Montgomery County's top planning official and residents who live near an oversized Silver Spring office building urged the county Appeals Board last week to require its owners to tear down its penthouse and top floor.
Planning Board Chairman Norman L. Christeller demanded that the board reject the request from the owner, Permanent Financial Corp., to let the nearly finished building at 801 Wayne Ave. remain intact. Christeller said that its intentionally "fuzzy" building plans obscured illegal demensions.
"The interests of neighboring property owners would be sorely damaged by permitting this monstrosity to pollute their visual environment," he said. "We are not talking about minor aesthetic enhancement. We are talking about gross violations."
By the time county officials ordered Taro Construction Co. to stop construction in May, the office building was nearly finished--18 feet taller and with 26 percent more floor space than zoning laws allow. Its inverted-pyramid design obscures St. Michael's Church next door and intrudes on homes across the street, neighbors testified.
Throughout the week, Joseph P. Blocher, the owners' attorney, hammered away at the fact that the county Department of Environmental Protection had approved the building plans, had inspected the site, and had not discovered that the building exceeded legal dimensions until it was built and until there were repeated complaints from area residents and, finally, from Maryland-National Capital Park and Planning Commission officials.
The building's neighbors also blamed the DEP for failing to catch discrepencies in architectural plans for the building and, especially, for sloughing off their early concerns that the office building exceeded height limits and extended too far to the edge of the lot.
Appeals Board Chairman Joseph E. O'Brien Jr. said his panel would debate the legal issue of "self-created hardship" in deciding whether to allow the office building to stand. The board routinely grants variances--special permission to build beyond approved plans or legal dimensions--but usually for minor construction miscalculations or for special circumstances such as accessways for the handicapped, officials said.
The board's decision is expected in September.
William W. Merriam, a senior vice president for Permanent Financial Corp., testified that $2.4 million has been invested in the office project so far. John B. Snyder, an independent consultant who testified for the owners, said it would cost $110,000 to tear down the fourth floor and penthouse.
James M. Hicks, chief of DEP's Construction Code Enforcement Department, which approved the designs, admitted that his employes accepted plans with "obvious discrepencies," failing to detect that the building was not set back from the sidewalk far enough, that it had too much floor area, and that it was too high. Hicks added that they also did not detect the problems later when they approved revised building plans and when they inspected the building.
But Hicks also testified that the building plans had "conflicts within themselves" that could not have been simple mistakes. He said certain details of the plans appeared to indicate an attempt to obscure features that were not in accordance with county law.
Hicks pointed out that whoever produced the plans listed the building height as 43 feet--the legal limit of 35 feet plus another eight feet allowable for a mechanical rooftop room. But he said the building was actually 53 feet tall.
"He knew what he was doing," Hicks said.
"This issuance of building permits is not a game in which an applicant can try to slip one over on the government, then later say 'I gotcha,' when he is found to have violated the development standards," Christeller said. "He is expected to submit plans that conform to the applicable regulations, and he is expected to build according to the plans."
Christeller said laws don't allow developers, in this case, a partnership between Permanent Financial Corp. and Thomas Taro, head of Taro Construction Co., "to trap DEP into approving . . . errors and then claim they didn't create the errors.
Blocher did not present any witnesses who had designed or constructed the office building or filled in the building permit application. Therefore, there were no witnesses to question about whether anyone intentionally attempted to decieve DEP officials.
No witness testified that the plans or application for the building permit met legal standards.
In earlier hearings, Hicks said DEP interpreted the height law's allowance for eight feet of "noninhabitable space" to mean that the fourth floor could remain because it was to be used as offices rather than residences.
Christeller said "noninhabitable space" meant mechanical rooms such as elevator sheds, and accused Blocher of trying to confuse the board. He urged the board to examine the intent county officials expressed when they passed the zoning laws in the 1960s.
But Blocher noted that the planning board recently asked the County Council to change the wording of that law and, although Christeller asserted that the law was clear, he admitted that the planning board asked the county council to clarify the law because members thought "there was some confusion."
Blocher, emphasising a concession by Hicks that the height limit could be changed if the building had a two-sloped, mansard-style roof, argued that the fifth-level penthouse was actually a mansard roof. He noted it has three sloping sides, and presented as an expert witness William Kominus, a member of his law firm who has an architecture degree. Kominus said he considered the penthouse to be a mansard roof.
Christeller and Stephen P. Elmandorf, an assistant state's attorney opposing the owners' appeal of the stop-work order and the accompanying request for variances, argued that the penthouse was not a mansard roof. Elmandorf noted that the penthouse had only three sloping sides, not four, and that they were single slopes--different from the design Francois Mansard, a French architect, developed to circumvent height limits in 17th century Parisian laws.
The mansard roof tilts walls of the top floor inward, making them actually part of the roof, technically converting the whole floor into an attic.
"Mr. Blocher has pointed out to you that somebody back in the 17th century figured out a way to get around the zoning laws, and apparently he thinks nobody has been smart enough to close that loophole in the past three centuries," Christeller said. He said the question of roof style was irrelevant because even the fourth floor on which the penthouse stood was above county height limits.
Nancy M. Floreen, an attorney representing representing 15 Silver Spring residents and two local civic groups, told the board that she and her husband, David O. Stewart, specifically checked how the blocks around Cedar Street and Wayne Avenue were zoned before they decided to move there. "It made a big difference in our decision to buy," she told the board.
The Rev. Joseph W. Hartman, pastor of St. Michael's Church, testified that the office building's "rather bizarre, modern design" overshadows the church, which is set back on its property, and, with the office building extending further with ascending levels, "blocks off the view of the church."
The building's impact on the neighborhood would be "incalculable," said Donald H. Vandrey, a Wayne Avenue resident. He said traffic would pick up around three nearby schools, and that its shape already imposed an influence of "commercial creep" on the residential area.
He said residents who complained about the building "long before construction began" stood to suffer if the board decided to give the developer a break.
"I have absolutely no privacy left," said Margaret Ahrens, who testified she lives directly across Cedar Street from the building. "I look out my window, and I look right into the building's windows. . . . I don't see anything but that building."
Aherns presented a petition with 220 signatures that stated, "We insist Permanent Financial Corp. be required to comply in full" with the standard zoning laws. Christeller said it was "rather unusual" for him to appear personally in a zoning appeals case, but he said he wanted to express for the other planning board members "our very great concern that such blatant violations not be permitted."