Proposal to change citizen’s right to appeal in Frederick not moving forward…for now

On July 2, 2014 I attended a meeting of the City of Frederick Mayor and Board of Aldermen. The Mayor and Board were considering a change to the City’s Land Management Code that would effect how appeals of planning commission decisions are handled in the City.

Below these introductory comments is my analysis and comments, as submitted in writing to the mayor and board regarding the proposed changes. It’s a fairly “wonky” analysis but, in brief, the proposed changes would:

• Reduce the scope and evidence considered in an appeal.

• Reduce accessibility to the appeals process.

• Greatly increase the costs of legal advice and bond positing (if a stay is even granted to the appellant).

Make no mistake: combined, these factors would effectively eliminate the ability of the average citizen to appeal any decision of the planning commission, essentially placing them above legal review to all but the wealthiest appellants.

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Jim Racheff
July 4, 2014

Dear Mayor McClement and Board of Aldermen:

Thank you for giving me the opportunity to speak to you on July 2, 2014 regarding the City’s proposal designed to eliminate local review and oversight of decisions made by the City’s Planning Commission. As a City resident who believes that local autonomy, a system of checks and balances, and fair and open access are essential elements of good government, I opposed this proposal. After carefully considering the testimony and discussion on July 2nd, my opinion remains unchanged.

As you are aware, State and 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. 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 has repeatedly testified that the proposed changes would result in several
improvements to the current code:

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

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

    ● The changes would reduce staff costs;

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

    ● The changes would protect the city from ‘less capable’ appointees being faced with complex decisions;

    ● The changes would expedite final decisions;

    ● It is not the purpose of the appeals board to hear appeals;

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

    ● It would cost aggrieved parties less to file an appeal.

I believe that the proposed changes fail to accomplish these goals.

The change would not create “consistency” in the local appeals process.

Under current law, all local appeals (except for 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 does not only affect 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 have eventually been appealed to the Maryland Circuit Court.

The Maryland appeals process is hierarchical by design, with lower local jurisdictions gathering evidence and reviewing decisions before they are escalated to higher courts. The current City appeals process supports this principle by have the local appeals board hear challenges first before escalating to the more formal and more expensive Circuit Court.

The changes would not significantly reduce staff costs.

City staff suggest that these changes lead to a more “efficient” appeals process and allow staff to minimize 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 any estimate cost savings. There is no “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 “coequal” appointed board (the ZBA) review the decisions of another appointed board (the Planning Commission); however, the Planning Commission and the Zoning Board of Appeals are not “coequal” but serve different functions within the Land Management

Code and the State Land Use Statute; in fact, the Land Use Statute specially calls for localities to have a planning commission and a board of appeals and that, by default, the board of appeals hears appeals to decisions of the planning commission.

The changes would not protect the city from ‘less capable’ appointees being faced with complex decisions.

On July 2nd, a member of the Board of Aldermen implied that the City has no guarantee to the ongoing competency and intellectual capability of citizens appointed to the Zoning Board of Appeals to analyze complex issues and issue decisions. While such comments could be seen as disparaging, one has to ask why this same logic would not apply to all appointed boards and officials? Citizen members of appointed boards are carefully selected by the elected Mayor, with those selections reviewed and approved by the elected Board of Aldermen. (And even then, terms of service are limited.) It is the responsibility of those bodies to ensure that appointed members are qualified to serve.

It is the purpose of the appeals board to hear appeals.

The State Land Use Statute specially calls for localities to have a separate planning commission and a board of appeals and that, by default, the board of appeals hears appeals to decisions of the planning commission. This interpretation has been reviewed and upheld by the Maryland Circuit Court. Given the potential impact of planning and zoning decisions on the welfare of residents, this separation of responsibilities and mechanism for local appeal creates a system of essential checks and balances.

The changes would not substantially expedite final decisions.

While the current appeals process does potentially add several weeks to the exhaustive appellant process, any additional time is statistically insignificant when considered in context with the months or years that it may take to have an appeal heard by the Circuit Court and the Court of Special Appeals, or the decades that many large projects may be under development. In this sense, a local appeal is the most timely option and the additional weeks a small price in return for the benefits that a local appeals process provides to the City.

Appellants would not 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.

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.

Under the current process, appellants are granted a stay until such a time that their appeal is resolved. Appellants would now lose the important protection provided by a stay; instead, appellants would be required to request a stay and post a bond, potentially costing millions of dollars.

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 more 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 (a problem in itself) while the Circuit Court filing fee is only $80; however, effectively appearing in Circuit Court requires lawyers, posting a bond, and can cost an appellant several times more than a local review.

The fiscal note to similar legislation introduced on the county level (HB256, 2012) recognized the lower cost of an administrative review and the possibility that removing local review could be more costly to residents and small business appellants. 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.

Albeit unintentional, the proposed changes would create two classes of citizens: those who the financial resources to appeal to Circuit Court, and those who are not. Enacting such a change would reduce the rights of citizens, possibly disenfranchise residents and limit access of citizens to petition their government to those with economic means.

Residents and experts oppose these changes.

During your meetings on this topic, you have heard testimony from several residents with similar concerns: I am unaware of any resident without a special interest that has voiced support for this proposal during public testimony. Both the Frederick News Post and Gazette Editorial Boards strongly criticized a similar proposed change in 2012. The current and past chairs of the Zoning
Board of Appeals for the past six City Administrations have all voiced opposition to the proposed
change.

Decisions that impact citizens for generations deserve careful review.

As the City of Frederick grows, so does the scope, complexity and impact of planning and zoning decisions. Major development efforts span hundreds of acres, encompass thousands of units and may take decades to complete. Residents regardless of economic means deserve a full and accessible opportunity to raise concerns regarding consequential decisions that once made, cannot easily be undone.

Make no mistake: between the reduced scope of the record, and the substantial increase in costs from legal fees and bond postings in a Circuit Court appeal, this proposal will effectively eliminate the ability of the average citizen to appeal any decision of the Planning Commission.

For these many reasons I remain opposed to the proposed change to eliminate the right of aggrieved parties to appeal Planning Commission decisions locally. Please contact me with any questions you have regarding this matter. As always, I am available to work with staff, citizens and elected officials to exchange ideas and find positive ways forward for the benefit of the city.

Respectfully,
Jim Racheff

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Jim’s earlier column on this issue:
“Proposal threatens Frederick citizen’s right to appeal Planning Commission decisions to local board”
March 27, 2014

[Edited to add this FNP article.]
Frederick News Post coverage of the July 2nd meeting:
City Notes: Appeals process in city to mostly stay the same
Sunday, July 6, 2014
By Jen Bondeson

EXECUTIVE SUMMARY: MAYOR AND BOARD OF ALDERMEN WORKSHOP
Date Submitted: June 25, 2014
Date of Workshop: July 2, 2014
From: Rachel S.Depo, Assistant City Attorney, and Gabrielle Dunn, Division Manager of Current Planning
“An Ordinance to Amend Sections 301, 309, 312, and 315 of the Land Management Code (LMC), Regarding Appeals of Planning Commission Decisions and Certain Administrative Decisions”
http://cityoffrederick.granicus.com/MetaViewer.php?view_id=12&event_id=1753&meta_id=48317

City of Frederick VIDEO: Discussion of Proposed Amendment to the Land Management Code Regarding Appeals of Decisions: “An Ordinance to Amend Sections 301, 309, 312, and 315 of the Land Management Code (LMC), Regarding Appeals of Planning Commission Decisions and Certain Administrative Decisions” (approx. one hour and thirty-eight minutes)

Public Comments: Jim Racheff (approx. 7 minutes)

Public Comments: Kai Hagen (approx. 4 minutes)


More information

Workshop Meeting of the Mayor and Board of Aldermen (VIDEO of full meeting)
Wednesday, July 2, 2014
http://cityoffrederick.granicus.com/MediaPlayer.php?view_id=12&clip_id=2162
Item 2 (beginning at 2:06:00): Discussion of Proposed Amendment to the Land Management Code Regarding Appeals of Decisions (video embedded above)

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)

Frederick News Post
City Notes: Appeals process in city to mostly stay the same
Sunday, July 6, 2014

Frederick News Post
City considers sending Planning Commission appeals straight to court
Thursday, March 20, 2014

Frederick News Post
Challenging county growth decisions soon to cost $1,200
Thursday, June 6, 2013

Gazette
Bill limiting appeals of Frederick County developer pacts passes
Opponents must now take cases directly to court instead of appeals board

Thursday, April 18, 2013

Gazette
Frederick lawmaker’s bill would limit challenges to developer pacts
Opponents couldn’t take cases to appeals board under Clagett’s proposal

Tuesday, February 5, 2013