Increased attention is being paid to how the U.S. Supreme Court uses its shadow docket to make decisions without public argument. One Montgomery County equivalent is how the Planning Board uses its consent agenda to evade public hearing requirements in apparent violation of the Code.
The Montgomery County Zoning Code requires public notice along with “the same hearing procedures” as for the original site plan when there is a major amendment to a site plan. The code defines a “major amendment” as “any request to increase density or height; change a use; decrease open space; deviate from a binding element or a condition of approval; or alter a basic element of the plan.” (See Section 7.3.4. “J. Amendments.”)
Under the leadership of Planning Board Chair Casey Anderson, the Montgomery County Planning Board has been declaring changes that appear to fit the legal definition of “major amendment” as minor amendments and then approving them on its consent agenda, which excludes opportunities for public comment. Unless an especially perspicacious and tenacious resident requests its move to the regular agenda, the amendment will almost certainly sail through with the blessing of the Planning Staff as a “minor change.”
The resulting Planning Board resolutions approving the amendments nonetheless often falsely state that they did hold a public hearing despite having been dealt with on the consent agenda. These resolutions all had to go through the M-NCPPC Legal Department and were signed by Planning Board Chair Casey Anderson.
I imagine that these matters were placed on the consent agenda to keep the process moving or to ease the passage of potentially controversial items favored by the developer. But these goals don’t allow the Planning Board to evade the commands of the Zoning Code.
If these items are truly not controversial or on the border between minor and major amendments, why not just place them on the regular agenda? If no one shows up to testify, the Planning Board can move through just as speedily. And why lie about holding public hearings in the resolution if they aren’t legally required?
Where is this Happening?
Examples of affected site plans placed on the consent agenda despite involving changes that seemingly “deviate from a binding element or a condition of approval” or “conditions of use” or alter building footprints in a way that impact open spaces as well as density have occurred all over Montgomery.
Montgomery Village Center
Request to modify condition no. 4 to reflect the revised/approved stormwater management concept; reduce building footprint for the main retail building; minor modifications to the three retail pad sites; shared-use path will be revised to avoid existing streetlights; and slight modification of the property lines for the condos. (Plan Amendment #82018002A, April 25, 2019 Consent Agenda.)
Randolph Farms
Request to move MPDU designation from Lot 109 to Lot 46; revise Lot 109 from 16′ to 20′ wide; revise Lots 45-47 from 4/3-story units, to 3-story units and remove retaining walls/stairs in front of units; revisions to the central recreation area; and other minor alterations. (Plan Amendment #82017002A, October 3, 2019 Consent Agenda.)
Chevy Chase Lake Block B
Request to reduce required onsite parking, eliminate garage access on Chevy Chase Lake Terrace, revise the Manor Rd./Connecticut Ave. intersection improvements, make changes to the secondary driveway at the Manor Rd. intersection, modify bio-retention planters, relocate transformers, and make associated modification to the site design of sidewalks, landscaping and lighting. (Plan Amendment #82016019B, October 10, 2019 Consent Agenda.)
850 Sligo Avenue
Request to remove the age-restricted use from the multifamily portion of the project. (Plan Amendment #82019005A, October 10, 2019 Consent Agenda.)
Dowden Station
Amendment to delay the construction trigger from the 14th to the 31st building permit for the multi-age playground area located in the northern portion of the property. (Plan Amendment #82016006C, April 30, 2020 Consent Agenda.)
Fairchild Apartments
Request to modify the approved setbacks as well as the location of outdoor grills. (Plan Amendment #82018022B, December 17, 2020 Consent Agenda.)
Poplar Grove
Amend condition 15 to clarify that rough grading, stockpiling, sediment and erosion control, re-grading for stockpiling and interim uses are allowed without amending the Site Plan or entering into a Surety and Maintenance Agreement for the Site Plan. (Plan Amendment #82019006A, January 21, 2021 Consent Agenda.)
Mt. Prospect (Hanson Farm)
Request to modify conditions for development triggers and modifications conditions requested regarding stormwater, landscaping, recreation area, lighting, limits of disturbance, and forest conservation. (Plan Amendment #82017016B, January 27, 2022 Consent Agenda.)
Resolutions Incorrectly Stating Public Hearings were Held
These Planning Board resolutions giving approval appear for requested changes appear to state falsely that public hearings were held:
Chevy Chase Lake Block B
WHEREAS, on October 10, 2019, the Planning Board held a public hearing on the Application at which it heard testimony and received evidence submitted for the record on the Application.
850 Sligo Avenue
WHEREAS, on October 10, 2019, the Planning Board held a public hearing on the Application at which it heard testimony and received evidence submitted for the record on the Application.
Fairchild Apartments
WHEREAS, on December 17, 2020, the Planning Board held a public hearing on the Application at which it received evidence submitted for the record on the Application.
Poplar Grove
WHEREAS, on January 21, 2021, the Planning Board held a public hearing on the Application, and at the hearing at the Planning Board heard testimony and received evidence submitted for the record on the Application.
