Owners of a newly constructed Silver Spring office building went to court Tuesday to keep from having to tear down the structure's top levels because Montgomery County agencies say it exceeds size limits.

Lawyers for Permanent Financial Corp., the owner of the structure at 801 Wayne Ave., went to Circuit Court to appeal the county Appeals Board's finding on Sept. 30 that the $2.4 million structure was higher and had more floor space than laws allow for buildings that abut residential areas.

Attorney Joseph P. Blocher registered a notice of appeal with the court. Papers bearing his arguments that the building should stand intact with its penthouse and fourth floor will be filed next week, he said.

The owners also are seeking an injunction that would lift a stop-work order that the county Department of Environmental Protection placed on the building May 4, just as crews from Taro Construction Co. were putting the finishing touches on the inverted-pyramid-style office building.

Neighbors of the building had complained for months to DEP officials and, when officials finally investigated the complaints at the prompting of Norman L. Christeller, county planning board chairman and head of the Maryland-National Capital Park and Planning Commission, they found that the building was 18 feet taller and had 26 percent more floor space than was legal.

At appeals board hearings last summer, Blocher argued on a technicality that the height law was not violated because no one would live in the office building. He noted that the law exempted extra building height used for "uninhabitable space."

In asking the board for special, after-the-fact variances to keep features that went beyond legal limits, Blocher said the owners were put into hardship because they already had built the structure when DEP declared it out of conformance. He noted that DEP had approved the plans and inspected the building during its construction, and that officials said nothing about any violations then.

James M. Hicks, chief of DEP's construction code enforcement branch, admitted that county employes failed to detect size discrepancies when they approved building permits and made site inspections. But Hicks also told the appeals board that the submitted plans showed attempts to hide illegal dimensions, including its actual 53-foot height.

In their six-page decision, appeals board members rejected the owners' arguments, deciding that "uninhabitable space" meant rooftop mechanical rooms and not office space, that the owner's hardship was "self-created," and stated that any fault on the county's part did not alleviate the owners' responsibility to make sure their building complied with the law.