One Man Is an Island

His legal defense rests on the premise that a landowner should not be denied permission to build just because he is seeking the permit after he has already built.

Even within 100 feet of shore, the most protected band of Chesapeake coastline, homeowners are usually allowed to build a new dwelling if they work within the boundaries of an old one. There was a house on Little Island when Wagner arrived. He said he might have built on its foundation but learned that it lay on unstable land. Instead, he built farther inland -- a good thing, in terms of environmental law, the owner contends.

"We're not saying that we have the absolute right to build without a permit," said Robert Fuoco, a Glen Burnie lawyer who has represented Wagner for 20 years. But "the remedy," he said, "is not to tear down the house."

Wagner's adversaries view him as the latest in a series of arrogant landowners and developers who flout zoning laws because they can.

Daniel M. Snyder, owner of the Washington Redskins, agreed in the fall to pay Montgomery County $37,000 after he removed 130 trees from his estate on the Potomac River in violation of a forest-conservation law. And the developer of Clarksburg Town Center, a community north of Germantown, faced potential fines for building hundreds of structures too high or too close to the street. The Clarksburg case -- now in mediation -- has prompted talk of increasing fines for building violations in Montgomery so that, in the words of Del. William A. Bronrott (D-Montgomery), the penalties "exceed the cost of doing business."

Anne Arundel County sued Wagner after discovering his island home in 2004, three years after its completion, but then issued a pair of decisions in October that gave him hope. One acknowledged the previous home on Little Island and a corresponding exemption from the 100-foot environmental buffer. The other granted him a variance from county law to permit the dwelling, although it instructed him to remove the decorative lighthouse, pool, deck and gazebo and forbade further expansion.

County Executive Janet S. Owens (D) has been largely silent on the dispute. In e-mailed comments, she said of Wagner: "Anyone who builds without permits would face the same consequences," including fines and possible demolition.

The environmentalists who oppose Wagner's home consider Owens his ally, citing political contributions from the homeowner's building company to her campaign fund. They also suspect Owens knew of the home, one of the more prominent waterfront properties in the region, before it was spotted by a county employee investigating an unrelated complaint on the mainland. Owens says she did not.

"Personally, I think half the county was in on the deal and the other half didn't know about it," Spadaro said.

The county officials weighing Wagner's case say his critics may have lost sight of the forest for a few felled trees. The fanciful dwelling is, after all, his home.

"The county has never said he couldn't build anything," said Kathleen Byrne, an assistant county attorney who is prosecuting Wagner in the civil lawsuit. Most of his problems, she said, stem from seeking approval for the home after the fact: "Our system isn't set up that way."

A landowner who wishes to build on protected coastal land must meet several legal standards. Among them: If not allowed to build, would the owner be denied "reasonable and significant use" of the property, suffer "unwarranted hardship" and be "denied a right commonly enjoyed by others" within the coastal buffer?

Wagner may have had a right to build a home on Little Island, but not the home he built and not without prior permission, said Marianne Mason, an assistant attorney general for the state. She represents the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays, a state panel charged with overseeing the environmental law Wagner is accused of breaking.

The group entered the dispute in November, arguing that Anne Arundel erred in granting Wagner a legal variance from environmental laws for his home. Environmentalists hope the commission's involvement will turn the tables against Wagner. Its appeal and others await review by the county Board of Appeals.

"There's no legal footing for having what he has out there," Mason said. "The question is, to be philosophical, 'How do you fix it now?' "