Citizens Write Mayor about Failure to Comply with Growth Policy

Mayor Randy McClement

City of Frederick

101 North Court Street

Frederick, Maryland 21701

Re:         The City’s Municipal Growth Element

Dear Mr. Mayor:

Based on information that only recently came to our attention, we believe that the City of Frederick failed to comply with Maryland law in its adoption on November 19, 2009 of a “municipal growth element” to its comprehensive plan. In particular, we understand that the City, under the prior Administration, did not fulfill its obligation to “meet and confer” with the county, as required by Section 3.05(e)(6) of Article 66B.  We therefore write to request that the City’s municipal growth element be rescinded and made subject to further proceedings, as required by state law.  We ask that you respond to this request within 10 days so that we may consider further appropriate steps at that time.

We would also note that under Article 66B, a municipality’s zoning authority is suspended by operation of law after October 1, 2009, unless a valid municipal growth element has been adopted by that date, or an extension of the October 1, 2009 deadline has been granted by the Maryland Department of Planning. Section 3.05(f)(3).  If, as we believe, the City’s process for adopting its municipal growth element was deficient, any zoning actions taken by the City thereafter would appear to be subject to successful legal challenge, absent an extension of the initial statutory deadline.  Our views in this matter are more fully explained below.

Section 3.05(a)(x)(1) of Article 66B requires that every municipality in Maryland adopt a municipal growth element which, among other things, depicts planned growth, including annexations.  A primary purpose of this growth element is to fully disclose the potential impacts of proposed annexations on county-funded public services and facilities, such as schools, water and sewer, parks, law enforcement, and fire and emergency medical services.

In the past, these impacts have largely been ignored and resulted in both a severe decline in the adequacy of county services and facilities and dramatic increases in the tax burden on county residents.  To ensure that these “hidden costs” of annexations and sprawl are no

longer overlooked, state law now requires “a far more detailed and quantitative analysis of future growth” and an “examination of the effects of growth on infrastructure [both] within and adjacent to the present municipality and on future growth areas that may be annexed.” (Maryland Department of Planning, “Managing Maryland’s Growth: Writing the Municipal Growth Element to the Comprehensive Plan”, May 2007, p.1.)

Prior to adopting a municipal growth element, a municipality is required to “meet and confer” with the county in regard to proposed annexations.  As noted by the Maryland Department of Planning,

HB 1141 [amending Article 66B] mandates that jurisdictions meet and confer on this subject before the municipal growth element can be adopted. (Id. at p.3)

As part of this meeting, a county may request additional, detailed information on the impacts of proposed annexations on county-funded public services and facilities.  Based on this information, the county may also request that a municipality decrease the size of, or even eliminate, proposed annexations from planned growth areas.  Such a request would be particularly appropriate where (i) existing county-wide services and facilities were not sufficient to accommodate these proposed annexations and development; and (ii) the county was not prepared to accept a decline in the adequacy of its public services and facilities or to require that county taxpayers further subsidize the infrastructure costs of municipal growth.  As the Maryland Department of Planning has put it,

Good planning dictates that the municipality and county agree on those land areas that will someday become part of the municipality. (Id.at p.3)

Where agreement on proposed annexations is not reached at this meeting, a municipality and county are required, “on the request of either party”, to employ the Mediation and Conflict Resolution Office of the Maryland Department of Planning.  A municipality may not adopt a municipal growth element prior to the conclusion of this process.  Article 66B, Section 3.05 (e)(6)(ii).

As you know, the Board of County Commissioners strongly opposes municipal annexations which pose risks to the public health and safety or may impose additional tax burdens on the residents of Frederick County.  In her letter to the City dated September 2, 2009, for example, Jan H. Gardner, President of the Board of County Commissioners, expressed Frederick County‘s opposition to the  COPT/Thatcher and Crumland Farm annexations on grounds that they would (i) “only exacerbate an already dangerous situation” on U.S. 15; (ii) “worsen school overcrowding”; and (iii) jeopardize the adequacy of county fire and emergency medical services.  Ms. Gardner also noted that “it is premature to assume that sewer capacity for these properties will exist.”

Finally, in closing, Ms. Gardner requested that the Mayor and Board of Alderman “set aside time to discuss these issues” with the Board of County Commissioners. That request was never honored.

Under HB 1141, a municipality may no longer simply refuse to “meet and confer” on its plans for future growth.  In this case, the county was already on record in opposition to two of the City’s proposed annexations.  The county had also expressed on many occasions its concerns generally about plans for municipal annexations and the financial hardship that annexations may impose on county taxpayers.

Despite the express requirements of Maryland law, however, and the clear disagreement over issues of municipal growth, the City’s prior Administration ignored its responsibility to “meet and confer” with the county and thereby circumvented its obligation to submit any unresolved conflicts to Maryland’s Office of Mediation and Conflict Resolution.  We believe these failures to comply with state law will have a direct bearing on the amount of taxes assessed by the City and county in future years.

In these circumstances, we believe that the municipal growth element adopted on November 19, 2009 is legally invalid and that the City’s zoning authority has  been suspended by operation of law. To remove this legal cloud over its zoning authority, and forestall judicial challenges to its zoning decisions, the City must rescind its municipal growth element and proceed to comply fully with the requirements of  Maryland law.  We respectfully request that it does so.

Thank you for your consideration.

Sincerely,

Richard Wiles, 22 Clarke Place, Frederick MD  21701

Ed Hinde, 601 Magnolia Av, Frederick MD  21701

Felix Flanagan, 1033 N Market St, Frederick MD  21701

Ken Eidel, 425 N Market St, Frederick MD  21701

Aaron Valentino, 412 N. Market St. Apt. 12, Frederick MD  21701

Amy Farber, 1600 Marker Rd, Middletown, MD  21769

Kate Carter, 10696 Oakridge Ct., New Market, MD 21774

Marcel Aillery, 3710 Tuck Avenue, Point of Rocks MD   21777

As individual property owners and taxpayers of the City and County of Frederick  and as representatives of Friends of Frederick County.

cc:         The Board of Alderman: Shelley Aloi, Carol Krimm, Michael O’Connor, Kelly Russell, Karen Young