A Slippery Slope

A Slippery Slope

Mardirossian eyes court action to allow clearing trees and build fence near C&O Canal.

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.