Zoning Board's Power Called Into Question

By Miranda S. Spivack
Washington Post Staff Writer
Monday, February 5, 2007

They were two of Montgomery County's best-known land-use fights in years, a traffic case involving Holton-Arms School in Bethesda and a disputed home renovation in Chevy Chase that consumed days of hearings before the county zoning board.

But when the losing parties appealed to the courts, the county attorney's office declined to defend the rulings of the Zoning Board of Appeals, a part-time panel of citizens. Board decisions were subsequently reversed by court rulings.

Current and former zoning board members say the county attorney's reluctance to enter the cases, which involved prominent residents, has sent them a troubling message: that the government won't back them up in contentious disputes.

"It threatens the ability of the board to do its job and the public to have confidence in the process," said Allison Ishihara Fultz, the board's chairwoman.

Fultz and others said the two disputes -- the Chevy Chase fight in recent months and the Holton-Arms controversy in 2002 -- were the only times in the past six years that county lawyers would not defend the zoning board when it sought help, raising questions about the lawyers' susceptibility to political pressures.

Fultz worries that the wrong message has been sent to those challenging the board: Push hard enough and long enough, and the county will fold.

Acting County Attorney Marc P. Hansen defended his office, saying it examines zoning board rulings to determine whether they have broad legal significance and stays out of what it considers small-scale appeals. He said such decisions are made after consulting with the various boards he advises, which include the human rights, animal control and liquor boards.

Hansen's office also vets land-use cases with the County Council. In the Chevy Chase dispute, all but one member suggested staying out of it in October, said Michael Faden, the council's attorney.

Faden said the council followed his "strong recommendations" to stay out of the case. "These are two sets of neighbors fighting with each other," he said. "Both are well represented by experienced lawyers, and the case didn't involve overarching legal issues or a transcendent county policy interest."

But after reviewing the court's decision, he said he now believes that the case could have broader implications than he originally thought.

Fultz and former zoning board chairman Donald H. Spence Jr. said they fear political pressure was at play. The Chevy Chase and Holton-Arms disputes involved prominent residents who were lobbying county leaders. Hansen denied that politics played any role.

County Executive Isiah Leggett (D), after hearing from angry zoning board members, said he is taking steps to change the system.

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