On June 13th at 10 AM, the Kent County Commissioners will be holding a hearing on a consequential zoning text amendment (ZTA). The proposed amendment aims to increase the height of industrial buildings in the 301 corridor to 60 feet within specific zoning districts. This will modify the existing land use ordinance to include this change. Text amendments bring about changes to provisions, regulations, or building standards within a zoning districts and they can have unintended consequences and unforeseen implications for the community.
A land use ordinance encompasses various elements of a zoning code, including defining zoning districts with specific regulations and guidelines governing land uses, density, building height, and setbacks. These regulations can either permit certain uses by right or as a special exception or conditional use requiring additional review thereby ensuring the proposal meets specific criteria that protects against negative impacts on neighboring properties or the community.
The proposed ZTA is a piecemeal approach to the land ordinance that calls for the allowed height of warehouses to be increased from 45 feet to 60 feet, by right, in what is being defined as the 301 corridor, an approximately 8.5-mile strip of land, 2 miles wide, 1 mile east and west of 301, from Cecil to Queen Anne’s County- an area of more than 16 sq. miles. This ZTA theoretically applies to all industrial buildings within this corridor on parcels currently zoned Commercial, Employment Center or Industrial.
All parcels within the corridor that are currently zoned Industrial or Employment Center, located to the north of the interchange in the Massey area, lack access to public water and sewer service, and there are no plans being considered by Kent County for providing those services. Consequently, the number of properties capable of taking advantage of this proposed height increase is considerably narrowed.
Inspection of the existing public facilities makes it evident that only a small number of parcels surrounding the 301 corridor at the 291 interchange can utilize this ZTA in the near term. These are the properties that have or will have access to public water and sewer with the current treatment plant in Millington or the planned Millington wastewater treatment facility, projected to be complete in a 2 or 3-year time period, that is necessary for the development of industrial structures.
Furthermore, the smaller parcels in the area around the 291 interchange which are not owned by a single landholder are either already developed or lack the development envelopes required for constructing the intended form of distribution-style warehouses.
Therefore, it is the approximately 400 acres of land owned by Mr. Russ Richardson, through his LLCs in the area surrounding the interchange, that are advantaged by this amendment. Article III §33 of the Maryland State Constitution prohibits the enactment of such special laws related to “particular persons or things of a class”. The provision was adopted to prevent influential individuals or entities from securing an undue advantage.
Upon review there are several observations about this ZTA that indicate it is problematic and a contravention of Maryland’s Special Law provision: (1) The narrowly focused ZTA permits a type of development at a scale previously not contemplated by our zoning ordinance, (2) The current land use ordinance is adequate to serve the public interest (3) The development zone in question can be developed without the need for this amendment and can be done in a way that protects the public interest more readily than the proposed ZTA (4) The ZTA has been arbitrarily constructed by narrowing the law to only apply to certain properties in one specific geographical location, (5) This has been further constricted by the required access to public water and sewer services, 6) In practice the ZTA advantages goes to the chief proponent of the height increase who will gain the most from the passage, and (7) Kent County is in the process of a comprehensive rezoning where such changes to the land use ordinance could be holistically reviewed.
The question of industrial building heights should be examined by incorporating it into the Commissioners’ current comprehensive rezoning process where its impacts relative to other zoning changes could be contemplated appropriately, thereby avoiding the legal question of special laws. It is not just the narrow construction of this ZTA that is problematic, but also its procedural posture that makes it obvious that it was designed to benefit one person’s business pursuits.
The Kent County Planning Commission has provided an unfavorable recommendation for the amendment. A prudent course of action for the Kent County Commissioners would be instruct the Planning Department Staff to assess the height issue within the framework of the comprehensive rezoning process rather than a single amendment to the current land use ordinance. This would ensure a thorough evaluation of the impacts and prevent any potential violation of Maryland’s Constitution.
Janet Christensen-Lewis is Chair of the Board of Directors of Kent Conservation and Preservation Alliance. KCPA recently premiered the Documentary Kent County’s Storied Landscape; Place, Past & Present produced by MPT. Available on demand on PBS.Org