Maryland’s highest court hears oral arguments in Purple Line fence fight
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Version 0 of 1. Maryland’s highest court heard oral arguments Thursday in the case of a Chevy Chase homeowner who was cited for building his back fence 14 feet beyond his property on public land long preserved to build a light-rail Purple Line. The Maryland Court of Appeals decision, which is at least several months away, could complicate the Maryland Transit Administration’s plans to build part of the 16-mile transit line along a three-mile wooded trail between downtown Bethesda and Silver Spring. It also could affect about 84 property owners who Montgomery County officials say have built fences, sheds, decks and other structures behind homes that back up to the trail. County officials say those structures encroach on public land intended for the Purple Line. A lower-court judge sided with homeowner Ajay Bhatt in December 2014, ruling that his six-foot-high wooden fence wasn’t on public land. Previous owners of Bhatt’s home, the judge said, had taken “adverse possession” of the 14-foot-strip along the trail shoulder by fencing it into the backyard when a railroad company owned it. The judge found that, because the land had been openly fenced in for more than 20 years — since at least 1960 — the freight railroad effectively lost ownership of it. The problem: Montgomery County assumed it bought the strip behind Bhatt’s house when it paid $10 million in 1988 for the railroad’s right of way. The county turned the track bed into a gravel recreational trail until a transitway could be built. The state now plans to use the trail land, perhaps as early as next year, to build the Purple Line’s western segment, including a possible retaining wall along Bhatt’s yard. Trains would run alongside a rebuilt trail. [How the fence fight started] If the seven-judge appeals court also sides with Bhatt, the state or county could be forced to legally condemn land that residents have built on and then repurchase it, a potentially lengthy and costly process. County officials say those approximately 84 property owners have built about 130 structures, including playground equipment and paved parking pads, on the trail land. Longtime residents have said the Metropolitan Southern Railroad Company, which owned the land for nearly 100 years before the county bought it, didn’t mind them using the land along the track bed’s shoulders. The trail runs through some of Montgomery’s most expensive real estate, including in Chevy Chase and part of Bethesda. The rail project is now estimated to cost $2.15 billion, and the state is still lining up construction funding. The county has pledged $100 million to rebuild the trail. And what would the county do if the high court finds that those residents have a right to “adverse possession” of some of that land? “We’d have to study our options,” said Robert J. Birenbaum, an associate county attorney, after the one-hour oral arguments in Annapolis. The fence fight reveals deep rifts over the Purple Line plan, particularly the alignment along the Georgetown Branch Trail, a rare swath of green space in an otherwise heavily urbanized area. Bhatt is president of Friends of the Capital Crescent Trail. The citizens group has filed a federal lawsuit arguing that the trail alignment, which would run through Rock Creek Park, would violate the Endangered Species Act and other environmental law. County officials investigated Bhatt’s fence in October 2013 after a longtime advocate for the rail project reported it. Bhatt has said his fence was targeted because of his vocal opposition to the project. The Purple Line project needs a court decision quickly. State officials have said they plan to award a 35-year contract for the line’s construction and operations in the spring. Construction is scheduled to begin in mid-2016, with trains operating in 2021. The two-car trains would run mostly along the trail and on streets between Bethesda in Montgomery and New Carrollton in Prince George’s County. The county has asked the appeals court to use Bhatt’s case to clarify state law regarding whether residents can take adverse possession of land that they built on while it was owned by a railroad company. The Maryland Transit Administration has weighed in on the case, writing in a brief to the appeals court that a ruling against the county could delay the Purple Line’s construction and “result in unnecessary, time-consuming and costly litigation.” The ruling could have implications statewide, the MTA wrote, because the state has spent millions buying or leasing much of its rail line property from railroad companies. If the court rules that residents may take adverse possession of that land by building on it when the railroad company owned it, the MTA wrote, that would encourage residents to lay claim to public land preserved for future railways or recreational trails. The state then could face multiple legal claims and be required to pay twice for the same land “at significant extra cost to taxpayers,” the MTA wrote. [A changing answer: How many people will ride the Purple Line?] The Georgetown Branch Trail is among more than 21,000 miles of out-of-service freight rail corridors nationwide that have been converted to recreational trails under a 1983 “railbanking” provision of the federal trails law, according to the Rails-to-Trails Conservancy. Birenbaum, the county’s lawyer, argued Thursday that Maryland law regards railroad rights of way as “public highways,” which are immune to adverse possession claims. Railroad land, he said, is considered in trust for “public use.” The exception, Birenbaum and several appellate judges noted, is in cases in which the railroad company had clearly “abandoned” the land that a resident built on. However, Birenbaum argued, the freight railroad hadn’t abandoned the land behind Bhatt’s house because trains ran continuously from 1892 to 1985, during the 20-year period when Bhatt said the fence had laid claim to part of it. Bhatt’s attorney, Jeffrey C. Seaman, argued that the 14-foot strip wasn’t protected for “public use” because it had been fenced in and unavailable to the public for decades. He said a previous Maryland appellate decision that also involved the Georgetown Branch Trail determined that railroad property could be susceptible to claims of adverse possession if the land was no longer being put to public use. Bhatt’s fence, Seaman told the appeals court, “is a classic example of adverse possession” allowed under Maryland law. |