Little Island, Big Mess

Eds. Note: This article was written by J. Dirk Schwenk and orginally published in the November, 2008 edition of Spinsheet Magazine.

Up on the Magothy, just North of Dobbins Island, is Little Island.  It was a quiet little island, with a small pier, a small house and small footprint in the collective conscious of Bay Country.  Where Dobbins is famous as a cruisers’ getaway, Little Island was just an afterthought.  But everything about Little Island began to change in December, 2000, when the property was purchased by an LLC owned by Daryl Wagner, the Wagner behind homebuilder Wagner Homes, LLC.  In the following years, the sleepy island was transformed into a grand estate – with a massive home, hardened shoreline, sweeping lawn, swimming pool, miniature light house, driveway, well, septic, electricity, new pier — even plastic palm trees.  It has everything a modern family could want — except for permits for its construction.  The construction began a new era for Little Island.  No longer a sleepy afterthought, it is now a symbol of excessive and unlawful development in the critical area.

There is no question that the Little Island represents one of the worst abuses of the permitting process ever.  Anthony Lamartina, then Chairman of the Board of Appeals, wrote the following:

“I can unequivocally state that I have never seen, in all my 24 years on this Board, a violation of such a grand scale.  The Petitioner [Wagner] is a builder who has made his living in this County for longer than I have been with this Board.  Given all his experience, he elected to construct more than 8,000 feet of new impervious surface for his own residential use, including a pool, gazebo, walkways, driveway, without ANY permission – all entirely in the Critical Area buffer and obliterating any steep slopes and vegetation deemed unworthy by him.  Why risk his residence (or his reputation)?  He must have concluded that the positives obtained outweighed any possible negatives.”

For me personally, it is difficult to ignore Little Island.  I can see it – lighthouse and all — from my parents’ porch; and I crab, fish and sail on the Magothy.  As an attorney who does marine law and riparian rights, I know how outrageous and obviously illegal it was.  And as one who loves the bay – well, I am outraged.  For years I have wondered what was really going on behind the scenes in the legal process – whether, for instance, the house (and pier, driveway, swimming pool, boathouse, etc.) would be allowed to stand.  This summer I set about trying to find out, and I have read the decisions, the testimony, the briefing and related information in the public record.  This is what I have found.

First, the battles are ongoing and waged on several fronts.  The Anne Arundel County Office of Law filed suit against Wagner seeking penalties and injunctive relief – including the removal of the house and other structures.  The Maryland Department of the Environment has also taken action – although no suit has been filed – over the violations of the rip rap and pier permits.  Third – and this is where the active fight is right now – Wagner sought retroactive variances of the critical areas laws that would allow him to maintain the island as he has built it.  The civil suit for penalties has been put on hold until there is a final decision about the variances.

In the variance case, it was reported that in January, 2008 the Anne Arundel County Board of Appeals had allowed the house on Little Island to stand.  The decision was richer than the press made it sound.  Wagner sought variances for 9000 square feet of impervious surface, including two dwellings, a driveway-cum-boat ramp, pool, lighthouse, gazebo, two sheds, etc.  The Board of Appeals granted a variance for 3,005 feet plus a 320 square foot boat ramp.  The existing home was found to have 2,880 feet of impervious surface.  The overall result of the decision is that the house and boat ramp could remain, but everything else had to go.  Thus the patio, driveway, walkways, gazebo, two sheds, the boat house, and pool have been ordered removed.  The lighthouse – the most recognizable symbol of the excess of this project – appears to have been considered as part of the house and under the Board decision seems likely to remain.  The Critical Areas Commission, Magothy River Association, and Chesapeake Bay Foundation appealed to the Circuit Court of Anne Arundel County, and the variance case is presently scheduled for oral argument on November 17, 2008.  That hearing is open for the public to observe.

In considering the variance requests, the Board of Appeals was required to give a variance if the lot owner “would be denied reasonable and significant use of the entire parcel or lot” without a variance of the critical areas laws.  All of Little Island is in the buffer, and therefore it cannot be developed at all without a variance.  The Board cannot deny the variance solely because permits were not obtained, although it can consider the lack of permits.  To get the variance, the landowner must demonstrate, among other things, that the development will not adversely affect water quality or adversely impact fish, wildlife, or plant habitat, and will be in harmony with the general spirit and intent of the critical area program.  Most importantly, the variance must bethe minimum necessary to afford relief.”

Of all the issues considered by the Board, the most difficult to understand is its decision that a variance for the massive home and a boat ramp was “the minimum necessary to afford relief.”  For other permits, the “minimum necessary” relief is usually considered to be the footprint of any home that was grandfathered on the lot.  The preexisting home, however, had only 1,911 square feet of impervious surface.  To find the additional 1100 feet and allow Wagner to keep the unpermitted home, the Board had to add in all previous impervious surface – including the boathouse and other structures – that were there before the work.  The Board found that a boat ramp was necessary to preserve the shoreline, but did not even attempt to explain why this impervious surface should be added to the existing footage, as opposed to being removed from the area allowable for the house.  This awkward compromise left the board open to the criticism that, instead of enforcing environmental laws, it was actively looking for a way to allow Wagner to keep his unpermitted home.  Four of the seven members of the Board were subsequently removed.

Over the long run, perhaps some good will come from the mess that is Little Island.  Already, the Critical Areas laws have been strengthened, including the ability to revoke the license of a builder for actions like this.   There is also a strong chance that the Circuit Court will send the case back to the Board of Appeals for further consideration of whether the variance is the minimum necessary to afford relief.  Lastly, with County Executive Leopold’s renewed emphasis on curbing unlawful waterfront development, it can be hoped that the Anne Arundel County Office of Law has the strength to seriously pursue the case for penalties for the failure to obtain permits in the first place.  In many ways this is a far more important issue than the question of whether 1911 or 3009 square feet of impervious surface is the minimum necessary on the island.  If Wagner is not required to pay major penalties – financial or in the loss of the home – it is hard to see why any developer will take the permit process seriously in the future.