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Property Rights Spar With Conservation

Ordinance seeks a cleaner Chesapeake Bay, but draws criticism from homeowners.

Decisions next week could mean some 1,600 Arlington homeowners will find themselves tied up in county rules.

At their Feb. 8 meeting, County Board members will try to balance environmental protection with the rights of property owners, as they vote on revisions to the county’s Chesapeake Bay Preservation Ordinance.

The proposal brought mixed reactions from residents at the Monday, Jan. 27 Planning Commission meeting, when county staff ironed out details of the proposal and made their recommendation to the board. Some speakers drew comparisons to the county’s attempt at writing a Tree Ordinance, an attempt that brought cries of property rights from some county homeowners, who said the county was infringing on their rights.

Carrie Johnson, a member of the Planning Commission, said that comparison isn’t completely valid. “This is an intensely technical subject. A certain amount of confusion is inevitable,” said Johnson, who has worked closely on the Bay ordinance for over a decade.

Regardless, the board can expect to hear from homeowners who don’t want to see more restrictions on their property.

GENERAL ASSEMBLY MEMBERS adopted the Chesapeake Bay Preservation Act in 1988, which required local governments in tidal areas to adopt ordinances protecting the land lining waterways that feed into the Bay.

Arlington’s current ordinance on Bay preservation was adopted in May 1992, but new state regulations adopted last year mean the county must revise its ordinance by March 1.

Proposed changes would extend the amount of land protected under the ordinance; put more limits on what can be done with trees on land lining waterways; increase contributions from developers to a fund controlling pollution in those waterways; put stricter rules in place on removing pollution from storm water; and establish civil as well as criminal penalties for ignoring the law.

All land within 100 feet of “natural streams and open channels,” as well as land on steep slopes where runoff can affect a protected waterway would come under the new rules. Currently, there are 567 properties affected by the county’s Bay preservation law, but the new ordinance would increase that number by more than 1,000.

Owners of those properties got notification from the county that their land could be affected by the new ordinance, but few appeared at the recent Planning Commission meeting to speak out.

But those who did said that doesn’t mean the issue won’t be controversial when it comes to the board. Ware Palmer, a resident of the Yorktown neighborhood and a critic of the proposed changes, said some county residents fail to understand the significance of what the county is proposing.

“I think they just don’t know about it,” he said. Some of his neighbors are elderly people who have lived in the county for decades. They are the people Palmer says are likely to be caught off guard by the new regulations.

RESIDENTS QUESTIONED cost and time limits that homeowners will be saddled with under the new standards. “It’s easy to support something you don’t have to pay for,” said Palmer.

The ordinance is intended to improve water quality throughout the county, which benefits everyone, he said, yet the cost of maintaining the land around that water falls on the individual homeowners of the 1,600 affected properties.

If the majority of Arlingtonians support the efforts to protect the Bay, and all residents share the benefits, then the cost of enacting the ordinance should be spread evenly across the county, Palmer said.

Proposed changes do outline an appeals process for homeowners who want out from increased restrictions. Even that drew complaints at the Planning Commission meeting.

One of the new properties that will come in for regulation is Mark Carey’s home, within 100 feet of a streambed. But his house is across the street and downhill from the streambed, which is dry for most of the year anyway, Carey said.

There’s no way his property could affect water quality, he said, and even some Planning Commission members agreed. But Carey would still have to go through a complicated appeals process to be removed from the list of properties under county regulation.

Planning Commission members took his concerns seriously. “It’s easy to say this would be hopelessly bureaucratic and enormously expensive, but nobody wants that to happen,” said Johnson.

Still, County Board members will be the ones to consider an expedited appeals process. Planning Commissioners passed on the suggestion after consulting with Jeff Harn, a county environmental planner who worked on drafting the new regulations.

“I think there is flexibility there to look at [Carey’s suggestion], but I think it’s sort of a slippery slope,” said Harn. A shorter appeals process, he said, could weaken the overall effect of the regulations.

IT’S A SLIPPERY slope of a different kind that concerns Palmer though.

Lately, the county has been dallying too often with ordinances that would cut into homeowners’ rights in their own homes, he said, pointing to the tree ordinance as proof. Last year’s Tree Ordinance originally contained a provision that would let the county protect trees on private property without the owner’s consent, and without repayment for the loss of rights.

That section was stricken from the ordinance in response to citizen outcry. But the county is at it again, Palmer said, and if the Bay ordinance is enacted, who knows what regulations could come next.

People supporting the regulation have good intentions, but it’s important to keep an eye on the big picture, Palmer said. “I think they’re losing sight of their neighbors’ Constitutional rights,” he said. “If it can happen to their neighbors, it can happen to them on another issue.”

Johnson cautioned that comparisons to the Tree Ordinance may be out of line. The new Chesapeake Bay Preservation measures will apply only to new construction projects, not to regular gardening and property maintenance, whereas the Tree Ordinance would have put restrictions on any tree designated for protection.

PROPERTY RIGHTS aside, the new measures aren’t without supporters. Liz Birnbaum, a representative of the Environmental Energy Conservation Council, told commissioners her organization gave the new regulations their “wholehearted support.”

William Richardson, whose home in the Donaldson Run area will be affected by the new regulations, also urged the Planning Commission to support the efforts to protect the county’s waterways. “We obviously all love our own property,” he said. But it’s important to remember, he said, “what you do on your property has a downstream affect on others on the Potomac River and the Chesapeake Bay.”

Arlingtonians for a Clean Environment also supports the new proposal. Laura Delye, an ACE representative, said that the effects of runoff were the main problems affecting the Chesapeake Bay, and that the new regulations do a good job of addressing those concerns.

Increasing developers’ contribution is also a great idea, she said. “The current fee is laughably low.”

Representatives of area builders and developers spoke to the commission, then left when they should have stayed, said Delye.“I really wanted the developers to stay in the room for this. They’ve been getting an unbelievably good deal.”

In Arlington, it’s easy to get support for restrictions on developers, but it’s important to remember regular people will also be hurt, Palmer said.

“I’m not a for-profit developer – I’m just a guy who owns a house,” he said. “In all of the good that this ordinance is going to do for the Bay, it’s treading on individual Constitutional rights.”