• MONTGOMERY COUNTY PLANNING DEPARTMENTTJ IE \[ \R)l ..\~D-~.\TTO~.\L C\PTT.\L P.\RK ,\0:D PL\;-.J0:T;-.JG COi\f.\fTSSTO;-.J

MCPBItem #11/01/07

MEMORANDUM

DATE: October 19, 2007

TO:

VIA:

FROM:

REVIEW TYPE:

PROJECT NAME:

CASE #:REVIEW BASIS:

ZONE:LOCA TION:MASTER PLAN:

APPLICANT:ATTORNEY:

Montgomery County Planning Board

Rose Krasnow, Chief '1JLj::'Development Review Division

Catherine Conlon, Subdivisio~~isor (301-495-4542)Development Review Divisio~ '-..J

Subdivision Regulations Waiver Request

B.F. Gilbert's Addn. to Takoma Park (Sligo Creek Nursing &Rehabilitation Center)SR W 200801

Chapter 50, Montgomery County Subdivision Regulations

R-60Located on Carroll Avenue, 340 feet northeast of Lincoln AvenueTakoma Park

Adventist HealthCare, Inc.Lerch, Early & Brewer

FILING DATE: August 23, 2007HEARING DATE: November 1, 2007

8-8- Georgia .-\,-enue, Sih'er Spring, :'faryland 20910 DirecTOr's Office: 301.495.4500 Fax: 301.495.1310

www.MongtomeryPlanning.org

STAFF RECOMMENDATION: Grant the waiver request to provide relief from fullcompliance with Section 50-35A(a)(3) of the Subdivision Regulations that requires parts of lotsincluded in a minor subdivision under that section to have been recorded prior to June 1, 1958.

Background

Sligo Creek Nursing & Rehabilitation Center ("Sligo Creek NRC") is located at 7523Carroll A venue in Takoma Park, on a 2.G-acre piece of land in the R-GO zone (Attachment A).The facility has existed in this location since the 1960s and is currently undergoing the necessaryapproval process for a one-story, 1,080 square foot dining room addition. The property ownedby Sligo Creek NRC is comprised of three lots (Lots 8, 42, and 43) and three parts of lots (Partsof Lots 9, 12 and 13) in Block 37 of the B.F. Gilbert's Subdivision. The existing building iscurrently built over the underlying lot lines, and the proposed addition would also cross anexisting lot line (Attachment B). Pursuant to Chapter 50 of the Montgomery County Code(Subdivision Regulations) this prevents a building permit from being issued for the proposedaddition. To rectify this situation, the applicant has submitted a record plat under the minorsubdivision provisions of Section 50-35A(a)(3) to consolidate the existing lots and parts of lots,and create one lot for which a building permit may be issued. Section 50-35A(a)(3) specificallystates:

"Consolidation of Lots and a Part of a Lot.

Consolidation of Two or More Lots or a Part of a lot into One Lot. Consolidating morethan one lot into a single lot is permitted under the minor subdivision procedure provided:

a. Any conditions applicable to the original subdivision remain in full force and effect

and the number of trips generated on the new lot do not exceed those permitted forthe original lots or as limited by an Adequate Public Facilities agreement.

b. Any consolidation involving a part of a lot may occur under the minor subdivision

process if the part of a lot was created by deed recorded prior to June I, 1958."

The provision requires that parts of lots which are consolidated through this process belimited to those which were created prior to June 1, 1958. The subject application includes onepart of a lot (Part of Lot 13, Block 37) that was created in 1967, not-pre 1958 as required by theSubdivision Regulations (Attachment C). The applicant is requesting a waiver of the Section 50­

35A(a)(3) provisions to permit this part of a lot to be consolidated with other existing lots andparts of lots which meet the requirements through the minor subdivision process, without havingto submit a preliminary plan of subdivision. The waiver requested by the applicant is covered inSection 50-38(£1)( I), which states that:

"The Board may grant a waiver from the requirements of this Chapter upon adetermination that practical difficulties or unusual circumstances exist that prevent fullcompliance with the requirements from being achieved, and that the waiver is: 1) theminimum necessary to provide relief from the requirements; 2) not inconsistent with thepurposes and objectives of the General Plan; and 3) not adverse to the public interest."

2

Applicant's Position

The applicant's justification for the requested waiver is presented in a letter dated AugustJ 5, 2007, from their representative, Mr. Stuar1 Barr of the law firm of Lerch, Early and Brewer(Attachment D). In this letter, Mr. Barr states that the waiver is necessary because the financingthat Sligo Creek NRS has obtained for the project is extremely time sensitive, and could be lost ifthey have to go through the approval process for a preliminary plan. Specifically, Mr. Barr

explains that the Sligo Creek NRS facility and the proposed addition are financed by a U.S.Department of Housing and Urban Development (HUD) insured mortgage, and the HUD loanfor the addition is contingent on the project being completed within one year from the closing ofthe loan (i.e., December 19, 2007). This deadline creates a practical difficulty for the applicantbecause if these funds are lost, the facility would be placed in an extreme hardship to be able to

pay for this much needed upgrade. Although a short extension of the deadline may be possible,it would still not provide enough time to complete a preliminary plan.

In further support of this request, the applicant's representative points out that therequirements of the underlying R-60 zone will not be adversely affected by the proposedaddition, and the applicant is not proposing to add any additional residents or employees. Hebelieves that this is the minimum necessary waiver to provide relief since five out of six lots andparts of lots on the property are eligible for consolidation under the minor subdivisionprocedures. Finally, he explains that this waiver is not inconsistent with the Takoma Park

Master Plan or the General Plan, and is not adverse to the public interest. In fact, no oppositionto the project was expressed by the surrounding community or City of Takoma Park officials

during the outreach conducted by the applicant, and the Board of Appeals has granted amodi fication to the special exception.

Staff's Position

Staff recommends approval of the waiver request. Staff agrees that the time limits placedon the financing for this project could not be met if the applicant has to go through the fullpreliminary plan process. The time limits associated with the type of loan received by theapplicant do constitute a justifiable practical difficulty. The waiver is the minimum necessaryand is not inconsistent with the purposes and objectives of the General Plan. The waiver is not

adverse to the public interest because the property will be platted. The application is exemptfrom adequate public facilities review, forest conservation requirements, and stormwatermanagement requirements because of the minor nature of the planned development, so thisexemption will not result in loss of any review that would typically be done as part of apreliminary plan. For these reasons, staff supports the request to pem1it Part of Lot 13, Block 37

to be platted under the minor subdivision process for lot consolidation even though it was notcreated by deed prior to June I, 1958.

Attach mcn ts

Attachment A - Vicinity Map

Attachment B - Existing and Proposed Development Plan

3

Attachmcnt C - Existing post-1958 Part of LotAttachmcnt 0 - Applicant's 8/15/07 Justification Letter

4

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SUITE 4&0 \3 BETHESDA METRO CENTER I BETHESDA, MD 20814-5367 ITEL 301.986.1300 IFAX 301.986.0332 IWWW.LERCHEARLY.COM

ATTORNEYS

August 15, 2007

BY HAND DELIVERY

Ms. Cathy ConlonSubdivision Review, Development Review DivisionMaryland-National Capital Park and Planning Commission8787 Georgia Ave.Silver Spring, MD 20910-3760

STUART R. BARRDIRECT 301.961.6095

,SRBARR@LERCHEARLY.COM

Re: Sligo Creek Nursing & Rehabilitation CenterSubdivision Regulation Waiver Request Application and Justification StatementIn Connection with Record Plat Application Number 2-08025

Dear Ms. Conlon:

Our firm represents the Sligo Creek Nursing & Rehabilitation Center ("Sligo Creek"), anursing home located at 7523 Carroll Avenue, Takoma Park, in the R-60 zone. Sligo Creek ispart of Adventist Senior Living Services, Inc. (ASLS), which owns and operates a total of fiveMaryland based nursing and rehabilitation centers. ASLS is owned by Adventist HealthCare, a

on-profit family of health care providers serving the Mid-Atlantic region and one of the largestmployers in the State of Maryland. The Sligo Creek nursing home has existed since the 1960snd is undergoing the necessary approval process for a modest addition to the existing building.

The Sligo Creek Property is approximately 2.6 acres and is currently comprised of aombination of three lots and three parts of lots. Sligo Creek has submitted a record platpplication to consolidate these lots and parts of lots into one lot (Lot 56) under the minorubdivision procedures contained in Section 50-35A(a)(3) of the Subdivision Ordinance. Theecord Plat Application was filed by Macris, Hendricks and Glascock on August 1, 2007 andas been assigned File Number 2-08025.

The purpose of this letter and the attached application is to request a waiver ofubdivision regulation pursuant to Section 50-38(a)(1) in connection with the Record Platpplication. This waiver request concerns Section 50-35A(a)(3)(b), which requires that foronsolidation of parts of a lot under the minor subdivision process, the parts of a lot must haveeen created before June 1, 1958. Two out of the three parts oflots in question were createdrior to 1958. The other part of lot was created in 1967.

708325.1 62241.001

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ATTORNEYS

Back2round and Proiect Description

Ms. Cathy Conlon. August 15,2007

Page 2

The Record Plat and Subdivision Waiver applications are a result of Sligo Creek'sproposal to add a modest one-story addition to the existing nursing home building for a newdining room. The proposed dining room addition is approximately 1080 square feet in size andwill be located in the rear of the building. Sligo Creek has conducted outreach with thesurrounding community and City of Takoma Park officials concerning the project and will berequesting a modification to its special exception approval from the Montgomery County Boardof Appeals. Sligo Creek is not aware of any opposition to the project.

The Record Plat and Subdivision Waiver applications to consolidate the lots and parts oflots on the Property are necessary because the location of the proposed addition would cross oneof the existing internal lot lines. Section 50-20(b) of the Subdivision Ordinance does not permitthe issuance of a building permit for a dwelling or structure which crosses a lot line, unless oneof the enumerated exceptions from Section 50-20(b) applies. It does not appear that any of thoseexceptions would apply in this instance.

HistoIT of Lots and Subdivision Status

The Sligo Creek Property is comprised of three lots n Lots 8, 42, 43 -- and three parts oflots -- Parts of Lots 9, 12, and 13 -- in Block 37 of the B.F. Gilbert's Subdivision. The proposeddining room addition would cross the internal lot line separating Part of Lot 12 and Part of Lot13, as shown on the attached site plan.

Based on our research, Lots 9 and 12, Block 37 were originally created by Plat 50 in1889. In 1952, portions of Lots 9 and 12 were conveyed by Deed at Liber 1706 Folio 313,without a resubdivision, leaving two Parts of Lot 9 and two Parts of Lot 12. The Parts of Lots 9and 12 that are not part of the Property were subsequently resubdivided into new lots by Plat3273. The Parts of Lots 9 and 12 that are part of the Sligo Creek Property remain parts of lots.Parts of Lots 9 and 12 are eligible for consolidation under Minor Subdivision Section 50­35A(a)(3)(b) since they were created prior to June 1, 1958 .

Lot 13, Block 37 also was originally created by Plat 50. In 1967, a portion of Lot 13 wasconveyed by Deed at Liber 3643 Folio 117, without a resubdivision, leaving two Parts of Lot 13.The Part of Lot 13 that is part of the Sligo Creek Property remains part ofa lot. This Part of Lot13 is not eligible for consolidation under Minor Subdivision Section 50-35A(a)(3)(b), withoutthis subdivision regulation waiver, since it was created after June 1, 1958.

708325.1 62241.001

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ATTORNEYS

Justification for the Subdivision Reeulation Waiver Request

Section 50-38(a)(l) states that:

Ms. Cathy ConlonAugust 15,2007

Page 3

The Board may grant a waiver from the requirements of thisChapter upon a determination that practical difficulties or unusualcircumstances exist that prevent full compliance with the requirementsfrom being achieved, and that the waiver is: 1) the minimum necessary toprovide relief from the requirements; 2) not inconsistent with the purposesand objectives of the General Plan; and 3) not adverse to the publicinterest.

Sligo Creek seeks a waiver from Section 50-35A(a)(3)(b) simply to permit theconsolidation of lots and parts of lots that have existed for at least the past 40 years on theProperty. The consolidation will allow a modest addition to the facility to provide a muchneeded dining hall improvement. The nursing home has existed since the 1960s and has notreceived significant upgrades to its physical plant since its original construction.

This subdivision regulation waiver request is the minimum necessary to provide relieffrom the requirements of Section 50-35A(a)(3)(b). Five out of the six lots and parts of lots onthe Property are eligible for consolidation under the minor subdivision procedures. This requestaddresses the one remaining part of lot.

The Property is located in the R-60 zone. The requirements of this zone will not beadversely affected by the proposed addition. No additional residents or employees at the nursinghome are proposed. This request also is not inconsistent with the Takoma Park Master Plan orthe General Plan and is not adverse to the public interest.

The Sligo Creek facility, and the proposed addition, are financed by a U.S. Department ofHousing and Urban Development (HUD) insured mortgage. The BUD loan for the addition iscontingent on the project being completed within one year from the closing of the loan (i.e., byDecember 19,2007). While a request for a modest extension is possible, such a request wouldentail extensive administrative work without any guarantee of an approved extension.Ultimately, there is risk that the funds available for the project would be required to be used torepay existing principal, resulting in the need to secure financing for the improvements again andexposing the facility to credit risk, interest rate risk and construction cost inflation risk. If the

additional funds were no longer available to pay for the project, the facility would be placed inan extreme hardship to be able to pay for the project.

Simply stated, the project is extremely time sensitive, and Sligo Creek respectfullyrequests a waiver in order to avoid the time, expense and unnecessary effort associated with a

708325.1 62241.001

sum 460 I 3 BETHESDA METRO CENTER I BETHESDA, MD 20814-5367 I TEL 301.986.1300 I WWW.LERCHEARLY.COM

ATTORNEYS Ms. Cathy ConlonAugust 15, 2007

Page 4

potential resubdivision. No public purpose is served by subjecting the Sligo Creek Property tothe resubdivision process, and a resubdivision is unnecessary and undesirable in this instancegiven the practical difficulties and unusual circumstances that exist. For all of these reasons,Sligo Creek respectfully requests a waiver of subdivision regulation 50-35A(a)(3)(b).

In support of our request, we are enclosing the filing fee in the amount of $1,390.00along with the following attachments:

1. Complete application form and fee schedule worksheet (25 copies)

2. A list of adjoining and confronting property owners and civic associations (1 copy with 2

sets of mailing labels)

3. Copy of notice of application (1 copy)

4. Plats 50 and 275 (1 copy)

5. Deeds at Liber 1706 Folio 313 and at Liber 3643 Folio 117 (1 copy)

6. Site Plan for proposed dining room addition (25 copies, reduced size)

7. Proposed Record Plat filed in Case Number 2-08025 (25 copies)

Please contact us if you need any additional information, and thank you very much foryour consideration.

Respectfully yours,

Stuart Barr

Enclosures, as described

Cc (wi all enclosures): Ilona Blanchard, City of Takoma ParkBrenda Rice

Cc (w/o Plats 50 and 275): George ChildSilvana Dill

Jim LitsingerMichael RandPaul NewmanMark North

708325.1 62241.00 I