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.

No Resolution in Sight for Lawsuit Against Garrett Park

A proposed revision of a town zoning ordinance, orchestrated as the first step in an effort to settle Martin v. Garrett Park, was removed from the agenda of Monday’s council meeting, amid signs that negotiations to end the 10-month-old lawsuit are at a standstill.

Mayor Chris Keller revealed that Councilmember Charles Berry has been meeting with the Martins, without lawyers present, attempting to find a resolution to the case that has cost the town $108,335 in legal fees to date. Those discussions were apparently leading toward an agreement, which would have required the zoning law change originally slated to be introduced last night and voted on in January 2009.

The revised ordinance would have allowed lot coverage to exceed, by up to two percent, the current 18 percent limit—if the extra construction were for a front porch. That move presumably would have allowed the Martins to build a porch somewhat smaller than the proposed structure for which they were first denied a building permit in January.

Sources, who spoke on condition of anonymity, said negotiations collapsed after the Martins added a demand that Garrett Park relinquish to Montgomery County any responsibility for building inspections or oversight of the porch’s construction.

Keller and members of the council were careful to discuss only the substance of negotiations conducted by Berry and not the court-mandated mediation that remains under a confidentiality order.

During an exchange about the town budget and legal fees, 45-year Garrett Park resident George Martin Sr. asked why a proposal in October by setback advisory committee chair Harry Gordon to change lot coverage rules, in order to accommodate porches, had apparently received scant attention. “What am I missing?” he asked. “Is the bleeding going to continue?”

Keller explained that the October proposal was “specifically in response” to mediation. Asked for further details after the meeting, Keller said “the parties filed a joint motion, signed by the attorney for the Martins, to continue the case because, according to the motion, settlement had been reached.” Five days later, Keller said, the plaintiffs withdrew.

Cindy Kratz, sister of plaintiff Elaine Martin, challenged the council to pass the porch-related ordinance change. “The lawsuit goes away if you do this ordinance,” she said. “There is no standing” for the case to continue.

Keller countered that the town alone could not terminate the case. There would, he said, need to be mutual agreement on steps necessary for the Martins to withdraw their suit. “You know there have been many prior steps,” he said. “We’re not going to solve here what a court hasn’t after 10 months.”

The Council Year in Review

Yeah, the year’s not over yet, but it seemed like a fun time to take a look back at the Garrett Park town council’s 2008.

January. The owner of a historic property wants to build an addition. But, because his house is on a corner lot, town setback rules essentially apply twice, so there’s nowhere for the new construction to go—well, legally, that is. Worse yet, the situation doesn’t meet standards for consideration of a variance. Setback advisory committee chair Harry Gordon proposes a small change in a town ordinance, to remove the undue burden on this and other corner lots.

February. Much discussion about tax receipts, the town’s financial position, and a slightly ominous outlook for the 2009 fiscal year. (Looking back, doesn't "slightly ominous" sound nice?)

March. The owner of a property on Clyde Ave. has been denied a building permit for a small deck, because his house covers every buildable square foot of his property. The possibility of a “small lot variance” exists—presumably because his lot is, well, small. Debate ensues among councilmembers about a 2006 Maryland court case that may severely limit instances where a variance can even be considered. Because one of its members is absent, council postpones its vote for a month.

April. January’s proposed corner setback ordinance change passes. March’s variance for the Clyde Ave. deck passes.

May. Chris Keller chairs his first meeting as newly elected mayor. Council votes to keep the property tax rate steady, meaning that if assessed values rise, so will tax bills.

June. The council holds two meetings. First, a special session, in the closing hours of fiscal 2008, to rebalance the year’s budget. The meeting turns contentious, because there’s more than $30,000 in expenditures for Martin v. Garrett Park, the civil suit ostensibly over a porch. A couple dozen angry townsfolk want to know why the town hasn’t reached a reasonable accommodation—presumably by ignoring its laws and caving in. The amended budget (the sole reason for this meeting) passes. At the regular June meeting, the council hears a variance request for a front stoop and steps on Oxford St. It’s a non-starter. The house and all of the extra structures that have to be taken into consideration already slightly exceed maximum lot coverage. A variance can’t even be considered. Homeowner continues his request for a month, with the suggestion he consult the setback advisory committee.

July. Oxford St. variance from June comes back up. Homeowner hasn’t consulted setback advisory committee. No go for a variance—again. Homeowner says he’ll “contact a lawyer and see what I can do.”

August. Bucking precedent, the council meets, to introduce (but not vote on) a new ordinance that would express lot coverage in terms of, well, lot coverage—and not in terms of open space. The changed ordinance would also spell out just what structures (bay windows, chimneys, etc.) would count toward maximum lot coverage. Every seat is full, and the meeting boils over. Partisans argue the council is trying to pull an August surprise, slipping a big-time change under the people’s noses. Some allege it’s just an effort to invalidate Martin v. Garrett Park. One resident refers to another by an insulting anatomical name. Recipient of profanity offers to take it outside. Neutral observers appear grateful the town is a torch- and pitchfork-free zone (well, at least nuclear ones).

September. Council does not act on the lot coverage ordinance change, but simply listens to concerns of citizens. Discussion is mostly civil, but a rehash of August. “Sense of the council” resolution passes, to remove deck, shed, bay window specifics from the proposed ordinance.

October. What had been the sense of the council resolution passes, but with an amendment that if the new, altered ordinance were to be struck down by a referendum or a court, the town would simply revert to its previous zoning regulations. Conspiracy theorists have a new reason to live. Mayor Keller discusses the soon-to-be-formed zoning task force.

November. More budget adjustments, due primarily to attorney’s fees from you-know-what.

December (spoiler alert: this hasn’t happened yet). The Oxford St. variance is scheduled for a return engagement. And, Mayor Keller is slated to introduce a new ordinance with the longest description we’ve ever seen: “An Ordinance to Amend Chapter 4 of the Garrett Park Town Code to decrease the minimum combined setback to 80 percent from 82 percent in certain circumstances where the portion of the main building that intrudes into the 82 percent combined minimum setback comprises solely an open front porch or where the main building already intrudes into the combined minimum setback and any further decrease in combined minimum setback up to 80 percent comprised solely an open front porch.”

A Brief Housekeeping Note

In response to several requests, I'm setting up an E-mail list, so you can get new items from the Garrett Park Blog sent right to your inbox. If you would like to get those posts as E-mails, just shoot me a note to rafolkers@verizon.net.

Thanksgiving

Anyone who knows my family knows we are dog people. It’s a love—or perhaps an obsession—that began two decades ago with Bear, an abused sheltie, and Annie, a mix of multiple breeds, all of which we presumed were actually dog. Annie and Bear were up in years when we moved to Garrett Park, and they didn’t live here for long. Annie succumbed to an enlarged heart, and Bear had a stroke.

When Bear died, we swore he was our last dog, and we kept that promise for four days. We welcomed a sheltie puppy named Belle, followed several months later by her littermate Lily. These two sisters had a little Thelma and Louise in them. One afternoon, a woman pulled up in a station wagon, with two black dogs in the back. She’d found them on opposite sides of the tracks, attempting to catch a freight train. Underneath the coating of grime lurked our dogs. Another day, these mostly white dogs rolled their way through a freshly mown lawn and came out day-glo green.

Two years ago, on President’s Day, Lily died from a rare liver disease. Belle is still with us, but she is in decline. She shares her existence (mostly willingly) with Tess, a former stray from West Virginia believed to be an American Eskimo dog, and Piper, a cross between a sheltie and a collie rescued from a dog hoarder in Georgia.

Somehow, though, three just didn’t turn out to be enough. This summer—as if to prove, first, that you should never let your spouse volunteer in an animal shelter and, second, that a spouse’s heart is generally bigger than her sense of what the neighbors will think—we brought home Cora. A nine-pound Pomeranian, she was a breeding mother from a horrific puppy mill in Tennessee. She had likely never been out of a chicken-wire cage, having been bred during every cycle of her 5 years. Her first days in our family, Cora spent most of her time on the deck, trotting in a small, counterclockwise circle, presumably the only pattern of movement she knew. She didn’t understand affection, because she had never been held or petted. For her entire life, she’d been a breeding machine.

After a day or two, I tried to get Cora to take a walk. Within a few uncertain blocks, something clicked. She began to prance at the end of the leash. She was fearful of people (and the ice cream truck) but not of the world. After that, we would walk in the evening for an hour, and then she would sleep in our bed, safe in the crook of my left arm. More than once, the thought occurred to me that if her life were to end tomorrow, we’d given her a better today than she’d ever known.

Columbus Day weekend, Cora’s tomorrows with us came to an end. She slipped out of the yard and, according to the few people who caught a glimpse of her, ran as if her life depended on it. Just what happened to that life, whether she was picked up or perished, we do not know.

It was, however, in the hours and days after Cora disappeared that we came to truly understand what it means to live in this town. It had nothing to do with houses or yards or gardens. It had nothing to do with historic preservation. It had nothing to do with trees. It had nothing to do with living in an enclave protected from the encroaching traffic of Rockville Pike and Connecticut Avenue. And it most certainly had nothing to do with a silly lawsuit about setbacks. It had everything to do with people who cared.

The weekend Cora went missing, a brigade of flashlight-toting neighbors came out and searched late into the evenings. I saw kids with missing-dog flyers on their bikes and scooters. I saw a woman and her husband walking through the woods gently calling her name. As we searched, not a single neighbor complained about the flyers we slid in their doors and under their windshield wipers. With just one exception, no one whined about the recorded phone message about her. Neighbors volunteered to help search on Saturday and Sunday and Monday. Garrett Parkers allowed us to peer into their yards and sheds, often more than once. People we didn’t know called to ask if she’d been found or simply to express their sympathies.

Yes, Cora was a dog, and not all of us see pets in the same light. Yet, she was precious to us. To all of you who shared that sentiment or who simply wanted to help a family in distress, please accept our deepest thanks.

This story has an epilogue. His name is Griff, a feisty, 15-week-old ball of Pomeranian fluff (pictured above) from an Amish puppy mill in Ohio, where he would have been consigned to a life not much better than Cora’s. Griff has made us smile again. He will never replace Cora, nor will we ever repair the hole she left in our hearts. That’s probably not a surprise. Anyone who knows my family knows we are dog people.

Believing in Small Gestures

There was a minor agenda item at Monday night’s council meeting that got me thinking.

Garrett Park Administrator Ted Pratt sought (and received) authorization from the council to move the town’s checking account and the Betsy White Emergency Loan Fund account from Wachovia Bank to Sandy Spring Bank. The proposed move was, in part, practical: The new accounts will yield higher interest. But Ted also made an impassioned case for moving the town’s money from a bank mired in financial crisis caused, at least in part, by bad mortgage debt and other troubled investments to one that is local and accountable to its community.

Given the dollar amounts in question, it’s pretty clear that switching banks isn’t going to make a dent in Wachovia’s balance sheet. And that’s what led me to wonder whether symbolic gestures like Ted’s are worth the trouble.

Like Councilmember Hans Wegner’s belief that town property should be powered solely by wind-generated electricity, even if it costs more and public appreciation is short lived.

Like Warren Kornberg’s belief in an impeachment petition that would likely have had no impact on national debate.

Like Garrett Park’s declaration, more than a quarter century ago, of its nuclear freedom.

Why do some of our fellow citizens take the time and go to the considerable effort of standing up for symbols? Maybe it’s because passion, commitment, and personal code sometimes trump what is practical. And sometimes sparks catch fire.

Does that mean we should vote in favor of anything anyone believes is right? Of course not. Should we discuss and debate what our community stands for? You bet. But perhaps this quirky little town should pause once in a while and say thanks to our neighbors, even the ones we disagree with, who believe in the power of small gestures.

November Town Council Meeting

What a difference a month makes. At its November meeting last night, the Town Council didn’t debate a zoning ordinance. There were no arguments or accusations about the lawsuit against the town and who’s right or wrong. In fact, the meeting was relatively brief and, frankly, not particularly exciting. It was wonderful.

First up was a presentation about the Garrett Park Elementary School’s stage. As all GPES alumni know well, this school has a long tradition of support for the arts. Yes, it’s elementary school, and performances of pre-teens often fall into the category that Randy Jackson on American Idol would call “a little pitchy, dog.” But that misses the point. These are little kids, who just might, if they are very, very lucky, move through life with a lasting appreciation for music and the stage. The problem right now is the stage itself. GPES is slated, beginning in late 2010, to be transformed into a modern, three-story building. Unfortunately, the County’s plans for a small, trapezoidal stage with no wings or back curtain would put quite a crimp on performance possibilities. So, the Garrett Park Elementary School Education Foundation is raising money to fund a stage at least the size of the existing one and maybe, if the bucks are right, bigger. The foundation wants the town to contribute $5,000 to the effort this fiscal year and $10,000 next year. (The whole stage project will cost $150,000 to $200,000.)

The obvious question is whether the town should play. Well, there is a history. Sixty years ago, the town kicked in to help build the stage GPES has now. In the current case, Mayor Keller suggested that, in return for the town’s possible financial backing (budget planning starts in a couple months), the town might be able to negotiate first dibs on rentals of the new space for events too large for town hall.

During this discussion, I couldn’t escape a feeling of foreboding--that if America’s fiscal nightmare is protracted, the town, in years to come, will have fewer and fewer opportunities to devote precious funds to more than basic services.

It may be lucky, then, that there is a possible resolution about the future of the Garrett Park Nursery School that likely wouldn’t consume buckets of cash. Mayor Keller and Councilmember Hans Wegner reported on a recent meeting with Montgomery County park and planning officials, who seem amenable to transferring to the town ownership of the nursery school building and the lot it sits on. But the County wants something in return: the half of the basketball court near Penn Place that the County park system doesn’t currently own. There would need to be clear conditions on this land swap, said the mayor, including a perpetual easement to the town, ensuring that a basketball court remains a basketball court and that access to Porcupine Woods remains unchanged. One potential enticement: the County folks have suggested that they might be able to build us a gazebo. Next steps: a written proposal from park and planning, followed by careful consideration.

In the more immediate fiscal situation, the town budget is taking a big hit in one area: the lawsuit Martin v. Garrett Park. “We are burning through cash in legal fees at the rate of $50,000 a month,” said Town Administrator Ted Pratt. At the moment, there’s a budget shortfall of about $54,000 in the “professional fees” category, so the council voted to transfer $20,000 from the operating contingency fund and $35,000 from the capital contingency fund, to cover the gap. There will almost certainly be more transfers needed, down the line. [Insert the comment of your choosing here about who’s to blame.]