Charles County Resists O'Malley Septic Bill

Plan for Charles County: What You Get When the Developers Write Your Plan

The boys at the Chesapeake Bay Action Plan have a fresh, and exceptionally whiny post about how Charles County (across the Pax River and north a bit from me) are circumventing or actively ignoring the new septic bill that Governor O'Malley has promulgated.

SB236, The Sustainable Growth and Agricultural Preservation Act of 2012, encourages development supported by public sewer systems as opposed to sprawl development on septic systems. On the surface, this looked like a “win-win” piece of legislation that limits where septic systems can be used as a way to promote smart growth with a strong Chesapeake Bay cleanup component. The legislative provisions were implemented via “shall” statements to more forcefully push local government toward smart growth policies that concurrently reduce the associated growth costs born by the taxpayers and threats to the environment. However, some counties have revolted against the State’s threat to their autonomy and decided to test the State’s resolve to use the “stick.” Charles County seems poised to join the ranks of Frederick, Cecil and others who don’t have a problem with new development costs being born by the taxpayers and the water being too dirty for their children to play in.

Pretty harsh when you consider that septic is believed to contribute only about 7% of the nitrogen the the Chesapeake Bay's pollution problem.  Not exactly rounding error, but approaching it.

They blame the plan on a preference for private property rights:

The process was permeated by the insistence of a majority of the Planning Commission (PC) that zoning density is a property right and downzoning is a “taking” of rights – a conclusion that is not supported by legal precedence, court decisions or the history and application of local zoning ordinances throughout this nation.

Therefore, any attempt to limit development anywhere in the County was automatically opposed with no regard for the obvious and well-documented potential environmental, quality-of-life, and fiscal consequences. Ultimately, this “takings” argument has set the course for a new land-use vision that will burden taxpayers with the cost of sprawl, cause further environmental degradation, and destroy resources that have public-health, ecological and economic value.

A little digression into what constitutes a "taking"

A "taking" occurs when a zoning ordinance interferes so much with a private property owner's use of the land that the ordinance robs the property of its economic value. If a court decides that a taking has occurred, the government would then be required to compensate the owner for diminished value of the property. The United States Supreme Court has addressed the takings issue several times in the past decade, however it is still unclear how much interference with private property is necessary before a zoning ordinance will be considereda taking. In the most recent Supreme Court case on this issue, the court found a taking had occurred when the ordinances destroyed "all economically viable" uses of the property.

So, arguably, if the new septic law substantially diminishes the value of large swaths of suburban land, by making it impossible to develop to levels that are currently possible, it could be interpreted as a taking.

It's not like Charles is ignoring the law entirely; they're just taking advantage of the way it was written:

In an attempt to circumvent the text of the Bill, the PC voted to change the zoning of over half the County to remove the word “Conservation” from the zoning classifications. There was no planned comprehensive rezoning and no assertion of a mistake or change in neighborhood as required by the Land Use Article in State Statutes. The majority of the PC just “spot-zoned” all the areas where they wanted to increase development on septics in total disregard for the law.

Apparent loop holes in the text of the Bill were exploited to increase the size of all minor subdivisions on septics from five to seven lots and also allow residue parcels to be treated as new subdivisions so some existing minor subdivisions can be expanded to 12 lots.

At this point, they stop trying to make sense, and simply go with purple prose, in hopes of gaining sympathy for their loss:

The apparent corruption of sound growth and development concepts has also infected the Board of County Commissioners (BOCC) who didn’t have to endorse the PC’s biased anti-environment agenda. However, recent actions by the BOCC indicate that the development lobby has succeeded in seizing control of at least three of the five Commissioners who are willing to rubber-stamp the irresponsible decisions of the rogue Planning Commission.

 So much for a serious discussion of the issues...