Judge to rule on possible confiscation


F. Nicholas Codd wants to build his dream house on stilts over a cove on the Severn River. The county says that won't happen even in his wildest dreams.

Now, in a case being closely watched by environmental and property rights advocates, an Anne Arundel circuit judge will have to decide whether the county Board of Appeals confiscated the land when it denied Mr. Codd permission to build.

Experts say it could be the first case in the state of land confiscation by regulation.

"I think that you can find that this case is confiscatory," Kathryn Dahl, attorney for Mr. Codd, told Judge Raymond G. Thieme Jr. yesterday.

"It is an unbuildable piece of swampland," countered Jeffrey E. McFadden, attorney for Eugene and Letitia Morton, who own the house next door.

Judge Thieme said he will study the arguments and the mountain of legal documents and that he will issue a decision in the coming months.

Mr. Codd, a Severna Park optician, has tentative state and federal approval to build his raised house on a quarter-acre marsh his family owns on Sullivan Cove. What he needs is a variance from local authorities to build within the 100-foot setback from the shoreline required under Maryland's Chesapeake Bay Critical Area law.

He has offered to scale the house down from 2,160 square feet to 1,720 square feet and make other changes.

Neighbors, backed by the Severn River Association, maintain that this is precisely the kind of environmentally fragile lot the state's waterfront protection programs are meant to keep from sprouting houses.

Mr. Codd's parents paid about $6,000 33 years ago for what was considered a buildable lot, but they allowed it to be assessed as unbuildable before the shoreline laws took effect in 1993.

The county Department of Planning and Code Enforcement has supported Mr. Codd's proposal.

Its lawyer, Lynn Robeson, asked the judge to invalidate the Board of Appeals decision or return the case to the board.

In its September ruling, the Board of Appeals left the door open to the possibility that Mr. Codd could obtain a variance for a smaller house, but it did not recommend an appropriate size.

The judge suggested that he would return the case to the Board of Appeals for reconsideration of a variance for a smaller home if that would resolve the standoff.

"If the case could be settled with 1,300-square-foot dwelling, would your client withdraw" his appeal? Judge Thieme asked Mr. McFadden.

"No," he replied, noting that the board's membership has changed since the earlier hearings and that only two current members are familiar with the case.

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