Plan to build home over marsh approved

December 09, 1993|By John A. Morris | John A. Morris,Staff Writer

An Arnold optician's plan to build a home over a portion of Sullivan's Cove Marsh won the approval of a county hearing officer yesterday, prompting opponents to predict it could topple Maryland's environmental protection laws.

"Our laws will be meaningless if this guy is able to win this," said James Martin, president of the Severn River Association, which represents civic groups throughout the 70-square-mile watershed. Mr. Martin said his group will appeal the decision.

Francis Nicholas Codd, whose family has owned a quarter-acre lot on the Severn River tributary for 30 years, has been fighting state and federal agencies since 1988 for the permits he needs to build a 3,160-square-foot home on a platform above the marsh.

State and federal agencies had rejected his plan, arguing that it would adversely impact wildlife habitat and water quality protected by law. Specifically, the home he wants to build would be within the 100-foot setback from the shoreline required under Maryland's Chesapeake Bay Critical Area law.

Yesterday, Administrative Hearing Officer Robert C. Wilcox ruled that Mr. Codd can build because the lot was legally subdivided before the environmental rules were adopted.

"If the applicants were petitioning this office for the right to subdivide their property [now], I would not hesitate to deny that request," Mr. Wilcox wrote in a 16-page ruling. "That decision, however, has already been made."

"Government cannot 'take' property with a pen, anymore than it can with a bulldozer, without paying for it," he said.

But Mr. Wilcox is requiring Mr. Codd to scale down the size of his home, build it at least 10 feet above the ground, locate it outside the wetland as much as possible and re-create three times as much wildlife habitat as is destroyed.

State Sen. Gerald Winegrad, a leading environmentalist in the Senate, said Mr. Wilcox reached the only decision he could and disagreed with Mr. Martin's doom and gloom predictions. "This is an extremely rare case of environmental taking; never happened before in Maryland," said Mr. Winegrad, an Annapolis Democrat. "It's one of those rare cases that doesn't set precedent."

Mr. Winegrad said the case is unusual because the land would be of practically no use to Mr. Codd if he were unable to build on it. In most such cases, other options are available to the landowner: building on another portion of the property, for instance.

The government's only alternative to approving the project is purchasing the property, Mr. Winegrad said. That is an option he said he would still pursue. It may be possible for the state and county to purchase the lot through Program Open Space, which is funded by property-transfer taxes, he said.

"I don't personally want to see him develop that lot," he said.

Mr. Codd, whose parents, Francis I. and Florence V. Codd, still own the property, said yesterday that he has never been contacted by the senator or anyone else about purchasing the property. He estimated the value of the property as a buildable lot at about $250,000.

Such talk makes Mr. Martin see red. He would like to see the property purchased as a conservation area but, because he believes it is not a buildable lot, argues the value is much less. He said the property currently has an extremely low real estate tax assessment because it is considered unbuildable.

"The taxes are very low right now," Mr. Codd agreed. But Mr. Winegrad and Mr. Martin have to realize that "it would not be sold for what it's assessed at but what it could be sold for as a buildable lot."

"I've invested a lot of my life savings in this, and my dad would want to get something back on his investment," Mr. Codd said.

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