Permit violated law protecting Chesapeake Bay Commission can't join residents in legal challenge

January 20, 1993|By John A. Morris | John A. Morris,Staff Writer

County planners violated a law protecting the Chesapeake Bay when they issued a grading permit in October 1991 to the developer of 71 homes near Back Bay, the state Critical Area Commission has decided.

But the chief judge of the Maryland Court of Special Appeals said the decision came too late and has barred the panel from joining a challenge launched by West River residents to overturn the permit.

The residents had lobbied the commission for more than a year to intervene in the legal battle, which already has wound through the county Board of Appeals and the Circuit Court.

The commission stayed out of the fight until Dec. 28 when it decided the "permit was not consistent" with provisions of the state's critical areas law and sought permission to participate before Maryland's second highest court. It argued that the county's failure to enforce those provisions "resulted in the unlawful issuance of the permit."

West River residents were jubilant. It was the first time the commission, which asked the county last spring to tighten up its critical areas program, openly criticized the decision to issue BMCN Joint Ventures, the developers, a permit. But the celebration was short-lived.

Judge Alan M. Wilner of the Court of Special Appeals ruled Jan. 5 that the commission had waited too long to object.

Residents said the decision was disappointing, but that they were even more frustrated to learn that the commission already had decided to back out of the case, which is to be heard this spring.

"The commission has been in and out, and in and out of this case, and we quite honestly can't figure out what they are up to," said George Dattore, a member of the West River Federation.

Assistant Attorney General George E. H. Gay, who represents the commission, would not comment.

The county, which has been praised for its overall critical areas program, has maintained that it acted properly when it approved BMCN's plans to grade roads and lay sewer lines for 71 homes on 22 waterfront acres.

The critical areas law requires construction to be more environmentally sensitive within 1,000 feet of the bay and its tributaries.

County officials have argued that Back Bay Beach, which was subdivided in 1921, is "grandfathered" and does not have to comply with environmental requirements except "insofar as possible." Residents have complained that the project fails to do even that.

The commission objected to the county's grandfathering provisions in May, asking it to overhaul that section and several others. Officials are expected to announce revisions to the program within a few weeks.

"The county's interpretation of 'insofar as possible' has really been a joke," said commission member James E. Gutman. "They automatically say [a project] complies 'insofar as possible' and never really discuss alternatives."

Meanwhile, negotiations among the county, residents and BMCN, which bogged down in December, are set to resume Jan. 29.

County Planning Officer Ardath Cade said the county will present a plan to the residents and developers that would reduce the number of houses and increase environmental controls while extracting a promise from residents to end their court battle.

Mr. Gutman said the plan was a key element in the commission's decision to pull out of the court case.

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