Let’s make one thing clear about the painfully long history of the house built without permits by Daryl Wagner on Little Dobbins Island in the Magothy River.

The primary reason that it has taken so long to resolve this matter was the refusal by the Maryland Critical Area Commission to recognize and apply settled Maryland law. The commission used the infamous white house with a faux lighthouse as the poster child for its campaign to change state critical area law.

When Wagner built the house in 2002 it was the law in Anne Arundel County (and elsewhere in Maryland) that the owner of a house or other structure built without permits had the right to seek retroactive approval of the house or structure, subject to specified sanctions.

Wagner was no hero for his unlawful actions, but you don’t have to be a hero to enjoy rights under the law.

The Critical Area Commission, supported by the Chesapeake Bay Foundation, engaged in a protracted legal battle to try to deny Wagner his right to seek retroactive approval of the house. In my opinion, they did so for reasons that had nothing to do with the effect of the house on the environment.

If concern for the Magothy River had been the primary goal, they would have encouraged prompt removal of the 3,325 square feet of impervious surface and the 3-to-1 replacement of unlawfully disturbed vegetated buffer required as conditions of the retroactive approval. That environmental remediation still has not occurred, stalled by litigation that began 15 years ago.

I believe that the commission and foundation pursued the litigation to exploit the public’s outrage and create a cause célèbre to promote changes to Maryland critical area law by the General Assembly. It is a motivation that they didn’t deny, and they achieved their goal.

In 2008, the General Assembly enacted comprehensive amendments to the law, greatly expanding the power of the Critical Area Commission. In 2014, Jon Mueller, Chesapeake Bay Foundation vice president for litigation, told The Capital that those amendments might not have happened if the private non-profit organization hadn’t fought approval of Wagner’s house.

He probably was right.

Even its success with the General Assembly in 2008 wasn’t enough for the Critical Area Commission, however. It attempted to use the 2008 changes to divest Wagner of his right to seek retroactive approval of a critical area variance.

It was another piece of litigation destined for futility, because the General Assembly had expressly provided that the changes applied only to critical area violations occurring on or after July 1, 2008.

As recounted in a 2014 story in The Capital, the Critical Area Commission and Chesapeake Bay Foundation lost every legal battle. That didn’t seem to matter, as long as they kept the controversial house in the public eye.

It is possible that they thought that they eventually could wear Wagner down by exhausting his financial capacity to fight back, forcing him to tear down the house. If they thought that, it appears that they were wrong.

The Chesapeake Bay Foundation is a private non-profit organization, but the Critical Area Commission is a state regulatory agency. They are held to different standards.

The 2008 changes to critical area law strengthened protections of the Chesapeake Bay and its tributaries. Did the commission’s strategy of using Wagner’s house as the poster child for its campaign to amend critical area laws justify the pursuit of litigation that it knew or should have known would not succeed?

How you answer that question depends on how you view the proper role of regulatory agencies, and the extent to which you believe that ends may be used to justify means.

As for my view, I believe that regulatory agencies should confine litigation to enforcement of the law and find other ways to achieve legislative goals.

[Published as an op ed by the Annapolis Capital Gazette on July 6, 2018 but not posted to my blog until December 18, 2019. The date of posting that appears above was backdated to place all posts in the order in which they were written.]