Environmental Victory at What Price?

October 05, 1994

Environmentalists fighting Arnold optician F. Nicholas Codd's house on stilts in a marsh on the Severn River won a battle last week when the Anne Arundel Board of Appeals ruled against Mr. Codd. But they may end up wishing they had backed off a few months ago when the county's zoning administrative hearing officer ruled in Mr. Codd's favor. This latest victory could end up setting back the environmental movement, not advancing its cause.

Even state Sen. Gerald Winegrad, the General Assembly's most influential environmental voice, saw that this was the wrong case for environmentalists to press. The precedent that stands to be set here is not that sensitive environmental areas such as the "critical area" around the Chesapeake Bay must be protected, but that government cannot, through regulation, deny property owners the economic value of their land. If Mr. Codd cannot build, his property is worth far less. This is a classic instance of government effectively "taking" a piece of private property.

The Supreme Court has ruled that governments cannot do this without compensating the property owner. If Mr. Codd appeals the board's decision to Circuit Court and wins -- and it looks like he has a strong argument -- it would the first time in Maryland that the government had to pay off a landowner for environmental reasons. Property-rights advocates who would like to scuttle all land-use laws would seize on such a victory.

Ideally, we would prefer that nothing be built on Mr. Codd's marsh. We have supported conservative critical areas legislation, especially in Anne Arundel because it has more shoreline under siege than any other jurisdiction. We even opposed exemptions for property owners like Mr. Codd, whose lots were subdivided prior to the environmental regulations.

But it is one thing to make landowners adhere to certain restrictions and another to render their land worthless. Mr. Codd agreed to the many restrictions imposed by the administrative hearing officer; he was willing to do whatever the county asked to reduce the impact of his house on the environment. Now, because environmentalists were not willing to compromise, they risk handing property-rights zealots a legal precedent that could become a greater threat to the environment than Mr. Codd's house on stilts would have been.

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