Monday, May 20, 2013


I've promised to keep you updated on the soap opera involving the condemnation of the building housing Fresh Grill on Fairmont Avenue, and I just uncovered some more information.

The most intriguing twist? An engineering firm currently retained by Montgomery County to inspect and solve the Silver Spring Transit Center fiasco, claimed the Fresh Grill building was not in danger of collapse from the Bainbridge excavation next door.

This directly contradicts the findings of another firm retained by White Flint Express Realty Group LLP (owner of the damaged buildings at 4909 and 4905 Fairmont Avenue), which I reported on last September.

Despite the acknowledgment of cracks in the Fresh Grill structure by both the Montgomery County Department of Permitting Services (DPS), and White Flint's consultant, a third firm - KCE Structural Engineers - (retained by Bainbridge) asserted that the "buildings are not in imminent danger of collapse, nor must the tenants or their visitors be removed due to safety concerns caused by the [Bainbridge] construction."

The Bainbridge is a 17-story, luxury residential building under construction at 4918 St. Elmo Avenue, in downtown Bethesda.

According to a Montgomery County Inspector General's Office (OIG) report, KCE asserted a second time that the Fairmont Avenue buildings were in no danger of collapse.

But weeks later, on May 9, 2012, KCE advised its client, Bainbridge, to cease construction near the damaged buildings, and proposed a remediation plan for the Fairmont Avenue properties. DPS found the plan satisfactory, and allowed the Bainbridge project to resume eventually.

The Bainbridge construction was going full steam again by late 2012.

But White Flint continued to argue their buildings on Fairmont were in danger of collapse.

On November 13, 2012, White Flint brought photos of cracks and other damage to the Inspector General's office.

OIG met with DPS officials 3 days later, and the latter again confirmed that work should continue on the Bainbridge, and that KCE's remediation plan was satisfactory.

White Flint pressed forward on several specific complaints against DPS:

Allegation 1: DPS improperly permitted the continuation of work on the project.

OIG concluded this accusation was unfounded, that DPS had performed at least 100 on-site inspections, and had adhered to county code in every respect.

Allegation 2: DPS unlawfully delegated review and approval authority of the plan and its implementation to the owner of the Bainbridge.

OIG concluded KCE was a fully-credentialed firm, and that DPS was correct in accepting their technical expertise in allowing construction to resume.

Allegation 3: DPS made an incomplete investigation, because the Bainbridge's consultants falsely advised DPS that they were denied access to White Flint property.

OIG reported that White Flint demanded Bainbridge sign a document that could have had legal implications in the dispute. Therefore, Bainbridge was unable to inspect the site, even though Bainbridge and DPS wanted to carry out such an inspection.

Allegation 4: No valid Traffic Control Plan exists and DPS has been allowing Bainbridge to violate the law regarding construction work in the right-of-way.

OIG said the Traffic Control permits issued to Bainbridge remain in effect through completion of the project, despite the delay caused by the excavation controversy.

Furthermore, OIG says DPS has, in fact, issued citations to Bainbridge on several occasions for "illegal activity in the right-of-way."

Summarizing the findings, OIG concluded:

"We found no evidence that would substantiate the allegations made in this complaint against DPS. We draw no conclusions about whether or to what extent the [Bainbridge] construction has damaged White Flint property. Accordingly, no further investigation by the OIG and no recommendation or follow-up action is required."

So, as of this point, it appears White Flint will have to pursue its complaints in the court system.

As such, don't expect any of the parties to speak about the matter publicly.

Fresh Grill remains caught in the middle of this mess. If one believes the KCE report, technically, Fresh Grill could have reopened by now. But because their building's owner maintains the structure is unsafe, the restaurant remains in limbo at the moment.

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