Md. Wants to Clamp Down on People Who Build in Protected Areas
By David A. Fahrenthold
Washington Post Staff Writer
Friday, February 22, 2008
On ritzy waterfront lots around Maryland, many homeowners are ignoring a rule against building anything too close to the shore -- and, in many cases, they're getting away with it.
In 116 cases since 2005, decks, pools, carports and even houses have been illegally built within a protected buffer zone near water, state records show. In two-thirds of the 81 cases for which full records are available, city or county officials have allowed the rule-breakers to keep what they built.
Not all violators meant to flout the law, Maryland officials said. But the state is pushing for a crackdown. Officials say that each offense chews away at the law's credibility and at the protected area, a green fringe of plants that acts as a natural filter for the state's waters.
"I don't know of any other area of the law that when you break the law . . . you say, 'Oh, I'm sorry. I didn't know.' And then it all goes away," said Margaret McHale, who chairs the state's Critical Area Commission for the Chesapeake and Atlantic Coastal Bays.
This month, Maryland Gov. Martin O'Malley (D) introduced a bill that would increase the penalties for those who build first and ask questions later. Homeowners who are caught would be fined or have to replace trees before being considered for an "after-the-fact" variance. Contractors caught doing illegal work could lose their license.
Ren Serey, executive director of the Critical Area Commission, said that the proposed changes are designed to fix the current process, in which breaking the law can seem easier than following it.
"The system isn't working," Serey said. "That's going to be the proposal to make it work better."
But, in official rulings and interviews last week, local officials said there are often good reasons for allowing illegally built structures to stand. One deck was allowed because others like it had already been built in the neighborhood. In another case, a pathway was allowed because it gave a handicapped resident easier access to a pier.
In several cases, residents were required to replant trees or other vegetation, often in amounts greater than what was lost.
"To me, every case is an individual case," said Stephen LeGendre, an administrative hearing officer who considers variance applications in Anne Arundel County. "Certainly, there are some cases that are abusive, and those cases tend to be denied."
Anyone who has taken a boat or crossed a bridge in Maryland knows that its waterfront is heavily built up. But things were supposed to work differently after the law was enacted in 1984, when the state labeled the first 1,000 feet back from certain bodies of water "critical areas."
New development was to be limited in such areas -- and almost nonexistent in the first 100 feet back from the shoreline. The law applies to all of the Chesapeake Bay shoreline, as well as downstream portions of tributaries, including the Potomac, Patuxent and Severn rivers.
The idea was to preserve thin strips of grasses, trees and shrubs, which trap excess dirt and filter out pollutants that cause "dead zones." Such plants at shorelines are as crucial to the bay as skin is to people, scientists say.
The strips are "extremely thin," said Margaret Palmer, director of the University of Maryland's Chesapeake Biological Laboratory. But they are "very, very important."
The same strips are also nice places in which to build gazebos. Every year, homeowners around the state file more than 350 requests for permission to build something in the critical areas.
Environmental groups have denounced the way that such cases are decided. This month, the nonprofit Chesapeake Bay Foundation studied variance requests from four counties; an average of 76 percent were approved. That is "death by a thousand cuts" for the state's waterways, the foundation said.
Then there are the cases in which homeowners don't seek permission at all.
The Critical Area Commission says there have been 116 such cases since 2005, most in Anne Arundel, Calvert and St. Mary's counties. Although the commission provides opinions about such cases, officials at the county or city level usually settle them.
Many of the commission's files lack crucial documents -- staffers say that local officials sometimes don't provide them -- but employees say they know the outcome of 81 of the 116 requests. In 67 percent of the 81 cases, the files show, homeowners were granted the right to keep some or all of what they had built.
Serey, the commission's director, said he thinks that is too many.
"I'm certain some of them were innocent," he said. "I'm also certain that most of them were not."
It is difficult to compare Maryland with other jurisdictions. The District does not have a similar rule limiting development near shorelines, said a spokeswoman for the city Department of the Environment. Virginia has a parallel rule, but an official said the state does not track permissions granted after illegal structures have been built.
In Maryland, one of the most widely known after-the-fact cases had to do with the compound that home builder Daryl Wagner constructed on an island in the Magothy River, north of Annapolis. Without seeking critical-area variances, Wagner, beginning in 2000, built a home with a lighthouse tower, pool and gazebo.
Last year, an Anne Arundel appeals board ruled that the house could stay but that other structures had to be demolished. An environmental group appealed, and the case is in the court system.
Most of the violations occur on a smaller scale -- in cases involving sidewalks, sheds or patios built too close to water by homeowners who said they didn't know they were doing anything wrong.
"When the men arrived, they said they had gotten all the permits," said Barbara Kowalski, who had to seek permission for a deck that contractors added to her home on Bodkin Creek in Pasadena. "And they waved an envelope at me -- 'Yeah, lady, yeah, lady, we got 'em.' And they did not."
On the West River, south of Annapolis, Bill Gargiulo said he thought he had the right to build a retaining wall in front of his house. But it turned out to be illegal, he said, and the county is forcing him to tear it down.
"What we did was wrong, and we will correct it," he said, probably with a party to celebrate the demolition. But Gargiulo said he was irked that Wagner, who built something much larger, got to keep his home. "What's fair for one should be fair for all."
One afternoon last week, environmental activist Bob Gallagher gave a boat tour of what he said were critical-area intrusions on the West River. There was Gargiulo's retaining wall, there a carport on another home, there a shed.
"You learn to look for yellow. It's the color of construction equipment," which is a sign of waterside construction, said Gallagher, whose is "keeper" of the West and Rhode rivers.
He said he hopes that O'Malley's bill will lead to tougher enforcement of the rules. "If you've never experienced criticism for having done it, you keep doing it."
Staff writer Lisa Rein and staff researcher Meg Smith contributed to this report.
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