2020 | Government

County Council opposes limiting participation in some land-use cases

Officials support bills on speed limits, speed cameras, evictions

File photo

The Montgomery County Council on Monday unanimously opposed a state bill to limit council members’ participation in certain land-use and zoning cases if they received financial contributions from developers or others involved in the projects.

Council members discussed the bill, as well as several others, during a meeting to determine their positions on proposed state legislation affecting Montgomery County as the 2021 General Assembly session approaches in January.

Under current Public Ethics law, an applicant for a local map amendment must disclose campaign contributions made to a county executive or council member.

A bill that some of Montgomery County’s delegation members have put forward would expand state law to include land-use proceedings, including conditional use, sectional map amendments, and master plans.

Council members who received contributions of $500 or more would be prohibited from taking part in planning decisions involving developers or agents who made those contributions.

Council staff members said there were “inconsistencies” with county law and said the bill’s terminology was “confusing” and “hard to understand.”

Jeff Zyontz, a senior legislative analyst for the council, said it wasn’t a good bill and could be used “creatively” by a developer as a loophole.

“If I know that some council members are opposed to my development, I give them a contribution because it prohibits them from taking part in that activity,” he told the council. “Fundamentally, I think this is a real, real problem aside from all the definitional things — aside from the fact that it allegedly prohibits you from participation in actions you have nothing to do with.

“This goes down to site plan and variances and conditional uses — none of which go to [the] council. So it’s got some major problems and I think it’s worth opposing.”

Council Member Hans Riemer said the bill shouldn’t be “picking and choosing who gets to participate.”

“That’s just crazy,” he said. “Let’s not do that.”

Council Member Gabe Albornoz said during the meeting that the bill was a “Pandora’s box” and he opposed it because of the legal problems and potential ramifications connected to it.

“I understand the concern about development, but quite frankly, the majority of this council accepted public financing. … I wish we had been contacted prior to the introduction of this bill so we could have had a discussion, but here we are,” he said.

The bill, as well as the others the council discussed, have been put forward and supported by various delegation members. The council plans to discuss more state bills in at least two additional meetings.

The council supposed most of the proposed legislation. For some bills, though, some or all of the council was opposed.

Council Member Andrew Friedson was the only council member to oppose a bill to require that a contract for the sale of a single-family real property contain a notice that “school boundaries designated for the property may be subject to change.”

Friedson supported a “no position” stance on the bill and said the county could do its own bill on the subject if it wanted to.

“I don’t see the need to have a state bill that imposes a county requirement that is somehow unique to Montgomery County, but isn’t actually. … I don’t think that a state requirement is necessary,” he said. “I think it adds to a level of confusion of what the requirement would be. It takes away some of our control over how the requirement would be implemented.”

Last year, Del. David Moon filed a similar bill, preventing real estate agents from marketing a home as being attached to certain schools, but it ran into resistance and was changed to a more general disclaimer about possible boundary changes.

Another bill received support on Monday from one council member while the rest of the council voted to take no position on it.

Council Vice President Tom Hucker was the only council member to vote to support a bill to exempt the county from a state law setting a prohibition on counties or municipalities.

The prohibition is on adopting or enforcing a local law or regulation, or taking any other action, that interferes with or materially increases the cost of work that an electric company must undertake to comply with the vegetation management standards.

Hucker said the decision would be between having no authority or taking on the specific duties of tree trimming.

“This is the sort of thing that the county does well all the time in many other areas,” he said. “I think we had the authority prior to 2011 and it was taken away with this bill. I think we can manage it well. I don’t think it’s that big of a deal.”

The council unanimously opposed one other bill that would apply to the Housing Opportunities Commission. The bill would have reduced the number of Open Meetings Act exceptions that apply to the commission from 15 in the current law to six.

Under the bill, HOC members only would be able to meet in closed sessions for reasons such as:
• employment, discipline and removal of certain employees
• consideration of property acquisition
• consultation with counsel
• consultation with staff members or consultants about potential litigation
• compliance with a specific constitutional or judicially imposed requirement to not publicly discuss a certain matter.

The sixth allowance would be to satisfy an “exceptional reason” — if at least two-thirds of the commissioners present find that the reason is so compelling that it overrides the general public policy in favor of open sessions.

Council staff members said the “exception reason” allowance would be very broad and the HOC is already subject to the Open Meetings Act.

Christine Wellons, a legislative attorney for the council, told the council that there are some fundamental problems with the bill.

“It seems like the crux of the bill was some noncompliance of HOC with the Open Meetings Act and the proposed solution is to put the housing commission under a separate regime that’s not the Open Meetings Act, when in fact, it seems like what needs to be done is just to ensure compliance with the Open Meetings Act going forward,” she said. “From a legal perspective, it would be very challenging for HOC to go to this new set of requirements.”

Wellons said it was “concerning” that HOC would be allowed to close a meeting for an “exceptional reason.”

“We don’t know what ‘exceptional reason’ means,” she said. “I would suggest that is kind of open to broad interpretation and it’s not exactly clear who would be enforcing these new requirements.”

Del. Al Carr, who represents District 18 in the county, told the council that he was concerned there are more irregularities in how the full HOC has been meeting in recent years.

“It’s clear to me that the Open Meetings Act is not sufficient,” he said. “This bill specifies the circumstances in which they can meet in closed session. It’s based on a proven law that governs the Annapolis Housing Authority that’s been in place and it’s worked for decades.”

Council Member Craig Rice said the situation that sparked this bill was resolved and he did not support “targeting” a specific organization after it fixed a problem.

“Remind folks of the rules, they adhere to the rules. We don’t then try to smack them down because they somehow didn’t adhere to the rules at the beginning,” he said.

If the Open Meetings Act isn’t sufficient, Rice said, it should be changed.

The council also unanimously supported the following bills:
● Allowing the county to decrease the maximum speed limit to not less than 15 mph on highways in an urban district without conducting an engineering and traffic study. It would also enable the county to decrease the maximum speed limit to not less than 15 mph on highways outside an urban district after conducting an engineering and traffic study.
● Allowing the county to transfer administration of its speed camera program from the police department to the transportation department. It would require a transportation employee, instead of a police officer, to sign the required statement of a speed camera violation citation.
● Prohibiting a landlord in Montgomery County from evicting a tenant holding over — staying on the property after the lease has ended, but still paying rent — in the absence of “just cause.”

Briana Adhikusuma can be reached at briana.adhikusuma@bethesdamagazine.com.