Please find below the complete text of a letter, submitted today (May 5, 2014), regarding the pending accessory apartment application that we will consider at our upcoming meeting on May 29th.
With best regards,
Rock Creek Hills Citizens’ Association
9723 Kingston Road
Kensington MD 20895
May 5, 2014
Office of Zoning and Administrative Hearings
100 Maryland Avenue
Rockville, MD 20850
Attn: Ms. Ellen Forbes
Office Services Coordinator
Re: Application for Accessory Apartment: 9641 E. Bexhill Drive / Application No. 84414.
Short Comment on Covenants Issues, Objection Regarding Parking Issues, and Request for Hearing Postponement of the Rock Creek Hills Citizens’ Association
To the Hearing Examiner:
The Rock Creek Hills Citizens’ Association (RCHCA) is filing this comment and opposition to the proposed accessory apartment at 9641 East Bexhill Drive, Kensington, MD. RCHCA is also requesting that any hearing be held until after May 29, 2014. On that date the RCHCA will hold a community-wide meeting to help determine whether this proposed Class III accessory apartment at issue would violate a covenant governing the lot in question that limits the use of the lot in question, as we believe it, to single family residences. The specific language is provided below. We are also concerned that the parking is inadequate and are protesting the application on that ground without regard to the covenants issue. We have had an initial exchange of correspondence and several telephone conversations with the applicants, Steven and Erica Weiss. From those exchanges it is clear the applicants appreciate that a community-wide decision is involved and RCHCA can take no action earlier than the general meeting we have scheduled for May 29.
Turning first to the covenants issue, the Applicants and RCHCA agree that the material language governing the lot in question is fairly stated as follows, based in part on the Applicants submission to RCHCA on this matter. The specific set of covenants for the Weiss’s house (Block 26, Lot 4) at 9614 E. Bexhill Drive were recorded on May 14, 1952 under recordation 1663-321 (Liber 1663 Folio 321). Of these the relevant provision provides “no apartment house, or houses in rows, or semi attached houses, or houses for the occupancy of more than one family (servants and the owner excepted) shall be erected or maintained upon said lots, or either of them.” The Applicants are of the view that having a Class III permitted accessory apartment with one single adult tenant under the new County provisions for Class III accessory apartments would be in spirit of this covenant. This interpretation is disputed by several adjoining and confronting neighbors, who argue that this language precludes a Class III accessory apartment, and that allowing such units in Rock Creek Hills would change the character of the neighborhood. For its part, the RCHCA board has met to discuss this issue, and has concluded that it should not determine if the proposed apartment violates the RCHCA covenants without consulting RCHCA’s general membership, which includes all homeowners having lots within the Rock Creek Hills community. It is clear this will be a precedent-setting case affecting the rights and concerns of almost 600 houses within our community, as most houses are subject to covenants that have the same language, or somewhat different language that reads in terms of a house’s architecture, namely, that houses shall be only of single family design. I also note that counsel has advised RCHCA that regardless of the how the County code may be applied to the Weiss’s pending application, RCHCA has independent status under the covenants to enforce its interpretation of the covenants, and if necessary to enjoin the proposed apartment under the RCHCA covenants. Therefore, in our opinion, the Hearing Examiner’s authority is limited to determining whether the proposed apartment conforms to the County’s code and regulations regarding accessory apartments.
As such, there is some danger that your office and the Association may reach different conclusions regarding the conformity of the Weiss’s application to the RCHCA covenant at issue, and whether accessory apartments are permitted under the various other covenants regarding the nature of residences that may be maintained in the community. While some of our residents will be filing objections to the Weiss’s application, it is not clear whether the general membership will accept or oppose the application. Specifically, if the membership finds the application acceptable, then this would eliminate any conflict if your office should thereafter decide to approve the application. If the membership and the RCHCA covenants community decide to oppose the application, this implies that the community will seek to enforce the opposition, through litigation if necessary, and the Weiss’s might then choose to withdraw their application, which would make a hearing even on the parking issues unnecessary. It would be helpful if any conclusions by the Hearing Examiner and RCHCA were consistent, and for this reason, we believe the hearing should be not be scheduled before May 30, to allow time for the meeting and for the RCHCA to inform the Hearing Examiner and interested parties of the Association’s decision.
In any case, any delay would be quite limited. Assuming the protests are filed on May 5, the hearing would have to be scheduled in five business days, or May 12. As we understand it, the hearing itself would be normally be within 20 business days thereafter, or no later than June 10. In any event, RCHCA will have prepared the necessary materials on the parking issue in advance of the scheduled May 29 general membership meeting, and the hearing Examiner will have almost certainly received arguments pro and con on the interpretation of the cited covenants. The Applicants have long understood that RCHCA could not resolve this matter before its May 29 meeting and should have no problem with such a short delay of the hearing until after May 29. Your office will hear from RCHCA, which is responsible for interpreting and enforcing the covenants, promptly after the May 29 meeting, and the case would be able to move to a hearing shortly thereafter.
In addition, we believe that regardless of whether the proposed accessory apartment is permitted under the RCHCA covenants, a finding by the Department of Housing and Community Affairs dated April 25, 2014, that the parking would be adequate under the subject lot’s current configuration, is erroneous. The requirements are for a SEPARATE parking space for such an apartment. While the driveway in question may have sufficient square feet, RCHCA believes that the cars would have to be stacked one behind the other given the existing driveway’s narrow configuration. This will result in the extra vehicle(s) being parked on the street because there is no separate parking space within the lot’s existing configuration. Therefore the tenant or owners will park on the street, as this is easier that switching cars around in the driveway. In this regard, the lot in question is also subject to a covenant that requires most physical changes to the lot or the construction or modification of any structures to be approved by the RCHCA covenants committee. Thus, regardless of whether the proposed accessory apartment conforms to the land use portions of the covenants, RCHCA opposes this application unless the parking arrangement is satisfactory to RCHCA and RCHCA approves its configuration.
Please let me know when the hearing will be held, the final date for submission of exhibits, and any additional information that may be required. In any event, we wish to be as helpful as possible because it is in all parties’ interest to have the matter wrapped up in the near future.
James J. Pekar, Ph.D.
Rock Creek Hills Citizens’ Association