Chair Wiener discussed the format for the Public Hearing this evening. Chair Wiener stated that staff will present an overview of the draft Zoning Ordinance and Zoning Map. After which, there will be public testimony and each speaker will be allowed three minutes to speak, only those who are representing a group will be allowed five minutes. Those who have written testimony may be submitted to staff. Chair Wiener announced there will be a second public hearing on the draft Zoning Ordinance at the Planning Commission’s next meeting, January 30, 2008 at 7:00 pm. Speakers may sign up in advance by calling City Planning staff. Chair Wiener stated that speakers will not be able to speak twice at both hearings.
Chair Wiener announced that worksessions will be held on the draft Zoning Ordinance beginning on February 27, 2008.
PUBLIC HEARING
Text Amendment TXT2007-00219, Mayor and Council of Rockville - for a comprehensive revision to the City’s Zoning and Planning Ordinance (Chapter 25 of the City Code) and Map Amendment MAP2007-00101, Mayor and Council of Rockville – for a comprehensive Map Amendment to rezone the entire City to implement the Draft Zoning Ordinance.
Mr. Wasilak stated that this document reflects a significant achievement in Rockville’s history. The City does not rewrite its Zoning Ordinance every day. In fact, it has not been completely rewritten since 1975. It is an effort that was a result of a lot of work by many people and he believes the document reflects that effort. In addition, staff realizes that there is still some additional work to be done on the Planning Commission’s part as well as the Mayor and City Council. Mr. Wasilak stated that the document before the Planning Commission this evening is the same document that was authorized by the Mayor and Council on October 8, 2007. There have been no changes made to it and changes that will be made to it in the future will be made at the Planning Commission’s direction, subsequent to the public hearing as part of the Commission’s worksessions. That is how changes can and will be made to the document.
Mr. Mellander presented a brief overview of the process and the zoning proposal before the Commission this evening. The proposed draft Zoning Ordinance has been proposed by the Representatives of Rockville Zoning Ordinance Review Committee (RORZOR) as a result of about 18 months of work with the committee and staff on a draft outline and preparing the draft text. This process also includes a draft comprehensive rezoning map to implement the new zones that are proposed in this Ordinance.
Mr. Mellander pointed out how the drafting of the Zoning Ordinance began. He stated that it began for a number of reasons. The City’s values and vision have changed over the past 30 years. Some of the rules and regulations regarding densities have become outdated and the vision of the draft Ordinance is now focused on improving how pedestrians experience their neighborhoods and city centers; where appropriate, allowing a mix of compatible uses that makes the City more sustainable; and keeping the residential zones essentially the way they are regulated today. The City also wishes to raise its standards for the built environment. Although there is quality development in Rockville today, the current Ordinance does not directly address the quality and character of development. The proposed Ordinance will set explicit standards for a higher quality built environment and help protect the natural environment. Future construction, especially in the City’s major development areas, will be held to the highest standards by requiring: Appropriately scaled and attractive buildings; designs that balance the needs of the pedestrians and not just automobiles; publicly-accessible open space; efficient and attractive parking facilities; safer, more inviting sidewalks; and, bicycle access and parking. In addition, the City needs to ensure a simple, accessible and transparent review process. Under the current Ordinance, Rockville’s development process can be long and cumbersome. There are multiple paths that a development proposal can take, which is difficult for applicants and the public to follow. The revision will alleviate this by: making the process for reviewing and approving development applications consistent; keeping the language easy to understand; requiring area (neighborhood) meetings before major development is proposed and filed; and providing clear instructions on how to implement draft standards in projects that have already been approved.
Mr. Mellander stated that some of the features of the draft Ordinance have been reorganized compared to the current code, with a more logical format to make it easier to navigate. It will include a Table of Contents. Development standards with the single-unit detached residential zones remain substantially the same, as they currently exist. There are provisions, however, for regulating mansionization and limiting impervious surface when it’s in the residential zones to help protect the existing neighborhoods and the environment. There is a new site plan review process proposed to replace the current use permit. There are four different levels of review, depending on the project complexity or impact on the neighborhood. It requires preliminary neighborhood meetings prior to filing. The staff or the Planning Commission will act on most projects; major projects with major impact on the City or the neighborhood would require concept plan approval by the Mayor and Council prior to the individual site plan reviews by the staff or the Planning Commission. This new code proposes a series of mixed-use zones, six of them to replace many of the current non-residential zones in the code. It will provide more flexibility in the types of uses allowed in those development areas. It also provides design guidelines for such things as façade treatment, window patterns, public use space and other design matters. It requires upper story setbacks in the transit district and corridor district proposed mixed-use zones. This means above certain heights, any further height would have to be set back from the front building line either with an upper story setback or by setting the entire building further back from the property line. It also will require a layback slope, i.e., a height limit in areas where a commercial or industrial development would adjoin residential development. This is to minimize the impact on tall buildings right next to residential neighborhoods. This is actually a continuation of a policy that is already in the current code.
Mr. Mellander stated that the new code proposes several new moderate density residential zones. These zones would permit townhouses, attached development (stacked townhouses), and multi-family development. They range in density from 10 units to the acre in the Residential Moderate Density (RMD-10) Zone, 15 units to the acre in the RMD-15 Zone, and 25 units to the acre in the RMD-25 Zone. RMD-15 is equivalent to garden apartments with a building height of 40 feet; RMD-25 is equivalent to a mid-rise apartment project with a building height of 75 feet.
Mr. Mellander stated that there are a number of special zones proposed. Most prominently, the committee has recommended the development of a public park zone. This is proposed to be placed in all park areas within the City. This would be all City-owned parks as well as any Park and Planning parks that are within the City boundaries. The committee has also recommended that the public park zone be applied to all of the recreational field areas of public school sites. In addition, the committee also covered the historic district zones. This essentially continues the existing procedures for designating historic sites and districts in the City. The committee also proposed a process for developing neighborhood conservation districts. These are the areas where neighborhoods may initiate a process to place additional development controls in a designated area of their neighborhoods. This process would require approval by the neighbors who would be affected by this before it can be initiated and implemented. It would also, in this case, implement the already approved and designated Lincoln Park Conservation District, which is awaiting zoning implementation for its final approval.
Mr. Mellander pointed out that there is a series of planned development zones proposed. These cover all of the old Planned Residential Unit developments that have been approved in the City over the last 30 years, areas such as King Farm, Fallsgrove, New Mark Commons, Rockshire – all these have their own special development standards and uses within them that may or may not have any relation to the underlying base zone. In order to help overcome these problems, and confirm these projects as conforming, the proposed draft establishes a series of Planned Development (PD) zones, one for each of these special developments.
Mr. Mellander stated that there is an issue regarding Nonconformities. As drafted right now, there will be nonconformities created if the draft Ordinance is adopted as it is. At the moment, there are no special provisions for grandfathering or mechanisms to avoid nonconformities. Nonconformities can be operated and maintained, indefinitely, but cannot be replaced, if abandoned or destroyed by more than 50% of the building structure. This is another area that will be of great interest and discussion during the worksessions with the Planning Commission and, based on comments from public input, this is an issue of significance.
Mr. Mellander noted that, in order to implement the new zones, the City will have to adopt a new zoning map for the entire city. This would reflect all of the new proposed zones that would be created by this process. The general parameters for the zoning map are that they it generally maintains the existing zone recommendations of the Master Plan. The single-family areas would retain their current residential zoning, and the PD zones would be placed on those areas that have planned developments already in place. Most of the non-residential areas proposed would be a part of that map.
Mr. Mellander stated that they have gone through an extensive public input process. The Mayor and Council authorized the publication and release of this proposed Ordinance and zoning map on October 8, 2007 and directed staff to conduct a public outreach program. Therefore, staff has conducted three public forums. Staff has had 26 meetings with various civic groups throughout the City. Staff has posted posters advertising the process throughout the City and sent notices and postcards. Staff has also met with various City Boards and Commissions to review with them the proposed draft and get their comments and, also, met with land use attorneys and developers. Tonight will begin the formal input before the Planning Commission, and the hearing will continue on January 30, 2008. The first worksession will begin on February 27, 2008. The Planning Commission will review the testimony and the Staff will review the recommendations and comments, and then ultimately make a recommendation on changes to this draft Ordinance. That revised draft would be forwarded to the Mayor and Council. The Mayor and Council would then hold formal public hearings on the draft amendment followed by their own worksessions prior to final action. The hearing tonight is to elicit comments from all interested parties. There is a pre-sign up list for those who called in ahead of time to sign up. Other speakers will be taken after hearing from those who are on the sign-up sheet.
Mr. Mellander pointed out that the staff report provides background and the reasons for the re-write, and commentary. Some of the major issues include comments and concerns raised during the public outreach process. The staff will make recommendations on changes at worksessions following the close of hearings and work with the Planning Commission to review the testimony and comments and try to come up with a formal recommendation.
The following citizens testified:
1. AnastasiasVassilas testified that he has lived and worked in Rockville since 1981 and he is an owner of a property on N. Stonestreet Avenue. He said that he is concerned about N. Stonestreet and the change in zoning on that street. Mr. Vassilas stated that he opposes the mixed-use zone; what does it mean? He implored the Planning Commission to create a grandfather clause for businesses that are already on N. Stonestreet. He said he does not want the business owners and their families losing their businesses.
Commissioner Tyner suggested to the audience, if the Commission runs out of time to hear their comments, please give their notes to staff.
2. Tom Doerr, 306 Mt. Vernon Place, testified that he represents the Rockville Bicycle Advisory Committee (RBAC). Mr. Doerr stated that he was appointed to represent RBAC to point out its concerns regarding the RORZOR Committee draft and its possible impacts on bicycling in Rockville. The RBAC has studied the draft Ordinance in depth and endeavors to improve it. Advocacy for bicycling in Rockville can be furthered with inclusion of additional language to the already existing and RORZOR draft. He said he hopes that a copy of the RBAC proposal has been made available to the Commission and hope that the Commission has read it. The proposal is lengthy due to the complexity of the RORZOR draft and the desire of the RBAC to enable development including bicycle functions as part of a multi-modal and mixed-use city environment. The RBAC included arguments for inclusion of bicycle facilities in future development that are formulated to coincide and enhance various chapters and plans that already as a part of the City of Rockville charter and master plans. The RORZOR draft, if accepted by Mayor and Council, will also become a part of the City Charter. The RBAC’s efforts to help the City broadly implement measures relating to the mixed-use development and multi-modal transportation are in earnest. RBAC’s proposal consists of five parts. An opening by the Executive Chair, Nancy Breen, discusses the needs of the City in developing mult-modal and alternative transportation strategies, which include bicycles in the City of Rockville. Next, an introduction of the RBAC and what it expects to accomplish. This is followed by an analysis of the RORZOR draft including arguments for or against specific language as currently included, additional language that the RBAC expects will help the City to reach its goals for multi-modal access and alternative transportation options, specifically pedestrian and bicycle access. Fourth are final arguments and comments to tie together the needs and the possibilities of mixed-use and multi-modal development. Last, an Appendix containing only the specific language offered by the RBAC for inclusion in the draft, including article/section/ paragraph notations. The RORZOR draft is a detailed document delineating site development in Rockville. The geometrics contained in the phrasing and layout is logical, and rational intent can easily be perceived. The additional language offered by the RBAC is crafted to match. The RBAC believes that as higher densities in land use lead to additional congestion of traffic that the ease of increasing a currently underutilized transportation option will become a critical factor in successful development. Mr. Doerr stated that where people may shop, work, or visit, there shall be parking facilities. Where people may live, there shall be bikeways. Between the bikeway corridors and the bicycle parking facilities, there must be access. As a driver of a motor vehicle, he can only drive from his home to his destination on a road. When nearing his destination, and a parking facility, he will be guided through an access way. The current RORZOR draft contains language delineating the creation of parking and access for motor vehicles. The RBAC is offering language for inclusion of bicycle access to and from bicycle parking facilities. The RBAC seeks to place bicycle use on a level with other transportation options. He stated that bicycles need to have bikeways and access ways and parking facilities. Failure to include methods to site bicycle facilities will result in a lost opportunity for the City.
3. Nancy Breen, 713 Ivy League Lane, testified that she chairs the RBAC, but she is now speaking for herself. Ms. Breen stated that she supports the purposes of the draft. She noted that RBAC’s purpose is to strengthen biking. She talked about how biking strengthens muscles and spoke about the high rate of obesity because of the lack of exercise in this country. Ms. Breen talked about the pollution from cars, buses, etc and the destruction of the environment by motor vehicles. She thanked RORZOR and the Planning Commission for the draft Ordinance.
4. James Whalen, Investment Properties testified about the new code. Mr. Whalen stated that he did a quick study comparing some existing projects to the proposed Zoning Ordinance and, he finds himself struggling to understand the long-range goals of the City. Mr. Whalen stated that Investment Properties just completed 21 Church Street, a six-story building at the Rockville Metro Station. It took a little over 8 years and $26M to construct this building. This project was reviewed by staff and approved by the Planning Commission unanimously six times. That includes two use permits with two extensions each. Yet, right on the heels of its completion, this new code says they got it all wrong. It is too tall, too big and they should have created a setback at the 4th floor instead of the one they designed on the 6th floor. Even though the code is silent on density and allows for height up to 75 feet, both are impossible to attain with all the other restrictions buried in the Ordinance. Simply put, this building would be nonconforming and impossible to re-build under the proposed code.
Mr. Whalen stated that there is also no grandfather provision, so if the unimaginable happens, they will be harmed beyond repair, since the building could not be rebuilt to the same floor area. This comparative result is the same for many well executed projects in Rockville including 1 Church Street and 11 N. Washington Street.
Mr. Whalen stated that a one-size-fits all approach is not appropriate for a Zoning Ordinance. This draft Ordinance needs a lot of work. It should be analyzed from all angles, be more site specific and receive input from objective experts. The City has hired consultants to study the Rockville Pike Corridor. Let them finish and let us listen to them. Please give this matter the time and attention it deserves, and ask the new Mayor and Council to open up their minds, make use of all available resources and allow the whole community to participate in this process.
5. Sue Seboda testified that she is the Dealer Principal and Managing Partner of Congressional VW and Mazda, a Rockville fixture since 1962 located on the corner of Rockville Pike and Wootton Parkway.
Ms. Seboda stated that the zoning code as proposed ignores some very basic economic realities. They should all be very concerned about the long term implications of the anti- business message throughout this code.
Ms. Seboda spoke about the code’s shortcomings involving the lack of any grandfathering provisions. Under the current code, they could rebuild what they have quickly and insurance would cover the costs if a building were to be destroyed. Under the new code, they would have to rebuild per the new development standards, if they could build a dealership at all that conforms to the restrictive standards. It would take about two years for a development of that size to receive all approvals and another year to construct the facility. They would be out of business.
Ms. Seboda stated that it is likely that the reason for grandfathering provisions being eliminated from the code was to encourage redevelopment. Please consider that, instead of achieving that goal, the City will most likely achieve the opposite result. Redevelopment may actually take longer and new business will bypass Rockville.
In summary, the code should have comprehensive grandfathering provisions to protect, attract, and retain businesses and employees in Rockville. Second, the portion of the code for Rockville Pike should be delayed until the conclusion of the master plan process. Third, all development standards should be reviewed for practicality. Fourth, it is her sincere hope that this process includes all interested parties and stakeholders.
6. Joseph Lynott, III, Attorney with Lynott, Lynott & Parsons testified that there are some important provisions of the draft Ordinance which warrant further study and revision. He said that it has been mentioned several times this evening regarding the lack of a grandfather provision in the Ordinance. This would create real world problems from a financing, insurance, and from a redevelopment standpoint. It would also adversely and substantially affect many attractive, venerable old institutions, and buildings in Rockville as well as some of the more leading projects that have been produced here, including the Town Center in the last several years. Mr. Lynott stated that this is an important mission and a provision for the amortization provision in the Ordinance would be a far inferior alternative to the grandfathering provision that is in most provisions in the Ordinance as it stands today. Mr. Lynott referred to his letter of December 14, 2007 submitted to staff and enclosed in the Commission’s packets.
Mr. Lynott stated that it is their view that the Ordinance has to provide for greater flexibility in the application of the development standards, particularly for those properties up and down Rockville Pike. Historically, in road widenings, takings for public transit and things of that nature, they have a lot of properties that are irregularly shaped, narrow and small, and with the strict application of these development standards would be close to impossible to be redeveloped. Mr. Lynott asked that, before the City creates a whole corridor of nonconforming uses up and down Rockville Pike and in the Town Center, that the City carefully examine this on a site-specific basis.
Mr. Lynott noted that, upon further review of the draft Ordinance since December 14, he came across what is probably an anomaly with respect to the proposed boundaries of the new Planned Development zone reflected on the zoning map with respect to the property at 11 North Washington Street and the Victoria Condominiums. He said that two of the buildings in this project, the Victoria Condominiums are depicted as being within the boundaries of the new Planned Development zone, while the remaining building at 11 North Washington Street is in a different zone (MXCD). He asked that this be subject of further review. Mr. Lynott submitted his letter to staff.
7. John Secan testified that he has lived in Montgomery County for over 40 years; he has operated an auto repair business in Rockville for 30 years. He said he was able to gather enough money together to buy a building on North Stonestreet Avenue. Mr. Secan said that he has some problems regarding nonconforming uses in the draft Ordinance. He said his building is very small and if it had to be closed down due to fire for the 50% loss regulation, it would be a worthless piece of property. The grandfathering clause would be nice, but considering the amount of investment that he has placed into his building as a future for his family, as an investment in real estate and for his retirement, and if the zoning is changed from the current zone, he would lose his retirement. He cannot tear the building down; he cannot build a house on it because it would be a nonconforming use. The building has been there forever and he does not see any reason for the change. Mr. Secan said that he does not understand why one side of North Stonestreet is MXB and the other side of the street is going to be turned into nonconforming and then to residential. He said that it is not fair.
8. Barry Dunn of Barry Dunn Associates of Alexandra testified that his firm are architects and planners. He said that they became involved with development in Rockville in the early 1980s. He has since become involved in several projects in Town Center including the Victoria, One Church Street, 11 N. Washington Street and just recently 21 Church Street. None of these would be possible today, if the current zoning were in effect. As an architect, he must comment some of the sections in the proposed zoning. 1) Minimum heights and setbacks – In the MXTD and MXCD zones, there should be no height requirement for 35 feet and 45 feet. This minimum height forces development to be at least three stories high, which may be impossible to achieve, especially on smaller sites. Since variation of façade is required in the Zoning Ordinance, why not provide variation in height. It is typical in historic examples. Above three stories, the setback requirement of 45 degrees may create the unusual form of step levels, which is alien to this area, as well as forcing the vertical building core elements of stairs and elevators further back from the front of the building. If its purpose is to achieve a reduction in building scale, is it really necessary next to a major highway. 2) Setbacks from residential development. The proposed 30-degree setback is particularly severe on small and narrow sites, especially when measured from the property line and not the affected residential building. In fact, on narrower sites, this requirement may be in conflict with the minimum height requirement for development. The next public use space – the requirement that 20% of the site be devoted to public use space is particularly severe and raises issues of public access and use on private property, releasing control and functionality. In addition, parking would be forced into above or below grade structures in order to create the space with associated high development costs. This public use space would have to connect to public streets for access and continuity, and since proposed buildings are required to be located on build-to lines, this may force the public use space behind buildings in an isolated location. Many of these zoning proposals are particularly onerous on smaller sites - is it the intention to encourage the amalgamation of smaller sites into larger ones to achieve the proposed rigid design form? Finally, his experience is that the best environments are created by the participation of all involved parties, each recognizing their respective importance.
9. Siegfried Krause testified that he owns a BMW auto repair shop (Sigy’s Service Center) on 110 Crabb Avenue. Mr. Krause stated that the MXT zone would have an adverse financial impact on his business, his income and would take his retirement away from him. He said he could not go anyplace else. This is a bad situation and it is not American. Mr. Krause said that the first meeting he went to with staff; he spoke with Mr. Wasilak and Mr. Wasilak informed him that they could put his property in MXB zone with a height restriction, but it has not happened yet. He was really disappointed that last time he was at City Hall. Mr. Krause stressed that the City gave him an occupancy permit and that permit has no expiration date. The City has an obligation to him and everybody else on N. Stonestreet Avenue because the City made a contract with him in that he can operate his business at 110 Crabb Avenue. He will not sell his land. This is very bad and taking it out on little people would destroy many many jobs.
Commissioner Johnson asked Mr. Krause if he would be satisfied if the draft zoning Ordinance had a grandfathering provision alone, or would he prefer that the zoning on the other side of the street. Mr. Krause replied that he wants to be treated fair and equally just like the other side zoned MXB.
10. Mikel Krause testified that he is the owner and proprietor of 110 Crabb Avenue, the other 50% of Sigy’s Service Center. Mr. Krause said they have problems with one side of the street being zoned MXB. He knows that the City has worked hard on height restrictions because it does not want a 100 foot building next to a residential area, but, he is sure the business owners could come to a resolution where they could become a mixed-use business, with the same uses and services, which he does not see in the current draft Ordinance. There is very little possible, basically, only a coffee shop and not even a drive-thru of any kind on the MXT zoned side of their street. Mr. Krause pointed out that they do not see anywhere else to go with their type of business because there is no other location in Rockville. The Rockville industrial area is shrinking; he does not see anybody establishing an auto repair business in Fallsgrove, or King Farm. Auto repair shops are disappearing. Therefore, where are they supposed to go if they cannot remain in the N. Stonestreet Avenue area, or if a building burns down, or if something happens where they would have to rebuild? One would not be able to even if one has to rebuild and redevelop the site, if the use is no longer viable. This is a big problem and he believes he speaks for many business owners here tonight.
11. Kate Savage testified that she resides at 505 Bradford Drive and she is here tonight as Chairperson of the Recreation and Park Advisory Board. Ms. Savage stated the Board recently met with Jim Wasilak and Katie Mencarini of the Planning staff, along with Planning Commissioner David Hill and RORZOR representative Christina Ginsberg. Ms. Savage pointed out the Board’s appreciation of the extra effort they made to fully brief the Board on the overall Zoning Ordinance and, particularly, the Park Zone section. This project is a huge undertaking and they asked a lot of questions.
The Board has followed the RORZOR process with interest over the past year or more and appreciates their recommendation to create a park zone. The Board believes the creation of a Public Park Zone would serve the following purposes: it will provide and maintain adequate open space areas within the City that would ensure conservation, safety, and recreational needs, both active and passive, are met; it will safeguard the interests of Rockville residents with respect to parks and open space; it will enhance the visual, economic, and environmental character of the community. This Zone would benefit the City by: enhancing the appearance and value of neighborhoods through the preservation of natural features, and the provision of recreation areas and open space; preserving forests and trees, both mature and emerging; and, provide adequate and dedicated space for City facilities and their required supporting facilities.
Ms. Savage stated that the Recreation and Park Board, with assistance from Recreation and Parks and Planning staff, has taken the liberty of proposing some alternative language for Section 25.14.6, the Public Park Zone section of the new Zoning Ordinance. The Board believes this language is somewhat clearer and simpler and urges the Planning Commission to adopt this new draft of the chapter.
Ms. Savage said that copies of the language have been submitted for the Commission’s review and for entry into the formal record, and they are also attached to this testimony.
In closing, Ms. Savage restated that the Recreation and Park Advisory Board supports the inclusion of a Public Park Zone in the new Zoning Ordinance and recommends adoption of the language changes proposed by the Board.
Commissioner Tyner pointed out that in the Board’s discussions, it has been suggested to the Commission by various sources of an addition to the Park Zone for those areas of the school properties that are currently recreational. Ms. Savage replied that this did come up and that was discussed, but they are looking for more clarification on that matter because there are several areas that the Board was not sure would necessarily conform to this.
Commissioner Hill stated that anyone listening tonight understands that the City is thinking of applying a Park Zone only to publicly owned property, not privately owned property.
12. Brian Martin testified that he is a resident, and a business owner at 300 N. Stonestreet. Mr. Martin stated that he lives in Twinbrook, is the president of History Associates Incorporated, a small business that employs over 50 people and owns and occupies the property at 300 N. Stonestreet Avenue.
History Associates is a professional business providing historical and information services to business clients locally, countrywide, and worldwide. The operations at their N. Stonestreet headquarters primarily involve historians and archivists preparing a variety of intellectual work products including such things as books, museum exhibits, expert witness testimony, archival collection descriptions, and records management plans. They also process and store historical documents and artifacts, in connection with their professional activities.
Throughout their 27-year history, they have been headquartered in and around the City of Rockville, the last five on Stonestreet. History Associates staff support local historical activities and regularly patronize local businesses. At their current location, they have also invested in the overall appearance of the neighborhood by adorning their building with a colorful mosaic and attractive landscaping.
Mr. Martin stated that History Associates is concerned that the description of the MXB zone in Section 25.13.02 is vague and inaccurate. While pointing out that the zone allows for “low and moderate density development” of office uses, the draft goes on to say that “This zone is not intended to provide for major employment so office uses are limited.” Nowhere does the draft Ordinance define the phrase “major employment” and they are concerned that this phrase will become a point of contention as their business evolves or would place undue constraints on the future value or use of the property. The draft Ordinance provides for some reasonable limitation on employment through parking constraints, and it is not necessary to introduce this undefined phrase. Moreover, the statement that “office uses are limited”, is inaccurate since general and professional office uses are permitted without condition and the only conditional office uses apply to banks with a drive-through and medical offices, which are limited to 4,000 square feet of floor area per tenant. Indeed the same phrase “office uses are limited” is more accurately ascribed to the Mixed Use Neighborhood Commercial (MXNC) zone where all office uses are either conditional or not permitted except for banks and financial institutions. Mr. Martin noted that he respectfully requests that the Planning Commission clarify the description of the MXB zone by eliminating the sentence, which reads “This zone is not intended to provide for major employment, so office uses are limited”, as it more accurately described only the MXNC zone and not the MXB zone.
Another fundamental concern for History Associates is ensuring that processing and storing historical documents and artifacts remain a permitted use with the MXB zone. It is not clear in the land use tables that this use would continue to be permitted in the MXB zone. Mr. Martin requested that the Planning Commission specifically include the processing and storage of historical documents and artifacts as a permitted use within the MXB zone.
13. Sally Stinner testified that she and her family live at 125 S. Washington Street. She stated that she would like to address the home based businesses. She said her husband, Dr. Schneider, owns his own business across the street from City Hall. He has been a dentist in their home for 30 years and in all that time, they have never had a complaint from either the City or their neighbors regarding their operation. Ms. Stinner stated that the family business is so small that they are dwarfed by City Hall and they do not have any impact on their street.
Ms. Stinner stated that she filed more detailed comments, which she sent to Mr. Wasilak yesterday, but, she would like the Ordinance to include an exemption to allow someone to ask for an exemption if they live in transitional zones and own home-based businesses. She pointed out that there is much impervious surface all over S. Washington Street. Ms. Stinner stated that it has been a long time since S. Washington Street was a quiet residential street and any remaining residential qualities are going with the courthouse. In addition, the Town Center Master Plan calls for a parking garage at Vinson Street, an expanded City Hall, and an asphalt parking lot up S. Washington Street. She looked at the MXT zoning and she does not see how that would help this street and would keep it residential. The lower half of the block is R-90, if the City is bound by the zoning. They would like the R-90 zone to remain and then the City could not take down the Bouic House. Ms. Stinner stated that if the City is going to change the zoning, it should move the transitional zoning across the street and, at least, they would have some flexibility when all this new development comes to their block.
14. Larry Gordon testified that he is a land use attorney with the firm of Shulman Rogers in Rockville. He said he would like to raise two issues: First is the need to grandfather existing uses and buildings, citywide. The second issue concerns the proposed development standards for automobile dealerships. Mr. Gordon stated that he has submitted a letter to staff.
Mr. Gordon stated that the threshold issue in adopting an entirely new Zoning Ordinance and creating all new zones is how existing uses, buildings and site improvements will be classified and treated. Unless made conforming through express grandfathering language, they will become nonconforming and subject to compliance with new standards, if temporarily discontinued or damaged by fire, flood, etc.
These uses and buildings were established in reliance upon and compliance with the City’s regulations that were in place when they were originally approved. Lenders have financed and refinanced properties in reliance on these approvals and the City, itself, has issued zoning compliance letters. To jeopardize the status of these assurances by making valid approvals nonconforming flies in the face of legitimate public policy, good faith and fundamental fairness. At Page 2 of his letter, he has proposed generic grandfathering language intended to address this citywide flaw in the draft Ordinance.
Mr. Gordon concluded by stating the staff proposal to consider amortization in lieu of grandfathering will not work. It will simply defer the fundamental problem to a future date. Jurisdictions amortize when, for valid public health and safety reasons, a class of uses or structures, such as billboards, is to be eliminated, not when they are being made subject to new development standards. The appropriate cure is across-the-board grandfathering through which existing buildings and uses will be protected. This will not preclude them from choosing to redevelop under the new Ordinance, but rather, will give them the option to which they are entitled.
Mr. Gordon stated that, for automobile dealerships, please recognize that they provide a necessary service and convenience to the citizens of Rockville. He said he has raised specific issues in his letter and the attachment he has provided from the Montgomery County Code regarding the draft Ordinance’s proposed requirements for public use space, minimum building heights, and other standards. The County has addressed and resolved similar issues, and provided express grandfathering language to protect pre-existing dealerships.
Commissioner Tyner inquired whether Mr. Gordon had any comment about dealerships nowadays that have apron parking out front for representational cars. Mr. Gordon replied that dealerships still relay very much on drive-by traffic. People see the new cars and become interested in shopping for cars. Therefore, it is crucial that dealerships are able to have space along the street so they are seen from the street.
Commissioner Hill pointed out that Mr. Gordon mentioned an incentive approach. He asked Mr. Gordon if he had a brief example of what he would think was compelling and appropriate. Mr. Gordon replied that what the City could include in the Ordinance would be, for example, alternative densities. If one wants to pursue a certain type of development and certain development standards, then accommodate a little more density.
15. William Kominers testified that he is an attorney with Holland & Knight. Mr. Kominers noted his letter of January 4,, 2008, included in the staff report attachments.
Mr. Kominers emphasized four main points: 1) Special Development Procedure Approvals and the New PD Zones. The proposed new Ordinance fails to protect the existing approvals for large scale, multi-phased projects. These projects have expended considerable resources, undergone extensive City review and made significant investment in infrastructure based on their reasonable expectation that they will be able to complete their plans as a consistent, unified whole. For the City to apply a new set of rules in mid-stream would threaten the viability of these projects and would be fundamentally unfair. Projects should be allowed to be completed in accordance with current approvals and standards.
Mr. Kominers stated that these new proposed zones should not be applied to large scaled, multi-phased projects in the process of being implemented. Instead, the existing approvals and standards should be grandfathered.
Mr. Kominers stated that the Special Development Procedure projects should be protected to the full extent of their existing approvals in the ways he has articulated more fully in his letter.
2) Treat Existing Building, Uses and Improvements as Conforming. The replacement of all existing zones with entirely different zones potentially makes existing buildings, uses and site improvements nonconforming. Instead, the new Ordinance must include language to make clear that if legally existing, these all remain “conforming”. Essentially, if they legally existed and conformed before, they should legally exist and conform afterward.
Mr. Kominers recommended additional language to the new Ordinance in Sections 25.01.09 and 25.08.01.
3) Design Standards (Rockville Pike; Town Center). Mr. Kominers stated that the combination of layback slope requirements, increased sidewalk widths, street trees and parking hidden or screened in the rear will make implementation of the MXCD zone problematic for many areas on the east side of Route 355. Street retail that is set back far from the street travel path and hidden by street trees will not create a desirable environment for retailers.
Retail establishments will not be seen and therefore will not be found. Combined with the inability to locate parking that is screened or hidden in the rear of buildings will result in problematic retail spaces.
Mr. Kominers pointed out that, in the Town Center, the MXTD sidewalk widths and public use space squeeze the footprint, forcing buildings upward to achieve reasonable density. Height setbacks for upper levels then prevent achieving allowable height and again create problem floor plates.
4) General Form-Based Deficiency. Mr. Kominers stated that a form-based code does not automatically improve development in Rockville. The fallacy of attempting to provide mathematical uniformity of design may actually result in poor design because of the inflexibility built into the form-based approach. The opportunity to achieve superior design character, as well as design solutions, which reflect the unique attributes of a specific site, will be far more difficult, and may be lost altogether.
16. Rick Ellinger testified that he is a property owner of 100-108 England Terrace and he is also operating an auto repair shop at one of his bays on the property. He said that this process began in 2003 when the business owners came in at the last hour. It seems as though they are coming in at the last hour again. They also have not received any notifications. He stated that his address has been his for at least 46 years. They should receive notification before the City comes in to take their I-1 zone. He said if his building is destroyed, he is not going to be insured with his insurance company with this 50% regulation to build it to the new code. There are also relocation problems. The City should think about what they are doing. He said he has worked on a task force before and he thought they came up with a good thing by leaving the I-1 zone intact, bring in the mixed-use and let the market forces take over. He said he does not know why they have to go through this again, and is this going to happen in 4 or 5 years. He pays $22,000 a year in taxes and he gets nothing in return.
17. John McKee testified that he lives in the College Gardens area. He recommends that the grandfathering provision be added to the new Ordinance. When changes in zoning make existing uses nonconforming, the provisions of that Section 25.08.02 and the termination provision in sub-paragraph 25.08.04.b deprive the owner of the right to sell an existing business at full value, add a business, or rebuild, without change, an existing structure over 50% destroyed by fire or other disasters. Mr. McKee said that that also includes every private R-90 home in Rockville. He said that rezoning without grandfathering, he believes, is an ex post facto law prohibited by the constitution, itself.
18. Wayne Harrison testified that he is president of the East Rockville Business Association and also HD Harrison & Sons on N. Stonestreet. Mr. Harrison stated that there are 108 businesses on N. Stonestreet. Most of those businesses are Mom and Pop shops, small businesses, which are the backbone of the economy of this country. Mr. Harrison stated that they wish to stay on Stonestreet; that is all they have done; he has worked with two of the Commissioners and they know the business owners’ position; they feel they are an important part of the neighborhood and the area. The only thing these business owners want is to keep their businesses, raise their families and keep their buildings. They do not want a zoning ordinance to come in and take their businesses away. Mr. Harrison stressed that what should be done is that the zoning on the west side of N. Stonestreet should be the same as the east side of N. Stonestreet. They have come a long way, but they are nowhere near where they need to be; we need to make sure that the businesses on N. Stonestreet can continue their work and support the City of Rockville. Don’t come in and change the zoning and push them out.
19. George Son-Hwa Chang testified that he owns a property located at 100 S. Adams Street. He said he came to Rockville 35 years ago. He said he is requesting the zoning change for this property from R-90 to O-2 or MXT. He said he has a hard time finding tenants because of the noise and traffic. Rezoning of this property would serve as a purpose to establish a transition between residential neighborhoods and commercial buildings. In order to use this house as office space, he would not have to alter the structure, appearance or parking spaces. The property already has a parking lot. Mr. Chang noted that because of the inadequate use of the house, it has generated insufficient income to pay for maintenance expenses such as property taxes, insurance, utilities and repairs, etc. He said he acquired this property 20 years ago.
Mr. Chang stated that rezoning of this property should not affect any other properties around it. It is located between a park on the west side across the street and an office building on the east side after a parking lot and a driveway along W. Jefferson Street.
20. Theordore Ruether testified that he lives at 11 Clemson Court in the College Gardens subdivision. He said he that he supports the advocacy for retention of the marvelous group of entrenprenuers on N. Stonestreet. It is a real blessing to the City and should be retained. Possibly, the street should be shined up a bit, but the functions should not be edited away.
Mr. Ruether stated that, with respect to the subdivision of College Gardens, the current zoning language is confusing and it would be difficult to apply the new zones. The language needs to be clarified, especially for the College Gardens Shopping Center. Mr. Ruether mentioned that Montgomery College is their neighbor. The campus now consists of 16,500 students. If that were a business and those were employees, it would be certainly the largest employer in Rockville and probably the very largest in Montgomery County.
Mr. Ruether brought up the provisions for accessory apartment options. Their community has opposed those effectively in the past, but, it appears to be open again and he would submit that maybe it is this idea of grandfathering and prior decisions by the City’s Board of Appeals that should have some standing.
21. Greg Orris testified that he and his wife have owned a certified auto repair business on England Terrace for 25 years. They have seven employees, including family members. Mr. Orris stated that if this new Zoning Ordinance is approved , it would eventually force them out of business. Customers bring vehicles to their shop for service, and their location is a key factor near the Metro and Rockville Pike. A long distance relocation would be a disaster for their business and for their employees and families. He asked the Planning Commission to consider the affect that this zoning would have on all these businesses and more importantly, the hundreds of people involved.
22. Heather Cuffi testified that she and her husband own a business on Crabb Avenue. Ms. Cuffi reiterated that the City is significantly changing zoning that would adversely affect the businesses in the community. This seems to be last minute, to please save our business, save our families, save our employees. Why is one side of the street not zoned, while the other side is zoned MXT so if a disaster should happen, business owners would not be able to renovate. It is very difficult to relocate to find a suitable location for an auto business. These businesses have been on the street for many years and she believes all of them deserve to be able to keep in business. Should a disaster happen, they should be able to rebuild the same building without the consideration of new zoning laws that would put them out of business because they would unable to comply with new standards.
Commissioner Johnson asked Ms. Cuffi if the City grandfathers uses on N. Stonestreet and a use is destroyed, should the City permit the business owner to construct the building exactly the way it was or should there be some standards that require upgradings. Ms. Cuffi replied that the standards should be in a joint session that is in compliance to the extent of safety and fire issues. However, don’t tell her that the building has to come down four feet because she does not want to go through hoops, but facelifts to make it better would be okay. Ms. Cuffi stated that grandfathering is necessary to sustain their business.
23. Martin Heilman testified that he is a resident of the Victoria and he is speaking on behalf of the Victoria Condominium Board. Mr. Heilman stated that they are concerned about the possibility of large buildings without adequate space between them and the adjacent building. Speaking specifically of the site between Maryland Avenue and the Victoria. He said that for the enjoyment of residents living in a residential bulding, please consider a minimum space between a residential building and an adjoining building.
24. Mousa Dayanzadeh testified that he and his family reside at 1716 Wilmart Street and he wrote a letter to Art Chambers on July 2006. He called the City to express their concern about their next door neighbor, who was building an addition. On December 5, 2005 after talking to several people, he spoke to an inspector and asked why the surrounding neighbors were not notified about the addition. The inspectors told him that there were no requirements. Mr. Dayanzadeh told the Commission that the addition has created major problems such as runoff discharges into their property, which resulted in flooding their basement. The addition as blocked the view from their living room. The neighbor’s air conditioning unit projects too much noise and bothers them each time the unit is on. Mr. Dayanzadeh said he called public works about the drainage. A public works inspector came to his house and inspected the basement. The inspector noticed the problem and said a survey of the area should have been done and what he saw should not have happened. After another heavy storm, the wall in the basement between their property and the next door property has started to crack. Mr. Dayanzadeh recommended that there be a design change in mansionization regarding height and drainage.
25. Reverend Jane Wood testified that she is the Pastor of Jerusalem Mt. Pleasant United Methodist Church at 21 Wood Lane. Reverend Wood stated that she asked if those properties that are currently in the historic district, what would be the impact on consolidation of lots within the historic district? Mr. Wasilak replied that he does not believe that there would be any change, but that he would verify that. Reverend Wood asked staff if no grandfathering would apply to current historic district properties? Ms. Block explained that any property designated historic would remain historic. Reverend Wood inquired that if a historic property burned down, would the current HDC standards apply, or would the owner have to bring the building up to current standards. Ms. Block replied that the owner would have to bring the building up to current standards subject to HDC review and approval. Mr. Wasilak stated that there are some exemptions for historic buildings where they do not necessarily have to comply with all of the setbacks.
26. Rosalie Bright testified that she lives in Rockville and she is concerned about some of the aesthetics. She pointed out that there are many trees along the road with power lines, so there is always a risk of power lines going down during bad weather, and, yet, in parking lots, there are not very many trees. She said she believes it would help energy use in general if they could find more shaded parking lots when visiting businesses. It helps the aesthetic look of the parking lot. Secondly, she is concerned that driving out small businesses with changes in regulations and ordinances amount to the same kind issue that has been happening around the country with eminent domain being used for economic reasons. Ms. Bright said she does not think it is fair and the City should not get caught up with that. The City needs to protect the full range of employment opportunities of businesses in the City. The City should encourage businesses to line the railroad that are relatively unattractive to live in. This would prevent a huge number of people from having to listen to the train while they are working in an office building or worse, trying to live their regular lives. Ms. Bright stated that the mansionization issue is a bother to her. The City should not be allowing this.
Commissioner Johnson asked Wayne Harrison a question. Except for the lack of grandfathering provisions, is he satisfied with the proposed zone for the west side of N. Stonestreet. Mr. Harrison replied that that would solve a lot of their problems. In response to Commissioner Johnson regarding grandfathering, Mr. Harrison stated that one of the problems with grandfathering is the amount of time one is allowed to rebuild. There are constraints on that and he does not see how anybody can rebuild in six months. There needs to be language to work around that provision.
27. Brigitta Mulligan testified that she lives at 1947 Lewis Avenue. She said she was informed by some people that there was going to be a requirement for home based businesses to be registered and they objected to that. She said she agrees and believes the City should not be worried about home occupations and registering them. She said there are too many other issues in the City than trying to regulate home based businesses.
Rick Ellinger questioned whether the Zoning Ordinance Revision book that was dated October 8, 2007 did come out that day because he would like to know why he received his copy on Monday. He asked why he did not receive the information earlier.
The second Public Hearing is scheduled for January 30.
New Business
The Commission discussed having more condensed meetings regarding the Twinbrook Neighborhood Plan, preparing a meeting schedule, a time to close the record, formal outcome of the North Stonestreet Task Force, how to draft the language regarding nonconforming/grandfathering definition, and why the Ordinance is being revised before the Rockville Pike Plan and Twinbrook Neighborhood Plan.
Chief of Planning Report
Mr. Wasilak stated that the Planning Commission’s 7th member will be appointed by the Mayor and Council at its next meeting.
ADJOURN
After further discussion, the meeting adjourned at 9:25 p.m.
