Tuesday, September 2, 2003

ANNAPOLIS — The state has asked the Maryland Court of Appeals to reconsider a ruling that officials say seriously weakens protection of land bordering tidal waters, an area considered a key to improving water quality in the Chesapeake Bay.

“There is a great deal of concern at the commission and in the environmental community about its impact,” said Martin Madden, chairman of the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays.

The motion on Friday asked the court to reconsider its 4-3 decision issued July 31 in a Wicomico County case. The ruling involved a hunting lodge and associated buildings that Edwin H. Lewis built near a tributary of the Nanticoke River without permits from the county.

The critical-area law limits development within 1,000 feet of tidal waters and sets even stricter standards for area within 100 feet of tidal waters, the most environmentally sensitive territory.

The appeals court had overruled a county order that Mr. Lewis must relocate some of the buildings to minimize damage to the environment.

If the court refuses to reconsider the ruling, the motion filed by the state asks the seven judges to clarify that “the decision is limited to the narrow circumstances presented by this case, and acknowledge that the cases upon which the decision rests were legislatively overruled in 2002.”

Denise Stranko, assistant director and attorney for the Maryland office of the Chesapeake Bay Foundation, said the foundation will file a brief this week supporting the commission’s request for a reconsideration.

“The Lewis case has the ability to really undermine the whole critical-area law,” Miss Stranko said. “The critical-area law is a necessary act to protect the Bay.”

State Sen. J. Lowell Stoltzfus, Somerset County Republican, said the court’s ruling was good and does not damage environmental protections.

“I’ve had a lot of discussion with Marty [Madden] about this. I’m disappointed that they are going to appeal,” he said.

The Lewis case exposed a deep division within the court. In his minority opinion, Judge Alan Wilner criticized the majority for engaging in “an inexplicable effort to allow property owners … to do whatever they wish on environmentally sensitive property.”

The decision was the fourth in a series of rulings by the state’s highest court weakening the critical-area law. The 2002 General Assembly passed a bill to reverse the effects of earlier decisions, and critics of the ruling in the Lewis case say the court did not take the 2002 law into account.

The motion said the Court of Appeals did not follow precedent established by its own decisions and rulings of the U.S. Supreme Court when it “rejected the General Assembly’s legislative findings that the cumulative impact of development harms the Chesapeake Bay.”

It also said the earlier ruling did the following:

• Imposed on local jurisdictions a new and costly requirement to conduct studies and present expert testimony to justify denial of a variance.

• Usurped the fact-finding role of local zoning officials.

• Condoned law breaking and encouraged future noncompliance with the law by dismissing the illegal construction of hunting cabins in the buffer zone as a “red herring.”

Mr. Madden said that at a minimum he hopes the court will make clear to local zoning officials that they are to apply the 2002 law in critical-area cases.

“The biggest problem with this recent ruling … is that it transfers the burden to a locality to demonstrate why building in a critical area is harmful to the environment,” Miss Stranko said. “That’s the opposite of the General Assembly’s intent in passing the law.”

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