To further deter violations of environmental laws, Anne Arundel County officials are trying a new tactic: bringing criminal charges as well as levying civil fines.
The first such companion cases in the county were filed in recent weeks. The county government is seeking fines of about $192,000 each from a homeowner and a contractor, accusing them of clearing the homeowner's property along Rideout Creek outside Annapolis without permits. At the same time, the state's attorney's office charged them criminally with doing the work without county permits and at the water's edge, within the 100-foot buffer known as the Chesapeake Bay's Critical Area.
"We think the threat of incarceration adds a new element," said County Attorney Jonathan A. Hodgson, adding that he hopes homeowners contemplating violating the Critical Area laws pause to consider this: "Is the view of the river worth going to jail for?"
Criminal charges are expected to be reserved for cases considered "egregious," he said, especially those in the bay's Critical Area.
Civil penalties have not been enough of a deterrent, and frustration led to the new tactic. In the past, landowners have simply hoped they wouldn't get caught — and if they did, they would apply for permits belatedly and pay a small fine. Any disturbance of the buffer's land and vegetation requires permits.
The county's land use staff typically learns of violations from angry neighbors. In the Rideout Creek case, the county received not only a complaint, but a neighbor's video of a backhoe performing the illegal work.
Once the county knows of a violation, it can order that work be stopped until permits are obtained and seek civil fines. Rarely are maximum fines imposed.
County lawyers met with prosecutors in the spring to hatch the double-pronged approach. Typically, allegations of land use violations go through county government's civil side. Prosecutors have no environmental investigators on staff and will rely on investigations done by county inspectors.
"Ultimately, they felt that the civil enforcement they were doing — they felt the message wasn't getting out," said Deputy State's Attorney Thomas J. Fleckenstein, who said the state's attorney's office agreed to consider criminal charges.
"At the end of the day, getting fined for this is looked at by many businesses and homeowners as a cost of doing business," Fleckenstein said.
Criminal charges carry not only the threat of a separate set of fines that cannot be discharged in bankruptcy but of jail time, a criminal record and being barred from getting certain government contracts. In addition, insurers may not cover criminal penalties, Fleckenstein said.
In the initial cases, the county filed a lawsuit in July against Emanuel Krousaniotakis of Bowie and Mixqui Construction, also in Prince George's County. In July 2010, a county inspector went to Krousaniotakis' property and saw heavy equipment marked "Mixqui Construction" being used to clear vegetation, including trees, on about 12,000 square feet along the water, the lawsuit alleges. Gumesindo Maldonando, an owner of the company, told the inspector he was removing fallen trees from the water, but the inspector suspected otherwise, according to the lawsuit. A stop-work order was issued.
Susan Turner Ford, an attorney for Krousaniotakis, said she could not comment because of the pending litigation. Assistant Public Defender Karl Gordon, who will represent Maldonando in the criminal trial, said he could not speak about the case.
No grading and stormwater management permits or buffer management plan had been filed, the county alleges. The county accused the homeowner and the construction company of illegally grading within the Critical Area, clearing within the buffer without an approved management plan, violating Critical Area zoning rules, and lacking sediment-control and stormwater management plans. The civil fines sought are the maximum allowed.
Krousaniotakis applied for permits in the spring, according to county records.
Krousaniotakis and Mixqui each face four criminal counts: development and construction without a stormwater management plan, and clearing and grading within the Critical Area without government approval. The first two counts each carry maximum penalties of a year in jail and a $10,000 fine, and the others are each punishable by up to six months in jail and $1,000 fines.
Ren Serey, executive director of the state's Critical Area Commission, said he did not know of any other jurisdictions pursuing criminal charges against suspected Critical Area violators.
"I think it's important to make the statement. And I think it's important to use all the tools that are available," he said.
The prospect of criminal prosecution and jail for certain environmental crimes brought approval from the president of the Severn River Association, who said property owners who might otherwise shrug off civil fines could be deterred by criminal charges. The creek by the property in this case finds its way into the Severn.
"If they can have more penalties than just the county fines, that would be good," Duane Wilding said.