The Suit About a Porch Gets a Day in Court

On Tuesday morning, as she began hearing a series of motions from a steady parade of attorneys, Circuit Court Judge Mary Beth McCormick informed the parties in the Martin v. Garrett Park suit that theirs would be last on the docket. “If you would like to use the time to resolve this, feel free,” she said.

It was the laugh line of the day. Garrett Park might just celebrate its bicentennial before this thing goes away.

When the time came for their hour-long hearing, Michele Rosenfeld, the attorney for plaintiffs John and Elaine Martin, argued that a principal section of Garrett Park’s zoning ordinances is illegitimate and should be struck down, while Garrett Park’s attorney Louis Liebowitz asked the judge to dismiss the Martins’ suit outright.

There are quite a few technical arguments in this case, and McCormick was clearly still getting up to speed, having been assigned to the case, she said, just the day before. McCormick did her best to make both sides winnow their arguments to essential elements, once chiding the plaintiffs for “a shotgun approach that’s hard to follow.” I’m going to narrow this discussion even more, because there were way too many big words for me to understand (although some of it was pretty darn funny, like the discussion of whether there are exceptions to exceptions).

A quick refresher: You will recall that the Martins filed suit after the town denied their building permit for a front porch, on the grounds that the new structure would cause their house to exceed the maximum amount of the lot that could be legally built upon.

The denial was based on the “minimum combined setback,” an ordinance Garrett Park enacted in 1992, in order to preserve open space. The gist of that ordinance, which is still in force today, is that 82 percent of a lot must be open space. How it mandated that calculation is, it seems, is one of the keys to this lawsuit.

Technically speaking, the plaintiffs’ attorney Rosenfeld argued, a setback is a linear measurement. If, for example, the front setback is 30 feet, you simply measure 30 feet from the curb and see if the house conforms. Ditto for the left side, the right side, and the rear.

In the 1992 ordinance, Garrett Park began to calculate setbacks in terms of rectangles, rather than lines. It’s a little bit like a tic-tac-toe game. Say the house occupies the box in the center. The area of all of the other boxes—the open space on the lot—must add up to at least 82 percent of the total. Rosenfeld, in her argument to the court, claimed the town had no authority in 1992 to calculate rectangles; hence, that law is invalid, and the court must strike it down.

Not so, argued Liebowitz. The Martins, he claimed, are making an unjustified leap of legal faith that setbacks can only be a linear measurement, and Garrett Park does not recognize “any defect” in the minimum combined setback ordinance. (He also argued that the suit should be dismissed because the Martins failed to exhaust administrative remedies, since they refused to request a variance.)

So here’s where things get more interesting. In 2006, the Maryland General Assembly explicitly granted municipalities in the state the authority to regulate lot coverage. That change led the Garrett Park Town Council, in the fall of 2008, to pass an amended ordinance that specified maximum lot coverage of 18 percent. Rather than saying 82 percent must be open, the ordinance said no more than 18 percent could be covered. That move, which has never gone into effect because of a pending (but as-yet unscheduled) referendum, would likely have invalidated the Martin’s suit.

Were McCormick to strike down the 16-year-old minimum combined setback ordinance, the town would then be governed—at
least temporarily—by Montgomery County’s zoning rules, which would allow houses to cover 20 percent of a lot under a unique “overlay zone” for Garrett Park. In that case, Garrett Park would almost certainly ask the judge to stay her decision pending results of the referendum on the new lot coverage ordinance. (In their suit, the Martins are challenging all of the town's zoning ordinances; however, their motion in court Tuesday only asked the judge to strike down the minimum combined setback.)

The bright side (for the Martins) would be a shiny new porch. What a pity it’s come to this. You’d think that Garrett Park could have made a reasonable proposal to settle the suit. Oh, wait. That happened. More than once.

If the judge were to dismiss the Martins’ case, most court watchers agreed an appeal would likely be in the cards.

So what have we learned this week?

1. Judges are at great advantage, when it comes to fashion. Black goes with everything.

2. Peter Benjamin was dead on when he wrote in the January 2009 Bugle that “I do not know what the purpose of the Martins’ lawsuit is, but it is not about getting a porch.”

3. With luck, McCormick will more closely consider case law, legal precedent, and written briefs than the lackluster oral arguments Liebowitz presented.

4. McCormick is tentatively scheduled to announce her decision January 9.