County attorney backs ruling on Ellsworth Drive

Letter supports executive’s opinion that roadway is a public space; developer reviewing policy on photography

The issue first came up in June, when a security guard stopped amateur photographer Chip Py from taking photographs on the property. Py and other residents protested, arguing the development was built with public money and the street was therefore public property.

The Peterson Cos., which leases the property from the county for $1, changed its policy to allow photography and videography on the property as long as patrons were not photographed or filmed over their objections. But residents still believed their First Amendment rights were in jeopardy, with Py leading a Fourth of July rally in protest. The Peterson Cos. agreed to review its policy, prompting Leggett to write a letter to the developers July 20 saying the area is a public forum.

John J. Fisher, an associate county attorney, said his office agreed with Leggett while discussing Rodriguez’s letter at the council’s Planning, Housing and Economic Development subcommittee meeting.

Developers were operating under a ‘‘closed mall” rule that Fisher said is used by many private malls, requiring photographers to register with security. But Fisher said those rules were ‘‘inapplicable” in this instance, noting Ellsworth is surrounded by public roads and is indistinguishable from them.

Those traits ‘‘create what is in essence a public forum,” Fisher said, adding other terms in the lease indicate the area should be treated as public space.

Rodriguez’s letter does indicate, however, developers have the right to implement ‘‘reasonable time, place and manner restrictions” on First Amendment rights as long as they ‘‘are narrowly tailored to serve a significant purpose.”

Leggett, in his letter, made a similar point, acknowledging the developers have a right to adopt rules to ensure the ‘‘safety, security and economic success” of downtown Silver Spring.

The county is now waiting for The Peterson Cos. to release its new policy before doing anything else, Fisher said.

‘‘We have done as much as we can to make sure the public’s rights are preserved in regards to the use of public spaces,” he said.

Py praised the county attorney’s letter, saying it will serve as the legal groundwork and prevent any problems for future, similar county projects. ‘‘I thought it was great we got the public-private partnership understood,” he said.

I.J. Hudson, communications director of Bethesda-based Garson Claxton, the law firm working with the developers, said the new rules are currently being formulated and should be released soon.

‘‘We’re reviewing the [county attorney’s] opinion and generally have no arguments with the general principles that First Amendment rights apply to parts of downtown Silver Spring, including Ellsworth Drive,” he said.

Space needed for library

Elsewhere in Silver Spring, three of the seven lots the county needs to build a new downtown library near Wayne Avenue, Fenton Street and Bonifant Street are on the verge of being condemned and demolished, Regional Services Director Gary Stith said. The county plans to make one more offer to the property owners before moving forward with condemnation, Stith said. He did not name the three property owners.

Three other properties have been purchased by the county, and the purchase of a fourth will be completed in the coming weeks, Stith said. All told, the site will be 66,000 square feet, about two-thirds of which will be used by the library, he said. The remaining space could become affordable housing on top of the library, he said.

No construction or development will be done on the site until all the properties are purchased, Stith said, adding plans may change depending on the route of a proposed Purple Line through Silver Spring. One proposed version of the bus way or transitway would go directly through the library site.

Stith also said he hopes construction on the new civic building and veterans plaza will begin early next year after giving a presentation with plans for the site.

‘‘We need to move it along as quickly as possible because this has been a long time coming,” he said.