February 15, 2013
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.”
February 14, 2013
The Gazette reports on continuing discussion regarding county implementation of the septic tiers required under the Sustainable Growth and Agricultural Preservation Act of 2012. That legislation, most commonly referenced as the “septics bill,” was passed to require local governments seeking to authorize certain levels of development outside public sewer service to designate specific tiers for that allowance. Counties not adopting such a tier system would not be able to authorize such “major” development – a threshold that varies by county, but is set at no more than 8 residential units by the state law.
From the Gazette coverage:
Furthermore, some of the maps are “problematic,” so the administration of Gov. Martin O’Malley is considering its options to get governments to comply, said Jason Dubow, environmental planning director for the Maryland Department of Planning.
Both carrots and sticks are being considered, including programs and funding sources, Planning Secretary Richard E. Hall said Thursday.
Options for taking the counties to court also are being examined, including whether the governor could have the attorney general sue, or the state might join as a plaintiff if an advocacy group sued, Hall said.
New legislation might be filed, “but I don’t think there’s a lot of appetite for that,” Hall said. “What I most hope happens is we work with the counties to come up with a map we can live with.”
Hall said his agency managed to “talk through” problems it had with the early maps of several counties before arriving at “not the map we would have drawn but … a map that made sense.”
Cecil County public hearing information
The Maryland Department of Planning website contains extensive information about the implementation of the 2012 law.
February 1, 2013
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:
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
February 1, 2013
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.
A 2012 law intended to protect Maryland’s open space and farmland from high-polluting development on septic systems has been broken or ignored by five Maryland counties, while other counties have taken inadequate steps to comply, according to an analysis at http://friendsofmd.org by 1000 Friends of Maryland. …
It is outrageous that some counties would adopt maps leading to unchecked, poorly planned development that only will increase congestion and pollution and destroy our open space,” said Dru Schmidt-Perkins, executive director of 1000 Friends of Maryland. “The quality of life in Maryland is at stake. Current projections show we are at risk of losing 400,000 acres of farmland to sprawl development over the next 35 years if the counties do not take this issue seriously and plan for smarter development.”
As previously reported on Conduit Street, 1000 Friends released an initial analysis of county efforts late last year and has recently updated its work. The full county-by-county analysis is available here. 1000 Friends graded the counties according to their existing zoning and exemptions, whether the county has adopted a tier map that 1000 Friends feels is strong (even though adoption of a tier map is optional under SB 163 and those counties who do not can no longer approve major subdivisions on septic systems), and whether a county altered their definition of minor subdivision (even the counties were specifically allowed to do so under SB 163).
January 24, 2013
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
January 7, 2013
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.
January 3, 2013
On January 3, a panel of land use experts provided an overview and analysis of the growth tier adoption process under the Sustainable Growth and Agricultural Preservation Act of 2012 (SB 236 – the septic system legislation) and the identification of designated planning areas under PlanMaryland the at the 2013 MACo Winter Conference.
Maryland Secretary of Planning Richard Hall provided an overview of the growth tier adoption process. He indicated twelve counties and 49 municipalities have adopted tier maps by December 31. Sixteen counties have increased their minor subdivision definitions as allowed by the law.
With respect to PlanMaryland, the Secretary indicated that most of the planning area designations will occur within the next six months and the Maryland Department of Planning will be conducting an outreach to the counties.
Calvert County Planning and Zoning Director Charles Johnston offered a county perspective. He noted that there are many ancillary issues that must also be considered along with the adoption of the growth tiers. Calvert County’s current proposed tier map will result in an average of density 10.6 units per acre. He also stated that the County had not yet considered its PlanMaryland planning areas but expects to in the next several months.
Elm Street Development Regional Partner and Vice President Russell Dickens provided the perspective of homebuilders and developers and developers. He stated that the growth tiers seemed more like a land use control rather a pollution control. He also questioned whether the anticipated nitrogen reductions from the use of best available nitrogen removal technology (BAT) septic systems are worth the costs.
Cecil County Executive Tari Moore was the panel moderator.
December 5, 2012
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:
1000 Friends of Maryland says that more than a third of the state’s 23 counties have done little or nothing so far to comply with the Sustainable Growth and Agricultural Preservation Act of 2012, which aims to restrict new housing on septic systems in rural areas.
“What we have are eight counties that are in the red zone,” says Dru Schmidt-Perkins, the Friends executive director. “They are not doing what they need to do in order to preserve rural lands, and seven of those are high-growth counties, which is of concern.” …
Schmidt-Perkins, though, said that the lack of state enforcement in the law is “a big problem.” If counties don’t get in line with the law, she said, green groups may revive their call for holding sprawling localities “accountable” by cutting off state funding for roads, schools and other infrastructure and services that tend to degrade waterways and cost taxpayers more than when development is more concentrated.
The article also cites MACo Legal and Policy Counsel Les Knapp:
Leslie Knapp Jr., legal and policy counsel for the Maryland Association of Counties, said that counties generally are trying to follow the state law as they finalize their growth maps, though he acknowledged that local elected officials are “frustrated” by this and other mandates from Annapolis imposing costly environmental regulations and Chesapeake Bay restoration obligations on their communities.
Even if some counties do bend the growth law, he said, the end result will still be significant restrictions statewide on development using septic systems. And besides, he pointed out, the state is moving to require less polluting, more costly septic systems on all new construction wherever it is.
The second quoted statement of Mr. Knapp does not entirely reflect Mr. Knapp’s position, which is that while SB 236 does grant some flexibility to counties in drafting their Growth Tier maps, there are various checks that will prevent a county from going outside the bounds of the law. SB 236, along with other initiatives such as the Chesapeake Bay Total Maximum Daily Load and regulations that require all new septic systems to use best available nitrogen removal technology, will lead to a reduction development on septic systems.
The article also notes that the Maryland Department of Planning does not intend to take a public position on a county’s Growth Tier map until the final maps are submitted.
November 21, 2012
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. …
The majority of residents who testified were opposed to SB 236, arguing it does nothing to save the Chesapeake Bay while rushing the county to make a decision and devaluing farmland.
Marge Cissel, owner of the Kimberly Turf Farm in Woodbine along with her husband Lambert, called SB 236 “immoral” and “unconscionable.”
“I am angry with the state, not with you because you’ve been very good to farmers,” Cissel said to the County Council.
The article indicates the Council also heard testimony on several other high-profile issues, including the creation of Community Enhancement Floating Districts and anti-bullying legislation.
November 19, 2012
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.”