Thursday, June 21, 2012

Rodgers Forge man injured by falling tree limb; family blames county

WJZ reports: A man continues to fight for his life after a tree limb came crashing down, crushing him underneath its weight. ... The family says this accident could have been avoided if their requests to have the trees cut down were taken seriously by the Baltimore County.

I hope he makes a full recovery.

What do you think? Post or read comments here: Comments

Tuesday, June 19, 2012

Ruling on variance for 300 Hopkins

Below is the judge's ruling on the variance for the landing/deck at 300 Hopkins. It's a confusing decision because he denies the variance, but then says she didn't need a variance in the first place and acknowledges this leaves both sides in a "quandary." The homeowner's attorney, Art Buist, said he is still looking into the matter, and I have not heard back from the Rodgers Forge board about their reaction or any future plans regarding this case. Here is the recap of the variance hearing that was published last week. 

CASE NO. 2012-0221-A


This matter comes before the Office of Administrative Hearings for consideration of a Petition for Variance filed by Christiane M. Rothbaum, the legal owner. Petitioner is requesting Variance relief from Section 301.1.A of the Baltimore County Zoning Regulations ("B.C.Z.R.") to permit an existing open projection (existing deck, porch and landing) with a rear yard setback of 24.33' in lieu of the required 37.5'.

The subject property and requested relief are more fully described on the site plan that was marked and accepted into evidence as Petitioner's Exhibit l.

Appearing at the requisite public hearing in support of the variance request was Petitioner Christiane M. Rothbaum and Joe Milio with HMR Services, Inc. Art Buist, Esquire, was in attendance and represented the Petitioner. Appearing in opposition were Jean K. Duvall, Carol Zielke, and Bruce Hirshauer. J. Carroll Holzer, Esquire appeared and represented the Rodgers Forge community.

The file reveals that the Petition was properly advertised and the site was properly posted as required by the B.C.Z.R.

Testimony and evidence offered revealed that the subject property is 3,774 square feet and is zoned DR 10.5. The property is improved with a brick end-of-group town home, and the pictures submitted show the property is well maintained and attractive. Petitioner seeks approval for an "open projection" (i.e., open porch or deck) that has already been constructed and she needs variance relief to "legitimize" that structure.

The Zoning Advisory Committee (ZAC) comments were received and are made part of the record of this case. There were no adverse comments from any of the County reviewing agencies.

Based upon the testimony and evidence presented, I believe I must deny the request for variance relief. I find - as Judge Stahl did in an earlier case - that there is nothing particularly "unique" about the property owned by Petitioner. Rather, the Petitioner's home is virtually identical to the other 1,773 homes in Rodgers Forge, deliberately so. The neighborhood has a cohesive and uniform feel which is a major part of its appeal and market value. Counsel for Petitioner contended that the topography change in Petitioner's rear yard rendered the property "unique" as that term is used in Maryland law, but I respectfully disagree. The Maryland cases talk about "exceptional topographic conditions" that may lead to the grant of variance relief, but I do not believe that an elevation or grade change of less than one foot would meet this standard. See, Cromwell v. Ward, 102 Md. App. at 70l.

Though the Petition for Variance will be denied, I at the same time do not believe the Petitioner needs variance relief to enable her to keep her open porch. In this regard, I respectfully disagree with the conclusions reached by Administrative Law Judge Kotroco in his decision dated January 19, 2012.

The Zoning Commissioner's Policy Manual ZCPM states that the open projection "rules are dependent upon when the subdivision occurred." ZCPM § 301-1, p. 3-l. Petitioner's house was constructed in 1937, and the Rodgers Forge subdivision (or at least the portion containing Petitioner's home) was thus approved well before the adoption of the B.C.Z.R. The first County zoning regulations were adopted in 1945, and those regulations provide that a rear yard in a "D" Residence Zone (for Group houses, now known as townhouses) must have a minimum depth of 25 feet. B.C.Z.R. (1945) Section VI, C.4. (Petitioner's open porch is now located 24.33' from the rear lot line, which is approximately 8 inches deficient, assuming the 1945 regulations were applicable).

The 1945 regulations also provide that "uncovered porches" may be permitted where they would not "obstruct light and ventilation." B.C.Z.R. (1945) Section X, A.2. See also, ZCPM Section 301.1.A.1. There was no testimony presented in this case to the effect that Petitioner's porch would obstruct light or air, which is understandable given the porch is only one foot above grade. Thus, I do not believe variance relief was needed in the first instance.

This of course leaves the parties in a quandary, which is certainly not my intent. Counsel for Petitioner requested that, if relief was denied, I provide in the Order some further clarification of a "solution" to the problem. But that is not a function performed by an Administrative Law Judge hearing a zoning case. Rather, it is the Department of Permits, Approvals and Inspections (PAl), and the Administrative Law Judge hearing that agency's case, that must impose fines and order restoration of property in violation of the B.C.Z.R. Baltimore County Code (B.C.C.) Section 3-6-301.

That has already occurred in this case, which itself is somewhat unorthodox. In most cases, a zoning violation case will be held in abeyance to allow the homeowner to pursue variance relief to legitimize the structure or building at issue. Here, Administrative Law Judge Kotroco found the open porch violated the B.C.Z.R, and imposed a $1,000 fine. He did not order, as he would have been permitted to do, that the porch be removed. B.C.C. § 3-6-207. It is thus unclear whether the County would be authorized to pursue additional administrative remedies against the Petitioner, or if further prosecution at this point would be barred by principles of res judicata. Seminary Galleria, LLC v. Dulaney Valley Improv. Ass 'n., 192 Md. App. 719, 730 (2010) (well-settled that principles of res judicata apply to administrative proceedings). The B.C.C. does contain a provision authorizing the Department of PAI or adjacent neighbors to seek injunctive relief from a court, but it is unclear whether at this juncture res judicata would be a viable defense to such an action. B.C.C. §§ 32-3-607; 3-6-202. As noted above, those are issues decided by an Administrative Law Judge hearing zoning violation cases, and are beyond the scope of the present hearing involving only a petition for variance relief.

Pursuant to the advertisement, posting of the property, and public hearing on this petition held, and after considering the testimony and evidence offered, I find that Petitioner's variance request should be DENIED.

THEREFORE, IT IS ORDERED this 14th day of June, 2012 by this Administrative Law Judge that Petitioner's Variance request from Section 301.1.A of the Baltimore County Zoning Regulations ("B.C.Z.R.") to permit an existing open projection (existing deck, porch and landing) with a rear yard setback of 24.33' in lieu of the required 37.5', be and is hereby DENIED.

Any appeal of this decision must be made within thirty (30) days of the date of this Order.

Administrative Law Judge for Baltimore County

Update: Click here to read the order from the judge.

What do you think? Post or read comments here: Comments

Thursday, June 14, 2012

Recap of variance hearing for 300 Hopkins

Here are highlights from the variance hearing about the landing/deck at 300 Hopkins, which was held on June 8, 2012, in front of Administrative Law Judge John E. Beverungen. At the bottom of the post are related documents, including a memo from the attorney for the Rodgers Forge board that sets out the board's position and a response from the homeowner's attorney.

Three witnesses were called: the homeowner, Christiane Rothbaum; her contractor Joseph Milio; and Rodgers Forge board member Carol Zielke. Board member Jean Duvall attended but did not testify.

Rothbaum testified that she had approached the board with three different plans for enclosing her rear porch and all were rejected. She then tried to get a variance from the county (because her home didn’t have the required setback) for an addition. Several board members testified against her at that hearing. The variance was denied.

She said that she then got a county permit to build a covered deck in the back, which did not require a variance because it was not enclosed. During construction, she said, the contractor told her the patio was in bad shape and he recommended tearing it out and putting up a wood landing instead (pictured).

She said the county came out at least five times to review her permit and review the work. (Court records show this was at the request of the Rodgers Forge board.)

“I feel like I have been singled out over and over,” Rothbaum testified.

Records show that there was a meeting scheduled for Nov. 1, 2011, between Councilman David Marks, his staff member Paula Houck, zoning officials, RF board president Jennifer Helfrich and Jean Duvall (head of the board's architectural committee). In preparation for that meeting, an inspector visited the property again, on October 28. He issued the citation for the landing on Nov. 2, one day after the Nov. 1 meeting. The citation said that she had a raised deck in violation of the required setback (the setback is the amount of land required to exist between your property and your property line).

In January there was another hearing about the landing/deck, at which board members Helfrich and Duvall also testified. A judge subsequently ruled against Rothbaum and said the structure was a raised deck, not a landing, and that it violated setback rules. A $1,000 fine was imposed. Rothbaum then applied for a variance to allow the structure.

At the variance hearing on June 8, attorney J. Carroll Holzer, whom the board hired to represent it in opposing the variance, suggested that Rothbaum had decided to flout the law. He asked if it was true that she told Loni Ingraham of the Towson Times on July 6, 2011, that she tried to do things legally but has learned that instead “don’t ask, don’t tell, just do” is how people should proceed. (I can’t find a Towson Times story where she’s quoted as saying that but if you find it please send it along.)

“I said that for good reason,” Rothbaum said, who has asserted in the past that she was trying to follow the rules while many neighbors have simply built what they wanted without permission from the county or the board.

“You felt you were being denied something everyone else was getting?” Holzer asked. “Was it about the time you said, “Don’t ask” to Loni that you decided to put up this landing?”

“No, you don’t need a permit [for the landing]. I have no ill intention. Consequently there was a problem. They tried to do [the landing] in the safest way,” Rothbaum said. “They added the landing as we reached the steps and found the problem at the end of construction of the porch.”

Holzer: “You didn’t call and have him add a porch at a later date?”

Rothbaum: “No.”

Holzer: “You’re asking for a variance for a landing. Do you have any intention of enclosing this in any way or shape or form?”

Rothbaum: “No.”

Holzer: “Do you have any intention of enclosing your existing porch?”

Rothbaum: “No.”

Holzer, with a raised voice: “Have you abandoned your idea of an enclosure for a bathroom or enlarging the kitchen or the footprint of your house?”

Rothbaum, fighting tears: “Mr. Holzer, I’m 66 years old and I’m tired of fighting and fighting and fighting. I’m close to a nervous breakdown over this.”

Holzer: “That might be true but you’re the instigator in this.”

Rothbaum’s contractor Joseph Milio was the next witness. He said he has been in the business 35 years and he’s the contractor who glassed in Rothbaum’s front porch many years ago.

Milio: “When the steps were built [for the back porch], the pavers were in bad condition. A lot were loose and I felt there was a safety issue. I’m going to take full responsibility because I suggested all this for safety issues and for it all to blend in. I had no intention of trying to hide this. I wanted a safe operation for my customer.”

Holzer said that if Milio had forgone the landing and instead turned the stairs at a 90-degree angle no variance would be required because steps don’t count in the setbacks. Holzer and Milio debated vigorously about whether it was a raised deck or simply a landing and if there was another way to make the stairs and ground area safe.

Milio: “I think what I recommended was the best solution. It makes the whole project tie in. She loves her house and wants a beautiful home. The whole project is an upgrade to the community and I don’t really see why we’re here.”

The next witness was board member Carol Zielke, who lives several blocks from Rothbaum and has owned her home for 37 years. Zielke is on the board’s architectural committee and the guideline committee.

She testified that on May 30, 2012, 16 board members met to discuss the variance and all 16 voted to protest Rothbaum’s variance for the deck/landing. Holzer asked her what the board’s issue was with the structure.

Zielke: “She never applied with us [the Rodgers Forge board] for the extension. We never had exact dimensions. If you subtract the new request from the old it’s 13’2” from the edge of the porch and that’s a very large projection, about 22 feet with her entire yard 46 feet deep, it’s almost half her yard.”

Zielke said past years she’d had a problem with her former neighbor [that is, the former homeowner next door to Zielke] who had wanted an enclosed addition and Zielke protested and it was denied. The owners appealed and it was denied again and they instead put up an open porch with screens.

“I thought all was settled. I had to live with this big porch and they put shutters up and we get no light or air. It’s been sold two or three times since then and the current owners wanted to enclose it. When I went to the planning office …”

Holzer then asked her to address the Rothbaum case instead.

Zielke: “Once a variance is issued and a structure is built, it becomes the established footprint of the home. They told me a home’s footprint includes the large projection. That makes it easier for an open projection – they could allow a roof over the entire structure and that’s where the board’s concern is. It would set a precedent and we could end up with structures we don’t want in the community.”

Zielke said Rothbaum needs to prove her property is unique in order to get a variance and she said she does not believe it is unique. Rothbaum, who was represented pro bono by Rodgers Forge resident and attorney Art Buist, maintains her property is unique because it slopes significantly. The law can also take into account hardships. Holzer asked Zielke if she thought there were any hardships.

“I think they are more self imposed because she built it without a variance or a permit. She made an assumption it was a landing and not a deck. Zoning isn’t required to forgive you for that. We’re concerned the entire community could be affected by this type of ruling.”

Holzer asked if it was a complaint from the board that caused the deck/landing citation.

“No, we didn’t report the lower deck,” Zielke said. “We didn’t find out until the hearing was posted in January. We had to scramble to get together. We said we support the county enforcing the code. I’m really concerned the open projection is going to be a huge structure if anything is built above it. Mrs. Rothbaum said she has no intention of doing that but some on the committee heard otherwise. Who knows if it is sold two or three times the new owner may indeed put something on top or even enclose it.”

[Note: Variances clarify whether a structure may be an “open projection” or an enclosed space. Here is an example.]

Zielke urged the judge to state in his ruling that no other structure can be built on the property without applying for permits and that it be strongly worded.

Zielke: “I think we heard about ‘Don’t ask, just do it’ and that is not good advice. It creates problems and unnecessary expense for the community and the county. We all need to be aware of the law and follow the appropriate steps.”

Buist asked Zielke what gave the board the power to seek consultation about the structure and he asked if it was true that Rothbaum’s covenants expired in 1960. Holzer stood up and objected. He said he’s written an opinion and he thinks a case was decided in which if covenants expired in one section and are not renewed but the community was designed to have covenants that they could still be enforced. (I tried to ask Holzer more about this after the hearing but he would not speak to me.)

The judge said that the attorneys could “talk all day” about covenants and that it wouldn’t influence his decision. “With all due respect, it doesn’t matter to me if she applied [to the board] or not.”

Buist then showed Zielke photos of several homes near Rothbaum that also appeared to not have appropriate setbacks and asked if the board had taken action in those cases. Holzer objected but the judge told Zielke to answer.

Zielke: “I don’t have all of the requests for permission to the board. I don’t remember these addresses. We don’t patrol the neighborhood, and people have tall fences. We’d need a cherry picker.”

In his closing statement Holzer said in part: “There has been no evidence that this property is unique. There is a failure to prove uniqueness. The community has appeared at every opportunity and I’ve represented it from the late 1980s in a number of issues. They have diligently tried to enforce the covenants and the proof is in the pudding: houses that had sold for $50,000 or $60,000 are now in the $200s and up and the board has been the driving force. When they say precedent is a concern, they mean it.

“I hate to say it this way but with the original front porch addition, there has been a proclivity to just do it and if you get caught you get caught and then you seek relief. Once a variance is granted it is the basis for all future efforts – putting a roof on, etc. Rodgers Forge has been very diligent.” He then explained further his position that her property is not unique and should not be granted a variance.

In his closing statement Buist said in part: “We do have testimony, unlike the other side who had no expert testimony, we had an expert in construction and he was asked and stated that her property is in fact different because it has more of a slope. We have specific evidence of topography. The landing should not necessarily require a variance or a permit.

“Should your honor decide there should be no variance and Mrs. Rothbaum is then required to do something, then I would ask your honor what’s the solution? The contractor said this was the safest and best way to do it. One third of the block already has something [that doesn’t meet setback requirements]. She did try, though she is under no obligation, she did try to comply with the board’s architectural committee. She is now faced with a great deal of scrutiny by the board. The complaints are not from citizens but by the association. She didn’t create this issue; she was solving an existing issue. There is uneven ground and she’s got this railing that comes up from the driveway to the basement. She has met the burden; her property has unique aspects to it. She has done a darn good job of keeping up her property and she doesn’t want it done in a slipshod way.”

The judge’s office said he is expected to rule on the matter within a week.

Related documents:

Memo from the board's attorney

Memo from homeowner's attorney

Letter from board president supporting current setback

January 2012 ruling that structure is a deck

Inspection report

Citation for deck

Notation of meeting between Marks and board

What do you think? Post or read comments here: Comments

Wednesday, June 6, 2012

Rodgers Forgian wins fiction award

Read the Sun story here.

What do you think? Post or read comments here: Comments