One Man Is an Island
Environmentalists Assail Owner Who Built Without Permits in Md.

By Daniel de Vise
Washington Post Staff Writer
Saturday, February 25, 2006

Daryl Wagner purchased a two-acre wisp of scrub and sand near Annapolis called Little Island six years ago and built his dream home there. He replaced jagged banks with sloping grass, uprooted hardwood trees and planted plastic palms, dug an in-ground pool and raised a metal-roofed copy of a lighthouse.

Neighbors along the Magothy River watched the house go up and snapped pictures of the military-style amphibious vehicle Wagner used to bring over materials from shore. They assumed he had permission for the grand redesign. He did not.

Wagner built his house and molded the landscape of Little Island without the proper permits -- a bold move, considering that most of the land lies within the strictest environmental buffer in Maryland.

Environmentalists say they cannot recall a more blatant violation of the critical-area law that restricts development along the shores of the Chesapeake Bay.

Anne Arundel County sued Wagner, but a county hearing officer subsequently ruled that he was entitled to keep the house. Environmental groups are fighting him before the county Board of Appeals. They see Little Island as the ultimate test of the government's resolve to fight the developers and wealthy landowners who continually test it.

"The only direction that house is going is down," said Paul Spadaro, president of the Magothy River Association and Wagner's most outspoken adversary. "Otherwise, anybody will be able to do whatever they want."

Wagner, a home builder by trade, grew up within sight of Little Island. His family owned Island View, a modest summer retreat for vacationing urbanites established by his great-grandfather in 1918 in Arnold. The resort sat a short distance from Dobbins Island, a gathering spot for generations of boaters -- including Wagner and his brothers -- drawn to its beach and mysterious trails. The aptly named Little Island lay to the north.

"The Magothy River means more to me than anybody could ever know," Wagner, 51, said in his first public comments on a dispute that has been the talk of the community. "The Magothy River is in my blood. I would never do anything to harm it."

Wagner courted the owners of Little Island from the early 1970s, seeing promise on the neglected triangle of poison ivy and crumbling banks. Over the years, he watched the eroding island "basically melt into the Magothy, just disintegrating, seeing the trees fall over and take the dirt with them."

The home builder finally bought Little Island in 2000. By raising a stone barrier along its perimeter and stabilizing the shoreline, Wagner probably saved the land mass from slipping into the water, a fact not lost on residents along the river.

"What he did in the end was a positive thing, and I can't deny that," said Robert Lane, whose property on the mainland looks out at Wagner's.

There's little doubt, given his profession, that Wagner knew what he was doing when he built the home in the winter of 2000-01 without a building permit or an explicit variance from environmental laws. Wagner says the home is 3,200 square feet.

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?' "

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