A struggle grows in the marsh

May 10, 1994|By Andrea F. Siegel | Andrea F. Siegel,Sun Staff Writer

On a quarter-acre lot on Sullivan's Cove optician F. Nicholas Codd has chosen to build his dream home, and the Severn River Association (SRA) has chosen to draw a line in the marsh.

Some environmentalists say they fear that letting Mr. Codd build his home on piers there could be the death knell for the state's Critical Areas law. Property rights advocates say that forbidding Mr. Codd to build could lead to the first case in Maryland in which the government might be forced to compensate a land owner for environmental reasons.

"Unless we make a stand on the Critical Areas law at this juncture, then the law is essentially meaningless," said James Martin, president of the Severn River Association, which represents individuals and civic groups in the 70-square mile watershed.

"Nick's [case] is just a flat-out taking of his Fifth Amendment rights in our opinion," said Margaret Ann Reigle, founder of the Cambridge-based Fairness to Land Owners Committee.

Mr. Codd and his opponents will face off again this week at an Anne Arundel County Board of Appeals hearing. The SRA, the Olde Severna Park Improvement Association and a neighboring property owner are challenging a county hearing officer's approval of a scaled-down house on the site.

Mr. Codd, whose family has owned the lot for 32 years, has tentative approval from some state and federal agencies to build on a platform above the marsh. He needs a variance to build within the 100-foot setback from the shoreline required under Maryland's Chesapeake Bay Critical Area law.

Last December, Robert C. Wilcox, the county administrative hearing officer, ruled that Mr. Codd could build because the lot was legally subdivided before the environmental rules were adopted. But he required 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.

"I'll do whatever," said Mr. Codd, who has offered to reduce the size of the house from 2,160 square feet to 1,720 square feet, make other changes and plant how much and whatever wetland vegetation county and state officials require. "I always dreamed of building there."

But Mr. Martin estimated that there are about 500 similar pieces of land around the Chesapeake Bay, including several others on the Severn River, some of whose owners are closely watching the Codd case.

"If you can develop a marsh, what's to stop you from developing in any other critical area of the state?" Mr. Martin asked. "The Eastern Shore is replete with these properties."

So far, the SRA has raised about $2,000 and hired Glen Burnie attorney Michael Malone for the Board of Appeals hearing.

But state Sen. Gerald Winegrad, a leading environmentalist who is retiring from the Senate, disagreed. The case does not warrant such a fight, he said, because the property owner has agreed to comply with regulators' wishes.

"It was right to press him to do the environmental mitigation. It is an absolute mistake to press this case," the Annapolis Democrat said. The precedent, he said, would not be the environmental one.

"The precedential value would be the reverse. It would be a classic takings case," Mr. Winegrad said, because the Codd family would be deprived of use of its land.

The case could then become the first in the state in which the government would have to compensate a landowner for environmental reasons.

Appeals board files show that Mr. Codd's parents, Dr. Frances I. Codd and Florence V. Codd, bought the residentially zoned .28-acre marshy lot in 1962 for about $6,000. The land retained the zoning, but its assessment dropped from $8,940 in 1986 to $2,630 by 1989 because it was no longer considered a buildable lot.

If it could be developed, the lot would be worth more than $200,000, according to Board of Appeals files.

The Severn River Association is arguing that, because the lot was always marshy, it never could have been viewed as buildable. Therefore, forbidding Mr. Codd to build on it should not be considered a "taking" under the Constitution.

The appeals hearing is scheduled to begin tomorrow afternoon in Annapolis and continue at least through Thursday. Members of both sides have vowed to challenge a decision against them in court.

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