A developer that owns a pond where a 10-year-old recently drowned has been in compliance with regulations on required safety fencing, according to city of Gaithersburg records obtained by The Gazette.
The pond, off Diamondback Drive, is in the Crown development’s Neighborhood One, which is owned by Westbrook Acquisitions LLC.
None of the 20 previous inspections of the sediment and grading in the Crown neighborhood — from Sept. 20, 2012, to Jan. 7, 2014 — show a violation for a safety fence around pond 1, the site of the drowning, according to John Schlichting, Gaithersburg’s director of planning and code administration.
Montgomery County Fire and Rescue Service officials have said that when D’Angelo Jayvon McMullen of Rockville fell through the ice on the pond on Jan. 13 and died, there was only partial fencing.
Of the 20 inspections listed on a summary report, Crown’s Neighborhood One ultimately failed nine and partially passed 11, but for reasons not related to fencing. Other violations listed in the report obtained by The Gazette include issues with sediment control, an asphalt berm needing repair, and mud and dirt tracking on to nearby streets.
Copies of another six individual inspections — not listed on the summary report — do not show the outcome of those inspections. None of those six reports refer to safety fencing issues.
Schlicting said that since no violations pertaining to the safety fence were recorded in any of the inspections, it is assumed that city inspectors found the fence to be present and up to city code requirements during each of their visits.
Even though the forms show places where inspectors can indicate specific findings about safety fencing, those sections are blank on the records obtained by The Gazette.
In response to requests by The Gazette about when the fencing was inspected, the city provided records that do not clearly show what passed inspection and when.
D’Angelo was playing with his brother and another boy on the pond Jan. 13 when the ice suddenly broke and gave way. Montgomery County Fire and Rescue personnel quickly rescued two of the boys, but the search for D’Angelo took longer. Rescue officials believe he could have been submerged for up to half an hour.
D’Angelo died at a local hospital later that evening.
On Jan. 14, the city issued a notice of violation to Fran Speed, a representative of Warner Construction, the site manager for Westbrook Acquisitions LLC.
The notice required a 42-inch-high safety fence to be reinstalled on all open sides of the pond pursuant to the sediment and erosion control plan, according to Wes Burnette, division chief for the city’s Permits and Inspections Division. While there is not a city or state code requiring safety fencing on sediment ponds, a fence was required there as part of the planning approval process during construction.
Gaithersburg has a total of seven sediment ponds and all but one will be converted to permanent stormwater management ponds upon completion of the construction, according to Burnette. Once the pond is converted to a stormwater management pond, the fence can be permanently removed, he added.
All of the ponds are inspected on a regular basis by Burnette and his staff.
“Generally sediment control inspections are conducted once every two weeks,” Burnette wrote in an email to The Gazette. “However, that varies quite a bit based on the time of year when the ground is frozen and the level of construction activity as it relates to the amount of disturbed areas.”
The city currently has no plans to change its policy regarding inspections of the ponds, according to Burnette.
Westbrook Acquisitions LLC is one of the developers of the Crown project, a mix of residential and retail units built on the former Crown Farm at Fields Road and Great Seneca Highway.
John Wolf, managing principal at Westbrook Partners, declined to comment Tuesday.