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Appeals court hears Little Dobbins Island dispute

Laws and LegislationJustice SystemChesapeake Bay FoundationConstitutional Issues

Opponents of the luxury island compound built by Daryl C. Wagner without Anne Arundel County permission asked a state appeals court this week to return the dispute to the county Board of Appeals for further hearings, contending that they did not get a fair shake when Wagner belatedly sought approvals for the construction.

But lawyers for Wagner and the county told the Court of Special Appeals that there was nothing to gain by having more than the 24 hearings already held that ended with the board allowing Wagner to keep his house and replica lighthouse on Little Dobbins Island, but ordering him to raze most of the rest of his construction, including a swimming pool.

The Court of Special Appeals was the most recent forum in a nearly eight-year dispute over Wagner's after-the-fact moves to win government approval for building on the island, and it appears to remain far from resolved.

The state's Critical Area Commission, the Chesapeake Bay Foundation and the Magothy River Association continue to fight Wagner's efforts to gain zoning approvals for his home.

The saga started in 2004, a few years after Wagner bought the island. County zoning inspectors learned that Wagner had built a 3,000-square-foot house with a lighthouse, a swimming pool, gazebo, 40-foot-long driveway and boat ramp without obtaining approvals. Wagner, a builder, then sought permission. To opponents' chagrin, the Board of Appeals granted variances that allowed Wagner to keep the house, lighthouse, well and septic systems. But it ordered him to demolish the other structures.

That decision, upheld by an Anne Arundel County judge, was challenged by Wagner's opponents and is now before the Court of Special Appeals.

Most of the arguments this week focused on whether Anne Arundel County law restricting who can challenge a variance request is at odds with the Maryland Constitution. Attorneys said that issue could play a key role in a ruling.

Though it initially allowed the Chesapeake Bay Foundation to take part in the hearings, the Board of Appeals wrongly stopped the organization from participating and cross-examining witnesses, contended Jon A. Mueller, a Bay Foundation lawyer.

Robert J. Fuoco an attorney for Wagner, argued that Mueller made his points to the Board of Appeals through the other opponents anyway, making more Board of Appeals hearings unnecessary.

"If we send this back to the board, there's nothing to be done," Fuoco argued.

"I don't know how Mr. Fuoco knows what evidence we did get in and didn't get in," Mueller countered.

Mueller told the Court of Special Appeals that Wagner "violated county law on a grand scale" with his unauthorized construction on the 2-acre island.

People applying for variances to build on the environmentally sensitive waterfront must provide justifications to prove variances are needed.

Mueller said Wagner created his own problems, building a bigger house to replace a small summer cottage and adding structures. Under the law, he was allowed to build on only as much of the island as previous structures had covered.

Fuoco said the Board of Appeals allowed his client to cover several hundred more square feet and contended that Wagner's work included stabilizing the eroding island.

A separate effort by Anne Arundel officials to force Wagner to demolish the house is on hold. County officials will dismiss that action after two things happen, Deputy County Attorney David Plymyer said. First, Wagner must have the land use variances that are being challenged in this case. Second, the county must authorize the building and grading permits that Wagner is seeking for his construction. The county cannot consider giving him permits unless he has the variances.

andrea.siegel@baltsun.com

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