The Maryland Critical Area Commission and the Chesapeake Bay Foundation have joined a challenge to the construction of a house that was built without proper permits on Little Island in the Magothy River.
The appeal to the Anne Arundel County Board of Appeals is slated to be heard in the spring. It takes issue with an October decision by the county's planning and zoning officer to retroactively allow local home builder Daryl Wagner to seek permits for a house and outbuildings on the island, which falls inside the critical area zone extending inland from all bay waters. The state-designated zone was established to protect the environmentally sensitive shoreline. Construction inside the zone requires a special variance, which Wagner did not seek before building the house several years ago.
"This is a guy who basically has given everybody the finger when it comes to critical area laws," said Paul Spadaro of Severna Park, president of the Magothy River Association, which is challenging the construction. "It's like, 'I built it -- now what are you going to do about it?' "
Wagner attorney Robert Fuoco said his client, who grew up on the river, built a home that is farther from the waterfront than a previous structure, now gone. The home, Fuoco said, is therefore less, rather than more, intrusive on the critical area buffer. Further, "all the work around the waterfront," referring to stonework at the water's edge, "was done under permits issued by Army Corps [of Engineers], the state and the county," he said.
"I recognize, of course, . . . that the house was built without permits. And there will be a penalty to pay at the appropriate time. But they're mixing the permit issue with the environmental issue."
The battle over the house on Little Island has continued for nearly two years. Two previous decisions in Wagner's favor have cited the fact that there previously have been buildings on the property, including a house that is still standing. But the builder and his opponents differ widely in their assessments of the pre-existing structures' sizes.
In October, the county planning and zoning office acknowledged that previous structures had existed on the property and decided to support the variance request. A week later, a county administrative hearing officer granted the variance.
The decision goes against state law, says Marianne Mason, the assistant attorney general who filed the appeal on behalf of the state's Critical Area Commission. "The General Assembly in 2002 and 2004 specifically strengthened the critical area law," she said.
"In order to get a variance you have to meet all, very strict variance standards," including proving that denial of a variance would result in "unwarranted hardship," hampering a property owner's right to use the entire property, Mason said.
The home's opponents say that permission for a structure whose builder hadn't sought a variance in the first place sets a precedent that could ultimately weaken the state's critical area law.
"A property owner has to apply for and receive a variance before they can start. In this case the construction was already done, and they were caught, and then they decided to seek variance," said Jon Mueller, the Chesapeake Bay Foundation's director of litigation.
In defense, attorney Fuoco said: "It's not a question of being rewarded. If we're entitled to the variance, it shouldn't matter whether the house was constructed prior to obtaining the variance."
If the Board of Appeals rules against Wagner in the spring, "he could be ordered to scale back; he could be ordered to demolish," Mason said. "The relief would be up to the board."
Wagner has the right to appeal an adverse decision in court. "My client will fight for his rights on that island for as long as it takes," Fuoco said.