Smarter Growth Alliance of Frederick County: Letter of opposition to MXD bill

Please read this letter from the Smarter Growth Alliance of Frederick County, expressing strong opposition to Council President Bud Otis’ bill (Bill No. 17-21) to “amend the Zoning Ordinance to specify additional permitted uses in the Mixed Use Development District.”

From Council President Bud Otis’ explanation of the bill:

“Currently the Frederick County Zoning Code allows for employment in the MXD however, it is limited to those uses permitted within the Office Research Industrial Zoning District which, includes office space for businesses.

The proposed legislation would add “wholesaling, warehouse and/or distribution facilities” to the uses allowed in the MXD zone (mixed use).

Tomorrow, we will publish and link to additional and more detailed information about this ill-advised legislative proposal, from County Executive Jan Gardner.

The public hearing for this bill is scheduled for Tuesday, January 16th at 7:00 PM.

Public Hearing:
a. Bill No. 17-21 – Permitted Uses in MXD – Council President Bud Otis

Public comments will be limited to three minutes for individual speakers

Smarter Growth Alliance for Frederick County

January 9, 2018

The Honorable Frederick County Council
Winchester Hall
12 East Church Street
Frederick, Maryland 21701

Re: Opposition to Council Bill 17-21, Permitted Uses in MXD

Dear Council President Otis and Members of the Council,

The Smarter Growth Alliance for Frederick County is a coalition of local and state organizations representing approximately 16,000 members and supporters in Frederick County. We engage residents and policy makers in support of wise land use principles that value our rural landscapes, protect our natural resources, and enhance the unique character of our towns and cities to ensure a more resilient and prosperous future.

We are writing today in opposition to the proposed bill seeking additional uses in the Mixed Use Development district (MXD). In short, we find that this bill is tragically flawed, not the least of which is that it would violate State law. Specifically, we will argue that the bill:

    1) Is ambiguous and poorly constructed,

    2) Violates the rights of adjoining property owners,

    3) Violates the terms of current Development Rights and Responsibilities Agreements (DRRAs) which include MXD property, and

    4) Violates State law on DRRAs.

We will outline each of these arguments in greater detail. We sincerely hope that you will heed these concerns and either withdraw this ill-advised bill or vote against it.

Ambiguity and Poor Construction. This bill seeks to expand specified permitted uses within a MXD zone. However, the language is highly ambiguous as to how a property owner with a valid DRRA would take advantage of this change. Specifically, in the language proposed for 1-19-10.500.11 (A)(2), it states that the new uses would take effect “upon application” by the property owner. Is this an application for a zoning change following current County practices?
Would it be a Phase I application because it introduces a new use? Is a pre-application community meeting required? Is a new Adequate Public Facilities Ordinance review required? If so, must any existing APFO Letter of Understanding be amended to conform to any new requirements?

Or is this simply an undefined “application” from a property owner “electing” to take advantage of the new uses? If the former is true, then this approach may be reasonable, but additional language should specify the process and substantive requirements needed to follow ALL of the applicable rezoning processes. If, however, the latter was intended, then this would represent a gross abdication of the Council’s zoning oversight, and a serious deviation from long established Frederick County zoning procedures.

Further, the bill seeks to redefine accepted uses in the MXD zone and does so in the descriptive sections of 500.7(A) and (A)(3). However, the bill is moot with respect to Section 1-19-100.500.7(B) which establishes the maximum percentage of each use in an MXD project. If “wholesaling, warehouse and/or distribution” are a new use, is it capped within the overall “Employment” category, or subject to its own independent maximum percentage of the overall project? The Use Tables provide explicit and authoritative guides for what can be done in each specific land use category. Changes such as proposed in this bill should clearly also generate corresponding changes in the Use Tables. Frankly, however, these are minor procedural errors compared to our remaining concerns.

Violating the Rights of Adjoining Property Owners. This bill would materially change the character of potentially each MXD-zoned property in Frederick County. The MXDs are typically a mix of residential, commercial and employment. In fact, they are often predominantly residential. Those homeowners who purchased property and homes in those developments undoubtedly had specific expectations for what would be located in the remainder of the development. For example, in the case of the Urbana Northern MXD there is a new elementary school being built, based in large part on the number of schoolchildren that this largely residential development will generate.

This proposed legislation would fundamentally alter the character of these developments. Warehousing and distribution centers are inherently industrial uses and have no place mixed in among residential uses. Wholesaling, such as a Costco, generate traffic far in excess of any anticipated uses in the MXDs, as currently defined. Property values will be significantly impaired as a result.

What’s worse, these people don’t even know it’s coming. You haven’t told them yet. This bill effectively changes the zoning of each MXD property. In fairness, these properties should have been posted thirty days prior to the upcoming public hearing on January 16th. The signs on the property are not just a “nice to have.” They represent a fundamentally important mechanism to inform local residents of the issue at hand. It gives them the opportunity to find out what is being proposed, to research the issues, and then to come before you with reasoned arguments — for or against. You are proposing this change without affording those residents their rights to be heard and that is simply wrong.

Violating the Terms of Current DRRAs. The proposed legislation will violate the most important element of each DRRA covering a MXD-zoned property. By law, a DRRA freezes the zoning of a property at the time the agreement is signed. This bill now seeks to change the zoning of the property, without amending the DRRA. More than that, each DRRA specifies the permitted uses for the property, and the density and intensity of the property. The changes proposed under this bill certainly impact the permitted uses, and will undoubtedly affect the density and intensity of the property, as well. These conditions are in each DRRA and are supposed to have been frozen at the time of signing. This bill would fundamentally alter those conditions and materially change each DRRA including MXD-zoned property. The bill would do this without requiring a corresponding amendment to the DRRAs. In other words, it would fundamentally alter the conditions of the contract, without actually changing the terms of the contract. Frankly, it begs the question, what else could be changed in such a fashion, and sets a dangerous precedent for these agreements.

Violating State DRRA Law. More importantly, however, the proposed bill violates State law in a number of ways. Specifically, the Land Use Article, Sections 7-301 to 306, provides the State law on DRRAs. It details what is required in a DRRA and how a DRRA may be amended.
Section 7-303 (a) specifies the contents of a DRRA, to include:

    …(4) permissible uses of the real property,
    (5) density or intensity of use of the real property,

    (7) a description of the permits required or already approved for the development of the
    real property, and
    (8) a statement that the proposed development is consistent with the comprehensive plan
    and development regulations of the local jurisdiction.

Each of these required elements of a DRRA are subject to change under the proposed bill. As such, each existing DRRA must be amended to comply with State law. The proposed bill, allowing this change of permitted use, without amending an existing DRRA violates the letter and spirit of the State law. Moreover, Section 7-305(f) provides for procedures on amending DRRAs, including a public hearing and review by the Planning Commission to ensure the proposed change is consistent with the Comprehensive Plan. The proposed bill seeks to avoid amending the DRRA and, therefore, avoid the Planning Commission review and finding. As such, the bill further contradicts State law.

Often times, State law provides a minimum threshold above which a County or locality may seek to establish stricter local legislation. In this case, however, the proposed bill specifically contradicts and attempts to circumvent State-mandated requirements and procedures for DRRAs.

We are confident that passage of the bill in its current form would fail upon subsequent appellate review for the reasons stated herein.

We sincerely hope that you will give these points serious attention, and that you will either withdraw the bill, or vote against its passage.


John Campagna
Executive Director
1000 Friends of Maryland

Morgan Lakey
Audubon Society of Central Maryland

Elizabeth Bauer
Vice President
Citizens for the Preservation of Middletown Valley

Jennifer Kunze
Maryland Program Organizer
Clean Water Action

Kai Hagen
Executive Director
Envision Frederick County

Janice Wiles
Executive Director
Friends of Frederick County

Caitlin Wall
Policy Director
Potomac Conservancy

Caroline Taylor
Executive Director
Montgomery Countryside Alliance

Nicholas A. Redding
Executive Director
Preservation Maryland

Steve McKay
Residents Against Landsdale Expansion (RALE)

Daniel Andrews
Sierra Club Catoctin Group

As introduced at the Frederick County Council Meeting on Tuesday, December 19, 2017, click the link below to read the bill:

AN ACT to: amend the Zoning Ordinance to specify additional permitted uses in the Mixed Use Development District. – Council President Otis