Clark Enterprises Questions Legality of Bethesda Metro Development Plan

Clark Enterprises Questions Legality of Bethesda Metro Development Plan

Court challenge centers on use of open plaza for 290-foot building

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The Clark Enterprises office building near the Bethesda Metro Center.

File photo

A Bethesda-based company questioning a development proposed at the Bethesda Metro Center argued in court on Monday that the county Planning Board did not thoroughly review the project before granting a preliminary approval to an early set of plans last year.

Clark Enterprises, with headquarters in an office building adjacent to the property, filed an appeal in November after the county Planning Board approved a sketch plan filed by New York-based Brookfield Property Partners for a 290-foot-tall building of residences, shops and restaurants in a plaza at the Metro Center complex.

Lawyers for Clark argued the space has been treated as a critical public amenity in past years by the Planning Board, the same agency that approved plans for elimination of the plaza, which has been criticized for its “awkward” design.

Clark lawyers said the Planning Board did not do its due diligence in investigating concerns about the plaza’s future raised by community members during public meetings. They argued the board failed to determine who has legal ownership of the plaza and whether the space can be repurposed for commercial construction.

“They didn’t do what they needed to do to address that issue, and this action is inconsistent with what they’ve done before on the same property,” said attorney Deborah Baum, of Washington-based Pillsbury, Winthrop, Shaw and Pittman.

Planning Board attorney Nicholas Dumais said Clark’s argument is premature since it was raised after the earliest approval of the project plans. More thorough reviews and details are typically presented at later stages of review.

“The Planning Board members, frankly, are scratching their heads wondering why we’re here today … when, in fact, in all likelihood the petitioners will raise the same issues on the preliminary plan, which, to my knowledge, should happen in the next six months,” Dumais said. “The context under which we’re standing here today is the appeal of a sketch plan, a very conceptual plan and the very first step of any major development in Montgomery County.”

After more than two hours of arguments, Montgomery County Judge David Lease opted to review the more than 1,200-page court file and issue a ruling next month.

Initially proposed with two alternatives, the Bethesda Metro Center plan recently took a more definitive angle, with Brookfield filing updated plans outlining 489 residences and retail space, as opposed to a retail and office building.

Brookfield also intends to renovate the Metro bus bays near the site to include a covered entrance, staircases and bike storage.

Brookfield’s plan for the open space would give rise to a plaza near the Metro access along Wisconsin Avenue.

A promenade lined with restaurants and shops would lead pedestrians between the Hyatt Regency Bethesda hotel and the new building, ending at a central lawn that could accommodate pop-up programs, concerts and outdoor movie nights, according to the company’s plan. A quieter “gallery” corridor would run past 3 Bethesda Metro Center toward the Clark building.

It is standard practice for the Planning Board to impose mandates on approved projects regarding how much public open space developers must include.

Lawyers for Clark said it’s unfair to allow the plaza to be built over after mandating that Clark construct the plaza in the early 1980s when is office building was under construction.

Dumais argued there is no further legal obligations to maintain the plaza that would conflict with approval of the project.

Baum said Clark will continue to raise its concerns as the Planning Board’s review process continues, if the court does not side with the company.

“We’ll do this all again at site plan,” Baum said. “Clark is not opposed to development, they just want it smart and done consistent with law.”

Caitlynn Peetz can be reached at caitlynn.peetz@bethesdamagazine.com

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