BZA Approves Project's Conditional Use

BERLIN - The Berlin Board of Zoning Appeals (BZA) approved the Davis-Taylor Farm senior living conditional use this week, amid a controversy over state wastewater funding which some warn could be reduced or eliminated if the project goes through.

Planning consultant Tim Bourcier warned, despite Davis-Taylor project attorney Hugh Cropper's objections, that developing residential uses on that site could threaten Berlin's status as a priority funding area (PFA) for state loans and grants to cover wastewater expansion and improvement costs.

Cropper objected to Bourcier's testimony several times, saying that he had never in 20 years of appearances before zoning committees seen government staff call expert witnesses in to rebut the developer's testimony.

Planning Director Chuck Ward brought Bourcier, a contract employee, in because he spent several months as acting planning director, giving him a history with the project that Ward acknowledged he himself did not have.

BZA lawyer Mark Tilghman said there is no reason the town cannot call a witness to give testimony.

Cropper asked: why would the town spend tax dollars to oppose a conditional use request? That is the purpose of the BZA, he said.

Town staff does not typically give sworn testimony in rebuttal to a developer's presentation, according to Cropper.

'I'm sort of dumbfounded by that,' Cropper said. 'Respectfully, I object to the town opposing it.'

'I'm just here to present some information,' Bourcier said. 

The senior living project proposed for the Davis-Taylor farm needed BZA approval to go forward, as the property is zoned industrial. The council added senior living facilities as a conditional use in the M1A zone earlier this year.

Bourcier's worries over PFA funding stem from the state of Maryland's effort to limit sprawl, resulting in a new policy to direct development and new populations to vacant or underused property within town limits. The state is regulating growth in towns through funding, Bourcier said.

BZA member Woody Bunting pointed out that the Davis-Taylor farm property had already been annexed.

If the state feels that there is no reason to put more residential units on the Davis-Taylor property, it could refuse to fund, through loans or grants, the sewer capacity needed to serve that property, leaving the town to pay for it, Bourcier said.

Cropper said he had never heard of possible issues with the PFA until the day of the meeting, despite having turned in the application for the conditional use in April.

Bourcier enumerated several other areas of staff concern.

A conditional use approval allowing residential uses on the site would have a marked effect on the adult oriented business (AOB) ordinance now being drafted for Berlin, according to Bourcier. Under the draft ordinance, AOBs would be allowed only in industrial areas of town, but the approval of the Davis-Taylor project would eliminate two areas that AOBs would be directed to under the ordinance, leaving only the Route 346 corridor between Atlantic General Hospital and Stephen Decatur High School. AOB's would not be allowed within 1,000 feet of a school.

'It would allow adult uses in an area set up for economic development,' Bourcier said.

Another issue is fire protection, with the senior living property located well away from the fire station in town.

'We know that the fire department doesn't have the equipment to fight fires in these buildings at this time,' Bourcier said. Some of the buildings are planned at 45 to 50 feet, while the Berlin Fire Department apparatus reaches only 36 feet.

Traffic could also be a problem, he said, despite studies showing that traffic would be fine even with more density. There is the assisted living facility to consider, with 24-hour staffing and the lack of food shops and other necessities north of Route 50, which could cause many more car trips than estimated.

The project also places residential development next to existing industrial, Bourcier said.

'If we approve the zoning, that's only one small step in the process,' said BZA member Fred Pierdon.

If the BZA did not approve the use, the project was dead in the water, he said, and without benefit of decisions by elected officials or the planning commission.

The BZA does not have much control over the issues brought up by Bourcier, Bunting said. While he did not want to impose extra burdens on Berlin, he felt that the economic benefits of the project might outweigh arguments against the approval.

Tilghman asked the BZA to table their decision so he could contact the Maryland Department of Planning (MDP) for more information on the effects an approval might have on PFA monies.  The statute, he said, is not clear.

Cropper said any such discussion could be a red flag for MDP. He also pointed out that the Summerfield project in Snow Hill asked a PFA question a year ago and has not yet had an answer.

Pierdon made a motion to approve the conditional use request, but fellow BZA member Sonny Atkins did not speak up to second it. Bunting, acting chair, finally seconded the motion.

The BZA approved the request 2 to 1, with Atkins dissenting.