In a victory for environmental groups, an appeals court has revived the Chesapeake Bay Foundation Inc.'s challenge to a variance permitting pier and septic-tank construction on a privately owned Magothy River island.
The Anne Arundel County Circuit Court agreed, prompting the groups to seek review by the Court of Special Appeals.The appeals court cited the "substantial amounts of time, as well as money" the groups have spent protecting the river's vegetation and oyster reefs. It also noted that the state Department of Natural Resources has issued permits to the groups allowing them to inspect and retrieve oysters and reefs in the river.The Magothy River Association's attorney, Ann Fligsten, hailed Friday's decision as giving standing to the many environmental groups that do not own property but have spent time and money in pursuing their cause."On remand the board must determine whether these investments of time and money and the permits the appellants hold are sufficient to satisfy ... the test for aggrievement," Judge Christopher B. Kehoe wrote for the court. "[O]wnership is not required to establish aggrievement."MRA President Paul Spadaro testified that his group had spent more than $126,000 and expended more than 31,000 volunteer hours in protecting the river's water quality between 1992 and the 2007 board hearing. CBF staff similarly testified to the money and time that group had spent on environmental protection.The Anne Arundel County Board of Appeals had rejected the challenge, which the Chesapeake Bay Foundation is mounting with the Magothy River Association Inc. The board said the groups lacked standing to challenge because they owned no land near Big Dobbins Island and thus would not be "aggrieved" by the planned construction.The Clickners' attorneys did not return telephone messages Friday seeking comment on whether they plan to seek review by the Court of Appeals. The Clickners were represented by Harry C. Blumenthal and Eileen E. Powers of Blumenthal, Delavan & Williams PA in Annapolis.CBF staff attorney Amy McDonnell said the appellate decision "clearly shows the board that they were misinterpreting the law" on standing.But the board, in a 4-3 vote, said property ownership, not just active involvement, was necessary for standing.The Clickners' counsel told the board that that the groups lacked standing because neither one owned property within a half-mile of the island.The island sits within the Chesapeake Bay Critical Area, a state designation for parts of the bay where development is restricted for environmental reasons.The 3-0 decision is a setback for David and Diana Clickner, who own the island and hope to build a home there. As part of the construction, the Clickners requested the variance to build a pier, septic tank, driveway, well and stormwater drain."The grassroots local people who have an investment in the water quality ... have an interest that's just as important as someone who has a property interest in the river," said Fligsten, a solo practitioner in Arnold. "This is a great day."The groups are seeking "to preserve the most endangered part of the shoreline," she added. "The law [on standing] is there for a reason and it needs to be followed."Issue: Did the county board of appeals err in denying standing to environmental groups because they did not own property near the Magothy River?An administrative hearing officer conditionally granted the Clickners' variance request on Dec. 18, 2006. CBF and MRA appealed to the board.WHAT THE COURT HELDCBF and MRA countered that a member of both groups, Mark McInnes, owned property closer in. The board rejected McInnes' testimony because he was not a party to the case.Critical areaHolding: Yes; on remand, the board should consider the substantial time and expense the groups have devoted to protecting the river, with licenses from the state, in deciding the standing issue.But the Court of Special Appeals said a group's standing does not depend on being an aggrieved property owner. Rather, a group can have standing based on the extent of its efforts to prevent environmental harm, the intermediate appellate court said in remanding the case to the board.Case: Chesapeake Bay Foundation Inc. et al. v. David Clickner et ux., CSA No. 01525, Sept. Term 2008. Reported. Opinion by Kehoe, J. Filed April 30, 2010.CBF claims the approved pier would kill about 1,600 square feet of flourishing bay grasses. The other construction would produce harmful runoff, further damaging bay grasses and oyster reefs, according to CBF.
The Anne Arundel County Circuit Court agreed, prompting the groups to seek review by the Court of Special Appeals.
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