Open Space Bill Proposes Sweeping Changes to Current Law
Councilmembers Almond and Marks have introduced legislation that is unprecedented in terms of the extent to which it will bring sweeping change to the requirements that developers must meet in providing open space in the county if enacted. Bill 73-16, entitled, "An Act concerning Open Space," would repeal the entirety of Section 32-6-108 of the County Code and enact new provisions that:
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Radically redefine the term "open space" and clarify that only outdoor uses count as such;
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Authorize the location of open space on or off a development site;
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Specify the calculation and use of a fee to be paid in lieu of providing open space on-site or off-site, if neither can be provided feasibly;
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Provide for a fee structure to be established and reviewed regularly;
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Require an annual report to be published on the County's website on the amount of open space to be provided, fees collected, projects funded with the fees and the use of the fees; and
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Require the Department of Planning and the Planning Board to revise the Baltimore County Open Space Manual.
Those who have followed our work know that we have been pressing the County to revise open space laws and policies for the last several years. And we've not been alone in this cause, with organizations as diverse as the Green Towson Alliance, the Greater Towson Council of Community Associations and the Md. Building Industry Association backing many of the changes we are seeking. An entire page of our website is devoted to the storied past of this effort. All along, we have advocated for changes that align with 5 principles:
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Replace an overly complex, zoning-based fee schedule with a simpler schedule related to the relative need for open space and the cost of providing it;
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Ensure that all types of residential development projects bear a responsibility for providing open space or paying a fee in lieu thereof;
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Establish a process for assessing, collecting and expending open space waiver fees that is transparent and predictable;
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Incentivize the payment of waiver fees over providing open space on site so as to encourage a network of open spaces with public benefits versus isolated and fragmented private green spaces; and
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Ensure a complete overhaul of the Local Open Space Manual to meet contemporary needs for open space in diverse, but increasingly dense, neighborhoods.
While the bill does not address the amount of fees to be collected (because that is done via resolution), it does specify a tiered framework for setting them that takes into account that different types of uses, e.g., projects outside the URDL (Tier 1) and town center core projects (Tier 3), generate vastly different demands for open space and should, therefore, be assessed at different rates. In so doing, the bill goes a long way toward addressing principles 1 and 2.
The bill largely re-enacts legislation introduced by Councilman Quirk that passed last year requiring the County to provide a comprehensive public report about open space waiver fees assessed, collected and spent, addressing principle 3. It adds a requirement that NeighborSpace also provide a report to the County auditor about its use of waiver fees, something we asked to be included in the legislation. Regardless of whether this legislation passes, we're going to go one step further and provide this same accounting on our website.
As shown in the map below, 70% of County residents lack access to open space within a quarter mile of home. Current law, which requires open space to be provided on a development site and allows the payment of a waiver fee if that isn't possible, does a lot for new communities but relatively little to address the dearth of open space in the older communities that dominate the area inside the URDL. The current bill keeps the preference for providing space over paying a fee, but does allow for that space to be provided off-site in addition to on-site. This is a step in the right direction, for sure, but we believe that each project should be evaluated on its merits and that all of the options should be equal: off-site, on-site and payment of the fee. This way, we will truly have the potential begin to chip away at the challenge by creating quality public open spaces that benefit multiple neighborhoods, old and new, simultaneously, in line with principle 4.
Another matter affecting the waiver fee has to do with the extent to which the value of private amenities provided on or off site can count toward a reduction in the fee. The current bill is very generous on this point, allowing the fee to be reduced by 70% of the verified cost of such amenities. This has the potential to whittle the fee down to the place where it is almost non-existent with no benefit to the public, a result that flies in the face of principle 4, and something we will be discussing with the Md. Building Industry Association and the bill sponsors.
The importance of the Local Open Space Manual is belied by its title, which sounds like a guide, something without the force and effect of law. In fact, given current law requiring the County to update the manual "periodically" and giving the County Council authority to approve any changes, the manual has the force and effect of a regulation, i.e., developers have to follow it. The current version, which dates to February 22, 2000 (and is available on our webpage referenced above), was written at a time when most new development was happening outside the URDL. It has little to say about how to provide quality open space in the denser, more urban parts of the County to which development and re-development are now relegated. The revision proposed in the legislation is not just necessary but long, long overdue, and would satisfy principle 5.
A work session on the bill is set for Tuesday, November 1 at 2 PM. Final Reading and Vote are slated to occur on Monday, November 7 at 6 PM in the Council Chambers.