Officials debate fate of residence built illegally

September 23, 2005|By Phillip McGowan | Phillip McGowan,Sun reporter

One Anne Arundel County department is pursuing a lawsuit to force the demolition of an island home built without permits. Another county department supports the homeowner's request to save it from destruction.

In the matter of Daryl C. Wagner, who built a 3,500-square-foot home five years ago on Little Island in the Magothy River without county approval, everything is working as it's supposed to, two top county officials said.

Wagner finished making his case this week before the county's hearing administrative officer to acquire retroactive variances for his house on the nearly 2-acre island. A county zoning officer offered support for the Millersville homebuilder's petition.

But the lawsuit against Wagner is not going away, county attorney Linda Schuett said.

Schuett and county Planning Director Joseph W. Rutter Jr. said the lawsuit was never intended to influence how zoning officials would rule. Rather, it was supposed to help the county - through administrative rulings or court decisions - resolve the Wagner matter once and for all.

"You abate the violation," Rutter said. "You abate it through the court system" where Wagner potentially loses his house "or you abate it through the zoning process" and he potentially keeps his house. "You abate it one way or another."

Zoning inspectors discovered last year that Wagner built a sparkling white house, replica lighthouse, pool and waterfront gazebo on Little Island, in the northeast corner of the county, prompting an investigation that led to the Office of Law filing suit against him in May in Anne Arundel County Circuit Court.

Wagner has spent the summer trying to appease the county's zoning staff with historical information on the size of the home and island. Zoning staffers were at first opposed to Wagner's request, based on lack of information, Rutter said, but they reversed their position once they weighed the merits of Wagner's project.

The county said that Wagner obtained permits to make minor renovations to an existing house after buying the island in 2000. Instead, he demolished the house and built a larger one, with about 3,500 square feet of living space. The basement and garage pushes the overall square footage to about 5,200.

Wagner built the home in a different spot from the old structure. His attorney, Robert J. Fuoco, said the new spot is farther from the shore, ensuring less runoff into the Magothy.

The zoning staff recommended at the hearing that Wagner tear down his pool, adjoining deck and gazebo, and that he reconfigure his driveway.

Ren Serey, executive director of the Critical Area Commission, the state agency that oversees development along the Chesapeake Bay watershed, testified before Administrative Hearing Officer Stephen M. LeGendre on Tuesday that approving Wagner's variances would establish an unsettling precedent.

Others have built piers, decks and garages without permits, but Wagner is the first person since the Critical Area Commission was created in 1984 to have built a house in the watershed without approval, Serey said.

The actions by Wagner were an especially egregious act because he's a professional homebuilder, Serey said in an interview Wednesday.

The Magothy River Association, an environmental group that wants Wagner's buildings torn down, said that politics influenced Rutter's decision.

Paul Spadaro, president of the Magothy organization, pointed to County Executive Janet S. Owens' ties to developers as an influencing factor in the decision from Rutter's office. The development community contributed tens of thousands of dollars to her 2002 re-election campaign. She received $1,950 from Wagner's business, Wagner Homes Inc., between 1999 and 2003.

"I resent the accusation," Rutter said. "I've never responded to political pressure."

Responding through a spokeswoman yesterday, Owens said, "We are following the proper channels. The county has filed the lawsuit and is going in an orderly process."

Although a recommendation from Rutter's office carries weight, the decision on Wagner's variances rests with LeGendre. The hearing officer went against Rutter in denying variances to David L. Clickner Sr., the Glen Burnie businessman who wants to build pier access and a home on nearby Dobbins Island.

If LeGendre rules in favor of Wagner, the Critical Area Commission, a state agency that monitors development along the Chesapeake Bay watershed, maygo to the county Board of Appeals.

If Wagner gets the variances, he must apply for permits, which could take months. In the meantime, Schuett is proceeding with the lawsuit, which seeks the demolition of all illegal structures and the sealing of all wells and sewer systems.

In a Circuit Court hearing Wednesday, Judge Paul A. Hackner rejected Fuoco's motion to dismiss the lawsuit.

Phill.McGowan@baltsun.com

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