Subscribe free to our daily email newsletterVictory For Victory Court, Judge Affirms Board Of Appeals Decision
Oct 11, 2010 17:48 - 2 Comments
On Friday, October 8, 2010, Judge Robert A. Greenberg ruled to affirm the decision of the Board of Appeals of the City of Rockville concerning Victory Court, the proposed development of affordable senior housing on property owned by Montgomery County on Fleet Street. Some community members had appealed to the Circuit Court for Montgomery County to overturn the Board of Appeals approval of the Special Exception for Victory Court.
In the Noreen Bryan, ET AL vs Victory Housing, Inc. ET AL. decision, Judge Greenberg found:
There was substantial evidence to support the decision of the Board of Appeals, and no denial of due process in the amendment of the original decision.
Judge Greenberg ruled in favor of the Board of Appeals on each of the individual assertions by the plaintiffs.
The Court found no support for the petitioners’ assertion that the affected area was not precisely defined, especially since every address within about ¼ of a mile in every direction from the property was notified. Also, this claim was untimely since the argument was not raised at the time of the hearings.
As to the Petitioners’ claim that the Board’s decision should be reversed because the proposed site was not “low density”, Judge Greenberg stated there is no statutory definition of “low density” and the proposed use satisfies the definition of a mixed-use transition zone because it transitions between the “medium-high intensity of city hall and the county government buildings to the north and east and the adjacent detached and multi-unit residential district to the south and west”.
Concerning the Petitioners’ contention that the use violates the Master Plan in regards to scattered affordable housing, the Court stated the Master Plan serves only as a guide. The Petitioners’ argument “does not correspond to the goal of the Master Plan, which is to support affordable housing – not to make sure that it is scattered.”
As to the statement that the increase in affordable housing would create a change in the character of the neighborhood considering a number of similar uses, Judge Greenberg wrote, “Since the proposed site use is affordable housing for seniors, it is not a ‘similar use’, as there is no other affordable housing development in the area specifically for seniors.”
Judge Greenberg also decided there is no buffer requirement necessary for the historic homes belonging to Montgomery County as they have been used for a variety of non-residential purposes. On the other side, the setback between the property and the adjacent Courthouse Walk is substantial at 59 feet. Even if the driveway and parking spaces were removed from the setback area, it would still be 22 feet wide and there is no absolute requirement for the width of a setback.
As to the Petitioners’ argument that the Board must make an additional finding that the site has “adequate accessibility to, or provides on-site, public transportation, medical services, shopping areas, recreational, and other community services frequently used by residents of such use”, Judge Greenberg stated that the Board did so based upon the testimony at the public hearings and the site is located in the Town Center Planning Area which provides access to all of these services.
The last assertion, that the Board of Appeals improperly amended its decision because there was no notice, hearing, deliberations, or findings, was also found to be lacking because the Rules of Procedure of the Board of Appeals state that “a clerical error may be corrected at any time without prior notice or hearing”. In addition, the Judge pointed out that the correction of the clerical error to include the measurement of a flat roof style verses a gabled roof was in the Petitioners’ favor since they advocated for a reduced height of the building and expressed satisfaction with the flat roof style.
Since Rockville’s Planning Commission unanimously approved the site plan on June 23, 2010, this Court decision removes a last legal barrier. Victory Housing is now one step closer to building the Victory Court community.
2 Comments
Leave a Reply
Read our comment policy. Please be civil. Don't write something you would not say to someone's face. COMMENTS ARE MODERATED. We reject comments with vulgarities, obscenities, or that personally attack other commenters. We also reject comments that do not USE FULL NAMES. We may ban ip addresses where we detect multiple aliases posting.
I’ll bet $100 this ruling is appealed. For now, we can savor it.
Why would anyone appeal this decision? All points were clearly explained. Maybe someone just likes going to court to argue.
I never really saw the big argument or problem. Judge Robert A. Greenberg ruled responsibly. No doubt this delay cost the project extra money. That is unfortunate.
I have great respect for the Rockville Planning Commission and the Rockville Board of Appeals. They hear all the arguments and weigh all the factors before approving an application. It’s not about what they personally want but how the laws and development procedures are implemented. Their votes must have compelling reasons for approving or disapproving a plan. Plans that don’t meet the test usually don’t make it to these commissions. It is the Planning Department’s job to move applications to the commissions for review and approval.