MD board: Rockville Planning Commission violated Open Meetings Act

The State of Maryland Open Meetings Compliance Board has found that the Rockville Planning Commission violated the Maryland Open Meetings Act in its two closed sessions on November 5, 2018 and August 7, 2019. Rockville resident and former planning commissioner David Hill brought the matter to the board's attention last year, and their ruling has now been issued. Hill also informed the Mayor and Council of the issues and the ruling at their December 16 meeting.

Both Hill, and the West End Citizens Association, further argue that City staff actions and advice to the Planning Commission in regards to the closed sessions led to the violations, and failed to provide sufficient transparency to the public. WECA had actively participated in the public approval process of a development proposal for 107 W. Jefferson Street. Representatives of WECA were present at commission meetings during that process, in one instance waiting outside of the chambers during a closed session at which commissioners departed the room without returning to open session following their closed discussion.

The Mayor & Council will now discuss the violations and related issues at their January 6, 2020 meeting at 7:00 PM at City Hall. Hill is urging them to take some substantive action rather than let the OMCB's findings simply stand, as that body only determines whether the law was violated, but does not issue penalties. He also is requesting they investigate the actions of City Attorney Debra Yerg Daniel in the matter. "The City Attorney serves at Mayor and Council pleasure," Hill noted in his testimony. "That gives you supervisory responsibility of her conduct. As a citizen of Rockville and former commissioner, I call on you to discover why the law was broken, censure that, and fix it."

WECA is further recommending the Mayor & Council utilize an independent outside counsel to study the matter. The WECA board suggests that the approval of the 107 W. Jefferson Street development also be part of that independent investigation.

Mayor & Council photo via City of Rockville

Former Rockville mayor Giammo elected president of WECA

Outgoing West End Citizens Association President Noreen Bryan last night announced that former Rockville Mayor Larry Giammo has been elected the organization's new president. Giammo served as mayor from 2001 to 2007. He has been actively engaged in City issues since leaving office, however. In recent months, Giammo has been a vocal opponent of the proposed bus depot at the Carver Educational Services Center, and of the plan to build townhomes on the former site of Chestnut Lodge.

WECA asks Mayor and Council to halt approval process for expansion of small cell towers in Rockville

A small cell tower atop
a pole at the
Red Mill Center in
Derwood

A zoning text amendment that would permit small cell towers to be installed on any structure 15' or higher in the City of Rockville is sailing towards a decision by the Planning Commission next Wednesday, unless the Mayor and Council intervene Monday evening. The staff recommendation is that commissioners recommend the Mayor and Council approve the ZTA, but reduce the allowable size of the antennas from 2x4.5' in size to 2x3'.

Yesterday, the West End Citizens Association sent a letter to the Mayor and Council asking them to halt the approval process until the public can be officially informed of the proposal and data on the health impacts of cell towers.

Noreen Bryan, President of WECA, wrote that City staff scheduled the May 11 commission hearing, and a June 6 Mayor and Council hearing, before alerting the public to the issue. Simply using the Rockville Reports newsletter to inform residents after the hearings was not sufficient, Bryan wrote.

"I believe that staff has overstepped its authority, has acted in a way that is adverse to protecting the public and has failed to allow citizens to participate in the issue by failing to notify themof the text amendment," she wrote.

Bryan urged the Mayor and Council to cancel the public hearings at their next meeting this coming Monday, to gather the available research on the health impacts of cell towers, and to then formally report that information - and the ZTA itself - to the public before holding any hearings.

In previous written comments submitted to the City, Bryan expressed concern that these small cell towers could wind up on many utility poles in residential neighborhoods, and that the low altitude of the towers would increase ground-level radiation. She also noted that the ZTA language would give the Board of Appeals power to allow antennas larger than the proposed 2x3'.

The applicant is Cellco Partnership, doing business as Verizon Wireless. Cell towers could not be installed on single-family homes under the ZTA as currently written.

Photo courtesy City of Rockville

Alternatives for future use of the Chestnut Lodge site in Rockville?

Testimony at Monday's Mayor and Council meeting capped other efforts underway to reopen debate on how the former site of the historic Chestnut Lodge sanitarium should be redeveloped. There is, of course, a new townhome proposal on the table, which recently passed scrutiny by the Rockville Historic District Commission (although two members were absent that evening). Chestnut Lodge burnt down in 2009, in what is suspected to have been an arson incident.

Patricia Woodward, a resident who was once head nurse at Chestnut Lodge and now heads the Chestnut Lodge committee for the West End Citizen's Association, said a reconstruction of the original building "can be done," as a condominium development. This would reduce the size of what is proposed now by 63%. 

Woodward noted that "there is a precedent for rebuilding, reconstruction” on the site, including the stable, "wing B," and the Ice House. She said that, during her tenure, the Ice House served as a music room, with a baby grand piano, drum set, stereo system, and electric guitar. There was "room for jamming, and it was most enjoyable," Woodward recalled Monday night.

It is invaluable to have people who were actually at the Lodge during its operation participating in this discussion. 

It's also valuable to have input from former Mayor Larry Giammo, who was in office at the time when a Planned Residential Unit agreement was made with developer Chase Communities, and the Chestnut Lodge historic district was created. He made the point that townhomes had previously been determined unsuitable for the Chestnut Lodge site. Both he and current Mayor Bridget Donnell Newton have questioned the action of city staff in substituting their professional judgement for the terms of the PRU. Doing so was "actually illegal," Giammo said Monday night. He argued the issue should have been brought to the Mayor and Council. Newton questioned city staff later that evening as to why she and the Council were not informed of this matter.

The West End Citizen's Association has also started a petition to oppose the townhome plan, after Woodward's committee recommended the City deny the townhome plan. The petition has already gained 50 signatures. WECA is seeking further discussion that would determine a plan that considers both the historic importance of the site, and the previous PRU.

Chestnut Lodge was "the most important, most notable historic asset in the 

City of Rockville, before it was allowed to be destroyed by fire," Giammo said Monday.

Given the County's mental health crisis today - where both City and County police officers are often the ones who have to address the consequences of that crisis firsthand, and so many in the County are homeless - one wonders why the big talkers on mental health among our County Council didn't step in to acquire Chestnut Lodge, when it ran into financial difficulty.

Photo courtesy City of Rockville

TOWN CENTER II DEVELOPER TAKES "HORSEWHIPPING" FROM ROCKVILLE PLANNING COMMISSION

A request for a parking waiver by JBG entity "Hungerford Retail II, LLC" failed to convince a skeptical Rockville Planning Commission last week, leading the development's attorney to request a deferment of the petition. The project is a 2-story, mixed-use building with office and restaurant space, where a former Giant grocery store was recently demolished. A 41% decrease in parking spaces was requested for the structure, which will include a one-level, below-grade garage.

The waiver request stumbled out of the gate, with the last-minute revelation that the applicant had not apprised nearby residents of the parking changes. A communication from the West End Citizen's Association earlier in the day suggested neighbors were not yet informed of the plan, and requested a postponement of the decision. “It is with some puzzlement that I’ve learned that WECA was not involved, was not notified about this parking waiver," Commissioner Jack Leiderman said. "We did receive a letter from the president of WECA to postpone the waiver. As a commission, we need to slow down and get the input of the community." Commissioner John Tyner concurred, characterizing the applicant's failure to inform WECA in advance as "a strategic error." City planning staff member Cas Chasten said that, while waiver applicants are not required to notify neighbors, city staff had strongly advised them to do so.

Commissioner Dion Trahan was equally concerned about neighborhoods that would be affected by parking changes in East Rockville, such as Lincoln Park. The failure to notify them made the applicant appear "insincere," he said. "Whenever the citizenry talk about these back room deals going on in City Hall, this is what they’re talking about,” Trahan added.

The applicant's attorney, Erica Leatham, said they apologized to WECA and the Planning Commission for the lack of communication.

Another major concern among commissioners was the relevance and accuracy of the parking studies submitted by the applicant, which were designed to support approval of the waiver.

The wheels came entirely off when the applicant's parking consultant, Edward Papazian, was caught off-guard during cross examination by Leiderman.

Papazian had stated that the high volume of parking recorded in a study of Rockville Town Square garages on Thursday, December 12, 2013, was atypical. Demand would be less on the average night, Papazian claimed, because the city's Christmas tree lighting event had inflated the numbers on the 12th.

"Would it surprise you, sir," Leiderman asked, "to learn that the tree lighting event was actually a week before, on Thursday, December 5th?”

"We were there, our people were there," Papazian insisted.

Leiderman begged to differ, citing official transcripts of a Mayor and Council meeting three days before Papazian's claimed tree lighting ceremony.

"It’s a matter of public record," Leiderman said. "I have The Mayor and Council meeting [transcript] of December 9th, [during which] Councilmember [Beryl] Feinberg reported that she attended the Rockville Christmas tree lighting on Thursday, December 5th."

Leiderman said the false information regarding the parking counts called the whole report into question. "I don’t trust your report, with all due respect. If I had more time, what other junk would I find in it?" Leiderman asked. "You’re coming here with this report that’s filled with numbers, and we’re supposed to base important land use decisions on the accuracy of them. You’re attributing [numbers] to something that didn’t even happen, some data that could have just been a routine Thursday night with [it being] hard to park in the city. You’re saying it’s [the tree lighting]. It didn’t happen. So, I’m looking at this report going…”, Leiderman concluded with an expression of disbelief.

Many commissioners, including Chairman Don Hadley, expressed concern that the urban parking concept was out of sync with the reality of Rockville as a suburban city of residential neighborhoods. Using Montgomery County parking studies and practices would put future growth in Rockville on a course more in line with denser areas like White Flint or downtown Bethesda, something the city does not want, Hadley suggested.

"The assumption that this is an urban area…probably misses the mark on what we deem or believe to be the reality in Rockville, now and for the future," Hadley said. "[I]f [people] want an urban area, they can go to New York, Chicago or L.A." Large parking garages may not be preferable to suburban clientele, Hadley said. Most families with children won't ride bikes to the town center, he argued, saying most will "hop in the car." Moreover, between existing transit options, and those on the drawing board, many suburban residents "won’t have public transportation that is desirable for their preferences” anytime soon, he said. Hadley noted that Montgomery County Government's perception of urban is “vastly different” from Rockville’s definition.

Leiderman expressed similar skepticism of the applicant's smart growth predictions. He pointed out that previous town center projects were held to a higher standard than the applicant was proposing for itself. Urbanization proponents, Leiderman said, are "wanting to buy in to the aspirational goal that Rockville will no longer be a suburb, it will be an urban center, and everyone is going to be on a bike, and walking, and 75% of the people working here will use transit…that’s not what the numbers for the Choice Hotels site were based on." Leiderman predicted "people are going to park in the residential neighborhoods,” or take their business elsewhere, if parking is difficult.

Commissioner Charles Littlefield expanded on Leiderman's reference to the impact on businesses, warning that one bad parking experience is enough to send patrons elsewhere to dine and shop. Littlefield cited the free and ample parking at Gaithersburg's Washingtonian Center as a better model. "I’ve never once not been able to find parking” at Washingtonian Center, Littlefield noted. Leiderman said difficulty and inconvenience locating parking would deter customers, "as things get built out, having a harder time finding parking, having to go higher and higher” in the garages, he said.

The idea that customers could park in other garages would be shifting the cost of parking to taxpayers and other adjacent property owners, Leiderman said.

By this point, the applicant had also lost Commissioner David Hill's support. Considering that the applicant had already received significant exemptions on parking for the project, Hill said, "I as a public official can’t countenance making that number bigger. He said Bethesda or White Flint-style development is not what Rockville wants for its future.

"I'm not comfortable passing our responsibility onto the chief of planning," Hill said. "I have no problem with the argument that you qualify for the waiver [but] I would like to see us leave this in a position where we can continue talking."

In addition, Hill felt that the city is facing a larger issue with this and future parking waiver requests, which the city's zoning code is currently unequipped to address. "I think that what we should be doing right now is having a legislative discussion about changing the zoning ordinance," Hill suggested. He also doubted the numbers regarding how many customers would indeed be on-site, as opposed to traveling by car. "You haven’t cleared the very high wall" to justify an exemption, Hill concluded.

With the request obviously heading for rejection, Leatham then asked the commission for a deferral. After some discussion among commissioners as to how citizens could best be heard, and to whether or not it would be best to extend this petition, or require a new one, the commission voted unanimously to defer the waiver request, and leave the public record open.

The applicant was advised to gain public input from residents of nearby neighborhoods before returning. Leatham said there was no guarantee the specifics of the request would change, but that the applicant would gather more data in support of a waiver.

Hadley somewhat jokingly apologized to the applicant's representatives, for having to take a "horsewhipping" during the four-hour meeting.