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Visiting Prince George’s County Circuit Court Judge Albert Northrop ruled during a Monday afternoon motions hearing that several Solomons Island landowners do have a contractual right to construct a commercial pier on the Patuxent River in front of their properties and that there was a breach of contract by the county and state when they denied that right.

V. Charles Donnelly, a landowner and attorney based out of Solomons who submitted last year a joint application with an adjacent property owner to build a commercial pier, along with six other Solomons Island property owners, filed a civil suit Aug. 22 claiming there is a contract right for the property owners to build a pier. The suit sought a declaratory judgment to determine the rights of the property owners, according to court documents.

The suit alleged a breach of contract and anticipatory breach of contracts. In original reports, Donnelly said denying the property owners’ right 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.

Northrop ruled Monday that the property owners have a contractual right to build a pier and ruled there was a breach of contract by both Calvert County and the state of Maryland in denying those rights when Donnelly and the other property owners submitted applications to build a pier. Northrop reserved judgment on the anticipatory breach of contract and on damages, which the plaintiffs also sought; that will be determined at a court date in July.

“It’s a great victory for the property owners,” Donnelly said after the motions hearing.

In the civil suit against the state of Maryland and the Calvert County Board of 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.

During the hearing, Donnelly said he and the owner of an adjacent property, Solomons One LLC, submitted a joint application to the state and county that included two options to build a commercial pier. Both the state and county denied the joint application to construct a pier, a right Donnelly argued he and other property owners in the area have based on a 1957 agreement with the state.

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 34 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, it 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.”

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. The deeds said the transfer to the county is subject to any of the rights reserved to the former owners, he argued.

Donnelly said he filed an application with the county and state to construct a commercial pier last spring. Then, Donnelly said, he received a letter from the state denying the right to construct the pier.

Assistant Attorney General, Maryland Department of the Environment, attorney Emily A. Vainieri said during the hearing that the plaintiffs asserted a breach of contract when the wetlands application, filed by Donnelly and Solomons One LLC, was returned. There were several deficiencies that would not allow the department to continue processing the application and issue the wetlands license the applicants sought, she said, so the application was returned to resolve those deficiencies. She also argued MDE was not part of the 1957 contractual agreement between the state and property owners.

Northrop asked whether MDE was a department of the state, to which Vainieri replied it was.

Donnelly argued although he could have reapplied after resolving the deficiencies, the letter denied the existence of the contract right of the property owners, resulting in a breach of contract.

A letter from the county denying the contract right and the right to build a pier soon followed the state’s letter, Donnelly said.

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 said 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. In original reports, Hipski said the Solomons Town Center Master Plan and zoning ordinance do not permit 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. However, a moratorium was placed on construction of any new piers “until more detailed planning of the expanded bulkhead is undertaken.” Donnelly argued the moratorium did not apply to everyone as the county allowed some construction of commercial piers, including granting the extension of Stoney’s Solomons Pier by 230 feet.

In August 2009, Donnelly said, the Solomons master plan was revised, and any references to commercial pier rights were “stripped clean” from the ordinance.

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 the zoning officer was in error and the property owners have a contractual right to construct commercial piers, he said.

Associate county attorney Pamela Lucas argued during the hearing that the appeals board “exceeded subject matter jurisdiction” in its ruling and should not have heard the case at all. She argued that Hipski made the correct decision in enforcing the current zoning ordinance.

Before his ruling, Northrop said the current zoning ordinance was written after the 1957 agreement was signed by the state and the property owners and the appeals board was “absolutely correct” in finding the property owners did have contract rights to build a commercial pier. He said the appeals board found Hipski made a mistake, and “it certainly looks like it.” He said the documents in evidence “clearly show who owns the property.”

kfitzpatrick@somdnews.com