Experts Say MD High Court Ruling Could Loosen Land-Use Practices

Wed August 13, 2003 - Northeast Edition

ANNAPOLIS, MD (AP) A split-decision ruling by the state’s highest court recently could change the way environmental land-use law is practiced in Maryland, experts said, making it easier for property owners to get special permission for construction — even in buffer zones around tidal waters.

The 4 to 3 decision by the Court of Appeals gives local zoning boards less leeway for rejecting developments in critical areas.

Two experts said while the ruling applies to the buffers, it could be expanded to affect any kind of development throughout the state.

The ruling could be interpreted so that it applies to everything from how big advertisers can build billboards to how high developers can erect buildings, said Ren Serey, executive director of the Chesapeake Bay Critical Areas Commission.

That’s because judges ruled municipalities will have to show why property owners shouldn’t be given special permission or “variances” to build. But local governments make those decisions through zoning rules, and those rules affect more than just the protected buffers, Serey said.

George Maurer, senior planner for the private Chesapeake Bay Foundation, agreed.

“I think we can expect land-use attorneys will try to take this and apply it everywhere, so that these standards would apply to any variance,” Maurer said.

The ruling also, for the first time, allows local land-use boards to ignore the fact that a property owner has already built a structure that required special permission to erect.

In a strongly worded dissent, Judge Alan Wilner called the majority ruling “an inexplicable effort to allow property owners … to do whatever they wish on environmentally-sensitive property, without regard to legal constraints or policy.” Wilner, whose opinion was joined by two fellow judges, said the ruling “throws established principles of administrative law to the wind” and “sets a most unfortunate precedent.”

Serey, whose commission oversees development on buffer zones around tidal waters and is an administrative arm of the state Department of Natural Resources, said the ruling is a shift from the way land-use law traditionally is practiced in Maryland.

“What the court majority is saying is that if you want to build something that is not permitted, your best course of action is to go ahead and build it, and you can seek permission later,” Serey said.

The ruling overturns a decision by the Wicomico County Board of Zoning Appeals that denied Edwin H. Lewis permission to build a hunting lodge and six associated buildings on his property, part of which lies in protected buffers. Lewis, who said he didn’t realize he needed special permission to develop his land, built them without the required permits.

The Appeals Court held that the Wicomico County panel made several “substantial and numerous errors of law” in rejecting Lewis’ buildings.

Bob Taylor, one of Lewis’ Salisbury attorneys, downplayed concerns that the ruling would have far-reaching implications for Maryland land-use law.

Developments that are environmentally-hazardous won’t be approved by local boards anyway, Taylor said. His client’s buildings, he said, were marginally invasive.

“I think they’re spinning it as anyone can do anything,” Taylor said. “It doesn’t mean that. This is an unusual case. The only reason he went into the buffer area was there was no conceivable way to develop his property any other way.”