Category

From the RCHCA Officers

The Court of Appeals has Declined our Petition for Certiorari

By | B-CC Middle School / RCH Park, From the RCHCA Officers

Dear neighbors,

I regret to inform you that the Court of Appeals of Maryland has today declined our petition for certiorari, thereby upholding the previous finding of the Court of Special Appeals that we lack standing to bring suit to enforce the law and preserve Rock Creek Hills Park. Your RCHCA Board of Directors will consult with legal counsel regarding what steps may be available to us at this point. Thank you for your support, and please consider renewing your support for the park’s legal defense fund, at <http://tinyurl.com/ca9kp5m>, especially as we have an outstanding balance with our counsel for work done to date. Thank you again.

With best regards,
Jim Pekar
President, Rock Creek Hills Citizens’ Association

Rock Ceek Hills Park Litigation Update

By | B-CC Middle School / RCH Park, From the RCHCA Officers

Dear neighbors,

A brief update on the status of our litigation seeking to uphold the law and preserve Rock Creek Hills Park, the transfer of which for construction appears to be unlawful.

Our petition for certiorari is pending before the Court of Appeals of Maryland.

That is, we are waiting for our State’s highest court to decide whether it will review our case — and finally address its merits.

Thank you for your support of this effort. Ongoing litigation has ongoing costs, and you can contribute to the park’s legal defense fund at <http://tinyurl.com/ca9kp5m>. Thank you again.

With best regards,
Jim Pekar
President, Rock Creek Hills Citizens’ Association

Notice of Next RCHCA General Meeting: Monday 9/22 @ 7:30 pm

By | B-CC Middle School / RCH Park, From the RCHCA Officers, Meetings, RCHCA Biz

Dear neighbors,

The Autumn Meeting of the Rock Creek Hills Citizens’ Association will take place at 7:30 PM on Monday, September 22nd, in the multipurpose room of Grace Episcopal Day School, at 9411 Connecticut Avenue. The primary topic of the meeting will be review of the plans submitted by Montgomery County Public Schools (MCPS), to the Montgomery County Planning Board, for construction of a middle school on the site of Rock Creek Hills Park.

You can see the site plan at <http://goo.gl/DV26Xi>, the architectural drawings at <http://goo.gl/5Jdz7B>, and the “preliminary forest conservation plan” at <http://goo.gl/ZNLf2U>. The Planning Board has posted the full MCPS submission at <http://goo.gl/Yhhv72>.

As you may recall, the Planning Board’s “Mandatory Referral” hearing, for review of these plans, was originally scheduled for July 17th. In late June, the hearing was rescheduled to September 18th, because MCPS had decided to study revising the site design, in order to respond to concerns from Planning Board staff regarding tree loss and excessive retaining walls; the Planning Board expected new plans to be submitted by MCPS in late July or early August. However, as of this writing, the Planning Board has not received new plans from MCPS, the September 18th hearing has been cancelled, and no new date has been given for the hearing. Under these circumstances, it is reasonable for us to review the plans that have been submitted. We will be assisted in this by Ms. Amy Lindsey, Senior Planner, Montgomery County Planning Board, and we have invited MCPS to send a representative.

The meeting will also include:
• an update on our new online directory;
• a treasurer’s report.

At the last meeting of our Association, the membership asked your Board to report on the subject of accessory apartments for rental purposes in Rock Creek Hills. The Board did so electronically on July 18th (see <http://goo.gl/02DRcF>), and via first-class mail to all Rock Creek Hills households soon after. If members have questions about this matter, there will be an opportunity to discuss them at the meeting.

[I note that it would not be appropriate for us to discuss pending litigation seeking to preserve Rock Creek Hills Park, the transfer of which for construction appears to be unlawful, at a meeting to which we have invited representatives of the Planning Board and the Board of Education.]

If you have any other matters you would like discussed at the meeting, please advise me or any Board member at your earliest convenience.

I hope to see you on the 22nd of September!

With best regards,
Jim Pekar
President, Rock Creek Hills Citizens’ Association

Covenants & Apartments

By | Covenants, From the RCHCA Officers, RCHCA Biz

Dear Rock Creek Hills property owners:

At the May 29, 2014 Rock Creek Hill Citizens’ Association (RCHCA) meeting, the membership charged the RCHCA Board of Directors with developing a position on whether rental accessory apartments would violate various covenants attached to most of the lots located within the Rock Creek Hills community. The Board met thereafter, and acting as the Board of Rock Creek Hills Covenants, Inc., discussed the differing language of several of the covenants in detail. Two members of the Board then met with counsel per the membership’s instructions. Based on its review of the covenants, internal discussions, and consultation with counsel, the Board has concluded that the various covenants governing lots in the Rock Creek Hills community preclude all rental accessory apartments, whether such apartments would be considered Class III accessory apartments, or might be, or have been, approved by the County via the “special exception” process. Therefore, as of the effective date of this policy, all rental accessory apartments will be deemed to violate the various Rock Creek Hills covenants, and the County permitting authorities will be so advised. Moreover, this conclusion will be enforced by right of private action in the courts if necessary.

As the membership is aware from numerous articles in the printed and electronic RCHCA newsletters over the last several years, the Board has a long-standing policy of enforcing covenant issues only upon complaint, the exception being the requirement to obtain advance Board approval of most external improvements to lots located in Rock Creek Hills. In the last two months, several anonymous complaints have been filed with the Montgomery County Department of Permitting Services alleging operation of unauthorized rental accessory apartments. (Because property owners against whom complaints have been lodged have only until late July to respond to such complaints, potentially including submitting an application to the County for approval of a Class III Accessory Apartment, the RCHCA Board had to move quickly, and were unable to bring this matter back to the membership for consideration.) This is the first time in some 25 years that the Board has had notice, by complaint to it or through complaints filed with the County, of what appears to be operation of unauthorized rental accessory apartments in Rock Creek Hills. The Board is concerned that requiring such historical but unauthorized rental apartments to immediately cease operation may cause hardship to the lot owners in question. Therefore the Board has determined to apply a forbearance policy to existing rental accessory apartments, regardless of whether they are unauthorized or are operating under special exception authority. This is separate from the Board’s long-standing complaint policy, which it will continue for rental accessory apartments, of taking enforcement action only on complaint to the Board or notice of application or complaint to the County. The forbearance policy is described in the following paragraph, and will be available only to existing rental accessory apartments that are now subject to complaint, or which are disclosed to the Board within three months after this policy becomes effective.

The Board will, upon agreement with the lot owner, defer from enforcing the covenants against existing rental accessory apartments of all types for five years from the date of the complaint for all complaints that were filed with the Board or with the appropriate Montgomery County department before the effective date of this policy. The five-year deferral also applies to complaints filed within three months of the effective date of this policy, and to rental accessory apartments whose existence is disclosed to the Board pursuant to the three-month window described in the prior paragraph. In order for this policy to apply to a specific accessory apartment, the lot owner must enter into an agreement with the Board acknowledging and agreeing that: (1) the lot owner recognizes that the covenant governing the lot precludes accessory apartments; (2) the enforcement of the covenant is deferred, but not waived, for five years from the relevant date as stated above; and (3) the lot owner will cease operating the accessory apartment at the end of the deferral period. Once the forbearance agreement is executed, the lot owner may apply to Montgomery County for an accessory apartment permit that would be limited to the time frame stated in the agreement. When the agreement expires, the lot owner may apply to the Board for an extension of the waiver, which will be granted only upon a showing of severe economic hardship. The right to apply for the extension would be included in the agreement, and could be incorporated in any accessory apartment approvals obtained from the County. The County would be notified that the forbearance period had been extended. However, the Board’s intention in applying the extension policy is that such extensions will be granted only in rare instances.

There are two additional points that should be emphasized. All the Rock Creek Hills covenants permit family members and servants to reside in what would otherwise be a single-family house. Therefore, the Board will not preclude non-rental apartments with a separate living area and kitchen that are for nuclear family members, such as parents or children of the owners, or for health care providers and domestics. However, converting such a non-rental apartment or unit to a rental accessory apartment would violate the Rock Creek Hills covenants, and would be subject to an enforcement action.

The Board will post this policy notice on the Rock Creek Hills Citizens Association website at rchca.org, by email via rchcanet@yahoogroups.com, and by first class mail to all known current lot owners in Rock Creek Hills. This policy is effective July 18, 2014.

Sincerely yours,
Jim Pekar
President, Rock Creek Hills Citizens’ Association

Mandatory Referral hearing rescheduled to September 18th

By | B-CC Middle School / RCH Park, From the RCHCA Officers

Dear neighbors,

The Planning Board’s Mandatory Referral review of the MCPS plans for B-CC Middle School #2, which was to have taken place in mid-July, has been rescheduled to Thursday, September 18th.

The reason for the rescheduling is that MCPS has decided to study the possibilities of revising the site design, in order to respond to concerns from Planning Board staff regarding tree loss and excessive retaining walls.

The Planning Board expects new plans to be submitted by MCPS in late July or early August. We will keep you updated.

With best regards,
Jim Pekar
RCHCA President

Your Rock Creek Hills Park Update in Two Parts: Litigation & ‘Mandatory Referral’

By | B-CC Middle School / RCH Park, From the RCHCA Officers

Dear neighbors,

Here is an update on Rock Creek Hills Park, in two parts:

• LITIGATION
Our “petition for writ of certiorari” has been submitted to the Maryland Court of Appeals (our State’s highest court). Our understanding is that it is likely to take several months for the Court to decide whether to take our case.

We continue to believe that the merits of our case are strong and that the transfer of the park land is unlawful. If we prevail, then the park would be preserved, and the damage already done would be remediated.

• “MANDATORY REFERRAL”
Montgomery County Public Schools (MCPS) has submitted building plans to the Montgomery County Planning Board for “Mandatory Referral” review (a general overview of Mandatory Referral is available at <http://goo.gl/WQcBof>). Groundbreaking for construction remains scheduled for July of 2015.

The Planning Board has posted the MCPS submission at <http://goo.gl/Yhhv72>. There’s a lot there – correspondence, reports, plans – and the website does not appear to be available 24/7, so for your convenience we’ve reposted the site plan at <http://goo.gl/DV26Xi>, the architectural drawings at <http://goo.gl/5Jdz7B>, and the “preliminary forest conservation plan” at <http://goo.gl/ZNLf2U>.

The Planning Board will hold a Mandatory Referral review hearing on Thursday, July 17th (time to be announced). Please note that this review is advisory; MCPS can disregard the Planning Board’s advice. Planning Board staff may be willing to meet with us in advance of the hearing, so that our concerns can be reflected in their report; we are working to schedule such a meeting, and will keep you informed.

Please note that this Mandatory Referral process assumes that a school will be built on the site of the park, and tries to minimize impacts and get the best outcome. This is simply not the right venue to argue about the inadequacies of the site or the unlawfulness of the land transfer. Making such arguments to the Planning Board would be counterproductive.

In Closing:
Thank you for your support of litigation seeking to uphold the law and preserve the park. As you may know, three Rock Creek Hills attorneys have devoted countless hours of their time at no charge, which has substantially lowered costs; however, ongoing litigation has ongoing costs. As of this writing, we need to raise $12k for legal fees. Please recall that the site of the park fails to meet almost all of the official middle school site evaluation criteria (see <http://goo.gl/JwbXor>); please look at just what MCPS is proposing (for example consider the profound loss of trees shown at <http://goo.gl/ZNLf2U>); please consider renewing your support. Checks payable to “RCHCA” with a memo noting “litigation fund” may be sent to your RCHCA Treasurer, Ms. Maria Marzullo, at 9801 East Bexhill Drive, Kensington, MD 20895, or contributions may be made online at <http://tinyurl.com/ca9kp5m>. Thank you.

Sincerely yours,
Jim Pekar
RCHCA President

How to Find the Covenant for Your Rock Creek Hills Home:

By | Covenants, From the RCHCA Officers, RCHCA Biz

How to find the covenant for your Rock Creek Hills home in three easy steps!

WHAT YOU WILL NEED:

Pencil;

Paper;

Computer.

  • STEP 1:
    Go to the map at <http://goo.gl/OyDbR6> and find your home. Write down your block number (on the map it appears within a circle) and lot number. [Lot & Block Numbers also appear on your tax bill.]
  • STEP 2:
    Go to the table at <http://goo.gl/dMRylc> and, using your block number and lot number, find the corresponding covenant number in the rightmost column. Write that down.
  • STEP 3:
    Go to <http://goo.gl/lg1Zbt> and click on your covenant number. Et voilà, you will see the covenant for your home. You can print or save the PDF file.

NOTES:

1. Most covenants begin with an offensive racial exclusionary clause. Such clauses are unenforceable, per the 1948 decision of the U.S. Supreme Court in Shelley v. Kraemer.

2. This information reflects the understanding of well-intentioned folks, but should not be deemed definitive.

3. Thanks to Richard Humphries for obtaining and posting the covenants, and to Sam Hoxie for maintaining <https://rchca.org/resources/covenants/>.

— Jim Pekar

Volunteers Needed to Develope Approaches to Increase Participation

By | From the RCHCA Officers, RCHCA Biz

Dear neighbors,

The Board of the Rock Creek Hills Citizens’ Association seeks volunteers to develop approaches to increase participation in the Association. We seek someone to lead this effort, and others to participate; we would expect this group to work over the summer and then report suggestions to the Board and/or the next meeting of the Association, regarding ways to increase participation, especially by those members who may not be able to attend the regular meetings of the Association.

Please let me know if you are interested in leading and/or contributing to this effort.

Thank you.

With best regards,
Jim Pekar
RCHCA President

Meeting Reminder–This Thursday, May 29 @ 7:30

By | From the RCHCA Officers, Meetings, RCHCA Biz

Dear neighbors,

Hope to see you at the RCHCA meeting this Thursday May 29 at 7:30 PM in the multipurpose room at Grace Episcopal Day School on Connecticut Avenue. Please come at 7:15 if you’d like to help set up!

The agenda will include a presentation on our covenants, how they are administered, and a review of the recent submission of a request (since withdrawn) for approval of an accessory apartment for rental purposes. Although the withdrawal of the apartment application makes the matter moot, it is still appropriate to discuss, especially as the (former) applicants have asked for an opportunity to address the meeting. Others can follow, with all presentations limited to five minutes unless extended by the chair. There will also be an update on neighborhood security, the status of park-related matters, a Treasurer’s report, and new items that may be raised by the members. If you have any such concerns, please provide them at your earliest convenience.

If you’ve paid your 2014 dues, then thank you. If not, then please consider renewing your support for your community: Dues are $40 per household; checks payable to “RCHCA” may be sent to our Treasurer, Ms. Maria Marzullo, at 9801 East Bexhill Drive, Kensington, MD 20895. Or, bring a check to the meeting! We ask that those speaking at the meeting have paid their membership dues.

Thank you, and see you Thursday!

With best regards,
Jim Pekar
RCHCA President

RCHCA Response to Accessory Apartment Application

By | Board Correspondence, From the RCHCA Officers

Dear neighbors,

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,
Jim Pekar
President, RCHCA

***

Rock Creek Hills Citizens’ Association
9723 Kingston Road
Kensington MD 20895
301-962-9230
email: jjpekar@gmail.com
May 5, 2014

Office of Zoning and Administrative Hearings
100 Maryland Avenue
Room 200
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.

Sincerely yours,

James J. Pekar, Ph.D.
President
Rock Creek Hills Citizens’ Association

####