Agenda - Planning Commission - 08/29/2002

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condominiums in Gaithersburg. According to Glendening, the state threw its support behind the project to facilitate several smart growth policies, including maximizing density and minimizing traffic by a site design that incorporates the state's transit investments in the area. Mark DePot, acting director of urban design for Gaithersburg, argues that the state's interest in Parklands is unclear. Gaithersburg already had enacted citywide, traditional- neighborhood-design zoning to encourage projects like Parklands, he says, and the city planning staffwas working closely with the developers on design and environmental issues well before the state planning department intervened. DePot cites a year-old staff report to the city planning commission that in fact supported an increase in density around the transit station area, which would make the transit proposal viable. "Because we're a residential-poor community, the city would like to see Parklands built so that the city's many multifamily residents could move up in the housing market without leaving the area where they work." Good design, however, is hOC an issue with Parklands. "State smart growth policies are really just repetitive of what the city is already accomplishing," DePot says. Drawing Fire The renewed intervention policy has been in effect for less than a year, but criticism of MDP intervention is mounting. After the legislature enacted the 1974 law, s. MD.P adopted administrative rules that established guidelines for its intervention. One section of' the rules specifies that MDP should become involved onl7 in matters of substantial state or interjurisdictional interest. Nonethelessl the rules still give the MDP broad, discretionary a'uthority to involve itself in local land-use decision making without limitation, stating these guidelines are for informational purposes and do nor "curtail or limit the authority to intervene." Anne Dougherty, assistant director of the Maryland Association of Counties, bdieves MDP has the right to exercise irs authority to intervene. "However, we are taking a cautious approach to the whole issue," she says. Dougherry observes that the state legislature delegated Maryland's smart growth program to local decision makers and local communities. Nonetheless, she says, ~'The state's blanket authority to intervene is inconsistent with stare policy and the local decision-making process. The people most affected by the projecra~hould make the decisions, not the state." There is "definitely a problem," Dougherty maintains, with the state's interpretation of ira authority to favor or oppose one economic use over another, as in the Wal-Mart case in Kent County. Stuart Kaplow, a land-use attorney in Towson, Maryland, who represents builders and developers, claims the state's intervention exceeds what the state legislature intended. "The state's actions are troubling," he says. Kaplow points out that the MDP is justifying its intervention based on an opinion by the scare attorney general, and not on express language in the 1974 statute. "It is nor clear that there is state authority for some actions. If there is, it may actually say something different from an advisory opinion." Noonan concedes the lack of any formally adopted wri't'ten criteria co guide MDP in applying the law to specific situations. "Our policy is ro use the iow judiciously in high-profile cases. Our point of entry in a local proceeding is our actual &£iche/e Le?aiw'e is an attorney i. Baltimore and a meml~er of the Mm nd and District ,tmbia vats. participation in a local land-use decision-making process." In these site-specific matters, Noonan says, MDP uses "a '" development scorecard" and the National Governors' Association's "New Community Design" guidelines (Glendening is past chairman of the NGA), but not the guidance monographs the state developed ro help local governments comply with the 1992 planning act. The law is being used "to make localities do what the state wishes," Kaptow says. He points to Glendening's threats to intervene in Carroll County on several land-use decisions. In one instance, MDP threatened to intervene when the county commissioners amended the zoning ordinance to increase the allowable number of units in resource protection or conservation-zoned land by allowing density to be calculated on a parcel's gross acreage. Previously, density in resource protection zones was calculated on the net acreage remaining after subtracting the area occupied by certain restricted resources from the gross acreage. The amendment also permitted transfers of density from land zoned for conservation to adjacent parcels zoned for agriculture. After studying the amendment, MDP staff concluded the density transfers would ar least potentially double how much housing could be built in rural areas, which was inconsistent with a key stare smart growth policy, the preservation of agricultural and natural resource areas. Here, the state didn't merely testify against the ordinance. Maryland Secretary of Planning Roy K/enitz also'publicly threatened to cut off $400,000 in covered farmland preservation funds to 'the county or &certify the program if the county commissioners failed to revise or repeal the ordinance. I I I I I Lnndsc:tpe MastI