Contrary to the Plan

Environment Maryland Research and Policy Center

Executive Summary

The Comprehensive Plan: A Community Blueprint

For nearly two decades Maryland jurisdictions – counties, cities and towns – have worked together to balance growth and preservation through one unifying benchmark: the locally-devised comprehensive plan. The state’s nationally renowned planning regulations since 1992 have required such plans to adhere to eight visions that, at their core, call for developing “suitable areas” while protecting sensitive sites.  Each area’s plan may be vastly different based on geography and demographics, but they all must follow the general tenets of preserving the state’s rural character by steering new development to existing population centers and areas earmarked to accommodate growth.

The local comprehensive plan has always been central to that planning philosophy, commonly known as Smart Growth. Every jurisdiction must develop such a document, also known as the “master plan” or the “master development plan.”  To accommodate ever-changing circumstances in jurisdictions, the plans must be updated every six years. In most cases, those updates involve exhaustive input from engaged citizens in the community.

A comprehensive plan forecasts what housing, employment, and transportation demands will occur in a community in future years. It details how best to handle those needs while protecting the environment and needs of the community by, for example, ensuring that growth occurs near established water and sewer services, roads, schools and other infrastructure. The plans spell out what a community wants to look like in years to come, and it does so as collectively as possible, with citizens as crucial to the process as planning professionals and builders. They are approved by elected officials – the county council – which provides another layer of public accountability.

State planning officials have long believed the comprehensive plan dictates and controls the zoning policies of a local jurisdiction, and therefore protects a community’s character from developers or elected officials who try to ignore its communal tenets for selfish interests. The Maryland Department of Planning’s online primer on comprehensive plans states that zoning actions, water and sewer provisions and all other land use decisions must be consistent with the comprehensive plan’s recommendations. Article 66b of the state’s annotated code, which details land use and planning powers, states that “a local jurisdiction shall ensure that the implementation of the provisions of the plan … are achieved through the adoption of applicable zoning ordinances and regulations, planned development ordinances and regulations, subdivision ordinances and regulations and other land use ordinances and regulations that are consistent with the (comprehensive) plan.”

Terrapin Run

Then, four years ago, a developer proposed to build Terrapin Run, and, in the process, dismantled a bedrock of local planning.

In 2005, PDC Inc. of Columbia proposed to build a 4,300-home community next to Green Ridge State Forest, far removed from public water and sewer systems. Allegany County officials approved the project that year.

Opponents promptly sued. The circuit court sided with the opposition and sent the development back to the county’s zoning commission. But in March 2008 the Maryland Court of Appeals sided with the developer and said the county’s zoning officials were not legally bound to the follow the Allegany County comprehensive plan.

The court’s opinion has sent shockwaves through the state planning community. In its opinion in the case of David Trail, et al. v. Terrapin Run, the court stated that a special exception to zoning ordinances could be granted even if it did not conform to the comprehensive plan. The majority ruling said that Allegany County’s comprehensive plan was merely advisory. The minority dissent stated Article 66b clearly stipulates that local jurisdictions must enact zoning laws that enforce their own comprehensive plans.

Many now fear that the court’s decision could be interpreted to apply throughout Maryland, not just in Allegany County, and that the influence of comprehensive plans could be undermined.
Gov. Martin O’Malley’s Task Force on the Future for Growth and Development in Maryland advised in January that corrective action was needed after the Court of Appeals decision.  The task force’s report, entitled “Where We Grow From Here,” states that the group believes the decision serves to “weaken the link between the comprehensive plan and its implementing ordinances such as zoning.”  A majority of the task force believed “that the Terrapin Run decision would devalue the significant local government  and citizen investment of time and resources in comprehensive plans.”

Terrapin Run Is Not Alone

Currently, are such deviations rare? Was Terrapin Run an isolated case? The examples outlined in this report show that Terrapin Run is not unique.

There is no standardized way to track when local officials approve developments that are inconsistent with comprehensive plans, or how many local zoning laws contradict the master plans. Throughout the state, however, land use advocates say development pressure has been mounting on local officials who, thanks to the Terrapin Run decision, are now unsure of whether their comprehensive plans mean anything.    

George Kaplan, former president of Cecil Land Use Alliance, wrote in his group’s January 2008 newsletter that community groups throughout Maryland have been experiencing this for years. They participate in the master plan process only to watch it ignored. “The way people around here usually phrase this frustration is, ‘The comprehensive plan isn’t working.’ It isn’t working because our regulatory tools can’t do what we say we want them to,” he wrote.

Since local planning departments tend to be overworked and understaffed, implementation of comprehensive plans cannot be expected to be perfect.  But the efforts of local government staff are only further hindered by an uncertain legal framework.

In cities and towns across Maryland, concerned citizens, government officials and developers are scrambling to meet a state mandate of rewriting comprehensive plans by October 2009. Despite their varied and sometimes conflicting interests, the process joins them in a common cause of devising sensible plans that both promote growth while protecting the environment and the character of existing communities. It is hard work requiring hours of meetings, volumes of reports, dozens of meetings, and countless compromises.

But, in the end, the tireless efforts of all produce documents that provide a meaningful blueprint and strive to assure the flourishing of environment and commerce in every community in Maryland.

Terrapin Run, however, threatens to derail the most grassroots of community governance if the plans – and all of the coordinated efforts to produce them – are rendered moot.

Shelley Wasserman, chief legal counsel for the state Department of Planning, said her office has been sensing disturbing fallout from Terrapin Run.

“We’re hearing, anecdotally, that developer’s attorneys are telling government officials that now that Terrapin Run has been decided you can ignore your plans,” Wasserman said. Some believe the development and the decisions in Allegany County are as isolated as the remote western county. They are not. As shown in this report, the struggle between sensible plans and unrelenting growth are playing out everywhere across the state.

Comprehensive plans, a democratic and necessary institution for the health of our communities, are being flouted throughout the state.