Recommendation
Staff recommends that the Mayor and Council partially abandon the public right-of-way (as described in Option 4, below). This includes abandonment of half of the right-of-way adjacent to the Montgomery County property, and the City’s retention of half of the public right-of-way adjacent to the Courthouse Walk property.

Discussion
The applicant (Montgomery County) seeks permanent closure and abandonment of the entire 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. The right-of-way was established in 1890 per Plat No. 56, and provides access to four lots shown on the original plat (see Attachment A).

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 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 Courthouse Walk.

The existing Montgomery County-owned 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. The Courthouse Walk property abuts the south side of the right-of-way. There is a 10-foot strip of CTCHA property between the rear lot lines of 16 townhouses and the right-of-way. This 10-foot strip is encumbered with a public utility easement. A stormwater management pond is located at the eastern end of the CTCHA property near Monroe Street.

Within the unimproved right-of-way, approximately 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 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 stormdrain pipe, constructed as a result of the townhouse development. 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 stormdrain 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 was 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-site for the proposed Victory Housing Inc. for the senior housing facility proposed under pending Special Exception SPX2009-00378".

Mayor and Council History
The Mayor and Council conducted a worksession on the application at its July 13, 2009 meeting, at which time the options for abandonment were discussed. The Mayor and Council held a public hearing on September 14, 2009, at which time five (5) speakers, including the applicant's representative, addressed the Mayor and Council. Alice Liu, representing CTCHA, spoke in favor of full abandonment with a Forest Conservation Easement, but without the Public Improvement and Access Easement (i.e. Option #3). A resident of Mt. Vernon Place, as well as a representative of the Traffic and Transportation Commission, spoke in favor of reserving the option for a future shared-use path, while a resident with property abutting the right-of-way spoke in opposition. A total of eight written submissions are included in the public record (see Attachment C).

The Mayor and Council asked several questions of staff and the applicant at the public hearing. It was clarified that a 30-foot wide easement would be necessary for the 54-inch stormdrain pipe within the right-of-way if abandoned; that a shared-use path may be constructed over the pipe if one was desired in the future; that only the Mayor and Council can modify a Forest Conservation Easement; and that the CTCHA is tax exempt.

Councilmember Gajewski questioned whether more forest would be saved if the right-of-way was abandoned or not. Subsequent to the meeting, the City Forester determined that an additional 0.17 acres (7,400 square feet) would be preserved on site if the right-of-way is not abandoned. However, the existing forest in the non-abandoned right-of-way (0.28 acres) would not be covered by any Forest Conservation Easement (See table below).

Forest Preservation
(within an FCE easement) Without Abandonment With Abandonment

On-site forest .75 acres .58 acres
Right-of-way forest 0 .28 acres
Total forest .75 acres .86 acres

There were also questions about the actual easement text and a typical Forest Conservation Easement document is included within Attachment C.

Options Considered
The four (4) options for abandonment, and their primary implications, are summarized 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 right-of-way remains dedicated to public use.
- 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.

Option #2. Full abandonment of the public right-of-way, with a Public Improvement and Access Easement (PIE) and Storm Drain Easement on the southern half (Courthouse Walk), and a Forest Conservation Easement on the northern half (Montgomery County).

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:
~ Public Improvement and Access Easement on the CTCHA side;
~ Storm Drain Easement over the existing storm drain on the CTCHA side;
~ Forest Conservation Easement over the forested area on the Montgomery County Government side.
- Continued maintenance of the property and liability would fall to both property owners, with the exception that the City would maintain 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 may be allowed by permit or permission within the easement areas.
- The City would be responsible for enforcement of the Forest Conservation Easement.
- Resolution of a possible utility encroachment in the southern portion of the right-of-way found during a recent Miss Utility marking, may be required prior to implementation.

Option #3. Full abandonment of the public right-of-way, without the requested Public Improvement and Access Easement.

For Option #3, all of the implications associated with Option #2 would apply, except that it could not be developed as a future shared use path. Two easements would be required:
~ Storm Drain Easement over the existing storm drain on the CTCHA side;
~ Forest Conservation Easement over the forested area on the Montgomery County Government side.

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 (assuming the project is approved).
- The City would be responsible for continued maintenance of the right-of-way and liability on the non-abandoned portion. The Montgomery County Government would be responsible for maintenance on its 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 may 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 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. This option eliminates the possibility of constructing a road.
Under this abandonment option, the applicant would still be requested to grant a Forest Conservation Easement (FCE) over the forested portion as part of the Special Exception. 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 the 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, in the future, a shared-use path is desired and budgeted, the City would have the ability to make such an improvement within the remaining right-of-way.

Public Notification and Engagement
Public notification occurred via the City Clerks office and was duly advertised in the Gazette Newspaper informing neighboring property owners and other interested persons of the request and the Mayor and Council public hearing date. It is also important to note that the request was formally discussed by the Mayor and Council on July 13, 2009. In addition, a public information meeting with Courthouse Walk was held on August 24, 2009.

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 six conditions were addressed. Since that time these items have been addressed, as follows:

(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 had to respond by the public hearing. It should be noted that, no written responses have been received, and no utility representatives spoke at 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.

A public information meeting, arranged through Courthouse Walk, was held on August 24, 2009.
The recommendation, options and public benefit were discussed.

(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. The proposed encroachment was for a surface parking facility for the planned senior housing development. The design has since been modified to delete the encroachment.

(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 was reviewed by the Planning Commission on August 12, 2009 and their recommendation was forwarded to the Board of Appeals. A public hearing was held on September 12, 2009, and has been continued until November 7, 2009.

The Traffic and Transportation Commission discussed this issue at their meeting of August 25, 2009, and approved a motion to support efforts for a shared-use path in the right-of-way. Their recommendation is included as Attachment D.

Fiscal Impact
There is no fiscal impact associated with this agenda item.

Next Steps
For the abandonment to be approved, the Mayor and Council should direct the staff to draft an Ordinance. If the Ordinance is to be introduced for October 26th adoption, the layover period would have to be waived. If a vote does not occur on October 26, the Mayor and Council should move to extend the time to a date certain. This is due to the City Code requirement, Chapter 21.97(d), which calls for a decision within 60 days of the public hearing.

Attachments
Attach A - Right of Way and Easement Exhibit

Attach B - Correspondence from Applicant dated July 1, 2009 and Sample Easement

Attach C - Public Comment


Attach D - E-mail re Traffic and Transportation Commission Motion

Department Head:



Susan Swift, Director of Community Planning and Development Services
Approved on: 10/02/2009

Assistant City Manager:


Jenny Kimball, Assistant City Manager
Approved on: 10/05/2009

City Manager:

Scott Ullery, City Manager
Approved on: 10/05/2009