Judge upholds developer's right to build ANNE ARUNDEL

August 07, 1993|By John A. Morris | John A. Morris,Staff Writer

An Anne Arundel Circuit Court judge upheld yesterday a West River developer's right to build 13 homes within 1,000 feet of tidal water, despite objections from the Chesapeake Bay Critical Area Commission.

Judge Eugene M. Lerner denied the commission's request to overturn a county grading and building permit issued last fall to BMCN Joint Ventures that the panel said conflicts with the state's critical area law.

Judge Lerner said the permit was issued properly, given that the 22-acre site known as Back Bay Beach was first subdivided in 1921, about 67 years before Anne Arundel County adopted its shoreline protection program.

The critical area ordinance required that such "grandfathered" lots comply "insofar as possible" and the BMCN lots did, he said in his 19-page ruling.

The opinion outlines seven steps the developer has taken to protect the environment, such as minimizing the number of trees removed and reducing road widths to limit the amount of impervious surfaces.

"Given all the steps which BMCN took to secure the environmental stability of the area we feel certain this activity rises to the level of compliance 'insofar as possible,' " Judge Lerner wrote.

The County Council tightened its law to eliminate that standard Monday, partly because of the Back Bay Beach case, but too late to apply to it.

Carolyn Krohn, a BMCN attorney, said the ruling means her client, who eventually hopes to build as many as 71 homes, can move forward with construction.

A court order had prevented the developer from working under the permit until yesterday's decision.

"I'm glad we can finally move forward," Ms. Krohn said. "The county has made us jump through so many hoops . . . It's not as if we're coming in and raping the environment."

Thomas A. Deming, counsel to the state Department of Natural Resources, said he would discuss with the Critical Area Commission's staff on Monday whether to challenge the ruling in the Maryland Court of Special Appeals.

Thomas Wohlgemuth, an attorney for two West River residents who had joined the commission's suit, said he anticipated Judge Lerner's decision.

"The judge seemed to want to pass it along to the Court of Special Appeals," he said.

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