Deciding the right of fright -- Gazette.Net







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In Silver Spring, some people love Donna Kerr’s elaborately spooky “Haunted Garden” for the fun it adds to Halloween.

But some who live near her decked-out Worth Avenue home are wholly annoyed, fed up with the incoming wave of vehicles and spectators. Nineteen of Kerr’s neighbors signed a petition protesting the Haunted Garden.

This is more than a nuisance issue.

More than once, Montgomery County has explicitly told Kerr, a real estate agent, that she was violating an ordinance on limits for home businesses.

The county tried in two previous years to get Kerr to stop. This year, the county got a temporary restraining order, saying the display did not comply with the residential zoning code, was expanding each year and was a potential safety hazard.

Kerr has a single-family home on a 15,000-square-foot lot in a dense residential neighborhood, according to the county’s petition.

On Oct. 15, Montgomery County District Judge Patricia Mitchell settled the matter, for now, by letting Kerr hold her Haunted Garden for two days instead of the five days she had advertised.

Diane Schwartz Jones, the director of the county’s Department of Permitting Services, was baffled by the ruling, and so are we.

“The real issue is a public safety issue,” Schwartz Jones said. “If it is a public safety issue for five nights, it is a public safety issue for two nights.”

This was hardly a Solomonic split down the middle.

If the central question were how long a neighborhood should be inconvenienced, then tapering back the number of days might be a reasonable middle ground.

But there’s a grander fundamental issue here — whether Kerr should use business channels to boost an event at her home.

The county amassed plenty of evidence of how much she entangled her Halloween display with her commercial enterprise, Pure Energy Real Estate.

The company’s website and Facebook page and a flier that went to about 12,000 households mixed publicity about the event with listings of homes for sale.

Kerr paid her employees to work on the display.

Approximately 2,000 people attended the 2011 event, the company’s Facebook page said, urging even more visitors this year.

But with such large crowds, Montgomery County’s transportation and police departments have had to get involved.

Montgomery County’s law on home-based businesses allows two visitors at a time.

The county’s website says home-based businesses are permitted “by right” if they have: “up to five vehicles visits per week, excluding deliveries;” “no nonresident employee;” and “no discernible impact on the surroundings.”

Owners must get a home occupation registration certificate if their business has a “maximum of twenty vehicles visits per week with no more than five per day, excluding deliveries” and “one nonresident employee.”

Anything beyond those limits requires a special exception.

A home-based business must follow two overarching principles. It must be “conducted entirely within the house.” And it “does not change the residential character of the neighborhood such as by creating noise, odors, or vibrations at the property line.”

Kerr did not have a permit for a home occupation on the property. Perhaps she wasn’t selling homes to people as they were spooked by goblins, but there’s no question her business was an integral part of the operation and marketing of the event.

It’s hard to imagine this case reaching the judicial system if Kerr had left her business name and resources out of it.

That’s how the display started, when Kerr decorated her yard for a 2010 humane society fundraiser.

The following year, she started spreading the word through her business, prompting the county to cite her.

Mitchell’s ruling lets the Haunted Garden proceed. Kerr will have public showings for four hours apiece on Friday and Saturday.

If Mitchell’s ruling was based on a belief that Kerr’s Haunted Garden marketing is incidental to her business, then Montgomery County will have to add new zoning language prohibiting business activities like this one.

We’d rather not see another battle testing the limits of the law and the peace of a neighborhood.

We encourage Kerr to instead consider an alternate way to hold her impressive Halloween display, perhaps in a public space. Maybe the county or the Montgomery County Fairgrounds could host it, with support from Kerr and her business. Sell tickets and find a worthwhile beneficiary.

Kerr deserves credit for the time, work and spirit that she pours into her display. By stripping away the nuisance and legal issues, it could become a perfect treat.