Residents of the Blue Heron Cove condominiums cannot block the public from accessing Spa Creek in their community, an Anne Arundel County Circuit Court judge ruled Wednesday.
The three-page ruling by Judge Elizabeth S. Morris assures residents can use a five-foot-wide path running from Boucher Avenue in Eastport to Wells Cove, as well as public access to get in and out of the water.
The Blue Heron Cove Condominium Association and the city of Annapolis had taken the position that only the walking path was public; there was no water access point to launch a kayak or board a larger boat if one pulled up to the cove. Morris disagreed, ruling in favor of Jessica Pachler and Karen Jennings, two Eastport residents who sued in October of 2021 after the city signed an easement agreement with Blue Heron that cut off water access to other Eastport residents. Morris’s ruling invalidates that agreement.
“Members of the public have the right to access the right of way and limited waterfront area,” the judge wrote. That access “includes the right of access to the water also referred to as riparian rights.”
Attorney P. Joseph Donahue successfully argued that the city’s easement agreement violated the conditional approvals for the six-unit condominium development, which as dictated by City Council in 1986 before Blue Heron was built, stated “the applicant shall provide a four-foot wide path for public access to the open space and waterfront areas.”
The official land plat identifies “public access to the water,” and was drawn to show the access extending into Wells Cove.
Donahue called the city’s agreement with the condo association to block water access “offensive.” There’s no other public access between the Eastport drawbridge and Truxtun Park, he noted.
Now the court says the agreement is now invalid and unenforceable.
“It is the one public access point where members of the community can launch a kayak, a paddleboard or other small craft and get on or off Spa Creek,” Donahue said.
Mitchelle Stephenson, a spokesperson for the city, said there are still plans to install a fence and lay oyster shells along the walking path as laid out in the 2021 easement agreement.
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Donahue called on the city to take down a “No trespassing” sign that was still posted to the left of the water access point as of Thursday morning, and said anyone should be allowed to pull a medium-sized boat up to the public access point. If a boat owned by a Blue Heron resident blocks the way, it can be moved, Donahue said.
C. Edward Hartman, attorney for Blue Heron, said it’s not that simple.
“This ruling did not resolve the matter to the satisfaction of any of the three parties,” Hartman said. While Morris restored riparian rights to the public, she did not indicate how far out into Wells Cove the public access should extend. Her ruling also did not address the deeds to the Blue Heron condos, which as submitted as evidence for the defense, divide the riparian rights among three of the six Blue Heron condos. It’s unclear what happens now to two small piers extending from the Blue Heron land, as well as a floating kayak launch that belongs to an adjoining property on Creek Drive.
“It’s a very complicated real estate matter,” Hartman said.
The judge also did not account for a city stormwater outflow pipe at the site, which Hartman says makes accessing the water there unsafe, even if legal.
Morris’ order was issued 30 minutes before a trial that was set to begin Wednesday. (Both sides had requested summary judgement.) If the three involved parties fail to settle the remaining matters, a new trial date has been rescheduled for July 7.
“We will be seeking clarity from the judge,” Hartman said. “This is a long way from over.”