Development at the Headwaters of Sligo Creek

A picture taken on December 2003.
Most of the trees shown here will be cut down to accommodate a new house.
This parcel of land is adjacent to Sligo Creek Park at the headwaters of the watershed.

Description of Action Item:

A Planning Board public hearing was held on May 22, 2003, without notification as mandated in the county code and the Planning Board's own printed guidelines. The public hearing included a proposed development of property that is adjacent to Sligo Creek Park. The proposed building site is at the headwaters of Sligo Creek Park near the corner of Blueridge Ave. and Channing Drive. The property, part of which is within the current 100-year flood plain, is to have one house. We are concerned about the lack of public notification; about why the developer was allowed to build on environmentally sensitive and marginal land ; specific issues such as sediment in runoff and flooding in the neighborhood; and about how the developer will address stormwater run-off.

Objectives:

Key activities to date:

• On June 23, 2003 Ann Hoffnar, Sally Gagne, Kathy Michels, Ed Murtagh and community members met with Planning Board staff member Dominick Quattrochi and Ellen Rader from the Department of Permitting Services (DPS). The meeting mainly addressed the approval process for developments. Forest Conservation Easements and the development of a Sligo Headwaters Stormwater Management Plan were also addressed. Dominick offered to provide FoSC a GIS map of the watershed that shows locations of privately held and still undeveloped land. We need a volunteer to coordinate with Park and Planning on getting this information and following through with the stream stewards.
  
   
• Kathy Michels and Ed Murtagh organized the Upper Sligo and Sligo Headwaters Civic Association's response. An initial petition was jointly submitted to the Planning Board on 7/21/03. The final petition, with over 100 signatures, asserted citizen rights to notification and also noted that stormwater and other environmental issues affecting Sligo Creek were not raised at the May 22 hearing. In addition to addressing the Planning Board, the petition itself became a stormwater education tool in the neighborhoods.
  
  
• In late September (two months after the original civic associations' petition was submitted) a lawyer from the Planning Board notified Kathy Michels that the citizens had been two weeks too late with the petition and the request for a new hearing was being denied. None of the issues raised in the petition were addressed. Guidelines for appeal, which included the deadline information, were included in the letter, but these guidelines are not included in the published information freely available to citizens on the appeals process. None of the Planning Board staff previously consulted mentioned specific deadlines.
  
  
• In early October, Mr. Rob Harkins, who lives on Channing Road., visited Park and Planning Office to review their files for the Blueridge/Channing property development. While reviewing the files, he found that he was not on the list of individuals to be notified of the Planning Board's meeting of May 22, 2003, even though he was clearly a "person of interest" under their definition (he spoke at the first hearing in 2002). Rob's file review also revealed that others, who were on the list, were not informed. The files contained no actual letters to individuals or evidence that letters were sent. Rob was advised that he could take legal action to get a re-hearing.
  
  
• The Upper Sligo and Headwaters of Sligo Citizen's Associations prepared a letter formally requesting a new hearing on behalf of those who were not notified, but who should have been. This letter also addressed the fact that several "people of interest" assert that they did not receive any notification even though they were on the official notification list. In response to the letter, the Planning Board notified Rob Harkins on October 31 that a hearing would be scheduled to determine whether there would be a new hearing on the development of the property.
  
  
• During the November 14, 2003 Planning Board meeting, the Board voted to re-consider the proposed Blueridge/Channing development.
  
   
• On December 4th the Planning Board met to reconsider the development at the end of Channing and Blueridge. Although the Planning Board again approved the project, the members had definitely read the letter from the Civic Associations and were interested in the questions raised. There were seven speakers who expressed concern about the trees, the impact on Sligo Creek, and the problems with flooded basements of homes already built on similar low-lying marginal land.

Next steps:

We hope to use this development as a case study and will continue to follow it as it moves along. Because of the impact on our Sligo Creek watershed, Friends of Sligo Creek (Stormwater Committee) is interested in helping the local civic associations to develop this case study and using it to show that the current codes and regulations along with the approval and notification process are inadequate. We will look at the Department of Permitting Services (DPS) decision-making process, find out whether a soil scientist is involved in reviews, look at codes and regulations, and find out what currently triggers analysis of environmental issues. We also want to monitor the Blueridge/Channing project and suggest mitigation and restoration steps that can be taken. We'll continue to try to get the various departments to work together. Some of the issues this case, and problems with other development in our neighborhood, has highlighted:

1. Disconnect between planning, permitting and what the consumer gets: New homeowner's often are left holding the bag on damage due to inappropriate construction on inappropriate sites when they unwittingly buy a house that they assume has passed rigorous planning, permitting and inspection to make sure it is sound and appropriate to the site (see recent Consumer's Reports for and eye-opening look at this problem). In our area flooded basements are a particular and perennial problem. It doesn't take a brain scientist to know that water is a problem when you build on top of springs and buried tributaries in a stream valley such as ours. Steps can be taken to prevent the problems, but often are not taken by the builders or enforced by the county or state. Retroactive remedies are expensive and makeshift remedies are often either ineffective, damaging to the watershed or both.

2. It makes no sense for the Department of Environmental Protection (DEP) to spend millions of our taxpayer dollars restoring Sligo Creek, while DPS and the Planning Board approve development on marginal and environmentally sensitive property that undermines what DEP has done downstream. In 2004 a multi-agency task force is being proposed to look at the current codes and regulations on environmentally sensitive property, some of which need to be updated. For example:
   • All, except for the developer, agree in principle this site is so marginal and so important to restoration at the headwaters of Sligo that it should not be developed but the planning dept and permitting dept all feel their hands are tied under current zoning rules, codes and regulations. The site is so marginal that it came within a hairsbreadth of being totally protected - for example the stream running through it runs mostly when it rains. If it were shown to be an "ephemeral stream" that runs constantly-it would have made the site off limits to development. Similarly the tributary that runs through the site was long ago piped and buried and wetland areas filled in. If surface water still existed it would be off-limits. Such tributaries are often being "day-lighted" in restoration efforts. This one is now condemned to perpetual darkness as with most of the rest of the Sligo Creek Headwaters.
   • The ¼ acre of the Blueridge/Channing site closest to the park has been set aside as a Forest Conservation Easement (the trees and plants can not be disturbed). But if the developer had not tried originally to subdivide and build multiple houses on the half-acre site, the Forest Conservation Easement regulations/analysis would never have been triggered and the ¼ acre nearest the park would not have even been set aside and protected as a Forest Conservation Easement. Single home properties on less than one acre of land are exempt from Forest Conservation reviews.
   • The property could possibly have been bought by the county under "Legacy Open Space" but was not even considered. While small in size, it has an important role to play in the ecology and restoration (or further degradation as it is developed) of Sligo Creek-being adjacent to the creek at its current headwaters. If we had been notified initially of the sale of this land, we could have lobbied for its acquisition by the county for the park.

Petition

CC: Montgomery County Council

FROM: Residents in the Upper Sligo Watershed (Silver Spring, MD 20902)

SUBJECT: Request for Proper Notification and New Public Hearing on Preliminary Plan 1-02023 - Westchester- Nairn- Blue Ridge development

July 21, 2003

Dear Chairman Berlage;

This petition is being submitted to assert our right to appropriate notification of plans affecting our neighborhoods and the adjoining park. This notification is important to our right and civic duty to testify at public hearings or otherwise go on record regarding such plans. We protest the denial of this right for Preliminary Plan 1-02023, the Westchester or Nairn property (at the corner of Blueridge Ave. 100 feet South of Nairn Rd) due to inadequate notification. A public hearing was held on May 22, 2003, without notification as mandated in the county code (below) and the Planning Board's own printed guidelines (below and attached). For example the residents of 1808 Blueridge Ave., which adjoins the property in question, were not notified, nor were the owners of the property fronting to the site at 1805 Blueridge Ave. Because they were not notified, they and many others were denied their right to testify at the May 22, 2003 hearing. Only two families on Reedie Dr. whose back yards adjoin the site were notified. They attended the May 22, 2003, hearing unaware that none of the other citizens had been notified, even those who had already expressed an interest and who testified at the January 2002 public hearing on the previous preliminary plan. This notification error was compounded by an additional error in the Planning Board agenda which was incorrect. The notice stated the hearing was for changes to an existing dwelling (which neighbors took to mean renovations to the existing home at 1808 Blueridge Ave. directly adjoining the site in question). This was another reason that word was not spread and that local citizens were not aware of the hearing. The notice stated: Preliminary Plan Review No. 1-03023 - Westchester (Deferred from January 17, 2002 Planning Board Public Hearing); R-90 zone; 1 lot (1 existing one-family detached dwelling unit); 0.4784 acres; On the south side of Blueridge Avenue, approximately 100 feet east of Nairn Road; Kensington/Wheaton

FIRST HEARING, January 17, 2002. This was the first public hearing of the planning process. At this time the Nairn family's lawyers brought to the Board a plan to build two single family detached houses. Several neighbors voiced reasons why no houses at all should be built on the property due to its environmentally sensitive nature. The county and the Planning Board notified all those adjoining or fronting the property and others close by. The neighbors got together, obtained picture and plans and testified. At the January 2002 hearing, the preliminary plan for two houses was rejected and deferred because of the negative impact on the stream and the park. The neighbors thought the plan, as a whole would not be carried out because of the environmental issues.

SECOND HEARING- May 2003. At this hearing the Montgomery County Planning Board approved a single new house that is to be built at the bottom of Blueridge Avenue within the drainage area at the current headwaters of Sligo Creek. The construction will involve clearing of the forest adjacent to the park. This hearing was held without the necessary notification to the community. This lack of appropriate community notification denies us our right to provide input about development in an environmentally sensitive area or to counter misleading information given at the hearing by the developers. For example at the May 2003 hearing, the developers told the Board that only three significant trees will be cut down. The actual plans show that at least seven large trees will be cut down. After an on-site count of all the trees, it appears that more than 20 trees will be taken down. This urban forest represents a unique benefit to county residents, not just those close by the site but all those who use the park and enjoy the stream.

Unchecked storm water run-off into Sligo Creek is a significant problem, which will be exacerbated by this new development. This small mature bottomland forest sits on the headwaters of Sligo Creek in the Sligo Creek Stream Valley. Sligo Creek has undergone major restoration over the last several years at a cost of several million dollars of taxpayers' money. With the proposed construction on this property, the stormwater runoff situation - already a problem - will get worse and will increasingly damage the creek and the surrounding wetlands.

Lack of community notification deprived us of our right to ask that this and other important issues be addressed. The county's responsibility is stated in Sec. 33A-6. Public Hearing. The Commission must conduct a public hearing on the public hearing draft plan or amendment. The public hearing may be conducted in the area affected by the plan, if practicable. Notice of the hearing must be given not less than 30 nor more than 60 days before the hearing by publication at least once in a newspaper of general circulation in Montgomery County. In addition, the Commission must mail notices to all citizens' associations which the records of the Commission show are located in or adjacent to the planning area. The notice of the hearing must specify the time and place of the hearing, the area of the County affected, and the subject matter of the hearing. (Ord. No. 7-38, § 1; Ord. No. 12-47, § 1.) The Montgomery County Planning Board flyer "How to Participate Effectively in the Subdivision Process" states in the section titled "Public Notice" that there are several ways to notify residents:

1. An applicant is required to send a written notice about the requested subdivision and a copy of the plan to adjacent and confronting property owners. (NOTE: ONLY 2 OF THE 4 ADJACENT AND CONFRONTING OWNERS WERE NOTIFIED- the Friedman's and Ro's were NOT notified although they adjoin and confront respectively on Blue Ridge).
2. The Development Review Division of the Department of Park and Planning sends written notice and a copy of the proposed plan to appropriate citizens' associations and home owners associations that are listed with the Planning Board (NEITHER NOTICE NOR COPY OF THE PROPOSED PLAN WERE SENT TO THE UPPER SLIGO CIVIC ASSOCIATION WHICH IS REGISTERED WITH THE COUNTY).
3. In the case of Cluster Subdivision, which allows more flexible development standards such as smaller lots, the applicant must post a sign on the property. The section titled "Public Hearing" states: "Notice of the public hearing is mailed by staff of the Development Review Division to all persons and associations who received the original notice, as well as other parties who have expressed an interest." However, most of these residents who attended and/or testified at the first hearing in 2002 were not notified of the May 2003 hearing. At a minimum this needed to be done according to the county's own written regulations and guidance. In addition, while searching the local papers, we have not been able to find any notice that a hearing was to be held on May 22, 2003. Signs were not put up on this property in January 2002 or in May 2003 informing local citizens of these planned changes to the property. People who live in this area and people who care about Sligo Creek Park, which will be negatively affected by new development, have a legal right to be heard. We request an additional public hearing with proper notification according to county guidelines to fully discuss the issues, especially those affecting Sligo Creek, that were not addressed in the earlier hearings. We additionally request our right to proper notification of all future issues affecting our neighborhoods be honored by the Planning Board.

Back to Action Log Text

Testimony

As buildable land disappears in our community, the developers have been turning their attention to the low-lying, marginal, but environmentally sensitive property along buried streams and tributaries, and over ponds and springs. Part of the problem appears to be that the Planning Board assumes that Sligo Creek begins at the end of Blueridge Ave. The man-made stormwater piping ends here, but Sligo Creek, though now buried and in the form of ground water flow, begins much further into the watershed. Even though the creek is now out of sight, that doesn't mean that development does not have an impact. We do not believe that is appropriate to say that because the proposed house is more than 100 feet away from stormwater main outlet, that this development is somehow appropriate. Inappropriate development in our community has resulted in numerous problems for both the homeowner and the environment. Since time is limited, I will focus on two issues.

Through our the community, homeowners on marginal property, in desperate attempts to keep their property and basements dry, are trenching their front yards and piping their rainleader discharges into the street. Just this past weekend, one block away on Nairn Ave, a homeowner adjacent to the now buried portion of Sligo Creek was doing this. Instead of the rainwater entering the ground and slowly providing Sligo Creek with life sustaining water in the dry summer, the rainwater now become stormwater run-off, destroying the creek banks, damaging fish habitat and flooding property downstream during periods of heavy rain.

Our community, DEP, the Parks, and watershed organizations have worked diligently to restore Sligo Creek, one of the most impacted watersheds in Montgomery County, The county has spent millions of taxpayer dollars, and volunteers have worked countless hours in an effort to restore Sligo Creek. Earlier this fall our community and DEP installed a rain garden in our community. By working together, we are making slow progress. But we have one major roadblock in our efforts to re-introduce aquatic species into Sligo Creek. Inappropriate development in our community is lowering the water table around Sligo Creek, which then limits replenishment of stream flows during periods of dry weather. In both 1999 and 2002, major portions of Sligo Creek went dry. This had a devastating impact on aquatic ecology.

Walking through our community, it becomes obvious why we are having problems with lowered water tables and having Sligo Creek go dry. In addition to the additions of impervious surfaces, all the homes in these marginal properties have sump pumps that pump out vast amounts of ground water on to the street. Soon after moving into our community, I was shocked to see water gushing out of the ground near a fire hydrant. I called DPWT thinking that a water pipe had broken. Later I learned that it was the discharge from a neighbors sump pump. Because his home was built close to a buried tributary of Sligo Creek, the only way his home was viable was by pumping dry all the land around his house. By the summer the sump pumps on marginal property have lowered the ground water levels so much that Sligo Creek sometimes goes dry. The latest Countywide Stream Protection Strategy and the new Environmental Policy explain the need for all the agencies and departments working together to mitigate the environmental impact of land development. We want to urge the Planning Board to work with the community and the DEP in restoring Sligo Creek.

We also believe that the current stormwater management plan for the property is inadequate. The preliminary plans call for the installation of a dry well. The installation of a dry well system on clayey, low-lying areas where the ground water level is the highest does not make any sense. Stormwater Management Design Manuals stress the importance of having a qualified soil scientist to determine if the dry well system is appropriate for a development. Has this been done? With all the problems homeowners on marginal land have had with flooded basements, I can not believe this is occurring. After hurricane Isabel, when our community lost power, many of these homes built on marginal property that the Planning Board approved, suffered water damage in their basements. The builders have not been taking any responsibility for these problems. Given the deplorable history of these houses built on marginal land in our community, we urge the Planning Board not to perpetuate irresponsible development in our community.

Back to Action Log Text

Civic Associations' Letter To Planning Board

Mr. Derick Berlage, Chairman Montgomery County Planning Board 8787 Georgia Ave. Silver Spring, MD 20910-3760

TO: Chair Montgomery County Planning Board
CC: Montgomery County Council
FROM: Residents in the Upper Sligo Watershed (Silver Spring, MD 20902)
SUBJECT: Preliminary Plan 1-02023 - Westchester- Nairn- Blueridge development

Dear Chairman Berlage;

We would like to thank the Staff of the MNCPPC Environmental Planning Division for their thoughtful analysis of this fragile site and the impact of this proposed development and their recommendation to mitigate some of the impacts on Sligo Creek with a Conservation Easement. We would also like to thank the Planning Board for consideration of further input on the negative consequences of this development.

Any development on Sligo Creek affects not just those adjacent to the development itself but everyone and everything downstream of the development. On behalf of all those who live along, enjoy and care for Sligo Creek and the park as well as those creatures of the park and creek who cannot speak for themselves- we urge you to reconsider approval of ANY development at this marginal and fragile stream valley site at the current headwaters of Sligo Creek.

If the Planning Board goes ahead with approval of this development we demand first a response to and action on the undressed issues and questions we raise below regarding the impact of this development and the lack of sufficient safeguards put in place to minimize the impact.

Millions of dollars and a huge amount of paid staff and unpaid citizen volunteer time have been spent over the last ten years in attempting to restore Sligo Creek, which has been severely degraded by adjacent development, to some vestige of it's former health. In this effort citizens and organizations such as Friends of Sligo Creek and many Civic Associations have joined with the Department of Environmental Protection, the Anacostia Watershed Society, Council of Governments and others working to improve the physical and biological water quality of Sligo Creek watershed. It is our belief that only by all the Government agencies and departments working together; including the Planning Board with these citizen groups can we improve the water quality of Sligo Creek and by extension, the Anacostia River, the Potomac River and the Chesapeake Bay.

However, continued development and increase in impervious surface in the Sligo Creek Watershed hamper restoration. Lack of attention to upstream problems is a major factor. Once the water is in the creek it is a problem for the whole creek downstream. Yet no attention whatsoever has been paid to the deplorable conditions at the Channing-Blueridge Headwaters area regarding unchecked run-off from roads, residences and county-owned property. The Headwaters and the tributaries running into the Creek north of this proposed development have all but vanished- they have been piped and then grassed or paved over. Most of the right-of-ways were sold off. Yet instead of attempting to correct old errors and mitigate the effects of development in ways we now have the knowledge to, inappropriate developments like this one are approved by the Planning Board.

Time and time again, developers have been coming into our community with permits to build on marginal land. Not only has development on this marginal land caused damage to the watershed, many of these homes have problems with water flooding into their basements, including many homes above where this new home will be. This year alone many homes in our community have suffered extensive water damage. Whose fault is this? Even when technically they could not/should not build developers have been granted waivers to build -for example on Ladd Street a new house was built totally within the hundred year flood plain in a wetland replete with skunk cabbage simply because the developer asked for and was granted a waiver. The current residents suffer from flooding. The Creek suffers from huge stormflows through adjacent huge pipes installed to keep the inappropriately sited homesites from flooding. Flows that at one time would have been absorbed and slowed by the native vegetation in that wetland. But the flooding still occurs. The builders do not take responsibility as long as the Planning Board lets them build wherever and whatever they want whether such building and the type of building is appropriate for the site. Does it make sense to build a house with a basement when the watertable is near the surface of the ground? Yet you approve such construction all the time! Throughout our community homeowners (especially the newer homes) pipe their rain leaders and sump pump discharges directly onto the street and into sewers in an attempt to keep their property dry. All of this adds to the stormwater related damage to Sligo Creek. How will this building and site be different? What is to keep the developer from building a house that is environmentally inappropriate for the site? Current construction has contributed to homeowners who see water, and the stream they should cherish, as their enemy to be kept at bay. What will be done here to change bad old building practices that cause problems for the Creek and the residents?

It was noted by Planning Board staff that this forested area is a high priority area environmentally. This property is marginal land at best for building and adjacent to the creek and its narrow and fragile buffer. Approving the removal of large numbers of mature trees with their roots which would otherwise absorb large amounts of water and provide shade and habitat, then adding new impervious surface- turf (considered also to be "impervious surface"), roofs, and pavement, and potentially introducing additional fertilizers, pesticides and herbicides will only undo the efforts of other county agencies and departments, and citizens groups working to restore Sligo Creek.

Run off from the house and its driveway will go directly into the creek along with chemical fertilizers, pesticides or herbicides the new homeowner uses. Is there any provision for preventing this?

The Planning Board Staff mandated a Forest Conservation Easement and We thank them for that. However, again the devil is in the details:

1. Who will monitor the Forest Conservation Easement? Will a fence be put up to demarcate the easement so that it can be monitored? What will prevent the homeowner or the developer from damaging the roots of trees at the edge of the easement?

2. What will prevent the homeowner from cutting down all other trees on the property no matter how carefully preserved by the developer?

3. The proposed stormwater management plan calls for providing a dry well and swale. What guarantee will there be that the homeowner will not disconnect the dry well when it fails (please see the links below to information on dry wells- which must be carefully maintained to function)? What guarantee will we have that the future homeowner will not fill in the swale in order to have a flat turf, or pipe their stormwater water runoff onto the street or into the drains leading to the creek as many residents are now doing with no impunity?

4. What guarantee will there be that the home will not have a basement that will flood as almost all the new basements in the area do and lead to environmentally harmful responses on the part of the homeowner?

The history of development in this community has been deplorable for the local environment and for residents who must deal with bad building practices inappropriate to this stream valley area. We urge you to work with us in restoring Sligo Creek and the entire Chesapeake watershed. We urge you to consider the history of the inappropriate development in our community, the fragility of this marginal site and its importance to any restoration efforts at the headwaters and be extension down-stream and not continue damaging development decisions by approving this development. If you ignore our pleas then we demand you first respond to our satisfaction to the issues and concerns we have raised.

We thank you for your attention and look forward to your responses.

Kathleen Michels Upper Sligo Civic Association 1701 Ladd St. Silver Spring, MD 20902 301-649-5684

Edward B. Murtagh Sligo Headwaters Civic Association 104 Ventura Ave. Silver Spring, MD 20902 301-649-7266

See below on information on stormwater BMPs

Go to http://www.swrcb.ca.gov/rwqcb6/BMP/Chapter09.pdf for information on dry wells. Dry wells/infiltration systems are ineffective in areas with high groundwater tables. Also, dry well effectiveness can be impacted by sediment and organic particles from leaves and pine needles. These systems must be carefully monitored to ensure effective operations. The manual also recommends that a using a QUALIFIED soil scientist to determine if soil conditions are appropriate for infiltration. Given the history of flooded basements, we should ask if this was done. The document notes that these systems should not be used in areas with limited permeability. The document notes that these systems are difficult to maintain, owner MUST monitor the infiltration rates/effectiveness.

Again, this document stresses that it is extremely important in the construction of these systems to consider soil types. Requires professional assessment. Soils must be porous and can absorb required quality of stormwater. Document notes that these systems can be effective in stormwater quality management, but are ineffective in stormwater quantity management. Also notes that these systems require regular inspection and maintenance.

http://www.forester.net/sw_0205_bmp.htms also notes the importance for regular maintenance for long-term viability of all BMPs. Notes "out of sight/out of mind" neglect can be a major problem.

Back to Action Log Text