Agenda Item 5A
October 8, 2013
Action
MEMORANDUM
October 4, 2013
TO:
FROM:
County Council
~
Robert H. Drummer, Senior Legislative Attorney
Glenn Orlin, Deputy Council Administrator .,
SUBJECT:
Action: Bill 24-13, Streets and Roads - Authorization of Construction ­
Amendments
Transportation,
Infrastructure,
Energy 'and
recommendation (3-0): approve the
Bill
as introduced.
Environment
Committee
Bill 24-13, Streets and Roads - Authorization of Construction - Amendments, sponsored
by Council members Berliner, Floreen, and Riemer, was introduced on July 30. A public hearing
was held on September 10 and a Transportation, Infrastructure, Energy and Environment
Committee worksession was held on September 30.
Background
Bill 24-13 would:
• continue to require the Executive to hold a public hearing before authorizing an
assessment of costs for constructing a road;
• repeal the requirement that the Executive authorize the construction of a road
before beginning construction; and
• require the Director of Transportation to hold a hearing to receive comments on
the design of a road before beginning construction.
A County road construction project must be approved in the County's Six-Year Capital
Improvements Program (CIP). Construction cannot begin until the road project is funded in the
County's Capital Budget. Charter §304 requires the Council to hold public hearings on the
proposed budget and the proposed CIP before final approval. Many County road projects are
also "special capital improvement projects" that must be authorized by separate legislation after
a public hearing and may also be petitioned to referendum before the voters. Despite these
opportunities for public input during the CIP and budget process, current law also requires the
Executive to hold a public hearing and authorize a road construction project that is already
included in the approved CIP before beginning construction. Bill 24-13 would eliminate this
duplicative step in the process.
The Bill would continue to require the Executive to conduct a hearing before authorizing
an assessment against adjoining properties to finance the road project where the affected
 PDF to HTML - Convert PDF files to HTML files
property owners can challenge the proposed assessment. Although the Executive often receives
comments from the public on the design of the project at the authorization hearing, the Bill
would require the Director of the Department of Transportation (DOT) to hold a public hearing
just to receive comments on the design before beginning construction.
Public Hearing
There were no speakers at the September 10 public hearing.
T
&
E Committee Worksession
The Transportation, Infrastructure, Energy
&
Environment Committee reviewed the Bill
at a worksession on September 30, 2013. The Department of Transportation said that the
Executive Branch supported the Bill. The Committee unanimously recommended approval of
Bill 24-13 as introduced.
Discussion
The need for Bill 24-13 arises from the Thompson Road Connection project in the
Capital Improvements Program. This project, which was first identified in the
Cloverly Master
Plan
(adopted by the Council in 1997), would close a 300 foot-wide gap between Rainbow Drive
and Thompson Road next to Briggs Chaney Middle School in the Good Hope Estates
neighborhood of Cloverly.
The County Executive initially recommended funding this project in 2008 as part of his
Recommended FY09-14 CIP, and it has been recommended by the Executive and approved by
the Council in every CIP since. The funds for design were also appropriated in 2008. The
design of the road project has been changed: the roadway would be 24 feet wide instead of 36
feet, and an improved access for school buses to Briggs Chaney Middle School would be built.
The total cost of the project (including design) is $780,000. A separate traffic calming project on
Rainbow Drive just west of this project has been completed to mitigate speeding in the
neighborhood.
In January 2012, the Executive recommended appropnatmg $628,000 for site
improvements and utility work, construction, and supervision for this project, as part of his
Recommended FY13-18 CIP. In May 2012 the Council appropriated these funds as part of the
FY13 Capital Budget. The DOT plan was to initiate construction in 2013.
After the design was completed, the Executive held a public hearing for this project on
September 12, 2012. The Executive's hearing examiner drafted a report on February 22, 2013
finding that the project was not in the public interest and recommended that the Executive deny
construction of the project. The hearing examiner's report is at ©11-17. On February 25, 2013,
the Executive denied authorization for the project to proceed. This was the first time an
Executive has used this authority to unilaterally prevent an approved project from proceeding to
construction.
The Bill would not reverse the Executive's decision on this project. The Thompson Road
Connection project can be re-examined as part of the deliberations on the FY15-20 CIP next
2
 PDF to HTML - Convert PDF files to HTML files
year. The issue is whether or not the Executive should continue to have the unilateral authority
to terminate a road project that has been duly programmed and appropriated by the Council.
Such authority exists for no other type of County Government project. Elsewhere in the Charter
and the County Code the Executive's role in capital projects is to make recommendations, but
only the Council can approve a project. The Executive may veto a project, but the Council can
override the veto with six affirmative votes.
Bill 24-13 would, however, retain the requirement of an Executive hearing for a road
project before any assessments against abutting property owners are authorized to help fund it.
This is appropriate, since the final costs upon which the assessments would be based are not
known until the design is complete. The actual assessments would have to be approved by the
Council. Based upon experience over the past three decades, such an Executive hearing would
rarely happen, if ever, because Council staff cannot cite a single road project funded by
assessments during that time. Nevertheless the assessment option should be left open.
Bill 24-13 also requires DOT rather than the Executive to hold a hearing to solicit public
comments on the design prior to construction. Through such hearings DOT is able to get
feedback on its road design from those immediately impacted, and often this feedback results in
latter-stage design modifications that, while not significant to the cost or purpose of the project,
are significant to residents and businesses abutting the project.
Committee recommendation (3-0): approve the
BiIllls
introduced.
Circle
#
1
5
6
11
This packet contains:
Bill 24-13
Legislative Request Report
Fiscal and Economic Impact Statement
Hearing Officer's Report for Thompson Road Connection
F:\LAW\BILLS\1324 Streets And Roads· Authorization OfConstruction . Amendments\Action Memo.Doc
3
 PDF to HTML - Convert PDF files to HTML files
Bill No.
24-13
Concerning: Streets and Roads ­
Authorization of Construction
Amendments
Revised: July 24, 2013 Draft No. _8_
Introduced:
July 30,2013
Expires:
January 30,2015
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: -:..:.No""n...."e'---_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council members Berliner, Floreen, and Riemer
AN
ACT to:
(1)
(2)
(3)
(4)
require the Executive to hold a public hearing before authorizing an assessment of
costs for constructing a road;
repeal the requirement that the Executive authorize the construction of a road before
,
beginning construction of the road;
require the Director of Transportation to hold a hearing to receive comments on the
design of a road before beginning construction of the road; and
generally amend the law governing the construction of streets and roads.
By amending
Montgomery County Code
Chapter 49. Streets and Roads
Sections 49-52, 49-53, and 49-54
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
24-13
1
2
3
4
Sec. 1. Sections 49-52, 49-53, and 49-54 are amended as follows:
49-52. An assessment of costs for road [Road] construction to be authorized by
County Executive; Council to assess benefits.
(a)
The County must not [build] assess the cost of constructing any road as
~
5
benefit to adjacent property unless the [County] Executive has issued
6
7
an order authorizing the [construction] assessment. After the Executive
has authorized the [road] assessment, the County Council may assess
the cost of construction by resolution as a benefit to all property
adjacent to the road's right-of-way and specially benefited by its
construction as provided in this Section.
8
9
10
11
*
49-53. Public hearing; notice.
(a)
*
*
12
13
14
15
Before [any] an assessment for road construction [or assessment] is
authorized, the County Executive or a designee must hold a public
hearing. Any person who would be subject to an assessment or
otherwise affected by the location or construction of the road is entitled
to be heard at the hearing. Notice of the hearing must be sent by
certified or registered mail, at least 2 weeks before the scheduled date of
the hearing, to the owners of each property that would be subject to an
assessment, as listed in the records of the Department of Finance.
16
17
18
19
20
21
*
*
*
22
23
[(d) A public hearing need not be held under this Section before a sidewalk
or shared use path is constructed if:
(1 )
the sidewalk or path can be constructed entirely in one or more
existing public rights-of-way without a detailed engineering
design;
24
25
26
0:\l3W\bills\
1324
streets and roads - authorization of construction - amendments\bill
8
 PDF to HTML - Convert PDF files to HTML files
BILL No. 24-13
27
(2)
(A)
a
CIVIC
association, homeowner's association, or other
28
29
30
31
32
33
34
organization, which includes a substantial number of
owners of property located on the proposed route of the
sidewalk or path, has filed a notice of its support for the
sidewalk or path with the Executive or a designee; or
(B)
if no such organization has filed a notice of support, a
petition signed by a majority of owners of property located
on the proposed route of the sidewalk or path has been
filed with the Executive or a designee; and
(3)
the Executive finds, after the Executive's designee has given
notice to and met with residents of the area, that no significant
controversy has arisen that would require a public hearing to be
held.]
35
36
37
38
39
40
41
42
43
44
45
49-54.
(a)
Authorization
of
an
assessment
of
costs
for
construction;
recommendation of assessments to Council.
If, after the hearing, if any, required by Section 49-53 is held, the
[County] Executive finds that the public interest requires [all or part of
any] the [road construction project] assessment under consideration to
be carried out, the Executive must authorize the [road to be built]
assessment as required in this Chapter.
(b)
As soon as practicable after the Executive authorizes [the] an
assessment of costs for road construction [road] under this Section, and
after the hearing, if required, is held under Section 49-53, the [County]
Executive must forward to the [County] Council a written report
recommending any proposed assessments based on the estimated cost of
building the road. The report must describe the work to be done and
state, with particularity, what portion of the cost of the construction, if
§:\laW\biflS\1324 streets and roads - authorization
of
construction - amendments\bill 8
46
47
48
49
50
51
52
53
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
24-13
54
55
any, should be paid by the adjacent properties and what portion, if any,
of the cost should be paid by the County under this Chapter.
(c)
The recommendations must be based on the actual costs of publishing
notices, conducting hearings, advertising for bids, and engineering, and
the anticipated costs of financing to be incurred before the Council
adopts the assessment resolution.
Each cost assessment must be
56
57
58
59
60
61
62
computed on the basis of linear frontage of adjacent properties, except
as otherwise provided in this Chapter. The report must also estimate the
dollar amount of the cost share to be paid by adjacent properties.
@
63
64
Prior to beginning construction of any road, the Director of
Transportation, or his or her designee, must hold
~
public hearing to
65
receive comments on the proposed design of the road.
Approved:
66
67
Nancy Navarro, President, County Council
Date
68
Approved:
69
Isiah Leggett, County Executive
Date
70
71
This is a correct copy o/Council action.
Linda M. Lauer, Clerk of the Council
Date
Gf:\law\bills\1324 streets and roads - authorizationof construction - amendments\bill8
 PDF to HTML - Convert PDF files to HTML files
LEGISLATIVE REQUEST REPORT
Bill 24-13
Streets and Roads
-
Authorization ofConstruction
-
Amendments
DESCRIPTION:
The Bill would continue to require the Executive to hold a public
hearing before authorizing an assessment of costs for constructing a
road and repeal the requirement that the Executive authorize the
construction of a road before beginning construction. The Bill would
also require the DOT Director to hold a hearing to receive comments
on the design of a road before beginning construction.
Requiring the Executive to hold a public hearing before authorizing
the construction of any road adds a duplicative step for a County road
construction project because a County road project is already subject
to a public hearing before
it
is approved as part of the County's
Capital Improvements Program and funded in the capital budget.
Eliminate a duplicative step for a County road project.
Department of Transportation
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney, Glenn Orlin,
Deputy Council Administrator
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None
f:\law\bills\ 1324 streets and roads - authorization of construction - amendmi
 PDF to HTML - Convert PDF files to HTML files
ROCKVILLE, MARYLAND
MEMORANDUM
August
21, 2013
TO:
FROM:
Nancy NaVatTO, President, County Council
Jennifer A. Hughes, Director, Office of Manageme
n
+
Joseph F. Beach, Director, Depattment
OfFjnanc~"''''
a~get
SUBJECT:
Council Bill 24-13, Streets and Roads - Authorization of Construction ­
Amendments
Attached please find the fiscal and economic impact statements for the above­
referenced legislation.
JAH:dl
Attachment
c: Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Joseph F. Beach. Director, Depattment of Finance
Robert Hagedoom, Depattment of Finance
Alex Espinosa, Office of Management and Budget
Brady Goldsmith, Office of Management and Budget
Naeem Mia, Office ofManagement and Budget
Henri Apollon, Office of Management and Budget
 PDF to HTML - Convert PDF files to HTML files
Fiscal Impact Statement
Council Bill 24-13, Streets and Roads - Authorization of Construction - Amendments
1.
Legislative
Summary.
The Bill would continue to require the Executive to hold a public hearing before
authorizing an assessment of costs for constructing a road and repeal the requirement
that the Executive authorize the construction of a road before beginning construction.
The Bill would also require the DOT Director to hold a hearing to receive comments on
the design of a road before beginning construction.
2.
An
estimate of changes in County revenues and expenditures regardless of whether the
revenues or expenditures are assumed in the recommended or approved budget. Includes
source of information, assumptions, and methodologies used.
N/A
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
N/A
4.
An
actuarial analysis through the entire amortization period for each bill that would affect
retiree pension or group insurance costs.
N/A
5. Later actions that may affect future revenue and expenditures if the bill authorizes future
spending.
N/A
6.
An
estimate ofthe staff time needed to implement the bill.
Under current legislation, we prepare for and hold Public Hearings with the
purpose to determine if the project is needed for a public purpose. The proposed bill
would also require that we prepare for and hold Public Hearings although the
purpose would be to receive comments on the
propo~ed
design of a road. The staff
time required for preparation and holding of the Public Hearing would be
unchanged.
7.
An
explanation of how the addition of new staff responsibilities would affect other duties.
(j)
 PDF to HTML - Convert PDF files to HTML files
As noted in the response to question #6 above, there would be no change in staff
time as a result of this proposed bill. Therefore, there would be no affect on other
duties.
8.
An
estimate of costs when an additional appropriation is needed.
N/A
9. A description of any variable that could affect revenue and cost estimates.
N/A
10. Ranges ofrevenue or expenditures that are uncertain or difficult to project.
N/A
11. If a bill is likely to have no fiscal impact, why that is the case.
See response to question #6 above. There should be no fiscal impact because the
staff time required should not change.
12. Other fiscal impacts or comments.
13. The following contributed to and concurred with this analysis: Tony Alexiou, DOT and
Brady Goldsmith, OMB.
Date
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 24-13, Streets and Road - Authorization of Construction - Amendments
Background:
This legislation would:
• require the County Executive (Executive) to hold a public hearing before
authorizing an assessment of costs for constructing a road;
• repeal the requirement that the Executive authorize the construction of a road
before beginning construction ofthe road;
• require the Director of Transportation (Director) to hold a hearing to receive
comments on the design of a road before beginning construction of the road; and
• generally amend the law governing the construction of streets and roads.
1. The sources of information, assumptions, and methodologies used.
Montgomery County Department of Transportation (MCDOT) provided information.
As stated
in
the background section, Bill 24-13 amends the procedure that requires
the Executive "to conduct a public hearing before authorizing an assessment against
adjoining properties to finance the road project where the affected property owners
can challenge the proposed assessment." The assessment process would not change
under Bil124-13 and therefore there is no economic impact.
2. A description of any variable that could affect the economic impact estimates.
There is no economic impact (see paragraph #1)
3. The Bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property values in the County.
There is no economic impact (see paragraph #1).
4.
If
a Bill is likely to have no economic impact, why is that the case?
Please see paragraph
#1.
5. The following contributed to and concurred with this analysis: David
Platt
and
Rob Hagedooro, Finance, and AI Roshdieh, Deputy Director, Department of
Transportation (MCDOT);
Page 1 of2
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 24-13, Streets and Road - Authorization of Construction - Amendments
Page 2 of2
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
Isiah Leggett
COllnty Execlitive
IN THE MATTER OF: Thompson Road Connection
Proposed construction of a 300-foot section of Rainbow Drive from
its
terminus to an
intersection with Thompson Road.
BEFORE: Michael L. Subin, Public Hearing Officer
PUBLIC HEARING OFFICER'S REPORT AND RECOMMENDATION
I.
Background
The request for this project was initiated by the Montgomery County Department of
Transportation (hereinafter "MCDOT"). Project Description Form 500912 (hereinafter "the
PDF") (Exhibit 3) states that the road will provide a connection for residents between Thompson
Road and Rainbow Drive. The proposed project is planned to provide additional access for
emergency responders to Briggs Cheney Middle School (hereinafter "the School") and residents
along both Thompson Road and Rainbow Drive.' The proposed project is for a 300-foot
extension ofRainbow Drive, from its current terminus to an intersection with Thompson Road.
Both roads are located in Cloverly, within the Fifth Election District of Montgomery County,
MD. The project is also within the Upper Paint Branch Special Protection Area. The proposed
project was originally recommended in the 1981 Eastern Montgomery County Master Plan and
again in the 1997 Approved and Adopted Cloverly Master Plan. Total costs ofthe project are
expected to be $780,000, including engineering, land, site acquisition, utilities,' construction, and
construction inspection. Pursuant to
§
49-53 ofthe Montgomery County Code (2004), as
amended, MCDOT has determined that there are no properties which are considered to be
specially benefited by the proposed improvements and, therefore, no properties will be subject to
special assessments.
Executive Order 155-12 (hereinafter "EO 155-12"), pursuant to the Montgomery County
Code, Section 49-53 (2004) as amended, authorizing the hearing, was issued on August 23,
.2012. (Exhibit 1) Public notices for the hearing appeared
in
The Washington Post
on August 30
.
,
i
montgomerycountymd.gov/311
if~1?
. , • ;-
240-773-3556 TTY
@
 PDF to HTML - Convert PDF files to HTML files
and September 6, 2012, and
The Gazette Newspapers
on August 29 and September 5, 2012.
(Exhibit 4) Notices regarding the proposed project and hearing dates were mailed to citizens in
.
.
the area to be impacted, the Briarcliff Meadows Homeowners Association, the Montgomery
County Board of Education, Montgomery County Public Schools, Briggs Chaney Middle
School, the Maryland National Capital Parks and Planning Commission, and the Department of .
Fire and Rescue Services. (Exhibit 2) A public hearing was held on September 12, 2012, at
approximately 7:30 p.m., in the Lobby Auditorium ofthe Executive Office Building, 101
Monroe Street, Rockville,
MD
20850. The record was held·open until September 26, 2012 at
5:00p.m.
II.
Summary of Testimony and Evidence
Project Description
The, project proposal was described by
Mr.
Bruce Johnston, Chief of the Division of
Capital Development for MCDOT.
Mr.
Johnston testified that the purpose of the project as one
which would impr<?ve the roadway network connectivity for the community and decrease
response time for emergency response to the community and the Middle School.
Mr.
Johnston further testified as to the elements of the proposed project: The project
provides for a three hundred-foot extension of Rainbow Drive as a two-lane, open-section,
primary roadway/ the construction of a 3-foot wide flat bottom ditch along both sides of the
roadway; installation oftwo yard inlets and a manhole with an 18-inch diameter, reinforced
concrete pipe connecting to the existing storm drain; installation of streetlights and street trees
along the proposed roadway; reconfiguration and reconstruction of the bus lot at Briggs Chaney
Middle School; the construction of a 24-foot wide bituminous concrete driveway from the bus lot
to the proposed intersection ofRainbow Drive and Thompson Road; removal of 157 feet of4­
foot wide existing concrete sidewalk between south side of Thompson Road and the entrance to
the existing bus lot; construction of 240-feet of four-foot wide concrete sidewalk along the south
side of the proposed section of Rainbow Drive; 104-feet of four-foot wide concrete sidewalk
along the west side of Thompson Road; 237-feet of a six-foot wide concrete sidewalk along the
east side ofthe proposed driveway to the School; and, removal of six trees that range from two
inches in diameter to eight-inches in diameter with replacement by two-inch diameter trees.
1
Montgomery County Code §49-31 defines a primary roadway as a road meant primarily for circulation in
residential zones, although some through traffic is expected.
2
@
 PDF to HTML - Convert PDF files to HTML files
In accordance with Council Resolution 13-198, three conditions were required to be met
before the connection could be constmcted: 1. the connection would have to be designed and
budgeted to include traffic calming devices such as circles and traffic humps;
2.
the connections
was not to occur sooner than when Norbeck Road Extended was open to traffic; and, 3. the
connection was not to occur prior to the completion of a County in initiated study of cut-through
traffic on the primary and secondary residential street system with the areas bounded by
SpencerVille Road., Peach Orchard Road, Briggs Cheney Road, and Good Hope Road to include
Rainbow Drive and Thompson Road along with implementation of the measures identified to
address cut-through traffic. According to Mr. Johnston, all of the conditions have been met.
Significantly, Rainbow Drive has be,en reduced to a width of 24-feet from 36-feet at various
locations between Valencia Street and Briggs Cheney Middle School.
In
addition, two median
islands on Rainbow Drive have been installed. The reconstruction ofthe existing school bus lot,
as requested by the Montgomery County Public School System, and the addition ofthe driveway
to improve bus circulation at the school has occurred.
Testimony and Written Comments
Joined by Ms. Claire Iseli ofCouncilmember Marc Eirich's staff, the Hearing Officer
observed the area of the proposed roadway on December 12, 2012.
It
was observed the both
Rainbow Drive and Thompson Road are two lane, one lane in each direction, roads. With the
exception of Briggs Cheney Middle School, the neighborhood consists of single family homes.
Significantly, far less vehicle traffic was observed either on Thompson Road or the section of
Rainbow Drive to be extended as compared to the other roads in the area. That network ofroads
provides connectivity between Spencerville Road
(Rt.
198),
Briggs
Cheney Road, and Peach'
Orchard Road. The traffic calming measures recently installed appear no have little, if no,
impact. The extension would provide no additional connectivity to public transportation,
recreation centers, religious institutions, or shopping centers. Given the existing networks, there
does not appear to be any benefit to be gained for public safety purposes. In fact, the Hearing
Officer, as a technical matter, inquired as to whether the extension would provide any benefit to
public safety. He was informed that DFRS already has established routes and procedures for the
area. Therefore, there would be no additional public safety benefits to be gained by connecting
Rainbow Drive and Thompson Road.
3
 PDF to HTML - Convert PDF files to HTML files
Marjorie Davis, President of the Good Hope Estates Civic Association stated that she had
sent out 600 surveys to. residents of the Civic Association requesting to know whether they were
for or against the project. Forty-two percent of those surveyed returned the questionnaire.
Three-quarters ofthe respondents replied negatively. Ms. Davis summarized the concerns made
~y
those
who responded: 1. the connector would increase traffic from Peach
Orch~d
Road to
Good Hope Road; 2. excessive speed by automobiles and school buses passing through, even
under current conditions; 3. and, safety issues for children walking to school, and for those
walking and biking through the,neighborhood despite the absence of sidewalks; and, 4.
expenditures for a project that was not desired by the community. She also expressed the
concern of the community that the traffic calming measures are ineffective. Ms. Davis also
noted that there is no depiction of what he intersection of Rainbow Drive and Thompson Road
would look like, especially since Thompson Road takes a 90-degree
turn
at the point ofthe
connection.
In
sum, she stated that the community is opposed to the project.
Mr. Ken Barnes, a fonner Vice-President of the Civic Association, referred to the 1997
Approved and Adopted Cloverly Master Plan. He stated that during the Master Plan process, the
Civic Association expressed its opposition to the connector.
Mr.
Barnes, echoing the testimony
ofMs. Davis, remarked that even school buses tend to speed on both Thompson Road and
Rainbow Drive. He also observed that the traffic calming which have been put in place have had
minimal to no impact. He also expressed the concern that the connector would encourage cut­
thru traffic to Spencerville and Briggs Cheney Roads through Peach Orchard Road.
The testimony of the remaining speakers and written remarks from several individuals
reflected the statements made by Ms. Davis and
Mr.,
Barnes. That testimony was
overwhelmingly against this proposed project.
m.
Conclusions and Recommendations
Section 49-53 (a) of the Montgomery County Code, 2004, as amended, mandates that
"[b]efore any road construction or assessment is authorized, the County Executive or a designee
must hold a public hearing. Any person who would be subject to an assessment or otherwise
affected by the location or construction ofthe road is entitled to be heard at the hearing. Notice
ofthe hearing must be sent by certified or registered mail, at least 2 weeks before the scheduled
date of the hearing, to the owners of each property that would be subject to an assessment, as
listed in the records of the Department of Finance." Sec. 49-53(b) enumerates the information to
I
1=
4
 PDF to HTML - Convert PDF files to HTML files
be supplied in the notification. Sec. 49-53(c) mandates that «[a] summary of the notice provided
for in this Section must be published twice in a newspaper of general circulation
in
the County
before the scheduled date ofthe hearing. The summary must tell where a full copy ofthe notice
may be obtained." I find that the hearing and notice procedures have been satisfied, and that
public agencies and other interested entities have been given an opportunity to review this
specific project as requested by the MCDOT.
The connection would increase circulation in the neighborhood. However, it would also
provide increased access to Spencerville Road (Md. Rt 198), Briggs Cheney Road, and Peach
Orchard Road.
It
would also provide easier access to commercial areas along both Spencerville
and Briggs Cheney Roads, thus potentially increasing traffic along both Thompson Road and
Rainbow Drive. While the definition of a primary road includes the recognition that some
through traffic is to be expected, an application of the balancing test would lead one to conclude
that any benefit to residents that may be provided by the connector would be far out-weighed by
the negative impact expressed by the witnesses. The residents on both streets already have easy
access to the main roads in the area, and the maj ority of benefits would inure to vehicles from
outside the neighborhood. Traffic in the area of Briggs Cheney Middle School would also
increase, potentially impacting the safety of the students and school buses.
It
is also important to
note that both Thompson Road and Rainbow Drive are two lane roads. Of note, is MCDOT's
testimony that the width of Rainbow Drive between Valencia Street and Briggs Cheney Middle
School was recently
reduced
from 36 to 24-feet for the purpose of obtaining traffic calming
measures. Further, while the Hearing Officer did note that other traffic calming measures had
been installed, they did not appear as ifthey have been effective. the Hearing Officer and the·
County are always quite concerned about emergency response. Although the Department's
testimony stated that emergency response might be improved by the connection, technical
discussions with DFRS revealed that no positive impacts would be realized.
Consequently, I do not find that the proposed connector will be in the public interest
The "public interest" is a broad concept that manifests itself in a variety of contexts. When, as
here, a construction project is involved, the project will be considered to be in the public interest
if it will do such things as promote the general health and safety ofthe citizenry, protect the
environment, preserve open space, or otherwise advance the community's quality oflife.
See
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 701 (1999)). This
5
 PDF to HTML - Convert PDF files to HTML files
includes providing for the safe and efficient flow ofvehicular and pedestrian traffic.
(See
Wheaton Moose Lodge No. 1775 v.
Montg~mery
County, Maryland, 41 Md. App. 401, 397 A.2d
280 (1979)). I frod that the proposed connection
does not
meet any ofthe tests enumerated
above.
Based upon a thorough review of all testimony and evidence on the record, I conclude
that the construction ofthe Thompson Road Connection to not be in the public interest and
recommend that the CoUnty Executive DENY construction ofthe project.
SIGNATURE PAGE FOLLOWS
6
 PDF to HTML - Convert PDF files to HTML files
Michael.L. Subin, Hearing Officer
~L
I
'~~6~'1l:l-
W\
-S
Date
The Hearing Officer's Report and Recommendation for construction ofthe Thompson
Road Connection in Colesville, Silver Spring, Maryland has been reviewed and the proposed
project is hereby DENIED authorization to proceed.
7
@)
 PDF to HTML - Convert PDF files to HTML files
Agenda Item 5A
October 8, 2013
Action
MEMORANDUM
October 4, 2013
TO:
FROM:
County Council
~
Robert H. Drummer, Senior Legislative Attorney
Glenn Orlin, Deputy Council Administrator .,
SUBJECT:
Action: Bill 24-13, Streets and Roads - Authorization of Construction ­
Amendments
Transportation,
Infrastructure,
Energy 'and
recommendation (3-0): approve the
Bill
as introduced.
Environment
Committee
Bill 24-13, Streets and Roads - Authorization of Construction - Amendments, sponsored
by Council members Berliner, Floreen, and Riemer, was introduced on July 30. A public hearing
was held on September 10 and a Transportation, Infrastructure, Energy and Environment
Committee worksession was held on September 30.
Background
Bill 24-13 would:
• continue to require the Executive to hold a public hearing before authorizing an
assessment of costs for constructing a road;
• repeal the requirement that the Executive authorize the construction of a road
before beginning construction; and
• require the Director of Transportation to hold a hearing to receive comments on
the design of a road before beginning construction.
A County road construction project must be approved in the County's Six-Year Capital
Improvements Program (CIP). Construction cannot begin until the road project is funded in the
County's Capital Budget. Charter §304 requires the Council to hold public hearings on the
proposed budget and the proposed CIP before final approval. Many County road projects are
also "special capital improvement projects" that must be authorized by separate legislation after
a public hearing and may also be petitioned to referendum before the voters. Despite these
opportunities for public input during the CIP and budget process, current law also requires the
Executive to hold a public hearing and authorize a road construction project that is already
included in the approved CIP before beginning construction. Bill 24-13 would eliminate this
duplicative step in the process.
The Bill would continue to require the Executive to conduct a hearing before authorizing
an assessment against adjoining properties to finance the road project where the affected
 PDF to HTML - Convert PDF files to HTML files
property owners can challenge the proposed assessment. Although the Executive often receives
comments from the public on the design of the project at the authorization hearing, the Bill
would require the Director of the Department of Transportation (DOT) to hold a public hearing
just to receive comments on the design before beginning construction.
Public Hearing
There were no speakers at the September 10 public hearing.
T
&
E Committee Worksession
The Transportation, Infrastructure, Energy
&
Environment Committee reviewed the Bill
at a worksession on September 30, 2013. The Department of Transportation said that the
Executive Branch supported the Bill. The Committee unanimously recommended approval of
Bill 24-13 as introduced.
Discussion
The need for Bill 24-13 arises from the Thompson Road Connection project in the
Capital Improvements Program. This project, which was first identified in the
Cloverly Master
Plan
(adopted by the Council in 1997), would close a 300 foot-wide gap between Rainbow Drive
and Thompson Road next to Briggs Chaney Middle School in the Good Hope Estates
neighborhood of Cloverly.
The County Executive initially recommended funding this project in 2008 as part of his
Recommended FY09-14 CIP, and it has been recommended by the Executive and approved by
the Council in every CIP since. The funds for design were also appropriated in 2008. The
design of the road project has been changed: the roadway would be 24 feet wide instead of 36
feet, and an improved access for school buses to Briggs Chaney Middle School would be built.
The total cost of the project (including design) is $780,000. A separate traffic calming project on
Rainbow Drive just west of this project has been completed to mitigate speeding in the
neighborhood.
In January 2012, the Executive recommended appropnatmg $628,000 for site
improvements and utility work, construction, and supervision for this project, as part of his
Recommended FY13-18 CIP. In May 2012 the Council appropriated these funds as part of the
FY13 Capital Budget. The DOT plan was to initiate construction in 2013.
After the design was completed, the Executive held a public hearing for this project on
September 12, 2012. The Executive's hearing examiner drafted a report on February 22, 2013
finding that the project was not in the public interest and recommended that the Executive deny
construction of the project. The hearing examiner's report is at ©11-17. On February 25, 2013,
the Executive denied authorization for the project to proceed. This was the first time an
Executive has used this authority to unilaterally prevent an approved project from proceeding to
construction.
The Bill would not reverse the Executive's decision on this project. The Thompson Road
Connection project can be re-examined as part of the deliberations on the FY15-20 CIP next
2
 PDF to HTML - Convert PDF files to HTML files
year. The issue is whether or not the Executive should continue to have the unilateral authority
to terminate a road project that has been duly programmed and appropriated by the Council.
Such authority exists for no other type of County Government project. Elsewhere in the Charter
and the County Code the Executive's role in capital projects is to make recommendations, but
only the Council can approve a project. The Executive may veto a project, but the Council can
override the veto with six affirmative votes.
Bill 24-13 would, however, retain the requirement of an Executive hearing for a road
project before any assessments against abutting property owners are authorized to help fund it.
This is appropriate, since the final costs upon which the assessments would be based are not
known until the design is complete. The actual assessments would have to be approved by the
Council. Based upon experience over the past three decades, such an Executive hearing would
rarely happen, if ever, because Council staff cannot cite a single road project funded by
assessments during that time. Nevertheless the assessment option should be left open.
Bill 24-13 also requires DOT rather than the Executive to hold a hearing to solicit public
comments on the design prior to construction. Through such hearings DOT is able to get
feedback on its road design from those immediately impacted, and often this feedback results in
latter-stage design modifications that, while not significant to the cost or purpose of the project,
are significant to residents and businesses abutting the project.
Committee recommendation (3-0): approve the
BiIllls
introduced.
Circle
#
1
5
6
11
This packet contains:
Bill 24-13
Legislative Request Report
Fiscal and Economic Impact Statement
Hearing Officer's Report for Thompson Road Connection
F:\LAW\BILLS\1324 Streets And Roads· Authorization OfConstruction . Amendments\Action Memo.Doc
3
 PDF to HTML - Convert PDF files to HTML files
Bill No.
24-13
Concerning: Streets and Roads ­
Authorization of Construction
Amendments
Revised: July 24, 2013 Draft No. _8_
Introduced:
July 30,2013
Expires:
January 30,2015
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date: -:..:.No""n...."e'---_ _ _ _ __
Ch. _ _, Laws of Mont. Co. _ __
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Council members Berliner, Floreen, and Riemer
AN
ACT to:
(1)
(2)
(3)
(4)
require the Executive to hold a public hearing before authorizing an assessment of
costs for constructing a road;
repeal the requirement that the Executive authorize the construction of a road before
,
beginning construction of the road;
require the Director of Transportation to hold a hearing to receive comments on the
design of a road before beginning construction of the road; and
generally amend the law governing the construction of streets and roads.
By amending
Montgomery County Code
Chapter 49. Streets and Roads
Sections 49-52, 49-53, and 49-54
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface bracketsD
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
24-13
1
2
3
4
Sec. 1. Sections 49-52, 49-53, and 49-54 are amended as follows:
49-52. An assessment of costs for road [Road] construction to be authorized by
County Executive; Council to assess benefits.
(a)
The County must not [build] assess the cost of constructing any road as
~
5
benefit to adjacent property unless the [County] Executive has issued
6
7
an order authorizing the [construction] assessment. After the Executive
has authorized the [road] assessment, the County Council may assess
the cost of construction by resolution as a benefit to all property
adjacent to the road's right-of-way and specially benefited by its
construction as provided in this Section.
8
9
10
11
*
49-53. Public hearing; notice.
(a)
*
*
12
13
14
15
Before [any] an assessment for road construction [or assessment] is
authorized, the County Executive or a designee must hold a public
hearing. Any person who would be subject to an assessment or
otherwise affected by the location or construction of the road is entitled
to be heard at the hearing. Notice of the hearing must be sent by
certified or registered mail, at least 2 weeks before the scheduled date of
the hearing, to the owners of each property that would be subject to an
assessment, as listed in the records of the Department of Finance.
16
17
18
19
20
21
*
*
*
22
23
[(d) A public hearing need not be held under this Section before a sidewalk
or shared use path is constructed if:
(1 )
the sidewalk or path can be constructed entirely in one or more
existing public rights-of-way without a detailed engineering
design;
24
25
26
0:\l3W\bills\
1324
streets and roads - authorization of construction - amendments\bill
8
 PDF to HTML - Convert PDF files to HTML files
BILL No. 24-13
27
(2)
(A)
a
CIVIC
association, homeowner's association, or other
28
29
30
31
32
33
34
organization, which includes a substantial number of
owners of property located on the proposed route of the
sidewalk or path, has filed a notice of its support for the
sidewalk or path with the Executive or a designee; or
(B)
if no such organization has filed a notice of support, a
petition signed by a majority of owners of property located
on the proposed route of the sidewalk or path has been
filed with the Executive or a designee; and
(3)
the Executive finds, after the Executive's designee has given
notice to and met with residents of the area, that no significant
controversy has arisen that would require a public hearing to be
held.]
35
36
37
38
39
40
41
42
43
44
45
49-54.
(a)
Authorization
of
an
assessment
of
costs
for
construction;
recommendation of assessments to Council.
If, after the hearing, if any, required by Section 49-53 is held, the
[County] Executive finds that the public interest requires [all or part of
any] the [road construction project] assessment under consideration to
be carried out, the Executive must authorize the [road to be built]
assessment as required in this Chapter.
(b)
As soon as practicable after the Executive authorizes [the] an
assessment of costs for road construction [road] under this Section, and
after the hearing, if required, is held under Section 49-53, the [County]
Executive must forward to the [County] Council a written report
recommending any proposed assessments based on the estimated cost of
building the road. The report must describe the work to be done and
state, with particularity, what portion of the cost of the construction, if
§:\laW\biflS\1324 streets and roads - authorization
of
construction - amendments\bill 8
46
47
48
49
50
51
52
53
 PDF to HTML - Convert PDF files to HTML files
BILL
No.
24-13
54
55
any, should be paid by the adjacent properties and what portion, if any,
of the cost should be paid by the County under this Chapter.
(c)
The recommendations must be based on the actual costs of publishing
notices, conducting hearings, advertising for bids, and engineering, and
the anticipated costs of financing to be incurred before the Council
adopts the assessment resolution.
Each cost assessment must be
56
57
58
59
60
61
62
computed on the basis of linear frontage of adjacent properties, except
as otherwise provided in this Chapter. The report must also estimate the
dollar amount of the cost share to be paid by adjacent properties.
@
63
64
Prior to beginning construction of any road, the Director of
Transportation, or his or her designee, must hold
~
public hearing to
65
receive comments on the proposed design of the road.
Approved:
66
67
Nancy Navarro, President, County Council
Date
68
Approved:
69
Isiah Leggett, County Executive
Date
70
71
This is a correct copy o/Council action.
Linda M. Lauer, Clerk of the Council
Date
Gf:\law\bills\1324 streets and roads - authorizationof construction - amendments\bill8
 PDF to HTML - Convert PDF files to HTML files
LEGISLATIVE REQUEST REPORT
Bill 24-13
Streets and Roads
-
Authorization ofConstruction
-
Amendments
DESCRIPTION:
The Bill would continue to require the Executive to hold a public
hearing before authorizing an assessment of costs for constructing a
road and repeal the requirement that the Executive authorize the
construction of a road before beginning construction. The Bill would
also require the DOT Director to hold a hearing to receive comments
on the design of a road before beginning construction.
Requiring the Executive to hold a public hearing before authorizing
the construction of any road adds a duplicative step for a County road
construction project because a County road project is already subject
to a public hearing before
it
is approved as part of the County's
Capital Improvements Program and funded in the capital budget.
Eliminate a duplicative step for a County road project.
Department of Transportation
To be requested.
To be requested.
To be requested.
To be researched.
Robert H. Drummer, Senior Legislative Attorney, Glenn Orlin,
Deputy Council Administrator
To be researched.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERIENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
None
f:\law\bills\ 1324 streets and roads - authorization of construction - amendmi
 PDF to HTML - Convert PDF files to HTML files
ROCKVILLE, MARYLAND
MEMORANDUM
August
21, 2013
TO:
FROM:
Nancy NaVatTO, President, County Council
Jennifer A. Hughes, Director, Office of Manageme
n
+
Joseph F. Beach, Director, Depattment
OfFjnanc~"''''
a~get
SUBJECT:
Council Bill 24-13, Streets and Roads - Authorization of Construction ­
Amendments
Attached please find the fiscal and economic impact statements for the above­
referenced legislation.
JAH:dl
Attachment
c: Kathleen Boucher, Assistant Chief Administrative Officer
Lisa Austin, Offices ofthe County Executive
Joy Nurmi, Special Assistant to the County Executive
Patrick Lacefield, Director, Public Information Office
Joseph F. Beach. Director, Depattment of Finance
Robert Hagedoom, Depattment of Finance
Alex Espinosa, Office of Management and Budget
Brady Goldsmith, Office of Management and Budget
Naeem Mia, Office ofManagement and Budget
Henri Apollon, Office of Management and Budget
 PDF to HTML - Convert PDF files to HTML files
Fiscal Impact Statement
Council Bill 24-13, Streets and Roads - Authorization of Construction - Amendments
1.
Legislative
Summary.
The Bill would continue to require the Executive to hold a public hearing before
authorizing an assessment of costs for constructing a road and repeal the requirement
that the Executive authorize the construction of a road before beginning construction.
The Bill would also require the DOT Director to hold a hearing to receive comments on
the design of a road before beginning construction.
2.
An
estimate of changes in County revenues and expenditures regardless of whether the
revenues or expenditures are assumed in the recommended or approved budget. Includes
source of information, assumptions, and methodologies used.
N/A
3. Revenue and expenditure estimates covering at least the next 6 fiscal years.
N/A
4.
An
actuarial analysis through the entire amortization period for each bill that would affect
retiree pension or group insurance costs.
N/A
5. Later actions that may affect future revenue and expenditures if the bill authorizes future
spending.
N/A
6.
An
estimate ofthe staff time needed to implement the bill.
Under current legislation, we prepare for and hold Public Hearings with the
purpose to determine if the project is needed for a public purpose. The proposed bill
would also require that we prepare for and hold Public Hearings although the
purpose would be to receive comments on the
propo~ed
design of a road. The staff
time required for preparation and holding of the Public Hearing would be
unchanged.
7.
An
explanation of how the addition of new staff responsibilities would affect other duties.
(j)
 PDF to HTML - Convert PDF files to HTML files
As noted in the response to question #6 above, there would be no change in staff
time as a result of this proposed bill. Therefore, there would be no affect on other
duties.
8.
An
estimate of costs when an additional appropriation is needed.
N/A
9. A description of any variable that could affect revenue and cost estimates.
N/A
10. Ranges ofrevenue or expenditures that are uncertain or difficult to project.
N/A
11. If a bill is likely to have no fiscal impact, why that is the case.
See response to question #6 above. There should be no fiscal impact because the
staff time required should not change.
12. Other fiscal impacts or comments.
13. The following contributed to and concurred with this analysis: Tony Alexiou, DOT and
Brady Goldsmith, OMB.
Date
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 24-13, Streets and Road - Authorization of Construction - Amendments
Background:
This legislation would:
• require the County Executive (Executive) to hold a public hearing before
authorizing an assessment of costs for constructing a road;
• repeal the requirement that the Executive authorize the construction of a road
before beginning construction ofthe road;
• require the Director of Transportation (Director) to hold a hearing to receive
comments on the design of a road before beginning construction of the road; and
• generally amend the law governing the construction of streets and roads.
1. The sources of information, assumptions, and methodologies used.
Montgomery County Department of Transportation (MCDOT) provided information.
As stated
in
the background section, Bill 24-13 amends the procedure that requires
the Executive "to conduct a public hearing before authorizing an assessment against
adjoining properties to finance the road project where the affected property owners
can challenge the proposed assessment." The assessment process would not change
under Bil124-13 and therefore there is no economic impact.
2. A description of any variable that could affect the economic impact estimates.
There is no economic impact (see paragraph #1)
3. The Bill's positive or negative effect,
if
any on employment, spending, saving,
investment, incomes, and property values in the County.
There is no economic impact (see paragraph #1).
4.
If
a Bill is likely to have no economic impact, why is that the case?
Please see paragraph
#1.
5. The following contributed to and concurred with this analysis: David
Platt
and
Rob Hagedooro, Finance, and AI Roshdieh, Deputy Director, Department of
Transportation (MCDOT);
Page 1 of2
 PDF to HTML - Convert PDF files to HTML files
Economic Impact Statement
Bill 24-13, Streets and Road - Authorization of Construction - Amendments
Page 2 of2
 PDF to HTML - Convert PDF files to HTML files
OFFICE OF THE COUNTY EXECUTIVE
ROCKVILLE, MARYLAND 20850
Isiah Leggett
COllnty Execlitive
IN THE MATTER OF: Thompson Road Connection
Proposed construction of a 300-foot section of Rainbow Drive from
its
terminus to an
intersection with Thompson Road.
BEFORE: Michael L. Subin, Public Hearing Officer
PUBLIC HEARING OFFICER'S REPORT AND RECOMMENDATION
I.
Background
The request for this project was initiated by the Montgomery County Department of
Transportation (hereinafter "MCDOT"). Project Description Form 500912 (hereinafter "the
PDF") (Exhibit 3) states that the road will provide a connection for residents between Thompson
Road and Rainbow Drive. The proposed project is planned to provide additional access for
emergency responders to Briggs Cheney Middle School (hereinafter "the School") and residents
along both Thompson Road and Rainbow Drive.' The proposed project is for a 300-foot
extension ofRainbow Drive, from its current terminus to an intersection with Thompson Road.
Both roads are located in Cloverly, within the Fifth Election District of Montgomery County,
MD. The project is also within the Upper Paint Branch Special Protection Area. The proposed
project was originally recommended in the 1981 Eastern Montgomery County Master Plan and
again in the 1997 Approved and Adopted Cloverly Master Plan. Total costs ofthe project are
expected to be $780,000, including engineering, land, site acquisition, utilities,' construction, and
construction inspection. Pursuant to
§
49-53 ofthe Montgomery County Code (2004), as
amended, MCDOT has determined that there are no properties which are considered to be
specially benefited by the proposed improvements and, therefore, no properties will be subject to
special assessments.
Executive Order 155-12 (hereinafter "EO 155-12"), pursuant to the Montgomery County
Code, Section 49-53 (2004) as amended, authorizing the hearing, was issued on August 23,
.2012. (Exhibit 1) Public notices for the hearing appeared
in
The Washington Post
on August 30
.
,
i
montgomerycountymd.gov/311
if~1?
. , • ;-
240-773-3556 TTY
@
 PDF to HTML - Convert PDF files to HTML files
and September 6, 2012, and
The Gazette Newspapers
on August 29 and September 5, 2012.
(Exhibit 4) Notices regarding the proposed project and hearing dates were mailed to citizens in
.
.
the area to be impacted, the Briarcliff Meadows Homeowners Association, the Montgomery
County Board of Education, Montgomery County Public Schools, Briggs Chaney Middle
School, the Maryland National Capital Parks and Planning Commission, and the Department of .
Fire and Rescue Services. (Exhibit 2) A public hearing was held on September 12, 2012, at
approximately 7:30 p.m., in the Lobby Auditorium ofthe Executive Office Building, 101
Monroe Street, Rockville,
MD
20850. The record was held·open until September 26, 2012 at
5:00p.m.
II.
Summary of Testimony and Evidence
Project Description
The, project proposal was described by
Mr.
Bruce Johnston, Chief of the Division of
Capital Development for MCDOT.
Mr.
Johnston testified that the purpose of the project as one
which would impr<?ve the roadway network connectivity for the community and decrease
response time for emergency response to the community and the Middle School.
Mr.
Johnston further testified as to the elements of the proposed project: The project
provides for a three hundred-foot extension of Rainbow Drive as a two-lane, open-section,
primary roadway/ the construction of a 3-foot wide flat bottom ditch along both sides of the
roadway; installation oftwo yard inlets and a manhole with an 18-inch diameter, reinforced
concrete pipe connecting to the existing storm drain; installation of streetlights and street trees
along the proposed roadway; reconfiguration and reconstruction of the bus lot at Briggs Chaney
Middle School; the construction of a 24-foot wide bituminous concrete driveway from the bus lot
to the proposed intersection ofRainbow Drive and Thompson Road; removal of 157 feet of4­
foot wide existing concrete sidewalk between south side of Thompson Road and the entrance to
the existing bus lot; construction of 240-feet of four-foot wide concrete sidewalk along the south
side of the proposed section of Rainbow Drive; 104-feet of four-foot wide concrete sidewalk
along the west side of Thompson Road; 237-feet of a six-foot wide concrete sidewalk along the
east side ofthe proposed driveway to the School; and, removal of six trees that range from two
inches in diameter to eight-inches in diameter with replacement by two-inch diameter trees.
1
Montgomery County Code §49-31 defines a primary roadway as a road meant primarily for circulation in
residential zones, although some through traffic is expected.
2
@
 PDF to HTML - Convert PDF files to HTML files
In accordance with Council Resolution 13-198, three conditions were required to be met
before the connection could be constmcted: 1. the connection would have to be designed and
budgeted to include traffic calming devices such as circles and traffic humps;
2.
the connections
was not to occur sooner than when Norbeck Road Extended was open to traffic; and, 3. the
connection was not to occur prior to the completion of a County in initiated study of cut-through
traffic on the primary and secondary residential street system with the areas bounded by
SpencerVille Road., Peach Orchard Road, Briggs Cheney Road, and Good Hope Road to include
Rainbow Drive and Thompson Road along with implementation of the measures identified to
address cut-through traffic. According to Mr. Johnston, all of the conditions have been met.
Significantly, Rainbow Drive has be,en reduced to a width of 24-feet from 36-feet at various
locations between Valencia Street and Briggs Cheney Middle School.
In
addition, two median
islands on Rainbow Drive have been installed. The reconstruction ofthe existing school bus lot,
as requested by the Montgomery County Public School System, and the addition ofthe driveway
to improve bus circulation at the school has occurred.
Testimony and Written Comments
Joined by Ms. Claire Iseli ofCouncilmember Marc Eirich's staff, the Hearing Officer
observed the area of the proposed roadway on December 12, 2012.
It
was observed the both
Rainbow Drive and Thompson Road are two lane, one lane in each direction, roads. With the
exception of Briggs Cheney Middle School, the neighborhood consists of single family homes.
Significantly, far less vehicle traffic was observed either on Thompson Road or the section of
Rainbow Drive to be extended as compared to the other roads in the area. That network ofroads
provides connectivity between Spencerville Road
(Rt.
198),
Briggs
Cheney Road, and Peach'
Orchard Road. The traffic calming measures recently installed appear no have little, if no,
impact. The extension would provide no additional connectivity to public transportation,
recreation centers, religious institutions, or shopping centers. Given the existing networks, there
does not appear to be any benefit to be gained for public safety purposes. In fact, the Hearing
Officer, as a technical matter, inquired as to whether the extension would provide any benefit to
public safety. He was informed that DFRS already has established routes and procedures for the
area. Therefore, there would be no additional public safety benefits to be gained by connecting
Rainbow Drive and Thompson Road.
3
 PDF to HTML - Convert PDF files to HTML files
Marjorie Davis, President of the Good Hope Estates Civic Association stated that she had
sent out 600 surveys to. residents of the Civic Association requesting to know whether they were
for or against the project. Forty-two percent of those surveyed returned the questionnaire.
Three-quarters ofthe respondents replied negatively. Ms. Davis summarized the concerns made
~y
those
who responded: 1. the connector would increase traffic from Peach
Orch~d
Road to
Good Hope Road; 2. excessive speed by automobiles and school buses passing through, even
under current conditions; 3. and, safety issues for children walking to school, and for those
walking and biking through the,neighborhood despite the absence of sidewalks; and, 4.
expenditures for a project that was not desired by the community. She also expressed the
concern of the community that the traffic calming measures are ineffective. Ms. Davis also
noted that there is no depiction of what he intersection of Rainbow Drive and Thompson Road
would look like, especially since Thompson Road takes a 90-degree
turn
at the point ofthe
connection.
In
sum, she stated that the community is opposed to the project.
Mr. Ken Barnes, a fonner Vice-President of the Civic Association, referred to the 1997
Approved and Adopted Cloverly Master Plan. He stated that during the Master Plan process, the
Civic Association expressed its opposition to the connector.
Mr.
Barnes, echoing the testimony
ofMs. Davis, remarked that even school buses tend to speed on both Thompson Road and
Rainbow Drive. He also observed that the traffic calming which have been put in place have had
minimal to no impact. He also expressed the concern that the connector would encourage cut­
thru traffic to Spencerville and Briggs Cheney Roads through Peach Orchard Road.
The testimony of the remaining speakers and written remarks from several individuals
reflected the statements made by Ms. Davis and
Mr.,
Barnes. That testimony was
overwhelmingly against this proposed project.
m.
Conclusions and Recommendations
Section 49-53 (a) of the Montgomery County Code, 2004, as amended, mandates that
"[b]efore any road construction or assessment is authorized, the County Executive or a designee
must hold a public hearing. Any person who would be subject to an assessment or otherwise
affected by the location or construction ofthe road is entitled to be heard at the hearing. Notice
ofthe hearing must be sent by certified or registered mail, at least 2 weeks before the scheduled
date of the hearing, to the owners of each property that would be subject to an assessment, as
listed in the records of the Department of Finance." Sec. 49-53(b) enumerates the information to
I
1=
4
 PDF to HTML - Convert PDF files to HTML files
be supplied in the notification. Sec. 49-53(c) mandates that «[a] summary of the notice provided
for in this Section must be published twice in a newspaper of general circulation
in
the County
before the scheduled date ofthe hearing. The summary must tell where a full copy ofthe notice
may be obtained." I find that the hearing and notice procedures have been satisfied, and that
public agencies and other interested entities have been given an opportunity to review this
specific project as requested by the MCDOT.
The connection would increase circulation in the neighborhood. However, it would also
provide increased access to Spencerville Road (Md. Rt 198), Briggs Cheney Road, and Peach
Orchard Road.
It
would also provide easier access to commercial areas along both Spencerville
and Briggs Cheney Roads, thus potentially increasing traffic along both Thompson Road and
Rainbow Drive. While the definition of a primary road includes the recognition that some
through traffic is to be expected, an application of the balancing test would lead one to conclude
that any benefit to residents that may be provided by the connector would be far out-weighed by
the negative impact expressed by the witnesses. The residents on both streets already have easy
access to the main roads in the area, and the maj ority of benefits would inure to vehicles from
outside the neighborhood. Traffic in the area of Briggs Cheney Middle School would also
increase, potentially impacting the safety of the students and school buses.
It
is also important to
note that both Thompson Road and Rainbow Drive are two lane roads. Of note, is MCDOT's
testimony that the width of Rainbow Drive between Valencia Street and Briggs Cheney Middle
School was recently
reduced
from 36 to 24-feet for the purpose of obtaining traffic calming
measures. Further, while the Hearing Officer did note that other traffic calming measures had
been installed, they did not appear as ifthey have been effective. the Hearing Officer and the·
County are always quite concerned about emergency response. Although the Department's
testimony stated that emergency response might be improved by the connection, technical
discussions with DFRS revealed that no positive impacts would be realized.
Consequently, I do not find that the proposed connector will be in the public interest
The "public interest" is a broad concept that manifests itself in a variety of contexts. When, as
here, a construction project is involved, the project will be considered to be in the public interest
if it will do such things as promote the general health and safety ofthe citizenry, protect the
environment, preserve open space, or otherwise advance the community's quality oflife.
See
City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 701 (1999)). This
5
 PDF to HTML - Convert PDF files to HTML files
includes providing for the safe and efficient flow ofvehicular and pedestrian traffic.
(See
Wheaton Moose Lodge No. 1775 v.
Montg~mery
County, Maryland, 41 Md. App. 401, 397 A.2d
280 (1979)). I frod that the proposed connection
does not
meet any ofthe tests enumerated
above.
Based upon a thorough review of all testimony and evidence on the record, I conclude
that the construction ofthe Thompson Road Connection to not be in the public interest and
recommend that the CoUnty Executive DENY construction ofthe project.
SIGNATURE PAGE FOLLOWS
6
 PDF to HTML - Convert PDF files to HTML files
Michael.L. Subin, Hearing Officer
~L
I
'~~6~'1l:l-
W\
-S
Date
The Hearing Officer's Report and Recommendation for construction ofthe Thompson
Road Connection in Colesville, Silver Spring, Maryland has been reviewed and the proposed
project is hereby DENIED authorization to proceed.
7
@)