By: Will Halnon
“Originally, when I first got involved, I knew nothing,” says John Wyss, a patent, antitrust and trade regulation attorney, and partner at Wiley Rein LLP (Washington, D.C.), who over 12 years ago decided to volunteer his time and legal skills to what would become a decade-long litigation battle over a proposed housing development in Churchton, Maryland. The development, Turtle Run at Deep Cove – proposed by Snyder Development Corporation (Snyder) – involved a 140-acre piece of property within Maryland’s Critical Area (land within 1,000 feet of the Chesapeake Bay or its tributaries) and one of the last, pristine tidal waterfront areas in the County. Not only was Wyss working to protect this vulnerable and ecologically-rich land from disappearing, he was also fighting to prevent questionable development practices from becoming the norm.
“The developer had his original plan,” Wyss recalls. “The real goal was [to build] 18 waterfront houses [on Deep Cove Creek in the Critical Area… A] trick that developers were doing at that time is they would find another piece of land that was close to the intended project, but was just outside of the Critical Area, and they would put in another development on that land. That one was called Deep Cove West. And this [28 acre] development would be much harder to challenge because it would have [7-14] homes, as many as they could possibly fit into the little piece of land, with the theory being that later they would come to the County and to the Critical Area Commission and trade it off in order to develop the land within the Critical Area.”
However, Snyder’s plan hit a hurdle when the developer had a falling out with a local partner who owned a portion of the land at the middle of the site of the proposed development, which forced him to repudiate his arrangement with Snyder to sell him a chunk of the land. As a result, Snyder no longer owned one contiguous parcel, but rather several non-contiguous plots scattered across the area. “That was probably the biggest issue we litigated,” says Wyss. “Probably the most important thing coming out of that case was [that Snyder] tried to put together a group of non-contiguous parcels, lots of scrub wetland that he bought up very cheap that was a quarter-mile to a half-mile away. He would say, ‘oh, I’ve got a grandfathered house over there in the swamp, let me put that over here, right on the waterfront where he clustered development. We said, ‘well, what’s to stop him from getting a piece of scrub land two miles away and incorporating that into the development plans as well.’”
At these early stages in the development process, the County’s involvement also raised some concerns. “I think the County [planning office] understood that this [development scheme] was wrong, but…this was [during an] administration, which was developer-oriented. And I think that the word came down from on high that the planning and zoning should do whatever they could to get [the proposal] through.” Wyss even recalls seeing emails between the developer and planning office, which hinted that because Snyder was almost in compliance, the office should let the development move forward. This acquiescence to imperfect compliance had the potential of creating a major loophole for developers with non-contiguous parcels who sought to develop them under one proposal.
A local environmental organization SACReD (South Arundel Citizens for Responsible Development) had previously reached out for help. “SACReD came to Chesapeake Legal Alliance and said, ‘Can we get help?’ So I hooked up with them at that time, representing SACReD at the start back in 2010,” says Wyss. Over the course of the next eight years, West Rhode Riverkeeper, the Chesapeake Bay Foundation (CBF), and Jonathan Guy of the Orrick Law Firm in Washington, D.C. also joined the opposition.
The litigation process was slow-moving. As Wyss remembers, “when we started, I was just writing comments for SACReD, looking through the regulations and throwing out everything I could.” It took close to two years of litigation in the Board of Appeals for Wyss and Guy to prove that their clients even had standing. “We finally got to the merits,” says Wyss, “and we convinced the Board of Appeals.”
Wyss and Guy took the matter to the Board of Appeals in 2016, when after reversing its own prior decisions, Anne Arundel County approved Snyder’s plans to build 11 single-family homes on one 40-acre lot within the Resource Conservation Area (RCA) of the Critical Area – even though RCA rules specify that only one house per every 20 acres is allowed. Using a definition of “site” that is found in Maryland’s stormwater regulations, Snyder argued that it could build the 11 homes on the RCA lot if it transferred grandfathered rights from other non-contiguous parcels to the 40-acre parcel— and the County agreed. Wyss and Guy immediately appealed to the Anne Arundel Board of Appeals. Maryland’s Critical Area Commission also entered the debate at this time, after finding that Snyder’s proposed definition of “site” did not meet the requirement that the County implement state regulations regarding the Critical Area.
The litigation finally came to an end after the matter became more prominent in the press leading up to the 2018 midterms. “There was a lot of press about what was going on,” Wyss recalls. Then, all of a sudden, the County bought out Snyder using money from county funds. Accompanying the buyout, the County also made commitments that the land would not be developed.
The victory wasn’t without some environmental losses. Although Snyder had said that he had no plans to develop the previously approved Deep Cove West subdivision, which had been acquired to use as more of a bargaining tool, the developer in fact cleared more than ten acres of ancient forest on the property. “We tried to slow them down,” says Wyss, “and ultimately, he was stopped, but as a result, there’s a big hole in the forest. It’s growing back, which is good, but it was 100 years old and totally untouched forest before that, and it’ll take another 50 years or so before it returns to what it was.”
In the end, Wyss and Guy were able to conserve 130 acres of land within the RCA of the Critical Area, which today serves as an important section of the East Coast Greenway. “This is one of the last pristine places that has not been developed down there,” says Wyss, “and for the people in Franklin Manor, they look across and just have this beautiful vista of woods.” Wyss continues, “It’s one of the few areas that you can go in and canoe and you can see down to the bottom and see the grasses and the underwater vegetation… if it had been developed, I think they would have lost all of that. You would have had people in the developments putting in docks. They would have wanted powerboats. They would have wanted to dredge it and all sorts of things would have happened. But right now, it’s just kayaks and canoes.”
And although Wyss “knew nothing” at the beginning, by the end of the battle for Turtle Run, one of his fondest memories includes just how much he had learned about the process. “[I]t was interesting learning all that and just seeing how that process worked or didn’t work. You know, I approached it as a lawyer, I’m going to make my arguments and learn along the way, but there was a lot else going on, including grassroots development by the local communities to make their views known which is also so important as part of that process.”
In a victory for Deep Cove Creek, and after 25 hearings over the course of 2 years, the Anne Arundel County Board of Appeals dismissed the pending appeal regarding Snyder Development’s efforts to build its disputed housing development within the Resource Conservation Area (RCA) of the Critical Area in Churchton, Maryland, effectively ending Snyder’s attempts to skirt Maryland Critical Area law. The dismissal ends a TWELVE year battle against the developer by South County Citizens for Responsible Development (SACReD), the West/Rhode Riverkeeper, the Chesapeake Bay Foundation, and local citizens.
On February 7, 2018, the Critical Area Commission (CAC) found that the County’s Critical Area Program, specifically its use of the definition of “site” found under Maryland Department of the Environment’s stormwater regulations, did not meet state Critical Area law requirements. The definition was the lynch pin for approval of the Snyder Turtle Run development plan, being relied upon by both Snyder and the County Office of Planning and Zoning. The CAC gave the County 90 days to amend its Critical Area Program to address its deficiencies, and determined any local project approval based on that definition was null and void. In last night’s dismissal, the Board determined that the County’s Office of Planning and Zoning’s 2016 approval of Snyder’s proposed site plan fell under that umbrella, leaving nothing before the Board to decide.
The Board came to its conclusion based largely on motions written, submitted, and argued by CLA volunteer attorney Jonathan Guy of Orrick (Washington, D.C.), with tremendous support of CLA volunteer Attorney John Wyss of Wiley Rein (Washington, D.C.) who has contributed his time pro bono to this case since 2009. These two attorneys have spent an incredible amount of time and energy on this case, all to help prevent the establishment of terrible development precedent in Anne Arundel County, maintaining the integrity of our environmental laws and regulations, and protecting the health and future of Deep Cove Creek and the Chesapeake Bay. We are so thankful for their efforts.
We also want to congratulate SACReD, West/Rhode Riverkeeper, Chesapeake Bay Foundation, and other local Churchton residents for their unflagging willingness to stay in the fight for this pristine, waterfront forest.
More than 12 years after plans were first proposed, the disputed planned housing development in Churchton, MD – Turtle Run at Deep Cove – may have been dealt its final death blow thanks to the long running efforts of CLA volunteer attorneys in partnership with South County Citizens for Responsible Development (SACReD), the West/Rhode Riverkeeper, and the Chesapeake Bay Foundation (CBF). The battle to save one of the last, pristine tidal waterfront areas in Anne Arundel County has been hard fought by CLA volunteer attorneys John Wyss of Wiley Rein (Washington, D.C.) and Jonathan Guy of Orrick (Washington, D.C.).
After reversing its own decision in 2016, Anne Arundel County approved Snyder Development Corporation’s plans to build 11 single family homes on one 40 acre lot within the Resource Conservation Area (RCA) of the Critical Area (land within 1,000 feet of the Chesapeake Bay or its tributaries). RCA rules specify that only one house per every 20 acres is allowed.
Using a definition of “site” that it found in Maryland’s stormwater regulations, Snyder argued, and the county agreed, that it could build the 11 homes within the RCA if it transferred the 1 in 20 density requirement to another parcel of land. SACReD, the Riverkeeper, and CBF appealed the county’s approval to the Anne Arundel Board of Appeals.
Last week, Maryland’s Critical Area Commission (CAC) found that Snyder’s proposed definition of “site” did not meet the requirement that the county implement state regulations regarding the Critical Area. While it waits to be seen whether the Board of Appeals will move forward with the current appeal of the proposed project, or dismiss it as moot, this is a huge step in the right direction of conserving sensitive and critical Anne Arundel County lands that protect, filter, and provide important natural habitat to the Chesapeake Bay!
Wednesday afternoon, the Anne Arundel County Board of Appeals decided that both South County Citizens for Responsible Development (SACReD) and the West/Rhode Riverkeeper have standing to contest a hotly disputed housing development in Churchton, MD – Turtle Run at Deep Cove – proposed by Snyder Development Corporation.
The 12-plus yearlong battle to save one of the last, pristine tidal waterfront areas in Anne Arundel County has been hard fought by SACReD, the Riverkeeper. and individual citizens, as well as the Chesapeake Bay Foundation (CBF). Along the way, CLA volunteer attorney John Wyss of Wiley Rein (Washington, D.C.) has provided critical legal support and was joined later in these efforts by volunteer attorney Jonathan Guy of Orrick (Washington, D.C.).
Attorney Guy’s compelling closing statement, along with the statement by CBF attorney, Ariel Solaski, convinced the Board of Appeals that both SACReD and the West/Rhode Riverkeeper had meaningful interests in the proposed development that were different than the average Maryland citizen; and, therefore, they should be allowed to participate in the currently pending appeal of the county’s conditional preliminary approval of the sketch plan for the development.
Snyder wishes to increase building density on the waterfront land by transferring densities from inland lots contrary to the Chesapeake Bay Critical Area Act and despite there being no local rules to support the proposal. Opponents say using density from other lots to build in the Critical Area buffer would set a dangerous precedent.
After the Board’s decision was announced, Mike Shay, Vice President of SACReD, stated,“SACReD has a 22 year history of spearheading community support and standing up for important lands along Deep Creek and Deep Creek Cove. This effort shows that against all odds, citizens can win when we stand together. Special thanks to CLA who helped make that happen.”
While the fight is not over, CLA volunteer attorneys won a strategically important battle today. We will keep you updated on this case as the appeals process continues this month.
