Ellicott City Builder Gets Decked In Pickets Charge Two Homeowners Win Fight: Court Says Their Railings Are All Right

October 03, 1990|By Deidre Nerreau McCabe | Deidre Nerreau McCabe,SUN STAFF

It's taken a year and almost $1,000 in legal and attorney's fees, but two homeowners at Woodland Village in Ellicott City have won their fight for picket rights.

The homeowners can keep their deck pickets just the way they are, whether their builder likes it or not, a Circuit Court judge decided Monday.

The legal battle of John E. Ney and Scott J. Glover, both of Old Hollow Lane in Ellicott City, began more than a year ago when Woodland Village builder and developer Richard Azrael was walking through his development off Route 108 and noticed something amiss on the men's properties.

They had built decks with rail pickets two inches narrower than the builder wanted.

The narrower pickets resulted in "an enormously different look," Azrael testified in Howard County Circuit Court Monday. "It pops right out. I can pick it out in a second.

"The size of the pickets is important to have consistency in architecture," he added.

Woodland Village, which will be a community of 632 town house and condominium units when completed, is built around a theme of "uniformity," Azrael said. All units must look the same, including the exact style of the decks, he said.

Azrael, president of Chateau Builders Inc., wrote Ney and Glover in May 1989 demanding they replace the pickets on their decks. Take the pickets down in 10 days, Azrael warned, or the homeowners' association will take legal action.

The letters arrived more than six months after both decks had been completed.

Ney and Glover, who had already received approval for their deck designs, would not budge. Azrael then filed suit against them in Circuit Court on Sept. 6, 1989.

The two men hired their own lawyer and determined they'd rather fight than switch their 2-inch pickets.

After Monday's four-hour court trial, which included 15 exhibits and six witnesses, Circuit Judge James B. Dudley ruled in favor of Ney and Glover and denied the builder's request that the court order the men to replace their pickets.

Replacing the pickets would have cost about $130 for each deck.

Although Dudley acknowledged a builder's right to enforce restrictive covenants at his developments, he said the case of the pickets revolved around "misinformation" and was therefore unenforceable.

When Ney and Glover built their decks in 1988, they were among the first homeowners seeking approval for their designs. At the time they submitted design plans, no written specifications demanding 1-by-4-inch pickets existed, just a written description that all decks look like those built on the community's models. The models have decks with 1-by-4-inch pickets.

The written specifications were developed later to "clear up any confusion" about how decks should be built, one witness testified. However, those specifications were not available until June 1989 -- well after Ney and Glover had completed their decks.

Dudley said the verbal description was clearly open to interpretation.

The homeowners may have thought they were in compliance simply because they were using pickets instead of another sort of railing, such as lattice work.

"It's indisputable that the decks are in the style of the models," Dudley said. He added that neither side contended that Ney and Glover had "proceeded in bad faith" or that there was any evidence they had "tried to After the trial, Azrael said he had no comment. "We lost the case, I have nothing else to say," he said. He would not comment on the fate of a Before the court case began, Azrael said he had not filed suits against the others because he first wanted to see how these cases turned out.

Ney and Glover said afterward they thought they had won an important victory.

"It's the principle of it, and we decided we had to go ahead with it," said Glover. "We don't question he has the authority to enforce the Two other homeowners, Elizabeth and Robert Henley of Old Litchfield Lane, were also sued last fall. They decided to switch their pickets rather than fight, and Azrael agreed to drop the suit against them. Robert Henley said he replaced the pickets himself for $100.

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