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"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." |
