Montgomery County planners voted last week to require three new businesses in the county's only auto sales park to adhere to 17-year-old covenants, even though attorneys say the old rules are legally void.
"The legal office advised that a rezoning of the area several years ago voided the need for the covenants," Rob Bushnell of the county planning staff said this week. "But the planning board saw the covenants as a promise to neighbors that should be kept."
Planners say that the unusual case raised questions about the county board's responsibility for agreements made almost two decades ago that had been all but forgotten by those associated with the sprawling complex of nine automotive dealerships outside the Beltway.
The Montgomery Auto Sales Park, on 52 acres on either side of Briggs Chaney Road in Fairland, was created in the late 1960s as a place where car dealers could set up shop away from the increasing congestion of suburbia, according to dealers at the site.
"It was difficult then -- even more so now -- to get property zoned for auto dealerships because people saw them as being noisy and brightly lit," said Herbert Gordon, whose Herb Gordon Auto World Inc. runs four car dealerships in the park. "It was a very innovative, entrepreneurial decision to take one area and set it aside for auto dealerships. There are strips of dealerships, like near Tysons Corner, but this park was designed specifically for us."
The land chosen by a handful of dealers was the site of an industrially zoned gravel company near a sparsely populated subdivision of older single-family homes. But it took several public hearings before the neighbors could voice their fears and concerns, remembers Gordon, one of the founders of the park.
He said that the result was a written agreement with the neighbors that created a list of covenants -- most of them concerning landscaping -- and a review board to oversee their implementation.
In the beginning, the dealers submitted their plans to the review board, which made suggestions regarding setbacks and the best trees for screening, he said. But by the mid-1970s, the park had been rezoned from industrial to commercial and the review board had disappeared, Gordon said.
Bushnell said that when the park was rezoned to commercial, new dealerships had to submit plans to the county board, which requires many of the same landscaping concessions that were detailed in the covenants.
But citizens in the area took an opportunity to dust off the old covenants when several new proposals to build in the auto park were filed with the county this spring.
"These covenants are more restrictive than the C3 commercial zone," said Tom Faringer, past president of the local Stonecrest/Woodcrest Civic Association. "This park was sold to the residents on the basis that it would be made a park with screening, and we want the county to keep its promise."
Faringer said neighbors disagree with county attorneys who contend the covenants are void.
"They may have reassigned the zone, but that in no way voided covenants that went with the land," said Faringer, who added that he wanted to stress that this disagreement with the county can be resolved amicably.
Neighbors went before the planning board last week, asking that applications for three new auto-related businesses on a 1.3-acre tract in the park be subject to the original covenants.
"The legal office advised that the board was not a party to the covenant agreement, that it was private," Bushnell said. "They said that, if the neighbors felt aggrieved, their recourse was through the courts."
However, the board approved the three businesses -- a muffler shop, service center and tire store -- on the condition that the covenants be met, he said.
"We are very grateful to the board for recognizing the covenants," Faringer said. "In the past years, there were six or seven properties in the park developed with no regard to the covenants -- totally ignored. It's good to see a shift back to the original intent."
In the meantime, Faringer concedes that the park is much like the one promised to residents 20 years ago. The dealerships are set back from the road and separated by wide strips of grass, evergreen trees and well-trimmed bushes.
"Even though the covenants have pretty much disappeared, most of the dealers here have made a good-faith effort to keep the park desirable," Gordon said. "If you drive down Rockville Pike, you'll see nothing but concrete. Here, people keep their grass cut and their bushes trimmed."
And Gordon noted that it is in the dealers' best interest to keep the neighbors and county happy: It is becoming more and more difficult to find available land for automobile dealerships in the suburban area.
"I hear complaints all the time from dealers about not being able to get the approval for new lots," said Gerard N. Murphy, president of the D.C. area's Automotive Trade Association. "The Montgomery Auto Sales Park is pretty unique, and it has been great for the dealers."