Land Use Coronavirus Alert: Virtual Hearings, Revised Application Procedures and Legislative Update

Please note: All dates and updates in this newsletter are accurate as of Wednesday, April 1, 2020.

As we begin to settle in to the third week of closures, people are starting to acclimate to the virtual world.

As last week’s newsletter discussed, several agencies and departments have already implemented new policies to accommodate remote hearings and meetings. So far, these remote meetings and hearings have all appeared to run smoothly and efficiently. The departments and agencies have been quick to adapt and make necessary changes to accommodate these virtual formats.

Montgomery County

Montgomery County Planning Board — March 26 Virtual Hearing: M-NCPPC has demonstrated over the past few weeks that they are very well equipped to handle virtual communications and the Montgomery County Planning Board is no exception. Attorneys in our Land Use practice had two virtual Planning Board hearings on Thursday and both went exceedingly well from a technological standpoint (as well as substantively, with both cases being approved). Several minutes before each hearing the Applicant’s team was invited into a virtual anteroom and prepped by M-NCPPC IT Staff. As is the case during any “ordinary” Planning Board hearing, Staff first presented its report, which was visible on the screen. Then the Applicant had an opportunity to present, using visual aids, and answer questions. Thereafter, the Planning Board deliberated and voted on the case. To ensure that these virtual hearings run smoothly, we recommended providing a concise presentation and limiting the number of speakers. At the same time, do not shy away from using a PowerPoint or other visuals, which can be shared easily with the Planning Board and are effective in making the case. The Planning Board’s recent hearing demonstrates that it is “business as usual” and we give M-NCPPC a lot of credit for their foresight and advanced planning.
By all accounts, the Montgomery County Development Review Committee’s first meeting was a success. The Planning Department is working to make tweaks to the format, including allowing additional time for each matter, to ensure that applicants have sufficient time for Q&A.
The Montgomery County Council met again yesterday, on March 31. A portion of the councilmembers were present in the chamber, while some participated remotely to adhere to social distancing requirements. There was no opportunity for public participation at the meeting, although Council Staff continues to explore virtual platforms for public participation at future hearings.

Workarounds to Ensure the Development Pipeline Can Keep Flowing

To ensure development projects can continue to move forward, the Planning Departments for Montgomery and Prince George’s Counties are actively working to find ways to overcome some of the current roadblocks.

Pre-Submission Community Meetings: Pre-submission community meetings are a necessary precursor for most development applications in the County. Given the current restrictions on in-person gatherings, the Montgomery County Planning Department recently announced new procedures through which pre-submission community meetings can be held remotely. This will require additional work up-front, but is an important change to ensure development projects can move forward. For specific details regarding the noticing and procedures for conducting these virtual meetings, please feel free to reach out to one of our Land Use attorneys.

Traffic Studies: As you are likely aware, traffic counts are currently not allowed to be taken during periods of school closure. Schools are currently closed in Maryland through April 24, and there is a possibility that schools may be closed for the remainder of the academic year. Recognizing the unique impacts of this current situation, both Montgomery and Prince George’s Counties realize that they must develop new policies and procedures for traffic studies.

Prince George’s County recently released modified procedures for addressing traffic counts during the COVID-19 Pandemic. Although Prince George’s County will not accept any counts collected between March 16 and September 7, 2020, they are allowing developments to use existing counts collected within the past year, or counts taken between one to three year prior to application acceptance if a growth factor is applied. Information on this temporary policy is outlined in the March 31, 2020 Memorandum that can be found here.

Montgomery County is similarly exploring different approaches that will reasonably account for future traffic impacts of new developments, while ensuring development applications can advance through the necessary entitlement processes. One solution that has been floated is to simply delay traffic studies to a later stage of the development process. However, nothing has been confirmed yet. Montgomery County has been coordinating their approach with Prince George’s County and additional guidance is expected to be released soon.

Legislative Updates

Validity Periods for Approvals: In light of the current Coronavirus crisis, Lerch Early’s Land Use group has begun thinking about the potential need to extend the length of validity periods for all land use entitlements including preliminary plans, site plans, sketch plans, adequate public facility determinations, and building permit approvals. By way of background, the County Council provided automatic 2-year extensions in 2009 when the real estate market crashed, and renewed these extensions in 2011, 2013, and 2015.

We recognize that once the pandemic threat is removed, it could possibly take significant time for the economy to come back to a point where projects are moving forward at the pace we would like. As such, to provide necessary flexibility for approved (but un-built) and pending projects, the Land Use attorneys at Lerch Early are proactively thinking about the need for automatic extensions.

Steve Robins and Bill Kominers led Lerch Early’s efforts for the previous automatic extensions, and are very focused on the present situation. Please feel free to contact Steve, Bill or any of our Land Use attorneys if you are interested in this matter.

Subdivision Staging Policy: The Subdivisions Staging Policy is reviewed on a four-year cycle. The current update is underway and must be approved by the County Council by November 15, 2020. As of now, the Planning Department does not anticipate any delays in this timing and is working to release an initial draft of the SSP in May. On behalf of our clients, our Land Use attorneys are already working with Staff to advocate for changes to several important components of the SSP, including school capacity and development impact taxes. Stay tuned for a future newsletter for more specifics. In the meantime, feel free to reach out to one of us to discuss this important legislation.

On behalf of our clients, we remain in direct contact with pertinent people in each of these agencies and departments to minimize disruptions to existing and proposed projects, and continue to advance matters with them, albeit often at a slower than normal pace. We will keep you informed of operational changes, as they continue to develop and evolve over the coming weeks.

Key Dates, Notices & Insights

Attorney Chris Hatcher was quoted in a Bisnow article about developers moving ahead with projects in Prince George’s County despite many localities moving their services online. You can read it at “Land Use Attorney Chris Hatcher Quoted in Bisnow on Impact of Coronavirus on Permitting.”
Attorney Stacy Silber moderated a webinar discussion with Montgomery County executives on Development Review During COVID-19 Pandemic.

To submit a request or suggestion on legislation or any other topics you want covered in this space, please reach out to your Lerch Early Land Use attorney by going to https://www.lerchearly.com/service/land-use-zoning/ and clicking on the “Find an Attorney” button.

Lerch Early is monitoring the COVID-19 coronavirus and its impact on our clients and communities. As part of this effort, we’ve created the Lerch Early COVID-19 Resource Center to aggregate not only our original content but to share other links that may be important to you and/or your business. Check it out here: https://www.lerchearly.com/news/covid-19-coronavirus-resource-center/.