Baltimore residents opposed to the demolition of a fire-damaged building in the Mount Vernon historic district could face questioning from a developer’s lawyer over letters they wrote, a process some say amounts to intimidation.
At issue is a decision before the Baltimore Commission for Historical and Architectural Preservation regarding an application to raze a fire-damaged garage at 12 East Eager Street. The city received seven letters in opposition to demolition.
At a June meeting, a lawyer for the developer said he wanted to cross-examine the authors of the letters before a decision was reached. The request delayed the ruling, and some residents decried it.
“This is intimidation,” said Drew Rieger, a member of the Mount Vernon Belvedere Association’s Architectural Review Committee and one of the letter-writers. “Why are they making private citizens jump through more hoops in order to express an opinion?”
The back-and-forth highlights tensions between developers and neighborhood residents and preservationists in some parts of the city.
Rieger said he wrote the letter in part to avoid aggressive actions by lawyers.
Last year, developer Larry Jennings sued Clipper Mill residents after they voiced opposition to his projects at the preservation board and planning commission. Even though Jennings’ suit was dismissed, Rieger said, he didn’t want to open himself up to a potential lawsuit for testifying in public the way the Clipper Mill residents did.
Rieger was among several letter-writing residents informed by a city employee that they should be prepared to virtually attend a July 13 meeting of the preservation commission so they could be cross-examined by the developer’s attorney, or the views in their letters may be disregarded.
The message was sent on July 6 by Caitlin Audette, a planner with the preservation commission. The topic has now been postponed.
“I’m reaching out to you regarding your letter in opposition to the proposed garage demolition at 12 E. Eager,” Audette wrote. “This proposal was tabled by the commission at the June 8th CHAP hearing and will return for the July 13th CHAP hearing. It was tabled following a request from the applicant’s attorney to cross-examine the people who wrote letters in opposition to the proposal. As none of these people were in attendance, that wasn’t possible.”
Abraham Hurdle, the attorney representing the developer, said established case law allows for questioning of those providing written testimony, and that his request is not intended to discriminate.
Audette said in her message that the agenda item also was tabled because the commission wanted advice from the city’s law department about how to respond to the attorney’s request to cross-examine the letter writers.
“The law department has advised us that they don’t believe we can compel anyone who wrote a letter to attend the hearing for cross-examination, as requested by the attorney for the applicant.”
Audette then shared what the city’s lawyers suggested as a way to handle the situation.
“To avoid any legal dispute,” she said, “they recommend the commission make a decision without taking the letters of opposition into consideration. The decision is ultimately up to the commission.”
Fire-damaged garage
The main building at 12 East Eager Street is a three-story rowhouse that was built in the late 1800s as a single-family dwelling and later was used as office space. According to state land records, the property is owned by 12 East Eager St. LLC, which paid $500,000 for it in 2018, and it’s zoned for commercial use. CHAP’s June agenda listed the demolition permit applicant as David John Amato.
The property was the subject of a neighborhood controversy several years ago when a group led by the principals of Reveal Real Estate, Stefan Popescu and Andrew Klymkowsky, proposed to create up to 12 micro-units in the front building. Neighbors objected to the micro-unit plan, and the project never materialized. According to neighbors, the main house is currently being used as a residential drug treatment center.
At the June 8 CHAP meeting, commissioners were told that the owner wants to tear down an early 1900s carriage house in the rear of the property that has been used as a garage but was damaged in a fire on February 3. Much of the discussion concerned the extent of the fire damage. The building today is missing its garage door and part of its roof, leaving it open to the elements.
A fire restoration expert hired by the owner said the garage was “badly damaged” and would require soda blasting or sandblasting to remove soot from the brick surface, causing the building to “lose a lot of its original appearance.” He noted that other houses on the block have parking pads rather than garages.
Audette, who is the agency’s primary liaison with Mount Vernon, told the commission that the damage wasn’t so extensive that the building lost its historical significance. “Despite the fire,” she said, “the masonry structure appears to be relatively sound.” At the same time, “the installation of a new roof structure, windows and doors are necessary to return the garage to a sound condition,” she said.
“Jumping through more hoops”
Before the meeting, the preservation panel posted notices on the property and on the city’s website about the application, providing a chance to testify virtually or submit letters in support or opposition.
Rieger, one of seven letter-writers, said he believed that writing a letter was an acceptable alternative to testifying in person, especially during the COVID-19 pandemic. He said he doesn’t understand how a city agency could compel a letter writer to attend a public meeting, and be cross-examined, in order for his or her letter to be considered.
“Is this a new policy?” he asked. “I thought letters were meant to be in lieu of public testimony…How can they compel someone who writes a letter to submit to cross examination?”
Rieger wonders about people who may not have access to a computer or cell phone. “How can the city require them to attend and be cross-examined?” he asked. “It’s not treating everyone equally.”
Litigious issue
Eric Holcomb, executive director of the preservation board, said he decided to pull the item from CHAP’s July 13 schedule because he and the commissioners still have questions for the city law department. He said the matter will come back to the commission at a future hearing, most likely in August. He declined to answer other questions about the application or the process.
“Because of the litigious nature of this issue, I can’t answer any of your questions at this time,” Holcomb said in an email. “This is an evolving issue.”
The request to interrogate the letter writers came 15 minutes into the June 8 hearing from Hurdle, the attorney representing the property owner.
“We received copies of the letters in advance of the hearing, with our right to subpoena those people to this hearing,” Hurdle said. “I have had issues with CHAP hearings in the past, not being able to cross-examine people. It has been appealed and we have come out ahead on those issues.”
After checking, commission chair Tom Liebel told Hurdle that no one who submitted a letter was present at the virtual hearing. “What might be prudent at this point is to table the matter and we can make those letters available to you and you can proceed from there. Would that be acceptable?”
“Yeah. We would like to summon those people to the hearing,” Hurdle said.
Panel member Aaron Bryant asked whether there is any precedent for making letter writers appear at a public meeting and agree to be cross-examined, in order to have their letters considered.
“Can people be compelled to come to the hearings to testify?” he asked.
The panel voted 9 to 0 to reschedule the matter to seek legal advice.
Hurdle said in an email message that he and his clients agree with Holcomb’s decision to postpone the hearing “given the complexities of the matter.”
He said his request is not intended to intimidate or harass the letter writers.
“Our system is built on a right to face our accusers,” he said. “This is not to intimidate or scare anyone. Someone cannot say whatever they want in a letter and have it be considered fact. Established case law dictates that, upon request, that person must testify under oath to their statement, or their ‘evidence’ is withdrawn. I merely want the letter writers to testify, under oath and the penalty of perjury, to their previous statements.”
“Unduly pressured”
John Murphy, an attorney who represented the Clipper Mill residents sued by Jennings, said an attorney has a right to cross-examine people who testify at a governmental hearing – as long as it’s to obtain information that can help commissioners make an informed decision and not to intimidate private citizens.
“As a general matter, people who testify at a CHAP hearing on an individual matter are subject to cross-examination,” he said in an email. “However, CHAP should be sure it is genuine cross-examination and not harassment.”
Murphy added that letters “traditionally do not have the force of live testimony” at governmental hearings, in part because of “the lack of an opportunity to cross-examine…A letter is no substitute for live testimony.”
But he said letters still can be valuable to governmental boards. “Administrative agencies often consider letters,” he said.
Asked about the Eager Street issue, in which he isn’t involved, Murphy said he doesn’t believe CHAP should change its longstanding practices and policies.
“I think CHAP is being unduly pressured by the attorney,” he said. “If it is the general practice of CHAP to consider letters, they should stick to the general practice. The attorney can argue that CHAP should not pay much attention to the letter.”
Baltimore city officials must stop issuing permits that allow for the destruction or removal of historical architecture, art, monuments, bridges,and parks.