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Fix or Repeal Mixed Use Zoning

Flawed zoning ordinance puts cart before the horse

In August 2020, the Mount Airy Town Council enacted a broad change in our zoning codes, approving "mixed use" zoning in an Ordinance that potentially could destroy our Town and way of life. This was during the COVID-19 pandemic. Not understood and digested by the public--and there is considerable debate as to whether the Town Council fully grasped the perils--this sweeping MXD (mixed use development) Ordinance was approved, and the Developer who provided most of the input to this change (Kaz Brothers) immediately began the process to plan a housing development of 700 units on the Beck Property. In the Fall of 2022 this project was "sold"--in transactions not publicly disclosed--by Kaz Brothers to Pleasants Development. Every brake or mechanism to arrest this impending tragedy failed. The Town’s legal counsel made a small windfall for his firm, of which he is a principal. But he was not diligent in providing sage advice about the possible negative consequences of enacting the MXD zoning the way it was done. Town staff did not follow through on dubious claims by the Developer to adequately assure water availability and often turned a blind eye, and preferred to accept the unproven and often illogical claims by the Developer's engineer as undisputed facts rather than provide a robust and independent review. The law on "mixed use" zoning which includes the right to "vest" is controversial and difficult to understand even by the Courts and real estate attorneys. There is a good chance that what was done in secret (not available to the public) meetings between Town officials and the Developers and his legal representatives constituted a violation of the Maryland Constitution which prohibits a special interest to write a law in their benefit without disclosure and due process. There was a case in Howard County shortly after the Town enacted their MXD Ordinance that is somewhat analogous and sets a precedent. So, we're faced with a scenario ranging from violating the Maryland Constitution to a lesser but still extremely important sin--violation of the Mount Airy citizens' trust. Water, water, water!--the life blood of development in Mount Airy. This is the most damaging and sweeping omission of the August 2020 Ordinance. No longer would water availability be provided "up front" or in advance, but the development could be advanced, through Town Council approval, to the point of irreversibility from legal challenges and force the Town's hand or face expensive litigation if we did not give them water. In that regard, the Town staff dropped the ball and did not independently verify, or check pumping rates provided by the developer's hydrologist and discouraged any changes in our Well Head Protection Ordinance to get a better handle on the water situation in a very challenging and impossibly difficult aquifer. There is a reasonable chance the Maryland Department of the Environment may not allocate any additional water for this site. Although it could not have known it in 2020, the already flawed Ordinance for MXD was made even worse by the recent discovery of "forever chemicals" in our ground water system, now requiring the shutdown of 2 of our eleven wells. There may be engineering "fixes" for this problem--which potentially affects much of our Nation--but it comes on top of an already flawed water availability system and future development policy that must be corrected in the near future.

The MXD ordinance must be repealed or modified to correct and clarify the Adequate Public Facility disconnect and have it back to the way it historically has been—provide services and water first. Due to the ongoing water contamination issues—which could worsen and cause more wells to close--the Council should consider a building moratorium.

--Dave Pyatt

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