Court upholds Wicomico decision

DNR opposed structures in critical waterfront area

October 14, 2003|By Lynn Anderson | Lynn Anderson,SUN STAFF

Maryland's highest court has rejected a request by the state Department of Natural Resources to reconsider a decision allowing an outdoorsman to keep cabins that he built without local or state permission in a remote waterfront area of Wicomico County.

The Court of Appeals decision, which was released Friday, was not a surprise. Still, it represents another slap to environmentalists and local government officials who have argued that Edwin H. Lewis should not have been allowed to keep structures he built without proper permits on a remote island.

Responding to the request for reconsideration -- filed by DNR and the Chesapeake Bay Critical Area Commission shortly after the July 31 Court of Appeals decision, and supported by five counties -- Judge Dale R. Cathell said that the state had failed to make its case for a new hearing.

FOR THE RECORD - An article yesterday about a Maryland Court of Appeals decision in a Wicomico County case incorrectly credited a particular judge with writing the opinion. The opinion denying the motion for reconsideration was issued by the court.

As a result, environmentalists and local government officials said that they will look to the General Assembly to retool the critical-area law -- which monitors construction within 1,000 feet of sensitive waterfront areas. The next legislative session begins in January.

"We would encourage the legislature this session to immediately put the legislation in place to override this decision," said Theresa Pierno, a vice president with the Chesapeake Bay Foundation, which also supported the DNR's request. "Otherwise, it's going to make it very difficult for local jurisdictions to have the enforcement ability they need to deny variances."

Pierno said that her group has met with lawmakers, including members of the Joint Committee on the Chesapeake and Atlantic Coastal Bays Critical Area, to discuss possible bills.

This summer, the court ordered Wicomico County officials to reconsider a decision not to grant Lewis a variance that would have allowed him to keep his buildings, which were built within the 100-foot "critical area" buffer, an area that has been protected under state law since 1984.

When the court decision was announced, environmentalists and county officials decried it, complaining that it had the potential to erode years of work to protect the Chesapeake Bay and its tributaries. At the time, P. Ren Serey, the critical-areas commission's executive director, said that the ruling could be applied to all sorts of land-use and zoning decisions, and that it could force local governments to hire expensive consultants.

"Previously it was the landowner who had to come in with experts and prove there was no adverse impacts," said A. Frank Carven III, county attorney of Harford. "We don't have the money that developers have to go out and hire experts and environmentalists to come in and help with these cases."

Harford, Anne Arundel, Carroll, Montgomery and Worcester counties filed documents with the Court of Appeals in support of DNR's reconsideration request.

The three dissenting judges in the July 31 ruling -- Irma S. Raker, Alan M. Wilner and Lynne A. Battaglia -- stated that the court should grant the motion for reconsideration. In his dissent, Wilner said that he rarely protests request for reconsideration denials.

"This case is different," he said. "In my view, ... unless the General Assembly acts swiftly and decisively, [the ruling] may be effective not only to dismantle the critical-area program but to seriously weaken fundamental zoning and land use controls generally."

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