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Paved with good intentions

One hundred and sixty years ago, the miners working at the Oregon Furnace in northern Baltimore County could stop by the company’s general store to pick up anything from grain to pipe tobacco.

Mining has long since ceased in the area around what is now Oregon Ridge Park, yet the general store still stands at Shawan and Beaver Dam roads.

Today, though, tobacco is relegated to the patio and the grains are likely to be quinoa or couscous, served alongside a steak or lobster at what is now The Oregon Grille.

The restaurant describes its building as a “luxuriously renovated 19th century stone farmhouse.” But outside is a 21st-century addition that has become the flashpoint in a simmering, 15-year dispute between neighbors and the restaurant: a 143-space paved parking lot.

On Monday, residents and the Falls Road Community Association will ask a Baltimore County judge to order the paving removed. They argue that it violates county zoning law and a restrictive covenant agreed to by the restaurant in 1995.

Lawyers for the restaurant, though, have argued the paving was ordered four years ago by the county — which is also its landlord — to comply with the Americans with Disabilities Act.

Opponents of the restaurant fear a loss in the case will make the restrictive covenant useless should the restaurant once again try to expand its offerings to outdoor weddings and events. Lawyers for the restaurant counter that any changes would blend in seamlessly in an area that has undergone significant changes in the 15 years since the covenant was signed.

The outcome of the parking lot dispute, in other words, could go a long way in determining what the “Gateway to the Worthington Valley” looks like in the future.

“A lot of people are happy with what The Oregon Grille turned out to be,” said Teresa Moore, executive director of the Valleys Planning Council, which is devoted to land preservation in the northwest county. “We don’t want things that are going to change the character.”

Agreement among neighbors

The general store building was acquired by the county in 1969 and became a county landmark in 1980. It sits in a resource conservation zone, which limits development and the amount of impervious surface on the site.

The Oregon General Store signed a 25-year lease on the site in 1985, paying the county $5,000 in rent. But the building was vacant by the mid-1990s when it attracted the interest of Ted Bauer, then-owner of the Mt. Washington Tavern. He petitioned the county in 1994 to convert the store into a restaurant. He also requested that the business be allowed to host outdoor events.

Nearby residents opposed the plan, but the Valleys Planning Council negotiated a restrictive covenant agreement in early 1995 as the petition was in the midst of the appeals process. The restaurant could offer outdoor dining but not have live music or a bar outside.

And the parking area was to remain unpaved and permeable.

“Based on our explicit reliance on the agreement, we withdrew our opposition” to the restaurant, said Harold H. Burns Jr., president of the Falls Road Community Association.

Bauer, through his Oregon LLC holding company, assumed the lease in 1996, which has since been renewed for another 25 years at $5,000 rent.

In addition to the covenant, the building’s landmark designation means any exterior changes have to be approved by the Landmarks Preservation Committee. In the late 1990s, for example, the restaurant received permission to enclose the porch that fronts Shawan Road.

Ruth Mascari represented northern Baltimore County on the committee at the time.

“A building should be adaptively used, but it should not destroy the landmark or have an adverse impact on its surroundings,” said Mascari, now on the board of directors for the Baltimore County Historical Trust.

In 2002, the restaurant petitioned the county again to host outdoor functions with live music. It also requested an expansion of the restaurant’s parking lot by a half-acre to the west. A zoning commissioner granted Bauer’s requests but was overruled two years later by the county Board of Appeals, which found the changes violated the restrictive covenant agreement.

“It strikes the Board that what [Bauer] now seeks is a ‘second bite at the apple,’ to do exactly what he agreed not to do in 1995,” the board wrote in its opinion.

Blaming the county

The parking lot dispute that will be heard in court this week began in earnest in 2006. Early that year, Robert Barrett, director of county’s Department of Recreation and Parks, received complaints about the condition of The Oregon Grille parking lot. A member of the county’s Commission on Disabilities went to the site and determined potholes made it noncompliant with the federal Americans with Disabilities Act. Barrett sent word to Bauer.

“The landlord is demanding the tenant pave the parking lot to bring it in compliance with the [ADA] and remedy its unsafe condition,” Barrett wrote in a June 2006 letter.

Bauer complied, paying $85,700 to have the entire lot paved later that year, according to court records. (According to the plaintiffs, the paving extends onto “some or all” of the half-acre of expanded parking he had unsuccessfully requested in 2002.)

Kathleen House, who lives near the restaurant and is one of the plaintiffs in the lawsuit, said the parking lot “resembles a park-and-ride.”

“It doesn’t match the historic building,” she said.

But House and other opponents have an equal amount of ire toward the county for what they describe in their lawsuit as refusing to enforce the restrictive covenant and the zoning law.

“It would be nice if the residents didn’t need to spend their own money and time so that regulations are enforced,” she said.

Burns, of the Falls Road Community Association, called the paving a “profound environmental insult.” The community association blames the county because, before the paving incident, Bauer and his opponents always took their disputes through the appropriate administrative channels.

“He followed the rules,” Burns said. “And then, all of a sudden the parking lot was paved.”

Michael R. McCann, a Towson solo practitioner representing the plaintiffs, did not return phone calls for comment. Paul Mark Sandler of Shapiro, Sher, Guinot & Sandler in Baltimore, Bauer’s lawyer, declined to comment because the litigation is pending.

Baltimore County does not comment on pending litigation. But James J. Nolan Jr., the assistant county attorney in the case, spelled out the reasons for the county’s paving order in court filings.

“The county was concerned about its liability related to customers of [T]he Oregon Grille injuring themselves on the potholed parking lot,” Nolan wrote. “The county was also concerned about possible violations of the Americans with Disabilities Act related to deficiencies in the parking lot.”

The county also provided an affidavit from its director of sustainability, David A.C. Carroll, who said the asphalt “is no more impermeable” than the original gravel parking lot.

Sandler, in turn, argued in court filings the restaurant should not be penalized for following a directive of its landlord.

“Oregon should not be required to bear the expenses of ‘unpaving’ its parking lot, nor should it be exposed to the criminal and civil penalties that attach to a violation of a zoning order merely because Oregon complied with the County’s 2006 order,” he wrote.

Sandler alluded to entrapment by estoppel, a defense typically used in criminal cases where a defendant believes he or she was misled by a government official that an alleged crime was legal.

Dino C. La Fiandra, a real estate lawyer not involved in the case, said he had never heard of entrapment by estoppel being applied in a land-use matter. But he understood Sandler’s point.

“It sounds to me like the restaurant is in a tight spot,” said La Fiandra, a partner at Whiteford, Taylor & Preston LLP in Towson who is not involved in the case.

Developers generally cannot pick and choose which easements or zoning regulations to follow, he added.

“As a general rule, you have to comply with all of your obligations,” he said. “If you can’t comply, you can’t move forward.”

But the county and the restaurant also argued about complying with the federal ADA pre-empted enforcement of the restrictive covenant and county zoning laws.

Judge Kathleen G. Cox, in denying residents a writ of mandamus last month that would have required the county to enforce the zoning law, said such enforcement is discretionary, not ministerial.

“It is well within the discretion of County officials to pick and choose among categories of violations, or to prioritize certain types of enforcement,” Cox wrote. “The mere fact that the County is accorded the authority to enforce various laws does not equate to a finding that the County’s actions in pursuing enforcement are ministerial.”

In the same opinion, Cox said she would not hear at trial the restaurant’s counterclaim, seeking once again the right to host outdoor events.

The judge ruled the restaurant must go through the administrative process first. But the restaurant’s court filings and recent development news offer insight into future, potential showdowns.

Range of uses

The surrounding Worthington Valley was added to the National Register of Historic Places in 1976 for its “unaltered, rural atmosphere.” But Sandler argued that Shawan Road between Falls Road and Interstate 83, where The Oregon Grille is located, has been altered significantly since the restaurant opened. To the west is Shawan Downs, an equestrian center that is home to the annual Legacy Chase steeplechase race; to the east is the Hayfields Country Club, which also can host events — as several other clubs in the Worthington Valley do.

“This once sleepy section of Baltimore County has become a rather bustling area that is now home to a wide range of uses that attract people from all over the County, often times by the thousands,” he wrote.

Sandler also pointed to the $10 million Baltimore County Center for Maryland Agriculture, which is scheduled to open this month a short drive from the restaurant. The 150-acre site is a farmstead with educational and recreational facilities, plus indoor and outdoor riding rings.

While some preservationists have faulted the center, House, a plaintiff in the lawsuit, is not among them.

“It’s a lot better use of the land than a huge development,” she said.

Meanwhile, construction could begin as early as the spring to add two left-turn lanes on Shawan Road at its intersection with Beaver Dam and Cuba roads. The road changes will address a longstanding traffic problem in the area, said David Fidler, a spokesman for the county’s Department of Public Works. Shawan is now one-lane both ways, which can cause backups during rush hours and before and after events at Oregon Ridge.

The agricultural center played a minor role in the road plans, Fidler added, with proposals to build an intersection or stoplight at its entrance. The county ultimately chose the “simplest and environmentally-friendliest” of options, he said.

Keith Scott, president and CEO of the Baltimore County Chamber of Commerce, said the area was in its “adolescence” when The Oregon Grille opened. (The restaurant is a chamber member.)

“Now, it’s a mature, grown-up area,” Scott said, noting the Wegmans supermarket in the five-year-old Hunt Valley Towne Centre just off Interstate 83 attracts people from 25 miles away.

Scott supports any effort by The Oregon Grille to increase business, noting the potential job creation and economic boost.

“To have a restaurant that is looking to expand in these economic times… to see a growth on the horizon should be applauded,” he said.

But Mascari, who was on the county’s Landmarks Preservation Committee when the restaurant got permission to enclose its porch in the late ’90s, said that existing “growth” in the area has been an adaptation of what was already there, not an expansion.

The Oregon Ridge Nature Center was built on foundations left behind from the mining days, she said, just as The Oregon Grille took over the general store space.

“They may have a different use, but it doesn’t mean the space has changed,” she said.

Burns, president of the community association, noted that, just as with The Oregon Grille’s paved lot, preservationists opposed aspects of the plans for Shawan Downs, Hayfields and the agricultural center.

“The entire purpose was to increase the use of the land minimally but also to preserve the Shawan Valley…,” he said. “And if you drive around there now, I think you’ll see we achieved that.”