Zoning Board of Appeals Deliberation on Warman's Mill PND Appeal - September 27, 2012
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Zoning Board of Appeals Deliberation on Warman's Mill PND Appeal - September 27, 2012
The Zoning Board of Appeals (ZBA) convened a special continuation meeting on September 27, 2012, at 3:45 PM UTC, to deliberate on case ZBA 12076, an appeal of the Planning Commission's decision (PC 11493 PND) regarding amendments to the Warman's Mill Planned Neighborhood Development (PND) master plan. The board reviewed the Planning Commission's three actions from January 9, 2012, under the criteria of Section 315D of the Land Management Code (LMC): whether the commission applied correct legal principles, whether its decisions were supported by substantial evidence, and whether it properly interpreted the code. No public testimony was taken; the board relied on the written record, briefs, and testimony from the August 28, 2012 hearing.
Consent Calendar
- No consent items were considered.
Public Comments & Testimony
- No public comments were received at this deliberation.
Discussion Items
Setback Modifications (Actions 1 and 2)
The board reviewed the Planning Commission's unanimous approvals to modify front and side setbacks, first under the 1986 zoning ordinance (Section 1610.5) and second under the current LMC (Section 910E/410E). The board found that the Planning Commission correctly cited authority, conducted thorough discussion, and followed proper procedures. All board members agreed that the Planning Commission did not err in either of these two actions.
Master Plan Amendment (Action 3)
The board extensively debated the Planning Commission's 4-1 approval to amend the Warman's Mill master plan, which included density transfers that increased dwelling units in some sections by more than 10% and altered land uses. The central legal issue was whether the amendment exceeded thresholds in LMC Section 310F, thereby requiring it to be processed as a new master plan application (with signatures from all property owners in the PND), or whether the Planning Commission had authority under Section 910E to approve the revision without such requirements.
Positions of Board Members:
- Members Hazel and Kennedy argued that Section 310F is clear: amendments exceeding the 10% density threshold must follow procedures for an original master plan application, which under the 1986 code (Section 1603) requires signatures of all owners of parcels in the PND. They stated that the Planning Commission did not cite specific authority for the amendment and omitted required steps (e.g., obtaining property owner signatures).
- Members Colby and Dacey contended that the Planning Commission acted under the broad revisionary authority of Section 910, which allows revisions to any plan component rationally related to the applicant's request. They argued that the signature requirement was impractical after many homes had been sold and that the city council never intended it to apply to amendments. They pointed to past practice and the city attorney's opinion that the commission had implied authority.
- The board chair noted that the Shakespeare case precedent requires the board to adhere to the code's plain language and not legislate. The chair suggested that any concerns about the code's fairness should be addressed by the mayor and Board of Aldermen through a text amendment.
The board was unable to reach consensus on this issue after extensive discussion.
Key Outcomes
- Consensus on Setback Modifications: The board unanimously determined that the Planning Commission did not err in approving the two setback modification requests (Actions 1 and 2).
- No Decision on Master Plan Amendment: The board remained divided on Action 3. A formal vote was not taken.
- Continuation: The board voted unanimously to continue the deliberation to a future meeting to allow members to further review the LMC and code sections, and to attempt to resolve the impasse.
- Recommendation to Mayor and Aldermen: Several members suggested that the mayor and Board of Aldermen may wish to consider a text amendment to clarify the applicable procedures for master plan amendments that exceed density thresholds.
Note: The meeting commenced at 3:45 PM UTC and adjourned after approximately four hours of deliberation.
Meeting Transcript
The September 11th, number 12, special meetings of the City of Frederick Zoning Board of Appeals. This meeting is in conjunction with case number ZBA 12076. Appeal to reading all this stuff, my eyes are starting to get a little shot. So appeal to case PC 11493 PND. In accordance with section 315D of the land management code of the City of Frederick. As this is a continuation of a appeal under the special rules for everyone's benefit, of course, we will not be taking any public comment or any additional testimony or any additional argument tonight. We zoning board members will deliberate given the evidence that we have before us, including the written briefs, records that were taken in the Planning Commission case, and also the testimony that we heard two weeks ago on August 28th, 2012. If I have the date correct. So a little bit of a departure from our normal procedures. That being said, just a couple of things in case anybody who was here tonight missed the meeting a couple weeks ago. We uh members of the zoning board of appeals, we are all volunteers. We are appointed by the mayor, the deployments are uh confirmed by the board of aldermen. Um we have five voting numbers and one alternate tonight. Mr. Kennedy is the alternate and all voting members are present. Uh by our rules of procedure, any motion requires four out of five votes in the affirmative to pass. So uh a simple majority of three out of five does not pass a motion. Uh anybody who is agreed by a decision of the zoning board of appeals uh has the right to uh appeal that decision to the circuit court of Maryland. So based on some advice from uh Mr. Patchon tonight, uh reminding me that if you uh all have uh any cell phones, which everybody does these days, you could set them to vibrate or mute or leave me in the car. Or uh that would be great. Uh right. Members of the uh zoning board, we have before us uh continuation of case ZBA 12076, which is an appeal to planning commission decision 11493D in accordance with section 315 D of Land Management Code, um just to frame this uh a little bit, um in uh considering uh this case, the ZBA will determine whether the action of the planning commission was arbitrary, capricious, discriminatory, or illegal, or whether they have properly applied governing law to the facts. Um further requires the ZBA to consider four factors as we consider this case, whether the planning commission recognized and applied correct principles of law governing the case, including whether the applicable code was properly interpreted, uh and two, if the decision was not in error, whether the decision was supported by substantial competent evidence, uh for example, such as relative relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Uh the ZBA will resolve any conflicting evidence and we're inconsistencies, uh inconsistent inferences can be drawn from the same evidence, draw the inference that it believes is correct based on the evidence presented in the record. Number three, how the planning commission applied the laws to the facts, and number four uh whether the zoning restriction is constitutional or validly applied. Um the case before us. I believe that in the January 9th, 2012 meeting of the planning commission. Uh the planning commission took three actions that fall under this appeal. Uh they approved uh applicants' request to modify front and side set setbacks as proposed, citing authority granted under section 1610 5 of the 1986 zoning ordinance approved, uh unanimously approved. Uh applicants request to modify front side setbacks as proposed, citing authority granted under section 910E in accordance with section 410E of the land management code and unconditionally approved the applicants' request to amend the Warman's Mill P and D master plan as proposed and that passed with a motion over the vote of 4 to 1, uh I believe with uh Commissioner Bo Key in opposition. Uh so that's what we have before us tonight, I believe. And I'm not sure how members want to proceed according to our special rules. Uh we are um now to uh come to a decision and draft a written opinion of what we feel decision is concerning those three actions giving that criteria listed in 315D. So I don't know if anybody has a I'm not sure where we begin on this either. Um I'll uh I'll share. Um I I did a lot of research, I think all of us have done a lot of research. Um I tried very hard to research carefully a couple of the issues. Um I'm fairly certain where I landed, but I'm not a hundred percent certain, and I think I'm gonna go through this so everybody has something to talk about. At least that's my hope. Um my reading of the land management code in the 1986 zoning ordinance yields the following. 16.072 in the 1986 zoning ordinance states. Following approval by the commissioner at the request of the applicant, the department may authorize amendments to the master plan adopted in connection with approval of the planned neighborhood option, provided the overall density of the planned neighborhood is not increased, provided that the land use of any section of the planned neighborhood is not changed, and provided that no one section is increased by number in number of dwelling units by more than 10 percent. And that sent me to 310 F3, which states uh in discussion of amending an existing master plan, any amendment in the master plan that exceeds the thresholds prescribed in this section shall be processed in accordance with the procedures for approval of the original master plan, which sent me to 310 F1C uh, which describes the thresholds or one of them, and no section is increased in number of dwelling units by more than 10 percent by department approval, which directed me to 410A3, which states PND, a PND requires approval of a master plan provide as provided in 310 of this code. I went back to 310 B covers the initiation of the approval of a master plan, and B3 states as one of the requirements all owner of the property comprising the master plan must sign the application. As I read the LMC and the code, I find them to be clear and unambiguous. Increase in density within the village center is clearly over 10 percent and requires that the entire process begin again. The planning commission, in my opinion, chose to go back and implement some of the required steps beginning with 310 B4, and ignored 310 B1, 2 and 3. To have hearings is required, but signatures are also required. There is no doubt about what the LMC states, nor is there any question about the role of the Planning Commission.
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