Critical Area panel sues to halt development County allowed West River subdivision ANNAPOLIS/SOUTH COUNTY--Davidsonville * Edgewater * Shady Side * Deale

March 23, 1993|By John A. Morris | John A. Morris,Staff Writer

The Chesapeake Bay Critical Area Commission is suing the county to stop a developer from bulldozing and clearing 12 residential lots at Back Bay Beach, a West River subdivision.

The suit, filed Friday in Anne Arundel Circuit Court, seeks to overturn a grading permit issued to BMCN Joint Ventures last fall by the county Department of Inspections and Permits.

Officials with the 27-member commission declined to comment about the suit yesterday.

However, the commission has indicated in the past it believes BMCN's plan to build 71 homes on 22 waterfront acres violates the state Critical Area law. The 1984 statute protects a 1,000-foot strip along the bay and its tributaries from environmentally damaging development.

Specifically, the subdivision could destroy nontidal wetlands which filter nutrients and other pollutants from storm waters flowing into the bay, the commission's staff has said.

"The design or layout does not . . . meet current requirements for basic environmental protection," Anne Hairston, a commission staff planner, wrote in a letter to the appeals board 1 1/2 years ago.

The suit comes as negotiations between the county, developer and neighbors to scale back the subdivision to 51 homes have faltered.

"The developer has not accepted the proposal," said former Planning Director Ardath Cade, who led the negotiations for the county.

County officials, who had not seen the suit, also declined to comment, but have argued before the appeals board that Back Bay Beach was first subdivided 70 years ago and only has to comply with the Critical Area law "insofar as possible."

Neighbors, however, have challenged whether the developer has complied even to that degree.

The county appeals board has ruled twice that the development does comply with the county's Critical Area Program, which was approved by the Critical Area Commission in 1988.

The first ruling, in which BMCN was granted permission to grade roads and lay sewer lines, goes before the Maryland Court of Special Appeals April 7. In a Feb. 24 ruling on a second permit, board members said they "have grave environmental concerns" about the Back Bay Beach subdivision, but concluded: "That is not the test for this board."

Back Bay Beach's opponents were both elated and cautious about the commission's suit.

"We're very pleased that a state agency . . . agrees with us, is willing to go to bat for us and is willing to litigate," said Tom Wohlgemuth, a lawyer representing members of the West River Federation, which brought the first challenge to the county Board of Appeals.

Mr. Wohlgemuth said the commission has asked the West River Federation, a coalition of South County neighborhoods, to join its appeal. Commission officials are to meet with the federation's board of directors at 2 p.m. March 29.

Hugh Smith, a public information officer with the commission, said it intervenes occasionally to "compel local administrative bodies to abide by the criteria."

The agency is becoming more aggressive, Mr. Smith said. However, the number of cases are still small, usually about 10 a year, and most of those cases involve construction of a swimming pool or garage within 100 feet of tidal waters, an area off limits to all but "water-dependent" projects, such as boat ramps, he said.

County planners have worked for nearly a year to rewrite the county's Critical Area program and eliminate concern over its grandfathering provisions. The County Council is expected to consider those revisions in early April.

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