by J. V. Reistrup
photography by John Bildahl

It's a textbook example, some say, of how Maryland's Critical Area Protection Act is not working: On neighboring islands in the Magothy River north of Annapolis, two landowners set out to build houses, even though building is restricted on the islands under the state's Critical Area Act. One man doesn't bother to get the necessary permits; he just builds the house of more than 5,000 square feet. He also puts in a driveway and a faux lighthouse. The authorities challenge him, but the house is still there years later. The other landowner jumps through the regulatory hoops, filing for all the permits and zoning variances. Years later there is still no final decision, and no house. The example isn't hypothetical. It is real. The islands in question are Dobbins Island and Little Island, near the mouth of Sillery Bay behind Gibson Island. The state's Critical Area Act, passed in the mid-1980s, is designed to discourage new development on land within 1,000 feet of the Bay or any of its tributaries. Land within 100 feet of water, called the buffer zone, is even more closely guarded under the law, which is administered not by the state but by county permitting offices and zoning boards.

Not surprisingly, there are people who say the law isn't working. Surprisingly, those people come from both sides of the philosophical aisle. Developers and landowners say the law is economically intrusive and a waste of public resources. Environmentalists and antigrowth advocates say the law is far too easy to get around. Perhaps that's proof that the law is working. If neither side is happy, the saying goes, it must be a good compromise. And it will make for a lively debate this winter, as the Critical Area Act is re-examined during the 2008 session of the Maryland General Assembly.

It seems as if everything is set up to help the developers jump through the hoops," says Howard Dent of the Cobb Neck Citizens Alliance in Charles County, Md. Vivian Mills of the Conservancy of Charles County says an official there told her the philosophy is "development by right"-that is, if developers simply play the game, they get a variance. Paul Spadaro, president of the Magothy River Association, says Anne Arundel County "is just giving variances away."

Spadaro has been a thorn in the side of both Daryl Wagner, the builder who put up the 5,000-square-foot home on the Magothy's Little Island without the required permits, and David Clickner, who would like to build a home on neighboring Dobbins Island but can't, at least so far. "It's just a nightmare. It's a dismal failure," Spadaro says of the Critical Area Act, pointing to inconsistent and often weak application of the law up and down the Bay. Creative lawyers can always find loopholes to get zoning variances, he says, even though "a variance is not a constitutional right."

Spadaro's adversaries also complain about the law, but for diametrically opposite reasons. When developers and landowners cry foul, it's invariably because they feel they've been singled out and thwarted by the critical-area process. Although Daryl Wagner began building his house on Little Island without following the rules, he has since retained a lawyer to help him keep it: Warren Rich, an Annapolis attorney who thinks the Critical Area restrictions have done more harm than good. On the plus side, the laws have changed how people think about waterfront property, he says, but they have also spurred waterfront development instead of discouraging it-partly because of a rush to make use of a gap between the law's enactment and the regulations to enforce it. "It has accelerated development around the Bay . . . and water quality is worse now than it has been. I don't think anyone can dispute that," Rich says. Instead, "all this effort is going into these little bits and pieces," like projects by individual landowners. Rich thinks the fundamental problem is that politicians lack the will to confront a worse culprit in polluting the Bay, agricultural runoff. He contends Wagner has done a favor to the Bay by improvements that stabilized Little Island and halted its erosion, including installing riprap around it.

David Clickner also claims his plans would preserve Dobbins Island and curb erosion there. "It would be nice if they could structure the program so that a person could have a reasonable expectation of getting a permit within their lifetime," he says.

On the other side of the Bay, R. S. "Steve" Smethurst Jr. says his Salisbury law practice is about 80 percent devoted to representing landowners in property and land-use cases around the Eastern Shore. He has just spent seven years unsuccessfully defending a landowner who, like Wagner of Little Island, started without permission. Like Rich, he came into the case only after the landowner got into trouble. The most common excuse, he says, is that landowners or the contractors they hire didn't know the rules for building in a critical area.

Smethurst says he has won bigger and smaller variances than this one. "I think the Critical Area Act itself is a great idea, and I think for the most part it's implemented pretty well. My only criticism of it is that occasionally they go off the deep end," as in this case, he says. After years of legal costs and expenses for expert witnesses, he says, the Critical Area Commission (CAC) has gained no benefit for the Bay.

Edwin Lewis wanted to put a half-dozen buildings on Phillips Island, a wooded five-acre bump in the marshland near the Nanticoke River. Lewis, a successful apparel-industry executive, bought a total of about 300 acres in 1999, including the island and some marshland around it. There were about a dozen duck blinds already in the marsh, and an old boat pier and sewage-disposal area on the island. Lewis wanted to put in a 40-by-40-foot hunting lodge and several 14-by-16-foot sleeping cabins as temporary accommodations when he and his friends went hunting, and he hired a local contractor to build them out of cedar. "Lewis wasn't even around. That was a mistake," says Smethurst, who says the contractor said he thought no permits were needed because the structures weren't permanent. That assumption was wrong, and Lewis learned that most of the structures were within the 100-foot buffer around the perimeter of the island.

Lewis stopped work on the uncompleted cabins in 2000 and sought a variance from the Wicomico County Board of Zoning Appeals. The Nanticoke Watershed Alliance and the Critical Area Commission opposed the application. (Smethurst claims critics "poisoned the well" with the CAC by arousing resentment against Lewis as a rich, big-shot executive with Tommy Hilfiger who was trying to throw his money and weight around.) Issues in dispute included the number of trees cut to make way for the buildings and whether the impervious surface added by the cabin roofs would add to the island's stormwater runoff.

The zoning board denied the variance. Lewis appealed, but the Wicomico County Circuit Court upheld the board's ruling. Lewis appealed again, but the Maryland Court of Special Appeals-the next level up-also affirmed the ruling. Lewis appealed a third time, and in 2003 the Maryland Court of Appeals vacated the decision, sending it back to the zoning board on grounds it had applied the wrong standard of law. In 2004 the board again denied the variance; the circuit and appellate court upheld the denial and finally last year the Court of Appeals refused to hear the case again.

So the case now ranks as a legal citation among precedents under the Critical Area Act, further defining the standards that zoning boards must apply in critical-area cases, and Lewis had to find a way to get the partially constructed cabins off his island with minimum damage to the environment.

These differing views, and others, will probably get an airing this year, when Maryland's General Assembly is expected to take up proposals to amend the Critical Area Act.

Maryland was quick to respond after the U.S. Environmental Protection Agency reported in 1983 that serious pollution was flowing into the Bay. The state enacted its Critical Area Act the next year as part of the multistate Chesapeake Bay Program. The law gave enforcement authority to the state Department of Natural Resources, through a new Critical Area Commission. Although the regime was imposed by the state, local governments were given primary responsibility for implementing it through zoning codes. They were charged with developing programs to regulate land use in the critical area, subject to CAC review and approval. The law took effect on December 1, 1985, in the Bay critical area, and on June 2, 2002, it was expanded to include the Atlantic coastal bays.

The starting point was a boundary line drawn 1,000 feet around tidal waters, or the edge of adjacent tidal wetlands, as shown on Maryland's 1972 official state wetland maps. Within those borders of the critical area, the law set forth three classifications of land use, based on how the land was developed when it was mapped: resource-conservation areas (RCAs), limited-development areas (LDAs) and intensely developed areas (IDAs).

Development on land within resource-conservation areas is generally limited to a maximum of one house per 20 acres, except that a grandfather clause allows development on lots that were approved before the effective dates of the law. New commercial, industrial or institutional construction isn't allowed in RCAs. If necessary to accommodate population growth, though, the law allows parts of RCAs to be reclassified for more intensive development.

Limited-development areas include residential (up to four homes per acre) and light commercial areas, as well as natural areas, wetlands, forests and developed woodlands. New development is allowed as long as it conforms to the prevailing uses, and the quality of groundwater and runoff entering the Bay or coastal bays has to be maintained or improved.

Finally, intensely developed areas are those properties already mostly devoted to residential, commercial, industrial and institutional uses at the time the maps were published in 1972. So developers have the freest hand there-but they don't have a free ride. A "10 percent rule" calls for any new development to wind up producing 10 percent less stormwater pollutant runoff than the same area did before. The CAC provides printed guidance to local jurisdictions on making those calculations.

The commission is made up of 29 members, with membership sensitive in varying degrees to political changes. Thirteen members must be local officials appointed by the governor with state Senate confirmation, but because the appointees serve staggered terms (four years), the commission's political composition doesn't instantly change with each administration. The law spells out where these commissioners must come from, to be sure each region of the state is represented. Eight more members, again appointed with advice and consent of the Senate, are to represent "diverse interests." Another seven represent state cabinet departments: agriculture, business and economic development, housing and community development, environment, transportation, natural resources, and planning. The commission's chairman is appointed by and answers to the governor.

That fact gives environmental groups hope that the Critical Area Act will be changed, and for the better from their standpoint, because of the 2006 election of Martin O'Malley, a Democrat, to succeed Robert Ehrlich Jr., a Republican regarded by environmental groups as at best suspect. O'Malley named Margaret McHale as CAC chairman. She worked for years as a staffer for the environmental committees in both houses of the legislature and left there to work for the Chesapeake Bay Foundation. "She's one of us," says Jennifer Bevan-Dangel, whose Patuxent Riverkeeper organization is dedicated to protecting and improving water quality in that tributary of the Bay. "Her approach is environmental advocacy."

Bevan-Dangel and other members of the fledgling Critical Area Alliance have been gearing up to lobby for changes in the Critical Area Act that would close what they see as loopholes. These groups have been anticipating that the O'Malley administration would introduce a strong bill they could support in the General Assembly session starting this January.

"As the law stands now, it's just too weak to achieve its lofty goals," Josh Bell of Environment Maryland told a strategy session of the alliance. Among other things, members of the group are hoping the CAC gets full regulatory authority-although just how wasn't clear-and tighten enforcement, possibly through higher fines for violations of the law or suspending the licenses of contractors who break it.

Greater CAC authority and tighter enforcement, though, won't change the constitutional landscape, which is tilted in favor of property rights and which influences zoning board rulings.

The Fifth Amendment to the U.S. Constitution, best known for securing rights of people accused of crimes, also says that private property may not be "taken for public use, without just compensation." Over the years, that phrase has become known as the "takings clause," and it has been extended by the courts to government actions that interfere with landowners' use of their property.

The courts have interpreted Maryland law to say that a local zoning board's ruling can be considered a taking if it denies a property owner "all economically beneficial or productive use of the land." But for the 100-foot buffer zones under the Critical Area Act, the state's highest court has adopted another definition, stricter for the zoning boards and more generous to the landowner. Given the fact that zoning boards may be liable for compensating landowners for critical-area takings, it's no surprise that they act cautiously. And the boards have other responsibilities, influenced by pressures in their own communities-which may have quite different agendas. In newly expanding upscale communities along the water, for example, maintaining property values may be a top consideration, while in others high importance may be placed on preserving traditional uses like farming, fishing and crabbing, or on bringing in more industry.

And, of course, there are always piers. "You don't mess with a Marylander's right to build a pier," says Patuxent Riverkeeper Bevan-Dangel. "I haven't been able to find it in the Maryland constitution, but it [must be] there," she joked. It isn't, "water-dependent" structures like piers are in fact allowed under the Critical Area Act.

In many ways, the Critical Area Act is operating as intended. Riverkeepers are rightly concerned about the number of variances, concedes Ron Serey, who as executive director of the Critical Area Commission heads its small permanent staff of about 15. But local governments face tough decisions, he notes. If you build without a permit, two different things may happen after your illegal activity: the county will tell you to take the structure out, or it will allow you to seek a variance-an "increasingly common occurrence."

When that happens, the local board "has to put blinders on" and consider whether it would have approved this structure if the landowner had applied up front, he says. Even if it manages to do so, this process ignores the violation. "It's almost like a false process," Serey says.

He thinks legislators were correct in deciding that the most efficient ways to address problems were at the local level. So they set up a partnership of state law, local implementation and CAC oversight.

Nevertheless, he says, local jurisdictions are overwhelmed with enforcement. Violators' appeals go to state district courts, which have many other responsibilities. "I think the state needs to play a greater role in enforcement. I don't know the best way to do it," Serey says.

Problems with the Critical Area Act have led to previous changes in the law, including an increase from $500 to $10,000 in the maximum fine for violations. More fundamental changes appear likely this year. Number one on the commission's agenda is to bring its maps into the 21st century and current technology, using the state's interagency effort tied to emergency preparedness. The new database of where people live and how they can be evacuated, and satellite photos taken in the process, will show where the critical areas are. Local governments and the CAC could use the resulting statewide base map.

Other changes will be proposed. Since taking over the CAC chairmanship last year, Margaret McHale says she has found that developers, environmentalists, local governments and the public at large all want consistency and predictability in enforcement of the law, and she thinks the state should get the authority to issue and enforce regulations. "The critical area is a state resource," she says. At the time the law was enacted the prevailing belief was that land-use issues should be left to local governments. Now, McHale thinks, there's a greater sense that the state needs to step in and protect the resource on its citizens' behalf. "There's a realization that if the state doesn't get going, what's happening [might be] irreversible."

The O'Malley administration also will probably be seeking a change in how after-the-fact variances are treated. Now, McHale says, the understanding is that the variance takes away the violation. That's not working, she says; instead, a landowner who built a shed without a variance should have the option of paying a fine plus mitigation or of contesting the case in court, at risk of higher penalty and more mitigation-and onlythentalk about the variance.

As the legislative process begins, the Critical Area Alliance is signing up conservation and environmental groups in an effort coordinated by Josh Bell of Environment Maryland. They plan to gather in Annapolis to lobby on February 18, which they are calling Environmental Action Day.

Meanwhile, the Battle of the Magothy goes on. David Clickner says the Anne Arundel County Board of Appeals finally granted him a permit for a pier on Dobbins Island. And although the Magothy River Association says it is taking steps to buy the property for public use, Clickner says he hasn't seen any offers-and the federal, state or county agencies have not shown interest in owning the island.

Paul Spadaro of the Magothy River Association has yet another card to play, however-making the islands part of the Captain John Smith Chesapeake National Historic Trail, which was made official by Congress in 2006 but has not yet been completely charted. "I believe the traction here is with the Smith Trail," Spadaro says, envisioning an anchorage and boat-accessible park that would keep the island much like it looked when Smith saw it in 1608.

And just a few miles from the Magothy River islands, where flouting the law may get you somewhere and following the law may get you nowhere, the Maryland General Assembly will gather in Annapolis to, among other things, ponder this question. Is the Critical Area Protection Act a bad law or a good compromise?

In the April issue we'll examine Virginia's less aggressive but still evolving version of their critical area act-the Chespeake Bay Preservation Act.

Help for citizens
In an effort to encourage citizen involvement and understanding of the Critical Area Act, the Critical Area Commission has just publishedBay Smart-A Citizen's Guide to Maryland's Critical Area Program. Copies are available from the CAC at 410-260-3460 or can be downloaded from the website,