The state's top court Thursday upheld the dismissal of a lawsuit asking that a building contractor raze the luxury compound he built without permits on an island in the Magothy River.
The lawsuit, filed by the Critical Area Commission in 2008, was the first filed under state environmental enforcement measures toughened by legislators only months earlier. They strengthened the law largely in response to the illegal construction on 2-acre Little Dobbins Island.
The Court of Appeals said Thursday that the 2008 provisions could not be applied retroactively to the construction by Daryl C. Wagner and his company, DCW Dutchship Island LLC, that was discovered four years before the law took effect.
"Clearly, Wagner's and DCW's misconduct predated the effective date of the amendment," Judge Glenn T. Harrell Jr. wrote for the unanimous court.
"That was our whole argument from the beginning," said attorney Robert J. Fuoco, who with lawyer Warren K. Rich has been representing Wagner. Fuoco described Wagner, who through his attorney declined to comment, as "satisfied, relieved."
The changes in the law gave the Critical Area Commission authority to pursue violations in Maryland's Chesapeake Bay and other watersheds and seek environmental mitigation.
Commission Chairwoman Margaret McHale said this was the sole case in which the panel sought to apply the law retroactively. Disappointed "because of the environmental damage that was done and the way it was done," she said it was not a setback for future applications of the beefed-up law.
The commission's executive director, Ren Serey, said what the agency sought from the lawsuit was a requirement that anyone trying to obtain building permits after the fact for a critical-area violation also have a plan for environmental restoration.
A challenge that can now move forward, because this case has been resolved, may accomplish that, officials said.
Wagner's illegal home construction was one of several to surface in a short time period in Anne Arundel County.
In 2004 — a few years after the work was done — county zoning inspectors learned that Wagner had built a 3,000-square-foot house, swimming pool, replica lighthouse, gazebo, 40-foot-long driveway and boat ramp on Little Dobbins Island without state or local permits. Wagner, who had been living there much to the consternation of county officials, belatedly sought variances, or government approval, for the construction.
Anne Arundel County's Board of Appeals granted some of the variances, allowing Wagner to keep the house, lighthouse and well and septic systems on condition that he remove other structures, including the pool and gazebo. The decision, opposed by the Critical Area Commission, Chesapeake Bay Foundation and Magothy River Association, worked its way to the Court of Special Appeals. Thursday's ruling by the higher court allows the Court of Special Appeals to set a date to hear arguments in that case. If the variances are upheld, the county will require an environmental mitigation plan, McHale said.
Because there had been a small cottage and outbuildings on the island, Wagner is allowed to have the same amount of impervious surface that those structures had. But his construction surpassed that, officials said.
A separate effort by Anne Arundel officials to force Wagner to demolish the house is on hold. "We will continue our efforts to remove Mr. Wagner's illegal construction as long as that construction remains illegal. If he is successful in getting permits for that structure, then we will dismiss our case," County Attorney Jonathan A. Hodgson said.