Maryland Bar Bulletin
Publications : Bar Bulletin : August 2008

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In a small town on the Chesapeake Bay, the mailman is delivering letters. He delivers 10 letters from an agency to 10 property owners on the same street. As if on schedule, the owners go to the mailbox in unison, pick up the letters and discover that all of their pier platforms are in violation of Maryland laws and regulations and the violations may result in lawsuits and fines. It just happens that their platforms were constructed by the same contractor.

Away from the waterfront, imagine another street where a modest home sits quietly. The mailman drops a large thick envelope into the mailbox. The marine contractor who lives there had already left for work to develop his small family business of building piers and platforms. In the evening, he gets home and opens the envelope. He looks in disbelief at the 10 separate lawsuits spread out before him involving properties on the street where the owners just received the letters.
Although such a scenario did not unfold this way in real life, the result is the same. A contractor is faced with a wave of lawsuits, with the potential for more liability from any other jobs not prohibited by the statute of limitations. The property owners are faced with the task of bringing their pier platforms into compliance. Both face legal troubles, associated legal fees and, the worst part, fines. Maryland is serious about enforcement on the Chesapeake Bay. To avoid these types of situations, both property owners and contractors must be conscientious of the legal limit of construction on the Bay.

Maryland regulations restrict a private noncommercial pier to 200 square feet. The 200 square feet calculation includes the main pier section to which the platform is attached and multi-levels. Although one will not be slapped with a lawsuit for going a few feet over, anything substantially exceeding 200 square feet has the potential for an enforcement action. In addition to a violation of the size restriction, the State will allege illegal filling of wetlands. Filling of wetlands is the displacement of tidal water and depositing into the tidal water materials such as soil, sand, pilings and any artificial alteration by a physical structure. This broad definition specifically includes filling by pilings and will apply to pilings from platforms.

While the property owner is responsible for what is done on his/her property, the contractor faces more liability. Despite the fact that the contractor does not own the property, the contractor is expected to provide additional services to the property owner and bring the platform in compliance with the 200 square feet restriction. Furthermore, the law allows a $10,000 fine for each tidal wetlands violation. Depending on whether the platform violation is part of other violations, a fine against the property owner may be waived in exchange for reducing the size of the platform to the legal size. Unlike the private property owners who are involved usually in only one pier platform, contractors are viewed as potential repeat violators because they are in the business of building piers and/or platforms. Contractors are also believed to be in the best position to prevent the number of violations. Hence, a marine contractor involved in 10 alleged violations at 10 different properties faces up to $100,000 in fines. While a court generally will not order the maximum fines, and there is always room to negotiate with the State, contractors will have to pay something even if the platforms are reduced.

In the past, a complaint for a civil penalty had to be filed within one year after the offence was committed. Beginning on October 1, 2008, the State will have three years from the date it knew or reasonably should have known of the violation to file a complaint for civil penalty. This change in the law not only allows the State to seek fines for work done within the three-year period but it also allows legal actions for work older than three years, as long as a complaint is filed within three years after receiving notice of a violation. For a small contractor who does 25 jobs a year, if all the platforms are larger than 200 square feet, a heart-stopping $750,000 fine is possible after three years. Even if the time for the State to seek fines has passed, the State may still file suit against the property owner and contractor to force the reduction of the platform size. To avoid a situation like the one facing our friends in the small town on the Chesapeake Bay and the hard-working marine contractor, one must evaluate the size of the project, when the project was completed and whether steps can be taken to comply before any involvement by the State. In addition, property owners and contractors should consider alternatives such as community piers, commercial piers and additional finger piers. Letís face it, 200 square feet is not large. Gone are the quiet days on the Bay when individuals and small businesses had a good chance of avoiding enforcement actions. If you donít want to help the State fill its coffers with fines, then arm yourself against litigation by making smart choices.

Zhen Zhang is an associate at Rich & Henderson, P.C., in Annapolis. She focuses her practice on environmental law, land use and zoning.

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Publications : Bar Bulletin: August 2008

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