2018 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 2018 Regular Session.

Forest Conservation Act – Technical Study and Program Review: As introduced, HB 766 / SB 610 would:

  1. expand the “priority retention area” definition (those areas where trees cannot be cut down unless specific findings are made) to include: (i) contiguous forest that is at least 5 acres in a Priority Funding Area, 10 acres in a local watershed that is less than 40% forested, or 20 acres; (ii) areas either identified in Maryland’s Environmental Resources and Land Information Network (MERLIN) or iMap database as a targeted ecological area or forest interior-dwelling species habitat that meet specified conditions; and (iii) forests in a drinking water reservoir or wellhead protection area;
  2. specify that trees in a priority retention area may only be disturbed upon written justifications submitted by the project applicant and approved by the State or local authority that include: (i) an explanation of the reasons that the development cannot be altered to preserve the priority retention area; (ii) a description of the alternatives that were considered, including applications for local variances that would facilitate forest conservation but not affect public safety, and that no other alternatives exist; and (iii) a description of the forest conservation best practices or techniques that were considered and rejected and the reasons for any rejections;
  3. prohibit the State or a local authority from approving a written justification based: (i) solely on cost; (ii) on a preference to maintain a preferred site design; (iii) on a desire to obtain maximum zoning density or intensity; or (iv) on a desire to conduct mass grading or clearing of the development site;
  4. require that if trees in a priority retention area are cleared, the trees are subject to a 1 acre to 1 acre replanting ratio;
  5. move the review of the forest conservation plan to be concurrent with the review for the sketch or concept plans, site development plans, or preliminary review plans, subdivision plans, or the grading or sediment control permits, whichever may be submitted first;
  6. provide that a local authority may enter into a memorandum of understanding or similar agreement with the Maryland Forestry Foundation, district forestry boards, or other nonprofits to: (i) collaborate on replanting requirements; or (ii) provide grants for reforestation projects; and
  7. require the Department of Natural Resources (DNR) to publish a Forest Conservation Act Technical Manual and update it at least once every 10 years.

MACo Position: MACo supported the bill with amendments, noting support for the general ideas of providing greater local program flexibility, moving the forest conservation plan review earlier in the development process, and requiring DNR to periodically update its Technical Manual. However, MACo expressed concern over the bill priority retention area definition, written justifications, and mandatory 1:1 replanting ratio, noting that these provisions: (1) run counter to the core Smart Growth principle of concentrating growth; (2) would disrupt long-term local comprehensive planning and water and sewer planning; (3) would greatly prolong the approval process and create new avenues for litigation; and (4) potentially increase project costs. MACo also questioned the conflicting information provided by different datasets used by both the bill proponents and opponents and urged that there be a clear and uniform understanding of the data before making broad changes.

Push Icons-MORE WORKFINAL STATUS: The Senate passed an amended version of SB 610 that struck the bill’s original provisions and changed it into a “Task Force on the Forests Conservation Act Offset Policy.” MACo objected to the Task Force, noting it had an unbalanced membership, did not address MACo’s underlying data concerns, and appeared to have predetermined outcomes.

The House Environment and Transportation Committee struck the Task Force and amended both SB 610 and HB 766 into a “Technical Study and Programmatic Review” that would have had the Department of Legislative Services review: (1) forest and tree canopy coverage, health, and trends in the state; (2) the effectiveness of various aspects of the Forest Conservation Act; and (3) a review of the effectiveness and obstacles faced by local forest conservation programs.

The House passed both amended forms of HB 766 and SB 610 but the bills did not cross back over to the Senate before Sine Die and both bills ultimately failed.

MACo Testimony on HB 766

MACo Testimony on SB 610

Energy Generating Systems – Change or Mistake Rule: HB 1588 would prohibit a legislative body from granting a zoning amendment under the “change or mistake” rule if the primary reason for the property-owner’s challenge was due to the siting of an energy generating system.

MACo Position: MACo supported the bill as a way to protect a local jurisdiction’s land use designations and remove a concern that the siting of an energy generating facility could be used to challenge the zoning of that property or adjacent properties.

Push Icons-WONFINAL STATUS: The General Assembly passed HB 1588 with amendments clarifying that the bill’s provisions applied to the property where the energy generating system is located and land that is adjacent to or in close proximity to the property. MACo supported the amendments as clarifying.

MACo Testimony on HB 1588

Net Metering and Community Solar – County Projects: As introduced HB 934 / SB 557 would increase the maximum generating capacity of a net metering electrical generating project or a community solar project from 2 megawatts to 10 megawatts and remove any generating capacity limit if the project is located on a brownfield. The project must comply with local land use and planning laws. The bill sponsors offered amendments at each bill’s hearing to: (1) limit project size to 30 megawatts on brownfields; (2) limit the projects to county-owned property; (3) limit project ownership to a county or a third party under agreement with a county; and (4) ensure that—for community solar projects—all subscribers are located in the county undertaking the project.

MACo Position: MACo supported the bill, noting that: (1) net metering and community solar projects help create a more robust and decentralized energy grid; (2) the bill would provide greater flexibility to counties wanting undertake such projects; (3) siting community solar projects on county lands or brownfields reduces the pressure to convert prime agricultural land or open space into solar facilities; and (4) the bill does not alter the statewide maximum limit of 1,500 megawatts for net metering projects.

Push Icons-NOT IDEALFINAL STATUS: The House Economic Matters Committee gave HB 934 an unfavorable report. The Senate Finance Committee heard SB 557 but took no further action on the bill.

MACo Testimony on HB 934

MACo Testimony on SB 557

Renewable Energy Portfolio Standard – Local Energy Sources: SB 603 would require that in any year where the Renewable Energy Portfolio Standard (RPS) Tier 1 renewable source percentage exceeds 25%, at least 51% of the renewable energy credits (RECs) required must be from an energy source located in Maryland.

MACo Position: MACo opposed the bill, arguing that while the intent of the bill is good (highlighting the challenge of keeping prime farmland and open space from being taken over for energy generation), the bill does not address the forces that are driving renewable energy projects to the more rural areas of the state and simply requiring an REC mandate without other components to address those forces could actually exacerbate additional development in rural areas.

Push Icons-DEFEATEDFINAL STATUS: The Senate Finance Committee heard SB 603 but took no further action on the bill.

MACo Testimony on SB 603

 

Agritourism – Statewide Definition: HB 1120 would require a local jurisdiction to authorize “agritourism activities” on farms through a local ordinance, resolution, law, or rule. The bill’s definition of “agritourism activity” encompasses an extensive list of activities, including: farm tours; seasonal petting farms; farm museums; classes related to agricultural production or skills; bed and breakfast accommodations; festivals; weddings; and outdoor recreation activities such as swimming, paintball, and non-motorized off-road bicycling.

Push Icons-DEFEATEDMACo Position: MACo opposed the bill, stating that counties should have the authority to determine which agritourism activities are appropriate for their jurisdictions, rather than be subject to a “one-size-fits-all” mandate. MACo also questioned the inclusion of certain activities in the “agritourism activity” definition, particularly water skiing, tubing, paintballing, and mountain biking.

FINAL STATUS: HB 1120 was withdrawn by the bill sponsor.

MACo Testimony on HB 1120

Agritourism – Building Performance Standards: As introduced, HB 1141 would expand an exemption from the Maryland Building Performance Standards for the construction, alteration, or modification of an agricultural building for which agritourism is an intended subordinate use. Currently, the exemption applies to 11 counties: Calvert, Cecil, Charles, Dorchester, Frederick, Garrett, Harford, Prince George’s, St. Mary’s, Somerset, and Talbot. The bill would expand the exemption to cover all remaining counties.

Push Icons-IMPROVEDMACo Position: MACo supported the bill with an amendment to create an explicit “opt-in” provision by allowing a local legislative body of a county to decide whether or not the exemption should apply within its jurisdiction. This would allow counties that want the exemption to have it while those counties that do not want it are held harmless.

FINAL STATUS: The General Assembly passed HB 1141 with the MACo amendment.

MACo Testimony on HB 1141

Agricultural Preservation Programs – Recertification and Remittance of Unexpended Funds: HB 620 would provide that the Maryland Department of Planning (MDP) and the Maryland Agricultural Land Preservation Foundation (MALPF) may recertify a county agricultural preservation program for 5 years, instead of 3 years under current law, if they determine that the county program is consistently effective in the achievement of preservation goals. The bill also extends from 3 years to 6 years the amount of time that a county may spend agriculture transfer tax revenue before the county must remit the money to the Comptroller.

MACo Position: MACo supported the bill, noting that: (1) extending the recertification period from 3 years to 5 years for consistently effective programs lessens the administrative burden on county programs, MDP, and MALPF; and (2) extending the remittance time from 3 years to 6 years allows for the funding of more complex or costly preservation projects.

Push Icons-IMPROVEDFINAL STATUS: The House passed the bill but the Senate added amendments regarding local program recertification and review that MACo raised concern about. The bill went to conference committee and the General Assembly passed HB 620 with amendments acceptable to MACo.

The amendments: (1) require MDP and MALPF to review a county program recertification when the county revises the boundary of a priority preservation area (PPA), subtracts land from a PPA, or adopts a comprehensive rezoning policy that increase allowable nonagricultural land uses, density, or development within a PPA.

MACo Testimony on HB 620

Home Sprinkler and Fire Safety Assistance Fund – Pilot Program: HB 1389 / SB 1173 would create a Home Sprinkler and Fire Safety Assistance Fund within the Department of Housing and Community Development. The annual State budget must include an appropriation for the Fund of $300,000 for fiscal years 2020 through 2022. 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. The Fund and grant program sunset at the end of June 30, 2022.

Push Icons-NOT IDEALMACo Position: MACo supported the bill as a way to address the financial hardship facing moderate- to low-income homebuyers, particularly in rural areas, due to increased home costs caused by a 2012 requirement that all new homes have sprinkler systems.

FINAL STATUS: The House Environment and Transportation Committee gave HB 1389 an unfavorable report. SB 1173 was withdrawn by the bill sponsor.

MACo Testimony on HB 1389

MACo Testimony on SB 1173

Developer Rights and Responsibilities Agreements – Enhanced Public Benefits: As introduced, HB 1390 would alter the requirements, contents, and application of a developer rights and responsibilities agreement (DRRA). The bill would:

  1. require a DRRA to include: (i) applicable zoning standards for the covered property; and (ii) a description of the enhanced public benefit that supports the DRRA and the proposed development of the real property and shall be bonded at the time of final development approval;
  2. limit an existing exception where a local jurisdiction may require a person to comply with local laws, rules, regulations, and policies enacted after the DRRA if essential to ensure public health, safety, or welfare, to zoning;
  3. provide that a local jurisdiction may require compliance with local laws, rules, regulations, or policies adopted after the DRRA;
  4. when determining whether to allow an amendment to a DRRA, require a local planning commission to consider and make a recommendation regarding the effect of any change in local laws, rules, regulations, or policies, including adequate public facilities ordinances, school capacity, stormwater management requirements, and forest conservation requirements;
  5. limit the initial term to of a DRRA to 5 years or less; and
  6. limit the ability to extend the term of a DRRA through amendment to one additional term to 5 years or less.

MACo Position: MACo supported the bill with amendments to remove the bonding requirement and remove or adjust the bill’s 10-year maximum lifespan for a DRRA.

Push Icons-MORE WORKFINAL STATUS: The House passed the bill with amendments striking all of the bill’s provisions except the requirement that a DRRA include a description of the enhanced public benefit that supports the DRRA. The amended bill also provided a definition for and illustrative list of enhanced public benefits. However, the Senate Education, Health, and Environmental Affairs Committee heard HB 1390 but took no further action on the bill.

MACo Testimony on HB 1390

Local Zoning Violations – Appeal From District Court: HB 1458 would authorize an appeal by a county or a defendant from a final judgment of the District Court in a local zoning violation case. The bill addresses a problem between the interaction of § 11-202 of the Land Use Article, which authorizes a county to provide for and enforce a civil penalty for a zoning violation, and § 12-401 of the Courts and Judicial Proceedings Article, which outlines District Court appeal processes for municipal infractions.

Push Icons-NOT IDEALMACo Position: MACo supported the bill, arguing that it is the intention of both the General Assembly and local governments that zoning violations be treated as any other local civil violation, with either party having the right to appeal. Otherwise, zoning violations become an oddly unique class of cases where the District Court is the final arbiter.

FINAL STATUS: The House Judiciary Committee heard HB 1458 but took no further action on the bill.

MACo Testimony on HB 1458

Sustainable Communities – Designation: As introduced, HB 1651 would require a local comprehensive plan to include a housing element that addresses: (1) the impacts and risks for gentrification; and (2) the demand for affordable housing, including an inventory for affordable housing. The bill also adds gentrification and affordable housing issues to the list of criteria that the Smart Growth Subcabinet may consider when making a Sustainable Communities designation.

MACo Position: MACo supported the bill with an amendment to strike the mandatory comprehensive planning element portion of the bill, noting that: (1) an affordable housing survey was too specific and short-term to be included in a visionary document like the comprehensive plan; and (2) counties already address housing issues in a way that best meets their needs.

Push Icons-NOT IDEALFINAL STATUS: The House passed the bill with amendments striking the mandatory comprehensive planning element and modifying the bill’s Sustainable Communities criteria language. The Senate Education, Health, and Environmental Affairs Committee heard HB 1651 but took no further action on the bill.

MACo Testimony on HB 1651

Nontidal Flooding – Historic Ellicott Workgroup on Preservation and Flooding: As introduced, HB 1408 would authorize the legislative body of a local government to allow a deviation from historic preservation standards for a “qualified historic district” in order to prevent and reduce the risk of lethal and life-threatening nontidal flooding. The bill defines “qualified historic district” as a locally designated historic district in which: (1) nontidal flooding has resulted in a demonstrable threat to the life and safety of individuals or the death of an individual; and (2) four or more repetitive loss properties are located.

MACo Position: MACo supported the bill as it would allow for a narrow exception to historic preservation standards so that a county can address valid public safety and property concerns posed by repetitive nontidal flooding.

Push Icons-NOT IDEALFINAL STATUS: The House passed HB 1408 with amendments striking the original bill and replacing it with a “Historic Ellicott City Workgroup on Preservation and Flooding.” However, the bill did not pass the Senate before Sine Die.

MACo Testimony on HB 1408

Nontidal Flooding – Use of Stormwater Remediation Fees for Flood Control Devices: As introduced, HB 1420 would clarify that monies from a local watershed and restoration fund, established by a local jurisdiction subject to a Phase I Municipal Separate Storm Sewer System (MS4) permit, may be used for projects that manage extreme volumes of nontidal floodwater in areas where historical nontidal flooding problems exist.

MACo Position: MACo supported the bill, noting that it is likely clarifying in nature and would provide certainty that the fund may be used for constructing necessary flood mitigation and treatment projects.

Push Icons-NOT IDEALFINAL STATUS: The House passed HB 1420 with amendments clarifying that flood mitigation and treatment projects constructed using the fund cannot negatively impact water quality and that the bill was limited to “qualified historic districts.” However, the bill did not pass the Senate before Sine Die.

MACo Testimony on HB 1420

For more information on all of the Planning and Zoning legislation MACo tracked in the 2018 General Assembly, click here.

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