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Oregon Grille wins round in fight over paved lot

A Cockeysville restaurant has won the latest round in a longstanding zoning and court battle with nearby residents over a parking lot they say violates Baltimore County law and an agreement the eatery signed in 1995.

In a 3-0 ruling, the Court of Special Appeals said the Falls Road Community Association should have taken its case against the county and the owner of the Oregon Grille to the county’s zoning authorities, not the courts.

The association regards “the county to be an animal at their command that must mindlessly enforce the law in its various forms,” Judge Albert J. Matricciani Jr. wrote for the Court of Special Appeals. “But the county is not a beast, and there is a process to resolve these conflicts and direct the county’s actions.”

Towson solo practitioner Michael R. McCann, the association’s attorney, did not return telephone messages seeking comment on whether he would seek review by Maryland’s top court, the Court of Appeals, or proceed with the administrative remedy suggested by the court.

Paul Mark Sandler, the restaurant’s attorney, praised the Court of Special Appeals’ decision Thursday.

“I was pleased with the outcome primarily because I believe it was a correct decision on the law and on the facts and I’m hopeful that the matter can end once and for all so that the restaurant can continue to serve its patrons without the distraction of litigation,” said Sandler, of Baltimore.

The dispute between the restaurant’s owner, Ted Bauer, and the neighbors has been percolating since 1994, when he petitioned the county to convert the vacant Oregon General Store into a restaurant. Bauer also asked for county permission to host outdoor events on the premises, on Shawan Road between Falls Road and Interstate 83.

When the residents opposed the plan, the Valleys Planning Council negotiated a restrictive covenant in early 1995 with Bauer. Under the agreement, the restaurant could offer outdoor dining under umbrellas but not have live music or a bar outside. In addition, the parking area was to remain unpaved.

In the ensuing years, the restaurant sought permission to expand operations outside, but was challenged by the residents and rejected by the county’s Board of Appeals.

The parking-lot dispute arose in 2006 when the county Department of Recreation and Parks received complaints about the then-gravel lot’s condition. A member of the county’s Commission on Disabilities visited the site and determined potholes made it noncompliant with the federal Americans with Disabilities Act.

Recreation and Parks Director Robert Barrett told Bauer to pave the lot to bring it into compliance with the ADA. Bauer did so, paying $85,700 to have the lot paved in November 2006

The association in 2007 challenged the paved lot as a violation of county zoning law and the 1995 restrictive covenant. The association urged several county agencies — including Permits and Development; and the Department of Environmental Protection and Resource Management — to order the pavement removed.

But in summer 2008, the Baltimore County Office of Law told the association that the county would not act on the requests.

The association then sued the restaurant and county in Baltimore County Circuit Court, seeking a judicial order that they comply with county law and the restrictive covenant by removing the pavement, as well as canopies the restaurant had installed outside.

Judge Kathleen G. Cox denied the request in August 2010, saying enforcement of the zoning law and restrictive covenant is up to the county’s discretion.

The Court of Special Appeals agreed, saying the parties can proceed in court only after exhausting the administrative process.

WHAT THE COURT HELD

Case:

Falls Road Community Association Inc. et al. v. Baltimore County, Md., et al., CSA No. 2133, Sept. Term 2010. Reported. Opinion by Matricciani, J. Argued Jan. 12, 2012. Filed March 1, 2012.

Issue:

Did the trial judge err in rejecting appellants’ challenge to an administrative decision approving a paved parking lot?

Holding:

No; the appellants had not exhausted their administrative remedies.

Counsel:

Michael R. McCann for appellants; Paul Mark Sandler for appellees.

RecordFax # 12-0301-02.