Reversing an earlier stance on dense development near reservoirs, the Maryland Department of the Environment has granted a developer's request to build a community near the Triadelphia Reservoir in southern Howard County.
The waiver -- issued Sept. 14 -- allows Charles Sharp to finish High Forest Estates, which is part of his Big Branch Overlook plan in rural Dayton. With the variance, Sharp will be permitted to cluster 49 homes on lots of less than 2 acres.
The state standard requires that homes built within 2,500 feet of reservoirs must be on lots that are 2 acres or larger to provide an area to absorb runoff from roofs and other surfaces.
In May, Environmental Secretary Jane T. Nishida chastised county officials for allowing developers to build on lots of 1.5 acres or less near the Triadelphia and T. Howard Duckett reservoirs.
The Department of the Environment's apparent contradiction has angered members of the Dayton Community Association, which wants at least 25 homes dropped from Sharp's plan.
"What can you say?" said Thomas Dernoga, an attorney representing the neighborhood group. "We knew that the Maryland Department of the Environment was going to cave. The question was: How long was it going to take?"
Ted Davis, interim president of the Dayton Community Association, added: "I think [the state agency] decided it was easier to kiss off the citizens rather than fight the developer."
The controversy began in July of last year when Sharp applied for the waiver. His attorney, E. Alexander Adams, has consistently argued that Sharp did not have to apply for the variance because Triadelphia Reservoir does not supply drinking water and is therefore a lake.
But the waiver was held up for months as the Dayton Community Association filed a lawsuit against the state, challenging the state agency's authority to issue such a variance.
When Nishida aired her criticism of county officials in May, she suspended the county health officer's authority to approve subdivision plans using private septic systems until the Department of the Environment completed an audit of the county department's previous decisions.
The audit found nothing wrong in the county department's previous approvals.
The waiver -- approved by J. James Dieter, administrator of the department's Wastewater Permits Program -- attaches several conditions to Sharp's project.
Included in the conditions were donating more than an acre to the Washington Suburban Sanitary Commission that borders the commission's Patuxent Watershed Property and installing septic systems with specialized watertight tanks to facilitate pumping.
Adams said his client would meet those conditions "to demonstrate the developer's commitment that we intend to protect the environment."
Dieter did not return several telephone calls seeking comment.
Adams said the state agency realized that it could not prevent Sharp from building his 49-home project after the agency had approved the Hunterbrooke subdivision of 21 homes in Fulton.
Hunterbrooke was "much closer to a water-supply reservoir, and theirs went through like greased lightning," Adams said.
Dernoga agreed with Adams' assessment, but said the decision is flawed.
"It doesn't make them right," Dernoga said. "It makes them wrong twice."
Big Branch Overlook will be the last proposal to take advantage of the confusion between state and county requirements.
A bill approved by the County Council in July changes the county code to match the state regulations of 2-acre lot sizes for homes built within 2,500 feet of reservoirs.
The bill's sponsor, Democrat C. Vernon Gray of east Columbia, said he supports the state environmental waiver.
"We're all on the same page," he said.
Davis said the civic association is reviewing its legal options, including reinstating its previous lawsuit challenging the Department of the Environment's authority to issue the waiver.
But Adams said he is confident the residents cannot block Sharp from building.
"If they file an appeal, I think that they are going to put at risk MDE's decision that Triadelphia lake is a watershed reservoir," Adams said. "They will be shooting themselves in the foot."