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Charles County commissioners’ President Candice Quinn Kelly is concerned that a zoning map recently approved by the county planning commission in step with a new state law limiting growth on septic systems endangers the autonomy that Sen. Thomas “Mac” Middleton (D-Charles) fought to preserve for local jurisdictions last session.

Under the Sustainable Growth and Agricultural Preservation Act, known as the “septic bill” and passed last year by the Maryland General Assembly, counties are required to draw and submit to the state maps drawn into four tiers identifying where new construction can be built on septic systems or public sewer.

The bill designates land already served by public sewer systems as “Tier I,” and land that is intended to be served by sewer in the future as “Tier II.” Septic systems will only be allowed in subdivisions in “Tier III” areas, which include nonagricultural, nonforested areas where there are no plans to build public sewer. Only limited growth on septics will be allowed in “Tier IV” zones, which are reserved for farming and forest preservation.

In early November, the Charles County Planning Commission approved a map submitted by the Balanced Growth Initiative, a group that has opposed restrictions on development, after rejecting a map drawn by county planning staff.

The commission raised concerns with the staff map in October and asked for changes to be made. When staff presented the same map without the desired changes, the commission opted to forward the lone alternative — the BGI map — to the county commissioners.

The primary difference between the staff and BGI maps came in amount of acres in Tiers III and IV — the staff’s map put nearly 200,000 of the county’s 294,000 total acres in Tier IV, leaving only 45,000 in Tier III, whereas the BGI proposal put nearly 124,000 acres in Tier III and 105,000 acres in Tier IV.

The staff map included in its Tier IV areas zoned for one unit per acre but designated as rural and agricultural preservation zones. The BGI plan put those areas in Tier III, claiming that the conservation designation was irrelevant because the areas were zoned for development.

Developers and farmers have praised the BGI plan, but it was met with derision from environmental groups, with one Baltimore-based group labeling Charles as one of three “rogue” counties in the state moving toward “pavement” rather than “preservation.”

Murray Levy, a lobbyist for BGI and former county commissioner and state delegate, said the staff plan does not comply with the law because it is not in step with the county’s current 2006 comprehensive plan, which is under review but has not been officially updated.

“The [state] law is very clear,” Levy said. “They want the local tier maps to be in line with the local land use plan, which the BGI tier map is.”

Levy pointed out that 40 percent of Charles County — about 124,000 acres — is already preserved under existing conservation programs. Many of those acres were donated by landowners looking to capitalize on government tax credits, but restricting the number of homes that can be built on land currently zoned for development will reduce property values and provide a disincentive for people to voluntarily enter their land into preservation programs, Levy said.

Rural lawmakers resisted the septic bill when it was first proposed by Gov. Martin O’Malley (D) in 2011, worried that it would put an effective moratorium on construction in their districts.

O’Malley submitted an altered plan last session, but rural counties still worried that the law might threaten their control over local land use and transfer some of that power to state agencies. Middleton worked with the administration and the Maryland Association of Counties to draft provisions ensuring that zoning authority remained with local jurisdictions, but Kelly fears that autonomy could be threatened if the commissioners end up approving the BGI map.

“Sen. Middleton and MACo really stepped up to make amendments that would allow counties to create a map with tiers to make sure it works for their jurisdiction, but there was certainly an expectation that each county would make a reasonable effort to comply with the law. But when you look at the BGI map that our planning commission approved, it’s a little embarrassing, to be honest,” Kelly said.

The maps, she continued, “give a strong impression that our county is not only not going to come close, we are just absolutely thumbing our nose at the law, so it will be interesting to see what the General Assembly thinks of that.”

Commissioner Ken Robinson (D) expressed confidence that the commissioners would reach a compromise on tiers somewhere between those proposed by county staff and BGI but felt the fact that the plan of “a special interest group, any special interest group, has been forwarded to us has besmirched the reputation of our county in several quarters.”

He called the BGI map “360-degrees opposite of what the intent of the law is.”

“I want to keep an open mind,” he added. “However, our professional staff have the expertise, the education and the mandate to create the maps, and the fact that the planning commission decided to ignore them is troubling.”

The commissioners are scheduled to hold a public hearing on the BGI map at 6 p.m. Tuesday at the county government building in La Plata.

“It’s going to be controversial. It’s going to be long. You’re going to hear a lot of opinions, and that’s the purpose of a public hearing, to hear every possible opinion,” Robinson said. “I can be swayed with a good argument. I am not rigid with anything.”

Middleton said he has not looked closely at the BGI map but added that it is in the counties’ best interest to submit plans that follow the law as closely as possible — not because straying from the law will give the state authority to draw its own maps, but because it will open the plans to legal challenges.

“If Tier III is too large and Tier IV is too small, then environmentalists will sue and the builders will sue [in the inverse], so it behooves the county commissioners to be as balanced as possible,” he said. “My hope is that they will do that and try to get this thing right. The more it follows the intent of the legislation, the better the chance that the tier maps will hold up in court.”

Middleton said he thinks it would be a good idea for the commissioners to hire a local land use attorney to advise them while considering the tier map.

He also called it “inappropriate” for Maryland Secretary of Planning Richard E. Hall to write the county a letter objecting to the BGI plan prior the commissioners’ adoption of a tier map.

The law specifies that “The Department of Planning may comment on the growth tiers adopted by the local jurisdictions.” If it does, the local jurisdiction is then required to hold a public hearing on the department’s comments.

“I think he stepped out of bounds here and injected himself into the process,” Middleton said of Hall, adding that the letter sought to “put pressure, trying to influence this thing prior to it going through the process.”

jnewman@somdnews.com