Board Finds Another Clarksburg Development in Violation

By Miranda S. Spivack
Washington Post Staff Writer
Friday, June 30, 2006

The Montgomery County Planning Board voted 4 to 1 yesterday to find Elm Street Development in violation of zoning laws at Clarksburg Village, a community of shops, homes and commercial buildings rising in northern Montgomery.

But the board delayed a vote on a $1.19 million fine proposed by the staff, agreeing to give the McLean-based company a chance to revise plans for the development and seek changes in zoning law.

The violations include 30 homes built too close to the road; 18 built on lots smaller than the board had approved; 36 planned apartments that would be located where not permitted; and a planned road that would have been 10 feet narrower than approved.

Board member Wendy C. Perdue cast the dissenting vote, saying some, but not all, of those violations had occurred.

The board agreed to hold another hearing with Elm Street on July 20 to discuss proposed fixes.

Elm Street President David D. Flanagan initially offered to pay $157,500 to settle the case. He proposed rewriting plans for some undeveloped parcels and getting the entire property rezoned by the County Council, which would give the government's blessing to several homes that were built too close to the street and on lots that are too small.

Flanagan also agreed to widen the road and said he has sought permission from the council to change another zoning law, which he said was missing a few key words. If his changes are approved, they would legalize five other homes built too close to the road.

Flanagan renewed one of his most controversial proposals -- building wooden trellises to connect four single-family houses. The trellises would turn the houses into attached homes and make them legal on the lots they occupy, some of which are hundreds of square feet too small for detached single-family houses.

Tim McGrath, who paid $800,000 for what he thought was a detached home, said that when he and his wife, Kristie, went to sign the contract, they were presented with the trellis clause and told that the house had to be purchased as semidetached.

Had they known that when they picked out their lot, "it would have played a major role in what lot we would have purchased," McGrath told the board. Tax records also show the houses are detached single-family houses, said Rose G. Krasnow, chief of development review at the county Department of Park and Planning.

"These homes were sold in an almost cavalier fashion," board member John M. Robinson said.

Flanagan acknowledged mistakes yesterday but said they did not result from bad intentions. He said that he had sought permission from Wynn Witthans, then a county planner, and that it had been standard practice to get staff approval of changes.

"We are sort of talking about my honor here. . . . Call me incompetent, but don't call me a crook," Flanagan said.

Yesterday, Flanagan submitted an affidavit from Lesley Powell, a landscape architect with the Silver Spring engineering firm CPJ Associates, that said Powell discussed proposed changes with Witthans several times, including at least once in the presence of planners Angela Brown and Rich Weaver.

About that time, the planning agency was beginning to consider complaints from residents of nearby Clarksburg Town Center, another development handled by Witthans. The complaints led to a review by the board, which found promised amenities missing and homes built too high and too close to the road.

Witthans resigned a year ago, but Flanagan offered yesterday to try to get an affidavit from her to support his assertion that changes at his Clarksburg Village had been approved by staff. He produced scant written evidence but said approvals were received during conversations.

Just how much discretion was given to the staff was at the center of hearings last year on irregularities at Clarksburg Town Center, and the issue helped spark several resignations, including that of Planning Board Chairman Derick Berlage, who decided not to seek a second four-year term.

In the Clarksburg Town Center case, the board eventually cited developer Newland Communities and five builders and proposed a record $2.11 million in fines.

The case was sent to a mediator, and the board recently approved a $14 million agreement that compels the developer and builders to make improvements and provide amenities to compensate for some of the problems.

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