week, I hope to present a couple of easy amendments that would shift the focus back to the creation of smart-growth affordable housing and virtually eliminate most of the likely harms stemming from the misguided approach in the proposed ZTA.

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Progressive Legislation on Cell-Phone Towers a Casualty of Lisanti’s Fall?

Del. Mary Ann Lisanti’s (D-Harford) pariah status within the House of Delegates may have the important side effect of aiding cell-phone company efforts to get a favored bill passed.

Expansion of 5G networks requires small cell phone towers going into neighborhoods. Del. Dereck Davis (D-Prince George’s), the Chair of the Economic Matter Committee, has sponsored the bill favored by business. Lisanti, who also served on Economic Matters until losing her committee assignments, sponsored the more progressive and neighborhood-oriented bill.

One key difference between the bills is that Davis’s would preempt all local laws, while Lisanti’s would grandfather in all existing local laws on the installation of small wireless facilities. Another important difference is that Davis’s bill bans the collection of any fees from wireless providers, but the competing legislation would allow collection of a surcharge of up to 1% of revenues in order to provide wireless to underserved areas around the State.

Prior to Lisanti’s censorship by the House for use of a hateful racial epithet, her bill was gaining more traction than Davis’s. While Davis’s bill has no cosponsors, Lisanti’s has 17 with seven sitting on the Economic Matters Committee. While Lisanti’s bill did not have a public majority of the committee yet, her bill presented an unusually strong challenge to the one favored by the Chair.

Unless another delegate is willing to take up the lead in fighting for the bill, including facing off against a powerful committee chair, Dereck’s more conservative legislation may prevail thanks to Lisanti’s exclusion. Davis and the cell-phone industry look to notch up a victory as the neighborhood-oriented legislation is collateral damage to Lisanti’s fall.

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Update from Reader on Illegal AirBnB

A reader has also been curious about the illegal AirBnB that I profiled yesterday and contacted the Montgomery County office of the Maryland Department of Assessment and Taxation asking that the property be reclassified as commercial. (Note: this is a state, not a county office.) Here is the reply they received:

We have researched and found that the property is zoned R-60 for residential use and does not have any type of special use agreement with the Montgomery County Department of Permitting Services, Zoning and Site Plan Division .  Therefore we will not reclassify the account as commercial property.  Our records also show that the property is not owner occupied, so there is no further action to be taken by the State of Maryland. 

The owner doesn’t live there but continues to run a commercial youth hostel out of the house. The lack of commercial classification on the property seems woefully unfair to hotels engaged in the same business–renting out spaces in non-owner occupied structures. It is also quite different from an owner renting out a room or two in their own home, as AirBnB was originally conceived and presented.

In any case, it has been over a year since a county resident made a complaint about this illegal ADU and it’s still going strong. The use is not remotely consistent with the zoning code.

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It’s No Myth that AirBnBs arrive with ADUs

Supporters of accessory dwelling units (ADUs) claim that it’s a “myth” that they will be turned into AirBnBs or other short-term rentals.

Unfortunately, the law is not always a good guide to what happens.

Portlandia

Portland is often cited as the promised land by ADU supporters. Like Montgomery County, Portland’s ADU guidelines state that they are “designed for residential occupancy independent of the primary dwelling unit.”

But according to a survey prepared for a 2018 report prepared by the Institute for Sustainable Solutions (ISS) at Portland State University, 31% of ADUs are for short-term housing, defined as stays as less than one month. Only 56% are being used as someone’s primary residence. ISS is staunchly pro-ADU, so it’s hard to throw dirt on the statistics as part of a nefarious anti-ADU plot.

While intended as residential dwelling units, many are used as AirBnBs or the equivalent. The survey did not present statistics on what percentage were in compliance with Portland’s permitting requirements for short-term rentals.

Illegal AirBnBs

Councilmember Hans Riemer laudably wants to focus ADUs on housing rather than hotel space. In a recent email blast, he touted “the units could not be used for short-term rentals (i.e., Airbnb)” under his proposed legislation.

Unfortunately, illegal AirBnBs already exist with impunity in Montgomery County. Here is a photo of one operating in Bethesda:

A complaint was filed about this illegal AirBnB with the County last April. The complaint was “resolved” by kicking it over to the Department of Housing and Community Affairs (DHCA).

The county database shows no sign of an ongoing investigation. Apparently, they got a license after the complaint was filed but the current usage is not in compliance for these sorts of rentals. One also wonders if the county or the state is even capturing the appropriate tax from this usage since they don’t know it exists despite advertisements on AirBnB.

Increasing the burden on county enforcement authorities through the addition of hundreds of ADUs per year seems an unlikely way to solve the problem. As the County fails to keep on top of existing situations with complaints, it’s hard to have faith that a ban on AirBnBs in ADUs will be anything other than totally meaningless.

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Andy Leon Harney’s Testimony on ADU

Andy Leon Harney is the Village Manager of Chevy Chase Section 3. At the bottom of the post, you can find her testimony expressing concerns regarding Councilmember Hans Riemer’s efforts to loosen substantially the requirements for accessory dwelling units (ADUs).

Harney points out that the spread of impermeable surface due to building can cause storm water drainage problems. This may sound like some minor issue to some on the theory that it all just ends up in the drains but it’s not. When there is less land to absorb water, it has to go somewhere and that place can be your neighbor’s basement.

Unfortunately, we had experience with this problem in the Town of Chevy Chase due to people building larger homes and the county laws are very lax and don’t address the problem. We now require that people who add over a certain amount of square footage of impermeable surface must also build a water retention system to keep the water on the property until gradually absorbed into the ground.

Perhaps the County should include a similar requirement into the ADU law? After all, if most units will be small, then it won’t negatively impact building ADUs. To the extent it does, it prevents people from literally dumping a problem on their neighbors. (The Town also passed ordinances that I supported requiring greater setbacks, especially in the rear, and limiting home size more than the County.)

Proponents of the ADU changes assure us that “most” of the new homes will be small and thus not be a problem. But then why does the new legislation do away with the current limits on ADU size in favor of allowing the ADU to be 50% of the size of the house?

Harney also agrees with the county executive that the ADU proposal will not result in affordable housing. Again, if you want affordable, why allow bigger than now? Rents will be driven by the open market in any case and, as Harney points out, someone who just invested in building one will want to get their money back quickly.

Finally, and perhaps most importantly, Harney contends that the ADU plan is the thin edge of the wedge in an attack on existing single-family home neighborhoods. While I generally don’t rush to slippery slope arguments, there is some real justification in this case.

Beyond my arguments that people will circumvent the law legally or just ignore it due to lack of enforcement, this is a revision to expand ADUs when the previous legislation has just barely been implemented. Councilmember Riemer has long been a proponent of allowing higher density.

Many key proponents of this plan would like it just fine if it led to permitting multi-unit developments or apartment buildings in existing neighborhoods. (See Just Up the Pike or Greater Greater Washington for examples.) Residents are not in accord with this vision.

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County Executive Elrich Testifies Against ADU Bill

While County Executive Elrich is not opposed to accessory dwelling units (ADUs), he is opposed to this zoning text amendment (ZTA) for several reasons. You can read his testimony in full at the bottom of post.

Interestingly, Elrich points out that the changes made from the previous effort to encourage ADUs just went into effect in October of last year, so it is too early to see its effect and Councilmember Hans Riemer is jumping the gun in calling the previous legislation a failure.

Additionally, the ZTA does nothing to encourage more ADUs in areas near transit where we higher density and thus isn’t smart growth. Nor are there any tests or been any effort to make sure that existing streets and other infrastructure can accommodate them.

Most importantly to Elrich, a huge advocate for affordable housing, ADUs won’t serve the population that needs affordable housing. As the proposed ZTA eliminates the current cap on the maximum size of ADUs, the ZTA actually encourages the construction of larger ADUs with higher rents.

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