Both sides raise roof over HarborView

Decision expected in 30 days after lengthy hearing on right to build penthouses


To put it gently, HarborView's developer and the coalition of community groups challenging his right to build penthouses atop his latest waterfront project don't agree on much.

Certainly not much that came up during yesterday's seven-plus-hour hearing on - tediously - what exactly is allowed on top of the roofs of the Pier Homes at HarborView, pricey real estate under construction along the South Baltimore waterfront.

At the heart of the disagreement is HarborView developer Richard A. Swirnow's contention that city law allows penthouses with enclosed stairways and elevators on top of the 58 feet permitted for the homes. His challengers say only mechanical equipment is allowed - and that the violating structures must come down.

With a multimillion-dollar property, priceless views and the community's faith in how the city enforces its building laws hanging in the balance, the housing department's Jan Goslee, who presided over the hearing, has 30 days to issue a ruling.

The dispute erupted in June when the city's housing commissioner issued a stop-work order on the Pier Homes because the penthouses put them about 4 feet over the 58-foot limit. For more than a year before that, Federal Hill activists had been trying to tell any city officials who would listen about the violation.

The city ruled that the penthouses, which HarborView at the time was selling with wet bars, housed much more than the mechanical equipment allowed.

As Swirnow defied the stop-work order and the ensuing cease-and-desist order, officials forced him to shrink the penthouses, lose the wet bars and pay $10,000 for new permits to reflect the changes. They allowed him, however, to continue installing elevators and staircases in the rooftop structures.

Believing that wasn't remedy enough, the activists appealed - prompting yesterday's hearing.

Though figuring out whether penthouses like this are in the city's rulebook seems like a simple enough venture, yesterday's testimony showed that's anything but the case.

Muddying the matter are prickly differences of opinion on an assortment of technicalities. Dense arguments sprouted on such head-scratching topics as:

Is a roof really the top of a building?

Is a penthouse a structure?

And are the rules of an urban renewal plan, as stated in the one that governs the HarborView area, really "over and above" other city codes and ordinances?

Assistant City Solicitor Adam Levine elicited giggles from both sides with his insistence that the city rules applying to the Pier Homes' height only apply to the roof line - not anything above it, like a penthouse.

"It doesn't say the building should not exceed 58 feet, it specifically says `the roof,'" Levine pointed out. "We have to assume that distinction meant something."

David Kinkopf, HarborView's attorney, appreciated that line of thought, saying, "Mr. Levine has done a good job addressing what would be a shared view of the major issues."

Attorney for the community challengers, John Murphy, asked his main witness, architect Rich Polan, to read directly from the hearing's key urban renewal ordinance passage:

"The roof of any structure shall not exceed ... 58 feet. ... Rooftop mechanical equipment may exceed such a maximum elevation."

"Is that the only exception stated?" Murphy asked.

"Yes," Polan replied.

Following up, Murphy asked: "So is it your understanding that this urban renewal plan is an additional requirement beyond the zoning code?"

"Yes," Polan answered, as Kinkopf objected.

That's not entirely the case, city planners testified.

Bob Quilter, an architect with the city planning department, testified that often, when considering renewal ordinance passages that do not specifically address a matter - like the way the one under consideration addresses rooftop mechanical equipment but not penthouses - planners look elsewhere for guidance, including the building and zoning codes.

Those other codes allow for rooftop staircases and elevators, Quilter explained.

"You cannot deny access to the roof," he said.

Yesterday morning, the eighth-floor conference room of the city's Benton Building filled to capacity as supporters of both sides filed in to observe the proceedings.

Janan Broadbent, in the audience to support HarborView, where she lives, said during a break that listening to the arguments was showing her that the situation is much more complicated than she thought.

"It just isn't black and white," she said.

But for the South Baltimore community leaders, there was only one right answer: Abide by the urban renewal plan and get rid of the penthouses.

"This is not about the developer," said Ann Fiocco, president of Riverside Action Group. "This is about the planning department following the urban renewal plan they helped write."

The attorneys spent hours arguing over whether the Pier Homes were destroying view corridors from Federal Hill. View preservation is something the urban renewal plan calls "a major objective" and something that should be given "special design attention."

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