Harford Business Ledger: May 2005

NOTE: Subsequent to my writing this column, the bill to revise Harford County's Adequate Public Facilities requirements, to which I refer in some detail, was withdrawn. I applaud the Harford County Council for having the courage to do the right thing!

Maybe it's my imagination, but it seems that there has been a recent rash of legislative over-reaction in response to hot topics of public interest. This issue seems to be presenting itself regularly not only on a national basis, but also on a state and local basis. Again, maybe it's just me, but the legislation produced in response to crises seems uniformly unsatisfactory -- to be blunt, "we the people" get saddled with bad laws.

It seems that whenever a crisis arises (be it real or perceived), legislators feel the obligation to do something -- anything -- just to be able to say their constituents that they have "addressed the situation." The most recent glaring example on the national level was the case of Terri Schiavo. Of the hundreds, perhaps even thousands of cases that occur each year in our country, wherein tragic circumstances result in a decision to disconnect a person from life support, the Schiavo case bubbled to the top of public interest and dominated national focus for weeks.

We all know what happened. Even though the case had been thoroughly vetted in the Federal and State court systems for more than a decade, and even though thousands of pages of cautious, deliberate judgments had been lodged on it at just about every level imaginable, in a perceived "crisis mode" a bill was rushed through Congress -- voted on by far fewer than half the members of the House of Representatives and by so few Senators (on a Sunday, of course!) that a "voice vote" was taken rather than a roll call -- and was signed by a President in his pajamas. Now, regardless of your feelings on the merits of this very controversial issue, very few people would agree that the legislation so hurriedly passed and made law was a well-reasoned or prudent exercise of legislative powers!

On a local level, precisely the same thing occurs. MTBE contamination was discovered in peoples' wells in Fallston, and by August 2004 extreme scrutiny descended upon the service station at the corner of Routes 152 and 165. In the face of nightly news broadcasts from the site, our County Council felt compelled to do something -- anything -- and quickly passed a law halting the construction of new facilities with a gas dispensing component.

What's wrong with that? Well, as a friend of mine quipped, "That's like passing a moratorium on the construction of banks because one was robbed!" How does preventing the construction of brand new state of the art facilities -- in an industry which has experienced a technological revolution in the past decade -- solve the problem of 30-year-old leaking tanks?

Now, there is no question that those citizens whose wells showed unacceptable MTBE levels were significantly affected, and that specific efforts had to be taken to help them. So -- pass legislation that accomplishes that goal! But the businesses and citizens (however few they might be) who were affected by the moratorium legislation that was passed were likewise affected in a devastating fashion. Considering that they were perhaps the only parties who definitely would NOT cause MTBE contamination, one might say that they had their rights and expectations capriciously taken by their local government without just compensation!

Worse yet, in the long term, the flawed MTBE legislation injects uncertainty in what otherwise would be a relatively routine administrative process. Henceforth, all transactions involving the dispensing of fuel will have a built-in hesitancy not previously present. Most probably, that hesitancy will take the form of additional contingencies to protect the oil companies: this will include burdens upon the property owner imposed by the oil companies to protect themselves. The result: the oil companies will be protected, while the land-owning citizens of Harford County involved in lease or sales of property to them will be harmed. That is surely not what the County Council intended to do!

This brings us to the heart of my topic. As I am writing this article, there is legislation pending before the County Council that will affect Harford County's adequate public facilities ordinances; this legislation is another example of a law, drafted in response to a perceived "crisis," that does not address the problem and that will certainly have consequences beyond those desired by its proponents.

To give some background, Harford County's adequate public facilities legislation has for some years imposed a moratorium on new residential construction in any school district where schools are deemed to be overcrowded (because residential construction ipso facto puts more students in schools). Recently, in fact, the County Council passed two bills lowering the definition of overcrowding from its previous level (120% of estimated school capacity) to 105%.

The effect of that legislation was, of course, to place every school district in the county under a partial or full residential housing construction moratorium, with the exception of Havre de Grace and Joppatowne school districts, which are operating at less than 105% of capacity.

Now, heretofore, such a residential housing moratorium exempted the building of housing for the elderly, because such housing obviously did not produce any impact on the schools (senior citizens generally produce no children!). Therein lay the seeds of the "crisis." A neighborhood uproar over a proposed senior development north of Bel Air included accusations that the exemption of housing for the elderly from the moratorium created a loophole that might allow unscrupulous developers to build units that would indeed add students to already-overcrowded schools. Acting in a responsible manner, the County Council passed new legislation tightening the definition of "housing for the elderly," to head off any potential abuse of the prior statute. This new legislation mandated that one of the occupants in these new developments MUST be over 55 years of age, and that under NO circumstances can anyone under the age of 19 occupy a dwelling in such a community for more than 60 days within a calendar year.

So far, so good, I guess. But here's the rub. Notwithstanding the studied and deliberate process undertaken in the passage of the above legislation, which included taking input from all of the concerned groups, and which included hearings, meetings and general discussions leading up to the passage of the loophole-elimination legislation, the County Council has introduced yet another piece of legislation: this one eliminates completely the exemption of senior or elderly housing from adequate public facility legislation.

In other words, a bill is now before the Council that says it will stop school overcrowding by stopping the construction of senior citizen communities!

To me, this is just another example of "Ready, Fire, Aim." By virtue of the already-enacted legislation, it is virtually impossible for senior or elderly housing to impact the schools. So either the suggested legislation is simply an overreaction in response to paranoia about evil developers "sneaking" more kids into the schools, or the bill is an attempt to simply stop all residential construction in the county (except, of course, in the school districts of Havre de Grace and Joppatowne).

If the agenda really is stopping ALL residential construction of all kinds in Harford County, why not just say so, and have a frank and open debate on the subject? To do otherwise is just another example of enacting a law simply as a reflexive response to a perceived crisis -- a law whose impact will have no effect on the crisis at hand, but which will have tremendous effects on other things, and on other people.