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Sponsor: Marks
Benefits: Community Enterprise, Inc., 4299 Fitch Ave
This bill allows a construction or contractor's equipment storage yard by right in DR if:
- less than 4 acres
- in continuous operation for more than 4 years (i.e., illegally) and existing prior to 2016 (when this property was downzoned)
Further:
- unloading, sorting, and temporary storage of dismantled building material (inside or outside) and shall not be considered a recycling operation (which would entail other restrictions).
- area within 75 feet of adjoining residential property limited to access, passenger vehicle parking and landscaping
- residential transition area requirements shall not apply
(This is absurd to say that this "shall not be considered recycling", when that is exactly what they testified it was. It's also absurd to condition a new allowance on it having been done illegally for the past 4 years.)
Some explanation:
1. Property History
- Plat: 48:104, 28 Jan 1982, created this 3.1052 acre "Lot 1".
- 6393:97, 5 May 1982 covenants - prohibited: obnoxious odors, junk yards, dumping, refuse, residential use, truck terminals.
The heirs of John P Wever could undo these restrictions which otherwise run for 50 years.
- 6393:105, 5 May 1982, John P Wever to 84 Lumber
- 30301:230, 8 Nov 2010, 84 Lumber to Community Enterprise, Inc, subject to 6393:91
It is unknown why a prohibition against "residential use" would have been put on the property. However, it is established law that deed restrictions such as this can be abated if laws or the area have changed.
2. Zoning history
Case 83-146-V, C-83-318 was brought due to alleged zoning violations (by 84 Lumber) Order 17 May 1983 acknowledged violations and set requirements for compliance, including:
- Screening, plantings
- Fence
- Restricted parking
- Lighting
- Sign
In case 1994-0277-A, the owner (84 Lumber) sought variances for set-back requirements (including 5 ft from residential property in rear which was denied). Comments from the office of Planning noted that "property is currently overdeveloped and has been improved in a manner not conforming to the BCZR. Staff is at a loss to explain how these improvements were made without benefit of County approval" and, further, that "this office finds it incredible that substantial relief is being sought without any offer on the part of the applicant is mitigate the impact of this overdeveloped site".
In zoning case 2016-0328-SPHA filed 16 June 2016, the owner (with the property leased to A-L Abatement, Inc.) requested a determination "if the sorting of material from a construction site by the tenant, a general contractor, can be done onsite, outside of the building, prior to hauling the material to a recycling center" and also requested a variance to the setback from 100 ft to 35 ft. Both were denied, following the zoning office's comment that it "does not permit someone to sort materials outside of a structure [in ML]". The Order was issued on 24 August 2016. The petitioner filed an appeal, but later withdrew it, probably due to the rezoning (following).
3. Enforcement history
For years, neighbors on Saint Thomas Dr have been fighting against the out-of-control operations that have been going on there since it was an 84 Lumber, including servicing porta-pots, and piles of debris from demolition projects. Prior to 2016 it was zoned ML IM and numerous Code Enforcement cases had charged the owner with violations of set-back requirement for some of the activities.
Following more complaints, Code Enforcement case CC1601609 was opened and a citation was issued on 24 May 2016 for a hearing on 22 June. Another citation was issued on 14 December for a hearing 11 Jan 2017 (with the proposed fine reduced from $10,000 to $500). Judge Stahl found them guilty and issued an order to cease recycling. They appealed, and the Board of Appeals issued an order denying it. They appealed to Circuit Court, which denied the appeal on March 27, 2018. They then appealed to the Court of Special Appeals where it is waiting to be heard.
Another complaint was filed on 25 Jan 2017 for "Recycling in spite of final order saying they cannot". Case CC1700648 was opened, but nothing was done, with the case closed on 26 Jan. No wonder neighbors are hopping mad!
4. CZMP
Meanwhile, in CZMP 2016 Issue 5-142, Councilman Marks changed the ML IM to DR3.5 (on 30 August 2016). While such a downzoning does not immediately get rid of any previously legal activities, it was still a big win for the neighbors along Saint Thomas Dr. The property owner was really upset, partly because the 1982 covenants for the 3.1052a acre property when it was sold to 84 Lumber, for some strange reason, included a restriction against use for "residential".
In response to my comments opposing Bill 63-18, Councilman Marks withdrew it, indicating that he was going to revise it. Nevertheless, he re-introduced the exact same thing as Bill 81-18. After further comments, he withdrew that Bill also. The property owner has requested a change back to ML IM in the 2020 CZMP which was granted.
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