The latest news, articles, and events from the attorneys at Lerch, Early & Brewer.

Lerch Early Insights

COVID-19 Resource Center

Lerch Early is monitoring COVID-19 and its impact on our clients and communities.

As part of this effort, we're constantly working on fresh content to both inform and to meet your needs. Please check out our

COVID-19 Resource Center


Montgomery County Council to Review Subdivision Staging Policy this Fall

Real Estate Law Update

This fall, the Montgomery County Council will revise the Subdivision Staging Policy (SSP), formerly known as the Policy Element of the Annual Growth Policy. The County's approach to managing growth consistently has focused on transportation and school capacity. The SSP is designed to coordinate the funding and timely delivery of new or upgraded public facilities for existing and future development. One of the purposes of the SSP is to ensure that public facilities generally keep pace with development in the County.

The SSP addresses a host of items, including but not limited to testing methodologies for school capacity and transportation. Currently, the SSP is applied to development at the time of subdivision through the application of the School Capacity Test, the Policy Area Mobility Review (PAMR) test, and the Local Area Transportation Review (LATR) test.  

School Test for Capacity

The School Test reviews the available capacity of each school cluster at all levels – elementary, middle and high school. The review occurs annually to make the determination of school adequacy; however, capacity is measured throughout the year by the Staff of the Maryland-National Capital Park and Planning Commission (M-NCPPC) to make certain that clusters do not reach an overcapacity situation.

Under the School Test, a school is considered "adequate" if the projected student population will not exceed 105% of the school's maximum capacity within a five year horizon. If a school will exceed this 105% maximum capacity threshold within the subsequent five year period, a developer must make a school facilities payment (in addition to the development impact tax payment for public school improvements that is generally imposed regardless of capacity levels). The school facilities payment is required for every school level within a particular cluster that exceeds capacity between the range of 105% and 120%.

If a school, at any grade level, is projected to exceed 120% of student capacity, the entire school cluster is placed into moratorium. The cluster must then remain in moratorium until additional capacity is made available through the construction of new facilities, or until a decrease in student population occurs. In recent years, when faced with the prospect of moratorium, the County Council has been willing to swiftly approve capital improvement projects ("CIP") designed to meet the needs of the particular school cluster with respect to future overcrowding. These CIP projects generally result in the cluster avoiding the imposition of a long-term moratorium.

Presently, there are no changes proposed to the School Test in the new SSP.

Transportation Review

Until now, transportation review has been based on two different tests: (1) PAMR, which addresses the transportation system within a broad geographic area, and (2) LATR, which examines transportation capacity in the specific area in which development is proposed and where its impacts would be directly felt. This year, however, M-NCPPC will present the County Council with a substitute test for the PAMR model called Transportation Policy Area Review (TPAR). Unlike PAMR, TPAR is proposed to assess transit adequacy in addition to roadway adequacy within three different types of policy areas: Urban, Suburban, and Rural. The County’s total of 21 policy areas are divided into these three policy types. The transit adequacy assessment proposes to review the adequacy of bus and transit service based on coverage, peak headway (time between buses), and span (duration) of service throughout the day. Levels of inadequacies for transit are established throughout the County.

TPAR as Part of Roadway Adequacy Assessment

TPAR purports to refine the review to look at specific roadways whose congestion has an impact on a specific area’s roadway congestion. This is integrated with transit availability to look at the overall mobility within an area, in the TPAR review. Ultimately, the test will result in a per trip payment based on the infrastructure needs of various areas of the County in relation to the location of the project that is being tested. Generally speaking, TPAR payments are expected to be lower in areas of the County with greater levels of infrastructure/services, like those in Metro Station Policy Areas. The Council will be addressing the use of TPAR as part of its review of the SSP.

The Montgomery County Planning Board and the Council also will be reviewing the LATR test as part of the SSP review. Presently, LATR uses the Critical Lane Volume (CLV) measurement as a benchmark for the adequacy of road capacity at intersection locations within the County. There will be discussions of introducing other methodologies to supplement the CLV as part of the LATR test.

In connection with its evaluation of the SSP, M-NCPPC Staff also is evaluating the possibility of allowing transfers of existing adequate public facilities approvals, prior to expiration, from one development to another. Staff still is reviewing the practicality of allowing such transfers and to what extent such transfers could be applied throughout the County, as well as the methodology and process that would be required.

Until 2009, the County reviewed and adopted the Growth Policy every two years. The SSP instead will be updated every four years. There will be much to focus on this fall before the Montgomery County Council. Besides the SSP, the Council also will be commencing its review of the Planning Board's efforts to rewrite the Zoning Ordinance, as well as several draft Master/Sector Plans. Stay tuned for further updates!

Steven Robins is a land use attorney at Lerch, Early & Brewer, where he chairs the Land Use & Zoning group. He represents prominent local, regional and national developers, contractors, lenders and commercial property owners and has been involved in many high-visibility projects in Montgomery County. For more on the Subdivision Staging Policy, contact Steve at (301) 657-0747 or



This content is for your information only and is not intended to constitute legal advice. Please consult your attorney before acting on any information contained here.


Email Confirmation

Thank you for your interest in Lerch, Early & Brewer. Please be aware that unsolicited e-mails and information sent to Lerch Early though our web site will not be considered confidential, may not receive a response, and do not create an attorney-client relationship with Lerch Early Brewer. If you are not already a client of Lerch Early, do not include anything confidential or secret in this e-mail. Also, please note that our attorneys do not seek to practice law in any jurisdiction in which they are not authorized to do so.

By clicking "OK" you acknowledge that, unless you are a current client, Lerch Early does not have any obligation to maintain the confidentiality of any information you send us.