Several Solomons Island landowners have filed a civil suit against the county and state governments for denying what they believe to be their right to construct a commercial pier on the Patuxent River in front of their properties.

Earlier this year, V. Charles Donnelly, a landowner and attorney based out of Solomons, and the owner of an adjacent property, Solomons One LLC, submitted a joint application to the state and county that included two options for the pier. The first, according to information provided by Donnelly, included retail and/or office structures and a center for performing arts. The second, according to court documents, was for a pier that did not include commercial structures.

“We want to build our commercial pier,” Donnelly said. “We think it would be great for Solomons.”

Both the state and the county denied the joint application to construct a pier, a right Donnelly argues he and other property owners in the area have based on a 1957 agreement with the state of Maryland.

In 1957, the state of Maryland wanted to begin a highway project to make improvements to Solomons by building a new bulkhead, filling the area between the new bulkhead and land, widening Route 2, constructing public parking lots and travel lanes and building a public boardwalk and other public improvements and amenities, according to court documents. To do this, Donnelly said, the state negotiated contracts with about 37 property owners to release their oyster leasing and riparian rights between what is now Our Lady Star of the Sea Church property and the Solomons Island Yacht Club property.

Donnelly said while the state could have offered the property owners money for the rights, they didn’t, and instead promised the property owners the ability to “construct, repair and maintain any pier structure you desire outside of the new seawall ...”

To secure these rights, each property owner signed a right of way contract for each piece of property, Donnelly said. A contract provided by Donnelly between the Maryland State Roads Commission and a Solomons resident states, “It is further understood and agreed that the grantors herein, their heirs, successors and assigns retain their right to construct, maintain or repair any pier structure they may desire to erect outside the proposed bulkhead to be built by the [State Roads Commission] under this contract.”

“The contract … is very clear,” Donnelly said. “The state took the rights of these people and in return promised them they could construct any pier they desired.”

In 1998 and 2001, the state transferred to the county the deeds and the 1957 agreement the state made with the property owners, Donnelly said.

“This particular set of deeds specifically says that the transfer to the county … is subject to any of the rights reserved to the former owners,” he said.

After filing an application with the county and state to construct a commercial pier last spring, Donnelly said he made a presentation of the application in April to “all of the agencies, federal and state, that would be affected by it.”

Then, Donnelly said he received a letter from the state denying the right to construct the pier “and in effect denying the existence of this contract right.” A letter from the county denying the contract right and the right to build a pier soon followed, he said.

Chuck Johnston, director of the Calvert County Department of Community Planning and Building, said the county is not contesting the rights provided in the agreements and will comply with whatever decision the state “feels is appropriate.”

“It’s an agreement that’s between the property owners and the state of Maryland derived from reconstruction of the state highway along the water there,” Johnston said. “It’s a relationship between the property owners and the state; the county is on the sidelines of it.”

He said the county is not questioning Donnelly’s or others’ ownership of the properties.

The letter to Donnelly from the county government, written by zoning officer Yolanda Hipski, requested Donnelly provide a boundary survey for the property to clearly delineate boundary and ownership because the deeds did not support the ownership asserted in the application.

Hipski, in the letter, also stated improvements made and attached to riparian land are additions and subject to a county’s zoning power, and the county has the authority to regulate, through zoning, wharves and piers because the riparian rights are considered an extension of the shore land. She said the Solomons Town Center Master Plan and the zoning ordinance do not permit the approval or construction of the proposed pier.

The 1986 Solomons master plan identified and acknowledged the commercial rights of the property owners, Donnelly said, and in the plan, there is a page discussing commercial pier rights. Three options are proposed in the master plan, he said, on what action should be taken to “sustain and strengthen the commercial activity” in Solomons.

The first option outlined in the plan is to let people build a pier if they desire, Donnelly said. The second option is to encourage multiple property owners to collectively build a single community commercial pier. In the second option, “holders of riparian rights would be financially compensated and offered first rights to retail space on the” pier, according to the 1986 plan. The third option as written in the plan is to prohibit the construction of any pier and to compensate the “holders of riparian rights.”

Donnelly said the commissioners were “kicking the can down the road” and placed a moratorium on the construction of any new piers until “they figured out which option to pursue.” The plan states a moratorium was established “until more detailed planning of the expanded bulkhead is undertaken.”

In the fall of 2009, Donnelly said, the Solomons master plan was revised by the county, and “its ordinance and all of the references to these commercial pier rights disappeared.”

“I can tell you, I attended every one of the town meetings about the changes … [and] that was never discussed,” Donnelly said. “How come these things sort of disappeared?”

Donnelly said he appealed the county decision to deny the pier to the Calvert County Board of Appeals. The appeals board on Sept. 6 said that the zoning officer was in error and the property owners do have a contractual right to construct commercial piers, he said.

“In order to protect my rights, I’ve filed suit, along with five or six other property owners, in the Circuit Court of Calvert County,” Donnelly said. “I don’t think it’s unreasonable to expect the state and county to uphold their promises.”

The civil suit filed Aug. 22 claims there is a contract right for the property owners to build a pier.

The suit seeks a declaratory judgment to determine the rights of the property owners, according to court documents. The suit also alleges a breach of contract and anticipatory breach of contracts. Donnelly said denying the property owners’ rights to construct a pier is a breach of contract for himself and the other property owners who filed the application and an anticipatory breach of contract for those who have the right to do so.

In the civil suit against the state of Maryland and the Calvert County commissioners, Donnelly is representing himself; Solomons One LLC; Digiovanni’s Dock of the Bay Inc.; James Seymour; Prime Island Properties LLC; and Solomons Two LLC. The plaintiffs are “all the successors in title or assigns of property owners who entered right-of-way agreements with the State of Maryland in 1957,” court documents state.

kfitzpatrick@somdnews.com