A. Referral of plan. After accepting an application, the Director must send a copy to the Development Review Committee and other reviewing bodies, requesting each agency to submit a recommendation concerning the plan. The Director must send copies, as needed, to:
1. WSSC, for water and sewer service;
2. the Department of Transportation, for roads, streets, intersection locations, site access, sight distances, traffic calming, paths, pedestrian and bicycle facilities (including bike share), parking, transit facilities, transportation demand management elements, and storm drainage within County-maintained rights-of-way and easements with all reviews consistent with the objective to achieve Vision Zero goals;
3. the Department of Permitting Services, for stormwater management, floodplain delineation, sanitation, wells, and septic systems;
4. the Montgomery County Department of Environmental Protection, for water and sewer adequacy and tree variances;
5. Montgomery County Fire and Rescue Service, for requirements for adequate fire protection and access;
6. the State Highway Administration, for right-of-way requirements and access on state roads;
7. any appropriate agency of the federal government;
8. any municipality that has filed a request with the Board for an opportunity to review subdivision or resubdivision plans for property located in that municipality;
9. Montgomery County Public Schools, for school site planning or for an application for residential development;
10. any other Montgomery County Executive agency, for the adequacy of public facilities and services and any proposed public use; and
11. local utility providers.
B. Review and recommendation.
1. Timing of review.
a. The Director must allow reviewing State and County agencies and utilities a minimum of 14 days to review plans. Those agencies and utilities must submit initial comments to the Director before the Development Review Committee meeting when one is scheduled.
b. The applicant must submit revised drawings at least 65 days before the date of the hearing to address all comments received. The Director may
extend the deadline if the applicant submits a written request within 15 days after the revised drawings were due. If no written request is received or if the requested extension is not granted, the application is deemed withdrawn.
c. State and County agencies and utilities must each submit their final recommendations on the application at least 45 days before the date of the Board hearing or must request an extension.
2. Approvals from public agencies. The following agency approvals are required before the Board approves the preliminary plan:
a. Design of County-maintained roads. The Department of Transportation must approve in preliminary form the typical section, concept road profile, intersection and site access locations, sight distances, utility location, and storm drain adequacy for improvements along County- maintained roads and paths within its jurisdiction;
b. Wells and septic systems. The Department of Permitting Services must approve lots with individual wells or septic systems, the well, and septic plan. Proposed wells and septic systems within existing rights-of-way or easements are prohibited;
c. Stormwater management. The Department of Permitting Services must approve a stormwater management concept plan and floodplain delineation, if required under Chapter 19;
d. Water Quality Plan. If a water quality plan is required under Chapter 19, the Board must not approve a preliminary plan or any extension until all requirements of Chapter 19 for plan approval are satisfied. The Board must make the compliance with a required water quality plan, including any plan reviewed on a preliminary or final basis, a condition of any approved preliminary plan; and
e. Water and sewer service. If water and sewer are proposed to serve the property, the Board may approve a preliminary plan only if WSSC has reviewed the proposed water and sewer service layout.
3. Director. The Director must publish a report and recommendation at least 10 days before the Board hearing.
C. Planning Board Action.
1. The Director must present every preliminary plan to the Board for its review and action. The Board must take one of the following actions or defer action to obtain more information:
a. approve, if the plan conforms to the purposes and other requirements of this Chapter;
b. approve, with any conditions or modifications necessary to bring the proposed development into compliance with all applicable requirements; or
c. deny, if the plan is contrary to the purposes and other requirements of this Chapter.
2. All necessary improvements to support the development must be completed or assured, as specified in Section 10.2.
3. Where a site plan is required, the approval of the preliminary plan must not allow clearing or grading to occur before approval of the site plan, unless otherwise specified by the Board.
4. The Board must approve a resolution containing findings supporting its decision. Following approval of a preliminary plan by the Board, any substantial change in the plan may only be required by another agency in order to comply with a law or regulation. Any such change must be allowed by the Board’s conditions of approval or a plan amendment under Section 4.2.F.
D. Required Findings. To approve a preliminary plan, the Board must find that:
1. the layout of the subdivision, including size, width, shape, orientation and density of lots, and location and design of roads is appropriate for the subdivision given its location and the type of development or use contemplated and the applicable requirements of Chapter 59;
2. the preliminary plan substantially conforms to the master plan;
3. public facilities will be adequate to support and service the area of the subdivision;
4. all Forest Conservation Law, Chapter 22A requirements are satisfied;
5. all stormwater management, water quality plan, and floodplain requirements of Chapter 19 are satisfied;
6. any burial site of which the applicant has actual notice or constructive notice or that is included in the Montgomery County Cemetery Inventory and located within the subdivision boundary is approved under Subsection 50-4.3.M; and
7. any other applicable provision specific to the property and necessary for approval of the subdivision is satisfied.
E. Plan Certification. Every preliminary plan approved by the Board must be certified by the Director to confirm that the plan reflects the Board’s approval. Any modification of the plan conditioned by the Board’s approval must be included in the plan before receiving the approval stamp. The approved plan must be filed in the records of the Board.
F. Amendments.
1. Any amendment to an approved preliminary plan must follow the procedures, meet the criteria, and satisfy the requirements of this Division.
2. Amendments are classified as either major or minor.
a. A major amendment includes any requests to change density that results in greater adequate public facilities impact; or make major changes to lot configuration or location, or right-of-way width or alignment; or make a change to any condition of approval, except a change to plan validity period or APF validity period.
b. A minor amendment to an approved preliminary plan includes any change that does not change density in a manner that results in greater adequate public facilities impact; make major changes to lot configuration or location, or right-of-way width or alignment; or alter the intent, objectives, or requirements of the Board in approving the preliminary plan. A change to plan validity period or APF validity period is a minor amendment.
c. The Director may approve a minor amendment to change validity period phasing as permitted in Section 4.2.H.1.b.
G. Plan Validity.
1. Initiation date. The plan validity period for preliminary plans starts on the later of:
a. 30 days from the date of mailing indicated on the written resolution; or
b. the date upon which the court having final jurisdiction acts, including the running of any further applicable appeal periods, if an administrative appeal is timely noted by any party authorized to file an appeal.
If a corrected resolution is issued, the initiation date remains 30 days from the date of mailing indicated on the original resolution.
2. Duration.
a. Single-phase project.
i. A preliminary plan approved after March 31, 2009 and before April 1, 2017 remains valid for 5 years after its initiation date.
ii. A preliminary plan approved after March 31, 2017 remains valid for 3 years after its initiation date.
b. Multi-phase project.
i. An approved preliminary plan for a multi-phase project remains valid for the period of time allowed in the phasing schedule approved by the Board.
ii. The applicant must propose a phasing schedule and the duration of the validity period for each phase as part of an application for preliminary plan approval or amendment. The Board must assign each phase a validity period after considering the size, type, and location of the project.
iii. The time allocated to any phase must be 5 years or less after the initiation date for that particular phase for any preliminary plan approved after March 31, 2009 but before April 1, 2017, and 3 years after the initiation date for that particular phase for any preliminary plan approved after March 31, 2017.
iv. The cumulative validity period of all phases must be shorter than or equal to the APF validity period that begins on the initiation date of the first preliminary plan approval, including any extension granted under Section 4.3.J.7.
v. If the recordation of an approved preliminary plan occurs within 5 years of approval for a multi-phase project that includes land or building space to be transferred to the County for an arts or entertainment use under Section 59-C-6.2356 of the zoning ordinance in effect on October 29, 2014, all phases of the preliminary plan are validated. After approval, an amendment or modification to the phasing plan or the preliminary plan will not affect the validations if the requirements of this Subsection have otherwise been met.
3. Validation. A preliminary plan or phase of a preliminary plan is validated when the applicant has secured all government approvals necessary to record a plat, and a plat for all property shown on the plan or in that phase has been recorded in the County Land Records.
4. Effect of a preliminary plan amendment on validity period. For any action taken by the Board to amend a previously approved preliminary plan, the Board will determine, on a case-by-case basis, whether it should extend the validity period and, if so, for what duration. In making the determination, the Board must consider the nature and scope of the requested amendment.
H. Extension of plan validity period.
1. Extension request.
a. Only the Board is authorized to extend the validity period. The applicant must submit a request to extend the validity period of an approved preliminary plan in writing before the previously established validity period expires.
b. The Director may approve a request to amend the validity period phasing schedule of an approved preliminary plan if the length of the total validity period of the preliminary plan is not extended. The applicant must submit the request in writing before the previously established validity period of the phase expires.
c. The written request must detail all reasons to support the extension request and include the anticipated date by which the plan will be validated. The applicant must certify that the requested extension is the
minimum additional time required to record all plats for the preliminary plan.
2. Effect of failure to submit a timely extension request.
a. The failure to submit a written extension request in a timely fashion voids all non-validated portions of the preliminary plan and, where applicable, an approved site plan.
b. Where a preliminary plan has been allowed to expire due to the applicant’s failure to file a timely request for extension, the Board may reinstate the preliminary plan and establish a new validity period if practical difficulty or undue hardship is demonstrated by the applicant. The Board may require the applicant to get a new APF review and approval by the Board as a prerequisite or condition of its action to extend an expired plan.
3. Grounds for extension.
a. The Board may only grant a request to extend the validity period of a preliminary plan if the Board finds that:
i. delays by the government or some other party after the plan approval have prevented the applicant from meeting terms or conditions of the plan approval and validating the plan, provided such delays are not caused by the applicant; or
ii. the occurrence of significant, unusual and unanticipated events, beyond the applicant’s control and not caused by the applicant, have substantially impaired the applicant’s ability to validate the plan, and exceptional or undue hardship (as evidenced, in part, by the efforts undertaken by the applicant to implement the terms and conditions of the plan approval in order to validate the plan) would result to the applicant if the plan were not extended.
b. The applicant bears the burden of establishing the grounds in support of the requested extension.
4. Planning Board considerations for extension.
a. The Board may condition the grant of an extension on a requirement that the applicant revise the plan to conform with changes to the requirements of this Chapter since the plan was approved.
b. The Board may deny the extension request if it finds that the project, as approved and conditioned, is no longer viable. The Board must consider whether the project is capable of being financed, constructed, and marketed within a reasonable time frame. The Applicant must demonstrate the project’s viability upon request by the Board or the Director.
5. Planning Board Action.
a. After a duly noticed public hearing, the Board must determine whether it should grant a request for an extension. The requirements for noticing and conducting a public hearing must follow the requirements for a preliminary plan.
b. If voting to approve an extension, the Board must only grant the minimum time it deems necessary for the applicant to validate the plan.
c. The Board may only grant an extension to a preliminary plan within the plan’s APF validity period, unless a further extension is allowed by law.
d. An applicant may request, and the Board may approve, more than one extension.
e. Once a phasing schedule is approved by the Board as part of a preliminary plan approval, the Board must treat any revision or alteration to the schedule other than an amendment approved under Section 4.3.J.7 as a minor amendment to the preliminary plan. Board approval of a revised phasing schedule is required to extend the total length of the validity period.
I. Effect of failure to timely validate plan or secure an extension.
1. If a preliminary plan is not timely validated in whole or in part before the expiration of the validity period, any remaining portion of the plan is void. For multi-phased plans, the failure on the part of an applicant to timely validate a phase, in whole or in part, voids the balance of the preliminary plan approval for that phase and all subsequent non-validated phases.
2. In those instances where an applicant has timely validated only a portion of a plan and no extension is granted, the applicant seeking to develop only that portion of the project remains responsible for fully complying with all of the terms, conditions, and other requirements associated with the portion of the plan approval that has been implemented.
3. If a preliminary plan or a phase of the plan is not timely validated, any APF determination made by the Board associated with the void portion of the preliminary plan is also void. In such event, the applicant loses any further rights to claim any vehicle trips associated with the expired APF approval. The filing of a new preliminary plan application does not provide the basis for reclaiming vehicle trips lost by the termination of the APF approval.
4. A preliminary plan approval conditionally linked to a sketch plan or project plan approval under Chapter 59 expires if the sketch plan or project plan expires.
J. Revocation of approval.
1. The Board may revoke approval of a preliminary plan by resolution at any time before the Board approves the final plat covering the proposed preliminary plan.
2. To revoke a preliminary plan approval, except in response to a violation of this Chapter, the Board must find that completing a portion of the plan has been rendered impractical by reason of an amendment to the General Plan, or by a conflict with a proposed public improvement or other conditions or circumstances not previously considered by the Board that make the plan contrary to public health, safety, or welfare.
3. The Board must give a subdivider notice and an opportunity to be heard by the Board before taking any action to revoke approval of a preliminary plan. Notice to the owner and subdivider must be sent by certified mail at least 30 days before the date of the proposed action giving the time and place of the hearing. The notice must state the reasons for the proposed revocation.
K. Vacating an approved subdivision.
1. An applicant may request that the approval of a subdivision plan, for which no subsequent plats have been recorded, be vacated.
2. A request to vacate an approved subdivision plan must include proof of ownership and notarized signatures of all property owners or other persons who are authorized by the property owner.
3. The Director must approve the request to vacate the approved subdivision plan if the Director finds that the request is not contrary to the public interest.
(Mont. Co. Code 1965, §104-24; Ord. No. 6-39; Ord. No. 7-41, §§1, 2; 1973 L.M.C., ch. 25, §8; Ord. No. 8-46, §1; Ord. No. 8-73, §2; Ord. No. 8-92, §2; Ord. No. 10-12, §2; Ord. No. 10-60, §3; Ord. No. 10-71, §1; Ord. No. 11-18, §2; Ord. No. 11-28, §3; Ord. No. 11-63, §3; Ord. No. 12-16, §1; Ord. No. 12-19, §5.; Ord. No. 12-31, §1; Ord. No. 12-60, §§2, 3; Ord. No. 12-83, §2; 1995 L.M.C., ch. 13, §1; Ord. No. 13-26, §1; Ord. No. 13-36, §1; Ord. No. 13-51, §2; Ord No. 13-113, §1; Ord. No. 14-8, §2; Ord. No. 14-37, §1; Ord. No. 14-50, §1; Ord. No. 15-39, §1; Ord. No. 15-50, §1; Ord. No. 15-66, §1; Ord. No. 15-67, §1; Ord. No. 16-05, §1; Ord. No. 16-16, §1; Ord. No. 16-26, §1; Ord. No. 16-27, §1; Ord. No. 16-33, §1; Ord. No. 16-35, §1; Ord. No. 17-04, §1; Ord. No. 17-20, §1, Ord. No. 17-31, §1; Ord. No. 18-04, §2; Ord. No. 18-19, §2; Ord. No. 18-31, §1; Ord. No. 19-22, §3.)
Editor’s note—Portions of Sections 4.1, 4.2 and 4.3 [formerly §50-35] are quoted in Maryland-National Capital Park and Planning Commission v. Town of Washington Grove, 408 Md. 37; 968 A.2d 552 (2009) and cited in Cinque v. Montgomery County Planning Board, 173 Md. App. 349, 918 A.2d 1254 (2007). In Maryland-National Capital Park and Planning Commission v. Silkor Development Corp., 246 Md. 516, 229 A.2d 135 (1967), the court held that the 1963 amendments to the Maryland-Washington Regional District Act eliminated the right to require approval of a development plan within sixty days of submission. The “default provisions” of the Act only apply if the County adopts them. Section 4.2.D.3 [formerly §Waters Landing Ltd. Partnership v. Montgomery County, 337 Md. 15, 650 A.2d 712 (1994). Portions of Sections 4.1, 4.2 and 4.3 [formerly §50-35] are cited in Montgomery County v. Waters Landing Limited Partnership, 99 Md.App. 1, 635 A.2d 48, wherein the court held development impact tax valid. Portions of Sections 4.1, 4.2 and 4.3 [formerly §50-35] are cited in Washington Suburban Sanitary Commission v. TKU Associates, 281 Md. 1, 376 A.2d 505 (1971). Sections 4.1, 4.2 and 8.1 [formerly §§50-34 to 50-36 and, prior to that, §§104-23 through 104-25] are quoted in Gruver-Cooley Jade Corporation v. Perlis, 252 Md. 684, 251 A.2d 589 (1969).
The requirement in §4.2.D.3 [formerly §50-35(k)] concerning a determination of adequate public facilities prior to approval of a subdivision plan is mentioned in connection with a discussion of Montgomery County’s growth policy in P. J. Tierney, Maryland’s Growing Pains: The Need for State Regulation, 16 U. of Balt. L. Rev. 201 (1987), at p. 237.
See County Attorney Opinion dated 9/7/07 discussing methods of acquiring the construction of infrastructure for development districts. See County Attorney Opinion dated 7/26/07 discussing multiple issues deriving from the Clarksburg Master Plan and related issues regarding development districts. See County Attorney Opinion dated 11/5/99 describing the authorization for the Department of Public Work and Transportation to provide a recommendation to the Maryland-National Capital Park and Planning Commission regarding road access.
Ord. No. 19-12, § 3, states: Automatic Extensions.
(a) Notwithstanding any provision of portions of Section 4.3.J to the contrary, the validity period of any determination of adequate public facilities that was valid on March 31, 2009, or for which a timely application for an extension of the validity period was pending on March 31, 2009 is automatically extended for 8 years after the date when the validity period would otherwise have expired. This 8-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(b) Notwithstanding any provision of portions of Section 4.3.J to the contrary, the validity period of any determination of adequate public facilities that was valid on March 31, 2011, or for which a timely application for an extension of the validity period was pending on March 31, 2011, is automatically extended for 6 years after the date when the validity period would otherwise have expired. This 6-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(c) Notwithstanding any provision of portions of Section 4.3.J to the contrary, the validity period of any determination of adequate public facilities that was valid on March 31, 2013, or for which a timely application for an extension of the validity period was pending on March 31, 2013, is automatically extended for 4 years after the date when the validity period would otherwise have expired. This 4-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(d) Notwithstanding any provision of portions of Section 4.3.J to the contrary, the validity period of any determination of adequate public facilities that was valid on March 31, 2015 or for which a timely application for an extension of the validity period was pending on March 31, 2015, is automatically extended for 2 years after the date when the validity period would otherwise have expired. This 2-year extension must be treated for all purposes as part of the validity period that was extended.
(e) Notwithstanding any provision of portions of Section 4.3.J to the contrary, the validity period of any determination of adequate public facilities that was valid on July 28, 2020, or for which a timely application for an extension of the validity period was pending on July 28, 2020, is automatically extended for 2 years after the date when the validity period would otherwise have expired. This 2-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
Ord. No. 19-12, § 4, states: Automatic Extensions:
(a) Notwithstanding any provision of Section 4.2.G to the contrary, the validity period of any preliminary subdivision plan that was valid on March 31, 2009, or for which a timely application for an extension of the validity period was pending on March 31, 2009, including any separate phase of a multi-phase plan, is automatically extended for 8 years after the date when the validity period would otherwise have expired. This 8-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(b) Notwithstanding any provision of Section 4.2.G to the contrary, the validity period of any preliminary subdivision plan that was valid on March 31, 2011, or for which a timely application for an extension of the validity period was pending on March 31, 2011, including any separate phase of a multi-phase plan, is automatically extended for 6 years after the date when the validity period would otherwise have expired. This 6-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(c) Notwithstanding any provision of Section 4.2.G to the contrary, the validity period of any preliminary subdivision plan that was valid on March 31, 2013, or for which a timely application for an extension of the validity period was pending on March 31, 2013, including any separate phase of a multi-phase plan, is automatically extended for 4 years after the date when the validity period would otherwise have expired. This 4-year extension includes any extension granted automatically by any previous subdivision amendment and must be treated for all purposes as part of the validity period that was extended.
(d) Notwithstanding any provision of Section 4.2.G to the contrary, the validity period of any preliminary subdivision plan that was valid on March 31, 2015, or for which a timely application for an extension of the validity period was pending on March 31, 2015, including any separate phase of a multi-phase plan, is automatically extended for 2 years after the date when the validity period would otherwise have expired. This 2-year extension must be treated for all purposes as part of the validity period that was extended.
(e) Notwithstanding any provision of Section 4.2.G to the contrary, the validity period of any preliminary subdivision plan that was valid on July 28, 2020, or for which a timely application for an extension of the validity period was pending on July 28, 2020, including any separate phase of a multi-phase plan, is automatically extended for 2 years after the date when the validity period would otherwise have expired. This 2-year extension must be treated for all purposes as part of the validity period that was extended.
Ord. No. 17-20, §2, concerning Tier 4 density, and §4, concerning effective dates, state:
Sec. 2. Certification of Tier 4 density. Within 5 days after this ordinance becomes law [September 18, 2012], the Planning Director must submit the Tier Map to the Maryland Department of Planning, with all data required by Maryland’s Sustainable Growth and Agricultural Preservation Act of 2012, to verify that the average density of the Tier IV area is no greater than one unit for every 20 acres.
Sec. 4. Effective date. This ordinance takes effect as follows:
(a) Except for Section 4.3.F.3.f [formerly §50-35(e)(7)], this ordinance takes effect on the date the ordinance becomes law [September 18, 2012].
(b) Section 4.3.F.3.f [formerly §50-35(e)(7)] takes effect on the date the Maryland Department of Planning certifies the Tier IV area as being less dense than one dwelling unit for every 20 acres. [Maryland Department of Planning letter of December 21, 2012 to the Montgomery County Planning Department, states: “MDP’s finding is that the County’s established zoning and subdivision rules already adequately limit residential subdivision sufficiently so there is no need for the additional restrictions that would be imposed by Tier IV restriction.”]
Subsection 4.3.E.5.c is derived, in part, from Subsection 50-35(q), which was added by Ord. No. 12-31, §1. Section 2 of that ordinance reads as follows:
“Sec. 2. Interim protection of roads.
“(a) This Ordinance applies to the roads identified on Exhibit A [following §49-80] as rustic roads and exceptional rustic roads as if the County Council had so classified the roads under Section 49-78.
“(b) The Rustic Roads Advisory Committee must advise the Planning Board regarding the significant features of these roads that must be preserved when the roads are improved. These significant features have the same status as those identified by the County Council under Section 49-78.
“(c) The County Council may add or delete all or part of a road from the list on Exhibit A by resolution after a public hearing if:
“(1) the Planning Board asks the Council to delete a road from the list so that the Board can require roadway improvements not permitted by this Act;
“(2) the Rustic Roads Advisory Committee asks the Council to add or delete a road from the list; or
“(3) an applicant for a preliminary plan of subdivision asks the Council to delete a road from the list so that the applicant can make roadway improvements not permitted by this Act.
“(d) This Section is not effective after December 31, 1996.”
Subsection 4.3.J.5 is derived, in part, from Subsection 50-35(h), which was amended by Section 2 of Ord. No. 12-60. Section 3 of that ordinance reads as follows:
Sec. 3. For preliminary plans and record plats approved prior to the effective date of this ordinance, which remain valid, the validity period and procedural requirements and limitations for plan extensions are as established under this ordinance.
Section 5 of 1995 L.M.C., ch. 13, reads as follows: “Sec. 5. A regulation that implements a function assigned to the Department of Health and Human Services by 1995 LMC ch. 13 continues in effect but is amended to the extent necessary to provide that the regulation is administered by the Director of the Department of Health and Human Services.”