Ellsworth Drive Background
Free Our Streets researcher Adam P has looked into the background on Ellsworth Drive and PFA Silver Spring LC, a development partnership including the Peterson Companies, Foulger Pratt and Argo Investment.
Here’s the results of our research on the status of Ellsworth Drive between Georgia and Fenton.
Ellsworth Drive is separated into two pieces, both of which are owned by Montgomery County. The eastern segment starts at Fenton, proceeds west and terminates at the edge of City Place Mall.
This segment is indistinguishable from Fenton Street and the portion of Ellsworth to the east of the intersection. It is a county-owned, county-controlled road.
The western segment, which stretches between the City Place edge and Georgia, is also owned by the county but is leased to PFA Silver Spring LC, a development partnership including the Peterson Companies, Foulger Pratt and Argo Investment. The parcel is designated as Map JN33, Parcel N315, district 13, account number 03279403, plat 21283. In 1998, the county agreed to “abandon” this portion of Ellsworth, meaning it would no longer be traditionally used as a county road. The abandonment was subject to county council resolution 13-1429, which stated as a condition for the abandonment: “The granting of an easement for public access on Ellsworth Drive pursuant to the General Development Agreement.”
The General Development Agreement states the following in Section 14:
“The County agrees to seek County Council approval of the abandonment of Interior Ellsworth Drive. Upon execution of Ground Leases for both Sections B and C of the Project, the County shall enter into an unsubordinated Ground Lease for a ninety-nine year term with Developer or an association formed by Developer for Interior Ellsworth Drive. The Ground Lease for Interior Ellsworth Drive shall be terminated upon a termination due to default under the Ground Lease for either Section B or C and shall not be subordinated to Developer’s Construction Financing or Permanent Financing. Devevloper shall not have an option to purchase Interior Ellsworth Drive. The Ground Lease shall be triple net at nominal rent of One Dollar ($1.00) per year and other than the cost of the initial design, development and construction thereof pursuant to a Public Improvement Contract, the Developer shall assume all cost, liability, maintenance (ordinary and capital), security, and other responsibilities incidental to ownership of and associated with Interior Ellsworth Drive. The Ground Lease shall provide that Interior Ellsworth Drive shall be used for vehicular and pedestrian traffic with an easement across it for public access to the Silver Circle Garage and access from Georgia Avenue to Fenton Street and that Interior Ellsworth Drive shall be closed up to four (4) times per year (on dates and at times to be reasonably agreed to by the Developer) to allow the County to conduct public festivals coordinated through the Silver Spring Urban District Corporation (or the County if the Silver Spring Urban District Corporation is not formed). No changes to the alignment or construction of Interior Ellsworth Drive may be made without the county’s consent. No more than a to be agreed upon number of parking spaces may be created on Interior Ellsworth Drive.”
So the GDA makes the developer responsible for security, but ensures “an easement across it for public access.” The GDA also refers to a separate Declaration of Easements in Section 13. Item 6 in that declaration states:
“6. Public Use Easements
Declarant [county] hereby establishes and grants for the use and benefit of the general public, those certain easements and rights (collectively the “Public Use Easements”) more particularly described below. Pursuant to the plans for the Downtown Silver Spring Project as approved by the applicable governmental authorities, the Public Use Easements have been designated and shall be deemed for all purposes of this Declaration to constitute Public Use Space as such term is defined in Section 59-A-2.1 of the Zoning Ordinance of Montgomery County, as the same may be amended from time to time. The Public Use Easements are described and depicted on Exhibit H attached to and made a part of this Declaration and shall consist of the following…
(iii) a perpetual non-exclusive easement and right of passage and use, free of charge, for vehicular and pedestrian ingress and egress on, over and across Ellsworth Drive…”
Section 59-A-2.1 of the county’s zoning ordinance defines public use space as: “Space required by the sector plan and other space devoted to such uses as space for public enjoyment consisting of such things as, but not limited to, green areas, gardens, malls, plazas, walks, pathways, promenades, arcades, lawns, fountains, decorative plantings, passive or active recreational areas. Such space may also consist of space and/or amenities recommended by an approved urban renewal plan. Such space shall not include parking or maneuvering areas for vehicles. Area devoted to this purpose shall be easily and readily accessible to the public without restrictions to particular segments of the public. In areas where pedestrian walkways are shown on an approved and adopted master plan or sector plan, such area within the percentage required for public space as is necessary shall be devoted to the provision of pedestrian walkways or paths for general public use.”
However, Exhibit G of the Ground Lease states: “Subject to the terms of the Declaration [of Easements] and the terms of this Lease, Tenant [developer] shall have the sole and exclusive right to manage and program the uses of the Project and to impose and enforce such reasonable rules and regulations as Tenant deems necessary to maintain order and to promote the safety, security and economic success of the Downtown Silver Spring Project.”
So both the General Development Agreement and the Declaration of Easements provide protections for the public, defined as public “access” in the GDA and “right of passage and use” in the Declaration. The Declaration even goes so far as to designate the area as “Public Use Space.” However, these rights are not absolute as Peterson has broad management authority so long as its rules are “reasonable.”
It’s clear from the lease agreement that the Peterson Company cannot prohibit photography. While the lease gives Peterson the right to “promote the safety, security and economic success” or the street, there’s nothing about photography that can interfere with that. Peterson can’t seriously claim that photography interferes with safety or security or public success.
As pointed out, a ban on photography is not allowed under the terms of the lease because it’s not “reasonable.”