July 8, 2005

Land use general manager Charles Baker erred when he ordered the developer of the Paladin Club condominium complex to rebuild a controversial stone wall, the Board of Adjustment ruled.

"I don't think the record supports that decision," board member Francis McCann said before the panel voted four-to-one to grant an appeal of the order by Edgewood Village l.l.c., a Pettinaro family firm.

The issue turned on what chairman Christopher Koyste -- the only member who sided with Baker -- acknowledged was an apparently arbitrary reversal of what lawyer William Manning said Edgewood Village officials regarded as a favorable 'final decision' in the matter.

When a party to a land-use issue "gets a reversal [of a decision] one month later, that is not an 'orderly procedure'," member Michael Ciabattoni said.

Baker said after the board meeting on Jul. 7  that he "needs to evaluate the situation" before deciding whether the department will appeal the board's ruling to Superior Court. Meanwhile, he said, Edgewood Village's expletory plan to build townhouses on the hillside behind the wall will remain pending.

It is uncertain what will happen to the stones the firm had removed from the wall during the Presidents Day holiday weekend in 2004. It had agreed to store them pending the outcome of proceedings about what was alleged to be an improper action. Manning told the board during the hearing which preceded its vote that the firm "agrees the wall is attractive [and] will retain the [approximately] 800 feet that remain."

Another possible source of an appeal is the Friends of Paladin organization, a civic group that was formed during the 16-months of controversy over the wall. Richard Abbott, its lawyer, said it would have standing before the court "as an aggrieved party" to the decision.

During the hearing, Koyste refused to accept a challenge from Abbott to its jurisdiction in the matter. He said after the meeting that the Unified Development Code "clearly states" that the Board of Adjustment judges orders arising from zoning matters. But, he said, the Planning Board is the panel to which appeals from development subdivision orders should be taken.

While Manning argued that the wall lacks historical significance and therefore did not merit protection. "No expert submitted an opinion to the contrary" during Historic Review Board and department consideration of the matter, he said. Even the department's staff expert, Christine Quinn, "made the conclusions that the wall is not historically significant," he said.

Lawyer Mary Jacobson, who represented Baker and the department at the hearing, said that the Historic Review Board is made up of persons who have expertise in the field of historic preservation. "This is not a lay board; it is people who have broad-based knowledge of historical interest," she said. "The board has the power to accept or not accept recommendations of its staff. The general manager can accept or not accept the board's recommendation."

Prior to the Board of Adjustment vote, McCann noted that the Historic Review Board did not cite any of the criteria specified in the code as the basis for its recommendation. Koyste said, however, that there were "dueling opinions" about the wall's historic significance before Baker when he made his ruling and "there was enough there for him to make his conclusion."

Throughout the hearing, both sides trod carefully around the issue that could be telling. Manning came close to airing it during his closing summary when he said: "The reason we're here tonight is there is a development proposal made and people don't like it. ... Land-use decisions are political."

He said Edgewood Village relied on a letter dated Dec. 29, 2004, from Michael Bennett and Stacey McNabb, of the department's planning staff, concerning several elements involved with the development plan. Included, he said, was a specific statement to the effect that the wall had been found to be not historic.

Jacobson argued, however, that that was not a 'final decision'. Only the general manager has the authority to make that, she said.

Manning said that, in January, 2005, County Councilman John Cartier wrote to Baker on behalf of the Friends organization asking for the decision to be "reconsidered." Baker issued his decision and restoration order in February.

Jacobson said that Cartier's letter did not prompt Baker's decision, but that a January letter from lawyer Wendy Danner, who then represented Edgewood Village, inquiring whether the issue of the wall was settled "triggered the decision." Danner has since left private practice and is now County Council's attorney.

Unmentioned during the hearing or board discussion leading up to the vote was the matter of timing. The Bennett-McNabb letter was written in the closing days of the previous administration of County Executive Thomas Gordon. Baker ruled after the present Christopher Coons administration took office. Gregory Pettinaro, who attended the hearing but did not speak, is known to be a friend and political supporter of Gordon.

Manning, however, hinted in that direction when, during his closing summary, he said the Unified Development Code had been carefully written to lay down rules and procedures for making land-use decisions to remove them from the realm of "pressures and emotions."

2005. All rights reserved.

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