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Peggy Dennis and Ruben Meana Paneda
testify before the Montgomery County Council |
Ten of the eleven residents who testified before the Montgomery County Council yesterday urged councilmembers to restore funding for the Office of the People's Counsel in the FY-2024 operating budget. All ten also spoke in strong opposition to the bill that was the subject of the public hearing, a legislative move to permanently eliminate the office, which the Council has failed to fund since 2010.
Bill 18-23, introduced by Councilmember Andrew Friedson (D - District 1), would kill the position of People's Counsel, an attorney who could advise residents and civic associations on land-use and zoning issues, and represent their interests in administrative hearings. Friedson's bill would replace the People's Counsel with a toothless resident advisor, who would not have to be a licensed attorney, and who would not be allowed to participate in administrative hearings, would be unable to call or cross-examine witnesses, and would be forbidden to introduce evidence or point out violations of zoning law in those hearings.
Resident Sue Present said Friedson's developer-friendly bill "keeps the fat cats fat, and throws neighbors and neighborhoods under the bus." Friedson has received extensive campaign contributions from development interests, and developers have hosted fundraisers for him.
The only resident to testify in favor of Friedson's bill to eliminate the People's Counsel was Jane Lyons-Raeder of Silver Spring, who has previously been
employed as a lobbyist by the developer-funded Coalition for Smarter Growth. Lyons-Raeder said the quiet part out loud, expressing concern that a restored People's Counsel "could quickly turn into a free lawyer for people who oppose development in their neighborhood." She argued that Friedson's proposed advisor position would be preferable, as it would not "allow for free legal representation" for residents.
But the small way in which the Office of the People's Counsel takes a tiny step toward leveling the playing field with development interests who can afford high-priced lawyers is precisely what the 90% of residents who testified in favor of restoring the position yesterday see as its central appeal. Resident Max Bronstein pointed out that in a land-use dispute he was engaged in from 2007 to 2012, the developer had two lawyers, and a team of five land-use specialists. Montgomery County government has over 100 attorneys who represent it, he added. "Should not the 1 million people of the county have 1 lawyer representing them?" Bronstein asked the Council.
Bronstein said the Office of the People's Counsel was "a great aid" in his case up until 2010, when the Council defunded the office. He pointed to the Office of Legislative Oversight report on the OPC, which recorded that the People's Counsel participated in an average of 44 land use cases per year, and provided information on zoning and land use to residents an average of 347 times per year before being defunded.
Nowhere in the OLO report was it recommended the Office of the People's Counsel be closed, Bronstein noted. He said the People's Counsel will be particularly needed in the coming years, as the Council attempts to implement the controversial Thrive 2050 plan, which will allow attached housing and small apartment buildings to be constructed in existing single-family home neighborhoods.
Rick Meyer of the MoCo Coalition for Control of Cell Towers concurred that expert advice is needed for zoning text amendments, and not just for residents, but for the Council itself. A Council ZTA to allow 5G antennas to be placed in locations that were off-limits to such equipment at the time was later found to be in violation of the County's own laws. If even the five-year head of a Council committee couldn't understand the zoning laws, Meyer suggested, it indicates the need for just such a knowledgeable land-use attorney as the People's Counsel. In fact, one of the People's Counsel's duties and powers is the ability to point out when a developer or the County itself is in violation of the law during adminstrative proceedings.
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Elizabeth Joyce of the
Montgomery County Civic Federation |
Elizabeth Joyce and Alan Bowser of the Montgomery County Civic Federation both recalled that several of the sitting councilmembers had promised their organization that they would restore funding for the Office of the People's Counsel during candidate interviews the federation held last June. Joyce said money is not the issue, because the funds Montgomery County Executive Marc Elrich has earmarked for the office in his proposed FY-2024 budget amount to only .0004% of the total budget.
Given the recent scandals that ended with the resignation of the entire Planning Board, Bowser questioned why Friedson would suggest eliminating a tool of equity and transparency like the Office of the People's Counsel. "Why in this moment of broad distrust, why would any of you want to exacerbate this situation" by proposing to eliminate the OPC? Bowser asked. Comparing Friedson's OPC-killing bill to a similar one that failed to pass seven years ago, Bowser concluded, "This was a bad bill in 2016; it's a terrible bill in 2023."
Resident Susan Labin pointed out that Friedson had ironically recently complained that a state bill that would have increased the County Executive's authority over planning and zoning was "a power grab," while Friedson is now attempting to grab power away from residents by killing the Office of the People's Counsel. "It seems like at every turn the real power grab is by the special interests," Labin said.
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| Nicole Williams |
"I'm speaking from painful experience," Potomac resident Peggy Dennis said at the beginning of her testimony against Friedson's bill, and in favor the Office of the People's Counsel. She spoke of the many hours residents in her community spent fighting a gigantic assisted-living development that was in violation of the area's sector plan and County law, which was proposed by "a well-heeled developer." Had the OPC been in operation at that time, Dennis argued, "all of that time would have been saved...That person could have introduced evidence in a hearing, called witnesses, pointed out" illegal violations.
Such time investment is beyond the means and availability of most residents, Nicole Williams said. "We shouldn't have to" spend time trying to interpret zoning and land-use laws while developers have the advantage of expensive attorneys. After 13 years of failing to fund the People's Counsel, Williams said, it's "time to stop giving residents the runaround."
The reality, as Bronstein noted during his testimony, is that there are hardly any land-use attorneys who will represent residents, even when wealthier neighborhoods have the money to pay them. This is absolutely true. For years, Norman Knopf would take such resident and civic association cases. After he retired, his partner David Brown continued in that role. But Brown refused to represent the Westbard residents who sued Montgomery County over illegal actions during the approval of the Westbard sector plan.
Michele Rosenfeld took the residents' case. With her victory on Kensington residents' behalf in the Costco gas station case, and partial victory in downsizing the density of the Westbard Square development, Rosenfeld is now the preeminent land-use attorney representing residents and civic associations in court and in administrative proceedings.
But that can only help if you can afford to hire an attorney. With the large number of newer residents in the County either being low-to-moderate in income, and many not speaking English as their first language - as Present noted in her testimony, a public resource and representative like the Office of the People's Counsel becomes more vital every day. And with the Planning Board and County Council increasingly ruling against majority sentiment and ignoring resident and civic association testimony, it can be argued that - if anything - the role and power of the People's Counsel
should be expanded and made more muscular.
