Wednesday, December 11, 2013 5:09 AM
Published on: Thursday, July 25, 2013
By Holden Wilen
SILVER SPRING – The Montgomery County Planning Board voted unanimously to issue addresses to 11 landowners of the “Farm Road” community in Sandy Spring at its July 18 meeting, but a surveying expert for the community is questioning the board’s decision to continue not recognizing the historic road as a legal right-of-way.
Carol Rubin, general counsel for the planning board, which is a part of the Maryland-National Park and Planning Commission, said the commission has never suggested the road does not physically exist but questions whether there is legal access to the road over other properties. Rubin said there is a difference between physical access and legal access, and she compared Farm Road to a driveway.
“My neighbor has a driveway. I don’t; I park on the street,” Rubin said. “On occasion, I would love to be able to park in a driveway. It would be easier for me to get to my house, and I could avoid the trash trucks and concern about damage, so I want to park in my neighbor’s driveway. Just because my neighbor has a driveway, it is physically there, that does not necessarily mean I have the legal right or permission to use it.”
In the end, Rubin and planning department staff developed an access route to Brooke Road, the nearest public road to the properties. The access route involves the use of affidavits as permission to cross the properties, with the understanding that homeowners involved as plaintiffs in pending litigation concerning addresses and access by way of Farm Road would not object to providing access over their properties. Rubin said she also used a confirmation of declaration of title by one of the property owners in which the owner renounced ownership to their section of Farm Road.
Joel Leininger, a licensed professional surveyor whom the Farm Road property owners asked to review the planning department’s staff report, said at the meeting he questions the process staff are using to create an access route for addresses. Instead, he said it would be simpler for the commission to recognize Farm Road as a prescriptive easement since it intersects with Brooke Road.
“This easement is not a close call,” Leininger said. “There is overwhelming evidence of such use, and as important there is no evidence to the contrary, except various denials through the years by the Park and Planning staff. We have yet to see any basis for these denials. The commission has taken the position that property owners have challenged the existence of the prescriptive easement; however, I have not seen any evidence of this.”
Casey Anderson, one of the board commissioners, said nothing would make him happier than creating a road that provides public access to the properties, but M-NCPPC does not have the legal power to create real property interests.
“I don’t want people walking out of here thinking there was more that we could have done if we really wanted to and later on lead [the property owners] to believe this was going to clear a path to develop their properties,” Anderson said.
Despite the claims from board staff that M-NCPPC cannot create real property, Steve Kanstoroom, an advocate for the Farm Road property owners, said he does not recognize a problem in recognizing the road and an easement exists. It would be helpful to the community, he said, if the agency recognizes Farm Road in order to avoid future legal challenges.
Kanstoroom also said Montgomery County Public Schools and the county’s permitting department each recognized the road, so there is a basis for the agency to do so as well.
Leininger said he is asking M-NCPPC not to create a property interest, but to simply recognize the road as a prescriptive easement. Prescriptive easements underpin most old public roads in existence before 1900 in Maryland, he said, including Brooke Road.
In the end, the board voted unanimously to accept staff’s decision to issue addresses without recognizing Farm Road. One of the property owners, Williams Rounds, 72, said receiving his address is a wonderful feeling, but it does not take the pain he has had to live with. Additionally, he said he is worried about future problems in getting permits to build on his property, as well as possible legal challenges to his new address.
“There are many loopholes we can still have,” Rounds said. “Although the meeting was sort of successful, you can still have loopholes.”
County executive Ike Leggett said he is glad the property owners received addresses, and he is committed to working with the owners as they move forward.
Del. Aisha Braveboy (D-District 25), chair of the Legislative Black Caucus of Maryland, which has been advocating for the property owners, said she met with Rubin, Leggett, Sen. Karen Montgomery (D-District 14), Councilmembers Nancy Navarro and Marc Elrich, and planning board Commissioner Marye Wells-Harley the day before the meeting to discuss issues related to the Farm Road property owners.
Braveboy said the group discussed organizing a charrette process with the Farm Road community to determine an alignment of Farm Road. Once the community determines an alignment, she said the county agreed with its department of transportation to develop a legal description of the road to put in an official deed.
“We are very happy that the county has seen its role in resolving and moving this issue along for the residents of Farm Road,” Braveboy said. “The Legislative Black Caucus will continue to play the role of advocate and we will assist the county with any issues that might come up at the state level.”