Baltimore County Council Bill 54-25, introduced by Councilman David Marks (R, 5th), is another measure intended to give individual members control over zoning and development approval within their districts and make them the gatekeepers through which all land use decisions affecting their districts must pass.

The bill would allow a councilmember to petition the council to rescind a change in the zoning classification of a specific piece of land proposed by the member and adopted by the council in the most recent Comprehensive Zoning Map Process (CZMP).

It would require only that the member “affirm” that the change was “inadvertent or the result of the councilmember’s mistake or error of intent” for the rescission to be approved.

A zoning change proposed by the council during the CZMP is almost always initiated by the councilmember who represents the district where the change would be made because of the practice of “councilmanic courtesy.”

That practice would also virtually guarantee approval of a petition to rescind the change filed by that councilmember.

There’s a problem with the bill, however: It violates the county charter as well as Maryland law.

Piecemeal Rezoning

The County Council may rezone properties (change zoning classifications from one category to another) as part of a “comprehensive” rezoning of all or a substantial part of the county, such as during the CZMP. It does not have the authority to change the zoning classifications of individual properties on a piecemeal basis.

Action taken by the Council under Bill 54-25 would only change the zoning classification of the subject property, i.e., it would be a piecemeal rezoning.

• Bill 54-25 comes before the Council today at its 4 p.m. work session.

Under Maryland law, a piecemeal rezoning constitutes “zoning action” that must be carried out in a quasi-judicial manner and is subject to judicial review to determine if the reclassification is based on substantial evidence in the record and complies with the law.

Piecemeal rezonings may be approved only if it is shown that there “was a mistake in the prior original or comprehensive zoning or that there has been a substantial change in the character of the neighborhood” since the most recent CZMP.

As applied to a piecemeal rezoning, a mistake means that the underlying assumptions or premises relied upon by the council in making the zoning change were incorrect. It means a mistake in fact, not a mistake in judgment.

County law refers to piecemeal rezoning as a “zoning reclassification,” which it defines as “a change to a district or zone of a particular piece of property.”

Section 602(e) of the county charter provides that the county board of appeals “shall have original and exclusive jurisdiction over all petitions for [zoning] reclassification.”

In other words, the charter has assigned the role of correcting mistakes in the CZMP to the board of appeals, not to the council.

And even the board of appeals cannot “rescind” a change in zoning simply because a council member later claims that he or she made an error in judgment.

End Run Around Limits

Bill 54-25 is just another device intended to expand the Council’s authority over land use and replace formal, regulated processes with ones left largely to the discretion of the council.

I’ve previously described how this body uses zoning “text amendments,” which Maryland courts consider to be ordinary legislation rather than “zoning action,” to circumvent the prohibition against zoning reclassifications.

Under the text amendment approach, the Council does not change the zoning classification of the targeted property.

Instead, it amends the zoning “text” by adding one or more new uses to the law governing the classification, but then places detailed locational and other conditions on the new uses that have the effect of limiting the uses to the targeted properties – a zoning reclassification in effect, if not in law.

There are no standards governing the decision by a councilmember to seek or not seek a text amendment on behalf of a constituent, but at least the practice of using text amendments to change the uses allowed on specific properties operates at the margins of the law. Bill 54-25 ignores the law.

I have no idea why Marks believes that the Council can create its own set of rules for correcting alleged mistakes during the CZMP by reclassifications of the affected properties and then assign the reclassifications to itself.

I do have a pretty good idea why he wants control of those reclassifications.

Hail to the Zoning Czar

Marks wants to be the person to whom anyone who wants a change in zoning or approval of a development in his district must come.

A lot of power comes with being in that position.

If fixing mistakes was your intent, you wouldn’t give the sole power to fix a mistake to the person who made it.

Giving the sole power to decide if a mistake warranting rescission of a zoning change was made to the very councilmember who claims to have made the mistake (and who almost invariably represents the district where the change took place) reveals the bill’s primary purpose.

Much has been written in recent years about the aspirations of members of the Baltimore County Council to be “veritable zoning czars” in their own districts. Bill 54-25 is just more of the same.

Even if the council itself could do piecemeal rezonings through legislation, neither state nor county law would permit it to delegate that legislative power to a single member of the council.

Earlier this year, Marks made a similar attempt to enshrine councilmanic courtesy into law by proposing a charter amendment that included the right of a councilmember to veto changes to the Urban Rural Demarcation Line (URDL) within his or her district.

The attempt failed when his colleagues amended the veto provision out of his bill.

More Councilmanic Courtesy

Even if not beyond the Council’s powers, Bill 54-25 would be another invitation for abuse of councilmanic courtesy.

A cardinal rule of councilmanic courtesy is that other members don’t ask their colleagues hard questions about a decision to which it applies.

The bill predicates rescission on an affirmation by a council member that he or she made a mistake in proposing the change made in the CZMP.

If you believe that council members would question a colleague petitioning for a reclassification under Bill 54-25 to make sure that the basis for the reclassification was indeed a mistake – and not just a convenient change of mind to do a favor for a political ally or potential donor – then you aren’t familiar with councilmanic courtesy as practiced by the council (here and here).

The hearing in April on Bill 16-25, also introduced by Marks, offered an excellent example of the lack of transparency that accompanies the application of councilmanic courtesy to text amendments.

Somehow it never made it onto the record that an amendment to the bill, an amendment which had no obvious public benefit, was solicited by Ken Holt, the former state housing secretary in the Hogan administration and longtime political ally of Marks. That information only came out later.

Not one other member asked Marks a single question about the source of or justification for the dubious amendment.

In my opinion, their silence was the sound of one hand washing the other, and another reason why Bill 54-25 is a bad idea.

Returning to Sound Policy 

Zoning is process heavy for good reasons. One is that well-conceived zoning is important for the quality of life and the economic well-being of a city or county.

Another is that a lot of money can ride on zoning decisions, making them a fertile area for abuse.

The standards and procedures are intended to promote fair and objectively reasonable decisions, and to minimize the influence of raw politics and all the unsavory behavior that can entail.

The aggregation of control by individual councilmembers over zoning decisions and development approval within their districts, unique to Baltimore County, has made implementation of thoughtful countywide plans for growth and development difficult if not impossible.

The most remarkable part of the phenomenon is why, given the county’s history of political corruption, anyone in the county believes that circumventing processes intended to reduce the opportunities for influence peddling and other abuses is sound public policy.

Bill 54-25 should not pass. It should never have been introduced.

• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and Twitter @dplymyer.