Maryland Court Of Appeals Nixes State Control Of Development

After receiving all required local and State permits to develop a mixed-use adult community on Kent Island, Hovnanian applied for a license from the Board of Public Works to fill or dredge State wetlands. The filling or dredging involved four elements that would have impacted 9,939 square feet of State wetlands. The evidence indicated that the impact on the wetlands would have been minor and well-compensated by mitigation efforts. Both the State Department of Environment and the Wetlands Administrator recommended approval of the application, attesting that the project met all legal requirements, including requirements of the Board’s own regulations.

Nonetheless, by a 2-1 vote, the Board denied the license, not because of any finding regarding the impact on the wetlands of the requested dredging or filling, but because two members concluded that the project as a whole was unsuitable for Kent Island for environmental, traffic, and public safety reasons. The Circuit Court for Queen Anne’s County, concluding that the Board had applied inappropriate standards and thereby exceeded its lawful discretion, vacated the Board’s decision and remanded the case for further consideration by the Board.

The Court of Appeals affirmed the Circuit Court judgment. The question of whether the
development was suitable for Kent Island was committed to other State and local agencies
which, over a 13-year period, had considered all applicable requirements and approved the project on multiple occasions. In deciding upon an application to dredge or fill State wetlands, the Board of Public Works does not act as a super land use authority but may consider only whether, applying the considerations set forth in Md. Code, Environment Article, § 16- 202(g)(1), which look to the impact of the dredging or filling on the affected State wetland, issuance of a license is in the State’s interest. The case was remanded to the Board to reconsider the application using the proper standards.

David Paulson, a spokesman for the Office of the Attorney General, which represented the Board of Public Works in the court case, said the ruling is being reviewed. Comptroller Peter Franchot thinks the ruling unfairly limits the authority of the Board of Public Works, said Joe Shapiro, a spokesman for the Comptroller. The Board of Public Works should be able to continue its "invaluable oversight role on behalf of the taxpayers," Shapiro said. Gov. Martin O'Malley also disagreed with the ruling, saying in a statement that it is "a setback for the protection of our remaining wetlands, the health of the bay and public safety in flood zones."

Maryland Board of Public Works, et al. v. Kent Hovanian’s Four Seasons at Kent Island, LLC, et al., No. 67, September Term 2011, filed April 23, 2012.

http://mdcourts.gov/opinions/coa/2012/67a11.pdf