2017 End of Session Wrap-Up: Planning & Zoning

This post summarizes the status of various planning and zoning bills that MACo took a position on for the 2017 Regular Session.

Energy Facilities – Consistency With Local Comprehensive Plans: As introduced, HB 1350 / SB 851 would require the Public Service Commission (PSC), upon receipt of an application for a certificate of public convenience and necessity for a generating station or high voltage overhead transmission line, to send the application materials to each local government where the project will be located. Each local government must review the application materials and determine whether the application is consistent with its comprehensive plan per § 1-303 of the Land Use Article. If the local government determines that the application is not consistent, then the PSC may not hold a public hearing or move forward on the application.

As introduced SB 931 / HB 1592 would allow counties and municipalities with zoning authority to enact binding zoning for utility-scale energy generation facilities that need to obtain a certificate of public convenience and necessity from the PSC or have a generation capacity of at least 2 megawatts. Community or small-scale projects are unaffected.

In order for a local government’s zoning to be binding, the local government must engage in an “enhanced” zoning process for each energy generation technology it wishes to zone for – including meeting with appropriate energy developer representatives and incorporating factors identified by the PSC as important to that energy generation technology. For the zoning to be binding, a local government must generate viable project sites and cannot simply ban a particular technology.

The bill also provides a maximum 1-year moratorium while the zoning is being undertaken, and grandfathering for energy projects already in the “pipeline” and local zoning enacted prior to the start of 2017 as long as the zoning complies with the bill’s requirements. The bill allows the PSC to preempt local zoning that complies with the bill when a proposed generation facility is vital to grid integrity and there is no viable alternative site authorized under the zoning. Finally, the Power Plant Research Program must undertake a study to improve notice and communication for siting.

Push Icons-WONMACo Position: MACo supported HB 1350 / SB 851 and SB 931 / HB 1592, citing the disconnect between modern planning and land preservation laws and outdated energy siting laws that do not acknowledge the much larger land footprint needed for current energy technologies, such as solar. MACo noted that Maryland has seen a “land gold rush” as energy companies are optioning thousands of acres, regardless of local government plans and needs.

FINAL STATUS: MACo worked with affected stakeholders on extensive consensus amendments to both HB 1350 and SB 931. The General Assembly passed HB 1350 with amendments. As amended the bill requires the PSC to:

  1. as part of its review of an application for a certificate of public convenience and necessity (CPCN) for an energy generating station to give due consideration to: (i) the consistency of the application with the comprehensive plan and zoning of each county or municipal corporation in which any portion of the generation station is proposed to be located; and (ii) the efforts by affected parties to resolve any issues presented by such a county or municipal corporation; and
  2. provide notice of any CPCN application to the executive branch of any affected local government in addition to the local governing body, include a copy of the application to the affected local governments with the notice, and offer to provide a copy of the application to state legislators representing the affected local governments.

In a separate letter, MACo also reiterated 4 other commitments that were made outside of the bill language:

  1. The Power Plant Research Program will conduct an informal study on improving notice and communication between the State, local governments, and energy developers.
  2. MACo, utility scale solar developers, and other interested stakeholders will work together to develop proposed best practices for developers operating in Maryland.
  3. Senate Finance Chair Thomas “Mac” Middleton will hold interim discussions with interested stakeholders on setting protections regarding energy development on lands subject to a State land preservation or conservation easement or in a Rural Legacy Area.
  4. MACo will commit to not introduce legislation directly affecting the PSC’s CPCN process for the next several years unless there is a significant change in the energy development landscape or the provisions of SB 931 are not working as intended.

The Senate Finance Committee heard SB 851 but took no further action on the bill. SB 931 passed the Senate with amendments identical to HB 1350 but was not released by the House Rules and Executive Nominations Committee for a committee assignment. The House Rules and Executive Nominations Committee did not release HB 1592 for a committee assignment.

MACo Testimony on HB 1350

MACo Testimony on SB 851

MACo Testimony on SB 931

NOTE: There is no MACo written testimony on HB 1592

Commitment Letter for HB 1350 / SB 931

Energy Facilities – Right to Solar Farm: HB 863 would authorize the development of solar facilities on up to 3% of any property under the Maryland Agricultural Land Preservation Foundation (MALPF), the Maryland Environmental Trust (MET) and the Rural Legacy Board (RLB). The bill also sets an aggregate cap which prohibits further solar development once 25% of the total land in each program has solar facilities. The bill also removes certain requirements for solar that remain in place for other renewable energy sources, such as the requirement that a renewable energy project must not interfere significantly with agricultural uses of land subject to a MALPF easement.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that the bill would upend long-term planning decisions made at both the State and local level relating to sustaining agriculture and associated secondary industries, protecting natural and scenic lands, and preserving unique historic and cultural features. MACo noted that the current environmental and land use planning system can accommodate considered and well-placed solar development.

FINAL STATUS: HB 863 was withdrawn by the bill’s sponsor.

MACo Testimony on HB 863

BAT Septic System Requirements: As introduced, HB 281 / SB 266 would require the use of best available nitrogen removal technology (BAT) septic systems in the watersheds of the Chesapeake Bay, Atlantic Coastal Bay, and nitrogen-impaired bodies of water.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that: (1) the science behind the requirement was not established for areas outside of a critical area; and (2) given the limited amount of nitrogen that the BAT mandate would cover and the costs involved, the mandate was neither efficient nor cost-effective. MACo subsequently dropped its opposition to SB 266 as amended.

FINAL STATUS: The House Environment and Transportation Committee heard HB 281 but took no further action on the bill. The Senate passed SB 266 with amendments that: (1) deleted the requirement to install BAT septic systems outside of the Chesapeake and Atlantic Coastal Bays critical areas; (2) codified a funding priority system for the distribution of septic system account monies within the Bay Restoration Fund; and (3) required the Bay Cabinet to: (i) recommend alternative nitrogen reductions to make up for the nitrogen lost by not using BAT septics outside of the critical areas; and (ii) recommend a new prioritization of Bay Restoration Funds based on a determination of the most cost-effective methods for reducing nitrogen in the critical areas and other nitrogen-impaired waters. The House Environment and Transportation Committee heard SB 266 but took no further action on the bill.

MACo Testimony on HB 281

MACo Testimony on SB 266

Forest Conservation Act – Task Force on Forest Conservation Act Offset Policy: As introduced, HB 599 / SB 365 would have:

  1. increased the minimum reforestation rate under Maryland’s Forest Conservation Act (FCA) from ¼ acre for every acre removed to 1 acre for every acre removed;
  2. limited an existing exemption under the FCA for the clearing of public utility rights of way and land for electric generating stations to areas of 1 acre or less of forest; and
  3. authorized the Maryland Department of Natural Resources (DNR) or a local jurisdiction with a forest conservation program to increase the rates under the fee-in-lieu by 20% for each acre where money is contributed in lieu of meeting the program’s reforestation or afforestation requirements.

Push Icons-DEFEATEDMACo Position: MACo opposed the initial bill, citing: (1) the significant hurdles the bill’s 1:1 reforestation ratio would impose on development and redevelopment projects; (2) the increase in utility costs on local governments, businesses, and residents; and (3) the uncertainty and potentially significant cost increases applied to the fee-in-lieu. MACo also questioned the need for the bill based on recent statewide tree canopy cover measurements.

FINAL STATUS: The House Environment and Transportation Committee heard HB 599 but took no further action on the bill. The Senate passed SB 365 with amendments turning the bill into a Task Force on Forest Conservation Act Offset Policy. MACo also opposed the amended version of SB 365, citing the unbalanced membership of the Task Force, the Task Force’s apparently pre-determined outcomes, the limited data the Task Force could consider, and the fact that DNR is currently required to undertake an almost identical study. The House Environment and Transportation Committee heard SB 365 but took no further action on the bill.

MACo Testimony on HB 599

MACo Testimony on SB 365

Forest Conservation Act – Local Authority for More Stringent Provisions: HB 617 / SB 29 clarifies that local governments with planning and zoning may adopt forest conservation thresholds and reforestation requirements that are more stringent than those required under the FCA.

Push Icons-WONMACo Position: MACo supported the bill, advocating that despite the clear intent of the existing FCA language, both counties and municipalities have faced challenges to their authority to actually implement a local program with stricter requirements. MACo cited that a 2015 Maryland Attorney General Opinion and a 2016 letter of advice that both supported the ability of a local government to be more stringent than the base FCA requirements.

FINAL STATUS: The General Assembly passed HB 617 and SB 29 with amendments adding afforestation to the bill’s clarifying language.

MACo Testimony on HB 617

MACo Testimony on SB 29

Building Codes – Assistance for Sprinkler Systems & Other Code Requirements: There were two bills that sought to provide relief for single-family home buyers from the costs of installing sprinkler systems and similar building code mandates. HB 107 would allow the Maryland Department of Housing and Community Development (DHCD) to provide funding assistance through either its Community Development Administration or Down Payment and Settlement Expense Loan Program for a growth-related project not in a Priority Funding Area for the construction or purchase of a newly constructed single-family home or the purchase of a loan for a newly-constructed single-family home if DHCD determines that the cost of compliance with building and fire codes makes it difficult for a low- or moderate-income family to purchase a newly constructed single-family home.

HB 1623 and SB 1103 (identical bills but not listed as cross-filed) would create a Home Sprinkler and Fire Safety Assistance Fund within DHCD. The Fund consists of money appropriated in the State budget – but does not mandate funding. The Fund may award grants to applicants in the order in which they apply to offset costs of installing a sprinkler system. In order to qualify, a homebuyer must be in the process of purchasing a home that:

  1. is a single-family detached home;
  2. is less than 2,500 square feet;
  3. uses well water and is not in an area where public water is provided or where there is a plan to provide public water; and
  4. will be the homebuyer’s primary residence and owner-occupied.

Additionally, the homeowner must fall under the income limits established by the Maryland Mortgage Program.

Push Icons-MORE WORKMACo Position: MACo supported HB 107 with an amendment requiring DHCD , when first establishing a funding program in a county, to consult with a county and modify the program’s criteria to address any concerns of the county. MACo cited the challenges some jurisdictions are facing with housing costs in order to comply with the sprinkler and other building code mandates.

MACo supported HB 1623 and SB 1103, noting the dramatic reduction of building permits for moderate- and low-income housing in rural areas since the passage of the sprinkler system mandate in 2012 (HB 366/SB 602). For homes not on public water, sprinklers can impose significant additional costs for high pressure pumps and water storage tanks.

FINAL STATUS: The House Environment and Transportation Committee heard HB 107 but took no further action on the bill.

The House Rules and Executive Nominations did not release HB 1623 for a committee assignment. The Senate Education, Health, and Environmental Affairs Committee gave SB 1103 an unfavorable report.

MACo Testimony on HB 107

MACo Testimony on SB 1103

NOTE: There is no MACo written testimony on HB 1623

Backyard Gardens – Prohibitions on Restrictions: HB 434 / SB 62 would restrict a local government or homeowner association from prohibiting or limiting the installation or cultivation of a backyard garden on single-family home or townhouse property by an owner or tenant. “Backyard” is defined to mean the portion of a property extending from the rear of the dwelling unit to the end of the plot. The bill’s prohibition also applies to any contract, deed, covenant, rental agreement, or any other legal contract.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, stating that it needlessly infringed on local land use authority and used vague definitions and terms that would need significant clarification. MACo also question whether the bill’s abrogation of existing contractual restrictions on establishing backyard gardens was constitutional.

FINAL STATUS: The House Environment and Transportation Committee gave HB 434 an unfavorable report. The Senate Education, Health, and Environmental Affairs Committee gave SB 62 an unfavorable report.

MACo Testimony on HB 434

MACo Testimony on SB 62

Development Limitations on Land Adjacent to Certain Historic Properties: HB 583 / SB421 set a series of requirements on property located in a charter or code home rule county that seeks to redevelop or improve but is adjacent to certain “religious property” – property having been continuously operated by a religious institution since at least the 18th century. For such properties, an improvement to the property may only be authorized if:

  1. there is at least a 600-foot buffer between the adjacent property and the religious property;
  2. all capital projects approved by the county for the Consolidated Transportation Plan proximate to the adjacent property have been completed;
  3. if the adjacent property is within or adjacent to a municipality, the municipality and the State Highway Administration (if applicable) have approved the improvement;
  4. the adjacent property owner enters into a covenant with the owner of a religious property to allow any bells or chimes on the religious property to ring in perpetuity in the same manner as they have previously rung; and
  5. the adjacent property owner is financially responsible for any improvement that the religious property must make based on the improvements to the adjacent property.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill for unnecessarily infringing on local land use autonomy, creating an overbroad remedy that would apply to many properties throughout the state, and likely making it impossible for adjacent property in urban areas from redeveloping or improving due to the impossibility of complying with the 600-foot buffer requirement.

FINAL STATUS: The House Environment and Transportation Committee canceled the hearing for HB 583 and took no further action. The Senate Education, Health, and Environmental Affairs Committee heard SB 421 but took no further action on the bill.

MACo Testimony on SB 421

NOTE: There is no MACo written testimony for HB 583.

Roadside Tree Preservation and Maintenance: HB 1118 requires DNR to adopt regulations governing: (1) the planting, maintenance, and protection of any roadside tree; and (2) required notice to the appropriate State or local government agency about the need, if necessary, to remediate a hazard caused by the removal of a roadside tree. DNR may grant a permit for the maintenance or removal of a roadside tree in extremely limited cases. The tree must be: (1) a hazard or danger to property, public safety, or health; or (2) dead, dying, or deteriorating. DNR may not grant a roadside tree permit to improve general aesthetics of the right-of-way or an adjacent property or for the convenience of an adjacent property owner or resident.

An applicant for a permit for a program of general tree care must also demonstrate to the satisfaction of DNR that the program includes reasonable standards and procedures to protect and preserve roadside trees. Finally, a person who removes a roadside tree must replace the tree with a species and in a location and timeframe approved by the permit.

Push Icons-IMPROVEDMACo Position: MACo opposed the bill, noting that DNR already has extensive and longstanding regulations in place to govern tree care. The bill would adversely affect local government tree programs and may increase costs for tree replacements. After discussion with the bill’s sponsor, MACo offered several amendments and subsequently withdrew its opposition when the House adopted the amendments.

FINAL STATUS: The House passed the bill with the MACo amendments, which clarified that DNR may issue a permit to maintain or remove roadside trees: (1) to enable necessary improvements, repairs, or expansion of conduits, rights-of-way, roadways, or other infrastructure; (2) to enable development that meets local zoning and land use requirements; or (3) in the discretion of DNR, consistent with its roadside tree program. The Senate Education, Health, and Environmental Affairs Committee heard the HB 1118 but took no further action on the bill.

MACo Testimony on HB 1118

Development Tiers – Residential Major Subdivisions in Tier III and Tier IV Areas: HB 1355 would allow local jurisdiction may authorize a residential major subdivision served by septic systems, community systems, or shared systems in a Tier III area if: (1) the development rights for the property existed on December 1, 2012; (2) at least 10% of the remaining portion of the jurisdiction’s Tier III area is protected in specified ways; and (3) at least 25% of the remaining portion of the jurisdiction’s total land area is protected in specified ways. The same provisions apply for a Tier IV area but the protection thresholds are 20% within Tier IV and 30% for the remaining land outside the Tier.

Push Icons-NOT IDEALMACo Position: MACo supported the bill with an amendment to have the bill’s tier provisions only apply in a county where the local governing body has formally adopted the provisions of § 9-206(f)(2) and (3) into a local ordinance. This allows counties the option of whether to utilize the bill’s provisions rather than mandate that all counties be subject to the provisions. MACo also noted that the bill would provide an alternative under the Tier system to address issues of lost development rights in rural areas while not repealing the Tiers.

FINAL STATUS: The House Environment and Transportation Committee gave an unfavorable report to HB 1355.

MACo Testimony on HB 1355

Temporary Family Health Care Structures – Local Permits: SB 532 would have required a local legislative body to acknowledge a temporary family health care structure as a permitted accessory use in areas with single-family detached dwellings if the structure is used by a family member for the care of a related mentally or physically impaired individual. The legislative body may not require a caregiver to obtain a special use permit for the structure or impose any zoning law on the structure (subject to certain exceptions).

The bill also defines the size, design, and requirements the structure must meet and limits a local government to charging a $100 application fee and a $50 annual renewal fee. Finally, the bill exempts the services provided by the caregiver from being included as an “assisted living program” under the Health – General Article.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, arguing that while well-intentioned the bill would impose a “one size fits all” solution in all communities, regardless of public safety or hygiene concerns or neighborhood characteristics.

FINAL STATUS: The Senate Finance Committee heard SB 532 but took no further action on the bill.

MACo Testimony on SB 532

Click here for a round-up of the wrap-ups for all policy areas