Council OKs development rule changes

Conditional uses' first hurdle would be public meeting

Constitutional qualms

Provision requiring year wait to change plans sparks worries

March 05, 2002|By Larry Carson | Larry Carson,SUN STAFF

A bill that would give Howard County residents more advance notice about proposals for things like brightly lighted gas station-convenience stores or oversized day care centers was narrowly approved last night by the County Council.

The measure passed by a 3-2 vote amid concerns that one provision might be unconstitutional.

The bill would require community meetings before conditional-use requests - formerly known as special exceptions - are submitted. That matches a law that took effect Jan. 8 covering proposed developments that require subdivision.

But two council members argued last night that a provision requiring a 12-month wait before plans approved under conditional uses could be changed might be illegal based on an opinion from the county Office of Law, a view with which Joseph W. Rutter Jr., the county planning director, seemed to agree.

Rutter had argued at last month's public hearing that churches often submit grand building plans, for example, which must later be modified if enough money cannot be raised. Under the federal Religious Freedom Act, a county-imposed 12-month delay "is a dead loser" legally, he said, because a court might construe the delay as interfering with religion.

The same constitutional problem could occur in freedom-of-speech cases, he said, involving proposed bookstores, for example. "I'm really concerned about the 12 months," he said, adding that County Executive James N. Robey would have to consider the issue before deciding whether to sign the bill into law.

"I am accepting the advice of the Office of Law," said Councilwoman Mary C. Lorsung, a west Columbia Democrat, who noted she was "very reluctantly" voting against the bill. Chairman C. Vernon Gray, an east Columbia Democrat, agreed, saying that the 12-month wait is "rather onerous."

But the other three members defended the waiting period, arguing that it would help avoid situations in which a developer may submit part of a plan that, once granted, is expanded or changed.

"I come down on the side believing that we need this additional protection," said Guy J. Guzzone, a North Laurel-Savage Democrat who voted for the bill.

Western County Republican Allan H. Kittleman, a lawyer, said he took the objections very seriously but after studying the issue found no specific court decisions on the point.

"It provides more notice and availability for people to know what's going on," Kittleman said about the bill as a whole.

Conditional-use cases often produce heated community reactions because they involve unusual uses of land, but residents often complain that they hear about a project at the last minute and then are at a severe disadvantage at Board of Appeals hearings.

A companion resolution also approved last night creates procedures for a new hearing examiner who will initially hear all cases. Only those decisions appealed will go before the board.

The bill approved last night addresses complaints by requiring an informal meeting with neighbors - after at least two weeks notice - before proposal are submitted to the county.

Council members also approved an amendment removing exemptions to the community meeting part of the law for home businesses and farm-tenant homes. Gray said that although he doesn't feel every home business requires a hearing, it was too difficult to legally separate those that do from those that do not.

Former County Executive Edward Cochran, who headed a citizens committee whose recommendations formed the basis for reforming development and zoning procedures, also questioned whether those two uses should be exempted at a council public hearing Feb. 19.

Rutter's suggestion last month that the bill be delayed while the issues were ironed out was strongly opposed by Councilman Christoper J. Merdon, an Ellicott City Republican.

"This has been a long time coming. For me, this is it. If it doesn't pass, it doesn't pass. I want it to end," he said of the long county examination of zoning and land-use procedures. The one-year delay rule is to prevent some developers from revealing only part of a plan, then seeking changes later. "Tell us everything up front, what you're going to do," Merdon said.

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