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The Monocacy Scenic River Plan: An Essay on How to Go Forward

Posted by Rocky Mackintosh on January 25, 2017 Leave a comment

Billed as a “Protection Plan” that provides recommendations for good land management strategies, property owners along the river feel disenfranchised and fearful of losing their property rights.

Monocacy River Plan Image MacRo Commercial Real EstateThe Monocacy River meanders through both Carroll and Frederick County from south-central Pennsylvania to the Potomac River. It’s not one of the most scenic rivers in the world, nor is it that big by most river keeper standards. As a matter of fact, some would call it a big creek, but for we citizens of Frederick County, it is our river, and we love it. It is considered a precious resource that provides “public drinking water, wildlife, habitat, aesthetic beauty” and recreational opportunities to the community at large.

For those who have made a personal investment to own frontage along the 58-mile river, there is a deep appreciation for their enhanced roles as stewards of not only the river but the land they cherish and care for.

To that end, there is no doubt that probably every resident would agree that the Monocacy River should be protected from pollutants and polluters. It should be respected as a vital resource that serves more than those who own the land along its waters’ edge.

No Watering Down of Regulation in this Nation

Generally, between all the legislation that has been put in motion to save the Chesapeake Bay and the multitude of other local, state and federal regulations from the department of agriculture to the Environmental Protection Agency (EPA), there are standards to protect the waters of the Monocacy for just about every conceivable malpractice one can imagine.

Consider that the EPA is charged with regulating and enforcing the following federal laws, regulations and executive orders:

  • Clean Water Act (CWA)
  • National Environmental Policy Act of 1969 (NEPA)
  • Rivers & Harbors Appropriation Act of 1899
  • Federal Agriculture Improvement and Reform Act of 1996 (Farm Bill)
  • Endangered Species Act (ESA)
  • Transportation Equity Act for the 21st Century (TEA-21)
  • Coastal Wetlands Planning, Protection & Restoration Act (CWPPRA) EXIT
  • North American Wetlands Conservation Act (NAWCA) 

On the state level the Maryland Department of the Environment (MDE) is charged with regulating and enforcing the Section 5: 5B-03 of the Maryland Code: “Protect the State's natural resources, including the fish and wildlife of the Potomac River, the Chesapeake Bay, and all other waters and waterways of the State.”

No one can deny that between the Federal Government and the State of Maryland, the natural waterways here in Frederick County and throughout the nation have benefited from much of the regulations that dictate how our aquatic resources can be used and maintained. Many will argue that there are more than enough laws, regulations and executive orders on the books.

It seems to a reasonable percentage of citizens that those who write environmental regulations live with some kind of addiction that prevents them from reaching a level of satisfaction of their work. So, they think up new regulations to layer upon the last set of restrictions that were just put in place. It is as if they don’t have anything else to do, but then again maybe it as a form a job security.

In this age of rebellion against over regulation, when will enough be enough?

Monocacy River Plan Map9 Image012617.jpg

The 1990 Monocacy River Management Plan

In 1990, the Monocacy Scenic River Local Advisory Board, a body appointed in a joint effort by both Frederick and Carroll County governments, presented a Study and Management Plan to those governments that laid out seven objectives:

  1. Improve water quality.
  2. Help maintain and restore the ecological health and productivity of the river.
  3. Encourage land use compatibility and attention to environmentally sensitive areas to maximize conservation and use of riparian resources.
  4. Identify and facilitate appropriate use and alternative protective measures of significant scenic and ecological areas, historic and archeological sites, and other valued resources.
  5. Provide resource information about the Monocacy watershed for local, state and federal governments, elected officials and citizens of Carroll and Frederick counties.
  6. Develop multi-jurisdictional cooperation and coordination for the management and protection for the river corridor.
  7. Increase public awareness about important river resource values through public relations and environmental education.

The plan was chock full of recommendations to those governments on how to accomplish these sweeping goals. It was approved by both county governments and then in 1991 by the Maryland General Assembly through House Bill 1123.

The plan proposed a set of eleven recommendations to the county governments that they incorporate components of the plan into comprehensive land use planning, zoning text revisions, as well as subdivision and development guidelines to name a few.

The list called for the enforcement for existing environmental laws and called out agriculture as a contributor of pollution of the watershed. It recommended the enhancement forestation efforts and called for greater protection of fish, wildlife habitats and historic and cultural resources.

Recommendation #6 entitled “Open Space, Parks and Recreation” called for the counties to seek opportunities to provide adequate open space, parks and recreation areas along the river. It stated that while it is important to protect the property rights of private land ownership, the Monocacy is a state waterway, and it suggested that as land becomes available the counties should consider the option to purchase suitable property that may provide public access points to the river. It also displayed sketches of linear walking and biking trails along the river.

It is likely that this recommendation was moved forward in 1999 when the Frederick County Planning Commission drafted Resolution 99-31 for the Adoption of the Frederick County Bikeways and Trails Plan, which was approved by the Frederick County Commissioners in December of that year.

Page 33 of that plan proposed the creation of the Monocacy River Greenway, a 25-mile multi-use trail that would be developed along the banks of the river from Glade Creek in Walkersville to the Potomac River traversing across acquired easements or acquisitions through private property and eventually connecting into the trail system in the C&O Canal National Historical Park at the Monocacy Aqueduct.

The 2016 Update of the Monocacy River Management Plan

Over the last few years the Monocacy Scenic River Citizens’ Advisory Board (having since replaced “Local” with “Citizens”) has been hard at work in reviewing and updating the original version of the plan. The goal is to gain approval from both Frederick and Carroll County governments sometime this year. This latest version essentially brings current the thoughts and dreams of the River Board by stating that “the goal of the recommendations is not to stop development or impede agriculture and other initiatives, but to advocate for sustainable land uses and activities that respect and protect the River, its corridor and watershed.” 

It praised the original plan by stating that “the 1990 Plan has been used, to varying degrees, for input or for providing guidance on a variety of federal, state, and local programs, policies, and regulations, and on public and private projects.” There is no doubt that has been the case as any number of changes have been made to align many of the regulations in the counties to those recommendations. Consider the expansion of the buffer zones along the river, the more restrictive revisions to what is now called in Frederick County the Resource Conservation zone (formerly Conservation) and expanded definitions and requirements in wetland and forest areas. A majority of folks will not argue that such efforts are a good thing.

Without leaving much of anything out, the seven new recommendations consolidated and rephrased many from the 1990 version and added a few more:

  1. Restoration of land within River-front Ecologically Significant Areas.
  2. Reforestation of critical gaps for wildlife habitat, bank stability, flood attenuation, and view sheds.
  3. Creation of a community-based Monocacy Riverkeeper.
  4. Promotion of River access and recreation.
  5. Increased public awareness about the River through public relations and educational programs.
  6. Enhanced stewardship of agricultural lands in the River corridor for water quality protection, consistent with continued agricultural viability and economic contributions.
  7. Creation of the Monocacy River Resource Protection Area to protect, conserve, and enhance significant Monocacy River resources, ecological functions, and values that benefit the community.

Within each of these seven objectives the River Board outlined several recommendations, not unlike those in the earlier version of the Plan. In the case of the walking and bikeway trail recommendation of 1990, that reference was replaced with the word “Greenway” and was limited within and between community growth areas. However, to the best of my knowledge, although no significant action plan has been implemented, the 1999 Bikeways and Trail Plan has never been officially abandoned.

We, the People does in fact include Property Owners … right?

Interestingly enough, as much as the 1990 plan and the newer version make note of the rights of private property owners, within the introduction of the 2016 Update, the authors seemed to forget those folks in its collaborative call to action:

This Plan recognizes the need for cooperative efforts among citizens, citizen groups, government agencies, and other organizations in order to protect and enhance the valuable resources of the Monocacy Scenic River.

This simple omission of the need to include the several hundred of those who are the owners of the bordering land along the Monocacy River gave many great pause as they read through the document.

Of course, it surely did not help that the River Board undertook what I will politely call an extremely poor engagement program of notifying the property owners that 2016 Update was taking place in the first place. It was stated that letters were sent out to those three to four hundred property owners to inform them of the two informational meetings on the draft Monocacy River Management Plan held in Taneytown and Frederick in early November of last year. The vast majority of whom stated that they never received any kind of direct notification, or that the update effort was even underway. In addition, it seems that these same people should have been personally invited to engage in the process from the very beginning.

It seems that the River Board’s Tennent of education, collaboration and awareness found in the recommendations of both plans may not have applied to some of the most important stakeholders in the process. I guess that would have been asking too much.

So, the stage was set for what has evolved into a confrontation over the poor planning of the Monocacy River Management Plan before pen even went to paper.

For those property owners who read deeply into the plan, they discovered a number of seemingly threatening revelations. Since most had no awareness of the original 1990 management plan, the 1999 Bikeways and Trail plan or any other local governmental actions related to the river, reading the what appeared to be a final draft gave cause for a movement to be born. 

Aside from the documentation seeking bikeways, trails and other recreation visions, it has been the multicolored lines that have been overlaid on aerials of the property that bounds the river that have raised the eyebrows of many.

  • Yellow lines set back from the banks are called Monocacy River Resource Protection Area
  • Red lines that reach far beyond the shores of the river and into productive farmland, mature forests and existing home sites are referred to as Ecologically Significant Areas (ESAs)
  • Blue line show the bounds of the Federal Emergency Management Agency (FEMA) Floodplain

Many asked, what do all these lines mean?

What will be the impact on the value and the use of property that falls within these boundaries?

Are these areas slated for acquisition, eminent domain or another form of governmental taking?

What if they don’t want to give up the property under any circumstances?

Can it be that the poor communication and avoidance of engagement on the part of the River Board and governments of Frederick and Carroll Counties have created a huge misunderstanding over something is not that big of a deal?

Is it time for the group to engage legal counsel?

Private property owners along the river value their “privacy,” and while they want to be good stewards of the river and the land they own, they deserve quite enjoyment of their investment. For many that investment carries no value, as it is considered priceless. All the more reason that they also deserve the respect of being made a part of any process that may impact their rightful use of that which they own.

George Grillion, Chairman of the Monocacy Scenic River Citizens Advisory Board, spoke at the November 7, 2016 meeting in Taneytown to a packed crowd of worried owners who all professed to be good stewards of their land along the river. In a patronizing tone, he stated (I paraphrase here) that “of course the River Board knows that you are all good stewards of the river, it’s those people who will come after you who we are concerned about.” That statement was interpreted by most as stating that “We, the Government, know what’s best for you the people; so, trust us that this plan is in your best interest.”

Hmmmm … Comforting. 

The Troubling State of Private Property Rights Today

In this age of overregulation, distrust of government and visions of sharing the wealth, this is also an era where governments at all levels are strapped for cash and do not have the resources to outright acquire land. Therefore, whether they realize it or not local elected officials and their supporting bureaucracies have used policies of excessive regulation to gain control over the use of property without having to own it.

Right or wrong, many property owners here in Frederick County not only fear that overregulation will impact their property, they have seen it happen with local downzonings of their properties, rezonings of adjoining properties, sweeping revisions to existing zoning regulation, among other governmental actions.

This is not a local phenomenon, but has been a movement on behalf of property rights groups across the country. Much has been written and fought over in legal battles all the way up to the Supreme Court regarding the topic of overregulation by government.

In Arizona things reached a peak in 2006 when state legislators passed into law the Private Property Rights Protection Act, which “requires the government to reimburse land owners when regulations result in a decrease in the property's value, and also prevents government from exercising eminent domain on behalf of a private party.”

Similar measures have been proposed in a number of states. If such a measure were ever brought before the General Assembly in Annapolis, it surely would never see the light of day.

The Goldwater Institute has written extensively on this topic in a February 2016 brief that expounds upon the troubling state of private property rights today. Here’s an excerpt:

The Government can “take away property through regulations that prohibit owners from using, selling, or building on their land. Such restrictions block people from pursuing the purpose for which they bought the property—thus taking away their property rights just as much as an eminent domain condemnation does—but because the government does not technically take the title to the land, judges often hold that owners are not entitled to any ‘just compensation.’ People are therefore forbidden from using their property, but they are stuck with the purchase price, the taxes, the loan payments, and the possible liability if someone is injured on the land. Yet such regulations often destroy the property’s value, meaning the owner also cannot sell it.”

This is not to say that certain regulations and governmental actions are not justifiable, but it does place an extremely high burden upon our elected officials to stay in touch with their constituents, communicate through multiple channels and engage them more than ever before. Governmental staff must recognize how essential it is at their levels to learn and practice the same.

Consider the outcome of last year’s general election that brought Donald Trump into office. While many may still (or forever will) claim that his victory did not come legitimately, the primary force that rose him to prominence was the growing discontent and mistrust of government and its trend of overregulation. 

Conclusion

Most would agree that for all citizens of Carroll and Frederick Counties to have a plan for the proper care and use of the Monocacy River is a good idea … and this includes all those who own frontage along its shores. That stated, it seems at the very least that the plan as drafted did not get off on the right foot.

Not unlike the efforts that a real estate developer takes to engage in focus groups with the citizens of nearby communities to formulate plans to build homes and/or various types of commercial structures, laying the groundwork by seeking input and formulating plans from that is what lays the foundation for success and acceptance.

While there will always be naysayers, vibrant plans are best developed by engaging stakeholders of all points of view.

The Monocacy Scenic River Citizens Advisory Board may very well have thought that this kind of engagement was achieved.   Clearly that has not been the case. A majority of the property owners are incensed at how they have been ignored and essentially left out of the planning process. To the county governments of Frederick and Carroll, these people are part of your customer base, and if they feel unappreciated, it must be remembered that the Customer is Always Right!

Personally, as one who spent much of my youth playing and exploring along the banks of and swimming in the waters of the Monocacy River on our family farm, I truly respect the protection it deserves and the value it provides to not just from those who own land along its shores, but to all citizens.

While the concept of having a plan is good, I wonder how many new regulations are needed to maintain the river. Previous plans should be reviewed and revamped to eliminate the myriad of ambiguities and contradictions. 

From the start, the implementation of the review of this latest version was flawed. Therefore, I suggest the Monocacy Scenic River Citizens Advisory Board shelf its 2016 Update of the Plan and start fresh with a new set of guidelines that engages all stakeholders this time.

Authors Note: For those who are interested in learning more from a property owners’ perspective contact me or Lisa Bell at bdslbell @aol.com. The deadline for comments to the River Board regarding the 2016 Update is January 31, 2017, so time is of the essence!

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Rocky Mackintosh, President, MacRo, Ltd., a Land and Commercial Real Estate firm based in Frederick, Maryland. He has been an active member of the Frederick, Maryland community for over four decades. He has served as chairman of the board of Frederick Memorial Hospital and as a member of the Frederick County Charter Board from 2010 to 2012.  He currently serves as chairman of the board of Frederick Mutual Insurance Company. Established in 1843, it is one of the longest enduring businesses in Frederick County.

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Topics: Land Use and Government Ashleigh's Fields Notes