In 2023 the Montgomery County Council passed an expedited act aimed at preventing complete house teardown-rebuilds. This was done with the stated intention of protecting the safety of our community and the purchasers of these new homes. While I personally agree with the intention, the actual law, like many other Montgomery County building restrictions, has flawed metrics, to the point that it does not come even remotely close to preventing the excessively large and poorly built flipped homes that have become a concern.

While proponents of the bill claim that it will improve the quality of newly constructed or renovated homes or offer some additional protection for homeowners, the actual law doesn’t explicitly require anything of the sort. It is true that the demolition of buildings law may trigger various other requirements for the new construction, although these rules remain unchanged and are easily waived or blatantly ignored.

I am personally in favor of greater restrictions on houses that are being flipped, but the Demolitions of Buildings Law is just one more example of ineffective legislation based on metrics that are irrelevant to the actual problem or its solution.

More detail on all of this below, but first, an actual real world example that illustrates the failings of the demolition of buildings law.

HOME DEMOLITION CASE STUDY

This is a comparison of two real projects that were completed within about a year of each other. The two houses are in the same neighborhood on the same block, on the same street. Both projects started as 1940s era bungalows and added a second floor and some additional space on the first floor.

Project A was completed by a family who lived in the house for 8 years prior to the project and continues to use the house as their primary residence;
Project B was completed by an LLC who owned the house for about 11 months total.

Project A was designed by a licensed architect;
Project B had permit drawings drafted by an engineer.

Project A was built by a licensed general contractor;
Project B was built by a dentist.

Project A exceeded insulation and air tightness standards by more than 30%;
Project B did not.

Project A has since reduced their energy consumption despite the increased size of the home.
Project B has flooded and has required thousands of dollars of floor replacement and additional repairs. (not covered by any warranty or other consumer protection)

Project A permanently removed gas service and replaced gas heat, cooking and water heating with electric;
Project B did not.

Project A built only what was needed, at the expense of additional equity in the home;
Project B added more footprint, more gross floor area, more bathrooms, more plumbing fixtures, more bedrooms and did more site excavation.

Project A was financed by the homeowners with their own money and a home equity loan;
Project B was sold to new owners for a profit.

Project A is what the County should be promoting. Project B is what the County Council thinks they are limiting.

Yet the Project A homeowners paid thousands of dollars of additional fees and required more permits and more inspections. The Project B owner was reported for not providing a dumpster to properly dispose of construction waste, choosing instead to pile it all in the yard.

The difference: Project A demolished all of the existing exterior walls. Project B left 33% of the existing exterior walls intact.

The fact is that there is nothing in the Demolition of Buildings Law, or the various additional requirements that it might trigger, that prevents Project B from being developed. This is still the standard for many flipped houses in Montgomery County.

If it's not obvious, Project A is my own new construction home in Takoma Park.

We went through the permitting process in August/September of 2023, so I believe we may have been the first house to be required to meet the demolition permit requirement. I think this is a fitting example of how poorly thought out and executed this legislation is.

EXAMPLE #1

A visual comparison of what's ok to do and what represents a major problem for the County.

This is 33% of the existing walls at PROJECT A from above. The County has no problem with this. Ironically, 33% on this project ended up being “two small walls.”

These are the same walls, with the new window locations cut out. This is also ok to do.

Apparently those two walls were really special, because THIS version represents an incredibly dangerous situation that needed to be addressed with an expedited act.

WHAT DOES THE DEMOLITION OF BUILDINGS LAW ACTUALLY REQUIRE

The new law requires that a Demolition Permit be obtained if more than 67% of an existing building’s exterior walls (excluding the basement) are removed. A Demolition Permit requires various letters, statements or inspections to verify that an existing structure be safely demolished. As we'll see below, compliance is largely self-reported.

If an existing house has been issued a demolition permit, then the permit to construct the new home on that lot must be a new home construction permit. The County Council has relied on this process for many of the improved quality claims they have made, but the actual facts do not support the conclusion that the Demolition of Buildings law actually ensures higher quality.

While there may be a deterrent factor for developers not wanting to deal with the demo permit or new construction process, there is nothing inherent in the Demolition Permit that improves the required quality of the new house. The requirements from which a home purchaser of a new construction home might benefit are easily circumvented. Furthermore, the structural acrobatics required to maintain 1/3 of the existing walls, which is what most home flippers will do, may lead to a less safe structure.

The demolition permit requirements themselves don’t entirely make sense for a project such as a tear-down rebuild, especially since the foundation is excluded from the calculations.

The original intent of a demolition permit is to ensure a site is safe and properly restored after a structure is razed. The various requirements for a demolition permit are listed here, with my commentary on each. For the most part these items are SELF-REPORTED or otherwise not inspected, so there is no enforcement anyway.

EXAMPLE #2

Here are two additions. Can you tell which one demolished 100% of the existing exterior walls and which one only demolished 67% of the existing exterior walls?

Its a trick question. You can't tell the difference because there is none…

…because the percentage of demolition done on an existing house is an irrelevant metric to the size or quality of the finished house.

Even more importantly, the percentage of demolition is an irrelevant metric to the SAFETY of a construction site or neighborhood.

DEMOLTION PERMIT REQUIREMENTS

To be issued a demolition permit, an applicant must provide or show the following items have been met.

BOND
You have to post a bond with the county equal to the cost of the demolition work. The bond is returned once the work is completed. On a tear-down-rebuild the “completion” date is self-reported. A Montgomery County building inspector will confirm that demolition is done, but there is no requirement to restore the site because the construction project as a whole is still ongoing.

ELECTRICAL DISCONNECT
You need a letter stating that electrical service has been disconnected. Any large addition will usually disconnect electrical service from the house and install it on a temporary pole in the front yard, so this is not a requirement that causes builders to do something they aren’t already doing anyway. Electrical service disconnect is SELF-REPORTED and not inspected or otherwise verified by the County.

GAS DISCONNECT
You need to provide a letter stating that gas service has been disconnected from the house. If gas is going to remain for the new house, a plumber can turn off the gas during construction, which will happen regardless of the project size. Washington Gas will be involved if gas is going to be permanently abandoned or if the meter needs to be relocated. The disconnection of gas service is SELF-REPORTED and not verified or inspected by the county.

TELEPHONE DISCONNECT
You need to provide a letter stating that telephone service has been disconnected from the house. This is SELF-REPORTED.

WSSC DISCONNECT
If water service already exists at a location, WSSC does not provide a “disconnect” and does not consider the project to be New, regardless of Montgomery County definitions. If water service enters the house through the existing foundation, which is almost certainly does, and if that foundation is remaining, which the demolition of buildings law does not consider, then the water service will remain and simply be turned off during construction. This is no different for a “New” construction or Addition. Regardless, it is also SELF-REPORTED and not verified or inspected by the county.

SEDIMENT CONTROL
Construction projects in Montgomery County may need a Sediment Control permit. This is based on the size of the project and not specifically related to demolition. Large additions often require a Sediment Control permit, so this is not a deterrent to demolishing a house nor does it offer any improved quality if the project happens to be new construction.

EXTERMINATION LETTER
You need to provide a letter from a licensed exterminator verifying that there are no rodents or pests living in the structure to be demolished. The original intent is to prevent a bunch of rats living in a garage from moving into a neighboring basement when the garage is razed. Requiring an extermination letter when you remove more than 67% of existing walls doesn’t make any sense. If you demolish 10% of the existing walls, but those walls were above a crawl space with racoons, those raccoons ain’t stickin’ around. If this is a legitimate problem it should be a requirement of all addition/alteration permits.

ASBESTOS AND RECYCLING
Demolition activities require that asbestos be properly abated or disposed of and that recyclable materials be diverted from landfills. There is no inspection or verification that this happens, and thus it is not a deterrent.

EXAMPLE #3

Here's a project currently under construction in Montgomery County. They have kept at least 33% of the existing walls intact. This project does not require a demo permit or new construction or sediment control or stormwater management. But at least they kept those brick walls standing, saving us all from an incredibly unsafe condition /s

MoCo…tell me you've never designed or built a house without telling me you've never designed or built a house.

why the underlying concept of the demolition of buildings law is flawed

There are more than a quarter million detached single family residential homes in Montgomery County. Every project and site is different, so it is difficult to create legislation that makes sense for all projects and can be fairly applied across different Zones, property sizes, owners, builders etc. Unfortunately the demolitions of building law really does not come close to effecting change. The entire premise that the demolition of buildings law protects anyone is based on two things; the requirement for a demolition permit and the subsequent requirement for a new construction permit as opposed to an addition permit. To the first point, the demolition permit offers no protection as it is largely self-reported with no additional oversight. To the second point, the protections a new construction permit may offer through the Office of Consumer Protection are easily, and legally, circumvented.

With those two pillars…demolished (sigh), the entire law is toothless. Then there are other reasons this law doesn't make sense or improve the condition of the built environment in Montgomery County. In no particular order here are three additional reasons the law doesn't work.

1) The amount of demolition that an existing house undergoes has no bearing on the quality of the project that will be built.

If you start with an existing one-story single family detached home and want to make it significantly larger, the demolition of buildings law offers no restrictions. Zoning already dictates building size and height, lot coverage, property setbacks and more. Whether the existing house was entirely or partially demolished, you can still build the exact same square footage, same height, use the same materials, same windows, same mechanical system and so on… If you are attempting to find a metric for the quality of a new home, the amount of demolition done to the existing structure has zero correlation. None. It can predict future quality with the same degree of certainty as the color of the street name sign or whether or not the Nationals won last night.

2) There are legitimate reasons to demolish all of the existing exterior walls

In discussions about sustainable design, the rule of thumb is that it is best to keep what is already built. Don't demolish your exterior walls because that energy (and carbon) has already been expended. This may be generally good advice, but the issue it too complex and too technical to rely on rules of thumb. When considering a rapidly aging housing stock that was not created with energy efficiency in mind, it might make sense to replace the exterior walls with modern assemblies that meet today's performance standards.

In the case of Project A, the walls that were removed were 75 year old uninsulated brick and masonry walls sitting on a bowing foundation. They were replaced with well-insulated and air-tight wood framed walls. This has resulted in lower energy costs for the house. When considering the health of the home and environment over the next 50 years, it doesn't make sense to keep century old brick just because it exists.

3) The demo law excludes basements from the calculation, but this is where the most intensive land use occurs

I assume the demo law excludes the basement and foundation walls because those are almost always being left intact anyway in this type of project. Allowing builders to include the basement walls in the calculation would mean even fewer projects would be required to obtain demolition permits. But when considering a construction project and side, the foundation is where the most intensive, disruptive work occurs! We SHOULD expect and/or incentivize builders to keep existing foundations. When you do that you reduce the amount of excavation on a project and all the benefits that go along with reduced excavation.

4) it is easier to build a better house than it is to work around an existing house…even for people who don't care to

Look at example three above. This is NOT a more safe condition that in any way protects the neighbors, neighborhood or homeowners. The two remaining walls present a challenge to the builder that must be worked around. If we are trying to limit the ability of underqualified builders from completing projects we don't want to force them into scenarios where they are trying to frame around existing deteriorating masonry like this. Even a builder who is low-skilled or does not particularly care about energy efficiency will create a safer, more insulated more efficient home if they are permitted to remove all the existing exterior walls and frame new ones that meet current standards.

COUNTY OFFICIAL COMMENTS THAT ARE MOSTLY NOT ACCURATE

The following quotes are from a press release from the Department of Permitting Services announcing the new legislation. At best they are distortions of the truth. I don’t think any of these people are outright lying, but these quotes show the disconnect between what these officials believe and what the actual facts are.

 County Claim #1

 “Before the definition of demolition was changed, a contractor could basically rebuild a new home with an alteration/addition permit by leaving a small portion of the original building, such as two small walls, without requiring a permit for demolition or new construction.”

Marc Erlich
County Executive

What Actually Happens

No, you could not keep “two small walls.”

The State of Maryland already has a law that requires fire sprinklers to be added to an existing home if more than 50% of the exterior walls or floor area are demolished during a renovation.

Montgomery County has always interpreted this limit as the threshold for needing a New Construction permit as opposed to the lesser Add/Alter permit. There was no scenario in which a contractor could leave “two small walls” and not need a new construction permit.

There was previously no need for a demo permit, but as we have discussed already, the demo permit has no bearing on the quality of the new construction home and may only prove to be a limited deterrent to builders wishing to demolish a house. Leaving two small walls most likely already required a new construction permit, which is not a deterrent to many home flippers.

The new law only requires a demolition permit if you remove more than 2/3 of the existing exterior walls. In many cases this maintains the status quo, where a new construction permit, but not demo permit, is required.

County Claim #2

“A demolition permit triggers certain obligations on the part of the applicant, which are coordinated directly with agencies, such as Pepco, Washington Gas, Montgomery County Department of Environmental Protection and Maryland Department of the Environment. They verify service disconnection and meter removal, compliance with safeguards to abate any pest control issues and remediation of any detrimental environmental impacts such as asbestos and lead.”

Rabbiah Sabbakhan
Director, Montgomery County Department of Building Services

What Actually Happens

There is very little additional construction work required to obtain a demolition permit that is not already happening with a large addition. See the section above about the actual requirements for a demolition permit. Given that none of Pepco, Washington Gas, Washington Suburban Sanitary Commission or any cable provider recognizes Montgomery County specific definitions of New Construction vs Addition, the process with these utilities has not changed. Furthermore, nearly all of the demolition permit requirements are self-reported and not subject to any oversight or enforcement from Montgomery County.

County Claim #3

“This legislation addresses a gap in the previous law that permitted unregistered new home builders to demolish existing homes and build new homes under the guise of ‘additions.’ The updated law now mandates the proper registration for all such construction activities.”

Eric Friedman
Director, Office of Consumer Protections

What Actually Happens

This legislation does not address this issue and absolutely nothing changes.

A new construction home, built by a licensed general contractor, has always required that contractor to have an additional New Home Builder certification from the Montgomery County Office of Consumer Protection.

There is one major loophole that has not been addressed: The property owner is exempt from this requirement.

That means if a dentist wants to flip 123 Main Street, they’ll set up 123 Main St LLC, buy the house and apply for the permits as the owner…no New Home Builder license required and no OCP protection for the new homeowners who purchase the flipped property.

A slight variation on this is the LLC will apply for the permits as the owner (which requires an affidavit that they will not hire a general contractor) and then hire a general contractor anyway, one who may or may not be licensed.

The result: A reputable general contractor, already licensed by the State of Maryland needs to apply and pay a fee to receive a New Home Builder certification, while any unqualified person with enough money to flip a house can continue to masquerade as a builder with no certifications, no oversight and no additional protections for future homeowners.

County Claim #4

“The new demolition law helps ensure we are providing quality, safe housing during this housing crisis our County faces. And, as we look to create more resilient communities in the face of the climate crises, the changes made to the demolition permit will also address stormwater management issues to better mitigate potential runoff impacts.”

Kate Stewart
Councilmember

What Actually Happens

Absolutely nothing about that claim is true. Unethical and underqualified home flippers keep 33% of the walls intact and avoid all this nonsense. They continue to build code-minimum homes because they are not required or incentivized to do any better.

Large additions already require stormwater management (depending on the lot size and some other factors), so this is not an improvement to the existing situation. The metrics currently used to determine drainage requirements for additions are also wrong and I’ll be tackling that issue in a future rant.

HOW TO ACTUALLY IMPROVE THE QUALITY OF LARGE ADDITIONS IN MONTGOMERY COUNTY

There is one super simple amendment I suggest that would accomplish all the goals the County council has tried to achieve with the demo law.

Any detached single family residential construction project, New Construction, Addition or Alteration, of any size, where the Owner is an LLC, needs to have the building permit issued to a licensed general contractor. No exceptions. If the project happens to be New Construction then that contractor shall also have the required New Home Builder license from OCP.

And a useful amendment to that requirement:

Homeowners who have used a house as their primary residence for 12 months should be exempt from the Demo permit process.