Montgomery Co. Land Use Technocrats May Hold Heavy Sway Over Hogan’s Highway Plans

An overlapping patchwork of laws, some dating back nearly a century, may give Montgomery County’s top planning officials significant leverage in their negotiations with the state over the proposed widening of the Capital Beltway.

If they choose to press their advantage, those planners could significantly impede the Hogan administration’s plans to add additional lanes to Interstate 495.

“The Maryland-National Capital Park and Planning Commission is an independent, state-created authority with great powers,” said former Planning Board Chairman Gus B. Bauman. 

“They’re not a typical planning agency. They are a major agency in terms of the acquisition and stewardship of public parkland,” he said. 

In a July 22 letter to the State Highway Administration, Elizabeth Hewlett and Casey Anderson, the planning commission’s chairman and vice chairwoman, respectively, highlighted the history of county parkland, much of which was purchased from the federal government under the 1930 Capper-Cramton Act.

All of the road-widening proposals the state is currently studying involve parkland the M-NCPPC controls, the planners noted. That means decades-old federal rules come into play, they argued.

Hewlett and Anderson quote from Section 5 of the 1931 Basic Agreement between the county planning commission and its regional counterpart, the National Capital Planning Commission.

“…(N)o part of any land purchased for park or recreational purposes with the funds provide by the [NCPC], in whole or in part, shall at any time be conveyed, sold, leased, exchanged, or in any manner used or developed for other than park purposes by the [M-NCPPC]…,” the document says.

Does that mean — as some critics of the highway widening plan have suggested — that it would take an act of Congress for Maryland to move forward with Gov. Lawrence J. Hogan Jr.’s plan to add four new lanes to the Beltway?

No, Anderson said in an interview.

“I don’t think it’s clear that it would take an act of Congress, but I think it would at least take the approval of the National Capital Planning Commission,” he said. 

“What we’re trying to suggest in that letter is that there are serious legal obstacles to the state’s attempting to take additional land outside the footprint of the existing Beltway that runs through those parks without — at a minimum — the approval the National Capital Planning Commission and us as well, independently.”

Which means Montgomery County’s planners — low-key land-use experts who rarely generate headlines — hold consider clout over a key Hogan priority.

“The Parks Department is asserting a very strong hand here,” said Montgomery County Councilmember Hans Riemer (D), chairman of the council’s Planning, Housing and Economic Development Committee. “And we don’t have a read yet on how State Highway views that. In their comments, they have not refuted Parks’ authority.”

Montgomery planners have signaled repeatedly that they are in no rush to green-light the state’s plans to finance the road expansion with express toll lanes, raising a raft of issues during months of sometimes tense discussions.

They argue the proposal to widen I-495 and Interstate 270 short-changes transit, relies on old data (or none at all), would threaten neighborhoods near the two roads, would generate additional traffic, pollution and noise, and would subject motorists to widely varying tolls that would be set by a private firm for decades into the future.

The Hogan administration has argued that stalled traffic on major highways is unacceptable and is contributing to environmental degradation.

Anderson, an attorney, said his reading of the law makes it clear that Maryland cannot simply seize the land it needs should negotiations reach an impasse. 

“They have behaved as though they have the legal right to take the land under the state’s Quick-Take statute,” he said. “The Quick-Take statute says that SHA can take private property for public use. The statute on its face refers to private property, not to public land.”

Do State Highway Administration lawyers think they have the power to take what they need?

Erin Henson, director of public affairs for the Maryland Department of Transportation, wouldn’t address the question directly.

“Our focus continues to be engaging all stakeholders, including Maryland National Capital Park and Planning Commission, on the ongoing environmental study process,” she said in an email. 

 “As committed at the June Board of Public Works meeting, the Maryland Department of Transportation is not acquiring any land until the federal National Environmental Policy Act process is complete and we have a favorable record of decision,” she added. “We will continue to work with National Capital Planning Commission as well as Maryland National Capital Park and Planning Commission to identify strategies that will avoid and minimize impacts to parklands and provide public benefits.”

Bauman, a land-use attorney at a Washington, D.C., law firm, said a state “taking” would surely wind up in court.

“If push comes to shove, this is going to be a fascinating legal issue for the courts.”

“The Park and Planning Commission was created by the State of Maryland in 1927,” he added. “It has extraordinarily broad powers. … A lot of what we’re talking about comes down to ‘can you condemn?’”  

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