- The Washington Times - Wednesday, August 31, 2005

Montgomery County Planning Board members and staff say they did not know it was their job to monitor building heights in Clarksburg, but those claims are contradicted by their own reports and by county legislation their own chairman helped pass 11 years ago.

Planning Board Chairman Derick Berlage said in an interview this week that enforcing building standards such as building heights is “a shared responsibility” between his agency and the Department of Permitting Services (DPS).

Planning Board Staff Director Charles R. Loehr said in an interview this week that he “assumed” that DPS was enforcing standards at Clarksburg. He told the County Council during a July 27 hearing that DPS was checking building heights at Clarksburg.

However, not only did DPS Director Robert Hubbard reject this claim on July 27 and then again in interviews, but county records clearly show that the Planning Board was solely responsible for enforcing building standards at Clarksburg, which were widely violated.

It appears, from a report released yesterday by a citizens group, that this pattern may have been repeated countywide.

“The Planning Board, the county, have allowed an environment to grow … where everybody recognizes that no one is watching the store, that they have all these rules and regulations but there is essentially no enforcement,” said Norman Knopf, attorney for the Clarksburg Town Center Advisory Committee (CTCAC), which uncovered the violations at Clarksburg.

The County Council in 1994 approved Zoning Text Amendment 94017, which authorized the Planning Board to monitor builders and impose penalties for violations of approved site plans. In 1994, Mr. Berlage, the current Planning Board chairman, was one of the County Council members who voted for the amendment.

Additionally, Mr. Loehr wrote a memo on July 28, 1992, to County Council staff detailing the Planning Board staff’s responsibility to make sure builders conformed to site plans.

The Clarksburg Town Center, the epicenter of a growing scandal over widespread flouting of county zoning laws, was built in a special “floating zone,” in which building requirements are negotiated between the Planning Board and developers. No other agency knows what the zoning standards are, and so “floating zone” building standards are created and enforced in a vacuum, creating a closed loop between the Planning Board and developers.

But Mr. Berlage and Mr. Loehr contend that they thought DPS, which issues building permits, was checking for height violations. Mr. Berlage, when asked about county law and Mr. Loehr’s memo, said, “I’m not talking about documentation or laws. I’m talking about policy.”

Mr. Hubbard, however, said, “It’s pretty clear, in terms of the law, where the responsibility for enforcement of the law lies. If there were breakdowns, I think the breakdowns did occur at Park and Planning [Planning Board staff],” Mr. Hubbard said.

Mr. Hubbard said DPS sends building permit applications to Planning Board staff to register the structure. But, he said, a permit approval by Planning Board staff amounts to a promise on their part to enforce building standards.

That promise includes monitoring construction and making sure the builder conforms to zoning standards specified in site plans, said Mr. Hubbard, a 28-year county employee who has headed up DPS since its inception in 1996.

DPS “is not aware of the height and setback standards that are agreed upon by the developer and by [Planning Board staff], and has no means to provide that enforcement,” Mr. Hubbard said.

More than 500 homes were discovered in July to have been built in violation of site plans at the Clarksburg Town Center, which is scheduled to include 1,300 homes total.

The Planning Board and DPS are adding inspectors in the aftermath of the problems in Clarksburg, and the DPS building permit application now specifies height and setback.

Mr. Loehr’s memo, however, suggests that there was never any confusion about who was to enforce building standards in “floating zones,” which were created in the 1960s and now make up a majority of the county’s new construction.

Mr. Loehr, who remains the staff director today, detailed in his 1992 memo how these “floating zones” were “serving both the community and the developer.”

“More flexibility and relief from the rigid control of [standard] zones is given to the developer in exchange for a heightened level of scrutiny of the proposed development,” wrote Mr. Loehr, who has worked for the Planning Board since 1980.

Mr. Loehr described the Planning Board staff’s responsibilities in the 27-page memo.

“Building permits cannot be issued until a detailed site plan is approved by the Planning Board,” he wrote. “All construction and landscaping must meet the terms of the approved site plan.”

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