In suburbia, coming out against development plans and rezoning requests seems almost as much a part of life as youth soccer games and backyard barbecues. But residents of one Pikesville community are biting their tongues about a proposal for condominiums and office buildings in their neighborhood.
Their voices have been squelched by some unusual language in the contracts they signed when buying their homes in the Avalon Courtyard Homes community - and, they say, by a developer's veiled but heavy-handed threats to take legal action if they speak out. "At risk of being sued, I rise to speak for myself, and those who have been silenced, to oppose this rezoning request," Avalon resident Howard Rudo told stunned members of the Baltimore County planning board at a recent hearing on zoning proposals for the Pikesville and Randallstown areas. "My grandfather and my great-grandfather came to this country to avoid the czar. Others of my neighbors have recently arrived from Kiev for the land of freedom. And this is what we are faced with today."
An informal survey of lawyers and county government officials found no one who could recall seeing a restriction quite like the one placed on residents of Avalon, where homes sell for as much as $300,000.
The effect of the restrictions: Homeowners in the Avalon development can't oppose - and, indeed, are required under threat of lawsuit to support - virtually any building plan for their community.
Residents say that few, if any, of the homebuyers realized that their contracts contained a clause in which they granted the developer "power of attorney" to consent, on the homeowner's behalf, to any "necessary or proper" changes in plans for the community. "This is amazing language," Brenda Bratton Blom, a professor at the University of Maryland School of Law, said after reviewing a portion of the community's standard sales contract. "I have not seen this kind of language before."
Robert V. Hess, a member of the county planning board, said the provision bothers him because it could limit the information he uses to weigh the zoning request. "It's a little strange, a little scary," Hess said. "You have to wonder what the intent of the developer was to include language like that."
Officials at Questar Homes, developers of Avalon, said they included the language in their sales contract because the project has previously faced opposition, starting with its proposal more than seven years ago.
Questar President Stephen M. Gorn said the company wanted a "buffer" against opposition from within the development. "The people that signed these purchase contracts were making an independent decision to buy a home from us," he said. "To me, if you sign an agreement, and should have read it, you are bound to adhere to the agreement."
Gorn defended the letters sent to homeowners, saying: "I don't think that's intimidation. That's being fair and equitable with one another."
The developer said similar language has been used in contracts in some of his companies' other developments, but he would not identify them.
He said none of the more than 50 homebuyers in Avalon Courtyard Homes objected at the time of their purchase to the language, which is on page eight of a sales contract of about 12 pages, in a paragraph labeled, "Notice to Purchaser."
Lawyers didn't notice
Still, at least two attorneys who bought homes there said they did not notice the clause.
Similar language is in a 2-inch-thick document establishing an umbrella organization for community associations at Avalon East - meaning it could apply to residents of townhouses and apartment-style condominiums in Avalon, along with the courtyard homes residents.
Also, it could apply to anyone who buys a home from a current resident.
David I. Caplan, property manager for the Avalon Courtyard Homes community association, said, "The people's reaction to that issue - call it the gag order - ranges from frightened resignation to indifference to absolute incredulity. "I don't think, overall, anybody was completely aware of its existence and impact when they signed it."
Residents say they are afraid that challenging the provision could bring on a lawsuit - and large legal bills.
The issue arose in August, after five Avalon residents attended a hearing to oppose the developer's request for a zoning variance to allow him to build additional courtyard condominiums where townhouses had been planned.
Among those at an Aug. 23 hearing to oppose the request - which in the end was granted - was Avalon Courtyard Homes resident Audley Diamond.
Accused of violation
Within a few weeks, Diamond received a letter from lawyers representing Questar and its affiliated companies accusing him of breaching his sales contract - and saying the companies "reserve the right to exercise any and all remedies available to them. ... "
Diamond, a dentist who came to America from South Africa about 20 years ago, said the restriction is nothing less than un-American. He said he was so enraged that he called the lawyer and left a voice mail message. "I let him have it about the fact that I moved from another country to the land of the free and all of a sudden the land of the free was like Nazi Germany," Diamond said. "I believe it should be illegal to sign away your rights to protest."
Late last year, Avalon developers filed a request to rezone about 17 acres on which they have not yet built.
On a parcel on Reisterstown Road that had been approved for condominiums, they want zoning to allow for office buildings. On land adjacent a planned grocery store, the developers want a zoning change to allow "specialty shops" such as dry cleaners.
And on a 11-acre site that has been approved for townhouses, the developer wants to build four-story condominiums surrounding a "Main Street" and a village green as long as a football field.
The zoning sought for that portion would allow up to 40 residential units per acre - or more than 440 for the site. But Gorn said his plans would increase residential units by only 75 to 150 from what is allowed under current zoning.
County planners, and organizations from adjacent communities, say that clustering office and commercial development along Reisterstown Road is probably a good idea. Two community associations within Avalon are supporting the rezoning request.
But some residents of Avalon Courtyard Homes - speaking on the condition that their names not be revealed, for fear of being sued - say they are concerned that the developer's plans would bring more traffic to Avalon. "This can significantly reduce our property values and resale desirability!" read a flier distributed in the neighborhood. The flier, which brought another letter from the developer's lawyers to at least one woman suspected of distributing it, added, "This is obviously not what we bought into."
Gorn, the developer, said those concerns are baseless.
Rudo steps forward
On April 6, dozens of residents of the county's second councilmanic district came to Randallstown High School to speak for or, more often, against requests to rezone property in their communities. But no one from Avalon Courtyard Homes stood to be heard about Questar's plans - until Howard Rudo stepped forward.
After telling the board about the contract restrictions, Rudo asked his neighbors to stand. About two dozen did. "There are others who are afraid even to attend this meeting," Rudo told the board.
Later, planning board Chairman Kenneth N. Oliver said, "We were kind of shocked when people couldn't say anything."
Some who were at the hearing received letters from Questar's lawyer that said: "My clients are currently evaluating what actions they should take with regard to this breach of your agreements."
Lawyers interviewed questioned whether Avalon's contract provision would stand up in court. "There are reasons that people shouldn't have to live with what they sign," said Blom, the University of Maryland law professor. "Yes, you are expected to read and understand what you're signing. At the same time, the law provides for people to challenge what is unreasonable and not in keeping with fair practices."
Residents of Avalon Courtyard Homes say their community association has retained lawyers to explore their next move, but they declined to be more specific. Gorn, who met with the community earlier this spring, said he is willing to meet again to discuss his plans.
The planning board will discuss the Avalon rezoning proposal and other requests for the second councilmanic district at a work session May 23 and will make its recommendations next month.
In the end, Kevin B. Kamenetz, the district's councilman, will decide on the rezoning request.
Kamenetz said the contract provision raises "some First Amendment issues."
He added: "The bottom line is, whether anyone wants to speak with me, either in confidence or in public, regarding their concerns about a zoning issue, I'm happy to meet with them."