Historically, land use decisions have been left up to local governments. While the State has tried to influence these decisions via various policy statements regarding smart growth, local autonomy has rarely been challenged and the laws implementing State policy generally have no “teeth.” Clearly, sprawl development has not been significantly curbed by these policies relying on voluntary compliance and recent legislation has reflected a trend to add at least the threat of a “stick” to the lure of a “carrot.”
SB236, The Sustainable Growth and Agricultural Preservation Act of 2012, encourages development supported by public sewer systems as opposed to sprawl development on septic systems. On the surface, this looked like a “win-win” piece of legislation that limits where septic systems can be used as a way to promote smart growth with a strong Chesapeake Bay cleanup component. The legislative provisions were implemented via “shall” statements to more forcefully push local government toward smart growth policies that concurrently reduce the associated growth costs born by the taxpayers and threats to the environment. However, some counties have revolted against the State’s threat to their autonomy and decided to test the State’s resolve to use the “stick.” Charles County seems poised to join the ranks of Frederick, Cecil and others who don’t have a problem with new development costs being born by the taxpayers and the water being too dirty for their children to play in.
Normally, there is some give and take between smart-growth advocates and the development community during the comprehensive land-use planning process. However, the 2012 Draft Comprehensive Plan for Charles County (The Plan) was essentially written by the development community to the exclusion of smart-growth policies, and without directives and goals based on serving the broader public’s interest. The process was permeated by the insistence of a majority of the Planning Commission (PC) that zoning density is a property right and downzoning is a “taking” of rights – a conclusion that is not supported by legal precedence, court decisions or the history and application of local zoning ordinances throughout this nation.
Therefore, any attempt to limit development anywhere in the County was automatically opposed with no regard for the obvious and well-documented potential environmental, quality-of-life, and fiscal consequences. Ultimately, this “takings” argument has set the course for a new land-use vision that will burden taxpayers with the cost of sprawl, cause further environmental degradation, and destroy resources that have public-health, ecological and economic value.
This Property-rights hysteria has led to clear violations of State policy as implemented in Maryland statutes. The development forces took complete control of the process via their sympathizers on the PC who willingly ignored and even actively conspired to circumvent State laws. The PC majority blindly embraced a tiers map developed in secret by a pro-development lobby made up of realtors, developers and farmers/speculators. Instead of complying with either the spirit or letter of SB236, the developer map ignored clear policy goals and statute text aimed at limiting septics in sensitive areas. In an attempt to circumvent the text of the Bill, the PC voted to change the zoning of over half the County to remove the word “Conservation” from the zoning classifications. There was no planned comprehensive rezoning and no assertion of a mistake or change in neighborhood as required by the Land Use Article in State Statutes. The majority of the PC just “spot-zoned” all the areas where they wanted to increase development on septics in total disregard for the law.
Apparent loop holes in the text of the Bill were exploited to increase the size of all minor subdivisions on septics from five to seven lots and also allow residue parcels to be treated as new subdivisions so some existing minor subdivisions can be expanded to 12 lots. Adequate Public Facilities mitigation is much less of a burden for minor subdivisions than for major subdivisions. Therefore, minor subdivisions are more of a burden to the taxpayers but better for the builders’ bottom lines.
The apparent corruption of sound growth and development concepts has also infected the Board of County Commissioners (BOCC) who didn’t have to endorse the PC’s biased anti-environment agenda. However, recent actions by the BOCC indicate that the development lobby has succeeded in seizing control of at least three of the five Commissioners who are willing to rubber-stamp the irresponsible decisions of the rogue Planning Commission.
Given that the state has established that the public has a right to witness the iterative process of zoning and comprehensive planning, it is critical to note that the public was not privy to details surrounding how this tiers map was developed. It was created by a private company, under the direction of a pro-development faction, and the public did not have access to the decision-making regarding what parameters were used to devise and establish the four tiers.
It remains to be seen if the political will to protect, preserve or conserve anything exists at the BOCC level. However, it seems clear that the laws have enough “teeth” to hold Charles County accountable for The Plan and the tiers map, under review by various agencies. That the laws have been violated is not debatable; the violations are obvious and only the capability and commitment to enforce them are in question. It seems likely that Charles County will join the ranks of other counties thumbing their noses at state policies and that enforcing these policies and the laws that are being broken will fall to either the State or to coalitions of private organizations with limited legal assets.
It also seems that this type of behavior on the part of the PC majority should qualify for disciplinary action against them. According to The Land Use Article, the BOCC has the authority to remove Planning Commissioners for malfeasance. Most oaths of office include promises to honor laws and uphold the public trust, neither of which has been done in this case. However, the BOCC has not taken such action and the political will to do the right thing may not be strong enough – especially since their majority seems to mirror the same contempt for state law and the majority of Charles County citizens as does the PC. However, it should not be assumed that the residents of Charles County are unwilling to seek judicial remedies against those officials who ignore our laws and abuse the public trust. The PC-approved tiers map and comprehensive plan both fail Charles County, its citizens, and the Chesapeake Bay.