M E M O R A N D U M

TO:                  Brooke Farquhar

                        Sandy Spring Ashton Rural Preservation Consortium

FROM:            David W. Brown, Esq.

DATE:              April ____, 2006  [finalized on May 1, 2006]

            You have asked that I provide an analysis of whether the revised Ashton Meeting Place submission to the Planning Board complies with the Master Plan and the Zoning Code.

Ashton Meeting Place

            Ashton Meeting Place is a proposed development on 7.1 net acres of land at the southeast intersection of Ashton Road (MD Rte. 108) and New Hampshire Avenue (MD Rte. 650).  The project is comprised of several distinct parcels to be combined in a Preliminary Plan of Subdivision.  All of the property is in the Sandy Spring/Ashton Rural Village Overlay Zone, Zoning §59-C-18.18 - five R-60 parcels (3 acres) and six C-1 parcels (4.1 acres).  I have reviewed the revised Site Plan and Cover Sheet dated 4/13/06, and a number of contemporaneous supporting drawings.  There are three buildings proposed for the site.  Building 3 is a grocery store, with its back to Route 108 with a building area of 35,182 square feet.  Building 2 is the Sandy Spring Bank building, on the corner of the intersection, with an area of 7,100 square feet.  Building 1 fronts on New Hampshire Avenue, south of the Bank.  It is a combination office/retail/residential and restaurant building, with a total of 55,586 square feet.  The total floor area for the project is 97,868 square feet:  about 55% retail, about 23% office, 20% residential and 2% restaurant.  Given the size of this development, 338 parking spaces are required; 349 are provided.   Of these, 20 spaces are designated for the 13 residential units in building 1.

            The grocery store appears to be one story; building 2 is two stories; and building 1 is three stories.  Elevation drawings reveal the following building heights (to roof midpoints): building 1 – 24’; building 2 – 30’; building 3 – 30’ (with two “architectural peaks” – one at 49.2’ and the other 61.1’). 

Master Plan

            The applicable Master Plan is the Sandy Spring/Ashton Master Plan, approved by the Montgomery County Council on July 7, 1998 in Resolution No. 13-1364.[1]  The first substantive commentary in the Plan is the section preceding Chapter One called “Highlights”.  The first section under Highlights is a subsection called “Rural Character”.  The first sentence under Rural Character is as follows:  “This Plan strengthens the 1980 Plan’s commitment to maintain and preserve the aesthetic qualities and rural character of Sandy Spring/Ashton.”  The next paragraph goes on to state, inter alia, as follows:

This Plan recognizes that additional development will occur, but recommends development patterns and design standards that will help continue Sandy Spring/Ashton’s unique rural character.  This Plan:  defines the elements of rural character as rural open space, rural traditions, new rural neighborhoods rural roads, rural villages.[2]  rural roads, rural villages.[2] 

            Opposite this first Highlight page is Figure 1, which is a set of photographs illustrating what the Board meant by rural character, including a photograph of the Cricket Book Shop in the Ashton Village Center.  It is a modest 1 ½ story building with bay windows and dormers in the roof, facing on New Hampshire Avenue, across the street from the proposed Ashton Meeting Place, with parking immediately in front of it directly adjacent to New Hampshire Avenue.

            Chapter 3 of the Master Plan discusses land use design and zoning in particular areas, including the Village Centers of Sandy Spring and Ashton.  In an introductory observation about both Village Centers the Plan states as follows

This Plan emphasizes “rural villages” as one of the important elements of rural character in Sandy Spring/Ashton.  The village centers provide for the business of daily life also.  The rural character of the village centers is of great value to the community.  There is concern about the future economic and social health of these village centers.  This Plan acknowledges and addresses these issues to the extent possible through land use and design recommendations.

Master Plan, p. 29.  The first objective noted in fulfilling this rural village goal is to “[e]nsure that the villages of Sandy Spring and Ashton maintain separate and distinct identities.”  Id.  The Plan makes several recommendations in furtherance of that objective.  First, the Plan recommends “apply[ing] the new Sandy Spring/Ashton Rural Village Overlay Zone to allow additional flexibility and development while providing the option of design review to ensure conformance with this Plan.”  Id. at 31.  Second, the Plan recommends against widening Maryland Rte. 108 greater than 80’ so as to maintain a “main street” character on Maryland Rte. 108 within the village centers.  The goal is to “ensure the road functions as a street serving the village centers, rather than dividing them.”  Id.  Third, the Plan seeks to “[e]ncourage development and revitalization of the village centers.”  Id.  The Plan recognizes that an increase in commercial density is a way of encouraging redevelopment, but cautions as follows:  “However, in these village centers, such increases need to be balanced with the Plan intent to maintain the small scale of the existing centers.”  Id.  Fourth, the Plan recommends a number of development guidelines that the Plan drafters believed, with design review, would “help ensure that new development maintain the small scale envisioned for the village centers.”  Id.  As relevant here, the enumerated guidelines are as follows:

-                      Encourage use of traditional village design such as height limits compatible with the Sandy Spring Historic District and buildings facing the main road

-                      Encourage “active fronts” on buildings such as porches and street entrances.

-                      Encourage a land-use mix of stores and homes by maintaining the existing mix of commercial and residential zoning within the village centers.

-                      Create pedestrian “traffic” with uses and designs that invite frequent visits by all members of the community.

-                      Encourage stores and other uses that provide services to local residents and are at a compatible scale.

-                      Create small parking areas that are well-landscaped, preserve trees and are compatible with nearby uses, both day and night.

-                      Place most off-street parking out of view of common space and active fronts rather than between buildings and the street.

Id. at 31-32.

            With respect to the Ashton Village Center in particular, the Plan notes that “[t]here is constant pressure on the Center to continue to grow into a suburban cross-roads because of its location at the junction of two heavily used roads.”  Id. at 38.  Nevertheless, the Plan states that the “1980 plan recommendations for limited commercial use and moderate to low-density residential use are confirmed, with changes primarily to address character.”  Id. The Plan then defines the objective for the Ashton Village Center:  “Maintain the existing scale of Ashton Village Center and encourage improvements to its character.” Id. Then the Plan goes on to state that “this Plan confirms the 1980 Plan land use recommendations and the existing zoning pattern in the Ashton Village Center.”  Id. This is followed by recommendations of certain specific changes from the 1980 Plan, none of which are applicable to the Ashton Meeting Place property. Id. at 38-39.[3]

            In short, the 1998 Master Plan for the Ashton Village Center, subject to amendments not relevant here, effectively incorporates the 1980 recommendations for land use in the Ashton Village Center in the 1980 Master Plan.  Those recommendations are at p.37 and p.38 of the 1980 Plan, approved and adopted by the Board in November, 1980.  As relevant here, that Plan states as follows:

Commercial development is channeled along New Hampshire Avenue south of Maryland Route 108 where stores and offices are interspersed with small residential lots.  A small amount of commercial expansion should occur in these areas in accord with the present development pattern:  small stores fronting New Hampshire Avenue.  Parking for these uses should be coordinated and placed in the rear of these structures, if this is feasible. 

1980 Plan at 38.

            I conclude from the foregoing that the 1980 Plan, as reconfirmed in the 1998 Plan, provides for a small amount of commercial expansion on the commercial portion of the site, which is owned almost entirely by Sandy Spring Bank.  The 1980 Plan explicitly endorsed small stores fronting New Hampshire Avenue.  The 1998 Plan would arguably embrace commercial activity fronting on MD Rte. 108 as well, providing that those stores reinforced the model of a “main street,” between Ashton and Sandy Spring.  Looking only at Buildings 1 and 2, but for their 49’ and 60’ “peaks,” one could plausibly argue that these buildings would add vibrancy and economic vitality to Ashton, and therefore should be approved as consistent with the Master Plan.  This conclusion is influenced in significant part by the fact that the Alloway Building across the street, which I believe is at a height of 30’, was approved in 2001 and probably would be comparable in height (except for the “peaks”), even though not in square footage, to Building 1.  It is my understanding that for whatever reason, the Alloway Building did not generate any significant community opposition and was approved in a fairly routine fashion at a hearing on May 25, 2000.  The Staff Report submitted to the Board did not discuss compliance with the foregoing provisions of the Master Plan.  Rather, the Staff Report spoke generally to compliance with the Sandy Spring/Ashton Rural Village Overlay Zone, in which the site lies.  Without discussing the building scale issue, the staff simply observed generally:

The plan conforms substantially (with agreed-upon conditions) with the recommended design goals for the Sandy Spring/Ashton Rural Village Overlay Zone in use, site layout, parking location and design, arcaded street façade and main entry.  Staff recommends attention to building height, with regard to elevations and roof design staff recommends particular attention to the lighting plan at signature set.  

Staff Report 9.  The Report also notes that the Overlay Zone “allows flexibility in building heights with an allowance for 30’ building height for commercial sites.”  Id. 

            A fair reading of the Alloway result, therefore, is that in the absence of any significant demand or voice from the community for a smaller scale than 30’ in height at this location, the Board allowed the builder to build at that height rather than the lower height of 24’ generally specified as the limit in the Overlay Zone.  This precedent certainly does not preclude SSARP from insisting on a more modest approach across the street for Ashton Meeting Place. 

            With respect to the grocery store, there is 227’4” of frontage of the back wall of the grocery store on MD. Rte. 108.  While this wall will be configured with façade architectural elements to create the illusion of multiple separate buildings, there will be no separate buildings or entrances along this side.  It appears that most of the building will be set back from the street about 10’, with a vertical height along that wall averaging about 22,’ with the slope of the land exposing more of the building on the east end.    Obviously, a very strong case can be made that this kind of frontage is not “main street” frontage in a rural village.  Similarly, building 2, the bank, is proposed to be built at the maximum allowed height of 30,’ which is ample for a two-story building, even if height were measured at the roof peak (which is not the case).  In this case, however, an exaggerated roof and rooftop adornments swell the peak to 42’ – a vertical scale wholly inappropriate for a rural village.  In building 3, the same analysis applies to the 49’ and 61’ architectural “peaks” and the entire third floor, where the ceilings alone are above 30’.

            Even if the design of Ashton Meeting Place was not inconsistent with the rural village development guidelines in the Master Plan in the above-enumerated ways, just the sheer size of the project – 97,868 square feet, about 78,000 of which is for commercial use – violates the village scale expectations set forth in the Master Plan.  Specifically, for Ashton Village Center, the Master Plan confirms the “1980 plan recommendations for limited commercial use.”  Master Plan at 38.  In turn, the 1980 Plan makes clear the amount of commercial square footage that is “inconsistent with the scale of uses envisioned for a village center.” 1980 Plan at 38.  For the northeast quadrant of the same intersection as Ashton Meeting Place, the 1980 Plan states that 60,000 square feet for commercial floor area would be inappropriate, and recommends a two-thirds reduction in commercial use acreage (from 6 acres to 2).  Id.  Hence, the 1980 Plan regards 20,000 square feet of commercial floor area as the appropriate scale of development for six acres of commercial property just across the two streets from Ashton Meeting Place.  Taking into account that the Ashton Meeting Place acreage is 18% larger (7.1 acres v. 6 acres), consistency with the 1980 Plan would be achieved with commercial floor area of 118% of 20,000 square feet, or 23,600 square feet.  At 78,000 square feet of commercial floor area, Ashton Meeting Place is more than 3.3 times larger than this adjusted figure.  It is even proportionately larger (after an 18% upward adjustment) then the 60,000 square foot figure that the 1980 Plan finds “inconsistent with the scale of uses envisioned for a village center.”  Id.  In short, it is simply not possible to reconcile the size of the commercial floor area proposed for Ashton Meeting Place with the 1980 Plan vision for village center commercial activity, as confirmed in the 1998 Master Plan.

Sandy Spring/Ashton Rural Village Overlay Zone

            The 1998 Master Plan was adopted in connection with enactment of the new Sandy Spring/Ashton Rural Village Overlay Zone in §59-C-18.18 of the Zoning Ordinance.  As noted above, the Plan recommends applying the Overlay Zone to ensure conformance with the Plan and conversely, the Zoning Ordinance says that the purpose of the Overlay Zone is to

(a) preserve and enhance the rural village character of the Sandy Spring and Ashton Village Centers by ensuring an attractive and traditional pattern of houses, commercial establishments, open spaces and their relationship to roadways, and

(b) encourage a compatible relationship between new or expanded houses or businesses and traditional neighboring structures that reflect the best of local village character particularly in terms of scale, siting, design features, and orientation on the site.

§59-C-18.181.  The building height permitted under the Zoning Ordinance is 24’, except where the Planning Board, in reviewing the Site Plan, allows height to increase to 30’ under §59-C-18.182(b)(2)(A).  This section specifies that the Board may allow an additional 6’ of height on particular buildings if that height is compatible with the adjoining uses and consistent with the intent of the Master Plan.  

            The key legal significance of the Overlay Zone is the extent to which the Planning Board’s discretion to approve a site plan – even though it does not conform with the explicit recommendations in the Master Plan – has been curtailed.  This has been accomplished by enactment of §59-C-18.186(a), wherein the Board’s approval procedures for site plans generally are modified for this Overlay Zone to require the following additional finding:  “The Site Plan is consistent with the recommendations in the approved and adopted Sandy Spring/Ashton Master Plan.”  Included in the Master Plan recommendations are all of the rural village center design guidelines quoted above.  The use of the language “consistent with” in this section is pivotal.  Maryland case law makes clear that where the legislative body wants to impose a plans’ recommendations as statutory mandates, thereby eliminating the discretion of the planning body in applying the recommendations, it must employ language such as “consistent with” or “in compliance with” rather than language such as “in harmony with” or modifiers to “conforms with” such as “substantially”.  Richmar Holly Hills, Inc. v. American PCS, LP, 117 Md. App. 607, 701 A.2d 879, 903 (1997).  See also Board of County Comm’rs of Cecil County v. Gaster, 285 Md. 233, 401 A.2d 666, 670 (1979); Coffee v. MNCPPC, 293 Md. 24, 441 A.2d 1041, 1044 (1982).  Based on these authorities, I conclude that all recommendations in the Overlay Zone have to be met for site plan approval, because of the use of the word “consistent” under §59-C-18.186, which is described as the standard for Planning Board approval.

            In most cases, where the Planning Board is not dealing with Master Plan recommendations that have been elevated to Zoning Ordinance mandates, it is typical for the Board to find that a site plan substantially conforms to the Master Plan if some of the recommendations in the Master Plan are honored in the site plan, even if some are not met.  In this case, however, there is no “plus and minus” weighing scale.  If there is anything about the site plan at odds with recommendations in the Master Plan applicable to the site, approval is not merely at odds with the Master Plan; it is a Zoning Ordinance violation.  The Board does not have the authority to weigh compliance against non-compliance when the yardstick is the Zoning Ordinance, and conclude that complying elements can excuse features that do not comply.  The only lawful option is disapproval unless and until illegal elements of the site plan are corrected.  In this case, therefore, all the reasons why the site plan is inconsistent with the Master Plan, as detailed above, are also reasons why approval of the site plan would violate the Zoning Ordinance.

Commercial Parking on Residentially Zoned Land

            The applicant’s attorneys at Miller, Miller & Canby (MMC) have gone to great lengths to create a plausible argument that the commercially-zoned property (C-1) in Ashton Meeting Place may be served by parking located on the residentially zoned property (R-60).  The argument is borne of necessity: of the 349 parking spaces (338 required) for the C-1 buildings, 143 (over 40%) are on the R-60 portion, and only 20 of these can be categorized as supporting residential use.  In basic Euclidean zoning terms, parking in support of commercial uses may not be placed on R-60 properties without a special exception.  §59-C-1.31(b).  Closer inspection reveals that such parking is not allowed in support of C-1-zoned properties, except in certain grandfathered situations dating back thirty or more years.  §59-G-2.39(b), (h), (i).  Hence, the only way the parking arrangement shown on the site plan could pass muster under the Zoning Ordinance is if it is expressly allowed under the Overlay Zone.

            Analysis of the Overlay Zone is straightforward and clear on this issue.  In only a few instances does the Ordinance vary the standards and requirements for development of residentially-zoned land, as set forth in §59-C-18.182(a)(2).  In all other respects, the “standards are the same as those in the underlying zones.”  Id.  The exceptions do not include any changes in the permitted or special exception uses.  Thus, the Overlay Zone does not establish a generic right to use R-60-zoned property for C-1-related parking that is any broader than that contained in the R-60 zone considered apart from the Overlay Zone.

            Further, the Overlay Zone deals explicitly with the issue of use of residentially zoned land for commercial off-street parking, and expressly limits such use to residentially zoned properties “designated in the Sandy Spring/Ashton Master Plan as suitable for mixed use or non-residential use.”  §59-C-18.185(b).  The zoning plan for the Sandy Spring and Ashton Village Centers in the master Plan identifies the R-60 portion of the Ashton Meeting Place property as continuing in R-60 use.[4]  Hence, this land is plainly not recommended for non-residential use.

            Is it nevertheless recommended for mixed use?  The MMC Memo laboriously attempts to squeeze an affirmative answer to this question out of the text or context of the Master Plan, but it simply is not there.  As noted in note 2, supra, there is language in the Planning Board version of the Master Plan that recommends “flexibility in placement of commercial uses in the southeast quadrant.”  It is quite clear that this is a reference to the R-60 property in Ashton Meeting Place.[5]  But it is equally clear that the District Council deleted this recommendation in Resolution 13-1364, at page 20.  While this deletion was mandated by the District Council, it was not made in the published Planning Board version of the Master Plan.  Nevertheless, the District Council’s decision is controlling.  See note1, supra.

            The MMC Memo constructs an elaborate black-is-really-white argument to suggest that this deletion really was not intended to have the effect that it obviously has – to eliminate the option of commercially-oriented parking on the R-60 portion of Ashton Meeting Place.  The supporting strands of the argument are as flawed as its conclusion.

            First, the MMC Memo claims that the “main goal” of the Overlay Zone is to promote “design flexibility.”  Id. at 5.  This is erroneous.  Design flexibility is not a planning goal; it is a means to an end.  The real purpose of the Zone is as stated in the Ordinance itself and bears repeating:

The purpose of the Overlay Zone is to

(a)        Preserve and enhance the rural village character of the Sandy Spring and Ashton Village Centers by ensuring an attractive and traditional pattern of houses, commercial establishments, open spaces and their relationship to roadways.

(b)        Encourage a compatible relationship between new or expanded houses or businesses and traditional neighboring structures that reflect the best of local village character particularly in terms of scale, siting, design features, and orientation on the site.

§59-C-18.181.

            Second, starting with the false premise that design flexibility was the purpose of the Overlay Zone the MMC Memo argues that the mere inclusion of the Ashton Meeting Place property in the Zone means that it was an appropriate candidate for all design flexibility provisions in the Master Plan and the Ordinance.  MMC Memo 6.  But the express terms of both the Master Plan and the Ordinance are to the contrary.  In the Plan, only specific properties are identified for commercial use on residential property, and the Ordinance explicitly limits parking on residentially zoned land in support of adjacent commercial uses to those residential parcels expressly designated in the Master Plan “as suitable for mixed use or non-residential use.”  §59-C-18.185(b).  To the same effect, §59-C-18.182(b)(2)(D) limits residential off-street parking for commercial uses to the residential portions of areas recommended in the Master Plan for mixed use development.  As noted above, the land comprising Ashton Meeting Place was expressly excluded from mixed-use recommendation by the District Council in its review and approval of the Master Plan.

            Third, although aware that the District Council deleted mixed-use recommendations from the Plan the MMC Memo nonetheless argues that this must not be read to “undermine what was clearly intended by the Plan’s authors.”  MMC Memo 7.  This is, in reality, a bald-faced invitation to ignore the District Council’s revisions to the Master Plan eliminating property-specific mixed-use development recommendations.  The MMC Memo concedes that the rationale for this District Council action was to eliminate mixed-use designations in favor of other approaches for implementing Master Plan goals.  Id. at 11-12.  The proper reading of the Master Plan, therefore, is that mixed use on the Ashton Meeting Place site was rejected by the District Council in favor of other approaches.  MMC argues that this change was directed “primarily” at Sandy Spring, not Ashton, id. at 11, but even if this is so, it cannot alter the fact that this change in the Master Plan required by the Council was expressly applicable to the Ashton Meeting Place property as well.

            Fourth, the MMC Memo argues that the 1980 Plan recommended mixed use on the Ashton Meeting Place property and the 1998 Plan, by confirming such recommendation, fulfills the Overlay Zone requirement for a property-specific designation of suitability for mixed use.  MMC Memo 9-10.  This is another nonsensical attempt to turn black into white.  The unalterable fact is that the version of the 1998 Plan submitted to the Council recommended such a designation but regardless of what the 1980 Plan may have said, the Council rejected the recommendation.  Moreover, the 1980 Plan did not recommend mixed-use for this site.  It recommended commercial use along New Hampshire Avenue south of Md. Route 108, and that adjacent residential areas apply for P-D zoning (which, of course, is exclusively residential).  1980 Plan at 38-40.

            Finally, the MMC Memo argues that the deletion of mixed-use designation for the Ashton Meeting Place property by the Council in the Master Plan is of no significance because, at the same time, the off-street parking provision was added to the contemporaneously enacted Overlay Zone, allowing commercial parking on the residential portion of a subject site without a special exception.  MMC Memo 12-13.  But this labored attempt to divine special significance from a sequence of events before the District Council proves nothing except the folly of engaging in such exercises when the plain meaning of the Ordinance is evident and to the contrary.[6]  Specifically, as noted above, the off-street parking provision applies only to sites “that are designated in the Sandy Spring/Ashton Master Plan as suitable for mixed-use or non-residential use…”  §59-C-18.185(b).  The residential portion of the Ashton Meeting Place property plainly cannot pass this test, and no amount of fanciful speculation about legislative intent gleaned from legislative history can alter this result.

Other Considerations

            I have not done an exhaustive analysis of compliance of the revised Ashton Meeting Place project with the Overlay Zone development standards.  I have not even assessed the threshold question of the adequacy of the information submitted by the applicant under §59-C-18.184(b).  On the information already provided, however, it is abundantly clear, on multiple grounds, that the project cannot properly be approved by the Board.  All three buildings lack the proper rural village scale required.  The project as a whole has far too much commercial space to qualify as appropriate scale commercial use in the Zone.  The project improperly relies on use of R-60 zoned property within the Overlay Zone to meet commercial parking requirements.  Any one of these defects, standing alone, is sufficient to require disapproval.

            Even if the project could climb all these hurdles, it could not be approved without clearing yet another hurdle.  The site plan cannot be approved unless it meets all the requirements of the zone in which it is located.  This project proposes multi-family dwellings on the commercial (underlying C-1 zone) portion of the site.  Dwellings are a special exception in the C-1 zone.  §59-C-4.2(a).  In the Overlay Zone, on commercial property, special exception uses allowed in the underlying zone are special exception uses allowed in the Overlay Zone, with certain prohibitions not applicable here.  §59-C-18.182(b)(1).[7]  Thus, the Planning Board could, at most, condition the project on obtaining special exception approval.  This would have to be obtained from the Board of Appeals, under the conditions, standards and requirements set forth in §59-G-1.2 and §59-G-2.39, before final approval could be obtained for the site plan.

Conclusion

            A more in-depth analysis of the application could be undertaken to determine if there are other problems with the Ashton Meeting Place project.  But three glaring defects in the site plan make this a largely academic exercise.  Even if there are no other problems, the project cannot meet the standards of the Overlay Zone and should be disapproved.