County to push case against island home, despite ruling

Board of Appeals gives OK, but decision upsets Leopold

December 06, 2006|By Phillip McGowan | Phillip McGowan,sun reporter

Anne Arundel County's lawsuit against a builder who constructed an island home in the Magothy River without permits will not be dropped, County Executive John R. Leopold said yesterday, despite a recent ruling by the Board of Appeals to allow the builder to keep his home.

Leopold said the matter regarding Daryl C. Wagner "has been a black eye for the county. It's my intent to do everything in my power to ensure that this does not reoccur."

Leopold's comments came a day after the seven-member appeals board granted retroactive variances, letting Wagner keep his glistening white home of more than 5,000 square feet on Little Island, near Pasadena.

The panel voted, 5-2, to allow Wagner to have a home footprint of 3,005 square foot. In a separate vote, Wagner was allowed to keep a 40-foot-by-8-foot section of driveway near his boat ramp on the 2-acre island.

The board also granted a variance for a septic field - pending approval by the county Health Department - and denied one for his sidewalks, patio, gazebo and swimming pool. It also waived restrictions that normally prevent building within the "100-foot buffer," or within 100 feet of a protected bay tributary.

Wagner attended the 90-meeting hearing Monday night. He said he was pleased by the decision. He added that he is prepared to fight for as long as it takes to keep his house. The hearings began in April.

"I'm in it for the long run, of course I am," Wagner said.

Wagner's attorney, Robert J. Fuoco, said he would need to examine the site plan "to see how the pieces fit" and determine what portions of the house can stay and what can go.

"The house won't change," Fuoco said.

Leopold refrained from commenting on the board's decision.

The state Critical Area Commission, along with two environment groups - the Magothy River Association and the Chesapeake Bay Foundation - filed the appeal after a county official granted retroactive variances in October to allow Wagner to keep his home.

Environmental groups had asserted that the county's willingness to let Wagner keep his home would encourage others to flout county and state land-use laws and cause irrevocable damage to the Chesapeake Bay watershed.

On Monday, a majority of board members apparently favored limiting the footprint of Wagner's home but did not want the home demolished. The board mustered only three votes for the denial of a variance for Wagner that could have led to demolition.

Board member Vance Remillard said that it was not the panel's place to punish Wagner.

"All of these other issues are emotional," he said.

Others disagreed: "There is no entitlement to a variance," said board member William Moulden, who along with Chairman Anthony V. Lamartina voted against letting Wagner keep the house.

The split decision by the Board of Appeals largely coincides with an opinion by county administrative hearing officer Stephen M. LeGendre, who ruled in favor of Wagner keeping his home but ordered that he must tear down a lighthouse, a pool, a deck and a gazebo on the property.

Fuoco said he thought that based on the board's ruling, the homebuilder could keep the lighthouse. He generally thought the board's decision supported his argument that Wagner was entitled to keep the house.

Wagner, who owns Wagner Homes Inc. of Millersville, is thought to be the first person to build a home in the Chesapeake Bay watershed without county permits, according to state officials. Zoning inspectors discovered the white home in 2004.

Wagner obtained permits to make minor renovations to a house after buying the island in 2000, the county said. Instead, he demolished the house and built a lavish one in its place.

The county responded in May 2005 by filing a lawsuit in Anne Arundel County Circuit Court to tear down the house and other parts for which Wagner could not get retroactive variances and permits.

Before stepping down as county executive Monday, Janet S. Owens insisted that the county had been tough with Wagner, who contributed $1,950 to her campaign committee between 1999 and 2003.

"Daryl Wagner is in a legal process," Owens said. "The county is taking him to the cleaners."

Judge Ronald A. Silkworth has suspended the county suit, pending the board's written decision. The term for the seven-member panel expires in January, so county officials expect a formal ruling by the end of the month.

Representatives for each of the environmental groups said they did not know whether they would appeal the decision until they saw the written opinion.

"We are disappointed with the outcome," said Ren Serey, executive director for the state Critical Area Commission, which oversees development in the Chesapeake Bay watershed.

"The majority last night discussed the impervious surfaces and what sorts of compromises could be made," Serey said. "I did not hear them discuss the variance requirements under the law. I didn't not hear the majority discuss the law."

However, Jon Mueller, the litigation director for the Chesapeake Bay Foundation, said, "There's plenty of room there for an appeal." He said the board's granting of a variance for a specific-sized footprint constitutes a "blanket variance" that county law doesn't allow.

phill.mcgowan@baltsun.com

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