Reviewing the Review of Development Review

Reviewing the Review of Development Review

The workgroup charged with improving Montgomery County’s development review process has issued a list of recommended tweaks, including some helpful suggestions for streamlining – but the bigger news is what it didn’t do. 

Montgomery County Executive Marc Elrich made it clear that he wants certain authorities over land use transferred away from the Montgomery Planning Department (which reports to the County Council through the Planning Board) and given to the executive branch. 

Despite efforts by executive branch staff to make the case for moving responsibility for transportation and environment-related aspects of development review to the Montgomery County Departments of Transportation and Environmental Protection, respectively, the workgroup did not recommend major changes in the current division of authority. 

“I am disappointed by the consistent refusal to address larger systemic issues, which leaves some major issues unaddressed,” Elrich said in a press release.

Yes to Faster Plats and Broader Notice Rules, No to the People’s Counsel

Before assessing the outcome of this tug-of-war between the County Executive and the Planning Commission, here are some of the 22 recommendations our workgroup – Rodgers was among the official industry representatives on the 18-member group – approved, most by unanimous vote: 

  • Require the State Highway Administration’s (SHA) to review development applications within 30 days of submission, the same deadline that that applies to the Montgomery County Department of Transportation (MCDOT). The workgroup did not, however, recommend substantive changes to SHA’s authority to review development projects.
  • Authorize the Planning Board to approve plats conditionally pending issuance of the official resolution that contains the Board’s decision, saving up to three weeks.
  • Streamline the intake process to reduce the time between submittal and acceptance of the development applications by reducing the number of repeat submittals. This issue has been a bone of contention for many years, with the Planning Department arguing that developers (and their representatives) often submit applications that are incomplete and the land use bar claiming that Planning rejects submissions with minor errors.

The workgroup approved a handful of changes designed to expand notification procedures to reach a wider audience, but it declined to reconstitute the People’s Counsel, a government-funded advocate for members of the public in the planning process. Some civic activists cited Prince George’s County’s experience in support of the idea but the Planning Department pointed out that the Prince George’s People’s Counsel does not take a position on development cases.

Little Evidence of Redundancy, and No Evidence the Executive Branch Would Do Better

The closest the workgroup came to endorsing changes in who gets to make decisions about development projects was a recommendation for an update to the “lead agency memo,” an agreement between the Planning Department and executive branch designating which agency or department should have primary responsibility for each aspect of a project. 

Executive staff argued that the planning department’s role in reviewing environmental and transportation issues in the development process is redundant because executive departments have responsibility for the same topics. The administration is likely to keep pushing this idea during the lead agency discussion because it is central to their rationale for transferring these powers from Planning. 

The aspects of environmental regulation and transportation review where Planning is the lead agency, however, generally do not overlap with the areas covered by executive departments. For example, the Department of Permitting Services evaluates stormwater concept plans while the Planning Department administers the forest conservation law. Stormwater management is not wholly unrelated to tree cover, but these requirements are readily separable.  

In some cases, different departments – or even different staff within the same department – have conflicting views, but these conflicts usually involve the tension between unrelated goals. For instance, one Planning Department staffer may recommend construction of a sidewalk while another recommends against it in order to prevent the loss of trees in the right-of-way.  

When representatives from the executive branch produced a PowerPoint presentation using Planning Department data to show that review times often exceed statutory limits, Planning Department pointed out that the DPS and other executive branch departments do not publish statistics on their own performance. More tellingly, no one in the real estate business expressed support for giving the executive branch more power over development review, and several industry representatives spoke out against the idea.

The Tug-of-War Between Planning and the Executive Branch Ends in a Draw – for Now

The upshot of all this is that the workgroup recommendations could help to whittle away at the amount of time involved in getting projects approved. Delegate Lesly Lopez, who chaired the workgroup, deserves credit for avoiding several landmines and steering the project to a successful conclusion. The County Executive, on the other hand, has said he isn’t giving up on his preferred changes, and he has an ally in Sen. Ben Kramer, whose advocacy for shaking up the Planning Board and Department prompted the creation of the workgroup. 

People who build for a living have good reason to be wary. Shifting authority for transportation and environmental review to the executive branch would give them the power to influence traffic analysis and the application of impervious surface limits, forest conservation, and related rules, which are among the most common sources of friction during the development review process.

What Would Happen if the County Executive Got What He Wanted? 

The County Executive has repeatedly tried to compel the Planning Department and the County Council to adopt traffic rules that would have stopped planned development, e.g., the Bozzuto/Chevy Chase Land Company project next to the Purple Line station in Chevy Chase Lake. He previously proposed subcontracting all transportation analysis to a University of Maryland professor who shared his views on development and traffic, and he has argued that the traffic analysis performed by professional consultants documenting the availability of capacity to handle development in Bethesda, Westbard, Silver Spring and elsewhere cannot be trusted.  

As for environmental questions, during the Planning Board’s review of Pulte’s Creekside at Cabin Branch project, a proposal that slashed the number of homes originally planned in order to meet strict water quality requirements, the County Executive demanded further reductions, arguing that a six percent impervious surface limit should be applied separately to each parcel, despite language in the master plan calling for the limit to be applied as an average for the watershed as a whole as recommended by the Planning staff. If the executive branch had been in charge of environmental review, the application would have been denied. 

The development process is far too time consuming and complicated, and the workgroup produced some good recommendations that can make a difference, but some of the counterproductive ideas that were put aside for the moment are not going away. 

About the Author: Matthew Wessel, Senior Director of Applied Knowledge, has over 20 years of land planning and environmental consulting experience at Rodgers Consulting, Inc., a land use planning, engineering, and consulting firm with offices in Germantown & Largo, focused on serving the private land development industry.