The Baltimore County Council is moving to give a county department head sole authority to exempt developers from a requirement to set aside land within communities for recreational uses.
A council bill, up for a vote today, would allow the county parks director to determine whether a developer can pay cash in lieu of preserving parkland within a neighborhood - removing an independent hearing officer from the decision-making process.
County officials say waivers are granted only in exceptional circumstances, and that the money is often used to build much-needed parks. But a lawyer who frequently represents community associations called the waivers a boon for developers.
"The developers love this waiver," said the lawyer, J. Carroll Holzer. "To me, it's just a way for the developers to get additional lots."
Benjamin Bronstein, an attorney for a developer who was denied a waiver for an 18-house project in Carney after strong community opposition to the project, said that he generally is in favor of open-space requirements. But, he said, there should be exceptions, especially for smaller subdivisions.
"It's difficult for a small homeowners association to maintain it," Bronstein said, referring to recreational spaces. In his client's project, he said, requiring open space does not make sense because the area set aside would be less than half an acre.
The open-space rules are intended to ensure that residents live close to playgrounds, parks and walking trails. For years, the county has, under some circumstances, waived the rules for a fee, with the money going toward the purchase of parkland or the expansion of existing parks.
But the county Board of Appeals recently ruled that county law, with few exceptions, does not allow waivers for projects of more than 20 homes or 5 acres, said Peter M. Zimmerman, the people's counsel for Baltimore County.
The ruling came in the case of a developer who wanted to build 60 to 70 houses on Liberty Road near the Baltimore City line, Zimmerman said. The zoning commissioner denied the waiver request, overriding the recommendation of the county recreation and parks director, Zimmerman said. The appeals board agreed with the zoning commissioner, he said.
The bill scheduled for a vote today would authorize the recreation and parks director "to waive open-space requirements in any situation," according to the county auditor's description of the proposal. All seven council members are sponsoring the bill.
County officials say waivers would be granted only in exceptional cases.
"You're not going to waive this in your typical suburban housing development," said Donald I. Mohler, a spokesman for County Executive James T. Smith Jr. "It's going to be used in very unusual parcels where there's not an opportunity to provide open space."
Some parcels, he said, include wetlands and forest that would not be suitable for recreational uses.
Since 1999, the county has required that developers set aside 1,000 square feet per housing unit for recreational space. Most of the space must be used for "active recreation," such as a playground or pavilion that can host group activities, while the rest can be used for "passive" recreation, such as a walking trail.
The rules do not apply to projects of three units or fewer.
Under county law, the parks director has the authority to grant waivers for residential projects smaller than 20 homes or 5 acres. But the law does not give him the authority to grant waivers for bigger projects, officials say.
In practice, waiver requests for larger projects have been taken up at public hearings by the zoning commissioner.
The county charges fees for the waivers based on the price of parkland, said Robert J. Barrett, the county's director of recreation and parks.
Last year, the county nearly doubled the fees to reflect an increase in land values, Barrett said. The fees vary according to zoning classification and now range from less than $2 per square foot to $9.76 per square foot.
Barrett estimated that in the year that ended in July, the county granted waivers for a total of 10 acres and collected about $760,000 in fees.
The money is put into an account that can only be used for recreational purposes, including playgrounds and parks.
But the money is not always used to preserve land. Recently, the county used a developer's fees to buy basketball hoops at a county school, Barrett said.
Barrett said the $10,000 that paid for the basketball hoops came from a developer who otherwise would have been required to set aside 0.18 acres in his project.
'"It's a postage-stamp-sized space which has no value to us," Barrett said. "That waiver fee is more important to put in the community center than it is to have the development provide the open space."
Councilman Vincent J. Gardina, a Towson-Perry Hall Democrat, said he supports waivers for projects in crowded areas.
"There are some projects, either in redevelopment areas like Towson or in small developments, where the county doesn't really want to have small parcels of land that are considered county open space," Gardina said. "We'd rather have the developer contribute money that would be used for acquisition of a larger parcel for recreation in the immediate area."
When a developer in Carney, a community just outside the Beltway, applied for a waiver for an 18-home project on 6 acres, he faced strong opposition from neighbors like Meg O'Hare, a community organizer. She said that granting waivers might make sense in some instances in which the money would be better used for other projects, but that she wants to preserve pockets in crowded areas.
"They pack houses right on top of one another, and we need to have a little bit more open space even within developments," she said.