Saturday, February 24, 2007

Board of Appeals Appeal

Last week, former Board of Appeals member, Ray Jicka, had the following letter to the editor in the Capital defending his decision to grant a variance to Daryl Wagner's island home on the Magothy:

The Board of Appeals Decision on Little Dobbins Island had absolutely nothing to do with the legality of the structure on the property.

The Board did not grant permission to keep the house. What it did is to recognize the owner’s legal right to construct a dwelling on a grandfathered legal building lot.

In the Board’s Memorandum of Opinion, the first sentence of Chairman Anthony Lamartina’s denial of the variance: “The case before the Board is not whether a variance can and should be granted because the simple answer is yes.”

The variance granted is not about the house, but the environmental impact of impervious surfaces in the critical area. Whether or not the property is buffer exempt or not, the owner must have a variance to construct anything.

Legally, the owner has the right to apply for such a variance as long as he meets a number of extremely strict requirements. The most demanding is that the variance is “the minimum necessary for relief.”

In this case the amount of impervious surface that existed before the current construction was 3,005 square feet. Four of the five members of the Board voted to allow an extra 320 square feet for a boat ramp. The decision would require that the appellant remove everything in excess of this maximum.

This would include the demolition of the pool, patio, sidewalks, the “boat house,” and every other structure on the island. That leaves the appellant a whole 200 square feet of impervious surface to do with as he pleases.

The problem concerning Little Dobbins Island is not the legality of a granted variance. It’s the blatant and egregious disregard of County Code requirements for permits and the accompanying inspections to obtain a certificate of occupancy.

Having read it in the print edition, I didn't feel a particular need to comment on it here, and then I received an e-mail from Mr. Jicka, bringing it to my attention again. He insisted it was "the answer to the hysterical tree huggers." At that point, I expressed to him my disappoint in the Board's decision in no uncertain terms:

[What is recounted below was originally intended as a private email correspondence, until Mr. Jicka asked that it be published here]

You and several other members of the Board let down the public in your role on the Appeals Board. Granting 70%-80% of the variance requests that came before the Board was, frankly, a shameful display. Ms. Vitale [who had originally appointed Mr. Jicka, and did not re-appoint him] certainly [i]sn't a "hysterical tree hugger", and neither are the vast majority of County residents, most of whom saw that, rather than acting an entity to protect our collective resources, the last Board of Appeals acted as a rubber stamp on irresponsible development projects. If your decision haunts you, perhaps it should. Let's hope the new appointees exercise considerably more scrutiny than the outgoing members did.

He replied that I was not "a rational fair minded entity, [but one] that follows his emotions rather that his intellect and understands the law as it is written by the County Council."

I then replied:

What about the fact that granting a retroactive variance for such a blatantly inappropriate project in the critical area violates (§ 3-1-207. Standards for granting variance., subsection c, item 2v): "A variance may not be granted under subsection (a) or (b) unless the Board finds that the granting of the variance will not be detrimental to the public welfare."?

Don't you think the dimunition of trust in Anne Arundel County government that has resulted in allowing such an egregious project to stand has been a "detriment to the public welfare?" That's to say nothing of the other environmentally damaging ways that this project has been "detrimental to the public welfare."

Merely because you, and several of your colleagues chose to take the most favorable interpretation of that statement on behalf of the developer, as you so often did, does not mean that others could not have taken a broader, more community-minded approach.

His response:

"A variance may not be..." Come on, the code approved by your County Council - did not say shall not be... If you don't like the law, lobby to change it. The Board followed the law as it is written.

My response:

The Board interpreted the law in the most liberal manner possible. The Board would have been on solid legal footing rejecting the variance.

There's no question, this whole matter should not be laid at the foot of the Board, as you say, the Council played an important role. But, it is my assessment that the Board felt [sic] short of its responsibility to county residents.

His reply:

Indeed! There's no question, this whole matter should not be laid at the foot of the Board, as you say, the Council played an important role. Why then, have you and the other "tree huggers" so excoriated the Board in this matter. We were, I repeat, following the law as it is written. If you don't like the law, lobby to change it. Do not make the Board the total villain in this unfortunate circumstance.

So, in closing, I think that Mr. Jicka and I are in agreement on the point that both the County Council and Board of Appeals share blame for the ridiculously poor way in which the Little Dobbins Island home case has been handled.

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