A proposed county charter amendment would remove the Harford County Council as the final authority in zoning appeals cases, a role the council has had since the inception of home rule government more than 40 years ago.
The amendment, introduced at Tuesday's council meeting as Bill 14-21, would remove a step in the zoning appeals process that has often been criticized by developers and other property owners, but one which makes the elected council members responsible for deciding variances, special exceptions and conditional uses that on occasion can have a significant impact on a neighborhood.
The amendment would keep the initial step in the process of having the appeals case decided by a hearing examiner; however, instead of the examiner's decision being subject to review, modification and possible rejection by the county council, a contested decision at the examiner level would have to be appealed straight to Harford County Circuit Court.
The hearing examiners would still be employed by the county council.
A public hearing on the change, Bill 14-21, is scheduled for 6:30 p.m. June 3 in the council's chambers in Bel Air. If the council passes the bill, county voters would still have to approve the amendment during the November general election before it could take effect.
Dissatisfaction with rule
Current council members have complained for several years they cannot speak with their constituents about zoning-related issues before they hear the appeals, as they preside as "quasi-judges" over the zoning appeals board.
In 2012, Councilman Joe Woods said he was temporarily blocked from even receiving any emails with the word "zoning" in them.
"Apparently anything that comes into the county with the word zoning, it gets blocked from me, because we're the zoning appeals board [as well as the council]," Woods said. "We can't legally get involved with certain zoning issues until it goes to the zoning appeals board. So our email system would automatically take out zoning issues and ship them to another [place]."
On Wednesday, Councilman Dick Slutzky said removing council members from the process would remove any conflict and allow them to instead advocate on residents' behalf.
Slutzky is one of the amendment's sponsors, along with Woods, Councilmen Jim McMahan and Dion Guthrie and Council President Billy Boniface. Among that group, Slutzky is running for council president to replace Boniface, who is retiring, and McMahan, Woods and Guthrie are running for re-election.
In the past three years, the council has come under fire from residents living near several proposed developments around Route 924 and Plumtree Road south of Bel Air, as well as a proposed single family housing development and retirement community planned on the former Eva-Mar Farm on Route 543 east of Bel Air.
Walmart's plan to build a new store at 924 and Plumtree triggered protests in 2012 and 2013 but was not subject to a zoning appeals proceeding. Council members, however, were accused of dodging public discussions on the issue because there was a zoning appeal pending by another developer planning apartments across Route 24 from the Walmart site. The apartment case concluded earlier this year.
The Eva-Mar development has not involved a zoning case, but Slutzky nevertheless recused himself from talking about it during council meetings where protesters appeared last month.
Slutzky explained that, until a referendum four years ago, the council was not supposed to comment or give advice on any issue that could potentially go before the zoning appeals board.
"Those were the rules we were operating under for the first eight years of my time on the council," he said.
Despite a referendum four years ago, Slutzky said he was advised by several lawyers to nevertheless refrain from commenting on the Eva-Mar case.
"The potential is, any of these situations that are being opposed by communities has the potential to become an appeals case," Slutzky said. "That is the advice that we were given."
Another potentially controversial development that is expected to come before the council in its role as the appeals board is the planned expansion of the Harford County Airport near Churchville. Last month, a hearing examiner approved a plan for a new, longer runway and other special exceptions the airport owner is seeking.
Boniface, who could not be reached for comment for this article, testified last winter against the airport expansion during the proceedings before the hearing examiner, citing possible adverse impacts on his family's horse farm a few miles from the airport.
Support among lawyers
John Gessner, a Bel Air-based lawyer who often represents developers, said he thinks removing the council as the appeals board is a great idea and he thinks many attorneys would agree.
"I have been looking for this for years, but quite frankly, I never thought it would happen," Gessner said Wednesday.
"Harford County is unique in the state where you have the legislators serve as the zoning board of appeals. I am not aware of anyone else who does it this way," he said. "It puts them in a very, very tough spot, it really does."
Many other jurisdictions, such as Baltimore County, have an independent zoning appeals board instead, Gessner noted.
Gessner said residents who are new to the county or unfamiliar with the zoning process get very frustrated about not being able to talk with their representative about zoning cases.
"I think the elected officials are unfairly criticized for that, because they legally can't [comment on zoning cases beforehand]," Gessner said. "It's an ethical land mine."
"I really believe it would be better to do it this way," he said about the council giving up the appeals board role.
Gessner said the council would still serve as advocates for their constituents, just not sit as judges.
Two people who were involved in devising the current zoning process said, however, it would be unwise to let the council get out of making any zoning rulings, while a third said the change has been a long time coming.
Robert Carson, a lawyer in Havre de Grace who served on the original five-member elected board that wrote the county's charter in 1971-72, said the amendment would be "an abdication of responsibility by the county council."
He said zoning appeals cases have "run very smoothly under the current process."
"I think the present system has worked well and it puts the county council in a position where it should be," Carson said.
Art Helton, a member of the first county council between 1972 and 1974 that set up the current zoning appeals process, called the proposed amendment "terrible."
"The original purpose was to have citizens, or people who wish to make changes, to get a hearing on their issues that was not as cut and dried [as the Circuit Court]," said Helton, a candidate for State Senate. "It's like they are just trying to get completely out of making decisions and face the public."
Letting residents have their cases heard by the council "added a level of citizen perception and feeling that would not be present in any result that would go to the circuit court," Helton said, adding the council would perhaps be more familiar with the residents personally or more compassionate toward their circumstances.
If the amendment is passed, "the public will further lose confidence in their government," Helton warned.
But William Hooper Jr., who served as the first county attorney under home rule government, said he agrees with the proposed change.
"I argued against having the council sit as the board of appeals," said Hooper, who practices law in Bel Air and does some zoning and development law work in Harford and other counties. "We're the only county that does this and it's time consuming and costly" for the property owner.
Aegis staff member Allan Vought contributed to this article.