Proposal threatens Frederick citizen's right to appeal Planning Commission decisions to local board

Last year Frederick County took controversial steps to prevent opponents of county Developer Rights and Responsibilities Agreements (DRRAs) from having hearings before a local appeals board. Had those steps failed, it was reported that the President of the Board of County Commissioners “would have proposed raising the appeals board filing fee to $1,500.00 to $2,000.00, achieving the same chilling effect of further muffling the voice of opposition…”

This month the City of Frederick started public discussions about a similar proposal designed to eliminate local review and oversight (by the Zoning Board of Appeals) of decisions made by the City’s Planning Commission. This proposal should be of concern to anyone who believes that local autonomy, a system of check-and-balances, and fair and open access are essential elements of good government.

Currently, City law allows residents to take their concerns to the local appeals board for an administrative review and decision. If the appeals boards votes to stand by the decision, residents can take the case to the Maryland Circuit Court.

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Under this new proposal, the right to appeal Planning Commission decisions locally would be eliminated, leaving those aggrieved by a decision of the Planning Commission with only the choice to appeal directly to the Maryland Circuit Court (while appeals of decisions of the City’s Zoning Administrator would still be heard locally.)

City staff suggests that the proposed changes would result in several improvements to the current code:

    1) The changes would create “consistency” in the local appeals process;

    2) The changes only affect appeals that “end up in a higher court” anyway;

    3) The changes would reduce staff costs;

    4) The changes remove an inherent “problem” with an appointed board reviewing matters pertaining to another appointed board;

    5) Appellants would retain the same access and protections they currently enjoy;

    6) It would cost aggrieved parties less to file an appeal.

Let’s examine each of these presumptions more closely:

“The change would create “consistency” in the local appeals process.”

Under current law, all local appeals (with the exception of a single type of Planning Commission decision) are first heard by the local appeals board. This proposal appears to result in a less consistent process, as half of appeals would be heard locally and the other half would be denied the benefit of a local review.

“The change only affects appeals that “end up in a higher court” anyway.”

Since the adoption of the current Land Management Code in 2005, the City Zoning Board of Appeals has heard three appeals: one an appeal of a decision of the Zoning Administrator and two of decisions of the Planning Commission – both types of decisions can be, and have been, appealed to the Maryland Circuit Court.

The Maryland appeals process is hierarchical by design, with lower local jurisdictions reviewing decisions before they are escalated to higher courts. The current process supports this principle by have the local appeals hear appeals first before escalating to the more formal – and more expensive – Circuit Court. By extension of staff’s logic, appeals of local Planning Commission decisions should be referred directly to the highest court in the state and local Planning Commissions should cede responsibilities to the State Department of Planning.

“The changes would reduce staff costs.”

City staff suggest that these changes lead to a more “efficient” appeals process and allow staff to avoid the work they undertake during an appeal, thus reducing the City’s costs; however, staff has also argued that these proposed changes will not deter citizens from appealing Planning Commission decisions. If that is the case, staff will still have to prepare for an appeal at the Circuit Court level, thus negating a good portion of the estimate cost savings.

“The changes remove an inherent “problem” with an appointed board reviewing appeals of another appointed board.”

Staff and Planning Commission members contend that an “inherent conflict” exists in the current law that allows one “co-equal” appointed board (the ZBA) review the decisions of another appointed board (the Planning Commission) but there is no evidence to support this opinion. The Planning Commission and the Zoning Board of Appeals are not “co-equal” but serve different functions within the Land Management Code and the State Land Use Statute.

Having the ZBA hear appeals of Planning Commission decisions seems no different than the City’s appointed Ethics Commission reviewing annual conflict-of-interest disclosure forms from the members of other appointed boards. (In fact, past appointed members of the ZBA have requested opinions from the appointed Ethics Commission regarding possible conflicts of interest.)

“Appellants would retain the same access and protections they currently enjoy.”

Under the current law, successfully challenging a decision of the Planning Commission is still a difficult task. The City’s five person appeals board is appointed by the mayor and the rules require a supermajority to overturn a decision being appealed. But even under those conditions, a local administrative appeal is far more accessible to the average citizen than mounting an appeal in Circuit Court, which typically requires lawyers and greater knowledge of formal, legal procedures. By contrast, appellants frequently appear before the ZBA without legal representation.

Additionally, under the proposed changes interested parties, higher courts and the public would be denied the analysis currently conducted by the ZBA. It seems reasonable to assume that the local planning and appeals boards would be more familiar with the intricacies of the local land management code, and be more readily able to enact and interpret the code than a Circuit Court judge who rarely hears an appeal regarding local land management ordinances.

Lastly, the proposed changes would significantly reduce the record provided to the Circuit Court for review. According to statements by City staff, the Circuit Court would only consider the record from the final meeting in which a Planning Commission decision was made, thus debarred from errors that may have occurred otherwise during the planning process and limited the rights of aggrieved citizens to raise concerns.

“It would cost aggrieved parties less to file an appeal.”

For the average citizen, a local administrative appeal is far more affordable. Yes, the cost to file a local appeal is $1,000.00 (a problem in itself) while the Circuit Court filing fee is only $80; however, appearing in Circuit Court requires lawyers and can cost an appellant several times more than a local review.

For a person working a full-time, minimum wage job, the $1,000.00 cost of to file an appeal with the local appeals board represents almost 7% of their gross earnings for the year. An appeal to the Circuit Court could cost ten times that amount, equal to roughly two-thirds of their gross annual earnings.

While local governments and large businesses have the staff, financial means and legal expertise to present a case in Circuit Court, for average citizens or small business owners a local Board of Appeals may represent the only practically accessible means to protect their rights.

And it is clear that the real cost of these proposed changes would create two classes of classes of citizens: Those who are wealthy enough and able to appeal to Circuit Court, and those who are not. Enacting such a change would reduce the rights of citizens, further disenfranchise residents and limit access to petition their government to those with economic means – a high price to pay for saving a few dollars or taking a little more time.


More information

Responsibilities of the City of Frederick Zoning Board of Appeals
“Has the power to hear and determine appeals from refusal of building permits and/or use of land, to hear appeals where an error in the application of the zoning ordinances and regulations is charged. Permits exceptions to or variations from the zoning ordinance or regulations in accordance with the zoning ordinance or regulations.”

Special Rules of Procedure for Appeals from Decisions of Planning Commission
(as approved by the Zoning Board of Appeals on February 28, 2012

ZONING BOARD OF APPEALS
January 28, 2014 Meeting
Click to watch the initial discussion of this agenda item- Appeals of Planning Commission Decisions To discuss draft amendments to Sections 301, 309, 312, and 315 of the Land Management Code (LMC) as they pertain to appeals to Planning Commission decisions. (Depo/Dunn)

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