Land Use & Zoning FAQs: How to Position a Property when a Master or Sector Plan is being Advanced

Question:  How do property owners best position their property when a new master plan or sector plan is scheduled to commence in their neighborhood?  

Answer:  A master or sector plan is a published document, approved by the County Council, which establishes recommendations on how a neighborhood should develop both in the near term and far into the future.  Once adopted, the plan’s recommendations are relied upon by local government agencies in reviewing any land use matters in the plan’s study area for approximately the next 20 to 30 years.  This long term horizon requires a landowner to strategically position a property to maximize the value, use, and future development potential.  

Every property located in Montgomery County falls within a master plan or sector plan boundary, with more than 60 separate master or sector plans that combine to cover the entire County.  Landowners should get involved early in the process for the opportunity to best position a property for the future.  Currently, the Planning Department is drafting new plans for the Bethesda Central Business District, the Lyttonsville area where two Purple Line stations are planned to be located, the Sandy Spring Rural Village corridor, the White Oak Science Gateway, and the Aspen Hill neighborhood.  The Planning Department will also begin work on the Westbard neighborhood shortly.  Each of these planning initiatives will directly affect the future development potential (and therefore property value) for most landowners and businesses located within these areas.

The process commences with landowners receiving notice from the Planning Department that a new plan will be adopted that will include their property or neighborhood.  Next, the Planning Department will host a series of “charrettes”, or meetings, where landowners, local businesses representatives, and design professionals from the public sector come together to create a vision for the future development pattern of the area.  This vision will include the relationship of various land uses to transportation facilities, infrastructure projects, and services and amenities.  The preliminary vision will also include the general locations for schools, libraries, and other public services, as well as the general locations within the neighborhood for more intense commercial or multifamily development in relation to the less dense townhouse or single-family living in the area.  It is advisable for landowners within a master or sector plan boundary to attend the early charrette meetings hosted by the Planning Department to engage in the community’s vision for the area and convey any future development desires for a particular property.  For example, if a landowner has a two-story commercially zoned property but thinks the land is suitable for a six-story mixed-use project with retail on the ground floor and multifamily on the upper levels, it is important for the landowner or his representative to raise the potential development idea during the visioning process so the Planning Department can consider the idea with the recommendations for the larger area.  

Once the vision for the area progresses to a certain point, the Planning Department will issue more specific land use and zoning recommendations for each property within the master or sector plan boundaries.  The zoning recommendations will set rigid density and height restrictions that cannot be waived once the master plan is adopted and its zoning categories are affixed to properties through a sectional map amendment.  Additionally, the Planning Department will frequently draft specific site layout recommendations for notable properties in the plan area.  While these site layout recommendations are theoretically illustrative and non-binding, layout recommendations contained in a plan can play a large role in the County’s development review process when a property is ultimately developed (even if development does not occur for many years after the master or sector plan is adopted).  During the period when the Planning Department is devising final land use and zoning recommendations, it is advisable that landowners meet individually with Planning Department staff members to specifically discuss individual property recommendations.  Staff of the Planning Department will generally work with landowners to help realize any future development goals for a property, even if development for the property is not anticipated for many years to come.  Using the previous example, the landowner would meet with Planning Department Staff at this point in the process to determine the exact zoning category and height that will allow the mixed-use multifamily project to progress.  

After the Planning Department’s final recommendations are complete, the Planning Board and County Council will hold public meetings to discuss the staff recommendations for the plan.  Landowners and their representatives have the opportunity to testify before both the Planning Board and County Council regarding the Planning Staff recommendations.  The latter hearing is a landowner’s final opportunity to position a property for a particular use, density, or height.  The Council has the final authority to approve the master or sector plan recommendations.  While the total time to adopt a master or sector plan can be up to two years after the process commences, it is advisable that the landowner or his legal counsel attend relevant meetings throughout the entire process to not miss the opportunity to best position land for the future.
Miller, Miller & Canby has represented landowners and businesses in master planning and land development processes for more than 65 years. Please feel free to contact the land use attorneys with Miller, Miller and Canby for any master plan or other zoning-related assistance.  For more information on the Land Use & Zoning practice at Miller, Miller & Canby, click here.

Land Use & Zoning FAQs: Special Exceptions and Conditional Uses

Question: What has happened to “special exceptions” in Montgomery County?  What is a “conditional use” approval and how does it differ from a “special exception”?  

Answer:  The terms “conditional use” and “special exception” are interchangeable – they both refer to the same type of land use approval.  A conditional use/ special exception is a use that has been legislatively predetermined to be conditionally compatible with land uses that are permitted by right in a particular zone provided a finding is made that certain statutory criteria (conditions) governing the use are satisfied.  In other words, the use is presumptively valid and is permissible as long as certain prescribed conditions are satisfied.  Of course, not all conditional uses are permitted in all zones and the conditions that must be satisfied vary depending upon the use and, in some cases, the zone.

Montgomery County has historically referred to this type of use as a “special exception”.  However, the term “special exception” has led to some misunderstanding among those unfamiliar with zoning law who have mistakenly assumed that a special exception use is a use out of the ordinary, otherwise prohibited in a particular zone, and is being approved under special circumstances as an exception to the law.  To paraphrase the former Hearing Examiner and Planning Board Chairman, the term “special exception” is a misnomer because the use is neither special, nor an exception.  Accordingly, as part of the recent rewrite of the Montgomery County Zoning Ordinance, the term “conditional use” has been substituted for the term “special exception” to better clarify that these uses are, indeed, permissible uses provided that certain prescribed conditions are satisfied.

There have also been other changes made to the Zoning Ordinance pertaining to conditional uses.  For instance, some of the prior special exception categories have been consolidated into new conditional use categories in an effort to provide consistency and to simplify the Ordinance; other uses have been converted to a new category – “Limited uses” – or have been altogether eliminated as in the case of long outdated land uses categories.  One important change is that the Hearing Examiner, not the Board of Appeals, will now become the final decision-maker in most conditional use cases.

Whatever the business use or the zone, it is important to determine in advance what, if any, zoning approvals will be required.  No business owner wants to receive a notice of violation directing that it close down business operations because it lacks the necessary zoning approvals. Some of the more typical conditional uses include: animal boarding and care, veterinary offices, landscape contractors, group living (e.g., independent living facilities for seniors or persons with disabilities; residential care facilities), private educational institutions, child daycare,major home-based businesses, and major home health practitioners’ offices, but this is by no means an exhaustive list.  Whether you intend to start a new business that requires conditional use approval, currently operate a special exception/conditional use that you intend to modify, or have discovered that your business operation is out of compliance with zoning regulations, obtaining legal advice is helpful in identifying zoning issues and working through the approval process.           

Miller, Miller & Canby has represented businesses and property owners for over 65 years. Please feel free to contact the land use attorneys with Miller, Miller and Canby for any conditional use or other zoning-related assistance.  For more information on the Land Use & Zoning practice at Miller, Miller & Canby, click here.

Land Use & Zoning FAQs: Is Obtaining a Variance a Big Deal?

Question:  I am anxious for new construction to begin on my home but I just learned from my builder that I am going to need a variance because the house is one (1’) foot too close to the side yard property line.  Is getting the variance going to be a big deal?

Answer:  Quite possibly “yes” -- getting a variance can be a “big deal”.  When the Montgomery County Department of Permitting Services reviews a building permit application, it reviews the plans for new construction to determine whether all development standards are satisfied, including yard requirements.   Every zone has different development standards which are listed in the Zoning Ordinance.   These development standards include minimum front, rear, and side yard requirements, among others.  If the setback from the street or from adjoining properties is less than the minimum setback for the zone in which the property is located, a variance from the strict application of the Zoning Ordinance is necessary.

Variances are granted by the Montgomery County Board of Appeals.  This involves a formal application to the Board and a public hearing.   As the applicant, you have a heavy burden of proof.  First, you must prove that there are exceptional conditions peculiar to your property (perhaps an unusual shape) that make it uniquely different from other properties and that, by virtue of its unique characteristics, the strict application of the regulations would result in “peculiar or unusual practical difficulties” or “exceptional or undue hardship” upon you as the property owner.  You must then prove that the variance you are requesting is the minimum variance that is necessary to overcome the exception conditions that make the variance necessary, that it can be granted without impairment to the master plan, and that it will not be detrimental to your neighbors’ use and enjoyment of their properties.  

The Board of Appeals is very strict in its application of the law.  Even if your neighbors are perfectly fine with your plans, you need the extra bedroom space for your growing family, or the interior floor plan simply works best if the new family room extends off one particular side of the house, those reasons, alone, are not sufficient justification for the Board to grant a variance.   A carefully constructed argument that focuses on the statutory provisions is essential to win your case.    

Miller, Miller & Canby has represented land owners and developers for over 65 years. Contact an MM&C zoning attorney if your property requires a variance.  For more information on the Land Use & Zoning practice at Miller, Miller & Canby, click here.