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County, Oregon Grille restaurant defend paved parking

Robert J. Barrett knew if someone got injured while walking on The Oregon Grille’s unpaved parking lot, the restaurant would be liable. But he also knew the county, as the restaurant’s landlord, inevitably would become a defendant in such a lawsuit.

That’s why Barrett, director of the Baltimore County Department of Recreation and Parks, ordered the restaurant to pave the parking lot in 2006 based on “safety and liability” issues, he testified Wednesday in Baltimore County Circuit Court in a trial over the fate of the parking lot.

“When the county is involved, the county is fair game. It’s the deep pockets,” he said. “What I was trying to do was make sure [the problem] was remedied. We have an obligation as a government to make sure the well-being of our citizens is protected.”

Neighbors and the Falls Road Community Association want the paving removed, arguing it violates county zoning law and a restrictive covenant agreed to by the restaurant in 1995. Lawyers for the restaurant and the county have argued the paving is necessary for compliance with the Americans with Disabilities Act, which pre-empts local law.

The trial was scheduled to begin Monday but was put on standby until a judge was available. Judge Michael J. Finifter was assigned the case Tuesday but recused himself; Judge Susan Souder presided over the case Wednesday.

Barrett testified that his paving order came after receiving complaints about the parking lot’s condition. A member of the county’s Commission on Disabilities went to the site and determined the potholes, among other problems, made the parking lot noncompliant with the ADA.

Ted Bauer, the restaurant’s owner through his Oregon LLC holding company, paid $85,700 to have the entire lot paved by the end of 2006.

Michael R. McCann, a Towson solo practitioner and the plaintiffs’ lawyer, had several county officials acknowledge that there were no injuries or lawsuits stemming from the parking lot prior to it being paved. He also argued the restaurant only needed to pave part of the parking lot to be in compliance with the ADA.

But Timothy M. Kotroco, the director of the county’s Department of Permits and Development Management, said the restaurant did not need a permit to pave the entire area because it was an existing parking lot, not a new one.

Kotroco was deputy zoning commissioner in 1994 when he approved the original petition to create the restaurant, a decision that ultimately led to the restrictive covenant agreement. He approved a variance for an unpaved lot in the best interest of the site.

“I would have preferred [Bauer] put money into the building and not worry about parking,” he said.

Lawyers for the defendants described the parking lot’s condition prior to paving as “deplorable” and argued residents’ should have gone through an administrative appeals process before taking their complaint to court.

But each defendant also tried to shift responsibility to the other.

James J. Nolan Jr., an assistant county attorney, said only the restaurant can address what residents want remedied.

“I don’t think the county belongs in this case anymore,” he said.

Paul Mark Sandler, the restaurant’s lawyer, said the county as landlord took action “to solve a glaring problem” and comply with federal law.

“Oregon should not be in the case,” said Sandler, of Shapiro, Sher, Guinot and Sandler in Baltimore.

He estimated it would cost his client a half-million dollars to unpave the lot, a “draconian finding” for a small business.

The trial is scheduled to resume Thursday morning.