October 1, 2008

Justice No Closer on Illegal House

By ERIC HARTLEY Staff writer

The true environmental legacy of the Daryl Wagner saga may not be the illegal house built on an island, but the acres of trees that have given their lives to document three-plus years of lawsuits and administrative wrangling over that structure (with no end in sight).

The mountain of paperwork continued to grow last week when the state Critical Area Commission filed a lawsuit against Mr. Wagner. The state argues his house on Little Dobbins Island in the Magothy River is illegal under the newly strengthened Critical Area law. Even though the county Board of Appeals ruled Mr. Wagner could keep his house, the Attorney General's Office says state law trumps.

So the state is stepping in to hold Mr. Wagner accountable where the county has failed, right? Not exactly.

The sad truth is the state action very likely brings Mr. Wagner no closer to justice - and will drag the case out even more. Deputy County Attorney David Plymyer, who's been working on the Wagner case for years, expressed no opinion on the state lawsuit. But he noted that if successful, it could delay county enforcement another two years.

Want to know how long this case has dragged on? Try this absurd fact on for size: Mr. Wagner has been living in his illegal house, his lawyer said, for about seven years.

"This is frustrating for the county," Mr. Plymyer said of the delays. "It's frustrating for the state, I'm sure. It's frustrating for the citizens."

Mr. Wagner's lawyer, Robert Fuoco, said the state lawsuit is frivolous and improperly interferes with a decision of an independent body, the Board of Appeals.

"There are better uses of the public's resources than continuing to fight this one man over this house," Mr. Fuoco said.The assistant attorney general handling the case, Paul Cucuzzella, told me he wasn't allowed to talk to the press. In a statement announcing the filing, Attorney General Douglas F. Gansler said: "We can't ignore the blatant violations of the Critical Area law on Little Dobbins Island and excuse them after the fact."

Sounds good. But here's the thing: We can, and do, ignore lots of violations of the law and "excuse them after the fact." People have the right to appeal, and like it or not, "retroactive variances" - which allow people to keep structures they didn't get permits for ahead of time - are commonplace.

That mechanism, intended to protect people who make innocent mistakes, has been cynically exploited by Mr. Wagner. He's a homebuilder and knew exactly what laws he was breaking and how to "legitimize" his actions after the fact, to use Mr. Fuoco's lawyerly euphemism. He did it because he knew he'd be rejected if he sought permission ahead of time.

That's why even people like me who think the county's enforcement of land-use laws is sometimes inflexible and lacking in common sense as applied to average people think Mr. Wagner should have had to tear down every inch of what he built. But he played the system well, proving again that wise saying, "Better to ask for forgiveness than permission."

"Our life would be a lot easier if the law did not allow retroactive approvals," Mr. Plymyer said. "It would be a very simple process: We would go to court, point to the law that says, 'No retroactive approvals,' and that would be the end of the case."

But the Board of Appeals granted Mr. Wagner a variance, a decision that's already been appealed to Circuit Court by the Critical Area Commission and the Chesapeake Bay Foundation.

The Board of Appeals might have to consider Mr. Wagner's variances again if the state convinces the court to apply the new Critical Area law to his case. And whatever the board decided would then be appealed yet again ... and so on. (Are you starting to see how cases drag on for four years?)

Let's be fair to Mr. Wagner for a moment. Maybe you're thinking, as Mr. Fuoco has said, that it seems kind of unfair to change the rules in the middle of the game by applying a new law to an existing house. It turns out the Court of Appeals has ruled, most recently last year in a Howard County case, that new land-use statutes can be applied to pending litigation.

In any case, for Mr. Wagner's lawyer to complain about an unfair "retroactive" use of the law is amusingly hypocritical. If you can break the law, then retroactively make your conduct legal, why can't the state also change the rules in mid-stream and retroactively make your conduct illegal? Unfair is unfair.

Maybe I'm too cynical in predicting the state lawsuit will just lead to years of filings and more dead trees. I hope I'm wrong and the state succeeds in making Mr. Wagner tear down his house. While we're at it, let's put him in jail to send a message to others who would flout the law; never mind that the statute of limitations on criminal charges expired long ago.

But realistically, I think the best we can hope for is that whatever semblance of justice the system can muster in this sordid case is produced as soon as possible.

"We want to get it to a conclusion," Mr. Plymyer said. "The people deserve that. The people deserve to see the final answer here." {Corrections:} {Status:}

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