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Commentaryby David A. Plymyer4:24 pmJun 25, 20240

Baltimore County Council continues its grab for power – and for dollars from developers

A bill to reduce school overcrowding – up for an override vote next week – is actually a bid by the council to accumulate more land-use control [OP-ED]

Above: The historic courthouse in Towson where the County Council meets. (Mark Reutter)

Baltimore County Council Bill 31-24 is the latest example of the council’s refusal to abide by the limits on its powers and a further manifestation of its desire not only to pass the laws regulating development projects but also to control how those laws are administered.

Sponsored by its chairman, Izzy Patoka, Bill 31-24 the measure was intended to prevent public school facilities from becoming overcrowded by regulating the pace of residential development. 

But the council sabotaged those intentions by including a provision that violates the county charter and helped prompt an executive veto.

The bill, which passed by a 4-2 vote on June 3, would make substantive changes to the existing law governing the adequacy of school facilities to accommodate new development.

County Executive Johnny Olszewski vetoed the bill because of his concern that those changes would impede efforts to construct much-needed affordable housing.

The bill also makes a procedural change that, as pointed out by County Attorney James Benjamin, would violate the separation of powers by requiring developers to obtain permission from a committee, controlled by members of the council, if they wanted to build new houses near an overcrowded school.

Patoka says he will hold a vote next Monday (July 1) on whether to overturn Olszewski’s veto.

Mockery of the County Charter

The hallmark of the county charter is the system of checks and balances implemented by the separation of legislative and executive powers.

The charter specifies that the county executive has the “responsibility, duty and power” to see that the laws of the county “are duly executed and enforced within the county.” Council members have no authority to take the power to execute and enforce laws away from the executive and give it to themselves.

The bill cried out for a veto regardless of its impact on affordable housing. The precedent it set would make a mockery of the charter.

If the council can take one regulatory function away from executive agencies and hand it to a committee under the council’s control, then it can do it for all regulatory functions now performed by the executive branch.

The desire of members to micromanage land use in their districts has long been part of the council’s culture. It is a major cause of the poorly planned and ill-advised development that has racked the county for decades.

The council’s desire to micromanage land use is a major cause of the county’s poorly planned development.

Twenty years ago, for example, the council revised the process for approving planned unit developments (PUDs) and arrogated to itself an improper “gatekeeping” role.

No PUD can currently proceed for agency review until blessed by a resolution from the council finding that the proposed PUD “will achieve a development of substantially higher quality than a conventional development” and that the proposed site is “eligible” for approval.

In other words, the process calls for the council to make findings of fact and decide whether those facts satisfy a specific legal standard, an administrative function for which it lacks authority under the charter.

Members of the 2024 Baltimore County Council congratulate Izzy Patoka as their new chair. From Left: Mike Ertel, David Marks, Patoka, Julian Jones, Wade Kach and Pat Young. Todd Crandell was absent. (Mark Reutter)

Members of the 2024 Baltimore County Council congratulate Izzy Patoka as their new chair. From Left: Mike Ertel, David Marks, Patoka, Julian Jones, Wade Kach and Pat Young. Todd Crandell was absent. (Mark Reutter)

Land Use Czars

The most egregious example of the council’s disdain for the limitations on its power is its notorious practice of legislative “spot zoning.”

The council employs it to circumvent the prohibition against legislatively changing the zoning of a single property by a bill that change the uses allowed in the applicable zoning district but imposes such detailed locational conditions on the bill that the new uses effectively apply only to the targeted property. The practice usurps the power bestowed on the Board of Appeals to decide petitions for the rezoning of individual properties.

There is no better proof of the wisdom of the separation of powers than the political circuses the council has made of PUD approvals and spot zonings with outcomes dictated by strict adherence to “councilmanic courtesy,” a practice that turns each member into a virtual land use czar within his or her own district.

The micromanagement of land use in combination with the practice of councilmanic courtesy gives individual members enormous fundraising leverage with builders, developers and others with a stake in what gets approved within their districts.

It is no coincidence that the two most prolific fundraisers among members of city and county councils statewide are Patoka and Julian Jones, the current and immediate past chairman of the council. As of January 2024, Patoka had $980,031 on hand in campaign cash, while Jones trailed with $838,167.

The overdevelopment about which some council members now complain is largely the result of years of members catering to the whims of the builders, developers and other special interests that donate to their campaigns.

Is the answer to overdevelopment to give the council even more control over development?

Having just handed themselves an increase in pension benefits not enjoyed by other county employees, council members now seek even more fundraising leverage. There is a limit to their powers in the county charter, but no apparent limit to their arrogance.

David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and Twitter @dplymyer.

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