By David A. Fahrenthold
Washington Post Staff Writer
Friday, September 26, 2008

Maryland filed suit yesterday to force an Anne Arundel County man to tear down a home and a lighthouse he built without permits on an island in the Magothy River.

The suit, filed in Anne Arundel Circuit Court, marks the first use of a new legal tool by a panel charged with protecting environmentally sensitive shore areas. The Critical Area Commission for the Chesapeake and Atlantic Coastal Bays had previously relied on local officials to enforce its rules. But this year, the state General Assembly granted it the power to sue violators directly.

The commission's first suit targets the state's most famous critical area case, which critics had said was proof that the state's enforcement was toothless.

In 2004, officials noticed that home builder Daryl Wagner had constructed a two-story house, with a lighthouse attached, on a two-acre island that was nearly all in the protected critical area. He had not obtained permits for most of the construction, officials said.

Commission Chair Margaret G. McHale said yesterday that the suit seeks to have torn down all of the structures that lack permits, which include a boat ramp, sheds, a pool, a deck and a patio.

"We're looking for restoration of the site the way it was before he obliterated" it, McHale said yesterday.

Scientists say construction in the critical area removes trees and grasses that provide a natural filter for water running off the land.

Wagner's case was already the subject of a court fight. In 2005, a county hearing officer ruled that he could keep the house, and last year an appeals board agreed, although the board said he should remove a pool, a patio and a gazebo. But the critical area commission and a local citizens group appealed, and the case is still in court.

McHale said that the suit filed yesterday might be combined with the existing case.

Robert Fuoco, a Glen Burnie lawyer who represents Wagner, said the state's lawsuit was "wholly frivolous," because it sought to undo previous legal rulings.

"We received approval under the old law," Fuoco said yesterday. "They can't change the law, and change the ground rules, while the case is on appeal."