Montgomery County District Judge Patricia Mitchell split the Halloween pumpkin nearly down the middle Tuesday.
She ruled that Silver Spring real estate agent Donna Kerr’s annual backyard “Haunted Garden” — which county officials sought to block because of concerns over traffic, pedestrian safety and zoning — can go forward for two nights later this month instead of the scheduled five.
“The concerns on both sides are understandable,” Mitchell said after listening to nearly three hours of testimony.
The county argued that the Haunted Garden was not a neighborhood celebration but a business promotion designed to boost Kerry’s residential real estate firm, a violation of the zoning code.
James Savage, an assistant county attorney, pointed to fliers Kerr sent to an estimated 12,000 households in the surrounding Zip code and notices promoting the event on her company Web site.
Kerr acknowledged in testimony Tuesday that she paid company employees to help set up and run the displays.
Since Kerr created the event in 2010, an estimated 300 people a night have turned out.
But Mitchell said that although there was “some intimation” of business activity, the county failed to meet its burden of proof that the Haunted Garden was a commercial venture.
Neighbors and county officials also expressed concern about parking and safety issues posed by the narrow streets, lack of sidewalks and poor lighting in the section of the Seven Oaks community where Kerr lives.
With young children darting in and out of the street, “it’s an accident waiting to happen,” neighbor Jack Detzner said.
But the county could cite no injury in the three-year history of the Haunted Garden.
In the end, Mitchell made her finding based not on zoning or public safety, but on the level of nuisance she believed that Kerr’s celebration posed for the neighborhood.
She essentially decided that residents could tolerate two nights of disruption, and she dissolved the temporary restraining order she granted to the county on Friday. Mitchell blocked Kerr from holding the event Oct. 19, 27 and 31 but gave the go-ahead to Oct. 25 and 26.
County officials failed to see any Solomonic wisdom in Mitchell’s ruling.
“I’m trying to understand it,” said Diane Jones, the county’s director of permitting services, which enforces zoning laws. “I am concerned. I think if public safety is a concern for five nights, it’s a concern for two as well.”
She said she worried that the recent burst of publicity will only heighten interest in the event and increase the public-safety hazards the county was trying to mitigate.
“I am concerned that the confusing nature of this ruling may lead to worse consequences,” Jones said.
She added that she was uncertain whether the county will appeal.
Kerr also did not exclude the possibility of an appeal. But she expressed satisfaction with Mitchell’s ruling.
“I feel like she made the right call,” she said. “I’m just happy we got to present our side.”