Zoning Board of Appeals Deliberates on Warman's Mill Appeal - October 1, 2012
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Zoning Board of Appeals Deliberates on Warman's Mill Appeal - October 1, 2012
This special meeting of the City of Frederick Zoning Board of Appeals, originally scheduled for September 11, 2012, continued deliberation on appeal case ZBA 12076 concerning the Warman's Mill Planned Neighborhood Development (PND). The board reviewed whether the Planning Commission erred in three actions taken on January 9, 2012: approving modified setbacks under two different code sections, and unconditionally approving an amendment to the PND master plan that increased density in a section by more than 10%.
Public Comments & Testimony
No new public comments or testimony were received, as the meeting was a continuation solely for board deliberation based on the existing record.
Discussion Items
Consensus on Setback Approvals: The board unanimously agreed that the Planning Commission correctly exercised its authority in approving the two setback modifications. The first modification was authorized under Section 1610-5 of the 1986 zoning ordinance, and the second under Section 910E of the current Land Management Code (LMC). Board members noted that the Planning Commission cited appropriate authority and conducted thorough discussions, including testimony from city staff and public hearings.
Disagreement on Master Plan Amendment: The central dispute concerned the Planning Commission’s unconditional approval of the master plan amendment, which involved transferring dwelling units that resulted in a greater than 10% increase in density within a section (the village center). Board members split on whether the Planning Commission had the authority to approve this change without following the full procedures for an original master plan application.
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Majority view (Members Hazlett, Colby, and a third member): They argued that LMC Section 310F explicitly states that any amendment to a master plan that exceeds the thresholds (overall density increase, land use change, or >10% increase in dwelling units in a section) must be processed in accordance with the procedures for approval of the original master plan. These procedures include a requirement under Section 1603 of the 1986 code that the application be signed by all owners of parcels within the planned neighborhood. The majority concluded that the Planning Commission erred by not requiring these signatures and by failing to adequately cite authority for the master plan amendment. They emphasized that the code is clear and that the Planning Commission cannot ignore or modify code provisions.
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Minority view (Members Dacy and Kennedy): They contended that the Planning Commission had implied authority under Section 910E of the LMC to revise master plans based on applicant requests. They argued that the signature requirement for all property owners is impractical and could not have been intended by the Board of Aldermen, especially in a large development like Warman's Mill with over 1,000 units sold. They noted that the Planning Commission had followed past precedent and relied on city legal staff advice that the commission had authority to approve the transfer. They asserted that the intent of the PND flexibility was to allow adjustments in response to market conditions.
Key Outcomes
- The board reached no final decision on the appeal at this meeting.
- It was agreed that the two setback modifications were properly approved (unanimous consensus).
- On the master plan amendment, the board was deadlocked with a majority of three members finding that the Planning Commission erred, and two members dissenting.
- A motion was made and seconded to continue the meeting to September 25, 2012, at 7:00 PM to allow time for drafting a written opinion and further deliberation. The motion passed unanimously.
- Board members noted that regardless of the outcome, the issue could be addressed by the Mayor and Board of Aldermen through a text amendment to the LMC if they disagreed with the board's interpretation.
Note: The transcript indicates the meeting date as September 11, 2012, but the official meeting date provided for this summary is October 1, 2012.
Meeting Transcript
Should we get going? Welcome everybody tonight to the uh September 11th, 2012 special meeting of the City of Frederick Zoning Board of Appeals. This meeting is in conjunction with case number ZBA 12076. It's the only item of business before us tonight. Appeal to after reading all this stuff, my eyes are starting to get a little shot. So appeal to case PC 11493 PNB. In accordance with section 315 D 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. 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 appointments are uh confirmed by the board of aldermen. Um we have five voting members 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 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. Patchant tonight, uh reminding me that if you uh all have uh any cell phones, which everybody does these days, you can set them to vibrate or mute. Uh leave them in the car. Or they'll leave your car. Uh that would be great. Umbs of the uh zoning board, we have before us uh continuation of case ZBA 12076, uh, 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 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 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 where 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 case before us. In the matter of the case before us, I believe that in the January 9th, 2012 meeting of the Planning Commission. The Planning Commission took three actions that fall under this appeal. They approved applicants' request to modify front and side setbacks as proposed, citing authority granted under section 1610-5 of the 1986 zoning ordinance. Approved, unanimously approved. Applicants request a modified front and 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 with a vote of 4 to 1, I believe, with uh Commissioner Bo Key in opposition. So that's what we have before us tonight, I believe. I'm not sure how members want to proceed according to our special rules. Uh we are 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 315B. So I don't know if anybody has a I'm not sure where we begin on this either. Well 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 100% 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 to request the applicant, the department may authorize amendments to the master plan adopted in connection with approval of the plan neighborhood option, provided the overall density of the planned neighborhood is not increased, providing that the land use of any section of the planned neighborhood is not changed, and provided that no one section is increased by a number in number of dwelling units by more than 10%. And that sent me to 310 F3, which states in discussion of amending the existing master plan, any amendment and 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, which describes the thresholds or one of them, and no section is increased in number of dwelling units by more than 10% by department approval, which directed me to 410A3, which states PND, a PND requires approval of a master plan as provided in 310 of this code, and went back to 310. B covers the initiation of the approval of a master plan, and B3 states as one of the requirements all honorable property comprising the master plan must sign the application.
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