County Council Considers Bill to Tighten Development Within Watersheds

The future of development in Howard County has long been hotly debated, especially in the wake of the disastrous Ellicott City floods of 2017 and 2018, so it is fitting that 2019 has begun with the proposal of a controversial new bill currently under consideration by the Howard County Council.

A bill introduced by incoming Council Member Liz Walsh of District 1, who campaigned for the County Council on a platform advocating in part for stronger land-use restrictions to protect and preserve historic streetscapes and watersheds, is being watched with great interest by developers, environmentalists, and others who follow land-use issues in Howard County. Council Bill 4 would remove the “necessary disturbance exemption” from the County regulations governing development near wetlands, streams, and steep slopes. As currently written, the County’s Subdivision Regulations protect these areas by prohibiting property owners and developers from conducting any construction or other development activities within them. Prohibited activities include grading, removing vegetation, and paving, among other things.  However, the County’s Department of Planning and Zoning (“DPZ”) can administratively waive this requirement as long as (1) the developer can provide a detailed justification demonstrating that the disturbance is necessary for the construction of public or private roads, driveways, utilities, trails, pathways, or stormwater management facilities which are essential for reasonable development of the property, (2) the design minimizes disturbance, and (3) there is no other reasonable alternative available.

Walsh and other advocates of CB-4 argue that removing the necessary disturbance exception in the Subdivision Regulations is necessary to protect watersheds and other sensitive areas by limiting the exercise of unfettered administrative discretion in granting exceptions and by preventing further development within watersheds which could lead to more flooding like the disastrous Ellicott City floods. On the other hand, opponents of the bill point out that certain disturbances to these protected areas are necessary to develop adjacent lands, such as roads and utilities that need to cross a stream or sewer lines that are typically installed within stream buffers to take advantage of gravity. They argue that removing the exception would unnecessarily delay development and create an additional burden for developers, without any corresponding benefit. Opponents also claim that there is no evidence that DPZ has abused its discretion in granting administrative waivers, and that the exception provides DPZ and developers with an efficient process to find creative solutions for solving issues while minimizing environmental damage.

If the Council adopts CB-4, developers will still be able to request permission to create necessary disturbances in watersheds, but would have to file an alternative compliance application instead of seeking an administrative exception.  The alternative compliance process is lengthier and more cumbersome for developers, and opponents of the bill claim that it would yield the same result as the process under the current Subdivision Regulations, resulting in a waste of County resources. 

The County Council has discussed CB-4 at a legislative work session on January 28, 2019, and amendments have been proposed by several Council members that would retain the necessary disturbance exception but would require developers to request the exception in writing, and require DPZ to report regularly on each exemption request. With the passionate arguments made by both sides, it will be interesting to see how the Council decides to approach this issue.

For more information about this article or any other Real Estate Law matter, please contact an attorney in our Real Estate Law practice area.