Baltimore’s Zoning board was recently faced with an embarrassment: it had been doing something illegal for the past two decades.
Rebecca Witt, an attorney with the board since early 2022, most recently as its executive director, was before a City Council budget hearing, explaining the problem and the efforts made to correct it.
Until recently, the board had been rubber stamping side- and rear-yard setback variances and other exceptions from the zoning law, automatically granting the applications en masse.
As long as no one contested one of these requests, it was passed through along with others as part of a “consent docket” with no deliberation or testimony.
Only when an applicant faced opposition would the Board of Municipal and Zoning Appeals (BMZA) apply the law and require the applicant to show that the property was unique in some way, such as an odd-shaped lot, and therefore deserved a variance.
“We can’t just decide not to apply the law because there’s no opposition on the record,” Witt told the Ways and Means Committee.
Many applicants had gotten variances that they shouldn’t have, she said, observing that the arbitrary policy has led to inequity as well as violating the due-process clause of the 14th Amendment.
“Obviously certain neighborhoods or groups are more likely to participate in zoning hearings” and get the advantage of laws intended to protect “the public health, safety and welfare,” she said.
Other neighborhoods would be at a disadvantage, with residents less able to take time off of work, pay for lawyers or rally a Council member to intercede for them.
All that changed in January, when the board ditched the consent docket and began deliberating on all applications and voting on each application individually.
Inevitably, some people were turned down. And for that, Witt was raked over the coals yesterday by Council members who’d received angry constituent phone calls.
Isaac “Yitzy” Schleifer, representative of northwest’s 5th District, led the charge, honing in on Witt personally.
“There was the way things always worked on the BMZA, and it’s been clear that you – single-handedly, basically – have said, ‘This is is how things should start working,’” Schleifer said, commencing a blistering cross-examination.
“Do you think that you should have communicated with the Council. . . before making this decision to completely pivot on the way things have always been done?”
BMZA director is raked over the coals by Council members who had received angry constituent calls.
“Is the board, under your leadership, being advised to find a way to make things work? Or are they finding a way to not do things?” he continued. “Cause I got a can-do attitude. So if somebody comes to me with a problem, I want to solve it for them.”
“I did not single-handedly make a change,” Witt responded, telling the story of the case she said prompted the board to alter its practices.
A small developer had gone through the consent docket and been granted variances that allowed her building to encompass the entire lot.
About a year later, the community became unhappy with the developer and decided to oppose her second identical application for variances on another nearby same-size lot.
“Why do I have to show uniqueness now, when a year ago I didn’t, and I got it through and no one even said anything to me at all about it,” the woman had protested.
“So the board was taken aback and really had to rethink how they’d been conducting themselves” and resolved to change its problematic practice, Witt said.
“This has kind of been kind of an open secret,” she continued, recalling that her predecessor, Kathleen Byrne, once said bluntly at a meeting that “we all know the consent docket is illegal.”
“It was kind of something that was spoken about openly among this community. But no one really wanted to change it because it was, quote-unquote, working.”
Byrne, who no longer works for the city, has not responded to a call from The Brew.
Kudos and Criticism
Witt did receive support from one Council member.
The 3rd District’s Ryan Dorsey said the BMZA – guided for decades by a series of men who each held the position “for an extraordinary length of time ” – had become “institutionalized and very, very much a matter of ‘this is just the way we’ve always done it’ regardless of the law.”
“It is clear there is a longstanding problem with the nonchalance with the way the consent docket had been handled,” Dorsey said, addressing Witt.
“I appreciate the decision of, not you, but of the board, that it should uphold standards properly, regardless of how anybody feels about the outcomes.”
But Council Vice President Sharon Green Middleton rebuked Witt for “lack of communication” to the Council.
“It is clear there is a longstanding problem with the nonchalance with the way the consent docket had been handled” – Councilman Ryan Dorsey.
And Councilman Zeke Cohen told Witt he had received complaints from “a great number” of his southeast Baltimore constituents about “the shift in BMZA policy.”
“The need to grow our city and increase investment” is as important as the need to apply the law, Cohen chided before asking Witt, “What would it take to thoughtfully change the law?”
The Council could “slightly loosen the variance standard itself,” she answered, declaring herself “agnostic” on what the legislative body should do.
“What would it take to thoughtfully change the law?” – Councilman Zeke Cohen.
“Requiring everyone in a certain zoning district to have a 20-foot rear yard that cannot be violated – is that really promoting public heath, safety and welfare if we’ve been giving out exceptions willy-nilly for 20 years and no one has really noticed?”
The legislative body could eliminate the rear-yard requirement or reduce it to 10 feet, she said, noting “that wouldn’t be on a case-by-case basis – that would apply to the entire zoning district.”
Costello Presses Witt
When it came time for Chair Eric Costello to speak, it was clear he agreed with Schleifer and had lined up allies to push back on the zoning board, including Justin Williams, deputy mayor for community and economic development.
“It is abundantly clear to me that the board and the administrative side of BMZA need legal guidance,” Costello said, turning to two representatives of the Law Department sitting in the front row, Adam Levine and Stephen Salsbury, with whom he had conferred earlier in the day.
“What can be done to fix this?” Costello asked the two men.
“Per the conversation we had with the Law Department at 10:30, what can be done?” Costello then asked Williams.
“The board has come to believe they are more constrained than they actually are” – Deputy Mayor Justin Williams.
“I think, based on what I’ve heard, the board has come to believe they are more constrained than they actually are,” Williams opined, promising to work with the Law Department on producing “guidance” for the board and to intervene in the case of a specific variance in Schleifer’s district that was rejected.
“Miss Witt,” Costello said, “after Deputy Mayor Williams convenes this meeting, my assumption is you’ll be following that legal guidance?”
“Sure,” Witt said. “I look forward to reading it.”
“I’ll zero out your budget!”
The position of deputy director, who serves as the BMZA’s legal counsel, is currently vacant, and Witt, who initially held the position, has continued to provide legal advice until the deputy job is filled.
Costello pressed her about the need to make the hire, while Schleifer returned repeatedly to the subject of Witt’s alleged role in the board’s decision to axe the consent docket.
“You once referenced [during a panel discussion] one of your law professors who had said variances really should be very difficult, almost impossible to get – do you recall that panel?” Schleifer pressed.
“I don’t know what law school you went to – did your law professor say that?”
Witt said she didn’t remember the panel, but was certain that she said it “because that’s what the case law says – that variances are supposed to be rare.”
“I don’t know what law school you went to – did your law professor say that?” – Councilman Yitzy Schleifer.
Schleifer continued to berate her for “bringing your personal feelings to work” and asserted that “you don’t believe we should change the law,” with Witt repeatedly saying such questions are up to the Planning Department or the Council, not her.
“I can’t give you a yes or no answer,” she said at one point.
“Yes, you can,” the Councilman shot back.
As part of his remarks, Schleifer also told Witt: “You have cost us as a city tens of millions of dollars worth of development. . . and caused constituents of mine to put their house on the market.”
Witt replied that “it is the zoning code that is restraining people from what they want to do. That’s a legislative issue. Feel free to change any of those setbacks.”
“That’s a legislative issue. Feel free to change any of those setbacks.” – Rebecca Witt.
Appearing livid, Schleifer said, “What I want is the zoning board and zoning office to do what they’re supposed to do and work out reasonable terms and issue a variance when there’s a reason to do it.”
He then threatened to introduce an amendment “to zero out” the quasi-judicial body’s annual budget.
“If the BMZA is going to continue to operate the way they’re operating now, I don’t think there’s any need for them,” the two-term Democrat said.