APRECEDENT-SETTING land-use law, called the "centerpiece" of a broad program of Chesapeake Bay protection legislation enacted 17 years ago, is quietly being unraveled.
The damage to the Chesapeake Bay Critical Area Act comes not from developers but in recent rulings from the seven judges of Maryland's highest court.
Passed with an overwhelming legislative majority in 1984, the law responded to the disproportionate share of development occurring around the state's tidal waterfront.
Lawmakers set up a state Critical Area Commission with unique authority to set standards restricting development in the 10 percent of Maryland that lies within a thousand feet of all tidal waters.
The law was remarkable, even by today's standards. It linked land use to water quality. Preserving the natural shoreline was the best way to filter and buffer the bay against polluted runoff.
It was one of the first times zoning had been used for wildlife protection. The law recognizes, for example, that waterfowl benefit from the solitude of undeveloped shorelines for resting, feeding and pre-migration staging areas.
Most progressive was the recognition of the "cumulative impact" of Maryland's burgeoning population growth: "Even if pollution is controlled, the number, movement and activities of persons [along the water] can create adverse environmental impacts."
In the past few years, voting unanimously in three cases, Maryland's Court of Appeals has significantly weakened this landmark bay protection law.
The first signal of the high court's pro-development turn came in the 1998 case of Belvoir Farms, an affluent, 90-lot subdivision on an Anne Arundel County creek.
Lot owners, some as far as two miles from the waterfront, wanted to install 14 more boat slips along the creek than the four allowed by the Critical Area Commission.
Those who wanted boats had them, but the use of mooring buoys out in the creek was, they said, "inconvenient."
The commission had denied shoreline construction for more slips on the legal basis that doing so would not result in "unwarranted hardship" to lot owners.
Defining "unwarranted hardship" is the key here. Until the Belvoir Farms case, such hardship meant losing "reasonable and significant use" of your whole property.
But the Court of Appeals, in an opinion written by Judge Dale R. Cathell, "began to change 50 years of [zoning] law in Maryland," says Ren Serey, director of the Critical Area Commission.
The court, without defining it specifically, called for a weaker definition of the loss of "reasonable and significant use." Guided by the new ruling, Anne Arundel County gave the development its new boat slips (still unbuilt).
Shortly thereafter the high court went substantially farther.
In the case of Anne Marie White, a homeowner who wanted to put a swimming pool in the Critical Area, the judges again relaxed the unwarranted hardship test to mean, in effect, losing "any" reasonable and significant use of one's property.
The court also said the Critical Area Commission was too strict in demanding that several specific protections had to be met to develop along the shoreline. Henceforth it would be OK to "generally" meet them.
These included protecting fish, wildlife and plant habitat, retaining the character of a neighborhood and maintaining shoreline vegetation.
Perhaps more damaging, the court lowered a standard for determining whether a property owner was being denied uses enjoyed by surrounding owners.
The commission had always compared only properties developed since the law was passed in 1984. The high court opened the door for comparing properties developed before 1984, many of which would be illegal today.
The third case was one that, politically, was destined to be a loser for the commission. Its members opposed a Talbot County family that paved a shoreline wheelchair path for a disabled daughter.
Nonetheless, the Court of Appeals, in ruling for the family, breached a core tenet of the law. It called the commission "too extreme" in relying on the cumulative impact of shoreline development to deny projects.
This could be a major problem for the law. Proving specific environmental impacts for any one shoreline alteration is tedious at best, and often impossible.
In essence, the Court of Appeals seems concerned that Maryland has made it too tough on property owners who want to live near the bay and its tidal rivers.
But the clear intent of the Critical Area Act was to make it very tough to degrade this most environmentally sensitive zone where millions of people want to live.
The bay needs more protection, not less. And the inconvenience to property owners is tiny -- the commission routinely accepts 90 percent of the 300 or so cases a year in which counties grant variances from the Critical Area Act.
Maryland's highest court has clearly spoken for more individual rights at the environment's expense. But companion bills in the legislature [SB 607 and HB 661] would reverse this judicial erosion of the Critical Area Act.
They deserve our full support.
