Harford sober living community not a permitted use, special exception needed, says zoning hearing examiner

David Anderson, The Aegis, Bel Air, Md.
·8 min read

Apr. 8—Harford County's former planning and zoning director made a mistake when he determined that five houses serving as sober living facilities could be built in a residential neighborhood south of Bel Air without a special exception, a county zoning hearing examiner determined recently.

Instead of classifying the New Points sober living community as single-family homes, former planning and zoning director Bradley Killian should've classified it as a "group home for sheltered care" or "personal care boarding home," according to hearing examiner Robert F. Kahoe Jr.'s report.

Both of those uses would have required a special exception to the zoning, which in turn requires the approval of the Harford County Council, sitting as the Board of Appeals. According to county zoning code, the board may impose conditions, limitations and restrictions on special exception developments as needed to "preserve harmony" with neighboring properties and to protect the public health, safety and welfare of the community.

New Points, built in the 200 block of Ogden Court, off Wheel Road near the intersection with Route 24 opposite the Festival at Bel Air shopping center, has generated controversy among its neighbors since early 2019.

Residents brought their concerns to the county government and county council, accusing the builders and operators of the sober living community of not being transparent regarding their plans for the facility, and expressed worries about safety when up to 40 men who are not related to each other are living full-time nearby in the single-family houses.

Kahoe's ruling, issued March 31, is not necessarily the final word on the sober living community. The operators have until April 20 to appeal it to the county council, which would hear the case as the Board of Appeals. Should the council uphold the hearing examiner's decision, that could be appealed in the local Circuit Court and beyond to the appellate courts.

Bel Air attorney Joseph Snee, listed as the attorney for New Points' operators, declined to comment, citing pending litigation.

Cindy Mumby, a spokesperson for Harford County Executive Barry Glassman's administration, said "we disagree with the opinion of the hearing examiner and support the position of our [former] director of planning and zoning."

Killian, who served as planning and zoning director under Glassman from December 2014 until January, is no longer with the county government. Killian's "final written determination" in support of the sober living community was issued in late 2019; it was appealed to the zoning hearing examiner by two residents who live near New Points, Erich Bain and Steven Golden. Their case was presented during two hearings held Nov. 18 and Jan. 28.

"Helping people recover from addiction is a good and worthy goal that's supported by area residents, but it must be done responsibly, with integrity, transparency and accountability to the broader community," Bain said in an email Tuesday.

The Bel Air South community is one of three currently operated by New Points, in addition to similar residential recovery facilities in Towson and Baltimore's waterfront Canton neighborhood.

Five houses, which range from about 3,500 to 4,700 square feet in size, have been built on a 2.5-acre parcel along Ogden Court. The houses include single and double bedrooms, common areas, kitchens, office spaces and rear decks, plus the community has a fitness center and a community hall where seminars, workshops and 12-step meetings can be held, according to the New Points website.

The operators initially planned to have 50 residents, or 10 men per house, but that capacity was reduced to 40, or eight per house, in light of community concerns. Support staff and directors also work on site, and the residents must follow strict rules to ensure they maintain their recovery.

"Why don't we build something people will feel like they want to come home to, so they do have some dignity," Tom Burden, founder of New Points, told The Aegis in March of 2019 when describing the community. "They are coming home, they're not just existing in a room."

In a Dec. 30, 2019, letter to Bain, Killian described his final written determination about the sober living community in response to Bain's multiple concerns about a for-profit entity operating facilities with "up to 40 unrelated transient residents, all male," plus staff who are on site 24 hours a day, as well as a meeting hall expected to hold up to 100 people, in the midst of an R3 urban residential zone.

Killian replied that his department does not define the use of a structure "based on proximity to other structures," and the agency does not regulate the number of people occupying multiple dwellings, does not regulate occupancy based on "race, color, religion, sex, gender, age, national origin, sexual orientation or disability," does not regulate "paid professional services" provided in a residence, does not regulate transportation to and from residences, or the administration or management of a residential property.

The planning and zoning department also, in regard to the meeting hall, does not regulate "the congregation or assembly of people within a residence."

Killian emphasized in his letter that "single-family detached dwellings" are permitted in R3 zoning districts in Harford County.

Bain and Golden presented evidence that the sober living community is not a permitted use for the R3 zone, primarily through the expert witness testimony of a former Harford County planner, Jacquelyn Seneschal. She helped with drafting parts of Harford's zoning code and served as planning director in Charles County for more than nine years, part of a more than 40-year career in land use planning.

Seneschal also has experience working on zoning codes for counties in Delaware and Virginia, and has testified as an expert witness in the past. She disagreed with Killian's determination that the New Points community is allowed in the R3 zone as a single-family house use, according to Kahoe's report.

"It is a challenging task to categorize a use unique to Harford County and which is, in fact, one of the first such uses in the county," Kahoe said of the sober living community.

The hearing examiner noted that Seneschal "believes there is a great need for this type of facility in Harford County" and that she would like to see the community be successful. The property on Ogden Court is close to employment and other resources that would support the residents.

Killian was mistaken, though, by not referring to the North American Industry Classification System, or NAICS, when making his determination. The NAICS is described in the examiner's report as "a standard reference tool which government agencies use to categorize business uses" allowed on properties.

Killian also should have referred to "other allowable uses" in the county zoning code, as well as "materially similar use" standards in Sections 267-7 and 267-52 in the zoning code, according to the report.

Section 267-7 lays out the duties of the planning and zoning director, including issuing a final written determination within 45 days after a written request is submitted, regarding whether or not the proposed use for a property is allowed in a particular zoning district.

"The Director of Planning may determine a materially similar use exists, based on the [NAICS]," according to the code.

Section 267-52 provides details on materially similar uses, stating that "in the event that a particular use is not listed as a permitted use, temporary use, special development or special exception, the Director of Planning shall determine whether a materially similar use exists," according to that code section.

When applying the NAICS standard to the New Points community, Seneschal noted that the code for a single-family house used for renting or leasing is not appropriate. Rather, the NAICS code for residential mental health and substance abuse facilities is a better fit.

Materially similar uses in the Harford County code include "group home for sheltered care" or "personal care boarding home," according to Kahoe's report.

"Ms. Seneschal stated that if you take all five homes together as a single functioning unit, then this would clearly fit the definition of a Group Home for Sheltered Care," he wrote.

A group home for sheltered care, with one owner of multiple dwellings, one set of rules for all of the houses and paid staff on site 24 hours a day, is allowed in R3 districts, but only as a special exception. Personal care boarding homes are allowed in the R3 zones too, also as special exceptions, according to the report.

Golden, one of the appellants, also testified. Three requests had been made to Killian for his interpretation of the project, and the former director "took an excessive amount of time to respond" to each request, according to the report.

Kahoe agreed with the appellants' findings, stressing that the planning and zoning director should follow "a fairly simple" process to determine if a proposed use is permitted in a zoning district. If that use is not permitted, then the director can use the NAICS to find a materially similar use allowed on the property.

"If, after this process, the use cannot be found to be materially similar, then it is not allowed," Kahoe wrote.

"The neighbors, neighborhood, property owner and use operator deserve to be protected and given clear guidance by the Harford County Zoning Code and its responsible officials," he added.