Growth Tiers Fin

Growth Tiers is out of the Council Chamber for once and for all.  While many of you in the eastern part of the County may be tired of hearing about the issue, it has significant relevance on multiple axises: State-County power relationship, East v. West political dynamics, Property Rights in Zoning, and even 2014 political contests.  Add to that the drama of Council-member Greg Fox calling Monday's vote the "saddest day" he has ever spent on the Council and this issue has earned itself the spotlight.

You know it is a controversy when the two sides can't even agree on the background:

• Those who support growth tiers believe septic systems leak a significant amount of nitrogen in the Chesapeake Bay.  Those who don't support the tiers say this is a false premise.

•  Those who support growth tiers argue that it preserves the legacy of farmland in Howard County.  Opponents welcome supporters to preserve their own land.

•  Those who support (or at least tolerate) growth tiers argue that the failure to pass meaningful restrictions will cause the State to prohibit all rural development until sufficient restrictions are implemented.  Those who oppose the tiers say that the State does not have this power inherent in the legislation, would need to pass a separate bill to do so, and would never do such a thing.

• Those who oppose growth tiers argue that this is an unjust taking of land, not permitted by Maryland law or the Howard County Charter, while the other side argues that this is mere down-zoning of property, similar to telling your neighbor that they may not build a very profitable gas station on their corner lot.

As you can see, the Council had its hands full.  It is nearly impossible to strike a compromise when there is no agreement on the underlying premise.  Why would you compromise on any of this if you didn't feel that septic systems posed a threat to nitrogen pollution in the Bay?  Why would you compromise with landowners if you thought this was well within the zoning powers of the Council?

We all know the history of this bill.  Council passed a development-liberal map 4-1 (Courtney Watson dissenting), essentially limiting Tier IV (the most restrictive tier) to properties in agricultural preservation or those that had otherwise sold their development rights.  The County Executive vetoed this bill...on a farm...with cows in the audience.  Ignorant bloggers supposed that this was a dangerous political move in light of the heavy majority passing the original map.  The Council passed a much more restrictive map on Monday 4-1 (Greg Fox dissenting...and having the saddest day ever), planning to pursue additional legislation over the next month to back-stop any bad consequences from the bill.

The Council map overlays existing zoning designations, with rural residential properties going into Tier III and rural conservation as Tier IV.  Tier III allows limited subdivisions and "Rural Villages" on septic.  Tier IV essentially puts the property into preservation.  The most informative document I've found online regarding Growth Tiers is this Implementation Guide (PDF).  As you will see, the State intended this kind of over-lap when first presenting the law, possibly looking to solidify it in the ebb and flow of zoning amendments at the County level.

One aspect of the compromise that you can expect to stick in the craw of supporters and opponents alike is the fact that those who ran to the Howard Building to begin the process of development, and be grandfathered out of Tier IV, have been put in Tier III, leaving open the ability to develop.  An argument could be made that this rewards loophole-seeking behavior and that this is bad.  I find it to be a practical understanding of the facts on the ground, but certainly unfortunate for those who stayed home and hoped for the best.

I was recently told by a prominent Republican that the power to zone is the power to "make one person a millionaire and his neighbor a pauper."  Take the gas station example.  If my neighbor is allowed to drastically change the use of his property, it effects me.  We all have property rights (a "bundle of sticks" as described by my law school professor), but these are not unlimited.  Zoning law puts an effective cap on what we can do with our land, which increases in severity as your proximity to other landowners becomes tighter.

The largest component of the compromise is the shifting of $2 to $3 million a year from the General Fund into Agricultural Preservation.  I've heard from opponents of growth tiers that taxpayers should not be paying for development rights that don't exist.  That sounds like speaking out of both sides of the mouth to me.  Yes, this measure makes Ag Pres involuntary, but it does provide some form of compensation from a Council that had its hands tied.

I think this bill is unfortunate, but I don't blame the Council.  Saying that they could have just ignored the State law, as some other counties have done, can be likened to saying "speed all you want, there are no cops on this road."  I don't think I want a Council that doesn't follow State law.  I would like a General Assembly that doesn't pass the buck onto counties, but so long as that law is passed, there are no grounds for revolution.  The County derives its power from the State.  There is a false impression of federalism or separation of powers, when in fact the Council has more of a feudal relationship to the State.  I fully acknowledge that the State may have to pass a law to "punish" non-compliance, but that does not change the fact that non-compliance is also against the law.

What I dislike the most about this law is the shifting premise.  Republicans claim that this is just a gut-punch to the West, for no other reason than the fact that they are there and don't have political power in this State.  I find that very difficult to believe.  No Democrat is sitting in Annapolis thinking "How can I infuriate rural Maryland today?"  There are significant benefits in Smart Growth, particularly as they relate to the myriad of transportation and environmental issues our State faces.  This law is an aggressive imposition of Smart Growth, but one that the General Assembly has passed on to the County for application.  I would have liked to have seen more cooperation and empathy for land-owners in the West, but also see this entire debate based on a false-choice.  The decision had already been made to limit development.  The Council's job was implementation.

I can't figure out whether this issue will hang around or go out with a whisper and the acceptance of Ag Pres money.  I wouldn't be surprised to see a Tier IV landowner or two take this matter to Court, but also think that their arguments may fail at the Circuit Court level.  I know that Senator Kittleman will use this issue as campaign fodder, as he should.  But that's not where the election for County Executive is won.  Howard County elections seem to be fought in Tier II territory more than anywhere else.  And for those folks, they want to know why it takes so long for them to get to work.

That's all for today.  Have a great Wednesday doing what you love!  One person took me up on my Donation = book recommendation deal from yesterday and I hope some more of you will too.  I may have to get more creative in dancing for dimes.