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Island house battle reaches state's highest court

Panel wants to reopen case, but owner says it's settled

By ALLISON BOURG, Staff Writer
The Capital 05/11/10

Joshua McKerrow — The Capital / file
A hearing was held Monday before the Maryland Court of Appeals that could decide the fate of the house Daryl Wagner built on Little Island in the Magothy River.

An attorney for the state Critical Area Commission argued Monday that applying new, tougher restrictions on illegal building won't automatically force Daryl Wagner to tear down the house he built on the Magothy River without all the necessary permits.

Instead, Assistant Attorney General Paul Cucuzzella told Maryland's highest court that the commission only wants a judge to force the commercial builder to correct the damage he has done to Little Island.

"Ultimately, the appropriate restoration and mitigation is something that would have to be determined by the trial court," Cucuzzella said.

The hearing before the Court of Appeals in Annapolis was the latest legal debate over Wagner's island home.

The state sued Wagner in fall 2008, saying he must comply with a law that prohibits retroactive approvals for illegal waterfront building until any fines or penalties are paid.

Robert Fuoco, Wagner's attorney, told the seven-judge panel that destruction of the house on the 2-acre island is exactly what the commission is after.

"The request for relief is exactly what counsel won't admit to," the attorney said.

The Little Island case dates back to late 2004, when county inspectors discovered Wagner's house, complete with a gazebo, in-ground swimming pool and faux lighthouse. Wagner tore down a smaller home on the island and built the larger home, then applied for retroactive permits.

The county Board of Appeals ruled two years later that Wagner could keep the home, but not the swimming pool. A county Circuit Court judge eventually upheld the board's decision, and the case is now pending before the Court of Special Appeals.

Earlier this year, Wagner agreed to pay $40,000 in fines and fees for building on tidal wetlands. Part of the work involved building a stone riprap wall around the island to address severe erosion.

The Maryland Department of the Environment ordered Wagner to rebuild those wetlands and create a marsh on the island.

In its lawsuit, the Critical Area Commission argued that the 2008 law should apply to Wagner's house. A county Circuit Court judge dismissed the lawsuit a year ago, and the state took the case to the state's highest court.

Wagner added about 6,000 square feet of impervious surface in the Critical Area buffer zone, a violation Cucuzzella described as "egregious." The zone is a tightly regulated strip within 1,000 feet of the bay and its tributaries, and all of Little Island falls within it.

"The courts must comply with changes in land use and zoning laws retroactively," Cucuzzella said. "Building without a permit is a violation."

But ripping down the house might not be the answer, he said. He said mitigation could involve work to reverse deforestation on the island.

"That's ultimately a question of fact for the trial court," Cucuzzella said.

Fuoco argued that the commission is misinterpreting the law.

"None of this … is intended to be applied retroactively," he said.

He said the county resolved the Wagner case years ago.

"There was a house there, he tore down the old house and built a new one that was a little bit bigger, then applied for a variance," he said. "This was well thought out by the Board of Appeals."

Fuoco's comments were seconded by Warren Rich, an Annapolis attorney also representing Wagner in this case.

"They want us to go back to 2004 and undo nine months of hearings if we apply this retroactively," he said. "This was a legal process."

Judges didn't say when they would rule on the case, although Rich said after the hearing that he expected a ruling to come before the court's summer recess in August. Wagner declined to comment.

(Revised May 2010)