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Democracy In Action!

February 21, 2008

by Jack Lynch

In baseball, which used to be a national pastime, you try to steal a base by stressing out the pitcher and fooling the infielders, then run like the devil once the pitch is swung on – a similar process has attended Delegate Claggett’s proposed emergency zoning text amendment legislation for Frederick County. 

Frederick County’s Delegation Chairman, Rick Weldon, says that Claggett has every right to drop a bill demanding the county change its process, all without a public hearing - of course, he does, just as a mentally deranged man has the right to go around calling himself the Governor, when obviously, to any sane person, he is not.

They defend this effort with the claim that it restores a process that allows any citizen to have an opportunity to propose a zoning text amendment change, which actually rarely, if ever, happens, so they then extend that right to contract purchasers.  Which means, in layman’s terms, that I offer to buy your land, and pay you an annual stipend for first right of refusal to buy it, at a negotiated price based on its potential value after being rezoned for development.  I then claim ownership privileges and property rights to the future amended use of that property, all before I actually own it. 

If I succeed in my county planning case to rezone and develop it, then I pay you off and buy it, and then finally actually own it, a now developable parcel, all at a tidy profit.  You go along and support the change, because you want to sell, and by having its development potential enhanced, you’ll get more money for it.

The bill is designed to allow developers to control the county planning process.

I sometimes have a short memory given my many work and family obligations, so let’s do a bit of research on how this process was used in the recent past.  We only want to provide a truthful analysis of the proposal, and more than simple symbolism and vague rhetorical references.

Here are the major public proposed text amendments in Frederick County over the past couple years:

On December 9, 2004, the Land Use Council of the Frederick County Builders Association submitted a proposed text amendment to the county's Adequate Public Facilities Ordinance (APFO). The amendment would add a new section establishing a "School Mitigation Impact Fee Premium" (in essence, a doubling of the current impact fee) to allow an additional 750 homes to be built every year that would not be subject to the current school adequacy standards.  (#AT-05-01)  This was an attempt to ‘buy-out’ of the APFO testing, in order to build, while putting schools into worsening conditions of overcrowding and inadequacy.

Proposal for an ordinance to amend and revise certain provision of the APFO to allow for recuperation by a developer for developer funded road improvements. The proposed amendment was intended to provide a mechanism for a developer to be reimbursed for their proportionate share of the costs of developer-funded road improvements from the owners/developers of subsequent development or existing developments being expanded or intensified. (AT-05-04)

Clagett Enterprises, Inc. - amendment to the Zoning Ordinance to create a Mixed-Use Industrial Development (MXID) Floating Zone District. The amendment would allow for a compatible mixture of industrial, employment, commercial, residential, recreational, civic and/or cultural uses to be planned and developed as a unit.  (ZT-05-07)

An amendment proposed developer funding of CIP related Improvements, and the ability to utilize that capacity to achieve adequacy and clarification of the Available Capacity of a School under Renovation. (ZT-05-05)

Weinburg & Miller, LLC. & Miles and Stockbridge, P. C. Requesting an amendment to the Adequate Public Facilities Ordinance to allow for Cluster Development’s to be exempt from the school adequacy requirements.  (AT-05-05)

The board approved a text amendment to the county's adequate public facilities ordinance, altering the school test for Eaglehead on the Lakes, a subdivision near New Market being developed by Land Stewards LLC, based in McLean, Va. 

The APFO had required that schools be "adequate" for all students. An applicant could not pass the APFO if school capacity is greater than 100%. Offering to provide one-time school construction costs equal to their projected student generation means schools that are at 125% of capacity, will stay at 125% capacity - overcrowded schools would remain overcrowded.

Weinburg & Miller, LLC. & Miles and Stockbridge, P. C. Requesting an amendment to the Adequate Public Facilities Ordinance to allow for Cluster Development’s to be exempt from the school adequacy requirements.  (AT–05-05)

Tyler Companies, Inc.– Requesting an amendment to the Zoning Ordinance to allow for a Transit Oriented Development District (TOD) floating zone to be established for the purpose of providing for the development and/or redevelopment of land located within seventy five feet of a MARC Train Station.  (ZT-05-09) 

During this period, two amendments to temporarily limit proposals for text amendments of the zoning codes or APFO were rejected:

BoCC initiated a request to amend the Frederick County Zoning Ordinance in order to defer accepting applications for Zoning Text Amendments and Piecemeal Rezoning Requests for a period of one-year.  (ZT 05-02)

BoCC initiated request to amend the Frederick County Adequate Public Facilities Ordinance (APFO) in order to defer accepting applications for amendments to the APFO for a period of one-year. (AT-05-02)

This may not even be a comprehensive listing of all the developer proposed text amendments of the past several years time – but it clearly shows that the amount of staff time, costs, and public concerns generated had a great effect on the agenda of the county’s BOCC over these dates. 

None of the proposals was generated from a single citizen, landowner, or a citizen’s association; they were all backed by corporations, trade associations and land use attorneys.  Many consumed local official’s efforts with media campaigns to generate awareness and refute bad proposals.

A secondary problem with the amendments ensued from when they required substantive changes to fit county regulations or board interest, then they required rewrite and returning through the process again, many more months of activity before ultimate denial.

The simple relevant fact was that for a mere two thousand dollar fee, times seven, much of the county’s agenda was comprised of special interest legislation consuming the public process, all to the disadvantage of citizens who would have benefited from the board’s consensus on agenda items that might have contributed to the health, safety and public welfare of our community.

If Delegate Claggett, and our Delegation are able to put this legislation through, it will return us to the bad old days when the development growth machine managed the BOCC agenda and attentions.  It is the anathema to good public policy and good government.  Hopefully the citizens who elected the current Commissioners are paying heed to this attack upon their interests and expressed votes.

As a citizen, I am better off being able to propose a text amendment directly to the BOCC and ask their support, it doesn’t cost me anything, and if I get a go ahead through the public process, I stand a good chance of succeeding with my issue.

Just when you start to believe that the bad has been overcome by the good, democracy in action steps in and crushes your hope and prayers.  It appears that a coordinated campaign has already begun against the good growth proponents, recent comments on this matter keep referring to the need to research the issue, well, here’s my research – as for the citizens that Delegate Claggett claims have contacted him, he only said that he did not need to reveal those who approached him, it makes you wonder who they really would turn out to be, based on who would benefit from this proposal, it seems clear to me.








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