Passage of Bill 37-19: What the Bill Does and Doesn’t Do

Bill 37-19 passed unanimously on September 3.  We want to again thank the numerous groups and individuals who supported it by testifying, communicating with elected officials, and/or making a donation to support our advocacy efforts. Your efforts were much appreciated and heartening.  NeighborSpace board members dug deep into their own pockets and so did you to ensure that 100% of our advocacy effort was privately funded. THANK YOU! Here we want to reiterate what this bill achieves, along with certain challenges yet to be addressed. 

1)What the Bill Does

A)Eliminates a Long-standing Loophole Related to Zoning Amenity Open Space (aka “Parking Islands”)

Bill 37-19 eliminated one long-standing loophole, which has been in our law since at least 2010, that allowed parking islands, otherwise known as “zoning amenity open space” to reduce the amount of public open space that developers of major subdivisions are required to provide.  We documented that in one proposed project, this loophole reduced the amount of public open space to be provided by 50% and that across many projects represented at least $1 million in lost revenue to the County since 2016. Given the length of time that this has been on the books, however, the real cost is obviously much, much greater. I was only able to trace the provision’s legislative history back to 2010 because that’s as far back as County records go online.

B)Eliminates a More Recent Loophole Related to Private, On-site Amenities (aka “rooftop pools and pickle ball courts”)

The bill also eliminated the 60% credit for private on-site amenities, things like private rooftop pools and pickle ball courts. The rationale for this revision is simple: Baltimore County is unique among our metro suburbs because of how rapidly it was developed after World War II in response to a national, crippling housing crisis and other factors that spurred suburban development.  (We recorded a podcast episode of this history recently. There are 28 other jurisdictions around the country that share our history. Click here for a map). Little thought was given to the protection of open space until recently, with the result that 65 percent of residences inside the URDL lack access to adequate open space, measured at the County standard of 1,000 square feet per dwelling unit, within a five-minute walk.  The occupants of these homes, many of which were constructed before 1970, should never be asked to subsidize swimming pools and pickle ball courts in brand new developments, while their own children are dodging cars as they play in the middle of residential streets. It is a simple matter of equity.

C) Safeguards Projects in the System and “Vested”

There was an amendment to the bill offered on the night of the vote. It provides that: 

[T]his Act shall not apply to any residential and/or mixed-use development or construction project with a residential component for which the filing of the following has occurred prior to the effective date of this Act (9/16/2019): a concept plan, an amendment to any approved residential and/or mixed-use development plan with a residential component, or an application for a Planned Unit Development … This Act shall not apply to any development which has vested prior to the effective date of this Act or to any subsequent amendments to a vested project. (Bill 37-19). 

So, things in the pipeline get a reprieve. In addition, projects that have vested are also protected. What does “vesting” mean? Our County Code explains that "vesting is a protected status conferred on a Development Plan. A vested Development Plan shall proceed in accordance with the approved Plan and the laws in effect at the time Plan approval is obtained.” (Baltimore County Code Section 32-4-101 (ccc)). Projects typically vest when a plat is recorded with the County. The builder then has 9 years within which to construct the “vested” project. (Baltimore County Code Section 32-4-264).  

2) What the Bill Doesn’t Do

A) Rid the Development Review Process of Bad Actors

Loopholes are one thing. It’s a shame they found their way into our law. It’s much worse, however, when County employees conspire with developers and their attorneys and consultants to actively thwart black-letter law so that they can take advantage of them, all to the detriment of tax-paying citizens.  I truly would not have believed that this could happen had I not witnessed it with my own eyes. 

Our law about providing public open space is pretty simple. Here’s what it currently says: 

The applicant shall meet the open space requirement on-site or off-site …. If it is not feasible to meet the open space requirement on-site or off-site, the applicant shall submit a fee in lieu proposal and pay a fee to Baltimore County. (Baltimore County Code, Section 32-6-108).

In spite of this clear mandate to make a demonstration of the feasibility of providing open space on- or off-site, some developers and some county staff decided that plain English has a different meaning, one that allows them to sidestep this requirement and move straight to reducing whatever fee might be owed using the loopholes mentioned above.  The developers’ attorneys pressed these positions in a development review proceeding in which I was subpoenaed and both an expert witness and a county employee testified under oath, on the record, that the true purpose of our open space law is to allow developers to “amenitize” their projects. An attorney for the protestants described this bastardization of our law in this way:

[The developer’s actions] represented a complete perversion of the open space law, and a mockery of the fee in lieu requirements, which the developer never made a claim that it satisfied and never presented any evidence that it qualified for …. It’s probably the best example one can give of how the whole existing process has been perverted …. (Comments of Attorney Robert Smith, Council Work Session, 8/27/2019).

This conduct highlights a pressing need for the new County Administration to take a hard look at the development review process and ensure that our laws are enforced in a fair and equitable manner.

B) Establish a New Fee Schedule that Aligns with County Law

When the County open space law was amended in 2016, NeighborSpace and its allies pushed for a redefinition of how open space fees are calculated, one that is based on the need for open space and the cost of providing it. That idea took shape in the system of fee tiers in Section 32-6-108 of the County Code, where both density and the location of a project drive the open space fee to be paid.  Under this system, a low-density project in Parkville will have a lower open space waiver fee than a high-density project in Towson.  The rationale is that a low-density project does not create as much need for open space as a high density project and land is arguably cheaper in Parkville than it is in Towson.

County Code Section 32-6-108.

The 2016 revisions required the Administration to advance a schedule of fees that align with the tiers, shown above. It never did. So, almost three years after that law’s passage, NeighborSpace has little idea how the fees have been calculated.  It looks in some cases like the old zoning-based fees are still being used. In fact, the prior Administration stated that it was “interpolating” from the old schedule to set current fees. The Olszewski Administration is aware of the challenge and has said it will be advancing a new fee schedule.

C) Revise the Open Space Manual

The County Open Space Manual acts like a regulation that implements the open space law.  In other words, it fleshes out the details and practicalities of the law. Unfortunately, in spite of many efforts and Council resolutions to get the previous Administration to update it, no such revisions were forthcoming. (Here is a one-pager documenting the sordid history of attempts to revise the open space laws and regulations). 

The Open Space Manual is now 20 years old. It’s one more thing that has been left for the Olszewski Administration to fix.  Both the new manual and the new fee schedule will also require the approval of the County Council.