Chair Wiener announced that this public hearing is a continuation of the January 23, 2008 Public Hearing.  Chair Weiner discussed the format for the Public Hearing.  Each speaker is allowed three minutes to speak, only those who are representing a group will be allowed five minutes.  Chair Wiener stated that written testimony should be submitted to staff.  Chair Wiener stated that speakers who spoke at the January 23 public hearing would not be able to speak at this hearing.

Chair Wiener announced that a worksession would be held on the draft Zoning Ordinance and public testimony 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, being that this is a continuation of the public hearing from last week, no presentation on the draft Zoning Ordinance and Map will be made this evening.  Mr. Wasilak noted that no copies of the Zoning Ordinance are available at this time, but those who would like a copy of the entire document; the sign-up sheet is located at the back of the room. 

The following citizens testified:

1.  Arthur Fuccillo testified that he is an Executive Vice President with Lerner Enterprises.  Mr. Fuccillo submitted written testimony into the record.  He stated that Lerner Enterprises has made a substantial investment in the City of Rockville in Fallsgrove and Tower Oaks.  In fact, Lerner is moving its corporate offices to Tower Oaks Boulevard.  Lerner developed and owns the Fallsgrove Village Center and the adjacent office building.  They are getting ready to break ground on a Hilton Hotel and an office building within Fallsgrove.  Lerner also owns an undeveloped parcel in Fallsgrove, for which a detailed application was previously approved for 208,000 square feet office known as The Corporate Office Center.  The parcel is located on Research Boulevard. 

Mr. Fuccillo stated that Lerner Enterprises supports the City’s desire to update the Zoning Ordinance to make it user friendly, especially to raise the standards for new developments in the City.  Lerner prides itself in developing Class A buildings.  Mr. Fuccillo stated that he is here tonight to request that the City support a “grandfather” provision for all approved planned developments in the City.  He said he can only speak to his experience with Fallsgrove, but he assures the Commission that other approved concept plans are in the same situation.  As drafted, the Zoning Ordinance may include, when finalized, new development standards that would apply to Fallsgrove, even without any amendment to the concept plan.  The language that is presently written does not attempt to consider the consequences of even modest changes under a complex planned development pattern.  Therefore, Lerner suggests language that simply applies already agreed-upon standards unless the applicant chooses to proceed under the new standards.  This is precisely what was done in Loudoun County whereby an applicant could proceed under the 1972 Ordinance or opt into the 1993 Ordinance.  The precise language is in his written comments.  The overall concept plan approval for Fallsgrove was comprehensive in scope and set detailed development standards for each area.  However, applications on certain new development standards may result in a complete redesign.  More importantly, the developer, the Planning staff, the Planning Commission and the Mayor and Council, before approving Fallsgrove in January 2000, carefully considered each element of the development standards.  It was a two-year process.  Mr. Fuccillo noted that the infrastructure to support the development has already been built in Fallsgrove, and therefore, compromising Lerner’s ability to achieve the maximum density that was allocated in the concept plan would be a substantial breach of the agreement that Lerner made with the City via the concept plan approval.  Lerner relied on those approvals contained in the concept plan and implemented those conditions in advance, spending millions of dollars in infrastructure.  Mr. Fuccillo encouraged the Commission to consider his comments and provide grandfather language that he has suggested. 

In response to Commissioner Hill, Mr. Fuccillo explained that Lerner is concerned about large-scale change.  He said that an innocuous change that may set a building back by a certain distance or may require certain elements be implemented might affect his ability to build, for example, 208,000 square feet on a site.  If it is a bike rack or things that make the process work better or the building more user-friendly for the immediate area, than those are not the kind of issues that would bother him.  It is when a provision imposes a requirement on the developer that would affect his ability to develop 208,000 square feet in a building already approved, and that has several millions of dollars in architectural plans that are waiting for a tenant.  This Class A building would be affected by the new provision. 

Commissioner Hill pointed out that the City has taken the agreements for the different PD zones regarding large-scale developments, and basically adopted them and put them in the Ordinance for those particular zones.  The problem area for developers may be the places that the original plan that was approved, but is not detailed or specific enough.  Mr. Fuccillo stated that the imposition of the new Ordinance affects either an approved plan or the density that was allocated.  It may affect their ability to develop the site in accordance with the requirements approved in 2000.  In Loudoun County, they adopted a new ordinance called the 1993 Ordinance.  They incentivized developers to opt in, but they did not force them.  They could still exist under the 1972 Ordinance for all of their development.  He suggested that the Commission and staff consider having two ordinances that coexist.        

2.  Patricia Harris, Attorney with Holland and Knight, testified that her initial comments would pertain to a specific site.  On behalf of Rockville Associates at 1500 Rockville Pike, consisting of 7 acres north of Halpine Road, she asks the City to reconsider the zoning designation.  Ms. Harris explained that the property is near the Metro Station and is appropriately zoned, MXTD.  The current Ordinance designates the property MXCD, a zoning intended for corridor areas, not areas within close proximity to a Metro Station.  The Zoning Map also designates a publicly owned swath of land between the property and the railroad right-of-way as a public park.  This area is less than 35 feet in width and infeasible for any park purposes, especially given its proximity to the railroad tracks.  The recommended designation grossly affects the setback calculations for the property.  She asks that the Commission and staff review that requirement.  As staff stated previously, the public park designation was put on any publicly owned park within the City without any consideration of the impact. 

Ms. Harris stated that, consistent with the testimony heard last week, they disagree with the proposed treatment of pre-existing buildings.  They urge the City to classify these buildings as grandfathered as conforming structures.  To the extent these buildings legally conform prior to the adoption of the new Ordinance, they should continue to be classified as such after the new Ordinance is adopted.  This allows owners to make needed improvements or repairs, and maintain viability and value to their properties based on their investment-based expectations.  Equally important, a grandfathered conforming status allows for needed financing to occur.  They are concerned about the lack of flexibility and variety that would result from the proposed Zoning Ordinance.  The most interesting places are replete with variety of architecture and design.  Of particular concern are the height and setback requirements in the mixed-use zones.  The rear and side setbacks in the MXT zone of one-half the height of the buildings are unwarranted.  Such setbacks continue to promote an outdated suburban office park design.  Further, why is there a need to provide such significant setbacks between similarly situated buildings.  The combined upper story setbacks among the street, and laybacks in the MXCD and MXTD zones dramatically reduce the amount of building area that can be built above a certain height.  Does the City really only want six story buildings within walking distance of a metro?  They urge the Planning Commission to critically evaluate the impact of the proposed Ordinance on a few select sites just to determine what the impact would be regarding what could actually be constructed under the new Ordinance.  In the same vein, they ask that the Planning Commission to take a realistic look at the proposed sidewalk widths.  With respect to parking, the proposed Ordinance should provide more flexibility and the ability to apply more mixed-use standards in waivers and reductions.  They also urge the Commission to take a look at requiring maximums instead of minimums, which is the direction that the County is going.   

Commissioner Hill asked Ms. Harris if she was going to nominate some sites as a model.  Ms. Harris replied that she would.  Commissioner Hill recommended that those in the audience should do that because the Commission needs some ideas about those sites that are controversial.

3.  Paul Gedo testified that he is a clinical psychologist who has practiced part-time in Rockville since 1991.  Mr. Gedo asked the Commission to reconsider the proposed Ordinance covering home based businesses for the following reasons:  Most of his patients live nearby and work with him, partly because the commute is short.  If he were forced to relocate, they would have a longer drive.  This would create more traffic and pollution, two factors the new Ordinance is designed to limit.  The Ordinance proposes rigid limits, which would clash with professional responsibilities.  For example, if he has already seen five scheduled patients in a day and someone called in a crisis, this proposed Ordinance would prohibit him from scheduling an emergency session with a patient in need.  If his business is considered a major one, the Board of Appeals could reject his request for a special exception and shut his business down.  Mr. Gedo pointed out that he would not be able to afford a separate office rental and his mortgage, which increased considerably when he invested in an addition including the home office he improved in line with the existing Ordinance at the time.  If he would sell his home in the current market, he would sustain enormous loss with no recourse.  Mr. Gedo stated that he does not want to give up his business or home.  He said that the proposed changes are unfair.  He has invested money and effort into building a professional business space in the City and they are now being required to comply with new requirements that are more restricting.  Mr. Gedo stated that he respectfully suggests that the whole idea of regulating home based medical or professional businesses represents an unnecessary regulatory burden on those who provide valuable and desirable services to Rockville residents and while making minimal impact on the environment.  He suggested grandfathering in those who have established completely legal and legitimate professional businesses long before this new Ordinance was proposed.  He provided language for grandfathering in professional businesses.   

4.  Ginta Remeikis testified that she is a psychologist and psychoanalyst who has lived and practiced in Rockville for over 15 years.  Since her oldest daughter was born 13 years ago, she has practiced part-time from a home office, which was established in line with the Zoning Ordinance applicable at the time.  Ms. Remeikis stated that she feels that the proposed homebased business enterprises regulation would cripple her ability to practice and raise her children in a manner she has deemed best for them.  Ms. Remeikis stated that she is concerned that the new Ordinance involves scrutiny of her patients’ comings and goings.  Any reporting of patient names to a city office would be an intrusion on their privacy and unethical.  This requirement, alone, would totally eliminate the possibility of any home based psychotherapy or medical office in Rockville.  Home offices are a long-standing tradition in their profession.  Some patients are particularly concerned about their privacy or feel self conscious about going to a professional office building for psychiatric care.  They prefer and benefit more fully from treatment conducted in a quiet private home office.  Forcing herself and other colleagues out of home-based practices by regulating the business would reduce patients’ freedom of choice in Rockville.  Ms. Remeikis stated that her other objection to the proposed Ordinance is that it would have a very negative impact on her availability to her children.  Like many professional women who work for financial and personal reasons, she is also the primary caregiver for her school age daughters.  Working in a home office allows her the flexibility and proximity to be involved with her daughters’ homework and other activities.  An Ordinance, which would force her to practice elsewhere, would deprive her of this freedom and her children of more regular contact with her, as well as force her to work longer hours to pay for an outside office.   

Ms. Remeikis pointed out that the City welcomed her establishing a home based private practice when she and her husband decided to move to Rockville.  This flexibility was the most important factor in their investment in a Rockville home.  She has complied with the Zoning Ordinance regulations in building her practice and is careful her practice does not impact on the neighborhood.  She said it is fundamentally unfair to change the rules in the middle of the game and to make her move a practice she has invested in by renovating her home to provide her office.  She said that basic fairness calls for a grandfather clause, which would exempt those who came to Rockville in good faith. 

5.  Rich Gottfried testified that he is representing the Home Based Business Action Team (HBBAT).      Mr. Gottfried stated that there seems to be a great effort to rezone the City to make it easier for developers.  How about giving the citizens of Rockville one zone for them, the Empowerment Zone.  The benefits of the Empowerment Zone provides businesses with incentives to hire individuals who both live and work in an Empowerment Zone, claim the credit, which is equal to 20% of qualified zone wages, which amount to about $3,000 per employee, each year.  Washington D.C. and Baltimore City are currently Empowerment Zones and Montgomery County applied to be an Empowerment Zone.  Why not the City of Rockville?  Please work on applying to have the City of Rockville become an improved Empowerment Zone. 

Mr. Gottfried recommended keeping the Veirs Mill Road shopping centers and the Baltimore Road shopping centers in the General Commercial zone, and not change them to a Mixed-Use Neighborhood Commercial Zone. 

Mr. Gottfried stated that the HBBA has submitted 13 pages of comments, questions, and suggestions on Article 9, Section 25.09-07, which are seven pages more than the regulation, itself.  The HBBA Team would like to review the highlights from its written comments.  1) This article needs a no-impact home based business exemption regulation for businesses that do not have to register nor pay any fees or additional tax revenue to the City of Rockville.  Montgomery County’s no impact business regulations state that “no more than five vehicle visits per week excluding deliveries; no non-resident employees, and no discernible impact on the surroundings.”  If one has a no-impact business, he/she does not have to do anything else.  Washington D.C. has a no-impact business regulation that states that if the employer’s gross income is under $50,000, he/she does not have to register or pay any fees to D.C.  Why doesn’t the City of Rockville have a no-impact business exemption regulation?  Have there been significant neighborhood complaints about home-based businesses creating noise, odors, or vibrations at the property line?  2) There is no public outreach for the home-based businesses.  The six pages of regulations should have been mailed to all the residents of Rockville.  3) The regulation as written violates the privacy laws by requiring keeping logs, counting cars, and requiring the Chief of Planning to do inspections at will.  One complaint is a violation.  Denial of access is an admission of guilt.  4) A registry made available for public inspection may cause more neighborhood crimes, because criminals would know the addresses of the home-based businesses and would assume they would have large amounts of cash and other valuable items, and, therefore, would become subject of being more of a target.  5) What is the cost to the Rockville taxpayer for implementing this regulation versus a benefit of having one at all for home-based businesses?  Why are these regulations even necessary?  Doesn’t the Planning Division have enough to do to try to build three more town centers on Rockville Pike?  These regulations would be an administrative burden on the Planning Division as well as on home-based businesses.  6) Signage required for home-based businesses.  How about one exterior illuminated sign of approximately 144 square inches, which is about half the size of a political lawn sign. 

In summary, Mr. Gottfried requested that the section of Article 9 on home-based business be abolished, implement fair and reasonable regulations so that home-based businesses are not unfairly scrutinized and penalized.  Let’s keep Rockville’s home-based businesses in Rockville where they are needed.   

In response to Commissioner Hill, Mr. Gottfried addressed the complaint issue.  He pointed out that there should be more than one complaint of the home-based business filed with the City to warrant inspection.  One complaint could put a person out of business.  The section does not address this issue.  Commissioner Hill commented that one of the targets of the regulation is to get a fix on traffic generation in the neighborhood and if a large number of home based businesses in residential neighborhoods generate significant traffic that would be a great impact.       

6.  Dave Kerlina testified that he is President of Potomac Woods Citizens Association (PWCA).  The PWCA represents over 400 households in Rockville including Potomac Woods, Orchard Ridge, and Falls Orchard subdivisions.  The subdivisions are located west of I-270 between Montrose Road and Wootton Parkway east of Falls Road.  Mr. Kerlina stated that a majority of the community is zoned R-90, but a small portion is zoned R200.  The Board of Directors, after a review of the draft Zoning Ordinance, passed the following resolution.  PWCA believes Rockville is an ideal place to live, work, and play, and supports the City’s efforts to bring higher standards to redevelopment within the City.  However, PWCA does not support including the R-90 Zone in mansionization restrictions in new housing and/or additions to existing houses.  The regulations would create a disparity with the R-200 areas of their community, which are not included in the mansionization regulations and would affectively prohibit many homeowners from adding onto their homes.  Many property owners desire to stay in the neighborhood because of its quality of services, schools, and convenience to major arteries.  However, the existing homes do not adequately accommodate today’s families, and under the proposed regulation, some homes could not be improved, forcing people out of the area in search of more modern living spaces.  The site plan process required to accommodate some larger homes is too cumbersome and expensive for ordinary homeowners.  Moreover, mansionization that the Zoning Ordinance is trying to regulate and does not present the same issues in the R-90 communities on the edges of the City as in the core areas.  PWCA believes the existing R-90 zoning regulations adequately protect the integrity of their neighborhood.  Finally, PWCA fears that restrictions on square footage would act to devalue their properties as compared to those immediately adjacent neighborhoods outside the City.  Therefore, the PWCA asks the City and Planning Commission to remove the R-90 zone from the mansionization section of the draft Zoning Ordinance.  Specifically PWCA requests the following changes:  Definition of height of buildings, Section e.5., delete all references to the R-90 Zone and Section 25.10.08; delete all references to the R-90 Zone. 

Commissioner Ostell asked what square foot size house would be appropriate.  Mr. Kerlina replied that their impression was that it should be limited to about 3,000 square feet.  He noted that he would bring this question up to their Board of Directors and would report to the Commission and staff.    

7.  Kurt Meeske testified that he is Vice President of Development of Combined Properties.  Mr. Meeske stated that Combined Properties is a full service real estate firm headquartered in this area, concentrating on retail in mixed-use centers in the Washington Metropolitan area and Southern California.  Combined Properties owns College Plaza Shopping Center on Rockville Pike, just north of Montgomery College.  Combined Properties was the original developer of the property in the 1960s.  They have made some façade upgrades to the shopping center and plan to continue to maintain the existing configuration and tenants until the property is positioned for a complete redevelopment.  Their long-term vision for the site is a sophisticated mixed-use property of moderate density.  This is a long-term strategy, as current market conditions are not conducive to redevelopment, and they have no clues on when that might change.  Therefore, his comments with respect to the Zoning Ordinance relate both to the immediate impact and long-term potential.  A detailed written summary of his comments and suggested solutions will be provided separately and he asked that the Commission review them in conjunction with his testimony.  Mr. Meeske stated that he has two main points that he would like to make this evening.  First, the proposed zoning for College Plaza is inappropriate.  The staff report states that the new zones would be mapped to be similar as possible to the existing zoning.  However, the property’s current zoning is C-2.  The proposed zoning is Mixed-Use Neighborhood Commercial (MXNC).  In reading the proposed clauses of these two zones, they are not similar at all.  Implementation of the MXNC Zone would result in immediately half of the shopping center becoming virtually nonconforming because there are no permitted uses in that zone.  However, in reading the proposed purpose clause of the C-2, the Mixed-use Corridor District (MXCD) Zone is very similar in the development standards and uses.  Therefore, they recommend that the site be zoned MXCD.  Second, the draft Zoning Ordinance does not include any grandfather language and the nonconforming requirements are too inflexible.  If they were to apply the MXNC Zone to College Plaza, the entire structure and many of the uses would become nonconforming.  With no grandfather language, their ability to continue to have a viable shopping center would become endangered.  Re-tenanting is restricted and any build-out for new tenants would involve a hearing process, which may be a deal-breaker for certain tenants because of cost, time, and risk.  Therefore, as the Commission heard from others at the last hearing, it is imperative that grandfathering language should be added to the Ordinance.             

Commissioner Tyner pointed out that there is a great deal of comment about College Plaza in terms of what kind of zoning that RORZOR would actually place on it.  He asked Mr. Meeske what Combined Properties would consider for the site, if the economy improves.  Mr. Meeske said he would submit those comments at a later time. 

8.  Steven Exelbert testified that he is the President of Salco Mechanical Contractors at 615 S. Stonestreet Avenue.  They are a company that engages in construction of new multi-family housing projects and other commercial construction and employ 100 men and women in their company.  Mr. Exelbert pointed out that ten years ago, they moved from Virginia to Rockville, specifically, because they believed they had a wonderful location to operate from and the zoning was appropriate for their use.  He said the company has grown, and wants to continue to grow in the City of Rockville.  Mr. Exelbert stated that the current zoning will be extremely limited as a result of the proposed changes.  The zone changes to MXNC, MXT and MXE Zones would limit their operation in the future.  Mr. Exelbert noted that these types of companies along that corridor offer services to all the people and by creating the new zoning regulations would drive and limit those services and businesses from people in the future.  It does not make sense for a resident in this community to have to go elsewhere to support their normal operations.  In addition, three years ago, he moved here because he believed they had a very important stake in this community, and if these changes are enacted, the City would be doing harm to a thriving community.

Commissioner Tyner asked Mr. Exelbert if he would consider the I-1 or I-H zones in the draft ordinance as a possibility for his kind of business.  Mr. Exelbert replied that he would prefer to have that zone.  He noted that it makes sense to have those types of businesses near the tracks in lieu of residential.   

9.  Nancy Regelin testified that she is an attorney with Shulman Rogers and she was also on the RORZOR Committee for 18 months.  Ms. Regelin stated that there is much good in the draft Ordinance, but this evening she will talk about things that are still not right.  She said she would discuss nonconformity, grandfathering, vesting, and the special development procedures.  Nonconformity is like being pregnant, all one needs is one zoning change and it is nonconforming.  That means that there would be an impact on the ability to sell, to refinance, to insure, to renew insurance, the ability to make improvements, to expand, and the ability to rebuild, and to collect insurance on the policy, if there is a casualty.  Jurisdictions historically do a grandfather clause, but what does grandfathering mean?  The key point is if one is actually going to grandfather someone, please grandfather him or her as conforming.  Do not use “legally nonconforming”, do not use what the County uses, which is “not nonconforming”; in plain English, grandfather it as “nonconforming”.  This is important because people like her and the Chief of Planning are asked to certify at the time a property is sold, to title companies, to lenders, whether a property is conforming.  Ms. Regelin said she also wants people to understanding that vesting is not grandfathering.  If they read the vesting clause, it says that if a property owner vests, he/she continues to exist; he/she does not have to tear it down.  It means if he/she starts building, he/she can continue to build.  It specifically said if what one is going to build is not in conformance with the new zone, then the structure is not nonconforming.  So, vesting is not grandfathering.  Finally, please look very carefully at the special development procedures because there are transition provisions in Article 8, which specifically say that the transition provisions are going to be addressed in Article 14, but when you go there, they are mentioned as intent, not as a specific state of provision.  Ms. Regelin also asked that the Planning Commission ask staff to be very clear whether they are going to need a text amendment to make any change to any special development zone because they have incorporated the resolution as part of the Zoning Ordinance.  Ms. Regelin pointed out that that would be a nightmare of proportions that she does not think the City wants to see.  Ms. Regelin stated that the sidewalk width provisions in the draft Ordinance are crazy, “Just Say No”.  How much asphalt and concrete do they need to live within the City?   

Commissioner Hill asked Ms. Regelin if she was in favor of changing the nonconforming nature in the draft Ordinance, or whether she is suggesting that there may be a way to say, “one can be nonconforming to some extent without being completely nonconforming”.  Ms. Regelin explained that what she was saying was that when she or the Chief of Planning has to certify whether something is conforming or not; it is black or white.  When using the word nonconformity or creating nonconformities, which can happen either by changing the zone or by changing the Zoning Ordinance, or both, the City is reeking havoc on a property just because of one slight nonconformity that is created; it becomes nonconforming.  So, one small change puts a property owner into a different category and that is why the grandfathering clause is so important.  One thing that came up at the last hearing when people were asking about insurance, and she looked into the matter to see what impact insurance would have on a structure that becomes nonconforming have on a property owner’s insurance.  Ms. Regelin explained that so many lenders are now forcing their borrowers to get replacement costs, which means, if a structure burns down, the insurance would cover the replacement costs.  If a property owner chooses not to repair or replace or he/she cannot, which is the issue here, the insurance company does not have to pay the property owner’s replacement cost.  They only have to pay actual cost, which is some value that is based on what the value of the property was on the day of the casualty, less depreciation and taking into consideration factors of condition and other factors.  She is worried about the fact that a property is nonconforming by another factor, which would also depress the value of the amount of dollars one gets back from his/her insurance company.  Ms. Regelin pointed out that what the business people are saying is correct in that there is an impact here and the nonconformity issue is the number one issue. 

In response to Commissioner Hill, Ms. Regelin further explained that is the reality of life.  How is one going to choose where the gray line is when one is slightly nonconforming and when one is mostly nonconforming.  She is saying that today, the legal fact of the matter is that the language in the draft Ordinance is “black or white”, a structure is either conforming or nonconforming.           

10.  Greg Trimmer testified that he is speaking on behalf of JBG Companies.  He stated that, as owner of nearly a dozen properties covering approximately 40 acres within the City of Rockville, JBG has a significant interest in the future of the Zoning Ordinance.  To that end, they have worked closely with the world-renowned architect, David M. Schwartz, in reviewing the proposed code, and have assembled a 30-page document with photos and diagrams documenting their findings.  Mr. Trimmer stated that this evening they would like to highlight the main takeaways from their work with David Schwartz.  He said his comments would focus primarily on development issues, while his colleague, Tony Greenberg, speaking next, will focus on design issues. 

Mr. Trimmer referred to 1) Height Minimums, Maximums and Setbacks (Section 25.13.05).  The intent of limiting high-density, large-scale buildings within certain zones is admirable and necessary in all zoning and planning codes.  Many of the Dimensional Development Standards proposed in the draft, however, would force inefficient building depths as well as ill-proportioned and/or uneconomical buildings in the MXTD Zone – the exact type of transit-oriented zone generally targeted for increased density.  For example,  the proposed maximum street line height of 55 feet is less than the IBC building code allowance in wood frame construction of 60 feet, which equates to four stories over one level of retail.  This configuration is nationally recognized as the most efficient way to accomplish mixed-use development in a low-density manner.  They recommend a minor adjustment to the street height to allow 60 feet.

Another example: The proposed 1:1 ratio setback above the street wall so diminishes the amount of building area that can be built above 60 feet that it will be economically infeasible to construct any buildings taller than 55 feet.  This occurs because above this height the construction type changes to concrete or steel, nearly doubling the construction cost.  There needs to be enough buildable area above 55 feet to justify the cost of changing the first five stories to concrete as well. 

To attain the maximum height of 120 feet, a building would require a 75-foot setback from the street wall.  This creates a building depth of at least 100 feet, which is simply unleaseable – it is too deep and dark for any use.  Further, few sites exist in Rockville that have sufficient depth to allow setbacks of this magnitude.

Mr. Trimmer stated that they recommend elimination of this provision and replacement with a footprint size limit over 60 feet that provides flexibility to landowners to properly place development height that would be reviewed by the Planning Commission.

2) Sidewalk Widths (Section 25.17.05):  It is critical to create accommodating sidewalks.  If a sidewalk is too wide, development potential would not be realized, as retail would be unsuccessful due to the lack of sidewalk browsing and sidewalks that seem barren, both diminishing the vitality of the neighborhood.  Whereas the current draft proposes sidewalks of 20-30 feet, industry experts generally concur that sidewalks ranging in width from 10-16 feet are better suited to mixed-use commercial neighborhoods, as they provide for good pedestrian circulation and encourage window-shopping, while allowing adequate room for street-side amenities and landscaping elements that attract both businesses and customers.  Mr. Trimmer said that they strongly recommend a reduction in codified sidewalk width to 10-16 feet.

3) Front of Building Parking (Section 25.13.07):  The intent of not permitting front of building parking is correct in order to avoid the type of development closely associated with suburban strip malls.  However, the viability of ground floor retail in mixed-use development is contingent upon the provision of quick, easily accessible on-street spaces for streets that do not currently allow for on-street parking, e.g. Rockville Pike.  The addition of on-street parking, angled parking, or parked access roads in front of buildings would significantly enhance the viability and vitality of commercial corridors and provide a safety buffer to pedestrians.  The code can easily be modified to both prevent strip malls and allow for minimal short term retail parking.

4) Architectural Treatments and Materials (Section 25.13.06):  Few buildings, particularly in an urban setting, maintain the same level of design on all sides and uses as the proposed draft Ordinance would require.  Currently, landowners have the flexibility to spend construction dollars where they will have the most impact and benefit to the public:  along the principal street(s).  If all facades were designed to the same level as proposed, the net effect would be a cheapening of principal materials to afford the cladding of all facades, and consequently, a lower level of design on all facades.  As such, they recommend flexibility in material use on non-principle facades.   

Commissioner Tyner questioned the sidewalk issue.  He asked if Mr. Trimmer could conceive of variable sidewalk widths depending not so much on how close buildings are to the street, but whether it is a thoroughfare to a metro station or whether it happens to be part of a bike path as established by the City.  Mr. Trimmer explained that he could not speak to the specific dimensions that would be appropriate, but there should be some flexibility in the sidewalk widths.  There are many examples of proper sidewalk widths.  He noted that Arlington has struggled with the issue.  He said that 16 to18 feet is preferable.  Bethesda Row is a good example.  People want to walk among the periphery; they want to engage other people and be able to shop and dine.  To the extent where there is a minimal amount of congestion at peak hours in Bethesda, people prefer narrower space to walk on.  

11.  Tony Greenberg testified that he would be speaking on behalf of JBG Companies, specifically Twinbrook Commons Residential North, LLC.  Mr. Greenberg stated that he will focus on the aesthetic and architectural implications.  Mr. Greenberg stated that the City said that the proposed draft Ordinance is an opportunity for the City to remake its image, an opportunity to protect and enhance the aesthetic and visual character of the City.  They feel that, unfortunately, many of the proposed requirements will prevent rather than encourage good architecture and design.  Mr. Greenberg focused specifically on Article 13, Mixed-Use Zones – the MXTD Zone, specifically.  He said, in principle, limiting high-density, large scale buildings within certain zones is admirable.  However, many of the proposed standards are likely to produce ill-proportioned unattractive buildings and ill-defined or monotonous street edges.  For example, the narrow proposed 45 to 55 foot building height range at the street in the MXTD Zone would result in a monotonous street wall limiting visual interest that could be achieved with varying heights.  Further, the proposed 1:1 ratio setback above 55 feet would result in either block type buildings of 45 to 55 foot heights, towers developed in the middle of sites, which would erode the street edge and/or result in unattractive stepped buildings, which would draw more attention due to the unusual massing rather than their façade design.  Mr. Greenberg stated that in looking at the great streets in the world, they are consistently lined with buildings of varying heights and setback.  Mr. Greenberg stated that height is most appropriate when placed at key corners or gateways to sites.  They recommend eliminating the height minimum at the street or setting it at 18 or 20 feet, eliminating the 1:1 setback above 55 feet, and instead, limiting the allowable footprint above 60 feet.  The strategy has been successful in Vancouver in allowing the proper placement of height without creating looming towers. 

Mr. Greenberg stated that his sidewalk width comments, which he submitted, have been covered thoroughly. 

Mr. Greenberg commented on Section 25.13.06, Façade Breaks.  JBG supports the City’s goal of eliminating buildings with massive scale, impersonal exterior facades and a lack of visual interest.  That said, a prescriptive requirement mandating a projection or recess every 50 feet on facades of 100 feet or greater would do very little to accomplish this and would in fact prevent architectural solutions that would achieve the stated goal.  By forcing one architectural solution, this would effectively eliminate other potentially more appropriate solutions involving fenestration.  One cannot regulate great design; one can only encourage it. 

Architectural treatments and materials in 25.13.06 – Few buildings, particularly in an urban setting, maintain the same level of design on all sides and uses as the proposed draft would require.  Historically, the level of design depends on the building’s particular context.  For example, a city hall or library in the middle of a public square might have the same level of design on all sides whereas a building along Main Street will front the street with a façade having the highest level of design with progressively more simplified designs fronting onto side streets, alleys and rear lot areas.  Mr. Greenburg stated that the City said that it hopes to raise the standards for the built environment, an objective that JBG wholeheartedly applauds, but they feel that many of the standards in the draft Ordinance seem likely to stand in the way of that objective.         

Commissioner Hill said he had two questions.  One was that the towers in the middle of the site would erode the street edge.  Commissioner Hill said he is concerned about that comment because one of the City’s objectives in trying to limit the street height is to keep a pedestrian scale streetscape.  Commissioner Hill asked Mr. Greenburg why he felt that the City would not accomplish that objective.  Mr. Greenburg replied that he is worried that the proposed standards would actually have a non-desirable result, because it is uneconomical with the setbacks, and it would so limit the amount of floor area above 50 feet on both sides such that it would be uneconomical to build those towers setback from the street.  The City would end up with 120 feet in the middle of a site.  The only way to build to 120 feet would be to push it back from the street, considerably.  As a result, there would be barren open space in front of and all sides of those towers. 

Commissioner Hill questioned Mr. Greenberg’s description of another objective in that good streets have variations in height and setback.  Mr. Greenberg explained that he was speaking specifically of variations in setbacks at the street edge.  He recommended against mandating a minimum of 45 to 55 feet, for example, in the MXTD Zone, as it would limit the opportunity to have two or three-story retail.  Commissioner Hill replied that the City was trying to accomplish with the setback requirement for that height was that even the building itself could be taller if set back, which would not compromise the pedestrian scale of the street.           

Commissioner Tyner and Mr. Greenberg discussed the Façade Break Section in the draft Ordinance.  Mr. Greenberg stated that putting masonry on all sides of a large building would be difficult.  If it is just uniformity, the developer may end up with a lower quality façade material.  He assumes that a small property owner would face the same issue.      

12.  Thomas Doerr testified that he lives at 306 Mt. Vernon Place in the Hungerford subdivision.  Mr. Doerr stated that he has received a response that the Planning Commission has received the three texts he sent concerning issues relevant to RORZOR.  Those are issues dealing with replacement of structures and infrastructure in mixed-use development, open spaces for dog walking in mixed-use development and signage in mixed-use development.  He said he hopes his comments could help in the Commission’s struggles with the issues concerning this rewrite of the construction codes for the City.   One additional issue that he considers relevant to the restructuring of the City that he would like to visit tonight is architectural style. 

Mr. Doerr stated that many municipalities and institutions have styles of buildings that have been adopted by the controlling interests in various locales.  They have been used as a tool to guide the shaping of the municipality or institution.  The federal buildings in the district have generally been built in a neo-classical style over the years and Alexandria’s federal buildings have of late sported granite and marble sheathing and columns.  Many universities have developed a building look that remains consistent across the campus.  San Francisco has districts with strict guidelines for architectural styling.  Many housing subdivisions have rules and guidelines, which are strictly enforced.  Mr. Doerr said that he is not calling for Rockville to adopt such a plan; quite the contrary.  He said he hopes to see the City emerge from redevelopment with varied and superior architectural designs in its buildings.  Not only for mixed use, but also for single family residential sites where a structure is replaced or significantly modified. 

Mr. Doerr stated that large commercial building developers might be interested to compete among each other for stature in designing unique and successful structures, especially in the City’s mixed-use zones.  If all of the buildings are different, those differences could be used as a marketing tool in determining differing values between locations that are otherwise identical.  Neighborhoods in the City will become less visually monotonous with the inclusion of additional shapes of housing and varied textures comprising their exteriors.  Knowledge that a property owner might compete for stature with unique and handsome designs might ameliorate the inability of homeowners to simply build larger than everyone else in an attempt to demonstrate their superiority or somehow create additional value.  Mr. Doerr said that he is certain that, with the large number of houses exceeding 50 years of age in the City, that their infrastructure is not only deteriorating, but, also does not meet today’s needs and standards.  R-factors of windows and walls, usefully designed HVAC ducts and adequate electrical service are standouts in this regard.  All of those houses are candidates for extensive renovation.  It would be nice if some originality entered some of their neighborhoods. 

Mr. Doerr stated that he does not believe that the RORZOR draft currently expresses a certain style choice or delineates a method for determining such.  This is good.  However, as pressure is applied to the Planning Commission and Mayor and Council to restrain the inevitable change to the City’s architectural landscape, he would ask that the people who are paying to build or redevelop would be allowed to maintain the right to choose what style a structure has for an exterior, just as the original developers of the structures in the City chose what they thought was appropriate for their needs to build and develop.  60 years ago, a modified cape cod was the pinnacle of single-family housing design and probably represented an easy path to achieve profit from effort.  Forty years ago, the split foyer appeared as a winning choice and so, too, the colonial and then the neo-colonial.  These choices were made by the people taking the risk and working to provide a salable product.  Please do not handcuff those who redevelop with the subjective opinions of those who are not financially directly at risk.  Instead, allow the risk to be directed toward superior design where form follows function.  Please help to provide a departure from a landscape of structures differing only in the color of their vinyl sheathing.  Perhaps all the mixed-use developments in the City would look alike in their appearance by mimicking Town Center.  Alternatively, they may each have a look all their own and the very details of the architecture would be used to establish lasting landmarks in the City. 

Commissioner Tyner stated that it has been discussed quite a bit about whether there should be a style manual.  He asked Mr. Doerr if it would be useful if the City or the Historic District Commission (HDC) came up with some guidelines, not being as specific as German siding or vinyl siding, but in terms of style.  Mr. Doerr replied that he was saying exactly the opposite.  He said he does understand that the historic buildings that the HDC has taken under their wing are historically significant, and it is very difficult to make any changes to those and those that are already are in a group of houses.  He said he really worries about people being unable to take advantage of new materials and putting together their houses and taking housing in a different direction than it has been laid out in the past, and there is nothing in the RORZOR draft right now that, in any way, would directly impede people from following that.  He asked the Commission to please make sure that it does not.  Commissioner Tyner noted that there has been a lot of discussion on mansionization; there have been some comments from the neighborhood areas that mansionization really is not so much as how large something is, but, what it looks like in terms of what the rest of the neighborhood looks at.  He said he brought that up specifically because there are cases where some houses have been remodeled and then the exterior reflects an entirely different style than the rest of the community, and as long as the community does not mind or care, that might be alright, but there are discussions on both sides of that.  Mr. Doerr replied that somebody is always going to care.  Personally, he would like to see a varied aggregate of housing out there.  It is difficult to take the first time one sees a change.  There are buildings that he has seen built in Rockville since he has lived there, and he wished they did not do that.  Now, he is used to them and can appreciate them for what they are.  Mr. Doerr commented that he could only hope that architects would apply their knowledge and their use of materials in coming up with designs for houses.   

13.  Jacob Schneider testified that he is a property and business owner of Jacob’s Autorama on 107 N. Stonestreet Avenue.  Mr. Schneider stated that over twenty years ago, he moved his family to the United States because of a military revolution where he was living.  He said they lost everything they owned and had to start all over again in the United States.

Mr. Schneider said that he started at Freestate at 510 Hungerford Drive, but had to close it several years ago due to a redevelopment project of the property where his business was located.  He said it was quite difficult to have to start over again, especially after all the investments he made in the business. 

In 1995, he opened his business on N. Stonestreet Avenue.  He said his employees and customers live in Rockville, and he is proud to say that he provides good auto repair service to the Rockville community.  He said he believes that providing this service is much more valuable than any housing, office or restaurant development.  The housing market is already flooded in the area due to overdevelopment. 

The City of Rockville does not need to be like all the other cities with the same large chain stores and restaurants.  The City can stand as an example and honor the services provided by small businesses.  Not to mention, they are the ideal neighbors for the residents of Rockville.  He said his business is closed at night when the residents are home from work, providing a quiet environment for Rockville’s residents. 

Mr. Schneider noted that he would like to mention that as a business owner, he never received the notification card stating “Last Chance to Learn/First Chance to Speak” from the City of Rockville Planning Division. 
Losing the grandfather clause on his business property would not only be unconstitutional, but simply unfair.  With this act, the City would be taking away the retirement that they have been working hard for all these years.  Please consider this not only for his business, but also for the other 109 small businesses in the City along N. Stonestreet Avenue. 

14.  Stan Klein testified that he lives at 7 Lorre Court.  Mr. Klein stated that the draft provisions on home based businesses might have been appropriate for the kind of home based business activity that took place twenty years ago, but are not appropriate for the kind of home based business activity the City has now or will have in the future.  First, there should be parity between home-based business activity conducted by self-employed persons and the equivalent conducted by work-at-home employees.  In many, if not most cases, the activities reflect the saying “the impacts are the same; the rules should be the same”.  However, the draft places registration and other requirements on the self-employed, but not on regular home employees, which includes telecommuters, and full-time employees of companies that may be located in distant cities, though working out of their homes.  Second, there needs to be a middle category between minor and major impact.  There are businesses that require assistance, but which customers rarely, if ever, visit.  Generally, these businesses are conducted by a combination of electronics and postal or packaged delivery services.  Generally, their customers are either nationwide or worldwide.  Mr. Klein gave an example of a business that would be a publisher of a specialized newsletter that may need someone to answer the phone or edit material, but that is it.  Otherwise, the only other impact would be one trip in and one trip out by the assistant.  The present draft treats assistants as a lesser impact, but it links the assistants with visitation by customers.  That linkage needs to be broken and the best way is to add a new category.  Third, there are restrictions on the material import business on product sales requiring them to be products manufactured by the residents of the home.  Those should only apply to in-person onsite sales because there are businesses that ship by postal or have the materials drop shipped from somewhere else in the world.  If the present trends continue, there will be numerous innovative changes in the breadth and scope of home based business activity.  Some businesses are cutting costs by having people work at home, thus minimizing the need for office space.  In the future, they will see growth of virtual business organizations, again, with people working at home.  Home based business is an important activity for retirees and those laid off as a result of economic dislocation or subtle age discrimination.  By failing to recognize current and likely future trends in home based business activities, this creates unnecessary barriers of hardships for those seeking to establish moderate home based businesses and makes Rockville an unattractive venue for such purposes.  The draft needs to be substantially rewritten in this area.     

Commissioner Tyner stated that RORZOR specifically did not include teleworkers because they were looking at not so much what was going on in a residence, but the effect it had on the neighborhood.  It was felt that teleworkers, through an arrangement with their employers, would reduce traffic on the road.  The middle category is very useful for RORZOR to consider.   

Mr. Klein replied that there is a middle ground in terms of just being an assistant.  There are also people who work out of their homes and work for companies in other states.  

15.  Carl Henn testified that when revising the zoning, it is critical to recognize that we will soon be living in the age of declining oil production and in all likelihood declining energy availability.  America’s oil production has been falling since 1970, and we now produce only as much as we did back in the late 1940s.  Most oil experts see the global peak as somewhere between now and 2015, with several prominent experts saying that we are already past the peak.  Worldwide, we have been burning more oil than we discover since 1980, and now burn five times as much as we discovered in an average year.

Mr. Henn stated that we import 60% of our oil.  We can only import what some other country exports.  But, other countries will only export the oil that they do not use themselves.  For nations that are past their production peak, exports are quickly squeezed out between falling production and rising demand.  This phenomenon has been titled the “Export Land Model”.  If a nation exports half its oil consumption, then their exports will fall to zero in just 9 years.  Britain went from peak exports to no exports in just six years.  Those who focus on this phenomenon predict exports will fall by 50% by 2015. 

Combining America’s expected oil decline with the predicted import loss, and we might have to get by with 45% less oil in just 7 years.  Mr. Henn stated that he hopes this prediction is wrong, but it is a concern, and we should try to get ahead of this problem, since declining oil is inevitable.

Declining oil’s first effect will be on transportation.  We will need to get around with less energy.  We can use proximity to replace energy through mixed-use zoning.  We should support transit, bicycle and pedestrian access.  We should eliminate or reduce requirements to support cars.

Specific ideas for zoning that the City may not have seen yet:  Car free by contract; housing with car sharing; and creating a much lower requirement for parking in apartments/condos that are set up with a car sharing service/cooperative.  The City could zone for ‘Car free by contract’ housing, wherein those who purchase there agree not to have a car of their own, while the owner agrees to arrange for a fleet of cars that residents share and perhaps run a shuttle service.  It also supports affordable housing because people do not need their car and do not need to pay for their parking. 

Mr. Henn stated that there is a good chance that we would not need all the parking garages built after a decade of falling oil availability.  But, there is a tremendous amount of energy and material devoted to that garage that could be converted to apartments/condos.  Mr. Henn noted that the City should require that all new parking garages have a conversion plan and associated design modifications.  In addition, ban monthly parking passes.
Mr. Henn stated that declining oil would also affect food security.  Modern agriculture can be seen as using soil to convert oil into food.  Our fields are plowed, planted, fertilized, and harvested using fossil fuels.  When oil enters decline, we will need to give serious thought to how to maintain food production.  He stated that we should zone our country clubs for both recreation and agriculture; allow water cisterns and big rain catch system, since our water demand will rise as we try to raise more food locally; the need for zoning to make it clear that gardening is allowed in both front and rear yards; should not allow homeowner associations to ban or seriously restrict gardens, solar panels, and rain barrels or laundry hanging.    

16.  Ray Whalen testified that he is representing Talbott Center Associates.  Mr. Whalen stated that Talbott Center is a retail shopping center established in 1964 located in the 1000 block of Rockville Pike.  He stated that they believe it is illogical to engage in rezoning Rockville Pike ahead of revising the Master Plan.  A good Master Plan and good zoning are inextricably linked, and while they have waited 20 years to redo the Master Plan, waiting a little bit longer to tie them together, seems to be logical. 

Mr. Whalen explained that the Talbott Center is on a small lot with only 2 acres and rezoning would require the 45 degree slope in front and 30 degree slope next to the residential, which would make it almost undevelopable because of the size of the lot.  The intent of zoning is to upgrade it and Talbott Center really needs to be redeveloped someday and that is one of the things that would keep it from being redeveloped.  Mr. Whalen expressed his concern that the Center is a nonconforming structure and the Commission has already heard testimony about property value and insurance and financing; he asked that the Commission not take those issues lightly.  It is not inconceivable that one would have a retail shopping center on Rockville Pike have a catastrophe that may have damage that would consist of 50% of the building and still have other parts of the shopping center viable, but at that point, the owners would not be able to redevelop the center.  Mr. Whalen stated that they would also ask that the layback slope line of 30 degrees not apply where multi-family residential is adjacent, which happens to be adjacent to the Talbott Center on the north side.  They really believe that the new zones have a major impact on Rockville Pike, and, to his knowledge, that the No Economic Impact Study done by the City needs to be reviewed so the consequences from the study are not unintended consequences.  It provides a major tax base for the City and has for a long time; the City should reconsider what has been proposed.   

17.  Mark Pierzchala testified that he is speaking as the President of College Gardens Civic Association.  Mr. Pierzchala stated that he read the entire RORZOR draft and made numerous editorial and organizational comments to City staff, but, tonight he will be speaking about concerns regarding redevelopment of College Plaza Shopping Center.  They will be having an Association meeting in March 2008 to formally discuss the issues and they will invite Combined Properties to speak to the association directly.  The concerns he has will be formally adopted.  Mr. Pierzchala stated that College Plaza is five years away from being redeveloped, yet they now have to consider zoning.  They would rather have the capability of negotiating the situation with the property owner closer to the time of redevelopment.  Personally, he is not opposed to mixed-use development, and, in fact supported it during his campaign.  The neighborhood might not want mixed-use development there and they may find the current commercial zone quite adequate, but that might not recognize economic reality.  If mixed-use is in the future of College Plaza, residential mixed-use without apartments, high density or multi-family residential would be more attractive, although multi-use zones usually incorporate some sort of multi-family buildings and they believe that is too high density.  A weakness of the current mixed-use zones is that not all uses are required to be developed.  So, they could have mixed-use with three main uses that end up with all residential or all commercial and they would not know what they would end up getting.  Further, they would support grandfathering College Plaza because the residents do not want them to be nonconforming.  Secondly, accessory apartments are subject to the special exception process that is currently the case and they support that.  On a related note, they do not understand why the term family includes up to five unrelated adults and they feel it is a definition with much potential for abuse. 

Mr. Pierzchala commented on accessory structures.  He said that RORZOR allows that accessory structures in the R-90 zone would take up to 25% of the area of the backyard and they feel that is far too large for any legitimate need.  The impacts upon neighbors are both visual and stormwater related.  Their explicit proposals include:  The height of the accessory structure should be measured to the peak, not half way up the slope of the roof; the maximum should be 15 feet measured from the lowest point of the original grade.  College Gardens is built on hills and when bulldozed effectively to terrace, each property is situated differently when measured.  For every foot over 10 feet tall, an accessory structure should be set back from the property line two feet.  Any proposed new accessory structure over 200 square feet should have to go through a special exception process.  Mr. Pierzchala stated an assessment of stormwater impacts as well as water runoff on other properties should be part of any accessory structure assessment.  They do believe that current accessory structures should be grandfathered in because nonconformities create many problems. 

Mr.  Pierzchala stated that there are several home based businesses in College Gardens and they do not bother anybody, and for minor businesses, it should not be necessary to pay a fee or keep a log of visitors or even to register.  If there is a question of whether a business is a major home based business, a log could be requested at that time.  He said he does like the idea of a no-impact home based business. 

Commissioner Tyner pointed out to Mr. Pierzchala that Combined Properties asked for zoning that might be more intense than the proposed MXNC zone for that site.  Commissioner Tyner asked Mr. Pierzchala to comment on whether the MXNC Zone shown in the draft Ordinance would be more intense than what the residents would be interested in at this time.  Mr. Pierzchala replied that before the draft was released, the RORZOR Committee considered MXTD, but, he wrote a letter asking for the MXNC zone because, of the possibilities at that time, that seems to be the closest to what the community wanted.  They would like to keep it MXNC at this time.   

18.  Assistant Chief James McGlone testified that he works for the Rockville Volunteer Fire Department.  He said that their facility is located at 380 Hungerford Drive at the corner of Beall Avenue and Hungerford Drive.  There are three main issues to address.  1) Request that fire departments be recognized as an essential service that requires a specialty use building.  As such, the building and property should be exempt from any zoning regulations that interferes with the operation of the department and jeopardizes the safety of motorists, pedestrians, fire department staff, and those who are on the property or in the immediate vicinity of the property.  The exemption should include the use of a temporary structure that would be necessary for the fire department as they move through their renovation process as well.  There is no use or purpose for the City staff or the fire department volunteers to spend a great deal of time and money to try to make the fire department into a commercial residential mixed-use zone.  It takes a lot of time to deal with the issues associated with the fire department’s operations in and around the facilities themselves.  The volunteers view themselves as very different from a commercial venture because of the type of operations that they have to deal with in the way they function on a day-to-day basis.  Mr. McGlone requested that the Planning Commission also look at the new sign ordinance and allow for the fire department to have a changeable non-movable lettered sign in front of its structure.  They find the signs to be very useful for displaying public safety messages.  Currently, those signs are only allowed on public properties.  Lastly, Mr. McGlone asks that the fire department be consulted on things that are happening with respect to roads and traffic signals and signage around their facility.  The fire department has many very large trucks that move in and around the facility frequently all day long.  To continue to operate, and given the department’s goal and mission to serve the community effectively and efficiently, they ask to be considered early on in the planning process when changes are going to be made, so that the fire department can comment on them, so that it does not interfere too much with their operation and allows them to continue to provide service to citizens.     

19.  Kevin Gallagher testified that he lives at 1200 Highwood Road.  He stated that his house was used during the RORZOR Committee meetings as an example of mansionization.  Mr. Gallagher stated that he has lived in Rockville for five years and invested quite a bit of his hard-earned money into building most of his house.  He said he designed the house so it would fit in the neighborhood.  He said he built it on the original foundation so he could maintain most of his lot.  Plus, it saved him $30,000 worth of excavation and concrete in disturbing the soil.  All the green professionals in the City would know that the less soil disturbed, less pollution and migration.  That constitutes points toward a green credited house.  Mr. Gallagher said that his house could be credited had he gone through the process, but there was a cost involved and there was no need for him to do that.  He said his house is more efficient than his original 978 square foot footprint; it is now approximately 2,400 square feet; it is a new colonial and every element of his house that can be seen around the neighborhood, but his house is a little bit taller.  He put a wrap-around porch and screened-in deck on the back so that the house would integrate with the outdoors and his yard.  He said he would suggest that his house is a model of what one can do with a home in the Twinbrook neighborhood.  He has not heard one disparaging word of the project, other than City employees, who came to visit his project telling him that it never should have been permitted; that Twinbrook should remain a low-income section of the City.  He said he disagrees with that logic and he disagrees with that thought process.  When he looks at the draft Ordinance and listens to people talk about how it is supposed to make things less convoluted, there is nothing more convoluted than the document that has been put forth.  If one reads the draft clearly, and if anyone on the Committee had expertise in building, as he has for 25 years, or the many professionals who have spoken this evening, one could not put a second floor on their rambler per the draft Ordinance.  Mr. Gallagher stated that his question to the Commission is “What is the purpose, if the City wants to redevelop all the great places of Rockville, except for the existing housing, what is the purpose?  Is this accidental that this is happening to Twinbrook and maybe the West End or existing housing?  Whether it is intentional or not, what it amounts to is a socio- economic redline of Twinbrook and it is a disservice; it is like social engineering of Rockville.  He lives in Twinbrook and he is proud to live there with his neighbors and he is proud to live in the house he has built.               

Commissioner Ostell told Mr. Gallagher that he built a nice house and she thinks the heights in the code would be changed to accommodate his house.  Commissioner Ostell asked Mr. Gallagher what in the draft Ordinance would prevent a person living in Twinbrook from building a second floor.  Mr. Gallagher explained that the code previously was worded in such a way that one went from a major alteration to a new home, if one demolished greater than 50% of the original perimeter walls, or increased the home by greater than 100% of the footprint.  On a different note, the City came and shut his project down for two and a half months based on the fact that it was a new home.  It cost him $45,000 in interest; it cost him money to rent another place and at the end of the day, the only thing that changed was a $3,500 sprinkler system put in the house, which he agreed to do the day they shut his project down.  Mr. Gallagher paraphrased Section 25.08.05.  The Section now reads that the building becomes nonconforming, if floor space is increased by more than 100%.  He invited the RORZOR Committee to tour his house.

In response to Commissioner Ostell, Mr. Gallagher stated that he bought his house five years ago and he finds it un-American and a restriction on his freedom to move to a place to pursue his happiness and then have a group of folks restrict it for purposes that he cannot understand.  He said that his recommendation to the Commission is to scrap the RORZOR and step back and take a deep breath and involve the professionals in the community who know about building and realize the effect of changing the zoning and how it would affect the City and go with what is called “form-based design”.  The form-base guidelines are:  you must make it pretty.  But, it will not happen unless the free market can come there and prosper.  With no offense to anybody, RORZOR is not made up of building professionals.  He said he has been in the building business for 25 years and his house is the first house he ever built. 

Mr. Gallagher stated that he is okay with the current Zoning Ordinance.      

20.  Judy Miller testified that she is the Vice President of the Twinbrook Citizens Association.  Ms. Miller talked about some concerns such as the mansionization issue.  It is very important that they are able to improve their homes, and to keep affordable homes.  She said that the best place to keep affordable homes is in their neighborhoods.  They have many apartments and it does not seem that people are too interested in the apartments or condominiums.  They want to have their own homes; they want to improve them and they want to have them modern for their families. 

Ms. Miller spoke about amount and location of mixed-use zones.  TCA has concerns about losing commercial viability. 

Ms. Miller stated that home based businesses should not be registered or their homes inspected.  She said that many people have home based businesses to bring in a little extra money in the economy.  It appears that the City should be more flexible, particularly in the low and no impact instances.    

21.  Christina Ginsberg testified as the Chair of the Alliance of Rockville Neighborhood Associations.  Ms. Ginsberg discussed regulatory notification that affects all of the citizen associations and homeowners associations.  She asked that the Planning Commission take careful notice of Chapters 5, 6, 7 and 8, which have to do with applications and notifications.  RORZOR spent a lot of time talking about how to implement that in a way that would be fair to the neighborhoods and fair to the citizens that the Ordinance is supposed to protect.  Specifically, the definition of notification and how wide the radius should be.  After discussion, the radius came down to anywhere from 500 to 1000 feet from the radius of project.  Ms. Ginsberg urged the Commission to maintain in the draft Ordinance.  If it would be increased, she would be even happier.  She said they had an issue with the cell tower in Twinbrook where only eleven people were actually notified by the company because the property is near a park and when the radius was applied, very few houses actually fell within the radius.  She urged the Commission to protect what has been put in the document for notification. 

Ms. Ginsberg also urged the Commission to protect the layback from the Park Zone so that there would be no instances such as “there is the park and there is the building”.  She hopes that Commission decides to keep it. 

Ms. Ginsberg referred to Section 25.05.05 - access to application files – this Section says that all application files are supposed to be open for public inspection.  What does that mean when nobody knows what is actually supposed to be in the file.  Ms. Ginsberg noted that their experience is that it is easy to go to the Planning Division to ask to see a file, but it is not easy to know whether the file is complete or what is in the file.  She has a scientific background; they have document control.  Every version of the document is identified and maintained in the files; one knows what should be in the file and what is missing.  The purpose for that in her field is that, if there is a question about what was done, she has the document, she has the documentation about what has happened.  She said she does not know whether the City has regulations in another section of the code to control that, but, if it does not, it ought to, and, specifically, in this case, when they are expecting legal decisions.  Ms. Ginsberg suggested logging in the mail so that citizens could view that mail log.  She pointed out what had happened in the last month with regard to the courthouse.  If Bridgett Newton had known that that document was inside City Hall, she would have asked to see it and she would have dealt with what it contained in the relationship of the State and the City on the courthouse issue.  Ms. Ginsberg asked that the Commission make a recommendation to the Mayor and Council that logging of documents should be done as matter of policy. 

22.  Jacquie Kubin testified that her remarks apply to minor home based businesses as outlined in the RORZOR draft dated October 5, 2007. 

Ms. Kubin stated that she is a stay-at-home mother who works many hours a day, and not always at being a mother or a wife.  She said she works from home as a writer and journalist.  She asked if that means she has a “minor business?”  Ms. Kubin said she would not allow the City to come and inspect her home because she chooses to work at her computer in her basement and take care of her son during the day instead of going into an office.  She said she has neighbors, friends and people on the Twinbrook Neighborhood List Serve, who all have home businesses.  They sell Tupperware, have photography businesses and do not do things in their homes.  They do not bring any traffic, whether negligible or not negligible into their neighborhood.  She said her father raised six children as a mechanic in Illinois, and he became very sick at the age of 55.  With the provisions in the draft Ordinance that are affecting N. Stonestreet Avenue, her father would have lost his business because he would not have been able to continue to be in business.  He would also not have been able to sell his business and get the help that he needed and continue to live for the last 30 years.  Ms. Kubin said that the home based business section needs to be changed.  It does not directly affect her, but for people who have raised their families, who are depending on their home based businesses for their livelihoods for the near future and for their retirement, this is ridiculous. 

Ms. Kubin stated that, as a member of the Twinbrook Neighborhood List Serve, she is a little confused over something happening there and that is whether the public comment for the Twinbrook Neighborhood Plan is still open and she would like to have plenty of notice before it is closed.  The Commission stated that the record is still open.

23.  Howard Cohen testified that he has been a resident of Montgomery County in this area for 36 years and has been a significant consumer in Rockville.  He said he spent a number of years working in public service.  He said he was speaking on behalf of the North Stonestreet service merchants.  He noted that Mr. Schneider has serviced his automobiles for over 15 years in both of his locations and it so happens this week, he has had occasion to use his services and the services of another organization on North Stonestreet.  It occurred to him that in the event some of the proposals in the draft Ordinance on rezoning take effect, it would create enormous financial problems and create adverse impacts on those people who own businesses on North Stonestreet Avenue.  He said he has become conscious of pollution, traffic congestion, energy conservation, high cost of energy, seniors living on fixed incomes.  It occurred to him that the services he is currently involved in is that, if they were to have to move to places like the Air Park in Gaithersburg, and other remote locations, what would this do to the carbon footprint; to energy consumption; to congestion on the highways; to the initial cost, etc.  Mr. Cohen strongly urged the Planning Commission to consider the impact of some of the proposals on the businesses located on North Stonestreet Avenue and what they would do to the community and to the citizens. 

24.  Brigitta Mullican testified that she is a former member of the Planning Commission.  Ms. Mullican said that she lives in Twinbrook and would like to expand on what Kevin Gallagher said this evening.  Ms. Mullican stated that she would like to speak for those homeowners and residents who do not understand the Ordinance and cannot come to the meeting.  She said she objected to having too many codes that would restrict homeowners from expanding and improving their properties.  She strongly recommends that the zoning code be flexible for different situations and to allow homeowners to make improvements for expansions of their homes. 

On a personal basis, Ms. Mulligan said that the Commission has been discussing buildable impervious area and height limitations and she objects to lowering the height of homes.  She looked at her deed to figure out what buildable impervious area meant.  Today, she measured all of her sidewalk and her driveway and came up with 145,000 inches; her house is 1,400 square feet and the lot size is 7,200 square feet and she realized that she could build a garage.  She said she is concerned for people, who do not know what the code means and what they can and cannot do.  What has been done in Twinbrook is beautiful.  People have been building up and designing their homes to be nicer.  Please do not put in a code that would restrict people to do what Mr. Gallagher has done to his home in Twinbrook and throughout Rockville. 

Chair Wiener asked staff if there was a way to put up a formula on the City’s web site.  Mr. Wasilak replied that that would be something they could look at and put up an example that runs through the calculations that people can compare.   

25.  Mikel Fernandez testified that he lives in Lincoln Park and is an automobile business owner.  He said he has lived in America for 27 years.  Mr. Fernandez stated that he loves Rockville and he has chosen Rockville for it has given him the power to make his dream a reality.  He attended Montgomery College and got his first job in the City of Rockville and now he has had his first business in Westmore Industrial Park for 14 years.  Mr. Fernandez said he does not understand the terminology that the Planning Commission is talking about.  He said he comes to these meetings and then he goes home and worries.  Although, he cannot understand much of the terminology and legality, he said he has enough sense and intelligence to realize that the emotional stability of many people is going to be affected by the Commission’s decision.  The only thing he could do is pray to God that He provides the Commission wisdom and the serenity that it needs to see the vision of a City with happy and productive citizens.     

Commissioner Wiener stated that people are very confused about the draft Zoning Ordinance.  She, again, asked staff if it were possible to come up with a glossary for those who can look at it and ask questions. 

Mr. Wasilak reminded everyone that there is a lot of information on the City’s web site.  There is a glossary as well as a lot of very basic information.  Mr. Wasilak noted that staff did go out to as many associations as they could to explain, in very simple terms, on what the implications of the Zoning Ordinance are.  There were opportunities to be educated; there were three public forums, and two of them were not well attended, but they were well publicized.        

26.  Glenn Looper testified that he lives at 136 Monroe Street and that he owns and operates a business on North Stonestreet Avenue.  Mr. Looper said he is also Vice President of the East Rockville Business Association.  Mr. Looper urged the Planning Commission to adopt the use verbage that Mr. Wayne Harrison submitted to the Planning Commission for the businesses along North Stonestreet Avenue.  He asked that the Commission look long and hard about what the zone would do as far as nonconforming uses, grandfathering and one side of North Stonestreet versus the other side.  Personally, he would like to see both sides of the street zoned the same.  Every business up and down the street has been there for some period of time and they are legally conforming.  It would cause havoc as far as trying to refinance, to get insurance, appraise a property, as well as maintain it.  Mr. Looper informed the Commission that he went through a significant fire situation about 25 years ago.  It was about 20% of the building, but, when he rebuilt that part of the building, he had to build it to existing code.  He again said he would like to see both sides of North Stonestreet Avenue zoned identically.  Everybody who is there, is legally there and they have met all the codes at the time they came there and it would cause considerable economic hardship if that were to change.         

Commissioner Ostell asked Mr. Looper if he would accept the mixed-use business zone.  Mr. Looper replied that the mixed-use business zone would be fine. 

Commissioner Tyner asked Mr. Looper if he was comfortable with what Wayne Harrison wrote and submitted to the Commission.  Mr. Looper replied that he was comfortable with the submission.      

 27.  Ellen Exelberg testified that she is a lifelong resident of Montgomery County.  Ms. Exelberg stated that she would like to speak to the mansionization section of the draft Ordinance.  Ms. Exelberg stated that she lives in a PUD and she cannot do anything to her house.  She has no choice on how to fix it because they are so tightly controlled by the PUD regulations.  She pointed out that, for those people who still own their own homes, she would hope that the City would defeat this mansionization business and let people build what they want to build, where they want to build it and how they want to build it, especially in light of the fact that they are looking at having senior age-in-place, which means bringing caregivers and elevators into homes.  That means doing all kinds of alterations in the home .  Therefore, it would be ill-advised to restrict housing size.  The City must consider the needs of the disabled population. 

28.  Patricia Woodward testified that she is the President of the West End Citizens Association.  Ms. Woodward stated that there are many residents who do not understand the importance of RORZOR and the rezoning and what it could mean to them.  Ms. Woodward stated that she has been asked some questions by residents such as what happens to John and Jane Doe, whose retirement portfolio is their home investment.  They are ready in a couple of years to move to Arizona and they know that their asking price is $800,000.  So, the time comes, the market is right and everything is great and they have a buyer, and then the buyer comes back and tells them that he/she is sorry, but they cannot buy the house because they want to do thus and thus and thus, but the Zoning Ordinance says they cannot do that.  They like the house and the property and maybe, with God’s help, they will change their minds, but they offered the homeowners $500,000 for the house.  The homeowners have to leave.  This is an economic concern for them.  She asked if there has been a economic study of just John and Jane, homeowner?   

Ms. Woodward mentioned home replacement insurance.  What if she built the home at one time and now there are new regulations and the home burns down, and she has the replacement insurance, and then the zoning says she cannot rebuild it.  She asked if that was going to happen.  Ms. Woodward said that she has had a couple of people ask this question and she is also concerned.  As far as the reaching out that the City has done, she feels in many ways it has been very good, but it needs to be more.  How is the City going to educate about all the zoning terms?  Somehow, they have to have these answered.  The Mayor and Council will be coming to the Association in March and there will be other questions.  The residents do not want to have everything look the same.  Ms. Woodward stressed that every property owner should have the right to do with their property as they should without the government telling them what to do. 

COMMISSION ITEMS

NEW BUSINESS

The Commission discussed concerns about the testimony, nonconforming properties. grandfathering language, restrictions on residential properties, rezoning impacts on businesses, regulating home based businesses, making sure the residents understand the Zoning Ordinance, regulations of a home based business, insurance impacted by the nonconforming clause, notification to property owners, setting up a date to close the record on the draft Zoning Ordinance in order to finalize the commentary for the worksessions, scheduling upcoming worksessions for the draft Zoning Ordinance as well as procedures on managing the meetings.

Old Business

Mr. Wasilak stated that Ann Wallas put together a schedule for moving forward on the Twinbrook Neighborhood Plan based on the Commission’s feedback and comments from the last meeting.  A worksession for the Twinbrook Neighborhood Plan is scheduled for the February 13 meeting, with both a discussion of Transportation and Commercial areas on Veirs Mill Road.  There will also be worksessions on March 12 and 26.  For March 26, this would involve coming back and going over everything to make sure they covered all the issues.  Staff would come back in April with text changes.  The question then would be whether the Commission would want another public hearing once they get to that point.

Mr. Wasilak stated that the meeting on February 27 would be exclusively the draft Zoning Ordinance as well as other minor business. 

The Commission discussed putting together a schedule for additional Commission worksessions and meetings. 

Chief Planning Report

Mr. Wasilak announced that the next meeting is scheduled for February 13, 2008.  

Mr. Wasilak reported about upcoming applications.

Commissioner Tyner commented on the courthouse article. 

ADJOURN

After further discussion, the meeting adjourned at 10:35 p.m.