Howard County Should Free the Zoning Board09 Feb 2019
The time has come for Howard County to do the easy thing and separate the Zoning Board from the County Council. The business of local government, other than policing, is basically land use. This covers zoning, planning, permitting, and all the associated facets of trying to build something new. There are many different boards, departments, and decision makers in most local governments that handle this. For an academic treatment of this, Implementation by Jeffrey L. Pressman and Aaron Wildavsky describes this in detail.
In Howard County, we have several different boards. But the most interesting, from a governance perspective, is the Howard County Zoning Board. There are two Zoning Authorities provided for in § 16.200 of the Howard County Code. The first is the “Zoning Authority for comprehensive zoning and for amendments to the text of the Howard County regulations” and is the County Council. The second is the “Zoning Authority for piecemeal zoning map amendments and decisions on development plans” and is the Howard County Zoning Board.
The problem comes a bit later in § 16.201 of the Howard County Code which says Zoning Board “shall consist of the members of the County Council.” Because of this, sometimes the County Council is doing its business as the County Council and sometimes as the Zoning Board.[1. It is also the Board of License Commissioners for Howard County under state law, commonly called the “Liquor Board,” which should not be confused with the Appointed Alcoholic Beverage Hearing Board, also commonly called the “Liquor Board.” You know what, that’s a different post.] By and large, this should not be a big deal, if a bit weird. However, there is broad concern among many that contributions from those with business before the Zoning Board are contributing to those members’ campaigns. There are proposed regulations that would limit the contributions that would curtail such contributions. These proposed regulations are of questionable constitutionality, though.
So let’s address the issue a different way. The Zoning Board can become a separate agency. The specifics of its construction are not important. It can be appointed by the County Executive with County Council confirmation, like almost all of the county boards and commissions. It might be appointed directly by the County Council, like the Board of Appeals. It might have a dedicated member from each Council district, though it might be better if not.
But here’s the kicker. Changing this does not require permission from the Maryland General Assembly. The structure of the Zoning Board is governed by the local code. The County Council can pass a bill changing the structure and it will be effective after the signature of the County Executive.
The only real question is how to handle changes to the Zoning Code. An independent Zoning Board would, presumptively, have the same authority as the current Zoning Board to hear piecemeal map changes and development plans. And as a county board, the Zoning Board would be subject to the same ethics rules and disclosures as every other county board.
However, the role the County Council has two roles still, comprehensive zoning and changes to the zoning regulations, commonly called ZRAs. Comprehensive zoning should probably be handled by the County Council, still.
But ZRAs are changes to the law. In Howard County, we have two complete and distinct “bodies” of law, the Howard County Code and the Howard County Zoning Regulations (HCZR). Both are adopted by and maintained by the Howard County Council. We generally think of “regulations” as being adopted by administrative agencies, like the FCC. Those regulations are subordinate to and authorized by enabling legislation. How ZRAs, and the HCZR, are handled in this future scenario is a sort of open question.
A typical ZRA will change the HCZR to change what is permitted in a given zone, usually in the conditional uses list. Someone has a specific use in mind and if is not permitted, a ZRA will be submitted to make it so. If a ZRA creates or changes a conditional use, then the applicant still has to go through the Hearing Authority, a quasi-judicial process. These ZRAs do not bypass that process; they simply let you ask for permission.
One option is to transfer the handling of the HCZR to the newly independent Zoning Board. This may work if there is a substantial framework for governing how the HCZR should be implemented. Personally, I think it is the best option, but also the hardest to actually do, setting aside the political hurdles it would encounter. I really do not think anyone has the stomach to do the work required to make it work.
It is probably best to leave the ZRAs with the County Council. This is probably not a bad idea as ZRAs are often done at the best of a single applicant but apply equally to everyone. Further, the interests of incrementalism suggest this is easier to accomplish. And it would reduce the number of the perceived issues of independence by zoning decision makers.