Section 4.3. Technical Review

1. A preliminary plan must substantially conform to the applicable master plan or Urban Renewal Plan, including maps and text. However, if a site plan is not

required under Chapter 59, Article 59-7.3.4, the Board may find that events have occurred to render the relevant master plan or Urban Renewal Plan recommendation no longer appropriate.

2. A preliminary plan that requires a site plan approval under Chapter 59, Article 59-7.3.4 may exceed any dwelling unit per acre or floor area ratio (FAR) limit recommended in a master plan, as provided in Chapter 59.

B. Block design.

1. Residential blocks. The Board must approve the length, width, and shape of any residential block as follows:

a. Length. The length of a residential block must be compatible with existing development patterns and the land use goals for the area of the subdivision. The maximum length of a block is 1,600 feet.

b. Width. Blocks must be designed with sufficient width to provide 2 tiers of lots. The Board may approve exceptions to block width design for blocks adjacent to heavy traffic ways, railroads, streams, drainage courses, or for land uses where it is appropriate to establish blocks with 1 tier of lots.

c. Pedestrian paths. The Board may require paths for pedestrian access to schools, playgrounds, parks, and other public areas and through long blocks.

d. Multi-unit or apartment blocks. The Board must review and approve the design and arrangement of access roads within a subdivision for multi-unit or apartment dwellings, together with the required parking facilities and pedestrian walks, to determine that resulting blocks are a suitable length and width for pedestrian and vehicle circulation.

2. Nonresidential blocks. The Board must determine if the blocks designed for business or industry are a suitable length and width, including adequate provision for pedestrians, parking, deliveries, and truck maneuvering.

C. Lot design.

1. General requirements.

a. Lot dimensions. Lot size, width, shape, and orientation must be appropriate for the location of the subdivision and for the type of

development or use contemplated, considering the recommendations of the master plan and the applicable requirements of Chapter 59. The dimensions of a lot must be able to accommodate any proposed building and other infrastructure deemed necessary to serve the lot, including but not limited to any accessory structure, stormwater management, parking, access drive, and off-street service.

b. Flag lots. The Board must not approve flag lots, except where unusual topography, environmental conditions, or the position of the tract in relation to surrounding properties and rights-of-way permit no other feasible way to subdivide and the Board determines that appropriate separation between building envelopes can be achieved. In approving a flag lot, the following provisions apply:

i. in residential zones, the Board must require building restriction lines as needed to provide separation of at least 80 feet between the building envelope of the proposed flag lot and:

(a) the building envelopes of all lots that are adjacent to the rear lot line of the proposed flag lot; and

(b) the building envelopes of all lots that are between the proposed flag lot and the road on which it fronts;

ii. the Board may require additional building restriction lines to ensure appropriate separation between building envelopes and to provide appropriate location of the building envelope within the lot; and

iii. all building restriction lines must be shown on the plat.

c. Lots to abut on a public or private road. Except as specified below, every lot must abut on a public or private road. A public road must be dedicated or donated to public use or have acquired the status of a public road under Chapter 49. A private road must be shown on a record plat.

The Board must not approve lots that do not abut a public or private road, except where unusual topography, environmental conditions, or the position of the tract in relation to surrounding properties and rights-of-way permit no other feasible way to subdivide, and the Board determines that appropriate separation between building envelopes will be achieved. In approving a lot that does not abut a public or private road, the following provisions apply:

i. the Board must not approve more than two lots in a subdivision that do not abut a public or private road;

ii. the lots will be served by a private driveway that serves no other lots without frontage;

iii. in residential zones, the Board must require building restriction lines as needed to provide separation of at least 80 feet between the building envelope of the proposed lot without frontage and:

(a) the building envelopes of all lots that are adjacent to the rear lot line of the proposed lot without frontage; and

(b) the building envelopes of all lots that are between the proposed lot without frontage and the road from which it is accessed;

iv. the Board may require additional building restriction lines to ensure appropriate separation between building envelopes and to provide appropriate location of the building envelope within the lot;

v. all building restriction lines must be shown on the plat; and

vi. the access to lots with no road frontage must be adequate to serve the lots for emergency vehicles and for installation of public utilities. In addition, the lots must be accessible for other public services and not detrimental to future development of adjacent lands.

d. Side lines. Side lines of interior lots must to the extent possible be aligned perpendicular to the road line or radial to a curved road line.

e. Through lots. The Board must not approve through lots, except where unusual topography, orientation, or the size of the subdivision permit no other feasible way to subdivide.

f. Alley or pedestrian paths for residential lots. If a mid-block alley or pedestrian right-of-way is provided in a residential subdivision for detached houses, the subdivider must increase the lot widths adjoining the alley or right-of-way to provide for a parallel side building restriction line 15 feet from the alley or right-of-way.

D. Public sites and adequate open spaces. A preliminary plan must provide for required public sites and adequate open space areas.

1. Master planned sites. When a tract being subdivided includes a proposed site for a park, playground, school, or other public use recommended in the applicable master plan, and that use is deemed necessary by the Board and applicable public agency, the preliminary plan must show the site for the use for dedication or acquisition and subsequent record plat. Land that is not dedicated may be acquired by donation, purchase, or condemnation, or reserved under Subsection 5.

2. Local recreation. The Board must require platting and dedication to public use of adequate spaces for recreation wherever it is reasonable to do so, considering the recommendations in the applicable master plan, the circumstances existing where a subdivision is located, and the size and character of the subdivision. The subdivider may be required to provide what is determined by the Board to be an area relevant to the recreational needs of the present and future inhabitants of the subdivision. Whenever the necessary recreational area is larger than the subdivider is required to dedicate, the balance of the needed area must be reserved for acquisition under Subsection 5.

3. Area for public roads and associated utilities and storm drainage.

a. Roads. In its consideration of the approval of a subdivision, the Board must require dedication and platting of adequate area to provide public roads and other public transportation facilities. These must be coordinated with other existing, planned, or platted roads, other features in the district, or with any road plan adopted or approved as a part of the General Plan.

b. Rights-of-way and easements other than roads. The Board may require dedication to public use of rights-of-way or platting of easements necessary for public uses, such as pedestrian paths, equestrian trails, bicycle facilities, water and sanitary sewer, and stormwater management and storm drainage facilities. The Board must approve the extent, location, and width of each pedestrian path, equestrian trail, and bikeway right-of-way after considering the master plan. The extent and width of water and sanitary sewer rights-of-way must be determined by the Washington Suburban Sanitary Commission in its jurisdiction. The extent and width of drainage rights-of-way must be determined by the Department of Permitting Services after receipt of drainage studies prepared by the applicant’s engineer.

4. Areas not suitable for public use.

a. When a preliminary plan includes a proposed dedication of land to public use, the Board must determine if the land is suitable for the intended public use. In its evaluation, the Board must consider, among other relevant factors, any criteria for the intended use adopted by the

receiving agency and the agency’s recommendations, the natural features of the site, and the extent of site preparation work. Site preparation may include excavation of rock, excessive grading, grading of steep slopes, remedial environmental measures, and similar work required to prepare the site for the public use. In evaluating the natural features of a site, the Board may require the applicant to perform soil borings or to provide other detailed topographical or subsurface information not otherwise submitted under Section 4.1.B. The applicant’s engineer must certify the information provided to the Board. Factors relevant to a determination of the magnitude of site preparation work include estimated costs, acreage, agency experience with similar sites and construction industry practices.

b. Based on the analysis, the Board may refuse to approve the dedication and:

i. require the rearrangement of lots in the subdivision to provide for a suitable site;

ii. permit the applicant to pay for additional site preparation that makes the site suitable for the public use; or

iii. with the concurrence of the receiving agency, permit the applicant to provide an alternative location offsite.

5. Reservation.

a. Procedure. When the Board determines that a tract being subdivided includes land that is necessary for public use but will not immediately be acquired by donation, dedication, purchase, or condemnation when the plat is recorded, the Board must determine the need to reserve the land. The Board may require a reservation for a period of time up to 3 years for road rights-of-way, public school and building sites, parks, playgrounds, recreational areas, or other public purposes.

i. Referral to agency concerned with acquisition. If a reservation of land appears to be in the public interest, the Board must refer the plan to the public agency concerned with acquisition for consideration and report. The Board may propose alternate areas for such reservation and must allow such public agency 30 days for reply. The agency’s recommendation, if affirmative, must include a map showing the boundaries and area of land to be reserved and an estimate of the time required to complete the acquisition.

ii. Resolution. The Board must approve a declaration of public reservation by resolution, stating the period during which the reservation is effective. Notice of the same must be carried once each in two newspapers of general circulation in the County and a plat must be recorded in the land records of the County showing in detail the land so reserved. Certified copies of the resolution must be sent to the property owner and to the agency concerned with acquisition.

iii. Taxes. The Board must advise taxing and assessing bodies of all public reservations, and such public reservations must be exempt from all County and local taxes during the reservation period.

iv. Preservation. During the reservation period, any use of the reserved land that involves constructing buildings or structures, removing trees, or clearing and grading must be approved by the Board. A person must not remove or destroy trees, topsoil, or cover; grade; or build a storm drainage structure that discharges water on the reserved land, except according to a storm drainage plan approved by the Department of Permitting Services or the Department of Transportation. Nothing in this Section relieves the landowner from the responsibility to maintain the property according to law or prohibits the owner from removing weeds or trash from reserved land or from selling the reserved land after approval of the Board.

v. Posting. The Board must post properties in reservation with an appropriate sign, warning against violation of the preservation provisions and the penalties for a violation.

vi. Extension. After the initial reservation period, the Board may extend the reservation period upon request of the property owner if the Board determines that the reserved land continues to be necessary for public use. Any extension must not exceed 3 years.

b. Expiration of plan. The expiration or revocation of approval of a preliminary plan must not affect a reservation if, before the expiration date, a reservation plat has been recorded in the Land Records.

E. Roads.

1. Plan requirements.

a. Master plan roads. Preliminary plans must include roads shown on any adopted Master Plan of Highways and Transitways, in satisfaction of the Road Design and Construction Code. Where applicable, an approved plan must include recommendations of the State Highway Administration for construction and access to State roads. Where private roads are specifically recommended by a master plan, the roads must be provided to the standards for private roads under this Section.

b. Continuation of roads. The subdivision must provide for continuation of any existing roads (constructed or recorded) in satisfaction of the Road Design and Construction Code, unless otherwise determined by the Board, considering the recommendations of other appropriate agencies.

c. Future subdivisions. A tract in a preliminary plan application must be divided to not preclude future road openings and further logical subdivision of adjacent land.

d. Alleys. The Board, in consultation with the appropriate transportation agency, may require alleys where they are necessary to provide access.

e. Railroad crossings. A preliminary plan involving new or existing roads crossing railroad tracks must provide an adequate right-of-way, including approach right-of-way and slope easements, for construction of an underpass or overpass unless otherwise determined by the Board, considering the recommendations of other appropriate agencies.

f. Residential roads paralleling railroads. A residential road paralleling a railroad must be located at least 160 feet from the track to provide lots with sufficient depth backing to the railroad right-of-way.

g. Railroad tracks. Existing railroad tracks must not be included within the rights-of-way of roads, except for crossings or rail transit lines outside the paved traveled portion of the road.

2. Design standards.

a. Right-of-way. Area for a road on a subdivision plan must include the full width of all rights-of-way recommended for the applicable road classification in the adopted master plan and in the Road Design and Construction Code.

i. The Board may approve a narrower than standard road right-of- way if it meets minimum fire access requirements and the Board finds that a narrower right-of-way is environmentally preferable, improves compatibility with adjoining properties, or allows better use of the tract under consideration.

ii. In determining the width of a less than standard right-of-way, the Board must consider:

(a) the recommendations of the Department of Transportation or other applicable state or municipality transportation permitting agency;

(b) the amount of traffic expected to use the proposed roads;

(d) the increased traffic, travel lane, and right-of-way requirements that would be created by maximum use and development of land using the road.

b. New roads, sidewalks, etc. The subdivider must design and construct the roads, alleys, bicycle facilities, sidewalks, and pedestrian ways with drainage, street trees, and other integral facilities in each new subdivision as required by the appropriate transportation or permitting agency.

c. Mid-block pedestrian right-of-way. The minimum right-of-way must be 20 feet for a mid-block pedestrian right-of-way.

d. Drainage easement. The minimum for an enclosed drainage easement must be 20 feet, unless otherwise determined by the Department of Permitting Services or other applicable public agency.

e. Non-through roads. The Board must not approve any road that does not connect to another road at its beginning and end, unless a determination is made that:

i. a through road is infeasible due to a property’s unusual shape, size, topography, environmentally sensitive areas, or the characteristics of abutting property;

ii. the road provides access to no more than 75 dwelling units:

iii. the road, excluding alleys, is properly terminated in a cul-de-sac or other turnaround; and

iv. the road is less than 500 feet in length, measured along its centerline to the nearest through street, unless the Board determines that a longer length is necessary because of the unusual shape, size, topography, or environmentally sensitive areas of the subdivision.

f. Intersection.

i. Roads must be laid out to intersect as nearly as possible at right angles. The Board must not approve a proposed intersection of new roads at an angle of less than 70 degrees.

ii. The distance between proposed road intersections, excluding alleys and driveways, must be spaced as shown in the table below, as measured from the centerline of the intersections. When the Board finds that a greater or lesser distance is appropriate, the Board may specify a greater or lesser distance than otherwise required after considering the recommendation of the transportation agency responsible for maintaining the road. On streets with operating speeds of 30 mph or higher, protected crossings shall be included, as defined in Chapter 49 of the County Code. Protected crossings include HAWK signals, all-way stop controlled intersections, or grade-separated crossings. Protected crossing spacing targets are shown in the table below, as measured from the centerline of the intersections. Engineering judgement is needed to determine the ultimate placement and spacing between signals, with a focus on sight lines, road safety, location of trip generators, bus stops, and prevalent crossing patterns. Where ranges are provided, the lower end of the range is recommended in commercial areas, on BRT corridors, and near schools (or similar destinations).

Road Classification	Locale	Distance Between Intersections (FT)	Maximum Protected Crossing Spacing Targets (FT)
Neighborhood Street and Neighborhood Yield Street	All	200	N/A
Connectors, Neighborhood and Area	Downtown and Town Center	300	600
	Suburban	400 – 600	600 – 1,200
	Country	400 – 800	600 – 1,200
Industrial	All	400	800
Country Road	All	400	1,300 – 2,700
Country Connector	All	800	1,300 – 2,700
Downtown Boulevard	All	400	400
Town Center Boulevard	All	600	600
Boulevard	All	800	800 – 1,000
Downtown Street	All	400	400
Town Center Street	All	400	400
Controlled Major Highway	All	1,000*	1,300
Parkway	All	800*	800

*NOTE: Median breaks on divided roadways must be no closer than 600 feet except in Downtown Areas.

iii. Corner lots at an intersection must be truncated by straight lines joining points 25 feet back from the theoretical property line intersection in each quadrant. When more or less width is needed for traffic safety and operations, the Board may specify a greater or lesser truncation than otherwise required. Any alley intersection or abrupt change in alignment in a block must have the corners truncated sufficiently for safe vehicular turning.

g. Horizontal alignment. In all public and private residential streets and culs-de-sac, the alignment must be designed so that all deflections in horizontal alignment are accomplished through segments of circular curves properly incorporated into the design. The minimum permitted centerline radii must be:

i. Neighborhood Connectors . . . . . . 300 feet

ii. Neighborhood Streets and Neighborhood Yield Streets more than 500 feet in length . . . . 150 feet

iii. Neighborhood Streets and Neighborhood Yield Streets less than 500 feet in length . . . . . . 100 feet

The Board must specify greater radii when safety requires. A tangent at least 100 feet long must be used between two reverse curves, except in a Neighborhood Street or a Neighborhood Yield Street. The Board may specify a lesser radius when the Department of Transportation has previously issued a design exception for a similar design.

3. Additional requirements for public roads.

a. Slope easement. When required for construction or road maintenance, the subdivision plan must establish an easement for a 2:1 slope along both sides of each public road right-of-way for public use. If a Public Utility Easement (PUE) is required along a road, that PUE is to be graded when the road is constructed on a side slope not to exceed 4:1; the 2:1 maximum side slope may commence outside the limit of the PUE. The Slope Easement must provide adequate room for proper transition grading at the toe or top of slope. The easement must be at the front setback line per zoning, or as determined by a site-specific slope study in coordination with the road grade approved under this Chapter. A retaining wall instead of a slope easement may be allowed by the reviewing agency.

b. Existing public roads. In a preliminary plan application containing lots fronting on an existing State, County, or municipally maintained road, the subdivider must provide any additional required right-of-way dedication and reasonable improvement to the road in front of the subdivision, including sidewalks and bicycle facilities, as required by Master Plan, the Road Design and Construction Code or by a municipality, whichever applies.

c. Storm drainage. The subdivider must grade and provide drainage structures and storm sewers according to a storm drain plan and permit approved by the Department of Transportation and Department of Permitting Services or applicable municipality, in coordination with the construction of public roads.

4. Additional standards for private roads.

a. Designating Private roads.

In general, except when a private road is identified in a master plan, the creation of public roads is preferred; an applicant must justify the use of a private road based upon the criteria below and the specific compelling circumstances of the property being developed.

b. Justification for a private road:

A subdivider who proposes a private road must provide a list of proposed design elements that do not meet public road standards, including context-sensitive road design standards or a previously approved Design Exception, and justify why those design elements are necessary for the proposed development. The justification for a private road must not be based solely on the installation of non-standard amenities that could be addressed under a Maintenance and Liability Agreement with the County.

c. Standards. Private roads must be built to the construction specifications of the corresponding public road concerning paving detail and design data, including surface depth and structural design. The road must be designed in accordance with sound engineering principles for safe use, including: horizontal and vertical alignments for the intended target speed; adequate typical sections for vehicles, pedestrians, and bicyclists; compliance with the Americans with Disabilities Act; drainage and stormwater management facilities; intersection spacing and driveway locations; parking; lighting; landscaping or street trees; and utilities. The width and cross section of a private road must meet the right-of-way specified in a master plan or be equal to the corresponding public road standard unless modified by the Board. Private roads must conform to the horizontal alignment requirements of this Chapter. If a road is allowed to be a private road, the approval of the road will not require the Department of Transportation to approve a Design Exception for any aspect of the road’s design.

d. Road classifications. When the Department of Transportation determines that the proposed road is not needed to maintain area circulation, provide continuous corridors to serve the general public and quasi-public needs such as communication, utility, and future potential transportation or other systemic needs that serve the public on a long-term basis, and is not needed to be part of the network modeled for area capacity, consideration will be given to making the following roads private:

i. Only roads classified as either Downtown Street, Town Center Street, Industrial, Neighborhood Street, Neighborhood Yield Street, or Alley may be considered by the Board to be private. All other road classifications must be public unless specifically permitted to be a private road by a master plan.

ii. Private roads with improvements above or below the pavement are only allowed in projects that require site plan review and approval.

iii. Private roads should not be permitted if they will create a segmented road ownership pattern, unless approved by the Planning Board.

iv. Private roads must not be permitted if they will negatively affect development of other properties.

v. Except where a Master Plan indicates that a Downtown Street or Town Center Street could be private, a Downtown Street or Town Center Street may be a private road only when it is not required to provide an adequate traffic level of service. A private Downtown Street or Town Center Street may be approved only when the proposed road is either not a connector between two higher classification roads or a road that is not planned to extend beyond the boundary of the preliminary plan.

vi. An industrial road may be a private road only when the road is part of roads internal to the industrial site and the road is not a connector between higher classified roads.

vii. A Neighborhood Street or a Neighborhood Yield Street may be a private road only when it:

(a) connects to no more than one higher classification road and the road does not need to be extended onto adjacent property to facilitate a future subdivision of land; or,

(b) when it has a cul-de-sac less than 500 feet in length.

e. Certification. Before the Board may approve a preliminary plan, the subdivider must have an engineer certify that each private road has been designed to meet the standards required by this Section; however, when a site plan is required under Chapter 59, Article 59-7.3.4, the certification may be provided anytime before the approval of the site plan. The subdivider must then certify to the Department of Permitting Services that all construction complies with the design before release of the surety for the road.

5. Additional roadway provisions.

a. Road names. The Board must approve any road name before it is used. The Board must not approve any road name that is already used, or closely resembles any road name already used, anywhere else in the County. If a new road is an extension of or in a direct line with an existing road, the Board should continue the name of the existing road.

b. Off-site sidewalks and bikeways. In approving a preliminary plan, the Board may, after considering the recommendation of the Department of Transportation or other applicable transportation agency, require a developer to provide a reasonable amount of off-site sidewalks or bikeway improvements. Off-site sidewalks or bikeway improvements may be required to provide necessary connections from the proposed development to an existing sidewalk or bikeway, an existing or master plan proposed bus or other public transit stop, an existing or proposed bikeshare station, or a public facility. The Board must find that such facilities will be used by residents or users of the development or for handicapped access. The developer must not be required to obtain any right-of-way to build or improve a sidewalk or bikeway unless required under another provision of law.

c. Rustic roads. In approving a preliminary plan, the Board must not require improvements that are contrary to Chapter 49, Article 8 or Executive Regulations governing rustic roads. The Board may waive any requirement of Sections 4.3.E.2.b and 4.3.E.3.b that is incompatible with the rustic road or substitute any alternative requirement that is consistent with the goals of the rustic roads law. The Board may only require those improvements that retain the significant features of the road identified by the Council for preservation. If the Board is otherwise directed by this Section to require improvements that are contrary to the rustic roads law or Executive Regulations, the Board must consider the recommendations of the Rustic Roads Advisory Committee and evaluate the feasibility of trip reduction and alternative road improvements to the local roadway network. If the Board determines that no feasible alternative exists, it may require improvements that are necessary for traffic safety or operational requirements.

d. Road grade approval. No final grading, sidewalk or pavement construction, or installation of utilities must be permitted in the bed of any proposed public or private road in any preliminary plan until the grade has been approved under this Chapter.

e. Pedestrian paths. When a pedestrian path is included in a preliminary plan, the subdivider must grade and construct the path according to the plan approved by the Board, Department of Permitting Services, or applicable municipality.

f. Street lights. The subdivider must provide street lights under the standards required by the Road Design and Construction Code. The Department of Transportation may waive any requirement under this Subsection for any new subdivision that abuts a rustic road if the requirement is incompatible with the rustic road, or may substitute any alternative requirement that is consistent with the goals of the rustic roads law.

g. Traffic calming. The Board, after considering the recommendation of the appropriate transportation agency, may require any traffic calming feature as a condition of subdivision approval.

6. Platting roads. The area for roads, when shown on a record plat, must be shown on a record plat to the full width of the required right-of-way.

a. A public road must be dedicated to public use.

b. A private road must be platted as a road parcel, except as allowed by Subsection c, and remain open and unobstructed for use at all times as part of the project’s common area.

c. In the Commercial/Residential, Employment, Industrial, and Planned Unit Development zones, a private road may be delineated within a lot on the plat if the Board finds it appropriate to permit a structure that would otherwise cross a lot line created by a road parcel.

d. Restrictive covenant for private roads. All private roads must be recorded with a restrictive covenant approved by the Board that at a minimum ensures:

i. that the road is designed and constructed in a manner that satisfies the requirements of this Chapter, and all requirements made by the Montgomery County Fire Marshal for emergency access, egress, and apparatus;

ii. regular maintenance of the road by the property owner, with certification of regular inspections, and appropriate financial reserves required for short- and long-term maintenance and capital repairs;

iii. that the road remains open at all times, unless approved by the Department of Permitting Services and the Fire Marshal; and

iv. that the County and the Commission must be fully indemnified from all liability claims, demands, losses, or damages to person or property.

F. Water supply and sewage disposal facilities.

1. General. Before approving a preliminary plan, the Board must consider the availability of water and sewage facilities to the subdivision. The Board must consider the recommendation of the Washington Suburban Sanitary Commission and the County Department of Environmental Protection, as applicable, concerning the proper type of water supply and sewage disposal.

2. Requirements.

a. The applicant must install or assure installation of any required public or private water and sewage disposal systems for each lot.

b. Central water and sewer systems. All lots must have access to public central water and sewer facilities, and necessary private connections to such facilities, when conditions affecting the subject property result in one of the following determinations:

i. public water and sewer connections are available to the proposed lots for existing mains;

ii. existing public water and sewer mains can be extended to serve the lots; or

iii. the County Department of Environmental Protection determines that an interim central water supply or sewage disposal facility, or both, must be constructed for public health and safety, pending future extension of the WSSC system or other public system.

c. Use of County roads and State roads. For locations of any private connection to the public system within County or State road rights-of-way, the subdivider must obtain necessary permits to use public roads from the County or State, as applicable.

3. Growth tiers.

a. The Board must review any plan that includes residential lots under the Growth Tier rules as follows:

i. in this Subsection:

(a) a major subdivision is a division of land that would create 8 or more residential building lots; and

(b) a minor subdivision is a division of land that would create 7 or fewer residential building lots.

b. The Board must not approve any subdivision that would be served by one or more septic systems on land located in the Tier I area.

c. The Board must not approve any major subdivision that would be served by one or more septic systems on land located in the Tier II area.

d. The Board may approve a subdivision for any number of residential lots that would be served by one or more septic systems on land located in the Tier III or Tier IV area.

e. The official map displaying the Growth Tier areas as allowed under the Maryland Sustainable Growth and Agricultural Preservation Act of 2012 is located on the Planning Department website. The Council may amend the official map either by:

i. adopting Tiers in a General Plan amendment; or

ii. an amendment under Section 10.7.

The latest version of the map may be accessed from the Planning Department website at www.montgomeryplanning.org.

G. Markers and monuments.

1. The subdivider must have metal property line markers, approximately 1/2-5/8 inch in diameter and 18 inches in length, or other generally accepted survey markers, placed in the ground at all lot corners, intersections of roads, intersections of roads and alleys with record plat boundary lines, and at all points on road, alley and boundary lines where there is a change in direction or curvature, unless such point coincides with the location of a reference monument. All markers must be properly set in the ground before the roads and alleys are accepted for public maintenance. For projects that do not include public roads, the owner and land surveyor must certify to the Department of Permitting Services that all property corner markers have been set by a land surveyor.

2. The land surveyor hired by the owner must place markers and monuments in the ground after road grading and paving in the subdivision and grading and landscaping of adjacent lots are completed. The markers and monuments must be located as specified on the plat. The land surveyor must certify to the Department of Permitting Services, or other appropriate governmental agency or the municipality, that all survey monuments and markers are in place before the County or municipality accepts any road or alley established by the plat for maintenance. The amenity bonds must not be released by M-NCPPC until the land surveyor certifies to the Department of Permitting Services that all survey monuments are in place.

H. Stormwater management. All stormwater management requirements must satisfy Chapter 19.

I. Utilities. The developer must ensure the installation of utilities in all subdivisions.

1. Installation.

a. Within the property being subdivided, the developer must install any new utilities underground.

b. The developer may also be required to underground any above-ground or overhead utilities that exist either within the property being subdivided or within the road right-of-way along the frontage of the property being subdivided, if the Board determines it is necessary based upon the size and density of a proposed subdivision.

2. Completion. The Board must not approve a final plat until the developer demonstrates that the applicable utility companies or public agencies are able to provide utility services to the subdivision and installation by the developer has been assured under Section 10.2.

3. Easements. The subdivider must establish utility easements to allow for installation of all utility facilities servicing the proposed subdivision and the future extension thereof to any property adjoining the subdivision that:

a. provide the minimum area needed to maintain each of the facilities as determined by the Board in consultation with the utility providers;

b. are adjacent to, or accessible from, a road right-of-way;

c. are available to all utilities; and

d. are shown on the record plat.

With Department of Permitting Services approval, utilities may be placed within conduit in public road rights-of-way. Utilities placed within private road rights-of-way by a developer must be in conduit.

J. Adequate Public Facilities (APF).

1. Definitions. Words and phrases used in this Subsection have the meanings indicated in Chapter 8, Section 8-30.

2. Applicability. The Board may only approve a preliminary plan when it finds that public facilities will be adequate to support and service the subdivision. Public facilities and services to be examined for adequacy include roads and transportation facilities, sewer and water service, schools, police stations, firehouses, and health clinics.

3. Exemptions. The following developments are exempt from the requirements of this Subsection:

a. exclusively residential development on a lot or parcel recorded by plat before July 25, 1989, or otherwise recorded in conformance with a preliminary plan approved before that date;

b. any place of worship or use associated with a place of worship that does not generate peak hour vehicle trips that exceed the limits of the Growth and Infrastructure Policy traffic test; and

c. any addition to a school associated with a place of worship that existed before July 25, 1989.

4. Approval procedure.

a. Each applicant for a preliminary plan must submit sufficient information for the subdivision to demonstrate the expected impact on and use of public facilities and services by the subdivision.

b. The Board must consider the recommendations of the Executive and other agencies in determining the adequacy of public facilities and services under the Growth and Infrastructure Policy or other applicable guidelines.

c. If the Board finds, under criteria and standards adopted by the Council, that additional transportation facilities or traffic mitigation measures are necessary to ensure that transportation facilities will be adequate to serve the subdivision and to meet the transportation goals established by a master plan or the Growth and Infrastructure Policy for that portion of the County, the subdivision plan may also be subject to the execution of a Traffic Mitigation Agreement (TMAg) at the discretion of the Board.

5. Validity period.

a. Initiation date. The adequate public facilities validity period starts on the later of:

i. 30 days from the date of mailing indicated on the written resolution; or

ii. if an administrative appeal is timely noted by any party authorized to file an appeal, the date upon which the court having final jurisdiction acts, including the running of any further applicable appeal periods.

b. If a corrected resolution is issued, the initiation date remains the date of mailing indicated on the original resolution.

c. A determination of adequate public facilities made under this Chapter is timely and remains valid:

i. for 12 years after the initiation date for any plan approved after July 24, 1989 but before October 19, 1999;

ii. for no less than 5 and no more than 12 years after the initiation date, as determined by the Board when it approved the plan, for any plan approved after October 18, 1999 but before August 1, 2007;

iii. for no less than 7 and no more than 12 years after the initiation date, as determined by the Board when it approved the plan, for any plan approved after March 31, 2009 but before April 1, 2017;

iv. for no less than 5 and no more than 10 years after the initiation date, as determined by the Board when it approved the plan, for any plan approved after July 31, 2007 and before April 1, 2009, or after March 31, 2017; and

v. for no less than 5 and no more than 10 years after the application is approved, as determined by the Board when it approved the application, for any adequate public facilities determination made in association with a site plan under Chapter 59 or building permit under Chapter 8 approved after July 31, 2007 and before April 1, 2009, or after March 31, 2017.

d. If an applicant requests a longer validity period than the minimum specified in Subsection 4.3.J.5.a, the applicant must submit a development schedule or phasing plan for completion of the project to the Board for its approval.

i. At a minimum, the proposed development schedule or phasing plan must show the minimum percentage of the project that the applicant expects to complete in the first 5 or 7 years, whichever is the applicable minimum, after the preliminary plan is approved.

ii. To allow a validity period longer than the specified minimum, the Board must find that the size or complexity of the subdivision warrant the extended validity period and would not be adverse to the public interest. The Board must condition a validity period longer than the specified minimum on adherence to the proposed development schedule or phasing plan, and may impose other improvements or mitigation conditions if those conditions are needed to assure adequate levels of transportation or school service during the validity period.

6. Validity period – County arts or entertainment use.

a. A determination of adequate public facilities made under this Chapter is timely and remains valid for 10 years after the date of the conveyance of land to the County, or possession of building space by the County for an arts or entertainment use, under a preliminary plan for an optional method of development project approved under Section 59-C-6.2356 of the zoning ordinance in effect on October 29, 2014.

b. The Board must grant an application to extend the validity period established under this paragraph for an additional 5 years if:

i. at least 20 percent of the approved development, excluding the arts or entertainment use, either separately or in combination:

(a) has been built;

(b) is under construction;

(d) is subject to a valid lease; or

(e) has had a site plan approved under Sections 59-7.3.4 or 7.7.1.B; or

ii. at any time during the 2 years before the application for extension being filed, the vacancy rate for class A office buildings in the Central Business District in which the project is located reaches 10 percent for direct and sublet space combined, as measured by a commercial Multiple Listings Service benchmark; or

iii. the applicant makes a binding commitment to the County to make a contribution, as compensation for potential loss of property tax revenues, an amount equal to $2 for each square foot of approved taxable improvements and thereafter makes the contribution within 6 months of final approval of the extension.

c. The validity period is extended for the duration of any government imposed moratorium, or other government action resulting in a similar effect, that would prevent the applicant from:

i. completing the regulatory approvals necessary for obtaining a building permit; or

ii. obtaining a building permit.

d. If the applicant proposes to change a use in a project that is approved under Section 59-C-6.2356 of the zoning ordinance in effect on October 29, 2014, and the new use would have the same or lesser impact as the original determination of adequate public facilities, the adequate public facilities approval for the project remains valid.

7. Extensions.

a. Application. Only the Board may extend the validity period for a determination of adequate public facilities; however, a request to amend any validity period phasing schedule may be approved by the Director if the length of the total validity period is not extended.

i. The applicant must file an application for extension of an adequate public facilities determination or amendment of a phasing schedule before the applicable validity period or validity period phase expires.

ii. The applicant must submit a new development schedule or phasing plan for completion of the project for approval.

iii. For each extension of an adequate public facilities determination:

(a) the applicant must not propose any additional development above the amount approved in the original determination;

(b) the Board must not require any additional public improvements or other conditions beyond those required for the original preliminary plan;

(c) the Board may require the applicant to submit a traffic study to demonstrate how the extension would not be adverse to the public interest;

(d) an application may be made to extend an adequate public facilities period for a lot within a subdivision covered by a previous adequate public facilities determination if the applicant provides sufficient evidence for the Board to determine the amount of previously approved development attributed to the lot; and

(e) if the remaining unbuilt units would generate more than 10 students at any school serving the development, the Board must make a new adequate public facilities determination for school adequacy for the remaining unbuilt units under the school test in effect at the time of Board review.

b. The Board may approve an amendment to the new development schedule approved under Section 4.3.J.7.a.ii if the applicant shows that financing has been secured for either:

i. completion of at least one new building in the next stage of the amended development schedule; or

ii. completion of infrastructure required to serve the next stage of the amended development schedule.

c. Exclusively residential subdivisions. The Board may extend a determination of adequate public facilities for an exclusively residential subdivision beyond the otherwise applicable validity period if the Department of Permitting Services has issued building permits for at least 50 percent of the entire subdivision before the application for extension is filed. The Board may approve one or more extensions if the aggregate length of all extensions for the development does not exceed:

i. 2.5 years for a subdivision with an original validity period of 7 years or less; or

ii. 6 years for a subdivision with an original validity period longer than 7 years.

d. Nonresidential or mixed-use subdivisions.

i. The Board may extend a determination of adequate public facilities for a preliminary plan for nonresidential or mixed-use development beyond the otherwise applicable validity period if:

(a) the Department of Permitting Services issued building permits for structures that comprise at least 40% of the total approved gross floor area for the project;

(b) all of the infrastructure required by the conditions of the original preliminary plan approval has been constructed, or payments for its construction have been made; and

(c) the Department of Permitting Services either issued occupancy permits or completed a final building permit inspection for:

(1) structures that comprise at least 10 percent of the total gross floor area approved for the project within the 4 years before an extension request is filed; or

(2) structures that comprise at least 5 percent of the total gross floor area approved for the project within the 4 years before an extension request

is filed, if structures that comprise at least 60 percent of the total gross floor area approved for the project have been built or are under construction.

ii. For any development that consists of more than one preliminary plan, the requirements of 7.d.i apply to the combined project. A project consists of more than one preliminary plan if the properties covered by the preliminary plans of subdivision are contiguous and were approved at the same time.

iii. The length of any extension of the validity period granted under 7.d.i must be based on the approved new development schedule under 7.a.ii, but must not exceed:

(a) 2.5 years for a subdivision with an original validity period of 7 years or less; or

(b) 6 years for a subdivision with an original validity period longer than 7 years.

iv. The extension expires if the applicant has not timely requested an extension and the development is not proceeding in accordance with the phasing plan, unless the Board or the Director has approved a revision to the schedule or phasing plan.

v. In addition to the extension permitted under 7.d.iii, the Board may approve one or more additional extensions of a determination of adequate public facilities, not to exceed a total of 2.5 or 6 years, as applicable, if:

(a) development that comprises 30% or less of the total approved gross floor area for the project remains to be built of either the entire approved development or the share of the development to be built by that applicant; or

(b) the applicant will commit to reduce the amount of unbuilt development by at least 10%, and the validity period for the amount to be reduced will expire as scheduled.

e. Applications with significant infrastructure investment. The Board may extend an initial determination of adequate public facilities once for up to 12 more years beyond the otherwise applicable validity period if the Board finds that:

i. the preliminary plan or APF approval for the development required a significant commitment of funds by the applicant, amounting to at least $3 million, as adjusted annually from February 2017 by the consumer price index, to comply with specified infrastructure conditions;

ii. the applicant has met or exceeded the required infrastructure conditions during the original validity period; and

iii. the applicant’s satisfaction of the required infrastructure conditions provides a significant and necessary public benefit to the County by implementing infrastructure goals of an applicable master plan.

f. The validity period of a finding of adequate public facilities is not automatically extended under any circumstance, including when an applicant has completed all conditions imposed by the Board at the time of preliminary plan approval to meet adequate public facilities requirements.

g. If a new adequate public facilities determination is required under this Subsection, the procedures in Chapter 8, Section 8-32 apply.

h. No combination of extensions of APF validity approved under Section 4.3.J.7 may exceed a total of 12 years from the date of the original APF expiration.

K. Environment.

1. Forest conservation. If a forest conservation plan is required under Chapter 22A, the Board must not approve a preliminary plan or any extension until all applicable requirements of that Chapter are satisfied. The Board must make compliance with a required forest conservation plan a condition of any approved preliminary plan, including any plan reviewed on a preliminary or final basis.

2. Restriction of subdivision for environmental protection.

a. Affected land.

i. Floodplains. The Board must restrict subdivision or development of any property that is located in the 100-year floodplain as required by the Department of Permitting Services under Chapter 19, Article III.

ii. Unsafe Land. The Board must restrict the subdivision or development of any land it finds to be unsafe for development because of potential for flooding or stream erosion, soils with structural limitations, unstabilized slope or fill, steep slopes, or similar environmental or topographical conditions.

iii. Trees, forests, and environmentally sensitive areas. The Board may restrict the subdivision or development of land to protect environmentally sensitive areas and achieve the objectives of Chapter 22A relating to conservation of tree and forest resources.

b. Restrictions.

i. General. In addition to any requirement imposed under Chapter 22A, the proposed preliminary plan may be restricted under this Section by:

(a) deletion or rearrangement of proposed lots, roads, utilities, and other facilities;

(b) the establishment of building restriction and land disturbance limit lines, and other protective measures or conditions; or

(c) requirement of conservation easements, deed restrictions, or covenants over portions of lots or unplatted parcels to be recorded.

ii. Building restriction line. The Board may require a building restriction line shown on the plat to protect floodplain and other environmentally sensitive or unsafe building areas.

iii. Limit of disturbance line. The Board may require a limit of disturbance line to protect environmentally sensitive areas or unsafe land.

iv. Floodplain or unsafe land on a lot. The Board may allow a platted lot to contain floodplain or unsafe land when there is sufficient safe ground to erect a building within the required setbacks of the zoning classification. The Board may require a building restriction line on the plat. The restriction line must provide at least a 25-foot setback between any building and the unsafe areas. A greater setback must be provided where necessary for positive drainage between the building and unsafe area.

v. Regulations. The Planning Board may use regulations adopted under Chapter 22A to administer this Section.

L. Residential cluster subdivision.

1. Purpose. The cluster method of subdivision is intended to promote both flexibility in lot size and variety of housing types in residential communities without changing existing densities or neighborhood character. This method of development is also intended to encourage the preservation of existing topography, priority forests, and environmentally sensitive areas while providing useful community green or open space.

2. Conditions for use. The use of the cluster method of development is subject to Board approval and the following conditions and requirements:

a. the requirements in Chapter 59 in the applicable zone;

b. except in the Rural Cluster zone or as recommended by a master plan in the Residential Estate-2C zone, when WSSC will serve the development by public water and sewer;

c. the open space and green areas proposed by the applicant in the cluster development must comply with the general purpose of cluster development, and the application must include a plan detailing the post-development maintenance responsibilities and use of those areas;

d. the Board must count the land dedicated to public use for school and park sites in the tract area for the purpose of calculating density, and allow the use of the resulting density development of the remaining land when this can be accomplished in compliance with the purposes of this Section; and

e. future subdivision of land within the approved cluster subdivision that would result in the creation of additional lots is not permitted after the property is platted, except for amendments to cluster subdivisions that were approved prior to October 30, 2014 and that result in land being reviewed and approved as part of an Optional Method MPDU Development application with at least 25% moderately priced dwelling units (MPDUs), provided that the remaining portion of the cluster subdivision complies with all applicable development standards.

3. Procedure for approval.

a. In addition to any other required information in the preliminary plan application, the applicant must include a statement outlining the ownership and use of the common open space and green area within the subdivision, and a plan showing the construction staging of all improvements. The Board must make the staging plan part of the preliminary plan approval and must be subject to approval by the Board.

b. The Board must determine whether the site is appropriate for cluster development and will accomplish the purposes of the cluster method of development. In making this determination, the Board must consider the following:

i. the influence that the proposed development may have on existing or future development in nearby areas;

ii. the spatial relationship between the buildings and the open space and green area;

iii. the location, character, area, and dimensions of the open space and green area and its usefulness for the common recreational or other purposes for its intended use;

iv. the adequacy of the staging plan;

v. the nature of the site; and

vi. the use and zoning of nearby land.

M. Burial sites

1. When a proposed preliminary plan includes a burial site of which the applicant has actual notice or constructive notice or that is identified on the Montgomery County Cemetery Inventory within the site, the applicant must satisfy the following requirements:

a. The applicant must use the Montgomery County Planning Board Guidelines for Burial Sites to establish the location of the burial site. Unless Planning Department Staff believes that vandalism concerns dictate otherwise, the corners of the burial site must be staked in the field before preliminary plan submittal. If required, the stakes must be maintained by the applicant until preliminary plan approval.

b. An inventory, that may include photographs, of existing burial site elements (such as walls, fences, gates, landscape features, fieldstones, grave locations, and tombstones) and their condition must be submitted as part of the preliminary plan application.

c. The placement of lot lines must promote long-term maintenance of the burial site and protection of existing elements.

d. The burial site must be protected by arrangements sufficient to assure the Planning Board of its future maintenance and preservation, as specified in the Montgomery County Planning Board’s guidelines for burial sites.

2. The Planning Board must require appropriate measures to protect the burial site during the development process.

3. Except under circumstances identified in Subsection 4, a burial site and graves must remain where they are found.

4. The Planning Board may determine that it is necessary to allow the relocation of a burial site if:

a. the retention of the burial site would result in denying the property owner reasonable use of their property;

b. the location of necessary infrastructure cannot be achieved; or

c. the possible improvements to the visibility and accessibility of the site by the relocation of graves make relocation appropriate.

5. Any Planning Board approval to allow the relocation of remains is conditioned on the State Attorney’s approval to allow the relocation under State law.

N. Landscape and lighting plans.

1. For places of worship and institutional uses, a landscaping and lighting plan, which must also include the parking lot layout, must be submitted for review and approval concurrently with the preliminary plan. (Mont. Co. Code 1965, §§104-9, 104-10, 104-11, 104-13, 104-14, 104-15, 104-16, 104-17, 104-18, 104-19, 104-20, 104-21, 104-24; Ord. No. 5-156, §1; Ord. No. 6-5, §§1, 2; Ord. No. 6-31, §1; Ord. No. 6-39; Ord. No. 6-45, §§1, 2; Ord. No. 6-88, §1; Ord. No. 6-129, §2; Ord. No. 6-192; Ord. No. 6-207, §§1, 2, 3; 1972 L.M.C., ch. 16, §13; Ord. No. 7-19, §1; Ord. No. 7-31, §1; Ord. No. 7-32, §1; Ord. No. 7-41, §§1, 2, 3; 1973 L.M.C., ch. 25, §8; Ord. No. 8-16, §§1, 2; Ord. No. 8-41, §2; Ord. No. 8-46, §1; Ord. No. 8-49, §1; Ord. No. 8-73, §2; Ord. No. 8-91, §1; Ord. No. 8-92, §§2, 3; Ord. No. 9-11, §2; Ord. No. 9-70, §1; Ord. No. 10-12, §§2, 4, 5; Ord. No. 10-41, §1; Ord. No. 10-42, §1; Ord. No. 10-47, §2; Ord. No. 10-60, §§2, 3; Ord. No. 10-71, §1; Ord. No. 10-73, §1; Ord. No. 10-77, §1; Ord. No. 10-78, §3; Ord. No. 11-18, §2; Ord. No. 11-28, §§1, 2, 3; Ord. No. 11-53, §2; Ord. No. 11-63, §§2, 3; Ord. No. 11-80, §1; Ord. No. 12-16, §1; Ord. No. 12-19, §§2, 3, 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. 13-65, §1; Ord. No. 13-91, §§2 and 3; Ord. No. 13-113, §1; Ord. No. 14-8, §§1, 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. 16-10, §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. 71-31; §1; Ord. No. 17-36, §2; Ord. No. 18-04, §§1, 2; Ord. No. 18-19, §2; Ord. No. 18-31, §1; 2020 L.M.C., ch. 36, § 1; 2021 L.M.C., ch. 3, §1; Ord. No. 19-22, §3; Ord. No. 19-40, §1.)

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 §50-35(k)] is cited in 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.

2020 L.M.C., ch. 36, § 2, states: Expedited Effective Date, Transition. The Council declares that this legislation is necessary for the immediate protection of the public interest. This Act takes effect on January 1, 2021. The amendments made in Section 1 must apply to any requests to extend the validity period for a determination of adequate public facilities received by the Planning Board on or after January 1, 2021.

Ord. No. 19-12, § 2, states: Repeal of prior uncodified provisions. The uncodified provisions of Ordinance Numbers 16-35, 17-04, 17-31 and 18-04 which appear in Sections 50.3 and 50.4 are repealed.

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.”

Editor’s note—Portions of Section 3.2, 3.6 and 4.3 [collectively, formerly §50-20] are quoted in Remes v. Montgomery County, 387 Md. 52, 874 A.2d 470 (2005). Portions of the above sections are cited in Waters Landing Ltd. Partnership v. Montgomery County, 337 Md. 15, 650 A.2d 712 (1994); are described in Donohoe Construction Company, Inc. v. Montgomery County Council, 567 F.2d 603 (4th Cir. 1977); and are cited in Logan v. Town of Somerset, 271 Md. 42, 314 A.2d 436 (1974).

Section 4.3.D.3 [formerly §50-22 and, prior to that, §104-11] is cited in Mayor of Rockville v. Geeraert, 261 Md. 709, 276 A.2d 642 (1971).

Section 4.3.F, derived in part from former §50-27, is cited in Washington Suburban Sanitary Commission v. TKU Associates, 281 Md. 1, 376 A.2d 505 (1971). The predecessor to prior subsection F.2.b. (Central water and sewer systems) [formerly §50-27(b) (Central water and sanitary systems)] is cited in Schultz v. Montgomery County Planning Board, 230 Md. 76, 185 A.2d 502 (1962).

Prior Section 50-29 (Lot Design) [now §4.3.C] is quoted in Remes v. Montgomery County, 387 Md. 52, 874 A.2d 470 (2005). Former Section 50-29 [now §4.3] is interpreted in Capital Commercial Properties, Inc. v. Montgomery County Planning Board, 158 Md. 88, 854 A.2d 283 (2004). Section 4.3 [formerly §50-29 and, prior to that, §104-18] is cited and quoted in part in Lee v. Maryland-National Capital Park & Planning Commission, 107 Md.App. 486, 668 A.2d 980 (1995).

In Maryland-National Capital Park and Planning Commission v. Chadwick, 286 Md. 1, 405 A.2d 241 (1979), it was held that a commission resolution placing land in reservation pursuant to the above section which resolution did not provide for any reasonable uses to be permitted as a matter of right, and which resolution did not provide for compensation for the property owner, was unconstitutional, as the resolution amounted to a taking in the constitutional sense. Section 4.3 [formerly §50-31] is cited in Slattery v. Friedman, 99 Md.App. 106, 636 A.2d 1 (1994) and is described in Donohoe Construction Company, Inc. v. Montgomery County Council, 567 F.2d 603 (4th Cir. 1977).

See County Attorney Opinion dated 9/2/97 explaining that the director of the Department of Permitting Services has limited authority to grant a sidewalk waiver to avoid a sidewalk leading nowhere, but may not collect an “in lieu of” fee if a waiver is granted, unless it is authorized as an excise tax.

Section 1 of Ord. No. 14-50 deleted the sunset provision of the previous amendments altogether. Section 1 of Ord. No. 14-37, amending Section 5 of Ord. No. 13-36, states: “Sunset. On July 1, 2002, any function transferred by this Ordinance to the Department of Permitting Services reverts to the Department which administered that function before this Ordinance took effect.” Section 5 of Ord. No. 13-36 (sunset date of July 1, 1998) was previously amended by Section 1 of Ord. No. 13-113 (sunset date of July 1, 2001).

Section 2 of Ord. No. 12-31 reads as follows:

“Sec. 2. Interim protection of roads.

“(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.”

Res. No. 9-280, introduced and adopted on June 19, 1979, recognized the authority of the Maryland Department of Natural Resources to regulate construction within the one-hundred-year floodplain.

Disclaimer: This Code of Ordinances and/or any other documents that appear on this site may not reflect the most current legislation adopted by the Municipality. American Legal Publishing provides these documents for informational purposes only. These documents should not be relied upon as the definitive authority for local legislation. Additionally, the formatting and pagination of the posted documents varies from the formatting and pagination of the official copy. The official printed copy of a Code of Ordinances should be consulted prior to any action being taken. For further information regarding the official version of any of this Code of Ordinances or other documents posted on this site, please contact the Municipality directly or contact American Legal Publishing toll-free at 800-445-5588.

Hosted by: American Legal Publishing

Back to Code Library

Previous Doc

Next Doc