Appeals board votes 3-2 against marina expansion

October 21, 1994|By Andrea F. Siegel | Andrea F. Siegel,Sun Staff Writer

The Anne Arundel County Board of Appeals has blocked expansion of a Selby Bay marina, whose owners have been trying for a decade to enlarge their family business.

In a 3-2 decision, the board refused to allow Holiday Point Marina to add piers that would nearly double the facility's size to 299 boat slips on South River. Two members abstained in the vote.

"All right!" was the reaction of John Mildenberger, an environmental consultant and former marina neighbor who challenged the proposal. "I think it's the only response they could make," he said.

Board members refused to grant a variance to a county regulation that forbids new piers within one-half mile of an oyster bed, though the 194-acre natural oyster bed in question is of dubious viability.

While marina opponents counted the decision as a victory for the environment, the ruling is not the last word on the project.

The board still is working on a written opinion, and until members sign one, the ruling is not final. Also, the proposed expansion has spawned two lawsuits, one in Anne Arundel Circuit Court that challenges the county regulation for which the marina owners sought the variance.

"If the law is struck down, then this is moot," said Thomas J. Wohlgemuth, attorney for the marina opponents.

That is what Charles R. Schaller, attorney for the marina's owners, hopes will happen. "If the law becomes invalid, then we don't need a variance to that law. That's the only obstacle that is holding us up," he said.

Revisions to the county's marina zoning in 1978 are more restrictive than state regulations. While the county prohibits piers within 2,640 feet of a charted oyster bed, the Maryland Department of Natural Resources (DNR) sets a 1,500-foot minimum. In marina owners Maureen and Frederick Mershon's plan, the closest slip would be 1,800 feet from the oyster bed.

Mr. Schaller has argued that state regulations supersede the county's because the state governs oysters and Maryland waters. County attorneys disagree. Local government can be JTC more restrictive than the state because "this is simply part of the county's maritime zoning requirements," said Senior Assistant County Attorney Patricia A. Logan. A Circuit Court hearing is scheduled Nov. 1.

Mrs. Mershon said her family will not drop its plans to expand the marina.

"We're $500,000 into this project," she said. "It's been 10 years."

A sampling by DNR of the oyster bed last year turned up two oysters, and the bed was last seeded by the state in 1989. Agency officials concluded that the oyster bed was no longer productive but said that it could become so again. Neither the county nor the state regulations make a distinction between productive shellfish beds and those that appear moribund.

Administrative Hearing Officer Robert C. Wilcox, whose ruling Dec. 23 was upheld by the board, wrote that the oyster bed should be given every opportunity to regenerate. "The frail, the sick and the vulnerable are just as entitled to the protection offered by [the law] as are the healthy, the productive and the sexually active -- and perhaps more in need of it," he said.

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