Conduit Street

A February 15 Frederick News-Post article announces an agreement between Frederick County and the Maryland Department of Planning (MDP) over the county’s septic system growth tier map.  As previously reported by Conduit Street, MDP had raised concerns with the county’s initial map.  Under the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236), a county may adopt a growth tier map that divides its lands into 4 tiers that set where development on septic systems occur.  If a county chooses not to adopt a tier map, the county is prohibited from authorizing major developments on septic systems.  While MDP does not have the ability to approve the tier maps, it can comment and require that a public hearing be held to discuss its concerns.

The article also notes that with the agreement, Frederick County may qualify for an exemption that would allow for limited additional development in the most restrictive tier, Tier IV, because of the county’s strong rural zoning.

“I think it’s an astounding success,” Commissioner Paul Smith said Thursday.  …

State planning officials said the map did not meet the spirit of the law.  [Frederick Commissioner President Blaine] Young and Eric Soter, director of the county’s community planning division, met Tuesday with Richard Hall, state secretary of planning, to discuss the county’s position. By the end of the meeting, Soter and Young said, Hall was convinced that Frederick County would qualify for the [Tier IV] exemption his department is authorized to give.

County staff will prepare a new map. It will be the subject of a Feb. 26 public meeting, which Hall is scheduled to attend.

“It’s a huge victory,” Young said. “It gives us some of the flexibility we need in Tier IV.”

The Maryland Department of Planning has released its comprehensive status report on the implementation of septics tiers and related provisions of SB 236 from 2012. As previously reported on Conduit Street, the Department has recently been offering its observations on the county progress with the development and adoption of the tier maps.

The report reviews each jurisdiction’s progress on plan development and adoption, and includes comments and mapping alternatives for numerous counties. Following a presentation of a wide range of factual data and procedural or substantive comments, the Department offers a summary of its envisioned “Next Steps” as follows:

Next Steps

MDP will continue to work with those local governments that have not adopted tier maps to provide whatever assistance and support is necessary for them to do so. For jurisdictions with adopted tier maps that received MDP comment letters, MDP will coordinate with them in preparation for their required public hearing and to hopefully bring their maps into compliance. At the time of writing the administration is considering options for how to best respond to the counties with problematic tier maps.

Material from the Maryland Department of Planning:

Main Septics Website

February 1 Report to General Assembly

Maps for Each County and Municipality

A January 29 1000 Friends of Maryland press release criticizes counties that 1000 Friends feels have not adopted strong septic growth tier maps under the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 163) or have inherently weak zoning.

Maryland Secretary of Planning Richard Hall provided an update on the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236) before the House Environmental Matters Committee and the Senate Education, Health, and Environmental Affairs Committee on January 23. The Secretary provided the perspective of the Maryland Department of Planning (MDP) on county efforts to adopt the optional Growth Tiers under the 2012 legislation.  Under the 2012 Act, counties that do not adopt the Growth Tiers are no longer able to approve major developments on septic systems — that is, counties that have not yet finalized plans are not in defiance of the state law, but are simply subject to a lesser allowance for development approval than those with adopted plans.

In his presentation before the Senate Committee, Secretary Hall indicated that 12 counties have adopted Growth Tiers.  While the law creating the tier system does not grant MDP approval authority over the locally adopted tiers, the Secretary volunteered the Department’s impressions of those adopted. From the 12 counties having submitted their tiers, MDP finds 8 to be acceptable:  Baltimore City, Baltimore County, Garrett, Harford, Kent, Montgomery, Prince George’s, and Talbot.  Somerset’s plan is currently under review by MDP.  He noted that MDP objected to the plans of 3 counties:  Allegany, Cecil, and Frederick.

Secretary Hall stated that Cecil and Frederick Counties went beyond the bounds of the law and placed land that should be in Growth Tier 4 (areas dominated by agricultural and forest lands or classified for preservation) in Growth Tier 3 (areas where major subdivisions on septic systems are allowed).  He indicated that the MDP concerns with Allegany’s plan “were not nearly at the level of those of Cecil and Frederick” and that MDP was trying to work out their issues.  He also expressed concern that some of the counties who have not yet adopted Growth Tiers might be waiting to see what happens to Cecil and Frederick Counties.

The Secretary stated that neither he nor MDP had any enforcement power over counties that MDP believes are not complying with SB 236. (In the earlier House briefing he did acknowledge in response to questions by legislators that the State could impose budgetary penalties against the counties or join in a lawsuit brought by either the Attorney General or a private party.)  He also noted that the Governor’s office was reviewing possible responses.

See coverage of the briefing in the Baltimore Sun (limited free views available online).

MDP Growth Tier Presentation to Environmental Committees

In a January 7 Center Maryland  opinion piece, Chesapeake Bay Foundation (CBF) Lands Program Director Lee Epstein argues that recently enacted land use regulations, such as the 2012 septic system legislation,  are designed to strengthen rural counties and that such actions are not unconstitutional to landowners.  Mr. Epstein also urges counties to work with the septic system legislation.

First, there is no war on rural Maryland other than the development onslaught that threatens to gobble it all up once the economy improves just a bit more. The state of Maryland simply is trying to better manage the development of the rural landscape while there’s still some left to manage. That benefits everyone, folks who live there now, and folks who want to move in.  …

There are new regulatory demands of these rural counties, but these requirements are intended to strengthen, not weaken, the counties.  …

Contrary to the belief of some, no landowner has the “right” to do with his or her land whatever he or she pleases.  Our rights and our responsibilities as landowners are shared, and if what we wish to do harms our neighbor, such actions may be disallowed.  …

The tier system was created after long study to resolve a growing problem.  Instead of fighting it, counties can become constructive partners in making it as fair as possible—indeed, in making it work.

On November 27 1000 Friends of Maryland released an evaluation of county efforts in mapping Growth Tiers and protecting rural lands under the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236).  The results are also summarized in a postcard format.  From the evaluation:

1000 Friends looked at how effectively each county is working to keep our farm and forest areas of Maryland rural.  At stake is the possible loss of over 400,000 acres of rural land if current development trends don’t change.  So who is working to preserve rural land and who is not?

1000 Friends used three main criteria in judging county efforts to preserve rural land:  (1) the county’s rural zoning; (2) the county’s effort in establishing Growth Tiers under SB 236; and (3) whether a county has increased the number of building lots under its definition of minor subdivision, as allowed by SB 236.  The evaluation does not consider county land preservation efforts or most other rural protections beyond zoning.

The evaluation critiques each county’s efforts, excluding Baltimore City.  Out of the 23 counties reviewed, 1000 Friends determined that 4 counties have strong rural protections, 11 have moderate to good rural protections, 5 have weak rural protections, and 3 have extremely poor rural protections.  As the Growth Tier designation process is ongoing, a county’s final ranking could change based on its final Growth Tier map.

A November 27 Baltimore Sun article also reported on the 1000 Friends evaluation:

A November 20 Baltimore Sun article recounts a recent Howard County Council Meeting on the County’s proposed growth tiers under the Sustainable Growth and Agricultural Preservation of 2012 (SB 236).  The growth tiers will limit where major developments on septic systems can be located, prompting concerns from landowners and the farming community over the potential devaluing of their land.

Farm tractors could be found circling the parking lot at the county government building in Ellicott City Monday night, Nov. 19, sporting signs reading “Devaluing farms threatens farming” and “Septic bill 236 belongs in a manure spreader.”

Local farmers and their supporters flooded the county government offices for a public hearing on a county proposal to conform with state law that would limit the development rights of farmers.  …

A November 19 Salisbury Daily Times article discusses Wicomico County’s consideration of the potential impacts on landowners if the County elects to adopt the growth tiers under the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236).  While adoption of the growth tiers is optional under the legislation, counties that have not adopted growth tiers will no longer be able to approve major subdivisions on septic systems after December 31.

Wicomico County officials are looking at all their options before adopting, or possibly not adopting, a four-tier system determining where future development can occur.  …

“I’m particularly concerned about farmers because farm land is basically their retirement asset. I’m not convinced that their four-tier legislation would not negatively impact the value of their land,” said County Administrator Wayne Strausburg. “That’s what I call unintended consequences. That gives us cause for being very, very deliberate and evaluating this process carefully.”  …

“That Dec. 31 deadline — I don’t want to call it an artificial deadline — but it’s a deadline for all practical purposes that does not have any immediate consequences for the county,” Strausburg said. “We can take more time to come to a better conclusion, to come to a better map solution — if you will— and I think our citizens will be better served.”