Marina expansion appeal pits neighbors, owners

March 23, 1994|By Andrea F. Siegel | Andrea F. Siegel,Sun Staff Writer

Owners of a Selby Bay marina and some of their neighbors will tangle at a Board of Appeals hearing today that could decide whether Holiday Point Marina can nearly double its size to 299 boat slips.

Both sides are appealing earlier rulings. One exempted the marina from having to add restrooms, despite requirements applicable to being within the Chesapeake Bay Critical Areas buffer; the other ruling denied the marina's request to build, because it is within a half mile of a natural oyster bed -- a bed of questionable viability.

"Our community's primary objection to this marina is its proximity to our swimming area and the health effects we're going to see from it," said John Mildenberger, vice president of the Selby Community Association. "I would have nothing against the marina if it was environmentally sound."

The association maintains that in addition to accidental fuel spills and boat-cleaning chemicals polluting its nearby beach, boaters would not use the existing toilets that are more than 150 feet away from the proposed pier.

Selby on the Bay's fight against the marina is not unanimous among residents. A son-in-law of the marina's owners is an officer of the association, which both sides said makes for peculiar politics.

Then there is the matter of the 194-acre oyster bed at the mouth of Selby Bay. A sampling by the Department of Natural Resources last year turned up two oysters. That led DNR to conclude that the bed was no longer productive, though it might again become a love nest for oysters, according to past testimony.

But Mr. Mildenberger said he has a videotape of people in the area successfully tonging for oysters in another part of that bed.

Maureen Mershon, an owner of the marina, said a recent sampling done for the marina shows "there are no oysters out there."

The closest slip would be about 1,800 feet from the oyster bed, well outside DNR's 1,500-foot minimum distance. A 1979 Anne Arundel County ordinance is stricter, imposing a half-mile minimum. But that is being challenged in a separate lawsuit by the marina owners.

The county's Office of Planning and Code Enforcement has no objection to the shellfish bed variance, relying on DNR's conclusion that the new piers and slips would not cause problems for the oyster bed.

Administrative Hearing Officer Robert C. Wilcox ruled last year that the oyster bed should have every opportunity to regenerate: "The frail, the sick and the vulnerable are just as entitled to the protection offered (by county code) as are the healthy, the productive and the sexually active -- and perhaps more in need of it."

The marina's owners contend that the county provisions, though enacted in 1979, have never been applied -- until now.

"That sounds incredulous that we may not have been enforcing it," said Joseph J. Elbrich, long-range and environmental planning administrator. "But we may not have had to use it."

But the county's ability to be more restrictive than the state in protecting Chesapeake Bay shellfish beds is being challenged in the lawsuit the marina owners filed in January against the county in Anne Arundel County Circuit Court. They claim it is the state's responsibility to protect shellfish habitats in the Chesapeake Bay.

"We take the position that DNR has regulatory jurisdiction over this," said Charles R. Schaller, lawyer for Frederick and Maureen Mershon and their family.

Though not a party to the lawsuit, the state agrees.

"We are the ones to set the policy and the law. The Department of Natural Resources has jurisdiction on the state waters," said DNR spokesman John S. Verrico.

The county disagrees, saying its ordinance is valid.

"It is our position we are not pre-empted by state law," said Senior Assistant County Attorney Patricia Logan.

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