Zoning Only Way To Regulate Height Of Structures, Garrett Co. Official Says

Zoning Only Way To Regulate Height Of Structures, Garrett Co. Official Says

Feb. 14, 2008

The only way to restrict the height of structures in Garrett County would be through zoning, Planning and Land Development director John Nelson told the county commissioners this week. Some residents have suggested that local officials could regulate the construction of wind turbines through height restrictions in the county's building ordinance.

The commissioners met with Nelson on Tuesday to review the issue further.

"I felt we needed to clarify that," said Commissioner Ernie Gregg. "Because the wind turbine opponents have misconstrued this, that we can apply a height ordinance and/or a building codes ordinance."

Nelson said the authority for controlling height is a zoning regulation. "Article 66B [of the Annotated Code of Maryland] gives the authority to counties to adopt zoning, and zoning is the only mechanism to control heights," he said.

Building codes, Nelson explained, will allow structures to be built to any height, as long as they meet the code's design and engineering requirements.

"You could build a building 100 stories high, as long as the structural integrity is met under the building code," he said.

To enact some type of height restriction would restrict the height of all types of structures being built in the county, such as hotels and communications towers, not just wind turbines, county officials said. They also noted that the county cannot enact a moratorium on wind turbine construction, as suggested by the Planning Commission last week. According to the county attorney, doing so would halt all local building projects.

It is only through zoning that the county would have the authority to regulate heights, Nelson reiterated.

"Under 66B, you can't choose a single use and attempt to regulate that use," he added. "It has to be a comprehensive zoning plan, where you apply zoning to all kinds of uses throughout the whole jurisdiction that you choose."

Nelson noted, however, that zoning could be adopted "piece meal" by geological or political boundaries. Currently, the only area in Garrett County with zoning is the Deep Creek Lake watershed. Article 66B was used to adopt zoning in the watershed back in 1974, as residents in that area advocated for zoning.

"It was always felt by the governing body [at that time] that if zoning were to be expanded beyond that geographical boundary, the citizens would need to illustrate or show the county commissioners that that citizens group supported zoning," Nelson said.

He noted, however, counties cannot have exclusionary zoning, meaning they cannot exclude all types of uses.

"You have to set aside and provide an area where uses, such as wind mills, would be permitted under certain parameters," Nelson said.

He said it has been suggest that the zoning issue be placed on a referendum for voters to decide on a district by district basis, much like the Sunday alcohol sales issue. Nelson noted that citizen groups such as the board of realtors, chamber of commerce, and watershed associations would have to first demonstrate their support for the issue.

"So far, our citizens have opposed countywide zoning," Glotfelty said, adding that the groups would indeed have to come forward and indicate their support to justify putting spot zoning on a referendum.

"You start using that Z word, and people's hair starts standing up on end," he said.