Buffer site ruling has bay allies worried - Court says Wicomico
failed to make case against lodge
August 1, 2003
Baltimore, MD - In a ruling that critics worry could threaten Chesapeake Bay protections -
as well as a host of other zoning laws - Maryland's highest court ruled yesterday on the side of a wealthy sportsman's bid to keep a hunting lodge and cabins that he built without permission on a remote Nanticoke River island.
The landowner, Edwin H. Lewis, an avid hunter, art collector and pilot who made his fortune as an executive with the Tommy Hilfiger apparel company and other manufacturers, failed three years ago to persuade the county's zoning appeals board to allow two of the buildings to remain in the environmentally sensitive zone.
The state's Chesapeake Bay Critical Areas Commission, which has monitored local rules on waterfront development since 1984, opposed Lewis in a three-year battle that began before Wicomico's planning and zoning appeals boards, then moved to the courts.
The Court of Appeals ruled yesterday that county officials had failed to muster enough evidence to show that Lewis' request for a variance should be denied. Some environmentalists and others said the ruling seemed to impose a greater burden on county officials to justify their enforcement of the law.
P. Ren Serey, the critical area commission's executive director, said he fears that the ruling could be applied to all sorts of zoning regulations and other administrative law, forcing local governments to defend every land use decision. Large urban counties, he noted, might handle 1,000 or more zoning requests a year.
"It's clearly a statewide ruling," Serey said. "It affects all zoning, all administrative law. It shifts the burden of proof to local governments."
Others welcomed word of the ruling. Kathleen McHugh, executive vice president of the Maryland State Builders Association, said she had not studied the decision yet but that builders would applaud any precedent that set a higher bar for variance denials.
At the very least, she said, the ruling could clarify the standards for approving or rejecting a request, since they seem to vary among counties.
Raymond S. Smethurst Jr., Lewis' attorney, shrugged off suggestions that the case has broader implications. At issue, he said, was the lack of evidence presented by the Wicomico appeals board to refute the testimony of expert witnesses during a six-hour hearing.
"I think [critics] are over-blowing this case - I don't see it as some huge property rights case," Smethurst said. "The point the court is making in this ruling is that the critical areas commission did not have evidence to counter what our experts said about the environmental impact of this project."
In a 52-page decision written by Judge Dale R. Cathell, the Wicomico zoning appeals board was chastised for misinterpreting two recent court decisions and for failing to present evidence to refute Smethurst's case.
"Although we normally defer to an administrative agency's decision regarding the facts of a hearing, we do not defer to the agency when it has committed an error of law," Cathell wrote.
Three judges delivered a scathing 23-page rebuttal, criticizing their colleagues for ignoring the fact that the case began when Lewis started building on the 5.3-acre island without permits or any other approval.
"In its inexplicable effort to allow property owners such as Lewis to do whatever they wish on environmentally sensitive property ... the Court throws established principles of administrative law to the wind," wrote Judge Alan M. Wilner in the dissent. "It is not only wrong in this case, but sets a most unfortunate precedent."
Across the state, zoning officials were trying to assess the ruling's implications.
Baltimore County Planning Director Arnold F. Keller III said it could have a widespread effect if the court's high standard for denying variances applied not just to critical areas, but all zoning requests. It would be much easier for residents and builders to get a variance if the "presumption of rightness" lies with the person requesting it, he said.
"That definitely shifts the balance," he said. "If everyone is applying for variances, and the [requests] are assumed to be OK unless we produce extraordinary evidence ... it will mean you can build whatever you want, wherever you want."
Thomas E. Dernoga, a veteran Howard County zoning lawyer, said the ruling may not be as influential as some predict. He said the court seemed simply to be saying that the county zoning appeals board lacked the "substantial" evidence such boards need for their rulings on variances.
While it is relatively rare for appeals courts to find that zoning boards lack the required minimum of evidence for a ruling, he said, the court wasn't necessarily setting a new standard for denials of variances.
At the same time, he said, the dissenting opinion seemed to suggest that the court majority had overlooked evidence that was considered by zoning officials. "At the end of the day, I think they haven't changed the standard, they've just applied it in a unique way here, which is kind of troubling."
In Anne Arundel County, which includes land covered under the critical areas law, Planning Officer Joseph W. Rutter Jr. has asked lawyers to study the ruling to determine its effect.
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