Committee approves ZTA 2608 to allow limited reinstatement of lapsed nonconforming uses

Chair Fridson opened the committee meeting and described ZTA 2608, a zoning text amendment that would allow the reinstatement of a previously lawful nonconforming use if that use ceased operations for less than five years and an application is filed.

Ms. Nadeau, council staff, summarized the proposal and said the five‑year clock would begin at the date of submission. Under the ZTA, applications would be processed administratively through the Office of Zoning and Administrative Hearings (OSA) with notice (staff said the usual vicinity is about one‑half mile) and property posting; a hearing would not be automatic but could be requested by a neighbor who receives notice (30 days to request a hearing). DPS would submit written comments to OSA within 30 days describing prior uses, layout, and any complaints; Planning would also provide a written recommendation noting conflicts with master plans or likely adverse effects. If a hearing is not held, the hearing examiner would issue a written decision within 60 days of application; if a hearing is held, the decision would be due within 45 days of the close of that hearing.

Ms. Nadeau and the sponsor emphasized that the ZTA is intended to provide limited flexibility—allowing neighborhood businesses to reopen vacant storefronts—while preserving the hearing examiner's authority. The hearing examiner must find (1) reinstatement would not change the nature, character or intensity of the prior use to the point of substantial adverse effects, and (2) the reinstatement would not conflict with the most recent master plan for the area. The ZTA would allow the hearing examiner to approve modest site changes (size, layout, circulation, landscaping, lighting) where appropriate, and would require an annual report to DPS by July 30 confirming the use remains in operation; failure to report and a subsequent DPS inspection finding closure would render the use abandoned and ineligible for further reinstatement.

Planning Board feedback and an OLO statement were discussed: the Planning Board recommended three amendments, including (a) limiting reinstatement to the most recent prior use, (b) removing the "no substantial adverse effects" phrasing, and (c) eliminating the annual report requirement. Ben Burbert of Montgomery Planning told the committee the Planning Board's preference for the "most recent prior use" language was to keep parity with an always‑open nonconforming use, which would otherwise be unable to expand or change. The sponsor and council staff urged caution about over‑restricting reinstatement, noting the five‑year window and the hearing examiner's discretion would limit undesirable outcomes.

The committee adopted a small technical amendment to clarify that DPS comments should reference the prior nonconforming use (adding the word "nonconforming" to the noted line). A motion to remove the annual reporting requirement was discussed and then withdrawn. After closing debate, the chair called for the voice vote; the transcript records the approval of ZTA 2608 "as amended" (committee tally recorded in the transcript as "3 nothing as amended").

What happens next: ZTA 2608 will proceed to the full Council as amended from committee. The county's process will include the OSA administrative review and the notice/hearing mechanics described by staff, and DPS and Planning will provide written analyses for each application.

Sources and attribution: Statements in this article are attributed to speakers in the committee record: Chair Fridson (sponsor/lead sponsor), Ms. Nadeau (council staff), and Ben Burbert (representing Montgomery Planning and the Planning Board).