Planning Commission - Regular Meeting

Good afternoon, everyone. It's June 4th, and we're starting our planning board meeting for today. The first item is 1A, adoption of resolutions. We have one this afternoon, the FAES, Academic Community Forest Conservation Plan. Do I have a motion for approval of this resolution?

I move for the approval of this resolution.

All in favor?

Aye.

Aye. The ayes have it. Just wanted to know that we have the full board here this afternoon. Commissioner Linden and Commissioner Hedrick are virtual, so all of us are here. The next is approval of minutes. We have one this afternoon, the minutes of April 30th, 2026. Do I have a motion for approval of the April 30th minutes?

I move to approve the motion of April 30th.

I second.

All in favor?

Aye.

Aye. The ayes have it, 5-0. The next is record plats. Item 2, we have one this afternoon, subdivision plat number 220-260-660, Colesville Gardens, where staff is recommending approval. Do I have a motion for approval of this record plat?

I move to approve this record plat.

I second.

All in favor?

Aye. Aye.

Aye. Yeah, the ayes have it, 5-0. And next is item three. We have two regulatory extension requests this afternoon. The first is Lakes Addition to Old Georgetown Estates Administrative Subdivision and Forest Conservation Plan Extension Request Number 1. And the second is Wall Property Administrative Subdivision Extension Request Number 4. Both staff is recommending approval of the extension requests. So do I have a motion for approval of these two extension requests?

I move to approve these two extension requests.

I second.

All in favor?

Aye.

Aye. Aye. The ayes have it, 5-0. And we're going to take a one-minute break, and we'll go to our next item, item number seven, the fiscal year 26 budget transfer for the planning department. Thank you. Welcome back. We're on item number seven, fiscal year 26 budget transfer from the planning department, where planning is recommending approval of the request for fiscal year 26 budget transfer for the planning department. And we have Ralph Sherald this afternoon presenting this item. Welcome. This is your first presentation to the board. We're excited about that. Thank you.

Thank you. Good afternoon, Chair Harris, Vice Chair Linden, and commissioners. For the record, I'm Ralph Sherrill, budget manager for the planning department. As Chair Harris noted, this is a milestone in my new career here at the commission, as this is the first time I am presenting before the board, and it is an honor. Thank you. So we're here today seeking your approval to adjust the planning department's FY26 budget. There are two separate budget adjustments that we would like to present for your approval. For some background, all budget adjustments over $100,000 require planning board approval. The planning department's operating budget is appropriated at the division level. The planning board has authority to transfer appropriations between divisions as long as each divisional appropriation is not exceeded by 10%. And the recommended transfers presented today do not exceed 10%. The first budget adjustment that we will discuss The planning department is projecting to have an estimated savings in personnel and is requesting to reallocate some of those savings to better position the department for the upcoming FY27 budget year. The planning department is seeking the board's approval to transfer $30,000 from the personnel services category to the other services and charges category. These funds will be used to purchase postage. As our community engagement increases, so does the demand for mailings and notices. The $30,000 will all augment our funding for department-wide postage. The planning board's approval of this transfer is requested, and I would be happy to provide any additional information on this topic at your request.

I have a question. I have some experience in bulk mailing, and I was wondering, is it metered mail at a substantial discount from United States Postal Service, or is it individual mail at the standard United States Postal Service rate?

So it's standard mail. if I'm correct, at the regular postage rate.

And is this for notices with regards to citizens who may be affected by decisions made here at the board, or is this generally correspondence between the department and its vendors or other interested parties?

So it's mostly notices that are required by law that we mail out certain time frames, depending on the topic at hand.

Yeah, I think it's considerably low. I would have expected it to be more. Thanks.

Thank you for your presentation. I have no questions or comments. Any of the board members have any questions or comments? Seeing none, do I have a motion to approve the transfer of $30,000 from the personnel account to the other services account for postage.

I just wanted to congratulate Ralph for being here for the first time. We are very happy to have you. So I move for the transfer of the budget for the planning department. Move for approval.

I second. All in favor? Aye. Aye. The ayes have it, 5-0. And you can go to the next item, please.

Thank you. So budget, second budget adjustment. The planning department is seeking the board's approval to transfer $410,000 from unallocated compensation markers in the administration fund non-departmental account to the development review special revenue fund. This action will better position the fund regarding the upcoming FY27 budget year. The planning board's approval of this transfer is requested, and I would be happy to provide additional information on this topic at your request.

For your presentation, I just have one question out of curiosity. Given it's coming from the unallocated compensation market, does it have to be allocated first before we can then transfer it to something else?

Morning Management Services Division Chief. The funds was allocated to the non-departmental account for the compensation marker. Okay. It wasn't used. And so that's where it wasn't allocated. It was unallocated because it wasn't used for the compensation marker. So it's been allocated to the non-departmental account already.

Okay. All right. Thank you. Thank you for that clarification. I have no other comments.

I have a question. So this is for development review that we always have shortage, correct? Is that going toward that shortage that we have? Did we receive any of the shortage? Because we asked for a good amount of, you know, to cover for FY27. And I'm just wondering that how much shortfall you think we may have for development review and what is the plan to cover the shortage if you then get the funding? I think we asked for like about $1 million or $1.5 million, if I remember it. Yep.

Yeah, you're remembering almost perfectly there. So we have in our FY26 budget a $1.5 million transfer into the Development Review Special Revenue Fund. We had been asking for $3.9 million in FY27. The county executive had recommended that we stay at the 1.5. We, going through the council's budget process, indicated to the council that keeping it at 1.5 was not going to keep that fund solvent, and so we needed to get something. We said at the very least we needed $900,000 additional to bring it up to 2.4. That is what the council agreed to. In our adopted FY27 budget, we do have a planned $2.4 million transfer into the Development Review Special Revenue Fund. That essentially would keep it close to being solvent. We've actually done a little bit better on development fees over the last few months. So that is helping. And then this additional transfer will also help us to ensure not only that we keep it solvent, but that we keep a reserve balance in there that we can weather the inconsistencies that we have in development activity and fee collection.

I'm just wondering because some of the development has been slowed down. So I don't know if that trend, see what is going on every day, every Thursday. So I do not know if that trends go down, if that may automatically solve, you know, it's not a good way to solve it, unfortunately, but that may do that. And I do not know that if that trend continues, if it is possible that some of the staff that to be repurposed, that they could charge to something else that they can do. I don't know if they can do multitasking. If they could do multitasking, then they can charge to something else that you want to plan to do in-house. Because remember, we discussed it. There was some stuff that you didn't get funding and you were hoping that to do in-house. So I do not know if that would help to cover the shortage if we do that. It's just some ideas like that.

So the money that we use from the Development Review Special Revenue Fund to support our development review activities is not tied to specific people, specific employees. And so having them work on something else doesn't necessarily mean – first of all, I would say it doesn't mean that we don't have development review activity for them to work on. It may just mean that we don't have the funding to support that staff. However, it's not tied to specific people. So it just goes to support about, was it 21 1⁄2 work years? In FY26, I think it's more like 22 1⁄2. So, yeah, I mean, the idea is...

But it is a chargeback, correct?

It is a chargeback, yeah.

So chargeback is tied to staff. Whoever works on the development review is going to charge it.

It's a set amount in our budget that we charge back. It doesn't say, you know, Jason Sartori worked 15 hours. We're going to charge 15 hours of his time to this. It's a set amount that we budget every year that we charge back. It's based on an average amount that our employees cost, 22.5 full-time equivalent this year is what we're charging back to the account.

So it's not based on actual work?

No. I didn't know that. You may recall I had mentioned when we were going through this that we estimate that we have about 30, 31 work years dedicated currently to development review activities, but we are only charging back 22 and a half. work years. So we are making some adjustments. Actually, we just announced to our staff yesterday that we're changing how we record our time to be able to better estimate how much time we're dedicating to development review activity versus master planning activity versus other things that we work on. So we can have a better sense of this.

Yeah. Okay. Okay. Thank you.

Great, great, great questions, and I appreciate your answers. Any of the board members have questions, comments? Hearing, seeing no other questions or comments, do I have a motion to approve the $410,000 from the non-departmental fund to the development review special review fund?

I move to approve the transfer of the 400,000-something amount from non-departmental to the development review.

I second. All in favor? Aye. Aye. The ayes have it, 5-0. And so that ends this. So thank you, Mr. Sherrill. You did a great job in your presentation. I look forward to many more. And we will take a one-minute break and then Start with our last former board item, which is number six, zoning text amendment ZTA 2608, nonconforming use reinstatement, where staff is recommending that the planning board transmit comments to the district council supporting the ZTA. Thank you. Good afternoon. We're on our last item of the day. It's item number six, zoning text amendment 2608, nonconforming use reinstatement. The staff is recommending that the planning board transmit comments to the district council supporting the ZTA. And this afternoon, we have Mr. Ben Burbitt from the planning department presenting this item. Welcome, Mr. Burbitt.

Thank you, Chairman and Planning Board members. For the record, Ben Burbitt with the Design, Placemaking, and Policy Division. And as the chair introduced, I will be presenting staff's recommendations to the board on Zoning Text Amendment 2608, Nonconforming Uses Reinstatement. As was mentioned, we are recommending that the board transmit comments to the district council supporting the zoning text amendment with some amendments. This was introduced on April 28, 2026 by Councilmember Friedson, and there is a council public hearing scheduled for June 16, 2026. The CTA is fairly simple. It would amend the non-conforming use section of the code, which is currently found in 59772. by creating a new process where an abandoned conditional use could be reinstated under certain conditions. Just some little housekeeping and defined terms here. A nonconforming use is any use that was lawful when it was established but is no longer conforming to the zone in which it is located. This can come about in a few different ways. A lot of them are actually just really old uses that predated zoning and now have found themselves in zones that don't support that use. Think of a lot of restaurants or auto repair shops in our rural areas along highways. They may have been created prior to zoning. Now it's probably in an ag or a rural residential zone, which wouldn't allow those uses, but that business has been there for generations and that is considered non-conforming. The other way we get a lot of non-conforming uses is as we do master plans and rezone properties, particularly in our more urban centers. A lot of the new zones we use or overlay zones we use will look down upon or try to dissuade auto-oriented uses. And so a lot of drive-throughs, banks, or auto repair shops might find themselves as non-conforming uses in those locations. The other term that's going to be important in this presentation is the abandonment of a non-conforming use. A use is considered abandoned if it ceases its operation for at least six consecutive months. So what this ZTA is doing, it's adding a whole new section of code that is found under 772E with six subsections there within. I said it's simple. I didn't say it was short. So there are six sections, the applicability section, the application and notice section, a hearing section, decision, appeal, and then compliance and enforcement. Under the applicability section, It lays forth who can apply for this. A nonconforming use may be reinstated if it's been abandoned for more than six months but less than five years, and that the nonconforming use may only be reinstated one time. And so if you get reinstated and then for some reason are abandoned again, this provision is to not allow you to kind of perpetually try to reinstate the use. There are some recommendations staff is making here. What this is really coming down to is whether or not In that abandonment, the use that is being reinstated needs to be the use that was last of the property. And it's a little unclear in looking at this, particularly when looking at other code sections that require analysis of the previous use, which I will also cover as sort of a fallback in case either the board or the council doesn't adopt some of these changes. It seems to be written or set up in a way that the intent, staff believes, is that the current sort of abandoned use or lack of use of the property should still be that nonconforming use that was last there. But a possible interpretation of this could be a use abandons, another conforming use moves into the site for a period of time, also sort of closes down, and then that nonconforming use wants to come back into that property again. Not only does this sort of make it complicated for the reviewers, in this case being the planning department and DPS staff who are tasked with reviews of these applications, it also makes this a little more complicated in sort of finding that the standards of a non-conforming use that you don't expand the use or alter the property can be adhered to, particularly if that intervening use actually makes some substantial renovations to the property and changes its nature. So all of that to be said, planning staff is recommending a couple of changes. One is a little more technical because we kind of have an A, B, and a C that all start with the same phrase of a nonconforming use may only be reinstated if. Staff's just sort of recommending moving that phrasing up so that A, B, and C kind of by de facto start with that. And then inserting this new B in here, that the last use of the property was the nonconforming use requesting its reinstatement. And so again, this would really clarify what staff thinks the intent of the ZTA is and make it easier for people who are interpreting this in the future. So I'll pause here to see if there's any questions or if the board is agreeable to these changes.

If it is less than six months, they can reinstate it, correct?

Correct. It's not considered abandoned.

It's not abandoned. But up to five years after that is the part that is abandoned.

Correct. Right now, at six months, there's no way to reinstate. This would give you that four-and-a-half-year buffer to have somebody try to reinstate this.

And when is the date of abandonment? How do you figure out what is the date, first date of the abandonment? Is there any way to describe when you call a business is abandoned?

It's not defined in the zoning ordinance. It's up to DPS's discretion, and they have a policy in place now that they must be using. This is one of the situations where staff sort of didn't question what wasn't raised as being broken. So I don't have an answer for you, but DPS must have a way that they're doing this because they make that interpretation call now.

So they do that. I don't remember that. I guess it doesn't happen that much.

I don't think this comes up very often, but it's on DPS to make that determination.

Okay.

Commissioner Hedrick.

Actually, I think I think I captured what I was gonna ask is I was gonna ask to go back to abandonment because I wanted to make sure and of course, you just said that DPS, you know, has some definition that they're using that abandonment didn't mean like, you know, a rehab that takes too long or something like that. Like what is the, you know, if they close down for a short amount for an amount of time to retool or something like that. So I was just wanting to catch up on that. But I think you just answered it. So that's fine.

I think that when statutes are written, limiting time, they should be written as not more than, as opposed to less than, because we want to establish a strict legal maximum or deadline, meaning that an action can still be filed on or before the date, but never after. And so this, you know, it's just, I don't think it's well written. and it should say, and it should be written differently.

And that's my comment, thanks. Okay, I appreciate that. Why don't we go all the way through the end and we can come back to that. Yeah, that's okay. But I wrote it right here, so okay. All right, so please continue.

Okay, the next section of the zoning text amendment adds the application and notice section. Staff has no real comments on this. It's a pretty standard language that this would follow The standard noticing requirements that a conditional use would have now were property owners within a certain radius and then registered civic HOA and other associations in a larger radius would receive notice of this application that would be filed. So planning staff is fine with that section as written. The next section of the zoning tax amendment gets into the hearing. This really is sort of hearing and review kind of baked into one. The reinstatement process is designed to be an administrative review. You'd be applying to the hearing examiner's office for this review. It immediately would then trigger Department of Permitting Services and planning to do reviews within 30 days in that window. DPS's review is to provide any comments on the prior use and layout of the property. as well as any received complaints. Again, this is where I add the clarity from before. That would make sense if the priority use is the non-conforming use, which is why we wanted to add that clarity. And then again, the planning department must comment on whether or not the application conflicts with the master plan, including whether there's specific language in the plan zoning particularly an overlay zone that recommended phasing out the non-conforming use and then whether there's any substantial adverse effects that could result from the reinstatement of this use including impacts of traffic circulation and parking that aren't sort of otherwise inherently there and so what this would do is if there is a non-conforming use And then we could clearly say a recent master plan said we don't want any more drive-throughs here, and that's why we're changing the zoning. That comment would need to be made to the hearing examiner as part of their ultimate consideration as to whether they should reinstate the use. Whereas the non-conforming use might, again, if it's there because it's been there for 80 years, there probably isn't direct language that would conflict with that, and we would make that finding to the hearing examiner. Also, as part of the hearing section, it allows any party that's entitled to notice to object to this application. And so if no objections are received, the process can continue on its administrative path, and the decision can be rendered after that 30-day period. If an objection is filed within 30 days, a hearing would be scheduled with the hearing examiner's office, and they have to schedule that within 60 days of receiving the objection.

Do we know who the parties of interest may be?

It would be anybody receiving notice, so any of the properties immediately adjacent to the actual application site and then any of those associations that are within a half mile.

I think Yeah, I don't like that. I think that is not an owner, but an adjacent community member shouldn't have the right to object to someone's non-conforming use that was in existence. And opening it up to adjacent neighbors, I think, frustrates a property owner's rights, because the hearing examiner could be persuaded by of community concern and objection. And I think that's unfair to the property owner. But nonetheless, I guess that's a process.

I guess my follow-up question would be, who should be eligible to object, or should there even be an objection process available, would be my follow-up question.

I think the only people that should object are the government agency as to whether or not there was an abandonment or not, but not adjacent neighbors.

Would you, in this scenario, would you not require notice any longer, or would you still have notice but not allow an objection to be filed?

An alternative language might look like. Notice is fine, but objection is not. And the reason why objection is not is because I think you get into a situation where you adjacent neighbors have a say into a private property owner's rights and use of the property. And when the property was conforming, those adjacent neighbors had no say in its use. But when it becomes potentially nonconformant due to abandonment, and there are scenarios that are beyond the owner's control that could cause abandonment, you then give a right to adjacent property owners to object to a nonconforming use, and it shouldn't be allowed. And I hate to get in this kind of scenario, but let's say there was an opportunity for development of an area for additional housing, and then you open it up to interested neighbors or parties to object to it, you get in a situation where we don't want that to happen. And I think it's not a good precedent to allow non-conforming use interested or adjacent neighbors to have a say in it.

I was just going to say that when there is a conditional use, regardless of whether it is non-conforming or was conforming at one time, the process allows neighboring property owners to file complaints or to go before the hearing examiner to express their concerns about a project. The thing here, too, would be if we were providing notice, to provide notice for what purpose and to what ends. You provide the notice so that people know that it's happening and to know that they have an opportunity to participate in the process. Otherwise, you're just providing notice just so you can kind of rub it in their faces. This is going to happen, but there's nothing that you can say or do about it. And just even when we have a development application, we do have people who come in and testify about that development application that might be a neighboring property or somewhere nearby. And we give deference, and we hear them out. So I think there's a process here that historically has allowed people the opportunity to participate in this. And I would say maybe before we go any further, we're trying to craft some languages just to get a sense of whether or not this is something the board wants to play with or if we want to

Yeah, so I wrote it down here, and I'd like to finish the piece, and then we can go.

I would just like to point out that notices are published all the time for legal matters, and it's only with people with real interests, not an inchoate interest where I am next to it or I'm interested in it because it may affect me, as opposed to a real interest. tangible property interest. And adjacent neighbors don't necessarily have a real tangible property interest in a non-conforming use. And so I think it just opens up for frustration of someone's property rights, unduly so.

OK. So we'll keep going. I know that giving notice is a typical process The land use, whether it's- There's two different things here.

Giving notice, saying this is about to happen, and then giving notice, giving the right to object to someone's exercise of property rights are two different things.

I know, but in a lot of the work we do, you give notice and they come and provide public testimony. Testimony and objection are two different things. Well, why don't we go to the end, and we can come back and go over this.

Yeah, just to clarify there, I think if you go back a slide where you had. So the objection just is what kicks it into the hearing. Is that correct? So if there are no objections raised, then that means that it would go through an administrative process, and there wouldn't be a public hearing. It's the objection that allows people the opportunity to have the public hearing. So that's what the objection is. It doesn't stop the project. It just requires then a public hearing allowing them to provide testimony, which then the hearing examiner takes into account.

I'll wrap it up to say presumably the objection is because there is a notice property owner that believes one or both of the findings that DPS or planning is making maybe aren't actually sufficient to reinstate it or something of that nature. But it's not intended to be a way to stop the project. It's intended to give those people a chance to speak. I've also heard the counterpoint. And I think, as the chair said, we'll circle back to this at the end. The zoning text amendment gets into the decision section. This sets deadlines for when decisions should be rendered. It's within 60 days if there is no hearing held, and so 30 days is for the agencies to do the review, and then the other 30 days is for the hearing examiner to actually make their determination and send out that report. final determination notice. If there is a hearing, it's within 45 days of closing the hearing is when that final decision needs to be made. The findings for reinstatement that are listed in the decision section include that this is not a change to the nature of character, or intensity of the prior use to an extent that a substantial adverse effect could be expected. And it also allows for minimal changes to address compatibility, such as the size, layout, circulation, parking, landscaping, lighting, number of employees, or outovers of operation. This is another point where I think staff wants to tighten this up a little bit. If we look at the previous section here, What it is sort of allowing for is potentially changes so long as it's not found that they would change the nature or character or intensity of the operation. And really, it's to the extent that it's substantial adverse effects could be expected. That's a pretty big analysis for planning to potentially have to do to make that determination. And I think a concern that we have is it's sort of out of the nature, again, of a non-conforming use really needing to remain sort of the same size and character that it always has been. I think the way this is written, it could unlikely but potentially open up a scenario where somebody deliberately lets a use abandon as a back way to actually then expand it a little bit, which I think is not the intent of here. The intent is to allow a nonconforming use to start up again as if it were always a nonconforming use that never abandoned. I think staff is more comfortable with the second finding, though, that minor changes could be made if it actually makes the project better. And that has a little bit more of a useful use case and is a little bit more clear to understand. And so what we're showing on this is basically taking that first finding and just saying, you shouldn't change the nature, character, or intensity of the use except as allowed in the next finding, which is all the compatibility bits. So I'm gonna pause for a second to see if there's any discussion otherwise I can keep going And then there's an appeal section of this any aggrieved person may appeal to the Board of Appeals within 10 days of the mailed decision and And then the Board of Appeals, their decisions is they can either continue to approve the application, they could approve it with additional conditions, they could deny it, or they could remand the application back to the hearing examiner to look at additional evidence. And the staff is fine with that section. Then the last section of the zoning text amendment is compliance and enforcement. Any applicant that has a reinstated non-conforming use must submit annual reports to DPS on how they're complying with their reinstatement. The lack of receiving a report and then a follow-up inspection by DPS will lead to them redetermining that the site's abandoned. As a zoning text amendment, there was a climate assessment performed. This one, it was really hard to determine whether there would be positive, negative, or any impacts, because without knowing what the use is that is being reinstated and where it is, it's very difficult to determine whether there could be positives or negatives associated with it. There's also an unknown number of potential applications that could come through this process. And so the climate assessment, unfortunately, is rather vague for this. so in conclusion staff is recommending the board vote to transmit comments to the District Council supporting the zoning text amendment with the amendments that we have recommended. And then I guess I'll reopen it for discussion to see if we want to amend this further. OK, great.

Well, we have one person providing public testimony. So why don't we do that first, and then we can discuss these remaining items. So we have Ms. Attorney Liz Rogers with Lurch, Early, and Brewer providing public testimony. And she will have six minutes, is my understanding. Yes.

Great. Good morning, Chair Harris and members of the board. For the record, Elizabeth Rogers with Ertulian Brewer. Pleasure to be here today. I'm testifying today in support of Zoning Tax Amendment 2608. The CTA provides for needed flexibility for nonconforming uses. As staff described, the current law only allows nonconforming uses to cease operations for a very short period of time, just a six-month window, after which nonconforming use will be deemed abandoned. Many of these nonconforming uses are small businesses. If you look at DPS's website to get a feel for the type of businesses that have nonconforming use certificates today, those are veterinary clinics, their neighborhood serving markets, their antique stores, or even small two or three unit residential buildings. It's easy to understand how these small business owners may not understand the gravity of what a short pause in their operations could mean for their ability to operate their business into the future. And given the nature of these uses, it's also easy to see how an economic or personal circumstance could arise that could necessitate that business to close its doors for longer than six months. COVID's a really good example of this, as the board certainly appreciates many small businesses encountered economic struggles during the pandemic. That period of economic uncertainty did cause many retail establishments to close their doors. That temporary closure, while hard enough on a small business, obviously could have a lasting impact on a nonconforming use. One such example is Western Market. It's a neighborhood serving corner store grocery market that's on Western Avenue about a mile from the Friendship Heights metro station. The market has been serving the surrounding community since the 1920s until it closed its doors in 2022. The market actually predates the county's first zoning ordinance, as Mr. Burbitt had mentioned. And it's now located in a single family residential zone. As such, it's been operating as a nonconforming use for almost a century. But because of this brief closure, despite that almost century of operation, this longstanding community serving use can't reopen its doors to serve the community moving forward. The CTA would change that. It would allow the new owner of the Western Market property, Bill Morris and his son, Duncan Morris, who are here with me today, Their family have a vision for how they can breathe new life into this community market through an organic connection with their family farm. Reopening this market would not only provide for a convenient place for residents to shop again in the community, but also restore a piece of the community's shared history and nostalgia. In fact, many of Bill's childhood memories prominently feature this market as he was born and raised in that community. And I'm sure that's the case for many of the residents that still live near the market today. That's one such example. We think the ZTA provides that same flexibility for other similarly situated properties that could find themselves in an exact same situation to allow them to overcome these temporary setbacks and continue to serve the communities within which they're located. We do think the ZTA provides some appropriate guardrails to make sure that the reestablishment is consistent with the previous use, and we're supportive of staff adding the change that it needed to be the same use that was immediately preceding, so that there's no intervening uses. And for those reasons, we respectfully request the board's recommendation of approval of the zoning text amendment.

So just my audit, whether... Doesn't affect how I feel about the ZTA, but just out of curiosity, you were not the previous owner, but the use is still the same use. Just out of curiosity. Okay, great.

Sorry, yes. So we purchased it about a month ago, and... I did grow up in Westmoreland Hills, about half a mile from the property. My mom used to shop when it was the DGS, the district grocery store, which was actually a co-op. And then it became Western Market in 1972, I believe. Western Market has a great history in that location. It was kind of a revered enterprise, or was. But I do think it kind of fell off in recent years. And certainly, COVID kind of pushed it over the edge. So we have a vision to breathe new life into it. be an active part of the neighborhood and just kind of create something nice that adds to the fabric of the area communities.

Thank you so much. Thank you. Great. Thank you. Thank you.

I have two questions. Could you explain to me what couldn't we just do a conditional use? Why do they... I thought that conditional use probably means the same thing, and they allow them, because this is a supermarket. Why do we have to go through this process of change?

So talking about specific properties with these, but I will talk about it since I think they've already kind of mentioned who they are. Okay. They are a retail use in the R60 zone. There is no path for having retail in the R60 zone.

Even under the conditional use or the special use, they don't allow that?

Look at the use table as an empty cell. And so we would have to have a ZTA in front of us making retail a conditional use in the R60 zone. Do that, and then it's a lot of process... you know, a conditional use application is a lot more work even than a reinstatement with a hearing would be. And because there already is sort of the precedent that the structure is there, the use has been there, I think planning staff, and we had a lot of consultation with DPS and council staff and as this was being drafted, just sort of felt that was too much process for something that's, in theory, been there for decades and has just, for a very short lapse of time, not been there. we sort of liked that there is some process involved, that there was notice, that there was an opportunity for feedback, and that all the agencies that really need to look at this would have an ability to look at it.

And so we sort of felt this ZTA and the framework it's in really struck that balance of... Yeah, because I hear you, but I thought that conditional use doesn't have all of these strings attached to it. I don't know, as much as I know. They're actually much harder.

Okay.

Okay. Well, then I don't know, but I was just asking. The other thing is that my other question is the report. Why do we ask them to give you a report? Is that asking every non-conforming businesses to give report, or just if you reinstate it, why do they need to give a report?

That was in council's introduced draft. And I think it's something that's fair for us to question if we don't think it's necessary.

I don't think we should put them through the wringer. If it's a business that they're trying to survive, we need to make it easier for them rather than asking them that every year you have to give us a report. I don't even know what that report looks like. And it creates more job for staff at DPS, someone to enforce or whatever. Let them do their job. I don't know.

Any other uses you know of that every year someone has to say that they're in good stand, I guess, or whatever?

Why even have to say they're in good standing or not?

Why do we care? I've seen it as conditions of other conditional uses that they might have to do annual reports on. I'm trying to think. I've seen private schools that host events, and they do an annual report every year discussing how they're managing traffic at these big events that they're hosting. But it's not common, but it's not completely unheard of.

Yeah, those have a reason. If it is a traffic management or something, but what is the reason here that they have to give a report? I suggest that if we don't know why and it's not a good benefit, we take it out. We need to make the process easier and more simplified.

I would say if the board is, I mean, we can make a recommendation from the board that that piece be removed. It is always something that the hearing examiner could place as a condition of the approval. Yeah, they can do that.

The reinstatement.

Well, how do, so how would DPS know anyway whether a business is in business or out of business because of a business license, a license you have to do? I mean, how would they have known anyway that, It was closed for two, three, four, six months.

I think they probably have business license. That's what the question I was asking about abandonment, that they said that it's a process. I guess that they're all probably related to that.

Yeah, again, it's because we don't do the issuing of permits or licenses here. It's not something that... You know, we sort of control it. It's a DPS determination. And unfortunately, I don't know exactly how they make that determination.

Yeah. Yeah. I'm open to maybe in the transmittal to saying that, you know, is the need for a report every month, every year, stating that they're in business, is it really needed? You know...

We are making comments. We could make that comment as part of the... No, but I'm just saying, I'm in agreement.

I have another comment, and it's revisiting the objection. When there are objections by adjacent owners, is there a requirement for the applicant or owner to respond to the objection?

So this language is based off of how a lot of administrative reviews are handled currently, like a site plan amendment or a preliminary... What's the type of preliminary plan I'm thinking of? The admin sub. They currently are, in theory, administrative processes. But in both of those, there's language very similar to this written in that if you receive notice and you object to the application, that objection can be registered by the deciding body. In those two cases, it is the planning department through the planning director. The planning director makes a determination if the objection that was received was at all relevant to the case. Because sometimes there are objections that are received that are just, I hate development, and that's not necessarily relevant to the facts of that case. Sometimes there are objections about specific concern that, as an adjacent property owner, the way the lighting and landscaping is shown is inadequate and needs to be addressed better, or a circulation consideration.

Those are instances of new development, correct?

In those instances, yes, these are new development. And if that objection is deemed relevant by, in this case, the planning director, it will be pulled off the administrative track and taken, in this case, in front of the planning board for a hearing. And so this was written in a similar manner that if an objection is raised by a noticed party and the hearing examiner deems it relevant to the case, they could pull it off the administrative track and take it to a hearing. I didn't read verbatim everything in the code. It also allows the hearing examiner to determine that they don't have to have that hearing just because an objection was received. There is this sort of subjectivity as to whether or not an objection is relevant and worth taking to a hearing. So that is in there, and it is based off of something that we already have in our process.

My problem with objections is when you have a prior existing non-conforming use that a new environment that adjacent neighbors become accustomed to and like, i.e., reduction in traffic or on-street parking, that they could overly burden the owner of the property with a non-conforming use and frustrate their ability to respond to each objection and be outclassed or outspent. And then they wouldn't have the resources to address, quote unquote, reasonable objections. And they would lose the opportunity to address those objections because they couldn't afford to do so. And then therefore, they would lose the opportunity for a non-conforming use. So in the legal world, courts, when there's an objection, you must address it. If you fail to address the objection, then they note that you failed to address the objection, and therefore the objection overrides whatever was proffered. And so my concern is that if you get a community rallying against this non-conforming use, and each community member files an objection, and they're all deemed irrelevant, or each community member tactfully addresses an independent issue separately, and then The non-conforming use person has to address each one. It becomes unduly burdensome and is more likely to cause them to miss an objection that they would have otherwise not had to respond to if we didn't open up to uninterested parties. And so if we're going to allow objections, state that for non-conforming uses only, that the non-conforming use owner or applicant need not reply to those objections, and that their not replying to those objections is not held against them. And so I don't want to be, I mean, it's just a reality that multiple objections could frustrate your advocacy of your position. Another example would be an amicus curiae brief in an appellate matter. People can file amicus curiae briefs, and you're not necessarily obligated to respond to them, as opposed to them trying to influence the court to see it their way. But you don't necessarily have to respond to them. And so I don't want to create a situation where a person who has a non-conforming use, such as a small business, is put in a position to answer every objection. and they frustrate their ability to reopen or establish their business. And so non-conforming use is different than new development, and putting them hand-in-hand would not be appropriate.

If you'd like to make a comment, and I'd like to make a comment, and we can move on.

That sounds good. I think the only thing I would say is that Maybe the word objection here means a very specific thing in the legal sort of world, as you're alluding to. In practical sort of when we are saying objection, it is a comment that the planning director may receive, which may be a concern. It may be a positive comment. that would kick it into a hearing, it doesn't necessarily put the onus on the property owner to have to then specifically talk to each of those objections, but staff does that as a part of their review when we bring that to the planning board. And so I imagine at the hearing examiner, it is the same sort of setup where it's the forum for discussing the comments, concerns, is the hearing, and you do have to sort of report out on what you heard in terms of the comments, but I don't think the onus is placed on the property owner to then have to satisfy each of those objections unless the hearing examiner finds some of those comments to be valid and asks then the property owner to respond to them.

Yeah. the ability of adjacent property owners to file objections that the owner has to respond to. And I think there should be limiting language in it. If it's an actual owner and there's a dispute and there's an objection, so be it, but not adjacent property owners. I think there should be limiting language that the hearing examiner can't compel the owner of the property or non-conforming use to respond to it. in non-conforming use matters only. Not other matters, but non-conforming use matters only.

OK. I appreciate everyone's comments. So I'm of the thought that there probably will be very few of these, and that I also believe that, as Mr. Sharma said, that it's not going to be the onus of the property owner. I think the hearing examiner, just like the planning department, they will view they have this checklist. Does it, you know, if there is a, I mean, he or she has a checklist anyway, and as they're reviewing it, whether there's a public hearing or not, they check the checklist. Does it, you know, does it, you know, I don't know.

Mr. Sharma said that there could be ones that the hearing examiner deems reasonable and the property owner would have to answer to. And I'm saying that property owners should not have to answer to any of those.

Well, let me just finish here. So hopefully this is a simple ZTA.

So I'm for moving forward with this CTA with the staff's recommended changes.

I think that I mean, there'll be so few and far between. I think if it gets really that complicated, then maybe there'll be some other changes need to be made down the road. But also, my only other question was in terms of, so suppose that the setbacks, the side setback on when it was done, it was seven feet or whatever, 10 feet or whatever. But in order to do... today, and if they needed to put some more mechanical equipment in to have more efficient HVAC and stuff, so it reduced that setback to where it didn't meet today's code, or even the code then. I mean, could it still? I mean, is it like your example to make it better? The hearings then would say, yes, it it doesn't quite meet this other thing, but it makes it better because of X, Y, and Z and like the size. So you have to increase the size a little bit to put better equipment in it. So they can make that decision, it works, and move forward. Is that an example?

Yeah, so the way the current process works is in theory you change nothing, and that's part of being non-conforming. There are instances where you can make minor changes, particularly if a review agency has found that for sort of safety reasons, or betterment reasons, you do need to slightly expand to move your air compressor inside. And then that adds a couple of feet here. And there are instances where safety and regulation can create minor changes. And so then, in theory, that long finding for compatibility might find, for additional reasons, it's just a better project to make additional small changes. But I think those do need to be done case by case, which is why it's sort of wrapped into the finding that has to be made as part of the reinstatement.

Yeah. So I'm in support of the DTA with staff's recommended comments. I understand it. In the extreme, there could be, you know, the community member could have really tried to fight something. But I'm assuming that the hearing examiner would be a reasonable person and and the project would, you know, if it met the general requirements, it would move forward.

So that's my... We did also want to propose some very minor clarification language. If we may, maybe Mr. Berwick can cover that real quick.

Yes, there's two questions here. The first was, was there any support for the other amendment that we've heard that it should be abandoned for more than rather than the...

No more than.

No more than. Is there support to make that change? And then the other suggestion that we have on this slide under B is that it's not really the nonconforming use that's requesting change, but it's that the property with a nonconforming use requested for reinstatement. We just want to wordsmith this a little bit. I don't think it was written the clearest now that we're looking at it.

Rather than saying the last use of the property was the non-conforming use requesting reinstatement, a non-conforming use can't request the uses. It's the applicant that's requesting, so it would be the last use of the property was the non-conforming use requesting for reinstatement. Great.

Great. Great. That was, and then I guess Commissioner Petto, how do we, the board, feel about, like, I don't know how DPS monitors currently what's operating and what's not operating, or should we just let them do what they normally do? But should we have a written report every year? It seems like this would be somewhat unique, right, or no?

I think we could, without overstepping any bounds, just say that the board is flagging whether it's necessary. Maybe it is, but if it's not and it was there because it's the right thing to add, then maybe it should come out. So I think we can at least flag it as something that we're a little concerned about.

Yeah, I'm good with that. If it is necessary, it does some purpose, then it does some purpose. But if there is no purpose, we just want to say there is no need to have.

Because, yeah, great. Because maybe just through the licensing, they have to renew every year. That's another way to figure out was it alive or not alive, right? The board members, are you guys okay with that?

Okay, great.

So we have the change of B, right? And we have no more... No more than five years. No more than five years, right. We request that if there's no reason to have monitoring, yearly monitoring, to remove that. All right. So do I have a motion to approve? to transmit comments to the District Council supporting ZTA with those recommended changes to staff report.

I move for the approval and transferring our recommendation for the ZTA 2608 to the hearing officer.

I second.

Favor?

Aye.

Aye. Aye. Aye. The ayes have it. So thank you so much. And this ends our planning board meeting for today. And at 5.30, we have a celebration here for the graduates of the Community Planning Academy. So we invite everyone that wants to come, but we're so excited about that. Thank you.