Environmental Groups Have Increased Rights To Challenge Permits

The Maryland Court of Appeals recently issued a decision which confirms that an environmental group (or other membership group) can have independent standing to challenge a permit granted by the Department of Environment in Court. The statute reviewed, however, is specific to the Department of the Environment, and the requirement that the group participate at the administrative level remains intact.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Opinion BATTAGLIA, J. *1 In this case, we are asked to determine whether a nonprofit environmental group, Patuxent Riverkeeper,1 Petitioner, (“Riverkeeper”), has standing2 to initiate a judicial review action of a decision of the Respondent, the Maryland Department of the Environment, (“MDE”), to issue a “non-tidal wetlands permit”3 to Petrie/ELG Inglewood, LLC, now known as Woodmore Towne Centre, LLC, Respondent (“Woodmore Towne Centre”),4 in connection with the development of the Woodmore Towne Centre at Glenarden in Prince George’s County. Specifically, Woodmore Towne Centre had applied for the permit to construct a road extension and stream crossing at Ruby Lockhart Boulevard in order to provide primary access into the development. During the administrative proceeding before MDE, Riverkeeper had submitted written comments against the permit, asserting that Woodmore Towne Centre had not demonstrated that the proposed road extension and stream crossing had “no practicable alternative” that would “avoid or result in less adverse impact on nontidal wetlands.”After MDE approved the permit, Riverkeeper initiated a judicial review action in the Circuit Court, after which both MDE and Woodmore Towne Centre filed motions to dismiss for lack of standing.5 The Circuit Court dismissed the judicial review action, and Riverkeeper petitioned this Court for a writ of certiorari, which, prior to any proceedings in the intermediate appellate court, we granted, Patuxent Riverkeeper v. Department of the Environment, 418 Md. 190, 13 A.3d 798 (2011), to address the following question:Did the circuit court err when it interpreted the federal test for standing and held that the Riverkeeper lacked standing to challenge the issuance of a Maryland nontidal wetlands and waterways permit authorizing permanent and temporary impacts to nontidal wetlands and streams where one of Riverkeeper’s members alleged that the permit would result in future and threatened harm to his recreational, aesthetic, and economic interests in the Western Branch watershed and tributary?

We shall hold that Riverkeeper has standing to initiate a judicial review action, because its member, David Linthicum, had alleged sufficient harm to his aesthetic, recreational, and economic interests in connection with the issuance of the non-tidal wetlands permit in issue.Section 5–204(f) of the Environment Article, enacted by Chapters 650 and 651 of the Maryland Laws of 2009 and effective January 1, 2010, enables a person to seek judicial review of an administrative determination by the Maryland Department of the Environment regarding certain environmental permits, including those affecting non-tidal wetlands, if the person satisfies the federal rubric for standing:(f) Judicial review of final determination by Department.—A final determination by the Department on the issuance, denial, renewal, or revision of any permit issued under Title 5, Subtitle 5 or Subtitle 9, § 14–105, § 14–508, § 15–808, or § 16–307 of this article is subject to judicial review at the request of any person that: *2 (i) Meets the threshold standing requirements under federal law; and(ii) 1. Is the applicant; or 2. Participated in a public participation process through the submission of written or oral comments, unless an opportunity for public participation was not provided.Maryland Code (1982, 2007 Repl.Vol., 2010 Supp.), Section 5–204(f) of the Environment Article.

Prior to this enactment, standing to challenge permitting decisions by MDE was limited to a person who was “aggrieved” by the agency’s action, namely “one whose personal or property rights [were] adversely affected by the decision.” See Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967); Sugarloaf Citizens’ Ass’n v. Department of Environment, 344 Md. 271, 288, 686 A.2d 605, 614 (1996) (“[I]n order to be ‘aggrieved’ for purposes of judicial review, a person ordinarily must have an interest ‘such that he is personally and specifically affected in a way different from … the public generally.’ ”) (citations omitted); 120 West Fayette Street, LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 270–71, 964 A.2d 662, 671–72 (2009). Moreover, a group could not establish standing to initiate judicial review of a permitting decision by an administrative agency, unless the organization had a “property interest of its own—separate and distinct from that of its individual members.” Medical Waste Associates, Inc. v. Maryland Waste Coalition, Inc., 327 Md. 596, 612, 612 A.2d 241, 249 (1992), quoting Citizens Planning & Housing Ass’n v. County Executive of Baltimore County, 273 Md. 333, 345, 329 A.2d 681, 687 (1974).In enacting Chapters 650 and 651 of the Maryland Laws of 2009, which originated as Senate Bill 1065 and House Bill 1569, the General Assembly embraced the “broader” notion of standing applied in federal courts, to enable both individuals and organizations to challenge environmental permits in judicial review actions, were certain conditions to exist:With respect to cases involving challenges to specific types of permits, Maryland courts have defined “aggrievement” to mean the ownership of property either adjacent to, or within “ ‘sight or sound’ range of the property that is the subject of [the plaintiff’s] complaint.”The Court of Appeals has held that an association lacks standing to sue where it has no property interest of its own, distinct from that of its individual members. Citizens Planning & Housing Ass’n v. County Executive, 273 Md. 333, 329 A.2d 681 (1974). In Medical Waste Ass’n [Associates ] v. Maryland Waste Coalition, 327 Md. 596, 612 A.2d 241 (1992), the Court of Appeals stated that if an individual or organization is seeking to redress a public wrong, the individual or organization has no standing unless the wrong suffered is different in character and kind from that suffered by the general public.

Federal law is broader than State law in its determination of standing. Under federal law, a party has standing if its use and enjoyment of the area is affected by the challenged action/decision or if the party has a particular interest in the property affected. Federal law also makes little distinction between individual and group standing. *3 Environmental Matters Committee Floor Report on House Bill 1569, at 4 (2009).6The touchstone Supreme Court case involving environmental standing, Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc., 528 U.S. 167, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000), drew the federal landscape in environmental actions. In that case, a judicial review action to enforce a permit authorizing the limited discharge of pollutants, pursuant to the Clean Water Act, 33 U.S.C. § 1342, the Court determined that to satisfy standing in an environmental action, a plaintiff must show that “(1) it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Id. at 180–81, 120 S.Ct. at 704, 145 L.Ed.2d at 627, quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992). An environmental group can satisfy standing federally if “its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization’s purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.” Friends of the Earth, 528 U.S. at 181, 120 S.Ct. at 704, 145 L.Ed.2d at 627.

In Friends of the Earth, the Court emphasized that injury in fact has included a negative impact on the organizational representatives’ recreational or aesthetic appreciation of the affected area, in that case the demonstrably diminished ability or desire to hike, camp, picnic, swim, canoe, boat or fish in a river contaminated by pollutants. 528 U.S. at 181–82, 120 S.Ct. at 704–705, 145 L.Ed.2d at 627–28. In addition, the Supreme Court determined that a person may suffer an injury in fact when his economic interests are negatively impacted, for instance, lower home prices due to proximity to a hazardous waste incinerator. Id. at 182–83, 120 S.Ct. at 705, 145 L.Ed.2d at 628. The Court noted that an injury to aesthetic, recreational, or economic interests need not be consummated, so long as an individual can demonstrate reasonable concerns about the effects of the challenged activity. Id. at 183–84, 120 S.Ct. at 705–706, 145 L.Ed.2d at 628–29.Such aesthetic, recreational, or economic interests or values, however, must be based upon a demonstrable record of regularly utilizing the affected area, as well as a desire to do so in the future. In Summers v. Earth Island Institute, 555 U.S. 488, ––––, 129 S.Ct. 1142, 1150, 173 L.Ed.2d 1, 10 (2009), the Supreme Court reasoned that an organizational representative’s affidavit indicating a desire to “visit several unnamed National Forests in the future” was not sufficiently particularized to establish a cognizable aesthetic or recreational interest. Moreover, asserting a past injury to aesthetic or recreational interests, arising for example, from “past … development on Forest Service land,” without demonstrating a continuing or future harm, further does not suffice. Id. at ––––, 129 S.Ct. at 1150, 173 L.Ed.2d at 9–10. The Court also has opined that a genuine nexus must exist between the alleged injury and the challenged conduct, Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351, 364 (1992), and that the remedy requested must “effectively abate[ ] [illegal] conduct and prevent [ ] its recurrence.” Friends of the Earth, 528 U.S. at 185–86, 120 S.Ct. at 706, 145 L.Ed.2d at 630.7 *4 At the time the new standing test was embraced by the Maryland Legislature, not only had the Supreme Court spoken, but other federal appellate courts already had an opportunity to interpret the tenets of the Supreme Court cases.

The application of these precepts prior to the enactment of Section 5–204(f) of the Environment Article in 2009 illustrates the boundaries of standing in environmental cases to which the General Assembly had referred when it enacted the statute.8 In Sierra Club v. Franklin County Power of Illinois, LLC, 546 F.3d 918, 925 (7th Cir.2008), the Court of Appeals for the Seventh Circuit determined that a Sierra Club member adequately alleged an injury by asserting that she and her family had taken trips to “fish, kayak, camp, and enjoy the natural beauty and clean environment” of a lake, located three miles from the site of a proposed power plant, and that if the plant were built, she would cease her recreational trips. Similarly, in American Canoe Ass’n, v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 542 (6th Cir.2004), the Court of Appeals for the Sixth Circuit reasoned that an environmental group representative had demonstrated a sufficient injury when he alleged that he previously recreated in a river near a water treatment plant, but that he presently refused to do so, because of pollution caused by discharges from the plant. In so doing, federal appellate courts have noted that a plaintiff may express reasonable concerns about the future impacts of the challenged activity. See Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 160 (4th Cir.2000) (reasoning an environmental group member “need not wait until his lake becomes barren and sterile or assumes an unpleasant color and smell before he can invoke the protections of the Clean Water Act”).The injury alleged must share a specific nexus with the harm asserted. In Natural Resources Defense Council v. Southwest Marine, Inc., 236 F.3d 985, 995 (9th Cir.2000), the Court of Appeals for the Ninth Circuit determined that the plaintiff had adequately demonstrated such a nexus by indicating that sediments in defendant’s marine leasehold contained elevated concentrations of pollutants, that defendant had discharged such pollutants, and that defendant’s marine leasehold was “devoid of life.” In contrast, in Center for Biological Diversity v. Lueckel, 417 F.3d 532, 540 (6th Cir.2005), the Sixth Circuit reasoned that although the environmental group representatives had shown that they had suffered concrete injuries to their aesthetic, recreational, and scientific interests in the scenic rivers in question due to commercial logging, the plaintiffs had failed to demonstrate the requisite connection because they had not referred to specific evidence that the United States Forest Service’s failure to enact a “comprehensive resource management plan” had caused the approval of the environmentally harmful projects. *5 According to the federal appellate court, an aggrieved party also must show that a favorable decision will likely, not merely speculatively, relieve the injury alleged. Alleging a previous injury, for instance, without referencing a continuing or future harm, will not suffice. Lueckel, 417 F.3d at 537 (reasoning that “plaintiffs … must show that actual, site-specific activities are diminishing or threaten to diminish their members’ enjoyment of the designated river segments”).9

The parties in the present case differ, though, not regarding the test for standing, but in its application to the factual circumstances presented. Riverkeeper asserts that its member, Mr. Linthicum, suffered an injury in fact, because his aesthetic, recreational, and economic interests in the Patuxent River, particularly the Western Branch watershed,10 have been jeopardized by the road extension and stream crossing allowed by the permit. In particular, Mr. Linthicum asserts that the upstream impacts caused by the crossing will cause “nitrogen and other pollutants” to leach into waters downstream. Woodmore Towne Centre counters that Mr. Linthicum failed to satisfy the standing inquiry, because he failed to demonstrate that the issuance of the permit has negatively impacted his paddling and cartography activities on the Western Branch watershed.11In his affidavit, Mr. Linthicum described the aesthetic and recreational interests he has in paddling, wading, and clearing branches in the Western Branch of the Patuxent River:5. I visit the Patuxent River almost every other day. I have visited and will continue to visit the Western Branch every few months. When visiting the Western Branch, I paddle along the tributary, and also wade in the water to clear out branches for the purpose of waterway maintenance and navigation. I have been paddling, wading, and clearing branches and other blockages in the Western Branch for nearly ten years. Beyond my recreational interests in the Western Branch tributary and watershed, I also have aesthetic and environmental interests in the Western Branch, as the river and watershed is much healthier and cleaner than surrounding watersheds such as the Anacostia watershed.6. The area of the Western Branch tributary and watershed that I most often visit is downstream from the location of the Woodmore Towne Center Project. I sometimes paddle in the Western Branch as far north as Upper Marlboro, which is approximately 8.5 miles downstream from the areas of wetlands and streams that are impacted by the Woodmore Towne Center.He further described the negative impact of the issuance of the MDE permit on the wetlands and streams in the Western Branch, where he most often paddles and clears blockages in the waterway, jeopardizing his aesthetic and recreational interests:7. The wetlands permit pertaining to the Woodmore Towne Center will cause impacts to wetlands and streams in the Western Branch watershed. These impacts will ultimately have a direct effect on the watershed and the river downstream, where I most often paddle and clear blockages in the waterway. Specifically, the stream impacted by the Ruby Lockhart Boulevard extension on the Subject Property is the north fork of the Southwest Branch of the Patuxent River (this stream is marked “S” on a map that I prepared for the Subject Property, attached as Exhibit C). This stream runs southward from the Subject Property through developed and undeveloped land before ultimately joining the Western Branch tributary approximately five miles downstream. Smaller drainages on the north end of the Subject Property (marked as “W” on Exhibit C) also connect directly with the Western Branch and the Patuxent River itself. These smaller drainages flow into Bald Hill Branch approximately 3/4 mile from the Subject Property. Bald Hill Branch then joins the Western Branch just over a mile further downstream. *6 8. The health of the Western Branch, including the area where I most often paddle, wade, and clear trees and other blockages, will suffer as a direct result of the impacts to the connected streams and tributaries just a few miles upstream at the Woodmore Towne Center site.9. Diverting and/or compromising the streams on the Subject Property can affect the flow rate and the ecology of the tributaries of the Patuxent River. Moreover, drainage of stormwater from the impervious surfaces of the Woodmore development into the surrounding streams and watershed will further degrade the water quality of the Western Branch. Western Branch is a system already in decline due to the vast amount of paving, construction, channelization and other human intervention in its natural functions.

Like many tributaries, streams, and creeks elsewhere in Prince George’s County, Western Branch fails to meet Federal water quality standards, and appears to be approaching the tipping point of no return.10. The impacts to wetlands on the Subject Property will also have a negative effect on my activities downstream in the Western Branch. Wetlands provide recharge and storage of surplus water during storm events, which can lessen the impacts of flooding and property damage to downstream neighbors. Wetlands serve as natural “sponges” to absorb manmade toxins and poisons that leach from surrounding contaminated runoff caused by paved surfaces, trash, and chemicals applied to urbanized lands. The loss of the natural wetlands in a river system eventually leads to the death and desertification of a river’s tributaries and takes an equivalent toll on the waters of the main channel.11. I have reviewed recent scientific and academic literature that has discussed the connection, both in Maryland and in general, between urbanization, impacts to streams and headwaters, and the deleterious effects on watersheds and rivers downstream. One of these articles discussing this connection states: “Headwater systems are important sources of sediments, water, nutrients, and organic matter for downstream reaches. Despite the significant roles of headwater systems within the channel network, the ecological values of headwater systems are underestimated, and their processes have been extensively modified by land use.”See Takashi Gomi, Roy C. Sidle & John S. Richardson, Understanding Processes and Downstream Linkages of Headwater Systems, BioScience, Vol. 52, No. 10, Oct. 2002, at 914. I have also read that “[the] natural dendritic properties of stream networks play an intrinsic role in the delivery of nitrogen and other pollutants to downstream receiving waters from headwater locations throughout watersheds.” See Richard B. Alexander, Elizabeth W. Boyer, Richard A. Smith, Gregory E. Schwarz & Richard B. Moore, The Role of Headwater Streams in Downstream Water Quality, Journal of the American Water Resources Association, Vol. 43, No. 1, Feb. 2007, at 57. In the context of streams and wetlands, the term “dendritic” refers to the branch-like characteristics of upstream headwaters, which then funnel into a single stream or river downstream, as is the case with the Western Branch watershed and tributary. *7 (internal footnote omitted).On the basis of Mr. Linthicum’s affidavit, as well as the testimony he presented at a hearing on the motions to dismiss,12 the Circuit Court found that Mr. Linthicum is “a frequent recreational paddler” on the Western Branch of the Patuxent River and also has an “aesthetic interest in the beauty of the river and the cleanliness of its water.”

The court further found that Mr. Linthicum has “an economic interest in navigating the river, [because] he charts its tributaries to produce maps and guides that he sells to the Riverkeeper and others.”Despite these findings, the judge dismissed the judicial review action for lack of standing, determining that the injury Mr. Linthicum alleged on behalf of Riverkeeper was merely “conjectural or hypothetical”:On the other hand, Mr. Linthicum has never visited the actual site of the permit at issue and has never paddled on the tributary that has been altered by development of the Towne Center, nor has he testified to an intention or desire to do so. He has not seen any effects, other than seasonal ones, on the parts of the river he does travel since the completion of the work at the Towne Center. Indeed, he did not even realize there had been work impacting a wetland until a few weeks before offering his testimony to the Court, long after that work had been completed.[13]In other words, completion of the work authorized by the wetlands permit issued by MDE has not affected Mr. Linthicum’s day to day life on the river in any manner whatever. Instead, Mr. Linthicum claims that the Towne Center development will “ultimately” impact the watershed downriver where he carries on his business. Affidavit of David Linthicum ¶ 7. This is precisely the conjectural or hypothetical injury forbidden by Summers, supra. Mr.

Linthicum has a good-faith belief that continued urbanization of Prince George’s County will one day result in the erosion of the wetlands and waterways that he loves. As he testified, he fears the “death by a thousand cuts.” This is not a sufficient injury in fact to establish standing under federal law and Md.Code, Enviro. § 5–204(f).We disagree with the Circuit Court’s legal assessment.14 Mr. Linthicum alleged, and the Circuit Court found, that he had adequately asserted demonstrable aesthetic, recreational, and economic interests in the Western Branch as an avid paddler and mapmaker. The Circuit Court determined that the harm alleged, however, was not sufficiently concrete nor imminent, because Mr. Linthicum claimed that the permit allowing the road expansion and stream crossing would “ultimately” impact the Western Branch watershed downriver “where he carries on his business.” In so doing, the judge failed to credit the reasonable concern that Mr. Linthicum manifested about the future harm to the ecology of the Western Branch that would result from “diverting and/or compromising” upriver streams. *8 The injury suffered by Mr. Linthicum, moreover, shares a sufficient nexus to the issuance of the non-tidal wetlands permit, because Mr. Linthicum alleged, referring to scientific articles as well as his own experiences, that stream crossings at headwaters and wetlands, such as that constructed at Ruby Lockhart Boulevard, can cause negative affects downstream on the Western Branch watershed. Finally, at a hearing before the Circuit Court regarding the motions to dismiss, Frederick Tutman, Chief Executive Officer of Riverkeeper, described methods to abate the harm caused by the issuance of the permit, including rescission of the permit, as well as more intensive mitigation efforts:I would say in addition to the rescission of the permit, I think look at broader or more specific mitigation in line with the scope of the impacts [,] [b]ut, also, I think something of great value is being taken away from citizens adjacent to this site and the county and I don’t think it’s being put back. I think the quality of the mitigation that’s been approved by the State [,] I don’t think begins to really get to the heart of what’s being taken away.

As a result, the motions to dismiss for lack of standing on the part of Riverkeeper should not have been granted, and the judicial review action should be permitted to proceed.JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION; COSTS TO BE PAID BY RESPONDENT, PETRIE/ELG INGLEWOOD, LLC, ALSO KNOWN AS WOODMORE TOWNE CENTRE, LLC.

Patuxent Riverkeeper v. Maryland Dept. of Env’t, 139 SEPT.TERM 2010, 2011 WL 4502141 (Md. Sept. 30, 2011)

Top 5 Issues When Purchasing Waterfront

by Dirk Schwenk – dschwenk@waterfrontlaw.com and Mike Piasecki III – mike@marylandwaterfrontproperty.com

There is nothing that can compare to the peace, tranquility and sense of well-being that accompanies ownership of a piece of waterfront property. That feeling should not be disturbed by legal problems that can be prevented or at least managed. In waterfront property there are a few issues that arise with such regularity that they should be considered prior to any purchase. Mike Piasecki, III, Associate Broker, Prudential Carruthers Realtors in Elkton and Ocean Pines (www.marylandwaterfrontproperty.com) and J. Dirk Schwenk, attorney at Baylaw, LLC (www.waterfrontlaw.com) got together to come up with a “top five” list of things that should be thought through. These issues are focused on Maryland waterfront property, but they apply everywhere where piers, views and access to the water are of top concern. Here they are:

1. Community Waterfront versus Private Waterfront.

Many waterfront, waterview and water access properties are located in developments where the original developer subdivided a large tract and reserved the waterfront for the use of all of the houses in the neighborhood. Interior houses may be listed as “water access” properties and have affirmative rights to community beaches, boat ramps and other facilities. In many of these developments, there is also a strip of land that lies along the water and surrounds the entire community and was intended to allow for members of the community to walk and have access to the entire waterfront. The ownership structure of these walks can vary widely, but if they are present, there are special concerns for the homes nearest the water. Those homes may have the right to build and maintain a pier — but the pier may actually be owned by the community and be available for all of the members to use. Or there may be no right to a pier at all. The possible variations are too numerous to list, but an owner purchasing “waterfront” in such a community should be sure to understand exactly what the obligations and benefits are in the particular community.

2. Waterfront versus Waterview.

A true “waterfront” property is one that has riparian rights associated with it. In Maryland and most of the states on the East Coast of the United States, the owner of a property that has riparian rights has the right to apply to construct a pier or other waterfront improvement, has the first right to apply for permits for waterfowl hunting, and has the right to prevent others from impeding access to the water or the view of the water. In contrast, a “waterview” property is generally one that is close to the water, but has land owned by someone else between the land and the shoreline. A waterview may have a limited (or no) right to build a pier and may not have any guarantee that another owner will not build a fence, structure or put in plantings that obstruct the waterview. Careful consideration should be paid to what might be placed between the waterview property and the water — if it is community land on which nothing can be built that is very different than private land on which someone in the future may build a multi-story home.

3. Pier Locations, Boundary Lines and Permits.

Having (or keeping) a pier is a first priority consideration for many waterfront lots. It is not relaxing and fun to have a dispute with a neighbor about whether a pier is on his property, your property, on the line, should be shared, or whether a pier that you were counting on using is even legal in the first place. If you are considering a home where there is currently a pier or where you would like to put in a pier, its continued viability should be examined. First, consult with planning and zoning — was the existing pier built with a permit (or grandfathered?), or if you would like to put in a new pier, can an adequate pier be placed on the site given environmental limitations and the location of neighboring piers? Second, is there any dispute with a neighbor about the location of any of the piers (does a pier encroach the property line extended into the water?) or is there an expectation that a pier will be shared? If you are purchasing a property that is one of several that were previously owned by a single family, it is very common that multiple homes shared a single pier. This sort of agreement should be spelled out — or it can quickly lead to a disagreement.

4. The Obligation and Ability to Maintain the Waterfront.

For any property that faces significant wave action or is on a bluff, there will be erosion concerns. For all waterfront properties, there are significant legal restrictions on the owners’ ability to clear growth and trees, to fill eroded areas, and to construct shoreline protection. The cost and ability to obtain permits for waterfront repairs and maintenance should be considered. For example, in many waterfront communities, there are existing bulkheads or revetments. Depending on the particular community, the cost to maintain these structures may lie with the nearest individual landowner or with the community. In Ocean Pines, Maryland, for example, all properties in the community must pay an annual HOA assessment toward the upkeep of common area facilities, but in the instance of waterfront properties, the assessment may also cover the cost of maintenance to the property’s bulkhead. We say “MAY” because this is true in some sections of Ocean Pines, whereas in other sections, waterfront property owners, although they still pay an annual assessment that is higher than a land locked property, have the cost and burden of bulkhead maintenance placed squarely upon the homeowner. Sounds confusing doesn’t it? This example is exactly why you should consult a waterfront law specialist, and/or waterfront specialist real estate broker before entering into a contract to sell or purchase waterfront property anywhere, but especially in the state of Maryland. Another instance? In Anne Arundel County, Maryland, there have been news reports of criminal charges being filed because a waterfront property owner hired a landscaper to clear trees and bushes along the waterfront. Just like piers, it is wise to consult with knowledgeable professionals and zoning departments before becoming set on plans for improvements.

5. Choose the right professionals.

Purchasing and owning waterfront is meant to improve ones quality of life, and usually it does. There will always be an unfortunate few that end up purchasing a large, unexpected and expensive dispute, and their quality of life is most often not improved. Without question, the best means of avoiding unexpected difficulties is to associate with professionals with experience and interest in waterfront and riparian properties. A good realtor will know the particular area where a property is located, or will know the questions (like the ones above) that must be analyzed in order to know if a property is right for you. A good lawyer will know whether a deed is to transfer all of the rights you expect, (or maybe just some), will be able to spot misunderstandings in pier sharing agreements, and will know how to resolve a dispute that does arise. We hope these pointers help to make your next waterfront property purchase or sale, an enjoyable one!

Dirk Schwenk – dschwenk@waterfrontlaw.com
and Mike Piasecki III – mike@marylandwaterfrontproperty.com

Dobbins Trial Decision 2010

Eds. Note: Below is final Opinion from the Anne Arundel Circuit Court in Annapolis, Maryland concerning riparian rights and public access in the case brought by the Magothy River Association against the owner of Dobbins Island, David Clickner.  The MRA sought to have the entire island declared open to the public based largely on a theory of prescriptive easement.  Although they did not achieve that goal, they were successful in requiring Mr. Clickner to open up the beach and remove the fence that was placed so as to restrict access to the beach.  Prior to its removal in 2010, parts of the fence were actually in the water.   Mr. Clickner has appealed this decision (after telling the press that he probably would not) and it was scheduled for mediation in the Court of Special Appeals on August 31, 2010.

For me, this decision is interesting on a number of levels.  It affirms the public right to access the beach, but it also affirms the crucial private right to exclude others from ones land.  Particularly in cases of vacant land, it is not possible to police the borders 24 hours a day, and the failure to do so should not be read as creating a public park of private waterfront.  I personally believe that the court reached the correct outcome, but it did so for the wrong reasons, probably as a result of confusing testimony concerning the location of the Mean High Water line.

When one talks of waterfront land and beaches, the Public Trust Doctrine is the doctrine by which it is understood that lands below the high water line are owned by the State (in this case Maryland), and the State is obligated to hold those lands in trust for the use and benefit of all citizens.   It is this doctrine that allows us to go to ocean beaches, even if the upland adjacent to the beach is privately owned.   Irrespective of anything else, the public has the right to access the beach on Dobbins Island (and everywhere) below the high water mark for bathing, swimming, fishing, etc.   This raises the question of where is the high water mark?  For purposes of Critical Area law (which sets out how close to the shoreline one can develop), there is a Mean High Water line that is fixed based on maps created (I believe) in the 1970s.  But one of the confounding features of waterfront property is that the actual location of the shoreline (and thus the High Water line) is constantly changing.  I am not aware of any case in Maryland that addresses the tension between the actual shoreline and the mapped shoreline, but in my view at least, if it is beach, it is almost certainly below the line, irrespective of what is on a map from thirty years ago.   Perhaps this issue will get a test in the near future — given the rise in sea level and continuing erosion, it could be an interesting point of debate.

MAGOTHY RIVER ASSOCIATION, inc., et al. * IN THE

Plaintiff                                                                             *CIRCUIT COURT

v.                                                                                         * FOR

DAVID CLICKNER, et al.                                           * ANNE ARUNDEL COUNTY

Defendants                                                                      * CASE NO.: 02-C-08-132884

* * * * * * * * * * * * *

MEMORANDUM OPINION

This matter came before the Court on September 9, 10, 11, and 24, 2009, for a bench trial as to whether there is a public right to use the beach on Dobbins Island. The Court held the matter sub curia. Upon consideration of the arguments of the parties, both written and oral, and the evidence and testimony presented, the Court presents its conclusions below.

BACKGROUND

Dobbins Island is an approximately seven acre island located near the mouth of the Magothy River. The portion of the property in dispute is the sandy beach located at the northwest corner of the island, from the mean high watermark to the vegetation line (“the beach on Dobbins Island”). For the past forty-five to fifty years, hundreds of members of the public have frequented the beach on Dobbins Island to swim, sunbath, walk, picnic, kayak, boat, and anchor. Prior to 1988, Dobbins Island was part of a larger parcel that included two other islands, Wee Island and Little Island, and mainland. In the 1950s, members of the Dobbins family built upon and occupied both Wee Island and Little Island. There was no attempt to develop Dobbins Island until October 2003, when it came under the ownership of David and Diana Clickner (“Defendants”) who purchased the island from Dutchship, LLC.  The Clickners made plans to erect a house upon part of Dobbins Island and in July 2006 obtained a permit for, and erected, a “fence” to limit access to the beach. In December of 2006, the Magothy River Association, Inc., along with five individuals filed suit against the Clickners in the Circuit Court of Anne Arundel Court, asserting a right to access the land. In April of 2007, the Court granted Plaintiffs Motion to Dismiss without prejudice. The present case was filed in July of 2008 by the Magothy River Association, Inc. and six individuals (“Plaintiffs”), again asserting a right to access the land and requesting the removal of the “fence.”

DISCUSSION

It is undisputed that land below the mean high water mark is free for public use. Dep’t of Nat. Res. v. Ocean City, 274 Md. 1,5 (1974) (citing Smith v. Maryland, 59 U.S. 71 (1855). However, the instant case raises the question of to what extent may the public have a right to use dry littoral land above the mean high water mark. The Court of Appeals addressed this issue in Department of Natural Resources, et al. v. Mayor and Council of Ocean City, 271 Md. 1 (1975), and analyzed the different legal principles that could create a public right to use privately owned shoreline. Continue reading

What are riparian rights?

What are Riparian Rights?

Piers, Waterfront and Riparian Rights

To hear Mr. Schwenk discussing riparian rights on Real Estate Today Radio – click here.

When you own waterfront, you get more than just property.   You get a view, you get certain risks (like flooding and erosion) and you get what are known as riparian rights.   A waterfront owner does not own the water, and does not own the land under the water, or even the land below the tide-line, but does own access to the water.   Such a right, however, can be encroached upon by a neighbor’s pier, or transferred to a community association for the rights of the community, or otherwise impeded. These situations can create great conflict within a community, and have grave and permanent implications to the economic and personal interests of property owners. The text below provides a general overview of riparian rights, based on Maryland law.  Riparian rights in the Eastern United States are very different from those in the West, and this article focuses on the East  For specific questions, please contact us directly.

Maryland’s Court of Appeals has described riparian rights as follows:

“It is well established that the title to land under navigable water is in the State of Maryland, subject to the paramount right of the United States to protect navigation in the navigable waters.

The owner of the fast land, however, has a common law right to land formed by accretion adjacent to the fast land and has the right of access to the navigable part of the river in front of his fast land, with the right to make a landing, wharf or pier in front of his fast land, subject, however, to general rules and regulations imposed by the public authorities necessary to protect the rights of the public.

When the statutory law grants the right to a riparian owner to extend his lot or to improve out to the limits prescribed by the public authorities, the riparian owner receives a ‘franchise-a vested right, peculiar in its nature but a quasi property of which the lot owner cannot not be lawfully deprived without his consent.’

When the lot owner makes improvements in front of his lot, complete title then vests in him in the improvements provided it is in front of his lot and does not appropriate the riparian rights of his neighbors.”

Parsing the language, one finds the following principles.

1. The State owns the land under the water, and the United States has an overriding interest in preserving public navigation.

2. The waterfront property owner has the right to accretion (such as a beach deposited by currents) and access, but a government may regulate access such as piers and wharves to assure that public rights are protected.

3. The right to extend and improve, where granted, transfers with the property.

4. The right to extend and improve does not allow a landowner to intrude on his neighbor’s rights.

5. The riparian owner has the “right of access” to and from the waters.

Since everyone has neighbors, the relative rights of one’s neighbors can become an issue, as can the extent of the government’s right to regulate. And such issues can and do evolve into open disputes. If you find yourself in conflict, there are some immediate steps that must be taken. First, be aware that your rights could be foreclosed by the statute of limitations. In Maryland, the general statute of limitations is 3 years. In some cases, however, a contract may extend or shorten the period in which action must be taken. It is even possible (through a doctrine known as adverse possession) for title to pass after 20 years of possession. Second, document the facts: take pictures; obtain copies of and permit applications; find public records. Many cases are determined by who marshals the facts first – the head start can be crucial. Also – and this may need to be your first step – consult a lawyer. A lawyer’s time can be expensive – but not when compared to the cost of losing forever the rights attendant to waterfront property.

Marina Purchase in Maryland

The purchase of any Maryland business can be a complicated process.  The purchase of a marina on the Chesapeake or the Coastal Bays, however, adds a number of issues that are specific to the marina’s position on the waterfront.  There are few other businesses where access must be considered from both the land and the water; where environmental regulations and controls are of such immediate consequence; and where a love for the water can be as much of a driving force as business considerations.  The list below is a truncated version of the checklist that we use at Waterfrontlaw to assist purchasers and sellers in organizing for a purchase or sale.

If you are considering a purchase or sale of a marina, we urge you to review the list below, formulate a plan of attack, and then to bring the transaction to our attention.  We can help with identifying the areas of risk that require additional research.  We can help with identifying poor transaction partners or troublesome real property before too many resources are expended.  And, of course, we can assist with preparing the papers that will form the core of the transaction.  In many cases, we may already have first hand knowledge of the property in question.

Due Diligence Documentation

Due Diligence CategoryDocumentation TasksellerPurchaserStatus/notes/ assigned to
Business Plan, Corporate Structure, Financing
Business planCurrent five-year business plan
Corporate organizationArticles of incorporation (name, address, resident agent)
Bylaws
Recent changes in corporate structure
Parent, subsidiaries, and affiliates
Shareholders’ agreements
Minutes from board meetings
Corporate representationPost formation representation – conflict waiver – explanation of obligations.
ShareholdersCurrent shareholders, including number of shares owned, dates that shares were acquired, considerations received, and contact information
Number of outstanding shares
Stock option plan
Samples of common and preferred stock certificates, debentures, and other outstanding securities
Warrants, options, and other rights to acquire equity securities
Relevant private placement memoranda and other offering circulars
LendersBank lines of credit, loan agreements, or guarantees
Loan defaults or expected defaults
Recent corporate transactionsDescription and rationale for each transaction
Purchase and sale agreements
Real Property and Environmental
Real PropertyDeed Search to confirm ownership or deed restrictions
Neighborhood canvas – known problems; future issues with activities
Silting in/navigability
RegulationsBusiness licenses
Environmental permits
Workers’ health and safety permits
Environmental EngineeringCite reviewed for current permits; past environmental issues.
ZoningAnalysis of present zoning/need for future changes or variances
Contractual Documents
ContractsMajor contracts by product line
Support/maintenance contracts
Warranties and guarantees
Dockage Contracts
Mooring Contracts
Land Storage ContractsNote vessel owners rights to do or contract for their own service work
Other customer-related contracts
Supplier/Subcontractor contracts
Purchase Contract Issues
Assets and liabilities v. stock purchase
Warranties
Real property v. going concern
Due diligence period
Deposit – refundable v. non-refundable
Liens and creditors
Financial and Operations
Financial statementsThree years of historical statements and related documentation.

Marina Liability

This article is reprinted from the February, 2005 issue of Soundings-Trade Only, and reflects the author’s recollection of a panel discussion at the International Marina Conference in San Diego, California.  Mr. Schwenk was one of the panelists asked to address liability issues in the marina industry.  The suggestions given were necessarily of a general nature, since there were attendees from all over the world. In brief, those suggestions were: 1. Maintain best professional practices, as those reflect the best thinking in the industry; 2. Add language to one’s principal contracts to insulate your business from claims (these are “exculpatory clauses”); and 3. Make a timely, appropriate response to any problem that arises, or a small problem may spin out of control.

Liability Issues:  Fix the Problems, Avoid Lawsuits

Maintaining the “best professional practices” is called the surest way of staying out of court

By Lindsey Savin/Staff Writer

Soundings Trade Only, February, 2005

Liability issues are among a marina operator’s greatest concerns, and a panel of experts at January’s International Marina Conference in San Diego offers up some advice on how to cope with them.

The panel, moderated by Mick Bettesworth of Marina Developments Ltd. in the United Kingdom, included Mark Yearn of Universal Insurance Services; Dirk Schwenk of the maritime law firm Baylaw, LLC; and Jopie Helsen, owner of Sailor’s Wharf Yacht Yard in St. Petersburg, Fla.

Schwenk said prevention is the best approach.  Maintain the “best professional practices” possible, he said, and, “Fix the problems.”

Being certain you understand your insurance policies – what is covered and what is not – is also critical, Schwenk said.  “You need to have a good idea what’s in your contract.”

“Each facility has its own characteristics and can’t be put in a magic insurance or liability box,” Yearn said.  Still, he suggested, owners and operators can seek out specialists who can customize a facility-specific insurance program.

Because a customer can reverse charges on a credit card for up to 18 months after a transaction is made, Helsen suggested marina owners consider not accepting credit cards as a method of payment, or at the very least encouraging customers to use some other form to square up their bills.

“Taking almost anything other than a credit card is preferable,” Schwenk agreed.

Another suggestion raised by panelists was marina owners should always make sure the “added insured” box is always checked on a marina patron’s or independent contractor’s proof of insurance when presented to the facility owner.  “No good landlord would lease property to someone without proof of insurance, and [the renter should] add the landlord as an added insured,” said Schwenk.

Schwenk also suggested marina owners consider including exculpatory clauses in both their customer and supplier contracts.  These clauses, he said, “can have a chilling effect” on prospective lawsuits.  “They can stop some claims before they even start,” he said.

“Your contracts are the strength of your business,” echoed Yearn.  “The stronger your contracts are, the better off you’re going to be.”

In the end, probably the best preventative measure a marine owner can take to ensure limited liability is to fix problems at the facility as they occur and not wait for them to snowball.

Timely, appropriate response to those things is 99 percent of the battle,” Schwenk concluded.

Fences and Waterviews

In Maryland, there is an open question about whether a water view can be protected from being blocked by a neighbor.  A New York court has recently looked at this question in City of New York v. Gowanus Industrial Park.  This case raises the question of when and how a riparian rights holder is protected from someone else’s infringing upon their view.   The actual case is reproduced in its entirety below.  It confirms the basic tenants of riparian rights law — the riparian owner (in this case the City) has the right to require that a neighbor remove a fence or other structure which interferes with their riparian rights.  This case confirms that one of those rights is the right to a view of the water.  Its most interesting feature may be the fact that Gowanus actually owned the bottom of the basin in question, as well as the riparian rights along the other shore, and it therefore had some rights to limit the City’s use of and access to the waters.

— N.Y.S.2d —-, 2009 WL 2960912 (N.Y.A.D. 2 Dept.), 2009 N.Y. Slip Op. 06498

Supreme Court, Appellate Division, Second Department, New York.

CITY OF NEW YORK, respondent,
v.
GOWANUS INDUSTRIAL PARK, INC., appellant.

Sept. 15, 2009.
STEVEN W. FISHER, J.P., HOWARD MILLER, DANIEL D. ANGIOLILLO, and L. PRISCILLA HALL, JJ.

*1 In an action, inter alia, for a judgment pursuant to Environmental Conservation Law § 15-701(6) declaring that the defendant’s construction of a wall along the northern terminus of the Henry StreetBasin unlawfully interferes with the plaintiff’s riparian rights in and to the Henry Street Basin, and a mandatory injunction compelling the plaintiff to remove that wall or cause it to be removed, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Miller, J.), dated June 27, 2008, as granted those branches of the plaintiff’s cross motion which were for summary judgment on the first cause of action declaring that the plaintiff has riparian rights in and to the Henry Street Basin, on the third cause of action declaring that the wall unreasonably interferes with the plaintiff’s riparian rights in and to the Henry Street Basin, on the sixth cause of action declaring that the wall constitutes a public nuisance, and for a mandatory injunction compelling the plaintiff to remove the wall or cause it to be removed, and to restore access to the Henry Street Basin, within 90 days of service of that order upon it, unless some other satisfactory arrangement could be reached between the parties to assure the plaintiff of its right, as a riparian owner, to gain access to the Henry Street Basin.

ORDERED that the order is affirmed insofar as appealed from, with costs, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate declaratory judgment.

In 1997 the defendant, Gowanus Industrial Park, Inc. (hereinafter GIP), acquired two parcels of real property-one consisting of certain bottomlands of the Henry Street Basin (hereinafter the Basin), a navigable body of tidal water, and another located above water level on the western side of the Basin.The plaintiff, City of New York, owns two parcels of real property located on the northern side of the Basin, which it operates as a park. In February 2002 GIP constructed a wall measuring 18 feet in height and 200 feet in length on the northern side of the Basin. The City commenced this action seeking, inter alia, the removal of the wall on the grounds that it unreasonably interfered with its riparian/littoral rights to the Basin, was unlawfully constructed, and constituted a private and public nuisance.

GIP moved for summary judgment and the City cross-moved for summary judgment. In an order dated June 27, 2008, the Supreme Court, insofar as relevant to this appeal, granted those branches of the City’s cross motion which were for summary judgment on the first cause of action declaring that it has riparian rights to the Basin, on the third cause of action declaring that the wall unreasonably interfered with its riparian rights to the Basin, on the sixth cause of action declaring that the wall constituted a public nuisance, and for a mandatory injunction compelling the plaintiff to remove the wall, or cause it to be removed.

*2 The City demonstrated its prima facie entitlement to judgment as a matter of law on its first cause of action for a judgment declaring that it possessed riparian rights in and to the Basin by establishing that its property directly abutted the Basin, a navigable waterway ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d 566, 571; Tiffany v. Town of Oyster Bay, 234 N.Y. 15; Mascolo v. Romaz Props., Ltd., 28 AD3d 617, 618; Bravo v. Terstiege, 196 A.D.2d 473, 475; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). Specifically, the City submitted, inter alia, Letters Patent for its property, indicating that it shares a common boundary with the Basin, and a certified 2002 City survey, which was also authenticated by affidavit, confirming that the City’s property directly abuts the Basin.

In opposition, GIP failed to raise a triable issue of fact as to the City’s entitlement to a declaration of its riparian rights. Specifically, the 2001 survey submitted by GIP was not in admissible form, as the 2001 survey was unsigned, uncertified, and submitted without an affidavit by the preparer of the survey, and thus could not support its contention that there was a strip of land between the Basin and the City’s property ( see Miller v. Powers, 53 AD3d 1125, 1127-1128; Dewey v. Gardner, 248 A.D.2d 876, 878).

The City’s right of access as a riparian owner is not absolute, but is qualified by GIP’s rights as the owner of the Basin ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d at 572; Hedges v. West Shore R.R. Co., 150 N.Y. 150, 158). When the parties’ rights are in conflict, the court must strike the correct balance ( see Town of Oyster Bay v. Commander Oil Corp., 96 N.Y.2d at 572). Additionally, what constitutes reasonable access is determined on a case-by-case basis, considering what is a reasonable, safe, and convenient accommodation of the riparian interests of the upland owner, here the City ( see, Town of Hempstead v. Oceanside Yacht Harbor, Inc., 38 A.D.2d 263, 264, affd 32 N.Y.2d 859).

In this regard, the City satisfied its prima facie burden of demonstrating that the wall unreasonably interfered with its riparian right of reasonable access to the Basin ( see Gucker v. Town of Huntington,268 N.Y. 43, 47-48; Tiffany v. Town of Oyster Bay, 234 N.Y. at 18-19; Arnold’s Inn, Inc. v. Morgan, 35 A.D.2d 987, 988). In support of its cross motion, the City submitted the affidavit of a manager of the City Parks Department and photographs of the wall which demonstrated that the wall-which was originally 18 feet in height and extends along the entire waterfront boundary-completely obstructs its riparian right of access to the Basin. In opposition, GIP failed to raise a triable issue of fact as to the reasonableness of the dimensions, placement, and configuration of the wall. GIP did not submit any evidence in admissible form to support its conclusory and unsupported allegations that the wall was necessary for public safety and to prevent trespassing ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

*3 Contrary to GIP’s contentions, the mandatory injunction compelling it to remove the wall, or cause it to be removed, was not overly broad. A riparian owner, such as the City, has a right to equitable relief against material obstructions, including the abatement of an obstruction already constructed (see, Tiffany v. Town of Oyster Bay, 234 N.Y. 15).

GIP’s remaining contentions are without merit.

Since this is, in part, a declaratory judgment action, the matter must be remitted to the Supreme Court, Kings County, for the entry of a judgment, inter alia, declaring that the City of New York has riparian rights in and to the Henry Street Basin, that the wall erected by the defendant along the northern terminus of the Henry Street Basin unreasonably interferes with the City’s riparian rights in and to the Henry Street Basin, and that the wall constitutes a public nuisance ( see Lanza v. Wagner,11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901).

N.Y.A.D. 2 Dept.,2009.
City of New York v. Gowanus Indus. Park, Inc.
— N.Y.S.2d —-, 2009 WL 2960912 (N.Y.A.D. 2 Dept.), 2009 N.Y. Slip Op. 06498

END OF DOCUMENT

Duck Blinds and Riparian Rights

DUCK BLINDS AND RIPARIAN RIGHTS

On Maryland’s Easter Shore, with fall comes duck hunting season, and with hunting season come disputes.  This article provides a brief overview of your rights to license and use a duck blind in Maryland, with particular emphasis on the rights of owners of waterfront property.

The rivers, streams and marshes of the Chesapeake provide some of the best duck hunting in America.  As Judge Melvin of the Court of Appeals observed more than sixty year ago, “[d]uck shooting is a traditional Maryland sport, and the Chesapeake Bay has long been famous for the rare advantages which its waters afford.” Boyd v. Schaefer, 184 Md. 621, 629-30, 42 A.2d 721 (1945).

In recognition of Maryland’s special relationship with duck hunting, the General Assembly has granted to owners of riparian property the right to establish and maintain duck blinds on or near their property.  “Riparian property” is defined as “land bordering on, bounded by, fronting upon, abutting or adjacent and contiguous to a body of water.” Becker v. Litty, 318 Md. 76, 82, 566 A.2d 1101, 1104 (1989).  If you own property next to a river, bay, creek or marsh, you are a riparian.

RIPARIAN RIGHTS

As the law evolved in England and the Colonies, the right to access the water from one’s own property emerged as the fundamental riparian right.   People’s Counsel for Baltimore County v. Maryland Marine Mfg. Co., Inc., 316 Md. 491, 502, 560 A.2d 32, 37 (1989).  Additional riparian rights include accretion and reliction (the right to own the new land left behind by deposits on the shoreline and receding waters), and the right to make improvements into the water in front of riparian property (e.g., to build a pier). Worton Creek Marina, LLC v. Claggett, 381 Md. 499, 850 A.2d 1169 (2004).

These common law riparian rights, however, are not the only riparian rights recognized in Maryland.  Of particular importance to hunters, the General Assembly has granted riparian landowners certain preferences with regard to duck hunting.  According to Section 10-607 of the Natural Resources Article of the Maryland Code, riparian landowners may license their shores to establish offshore stationary blinds or blind sites, or to prevent others from licensing their shoreline. Therefore, if you own riparian property, you have the right to build and use duck blinds in front of your property without interference from others.  County Com’rs of Kent Co. v. Claggett, 152 Md.App. 70, 831 A.2d 77 (2003).  But this right is not absolute or exclusive—to protect your right, you need to obtain a license.

DUCK BLIND LICENSING

To establish a duck blind, you need to obtain a license from the Maryland Department of Natural Resources.  Both riparian owners and non-riparian residents of Maryland may apply to license an offshore duck blind.  However, riparian owners have priority, as described below.

Offshore stationary blinds and blind sites may be located in public waters adjacent to licensed riparian shoreline in most areas of the state. A “blind site” is a specific location in the water where a person may hunt wild waterfowl from a boat or raft tied to or anchored at a stake, while a “stationary blind” is a permanent offshore structure built on piling or stakes.  Md. Code, Natural Resources § 10-601.  The word “site” is often used to refer to the authorized location for a stationary blind.   A license is required for a blind site, and a license is required for a stationary blind.  (Please note that a blind license is different than a hunter’s license, which is also required for anyone hunting from a stationary blind or blind site.)

In general, offshore blinds must be located within 300 yards of the shoreline or one-third the distance to the opposite shore, whichever is less. Blind sites must be at least 250 yards from any other blind site or stationary blind. Sites must be at least 150 yards from any dwelling, unless the license holder has the written permission of the owner of the house.

Priority for Riparians

For riparian landowners, the deadline to submit a license application is June 1 of each year. A Maryland resident who does not own riparian property may apply for a license for an offshore blind site but not until the first Tuesday in August.  Consequently, if you are a riparian property owner, you have priority to license your property for hunting blinds, or simply to block others from obtaining licenses to establish stationary blinds in front of your property.

Riparian landowners who wish to establish an offshore blind must either own at least 250 yards of continuous shoreline or have written permission from adjoining neighbors to total at least 250 yards of continuous shoreline.  This is because riparian landowners may not locate an offshore stationary blind or blind site within 125 yards of the property line or where the line would be if it were extended out over the water perpendicular to the shore at the point where the property line reaches the water’s edge. Md. Code, Natural Resources § 10-607(f).  A riparian landowner who does not own or have written permission for shoreline totaling at least 250 yards may still establish a blind site (but not a stationary blind) if no other shoreline is licensed within 125 yards of the blind site.

Licensing for Non-Riparians

Beginning on or about August 1 of each year, any resident of Maryland may apply to license up to two blind sites per day. Each license issued to a non-landowner (sometimes referred to as a “squatter”) applies to 250 yards of shoreline, with the blind site located in the middle. All blind sites must be at least 125 yards from previously licensed shoreline. Therefore, there must be at least 250 yards of shoreline that has not been licensed at the time the non-riparian’s application is submitted. Licenses expire on June 30 in the year after the license was issued.

How to Apply

You can get a list of the offices and dates for licensing by calling the Maryland Department of Natural Resources at 410-260-8540.

Riparians must submit an application by mail before June 1 of each year on the form provided by the Department.  The application must include:

·        a map showing the exact location of the shoreline to be licensed and the exact location of the proposed offshore stationary blinds or blind sites, if any;

·        the written permission of adjacent landowners if necessary; and

·        the written lease or assignment of the riparian landowner if necessary.

At present, the cost is $20 for a 1-year license or $60 for a 3-year license.

For non-riparians, during the first two days of the licensing period licenses can be obtained at offices established in each county just for this purpose. After the first two days, blind site licenses must be obtained from the Department of Natural Resources Licensing and Registration Service Center for the county where the blind will be located. Non-riparians must pay an application fee of $20 for each license requested.

To assist both riparians and non-owners, the Department of Natural Resources has launched a web-based shoreline mapping application at http://atlas.mdmerlin.net/blinds/ (last visited 8/31/2010).  Applicants with Internet access can use this program to print the necessary maps to support the license application.

DUCK BLIND DISPUTES

Trespass and Unauthorized Use

Section 10-615 of the Natural Resources Article prohibits anyone from occupying another person’s licensed blind or blind site, or anchoring or tying to another person’s licensed stake without the written permission of the license holder.  If someone is using your blind or blind site without your permission, contact the Department of Natural Resources, which may choose to prosecute violators.  If that fails, you may institute proceedings against the violators to get a court order telling them to stop, and you may be able to recover money damages.  Consult a lawyer to understand your options.

Boundary Disputes

It is not uncommon for disputes to arise over the placement of duck blinds.  Sometimes neighbors don’t agree on the dividing line between two adjacent properties.  See, e.g., Sheehy v. Thomas, 155 Md. 688, 142 A. 506 (1928); Councilman v. LeCompte, 179 Md. 427, 21 A.2d 535 (1941); Boyd v. Schaefer, 184 Md. 621, 42 A.2d 721 (1945); Dept. of Nat. Res. v. Adams, 37 Md. App. 165, 377 A.2d 500 (1977).  In each of these cases, an irregular shoreline or other geographic considerations complicated the task of figuring out the dividing line. The location of the dividing line is important because of the rule that offshore sites must be 125 yards from the extended property line. Md. Code, Natural Resources § 10-607(f).  Where neighboring landowners cannot agree on the dividing line, the courts are called upon to determine a “method of dividing waters. . . [that is] equitable, and fair, to all parties concerned.” Councilman v. LeCompte, 179 Md. at 431, 21 A.2d at 537.

Conflicts with Other Laws and Regulations

In other cases, riparian owners seeking to exercise their rights to establish duck blinds have squabbled with local marinas, Worton Creek Marina, LLC v. Claggett, supra, and with larger property owners, Wampler v. LeCompte, 159 Md. 222, 150 A. 455 (1930).  When these types of disputes become lawsuits, Maryland courts consistently uphold the right of riparian owners to license and establish blinds in front of their own property.

If you are having trouble with the placement of duck blinds on or near your property, you should call an attorney skilled in waterfront law and riparian rights.

WHERE TO FIND MORE INFORMATION

The Department of Natural Resources has posted “A Guide to Maryland’s Laws and Regulations Related to Offshore Waterfowl Hunting” at http://www.dnr.state.md.us/wildlife/offshore.html (last visited 9/21/2009).

The text of the applicable laws are available online.  Maryland statutes can be found at http://www.michie.com/maryland (last visited 9/21/2009). Click “Maryland Code”, then navigate to the “Natural Resources” article.

The Commonwealth of Virginia has a similar regulatory scheme for the licensing of duck blinds.  See Va. Code, § 29.1-344.  The Virginia Department of Game and Inland Fisheries provides downloadable applications for licenses at http://www.dgif.virginia.gov/forms/?type=2 (last visited 9/21/2009).

The Code of Virginia is posted online at http://leg1.state.va.us (last visited 9/21/2009).  Browse the list of Code sections until you find “Title 29.1 – GAME, INLAND FISHERIES AND BOATING”.

Docks, Appraisals and Mortgage Lending

The below memo is from Agents University, which describes itself as “A Service of the National Title Insurance Company.” It discusses the treatment of docks in Missouri in terms of the valuation of a property. To some degree the text is specific to that state statute, however, the same principles are applicable in most jurisdictions. For a pier to be a valuable and permanent part of a property, the owner of the property must have riparian rights which allow the structure to be placed there, and it must be permanently attached to the land. The article was originally posted at http://news.agentstitle.com/?p=443.

Boat Dock Bulletin

Underwriting Bulletin

To: All Missouri Agents

From: David Townsend

Re: Boat Docks

Date: 9-9-2009

Missouri Agents:

The Missouri Legislature recently passed a new definition of “Boat Dock” for appraisal

purposes. Here is the new language:

339.503 (7) (a-c) of the Revised Statutes of the State of Missouri (RSMo), boat docks

may be legally defined as “real property” subject to the following conditions:

(a) The lender includes the boat dock as a fixture both in the lender’s deed of

trust and a uniform commercial code fixture filing under section 400.9-502,

RSMo;

(b) The boat dock is attached to the real property by steel cable, bar, or chain

that is permanently imbedded in concrete or rock, and otherwise securely

attached to the dock; and

(c) The owner of the dock has riparian rights by means of real estate rights

bordering the body of water, including such rights by license, grant, or other

means allowing access to the body of water, which access may be seasonal

because the water may be reduced for electric power production or flood

control;

This new definition is designed to allow lenders to lend money based on an appraisal that

includes the dock. You will note the above requirements for a dock to be considered real

property.

(a) The lender includes the boat dock as a fixture both in the lender’s deed of

trust and a uniform commercial code fixture filing under section 400.9-502,

RSMo;

According to this definition, the lender must include the boat dock as a fixture both in the

DOT and file a UCC fixture filing.

(b) The boat dock is attached to the real property by steel cable, bar, or chain

that is permanently imbedded in concrete or rock, and otherwise securely

attached to the dock;

The dock must also be permanently affixed to the land as stated above.

(c) The owner of the dock has riparian rights by means of real estate rights

bordering the body of water, including such rights by license, grant, or other

means allowing access to the body of water, which access may be seasonal

because the water may be reduced for electric power production or flood

control;

The owner of the dock must have riparian rights and the ability to place a dock in the

water. This could be in the form of an easement, license, or other right.

All three of these items must be met before the property can be considered real property

under the statute.

Due to the complex nature of determining if the dock is personal or real property and the

ability to move or remove docks, Agents National Title Insurance is unable to insure boat

docks under this statute. Any mention of the dock must be removed from the insured

legal description in both the owners and lenders policies.

It is important that you examine the contract, lender instructions and other documents for

requests for coverage of docks. You must alert the requesting party that you are unable to

provide coverage for the dock.

Furthermore, any “legal description” of a dock must be redacted to remove mention of

the dock on Schedule A of the policy. The legal could list the dock, the UCC, or both.