Rockville redevelopment project seeking waiver on fire response

The Rockville Board of Appeals will hear a waiver request this Saturday from the Village at Rockville redevelopment project, located at 9701 Veirs Drive. That project does not comply with the rules requiring projects of this type to be within 10 minutes' response time from two fire stations. The Mayor and Council created a waiver provision on April 17 of this year, which the applicant is now seeking from the Board of Appeals.

A 3-member affirmative vote will be needed to obtain the waiver. The meeting will be held at City Hall this Saturday, June 3, at 9:00 AM.

ROCKVILLE CITIZENS BEAT BACK APFO SCHOOL STANDARDS CHANGES

The effort to replace Rockville's current school capacity standards with the weaker Montgomery County standards failed at last night's Mayor and Council meeting. In the face of overwhelming resident opposition and mobilization, Councilmember Tom Moore withdrew his proposal before it went to a vote. Councilmembers Virginia Onley and Beryl Feinberg declined to support the measure, despite having been members of the Team Rockville slate with Moore and Councilmember Julie Palakovich Carr. Carr had seconded Moore's motion to adopt the new standard prior to its withdrawal.

Residents turned the meeting's Community Forum into an impromptu public hearing prior to the decision. Susan Prince presented a petition opposing the changes which had 362 signatures, and she and others read comments from residents who could not attend. "Rockville is a family town, not a megacity," one wrote. Resident Jack Gelin, testifying in person, said such a change "poorly serves our children, and violates the civic compact."

Several Rockville Planning Commissioners testified against the changes, including Chair Don Hadley, and Commissioners Anne Goodman and Jack Leiderman. Citizens from the West End, East Rockville and Twinbrook turned out in force, and via petition. Some developers and development attorneys who would benefit from the changes were present in the chambers during last night's meeting, signaling the urgency behind the proposed weakening of the APFO. Even the county Gazette newspaper editorial board had elbowed its way into the city's debate, endorsing Moore's proposal to adopt County standards.

Mayor Bridget Newton, who had opposed the changes, said it was time to "stop this conversation, and start a new conversation" at the countywide level, as opposed to arbitrary action by the city. Rockville is expected to take part in a March 7 event hosted by Montgomery County Councilmember Roger Berliner, which will bring stakeholders together for a dialogue on infrastructure, including school capacity.

Feinberg and Onley agreed with Newton that is would be best to wait until that new process plays out before the city takes any action on school standards. Moore expressed concern that the possible changes would be tabled permanently, and sought to have the matter placed on a future agenda. First he suggested March 16, and - after colleagues noted jam-packed agendas in the spring - then amended that to the soonest possible time for staff. His motion failed 3-2, supported only by Palakovich Carr.

Moore said the issue could be lost without placing it on an agenda. Onley replied incredulously, "this is absolutely not going to get lost." Newton concurred, recalling that the APFO has been a hot topic during every term she has served as Mayor or councilmember.

Feinberg said she was swayed by residents' testimony, and conversations with former city leaders to oppose the changes. Former Mayor Larry Giammo and former Councilmember John Hall were among those who opposed the effort to adopt the county's 120% over-capacity standard, and its measurement of crowding by cluster rather than individual school. Both were in office when the measure was passed a decade ago.

Team Rockville has not always been the monolith many residents feared when the slate was entirely elected, minus Mark Pierzchala, who was defeated in the mayor's race by Newton. Onley and Feinberg have often broken with their slate and voted with Newton on a variety of issues.

The inevitable question now is, when will the APFO issue be raised once more, forcing residents to mobilize yet again, despite clear public opposition to changing the standards?

MORE APFS SCHOOL CAPACITY STANDARDS DEBATE AHEAD OF FEB. 9 VOTE

A Monday night discussion about proposed changes to Rockville's Adequate Public Facilities Standards, which would align the city's school capacity standards with Montgomery County's weaker ones, did not appear to change the mind of any councilmember. Councilman Tom Moore remains the strongest proponent of the changes, which would raise the school overcrowding limit to 120% of capacity from today's 110% under the city's APFS. They would also measure overcrowding by cluster averaging (like the County), rather than the city's measurement by individual school.

The current standards, Moore said, have been an "epic fail." "The evidence is in, it was an interesting experiment," he said, but they have not prevented overcrowding, in his view.

Mayor Bridget Newton disagreed. "We would be in a crisis situation as other schools [in the county] are" without the APFS, she argued. Newton remains the one certain vote to oppose the change. "I haven’t yet seen from you all what moving to 120, and cluster averaging, what that is going to solve?" she asked her colleagues. "What is the reason for making that change? What is driving that?"

Councilmember Virginia Onley said she does not favor the approach of having the city change its own standards, but did say she is concerned about lack of growth in the city. Suggesting that Rockville Town Square is underperforming, Onley said Rockville's competitors, Downtown Crown, Pike & Rose, and RIO/Washingtonian Center are a threat. Pike & Rose offers 2 hours of free parking, and the others don't charge anything for parking. Several retailers and restaurants have closed in Rockville Town Square in recent months.

"I don’t think Rockville is moving forward," Onley said. "And if we don’t do something, we’re going to be a ghost town." She added she didn't want Rockville residents to have to get in their cars and drive to other places "where people are enjoying life."

Newton disputed Onley's characterization of growth and the town center, noting that projects including the Duball towers and KSI have pushed the number of units past the totals provided for in the 2001 Master Plan. Kettler, JBG and Shelter are currently building retail, restaurant and housing projects north of Rockville Town Square, as well. "We’ve got growth happening in the town center," Newton said. "It is not stagnant, it is not dying, and it is not going to be a wasteland. [But] changing standards, we will no longer have any constraints in place to control that" growth.

One likely outcome of increased development in the city will be more portable classrooms on school sites. In an interesting twist from the widespread complaints about portable classrooms in Montgomery County, Moore and Councilmember Beryl Feinberg had praise for the humble "learning cottages." Portables are not "hell on earth," Moore said, noting that 4 of his 6 children have been in portables. Trailer classrooms are "a way to kind of even [growth] out in the short term, so that you don’t have to construct another school," Feinberg said. "I don’t think we should wholesale condemn them."

Newton was somewhat incredulous at these assertions. She said "learning cottages" was a term designed to avoid the fact that these classrooms are trailers, and that they take children "out of the learning environment," and pose serious safety and security concerns. "Do we want to put children in trailers?" she asked. "Let’s have a countywide discussion with the stakeholders they are talking about bringing forward," she said, referring to a dialogue being set up by County Councilmember Roger Berliner.  "Let’s help the county solve our problem."

The Mayor and Council will vote on the proposal this coming Monday, February 9; the meeting begins at 7:00 PM at City Hall.

ROCKVILLE PLANNING COMMISSION SENDS MEMO ON APFS SCHOOL STANDARDS TO MAYOR AND COUNCIL

Ahead of a February 2 discussion and February 9 vote by Rockville's Mayor and Council on the proposed changes to school capacity standards in the city's Adequate Public Facilities Ordinance, the Rockville Planning Commission approved a memo expressing its opinion on the matter. The opinion is advisory to the Mayor and Council, separate from the actual legislation that will be voted upon on February 9. The memo was approved at Wednesday night's meeting.

In discussing the memo's final draft, prepared by Commissioners Charles Littlefield and Anne Goodman, some changes were suggested. Goodman and Commissioner Jack Leiderman agreed that a line proposing the city fully adopt the Montgomery County APFS, if the school standards were changed, should be eliminated. Leiderman said it would be preferable for the Mayor and Council to make changes in that event, rather than require automatic adoption of the County policy in whole.

Chair Don Hadley informed his colleagues that a pending Maryland court case could require delay of the city requesting an "authoritative interpretation" from the state's Attorney General's office on whether the Mayor and Council indeed have the authority to change the APFS. He said an Anne Arundel County case pending before the State Court of Appeals will determine if a jurisdiction can "have laws passed by the legislative body that are inconsistent with the Master Plan."

The case will involve the legal standing of a citizens association to challenge something inconsistent with a Master Plan. And how "inconsistent" is defined, Hadley said.

Hadley advised that requesting an opinion from Attorney General Brian Frosh be put on hold until the court rules in the Anne Arundel case, or else "we'd be asking the AG to get ahead of the court." He suggested the Attorney General could then issue an opinion. Hadley noted that the Attorney General's brief in the case reflects his office's Fall 2014 opinion that has raised the question of whether or not the Mayor and Council have the power to change school standards.

Commissioner John Tyner questioned if Commissioner David Hill's previous concern that the school changes might be unconstitutional should be written in authoritative language, or by stating the commission believes there is a chance it might be. Tyner suggested "may well be unconstitutional" for the language. The commission's "resident expert", Commissioner Dion Trahan, said that the argument wouldn't "hold water," in his professional opinion. Trahan holds a graduate degree in Constitutional law. No clear final language was stated aloud on that point.

Hill moved that the document be adopted and transmitted to the Mayor and Council by today. The memo was unanimously approved by the commission.

ROCKVILLE MAYOR AND COUNCIL TO HOLD DISCUSSION ON APFS SCHOOL STANDARDS CHANGES FEB. 2

Monday night's Mayor and Council meeting extended into Tuesday morning, as Rockville leaders again took feedback from the public on proposed changes to the city's Adequate Public Facilities Ordinance standards. The proposed changes, spearheaded by Councilmember Tom Moore, would bring the standards in line with those of Montgomery County's, including allowed schools to reach 120% of capacity, and measuring overcrowding and capacity by school cluster, rather than by individual school. Many residents, and current and former Rockville elected officials, have argued the change will weaken the APFO, allow more development, and overwhelm classrooms, roads and other infrastructure. One city planning commissioner has even suggested the changes would be unconstitutional, as cluster averaging would not treat each child equally.

Montgomery County Council Deputy Administrator Glenn Orlin made a surprise appearance at the end of the public hearing, offering to answer questions. Orlin said the city's APFS "has no impact at all on where the money goes," when the County allocates funding for school construction. Newton, former Mayor Larry Giammo, and Planning Commissioner Jack Leiderman, among others, have vigorously disputed that assertion, pointing to two school projects about to commence in the city.

A vote on the changes is expected on February 9, but Mayor Bridget Newton said she was concerned that the council had not yet had a public discussion on the issue. "I think it's incredible that we haven't had a discussion about this," Newton said after citizen testimony was completed. Moore said the matter had been a topic of public discussion for years, public hearings had been held, and that the vote should go ahead. Newton suggested delaying the vote, so that County and Montgomery County Public School officials could be brought in for a discussion of ways the school overcrowding issue could be addressed. Future meeting agendas made it difficult to set up such a delay, and it was eventually concluded that the APFS discussion will take place at the February 2 meeting next Monday. It was unclear if that would permit all of the hoped-for officials to participate on such short notice.

Newton has said it would be more productive for the city to partake in a school standards discussion being planned by County Councilmember Roger Berliner. Orlin disputed that such an event was going to take place. "I've heard it from the horse's mouth," Newton asserted, citing conversations with Berliner, and discussion she had with Gaithersburg Mayor Jud Ashman and County Councilmember Sid Katz earlier Monday, which confirmed the conference was in the works.

As the meeting stretched past midnight, city staffers greeted the council with, "Good morning." Some midnight oil will have to be kept for next week's meeting, which now will have a sure-to-be-contentious APFS discussion added to its already-packed agenda.

ROCKVILLE APFS DISCUSSION AT PLANNING COMMISSION FINDS INCREASING SKEPTICISM OF PROPOSAL

The more Rockville's Planning Commissioners analyze and discuss the proposed changes to school capacity standards in the city's Adequate Public Facilities Ordinance, the less convinced they are of the wisdom in adopting them. Several commissioners have expressed doubt that the proposal to adopt Montgomery County's weaker 120% overcrowding cap - and assess capacity by cluster rather than by individual school - is necessary, viable, or even Constitutional.

"I would actually contend that it’s a violation of your Constitutional rights to equal protection when it comes to public schools," to measure capacity by cluster, Commissioner David Hill argued. Hill found it ironic that many MCPS policies are "based on that specific premise." Adopting the proposed changes would be "incredible. Criminal? Yeah, I suppose, if you violate someone’s Constitutional rights," Hill concluded. The matter is "a question of principle," he said.

Commissioner Jack Leiderman noted that the current language exempting senior housing from traffic standards would allow an automobile-dependent mega-retirement community the size of Leisure World to be built in the City of Rockville, and still be exempt from the standards - an oversight Leiderman described as "mind-numbingly stupid." "I think you have a good logical point about that, it makes sense," Hill concurred.

Leiderman went on to demolish the case that proponents of the changes have made on several points.

"It basically eliminates everything that the city had put into place to more accurately count school demand," he said, removing "the protection that it gave city residents." Alluding to the obvious developer support for the proposal, Leiderman suggested passage of the legislation would be "basically a complete deregulation of the development industry in the city."

Language that would allow extension of queue dates for individual developments was too weak to account for the fact that a developer could always claim that lack of school construction funds from the state of Maryland were an issue. Leiderman predicted developers could exploit that "ad infinitum. The way this is constructed, you’ve got all this language in here that looks like we’re doing something, when in fact we’re not doing squat to protect the schools, or the citizens, if this unfortunate piece of legislation were to pass," Leiderman said. "Eloquently put," Commissioner John Tyner seconded.

Use of the MCPS 5-year test and cluster averaging will be "an elaborate shell game” to cover-up the overcrowding of city schools, Leiderman said. It's the "distorting effect of cluster averaging and the 5-year test" that allows MCPS to currently run schools at 180% capacity, even when it claims a 120% cap exists. Faced with development moratoriums, Leiderman said, MCPS will cite "paper schools" where there will be capacity in 5 years. But it’s a "fictitious school" that never actually gets built, while the proposed development does. Under that scenario, "you’re not even adopting a 120 - you’re not even adopting a 180," Leiderman argued.

Citing City Councilmember Tom Moore's recent grilling of his colleagues who oppose the changes, Leiderman found a double standard on the use of data. "The leading proponent of this legislation was sort of torturing his colleagues recently about their positions not being data-driven, and I had to just laugh out loud. Because this is not only not data-driven, but it’s ignoring the data that we have, which says that the schools that operate under this are in horrible condition," Leiderman recalled. Echoing the argument of Mayor Bridget Newton, Leiderman made the case that the current APFS standards have succeeded in not only protecting Rockville students from overcrowding worse than today's, but have actually resulted in new schools getting built. "We in fact have [new schools] coming online…ahead of a lot of the other areas in the county, despite" the APFO. He said that fact suggests "the impetus behind [changing the APFS] is extraordinarily specious, and unsupported by the data. I wish that the people who are behind this would actually tell us the real reason why they want this to happen."

Tyner implored the city to consider the impact on core facilities at schools, not just classrooms. "Beall no longer has playgrounds anywhere, neither does Twinbrook," Tyner noted. Core facilities are "the things that really determine if kids get a good education or not," Tyner said. "We’re only talking about classrooms."

One other interesting point not often brought up is that tying city standards to the County would leave Rockville bound to any future changes MCPS would make to its current standards, for better or for worse. Senior Assistant City Attorney Marcy Waxman confirmed that would be the case, after Commissioner Charles Littlefield questioned why the language couldn't be simpler in noting that link.

The Mayor and Council are currently scheduled to act on the proposal in early February, and residents can speak on the matter at a public hearing this coming Monday.

SECOND PUBLIC HEARING ON ROCKVILLE APFS SCHOOL STANDARDS MONDAY, JAN. 26

The Mayor and Council will hold a second public hearing on the proposed changes to Rockville's Adequate Public Facilities Standards regarding school capacity, which have been proposed by Councilmember Tom Moore, on Monday, January 26. These changes would adopt Montgomery County's weaker school standard of permitting 120% overcrowding, and allow school capacity to be measured by cluster, rather than by individual schools, as the city does today.

Residents can sign up to speak by calling the City Clerk at 240-314-8280 by 4:00 PM on January 26. The meeting will be held at 7:00 PM at City Hall, and the public hearing is only one item on the evening's agenda. You can also sign up in person, but you will have to wait until the speakers who signed up in advance are finished.

One public hearing has already been held, and the Mayor and Council are scheduled to act on the proposals in February.

BLACKMAIL! ARE MCPS AND DEVELOPERS HOLDING ROCKVILLE HOSTAGE OVER APFO?

While it seems that the fight over Rockville's Adequate Public Facilities Ordinance keeps coming back like Freddy Krueger, a new talking point emerged at Monday night's public hearing before the Mayor and Council. Some proponents of lowering the city's school capacity standard, from 110% to the 120% overcrowding limit allowed by Montgomery County, appeared to be using the change as blackmail for school construction funds.

Open Rockville to developers who fund the campaigns of all Montgomery County Councilmembers except Marc Elrich, they argued, and those development firms and Montgomery County Public Schools will release funds they apparently won't put towards Rockville classrooms otherwise. While this is most definitely not the legal mechanism for school funding in the state of Maryland, developers and their allies at the County level made clear they are fed up with the City of Rockville retaining control over its development and quality of life.

Former Rockville Planning Commissioner Steven Johnson put into words what many observers may have been thinking after hearing previous speakers, when he used the phrase, "held hostage," in making his case to lower school standards. What was originally designed as a tool to guide development, Johnson said, is now "a blunt instrument to kill" residential development in Rockville.

"You need to change your APFO ordinance," former Rockville Mayor Rose Krasnow warned her successor and city councilmembers, or Rockville will be "left in the dust" by Downtown Crown and other urban town centers popping up around the county. Krasnow, now employed by the Montgomery County Planning Department, suggested allowing Rockville schools to get more overcrowded would somehow result in extra MCPS construction money flowing to city schools. Most significantly, Krasnow described Rockville's current relationship with the County as "antagonistic," and that County officials feel that the City is "not willing to work with them."

Aakash Thakkar, Senior Vice President with infill development firm EYA, put the message in somewhat more diplomatic terms. By allowing more residential development, including a Tower Oaks project sought by EYA itself, the city could thereby "show goodwill" to County officials who want more tax revenue. This would lead to a more "cooperative relationship" between the city and county. He said developers would also contribute money for schools, although no such legal requirement exists to enforce such a promise, beyond the basic school fees charged now for development in Montgomery County. Thakkar also argued that "new people" are needed to support the retail businesses in Rockville.

Not so fast, Rockville resident Jack Gelin rebutted in later testimony. The idea that the city should accept more-crowded schools and more development simply so that county officials will "not be angry with us" was not a good argument for changing the APFO standards. As for Thakkar's promise of more tax revenue for schools being generated by new development, Gelin referred to the "old discredited theory that somewhere there's a free lunch. This has never happened, and will not happen."

In fact, Montgomery County has been on a building binge for years, with the exception of during the recent recession, and is locked in a structural deficit as far out as can be forecast. All of that tax revenue has failed to keep up with the costs of new infrastructure and services the new developments required. Even jurisdictions who have created more jobs than Montgomery County, like Fairfax and the District, are facing budget crunches. Where is all of the magic tax revenue? Nowhere to be found.

The idea that allowing more development and more school overcrowding would magically solve Rockville's challenges was among a number of false promises made by advocates of watering down the APFO, former Mayor Larry Giammo said. "Stop promulgating myths," he exhorted councilmembers who favor the changes, whose proposals he said were causing "unnecessary and harmful divisiveness" in the community. Rather than change the APFO, Giammo proposed, a better approach would be to update the city's master plan, and engage the county's Board of Education and and County Council to develop new strategies to address overcrowding.

Mayor Bridget Newton said the latter option is in the works, citing a discussion she had with Councilmember Roger Berliner (D-District 1) earlier regarding a work group he is assembling to look at the county's APFO standards. That group will be seeking input from municipalities, and would be a more productive approach to the problem than arbitrarily changing the city's own standards, she suggested. Newton also disputed claims that Rockville had been passed over for school construction money because of its higher APFO standards, pointing out that at least two significant school projects are currently moving forward in the city.

She and resident Joe Jordan also raised questions about how, and under whose authority, the city's staff produced a redline document on APFO changes. Newton asked staff to produce answers to those questions before a vote is taken on the measure. Jordan said he found it "really disturbing" that the process was being rushed without public discussion by the council, leaving residents unclear about each councilmember's position on the changes. Newton criticized city staff for leaving last night's public hearing off of a television announcement for the meeting, and for publishing a front page piece on Rockville Reports that implied she and all councilmembers were advocating changes to the APFO. She argued the city should wait for the outcome of Berliner's effort, and request an opinion from the state Attorney General on the question of whether she and the council have the legal authority to change the APFO, before voting on the proposed changes. The Mayor has the authority to request such an opinion, Newton said, noting that Councilmember Tom Moore had planned to do the same thing last year.

Some would have to question the wisdom of the new talking point deployed last night by proponents of change. "I've got money, but I won't give it to you until you turn over control of your city to us," sounds like a bad mob movie more than a coherent development policy.

ROCKVILLE PLANNING COMMISSION FINDS NO COMPELLING NEED TO CHANGE APFS SCHOOL STANDARDS

The Rockville Planning Commission voted unanimously last night to oppose proposed changes in the city's Adequate Public Facilities Ordinance regarding school capacity standards. Some on the city council are in favor of replacing the current school standards with those used by Montgomery County. The changes would include averaging school populations over a cluster, rather than measuring overcrowding at each individual school, as the current Rockville standard does.

Commission Chair Don Hadley reiterated his previous remarks that the recent legal opinion handed down by Maryland Attorney General Doug Gansler suggests the Mayor and Council lack the authority to change the APFS school standards. Hadley said they and the commission "need to find out what the rules of the road are," before changing the standards. Commissioner John Tyner said the recommendations of the city's APFO Committee a couple of years back - to implement no changes to the Rockville school standards - were forwarded by the Planning Commission to the Mayor and Council. "My opinion has not changed on that," he added.

There was a sense among some commissioners that something fishy is going on, and that the proposed changes are being pushed behind the scenes for an unstated purpose. "I'm fearful something non-transparent is going on that should be made transparent," Commissioner David Hill said. Commissioner Jack Leiderman said the demand for changes is certainly not coming from the city's residents. "Whenever there has been a proposal to weaken the APFO, this room has been filled to capacity" with citizens opposing the change, Leiderman noted. He said the January 5 date for the APFO public hearing - during holiday vacations - appeared to have been "frankly, chosen to minimize" public input.

Hill said he welcomed a "vibrant public debate" on school standards, but agreed that January 5 was not particularly conducive to having one. He reiterated Tyner's point that the commission had already spoken to the school matter by forwarding the committee report to the Mayor and Council. "I am not ready to change" school standards, Hill said. He said other jurisdictions in the state have used Rockville's 2005 APFO standards as a model, and therefore, the authority issue is very appropriate for Gansler to address at this juncture. Commissioner Anne Goodman concurred that the city should get a legal opinion from Gansler before acting on the APFS. "We have a legal uncertainty," Hadley said. "It leaves us in a very tenuous position."

Leiderman suggested the commission go on the public record regarding the controversial January 5 public hearing, and send a formal letter to the Mayor and Council. Hill said he agreed "it's the Planning Commission's place to make a recommendation."

Hill prepared language for a commission resolution that would reiterate the body's support of the 2012 APFO committee recommendations. He said they should emphasize to the Mayor and Council that those recommendations were "the product of a citizen committee that spent many hours" studying the complex issues related to adequate public facilities. Leiderman argued the commission should add one element missing from the committee recommendations, namely, to affirm that 110% of capacity is the maximum allowable in a particular school. He also said that passing the proposed changes would not be a mere alteration of regulations, but a de facto repeal of the APFO - an act that would require a text amendment. Leiderman warned that the county has even considered raising its weaker standard to a higher level of acceptable overcrowding - which would leave Rockville's schools well over the 120% county standard.

Ultimately, the commissioners came to a unanimous recommendation that the Mayor and Council should not change school standards at this time. 

Meanwhile, former mayor Larry Giammo posted a second article on his blog regarding the APFO controversy. Giammo was mayor when the city passed the original ordinance, which several commissioners argued last night is clearly working to prevent further school overcrowding. This latest post is devoted to debunking the stated rationales for loosening school standards in Rockville.

FORMER ROCKVILLE COUNCILMAN CALLS PROPOSED SCHOOL STANDARDS CHANGES "DEATH BLOW" TO CITY'S APFO

Two-term former Rockville City Councilman John Hall testified before the Mayor and Council Monday evening that adopting Montgomery County's weaker policy on school overcrowding would be a "death blow" to the city's Adequate Public Facilities Ordinance. Currently, Rockville measures overcrowding at each individual school, and once a school is termed overcrowded, development in that school district is halted.

The proposal by some councilmembers to adopt the county standard, by contrast, would allow an averaging of schools by cluster. Hall pointed to data that suggested averaging would provide a much looser school capacity standard than the current city rules.

Under Montgomery County's APFO, "the most lax and least effective apfo in the entire region," Hall added, individual schools can exceed the supposed 120% overcapacity cap without triggering a development moratorium. At this time in the county, Hall said, 8 public schools exceed 150% of capacity, and 1 is at 180%. "That’s absurd, it’s almost criminal," Hall argued, but it's allowed by cluster averaging methods.

Adopting such a plan, while representing it as a 120% cap on overcrowding, "misleads our parents and residents," he added. Hall urged the council to not act hastily under pressure from developers, and to rely on guidance from the city's Planning Commission.

ROCKVILLE PLANNING CHAIR TO MAYOR & COUNCIL: YOU DON'T HAVE LEGAL POWER TO CHANGE APFS

Rockville Planning Commission Chair Don Hadley dropped a bombshell in the heated debate over the future of the city's Adequate Public Facilities Ordinance/Standards last night. During his annual presentation on city planning and development, Hadley touched on the APFO issue. Just as some councilmembers are prepared to loosen school overcrowding restrictions on development, Hadley cited a recent legal opinion by Maryland Attorney General Doug Gansler that suggests they lack the authority to do so.

The opinion resulted from a 2011 request by the Mount Airy Town Council to settle the question of whether the council could amend or change a comprehensive plan or plan element formulated by the town's planning commission. The council and its attorney believed it could. "Respectfully, we disagree," Gansler wrote back in his November 18, 2014 opinion.

Based upon Sections 3-202 and 3-205 of the Maryland Code’s Land Use Article, the 2012 Code Revision notes, and his review of legislative history, Gansler concluded the council lacked the legal authority to change a planning commission plan or plan element without receiving a new recommendation from the planning commission. Gansler's opinion argued that the council could only approve or disapprove of a plan, not alter it.

The opinion does not apply to counties or Baltimore City, but does apply to municipalities like Rockville.

Accordingly, Hadley suggested at last night's Mayor and Council meeting, the APFS changes proposed by some councilmembers are in conflict with both the current Rockville Master Plan, and also state land-use laws.

Councilmember Tom Moore, an advocate for changing the APFS school standards, vigorously disagreed. "You made a pretty bold claim," Moore charged, saying that Rockville City Attorney Debra Yerg Daniel had concluded the opinion did not apply to the APFS change "because it's not a Master Plan item." 

But Daniel's legal opinion has not been made public, and - under Mayor and Council privilege - must remain secret unless the Mayor and Council waive their right to confidentiality. Hadley asked if the city attorney's decision would remain "under a rock" where the public cannot review it.

Mayor Bridget Newton and a majority of the council said they were willing to waive their legal right to confidentiality, although Moore raised the question of whether there were any negative implications for the city in doing so. The APFS issue "is on a fast train, and four of us have asked you" to make the decision public, Newton said to Daniel.

Daniel agreed to make her opinion public, but it is not known how soon it will be released as of this writing.

An extra dash of intrigue has now been added to the debate, which had tensions high all evening. Near the meeting's end, Newton and Moore clashed on a labor relations item being added to a future agenda. Moore opposed the item, interjecting repeatedly. "Councilmember Moore, you are out of order," Newton said firmly, as Moore continued to protest.

Hadley said that, as chair of the commission, "I'm a dummy if I sit here and watch" the APFS matter be resolved by the council, if it has no legal authority to do so. He pointed to the city's master plan language and state land use rules, both of which explicitly emphasize that school capacity must be provided to support new development. The Mayor and Council should ask Gansler for an opinion on their authority to tamper with the APFS before doing so, Hadley suggested.

"I wouldn't mess with the APFS until the Attorney General rules," Hadley advised. "The city doesn't want me to do this, but we've got to do it."

ROCKVILLE COUNCILMEMBER HOSTING MEETING ON PROPOSED APFO/APFS CHANGES

Rockville Councilmember Tom Moore is hosting a public meeting on December 17 at City Hall at 7:00 PM, regarding the proposed changes in the city's Adequate Public Facilities Ordinance and Standards that would alter how school overcrowding calculations are made. This is another chance to have your voice heard on this contentious issue that has great implications for the future of the City.

APFO DISCUSSION, SELF-STORAGE ZTA, KING FARM ON ROCKVILLE PLANNING COMMISSION AGENDA

Two current hot-button issues will come up during the next Rockville Planning Commission meeting on Wednesday, December 10, at 7:00 PM. Commissioners and staff members Jim Wasilak and Deane Mellender will discuss the Adequate Public Facilities Standards changes proposed by the Mayor and Council. The commission will also take public testimony on a Zoning Text Amendment (ZTA) that would prohibit the construction of self-storage facilities on land within 250 feet of a public school.

This comes during a major controversy over an EZ-Storage facility that is proposed to be built near Maryvale Elementary School in Rockville.

Two townhome projects that would add a total of 129 housing units to King Farm will also be reviewed. Those project sites are located at 900 and 901 King Farm Boulevard.

The meeting will be held in the Mayor and Council chambers at City Hall, and also broadcast live on Channel 11.

ROCKVILLE CITIZENS, FORMER MAYOR SOUND ALARM ON ATTEMPT TO WEAKEN CITY'S APFO

Rockville City Councilmember Tom Moore's push to change the city's Adequate Public Facilities Ordinance/Standards is generating controversy among residents, and the former mayor who ushered in the ordinance in 2005. Moore has referred to the status quo rules regarding schools as "failed," and tweeted last month that "Our schools & City deserve standards that work." 

Former Mayor Larry Giammo, widely credited for guiding the construction of the city's town center, is urging residents to turn out in force at the January 5 Mayor and Council Public Hearing on the APFO, and oppose the changes. The changes under consideration include adopting a weaker school capacity test similar to Montgomery County's, which would allow more overcrowding (120%) than exists today. They would also use an average across school clusters that could mask specific schools' severe overcrowding issues, and change the school capacity test period from 2 to 5 years. 

Moore proposes charging developers a fee for their projects when school overcrowding reaches 105-120% of capacity, and says the current mechanism to request funds when overcrowding hits 110% hasn't generated the construction money necessary.

Giammo rebuts Moore's assertion that the APFO has failed Rockville on adequate school construction, arguing that the APFO was never intended as a solution to begin with; only to prevent overcrowding from getting even worse. "Why propose to loosen controls which are keeping the problem from getting worse, if you actually care about the problem?" wrote Giammo on his blog ten days ago.

Residents are organizing around a petition to keep the current standards in place, and are also urging concerned citizens to attend the January 5 hearing, or email their testimony if they cannot attend to speak in person. East Rockville resident Peter Wizler, who recently helped lead citizen efforts to prevent a self-storage facility from being constructed near Maryvale Elementary School, wrote on his blog that "I am sure we can all agree that school over crowding compromises the education of our kids." Loosening standards would lead to a rapid increase in development and overcrowding, many residents fear. Such development has been restrained by the current APFO standards.

The diverging opinions on the APFO/APFS have been a constant source of debate in City politics in recent years, and in the past election. Equally on the front burner has been the push to get more funding for school expansion and construction across Rockville. Mayor Bridget Newton and Councilmember Julie Palakovich Carr recently testified before the Montgomery County Board of Education about the need for funds, and more accurate planning for future student populations.

The January 5 public hearing will be at 7:00 PM in the Mayor and Council chambers at Rockville City Hall. A vote on the APFO changes is currently scheduled for January 26, 2015.

ROCKVILLE POLITICAL CARTOON

In the best traditions of political cartooning, William Charles is putting pen - and Rockville politics - to paper. And via Rockville Nights, to the internet:

(Click cartoon to enlarge for more detail)

FORMER COUNTY SCHOOL BOARD MEMBER ENDORSES NEWTON, HADLEY, WHITAKER IN ROCKVILLE ELECTION

Former Montgomery County School Board member Laura Berthiaume has released a letter strongly endorsing Bridget Newton for mayor, and Don Hadley and Claire Marcuccio Whitaker for city council, in today's Rockville election.

Berthiaume also provides a detailed analysis she says proves that keeping the city's strong Adequate Public Facilities Ordinance (APFO) in place - as the three candidates she endorsed have promised to do - will not prevent schools from being built in the future.

Recent attempts to weaken the APFO have been presented to suggest the ordinance was responsible for Montgomery County Public Schools not adding school facilities in Rockville. Berthiaume's provided evidence demonstrates that the APFO was not to blame in any of those instances. Rather, other issues at the county level interfered, Berthiaume writes.

Instead, Berthiaume argues strongly for keeping the APFO guidelines in place to prevent even more overcrowding in Rockville public schools. She says that Rockville Pike development will add
4-6000 new units alone. By 2016, Julius West Middle School will have more students than many small colleges, she notes.

"Do you want to see our sole middle school handling 1,800 or more students by 2020?," Berthiaume asks fellow voters in her letter.  "Please ask yourselves that question as you go in to vote [today]."

"It seems to me that one set of candidates [Team Rockville slate] favors essentially unlimited residential construction along 355, no matter the impact on our schools, while three excellent candidates will protect our Adequate Public Facilities Ordinance (APFO) standards," she writes.

Her letter concludes:

"If you care about our children --or if you are just the sort of person who doesn't want to live in Crystal City - and never did - I ask you to please go out [today] and vote for Bridget Newton for Mayor, and Don Hadley and Claire Whitaker for Council."

Whitaker has also been endorsed by Montgomery County Councilmember Marc Elrich, Senator Jennie Forehand, and Gaithersburg Mayor Sidney Katz.

IN FINAL HOURS OF ROCKVILLE ELECTION, APFO REMAINS HOTTEST ISSUE

Fallout from a recent dust-up over Rockville's Adequate Public Facilities Ordinance (APFO) continues in the final hours of the 2013 Mayor and Council election.

An attempt to weaken the ordinance, which requires sufficient city infrastructure - schools and classroom space, fire and rescue resources, etc. - before development can proceed, drew a crowd of outraged residents to a contentious Public Hearing 35 days before the election. Now the disagreement over the future of the APFO standards has become the central issue in the city election.

As candidates visit homes and meet with voters across Rockville, two members of a committee that considered changes to the APFO in 2011 are urging voters to support the candidates they say will keep the current, higher APFO standards in place.

Tom Gibney, who served on the city's APFO Review Committee, says the award of an APFO waiver to the Silverwood development was a dangerous mistake, and strongly criticizes mayoral candidate Mark Pierzchala for his deciding vote on that matter, in a letter to the Gazette.

Gibney cites his committee's own review of the Silverwood case in his letter. The data that predicts 75-95% of residents will drive south on Route 355 in the morning suggests a dangerous situation for drivers and pedestrians in that area.

He says all of the Silverwood vehicles will have to use the sole means of egress from the apartment complex - a driveway onto 355. The problem, Gibney writes, is that - in order to reach the southbound lanes of 355, drivers will have to first dash across 3 of the highway's northbound lanes. Then, they will have to make a U-turn via a brief signal at Ridgemont Avenue. Gibney warns that this could result in "accidents and fatalities."

If Silverwood is an example of the "smart growth" Pierzchala and the Team Rockville slate are promising, Gibney concludes, "he does not deserve to be Mayor."

Gibney says he is supporting Bridget Newton for mayor, because she opposed the waiver for Silverwood as a councilmember.

A second member of the APFO Review Committee, Sean Hart, is also speaking out. In an email circulating on community listservs, and obtained by Rockville Nights, Hart expresses concern that some Rockville candidates "want to remove key components of the APFO," to permit far more development and growth in the city than is currently allowed. "Rockville is severely over capacity for schools, and as we all know, driving around town can be very slow," notes Hart.

Hart writes that his own analysis of the data while serving on the APFO committee suggests that working closely with the state and county to ensure needed infrastructure gets funded and built would be a better approach than weakening the APFO.

To foster that approach, he urges his fellow citizens to only vote for the 3 candidates who have been outspoken in their support of maintaining the current APFO standards: Newton for mayor, and Don Hadley and Claire Marcuccio Whitaker for city council.

"It is my belief that voting for [those] 3 (and only [those] 3) candidates for Mayor and Council will help us continue to take an appropriate approach to growth in the city," Hart concludes. Voting for only 3 candidates on the ballot, rather than the maximum possible 5 (1 mayoral+4 council seats), is allowed when voting in Rockville.

There are now less than 24 hours before city residents begin voting.

ROCKVILLE PLANNING COMMISSION NOMINEES SKEPTICAL OF ROCKVILLE PIKE PLAN

A very significant item on the agenda of tonight's Rockville Mayor and Council meeting (7:00 PM at City Hall) is the appointment of two citizens to vacant seats on the Rockville Planning Commission. Those who fill the seats could well determine the outcome of the Rockville Pike Plan, and the future of the city's APFO.

Mayor Phyllis Marcuccio, who has been critical of plans to promote urban density in suburban Rockville,  has had mixed success with her previous appointments. While Marcuccio has had the opportunity to completely shift what has, in recent decades, been a pro-development body, there is still not a solid majority in opposition to the Pike Plan.

If one were to place bets on the 5 sitting members' potential Pike Plan votes, well, that would be difficult.

Only Jack Leiderman is a likely NO vote. David Hill and John Tyner II are likely YES votes, if the changes they've suggested are approved.

But Dion Trahan and Don Hadley have yet to reveal their hand. Both have been skeptical of the urbanization concept the plan represents.

2 YES, 1 NO, 2 UNKNOWNS.

Enter 2 new members:

Mayor Marcuccio has nominated Charles Littlefield and Anne Goodman. Both are skeptics of the Pike Plan. Littlefield served on the Adequate Public Facilities Ordinance committee in 2011, and issued his own Minority Report that dissented against attempts to weaken the ordinance.

In his report, Littlefield made clear that he feels a strong APFO is essential to protect residents from out-of-control growth:

"As a member of this Committee I witnessed an aggressiveness on the part of certain developers, elected officials and public planners to push through large-scale residential development regardless of public opinion. The impression they made on me left me firmly convinced that Rockville's APFO/ APFS should not be weakened. From the perspective of a Rockville resident/ homeowner, the APFO 'evens the playing field' between everyday citizens and organized, connected and financially powerful developers. Without this tool, it would be virtually impossible for citizens to stop an undesirable development project from occurring and negatively impacting our quality of life."

Goodman also expressed concern "about the potential for weakening the APFO to allow more development" in her Pike Plan testimony.

While Marcuccio and Councilmember Bridget Newton owe much of their political support to voters who favor limiting growth and building heights, councilmembers Tom Moore and Mark Pierzchala are running (for council and mayor, respectively) on a more aggressive development platform.

It could be a contentious meeting tonight, as a result.

If approved by the council, could strong arguments by Littlefield and Goodman lead to a 5-2 or 4-3 defeat for the Pike Plan? Can they get majority support tonight, with outgoing councilmember John Hall as the potential deciding vote?

Intrigue! Suspense! Stay tuned!

ROCKVILLE MAYOR AND COUNCIL BEGIN DISCUSSION ON CONTROVERSIAL APFO CHANGES

The Rockville Mayor and Council initiated what could be a long and contentious discussion on what revisions - if any - should be made to the city's Adequate Public Facilities Ordinance (APFO) last night.

So far, the legislators were diplomatic in tone, despite taking opposing positions. For engaged citizens, the most intriguing councilmember to watch in this controversy will be John Hall. Given that Hall owes much of his electoral success to his work on the APFO and citizens who support it, most assumed he would be part of a 3-vote bloc (along with Mayor Phyllis Marcuccio and Councilmember Bridget Newton) to rebuff any watering down of the regulations.

But some votes Hall has cast on housing and development during his latest term have puzzled his supporters. One resident who supports the APFO expressed concerns that Hall has gone "wobbly" on the responsible-development approach that won him the seat.  And some suspect Hall may attempt a Grand Compromise on the APFO before the summer is over.

If that is Hall's intention, he was not laying his cards on the table Monday evening.

Hall's primary concession, as councilmembers laid out their individual priorities on the APFO, was to allow that the city probably cannot control its destiny regarding school overcrowding. He suggested the council "move beyond that particular revision." Hall argued that the revisions should "ensure the APFS is entirely consistent with the APFO" to avoid legal action against the city.

He also suggested that "annexation development is no different from other development in the context of the APFO."  If Hall has any compromises in store, he was playing them close to the vest last night.

Mayoral candidate and councilmember Mark Pierzchala took a different tack. "I would just dump the APFO," he began frankly.

Favoring a more muscular approach to development, Pierzchala called the regulations "problematic," citing the recent
"traumatic experience" of the state attempting to reduce the city's role in planning decisions.

The city should at least make its APFO in line with the county's, Pierzchala argued. Supporters of the APFO have said they feel the city's APFO offers greater protection to residents than the county's.

But in Pierzchala's view, the ultimate problem with the APFO is that "we're trying to solve a political problem with a policy solution."

Current Mayor Phyllis Marcuccio cited the high stakes and substantial work ahead on an issue that will shape the city no matter which side prevails. "We have a big, big meal to feast on here tonight, she said.  Rockville is buffeted by "incredible pressure [for] development and redevelopment," and declared there "has to be some plan of action."

If Rockville doesn't "ensure the infrastructure can support" future growth, the "survival of the city as a good place to live" will be in question, she argued.

Marcuccio warned that, without an adequate APFO, property owners will "build it to the max. That changes the quality of the city." The city cannot "let them do whatever they please" and remain the attractive community with superior amenities it is today.

"If the goal is only to allow for more development, then we have lost our way...driven by dollars," the Mayor said.

She later added that traffic and transportation are the "dominating" issues facing Rockville, particularly with the growth in Science City.

Councilmember Newton concurred with Marcuccio's sentiments. While the city must take the county's positions into account, "good for us is not always good for the county," Newton said.

Citing calls for more bars and liquor at the county level, Newton argued "we have nightlife" already in Rockville.

Newton listed her goals as adding "additional tools" to facilitate  "development we want to see,"
establishment of a "Village Green" similar to Gaithersburg, "get a better handle" on Montgomery County Public Schools' notoriously off-target enrollment projection methods, and, above all, to
"leave Rockville better than when we started."

Newton and Marcuccio strongly disputed claims that children won't live in the many apartment buildings projected to be built in the city over the next decade.

Councilmember Tom Moore expressed concern that, under the current APFO, "we do not have the power to do a waiver" for school requirements even if the city feels it is an exceptionally good project.

Rather than focus on goals for the APFO, Moore suggested the council ask itself, "What goals do we have for the city?"

The council will likely take up the matter in greater depth at its July 1 meeting. A public hearing would follow. However, any APFO changes must go to the city's planning commission first.