Greater Greater Washington

Townhouse opponents get MoCo to build unneeded park

After years of fighting between residents, a developer, and Montgomery College, Montgomery County's parks department will will turn an abandoned art school in Wheaton into a park. While it's good for neighbors who didn't want houses built there instead, it shows how indifferent the county can be to its own goals for walkable communities, providing more housing, and land preservation.


Soon to be Montgomery's newest park. Photo by the author.

Montgomery Parks recently acquired the former Maryland College of Art and Design at Georgia Avenue and Evans Drive in Carroll Knolls, a community of modest post-war homes less than a mile from the Wheaton and Forest Glen Metro stations.

They bought the 2.47-acre property for $1.14 million, well below its original asking price of $2 million, with plans to demolish the building and add 1.2 acres the county already owns to form the future Carroll Knolls Local Park, a construction date for which hasn't been set.

Neighbors acknowledge that the area already has a number of parks, but argue that they're either too far or require crossing busy Georgia Avenue. "We are relieved that we will not have to cross Georgia Avenue, a six-lane state highway, without a pedestrian bridge, a crosswalk, nor an intersection light to access nearby parkland," said Beverly Sobel, head of community group Green Space on Georgia, in a press release from Montgomery Parks.

Traffic On Georgia Avenue
Residents say Georgia Avenue is too dangerous to cross on foot.

The new park is across Georgia Avenue from Evans Parkway Park, a four-block-long
green space that's currently being renovated and expanded, but to some that's not enough.

It's "not realistic for parents to ask their kids to cross Georgia Avenue to go to a park," said County Councilmember Marc Elrich at a community meeting in 2009.

Montgomery Parks staff agreed, calling Georgia Avenue a "de facto river of traffic that blocks pedestrian access" in their recommendations to turn the MCAD site into a park. They drew a map of the area with 1/4-mile circles around each park to show what was within a short walk, but cut them off at Georgia Avenue, rendering Carroll Knolls parkless.

Map of Park "Service Areas" in Carroll Knolls/McKenney Hills
Montgomery Parks map showing areas within walking distance to parks.
MCAD site is outlined in red.

However, one could argue that this conclusion was premature. There are already stoplights and crosswalks a block north and two blocks south of Evans Parkway Park. Making those crossings safer, expanding the sidewalks on Georgia Avenue, and building new sidewalks on the side streets could have provided a nicer and safer not only to the park, but to other amenities in the area.

So why didn't neighbors push for those improvements instead? Green Space on Georgia's homepage makes it clear: "Our current efforts are in opposition to the proposed development of townhouses on the current site of The School of Art + Design at Montgomery College."

After absorbing MCAD in 2005, Montgomery College gave the property to the Montgomery College Foundation, which raises money for the school. In 2007, they had a contract to sell it to developer Kaz Brothers, who successfully petitioned the County Council to rezone the property to allow townhouses.

Mews, Georgia Village (Looking South)
Townhouses adjacent to the future Carroll Knolls Local Park.

Residents balked, arguing that townhouses violated Carroll Knolls' 1948 covenants, which allowed only single-family homes in the neighborhood. They formed Green Space on Georgia and applied to have the property become a park through Legacy Open Space, a county program that preserves places with historic, cultural and natural significance. The Planning Board rejected it, saying that the cost would be too high.

Kaz Development sued the neighbors, arguing that the now-derelict school already invalidated the covenant; though the Montgomery County Circuit Court ruled in their favor, the neighbors appealed and the decision was reversed in the Maryland Court of Appeals. A second application to Legacy Open Space was approved last year.

The creation of Carroll Knolls Park is a triumph of grassroots campaigning, but it contradicts many of Montgomery County's stated goals and policies. The county wants to promote walking in and around downtown Wheaton but missed an opportunity make it easier to cross its main street. County Executive Ike Leggett talks about facing "unprecedented budget challenges," but nixed an opportunity for needed tax revenue.

Montgomery Parks' strategic vision for the county's park system calls for prioritizing existing facilities, but spent millions of dollars to build a new park across from a park they're already expanding. The county placed a third of its land in an Agricultural Reserve, but creates more pressure to develop it by not building in the rest of the county.

And Carroll Knolls isn't the only neighborhood doing this. White Oak residents opposed to an affordable housing development asked the county to create a nature preserve instead. In South Silver Spring, neighbors who don't want their views blocked by a proposed apartment building are calling for a park as well. And residents in East Silver Spring are preemptively fighting the redevelopment of the old police station, saying it should become a community garden and arts center.

That's not to say that parks aren't necessary, or that the best solution for every vacant lot is private development. But Montgomery County is faced with a significant housing shortage, with a need for as many as 108,000 new homes in the next 20 years. We simply can't afford to turn every unwanted development site, especially those in close-in communities, into a park.

A planner and architect by training, Dan Reed also writes his own blog, Just Up the Pike, and serves as the Land Use Chair for the Action Committee for Transit. He lives in downtown Silver Spring. 

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Residents balked, arguing that townhouses violated Carroll Knolls' 1948 covenants, which allowed only single-family homes in the neighborhood.

Oh good, HOA's are now in charge of planning and zoning on properties adjacent to them.

by drumz on Nov 21, 2012 2:05 pm • linkreport

It's absurd that the courts allow rules written by a long-dead real estate developer to override land use decisions made by the elected representatives of the people.

by Ben Ross on Nov 21, 2012 2:07 pm • linkreport

I think if this site were closer to the Wheaton or Forest Glen Metro station's i'd be more upset by this, but the property is not approximate to either, and I am actually looking forward to seeing a landscaped green area along this section of Georgia Avenue.

Yes the County does need additional housing, but why doesn't the developer propose something reasonable like small lot single family detached houses instead of townhouses. That slight design difference may have led this to a different outcome. Using the argument that the new townhomes would bring tax revenue is misleading too. It would be new revenue, but would also come with new demands on county services. Generally residential development does not pay for its own way in services required, unless we're talking about the very wealthy, or very high urban density. The focus of the redevelopment is rightly put on property with better proximity to Metro such as in Wheaton itself, rather than in existing neighborhoods with units that are not at the scale of the existing community.

For the record, I disagree with the park request in DT Silver Spring (where I actually live) because that IS a more urban area and should be multi-family housing.

by Gull on Nov 21, 2012 2:48 pm • linkreport

Old covenants in many places said you couldn't sell a home to Jews, Irishmen, or Negroes. Should we listen to that as well?

Like drumz said, it's silly to let planning be run by HOAs. I thought that's what the planning department was for.

by Geoffrey Hatchard on Nov 21, 2012 2:49 pm • linkreport

It depends on the state, but sometimes you can convince a state court to invalidate a restrictive covenant:

-- If the neighborhood has fundamentally changed to make the restriction unduly burdensome
-- If other owners under the covenant have violated the terms and haven't faced negative consequences
-- If enforcing the covenant would violate public policy, e.g. racial restrictions
-- If the state has a law forcing covenants to expire after a certain number of years.

I'll assume none of these applied in this case. Nonetheless, you should never assume your covenant will last forever.

by Eric Fidler on Nov 21, 2012 3:17 pm • linkreport

If Dan's account is correct, then--broadly speaking--the free market forces that usually favor smart growth won, over the forces of governmental zoning that often thwart density (though in this case local officials supported growth).

@drumz. In this case, it does not appear that the HOA was in charge of zoning, but rather a deal was struck long ago and the courts decided that there is no legal basis to strike that deal.

@Ben Ross: You are not really correct to say that the long-dead realtors are over-riding elected officials. What is really happening is that some participants in an old contract who wanted to enforce its terms, got beat the other participants in that contract who wanted to ignore the terms.

The buyers of the tract are still free to pay off all the other land owners for the value of the covenants, and the
local government could still condemn the covenants and compensate the property owners for the adverse impact on property values of the development (Recall that Kelo has not been over-ridden in Md). The developers and elected representatives and officials for whom they work evidently decided it's not worth it.
Of course, if your point is that old provisions in land titles ought not be construed as property in a case like this, when elected officials have a better use and prefer not to pay, then you are propounding a view that--if widely accepted--would ensure eventual development of lands preserved by conservation easements, and the rejection of many other covenants as well.

@Geoffrey Hatchard. The fact that some covenants and contracts have been voided as offensive to public policy does not logically mean that all contracts and covenants are subject to the whims of a particular government. We are subject to many decisions made by people who are long dead, such as the locations of roads and buildings that were placed where they are 100 years ago.

@Eric Fiddler. You are correct that one should not assume that a covenant will last forever.

by JimTitus on Nov 21, 2012 4:22 pm • linkreport

Jim - Treating this kind of covenant as a private contract raises form ahead of content. In practice, it is a governing document that overrides the property rights of homeowners. It is a complete fiction to say that the homeowners have agreed to this contract, because anyone who wants to move into the community has no choice about the terms. It was imposed by the developer and is subsequently unamendable, because the needed unanimity (sometimes a smaller, but still practically unobtainable majority) is not feasibly obtained once the property has been subdivided.

by Ben Ross on Nov 21, 2012 4:43 pm • linkreport

@Gull

I agree that putting a park here isn't as big a deal as the one in South Silver Spring. That said, we're not going to solve all of our housing needs with high-rise buildings in downtown Silver Spring/Wheaton/White Flint/etc. There will be a demand for reasonably priced family housing as well, and in an area like Wheaton where new SFHs can sell for over $700k (like the ones on University Boulevard near Wheaton Plaza) that often means townhouses.

Those aren't going to get built in downtown areas - the land is too expensive to justify them - so they'll have to go in places like Carroll Knolls or the Chelsea School site in Silver Spring.

And even if new housing isn't going to generate a lot of tax revenue, a park won't generate any revenue at all and, in fact, will eat up more of it - especially when there's another park across the street that the county recently bought more land to expand it and will pay to renovate as well.

by dan reed! on Nov 21, 2012 6:01 pm • linkreport

Dan highlights a prevalent attitude here in Montgomery County:

We praise progressive values of urbanism and affordability, but only if they happen in other neighborhoods. For better or for worse, self-interest still rules at the end of the day.

by Wheaton Resident on Nov 21, 2012 11:33 pm • linkreport

Parks are good. Open space is good. There is no housing shortage in Montgomery County. There are plenty of houses for sale. The County Council is approving every development application that comes before it for development along the Rockville Pike corridor, turning this area into a city. The infrastructure like roads, schools, and electrical distribution can't keep up. The quality of life of existing residents is declining because of this over-development.

by Marc Brenman on Nov 22, 2012 9:38 am • linkreport

Marc,

Houses for sale =\= housing is affordable.

by Drumz on Nov 22, 2012 11:19 am • linkreport

Houses for sale =\= housing is affordable.

Guess it depends on the definition of "affordable". Okay, it's a bit glib, but if those houses are selling, then they're affordable.

Obviously that's tangential to the question of whether we should provide subsidies to allow folks to buy homes who otherwise wouldn't be able to.

by oboe on Nov 22, 2012 12:19 pm • linkreport

Happy Thanksgiving Bem. I agree that sometimes contracts have terms that buyers don't really bargain for but are forced to accept. but I don't think that's what we have here.

When this development was created, there were plenty of homes available on land not subject to convenants, so the buyers were hardly forced to accept covenants against their will. The developer calculated that there was a class of people who would pay more to live in a community with the covenants, as the assurance that their neighbors would conform was worth more than the freedom to no conform. It appears that 65 years later those who bought into the neighborhood still see it that way, save for the the owners of a single large parcel.

Maybe in several decades, most of the people in that neighborhood will want to see it transformed into a neighborhood of rowhouses--and at that point, concerns about the dead hand controlling things may be valid. But at that point, the fair market value of the covenants will be close to zero--and when that whole neighborhood is replaced with rowhouses, people will probably be very glad that little part was created.

by JimT on Nov 22, 2012 9:47 pm • linkreport

I believe the long term plan will be to build a pedestrian bridge here to connect with Evans Parkway Neighborhood Park across Georgia Ave. This would complement well the Forest Glen Pedestrian Tunnel project further south and would connect neighborhood on both sides of Georgia Avenue. A townhouse development would make this plan impossible. The park would also be the centerpiece of a new "Green Mile" leading to Downtown Wheaton which is starting to look more like high rise White Flint by the day.

by Cyrus on Nov 22, 2012 11:37 pm • linkreport

This is nothing more than NIMBYism.

It is a familiar theme in Montgomery County.

Loud opposition to the construction of anything, combined with calls for conversion of the subject parcel or parcels to taxpayer-funded parks.

by C. P. Zilliacus on Nov 22, 2012 11:55 pm • linkreport

Jim - You write that "the assurance that their neighbors would conform was worth more than the freedom to not conform." The power to make one's neighbors conform to a rule is the essence of government. It is not a piece of property (regardless of legal fictions that treat it as such). It should be exercised by majority vote of all concerned, not by the person with the most dollars and certainly not by the person who had the most dollars sixty years ago.

by Ben Ross on Nov 23, 2012 7:18 am • linkreport

@oboe:
Guess it depends on the definition of "affordable". Okay, it's a bit glib, but if those houses are selling, then they're affordable.

Obviously that's tangential to the question of whether we should provide subsidies to allow folks to buy homes who otherwise wouldn't be able to.

I'm not seeing how "affordable to the people who are able to buy homes" is a useful definition for "affordable housing." The point most people are trying to make when they talk about affordable housing is that if it were more affordable, more people would be able to afford it. One strategy would be to subsidize housing, but the best that I can tell, you're the only one to suggest that here.

A strategy I would prefer would be to expand supply, both in terms of the number of housing units available (which would tend to push prices down, holding demand constant) and the types of housing available--since e.g. constructing more townhouse units could have particularly strong effects on the prices for housing for people who are currently priced out of the market.

I'm not seeing how the existence of a market that is affordable to some is a good argument that we shouldn't do anything to make housing available for others.

by Gray's the Classics on Nov 23, 2012 11:18 am • linkreport

How do we expand the supply of housing to make it more affordable? High prices is what stimulates construction, which wants to get it's share of those high prices, thus more housing dosen't naturally bring down prices. Now a collapse in prices as we just had would bring down prices, but it would constrict the supply, so it's a catch-22.

The idea of there not being enough affordable housing ought to be qualified. There isn't enough affordable metro accesible housing that's both safe and walkable, but there's certainly a lot of affordable housing far from metro stops, that's unsafe, and isn't walkable, or some combination of the three. Maybe, instead of only enticing more affordable housing in desirable neighbofhoods, we could also be working on making other less desirable neighborhoods more desirable.

by Thayer-D on Nov 23, 2012 8:53 pm • linkreport

Hi Ben. You are correct that governments, rather than private citizens, have the power to enforce rules. Even in this case, an entity of government (a state court) is enforcing the rule, so I think your concern is actually who creates the rule, rather than who had the power to make people conform to the rule.

Your view appears to be either that only governments have the power, or only governments should have the power to create rules that govern how people use land. But in the United States, rules have long been created both by government regulation and by private contract.

People may voluntarily give up the right to do almost anything that a government could prohibit, as well as some things that a government would never prohibit. Both approaches have their limitations: a government regulation may be taking either if it goes too far or violate due process if it unfairly singles out a few landowners. Covenants may violate public policy if they are offensive. Oddly enough, courts have long refused to recognize covenants negotiated between neighbors, while recognizing covenants between a developer and purchasers of land in the development, under a doctrine called "prvity of estate".

I would not say that having the most money should increase or decrease one's rights. But in the case at hand, it seems that your preferred policy has the greater likelihood of allowing rights to be dictated by money. There was a longstanding deal that people had bought into, and even if the developer had been Al Capone that would have made little difference about the question as to whether owners have a vested expectation in maintaining the existing density. For all practical purposes, the existing landowners have a pact with eachother; the heirs of the original developer have no role. But one owner--with the most resources--wanted to evade the terms under which all are bound, and he was able to persuade the government to give him the deal he wanted.

Given that covenants have been part of the common law of property for a century, saying that it is a legal fiction to call it property seems like a stretch. The definition of property is the bundle of legal rights that one possesses, so covenants are no more a "legal fiction" than property itself.

by JimT on Nov 23, 2012 11:34 pm • linkreport

@Thayer-D:
Maybe, instead of only enticing more affordable housing in desirable neighbofhoods, we could also be working on making other less desirable neighborhoods more desirable.
Which (a) is exactly what the county was trying to do here, and (b) equivalent to the expansion of supply that you seem to decry. So I'm not sure what you would propose doing differently.

by Gray on Nov 24, 2012 10:00 am • linkreport

I wasn't proposing to do anything differently here as much as speaking to the broader issue of affordable housing. The idea would be to build the purple line and other BRT lines to increase the supply of transit accesible neighborhoods, thus making less desirable neighborhoods, more desirable ones. Also, focusing on crime in areas that have affordable housing but that many would rather forgo. I'm all for any and all strategies that help our shortage.

by Thayer-D on Nov 24, 2012 8:22 pm • linkreport

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