A proposed change to the county’s zoning ordinance could ensure that the C&O Canal National Historical Park is protected from unsightly intrusions for years to come. It also has opponents crying foul, claiming that the change is unnecessary overkill aimed at correcting a specific oversight.
The proposed Zoning Text Amendment (ZTA) would prohibit structures such as fences and sheds from being built on residential and agricultural land within 200 feet of a national historical park. As the C&O Canal National Historical Park is the only national park in Montgomery County with the designation of a historical park, it would apply specifically to properties bordering it.
The intent of the bill is twofold, said County Councilman Roger Berliner (D-1), who co-sponsored the bill with Councilman Marc Elrich (D-At large). The first goal is to maintain the visual integrity of the canal for visitors so they do not have to look at huge fences or other recent man-made creations.
The second goal of the bill is environmental.
“Increasing the setback for structures near waterways would promote water quality by retaining natural surfaces for stormwater absorption,” said Jeffrey Zyontz, legal counsel to the County Council in a letter to the Council dated June 14.
A public hearing before the County Council on Tuesday, June 12 made it clear to Berliner that while many residents favor the bill, others are concerned with the potential implications and feel that limiting the bill to larger properties effectively singles out those owners.
Finding the middle ground has been tricky, Berliner said.
“We’re trying to balance the legitimate rights of property owners and [protecting] the C&O,” Berliner said.
OVER THE LAST year Aris Madirossian gained approval to build a six-foot tall, wrought iron fence on his 3.2 acre property at 12000 River Road. He gained that approval after his application to the National Park Service to run the fence through the park’s easement went without a response of any kind for more than 30 days. Under the park’s regulations the failure to address an application results in that timeframe results in a default approval of the application.
That process was further complicated by delays Madirossian encountered with the Montgomery County Department of Permitting Services (DPS) — his plan for the fence was approved, then that approval was revoked and then restored again a few weeks later. When the ZTA was proposed Madirossian held off on constructing the fence even though Berliner said at that point he was well within his rights to go forward with it.
“He’s done his due diligence as a citizen,” Berliner said.
Madirossian testified at a public hearing before the full Council last week that he felt the Zoning Text Ammendment was directed specifically at him.
“Once in 30 years is not a huge loss to humanity,” said Councilmember Nancy M. Floreen (D-At large) said of the park service’s failure to respond to Madirosian’s application. Floreen spoke at a meeting of the Council’s Planning, Housing, and Economic Development (PHED) Committee on Monday, June 18. The PHED committee consists of Floreen, Elrich, and Council president Marilyn Praisner (D-Dist. 4). As a co-sponsor of the bill Berliner attended Tuesday's meeting as well.
Floreen said that she felt that the bill was an overreaching reaction to that specific incident and that the existing approval processes between the National Park Service, DPS, and the Planning Board are adequate.
“Are we the best judge of what someone who has purchased property along the Potomac, in consultation with the Park Service, should do with that property?,” Floreen asked rhetorically.
Berliner objected strongly to Floreen’s assessment of the bill being overkill.
“Recognize that this is a supplement to the national park’s easement, that it doesn’t override what they allow on their property,” Berliner said. “Not by any stretch of the imagination does this make it worse, which is why the National Park Service supports it, which is why the Potomac Conservancy supports it. It makes it better.”
Royce Hanson, the chairman of the Montgomery County Planning Board, said that the new zoning ordinance would not apply just to Madirosian and would ultimately be beneficial.
“There are 22 privately owned lots to which this would apply [and the Planning Board’s] basic point is that having a setback requirement of accessory structures … along the entire length of the canal is a good thing,” said Hanson.
AS THE BILL has worked its way through the Council, concessions have been made on the prohibitions of fences.
In testimony submitted to the Council, Stanley Abrams, Madirosian’s attorney said that the legislation was discriminatory because it does not address smaller single-family lots. It would also infringe on basic rights, Abrams said.
“The Text Amendment would have unintended and far-reaching consequences since ‘structures’ include … ‘no trespassing’ or ‘warning’ signs since signs are defined in the zoning ordinance as ‘structure,’” Abrams said last week. “Prohibiting such signs in addition to prohibiting fences adversely affects a property owner's right to exclude others and protect himself and his property from liability or criminal activity,” Abrams said.
Since that public meeting Berliner and Elrich have added language to the bill that would permit so-called rustic fences — unpainted split-rail fences no taller than four feet. Deer fencing and black chain-link fences may also be allowed in some areas to protect homeowners from deer and trespassers, Berliner said, though those details have not yet been finalized.
The ZTA would apply to zones that allow between one dwelling per acre and one dwelling per 25 acres and after Tuesday's meeting, the omission of smaller residential properties from the ZTA is likely to stand in the bill.
“Applying a 200-foot setback to property in zones that allow smaller lots would have the effect of prohibiting all accessory structures in smaller lot zones” as that buffer would extend through much of those lots, Zyontz said. At Tuesday’s meeting, Elrich, Berliner and Council President Marilyn D. Praisner indicated they were inclined to agree with Zyontz. Only Floreen objected.
“I don’t think it should apply to any zones,” Floreen said.
Though there are still technicalities and specific language to be worked out, Elrich stressed that it was important to keep the big picture in mind.
“If this canal gets built up too much and things get put on the border of the canal it will cease to be what it is today,” Elrich said. “It seemed to me to be a good idea to close the door on this now rather than wait until it’s a mess.”