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CBF can’t challenge Little Island zoning variance

But court tells zoning board to reconsider boat ramp

The Chesapeake Bay Foundation has no legal right to participate in a battle over a zoning variance for a house and boat ramp on the Magothy River’s Little Island, Maryland’s top court said Monday.

The Court of Appeals affirmed that DCW Dutchship Island LLC, wholly owned by Daryl Wagner, had a right to build a house on Little Island.

However, the court had a problem with one aspect of the variance. It found the Anne Arundel County zoning authority erred in allowing Wagner to build a 320-square-foot boat ramp without considering whether it was necessary for his “reasonable and significant use of the property,” and without explaining why the ramp was not included in the tally of impervious surfaces on the property.

The decision sends the case — which was first brought in 2005 — back to the Anne Arundel County Board of Appeals with instructions to re-evaluate whether Wagner has “overcome the presumption that his activities are inimical to the intent of the Critical Area Program” designed to protect the Chesapeake and Atlantic coastal bays.

CBF, however, will not be permitted to participate directly in the board’s reconsideration because, under the rules set by the county, the organization did not have standing.

The foundation had argued it should be allowed to participate because it was advocating the same pro-environment position as the Magothy River Association, which has standing.

But the Court of Appeals rejected what it called CBF’s proposed “piggy-back” theory of standing, saying it would allow “unlimited persons who held views aligned with a party” to have all the rights of a party.

“We can only imagine how unwieldy and even circus-like such a proceeding might be,” Judge Sally D. Adkins wrote for the high court.

Jon Mueller, CBF’s vice president of litigation, said the decision reveals procedural flaws that could harm the environment.

“The variance process is a broken process,” said Mueller, adding that about 90 percent of all variance requests are granted.

“We are going to look at the court’s decision and see if there are any legislative fixes that have yet to be undertaken,” he said. “The legislature was serious about protecting water quality, yet we’re allowing 90 percent of these projects to go forward through the variance process. That’s where we’ll be looking.”

Wagner purchased the island in 2000, demolished the cottage and other structures on it and began building new ones without obtaining the permits needed under the Critical Area law and county ordinances. The county discovered his activities in November 2004. The following month, DCW sought variances.

The Magothy River Association opposed the variances before the Administrative Hearing Officer, who determined that the prior structures included 3,005 square feet of impervious surfaces and that, under the Critical Area Program, DCW was entitled to match that.

The hearing officer granted some variances and rejected others to keep the total to 3,005 square feet — or 3,325, square feet, including the 8-foot by 40-foot boat ramp.

Deference, to a point

CBF’s attempts to join the Magothy River Association’s appeals were blocked, largely because it had not participated before the Administrative Hearing Officer.

On Monday, the Court of Appeals affirmed that ruling.

“The county’s ability to set reasonable conditions precedent to access to its Board of Appeals is an exercise of its Home Rule…,” Adkins wrote. “We see no reason why, consistent with the power to confer appellate jurisdiction on the board, the county should not be allowed to require AHO participation as a prerequisite to appellate standing.”

The high court also said the Board of Appeals had “substantial evidence” that DCW’s improvements of up to 3,005 square feet complied with the Critical Area Program.

However, the court found the board “quite inexplicably” approved the 320-square-foot ramp “with no discussion as to why the ramp was necessary to Wagner’s reasonable and significant use, or why this area of impervious surface should not be included in the total allowed to Wagner,” Adkins wrote.

“Similarly, the board did not seem to consider the possibility that through alterations to his home, Wagner may have been able to keep his boat ramp and stay under the 3,005-square-foot maximum. In short, the board must provide some reasonable justification for increasing the impervious surface over that in existence before enactment of the Critical Area Law.”

Despite the judicial lashing, attorneys for Wagner and the county said they anticipate the board will successfully defend its decision by saying a variance for the ramp was not necessary.

A boat ramp is a “water-dependent facility” not covered by the Critical Areas Program, the attorneys said.

Judge Shirley M. Watts made much the same point in her concurring opinion in the case, they added.

In her concurrence, Watts said she would hold that Wagner does not need a variance to build the boat ramp because it is “a water-dependent facility for which a variance is not required under the Critical Area Law.” But Watts called it “reasonable to allow the board an opportunity to explain its opinion and explicitly address” if the Critical Area Program requires a variance for a water-dependent facility.

The case boils down to an issue of “clarification” by the board, said Robert J. Fuoco, a Glen Burnie solo practitioner who represented Wagner and DCW.

“The boat ramp is a water-dependent facility,” he added. “I think the board can simply clarify its decision, which negates the need for a variance for the boat ramp.”

Anne Arundel County Attorney David Plymyer said “the county believes that it can be resolved very quickly by the Court of Appeals as suggested in the concurring opinion.”

He voiced dismay that the dispute is now in its 10th year, during which water-remediation efforts have been stayed pending resolution.

“A handful of parties have battled it out,” Plymyer said. “There is a real case that can be made that the environment itself has suffered. There’s got to be a speedier resolution of what has gone on for 10 years.”

ADKINS

WHAT THE COURT HELD

Case:

Chesapeake Bay Foundation et al. v. DCW Dutchship Island LLC et al., CA No. 77, Sept. Term 2013. Reported. Opinion by Adkins, J. Concurrence by Watts, J. Argued April 4, 2014. Filed Aug. 4, 2014.

Issue:

(1) Did CBF have standing to participate in the variance proceedings? (2) Did the Board of Appeals correctly evaluate the application to build a boat ramp?

Holding:

No; affirmed in part, vacated in part. (1) CBF’s effort to “piggy back” on Magothy River Association’s standing due to aligned views would lead to a “circus-like” proceeding. (2) the Board must re-evaluate whether DCW has “overcome the presumption that [its] activities are inimical to the intent of the Critical Area Program.”

Counsel:

Jon Mueller and Paul J. Cucuzzella for petitioners; Robert J. Fuoco and Gregory J. Swain for respondents.

RecordFax #14-0804-20 (65 pages)