8 Facts about the Open Space Waiver Fee Matters Currently before the County Council

The County Council is currently considering one bill and two resolutions regarding open space waiver fees that developers pay when they are unable to provide the open space required by the County Code.  Bill 31-13 changes the percentage of the fees coming to NeighborSpace from “up to 10 percent,”  language found in Section 32-6-108 of the County Code currently, to “15 percent” and for the first time establishes a cycle for reviewing the fees (4 years).  Resolution 43-13 establishes a new fee schedule and Resolution 44-13 asks the Planning Board to study the matter, addressing many of the problems enumerated below and requiring that recommendations be submitted to the Council by October 1.  Here are 8 facts I want to share with you about this situation:

1. Open space and livability are huge problems within the URDL, where 90% of Baltimore County’s population lives on 1/3 of the total land area. For a short account of the problems and their origins, watch this brief video.

2. Absent any context, the proposed fee reductions look draconian.

3. Developers pay no impact fees or excise taxes for things like roads and schools in Baltimore County.  The fees they currently pay for open space, however, are higher than any development fees charged by other metropolitan Baltimore jurisdictions (my research) and higher than fees charged for open space alone (County research) in urban residential zones. 

4. The current rates for open space waiver fees date to 2006.  Pressed for an explanation about the methodology for setting these fees, the County could provide none.

5. Legislation passed in 2009 and  governing the vesting of development plans gave any approved projects in the pipeline on or before August 17, 2009 four years to vest (i.e. record a plat and pay the waiver fee) or lose  development approval. Few development projects went forward during the recession; so, August 17, 2013 is a deadline that looms large for many developers doing business in the County – hence, the current press for changes to the fees.

6. The problems with current laws requiring a developer to set aside open space or pay a fee in lieu thereof are much bigger than simply the amount of the fee and what portion of it comes to NeighborSpace. It can be effectively argued that  current law and policy:

•      Do not Address Pressing Open Space Needs within the URDL Effectively: The current policy requires open space to be provided on a development site. If a developer could pay a fee that would allow the Department of Recreation and Parks or NeighborSpace to create open space on another local site, pressing community open space needs nearby might also be addressed. NeighborSpace’s soon-to-be-released Strategic Conservation Plan for land within the URDL could aid this evaluation.

•     Are not Sufficiently Fair or Predictable:  The amount of the fee should be tied to a justifiable methodology that reflects the true cost of the open space that must be provided as a result of the development project. The current proposal, which is the basis for the fees in Resolution 43-13, to base the fee solely on the average assessed value of raw land does not account for improvements required by the Local Open Space Manual, such as boundary markers, clearing, grading, and replanting in accordance with the Landscape Manual, as well as providing both vehicular and pedestrian access. A fee based on 130% of the cost of raw land might be a closer approximation of the revenues needed to provide the open space required. In addition, the fee schedule should be revisited more regularly than every four years, as proposed in Bill 31-13.   The market that tanked in 2007 is rebounding.  Other counties revisit fees regularly and base them on average SDAT residential land reassessments plus a construction cost index, such as the 20-City Annual National Average Construction Cost Index from The Engineering New-Record (which Anne Arundel County uses to adjust its fees annually).

•      Lack Transparency about the Development Fees and the Methodology for Setting Them:  Every other metro county I reviewed, with the exception of Carroll, publishes its current fees on the county website.  Arguably, the methodology and process for establishing the fees should also be published.

•     May not be the Most Effective Means of Ensuring Quality Open Space:  NeighborSpace has offered to work with the County and with developers to review how effective the current laws and policies are in creating meaningful open space.  Resources will always be limited, so we need to strive to create open space that achieves multiple goals – protecting our environment and enhancing the livability and desirability of our communities.  Achieving these goals will make Baltimore County more attractive for continuing private sector investment and will support the tax base that is needed for other public services.

•      Do not Incentivize Redevelopment within Community Enhancement Areas (CEAs):  As development inside the URDL continues and density increases we may need additional incentives for redevelopment projects in CEAs, those areas designated in the Master Plan for redevelopment and accommodation of population growth.  Higher density and mixed-use developments in CEAs will require a different approach to open space requirements, with less emphasis on size and more on usability and amenities.

7. Members of the NeighborSpace Board and I discussed the above concerns with County officials and with developers and had hoped that they could be addressed in legislation that would be approved this summer.  Unfortunately, there are just too many problems to be investigated and questions to be decided for that to be a realistic timeframe for resolution.

8. For these reasons, NeighborSpace testified in support of Resolution 44-13, introduced by Councilmembers Quirk, Marks, Almond, & Olszewski last Tuesday and asking the Planning Board to study these issues. I am hopeful that NeighborSpace will be able to share the foregoing concerns with the Planning Board in the coming months and welcome your feedback on the issues as I have described them here.