The City Council's Legislative and Investigations Committee
voted on Dec. 2 to water down a bill to reform the procedures of the city’s zoning board. Those who are pushing for the reform, however, still see progress being made.
“We fought long and hard to make some of those changes in the community,” said Victor Corbin, president of the Fells Prospect Community Association, after the vote. “We got what we got.”
“We can live with this,” said David Tanner, the executive director of the Office of Municipal and Zoning Appeals and the city’s key man on zoning issues.
The bill, number 11-0767, which Councilmember James Kraft (D-1st District) introduced in August, originally would have required the five-member Board of Municipal and Zoning Appeals (BMZA) to include its findings of fact and its decision in the minutes produced after each twice-monthly meeting. Those provisions were excised. In the original bill, a property owner seeking a zoning variance would have to post a notice on the property for at least 45 days before the scheduled hearing, instead of the present 10 days. That was amended to 21 days. A provision that would have required the board to make a decision on each appeal within 30 days was amended to 75 days, and a provision that would have compelled the board to hold at least one evening meeting each month was amended to require that every other month. Provisions of the bill that require the board to vote publicly and for each member to be present in order to vote were left intact. In 2009, one board member voted on a controversial matter via speakerphone, a move that was subsequently challenged in court (“Zoning Phoning it In,” The News Hole, Sept. 18, 2009). In October, the Maryland Court of Appeals ruled that such a practice was permissible.
Kraft said his bill arose from years of community complaints about the board, which has final say on what businesses and homeowners can build on their property in excess of what’s specifically allowed by law. Some community groups think the board is too pro-developer, arbitrary in its decisions, and opaque. One zoning activist says the whole process is far too dependent on Tanner.
Prompted by Corbin, who reached out to fellow neighborhood leaders via Facebook, more than a dozen neighborhood associations sent letters of support for the reforms. Opposing Kraft’s bill were Tanner and the “Developer’s Working Group,” which sent a letter supporting Tanner’s objections to the bill.
In his letter to the City Council, Tanner mentions hardships for zoning applicants, who would have to make sure fragile and oft-stolen notice signs were kept posted for a month and a half, and zoning board members who, for their $8,200 annual salary, already sometimes meet for hours past 5 p.m. He also said that the original bill’s provisions could result in “unintended problems that add complexity to an already complex process, increase the possibility of unnecessary litigation, and increase the cost of the process to both property owners and the City during a time when everyone is cutting their budget.” He elaborated in an interview.
“Well, it gives another point to attack in the process,” Tanner says. “I don’t really see the purpose of it, other than to provide a more complex process that can be reviewed, and subject to court review, anything can happen.”
Even so, Tanner says, “In going through this bill, I did some research on our appeals for the last 10 years. Basically I found there were over 8,000 appeals [heard by the BMZA]—8,266 since 2001—and less than 1 percent are appealed to Circuit [Court]. I think it’s like 78 of those cases were appealed to judicial review to Circuit Court, [and] of them the majority [of BMZA rulings] were affirmed.”
A number of those court appeals were prompted by Joan Floyd, who has run for City Council president under the Green Party banner, and her husband, Douglas Armstrong. They have gotten court rulings requiring the BMZA to redeliberate and re-decide matters and include their “findings of fact and conclusions of law” in those written decisions.
From Tanner’s perspective, the desire to keep a heavy docket flowing more or less smoothly is paramount, and the efforts of stoppers like Floyd or Corbin—who is part of the group fighting the Beans and Bread homeless center expansion in Upper Fells Point (“Forbidden Zone,”
, Feb. 9)—to sue and delay projects over procedural missteps seem pointless. In his remarks at the hearing, he pleaded with the council not to give such people more ammunition. “Why would we want to have battles over issues that don’t get to the substance of the case?” Tanner asked. “That just wastes everybody’s time.”
At the hearing Floyd and Armstrong both said that Tanner’s control of the board should be at issue. “It’s good that the BMZA members will have to hear the hearing in order to vote,” Floyd said after the hearing, “but it’s all meaningless if the person who actually writes the decision is Mr. Tanner.”
Since 2001,Tanner has essentially run the board. He takes the minutes, writes the decisions, and administers every aspect of the zoning appeals process in the city. He testified that he is up to date on the board’s complete minutes “through March,” meaning that there could be people who have been waiting nine months for the official and final decision on their hearings—though in most cases the board issues an informal decision within a day or two. Tanner says he strives to meet the provision of the current law requiring the minutes to be posted within a “reasonable” time period: “I don’t always meet that goal due to extenuating circumstances,” he told the committee. “For instance, I was out for two months with heart surgery, then I came back and broke my ankle. It was hard to keep up.” The zoning board formally approves neither the minutes nor the decisions Tanner writes, a fact that seemed to surprise several of the councilmembers.
“It’s an interesting issue,” Kraft said at one point. “But, fortunately or unfortunately, this isn’t part of the bill.”
In his testimony, Corbin said he thought developers got special treatment. He singled out Joseph Woolman III, who signed the letter on behalf of the Developers Working Group and who has opposed Corbin and other neighborhood groups as the lawyer for Beans and Bread owner St. Vincent de Paul. “Woolman gets special treatment constantly,” Corbin charged. “He’ll call [the BMZA] and say, ‘Fit me into the docket,’ and he’s fit in within a week.” Woolman did not return a message seeking comment on the bill.
Kelly Pfeifer, a supervising attorney with the nonprofit Community Law Center, testified in favor of the bill, emphasizing Tanner’s testimony that he writes the decisions himself. That confirms “what I always suspected,” Pfeifer told the council committee: “The board is not making those findings.”
“I think you have heard enough to tell you that the BMZA is completely dysfunctional and operates illegally,” Armstrong said in his testimony.
The amended bill passed City Council on Monday.