Potomac Almanac, VA
July 5 2007
A Slippery Slope
Mardirossian eyes court action to allow clearing trees and build
fence near C&O Canal.
By Aaron Stern/The Almanac
July 4, 2007
Photo:
The entrance to Aris Mardirossian’s property at 12000 River Road. The
next phase of Mardirossian’s battle to remove trees from his property
will take place in court.
Aris Mardirossian has seen enough of the Montgomery County Planning
Board. On the night that the board unanimously rejected his appeal of
a denial of a forest conservation plan – a night during which he
accused the board’s staff of being influenced by politics –
Mardirossian said that he would challenge the Planning Board’s ruling
in court.
`No, no more plans,’ Mardirossian said about submitting a revised
Forest Conservation Plan for review. `I guess a judge will make the
decision.’
`If they want to take 50 percent [of my property] then they better
pay us,’ Mardirossian said. Mardirossian said that he will challenge
the ruling on the basis that it violates his constitutional rights as
a property owner and the rights of his children under the Americans
with Disabilities Act.
The decision is the latest turn in a case that began when the
Armenian-born Mardirossian purchased the property at 12000 River Road
in August of 2006 with the aim of building a home on the vacant lot
that abuts the C&O Canal National Historical Park.
As part of his plan he applied to the National Park Service to build
a fence through a Park Service easement on his property. When the
Park Service failed to respond to that application within 30 days, it
was approved by default under Park Service regulations.
The road for Mardirossian since then has been considerably more
difficult. In addition to the National Park Service’s easement, the
property is also subject to the terms of the county’s Forest
Conservation Law, which regulates the removal of trees on lots
greater than 40,000 square feet in size, which is just under an acre.
In the past two years Mardirossian – the man behind the Crown Farm
development in Gaithersburg – and his team of engineers and attorneys
have submitted five plans to the Planning Board’s staff to gain
approval for the construction of the home and a fence bordering the
property, as well as the removal of trees from the property. Each
application has been denied.
MARDIROSSIAN APPEALED the most recent denial on Thursday night and
held nothing back. Flanked by his team of engineers and attorneys, he
said the Planning Board’s staff was caving to political influence.
Mardirossian filed lawsuit against community activist Wayne Goldstein
last year, claiming a letter Goldstein wrote defamed him, saying
falsely that Mardirossian intended to cut down huge numbers of trees
on his property to get a view of the Potomac River.
`From that point I started litigation that has brought a tremendous
amount of light to this process, that I think is broken,’
Mardirossian said. Depositions and records of correspondence produced
during the course of the lawsuit led Mardirossian to believe that
political pressure from a member of the Montgomery County Council
played a part in the denial of his application.
`It is very, very dangerous that political paybacks come to this
building,’ Mardirossian said.
`Who are you accusing of a payback?’ asked Royce Hanson, the chairman
of the Planning Board, leaning forward to his microphone, his face
turning red.
`Marc Elrich,’ Mardirossian said, naming a member of the Montgomery
County Council.
`I simply don’t understand what you’re talking about,’ Hanson said.
Mardirossian said that Elrich’s office had sent an e-mail to Mark
Pfefferle, Forest Conservation Program manager for the Planning
Board. Mardirossian said that the e-mail praised and thanked
Pfefferle for denying the conservation plan, and that he felt that
the denial of his plan was a personal attack from Elrich carried out
through the denial of the plan.
`You are implying something that you aren’t saying and I think you
should be careful about what you’re saying,’ Hanson said. `Do you
have any evidence whatsoever?’
`No councilmember should ever call a plan reviewer, they should go
through your office,’ said Mardirossian, again citing the e-mail.
`Any citizen, elected or not, should have the right to call a planner
and express their opinion,’ Hanson said.
`The only question I’m raising is, it would be a good policy to
[require] that any politician go through the commissioner’s office to
contact a planner,’ Mardirossian said.
`One of the things that I’ve learned is that we have a limited
ability to control what councilmembers do,’ said commissioner Wendy
Perdue.
Gwen Wright, the active director of the planning department, said
that the planning staff has an enormous task on their hands to
provide the board with the best information possible, and that they
work closely with applicants to achieve that goal. Wright urged the
members and the chairman of the board not to allow the reputations of
staff members to be publicly denigrated, and said that Pfefferle’s
response to the congratulatory e-mail from Elrich’s office was
professional and explanatory.
`To say otherwise would be to impune Mark Pfefferle’s integrity and
that can not be tolerated,’ Wright said. `Our staff work and our
staff recommendations are not going to be called into question.’
Elrich was not at Thursday’s hearing. On Friday Dale Tibbitts from
Elrich’s office said that the assertion that Elrich had any improper
interaction with the planning board’s staff was not true, but he did
not elaborate.
THE FENCE that Mardirossian wants to build along the borders of his
property and the trees that he wants to remove have been at the heart
of each denial of his Forest Conservation plans.
The reason for the fence, and the reasons for removing certain trees
on his property, Mardirossian said, is to protect his two children,
aged seven and five years, who have severe allergies to some nut
trees.
But much of Mardirossian’s property lies in a conservation easement
and in areas deemed environmentally sensitive by county law.
The conservation easement on Mardirossian’s property lies in steeply
sloped areas, according to a report issued by the Planning Board’s
staff. The grade of the slope runs between 44 and 59 percent
throughout the easement, and any slope steeper than 25 percent in
grade is considered environmentally sensitive under County law, the
report said.
This was the basis for the denial of the most recent plan, which
sought to remove 51 trees from the easement, as well as to construct
a fence along the property line, which would also run through the
easement. The removal of those trees could potentially have the
impact of destabilizing the slope and creating more runoff into the
C&O Canal and the Potomac River, the report said. The construction of
the fence could harm other trees and also contribute to the slope’s
destabilization, according to the report.
Because many of the trees that he wants to remove are small in size,
they would be cut and carried out by hand to minimize the impact on
the slopes, said Jim Cook, a forester working with Mardirossian. The
stumps would not be ground out, and instead would be treated with
herbicide and allowed to decay over time.
`We love trees,’ Mardirossian said, and added that he would replant
twice as many trees as he removed if that’s what the Planning Board
wanted.
The fence, too, could be installed without much detriment, Cook said.
`What I’m saying is this fence will not cause damage to the forest
and it will not cause destabilization of the slope.’
The proposed fence would be 6′ 8′ high – low enough for deer to be
able to jump over it – and would have an eight inch gap at the bottom
to allow smaller animals to continue their normal travel patterns,
Cook said.
Hanson expressed skepticism about the impact the removal of the trees
would have, and Pfefferle said some of the tree measurements done by
Mardirossian’s staff do not match those that he and his colleagues
have taken, and that some trees would be too large to take out by
hand.
A revised plan submitted to the Planning Board’s staff on May 29
reduced the number of trees that it sought to remove from 51 to 15
because further testing revealed that Mardirossian’s two children are
not allergic to Beech trees as previously thought. The remaining 15
trees are hickory and walnut. That revised plan also moved the
proposed fence 40 feet east of the western property line, which
borders the park. Mardirossian and his attorneys sought to have the
Planning Board approve the newest plan during Thursday’s appeal of
the previous plan, but the Board ruled that it could not judge the
new plan as its staff had not had enough time to fully review the
changes.
THE AMERICANS with Disabilities Act of 1990 (ADA) requires that
public entities must make reasonable accommodations in any laws and
regulations for qualified individuals, said Joe Lapan, one of
Mardirossian’s attorneys.
`The law clearly does apply to local entities [such as] Park &
Planning,’ Lapan said. `This is not just about the Forest
Conservation Law, it is about the ADA, it is about accommodating the
disability of these children,’ said Barbara Sears, an attorney who
led Mardirossian’s presentation on Thursday.
Mardirossian has also sought approval for his fence because of
American with Disabilities Act requirements, saying that he needs the
fence to protect his children from nut trees on the properties
bordering his.
Though the commissioners said that the evidence supporting the
severity of the children’s allergies was ample, they questioned why
that information was not presented to the Planning Board’s staff
until the applicant’s third submission on Jan. 31, 2007, three months
after the initial application was submitted.
Mardirossian said that he was not aware that the nut trees were on
his property, and consequently Cook was not told to look for them
when he surveyed the trees on the 3.25-acre lot. Cook said that the
revelation didn’t occur until a team meeting with Mardirossian and
his engineers in December of 2006.
Sears said that his children were diagnosed at very young ages and
that all nut trees were removed from his present home.
`So Mr. Mardirossian’s house has no nut trees, but he bought this
parcel without checking to see if there were any nut trees?’ Perdue
asked.
`When I walked in there I could not see any nut trees,’ Mardirossian
responded.
`He didn’t make this up, it has been an ongoing issue since they were
born,’ said Sears.
The Planning Board commissioners discussed the possibility of putting
the fence at the limits of disturbance that would be incurred in
building the new home. Such a fence would allow the children a large
patio and a septic field to play on, which would be approximately 1.6
acres of land.
Hanson noted that is more space then most families have on their
entire property.
Mardirossian said that that is irrelevant.
`The property is 3.25 acres. I pay taxes on 3.25 acres and I have a
right to enjoy my property with my children,’ Mardirossian said. `You
are trying to take away 1.75 acres of my property.’
Perdue said that the severe nature of the children’s allergies was
well-established but that there was a difference between making a
reasonable accommodation under the terms of the Americans with
Disabilities Act and making the best possible accommodation.
`A fence at the limits of disturbance is not unreasonable,’ Perdue
said.
In his closing comments Hanson agreed.
`A lot of people have fenced yards that are substantially smaller
than their property,’ Hanson said. `That doesn’t seem to me to be an
unreasonable thing.’
Hanson also questioned the parental wisdom of allowing one’s children
to play on steep, rocky slopes and suggested that a fence that would
keep them away from those areas might be in Mardirossian’s best
interest.
`Putting a fence at the bottom of a steep slope seems to me to be
inherently dangerous,’ Hanson said.
Perdue motioned to deny the plan, and that motion passed unanimously,
5-0.
`This is a motion and a decision that I think is ripe for
reconsideration,’ Commissioner Allison Bryant said in seconding the
motion to deny the appeal.
Afterwards, Mardirossian agreed, but said that that reconsideration
will be done in court, not by the Planning Board.
e.asp?article=84222&paper=70&cat=104