Forty years ago, alarmed by the Chesapeake Bay’s declining health, Maryland lawmakers bucked business as usual for real estate and voted to restrict development within 1,000 feet of the Bay or its tidal tributaries.
The Critical Area law, aimed at reducing polluted runoff into the Bay and protecting shoreline habitat, seeks to accommodate growth near the water while mitigating its environmental impacts. In relatively pristine portions of that 1,000-foot zone, it limits residential density to one home per 20 acres.
From the outset, though, the law stirred controversy because it reduced opportunities for lucrative waterfront development. There have been repeated attempts since 1984 to weaken or get around the law’s strictures, as well as countervailing efforts over the years to close loopholes and tighten enforcement.
The latest flareup is playing out in Queen Anne’s County on the Eastern Shore. In July, the county commissioners advanced a proposal to build up to 90 homes on 97 acres of fields, forest and wetlands on the northeastern corner of Kent Island. The north edge of the tract looks out on the lower Chester River.
Officials explained that the property has been mapped out for residential development for more than six decades, and they were simply reincluding it in a county-designated growth area from which it had been removed 17 years ago.
Environmentalists and some neighbors, though, didn’t see it that way. They contend the decision violates the Critical Area law, and they filed suit to overturn it.
“If the Critical Area law means anything, it should apply to this particular development,” said Jay Falstad, executive director of the Queen Anne’s Conservation Association. The association, Chesapeake Bay Foundation, Chesapeake Wildlife Heritage and eight residents of a nearby waterfront development are the plaintiffs.
The property, owned by Chesterhaven Beach Partnership LLC, is precious ecologically, environmentalists say. Just north of U.S. 50, it features a large stand of mature trees, they say, and more than 80% of the land is either wetlands or has wetland soil. They say there is also a blue heron rookery on the site.
Joseph Stevens, a lawyer for the partnership, did not respond to a request for comment. In court filings, the owner’s lawyers say the tract has been targeted for growth since 1959, when an earlier owner submitted a map to the county that carved the site up into 186 home lots.
By the late 1980s, Maryland counties around the Bay were required to enact development limits in accordance with the Critical Area law, including identifying and protecting relatively pristine “resource conservation areas.”
Nearly all of the Chesterhaven Beach tract was—and still is—classified as a resource conservation area. In the early 1990s, the partnership applied for county approvals to proceed with its original development plan, arguing that it was “grandfathered” from the restrictions because it had been proposed before the Critical Area law.
The law does provide limited exemptions from development restrictions where some tangible action had already been taken. But project opponents say the owner of Chesterhaven Beach did nothing to advance its project before the law took effect. They cite a 1995 appellate court ruling denying the landowner’s claim it was grandfathered.
Even so, Queen Anne’s County officials continued to assume it would someday be developed. They even agreed to reserve capacity in the county’s wastewater treatment for the unbuilt homes and took a down payment for that from the owner. In 2007, though, the county commissioners removed the growth designation for Chesterhaven Beach as part of a new long-range land use plan.
The partnership didn’t give up. Two years ago, it asked to restore the site’s status as a growth area. The commissioners denied it then on a 4–1 vote but indicated they might reconsider. In July, they did, on a 3–2 vote, after an attorney for the county said that the home sites mapped out long before the Critical Area law were legally recognized “lots of record.” County officials elicited an agreement from the developer to reduce the maximum number of homes to 90. Commissioner Jack Wilson Jr. called that a “fair compromise.”
“I had an issue with taking something from someone and really having no final judgment that it should have been taken,” Wilson said at the July 9 meeting, adding later, “There is no sunset on property rights.”
James Moran, president of the Queen Anne’s board of commissioners, said the majority decided to redesignate the tract for growth just to get it off their agenda after so many years of back and forth. Moran noted that it still must go through several levels of development review that could alter or reduce the scale of the project further. “We’re stuck in the middle, damned if we do, damned if we don’t,” Moran said. “Let the courts decide … We want to get it resolved.”
But opponents contend the county is party to an end run around the Critical Area law. Alan Girard, Maryland advocacy director for the Bay Foundation, warned that the decision could open the door for other Bay localities to approve development of pristine waterfront. Lawyers for the partnership counter that the court lacks jurisdiction to review the commissioners’ decision.
Regardless of the lawsuit’s outcome, the state Critical Area Commission, which oversees local decisions, may have the final word.
You can read this story in its entirety at bayjournal.com.
