Wednesday, Jan. 9, 2008

Stranded residents turn to court to resolve land dispute

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Dan Gross⁄The Gazette
William Rounds stands behind a small chain strung across the road that was used to access his property between Brooke and Chandlee Mill roads. Behind Rounds are members of the Awkard family, whose property also lies along the disputed road, and their friend Steve Kanstoroom. A records dispute over whether they have an easement that grants them a right of way has left them landlocked.
Residents of a Sandy Spring community founded by freed slaves have found themselves in a legal battle against some neighbors, the Planning Board and the developer of a subdivision of million-dollar homes.

A gravel road that connected their properties did not appear on plans for the Dellabrooke subdivision that the agency approved in 1998. In spring 2006, a neighbor put up a chain, limiting the residents’ access to their land. More than just an inconvenience, the removal of ‘‘Farm Road” from county maps reduces their property values, the residents allege.

Gregg and Michelle Bacon want the right to use the road as it existed before land in its path was appropriated for the Dellabrooke subdivision.

So do more than a dozen other landowners, including Michele Awkard. She and her fiancé, Sheldon Carter Sr., want to build a house for their five children, but the land-use agency halted the plan because of the lack of road access.

However, the planning agency had already issued addresses to surrounding neighbors based, presumably, on their access to Farm Road.

Those addresses appear with Xs through them on copies of tax maps in what planning officials called a ‘‘working,” but not official document.

An address is necessary for a building permit, and planners require a road for ambulance and fire truck access before it will issue an address, planning department spokeswoman Valerie Berton said.

Planning information and permit review supervisor Lonnie Rorie said the planning department issues letters assigning addresses and property owners should keep those letters as a record of their address.

But Rorie said the department is not required to keep records of addresses and purges its records periodically for space.

The landowners say the road has a long history. Their ancestors used it. William Rounds said he put 25 loads of gravel on the road and spent hours grading it for himself and for a woman who lived up Farm Road until she died years ago.

‘‘The funeral home and ambulance used the road to bury her and service her when she was sick,” Rounds said. ‘‘There are records. I don’t understand how they can say it’s not there.”

Rounds said he was refused an address for property he owns where two dwellings once stood.

Confounded by planners’ and Planning Board lawyers’ refusal to intervene, the Bacons sued planning officials and others in Montgomery County Circuit Court in September. They are seeking millions of dollars and alleging fraud, deceit, conspiracy, race-based discrimination and violation of their right to due process.

Documents filed with the Bacons’ lawsuit also state that county development review chief Rose G. Krasnow said the planning agency does not recognize private easements and is not required to act when it learns of false and misleading plans.

Krasnow declined to discuss the case because she is one of the defendants.

Berton said Krasnow’s statement was ‘‘taken out of context.”

Subdivision regulations, Berton said, do not require the planning department to show private easements on subdivision plans. Enforcing private easements is the job of the courts, she said.

The planning department now requires developers to meet with neighbors as part of the application process, but the new requirements do not include making developers notify the community of any private easements that may be involved, Berton said.

A missing road

According to the Bacons’ suit, references to Farm Road appear in deeds dating back more than 100 years.

Yet the road was not shown in a series of submissions to the Planning Board made for developer Warren Lee Brown of Annapolis by his lawyer, Richard S. Alper of Washington, and Douglass H. Riggs III, a surveyor for Macris, Hendricks and Glascock, a civil engineering and land planning firm in Montgomery Village. Alper and Macris are also named in the Bacons’ suit.

‘‘There is absolutely no merit whatsoever to the lawsuit,” said John Rolfe, a lawyer for Macris. The firm is asking the court to strike the complaint.

The dispute is not the first involving Macris and the planning agency, which is still roiling from the dysfunction and damage revealed when residents discovered hundreds of violations in Clarksburg in 2005.

And the dispute comes after more doubts were raised about the county’s review of development projects in 2007. In June, state regulators found that a man — whose work county planners accepted on major projects for decades — was not a licensed engineer or a land surveyor.

Steve Kanstoroom of Ashton, who brought that problem to officials’ attention, has urged the Planning Board and the County Council for the past year to ‘‘halt fraudulent plans drafted by Macris, Hendricks and Glascock” that affected an easement on his own property.

Kanstoroom said the plans moved his boundary line to increase the number of buildable lots, and the effect was to depict part of his property, including his home, as owned by others. Kanstoroom has asked the court to confirm the boundary of his easement. He has not sought damages.

Another misrepresentation allowed the developers’ associate to illegally cut about a half an acre of forest, Kanstoroom said.

Forest conservation easements are public, not private, matters, and planners check them during reviews, Berton said.

More research

The Bacons’ complaint about Macris’ work in Sandy Spring says the firm and its surveyor ‘‘falsely depicted” a 200-acre tract in their community by omitting ‘‘Farm Road.” Leaving out the road allowed a larger forest conservation easement for the Dellabrooke development, a large subdivision of homes costing nearly $1 million.

Built about six years ago, Dellabrooke blocked the older community’s access to Farm Road from Goldmine Road, but the Bacons, Rounds and others said they used an entrance on Brooke Road until spring 2006 when a neighbor chained the entrance.

Developer Warren Brown, whose grandfather owned the land where Dellabrooke now stands, said Farm Road did not appear on a survey he had done in 1980.

Brown said he never saw what looked like a road near his property. ‘‘There may well be some history of the Bacons connecting south to Brooke Road,” he said.

In April 2007, Kanstoroom learned of the Sandy Spring residents’ predicament as he tried to get county officials to correct his problem in Ashton.

To help, Kanstoroom hired land surveyor Jefferson Lawrence to verify deed references to Farm Road. Lawrence’s research detailed the discrepancies between Macris’ submissions to the planning agency and state and local records. Lawrence noted that Farm Road, or portions of it, also appears on planning agency maps and state tax maps.

Lawrence confirmed that Farm Road ran from Brooke Road north to Goldmine Road and ‘‘his position is supported by deeds, plats, maps and sworn statements,” according to documents filed with the Bacons’ lawsuit.

A Maryland Department of Planning analyst who reviewed that research compared Lawrence’s findings to state records and told Krasnow in a letter dated Nov. 14, 2007, that he had ‘‘corrected” state computer files ‘‘to reflect the ‘Farm Road’” and other information as shown in Lawrence’s drawings.

Sixteen days later, the state’s director of planning data services, Michel A. Lettre, wrote to Krasnow saying the department is not putting Farm Road back on the map or making the other changes the analyst described.

‘‘Any questions about this matter should be directed to me,” Lettre wrote.

Reached at his office on Friday, Lettre said the assistant attorney general assigned to the Department of Planning told him that the ‘‘whole area is in litigation.”

He said it is not the department’s ‘‘habit” to make changes that a court might overturn.

Figuring out solutions

The impasse has left landowners to find other ways to get to their homes and lots.

After being approached by a real estate agent, Rounds, who rents in a house in Gaithersburg but wanted to build in Sandy Spring, paid about $25,000 as part of what he thought was a package deal to buy alternative road access and sell his property. The sale fell through.

Montgomery Councilman Marc Elrich and an aide, Adrienne Gude Lewis, attended a Jan. 12, 2007, meeting where Krasnow discussed the issue, as did county Inspector General Thomas J. Dagley.

In an affidavit included with the Bacons’ suit, Lewis noted similarities between the Sandy Spring community’s and Kanstoroom’s complaints.

She said she had seen county land records that demonstrate that Macris made erroneous submissions and that the parallels confirmed her ‘‘feelings that none of the errors ... were ‘mistakes’ or ‘neighbor disputes,’” as planners characterized them, but were intended to benefit the applicant, developer or their agent.

Lewis said the planning agency turned over photos to Elrich showing that the forest clearing that Kanstoroom claimed near his home actually occurred although the agency maintained it had no such evidence.

Kanstoroom said his experience has led him to believe that developers and some planning officials are putting their own interests ahead of the public’s.

‘‘What’s wrong is the officials who are responsible for protecting you and me are complicit in the fraud, while many of the leaders charged with oversight are looking the other way,” Kanstoroom said.

‘‘The corruption is in the interest of the politicians who chose to protect the [planning agency].”