The Real Deal - Fall 2010

Date: September 24, 2010

New Green Building Standards Approved for Baltimore City
by Tami P. Daniel

On August 31, 2010, Baltimore Housing announced the release of the Baltimore City Green Building Standards ("BCGBS") applicable to non-residential and multi-family residential buildings having at least 10,000 square feet of floor area. Formulated to meet the needs of developers as well as the goals of the Baltimore Sustainability Plan, the new standards will offer a less costly and a faster approval process than what is currently required by City code under LEED certification standards. Certification under BCGBS will have the effect of incentivizing developers to construct "green" buildings to meet the City's eco friendly commitment and the demands of the marketplace.

"ESD to the MEP": Could Your Development Project be Exempt?
by Dino C. La Fiandra

Earlier this year, the Maryland Department of the Environment issued temporary emergency regulations authorizing local governments to grandfather approved stormwater management plans from the impact of the Stormwater Management Act of 2007 ("SWM 2007"), which required compliance with its provisions by May 4, 2010. On July 26, 2010, MDE made these temporary emergency regulations permanent.

SWM 2007 dramatically changes the way that stormwater management is provided within a development. Prior to the 2007 change, state and local codes allowed the use of large relatively centralized stormwater management ponds that ultimately drain over an extended period of time into a receiving watercourse, such as a stream ,to provide on-site stormwater management. The use of such large facilities came to be criticized on the basis that the discharge from such ponds created adverse environmental impacts that were not previously anticipated or appreciated.

Under SWM 2007, developers are required to provide environmental site design to the maximum extent practicable, "ESD to the MEP", in an effort to minimize the adverse impacts of the discharge from SWM ponds. Environmental Site Design, or ESD, means "using small-scale stormwater management practices, nonstructural techniques, and better site planning to mimic natural hydrologic runoff characteristics and minimize the impact of land development on water resources." Md. Environment ยง 4-201.1. The idea is that such small scale measures create fewer adverse impacts than centralized stormwater management practices and that implementing ESD to the MEP reduces need for and impact from centralized SWM. Once ESD is provided to the maximum extent practicable, other SWM management practices are allowed. This is a vast departure from the way stormwater management traditionally has been provided.

SWM 2007 required compliance by May 4, 2010 for all SWM plans approved after that date; however, the Act was virtually silent on the legal status of SWM plans approved before May 4, 2010, but not yet built. Considering the length of time it takes to process development plans and SWM plans, and in light of the economic recession that started in 2007, the resolution of this question would affect literally thousands of approved but not yet built SWM plans throughout Maryland. Requiring plans that had been approved but not yet built prior to May, 2010 to be redesigned and reapproved with ESD to the MEP would be a tremendous hardship on the developer and probably would put many projects in jeopardy of being shelved permanently. The temporary emergency regulations that became permanent in July addressed this issue.

Under COMAR, local governments may grant an "administrative waiver" for a development from the requirements of SWM 2007, provided certain criteria are met. Specifically, if a development received preliminary project approval prior to May 4, 2010, the project may be exempted from the requirements of SWM 2007 if it receives final project approval by May 4, 2013, and if all construction authorized by the administrative waiver is completed by May 4, 2017.

Under the regulations, preliminary project approval means, at a minimum, approval, as part of a process to review and approve proposed development, of the number of lots or units, project density, size and location of all proposed land uses, proposed drainage patterns, all points of discharge from the site, and the type, location, and size of all SWM measures based on site-specific computations. Typically, this might be referred to as development plan approval, or a similar term.

A developer with a preliminary project approval prior to May 4, 2010, may seek and receive an administrative waiver under the local stormwater management regulations from the requirements of SWM 2007. If granted, the waiver would permit the developer to seek final project approval, i.e., approval of final stormwater management and erosion and sediment control plans, based on the law in effect on May 4, 2009, one year before the effective date of SWM 2007. Final project approval must be obtained by May 4, 2013, and all construction must be completed by May 4, 2017. Certain projects, such as those subject to a Tax Increment Financing approval or an annexation agreement, may be extended past 2017.

Throughout Maryland, local jurisdictions have implemented administrative waivers as authorized by the COMAR provision. For example, Baltimore City and Baltimore County each have amended their county codes to allow the Baltimore City Department of Public Works and the Baltimore County Director of Environmental Protection and Resource Management, respectively, to issue administrative waivers on a case by case basis. On the other hand, Howard County has taken a more broad brush approach, statutorily providing the administrative waiver to all projects that would otherwise qualify under COMAR.

Interestingly, as provided in COMAR and as implemented by jurisdictions like Baltimore City and Baltimore County, the permissive and discretionary "may" is used in the context of the decision to grant the waiver. For example, under the Baltimore County regulation, "the Director may grant an administrative waiver, if the applicant received preliminary project approval before May 4, 2010." Baltimore City has a similar provision. Unfortunately, this puts a developer who for some reason is not granted an administrative waiver on weaker footing than if the nondiscretionary "shall" had been used. It also calls into question the factors the local government may use to deny a request for an administrative waiver. Nonetheless, in the 3 months since such waivers have been available under the temporary and now permanent regulations, this does not seem to have been a problem. By contrast, the across the board manner in which Howard County implemented the administrative waiver is very nondiscretionary.

Although, as we sit here in 2010, it seems that 2013 and 2017 are so far away, and that there is so much time to achieve final project approval and complete construction, we will undoubtedly see issues arise as these dates approach. It will be interesting to see if these dates are further extended.

For more information on ESD to the MEP and whether your project may qualify for an administrative waiver, contact any of the attorneys Whiteford, Taylor & Preston's Real Estate Development, Leasing and Land Use Industry Group.

2010 Plan Maryland
by John B. Gontrum

"The Real Deal" recently spoke with Richard E. Hall, Secretary of the Maryland Department of Planning, to learn about the newly created state Master Plan.

The Real Deal: Secretary Hall, what is "Plan Maryland," and why now after all these decades of authority to create a state Master Plan, is the State preparing a plan to address the development and growth of the State?

Secretary Hall: Maryland was among the first states in the nation to create a Department of Planning a half-century ago. Legislators authorized a State Growth Plan by the late 1950s, with additional authority granted in the mid-1970s. The concept went unfilled through the subsequent decades as other issues loomed, especially the declining health of the Chesapeake Bay and tidal tributaries. But we've picked up the ball again on the need to adopt a State Growth Plan because the concerns identified by the General Assembly long ago have intensified. There's also an increased realization that unmanaged growth patterns have contributed to degrading the Bay as well as impairing our existing towns and cities, the agricultural industry, the health of Main Street business, traffic congestion and air quality The concept of sustainable growth is also more in the mainstream now as subjects including energy use, "green" consumer products and the Gulf oil spill command attention.

The Real Deal: Where is the Plan now in the process? What is the timetable for its preparation?

Secretary Hall: We gathered public feedback at listening sessions we convened in 2008 and at 13 public forums we held at colleges and universities across the state this past spring. Along with meetings we've held with other groups, such as chambers of commerce, environmental organizations and ethnic commissions, we've reached more than 1,600 people face-to-face to discuss a State Growth Plan. We've also cultivated more than 1,000 followers on social media. We're in the process of creating an "Issues and Options" document before drafting a Growth Plan later this year. We plan additional forums next winter before refining a final Plan draft by next summer.

The Real Deal: What kind of public feedback have you received on the plan?

Secretary Hall: We heard most often that "one size can't fit all" when planning for a state as culturally and geographically diverse as Maryland. Different regions of the state also have varied levels of concern about job creation, the environment and transportation. We were a little surprised, and probably pleasantly so, that community design ranked high among people's concerns, because that may be key down the road. Designing communities that are more livable, but also probably more densely developed, will be vital so that we don't exhaust land at the rate we have been while accommodating nearly 1 million more Marylanders projected during the next 20 years. The folks with whom we met seemed very engaged -- not surprising from audiences willing to spend several hours to discuss environmental and social impacts 20 years down the road. They were gratified that we wanted their opinions and were supportive of the concept.

The Real Deal: Quality of life and sustainability is the first of the 12 visions articulated in the Land Use Article, and this seems to be a catch-all provision embodying the other visions. Does it have a separate identity apart from the contributions of the other visions?

Secretary Hall: Quality of life and sustainability is, in a way, a catch-all vision. When you look at the other visions and what they address vibrant local communities, better transportation choices, more affordable housing, less land consumption, more resource conservation, jobs near where people live and a healthy environment if we can achieve those visions, we will have a high quality of life that is sustainable over the long term. We used the 12 visions that the General Assembly laid out in the 2009 Smart, Green & Growing legislation as a framework for the discussions on Plan Maryland.

The Real Deal: Land-use decisions have traditionally been delegated to local jurisdictions. Is the State prepared to take a larger, more direct role in land use issues?

Secretary Hall: The state has been working closely and collaboratively with local jurisdictions for many years, especially since the first State Planning Act was adopted in 1992. MDP has provided information and guidelines to assist local jurisdictions in preparing and carrying out their comprehensive plans, and has worked with other state agencies to help provide technical assistance with regard to required and complementary elements of comprehensive plans. This cooperative arrangement will continue under Plan Maryland. Land use and zoning will continue to be accomplished at the local level. The state will work to provide clear direction on goals and visions, and the tools - incentives, funding and policies - to help locals carry out their plans.

The Real Deal: Plan Maryland, like the concept of "Smart Growth," seemingly has two components: one is to protect natural resources and to prevent as much development sprawl as possible; the other is to make sure that the anticipated growth in population and jobs over the next 20 years can be accommodated. What tools does the state have to address these two components and to make sure that the local jurisdictions do not contribute to sprawl and also accommodate the growth where it is warranted?

Secretary Hall: In areas that local comprehensive plans have designated for growth, and where those growth areas satisfy certain residential density and infrastructure thresholds, the state targets its transportation, housing and environmental resources through programs and policies such as Transit-Oriented Development, Main Streets (a comprehensive downtown revitalization program) and Maple Streets (residential revitalization projects near downtown business districts that strengthen the relationship between downtown commercial districts and the surrounding neighborhoods), Community Legacy, and Designated Neighborhoods, as well as providing funds for water and sewer infrastructure. These programs are being combined under the new state banner of Sustainable Communities to more precisely target funds in local growth areas where there is greatest need and interest. In areas that have been locally designated for conservation, protection and lower density development, the state uses its funding authority through various agricultural and open space preservation programs to acquire development rights through easement purchases, and discourage development. Maryland has been a leader in this area and already has the greatest ratio of farmland preserved to total land mass by any state in the nation.

The Real Deal: Will there be any assistance given to the local jurisdictions as they implement the provisions in Plan Maryland?

Secretary Hall: MDP and other state agencies will continue to provide planning assistance to counties and municipalities that are completing their comprehensive land use plans as well as plans for recreation, parks, agriculture preservation, water and sewer, and transportation. Local jurisdictions will be able to continue to make use of the significant resources of the state in carrying out the - provisions of Plan Maryland. One of the primary objectives of Plan Maryland is to coordinate the programs, policies, plans, information, and resources of state agencies as they relate to land use, development and preservation and in doing so help local governments implement their own plans.

The Real Deal: What opportunities do you see for the State as it looks to funnel growth into priority funding areas ("PFAs")?

Secretary Hall: The primary way in which the state can help funnel growth in PFAs is through Plan Maryland. Plan Maryland will set a clear direction for growth, development and preservation, identify tools to accomplish it, and set forth roles and responsibilities for state agencies to help implement the plan. The state will be able to target its infrastructure spending most efficiently by focusing on areas best-equipped to accommodate long-term sustainable growth.

The Real Deal: What resources are available to people to find out about Plan Maryland and to have input into it?

Secretary Hall: We're continuing to collect opinions through electronic surveys. People can also write the agency at Maryland Department of Planning, 301 W. Preston St., Suite 1101, Baltimore, Maryland 21201, for additional information about the Plan and the process.