Planning Board Grants 5th Extension for Junction Project to Gain Approval

Planning Board Grants 5th Extension for Takoma Junction Project to Gain Approval

On September 15 2021, the Montgomery County Planning Board agreed to give Neighborhood Development Company (NDC) a fifth extension to obtain approval for their proposed Takoma Junction project. NDC now has until January 20 2022, (approximately 90 additional days), to attempt to get approval from the State Highway Administration (SHA) before returning to the Planning Board. To date, the SHA has found both the layby and the exit drive unsafe (in four separate rulings), despite multiple design attempts by NDC. 

In approving this fifth extension request, individual Planning Board members appeared to be unfamiliar with the details of the project. Notwithstanding the Planning staff’s recommendations that both the extension and project be denied, and the City’s recommendation that its own project be disapproved, Board Chair Casey Anderson nevertheless opined (watch starting at 3:15:00 on the video) that this would be a great project for the City if only SHA would approve the layby.  

Community Vision for Takoma (CVT) is taking this opportunity to straighten out some of the confusion, evident at the Board hearing, surrounding the current proposal. 

These are the facts:

  1. The layby is not the only problem cited by the City. 

The City Council voted on June 23 2021 for a resolution to recommend the Planning Board vote to disapprove the project. In doing so, the City Council cited not only the lack of approval from the SHA, but four other longtime issues NDC has been unwilling or unable to solve: lack of meaningful public space, a problematic rear facade, lack of parking for surrounding businesses, and inadequate stormwater treatment. 

The Planning Board may not concern itself with these issues, but the City does, according to their own resolutions and development agreement, and their vote in June. But the City needs to stand firm on these issues, explain them to the Planning Board, and pull out of the project if the Planning Board approves it. 

  1. The layby is not the only problem cited by the SHA. They have repeatedly cited the inadequate sight lines for drivers coming from the garage exit ramp driveway (the egress) as a continuing safety problem. 

NDC has pushed back by comparing their proposed exit to the current exit from the City lot. In a June 16 2021 letter from NDC to the SHA, NDC asserts, “We note that the same sight line issue exists today from the Intersection…and the entry point to the City’s parking lot on Carroll Avenue.”

However, this is a false comparison.

The proposed development would reduce the sight line by moving the driveway from the current location 40 to 50 feet to the west, closer to the fire station and blind corner. Additionally, the current lot is completely above ground, allowing exiting drivers to have a longer period to observe traffic coming from the west. The proposal, with vehicles exiting from an underground parking garage, limits that observation time. The proposal would also have drivers exiting from a darkened garage at the end of the workday and looking west into the setting sun. This visual adjustment time increases danger to bicycles and pedestrians as well as motorized vehicles in this heavily used area.

There are additional issues regarding the sight line. The September 7 2021 letter from SHA to NDC notes that there are other obstacles to the sight line (fencing, tree, parked cars), so the issue is not just one of absolute distance.

  1. No one should have been surprised by SHA’s repeated rejection of layby designs in 2021. Since the beginning, many concerns have been expressed about the layby. 
  • In 2015 when NDC was chosen by the City Council, Councilmember Seth Grimes wrote that the absence  of a layby in NDC’s initial design was one of the reasons he voted to choose NDC for the project. He said a layby would be a “step in the wrong direction,” and that the “Co-op has said this approach would be unworkable.” (NDC switched to a layby design only after winning the project).
  • In the spring of 2019, County Department of Transportation (MCDOT) reviewers noted that the layby “should be removed” because of safety concerns.
  • In the spring of 2019, the Chair of the County’s Historic Preservation Commission (HPC) agreed with a resident who called the layby “an abomination.”
  • In the fall of 2019, the HPC staff noted that Commissioners were “unanimous in their concerns’ about the layby,” but were told to back off, which they did.
  • In the spring of 2020, MCDOT again noted multiple reasons why the layby location could not be approved.
  • So in 2021, the SHA’s four consecutive rejections of layby designs should not have been surprising.
  1. Just because other developments have pickup or loading in front of the building doesn’t mean the Junction layby would be safe. 

In public comments at the Board hearing, and as the Board considered the extension, there was discussion of how some other county locations handle loading or pickups, and a suggestion that these should be considered precedents for the approval of the Junction layby. However, none of these other developments have the same specific constraints and conditions of the proposed Junction layby:

  • Marriott Headquarters (Bethesda) has a circle loop, not a layby.
  • Avocet Tower (Bethesda) has a smaller pickup and drop-off layby for cars, but would not accommodate large trucks. 
  • Ace Hardware (Takoma Park) has loading by trucks on the street, but was never analyzed by State or County reviewers because it is an informal arrangement.

Comparison Table 

Key Differences in the Four Projects


Project Variables
Marriott HeadquartersAvocet TowerAce HardwareTakoma Junction
Lay-by?NoYesNoYes
Pull-in, pull-out without right-angle turns?NoYesYesYes
Used for deliveries?NoNoYesYes
Trucks only (no drop-off/pick-up)?NoNoYesYes
Used for trash hauling?NoNoNoYes
Large trucks involved?NoNoYesYes
Deliveries/trash emphasize food-service?NoNoNoYes
Use shared by multiple properties?NoNoNoYes
Unconsolidated deliveries and hauling?N/AN/ANoYes
Delivery path conflicts with ADA route?N/AN/AYesYes
2-way adjacent traffic?NoNoYesYes
Adjacent stop line, crosswalk, and signal?NoNoNoYes
Adjacent bus stop?NoNoNoYes
Adjacent driveway?NoNoNoYes
Adjacent garage entrance/exit?NoNoNoYes
Requires crossing dedicated bike lanes? NoNoNoYes
Located down-block from a fire station?NoNoNoYes
Area needed for emergency access?UnclearUnclearNoYes
Routes traffic onto residential streets?NoNoNoYes
Routes traffic through unsignalized intersections?NoNoNoYes
Along block-long merge and crossing of two State Highway routes?NoNoNoYes
Visibility issues for approaching traffic?NoNoYesYes
Adjacent to walking route to school?NoNoNoYes
Approved by SHA & Planning Board?YESYESNot reviewedNO
  1. The community does not want to work with a company that tried to kick the Co-op off the lot. 

The most recent and relevant gauge of community support for this project is not the City election almost a year ago (when all incumbents were re-elected, whether or not they supported the development).

In April, NDC sent a cease and desist order to try to kick the Co-op off the lot, threatening its ability to function as a business. This aggressive action towards the Co-op caused some residents who had supported the development (or were neutral) to oppose it. We know this because of comments on the feedback page set up by the City last spring. Approximately 380 out of 395 comments opposed going forward with NDC and the project, or 96% of responses. Clearly, the City heard this feedback—which is the most recent and direct gauge of community opposition to the plan—before voting to recommend that the Planning Board disapprove the project. The relationship between the City and NDC is unclear at this point, and their weekly meetings on the Junction have stopped.

The Stormwater Issues

 

 

The proposed Takoma Junction development plan is now going through the County approval process. But the City must still approve the tree plan, and the stormwater plan. So, stormwater experts with Community Vision for Takoma (CVT) analyzed the developer’s stormwater plan, and wrote this one-page summary of the many flaws in the plan.

 

TAKOMA JUNCTION DEVELOPMENT STORMWATER ISSUES

  • The City of Takoma Park has not reviewed stormwater aspects of the current proposal; the City’s approval letter in the record is based on the defunct April 2018 plan.
  • The City review of the older plan was incomplete; it did not consider many aspects of the proposal.
  • Neither the plan nor the City’s review considered the fact that nearby residents are already experiencing water management problems.
  • Currently most of the stormwater at the site flows from the City-owned parking lot to Carroll Avenue where it eventually enters City storm drains.  The developer’s plan would divert this water to a storm drain on Columbia Avenue.
  • Neither the City nor the developer conducted necessary studies including geotechnical, hydrogeological or storm sewer capacity studies.
  • Neither the soils at the construction site nor the soils on the wooded slope have been well characterized.  Clay layers in soil can make water management much more difficult; the limited studies available show clay layers on the site.
  • Stormwater can either run off over the surface or infiltrate the soil to become groundwater. This has implications for both surface drainage management and the ability of subsurface water to enter basements.  Neither the City nor the developer has studied groundwater at the site.
  • Neither the City nor the developer has assessed the potential impact of this additional stormwater on the downstream storm water management system.  It is not known if this system has enough capacity or what the potential impacts could be.
  • The proposed stormwater plan is under-designed given recent rainfall patterns and the anticipated effects of climate change in the future. The design, operation, and efficacy of the proposed stormwater management system is unclear.  The overall efficiency of the proposed green roofs has not been determined.
  • There is no analysis of water containing sediment that can accumulate in the large excavation proposed for this site.
  • In summary, it is difficult to see how this proposal meets the Maryland State guidance of controlling stormwater to the maximum extent practicable.
  • Based on all this, it is recommended that a refined comprehensive analysis, that (1) includes stormwater, groundwater and construction water and (2) is based on geotechnical and hydrogeological data, be undertaken by an independent competent authority with complete transparency.
  • This is a summary of a longer report linked here.

Straddling Two Lots at Takoma Junction

The Takoma Junction developer (NDC) chosen by the City plans to buy the auto repair business adjacent to the City lot. In the current site plan, the developer shows a footprint straddling the two lots, with the entrance to the garage on the lot owned by the developer. Here, lawyer and Takoma Park resident Jessica Landman writes to City officials to ask about the risks to a development that sits partly on City land, and partly on land owned by the developer.

Mon, Jun 11, 2018

Dear Mayor Stewart and Takoma Park City Council Members,

I am writing today to renew, more urgently, a request made to you during the public comment period at the City Council meeting on May 2nd.

In May I noted that the proposed Takoma Junction development plan anticipates construction of a building that straddles two parcels of land. It would bind the city to a 99-year lease, even though the city does not own or control one parcel that is vital to accessing the entire structure.

At the time I asked the City to investigate and inform the community whether this highly unusual arrangement poses a fiscal risk. As a lawyer and taxpayer, these questions concerned me greatly.

So far, there has been no response. The City’s silence left me wondering whether action was being taken or not.

Before the City adopts a Resolution committing to this project, it is vital that you determine whether there is a significant legal obstacle that could cause the City to have legal problems or incur unforeseen costs that the community would have to shoulder.

While I am not a real estate lawyer, I did undertake a preliminary review of the relevant rules in Montgomery County. From what I can discern, a building permit for a structure that straddles two parcels owned by two different parties will not be issued.

I urge the City to have its lawyers follow up, to determine whether they agree with the following analysis:

1.  Under Montgomery County’s building code, a building permit may only be issued for a building located on ‘a lot or parcel shown on a plat recorded in the County Land Records or on a parcel exempt from recording requirements under Section 50-3.3’. [1]

2.  The County’s subdivision rules define a ‘lot’ as a ‘discrete area of land that is described by a plat recorded in the land records for which the Department of Permitting Services may issue a building permit.’ [2]  The County Zoning Code uses nearly identical language to define a lot: ‘A lot is a contiguous area of land that is described by a plat recoded in the land records for which a building permit can be issued.’

Obviously, the two adjacent parcels at the Junction, while contiguous, are not on one ‘lot’ that is recorded in the land records. (Nor are they on a parcel exempted under the specific terms of the code.)

3.  At the Junction site there are two lots, which will not even be owned by the same entity. As such, the site does not meet the definition of a lot for which a building permit can be issued. The County’s rule is very clear; with the exception of a few exemptions irrelevant in this instance,

‘Construction of a new principal building may only occur on a lot or parcel shown on a plat recorded in the County Land Records.’[3]

My question for the City and the City’s lawyers is: Have you investigated how these constraints affect the Junction project?

If so, please share what you have learned.

If not, please undertake the appropriate due diligence to find out whether the project as currently contemplated would be unable to obtain a building permit.

Frankly, apart from the possibility that no permit would be issued for the proposed straddling two-lot project, the irregularity of the proposed arrangement strikes me, as a taxpayer, as risky. Could NDC – or a successor owner – who controls a portion of the parcel use that control to extract further, future fees or concessions from the City? What would happen in the event NDC defaults? Once can imagine many unhappy scenarios. Those may be the very reasons why the County rules forbid a construction permit for a structure that is not on a single ‘lot’. And even if a construction permit can somehow be obtained, the irregularity also suggests that investors will find the project risky, either steering clear or charging higher lending rates, which would in turn trigger higher rents.

Thank you for responding promptly to this letter; it is vital that you resolve these questions before you make a determination whether to approve the proposed project. It would be negligent for our City officials to fail to address these concerns.

Sincerely,

Jessica Landman

Ward 1

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