[Update Jan 17, 2018 image of church zoning request sign added showing PD-44 allows same land use change as TS-R did for BCC Rescue Squad]
In this article and clip
Planning board Chairman Casey Anderson told the council that the TS-R zone is intended for areas where multi-family housing already exists or where it’s intended in the future. He said the planning board voted last week to approve the amendment because the burden will still remain on the rescue squad to prove the site should be rezoned.
However, Steve Teitelbaum, a representative of the Battery Park Citizens Association, told councilmembers that the zoning change would only apply to the rescue squad site because it’s the only property that filed a TS-R rezoning application before the May 1 deadline to file under the old zoning guidelines. The TS-R zone will be eliminated at the end of October when zoning code rewrites approved in March go into effect.
Teitelbaum said that because the zoning amendment would only apply to the rescue squad site, “it’s a special law for a special case and therefore illegal under Maryland law.”
Jim Humphrey, a member of the Montgomery County Civic Federation, agreed with Teitelbaum’s assessment and said he won a case against a similar zoning change in Montgomery County Circuit Court.
“We’re confident this zoning text amendment would not survive judicial scrutiny,” Humphrey said, adding that state law prohibits zoning code changes that would only be applied to a single site in a county.
Patrick O’Neil, the land use attorney representing the rescue squad, said that if the change is approved, the rescue squad would still be required to apply to have its property rezoned under the new amendment, which would require additional scrutiny from the Montgomery Planning Board and County Council to ensure that the zone would mesh with the surrounding community.
The council’s Planning, Housing and Economic Development Committee plans to review the proposed amendment Sept. 22 [2014].
Jim L. Humphrey cites
All of the properties recommended for TS-R zoning in the Bethesda CBD Sector Plan are located in the Transit Station Residential District of the Plan area. And the Plan contains language in its Transit Station Residential District section that limits retail space as a TS-R zone ancillary commercial use to "locations along Hampden Lane, and on or near Woodmont Avenue across from the Metro Core District", and only permits office uses "in locations along Arlington Road and Montgomery Lane."
There is Plan language regarding commercial uses on all anticipated TS-R properties in Bethesda, namely those in the Transit Station Residential District. These are limited under Sec.59-C-8.54(a) of the County Code [see text above]. But there is no Plan language regarding ancillary commercial uses for a TS-R zoned property on Battery Lane, since such an occurrence was not anticipated or recommended in the Plan. Such uses would be guided by Sec.59-C- 8.54(b) of the County Code [see text above]. Permitted land uses, therefore, are an additional basis on which ZTA 14-08 would allow the Battery Lane site to be treated differently than all others--certainly differently than all those sites in Bethesda considered for TS-R rezoning in the past (and to reiterate, no future TS-R rezonings are allowed under the new code).
As Montgomery County Circuit Court Judge John W. Debelius III wrote in his August 5, 2003 Opinion that struck down Council enactment of another single-member class zoning law (ZTA 02-04):
"The enactment of 'special laws for special cases' is generally inappropriate... Even an ordinance which does not on its face identify a specific property or situation, will run afoul of the prohibition if its practical and intended effect is to address one situation in a statutory plan already covered by a general law."
The argument could be made that the TS-R Zone might be resurrected by the current or some subsequent County Council, and the amended standards proposed in ZTA 14-08 could be applied to other sites in future. But at this time, only the Battery Lane site in Bethesda could take advantage of the alteration of the TS-R zone being considered in ZTA 14-08. An identical conclusion to the finding made by Judge Debelius in 2003 is inescapable at this time--"There simply are no other properties that qualify."
We do not believe that Council approval of Zoning Text Amendment 14-08 could survive judicial scrutiny and, respectfully, request the Planning Board to urge Council not to approve it. Thank you.
his past success at stopping what he calls ’spot zoning’ (zoning law change intended for one property owner’s plans to use their property).
The second attempt to stop new multi-family (apartment or condominium) housing construction within the Bethesda Downtown Plan and its Sector Plan areas became moot by B-CC Rescue (ambulance) Squad neighbor Christ Lutheran Church redevelopment [not] under the same land use authority.
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| As of Jan 15, 2018 PD-44 zoning authority for BCC Rescue Squad neighbor allows same use change multifamily units with church |
[The PD-44 zoning authority allows the same land use change, a church and community center with multi-family housing, as TS-R zoning authority next door, multi-family housing and an rescue squad base.]
Christ Lutheran church had a development plan rejected 2006 and later accepted between 2014 & 2017 to build a church and housing in one structure. A street [Glenbrook Road] that intersects with Old Georgetown Rd (route 187) may or may not be closed to preserve rural quiet, urban location and high income ‘neighborhood character’ for owners of suburban renewal, McMansion teardowns on one side according to a Planning Department sign (image two paragraphs above) on the Christ Lutheran Church site.
The zoning change in September 2001 that ultimately resulted in the development (construction) of the “Upstairs Bethesda” apartments with set-back upper floors (reducing unit count to spread the common maintenance costs over) with the building cut into two segments making space for a pedestrian-only street (Bethesda Lane) further reducing unit count that made the smaller total of apartments more expensive and the 12.5% mpdu share expressed in number of apartments smaller) wasn’t even ‘spot zoning’ to begin with
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| Height limit increase passed Sept 2001 applied to sites in Bethesda and Wheaton 1,500 feet from wmata rail station and 300 feet from s/f house-only neighborhood |
as it was applied to sites other than Bethesda where no new construction plans (development) had been submitted for approval. That no ‘market’ existed in the other places, to attract new mixed use construction (demonized as ‘development’) isn’t the fault of Federal Realty Investment Trust. The lawsuit and hearing examiner appeal simply raised the developer’s costs that were passed on long term in residential and commercial rents depressing business demand that left one storefront, formerly rented to City Sports, vacant from December 2015 to 2018 when Amazon will open a ‘brick and mortar’ bookstore a block away from the former location of a Barnes and Noble bookstore Amazon helped to put out of business.
That’s all the opponents of building “Upstairs Bethesda” ever meant by ‘conformity with master and sector plans’ the conformity of the income and wealth between existing residents and new residents. People do not look alike on the ‘outside’ but their income and assets (on the ‘inside’) sure do look alike.
The “Battery Lane Coalition” is simply repeating the Edgemoor Citizens Association strategy of suing the ‘developer’ until they negotiate housing that is ‘compatible with the neighborhood’ or in ‘conformity with master and sector plans’ that are both code words for class segregation with as few new below-median-income people as possible while still plausibly denying the NIMBY position to affordable housing. Michelle Rosenfeld is filling the role that David Brown and Norman Knopf filled by representing Jim Humphrey and other Edgemoor ‘citizens/civic association’ members who opposed the 'development' (construction) of what became one of the most expensive apartment buildings in Bethesda when built.
By April 2015 even Jim Humphrey sold his house that was torn down as one more example of mansionization or 'suburban renewal.'
Don't want new ambulance station construction outsourced to developers? Maybe voters should have thought of that in November 2016 and voted "no" on term limits in a 2016 tax revolt against a legally-permitted unanimous council vote to raise property taxes higher than the CPI, or not signed petitions, in the first place. Donate more to the new B-CC Rescue Squad station capital fundraising drive if large mortgages allow discretionary spending. The professionalization of past volunteer fire and ambulance (rescue) departments is a sign of growth from a rural and suburban to a rural and urban county. The training needs met at a central location are fiscally conservative compared to each department holding trainings separately.
Local elected leaders are praised, by the 'citizens/civic' actually s/f homeowner community, as either ‘community friendly’ or ‘responsive to their constituents’ as code words for ‘doing what their constituents want all the time without compromising the Montgomery County values they were elected to represent.’ Class segregation results are denied at individual levels by repeating ‘that’s the housing market’ of a ‘sustainable community’ while denying the role of, in hindsight, frivolous land use lawsuits in rigging that 'housing market' to exclude all but a plausibly deniable (to deny the NIMBY position) amount of below-median-income housing. People still call themselves socially liberal or progressive (and fiscally conservative) based on their fighting local campaign donor influence of 'developers' with support for activism on social issues focused on volunteering and private donations (for tax deductions) rather than paying, what Supreme Court Justice Oliver Wendell Holmes described, “taxes” that “are the price of civilization [civil society].”
