 |
Subject
SCA2006-00097 - Application to Close and Abandon Unimproved Public Right-of-known as Mount Vernon Place, between Maryland Avenue and Monroe Street.
Recommendation
That the Mayor and Council provide direction to Staff on scheduling of this matter for a public hearing, after reviewing the four options and Staff’s revised recommendation involving the potential right-of-way abandonment.
Discussion
The applicant (Montgomery County Government) seeks permanent closure and abandonment of unimproved public right-of-way known as Mount Vernon Place running between Maryland Avenue and Monroe Street, north of Block 3 in the Rockville Heights subdivision and established in 1890 per Plat No. 56. See enclosed folded map showing right-of-way and easements.
As shown on the plat and site plans submitted with this abandonment request, the Mount Vernon Place public right-of-way is approximately 60 feet wide, 600 feet in length, located along the southern site boundary of the County - owned properties and along the northern site boundary of the Courthouse Walk townhouse development.
If the petition is granted as requested the 36,914 square foot (0.83 acres) land area that makes up the subject public right-of-way will be divided in half along the center line of the right-of-way. The abandoned area would be joined to the abutting owners' properties, i.e., the property to the north owned by Montgomery County and the property to the south owned by the Courts of Town Center Homeowner’s Association (CTCHA), known as the Courthouse Walk neighborhood.
The existing Montgomery County property is 3.84 acres and includes five houses located within a historic district along Fleet Street and Maryland Avenue, and four other houses along Monroe Street. There is 1.45-acres of forest on the property. The Courthouse Walk property backs up to the right-of-way on the south side. There is a 10-foot strip of CTCHA property between the rear lots of 16 townhouses and the right-of-way. A stormwater management pond is located at the eastern end of the CTCHA property near Monroe Street.
Within the unimproved right-of-way two-thirds of the northern half is forested in addition to a small area in the southern half near Maryland Avenue. This amounts to approximately 0.33 acres of forest. Beyond the forest at the eastern end of the right-of-way are a dozen trees and a large concentration of non-native/invasive shrubs and vines.
The southern half of the right-of-way is mostly lawn underneath the forest/tree canopy and contains a 54 inch City storm drain pipe. The pipe is located about 7-8 feet from the HOA property line and an additional 10 feet from the rear property line of the townhouses. At both ends of the right-of-way the storm drain pipe moves onto the HOA property before entering Maryland Avenue and Monroe Street. The City currently retains a storm drain easement over the portions of the pipe not located within the Mount Vernon Place right-of-way.
The application was initially filed by Montgomery County on January 25, 2006 and never acted on due to the accompanying RTH (Residential Townhouse) development not moving forward. On February 4, 2009 the applicant requested that the application be reactivated. At staff's request, the applicant's counsel submitted additional information on July 1, 2009, which addresses why the applicant (Montgomery County Government) seeks abandonment of the subject public right-of-way (See Attachment B). As noted, "by incorporating the northern half of the abandoned right-of-way into the project area, the applicant is able to meet forest conservation requirements on the expanded site and allow Victory Housing Inc. to install the number of parking spaces that it believes that its residents will require" for the senior housing facility proposed under pending Special Exception SPX2009-00378. In response to issues and concerns raised at the Planning Commission's June 24, 2009 meeting, staff has provided additional information, as listed below, under "Options Considered". This section seeks to address concerns noted by the Commission in its recommendation to the Mayor and Council with regard to the petition request.
Staff notes that in order for the right-of-way to be formally abandoned, the applicant's pending Preliminary Subdivision Plan (PLT2009-00498) must be approved and corresponding Final Record Plat approved and recorded. This is necessary in order to ensure that some of the existing lots do not become landlocked (no legal access) in the interim. Under the pending subdivision plan, the applicant proposes to resubdivide the county-owned properties, creating a total of seven (7) new lots. Under this proposed subdivision plan, those existing record lots which now front on unimproved Mount Vernon Place would be combined into a larger parcel, thus ensuring that no properties would become land-locked if the right-of-way abandonment moves forward prior to said subdivision plan approval.
Staff recommends that the Mayor and Council review the options presented, including staff’s amended recommendation, and provide direction on the scheduling of the Street Closure and Abandonment application. This amended recommendation is Option #4 as presented in this report which proposes partial abandonment of the public right-of-way. Staff believes this option ensures the greatest public benefit to the community.
The abandonment request should not be acted upon until the applicant has obtained Planning Commission approval of its pending Preliminary Subdivision Plan (PLT2009-00498) followed by approval of a Final Record Plat.
Options Considered
There are four (4) options which staff believes the Mayor and Council should consider in its review of the requested abandonment. These options, and their implications, are discussed below.
Option #1. Deny the application and retain the public right-of-way as it currently exists.
Implications of Option #1 include:
§The right-of-way could be developed as a future roadway.
§The right-of-way could be developed as a future shared-use path with associated improvements.
§No easements would be required since the City would retain ownership of the property.
§The City would be responsible for continued maintenance of the right-of-way.
§The City would retain liability for the right-of-way.
§There would be no change in the current tax implications.
§The City would be responsible for enforcing any proposed encroachments upon the right-of-way.
§No private amenities would be allowed.
If the Mayor and Council choose to retain the public right-of-way, a street could be constructed within the right-of-way if it is determined to be needed in the future. It should be noted that this right-of-way is not currently referenced in the City of Rockville Comprehensive Master Plan, Town Center Master plan, or in the Bikeway Master Plan. If the street is constructed as currently platted, it would create a five (5) legged intersection with Maryland Avenue and South Washington Street. Such an intersection is complex and operationally challenging, and would require new treatment, e.g., a new traffic signal. Other issues such as the limited site distance of the vertical profile on Maryland Avenue between South Washington Street and Argyle Street would need to be studied. The new street would also create a new intersection at Monroe Street, approximately 150 feet north of the intersection of Monroe Street and the existing leg of Mount Vernon Place.
A alternative to a street is to use the unimproved right-of-way for a shared use path for pedestrian and bicyclists. This right-of-way was established in 1890 when smaller development blocks facilitated the use of non-automobile methods of transportation and provided pedestrian connectivity. The adjacent Monroe Street is a main pedestrian access to townhouses and low-rise apartments in the area, such as Waddington Park and Fireside Apartments, and provides connectivity to the larger Hungerford neighborhood. As the development of the Town Center project area expands, it is anticipated that more pedestrians would walk to and from activity centers. A future walkway, such as a shared use path, along the unimproved right-of-way may be envisioned to provide a more direct connection, or access, between the neighborhood and the west side of Town Center and the North Washington Street area.
It is important to note that retention of the right-of-way requires that the City continue to maintain this land area so that it does not become a nuisance to the neighboring properties, e.g., overgrown with vegetation, a dumping ground for discarded material, debris, fallen and/or dead trees. While the area today serves as somewhat of a buffer between the County-owned properties and Courthouse Walk townhouse community, encroachments into the public right-of-way by either of the abutting property owners are prohibited. Thus the City is required to ensure that abutting property owners do not erect and/or install any improvements within this right-of-way, e.g., buildings, structures, fences, walls, landscaping, etc.
In the event the existing 54-inch City storm drain pipe located within this public right-of-way requires maintenance or repair, the City has the authority to access this area as it deems necessary. If excavation and/or regrading is necessary in order to access, repair, or conduct maintenance activities on this storm drain pipe, the City's Department of Public Works would (to the extent possible) return the land area surrounding the pipe back to the condition that existed before such site disturbance.
If the right-of-way is not abandoned, the planned development of the County-owned properties to the north, currently being processed under Special Exception SPX2009-00378, would not fully comply with rear yard setback requirements of the MXT (Mixed Use Transitional) Zone without site adjustments. Also, if the abandonment does not move forward, the developer of the County site would be unable to meet all the City's Forest and Tree Preservation Ordinance requirements on-site. Thus, the development proposal would have to be revised and/or modified to fully comply with all applicable requirements of the Zoning and Forest and Tree Preservation Ordinances, or receive approval to pay a fee in lieu. Fees in lieu may only be granted if the applicant can provide justification and demonstrate why their forest conservation requirements cannot be met on site under Section 10.5-24(a) of the Forest and Tree Preservation Ordinance.
Option #2. Full abandonment of the public right-of-way, with a Public Improvement and Access Easement (PIE), Storm Drain Easement and Forest Conservation Easement.
Implications of Option #2 include:
§The abandoned right-of-way could not be developed as a future roadway.
§The abandoned right-of-way could be developed as a future shared-use path with associated improvements within a Public Improvement and Access Easement.
§Three easements would be required:
oPublic Improvement and Access Easement on the CTCHA side;
oStorm Drain Easement over the existing storm drain on the CTCHA side;
oForest Conservation Easement over the forested area on the Montgomery County Government side.
§Continued maintenance of the property would fall to both property owners, with the exception that the City would maintain the storm drain pipe and future shared-use path.
§Liability would fall to both property owners, with the exception that the City would have continued liability over the storm drain pipe and future shared-use path.
§Both property owners are tax exempt and would not be responsible for property taxes over their respective portion of the abandoned right-of-way.
§The property owners would be responsible for enforcing any proposed encroachments upon the abandoned right-of-way.
§Certain private amenities would be allowed by permit or permission within the easement areas.
§The City would be responsible for enforcement of the Forest Conservation Easement.
This option would require that the Montgomery County Government and the CTCHA grant certain easements to the City, within the land area which would be joined into their respective properties. The applicant would be required to grant a Forest Conservation Easement (FCE) to the City, on the forested land area within the northern half of the right-of-way that would be joined to the County-owned property. The FCE would be established to provide long-term protection of the forest within that area. The purpose of the easement is to protect and preserve existing and future forest cover and individual trees, maintain the existing natural conditions to protect plant habitats, water quality and wildlife and to generally protect and preserve the topography and natural features within the FCE. The granting of a FCE to the City would be in accordance with site development plans submitted with pending Special Exception Application SPX2009-00378. As shown on proposed landscape plans submitted with said special exception request, the land area to be placed within a FCE, would serve as a vegetative buffer between the planned senior housing facility and the neighboring residential townhouses to the south.
Based on staff's review of the abandonment request, the land area that would be joined to the neighboring homeowners association property, would require that a Storm Drain Easement (SDE) and a Public Improvement and Access Easement (PIE) be granted to the City. The SDE allows City access in order to maintain and repair the existing 54-inch storm drain pipe which is currently located within the portion of the right-of-way closer to the townhouses to the south. The abandonment of the right-of-way eliminates the possibility of constructing a road, however, the Public Improvement and Access Easement would allow the City to construct a future public way, such as a shared-use path with associated improvements, should the City deem that such improvements are needed and/or warranted.
One of the concerns raised at the Planning Commission's June 24, 2009 meeting on the abandonment request, was the practice of encumbering privately owned land with easements. The need to establish easements on rights-of-way to be abandoned is determined on a case-by-case basis. Often, no easements are required and the adjoining property owners receive the abandoned property free and clear. In this case, the presence of the existing storm drain pipe requires an easement on the south side of the area to be abandoned so the pipe can be accessed and maintained by the City. The north side of the area to be abandoned contains a valuable forest area which the County has agreed to place in a forest conservation easement. Therefore, a need has been established for the easements requested by the City.
Additional easements may be required for storm drain connections from the planned development to the City’s 54-inch storm drain as shown on the plans submitted with the Special Exception. With this option, private storm drain easements between the developer and the CTCHA on a portion of the right-of-way to be joined to the townhouse property would be required.
Option #3. Full abandonment of the public right-of-way, without the requested Public Improvement and Access Easement.
Implications of Option #3 include:
§The abandoned right-of-way could not be developed as a future roadway.
§The abandoned right-of-way could not be developed as a future shared-use path.
§Two easements would be required:
oStorm Drain Easement over the existing storm drain on the CTCHA side;
oForest Conservation Easement over the forested area on the Montgomery County Government side.
§Continued maintenance of the property would fall to both property owners, with the exception that the City would maintain the storm drain pipe.
§Liability for the property would fall to both property owners, with the exception that the City would maintain liability for the storm drain pipe.
§Both property owners are tax exempt and would not be responsible for property taxes over their respective portion of the abandoned right-of-way.
§The property owners would be responsible for enforcing any proposed encroachments upon the abandoned right-of-way.
§Certain private amenities would be allowed by permit or permission within the easement areas.
§The City would be responsible for enforcement of the Forest Conservation Easement.
Under this option, both the applicant and CTCHA would receive half of the land area being abandoned. As noted under option #2, the applicant would be requested to grant a Forest Conservation Easement (FCE) over the forested area being joined into the County-owned properties to the north. As in option #2, the abandonment eliminates the possibility of constructing a road however, in this option the City would not request that the CTCHA grant a public improvement and access easement for future development of a shared use path. The City would require the storm drain easement be granted within the southern half of the right-of-way to allow for repair and maintenance of the existing 54-inch storm drain pipe. As stated in option #2 the development currently planned for the County-owned properties to the north will require on-site storm water management facilities which are proposed to connect to the existing 54-inch storm drain pipe located within the public right-of-way. Private storm drain easements would be required between the developer and the townhouse HOA on a portion of the right-of-way to be joined to the townhouse property.
Option #4. (Staff Recommendation) Partial abandonment of the public right-of-way. This option assumes abandonment of the right-of-way on the Montgomery County Government side of the property; and the City’s retention of the public right-of-way on the CTCHA side of the property.
Implications of Option #4 include:
§The right-of-way abandoned area could not be developed as a future roadway.
§The right-of-way could be developed as a future shared-use path and associated improvements on the non-abandoned portion.
§A Forest Conservation Easement would be required on the Montgomery County Government side.
§The City would be responsible for continued maintenance of the right-of-way on the non-abandoned portion. The Montgomery County Government would be responsible for maintenance on its portion of the abandoned right-of-way.
§The City would be liable for that portion of the non-abandoned right-of-way. The Montgomery County Government would liable for it’s portion of the abandoned right-of-way.
§The Montgomery County Government is exempt from property taxes on its portion of the abandoned right-of-way.
§The City would be responsible for enforcing any proposed encroachments upon the remaining right-of-way. The Montgomery County Government would be responsible for any encroachments on its portion of the abandoned right-of-way.
§No private amenities would be allowed within the City’s retained area of the right-of-way. Certain private amenities would be allowed within the Montgomery County Government side by permit or permission.
§The City would be responsible for enforcement of the Forest Conservation Easement.
This option allows for abandonment of only one-half (30 feet) of the 60 foot wide right-of-way thus retaining the other 30 foot wide section as public right-of-way; that being the segment of the right-of-way which abuts the neighboring CTCHA property to the south. Under this abandonment option, and as described in Option #2, the applicant would still be requested to grant a Forest Conservation Easement (FCE) over the forested land area being joined into its properties to the north. As noted, the FCE and existing and proposed trees within this 30-foot wide land area would serve as a vegetative buffer between the applicant's planned senior housing development and townhouses to the south. Also, since the segment of the right-of-way not being abandoned would be retained under City ownership, there would be no need for an easement to accommodate and protect the existing 54-inch storm drain pipe located within that segment of the right-of-way. If it is determined at a future date that a shared-use path should be constructed within that 30 foot wide segment of the public right-of-way, the City would have the ability to make such an improvement. Due to abandonment of the northern half of the right-of-way, this option eliminates the possibility of constructing a road.
Public Notification and Engagement
Public notification occurred via post cards to over 500 residents and letters to HOA and civic association presidents sent by City staff informing neighboring property owners of the request and the upcoming Mayor and Council meeting date where this matter will be discussed. Postcards were sent in advance of the June 24, 2009 Planning Commission meeting.
Boards and Commissions Review
At its June 24, 2009 meeting the Planning Commission reviewed the referenced abandonment request. After considering all of the information and testimony provided by staff, the applicant, and other interested persons in attendance, the Planning Commission, on a motion by Commissioner Hill and duly seconded by Commissioner Wiener, voted to recommend that the request be denied by the Mayor and Council until the following information be provided and/or action taken:
(1). Resolve the logic of the staff report dated June 15, 2009 that the public right-of-way has no use or need, but recommends that a number of easements must be provided.
· The four options as presented herein attempt to resolve and/or speak to the potential use of the unimproved right-of-way, as well as the need and purpose of respective easements. What is clear in staff's review of the request is that the right-of-way is not needed for use as a street/roadway, unless the record lots which now front on the right-of-way were to be developed for use as single family detached dwellings, thus requiring frontage onto a public street. However, under the applicant's pending Preliminary Subdivision Plan PLT2009-00498, those County owned record lots which now front said right-of-way are to be combined into a larger parcel fronting Monroe Street and Maryland Avenue.
(2). Updated letters from the respective utility companies must be requested and provided.
· Staff has contacted respective utility companies to request updated letters to verify if facilities exist, or if there is a need to place new facilities in the unimproved right-of-way under consideration for abandonment. By code, these utilities do not have to respond until the public hearing.
(3). City staff should clearly explain the public benefit of abandonment of the right-of-way via holding a public information session.
· Staff believes that from the Mayor and Council's July 13, 2009 meeting and discussion on this matter, it will be determined whether holding additional public informational sessions will be required.
(4). Planning Commission recommends not encumbering private land with easements, not evident to impacted land owners.
· The need and reasons why easements are requested for privately owned property are addressed under the options presented herein.
(5). Allow right-of-way encroachment as proposed under the planned development of the County owned property to the north.
· The City has made limited exceptions to allow new private encroachments into unimproved public right-of-way only where there has been clear evidence that such encroachments are required/necessary to serve a public purpose. This is accomplished by a revocable license agreement between the City and private property owner, and is approved by the Mayor and Council. In the subject case, the proposed encroachment would be for a surface parking facility for the planned senior housing development which does not serve an overall public interest. Therefore, the City would not recommend an encroachment into the Mount Vernon Place right-of-way in this situation.
(6). Allow the pending Special Exception SPX2009-00378 (Victory Housing Inc.) to move forward with the condition of disposition of the abandonment.
· The pending Special Exception is moving forward and is scheduled to be reviewed by the Planning Commission on August 12, 2009 and public hearing before the Board of Appeals on September 12, 2009.
Note, the June 15, 2009 Staff Report which was forwarded to the Planning Commission is contained as Attachment A.
Fiscal Impact
There is no fiscal impact associated with this agenda item.
Next Steps
Mayor and Council hold a public hearing on September 14, 2009.
The Street Closing and Abandonment application and the applicant’s proposed subdivision are linked to each other, as the subdivision incorporates a portion of the right-of-way to be abandoned and the abandonment provides street frontage, in theory, to record lots that still exist on the Montgomery County Government property. Staff therefore recommends the following next steps:
Preliminary Subdivision Plan (PLT2009-00458): considered for action by Planning Commission on 8/12/09
Street Closing and Abandonment (SCA2006-00097): Public Hearing before the Mayor and Council on 9/14/09, with Discussion and Instructions, Introduction of Ordinance and Adoption of Ordinance to follow.
A Final Record Plat would have to be filed and approved subsequent to Preliminary Plan approval. There is a 30-day timeframe for Planning Commission action on this application once accepted for processing.
Both the Final Record Plat and the SCA will require conditional approval related to the other, and will require recordation among the land records. For the reasons stated above, the recordation, done by the City, must be done concurrently.
Attachments
AttachA - Staff Report of June 15, 2009 - Mt. Vernon Place Abandonment
AttachB - Correspondence from Applicant dated July 1, 2009
Department Head:
Susan Swift, Director of Community Planning and Development Services
Approved on: 07/07/2009
Assistant City Manager:
Jenny Kimball, Assistant City Manager
Approved on: 07/07/2009
City Manager:
Scott Ullery, City Manager
Approved on: 07/07/2009
|