Hubert Motion for Reconsideration of Variance(3758764.3)

1 3758764.3 83945.001

BOARD OF APPEALS FOR MONTGOMERY COUNTY, MARYLAND

: PETITION OF JOHN W. COKINOS : Case No. A-6657

:

STEVEN P. HUBERT’S MOTION FOR RECONSIDERATION

Steven P. Hubert (“Mr. Hubert” or “Movant”), pursuant to Board of Appeals Rule of

Procedure 10.2, respectfully requests the Board of Appeals (the “Board”) reconsider and reverse

its Resolution and Opinion dated July 17, 2020 (the “Opinion”), which granted a variance to

Petitioner John W. Cokinos (“Mr. Cokinos” or “Petitioner”) regarding the setback lines for Lot

24, Block B, Fort Sumner Subdivision, located at 5337 Westpath Way, Bethesda, Maryland,

20816 in the R-90 (formerly R-60) Zone (the “Subject Property”).

I. INTRODUCTION

The Board may not grant a variance unless the special circumstances or conditions

leading to a request for a variance are not the result of actions by an applicant. Here, the Board

relied on the testimony of Petitioner and his Construction Manager, Eric Hart, of Hartland

Development (the “Construction Manager” or “Mr. Hart”), in finding that Petitioner’s request for

a variance was not the result of his actions, but instead became necessary because Petitioner

relied on a faulty house location drawing obtained from his title company, Paragon Title. The

Board, relying further on the testimony of Petitioner and Mr. Hart, found that Petitioner had no

recourse against the surveying company that prepared the house location drawing, because

Paragon Title, and not Petitioner, contracted with Capital Surveys to procure the location

drawing.

After the Board’s hearing, Movant has obtained new evidence showing that the testimony

of Petitioner and Mr. Hart was not accurate. Specifically, Movant has obtained a copy of

2 3758764.3 83945.001

Petitioner’s Maryland Location Drawing/Boundary Survey Approval Form (the “Approval

Form”) from Capitol Surveys, which explicitly shows that Petitioner had a choice of preparing a

boundary survey or a locational drawing and that he expressly authorized the performance of a

location drawing for a lower cost. See Exhibit A, attached. This new evidence contradicts one

of the main points upon which Petitioner based his case, and undermines the Board’s finding that

Petitioner was not responsible for the special circumstances of conditions leading to the request

for a variance. For this and other reasons set forth below, the Board should reconsider and

reverse its Opinion because Petitioner cannot meet his burden of showing by a preponderance of

the evidence that the need for a variance was not the result of his own actions.

II. STATEMENT OF FACTS

A. The Project History

When Petitioner purchased the Subject Property, it had an already-existing structure that

fully complied with setback requirements. Petitioner planned to significantly renovate that

structure by adding a second story that extended two feet beyond the existing footprint, and

permitted a porch 11 feet beyond the existing footprint. Petitioner embarked on a $700,000

renovation project without obtaining a boundary survey that would have clearly identified where

the property lines actually existed. Instead, prior to closing on the Subject Property, he

purchased from Capitol Surveys a house location drawing that expressly stated it “CANNOT BE

RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY BOUNDARIES ARE”

and therefore cannot be used to determine setbacks of any improvements on the Subject

Property.

Mr. Hubert owns property adjacent to the Subject Property. In the summer of 2018, Mr.

Hubert had a professional surveyor stake out his adjoining property corners that clearly identified

3 3758764.3 83945.001

the adjacent property lines and property corners. Early in Petitioner’s construction process, it

became clear to Mr. Hubert that the porch and its eaves and the second floor expansion and other

eaves went beyond the building footprint of the existing home, and did not appear to comply

with setback requirements. Also, it was clear to Mr. Hubert that Petitioner was in the process of

constructing the porch one (1) foot beyond the (11) foot dimensions shown on the approved

building permit plans.

In July 2019, Mr. Hubert brought these concerns to the attention of the Construction

Manager in charge of the renovations, Mr. Hart. Mr. Hart promised to look into these issues, but

instead he ignored or dismissed Mr. Hubert’s concerns. Elaina Simpson, the contract purchaser

of the Subject Property, also sent a series of emails promising to address the issues and assured

Mr. Hubert that the Petitioner and the contract purchasers intended to meet the county codes.

When it became clear that the Construction Manager and the contract purchasers would

not address the issue on their own, Mr. Hubert notified the County’s Department of Permitting

Services (“DPS”). Only when DPS became involved did Petitioner then hire a surveyor to

determine the actual property boundaries, which identified the distance of the improvements

from the property lines of the Subject Property and measured the applicable setback

requirements. The new survey confirmed that the porch and its eaves and the second floor and

eaves violated the setback requirements, just as Mr. Hubert had pointed out early in the

construction process.

At the variance hearing, Petitioner argued that when he learned of his mistakes, it was too

late to address them because construction was too far along, and that it would cost hundreds of

thousands of dollars to modify the house to comply with the zoning ordinance. He justified his

error by contending that his Construction Manager had relied on a faulty house location drawing

4 3758764.3 83945.001

when designing and locating the house additions. The Construction Manager testified that

relying on location drawings is a regular custom and practice, and that it was unfortunate that

this location drawing erred more than any he had seen in his career.

Even assuming this testimony is true, however, it does not excuse Petitioner from failing

to identify the Subject Property’s exact boundaries before construction or willfully ignoring Mr.

Hubert’s concerns that the porch, the second floor expansion, and the eaves violated the setback

requirements. Petitioner was on notice that the house location drawing could not be relied upon

before he began renovating the Subject Property, but he proceeded with his renovation and

addition plans anyway. When he did so, he created the need for a variance, and is therefore not

eligible to obtain one due to this self-created hardship.

B. The Board found that Petitioner’s actions did not create the need for a variance

because he relied on a faulty location drawing procured by his title company.

Petitioner argued he is entitled to a variance because he was the victim of a faulty

location drawing. Although Petitioner repeatedly refers to the house location drawing as the

“Capitol Survey,” this is a misnomer. The company that prepared the location drawing is

Capitol Surveys, but it is undisputed that the document that Capitol Surveys created was not a

boundary survey – it was merely a location drawing.

The Board made findings critical to its decision based largely on Petitioner’s sworn

testimony that he did not request the location drawing, and further that he has no recourse against

the company that created the location drawing, noting:

[Petitioner] testified that he did not order a survey prior to closing on the property, and that at closing, Paragon Title provided him with a copy of a survey that Paragon had contracted with Capitol Surveys to perform. He emphasized that it was Paragon that had contracted with Capitol Surveys to have this survey done, later testifying that because he did not contract with Capitol for this survey, he has no recourse against them.

5 3758764.3 83945.001

Opinion at 11, ¶ 16.

The Board relied on similar testimony by Mr. Hart, noting that “Mr. Hart testified that the

survey that the Petitioner received at closing (i.e., the Capitol Survey) was prepared by a licensed

surveyor who worked for an experience surveying company.” Opp. at 16. Petitioner provided

no documents corroborating his testimony that it was Paragon Title, and not Petitioner, who

requested and paid for the location drawing.

Based on this evidence, the Board found that the need for a variance was not the result of

any action by Petitioner, stating that:

The Board finds, based on the Statement in the record at Exhibit 3 and the testimony of the Petitioner, that it was the title company and not the Petitioner that contracted with Capitol Surveys to have the original house location survey ("Capitol Survey") performed. The Board further finds, based on the expert testimony of Mr. Hart and the Statement at Exhibit 3, that this type of survey is accepted by the County's Department of Permitting Services in connection with the issuance of building permits for additions/renovations to existing structures; the Board notes that Mr. Hart testified that DPS has accepted similar surveys in connection with seven or eight other renovations on which he has worked. Finally, the Board finds that here is nothing in the record to suggest that the Petitioner is responsible for the size, depth, or multi-directional slope on the subject property, which he purchased in 2018 and which was originally developed decades earlier. See Exhibit3. Thus the Board finds that the special circumstances or conditions pertaining to this property are not the result of actions by the Petitioner, in satisfaction of this element of the variance test.

(emphasis added). Opp. at p. 21.

The Approval Form that Mr. Hubert obtained from Capitol Surveys after the

Board’s hearing contradicts Petitioner’s sworn testimony, and confirms that Petitioner

was responsible for selecting the location drawing instead of the boundary survey. This

new evidence not only removes a lynchpin of Petitioner’s case, it also requires a

reexamination of other evidence that makes denying the variances appropriate. The

6 3758764.3 83945.001

evidence is clear that Petitioner took actions or failed to take actions that directly led to

the need for the variance. See Ex. A.

C. Movant obtained evidence after the hearing showing that Petitioner’s testimony was

false because he procured a location drawing used to create the need for a variance.

After the Board’s hearing, Movant requested and obtained from Capitol Surveys a copy

of Petitioner’s Approval Form for a location drawing. Ex. A. Petitioner signed the Approval

Form on May 30, 2018, which was nearly one month before he closed on the Subject Property.

Ex. A. The Approval Form states in capital letters: “I/we understand that our signature below

authorizes the performance of the surveying services checked above.” Ex. A. The Approval

Form clearly shows that it was Petitioner, and not Paragon Title, who requested the location

drawing. As noted earlier, the testimony of Petitioner and Mr. Hart led directly to the Board’s

finding that Petitioner took no actions creating the need for a variance. However, when the

Approval Form is added to the evidence, Petitioner’s testimony cannot stand, and it becomes

clear that it was Petitioner, not Paragon Title, that took actions that led to the need for a variance.

The Board noted “[a]t the hearing, Petitioner John Cokinos testified that he purchased the

Subject Property for his daughter and son-in-law with the intent to renovate the existing home to

their specifications before selling them the property.” Opp. at 11, ¶ 16. Thus, Petitioner knew

before he purchased the Subject Property that he planned to renovate it. In spite of this, he

elected to purchase a house location drawing for approximately $250, instead of a boundary

survey that would cost approximately $1,000. He made this decision despite a clear warning on

the Approval Form that he should not rely on a location drawing to determine the property

boundaries: “A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT

7 3758764.3 83945.001

BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES

ARE.” (emphasis in original) Ex. A.

The Approval Form also makes clear that if the purchaser “desire[s to make other

improvement on the property], a surveyor should be contacted independently.” Ex. A. When

Petitioner signed this document, he affirmed that he read and understood the conditions and

limitations of the location drawing, and that “IF A BOUNDARY SURVEY, WHICH COULD

BE RELIED UPON FOR VARIOUS PURPOSES (FOR EXAMPLE, SETTING THE

PROPERTY MARKERS, ERECTING A FENCE, BUILDING A GARAGE OR MAKING

OTHER IMPROVEMENTS ON THE PROPERTY) IS DESIRED, A SURVEYOR SHOULD

BE CONTACTED INDEPENDENTLY.” (emphasis in original) Ex. A. Petitioner’s decision to

obtain a house location drawing and not a boundary survey directly led to his request for a

variance. By proceeding without a boundary survey, Petitioner did so at his own risk. Mark

Beall from DPS expressly cautioned Petitioner that Petitioner was proceeding at his own risk

without a boundary survey.

The language in the Approval Form is not there by accident, it is required by law.

Section 09.13.06.06 of the Code of Maryland Regulations for the Department of Labor expressly

requires the Approval Form for location drawings to warn consumers that they may only rely on

location drawing for limited purposes only, and that the form must state:

In connection with the purchase or refinancing of the property located at ________________________________________ (this office has been requested) (a licensed Maryland surveyor will be engaged) to prepare a location drawing. A location drawing shows the property inspected and the locations of buildings or other visible improvements affecting the property. A LOCATION DRAWING IS NOT A BOUNDARY SURVEY AND CANNOT BE RELIED UPON BY ANYONE TO SHOW WHERE THE PROPERTY’S BOUNDARIES ARE. The only purpose of a location drawing is to provide some assurance that improvements are located on the property. This assurance is for the use of a lender or an insurer only.

8 3758764.3 83945.001

The Department of Labor requires this warning be included in the Approval Form of location

drawings to avoid confusion about the role of a location drawing versus the role of boundary

survey. The regulations were expressly designed to avoid situations like the one here.

Petitioner chose to ignore this warning.

III. ARGUMENT

A. The Code requires Petitioner to show by a preponderance of the evidence that the need for a variance was not caused by his own actions.

Montgomery County Zoning Ordinance § 59.7.3.2.E requires the Board to make specific

findings before granting a variance. The Board must find that: (1) denying the variance would

result in no reasonable use of the property, OR; (2) that each of the following apply:

a. one or more of the following unusual or extraordinary situations or conditions exist:

i. exceptional narrowness, shallowness, shape, topographical conditions, or other extraordinary conditions peculiar to a specific property;

ii. the proposed development uses an existing legal nonconforming property or structure;

iii. the proposed development contains environmentally sensitive features or buffers;

iv. the proposed development contains a historically significant property or structure; or

v. the proposed development substantially conforms with the established historic or traditional development pattern of a street or neighborhood;

b. the special circumstances or conditions are not the result of actions by the applicant [emphasis added];

c. the requested variance is the minimum necessary to overcome the practical difficulties that full compliance with this Chapter would impose due to the unusual or extraordinary situations or conditions on the property;

d. the variance can be granted without substantial impairment to the intent and integrity of the general plan and the applicable master plan; and

e. granting the variance will not be adverse to the use and enjoyment of abutting or confronting properties.

9 3758764.3 83945.001

(emphasis added) Montgomery County Zoning Ordinance § 59.7.3.2.E (effective October 30,

2014). Thus, the Board cannot grant a variance unless it finds that “the special circumstances or

conditions are not the result of actions by the applicant.” The new evidence obtained after the

hearing establishes that Petitioner’s actions (and inactions) directly created the special

circumstance requiring a variance from the setback requirements. To find otherwise would be

error.

B. Petitioner chose to obtain a location drawing instead of a boundary survey,

which created his need to obtain a variance.

Both Petitioner and his Construction Manager testified under oath that Petitioner did

nothing to create the circumstances necessitating a variance. They specifically testified that

Paragon Title, and not Petitioner, obtained the location drawing. This is not correct. The

Approval Form attached as Exhibit A disproves a key reason why the Board found that Petitioner

did nothing to create the need for a variance. Exhibit A shows that Petitioner purchased the

location drawing and that when he did so he knew or should have known that a location drawing

was inadequate to ascertain the location of property lines. When he signed the document,

Petitioner affirmed that he read and understood that the location drawing could not be relied on

for any renovation plans. See Canaras v. Lift Truck Services, Inc., 272 Md. 337, 322 A.2d 866,

870 (1974) (“[O]ne having the capacity to understand a written document who ... without reading

it or having it read to him, signs it, is bound by his signature.”).

Petitioner’s actions are even more culpable considering the relatively minor cost he

would have incurred to obtain the correct document to prepare his renovation plans. The

Approval Form states that a location drawing typically costs between $250.00 and $750.00,

while boundary surveys generally cost between $800.00 and $1,500.00. Petitioner testified that

he purchased the property for $850,000.00, and that he had a construction budget of $700,000,

10 3758764.3 83945.001

for a total cost of over $1.5 million. Even if Petitioner had paid $1,500 for boundary survey –

the highest amount listed in the Approval Form – that would still only amount to 0.1% of the

overall project cost (and just a few hundred dollars more than what he paid for the location

drawing). When Petitioner ignored the plain language in the Approval Form and proceeded with

a $1.5 million project based on a location drawing, he assumed the risk and consequences of that

decision.

Even after this error was committed to commence construction based on a house location

drawing, Petitioner still had timely chances to correct his mistake. The record shows that

Movant, who owns property adjacent to the Subject Property, notified the Construction Manager

in July 2019 that the project appeared to be violating setback requirements. The text message

thread submitted by Mr. Hubert at the Board’s hearing shows the Construction Manager

thereafter took no meaningful action to determine the correct boundary lines at that time. Nor

did the Petitioner or the contract purchasers. This forced Mr. Hubert to notify DPS. Other

neighbors also complained about the project, but it was not until after DPS got involved that

Petitioner finally paid for a boundary survey. The boundary survey confirmed that the front

porch and second story eaves violated the setback requirements, just as Mr. Hubert had suspected

months before. Despite knowing that he had violated the applicable setbacks, Petitioner did not

seek a variance when he first became aware of the need to do so. Instead, he plowed ahead with

construction for an additional six months, until DPS eventually required him to seek a variance.

C. The variance is not necessary because of any physical characteristics of the

Subject Property.

Petitioner argued, and the Board agreed, “the property is exceptional due to the combined

constraints imposed by its relatively small size and depth for the neighborhood, and its multi-

dimensional slopes.” Opp. at 20. The Board further found:

11 3758764.3 83945.001

that here is nothing in the record to suggest that the Petitioner is responsible for the size, depth, or multi-directional slope on the subject property, which he purchased in 2018 and which was originally developed decades earlier. See Exhibit3. Thus the Board finds that the special circumstances or conditions pertaining to this property are not the result of actions by the Petitioner, in satisfaction of this element of the variance test.

Opp. at 21.

Movant asks the Board to reconsider this finding because it does not fully recognize key

facts in the record. For example, Petitioner repeatedly argues the property is relatively small,

stating that many properties in the neighborhood have 12,000 sf lots. But the record also shows

that properties zoned R-60, as this one was when it was created, required lots to have a minimum

6,000 sf. Opp. at 2. This property is 9,600 sf, which is more than 150% the minimum size

originally required. There is ample space to have a residence comply with zoning restrictions,

and the original structure did, in fact, comply with zoning restrictions without the need for a

variance. In addition, there was no evidence explaining why the house could not have been

extended in a different direction to accommodate the setback requirements.

Petitioner also argues that the topography of the property is unique and requires a

variance, but this contention is misplaced. While there is a slope on the property, such slopes are

ubiquitous in the neighborhood. Petitioner actually points out that “the Bethesda-Chevy Chase

Master Plan . . . recognizes this area ‘as a neighborhood of steep slopes and high quality

residential communities. . . “(emphasis added) Opp. at 7.

Petitioner knew or should have known that the lot’s topography could present challenges

during renovation. He is involved in the financial services industry and is therefore aware of the

importance of consumer law and the reasons why customer consents are required by law to

protect uneducated consumers from making poor decisions. In addition, Petitioner is active in the

real estate business, as evidenced by Building Permits Issued Feb. 13 – 27, 2019 to John

12 3758764.3 83945.001

Cokinos, 5600 Cromwell Drive, Bethesda, Md. (301) 440-7600, to build a $200,000 unit at the

same address.1 He testified that this was the third project he had worked on with Mr. Hart.

Petitioner is not an unsophisticated novice. In addition, Petitioner testified that it was Mr. Hart

who suggested the project to him. Petitioner was not acting alone; he relied on the advice of Mr.

Hart, whom the Board deemed to be an expert on issues of construction and development.

Surely Mr. Hart should have anticipated these issues. In any event, Petitioner admits he

purchased the property “AS IS” and thus accepted its condition, location, and obligations to

comply with the zoning ordinance.

Even if the Board still decides the property has unique features, those features are not the

reason why Petitioner needs a variance. The reason why Petitioner needs a variance is because

he extended the front of his house beyond the setback requirements. Petitioner argues he needs a

variance because his lot is smaller than many in the neighborhood, but he ignores the fact that his

house is much larger than many in the neighborhood. Even if his lot extended further back or to

the sides, the house would still be too close to the street. Petitioner violated the setbacks not

because his lot was too small, or that the slope was too steep or multi-dimensional, but because

he did not know where his lot lines were. He did not know where his lot lines were because he

did not obtain a boundary survey before spending $1.5 million to renovate the house. This was

entirely his own doing.

1 https://www.google.com/maps/place/5600+Cromwell+Dr,+Bethesda,+MD+20816/@38.9648851,-77.1161775,3a,75y,273.68h,90t/data=!3m7!1e1!3m5!1s0zKCqzxbEr5-XtgcVTtASQ!2e0!6s%2F%2Fgeo0.ggpht.com%2Fcbk%3Fpanoid%3D0zKCqzxbEr5-XtgcVTtASQ%26output%3Dthumbnail%26cb_client%3Dmaps_sv.tactile.gps%26thumb%3D2%26w%3D203%26h%3D100%26yaw%3D273.68445%26pitch%3D0%26thumbfov%3D100!7i16384!8i8192!4m5!3m4!1s0x89b7ca3af124634d:0x31e2353cfc70b7ae!8m2!3d38.9649003!4d-77.1164482#

13 3758764.3 83945.001

Petitioner did not design the house to violate the setback requirements because the

physical property features were special; he violated the setback requirements because he did not

ascertain where the house was located in relation to the lot lines. It was his lack of diligence, not

topography that created the need for a variance. Had the physical features of the lot presented a

challenge to his designs, Petitioner could have (and should have) requested a variance before he

violated the setback requirements in the zoning ordinance.

Mr. Hart testified that the house was probably located where it was because of the

topographical features of the property. But there is no historical evidence to support this

supposition. Again, even if this hypothesis were correct, it does not change the fact that

Petitioner purchased the property “AS IS.” Petitioner knew where the house was located before

he bought the property and planned to renovate it. What he did not know was the location of the

lot lines. There is only one sure way to confirm that information: perform a boundary survey.

He did not have one performed.

D. The cost to remedy Petitioner’s errors is not a basis to allow Petitioner to violate

setback requirements and the cost is entirely self-inflicted.

Movant acknowledges that the cost to fix Petitioner’s mistakes is significant. “Mr. Hart

estimated that it would cost $350,000 or more to bring this house into compliance, and would

take six to eight months, during which time the residents would be displaced.” Opp. at 17.

Petitioner’s estimates for the cost to repair varied, and he provided no documents showing how

or what the cost would be. His estimate is further suspect because he offered varying estimates

during the process that were all general estimates that seem excessive given the entire renovation

project cost $700,000. It goes without saying, however, that “[e]very person requesting

a variance can indicate some economic loss.” Cromwel v. Wardl, 102 Md. App. 691, 715; see

14 3758764.3 83945.001

also Montgomery Cty. v. Rotwein, 169 Md. App. 716, 732 (2006). But that alone is not an

adequate reason to grant the variance, especially in light of the fact that Petitioner assumed that

risk by relying on a document that stated on its face that it was not reliable. See Carey v.

Baltimore Cty., 262 Md. 491, 497 (1971) (“We would observe, however, that even in those cases

wherein the property owner has sought injunctive relief predicated on his acquisition of a vested

right in the building permit, which has later been revoked or the work stopped through the

intervention of municipal authorities because of a [] mistake in issuance of the permit, this Court

has been reluctant to allow relief even where substantial sums have been spent on architectural

fees and site preparation.”).2 The Maryland Court of Appeals has held for a long time that a

variance should not be granted “merely for the convenience of the applicant.” Carney v. City of

Baltimore, 201 Md. 130, 137 (1952). Here, the Board should not grant a variance merely to

allow Petitioner to escape a hardship that he and his advisors created.

Courts consistently enforce zoning restrictions on developments even when the cost to

the property owner is significant—particularly if the violation was the result of the property

owner’s own actions. In Cromwell v. Ward, the Court of Special Appeals held that the granting

of a variance from height restrictions was arbitrary and illegal. 102 Md. App. 691 (1995). The

petitioner in Cromwell had applied and received a building permit to construct a garage and wine

cellar on his property. Id. at 696. The petitioner designed “a roof pitched at the angle he desired,”

for the garage but that design “caused the roof to extend above the fifteen-foot height limit.” Id.

2 See also Ross v. Montgomery County, 252 Md. 497, 504 (1969); Francis v. MacGill, 196 Md. 77, 85 (1950); Bogley v. Barber, 194 Md. 632, 639 (1950); Kahl v. Consolidated Gas, Electric Light & Power Company, 191 Md. 249, 260, 261 (1948); Mayor & City Council of Baltimore v. Shapiro, 187 Md. 623, 634 (1947); Board of County Com’rs of Anne Arundel County v. Snyder, 186 Md. 342, 347 (1946); Lipsitz v. Parr, 164 Md. 222, 227 (1933). Cf. People’s Counsel Public Service Commission v. Public Service Comm’n, 259 Md. 409, 417 (1970).

15 3758764.3 83945.001

at 695. The court held that this was a self-created hardship arising from the petitioner’s failure to

disclose height dimensions when he applied for his permit and could not support variance.

Likewise, in Permanent Financial Corp. v. Montgomery County, a developer sought

variances for height, setback and floor area ratio (“FAR”) restrictions after a stop-work order

was issued, based on alleged reliance on a building permit and after the developer had already

undertook significant construction on the building. 308 Md. 239, 241-42 (1986). The variances

were denied by the Board of Appeals, and the builder appealed the case all the way to the

Maryland Court of Appeals. Id. The Court held that because Permanent designed the penthouse

to contain offices for janitorial or security personnel, as well as “roof structure housing

mechanical equipment,” it had to be included in calculations for setback and FAR restrictions.

Id. at 244-245, 254, 256. Once the penthouse was included in those calculations, it violated the

height, setback, and FAR restrictions. Id. The Court held that Board of Appeals did not err when

it denied the variances based on these various issues, despite the fact that it had originally issued

the building permit and significant construction had already occurred. Id. at 257. Thus,

the building permit was properly suspended and the stop work order properly issued. Id. The

same result should apply here.

E. The Board erred when it found the variance will not be adverse to the use and

enjoyment of neighboring properties.

The Board noted that many in the community, including some real estate agents,

complimented the appearance of the house and thought it might help community property values.

But these opinions are largely irrelevant. The Board must find that granting the variances “will

not be adverse to the use and enjoyment of abutting or confronting properties.” Even if the

house were to help increase neighborhood property values, it would happen at the expense of the

abutting or confronting properties. It is telling that the owners of both adjacent properties and a

16 3758764.3 83945.001

property across the street all objected to this variance – their properties, which are protected by

the Code, will suffer an adverse impact on the use and enjoyment of their properties.

Movant’s property, in particular, will be impacted because it is an undeveloped lot and

therefore when developed must comply with R-90 setback requirements, which are more

significant than the R-60 setback requirements that apply to Petitioner. Allowing Petitioner to

obtain variances will exacerbate this difference by permitting Petitioner’s porch and eaves to

extend 7.5 feet, and the second floor and eaves 6.3 feet beyond the less restrictive R-60 setbacks.

This concern may seem less significant when compared to the cost Petitioner will incur to bring

his house into compliance, but the Code does not require (or allow) for a balancing of interests.

It instead requires that the variance not adversely affect the use and enjoyment of neighboring

properties.

Here, the evidence shows the variances will adversely affect those properties. To the

extent the Board is sympathetic to Petitioner because of the alleged cost to comply with the

proper setbacks, it should consider who should bear the brunt of the mistake – the person who

created the problem and elected to remain willfully ignorant, even when neighbors complained –

or the neighbors who had no control over the process and tried in vain to work with Petitioner

early in the construction process.

Moreover, Petitioner’s contention that he has no recourse against Capitol Surveys

because he had no contractual privity is also suspect because the Approval Form shows that he

requested the location drawing and thus has contractual privity. Petitioner submitted no evidence

showing it was Paragon Title that paid for the location drawing. In addition, Petitioner has

contractual privity with Mr. Hart and Hartland Development, who was responsible for managing

the construction project. Petitioner is not without recourse if his advisors gave him bad advice.

17 3758764.3 83945.001

Finally, if the Board grants Petitioner the variances requested, it will reward Petitioner for

ignoring facts he knew or should have known and for failing to take actions he should have

taken; granting the variances may have the unfortunate result of incentivizing others to do the

same.

IV. CONCLUSION

For the reasons herein, Steven P. Hubert requests that the Montgomery County Board of

Appeals grant his Motion for Reconsideration and deny John Cokinos’ petition for a variance of

the setback lines for Lot 24, Block B, Fort Sumner Subdivision, located at 5337 Westpath Way,

Bethesda, Maryland, 20816 in the R-90 (formerly R-60) Zone.

LERCH, EARLY & BREWER, CHARTERED

______________________________________

Michael J. Goecke (CPF #1001050001) Meaghan C. Murphy (CPF # 1712140071) 7600 Wisconsin Avenue, Suite 700 Bethesda, MD 20814 301-657-0185 (Phone) 301-347-1795 (Facsimile) [email protected] [email protected] Attorneys for Steven P. Hubert

CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of August, 2020, a copy of the foregoing Motion for Reconsideration was served by first class mail, postage prepaid, to:

Nancy P. Regelin Shulman Rogers 12505 Park Potomac Avenue Potomac, Maryland 20854

____________________________________ Michael J. Goecke

A