Note: Board of Public Works v. Larmar

1 ELR 50053 | Environmental Law Reporter | copyright © 1971 | All rights reserved

NOTE: Board of Public Works v. Larmar [1 ELR 50053]

In the early 1960's biologists first publized the value of wetlands in coastal zone ecosystems. But proponents of preservation of Maryland's marshes were faced with a problem. The state always has claimed title to subaqueous lands, but Maryland had laws on the statute books, with progenitors dating to 1745, which were designed to encourage the development of lands under navigable waters by awarding the title to improvements to the owners of adjacent riparian land and by giving free right to them to take subaqueous sand and gravel deposits as well.¹ Such laws were the legacy of an age dedicated to the building of a thriving maritime trade.

Maryland's first attempt to renounce this legacy occurred in a 1965 Opinion of the attorney General² which narrowly and somewhat legalistically pared down the rights extended by these statutes. The right to make improvements was limited to those necessary for the protection or enhancement of access to the riparian land,³ and the right to dredge "sand, gravel, or other material" was said not to include the indiscriminate dredging of bottom material for use in bulkheaded fill projects.⁴ Moreover, the Attorney General ruled that extensive dredge or fill projects required prior permission from and payment of recompense to the Board of Public Works (composed of the Governor, Comptroller and Treasurer of the State).⁵

This opinion created more controversy than it resolved. Not surprisingly, disputes arose in Worcester County, Maryland, where Maryland's narrow barrier island lies. It is bordered by the Atlantic Ocean and Isle of Wight and Assawoman Bays and contains Ocean City, a vacation area where land is most dear and developers' desires to fill are the strongest. Sixteen days after the Opinion was issued, two bills were introduced in the Maryland legislature and subsequently enacted into law which were designed to oust state jurisdiction over dredging and filling in the Ocean City area by the establishment of a local Worcester County Shoreline Commission.⁶ In 1968 the Board of Public Works became embroiled in a political controversy (accentuated by the nomination of Governor Spiro Agnew for View President) as to whether it was guilty of a "give-away" of state resources in approving an Ocean City project which was to pay $100 an acre for land and 10 cents a ton for fill material. While the culpability of the Board remains problematic, the incident tended to show that the Board was unable or unwilling to develop effective general policies as to when fills should be permitted. More generally, real estate professionals noted with alarm that the 1965 Opinion called into question the marketability of title to significant acreage of reclaimed land, not only in Ocean City but also in harbor areas of Annapolis and Baltimore.

Maryland's second effort at wetlands protection occurred in 1970 with the passage by the General Assembly of the Wetlands Act.⁷ The new law repealed sections 45, 46, 47 of article 54, and section 485 of article 27 of the Maryland Code — those sections which more or less gave to riparian landowners the right to dredge and fill. However, these repeals fell short of curing the problem created by the 1965 Opinion. If the Attorney General was correct in his prior ruling that riparian landowners had the right to fill and take title to submerged land only to the extent necessary to protect their land or to enhance their access to navigable water, the repeal had no effect at all, because the drafters of the new law were careful to extend equivalent rights in other sections of the Act.⁸ (This result nevertheless would leave a cloud on the title of large areas of land previously reclaimed without regard for such strictures.) However, if the Attorney General was wrong in his prior ruling, and riparian landowners did in fact have the right to fill and thereby acquire title to unlimited areas of submerged bottom, the repeal raised significant constitutional problems, because it diminished these pre-existing private rights without payment of compensation.⁹

Board of Public Works v. Larmar¹⁰ is a test case arranged by the Office of the Attorney General to [1 ELR 50054] bring these issues to a head. Larmar Corporation was a perfect plaintiff, because it had a $1,000,000 investment in a completed 1964 reclamation project (Playland Property) and also had plans to engage in other extensive fills. Judge Finan, speaking for the Maryland Court of Appeals, first determined that the 1965 Opinion of the Attorney General was in error and that prior to the 1970 repeal riparian landowners had an unlimited statutory privilege to improve and reclaim submerged land (thereby removing the cloud on the title of previously reclaimed land).¹¹ Second, he determined that a distinction must be drawn between "used" and "unused" riparian rights under the pre-1970 law, and that property rights under the previous legislation had not vested until "used" (thereby permitting prospective repeal of riparian rights legislation free from constitutional requirements that compensation be paid).¹² In specific terms he decided that Larmar Corporation held clear title to the Playland Property filled in 1964, but that it had to comply with the procedures of the 1970 Wetlands Act in order to engage in future land reclamation projects.

In general terms the Larmar case removes the pre-existing statutory impediments to state preservation of wetlands. But the overall effectiveness of the 1970 Wetlands Act remains to be demonstrated. The Act merely established administrative procedures, and several problems have already arisen in their implementation. First the same constitutional provisions which raised doubts as to the validity of the repeal effected by the Act limit the administrative prerogative when imposing developmental restrictions on private landowners. In the recent Maine case of Maine v. Johnson,¹³ application of a wetlands preservation statute was struck down as a taking of private property without compensation. Second, the Act launches a very important state-wide inventory, now in progress, which will establish the boundaries of state and private wetlands and will therefore determine the future reach and effectiveness of the Act.¹⁴ State wetlands are statutorily defined as lands "below the mean high tide." The boundary between public and private holdings, borrowed from concepts developed for the English seashore, is proving difficult to plot in a sprawling tidal estuary where many marshes are subject to vaguely defined tidal influences. The line is critically important, because in areas where the state can affirmatively establish its historic claim to ownership, it may impose stringent developmental strictures without compensating private landowners. It remains to be seen how expansive the state will be in asserting ownership rights. Finally, the Act does not specifically speak to crucial questions about which wetlands will be developed, and how, but instead delegates this power to administrators, primarily the Board of Public Works. It likewise remains to be seen whether these administrators in establishing guidelines and issuing permits will prove sufficiently concerned with protection of environmental values.

1 ELR 20230, 2 ERC 1544 (Md. Ct. Ap. May 10, 1971). Professor Garrett Power of the University of Maryland, School of Law, author of this Note, is also author of the monograph, Chesapeake Bay in Legal Perspective, Federal Water Pollution Control Administration Estuarine Pollution Study Series — 1, 270pp. (March 1970), which is cited extensively by the Court in Larmar.

1. Md. Ann. Code, art. 54, secs. 45, 46 (repealed 1970) and art. 27, sec. 485 (repealed 1970).

2. 50 Opinions of the Md. Attorney General 452.

3. Id. at 464-74.

4. Id. at 457-58.

5. Id. at 472-73.

6. [1955] Md. Laws chs. 690 and 757.

7. Md. Ann. Code, art. 66C secs. 718-731 (1970).

8. See Md. Ann. Code, art. 66C, sec. 720 (1970).

9. The prohibition against the taking of private property without payment of compensation derives from both the Federal and Maryland Constitutions: U.S. Const. amend. V, XIV; Md. Const., Declaration of Rights, art. 23 and art. III, sec. 40.

10. Md. , A.2d , 1 ELR 20230, 2 ERC 1544 (1971) [No. 345, September Term, 1970, decided May 10, 1971]

11. Id. at 20233.

12. Id. at 20235. Another significant issue in the case related to whether express language in the statute exempted Worcester County from its application. See Md. Ann. Code, Art. 66C, sec. 718. Judge Finan determined that Worcester County was within the purview of the statute.

13. 265 A.2d 711 (Me. 1970). See also 1 ELR Dig. [13].

14. Md. Ann. Code, art. 66C, sec. 724 (1970).

1 ELR 50053 | Environmental Law Reporter | copyright © 1971 | All rights reserved