BBS&G Attorneys - Bregman, Berbert, Schwartz, & Gilday, LLC | Change Is Coming For Montgomery County Common Open Space Requirements
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Change Is Coming For Montgomery County Common Open Space Requirements

09/15/2016
               The Montgomery County Planning Board’s deliberations in a recent, hard-won preliminary and site plan approval give strong indications that the Planning Board is likely to propose a change in how the county’s Zoning Code defines “common open space” that would either limit the extent of stormwater management in common open space or exclude it entirely.  In the meantime, developers can expect the Planning Board to resist stormwater management in common open space, and to be looking for “usable” open space even in small, infill projects.
                The case was a 16-unit townhouse development called “Creekside” by NovaHabitat, a Chevy Chase development company run by Ed Novak and Damon Orobona, which I represented before the Planning Board.  The site is tight, 1.4 acres nestled between the Connecticut Avenue ramp for the Beltway and Rock Creek Park, and is encumbered by a small area of flood plain as well as on-site forest conservation requirements.  The property fronts on Kensington Parkway, across the street from a State Highway Administration maintenance/staging facility, and has no immediate residential neighbors. 
                NovaHabitat first obtained a rezoning of the property from R-90 to TF-12.  The rezoning proceeded smoothly, with a unanimous recommendation of approval from the Planning Board and a non-controversial rezoning hearing and County Council approval. 
                The site plan application process proved more complicated.  The site plan, reproduced below with open space details, shows two sticks of townhouses on the north side of a private street, with a stormwater management area between them, and one stick of townhouses on the south side of the street.  The southeast corner of the site has a common open space area with mailboxes for residents, a pergola, and a landscaped seating area, as well as a turnaround area for emergency vehicles.  Additional common open space areas are located at the west end of the site, on either side of the private street. 
                The principal site plan controversy arose because a significant amount of the open space at the west end of the site will be occupied by bioretention areas as part of the required stormwater management.  The larger of the two open space areas also will have a bench for seating, and a bike shelter/kiosk that NovaHabitat offered as an amenity not just for residents of the new development, but for members of the public entering the adjacent Rock Creek Park.  The park can be reached in a very short distance using the sidewalk in front of the site, which NovaHabitat will improve as part of its preliminary plan obligations.  The kiosk will have park maps and historical information, as well as a sitting/rest area for bikers or pedestrians waiting for public transportation, and a bike repair station. 





              Members of the Planning Department staff objected to the configuration of the common open space at the west end of the site because it was not “usable,” i.e., while one could enjoy the aesthetics of the planted bioretention facilities, there was no place on the site to kick a ball around.  Considerable discussion took place between the staff and NovaHabitat, and again before the Planning Board, about the role of common open space areas and the statutory requirements related to them.  NovaHabitat’s principals and I, as their zoning counsel, noted that the Zoning Code specifically lists “non-structural, natural, and ESD stormwater management facility” as one of the features that counts as common open space.  See Code Section 6.3.3.  We also emphasized that the site is surrounded by one of the largest parks in the region, and provided photographs of a variety of open space and recreational areas in the park within a short walk from the Creekside site.  Planning Staff and, at the hearing, Planning Board members, objected strongly to the Code provision at issue.  Their general sentiment was that stormwater management should not be permitted in common open space – even if it consists of aesthetically appealing, natural bioretention facilities – because any common open space occupied by stormwater management would be accessible only visually, not in an active sense. 
                In the end, the Planning Board approved the Creekside preliminary plan and site plan on a 3-to-1 vote.  The dissenting member declined to support a project with stormwater management in some of the open space areas.  The rest of the Board members voted to approve citing the two factors the NovaHabitat team had stressed:  (1) the Zoning Code explicitly permits natural and ESD stormwater management in common open space; and (2) this particular site is surrounded by outstanding recreational opportunities in Rock Creek Park.  If the project had not been in such a recreation-rich, natural setting, it is possible that, despite the current Zoning Code regulations, the Planning Board would have required NovaHabitat to reduce the number of lots, or make the units narrower, to make room for more common open space separate from the required stormwater management.  Either of these changes would have seriously affected the project’s financial viability. 
                Even while approving the site plan, the Planning Board did not find that the application met all the requirements of the Zoning Code.  Acting on staff’s recommendation, the Board approved the applications under the “Alternative Compliance” provision in Section 6.8.1, which allows the Board to approve an alternative method of compliance with any requirement of [Divisions 6.1 and 6.3 through 6.6.] if it determines that there is a unique site or use characteristic or development constraint that precludes safe or efficient development under the requirements of the Code.  The staff report recommended this approach to avoid setting a precedent for other infill properties that don’t have the benefit of being next to a major natural feature like Rock Creek Park.  
Lessons Learned
                The Planning Board expressed a clear desire to have its staff prepare a Zoning Code amendment that would either limit the extent to which common open space may include stormwater management, or exclude stormwater management entirely.  It is, of course, hard to say when such an amendment will fit into the Planning Department’s work program.  In the meantime, developers can expect the planning staff and the Planning Board to scrutinize common open space very closely to see that it meets the definition stated in the Zoning Code: “ . . . an outdoor area that is intended for recreational use by residents and their visitors.”  Code Section 6.3.5.A.2.  Based on NovaHabitat’s experience in the Creekside case, passive recreational opportunities will not be enough; the Planning Board and its staff will be looking for active recreational space in every project.