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Submitted: 1-27-99____
Approved:_As amended__
Date:__1-27-99_________
Planning Commission Meeting Minutes
Meeting No. 23-98
December 16, 1998
Commissioners in Attendance: Donald Boebel, Paul Douglas, Jane Fry-Emond, William Meyer, Brigitta Mullican.
Commisioners Absent: Larry Giammo, Susan Hoffman
Staff Present: Sondra Block, Margaret Hall, Lisa Rother, Bob Spalding, Jim Wasilak.
Executive Session:
At beginning of the meeting, Commissioner Meyer moved to meet in Executive Session pursuant to section 10-508 (a)(7) of the State Government Article, Annotated Code of Maryland, to consult with counsel to obtain legal advice. Commissioner Fry-Emond seconded the motion. The vote was 4-0 in favor.
The Executive Session began at 7:35 p.m. The purpose of the Executive Session was to receive legal advice regarding PLT98-0154. In addition to the commissioners, Assistant City Attorney Sondra Block, Bob Spalding, Margaret Hall, and Lisa Rother were present. Commissioner Douglas joined the Executive Session in progress. No actions were taken or decisions made during the session. The regular session resumed at 8:24 p.m.
Items:
Final Record Plat PLT 98-0155, Boston Properties, Inc. Application for a two lot subdivision to permit construction of 185,000 square foot office building as approved by CPD98-001E at 2600 Tower Oaks Boulevard.
Commissioner Meyer was concerned about the use of the outparcel and Jim Wasilak of the Community Planning and Development Services staff indicated that it would not be built on and would accommodate some of the grading for Preserve Parkway.
Mr. Woody Bolton, representing the applicant offered to answer questions -- none were asked.
Commission Discussion:
Each of the commissioners present indicated support for the application.
Vote:
Commissioner Meyer moved approval of the application with the staff recommended conditions. Commissioner Douglas seconded the motion. The motion was approved by a vote of 5-0.
Waiver Request, Great Falls L.C. Request for a waiver of the subdivision requirements that require bonding of improvements prior to recordation for the Rosehill subdivision.
Presentation of the Case:
Jim Wasilak, of the Community Planning and Development Services staff summarized the application requesting waivers to section 25-730 for the posting of bonds. This is a similar request to that which was approved the Rosehill Falls subdivision. Staff recommends approval. However, staff does have concerns, some of which are addressed through recommended conditions of approval. These include the administrative burden to ensure permits are not inadvertantly issued. There is also concern that easements are not shown on the record plant. Covenants may be used to address this concern.
Sondra Block, Assistant City Attorney, indicated that the application also requires variances from the section 25-595 requirements for private improvements in a planned residential unit and from the section 25-781 requirements for what is included on a record plat. There are also concerns that the City did not want to become involved in the private agreement between CPC Health Inc, and Rosehill.
Commissioner Meyer indicated that he would like to avoid issues that occurred in the Villages at Tower Oaks and wants the City to be held harmless.
Barbara Sears, representing the applicant, indicated that the development would be in two-phases with 6 record plats. The length of time for approval impacted the ability to get engineering completed prior to settlement on the property and the record plats are needed as collateral for financing.
Staff is trying to ensure there is no public harm from granting this request. Beezer Homes and John Lang Homes become the owners at settlement. The owners desire to build model homes on Lots 1and 2 with utility connections and required bonding for the model homes.
CPC Health Inc. and Great Falls L.C. are parties to an agreement to cooperate on issues such as this. The applicant agrees with staff conditions.
Steve Critz of Lang Homes indicated that record plat are required as collateral for the purchase of the property. He also indicated that additional conditions would have to be met for the construction loans.
Barbara Sears indicated that the applicant agrees to provide correction plats
Public Comments:
Kathleen Kulengulski, representing CPC Health Inc., was concerned about obtaining easements for existing utilities that would be on the recorded Lots. Easements for existing utilities that serve CPC Health are not recorded since the utilities were established when the Chestnut Lodge property was under a single ownership.
Barbara Sears indicated the ownership of the subject property was split based on individual lots and both owners were parties to a cooperative agreement. She acknowledged that lenders would have to sign plats and are subordinate to the agreement.
Commission Discussion: Commissioner Fry-Emond indicated that she did not intend to delay the development but would like to see the final text of the easements or covenants. She was not satisfied with the way the hardship was created. Commissioner Douglas was concerned about the bonding being in place as a protective measure. Engineering costs are part of investment. It is the burden of the developer to follow through. Commissioner Meyer was in favor but is now concerned about working agreements out later. Would be in favor once the agreements were finalized. Commissioner Mullican was favor of the application with staff recommendations. Commissioner Boebel was concerned about recording record plats without everything on them.
Commissioner Douglas made a motion to deny variances on section 25-730, 5-595, 25-701. Commissioner Fry-Emond second in the motion which was passed 4-1 with Commissioner Mullican in opposition.
Final Record Plat PLT98-0154, Dr. John Law Application for a two lot subdivision on 100 South Van Buren Street.
Commissioner Boebel indicated that members of the Commission have received contacts from the applicant and had submitted these into the record based on advice from the City Attorney. This application is identical to the first application (PLT98-0150) filed by Dr. Law. All of the material in the record of the earlier PLT98-0150 has been made part of the record for PLT98-0154. Commissioners Douglas and Fry-Emond indicated they have reviewed the tapes and the record since they were not present in the discussion of the original application.
Commissioner Fry-Emond questioned whether the Commission should even consider this application since it is identical to the earlier application (PLT98-0150) which was denied. Commissioner Boebel stated that the applicant asserts there is new information available. Commissioner Boebel requested that the applicant and other participants avoid duplication of previously heard information.
Margaret Hall of the Community Planning and Development Services staff summarized the application for two lots; one lot of 18,479 square feet improved with an existing home, pool and carport. The other lot is currently unimproved and proposed to be 9,056 square feet in size. The staff report discussed the applicability of Section 25-749 and concludes it applies to this case and that the application complies with the section. She indicated that the configuration of the subdivision has not changed from the original application. She also indicated that the applicant would further address whether the application is a subdivision under Section 25-749 and the average lot sizes within 500 feet of the property.
Nancy Floreen, representing the applicant, submited additional information including a letter from their engineer summarizing the neighboring lot sizes. She agreed with staff recommendations, but not with their interpretation. She demonstrated that the property has never been recorded by plats. It was part a larger tract like everything else in the County. As an example, she illustrated how the Evans Addition to Rockville subdivision was subdivided from deeded parcels then was resubdivided. The proposed irregular lot sizes are in response to the historic character of the existing home.
Tom Maddox, the applicants engineer, calculated an average lot size of 12,300 square feet versus 14,430 square feet as determined by staff. Lot sizes and frontages were compared for a larger area than evaluated by staff. He indicated that it has been the city's practice in subdivision cases to approve lots smaller than 9,500 square feet as shown on the applicants exhibit.
In response to Commissioner Meyer's question about the applicability of section 25-749, Mrs. Floreen argued that if the City and the Commission intended for that section to apply to the subdivision of every lot it should be specified.
In response to a question from Sondra Block, Mrs. Floreen stated that properties could not currently be subdivided by deed to create buildable lots. She also indicated that in Montgomery County, the pending application clearly would be a subdivision not be re-subdivision.
Commissioner Fry-Emond asked for a discussion to determine if substantially new information has been presented prior to hearing comments from the audience. Commissioner Meyer, who voted in favor of the prior application, indicated that the information on the lot size lot was a difference and was willing to open it up for further discussion. Commissioner's Mullican and Boebel indicated that they were willing to hear further comments.
Van Canada, representing Dr. Greene, indicated that the denial of the first application is currently under appeal and questions whether it can be re-heard once the applicant's has availed himself of a legal remedy. Mr. Canada also argued there is no new information and that the property has been a lot. He further argued that the purpose of Section 25-749s average lot size provision is to maintain neighborhood character and is intended to apply to this situation. He indicated that Dr. Greene probably would not mind if the property would be split evenly. He also indicated that an even split would not directly affect the historic building. He presented photographs of houses along South Van Buren Street for the record.
Elizabeth Mcguire of 121 South Van Buren Street submitted a letter about issues she raised after the last hearing on the earlier application. In addition, she indicated that this is a boundary property doesn't want the character of the street changed. The subdivision as proposed would help stabilize neighborhood. Equal subdivision does an injustice to the Prettyman House.
Dr. Richard Greene of 124 South Van Buren Street stated that the street is an eclectic mix. Further subdivision will decrease the value of neighborhood homes. The street has a wonderful character. He also stated that the property could be divided into a 12,000 square foot lot and 15,000 for the lot that can provide opportunity for increased yard size and offstreet parking. If built, the lot size should be greater than 9,000 square feet.
Beth McDonald Landfair of 126 South Van Buren Street was concerned about precedent that this subdivision set since the smallest lot on the street is currently over 12,000 square feet.
Laura McDonald urges denial based on lack of new evidence.
Billy Talbott of 122 South Van Buren Street stated that his previous testimony had overlooked that this property includes one of the best backyards in the City and should be kept intact.
Jacques Gelin of 105 South Van Buren Street stated that the application complies with Rockville law, received Historic District Commission approval and is not asking for a variance to any of the laws. Dr. Laws neighbor requested a variance to locate her garage closer to Dr. Law's property and received one. He also indicated that if people want Dr. Laws property as a park then it should be purchased.
Dr. John Law of 104 West Jefferson Street indicated that the owners of every historic home near his on West Montgomery Avenue and West Jefferson Street support his application. He stated that creating two equal lots would result in the removal of 7 trees. He also stated that Mrs. Schiavone was allowed to build her garage within five feet of his lot and stated that Dr. Greene's lot is only 75 feet wide. In addition, he indicated that a smaller back yard would make the Prettyman house lot unsalable.
Pat Fipps of 131 South Van Buren Street stated that she lives on a 44,000 square foot lot and asked if it is her right to build five lots.
Robin Talbott, who has an interest in 122 South Van Buren Street, asked if this application can be heard since the earlier application is in court.
Commission Discussion
Commissioner Mullican supports the application and indicated that she is looking at this case alone and not trying to set a precedent on the street. Commissioner Meyer indicated that from an historic perspective a larger lot for the Prettyman house is better. It's not reasonable to have a strict application of Section 25-749 where a smaller lot for the Prettyman House is not in the City's best interest. He also stated that it is appropriate to apply Section 25-749 to this application.
Commissioner Douglas stated that section 25-749 is appropriate to apply to the application. He stated that the existing lot is a result of previous subdivisions that created the character of the street. The size of the proposed smaller lot is inappropriate given the streets character. He also noted that the applicant has been a good custodian of the historic house.
Commissioner Fry-Emond stated that no substantial new information line or proof of error has been established. She stated that the applicant is making another attempt to have the Commission rule in his favor and that the previous decision was made in accordance with the Planning Commissions Rules of Procedures and she urged the Planning Commission to reject the application. Commissioner Boebel agrees with Commissioner Fry-Emond that no new information had been provided and was still against the application. He indicated that the proposed subdivision would change the character of the neighborhood.
Votes:
Commissioner Mullican made a motion for approval of the application based on staff recommendations. These include the recommended findings contained in the staff report.
She also stated that she believes that section 25-749 applies to this application.
Commissioner Meyer seconded the motion. The motion failed on a 2-2-1 vote with Commissioners Douglas and Boebel voting against and Commissioner Fry-Emond abstaining.
Commissioner Fry-Emond then moved to reject the application since it is not different from the previous application, no substantial new information was provided and there was no proof of error on the part of the Commission.
Commissioner Douglas seconded the motion and it passed on a 3 to 2 vote with Commissioners Meyer and Mullican voting against it. Sondra Block asked if the Planning Commission would like to have a written decision prepared that would be effective on the date the decision was mailed. The Commission agreed.
Old Business:
During the discussion of old business Bob Spalding asked the Planning Commission if they wished to respond to Gloria Paul Atlas' request for reconsideration of the Potomac Woods Plaza Use Permit. Chairman Boebel asked the Commission if there was desire to grant the request. The Commission indicated that the Potomac Woods Plaza case is now closed and there was no desire to reopen it.
There were questions from commissioners about why an applicant had mailed information and invitations to their homes rather than City Hall. Staff was asked to encourage that correspondence go through City Hall.
In response to questions about ex parte communication, Sondra Block discouraged Commissioners from discussing cases that are pending or may be filed, with interested parties. In addition she advised the Commission if such a discussion were to take place, that the other members of the Commission need to be told on the record so that they may consider the same information.
Staff was asked check on the appointment dates for all of the Planning Commissioners to avoid situations where there are an inadequate number of commissioners during a period of time.
The meeting was adjourned 10:30 p.m.