Board of Appeals rules in favor of larger homes

by Catherine Dolinski
Staff Writer

Jan. 29, 2003

The county Board of Appeals ruled Jan. 22 against two Bethesda residents who protested that houses under construction in their neighborhood are too tall and overshadow the older homes around them.

Bradley Village residents Barbara Siegel and Carol Green filed their appeals with the board last spring, arguing the county Department of Permitting Services approved heights for houses at 7105 Exfair Road and 7104 Exeter Road in violation of the county's zoning code.

But the Board of Appeals disagreed, voting 4-1 the houses were legal.

Apart from the myriad technical issues in the case that took six hearings to resolve, board Chairman Donald Spence Jr. said the appeals raised larger questions about "mansionization" and how the county should regulate it.

A rising trend in Montgomery County as the number of available vacant land parcels dwindle, "mansionization" refers to the practice of tearing down smaller, older homes and replacing them with larger ones.

"Was this a case about mansionization? I think by its very nature it is," Spence said. "To my mind, what mansionization is, good or bad, represents the later phase of maturity in a neighborhood."

But neither Siegel nor Green wanted to discuss mansionization. Their appeals, they insisted, were solely about compliance with zoning regulations.

"We're not against houses. We're expecting tear-downs," Siegel said. "That's not the issue. But we believe we have a right to expect the zoning code will be enforced and followed."

Green agreed. "The buildings are simply too tall, under any reasonable application of the zoning code."

In their appeals, Green and Siegel argued Permitting Services should have rejected the plans for the new Exfair and Exeter homes, because the plans violated regulations on building stories and roof height.

According to the zoning code, a cellar does not count as a building story, but a basement does. In a basement, at least one-half of the clear ceiling height is above the mean level of the adjacent lot grade; one-half of the clear ceiling height of a cellar is below the adjacent lot grade.

Siegel and Green argued that the bottom floors of the homes in question are basements, making the buildings 3 1/2 stories instead of 2 1/2. But the appeals board sided with county permitting officials, who measured and classified the bottom floors as cellars.

Siegel and Green also challenged the heights approved for the houses. In Bradley Village, a roof cannot be taller than 35 feet, a height usually measured from street level. But if the home is built on a "terrace," or raised plateau, the county allows the building to be 35 feet tall on top of the elevated terrace beneath it. The roofs of both houses in the case are taller than 35 feet from the street because Permitting Services found both rested on terraces.

Siegel argued the terrace beneath the Exfair house was removed before construction to create an accessible garage, so it should not count.

"The zoning code is not something you are allowed to exceed just because it's more convenient to have a street-level garage," she said.

But the board defined a terrace only as a "pre-construction condition," consistent with the land features of adjacent lots. That, they said, includes the terrace on the Exfair property.

"The house basically sits on a plateau," said attorney Erica Leatham, representing Crescendo Homes, the developer who built the house on Exfair. "Excavating for a driveway doesn't change that."

In the case of the Exeter property, Green argued not enough of the building sits directly on a terrace to qualify for an exception to the height limit. Plus, she said, the rise in lot elevation is too slight to qualify as a "terrace" anyway.

But the board ruled there was indeed a terrace on the Exeter lot of about three feet, and that enough of the building rested on it to qualify for the exception.

Susan Scala-Demby, manager of Permitting Services, said she was gratified by the ruling, which "provides some direction for defining a policy that will make it easier and more consistent to interpret the terrace credit as it appears in the zoning code."

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