Leah Grace Mastandrea may use a wheelchair to get around, but she can negotiate the uneven shoreline behind her Easton, Md., home.
Three years ago, three of her brothers built a handsome 1,000-foot brick path along nearby Glebe Creek so Leah, now 19 years old, could enjoy the brackish Chesapeake Bay tributary and its abundant waterfowl with the rest of her large family.
Their labor of love now may be in vain.
Earlier this month, Talbot County Circuit Court Judge William S. Horne reluctantly ruled that most of the Mastandreas' walkway violated the state's Critical Areas Act, which forbids most construction within 100 feet of the water line. Most of the waterfront path, he ordered, must come up within the year.
"It's been one of the most unpleasant cases I've had the misfortune to rule on in the past 10 years," Horne said.
The judge's frustration reflects the hard choices faced by governments and courts seeking to reconcile full access for the disabled with strong environmental protections. The Mastandreas, whose attorney said they did not want to comment, plan to appeal.
"It's heartbreaking. I can understand the reasons for wanting to protect the shoreline, but this is bureaucracy out of control," said Will J. Howard, a neighbor and friend of the family.
The Mastandreas' legal odyssey began in the fall of 1996, when a Talbot zoning enforcement inspector on an adjacent property noticed the brick walkway that runs parallel to Glebe Creek, about 25 feet inland from the shoreline. When the inspector found the Mastandreas had not obtained a building permit, he told them they needed to secure a variance under the county's Critical Area Program.
The program, mandated by Maryland's 1984 Critical Areas Act, was implemented to control waterfront construction that increases natural water runoff and consumes tidal wetlands that sustain the Chesapeake Bay and its wildlife. The program allows building only structures that are "so closely associated with water dependent activities that they cannot be located outside the buffer."
John Mastandrea, an oncologist, applied for a zoning variance arguing that the walkways were essential to Leah's enjoyment of the water. He told the County Board of Appeals in July 1997 that he had not known that the brick sidewalks constituted "impervious surfaces" forbidden by critical area law.
He said that his daughter, who suffers from muscular dystrophy, would not be able to use a gravel path and that an alternative--wood decking--would be too slippery.
The Critical Areas Commission, a state agency that oversees enforcement of the law, filed an objection. The commission staff planner said the law would permit the brick path from the Mastandreas' home down to their wheelchair accessible dock.
But the walkway that runs along the shoreline, he argued in a memo, "far exceeds the 'necessary' water access" allowed in the law.
"The applicant can enjoy access to the shoreline through a direct straight-line pathway from the house to the pier," the commission said.
Anita Mastandrea testified that her daughter's ability to have access to much of their property was "one of the few pleasures she is still able to enjoy."
In August 1997, the County Board of Appeals sided with the Mastandreas on a 3 to 2 vote.
"Part of the reasonable use of such a property is access to the entire waterfront not just the pier," the majority said.
The walkway running along the shoreline constituted only 4 percent of the entire surface area of the 100-foot-wide buffer zone on the property, the board members noted. Runoff problems could be mitigated easily by landscaping changes.
The state Critical Areas Commission appealed, and the Talbot County Circuit Court asked the board to reconsider for technical reasons. The board then reaffirmed its decision in October 1998 by the same 3 to 2 vote saying a "literal enforcement" of the provisions of the critical areas law "would result in unwarranted hardship to the owner."
The state appealed again, bringing suit before Horne.
Horne said the law gave him no choice but to enforce it literally.
Marianne Mason, assistant attorney general for Maryland who represented the Critical Areas Commission, said it was the correct decision.
"The court obviously had some personal reluctance to apply the law in this circumstance, but the state had the law on its side," she said.
David R. Thompson, attorney for the family, said he will appeal the decision within 30 days. "We will continue to give the Critical Areas Commission the opportunity to exercise the same compassion that Talbot County Board of Appeals showed," he said.