High court restricts Dobbins Island access

January 20, 2012|By Tricia Bishop, The Baltimore Sun

Maryland's highest court on Friday ruled that the Dobbins Island beach is not a public playground, overturning a lower court's decision that allowed unfettered access to all sandy areas along the shore, even those that are privately owned.

The decision means boaters — including those who converge on the Magothy River each year for the "Bumper Bash" — will have to restrict themselves to the sliver of sand between the river and the "mean high water line," which marks the division between private and public property, according to the Maryland Code.

People can still anchor in the cove, pull small vessels onto shore and frolic on the beach below the high tide zone. But they can't go farther inland. That area is reserved for guests of David L. Clickner Sr. and his wife, who bought the 7-acre island for about $825,000 in 2003, with plans to build a home there.

The Clickners' efforts have been held up. For the past five years, they have been locked in various legal battles with environmental groups, which have tried to shut down development for, the organizations say, the good of the island.

David Clickner called Friday's ruling a move "in the positive direction," but said the war is far from over.

Two other legal matters, initiated by the Magothy River Association and the Chesapeake Bay Foundation, are working their way through Anne Arundel Circuit Court, challenging the Clickners' rights to alter the Dobbins Island landscape.

The Clickners describe the court filings as "environmental blackmail." The groups "want to own the island without paying for it," Clickner said.

Ann Fligsten, an attorney for the Magothy River Association, said the group has nothing against the Clickners personally. "It's about the island," she said. "It's one of the few uninhabited islands left … so it's important to a lot of folks."

An attorney for the Chesapeake Bay Foundation could not be reached.

Dobbins Island is named after the family of a Baltimore judge, George Dobbin, who bought the island in the 1850s as a retreat. It was held in a family trust, and then "conveyed" to a limited liability company, which advertised it in a marketing brochure as "an idyllic, unspoiled natural retreat surrounded by deep pristine waters," according to Friday's court ruling.

The brochure, which attracted the Clickners, also said the island "has been a magnet for picnickers … pleasure boaters, crabbers, fisherman, and duck hunters alike."

The picnickers aren't a problem for David Clickner, though he could do without the partyers. Hundreds of boaters descend on the island each summer during the Bumper Bash celebration, which has a tendency to get out of hand. Last year, paramedics were stationed on shore and on the water, and the police presence was increased.

"Our goal is not to chase people away," Clickner said. "We don't want it out of control … we want it so that people can be comfortable in going there and not worry about getting caught up in a fight."

In 2006, he erected a 1,200-foot fence along a portion of the shoreline, above the high-tide mark, to protect his property. It upset those who were used to wandering at will and led the Magothy River Association to file a lawsuit in Anne Arundel County Circuit Court in 2008 to keep access to the entire beach open.

The lawsuit was based on a legal presumption, accepted by the judge, that the public could access a property if they could prove previous, "exclusive, and uninterrupted use" for 20 years or more. The plaintiffs easily showed that families and others have been using the beach for decades if not centuries, and the judge ordered that portions of the Clickners' fence be removed.

Clickner appealed. In a 41-page opinion, issued Friday, the Maryland Court of Appeals judges found that the lower court erred in its ruling, because a "woodland exception" applies to the Clickners' natural, untampered-with beach area above the mean high-tide line.

Under such an exception, the presumption is that any use of the area is done under the "permissive indulgence of its owners," the judges wrote. "Therefore, the public's historic use of the beach on Dobbins Island was under a license, now properly subject to revocation by the Clickners."

The opinion reverses the earlier court's ruling and order forcing the fence to come down.

"It's just another step down the road," Clickner said of the decision. "This is not something that is over fast."

tricia.bishop@baltsun.com

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