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Joint session with BOCC, planning scheduled for Oct. 30

By AMANDA HARRISON

Staff writer

Residents will soon have the opportunity to delve into the complicated Sustainable Growth and Preservation Act, or septic bill, with which county staff has been diligently working since May.

During a special Calvert County Planning Commission meeting Wednesday night, the proposed text amendments and proposed tier maps were unanimously approved to be sent to a public hearing. The hearing, hosted by the commission and the Calvert County Board of County Commissioners, is scheduled for Oct. 30.

The act, which was passed by the Maryland General Assembly during its 2012 session, aims to “limit the disproportionate impacts of large subdivisions on septic systems on our farm and forest land, streams, rivers and Chesapeake and Coastal bays,” the bill’s executive summary states. This law only applies to residential subdivisions, not commercial, industrial or other non-residential subdivision.

In order to accomplish this, the bill requires each local jurisdiction to put its land in four growth tiers that determine where major and minor residential subdivision may be located and what type of sewerage system will serve them.

According to a presentation from Chuck Johnston, the director of the Department of Community Planning and Building, during a BOCC work session Tuesday, tier 1 areas are currently served by sewerage systems and must be in a growth area, such as a town center or in the municipalities of Chesapeake Beach or North Beach.

All subdivisions must be on public sewerage in tier 1, which means “basically any type” of public sewerage based on the definition in the act, Mary Beth Cook, deputy director and zoning officer with the department, told the planning commission Wednesday night.

Johnston explained during the presentation that there is a tier 1A, which is land not in a growth area but served by a sewerage system. He told the BOCC the state realized there was a “crack” in the bill that didn’t take this type of land into account.

Tier 2 areas are planned to be served by sewerage systems and must be in a growth area. According to the presentation, major subdivisions in tier 2 must be on public sewerage systems and minor can be on either public sewerage systems or septic systems.

Commissioner Susan Shaw (R) said Tuesday afternoon one of the effects this will have is that “if somebody wants to develop in a minor town center, they will have to put in public sewer.”

Tier 3 areas, which are planned for future growth on septic systems, must not be dominated by agriculture or forest land, and must not be planned or zoned for land, agricultural or resource protection. These areas must also be planned or zoned for large lot development.

In tier 3, major and minor subdivisions are allowed only on septic systems; however, major subdivisions are subject to nutrient offset requirements — which are coming down from the state and are currently in draft stages to be proposed by the end of the year.

Tier 4 areas are areas planned for preservation. These areas must: be planned or zoned for land, agricultural or resource protection, preservation or conservation; be an area dominated by agriculture, forests or other natural areas; be a Rural Legacy area, a Priority Preservation area or land subject to state or local conservation, preservation covenant, restriction or easement; and must not be planned for public sewerage.

There is an exemption in tier 4, which the Maryland Department of Planning grants to allow major subdivisions on septic systems in tier 4 areas. The BOCC and the Planning Commission both asked Department of Community Planning and Building staff if the county wants to pursue the exemption.

But, in order to be granted the exemption, the county must prove that the density in tier 4 is less than one unit per 20 acres and prove that the zoning regulations in the tier will retain its rural character. The question BOCC and planning commission members had was how to prove, or disprove, how the tier will retain its rural character. Staff, too, was curious because there is no definition or criteria from MDP.

Before the county can receive the exemption — which is not guaranteed even if the county does meet the one unit per 20 acre density — the tier maps must be adopted, which also means that no major subdivisions can be approved until the tier maps are adopted.

As subdivisions come along on a first-come-first-serve basis, the county must keep a record of development in tier 4, and when the density exceeds the one per 20 ratio — though it cannot be predicted when that will occur — the exemption will expire.

Olivia Vidotto, a county planner, told the planning commission, “In the next six months to a year, I see a lot of the larger parcels coming in.” According to county staff, Cecil and Montgomery counties are the only other counties looking at the exemption.

Planning Commission Vice Chairman Michael Phipps said, after looking at the processes staff has gone through to try and obtain the exemption, “Now I know why 23 other counties opted not to do the exemption.”

Commissioner Evan Slaughenhoupt (R) said to him it seems like the exemption “is the holy grail” because it “preserves as much flexibility as possible for these landowners” in tier 4.

But Johnston said, “Well maybe we don’t want it because it’s only a short-term fix.”

Commissioners’ President Gerald W. “Jerry” Clark (R) pointed out that even after the exemption expires, by changing the definitions of major and minor subdivisions in the Calvert County Zoning Ordinance, “there’s always potential for seven lots” in tier 4 as a minor subdivision.

Staff explained several ways they calculated the density in tier 4, but Johnston said, “we’ve been grappling with the line between tier 3 and 4.”

Shaw said, “One of the things not thought out well here [by the state] is that you’re going to have tier 3 and 4 all mixed up,” because the zoning is by lot and not by area.

The final tier 4 density calculation, which does not include lots of less than 5 acres in the farm and forest district as of 2003 and includes parcels of 100 or more acres or contiguous parcels of 50 or more acres, is one unit per 26.9 acres.

According to staff, that density equates to 900 units in tier 4 before the exemption would expire, if granted.

However, staff explained to both the BOCC and the planning commission that MDP has not given the criteria for the exemption yet and that the calculation could change, or MDP “may not like the way we calculated it,” and won’t grant the county the exemption.

Staff did indicate to the planning commission that, if the county decides not to pursue the exemption but would still like to allow major subdivisions in tier 4, there is a transferrable development rights program in the act that the county would have to adopt in full. “We can’t pick and choose,” said Yolanda Hipski, the planning commission administrator.

“Now that’s what you call being stuck between a rock and hard place,” said Planning Commissioner Robert Reed.

According to the county’s current TDR regulations, there is a possibility of one unit per 10-acre density ratio allowed in tier 4, rather than the one per 20 ratio.

“That will raise a red flag with the state,” Johnston told the BOCC, when the county presents its tier maps and exemption request to MDP.

“My bottom line concerns with this remains the viability of the [county’s] TDR program,” Shaw said.

The current TDR program, Johnston said, would allow more development in tier 4 and there will be more TDR use in tier 4 in the short term, but it will eventually push development into tiers 1 and 2, because the exemption will expire at some point.

aharrison@somdnews.com