The case of a Chevy Chase homeowner who built his back fence in the path of a light-rail Purple Line proposed for the Maryland suburbs might be headed to the state’s highest court.
A final ruling in the fence fight could affect dozens of Chevy Chase and Bethesda residents who live along the rail alignment. It also could complicate the state’s Purple Line plans and increase the property-acquisition costs of a project already being scrutinized over its $2.4 billion price tag.
Montgomery County attorneys have appealed a lower court’s ruling that found that Ajay Bhatt, a vocal opponent of the light-rail project, didn’t violate county law in 2013 when he had his fence replaced 14 feet beyond his property line, on the shoulder of a popular recreational trail. Bhatt is president of Friends of the Capital Crescent Trail, a citizens group that has filed a federal lawsuit against the state plan to run trains along the trail as part of a 16-mile Purple Line connecting Montgomery and Prince George’s counties.
The county has asked the Maryland Court of Appeals to review a Circuit Court judge’s dismissal of a $500 citation alleging that Bhatt built the fence on publicly owned land preserved for the transitway.
The ruling, by Montgomery Circuit Judge Gary E. Bair, found that Bhatt could prove that previous owners of his home had taken “adverse possession” of a 14-foot-wide strip along the trail’s shoulder by fencing it in since 1960. After openly incorporating that strip into the back yard for more than 20 years, the judge found, the previous owners legally took possession of it from the freight railroad that owned the land before the county bought it.
The county also didn’t prove that the land meets the legal definition of a public “right-of-way,” which a citation would require, Bair ruled.
A final court decision in Bhatt’s favor could further complicate plans to build the light-rail line because the state or county could be forced to legally condemn and buy private land that government officials have long considered to be county-owned.
The appeals court is expected to decide in the next couple of months whether it will consider the case or let the Circuit Court ruling in Bhatt’s favor stand.
James Savage, associate county attorney, said the county is appealing the case even as Maryland Gov. Larry Hogan (R) considers whether to go ahead with a Purple Line’s construction because the county assumes the project will be built at some point. Hogan is expected to announce a decision by mid-May, after reviewing bidders’ costcutting proposals.
The Circuit Court “ruling encourages people on the Purple Line [alignment] who might have objections to the Purple Line going through to create problems with encroachments,” Savage said.
The county has asked the appeals court to use Bhatt’s case to clarify state law regarding property rights for land previously owned by railroads. Nationwide, more than 21,000 miles of out-of-service freight rail corridors have been converted to recreational trails under a 1983 “railbanking” provision of the federal trails law, according to the Rails-to-Trails Conservancy.
Montgomery bought the land behind Bhatt’s home from the B&O Railroad in 1988 for $10 million to preserve it for a trail and future transitway between downtown Bethesda and Silver Spring, according to the conservancy and county officials. It eventually became part of the state’s Purple Line proposal.
Now that the Purple Line and a light-rail Red Line planned for Baltimore are being designed, the county argued in its appeals petition, state trial courts “will need direction” when considering the property rights of adjacent landowners who have encroached on the rail alignments.
Without that, the county said, “trial courts throughout the state are likely to render inconsistent decisions that could stall the construction of the Red and Purple lines.”
The Circuit Court’s decision in Bhatt’s case overruled that of a District Court judge, who in January 2014 found Bhatt guilty of installing a fence beyond private property and gave him 30 days to remove it.
But Jeffrey Seaman, a Bethesda attorney for Bhatt, said the fence doesn’t need further review.
“This case doesn’t rise to the level of significant public interest that would, under Maryland law, suggest that the Court of Appeals should take the case,” Seaman said. He said it was only the county’s “speculation” that other property owners along the trail would try to use Bhatt’s argument.
There are about 25 “encroachments” on the trail land intended for a Purple Line, including sheds, garages, retaining walls and decks, according to the Maryland Transit Administration. MTA officials have said that figure does not include fences.
Longtime residents say that the freight railroad didn’t mind them using the land adjacent to the track bed and that the county rarely, if ever, enforced its right-of-way ordinance against building there.
If the court accepts the county’s petition, oral arguments probably would be scheduled for the fall, a court official said.