Judge tosses island lawsuit

Magothy River Association offers to buy Dobbins Island

By MARY C. SCHNEIDAU, Staff Writer

Calling its effort to protect public access to a private island on the Magothy River a "vigilante taking," a county judge yesterday tossed out an environmental group's lawsuit.

Undeterred by the courtroom defeat, however, the Magothy River Association immediately approached Dobbins Island owner David Clickner and offered to buy the island.

The offer came minutes after Circuit Court Judge Paul G. Goetzke said allowing the lawsuit to move forward would have thwarted Mr. Clickner's due process and property rights.

"If you have this type of ... vigilante taking, the property rights may be at risk," he said.

The ruling was the latest development in a legal battle that started when Mr. Clickner bought the 7.1-acre island in 2004 and announced plans to build a house and piers.

Mr. Clickner decided not to allow boaters and swimmers to use the island's beach, though previous owners had accepted the practice for decades.

In December, the county approved variances to allow Mr. Clickner to build on the island, located within the protected Critical Area. Since then, Mr. Clickner said he's received offers of up to $10 million for the island.

A day after that ruling, the Magothy River Association and five riverfront property owners sued Mr. Clickner over a fence he placed along a portion of the beach on the island.

The chain and post fence, installed last summer, is designed to keep boaters off the island. The lawsuit claimed that "continuous, uninterrupted use of the island for over 20 years has established a prescriptive easement in favor of the public for use of the island and the beach."

The hearing in Annapolis yesterday was a preliminary one to decide whether the lawsuit could progress any further and, if so, whether it could be designated a class-action suit.

In addition to seeking public access, the lawsuit claimed that the fence improperly marked the mean high-water line. Water below that point is public property.

Instead, Judge Goetzke threw out the entire lawsuit, including the request for class-action status. In a hearing that lasted just over an hour, he repeatedly asked the attorney for the association how public use of the beach would be regulated and what effect the lawsuit could have on other issues of private property.

Association attorney Ann Fligsten countered that the hearing was only supposed to determine whether the lawsuit could proceed. She said the merits of the case should be discussed later.

After the ruling, Ms. Fligsten approached Mr. Clickner and told him the association is willing to buy Dobbins Island from him, even if it costs $10 million.

"We're trying to come up with some way to co-exist," Mr. Clickner said. "All of their plans exclude us and we don't see any way to come to any conclusions with us being excluded."

The association and homeowners also are considering whether to appeal yesterday's ruling, Ms. Fligsten said.

The association and the Chesapeake Bay Foundation are also appealing the county's variance decision.

Dobbins is one of two disputed islands in the Magothy. A dispute over a home built without permits on Little Island is expected to take years to work its way through the courts.

Published April 04, 2007, The Capital, Annapolis, Md.

(Revised April 2007)