Septic Legislation Keys Property Rights Debate

Septic Legislation Keys Property Rights Debate

Council considers moratorium on sand mound systems, which could support residential subdivisions the Ag Reserve.

Dickerson resident George Worthington doesn’t envision a giant residential subdivision on his 137-acre property in the Agricultural Reserve.

The lifelong Montgomery County resident bought just 10 acres near Barnesville in 1981 and four years ago the couple “really stretched” and bought 137 acres adjacent to their house, planning to build five houses, none of which would be visible from the road.

Worthington relayed this story to the County Council’s Transportation and Environment Committee at a public hearing Nov. 15 on proposed legislation that would put a seven-month moratorium on the approval of sand mound septic systems in the Ag Reserve. Sand mound systems allow sewage treatment in many areas where, because of soil conditions, in-ground systems are not possible.

They are the only common technology Worthington could use for four of the five houses he plans to build.

“We don’t have 401(k)s or secure retirements. We put everything we have into the hope of making this land something that will help us and possibly help give our children a housing start in the county,” Worthington said. “We have paid county fees, land planners, land surveyors, and backhoe operators, all in good faith.

“It’s just hard to believe that this … could be taken away from us after this effort and expense.”

EXPEDITED BILL 38-05 would place a moratorium on Department of Permitting Services permits for the construction or installation of sand mound systems. It would take effect on the date of passage and expire July 31, 2006.

The bill’s sponsors, Council President Tom Perez (D-5) and Marilyn Praisner (D-4) have said that the moratorium is aimed only at the Rural Density Transfer Zone, the one-house-per-25-acres zoning that makes up the Reserve and that it is intended to prevent subdivision development. They promised clarifying amendments to the bill.

Moreover, a six-month moratorium would not necessarily signal a permanent change.

“Will this be a tool for subdivision development in an area where I think we as a Council have made a policy judgment that that’s not what we want?” Perez asked. “We’re simply trying to declare a timeout while we have that conversation.”

Sand mounds are one in a series of recent issues that have focused attention on the future of the 93,000 acre Reserve.

The Council and other county agencies have questioned whether a few regulatory loopholes and hazy policies have begun to allow more development in the Reserve than planners intended.

Earlier this month, the Council heard testimony on two measures that would limit the ability of private institutions, mostly churches, to build large facilities in the sparsely-zoned upcounty Reserve. In that fight, environmental conservation groups and farmers were aligned in support of more restrictive measures, while the church groups claimed that they had followed planning rules and then had the carpet pulled out from under them.

But the proposed sand mound moratorium has created a different dynamic where the farming community, which usually supports moves that would limit construction in the reserve, has opposed the change, citing a violation of property rights.

FARMERS LIVING upcounty before 1980 saw their land downzoned when the Agricultural Reserve was created that year. Instead of being able to build one house per five acres, they were limited to one house per 25 acres and given transferable development rights, which they could sell to compensate for the lost value.

“The farmers accepted this downzoning in exchange for the promise and concept of the TDR program,” the Montgomery Country Farm Bureau’s George Lechlider told the Council committee. “Unfortunately the return from this TDR program was never equitable until just recently.”

And while a few farmers still hold their TDRs, most have long since sold them, leaving them only with their land. Many hope to build houses for their children, thereby preserving an endangered agricultural tradition in the county.

And no one disputes that even if farmers want to develop their land for profit, they should be allowed to do up to the permitted density — that’s why zoning exists.

But is banning an accepted, and legal, septic technology effectively another downzoning?

James Clifford of the Montgomery County Agricultural Advisory Committee invoked the recent Supreme Court on eminent domain in Connecticut.

“Farmland is the farmer’s 401(k). It is often times their only asset of worth and what they and their families have spent a lifetime to acquire,” he said. “If you eliminate the use of the sand mound system, you’ve taken real value and property rights away from the farmer … Not just hundreds of dollars but thousands and even millions of dollars.”

CONSERVATIONISTS have been careful not to dispute the farmers’ property rights arguments, but see more pernicious uses lurking in the sand mound technology.

“We support farming 100 percent. What we don’t support is the fragmentation of the farmland into small residential lots that are removing a lot of our best farm fields from agriculture,” said Dolores Milmoe, supporting the moratorium on behalf of the Audubon Naturalist Society. “[Since] sand mounds were introduced in ‘94, what we’ve seen is undoubtedly an increase … residential exurban housing.”

“A number of the people who testified on Tuesday night, they wanted to buy a house for their kids. Those are circumstances that we support. We think that that’s a great way to support family farming,” said Andrea Arnold of the Montgomery Countryside Alliance. “When 15 or 25 houses are going into a subdivision that’s taking it a bit to the extreme.”

Arnold cited Winchester Homes' Stoney Springs development south of Poolesville, which would rely on sand mounds to build 15 homes. The Planning Board approved the development in a 3-2 vote in March.

“It’s setting a precedent and saying building 15 homes using sand mound technology is OK, and that’s a precedent that we shouldn’t start,” she said. “The slippery slope — that’s what this is.”

UNTIL THE BILL sponsors present amendments and the Council votes, there’s no way to know if the sand mound moratorium is much ado about nothing or the beginning of something big.

Farmers may be exempted and the sponsors say the moratorium won’t apply to residential zones: sand mounds enable development in large areas of Potomac.

So far the possible impacts of the legislation are unclear and a series of Council decisions are poised to shape the future of the Ag Reserve.

“As I see it, we’re dealing with a lot of well-intentioned efforts in sort of piecemeal fashion,” said Transportation and Environment Committee Chair Nancy Floreen (D-At Large). “I’d like to see a more organized approach.”

She joked that frequent Council and committee hearings on the Reserve are bringing the ag community to Rockville several times a week.

“Although its delightful to be together on a regular basis, its going to wear people out,” she said. “We need to send some clear message.”

Arnold disagreed. She said that a comprehensive approach is code for toying with the Reserve’s long-standing master plan.

“I think there’s a lot of danger in that,” she said. “It’s going to have to be piecemeal.”