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A Derwood family is upset about a fence that went up on its property last week in preparation for Intercounty Connector constructions, saying the state has no right to build it there.

But the State Highway Administration claims it has possession of the property.

Kim Asbury, who lives on Garrett Road with her parents, said she got a call Friday morning at work from one of her parents telling her contractors with the state agency were building a chain link fence on their property.

"We asked them to leave, but they said they had an order to come in and build," Asbury said.

She said her parents are involved in litigation with the agency, but neither they nor their lawyer had been told about the fence or shown a written order.

Asbury called county police, who came to the house and were shown "a document that said it was a court order to build on the property" and left, she said.

"I'm pretty upset about the whole situation," Asbury said.

The fence extends about 250 feet along one side of the property, separating the house from a grassy field.

Asbury added her family thought the agency would not build on its property until the court case was resolved.

Fran Counihan, media relations manager for the Intercounty Connector (ICC) project, said the State Highway Administration has "possession" of the Asbury property and is within its legal rights to build a fence.

"Since July 2007, SHA has had the legal right to access the Asbury property and to erect a fence," she said Monday afternoon. "While the property is not owned by the state, and may not [be] for some time until litigation is over, it is in its rights to begin construction while the case is in litigation."

The agency's attorneys sent a letter to the Asburys' lawyer Aug. 5 informing him of its intentions to build a fence, Counihan said in an e-mail to The Gazette Tuesday morning.

The state follows Maryland transportation code when it acquires property for highway construction, she said.

The laws allow the agency to take possession and start construction after its "estimate of just compensation has been filed with the court for the benefit of the property owner, but before the litigation is complete and title is transferred to SHA," she said.

In this case, the State Highway Administration deposited $950,000 in Montgomery County Circuit Court as compensation for the land until the case is settled.

"The property owners, through their attorneys, have contested the amount of just compensation in that litigation," she said. "While the court case continues toward a resolution of the question of the amount to be paid for the property, SHA has the legal right to take possession of the property needed for the construction of the ICC."

The fence was built for residents' and construction workers' safety, Counihan said.

The Asbury's lawyer, R. Edwin Brown of the Rockville law firm Brown and Strum, said the state does not have the legal right to build on the property.

"The state has no right to be on there and they're in defiance of the owner," he said Monday afternoon.

The State Highway Administration filed a condemnation suit against the Asbury family in September 2006. Brown expects the next court date will be in the fall and the suit will be resolved by Christmas.

"[SHA] said they had written authority to build the fence and to my knowledge they don't," Brown said. "They haven't settled, they haven't come to terms and they haven't condemned the property."

He said he had not seen a written order or spoken with the agency's attorneys.

The house is one of the few still standing in Cashell Estates. In May, the agency began demolishing houses in the 60-year-old neighborhood to make way for the first section of the ICC, an 18-mile toll road that will connect Interstate 270 in Gaithersburg to Interstate 95 in Laurel.