Couple, Association Fight To Near-finish Over Garage

October 08, 1991|By Arthur Hirsch | Arthur Hirsch,Staff writer

It must be the most expensive two-car garage in this or any other county in America.

Between construction and legal costs, a South County couple says their garage has cost them nearly $100,000. It has set neighbor against neighbor as it became the focus of a lawsuit, trial and appeal that decided this: The two-car garage must be made smaller. That'll be about another 15 grand.

Intense emotions have been churned up in the fight over the garage that Claire and Jack Mallicote built on their property in the Bay Country Estates subdivision in Dunkirk, just north of the Calvert County line. One can hear that in this remark from Ms. Mallicote: "It's torn our lives up, it's torn relationships with neighbors. . . . I feel like we've been raped for five years."

"It's very complicated, it's very impassioned," said President John Koday of the Bay Country Estates Homeowners Association, which he said spent nearly $40,000 to pursue the suit. The money came from dues paid by homeowners.

Resident Linda McCaffrey of Southland Court said the association "took ittoo far. . . . The money could have been used, in a new community with children, for a playground, for something else. . . . I wanted to drop the whole thing from the very beginning."

"My husband and I are very disenchanted with the community," said Kathy Walker, the Mallicotes' next-door neighbor on McKendree Road. The garage dispute, shesaid, has "created Claire's people and followers of Koday. It's split the community right down."

In hearing such comments, in scanningthe stack of legal papers, it is easy to forget that at the center of this dispute stands a building that would fit on a tennis court with room to spare, a building 52 feet long by 26 feet wide by 21 feet high.

But Nancy Sakal, one of five members of the association board, said the issue was bigger than the garage. The group, she said, hadto defend its authority to enforce 10 pages of covenants governing everything from television antennas to mailboxes in the community of 133 homes on 350 acres.

"When you read what happened, you see what happened is what had to happen if we were to have a homeowners association," Sakal said.

The court case -- which took four years to move through the Circuit Court and the Court of Special Appeals -- turned on the question of whether the Mallicotes had permission to build the garage. It was a question of who had the authority to give this permission.

The association, four homeowners and the developer's corporation filed suit in June 1986 to stop construction of the garage. In October 1987 they amended the complaint to ask that the garage be removed.

The Mallicotes had poured the foundation in January 1986.They stopped construction after the developer, F. Richard Stark of Potomac, asked that the garage be made smaller, then resumed that May under the original plans when they could not agree with Stark on how to revise the plans. They finished the garage in July.

Claire Mallicote testified that Stark expressed disapproval of their plans in a telephone conversation but never formally denied permission to build the garage. Under the covenants, only Stark or his corporation, as the "declarant," held the authority to disapprove the plans. The covenants say that if the "declarant" does not give written disapproval within 45 days of submitting plans, the plans should be considered approved.

The Mallicotes did get written disapproval within that time, in a letter dated Jan. 27, 1986 from a lawyer for the homeowners association. The Mallicotes' lawyer, Stephen J. Britz of Annapolis, argued that because the association was not the declarant, it did not havethe authority to disapprove the plans. He also argued that in January 1986, the association had no authority at all since between October1982 and March 1986 it had forfeited its state charter for non-payment of taxes.

The Mallicotes presented evidence showing that other homeowners had violated the covenants by building homes, a deck, a swimming pool without submitting plans and getting written approval. None of these alleged violations resulted in legal action by the association.

In October 1989, Circuit Court Judge Eugene M. Lerner rejected the Mallicotes' arguments. He said Stark's telephone disapproval and the letter from the association were enough to meet the requirements of the covenants. He also agreed with the plaintiffs' argument that the Mallicotes -- who run an office supply business in Deale -- had used the garage to store merchandise. The covenants forbid commercial use of any building in the community.

Without setting a deadline, Lerner ordered the Mallicotes to cut the garage height down to 15 feet, the length to 39 feet. Last November, the state Court of Special Appeals upheld his decision.

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