Zoning Board of Appeals Meeting: Appeal of Worman's Mill Master Plan - August 28, 2012
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Zoning Board of Appeals Meeting: Appeal of Worman's Mill Master Plan - August 28, 2012
The Zoning Board of Appeals (ZBA) met on August 28, 2012 at 7:00 p.m. in City Hall to hear oral arguments in Case ZBA12-76, an appeal of the Planning Commission's January 9, 2012 approval of a revision to the Worman's Mill Planned Neighborhood Development (PND) master plan. The meeting focused exclusively on the appeal; no general public comments were given, and the board approved the previous meeting's minutes. The board did not issue a decision that night, instead scheduling a continuation for deliberation and written findings.
Consent Calendar
- Approval of June 26, 2012 Minutes: The board voted unanimously by voice vote (with a motion by Ms. Colby and a second by Mr. Dace) to approve the minutes of the June 26, 2012 meeting as written.
Public Comments & Testimony
- No general public comments were offered.
Discussion Items
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Appeal of Worman's Mill Master Plan Revision (ZBA12-76): The appellant, represented by Leslie Powell, argued that the Planning Commission's approval of a revised master plan for Worman's Mill was procedurally and legally flawed. Key arguments included:
- The ZBA’s special rules violate Maryland Article 66B, Section 6.07(H)(2) by shifting the burden of proof to the appellant and prohibiting new evidence, thus denying due process.
- The application for revision did not include signatures of all property owners within the PND (over 1,000 owners), as required by both the 1986 and 2005 Land Management Codes (LMC).
- The Planning Commission lacked authority to approve a density increase exceeding 10% in any single section (here, the village center saw a 40% increase in density) without a new application signed by all owners.
- The Planning Commission failed to adequately articulate the basis for its decision, particularly concerning the zero-foot setback and the change in land use designation for an assisted-living facility.
- No traffic impact analysis for the proposed 171-unit apartment building was presented.
- Appellants renewed objections to the board’s special rules, calling them an impermissible retroactive application that violates substantive and procedural due process.
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Respondents (Worman’s Mill Development Company, represented by Paul Rose and Rand Weinberg, and the Planning Commission, represented by Scott Waxter) countered:
- The standard of review is record review (not de novo), as established by LMC Section 315 and the Shakespeare case; the board must affirm unless the Planning Commission was arbitrary, capricious, discriminatory, or illegal.
- The application was properly filed by the developer under LMC 910E, which does not require signatures of all property owners for revisions. Only the owner of the affected parcels (the developer) needed to sign.
- The overall density of the PND was not increased; density was transferred from other undeveloped sections owned by the developer. The 10% threshold for departmental approval does not limit the Planning Commission’s authority to approve larger transfers.
- The Planning Commission thoroughly considered the proposal over multiple hearings (December 2011 and January 2012), workshops, and a field trip. The motion by Alderman Russell incorporated the required findings, including consistency with the Comprehensive Plan and design excellence.
- Appellants’ due process rights were satisfied by public hearings, written briefs, and oral argument; Maryland law does not require new evidence in appellate proceedings.
- The request for joinder of new appellants on the night of oral argument violated the board’s special rules (Section C1–D) and was objected to.
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Board Member Questions: Members probed the legal foundation for transferring density over 10%, the role of “implicit authority,” the relationship between LMC 910E and the 1986 code, and the adequacy of the Planning Commission’s articulation of findings. A recurring theme was whether requiring unanimous property owner signatures would render PND revisions impractical.
Key Outcomes
- No Decision Reached: The board voted to continue the case to a special meeting on September 11, 2012 at 7:00 p.m. (location to be determined, with broadcast capabilities). During this follow-up meeting, the board will deliberate, craft written findings of fact, and issue a final decision on whether to affirm, reverse, or modify the Planning Commission’s approval.
- Procedural Matters: The board acknowledged that four main issues must be resolved: (1) whether the Planning Commission had authority to approve the master plan revision, (2) whether the application required signatures of all property owners, (3) whether the Planning Commission adequately articulated the basis for its decision, and (4) whether the ZBA's special rules violate appellants' due process rights. The board will also consider arguments about the 10% density threshold and the commission’s findings on setbacks and land use changes.
- Vote to Continue: Motion by Mr. Dace, seconded by Mr. Patchin, to adjourn and reconvene on September 11, 2012. All members voted in favor.
Meeting Transcript
Good evening, everyone. Welcome to August twenty-eighth, twenty twelve meeting of the City Frederick Zoning Board of Appeals. We are appointed by the mayor, and those appointments are confirmed by the Board of Aldermen. No new evidence will be allowed. This is an on-the-record review. The appellant may save up to 10 minutes of that 45 minutes for rebuttal to any issues raised in any of the respondents' presentation. Then each respondent will then be given 45 minutes to answer any of the appellants' argument. Tonight we have two respondents. One the Planning Commission and one development incorporated. Members of the ZBA may ask questions of the presenters during their presentations. However, only parties who have previously submitted a written brief may participate in the oral arguments tonight. Once again, I'd like to stress we will not be hearing any new evidence in support of or against the case that's before you tonight. Let's see here. One, we have a little bit bigger crowd than we normally do this evening. That being said, if we could possibly remember to keep sort of the cheers and the and the applause or the comments from the audience down to uh zero or absolute minimum as somebody who has sat in the audience and made comments and uh applauded at times. Uh I know that you may feel moved to do so, uh, but let's try to be respective of uh the respondents since they are on the clock. Um if you have any uh cell phones, if you could silence those, that would be great. Um I'd also like to point out that um a little bit different than our normal uh case procedures here. Um we will be deliberating and um presenting a written opinion of findings and facts. Um and so it may be given the hour or given the weight of the testimony that we hear that we may schedule to come back and do that final deliberation and that final uh findings uh of fact to create that um that written document. Um all of our meetings are uh public, so that would be held similar to this, case where the public could attend those if they wanted to. Um but um typically when we hear a case, we uh usually make a decision uh after hearing all the testimony and weighing those facts. That may not be the case tonight, so I just want folks to be aware of that uh before we get started. Um of uh procedure, uh it takes four votes in the affirmative to pass a motion of the zoning board of appeal. So any motion that's made tonight will take four out of our uh five voting members to vote for a motion to carry as well. Um any questions about the procedures from anybody? No? We have uh a couple of uh housekeeping matters uh on our regular monthly agenda, and then we'll get started uh with the case tonight. Uh first order of business tonight is review and approval of the June 26, 2012 minutes. Members, I will entertain a motion concerning those minutes. You haven't had a chance to review them. No we can continue that to next month if the members haven't had time to look at that. Oh, it's only what's oh, never mind. Just haven't even looked at them, but it's nothing there, is it? No. That was the conditional use case. Of the nursing thing. Yes, I mean, okay, yeah. Um, I move to approve the um zoning board of appeals hearing minutes of June 26, 2012 as written. Motion from Ms. Colby to approve the minutes as written. Do we have a second? Second. Second by Mr. Dace. Do we have any discussion? This hearing none. Uh, we can just take a uh voice vote on this. All those in favor signify by saying aye. All right.
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