Court OKs construction at Back Bay Beach site

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

Maryland's second-highest court has ruled against environmentalists in a case that ironically helped tighten Anne Arundel County's shoreline protections.

A three-judge panel of the Court of Special Appeals decided late last week that developers of Back Bay Beach may build the 13 houses they requested under the county's older, less restrictive Chesapeake Bay Critical Areas Law. The 22-acre site is off Chalk Point Road, next to the West River and South Creek.

The court said the county's new law could not be applied retroactively, which is what the state Critical Areas Commission and West River residents wanted.

"We forced the county to change its law," said Thomas Wohlgemuth, lawyer for Robert Kovich and Robert Houchens, whose property abuts BMCN Joint Venture's proposed development. "As a result of my people protesting, the law was changed."

The development, and another at Woods Landing II, called attention to shortcomings in the county's 1988 critical areas law.

While conservationists fought the county, the Critical Areas Commission took a hard look at the county's regulations and demanded that they be tightened. They were changed in 1993. The commission then appealed the Back Bay Beach proposal, saying developers should adhere to the new regulations. The developer and the county said the standards in 1992 applied.

Mr. Kovich, president of the conservation-oriented West River Federation, said helping to force the county's hand is insufficient consolation. BMCN also has permission to build about 71 homes, but is seeking a greater density.

The federation probably will not appeal the ruling on its own. The commission will review the opinion and decide if it wants to take the case to the Court of Appeals, said Thomas Deming, assistant attorney general.

Sen. Gerald Winegrad of Annapolis, considered the state Senate champion of environmental rights, said the case should be appealed. Opponents have 45 days from the Aug. 4 ruling to file an appeal.

Spokesmen for the developer could not be reached.

At issue were conditions of a grading permit for 13 houses on a site that conservationists, including the U.S. Fish and Wildlife Service, maintained was largely nontidal wetlands. The U.S. Army Corps of Engineers said the site was not on nontidal wetlands. County maps show the site as a habitat in need of protection.

Wetlands are considered critical areas and subject to environmental protections.

The development was one of the last grandfathered subdivisions, platted in 1921. The county gave it the green light in November 1992. The battle began when Mr. Kovich appealed the county's ruling.

The key question in the appeal was the point at which the new rules take effect, said Mr. Deming. The appellate court applied the law that existed at the time the county Board of Appeals reviewed and granted the grading permits in 1992.

County officials did not know if the new regulations would apply to the remaining 58 houses.

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