Fence fight: Montgomery judge to consider who owns trail land along Purple Line route

The outcome of a trial held Thursday in Montgomery County over whether a fence behind a Chevy Chase home is on county-owned property intended for a light-rail Purple Line could affect dozens of homeowners along a wooded trail between Bethesda and Silver Spring.

Montgomery Circuit Court Judge Gary E. Bair said he needed more time to consider whether Ajay Bhatt, president of Friends of the Capital Crescent Trail, violated the county ordinance against building in a public right of way. Bhatt’s one-year-old fence is 14 feet beyond his property line, along the shoulders of the gravel Georgetown Branch Trail.

The county issued Bhatt a $500 civil citation and ordered the fence removed. A District Court judge previously upheld the citation and fine, but Bhatt appealed the case to Circuit Court.

The Circuit Court judge’s decision, which is expected sometime after lawyers in the case submit follow-up legal memos, could affect other homeowners along the trail because many have had back fences or sheds beyond their property lines for years. Longtime residents say the Metropolitan Southern Railroad Company, which owned the land for almost 100 years until 1988, didn’t mind them encroaching on the land. Even the county, they say, has largely ignored their sheds and fences encroaching on the trail land since it bought the land in 1988 for $10 million to preserve for a transitway,

If residents can prove they essentially own the land because they’ve fenced it off or used it as their own for decades, the Maryland Transit Administration or county could be forced to use their legal power of eminent domain to condemn the land for a Purple Line and adjacent jogging and cycling trail. The government would then have to buy the strips of land from homeowners at fair market value — an expensive proposition for relatively high-priced property along the trail in Chevy Chase and East Bethesda.

Bhatt’s lawyer, Jeff Seaman, argued that previous owners of Bhatt’s home had taken “adverse possession” of the land along the trail’s shoulders because a fence has existed in the same spot since at least 1963, meaning the fenced off land hasn’t been publicly used since then.

Associate County Attorney Jim Savage argued that Maryland law doesn’t allow for people to take “adverse possession”of government-owned land.

Seaman counter-argued that because previous owners of Bhatt’s property fenced in the land since at least the 1960s, they took “adverse possession” of it from the railroad, not the county.

Bhatt’s trail advocacy group filed a federal lawsuit Tuesday against four federal agencies, alleging that the state’s Purple Line route along the trail through Rock Creek Park would violate the Endangered Species Act and other environmental law. Bhatt has said his fence was targeted because of his opposition to the rail proposal’s trail alignment.

A 16-mile Purple Line would run two-car trains between Bethesda in Montgomery and New Carrollton in Prince George’s County, mostly along local streets. The western three miles would run along the trail.

Maryland officials are seeking $900 million in highly competitive federal aid to build the $2.37-billion project. On Thursday, the Federal Transit Administration formally advanced the project into the engineering phase, which state officials said was a procedural hurdle necessary to move toward a federal funding agreement.

A Purple Line would connect Maryland’s spokes of the Metrorail system with Amtrak and MARC commuter rail stations. State officials have said they hope to begun construction in mid-2015 and open the line in 2020.

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Katherine Shaver is a transportation and development reporter. She joined The Washington Post in 1997 and has covered crime, courts, education and local government but most prefers writing about how people get — or don’t get — around the Washington region.
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