By Lindsey McPherson, firstname.lastname@example.org
8:53 PM EDT, July 11, 2012
Unlike the three generations of farmers in his family that came before him, Lambert Cissel was "fortunate enough" to buy hundreds of acres of land in western Howard County — land that until recently he planned to pass along to a fifth generation.
"I want my son and my grandson to continue farming, but they can't do it now," the 73-year-old said. "The state has forced me out of farming."
Cissel was referring to the new state law that was proposed by Gov.Martin O'Malleyand passed this spring by the General Assembly. The law requires counties to limit where major residential subdivisions can be built on septic systems.
Cissel's 180-acre farm, located off Route 144 in Lisbon, and his 49-acre farm, located off Jennings Chapel Road in Daisy, both fall in the area where Howard County is proposing to ban such development.
Though Cissel does not want to develop his farms, the law would take away his right to do so, significantly undercutting the value of his land. Not wanting to lose that equity, which he uses to borrow money to run his farms, Cissel has applied for his properties to be grandfathered under the law.
He's not the only one. Owners of 10 of the 61 properties the county says would be affected by the law have applied for grandfathering, according to county officials.
And while farmers like Cissel worry about protecting their farms, the rush has others worried that the new law, meant to curb development of agricultural and forest land and reduce pollution from septic systems, might actually have the opposite effect, pushing rural property owners into developing their land.
"We could, in essence, be accelerating development in the rural west," County Council member Calvin Ball, a Columbia Democrat, said during a work session on the topic last week.
The law, at least in Howard County, "has already done more harm than good," added Councilman Greg Fox, a Fulton Republican.
Other counties also saw a flood of applications for grandfathering before the July 1 deadline, according to Maryland Department of Planning Secretary Richard Hall.
"It's not our intention for someone who wasn't inclined to develop their property to be motivated to go to subdivision because of the bill," he said.
Four growth tiers
Under the law, by Dec. 31 all local jurisdictions must submit to the state plans for dividing their land into four growth tiers:
• Tier I comprises areas served by public sewer;
• Tier II comprises areas planned for future extension of public sewer, which Howard County does not have;
• Tier III comprises areas planned for large lot development with septic systems; and
• Tier IV comprises areas dominated by agricultural and forest land planned for resource protection.
Marsha McLaughlin, director of the county Department of Planning and Zoning, explained the administration's proposal: The eastern part of the county, which is served by public sewer, would be designated as Tier I, while the rural west would be split between Tier III and Tier IV. The rural residential zoning district would be designated as Tier III and the rural conservation zoning district as Tier IV.
Properties designated as Tier IV would not be allowed to have septic systems in new major residential subdivisions, defined in Howard as land split into five or more lots. In the rural conservation district, McLaughlin said the typical lot size is 4.25 acres.
McLaughlin said the rural conservation zoning district has 61 properties not already protected from development through the county's agricultural preservation program or other easements that are large enough to accommodate a major residential subdivision. Together, the 61 properties have enough land to be split into 431 lots.
"Of the 431 lots that could be lost ... most of them are in for grandfathering," McLaughlin said at last week's council work session.
In addition to the grandfathering, McLaughlin said the law allows property owners to sell their development rights through the county's density exchange program.
Fox, who represents the rural west, said taking away the development rights of those 61 properties would affect their underlying values, which most owners use as collateral when borrowing money to operate their farms.
"Those underlying property values are what allows them to borrow for their equipment or their seed," Fox said.
'Can't afford to lose it'
Hall said coming up with an appropriate grandfathering process was one of the more complex and contentious aspects of the bill, but he believes the law sets the bar at an appropriate level, given the various steps and time involved.
To qualify for grandfathering, Howard property owners must have applied for soil percolation testing with the county Health Department by July 1. Applying for percolation testing, which would determine if their land could accommodate a septic system, costs property owners $506 per lot for up to 10 lots or $512 per lot for 11 or more lots.
After passing the soil percolation test, the property owner must then submit a preliminary subdivision plan to the county within 18 months. Paying for design and engineering of the plans is expected to cost thousands more dollars.
The county must approve the plan by Oct. 1, 2016, for the property to be grandfathered.
Once the plan is approved, a public road must be put in for the property to be legally recorded as a subdivision.
Council members fear the grandfathering process is so costly that property owners will have no choice but to partner with developers and build homes on the land.
If his land ends up in Tier IV, as is proposed, Cissel, who is in debt and has already had to borrow money to pay for the percolation applications, said he sees no other option.
"We can't afford to lose it," he said. "We've got to develop it."
The septic bill has been a priority of O'Malley's in the past two General Assembly sessions.
Though weaker than the 2011 proposal that failed, the Sustainable Growth and Agricultural Preservation Act of 2012 was still not palatable to most state lawmakers until it was heavily amended in the last few weeks of the General Assembly session.
The amendment that brought several lawmakers on board eliminated the provision giving the state final approval of tiers. Another amendment added the grandfathering provision.
Del. Liz Bobo, of Columbia, was a co-sponsor of the O'Malley's septic bill when it was introduced in the House, but after all the amendments she became the only one of Howard's eight Democrat delegates and senators to vote against it.
"It's much weaker than it was put in, and I think that was a big mistake," she said. "We made it much easier (for developments to be built on septic systems) and we made many more properties eligible for grandfathering."
Septic systems, Bobo said, "are a huge issue with the (Chesapeake) Bay."
Homes on septic systems produce an average of 10 times more nitrogen pollution than homes on public sewer, according to state data.
Howard's three Republican state lawmakers, who represent most rural parts of the county in District 9, also voted against the bill.
"I saw it as taking away somebody's value and property without just compensation," West Friendship Republican Sen. Allan Kittleman said.
Howard County Farm Bureau President Howie Feaga said the septic law is "a little hard to swallow" given all the things farmers have done to limit pollution in the Bay, such as follow nutrient management plans and soil conservation management best practices.
"It seems like we just don't quite get the credit we deserve," he said.
Kittleman said he's disappointed the county has designated such a larger area of the county as Tier IV. But he's not surprised so many property owners have applied for grandfathering.
"They really have put farmers in a very difficult position," Kittleman said, noting if his family's farm in West Friendship was not already protected through the county's agricultural land preservation program, they would have been forced to apply for grandfathering to protect their property rights.
'A lot of pressure'
Each jurisdiction is eventually required to incorporate the growth tiers in their comprehensive plans, but the law allows them to adopt the tiers administratively to meet the Dec. 31 deadline.
Howard County is currently updating its General Plan, which it only does once every 10 years or so. McLaughlin said the administration included the tier proposal in the plan to avoid "waiting another decade" and serve as a "good way to make sure it was properly vetted."
However council members, who have said they are hoping to pass legislation adopting the General Plan update before their August recess, have the option to leave the tiers out of the plan and add them in later.
Regardless of what method the council chooses, it's clear they will need some convincing if they are going to stick with current tier proposal.
Council member Courtney Watson, an Ellicott City Democrat, told McLaughlin the administration needs to prove the benefits for the greater good outweigh "the pain that you're causing for the property owners in that area."
Fox suggested switching the roughly 7,000 acres of rural residential land protected from development through various easements in Tier III with the roughly 8,000 acres of unprotected rural conservation land in Tier IV.
Asked if the state, which is responsible for commenting on the tiers the county submits, would give a favorable review to such an approach, Hall said only putting land already protected from development in Tier IV would defeat the purpose of the bill.