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Zoning Ordinance Rewrite Marches On

As a clean-up and modernization effort begun over three years ago, the process of rewriting the Montgomery County Zoning Ordinance started slowly, but has expanded in scope and accelerated into a sprint to the finish line. The Rewrite is a comprehensive effort that plans to replace the entire Zoning Ordinance as it is known today. The companion District Map Amendment will implement the Rewrite through a comprehensive rezoning of the entire County and will replace all of the current zoning maps. Property owners are advised to check the implications before time runs out. The Rewrite attempts to modernize the existing zoning ordinance, with the goals of making the document better organized, simpler, more predictable, and “user friendly,” as well as being substantively more appropriate and consistent with the urbanized character and development needs of a mature Montgomery County.

To accomplish these goals, the Rewrite makes changes in substantive content and process, adds graphic illustrations, and even changes the physical format of the ordinance. Among the major changes, the Rewrite generally:

  1. Converts most non-residential zoning classifications into new zones;
  2. Consolidates many existing specific uses into fewer, more general categories, as well as creating new uses;
  3. Changes the definitions of many existing terms, eliminates or replaces definitions, and adds many new definitions;
  4. Establishes a series of “building types,” restricting which types can be constructed in any given zone;
  5. Establishes new development standards for new zones, including different standards in the same zone based upon the different building types;
  6. Creates new “limited uses” with different standards based upon the zoning and use of adjacent and confronting properties;
  7. Alters development processes; and
  8. Establishes the conditions under which existing uses and structures may continue or expand without being subject to the new standards and requirements.

The Rewrite organizes the new ordinance by function, rather than by zoning classification and type of use as in the current ordinance. Users are intended to progress sequentially from Article 1, deriving the needed information and making decisions/choices as they go.

The Rewrite eliminates essentially all footnotes found in the existing code. The content of these footnotes generally is incorporated into the development standards for each individual use. The Rewrite incorporates graphic illustrations to describe physical standards for development (such as frontage, width, setbacks, yards, height, lot area and coverage, etc.).

Three Types of Uses and Fewer Zones in Rewrite

Three types of uses are established in the Rewrite: Permitted, Limited, and Conditional. For every zone, every use listed in the combined use table is shown either as one of these three use types, or as prohibited. The Conditional Use is the equivalent of today’s special exception, requiring discretionary approval by the Board of Appeals or Hearing Examiner. The Limited Use is a new concept, representing a use that is normally permitted but, based upon locational criteria relative to adjoining and confronting zones and uses, may need to satisfy certain specific objective standards.

There are fewer zones in the Rewrite. This is accomplished by collapsing many specific land uses into more general categories (for example, eliminating hardware stores, jewelry stores, and florists, in return for the more general “retail/service establishment” that is then broken out by sizes).

The names of the one-family residential zones have not been changed and many development standards are intended to remain the same. But property owners should check the development standards closely. Many standards have been rearranged or converted into a chart tied to a graphic format that is supposed to be clearer, but may take some getting used to. Notwithstanding the continuity of many residential zone names, many uses within those zones have changed, or the scope and standards of the uses changed, usually in ways that may be significant and must be examined carefully.

Individual property owners are urged to investigate the new zone that will apply to a property and consider the implications for existing uses and plans, and for future potential. There is an interactive map, accessible through the Planning Board’s website, where individual addresses can be used to see current and proposed zoning designations.

The Rewrite process is on a rapid path of review with the PHED Committee. Now that the PHED Committee has completed its work sessions, the Council Staff will complete its revised version of the ZTA showing all the changes that have been made. Staff will also make a wide variety of “plain English” revisions. To obtain comments on the revised draft as, two additional nights of hearings have been scheduled with the Council (Nov. 12 and 14). After those hearings, the PHED Committee will hold additional work sessions in early December, before transmitting the ZTA to the full Council. The Council itself may then hold work sessions on the matter. The original schedule was to have had the Rewrite and District Map Amendment adopted by the end of 2013, but will now slip into 2014.

To paraphrase the words of the classic typewriter test as they apply to the potential effects of the Zoning Rewrite: “Now is the time for all good owners to come to the aid of their property.” This article can barely begin to scratch the surface of the changes brought by the Rewrite. The devil is, as usual, found in the details, and in this case there are over 330 pages of details in which to hide. Since the last Rewrite was completed more than 30 years ago, land owners must assume that this current Rewrite will last an equal time, and therefore evaluate its implications accordingly.

Bill Kominers is a land use attorney at Lerch, Early & Brewer in Bethesda, Maryland who navigates governmental processes to help companies use their properties. He serves as a member of Montgomery County’s Zoning Advisory Panel. For questions about the Zoning Ordinance Rewrite, contact Bill at (301) 841-3829 or wkominers@lerchearly.com.

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