A Baltimore County community association is spending thousands to fight a Cockeysville neighbor's building a garage apartment, a case that both sides say could have a significant impact on county land use.
Harold H. Burns Jr., president of the Falls Road Community Association, warns that J. Gary and Barbara Mueller's remodeled garage could set a precedent that would allow other residents to overbuild on their properties.
"You're not allowed to put a house in your backyard," said Burns, whose cash-strapped organization is asking other groups to pitch in on a legal battle that he says affects them all.
"We've reached out to a lot of community associations," he said. "This is a serious countywide problem."
Lawrence E. Schmidt, the Muellers' lawyer, said if the association's argument prevails, the decision could make so-called "in-law" apartments illegal in the county.
The case — now pending before the state Court of Special Appeals in Annapolis — has grown far beyond what the association had in mind when it went to the zoning commissioner in 2008 to support several neighbors who wanted "some clarification" of the rules.
Association Vice President Marvin Tenberg said neighbors understood that the Muellers got a permit in 2007 to build a garage but then found that the Muellers' son seemed to be living there.
The Muellers had secured a permit to build a two-story garage on their nearly 2-acre lot as an "office/loft accessory structure" with a utility sink. Later they improved it with two bathrooms, a kitchen and three more rooms.
In the summer of 2008 the deputy zoning commissioner, Thomas H. Bostwick, refused permission to allow the garage to be used as an apartment. The Muellers went to the Board of Appeals, arguing that the space qualified as an in-law apartment, which has been allowed by the county but is not defined in zoning regulations.
The three-member board turned down their petition a year ago, ruling that the garage is an "accessory structure" that cannot be used as living quarters and that doing so would violate neighborhood density limits.
Next stop for the Muellers was the Circuit Court for Baltimore County, which proved more sympathetic. Judge Thomas J. Bollinger wrote in March that while the county zoning code does not say people can live in an "accessory structure," neither does it specifically say they cannot.
He turned the case back to the board, saying "the sole issue" for the panel to decide is if the garage apartment is bad for the neighborhood.
Burns, a lawyer, called the question "completely irrelevant." He called Bollinger's ruling "dangerous" and worth an expensive fight.
Burns said the association sent an e-mail last month to between 10 and 20 community associations asking for help in pursuing the case, which has already cost the group more than $9,000 and could mean another $4,000 in legal bills.
"We're tapped out. We just can't come up with the money to do this," he said. "This little neighborhood fight has turned out to be as big a fight as we've ever been in."
Schmidt, the Muellers' lawyer, said he'll argue that the Board of Appeals called the garage a legal "accessory structure," not a "second house," and there's "long-standing administrative practice and interpretation" of county zoning law supporting separate apartments for family members. If the association prevails, such arrangements could be ruled illegal.
"The practice is to allow it, also it's consistent with zoning law," said Schmidt, who served as county zoning commissioner from 1991 to 2004. "It's not a second house."
Michael R. McCann, who is representing the FRCA and several neighbors in the case — which is not expected to be heard in the Court of Special Appeals until early next year — said he'll argue that it is just that, and would clearly not be allowed.
"How they get around that, and how Bollinger got around that is something I don't understand," McCann said.
Tenberg said the question seems simple: "If it walks like a duck and squawks like a, it just might be a duck." He said the association is "not out to tell people how to live, what color their house should be, that sort of thing. … When you're talking about putting a second house, that's our concern. … If people can do this, this opens up a Pandora's box."