The County defines CEF as a “Community Enhanced Floating” district zone. Not only are these new zones controversial, the process by which they are being granted is illegal.
For those not familiar with zoning lingo, a CEF zone is a floating zone, which means it “floats” on top of an existing zone. A parcel owner can use either the regular zone or the floating zone, depending on which is more favorable for what is planned for the parcel. Unlike other zoning categories, CEF zones have few regulations (height, density, setbacks, etc.), which make them controversial. Because of the relaxed regulations, CEF developers get a lot more economic benefit. In fact, those who oppose CEF say it stands for “Customized Economic Freebies” (for the developers).
The intended benefit to communities is that CEF zones require more neighborhood enhancements and amenities. It is a simple trade-off – in return for relaxed rules, developers provide more to the community. Unfortunately, the criteria around these enhancements are loosely-defined in the regulations, and current CEF plans only provide small amenities, such as a bike trail and some park benches – amenities that should already be included in the development. We have not yet seen large neighborhood amenities in these plans.
For communities that take issue with a planned CEF nearby, take note. As I said earlier, no CEF zone granted by the Zoning Board should legally stand. This is because there is a discrepancy between the Howard County Charter and the Howard County Zoning Regulations. The Howard County Charter (Section 202(g), for those who want to check) states that ONLY the County Council has the authority to grant zoning changes, as they must be done via legislation. The ONE exception listed clearly is in a “change or mistake” case. If a property owner can prove that a mistake was made in prior comprehensive rezoning, then the zone can be granted outside legislation (i.e., via the Zoning Board).
By definition, floating zones do NOT have to prove mistake to be granted. Thus, legally, it is not the jurisdiction of the Zoning Board to grant CEF zones. They must be granted by the Council, and only by the Council. Since the Howard County Charter trumps the zoning regulations, I like to think of CEF as “Charter Enforcement Foils.”
In Howard County, the five Council members also function as the Zoning Board, so the same people are making the decision. Thus, is all this just an example of a distinction without a difference? Not really. When the County Council passes a piece of legislation (e.g., grants a CEF zone) it can be vetoed or taken to referendum. When the Zoning Board grants zoning, it can be appealed and taken to court. One can see pros and cons in either case.
The problem is that if CEF zones continue to be granted by the Zoning Board, developers will have zoning in legal limbo, and be vulnerable to litigation. The solution is simple, and is a win-win for both neighborhoods and developers. For now, CEF zoning should be handled as legislation, and voted on by the County Council. Developers will have more security with reliance on the legal basis of their zoning, and communities get their rights upheld. If the Zoning Board wants to grant CEF without legislation in the future, they must revise the Howard County Charter, which is then put to the ballot.
Just keeping it real here. This is a new zone, and only three plans exist with it so far. Let’s have the precedent set with abiding by the rules of the criteria, and the legally correct way to obtain it. Here is my request to the County Council/Zoning Board, “Set the bar high, so that this lucrative gift of zoning comes with a nice benefit, and not a low bar on what is defined as an enhancement to the community. It was supposedly instituted to give incentive to developers to provide more amenities. Make it so. In the meantime, opposition has a nice ace up their sleeve in litigation if it isn't granted correctly.”