It's possible, just possible, that the longest-running rezoning and development fight in the Washington area is winding down to a conclusion after 25 years. It's possible--but don't bet on it.
Both sides, the tiny Montgomery county town of Somerset and a group of developers known as Community-Somerset Associates, say they are again negotiating a compromise and want to get the issue settled. But they are also squaring off in two different courts, adding to the already voluminous legal literature about their long dispute.
In a recent ruling on one tangential issue, Judge Philip M. Fairbanks of Montgomery County Circuit court referred to it as "yet another in the apparently endless parade of law suits" relating the development of the choice piece of turf known as the Bergdoll tract. He wasn't exaggerating--the dispute has already gone to the state's highest court four times, and may well end up there again.
The basic issue is simple:
What is going to be built on the 18.2 acres of wooded land on the west side of Wisconsin avenue, opposite Saks Fifth Avenue, at the northen end of Friendship Heights?
The answer, probably, is high-rise condominium apartments, with price tags averaging $200,000, but not until the Somerset town council has extracted every possible concession on height, setbacks, amenities, traffic control, tax liability, tree-cutting, and any other issue the town fathers can think of.
In the current round of negotiations, Somerset is opposing a site plan, already approved by the Montgomery County Planning Board, for the first of three buildings that will eventually total 639 units. Somerset is asking the developers to revise the plan, and reduce the maximum building height from 21 stories to fewer than 17. In exchange, Somerset is offering to allow about three acres of town-owned parkland adjacent to the site to be included in it for the purpose of calculating the project's density.
Norman Glasgow, an attorney with the firm of Wilkes & Artis, who has represented the developers throughout the long dispute, said he had "no basis for determining whether negotiations will be successful or not. That's up to the principals involved."
One of the principals, Gene Miller, Somerset's current mayor, said Somerset "favors the development. The issue is not the high rise, they have that zoning and they have the right to put one in. The issue is compatibility with the surrounding community and the overall Friendship Heights development."
Most of the trees in Somerset reach a height of about 12 stories, he said, not the 17 that the developer is proposing in the negotiations and certainly not the 21 in the approved site plan that Somerset is contesting in court. "That's the key difference," he said.
Roger Titus, Somerset's attorney, is also on record as saying the town favors some high-rise development. In a letter last May to to the county's Tax Assessment Appeals Board--which at Somerset's request doubled the assessed valuation, and the taxes, on the vacant property--Titus said that "the town of Somerset favors development of the subject property" and "expects it to occur in the near future." In fact, the Somerset town council once voted to accept the current building plans, and it is hard to find any town officials who say they are trying to keep the property undeveloped.
But Ralph Ochsman, a member of the group of developers who have owned the site for a generation, says he isn't convinced the town is finally ready to remove the obstacles to development.
"They always say they want to get going, but we get sued every time we try anything," he said. "I've put in more than third of my life on this. I started when I was 38, and now I get a discount at the movies," said Ochsman, who is 63."
The story of the Bergdoll tract is like a long-running, suspense-filled soap opera. It has been going on so long that some of the important early players have long since died. The basic plot hasn't changed since the Hecht Co. failed in an attempt to put a department store on the site in the 1950s, but the drama has been punctuated by lawsuits, insults, tense confrontations, and charges of conflict of interest involving a prominent law firm.
And the result, so far, is that a choice piece of property, within a block or two of the Friendship Heights shopping center and within 1,500 feet of the Metro station there, is nearly as undeveloped as it was when the issue first arose during the Eisenhower administration. The only thing built on any part of the property is Somerset's community swimming pool, which occupies part of the acreage donated by the developer.
Somerset, incorporated in 1906, is a prosperous community of single-family homes clustered between Wisconsin Avenue and River Road, just north of Friendship Heights. It has remained mostly unchanged during a time when Friendship Heights itself has been taken over by high-rise buildings and department-store parking lots.
So complex is the story of the Bergdoll tract that it became a chore to brief new residents and newly-elected members of the town council on what it was all about. Now the history has been summarized for the aid of the uninitiated in a 28-page, footnoted paper by town resident Chris May. The following account was compiled from that paper, from interviews with participants, from court documents, and from the archives of The Washington Post.
The Bergdoll tract was named for a Philadelphia family that owned it from 1886 to 1946--a family whose best known member was Grover Cleveland Bergdoll, described by May as "America's leading World War I draft dodger." The Bergdolls applied unsuccessfully for high-rise zoning in 1944.
In 1957, Hecht's sought to have it rezoned from R-60, or single-family residential with a minimum lot size of 6000 square feet, to commercial, so the company could erect a competitor to the nearby Woodward & Lothrop store. But the company dropped its plan in the face of community opposition to the zoning.
A group of investors headed by Morton Funger, and including Ochsman, bought the property in 1959. They still own it, and have been dickering, negotiating, fighting and litigating with the community almost from the beginning.
Throughout the early 1960s, the developers sought to have the land rezoned for apartments, and the town--usually with the support of Chevy Chase village, on the other side of Wisconsin Avenue--opposed the development and sought to turn the land into a park.
In April, 1961, a typical month, the town council enacted an ordinance prohibiting all property owners in Somerset from cutting down more than two trees of 4-inch diameter without permission of the council. At the same time, the town approached the Maryland-National Capital Park and Planning Commission with a proposal that they jointly acquire the site for park development.
Two months later, in July, 1961, the Funger group proposed a deal: if high rise zoning were approved, they would dedicate eight acres on the west and north sides of their development as a park and buffer zone to shield the rest of the community from the project. The town council immediately rejected the offer, but it later became the basis of negotiations and is still, in effect, the basic offer under discussion.
In the 1960s, planning and zoning issues were the subject of intense, more or less constant debate in Montgomery county, and the fate of the Bergdoll tract became intertwined with the politics and economics of the countywide development issue.
In October, 1961, the County Council, which controls zoning in Montgomery, heard the developers' rezoning application. But the council deferred action, on the grounds that it had no recommendation from the Planning Board. And the planning board had made no recommendation because it was waiting for the development of a master plan for the entire Friendship Heights area.
That stymied the developers, at least temporarily, but the town's park proposal was also rejected, so the outcome was a stalemate. In that context, a stalemate was a victory for those in Somerset who opposed development, and so it has remained for 20 years.
In November of 1962, the County Council formally turned down the high-rise zoning request; three days later the developers filed a new application. The following spring, the town decided to try to acquire half the original 30 acres by eminent domain--which it may not have had the power to do--and the developers offered a new compromise proposal.
They would give the town 6.2 of the 30 acres for park use, dedicate another five acres for a scenic easement, and limit any buildings to no more than 12 stories in height. Since no height limitation was included in the high-rise zoning category, the developers need not have limited themselves to 12 stories, and it is the height limit-parkland trade that still dominates the debate.
Somerset made a counter-proposal: the town would support high-rise zoning on 18.2 acres--the same 18.2 acres under discussion today--if the Funger group would donate 10 acres for park use and give the town an option to buy two more acres. A deal was struck, on the basis of a proposed plat submitted by the developers showing 12-story buildings. With Somerset's consent, the County Council rezoned the 18.2 acres to high-rise on June 18, 1963.
But the fight was far from over. In October of 1964, the development group, then known as Community Builders, announced plans for two 30-story towers. The entire compromise deal fell apart as Somerset sought county limits on the building heights, and tried to impose its own 17-story limit. Community Builders responded by seeking to nullify the parkland donation agreement.
Glasgow and Somerset's late mayor, Warren Jay Vinton--a strong, determined leader who, with the dogged aid of his wife, Molly, proved skillful at unifying the town in its opposition--were shown on television accusing each other of duplicity and bad faith. Community Builders obtained a building permit, on the basis of the existing zoning, for 24-story buildings, and went to court to void the town's height limit. Somerset countersued, and there ensued four years of complex litigation that was carried twice to the state's highest court, even though the town repealed its height limit in an attempt to obtain a new compromise settlement.
The strange outcome of that court fight was that the Maryland Court of Appeals ruled against Somerset on almost every issue, yet still gave the town a temporary victory. The court said that if the developers wanted to cancel the land-donation agreement, they had to return to the status quo ante--which meant, the court ruled, that Somerset had to give back the 12 acres, but the developer had to apply to have the land rezoned back to single-family.
That was March 28, 1968. A brief lull ensued, followed by the opening of a new round in November, 1969. Somerset and the developer, now known as Community Somerset Associates, signed a new accord, the developer would again donate the 12 acres, and would accept height limits of 12 stories or 125 feet in the northwest part of the tract, and 18 stories or 185 feet on the rest. Somerset, in exchange, would commit itself for five year to actively support rezoning, not to high-rise, but to a newly-created classification, R-CBD, or residential-central business district, and would endorse inclusion of the Bergdoll tract in the county's Central Business District of West Chevy Chase.
R-CBD zoning permits a combination of high-density residential and commercial uses. Armed with its new agreement, Community Somerset applied for R-CBD zoning, for a proposed 1.35 million square feet of office space, 1 million square feet of residential space, and 100,000 square feet of retail space.
In October, 1970, the County Council unanimously approved a master plan for Bethesda and Chevy Chase, in which the Bergdoll tract was in fact included in the Friendship Heights Central Business District. In other words, the developers now had a zoning request the conformed with an approved master plan, and they had the assent of the community. Usually that combination will suffice, but not this time.
The rezoning application was making its way through routine processing when, in March 1974, the County Council, under pressure from groups seeking to limit development in Friendship Heights, derailed the entire agreement.The council adopted a new Friendship Heights Sector Plan that removed the Bergdoll tract from the R-CBD area. The tract was to be residential only, with a maximum of 800 units.
The Appeals Court upheld that action three years later. Out the window went the residential-commercial mix, but the town, which had kept its part of the bargain and had not opposed the R-CBD plan, kept its parkland, and the developers still had high-rise zoning. They asked the planning board in 1978 to approve a site plan to build 681' high rise units and 85 town houses.
The Planning Board approved it, and granted waivers of the usual land-coverage and setback requirements on condition that the developers include some units for maderate-income families. Somerset sued in opposition to that arrangement, and again the case went to the Court of Appeals. The result this time was a victory for the town, and that 1978 site plan was invalidated.
Here a new element was injected into the feud. The frustrated developers, seeking to beef up their legal representation, engaged the prominent zoning firm of Linowes & Blocher to supplement Glasgow. Somerset complained to the theics committee of the Montgomery County Bar Association, alleging that Joseph Blocher, the senior partner working with the developers, had a possible conflict of interest because his firm had represented the town in an earlier stage of the dispute.
The committee ruled that there was no conflict, but said a ''disinterested member of the general public'' might think there was, and suggested that Blocher drop the cas. ''That was enough for me,'' said Blocher. ''We're out of the case.''
Following the court reversal of the approval of its 1978 site plan, Community-Somerset filed yet another, in 1981. This is the plan currently under consideration, with the first phase approved by the Planning Board on April 15, 1982.
Back to court everybody went. The Planning Board's action was contested in three lawsuits, one by Somerset, one by Chevy Chase Village, and one by the Friendship Heights Village Council.
It was the Friendship Heights case that was before Judge Fairbanks in his ruling last month. Friendship Heights was challenging not the high-rise development, but the related plan to extend the existing Friendship Boulevard, turn it to the east, and build an intersection with Wisconsin Avenue opposite Saks.
Fairbanks noted that the Friendship Heights council has opposed this plan ''every inch of the way'' since at least 1970, but it is a duly approved part of the county's master plan for the area and ''this court cannot substitute its judgment'' for that of the planning Board.
The challenges filed by Somerset and Chevy Chase, consolidated into one, were argued earlier this month before Circuit Court Judge John McAuliffe.
Both sides have indicated that they consider the court cases ''protective'' -- that is, filed and argued only to cover their tracks in case the parallel negotiations fail. If the negotiations do fail, whichever side loses when Judge McAuliffe issues his ruling can be expected to appeal.
Meanwhile, Community Somerset is in court, too, challenging the decision of the county's Tax Assessment Appeals Board to double the appraised valuation of the property, to more than $9 million. According to Ochsman, that had the effect of doubling the taxes paid by Community-Somerset ''$1,000 a week to nearly $2,000.''
What really bothers him about that, Ochsman said, is that the town of Somerset gets a share of the property tax, and Community-Somerset is the town's biggest taxpayer. ''We're financing our own opposition,'' he said.
The tax case is scheduled to be argued in the Maryland tax court on March 2. According to Titus, the tax assessment is not subject ot negotiation between town and developer because the appraisal is controlled by the county government, not by Somerset.
Ochsman said he ''laughs to keep from crying'' about what has happened. ''It's funny in a way, but it's also disastrous. The users will pay in the end, for all this nonproductive money that's been thrown away.'' The one certainty, he said, is that ''we are not going to walk away. We have played the game stright, right down the line; we are completely open, we aren't fly-by-nighters, and we aren't goint to give up what we are entitled to.''
"I need a beer," snaps Mama. "The only way I'm gonna keep from goin' crazy around here is to stay half lit." The trouble with "Mama's Family," the NBC sitcom premiering at 9 tonight on Channel 4, is that it's never quite even one-quarter lit. Half-witted, yes, but that doesn't count for much in a sea of similarly half-witted television shows.
The series, which had been scheduled to premiere last fall, grew out of the raucous, cruelly funny sketches on the old Carol Burnett show, in which Burnett played Eunice, a hard-luck, small-town loser who lived with her lazy husband, played by the great Harvey Korman, and her impossibly snippy, peevish mother, played by Vicki Lawrence. Of that cast, only Lawrence remains as a series regular, though occasional visits by Burnett and Korman have been promised.
Producer-writers Dick Clair and Jenna McMahon thus must trump up new foils for mama and concoct new excuses for the chaotic domestic acrimony into which this ill-fated household--part bad Tennessee Williams, part bad Eugene O'Neill--always dissolves. The excuses prove rather feeble: Ken Berry, likable chap but miscast as Mama's opportunistic son, Vint, who moves in with his lazy teen-age daughter and son.
Betty White, who appeared in many of the old sketches, guest stars as Eunice's sister Ellen, and Rue McClanahan has been added as "Aunt Fran," an aging study in self-delusion. On the premiere, White poses a good question: "May I ask where is dear sister Eunice?" It's explained she's away at a hardware convention with husband Ed. If the convention isn't over very soon, "Mama's Family" is going to run out of juice to stew in and just dry up.