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Margaret Mchale v. Dcw Dutchship Island

July 22, 2010

MARGARET MCHALE
v.
DCW DUTCHSHIP ISLAND, LLC, ET AL.



Circuit Court for Anne Arundel County Case No. 02-C-08-134861

The opinion of the court was delivered by: Harrell, J.

Margaret McHale v. DCW Dutchship Island, LLC, et al.,

No. 123, September 2009.

ZONING AND LAND USE - VARIANCES - CHESAPEAKE BAY CRITICAL AREA LAW - WHERE THE LEGISLATURE EVINCES ITS INTENT FOR AN AMENDMENT TO THE CRITICAL AREA VARIANCE REQUIREMENTS TO APPLY PROSPECTIVELY, THE AMENDMENT DOES NOT APPLY TO AN APPLICATION FOR A VARIANCE FILED PRIOR TO THE EFFECTIVE DATE OF THE AMENDMENT AND WHERE THE OBJECT OF THE APPLICATION IS TO CURE VIOLATIONS OF THE CRITICAL AREA LAW OCCURRING PRIOR TO THE EFFECTIVE DATE

Bell, C.J., Harrell Battaglia Greene Murphy Adkins Barbera, JJ.

Opinion by Harrell, J.

We consider here whether a recently amended provision (§ 8-1808(c)(4)) of the Chesapeake and Atlantic Coastal Bays Critical Area Protection Program ("Critical Area Law"), Md. Code (1973, 2007 Repl. Vol. & Supp. 2009), Natural Resources Article, §§ 8- 1801-8-1817, applies to a variance application filed three and one-half years before the General Assembly amended the statute and where the object of the application was to cure violations of the Critical Area Law occurring prior to the effective date of the amendment.*fn1 For reasons we shall explain, we affirm the judgment of the Circuit Court for Anne Arundel County and conclude that the amended provision does not apply retrospectively to the subject variance application.*fn2 In reaching that conclusion, we revisit a line of cases, somewhat peculiar to land use and zoning matters, regarding when statutory enactments have prospective only or retrospective application to pending matters and litigation. See e.g., Yorkdale Corp. v. Powell, 237 Md. 121, 205 A.2d 269 (1964); Layton v. Howard County Bd. of Appeals, 399 Md. 36, 922 A.2d 576 (2007); and Grasslands Plantation, Inc. v. Frizz-King Enters., LLC, 410 Md. 191, 978 A.2d 622 (2009).

I. FACTUAL AND PROCEDURAL BACKGROUND*fn3

DCW Dutchship Island, LLC ("DCW") owns a 1.92 acre (83,635.2 square feet) island, known as Little Dobbins Island ("the Island"), located in the Magothy River in Pasadena, Anne Arundel County (the "County"), Maryland. It is designated as a limited development area ("LDA") under the County's Chesapeake Bay Critical Area Program.*fn4

Because it is surrounded by tidal waters of the Chesapeake Bay and contains slopes of 15% grade or greater, the entirety of the Island lies within either the buffer or the expanded buffer of the Critical Area (the significance of the buffer and expanded buffer designations will be elaborated later in this opinion).

DCW obtained the Island from Dutchship, LLC, in 2000. At that time, the Island contained a three-bedroom summer cottage of about 1,911 square feet of floor area, which had existed on the Island for approximately fifty years (well before the advent of the Critical Area Law). Also located on the Island at that time was a boat house and deck, two small sheds, a pier, a dirt cart path, and some steps. At that time, the total man-made impervious surface area on the Island was approximately 3,005 feet.

In or about 2001, Daryl Wagner, a member of DCW and a Maryland registered home builder, acting on behalf of DCW, demolished the old summer cottage and removed the debris, without the necessary permits or variances required by the Critical Area Law and County ordinances. Then, Wagner constructed the following structures or impervious surface areas on the Island: (1) a new 2,883 square foot home; (2) replacement sheds for the two pre-existing sheds; (3) a 66 square foot gazebo; (4) a boat ramp and concrete driveway with approximately 2,668 square feet of surface area to accommodate his amphibious vehicle; (5) 846 square feet of sidewalks; and (6) a pool and deck totaling 1,433 square feet.

Some of the aforementioned improvements were located in areas of the Island that, prior to Wagner's construction activities, contained slopes of 15% or greater. Wagner re- graded some of these areas to accommodate the improvements. He did not obtain any permits or seek approval of the construction or plans for it from the County.*fn5 In November 2004, the County authorities discovered the construction activities on the Island and notified DCW of the numerous violations. On 28 December 2004, DCW sought variances from the unobserved requirements of the Critical Area Law for each of the structures and improvements on the Island.*fn6 DCW sought also an amendment to the critical area buffer map, which prohibits most development activity within 100 feet of the shoreline.

A County Administrative Hearing Officer heard the evidence for and against the requests for variances. The Magothy River Association ("MRA") appeared at the variance hearings on 5 June 2005 and 20 September 2005 to oppose DCW's requests. The Hearing Officer granted some of the variances on 27 October 2005. Wagner appealed administratively the denials, and the MRA, the Chesapeake Bay Foundation ("CBF"), and the Maryland Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the "Commission") appealed the decision to grant the variances, all to the County Board of Appeals.

While the variance case was percolating, on 20 October 2005, the County Planningand Zoning Officer approved in part the buffer map amendment request. MRA and CBF sought judicial review of that decision in the Circuit Court for Anne Arundel County. The Honorable Paul F. Harris, Jr. of the Circuit Court, in a separate case from the present one, but arising from the same facts as the present controversy, described the relevant proceedings before the Board of Appeals:*fn7

The Anne Arundel County Board of Appeals ("the Board") heard the appeals of both the variance decisions and the buffer map amendments. Owing to the complexity of and public interest in the Little Island dispute, the Board scheduled a series of consolidated hearings on both the buffer map amendments and the variance requests. Prior to the first hearing date, [the Commission] moved to bifurcate the hearings into separate proceedings because it had not participated in the buffer map appeal. The Board denied the motion to bifurcate. Thereafter, in hearings scattered over 24 days in 2006, the Board heard testimony from 30 witnesses, and considered . . . hundreds of pieces of evidence. On January 3, 2007, the Board issued a written Memorandum of Opinion and Order . . . that mapped Little Island "as partially buffer modified", and revised the Hearing Officer's decision in order to impose certain conditions on the grant of the variances.

(Footnotes omitted). Pursuant to § 604 of the Anne Arundel County Charter, the Commission filed a Petition for Judicial Review of the grant of the variances on 16 January 2007. The CBA and the MRA each sought judicial review on 31 January 2007 and 2 February 2007, respectively. DCW and Wagner filed a cross-petition in the Circuit Court on 2 February 2007.

While the foregoing battles were ongoing, on 25 September 2008, Margaret McHale, Chair of the Commission, filed another action (the present one) in the Circuit Court, a Complaint for Restoration and Mitigation against DCW and Wagner pursuant to an amendment to the Critical Area Law, Md. Code, Nat. Res. Art. § 8-1815(a)(2)(i)(1), enacted earlier in 2008.*fn8 She filed this action for restoration and mitigation based on amendments made to the Critical Area Program statutory scheme by the General Assembly during the 2008 Legislative Session. The General Assembly enacted an amendment to § 8-1808(c) of the Natural Resources Article, which provides the minimum standards for a local (in this case, the County) program sufficient to meet the goals of the Critical Area Program. The amendment at issue here required that, before a local jurisdiction could issue a permit, approval, variance, or special exception, the applicant shall prepare, and the local jurisdiction shall approve, a "restoration or mitigation plan . . . to abate the impacts to water quality or natural resources as a result of the violation; . . . ." § 8-1808(c)(4)(ii). The applicant, before the local jurisdiction may take action, for example, on a variance application seeking relief from the Law's requirements, also must perform the abatement measures in the approved version of the mitigation/abatement plan. § 8-1808(c)(4)(iii). Because DCW had not prepared or carried out an approved restoration or mitigation plan, McHale alleged in her complaint that the variances granted by the Board of Appeals were null and void by operation of § 8-1808(c)(4), as amended. She sought relief in the form of the "deconstruction," removal, and abatement of the structures and improvements erected by Wagner and that the court order Wagner and DCW to restore and provide mitigation in accordance with a mitigation plan to be approved by the County.

The defendants filed a motion to dismiss arguing that the Complaint failed to state a claim upon which relief could be granted because the 2008 amendment should not be applied retrospectively to the variance application, which, by the time the Complaint was filed by McHale, had been granted (in part) by the Board of Appeals. Judge Silkworth, in a written Memorandum Opinion and Order, granted the defense motion to dismiss, with prejudice, finding (1) that the Legislature intended for the 2008 amendment to be applied prospectively only and (2) that the changes made to the statute were procedural and not substantive, and, therefore, the Act should not be applied retrospectively.*fn9 McHale noted a timely appeal to the Court of Special Appeals. Before consideration of the appeal in the intermediate appellate court, we, on our initiative, issued a writ of certiorari, 411 Md. 598, 984 A.2d 243 (2009), to consider the following question:

Did the trial court err in concluding that the provision of the 2008 Amendments to the Critical Area law requiring restoration, mitigation and abatement of Critical Area violations prior to receipt of a critical area variance does not apply to critical area ...


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