MEMORANDUM. Action: Resolution to approve the following abandonment: AB739 - Portion of Executive Boulevard, White Flint District

Transcription

1 AGENDA ITEM #3D January 13,2015 Action MEMORANDUM January 9, 2015 TO: FROM: SUBJECT: CountyC~il Jean Arth~islative Analyst Action: Resolution to approve the following abandonment: AB739 - Portion of Executive Boulevard, White Flint District The Director ofthe Montgomery County Department of Transportation, applicant, by memorandum dated May 27, 2013 requests that the County abandon a portion ofexecutive Boulevard in the White Flint District ofnorth Bethesda. As is customary, this matter is going directly to the full Council because there is no controversy and no party has raised objections to the abandonment. The County Executive's designee held a public hearing September 18, Prior to the hearing, the County's Department oftransportation requested comments from the public, government agencies and public utility companies with the following results: Montgomery County Fire and Rescue Service, in an dated September 17, 2013 conditioned its approval on the new alignment being in place before the right-of-way is actually closed. Verizon, in an and letter dated July 22,2013, stated that it would require easements and a written statement that the County will cover all costs associated with moving its facilities. Pepco, Montgomery County Police Department, Montgomery County Public Schools, Montgomery County Planning Board and Washington Gas did not submit any comments.. Washington Suburban Sanitary Commission, by letter dated August 6, 2013, stated that its approval is conditioned on being granted a twenty-foot wide right-of-way. The Department oftransportation notified surrounding residents and registered civic associations and received no negative comments. The Montgomery County Executive recommends approval ofthe abandonment.

2 The hearing examiner recommends abandonment ofthe right-of-way subject to the following conditions which are all part ofthe resolution attached at The Applicant must grant the appropriate easements and provide a written statement to Verizon indicating that the Applicant will pay all costs associated with relocating Verizon's facilities. 2. The Applicant must grant Washington Suburban Sanitary Commission a twenty-foot right-of-way. 3. The County Attorney must record among the Land Records ofmontgomery County, Maryland, a copy ofthis Resolution approving the abandonment ofthe subject area. 4. Any person aggrieved by the action ofthe Council for abandonment may appeal to the Circuit Court within 30 days after the date such action is taken by Council. This packet contains the following: County Executive's Transmittal Memorandum Draft Resolution AB739 Letter requesting the abandonment from Arthur Holmes, Jr., Director, Department oftransportation. Executive Order No , Effective Date May 30, 2013 Public Hearing Officer's Report and Recommendation Maps noting locations ofareas to be abandoned and maps AB F:\Arthur\Transportation\AB739_agenda_Ol1315.doc 2

3 Isiah Leggett County Executive TO: FROM: OFFICE OF THE COUNTY EXECUTIVE ROCKVILLE, MARYLAND George Leventhal, President MEMORANDUM December 9, ! C)::;J ncr'l o::::.() Crr1fTj z:::c_ n-«r-nil1 g o Montgomery County Council ~ lsiah Leggett, County ExecutiV~ -:=:~'7""'7"----<_ w. SUBJECT: DOT Docket No. AB739 Executive Boulevard White Flint District, North Bethesda 4th Election District I am attaching for your consideration, a proposed Resolution by which the County Council might approve the abandonment ofa portion ofexecutive Boulevard in the White Flint District ofnorth Bethesda. The following supporting materials are also attached to this memorandum: IL:rg Attachments 1. County Council Resolution 2. Memorandum which initiated the abandonment process dated May 27, Executive Order No , Effective Date 5/30/2013, which announced a Public Hearing to be held on September 18, A copy ofthe Hearing Examiner's Report and Recommendation 5. A location map and tax map highlighting the area montgomerycountymd.gov/311

4 Resolution No: Introduced: Adopted: COUNTY COUNCIL FOR MONTGOMERY COUNTY, MARYLAND By County Council SUBJECT: DOT Docket No. AB739 Abandonment -Executive Boulevard White Flint District, North Bethesda Background 1. By memorandum dated May 27, 2013 from the Director ofthe Montgomery County Department oftransportation, the Applicant, arequest was made for the County to abandon a portion ofexecutive Boulevard in the White Flint District ofnorth Bethesda. The portion ofthe right-of-way for which abandonment is sought is owned infee by the County. Pursuant to the 2010 White Flint Sector Plan this abandonment and associated realignment are recommended. 2. A Public Hearing to consider the abandonment proposal was held on September 18, 2013 by the designee ofthe County Executive. 3. Verizon indicated that it would require easements and a written statement that the County will pay all costs associated with relocating its facilities. 4. Washington Suburban Sanitary Commission conditioned its approval upon being granted a right-of-way 20 feet wide. 5. Washington Gas did not respond within 60 days and therefore, concurrence is presumed. 6. PEPCO did not respond within 60 days and therefore, concurrence is presumed. 7. The Montgomery County Police Department did not respond within 60 days and therefore, concurrence is presumed. 8. The Montgomery County Planning Board did not respond within 60 days and therefore, concurrence is presumed. 9. The Department offire and Rescue Services conditioned its approval provided that the new alignment is in service prior to the closure ofthe right-of-way. 10. The County Executive recommends approval ofthe proposed abandonment.

5 Action The County Council for Montgomery County, Maryland, finds that a portion of Executive Boulevard in the White Flint District ofnorth Bethesda as shown on the attached drawing is no longer necessary for public use, pursuant to Section ofthe Montgomery County Code, and approves the abandonment subject to the following conditions which must be satisfied at Applicant's sole cost and expense prior to the abandonment becoming effective: 1. The Applicant must grant easements and provide a written statement to Verizon concerning the Applicant's paying all costs associated with relocating Verizon's facilities; 2. The Applicant must grant Washington Suburban Sanitary Commission aright-of-way twenty feet wide; 3. The County Attorney must record among the Land Records ofmontgomery County, Maryland, a copy ofthis Resolution approving the abandonment ofthe subject area; and 4. Any person aggrieved by the action ofthe Council for abandonment may appeal to the Circuit Court within 30 days after the date such action is taken by Council. This is a correct copy of Council Action. Linda M. Lauer, Clerk ofthe Council

6 AB 7 3 Cf isiah Leggett County reclltive DEPARTMENT OF TRANSPORTATION Arthur Holmes, Jr. Director MEMORANDUM May 27,2013 TO: Isiah Leggett.. County Executive FROM: Arthur 'Holmes, Jr., Director ~L ~, Department oftransportation - - " SUBJECT: Request for Abandonment of Executive Boulevard The purpose ofthis memorandum is to request the abandonment ofa portion of Executive Boulevard in the White Flint District ofnorth Bethesda as shown on the attached drawing. This abandonment request is associated with the White Flint West Project, CIP No In implementing the White Flint West Project the Department oftransportation will make road improvements and re-alignments that, when complete, will eliminate the need for the subject section of Executive Boulevard. AH:rg cc: Michael Cassedy Thank you very much for your attention to this matter. Office of tbe Director 101 Monroe Street, IOthFloOf Rockville, Maryland FAXwww.montgomerycountymd.gov Locatcd aile block li't!sl oflhl!' Roch'iIle Metro SIlIlion

7 AS 73cr MONTGOMERY COUNTY EXEC.UTIVE ORDER Offices of the County Executive 101 Monroe Street. Rockville, Maryland Subject: Originating Department: Abandonment of Executive Boulevard White Flint District, North Bethesda Transportation Executive Order No Department Number AB Subject Suffix AB Effective Date 5/30/13 AB Pursuant to Section ofthe Montgomery County Code (2004) as amended, the County Executive or his Designee shall conduct a Public Hearing at 7:30 p.m. on Wednesday September 18,2013 Executive Office Building Lobby Auditorium 101 Momoe Street Rockville, Maryland to consider an application received from the Department of Transportation, the Applicant, seeking abandonment ofa portion of Executive Boulevard in the White Flint District ofnorth Bethesda. 2. After the aforesaid Hearing, the Hearing Officer shall report his findings and recommendations to the County Executive for further consideration as prescribed by County Code. Approved as to Form and Legality Office ofthe County Attorney By: ;t:;-:/fp Eric C. Willis Assistant County Attorney APPROVED ~a.m-~). Rlunona Bell-Pearson Assistant ChiefAdministrative Officer Date: sip-if /I}: Date: I f W40 d>, W[6 Distribution: Department of1'ransportation Department offinance Office ofthe County Attorney

8 Isiah Leggett County Executive OFFICE OF THE COUNTY EXECUTIVE ROCKVILLE, MARYLAND IN THE MATTER OF: Abandonment Petition AB739 Petition for the Abandonment ofexecutive Boulevard in the White Flint District ofnorth Bethesda, Maryland BEFORE: Michael L. Subin, Public Hearing Officer PUBLIC HEARING OFFICER'S REPORT AND RECOMMENDATION I. Ba~kground The property.owner, the Montgomery County, MD government (the "Applicant"), submitted a request, dated May 27,2013, for the abandonment ofexecutive Boulevard in the White Flint District ofnorth Bethesda, MD. (Exhibit 1)1 Executive Order , authorizing the hearing, was issued on May 30, (Exhibit 2) Notices were sent to nearby civic associations, residents, public utilities, and public agencies. (Exhibit 3).Public notice ofthe hearing appeared in The Montgomery Sentinel on September 5 and 12, (Exhibit 4) A public hearing was held on September 18,2013, at approximately 7:00 p.m., in the Executive Office Building Lobby Auditorium, 101 Monroe Street, Rockville, Maryland. II. Summary oftestimony and Evidence At the hearing on the proposed abandonment, Mr. Michael Cassedy, representing the Montgomery Department oftransportation ("MCDOT''), made introductory remarks on behalf ofthe Applicant. Mr. Cassedy read into the record the evidence and exhibits required by Montgomery County Code (2004), as amended. In addition to Exhibits 1-4, above, those exhibits included: Exhibit 5, an aerial photograph showing the subject area and vicinity; Exhibit 6, the sign announcing the public hearing, installed on August 6,2013; Exhibit 7, an and letter from Verizon, dated July 22, 2013, requiring easements or that the ~ounty deliver a written statement that all costs associated with pre1irninary design, permitting, and construction would be 1 While Montgomery County, MD is the formal Applicant, the application itself was submitted by the Montgomery County Department oftransportation. montgomerycountymd.gov/311 _am, j TTY

9 fully covered by the County which would also take care offinal paving duties when necessary; Exhibit 8, a letter from WSSC, dated August 6, 2013, stating that their approval is conditioned upon being granted a right-of-way twenty (20)-feet wide; Exhibit 9, an from the Office of the Montgomery County Fire Marshall, Montgomery County Department of Fire and Rescue Services, dated September 17,2013, approving the abandonment provided that the new alignment is in service prior to the closure ofthe right-of way_ In addition to reading the exhibits into the record, Mr. Cassedy further indicated that his office requested comments from the public, government agencies, and public utility companies in fulfil1ment ofthe requirements of the Montgomery County Code, Section 49-62,(2004) as amended. He stated that the abandonment request is associated with the White Flint District West project and implements the White Flint Sector Plan recommendations as approved in Mr. Cassedy indicated, in that MCDOT is the applicant, that they would not be taking a formal position on the record.. Testimony Mr. Thomas Riese, ChiefofMCDOT's Property Acquisition Branch ofthe Division of Transportation Engineering, spoke on behalfofthe Applicant He stated that the White Flint Sector Plan, approved and adopted in April, 2010, recommends major roadway alignments in the White Flint Sector Plan, including Executive Boulevard. Mr. Reise indicated that there would be other roadway alignments to be implemented in conjunction with Exe~utive Boulevard. He stated that the overall purpose ofthe road alignments, including the realigned Executive Boulevard, is to facilitate vehicular movement in conjunction with the Sector Plan and to give motorists an alternative to Rockville Pike (MD 355). The realigned Executive Boulevard is to be extended from Marinelli Road to Nebel Street, toughly parallel to MD 355. According to Mr. Reise, when the realigned Executive Boulevard is completed, the area proposed for abandonment will no longer be needed for public use. One individual stated that she represented the North Bethesda Neighborhoods Civic Association along and adjacent to Old Georgetown Road on the border ofthe White Flint sector? Among those concerns were: the cost ofthe project and that taxpayers should not be subsidizing private development and the construction ofthe planned four hundred (400) unit apartment building along Old Georgetown Road, north ofand adjacent to Wall Park and the Shriver Aquatic Center; there is no cost/benefit analysis showing how much the abandonment and new 2 The individual also submitted written testimony. (Exhibit 14) 2 (j)

10 construction will cost in total and how much the County will gain financially from the new road configuration; she had not seen a traffic analysis showing the number ofnew trips generated by the newroad configuration; and, finally, she had not seen plans for traffic calming measures to minimize cut-through traffic in the residential neighborhoods bordering the White Flint District She expressed concerns that her association had not received notice ofthe public hearing. Upon referencing the mailing list ofthose notified ofthe hearing (Exhibit 3), it was determined that her association, in fact, had not been notified. 3 The sp~er's concerns were addressed in a letter sent to her, after the public hearing, in response to that specific concern by ;Mr. Bruce Johnston, ChiefofMCDOT's Division oftransportation Engineering. (Exhibit 15) Mr. Johnston informed her that a notice ofthe hearing had gone out to the regi.stered home owners association where she lives. Mr. Johnston stated the notice was acknowledged by the.president ofthe association. Several individuals, speaking for organizations, spoke in favor ofthe abandonment.., Among those organizations were: the White Flint Downtown Advisory Committee; Friends of White Flint; and, the White Flint Implementation Advisory Committee. Those speakers, the Georgetown Village Condominiums, and one other individual al.so submitted written testimony in favor ofthe project.. (Exhibits 10-13) Neither Washington Gas, Pepco, the Montgomery County Public Schools, nor the Montgomery County Police Deparbnent provided any comments for the record. ID. Conclusions and Recommendations The abandonment ofroad rights-ofway is governed by the provisions ofsection of the Montgomery County Code (2004), as amended. Section pennits application for abandonment ofa right-of way by any person or government agency; provides for public agency and utility company review; and, requires a public hearing with notice. At the hearing, an individual identifying herselfas representing the North BethesdaNeighborhoods Civic Association raised multiple objections to the Abandonment and raised questions about impacts of the Abandonment on the community. While I made note ofher objections and questions, my efforts were directed toward her statement that she was not properly notified as required by statute. After conducting a briefinvestigation into how and to vvhom notices ofthis hearing were S The mailing list is determined from a data base of associations registered and held by the Maryland National Capital Parks and Planning Commission, and the North Bethesda Neighborhoods Civic Association is not registered in the data base. It appears that the Association is an ad hoc association formed to express their concerns with the White Flint Sector Plan.

11 communicated, I reached the following conclusions: 1. the County followed its prescribed practice ofsending notices to community and civic organizations that are registered wit the Maryland National Capital Park and Planning Commission ("MNCPPC"); 2. the complainant's civic organization is not registered with MNCPPC and, in fact, is an ad hoc group created to express concerns with the Sector Plan; 3. subsequent to the public hearing, MCDOT contacted the civic organization that represents the complainant's neighborhood; 4. a representative from that organization confirmed that he had received notice ofthe hearing and the group had discussed the road abandonment plan and registered no complaints or concerns; and, 5. Mr. Bruce Johnston, Chief of MCDOT's Division oftransportation Engineering, responded to the complaints and concerns raised by the complainant. I find that the hearing and notice procedures regarding this abandonment have been satisfied, and that the public, public agencies, and utility companies have been given an opportunity to review the petition for abandonment and closure as described above. Section allows abandonment ifthe right-of-way is not needed for public use or if the abandonment is necessary to protect the health, safety and welfare of the residents in the neighborhood. In determining health, safety and welfare issues, the Council may consider: 1) any adopted land use plan applicable to the neighborhood; 2) the safe and efficient pedestrian and vehicular traffic patterns and flows, together with alternatives in the immediate neighborhood for local and through traffic; or, 3) changes in fact and circumstances since the original dedication ofthe right-of way. In this case, the abandonment and partial closure turn on whether or not the right-of-way is needed for public use, whether is furthers the efficient flow of vehicular traffic, and whether the White Flint Sector Plan has been adopted. I find that current alignment of Executive it is not needed for public use, that there has been a change in fact and circumstance~ that the new alignment will enhance the public and the flow oftraffic within the sector, and that it is an element ofthe adopted White Flint Sector Plan. Therefore, the application meets the criteria of section Signature Page Follows 4.

12 Recommendation Based on a thorough review ofall testimony and evidence on the record, I conclude that the proposed abandonment ofexecutive Boulevard in the White Flint District ofnorth Bethes~ MD should be APPROVED because it is not needed for public use, would serve the public welfare, there has been a change in fact and circumstance, that it is an element ofthe approved element in the White Flint Sector Plan, and its realignment is an important element in the White Flint Sector Plan. ~~~ u,~ Date r The Public.Hearing Officer's Recommendations ~AB 737 ba~ reviewed and are APPROVED...~~. Isiah Leggett, COunty Executive -6)hJ t. ~ c') r J Date ' 5

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