After berating Zoning Board Executive Director Becky Witt earlier this month for eliminating the “consent docket”- which Witt and the board found to be illegal – Councilman Isaac “Yitzy” Schleifer introduced a bill that would, basically, make the longtime Baltimore practice legal.

But when Bill 23-0402 came up last night for a hearing before the Rules and Legislative Oversight Committee, which Schleifer chairs, something that is usually available at this stage of the legislative process, was missing:

An opinion from the Law Department saying whether it could approve the bill for form and legal sufficiency.

Likewise, there were no reports from the other relevant city agencies, like the Planning Department, Zoning Board or Housing Department.

But strangest of all was the absence of any discussion about Schleifer’s bill, the only item on the hearing agenda.

Instead, Schleifer introduced Deputy Mayor Justin Williams, who brandished pieces of paper with the text of two completely different, as-yet-unintroduced bills. Williams described them as “pieces of legislation we have drafted in conjunction with you.”

After distributing copies to the committee members, Williams paraphrased a couple of the “whereas” clauses from one of them, titled Council Bill 23-XXXX.”

“The city’s prosperity depends on creating more jobs and more housing and spurring increasing investment in the city,” Williams said. “Promoting the speed and predictability of zoning approvals is one way to get there.”

He proceeded to talk about the two proposals, “Variance Approval Standards and Reduction Docket” and “Nonconforming Structures.”

“What is going on?”

It was a frustrating situation for members of the public who had come to City Hall (or had tuned in remotely) to learn about or testify on a bill that, introduced by Schleifer and Eric Costello on June 12,  generated considerable news coverage, debate and harsh commentary.

“I’ve gotta admit, I’m very confused. I’m only here to testify on the bill that was advertised,” said Remington resident Joan Floyd.

“So my question is, has it been withdrawn? Is what’s being talked about tonight an amendment to that bill?” she continued.

“I can’t talk about what I haven’t seen. Please, what is going on?”

“I can’t talk about what I haven’t seen”  – Resident Joan Floyd.

Answering her, Schleifer said, “Whenever we introduce a bill . . . we’re willing to make amendments and change it based on feedback we’ve received already, so we’re happy to hear what your feedback is.”

He offered to have a staffer hand her a copy of the material that Williams was discussing, eight pages of text.

But Floyd demurred. “I can’t just” read the bill now, she indicated, before delivering remarks she had prepared in opposition to the published bill.

“I was hoping to hear from the BMZA and the Law Department what they were saying about” the bill, she noted at one point.

Those department reports are highly critical of the Schleifer-Costello bill and were held back to prevent embarrassment for the councilmen, sources have told The Brew.

Too Restrictive?

Asked after the meeting to describe the material that Williams had presented to the committee, Schleifer said, “Why do you keep referring to them as bills?”

He said it hasn’t been determined whether the ideas outlined by Williams would be introduced as bills or drafted as amendments to his bill.

He described the hearing as “the same conversation” he has started over zoning board practices he thought had become too restrictive or inflexible.

That “conversation” began after the board ended its longtime practice of issuing blanket approvals for zoning variances, whether or not they met the legal requirements.

Only when someone objected did the board apply the law and consider the request. The board ended the policy because its arbitrariness was unconstitutional. Some critics agreed that the policy was legally unsupportable.

Schleifer, however, had berated Witt for failing to warn the Council about the change and criticized it, citing cases of constituents in his northwest district upset over having variance requests turned down that would previously have been approved.

“Although this change occurred overnight, without involving the public or the council, the solution won’t occur as quickly. This is just the first conversation that we’ll have on this topic,” he told the committee yesterday. “We’ll get to agency reports at future hearings.”

“Exceptional Circumstances”

One of the measures Williams talked about concerns expanding “non-conforming structures” – structures that do not conform with elements of the zoning code, such as the percentage of the lot covered by the structure.

The legislation would allow these expansions of non-conforming structures for anyone who obtains a variance.

The other measure proposes a number of changes, including loosening the requirement to grant a variance based on the “uniqueness” of the lot, to also include “exceptional circumstances . . . to avoid practical difficulty.”

This “second standard” would “help move the window toward allowing more approvals,” Williams said, calling it “an opportunity for the board to use more discretion as they see fit to grant a variance.”

New language would be “an opportunity for the board to use more discretion as they see fit to grant a variance”  – Deputy Mayor Justin Williams.

Another change concerns “minor variances,” small departures from the code requirements which the Housing Department’s Zoning Administrator is empowered to approve without going to the Zoning Board.

(At the June 12 hearing, Schleifer noted that the current zoning administrator does not exercise this option and routinely sends minor variance requests to the BMZA.)

Under the legislation, it appears, any variance applied for by an owner-occupant would qualify to be considered as a minor variance.

“If you’re an owner-occupant of a property, you shouldn’t have to go to the Zoning Board,” Williams said.

What was Done for Decades

Witt, who attended the hearing but was not asked to speak, had previously responded to Schleifer’s criticism by saying that the Council could act comprehensively to dial back zoning restrictions it may now deem onerous or outdated, such as side or rear yard setbacks.

Schleifer said again yesterday he opposes that approach because it would have “unintended consequences.”

“It would change the setbacks that are in place across the board, which will work in some places and won’t work in others,” he said. “You’re changing the future of what you can do with the property, so once you allow these uses, you no longer have those controls in place.”

“It’s important we give the Zoning Board the ability to do what they were appointed to do and what they’ve done for decades,” he continued. “Which is, look at all the facts and make the best judgement call – what’s best for city in that situation.”