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Parking lot opponents to get new day in court

A Baltimore County community association does not need to initiate an administrative proceeding to challenge the paving of a parking lot at the Oregon Grille, the state’s top court has held.

The Court of Appeals’ decision should speed resolution of the remaining issues in a 20-year dispute over development on a corner of Oregon Ridge Park.

The current litigation began in 2010. The Falls Road Community Association sued the Cockeysville restaurant and Baltimore County, arguing the 143-space paved lot violates county zoning laws and a restrictive covenant agreed to by the restaurant in 1995.

Lawyers for the restaurant and Baltimore County countered the paving was necessary for compliance with the Americans with Disabilities Act and that the plaintiffs had to exhaust their administrative remedies before taking legal action.

Judge Robert N. McDonald, writing Tuesday for the unanimous top court, said the dispute could be settled in court because it was not based on any statute “within the peculiar expertise of county zoning officials.”

“Thus, resort to the courts did not interfere with an efficient administrative process on a matter within the expertise of the agency,” McDonald said.

Baltimore County Circuit Judge Susan Souder found in 2010 that the paving violates the restrictive covenant but declined a request for declaratory judgment because “such an action would not terminate the controversy at issue in the proceedings.”

Michael R. McCann, the community association’s lawyer, said the Court of Appeals decision should erase Souder’s concern.

“We hope this will allow the circuit court to issue the declaratory relief that should be entered, that the parking lot did not need to and should not be paved,” said McCann, a Towson solo practitioner.

A county spokeswoman, Ellen Kobler, declined to speculate on what could happen when the case is back at the circuit court.

“We’re generally pleased with the decision and that the court agreed with the county on some important issues of law,” Kobler said.

Paul Mark Sandler, a lawyer for the restaurant owner Oregon LLC, said his client would not want the disruption of business that would come with deconstruction of the parking lot. But Sandler said that Souder previously found the restaurant paved the lot on the instructions of the county, and the Court of Appeals noted the county must comply with whatever injunctive relief Souder orders it to take on remand.

“It leaves me with great confidence that Oregon was properly relieved for any responsibility for the paving of the lot,” said Sandler, of Shapiro, Sher, Guinot & Sandler in Baltimore.

That all sides expressed some satisfaction with the lawsuit demonstrates how the county’s position as landlord, code enforcer and adjudicator makes the case unique, said Timothy M. Kotroco, a former county director of permitting and deputy zoning commissioner.

“I think that’s what complicated the issue,” said Kotroco, now a partner with Whiteford Taylor Preston LLP in Towson. “We were the judge and jury.”

In 1994, Kotroco approved the original petition of restaurant proprietor Ted Bauer to convert the vacant Oregon General Store into a restaurant. Bauer also asked for county permission to host outdoor events on the premises, located on Shawan Road between Falls Road and Interstate 83.

Residents opposed the plan, and the Valleys Planning Council, an organization devoted to land preservation in the northwest county, negotiated the 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. Then-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.

McDonald, writing for the Court of Appeals, agreed with the circuit court and Court of Special Appeals on one point: The association cannot sue the county, as a government or as a landlord, to force it to enforce its own law.

Initiating enforcement is up to the county’s discretion, McDonald wrote, comparing it to a prosecutor deciding which criminal cases to pursue.

“There are any number of possible reasons, all perfectly within the discretion of the County, for not pursuing the particular enforcement mechanisms that would most please the Community Association,” he said.

However, the court said, the association has the right to pursue a declaratory relief action against the county as the owner of the property, and the circuit court “has authority to issue a declaratory judgment as to whether the Board of Appeals orders were violated by the paving of the parking lot and, if so, has authority to decide what, if any, ancillary injunctive relief to grant.”

Kotroco said he was happy the court recognized the county’s right to discretion and not being forced to order the parking lot removed. Now the case “is back at square one,” he said, with the community association seeking removal of the paved lot.

“That’s what they always wanted and it’s good they have their day in court,” he said.

WHAT THE COURT HELD

Case:

Falls Road Community Association, Inc., et al. v. Baltimore County, Maryland, et al., CA No. 39, Sept. Term 2012. Reported. Opinion by McDonald, J. Argued Jan. 8, 2013. Filed Feb. 26, 2013.

Issue:

Was the Community Association required to pursue an administrative remedy prior to seeking either mandamus or declaratory relief?

Holding:

No; the matter could be settled in court because it was not based on any statute within the peculiar expertise of county zoning officials.

Counsel:

Michael R. McCann for petitioners; James J. Nolan Jr. and Paul Mark Sandler for respondents.

RecordFax # 14-0225-20 (43 pages).