Fight over `infill' open space could change zoning rules

Agency might get power to set number of homes in development

July 26, 2006|By JORGE VALENCIA | JORGE VALENCIA,SUN REPORTER

James Bieda had just moved into his Ellicott City home in October 2002 and was painting the walls with the help of neighbors when he got the notice in the mail.

A local land developer had bought the house next door on 9010 Manordale Lane and the 3.04-acre lot that came with it. The developer's intention was to build four or five more houses on the property, a prospect that didn't please his St. John's Manor neighbors.

"This development affects us," Bieda said recently, looking at the adjacent wooded property from his backyard. "We've invested our time and savings into the neighborhood as it is ... not to maximize the profit of a developer."

Bieda and about a half-dozen neighbors, who have spent more than $15,000 in legal fees, are fine with the developer constructing three homes on the property. They are battling to prevent more.

"We all love our neighborhood," said Barbara Goss, an accountant who lives in the community with manicured lawns and generous space between homes. "It's very beautiful. We're all interested in preserving the appearance and the trees."

The proposed "infill" -- a slicing up and development of parcels in existing neighborhoods -- is not uncommon in Howard County, where such construction is changing the personality of some established communities.

What is different in Bieda's case is the fierce opposition he and his neighbors have posed since the developer announced its plans. And their efforts may have implications beyond their particular complaint.

Prompted by the Manordale Lane case, the County Board of Appeals is set to consider today changes that could give the Department of Planning and Zoning the power to require more open space and, therefore, fewer houses on infill developments.

"This is groundbreaking," said Cindy Hamilton, chief of the planning department's Division of Land Development. "If that's the case [and the planning department is given more power], I'd like to see a regulatory change so there is no ambiguity."

In addition to Harmony Builders Inc., the owner of the Manordale Lane lot, such a change could affect about 140 current applications for infill developments.

"That's not really a lot of lots," said Marsha S. McLaughlin, director of the planning department.

But she added that infill developments "make a lot of difference in individual neighborhoods. We're seeing people taking an acre lot and cutting it in half -- that pattern is upsetting a lot of folks."

Such projects are encouraged by Smart Growth, the state's policy to slow the loss of forest and steer new construction toward built-up areas where infrastructure exists. About 60 percent of Howard County is planned to remain rural, so most development occurs within the remaining 40 percent of land.

The conflict on Manordale Lane has centered on how the developer can meet the lot's forest conservation requirement. Under a calculation using an equation in the regulations, the developer would have to keep 0.93 acres of forest on the lot, or could meet the obligation through other options such as planting trees elsewhere or paying the county a fee.

If the developer were allowed to use one of the alternate options, four or five new homes could be built. But if the 0.93 acres of forest must be kept on the lot, only three houses would be possible.

Keeping the number of houses to three is why Barbara Flinn, a neighbor, invested $15,000 in 2003 to buy a tenth of an acre next to the Harmony Builders' lot. She had hoped that buying the land would allow her to negotiate with the builder. However, other than a bench on her new property, Flinn has little to show for her investment.

"It was a calculated risk," Flinn said. "I decided I was comfortable never getting anything out of it.

Neighbors contend the planning department can require more than what regulations say is the minimum open space on the lot. The department, however, argues it does not have that power.

Christopher Brown, owner of the Ellicott City-based Harmony Builders, contends that the Department of Planning and Zoning cannot require more open space than specified by zoning rules. Over the years, the department has approved plans for the lot, but neighbors have appealed.

"We had the property approved by Howard County without variances and questions," Brown said.

Giving the department the power to require more than the minimum amount of required open space would raise a problem in assuring that the rules are predictable, said Katherine L. Taylor, an independent attorney whose practice includes real estate, and who once worked in the county's Office of Law.

In this case, it would mean reversing what Brown thought he could do with the lot when he purchased it in 2002.

"If [the planning department] doesn't like the developer, or doesn't like the project, or doesn't like the land owners near by," Taylor said, "they could impose restrictions or not impose restrictions in an arbitrary fashion."

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