“Sustainable Growth” Goes Into Effect

Date: July 9, 2012

The implementation of the Sustainable Growth and Agricultural Preservation Act enacted in the 2012 session of the General Assembly has begun. While the Act received a lot of publicity for restrictions on private septic systems in rural areas, it does much more with respect to planning for future growth. Local jurisdictions are beginning a mapping process, which will become part of their master plans, to identify areas for future public sewer systems and future septic systems. The preliminary mapping is supposed to be done by early fall, so that plans in the metropolitan counties will be in place by the end of the year.

Local jurisdictions are to divide their areas into four separate tiers, on which the Maryland Department of Planning will comment.

  • Tier 1 identifies existing areas served by public water and sewer, but there are indications that local jurisdictions may not choose to classify rurally zoned areas currently served by public water and sewer to replace failing septic systems as Tier 1.   Numerous criteria are to be reviewed in allocating the tiers, and in many cases they conflict.   For example, some areas are zoned rural and are outside the area for planned service, but are inside the metropolitan district and have public sewer to address failing systems. 
  • Tier 2 covers areas planned to be served by public sewer in the future. An interesting issue arises here because Plan Maryland projects almost 500,000 new households in the state over the next two decades. Can that growth be accommodated in areas currently served by public water and sewer as infill or redevelopment? If not, will local jurisdictions respond to the proposal in the state plan for more density along the I-95 and I-270 corridors with Tier 2 planning or simply look to what is in their current capital budgets?   
  • Tier 3 areas are rural areas that already have rural villages or large lot subdivisions. These areas may continue to have such subdivisions. Additional review, however, is to be provided of “major” subdivisions through public hearings and planning board recommendations. Unfortunately, review criteria are not specified in the law for planning boards to use in reviewing the issues raised by the law.  The boards are to examine environmental impacts and impacts on natural resources inventory caused by the major subdivision.   In addition, planning boards are supposed to examine the cost of the provision of local government services to the proposed major subdivision impact, but it isn’t clear whether this term includes police, fire, school, library, and senior services, which goes beyond most adequate public facilities ordinances. 
  • Tier 4 areas are rural conservation areas designed to allow only “minor” subdivisions.

A local jurisdiction may define “major” and “minor” subdivisions for itself, provided that a minor subdivision may not exceed seven lots. However, in some jurisdictions the law currently provides that “minor” subdivisions may not exceed three lots. Will local land use and development regulations be amended? The law states that the changes can be made administratively, without county council review, but there is an issue over whether changes in minor and major subdivisions would require local legislation and whether the tier designations alter zoning.   For example, if a tract that is zoned for larger lot subdivision falls within a Tier 4 map, it may essentially alter the density that could be placed on the area. 

Overall, the act’s short term implications include putting the brakes on rural subdivision, with the exception of projects that are deemed “grandfathered.” Long term, its implications make this a state planning bill designed to put additional density in already urbanized areas by redevelopment and infill. But, without additional legislation mandating where additional density is placed, there is little likelihood that the state planning projections will become reality: the local jurisdiction projections of how much additional population they can tolerate are quite different from the state projections.

This legislation has major implications for the real estate markets and homebuilding and construction industries.  The above outline is but a partial snapshot of the legislation, which has many additional provisions and nuances.   Please contact the attorneys in our land use group with questions about how this legislation may impact your interests.