A Circuit Court judge has reversed the Anne Arundel County Board of Appeals and ordered that a grading permit be granted to a Florida developer who plans to build on 22 acres near Shady Side.
In a 29-page decision, Judge Eugene M. Lerner ruled yesterday that BMCN Joint Ventures Inc., a consortium of four corporations that owns the West River property, would not violate the county's critical-area law by building in an area of non-tidal wetlands.
BMCN received a permit in October 1991 to build roads and lay sewer lines for 96 homes in the Back Bay Beach development.
But the Board of Appeals rescinded the permit a month later after protests by residents and environmentalists that it violated the county's critical-area law.
The appeal asking that the permit be rescinded was filed by William Collison of the West River Federation, who said the development would harm the non-tidal wetlands protected by the 1988 Chesapeake Bay Critical Areas Ordinance. Non-tidal wetlands are those not effected by the ebb and flow of the tide.
Opponents of the development argued that county officials violated the law by deferring on wetlands issues to the Army Corps of Engineers, which has a less stringent standard than the state or county.
They also charged that the county did nothing when the corps declined to become involved in the matter after the existence of the wetlands was discovered.
The developer countered that its lots should be exempt from the critical-area law because of a "grandfather" clause permitting such development if the lots were owned prior to passage of the act and if owners comply with the act "insofar as possible."
The six-member Board of Appeals heard almost 12 hours of testimony Nov. 15 before splitting, with three members in favor of granting the permit and three in favor of denying it. This effectively denied the permit, since a majority did not uphold it.
In his opinion, Lerner said that while Collison did have standing as an aggrieved party to file his appeal, the three board members who supported it did not base their decision on substantial evidence.
But the members who voted against the appeal, he said, "demonstrated that their opinion was not arbitrary, illegal or capricious and that there was substantial evidence to support their positions," he wrote.
Specifically, he noted that the county did require BMCN to comply with the critical-area law "insofar as possible" by requiring the developer to pay a reforestation fee, to buy a drainage easement and to make water quality and curbing changes to the building plans.
Lerner also ordered that Collison pay court costs.
Environmental and community activists were stunned by the decision.
"That 'insofar as possible' clause is a license to loot and steal if the court upholds it," said Peg Burroughs, a West River resident and activist.
"If they allow [developers] to come in as they planned, they'll come in like Genghis Khan and wipe out every tree. Does that sound like 'insofar as possible?' "
State Sen. Gerald Winegrad, an Annapolis Democrat, said, "I'm very disappointed. The law was very clear. When there are non-tidal wetlands, you don't issue grading permits."