- The Washington Times - Wednesday, January 2, 2002

ANNAPOLIS Gov. Parris N. Glendening is intent in his final General Assembly session on bolstering a law that limits building along Chesapeake Bay waters.

The critical-area law, passed in 1984, includes a provision that generally prohibits construction in a 100-foot buffer around the Bay or any of its tributaries. Scientists say buffers help preserve water quality by reducing erosion and filtering pollutants from rainwater runoff.

But Mr. Glendening and other supporters of the law say three decisions from Maryland’s highest court two in 1999 and one in 2000 gutted the law by making it too easy for property owners to evade restrictions on building in the buffer.

Speaking in September to members of the Chesapeake Bay Critical Area Commission, the agency that administers the law, the governor complained that the court decisions had created “loopholes big enough to drive development tractors right through.”

For the General Assembly’s upcoming session, the last session of Mr. Glendening’s two terms in office, the governor has made one of his top priorities a bill that would override the decisions.

“The opinions themselves weaken substantially the ability of this commission to do its job,” he told commission members. “I do think it is essential to strengthen the legislation.”

Mr. Glendening will also offer legislation to impose development restrictions on the coastal bays at Ocean City, similar to regulations already in place for the Chesapeake Bay.

House of Delegates leaders will introduce a bill to expand the right of individuals and advocacy groups to intervene in environmental lawsuits, conforming the state law to federal law.

On the critical-area law, Mr. Glendening backed a bill during the 2001 legislative session to override the Maryland Court of Appeals decisions. But the legislation died in the House Environmental Matters Committee, then chaired by Delegate Ronald Guns, Cecil Democrat.

“I think the legislature was prepared to approve that but one committee became difficult,” Mr. Glendening said. “That committee has new leadership.”

In June, the governor appointed Mr. Guns to the state Public Service Commission. To take the full-time, $93,600-a-year position, Mr. Guns had to resign his seat in the General Assembly.

House Speaker Casper R. Taylor Jr. appointed Delegate John Hurson, Montgomery Democrat, to replace Mr. Guns as committee chairman. Environmentalists praised Mr. Taylor’s choice.

Under the critical-area law, property owners who want to build within the buffer must obtain special permission, called a variance, from their local board of zoning appeals. They must demonstrate that they have met conditions for a variance outlined in their local ordinance. While specific conditions can differ between counties, they generally require applicants to demonstrate that their projects won’t harm the environment, and that blocking construction would pose an “unwarranted hardship.”

The Critical Area Commission is notified of each variance application, and has the opportunity to oppose it.

In the three decisions targeted by Mr. Glendening and other supporters of the critical-area law, the state Court of Appeals reinstated three variances denied by zoning boards or lower courts. In the most recent case, the appeals court upheld the right of the Mastandrea family of Talbot County to build a brick pathway along Glebe Creek so their daughter, who uses a wheelchair, could enjoy the waterfront on their property.

Critics of the decisions say that together, they significantly lowered the burden for obtaining variances. They allowed applicants to meet most, but not all, of the necessary conditions for a variance, and lowered the threshold for what is considered an unwarranted hardship.

In the 18 months beginning January 2000, applicants received permission from local zoning boards to build 62 freestanding structures, including swimming pools and gazebos, within 100 feet of Bay waters, said Ren Serey, the Critical Area Commission’s executive director.

Such projects were routinely denied by boards before the appeals court cases, but have been routinely approved since, Mr. Serey said.

“When the court cases are better known, the numbers are going to go up,” he said.

Before the appeals court decisions, applicants were willing to work with the commission to limit the environmental impact of their projects. Since then, they have not been, Mr. Serey said.

A legislator who sponsored a bill last year to override the appeals court decisions, Sen. Roy Dyson, St. Mary’s Democrat, said he will reintroduce the measure next year. He expects it to win passage.

But a critic of the legislation, Delegate Ken Schisler, Dorchester Republican, said the appeals court decisions were well reasoned and grounded in legal precedent.

“What is really going on here is the Critical Area Commission assumed for itself far more power than the legislature granted to it,” Mr. Schisler said. “Three times they were told they were overreaching.”

Mr. Schisler said overriding the appeals court decisions would give the commission and its chairman too much power over land-use decisions that should be left to local officials.

“I still hold out some hope that we can either achieve some kind of a compromise, or that we can prevent this bill from passing,” he said.

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