Judge rules waterfront house can be finished

County ordered Hollywood couple to stop work in 2007

Friday, May 29, 2009

Work on the two-story brick home off Clarke's Landing Road overlooking Nats Creek began in 1986, but was never finished as Roy and Jane Hart coped with health and financial problems. Work continued on the house on and off over the years and the St. Mary's County Department of Land Use and Growth Management put a stop-work order on it in 2007 before construction was finished because the building permit had expired.

The board of appeals ruled last June the project did not have a vested right to continue because the permit had expired for an undetermined amount of time. The case was appealed to circuit court.

Judge C. Clarke Raley handed down a written opinion May 20 that said an involuntary stoppage of work does not constitute an abandonment of a structure and the expiration of a building permit does not delete a vested property right.

The case is now remanded back to the board of appeals to comply with the judge's orders.

"Once a vested right exists, it can only be lost by constitutionally approved methods," Raley wrote. "Therefore, the building permit's possible expiration in this case is irrelevant as to whether vested rights exist."

Raley said the board of appeals erred when it did not state a specific time the Harts abandoned the project. The zoning ordinance changed twice since the building permit was issued in 1986, in 1990 and in 2002. "If this Court were to find that abandonment occurred pursuant to the new ordinance for activity prior to May 13, 2002, the zoning ordinance would be enforced retrospectively, and this cannot be done," he wrote.

"My wife and I have put our retirement money into this home," Roy Hart, then 72, told the board of appeals. He said that he spent $557,000 on the project.

Raley continued, "The Petitioners in this case did not exhibit any behavior indicating voluntary cessation of construction," as work continued on a piecemeal basis as family health and finances allowed. "This Court does not believe that the expiration of or failure to renew a building permit alone indicates an intent to abandon," he wrote.

The order stated the Harts could complete the house according to the original building permit, but the additional deck and breezeway that were built would need the appropriate permits from land use and growth management.

The Harts live on the property in another structure, an apartment over a free-standing garage.

Their attorney, Chris Longmore, said Thursday, "They're very happy with Judge Raley's decision. They're very relieved he ruled the way he did."

Appeals usually take a long time, he said. "They're kind of at a place where they're tired, but relieved. This is really their retirement," he said.

jbabcock@somdnews.com