Editorial Opinion by Cindy Cotte Griffiths: Board of Appeals Brought To Court

Originally, back in March 2010, the Rockville City Council voted to instruct the City Attorney not to represent the Board of Appeals when they were petitioned by 15 members of the community for a court review concerning their decision to approve a Special Exemption for Victory Court, an 86-unit affordable senior housing development planned for property owned by Montgomery County on Fleet Street. (For the record: Phyllis Marcuccio, Bridget Newton and Piotr Gajewski voted against representing the volunteer Board while John Britton and Mark Pierzchala voted to allow the salaried City Attorney to represent the Board.)

Obviously as the Chair of one of our City’s Commissions, I was tremendously concerned about how these volunteers were treated. Roy Deitchman, a member of the Board of Appeals for seven years resigned over the matter. At the time, I could only put myself in the Board’s shoes and imagine being left alone to defend my Commission against this group in court.

In April when Montgomery County assigned an attorney to respond to the Petition for Judicial Review, the Mayor and Council reversed their decision in a 4-1 vote with Bridget Newton continuing to oppose the representation. The minutes from the April 12, 2010 meeting state “Councilmember Newton said she did feel the Board’s decision was flawed and would vote to not go forward with the City’s response.”

The members of the Board of Appeals dedicate many hours of service without compensation. I strongly believe the City they serve should represent them. One of the City Attorney’s duties is to “Defend challenges to decisions/actions of the Mayor and Council, Boards and Commissions, and staff.” The majority of our elected officials eventually did the right thing.

Yesterday I went to Judge Greenberg’s Circuit Courtroom to see what would happen with this Petition brought by Alice Lui and 14 others. Mayor Phyllis Marcuccio and Councilmember Bridget Newton were in attendance along with Alice Liu and Noreen Bryan.

The City Attorney was present to represent the City of Rockville. Montgomery County, the owner of the property, and Victory Housing, the developer, both had attorneys present. The Board of Appeals was represented by Alan Sternstein a member of the Board of Appeals, who pointed out that he was not being compensated.

Judge Greenberg held the hearing to a one-hour time limit and explained he had read all the documents submitted. Since the attorney representing Montgomery County decided not to speak, this left 15 minutes for each of the other attorneys. Obviously what was heard in the courtroom was not the full argument on either side. I’m sure someone with a legal background could find fault with my descriptions since the words spoken quickly in a limited time period might not have been as accurate as all the many stacks of evidence in this matter. Regardless, I am going to attempt to portray what occurred in the courtroom because this issue is important to our City.

The attorney, Mr. Chen, representing the petitioners in this matter attempted to list issues, reusing numbers in his description. He stated that the deciding agency did not render defining reasons and there was an absence of evidence. He was also concerned about how the amended decision evolved, which he believed was eligible for review. He also stated that the Board of Appeals was required by State Code 66B to go over and above anything in our City’s Zoning Ordinance to make sure that a special exemption would not adversely affect the health of the neighborhood. A development cannot change the character of a neighborhood. He also stated that the “neighborhood” was not properly defined. Notices were sent to everyone in a ¼ mile radius of the property but the Board of Appeals never legally defined the area in their decision. There is also concern about what is planned in the 59-foot buffer area especially the parking. When he mentioned that the Comprehensive Plan for the City of Rockville stated affordable housing must be scattered-site, the Judge asked about whether this was a recommendation rather than a requirement. He responded that the State Statute 66B requires it to be “complied with” so scattered means scattered. Using the ¼ mile radius area, it is overly impacted by affordable housing. The Board of Appeals did not address this situation. Another issue mentioned was that adequate accessibility to public transportation, medical services, shopping and recreational/community services had to be determined since the proposed housing would serve people with disabilities. The petitioners believe there was no attempt to do so by Victory Housing other than to say all of these existed “in Rockville”.

Personally, I do not discriminate on the basis of income. Having neighbors (who might not make as much money as the people living in the townhouses of Courthouse Square or the single-family houses on South Washington and Argyle Street) living in apartments does not lower housing values or adversely affect our neighborhood. To believe otherwise is discrimination. I say this with my house being less than a block from the Victory Court site and a stone’s throw from those bringing this petition. Also, the Victory Court location is across the street from City Hall, a few blocks from Town Square and the Metro, with bus stops and sidewalks surrounding it. I love my neighborhood because it is so close to everything, an excellent location for all of the amenities mentioned.

Now, let me review the responses from the other attorneys.

The City’s Attorney indicated that she had fully responded in writing. Ms. Daniel used her time to explain that the concerns over the “flat roof” were unjustified. Throughout the body of the Board’s original decision, a flat roof was mentioned three times, which she detailed. Clearly the intention was to approve a flat roof. About the concern that the amendment signed by all three Board members after the January hearing should have required an additional meeting, she stated the document evidenced what occurred in the January hearing and did not require another hearing since it simply corrected the decision. There is nothing in the law requiring a new hearing. Even if the Court found an error, there would still not need to be a hearing. She stated that the only reason everyone was in Court was because these neighbors were not happy with the decision. As to the area used for this case, other legal cases have clarified that it need not be “strictly defined in any way”. She explained that no one was confused as to the area used in this case. The petitioners never raised the issue and said, “Hey, I don’t know what neighborhood you are talking about.” The City and neighborhood all had the same area in mind when the development was discussed.

When representing the Board of Appeals, Mr. Sternstein stated that to contend that there was some other design other than a flat roof was inconsistent since it was always very clear it was a flat roof. When the 39-foot roof was specified to comply with City’s Zoning, it actually gave the developer even less leeway because it could be higher. He pointed out that Ms. Liu testified that the 39-foot height was moving the project in the right direction and Ms. Bryan stated it went a long way to fit into the neighborhood. He added that their attorney stated the Board was in fact responsive. No harm to the petitioners’ properties was ever defined. He also wanted comment about the photos provided by the petitioners showing a balloon raised to the height of the building. A citizen demonstrated to him exactly how the photo had been cropped and manipulated. He had actually been present when the balloon was raised so he urged the Court to be careful.

The attorney for Victory Housing, Mr. Kline, addressed the issue that “the case before you is the absence of evidence”. He believed the evidence in this appeal was the most he had ever seen. Everybody had a chance to put into the record everything they had to say. These hearings occurred on four Saturdays and lasted all day, one even from 9:30 AM until 5:30 PM. There is a substantial body of evidence. It’s all in the record and the questions were all asked. With so much evidence, it puts it in the “fairly debatable category” but a decision had to be made by the Board. He defended the use of a 59-foot buffer which is landscaped. The City Staff determined it was adequate. With evidence on both sides, the presumption goes to the Board of Appeals. When you get into the issues, the petitioners have “no basis for them.” In Maryland a Board can correct a decision without a public hearing and there was no change from what was stated in the public hearing.

The attorney for the petitioners spoke again in response, stating that if facts were discussed after the January hearing and before the Board issued their corrected decision, then there should have been another hearing. Even if his petitioners benefitted from the clarification that the roof was to be 39-feet high, they had a right to know what was going on. He said they need to see what is in the Board’s emails to make sure the decision was exclusive to the Board of Appeals and that there were no emails sent by City Staff or the developer.

Judge Greenberg ended by stating “Thank you very much for this well-briefed case.” Then he said it wouldn’t be very long until he gave his written opinion.

This is my first time attending a court case and attempting to describe it to our readers. Obviously, this housing project for seniors is in my neighborhood and I have a special interest because I volunteer on one of our City’s Commissions. I strongly believe we all volunteer to make our City a better place. I hope this incident does not deter others from coming forward to serve. 

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