Wednesday, Aug. 29, 2007

Debate over Village fence grows more complex

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The legal wrangling over Montgomery Village’s controversial fence is heating up as a court review nears an Oct. 16 hearing.

Circuit Court Judge David A. Boynton recently ruled to allow into the record favorable decisions from two other judges in support of the fence. Meanwhile, evidence has emerged that the fence strayed onto Pepco property and onto the property of an adjoining community that wants the fence torn down.

Built a year ago by the East Village Homes Corp., the 1,600-foot-long fence separates the Essex II and Candleridge communities in East Village from the Picton neighborhood in North Village.

East Village has defended the fence as the only answer to years of escalating problems, such as trespassing, destruction of property and littering.

But the fence touched off a firestorm as Picton residents resented having no notice of the fence, as it cuts off access to walking paths that lead to a nearby community center, school bus stop and Ride On bus stop.

More than five months later, the county’s chief planning agency ruled that East Village failed to obtain county approval to build the fence. At a bitterly contested hearing on Jan. 17, the Planning Board ordered the fence torn down by March 1.

That order was blocked when East Village won an injunction while it appealed the Planning Board’s decision.

In its appeal of the order to tear down the fence, East Village points to opinions by Circuit Court Judges Ronald B. Rubin and Terrance J. McGann, who wrote that East Village ‘‘is likely to prevail on the merits of its ... complaint.”

Lawyers for North Village and the Planning Board had tried to strike the judges’ comments from the record. Christopher Hitchens, North Village’s lawyer, argued that the case should be strictly about the quality of the Planning Board’s decision, and should therefore include only the evidence that the Planning Board had when it ordered the fence removed.

East Village lawyers did not respond to calls from The Gazette. East Village President Terry O’Grady declined to comment.

Meanwhile, Pepco discovered earlier this summer that a portion of the fence was built across its property over a high-voltage transmission line, said Clay Anderson, a Pepco spokesman. Pepco had East Village tear that portion down.

That prompted North Village to get a land survey for the fence. It showed that 126 feet of the fence stands on North Village property, by as much as 55 feet.

‘‘We were very, very upset to find out that East Village had, through negligence or whatever, made this very serious mistake,” said Dennis Barnes, president of North Village.

In arguing before the Planning Board that it had the right to build the fence, East Village said it was making decisions only on its own property.

It is not known how or if the discovery that part of the fence incurs onto North Village land will factor into the case, Hitchens said, but it might be ‘‘a good possible cause for appeal” later.