Fence plan for C&O canal home derails

Planning Board upholds law that prevents trees coming down, fence going up

But Mardirossian, the father of two small children allergic to nut trees, plans to take his appeal to the courts. He is basing his case in part on the Americans with Disability Act (ADA), he said.

‘‘I respect the board, but don’t think they made the right decision,” Mardirossian, a prominent land developer, said in a Friday telephone interview. ‘‘I will fight this for my children, for all children with disabilities. I’ll take it all the way to the Supreme Court.”

But the board’s upholding of the Forest Conservation Law reassured many residents and advocates concerned about the loss of trees countywide, and specifically along the canal. The state law protects trees and prevents soil disturbance on steeply sloped land and forests near such historic sites as the park.

‘‘Restrictions are tougher around the C&O Canal, and for terrific reasons,” said Anne Merwin, director of policy at the Potomac Conservancy, a nonprofit advocating for the health of the Potomac River and its tributaries.

And for those privileged enough to live next to a historic scenic park, home ownership comes with a degree of responsibility.

‘‘I understand if you buy expensive property you have expectations about what you can do with it, and I understand how you could be champing at the bit,” Merwin said in a Friday telephone interview. ‘‘But the C&O Canal is a national treasure visited by 3 million people each year...and it must be preserved.”

Mardirossian originally wanted to remove more than 50 nut trees and encircle the entire property with a fence, including the section of property that abuts the canal.

At Thursday’s meeting, however, he said he needed to remove 15 trees since medical tests revealed his children are allergic to fewer tree varieties than previous believed. That would leave 451 trees standing, and Mardirossian said he would replant twice the number he cut down.

He also said he would install the six-foot tall fence some 40-feet back from his property line at the canal, but still within the protected forest area.

The board rejected his original plan, since that was the only one formally submitted to county planners, and said Mardirossian must comply with conservation laws.

It also found that the ADA calls for ‘‘reasonable accommodation” for medical disabilities, and cutting down trees to prevent children from coming into contact with nuts exceeds that standard.

So instead of entirely surrounding the property with a fence, the board suggested fencing 8,000 square feet of hardscape and lawn Mardirossian plans for his house.

‘‘It would give the children ample outdoor activity free of danger,” said Royce Hanson, board chairman. ‘‘Putting the fence at the bottom of a steep slope seems to me inherently dangerous. If these children are anything like mine were, it would take a lot of supervision to prevent them from picking up a nut left by a squirrel or touching [a nut tree sprout] while sliding down a slope.”

Scaling back his fence to surround only half his property is not an option, Mardirossian said.

And he balks at agreeing to the standard, county-held easement agreement that protects the forest while allowing access to all.

‘‘I wouldn’t even be able to use half of my land, I couldn’t even put a tire swing there,” he said. ‘‘People could walk through my property, but I’m the one paying the tax bill on the land. Where is the fairness in that?”

But while cutting down a few trees in a heavily forested lot seems reasonable to a homeowner, it’s alarming to park visitors.

‘‘As soon as you start making exceptions, where do you draw the line,” Merwin asked. ‘‘Is taking down 10 trees okay? Then what about 30?”