Residents plan to appeal judge's Back Bay ruling

July 23, 1992|By John A. Morris | John A. Morris,Staff Writer

A group of West River residents will ask the Maryland Court of Special Appeals to intervene in their see-saw legal battle with the county and a Florida developer who wants to build on 22 acres near Shady Side.

The West River Federation, which represents neighborhoods throughout the watershed, wants the state's second-highest court to overturn Circuit Judge Eugene Lerner's June 30 decision ordering a grading permit be granted to BMCN Joint Ventures Inc. and allowing construction of 96 homes within the Chesapeake Bay Critical Area.

The county Department of Inspections and Permits had granted the permit, only to have it rescinded by the county Board of Appeals.

Judge Lerner's decision "sets a troublesome standard," said Thomas Wohlgemuth, a lawyer representing the residents. It means "the county can essentially ignore the Critical Area law" when it reviews developments on property subdivided before the County Council passed a critical-area law in 1988.

BMCN received a permit in October 1991 to build roads and lay sewer lines in the Back Bay Beach development. A month later, after residents argued it violated the Critical-Area law by allowing construction in non-tidal wetlands, the appeals board reversed that decision.

Last month, Judge Lerner overruled the board.

"We feel as the board felt, that the county did not require the developer to do enough," said George Dattore, a member of the West River Federations board. "It's obvious even to a lay person that you are dealing with a swampy, low, moist vegetated area. It is a non-tidal wetland."

The Critical Area law, which requires more sensitive development within 1,000 feet of the bay's tributaries, bars construction within 25 feet of non-tidal wetlands. Wetlands naturally filter pollutants out of storm water.

County officials say properties subdivided but not developed before the law was passed are exempt. Exempt projects are required to comply with the rules "insofar as possible," they add.

Federation members approved the appeal effort July 8. Mr. Wohlgemuth must file the appeal by the end of the month.

The residents feel Judge Lerner gave their testimony short shrift and made factual errors in his decision, Mr. Dattore said.

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