The $500 fine that Montgomery County levied against Ajay Bhatt for building his backyard fence on county property might have drawn little notice, except that Bhatt isn’t just a homeowner, and it isn’t just any public land.
The one-year-old fence is 14 feet beyond Bhatt’s property line, on the shoulder of a wooded recreational trail between Bethesda and Silver Spring that’s part of the planned route for a 16-mile Purple Line transitway.
Bhatt, who lives in Chevy Chase, is the outspoken president of a citizens group fighting the plan to run trains along the trail. The person who complained about the fence, which prompted the county’s investigation, is a longtime Purple Line advocate who Bhatt says singled him out because he opposes the transitway route.
Yes, the decades-long debate over where to build a rail line in the Maryland suburbs has gotten personal, and it’s come down to a six-foot-high wooden fence.
“It seems awfully coincidental that I’m the president of Friends of the Capital Crescent Trail and I’m the only one who got a complaint,” Bhatt said.
Bhatt is appealing the county citation and the fine. His trial in Montgomery County Circuit Court is scheduled for June.
The trail alignment has always been the most controversial part of the plan to connect Maryland’s inner suburbs with east-west trains. Montgomery bought the trail land, an abandoned freight rail corridor, from B&O Railroad in 1988 to preserve it for a transitway and trail. A Purple Line would run light-rail trains between Montgomery and Prince George’s County, from Bethesda to New Carrollton.
Bhatt’s fence isn’t unusual along the trail. Longtime residents say the B&O Railroad didn’t mind them building fences and sheds in the right of way, and county officials say they don’t routinely investigate right-of-way violations unless they receive a complaint. Maryland Transit Administration officials planning the Purple Line say there are about 25 “encroachments” on the trail land, including sheds, garages, retaining walls and decks. MTA officials say they have not counted fences in the right of way, but a walk along the trail show many as close as Bhatt’s, some of them appearing relatively new.
The Purple Line’s construction is scheduled to begin next summer, pending federal funding. Any structures remaining in the right of way could face the bulldozers.
Bhatt, who owns a construction firm, said his $7,000 fence was built on the same spot where fences have stood behind his house for years. He said he showed the county permitting official a 1977 land survey of his home that included a fence beyond his property line, and he said he told the official that he planned to build his new fence there, too. The permitting official didn’t object, he said.
“I didn’t expect to prevent a Purple Line with a fence,” Bhatt said one recent afternoon from his back yard in the Coquelin Run neighborhood. “I know that’s not going to happen. But it doesn’t make sense for me to have to move my fence before” the Purple Line construction begins, he added.
County officials, however, note that Bhatt’s building permit has an “N” next to “Right of Way,” meaning he didn’t have permission to build on public land, and a “Y” next to “Owner’s Land,” meaning the permit covered only his private property.
Wayne Phyillaier, the Purple Line advocate and retired engineer who reported Bhatt’s fence, said he noticed it while riding his bike on the trail last May. He said he suspected that the fence was Bhatt’s and confirmed it using online real estate records.
Phyillaier said he was concerned that the county might be mistakenly issuing building permits for the Purple Line land, which he said would have encouraged other residents to build there. Bhatt’s fence, he said, was the “most egregious” example he’d seen of a homeowner building in the trail right of way, particularly after the publicly circulated Purple Line plans showed that a retaining wall would be built along Bhatt’s yard.
Phyillaier, who wrote about the case on his Silver Spring Trails blog, said the fence shows that Bhatt has a “deep, personal interest in blocking public use to that corridor.”
“He’s basically trying to grab a big chunk of public right of way enclosed behind a fence for his own personal use,” Phyillaier said. “How does he justify that, especially when he leads an organization that says it’s trying to preserve the trail for the enjoyment of the public?”
Montgomery officials have promised to rebuild and extend the trail along the Purple Line, plans that some cycling advocates praise as necessary to fill a critical gap in the region’s off-road trail network. Bhatt and other opponents say the construction of a a transitway would destroy the trail’s peaceful green space by cutting hundreds of mature trees and leaving runners and cyclists alongside noisy trains.
Diane Schwartz Jones, director of the county’s Department of Permitting Services, said she didn’t know of Bhatt’s or Phyillaier’s Purple Line views when she asked her staff to investigate the complaint.
She said the law against building on public land helps protect the county from liability if someone is hurt on the public property and from the cost of having to remove fences and other structures when the land is needed. Jones said the county fined and cited Bhatt only after he ignored a notice of violation.
“It’s not his property to put a fence on,” Jones said.
The county also cited Bhatt’s next-door neighbor for having a fence in the right of way. She tore it down before the fine would have taken effect, Bhatt said.
Bhatt said he knows he faces an uphill legal battle. In January, District Court Judge Patricia Mitchell found him guilty of installing a fence beyond private property. The judge suspended the $500 fine and gave him 30 days to remove the fence. Instead, Bhatt appealed to Circuit Court.
Mitchell rejected Bhatt’s arguments that others had built fences along the trail and that the land he’d fenced in would be readily available for public use once Purple Line construction started, according to an audio recording of the 20-minute trial. But the judge told Bhatt that the only fact relevant to the legal case was whether he built a fence on public property — a point Bhatt conceded was true.