www.baltimoresun.com/news/maryland/baltimore-county/bs-md-co-pud-20110615,0,4188647.story

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Alternative development technique brings controversy in Balto. Co.

Developers avoid zoning restrictions, but some question fairness

By Arthur Hirsch, The Baltimore Sun

8:14 PM EDT, June 14, 2011

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Behind the asphalt parking lot at Dimitri's International Grille in Catonsville, the wooded area drops about 30 feet in a steep slope in one direction, adjoining Patapsco Valley State Park on two sides. The restaurant's owner wants to build 10 townhouses there, though zoning doesn't allow it and the Baltimore County planning staff has strongly recommended against it.

"How do you develop on land like this?" said County Councilman Tom Quirk, pointing into the woods. He persuaded the council to revoke its approval of the project on Frederick Road, but a fellow lawmaker wants to put it back on track. "This was a mistake in judgment from day one."

The proposed Thistle Landing project is small, but it is part of a larger argument that has been unfolding for years across Baltimore County over the "planned unit development," or PUD. In Catonsville on the west side, in Bowleys Quarters on the east side, and in other county communities, such developments have triggered battles between developers and residents.

Supporters say the flexible approach makes room for projects that suit a community even if zoning doesn't permit them. Critics say the approach gives developers leeway to bypass rules. The County Council has revised the law repeatedly over the years, but that has hardly settled all disputes.

Planned unit developments allow builders to depart from the zoning code with council approval. The developer might want to mix uses that are separated in the zoning, put up more homes than the law allows or build homes in a business zone, as in the case of restaurateur James H. Coroneos' proposed Thistle Landing.

In exchange, the law requires developers to provide a benefit to the community, which could include senior housing, improvements to a neighborhood park, housing for those at a certain income level, or higher quality materials or architectural design.

In the Thistle Landing project, for instance, the suggested benefit would be "workforce housing," meaning homes for people who meet federal income guidelines. At a community input meeting in March, the developers said they would be asking $300,000 to $325,000 for the homes, which to Quirk did not seem to qualify as "workforce housing."

PUDs are rarely proposed — records of the past seven years show they account for only 2 percent of approved projects in Baltimore County — and most have faced little community opposition. Lately, though, they're stirring some.

Quirk, who represents District 1, was at the Thistle Landing site recently pointing out the features of the land and explaining why he took the unusual step of revoking the previous councilman's endorsement of the townhouse venture, without which it cannot be approved. Now he's being opposed by Council Chairman John Olszewski Sr. of District 7, a fellow Democrat who took the equally unusual step of introducing a measure to bring the project back.

The Quirk-Olszewski legislative duel comes weeks after Councilman Todd Huff, a District 3 Republican, decided to nip a small PUD in the bud.

Huff held two community meetings four months apart before the proposal for 33 houses on Pot Spring Road near Timonium for people 55 and older was even voted on by the council. Under PUD rules, he was not technically required to do that.

Hearing nearly unanimous disapproval, Huff decided not to submit the project for a council vote. That leaves the developer to work within the limits of the existing zoning, which allows about one-third of the houses he had in mind.

Paul Apostolo, one of the leaders of the Pot Spring opposition, said the group was eager to have the project stopped essentially before it got started. He said the group was concerned that while council approval only begins months of review by county agencies, that endorsement would carry the project.

"We knew that the introduction and initial approval of a PUD would stamp the imprimatur of the County Council on the project and that a later rejection would be unheard of," Apostolo said in an email.

High approval rate

A check of county files shows that of 99 PUD projects on record, none has ever been denied outright, although one on the southeastern waterfront has come close.

That is the Galloway Creek case, now before an administrative law judge as it continues a slog through county agencies and courtrooms that started in 2007. The argument over the condominium proposal split the Bowleys Quarters community, sparking formation of an opposition neighborhood association that contends that the PUD could open the floodgates to hundreds more homes than the area can handle. Others argue that it's just what the neighborhood needs.

The developer, Milton Rehbein, has offered a community benefit in the form of a $250,000 gift to the Bowleys Quarters Volunteer Fire Company.

Roughly 70 projects have been completely or partially built under these rules across the central, most developed part of the county since the late 1980s. They range in scale from the sprawling Mays Chapel North project in Lutherville-Timonium — 1,866 housing units and a commercial center completed in 11 separate PUDs — to the modest 12-unit Satyr Hill Manor near Parkville.

Since PUD rules first appeared in the County Code in the 1970s, they've been revised again and again. The tract size has been cut in several steps from 250 acres to no minimum at all, and the role of public hearings and of several county departments in the process has been adjusted.

The last major change, enacted by the County Council last year, reversed a revision made in 2004, shifting the power to approve projects from the Planning Board to the hearing officer, where it was before. The new rules also require postings on land where a PUD is proposed and bar the developments outside the Urban Rural Demarcation Line. The line, established in 1967, marks the boundary where public water and sewer services end, separating intensely developed and more rural areas.

Opposing views

Now, amid the Thistle Landing argument, Quirk and Councilman David Marks, a Republican from District 5, are saying that maybe it's time for further adjustments.

What's the trouble with PUDs?

County planners say nothing that isn't usually worked out in discussions between planning staff and developers after council approval. They say the approach serves an important purpose, especially with greater focus on redeveloping older suburbs.

"The zoning standard has to fit all" situations, said county Planning Director Andrea Van Arsdale. "But that's not how life works."

She said the PUD "allows you to have this flexibility. … It really offers a significant advantage for higher quality development."

Many community activists have a different view. Their critique was summed up in a commentary published early this year in The Baltimore Sun by Alan P. Zukerberg, president of the Pikesville Communities Corp. He argued that the law gives developers an advantage at the expense of communities.

He wrote that there's too much room for interpretation in defining "community benefit," especially as the decision is now ultimately in the hands of an administrative law judge, or hearing officer, "who was appointed by the county executive. With a history of Baltimore County executives being developer friendly, hearing officers will not have to exert much effort to define a 'community benefit' in a minimally, pro-developer manner."

He wrote that "we have a mess in this county resulting from such discretion." When asked in an interview to name a PUD that seemed particularly damaging to a neighborhood, he could not point to a specific case.

His point about the history of county executives shows that the argument about PUDs unfolds amid suspicion about relationships between elected officials and their political contributors, many of whom are developers, their lawyers and relatives.

Allen Robertson, vice president of the Bowleys Quarters Community Association, which is opposed to the Galloway Creek PUD, notes that the project was rejected by the Board of Appeals in 2009.

County Executive James T. Smith Jr., through the county Office of Law, then took the unusual step of filing a motion to intervene in the case. The motion argued that the Board of Appeals erred in procedure and rather than reject the PUD could send it to the Zoning Commissioner for a hearing. That brought the project back to life.

The county attorney's motion said the Office of Law "does not seek to intervene to advocate on behalf of either" side in the case. Robertson was not convinced.

"It sure looks like a stacked deck to me," Robertson said. He contends that the proposal for 36 waterfront condominiums at what is now a marina would set a precedent that could eventually crowd the area with up to 893 homes at 13 marinas under PUD rules. Depending on the interpretation of density limits, conventional zoning would allow about 260 homes.

A frequent critic of the PUD approach, Robertson said he was happy with the recent changes but would like to see an acreage minimum put back into the law.

Quirk insists that his decision to revoke a PUD supported by his predecessor, Democrat Stephen G. Samuel Moxley, represents an effort to protect the "integrity of the process" by upholding quality development.

Quirk said the developer is not offering much of a community benefit, as the county needs more jobs, not more workforce housing, and that the project is flawed because of the characteristics of the land. His dim view of Thistle Landing is supported in a planning staff report that notes a lack of information on standards of quality, the steep slope and nearness to environmentally sensitive land. The report said the design "is not of a quality that is harmonious with or complements sound planning principles."

While Quirk believes the project is flawed and the planning staff knows it, he still thought the proposal should be stopped before a full review. He said that decision does not amount to a no-confidence vote in the ability of regulatory agencies to stop a bad project, but he acknowledged, "I could see how some community activists might be led to that conclusion."

arthur.hirsch@baltsun.com