Law of the Land: Maryland General Assembly works to restore weakened Critical Areas Act

By Van Smith

Published in City Paper, March 31, 2004

Shortly after Tropical Storm Isabel’s floodwaters hit the Chesapeake Bay shoreline last fall, carrying away chunks of waterfront land and destroying vast sums of bay-side investments, the Maryland Court of Appeals relaxed key provisions of a 20-year-old law restricting development within 1,000 feet of the water (“Time and Tide,” Oct. 22). Backers of the Critical Areas Act of 1984 assaulted the court’s opinion and argued that the law had slowed the pace of coastal construction for nearly a generation, and thus, by constraining new development where storms exact the heaviest tolls, had prevented further losses from Isabel. But the judges’ blow to the law, coming from the state’s highest court, was final. The job of straightening its spine now falls to members of the Maryland General Assembly, who are now attempting to trump the court’s move with legislation to restore the law to its original ecologically protective intent.

The Critical Areas Act, which bans new construction within a 100-foot buffer zone closest to bay waters and curtails it in specified areas within a 1,000-foot strip, is overseen by the state Critical Areas Commission for the Chesapeake and Atlantic Coastal Bays. The commission’s chairman, former Republican state Sen. Martin Madden, was sworn in less than a year ago and immediately alerted lawmakers of his hope to firm up the act’s enforcement provisions. Then came Lewis v. Department of Natural Resources, a case before the high court in which Edwin Lewis, an apparel-industry executive, belatedly sought permission to build a hunting lodge and cabins on a tidewater hummock he owns in Wicomico County. By the time Lewis had applied in 2000 for a county variance to build on his site, which is in the critical-areas buffer zone, construction had already started.

The seven-member court’s 4-3 decision relieved Lewis, and therefore other landowners in the critical areas, of the burden to prove that their proposed building projects won’t harm the bay. Instead, local governments now have to show that such projects would harm the bay. That’s a tall order for governments to fill, say Madden and others who criticized the court ruling. Asking cash-strapped counties to prove the harm caused by each proposed project in the critical areas, Madden says, would effectively undermine the law’s intended goal of protecting the shoreline from damaging development. To make matters worse, the decision condoned Lewis’ course of action: build first, seek permission later, then claim the remedy–the removal of illegally built structures–is an undue hardship.

“The ruling turned everything on its ear,” says Dru Schmidt-Perkins, executive director of the 1,000 Friends of Maryland, a nonprofit coalition that advocates environmentally sound growth. “Twenty years ago, when the law passed, we said, ‘We all agreed that we’re going to protect this fragile shoreline,’ but now we have to come back and re-establish the intent of the law. I find that extraordinary.”

In the decision’s aftermath, Madden, like the many homeowners repairing post-Isabel wreckage, set about patching up the court’s blows to the Critical Areas Act. He has been working his persuasive magic on his former colleagues in the state legislature, and his efforts appear to be paying off: The legislation, introduced this session, is moving through the General Assembly process at a brisk pace with little controversy or fanfare.

“The main bill basically brings us back to where we were prior to Lewis,” Madden says. It clarifies the law’s overall intent to protect the bay and plugs the holes shot through the law by the Lewis decision. It also increases penalties–from the existing maximum of $500, to a proposed $10,000–for violations. And it gives local governments the option of asking the state Critical Areas Commission to handle tough enforcement cases. The measure was supported by a broad array of interests–everyone from realtors and builders to the Chesapeake Bay Foundation and the Maryland Association of Counties–and passed, 41-6, in the Senate on March 22. The House will consider the bill after a hearing scheduled for April 2.

“It was agreed by everyone that we needed to go back” to the law’s pre-Lewis strength, says lobbyist Bill Castelli, of the Maryland Association of Realtors. “[But] everybody needed to get comfortable that the bill wouldn’t go beyond that.”

A comfortable consensus was reached, Castelli adds, after a few, minor clarifying amendments were added. Still, he points out a cautionary note about future litigation over a restored Critical Areas Act: “You just can’t predict what will and won’t get challenged in court.”

CannaBuzz: Maryland considers universal basic income modeled on Alaska’s, but fueled by cannabis rather than oil

By Van Smith

Baltimore, March 7, 2019

As the U.S. economy increasingly fails to produce sufficient low-income jobs to prevent extreme working poverty, and as the gap between rich and poor continues to grow unsustainably, discussions have turned to mechanisms that would pay everyone a universal basic income (UBI). (Here’s a decent explainer.) In Alaska, the government has been doing it for decades, setting aside oil revenues to cut checks of up to $2000 a month to every resident since the scheme, created by a libertarian-leaning Republican legislature in 1977, started making payouts in the early 1980s.

Now in Annapolis, Montgomery County state Del. Gabriel Acevero (D-District 39) would like to see Maryland do the same thing, but funding would come from the revenue stream created by the state’s nascent, but fast-growing, medical-cannabis industry. By setting aside 25 percent of medical-cannabis revenues, the Maryland People’s Fund would be seeded for investment by the state treasurer – and eventual payouts could grow substantially with additional future funding from fully legal weed, should Maryland go the tax-and-regulate route.

As currently proposed in House Bill 1089, the Maryland People’s Fund would have humble beginnings. According to the fiscal note on the bill, prepared by the Department of Legislative Services, a single government position costing about $60,000 per year could handle the creation and maintenance of the fund, and, assuming projected medical-cannabis growth in the coming years, the fund would have nearly $4 million available for investment by the treasurer by 2024. Payouts would await the fund’s future growth into meaningful UBI source.

The fund would provide not “a hand out, but a hand up,” Acevero told the Maryland House of Delegates Ways and Means Committee on March 1, and would be “yet another transformative policy” to “put a dent in extreme poverty.”

Also testifying in support of the measure was Ioana Marinescu, an economist at University of Pennsylvania’s Wharton School of Business. She explained that some of her research addressed critics’ concerns that “if we give people free money, they are not going to be working.” But “the share of Alaskans that were working remained the same” in “every year after the dividend was introduced” in the 1980s, Marinescu explained. Meanwhile, the “positive effects” of UBI in Alaska have been measurable “in terms of health and education, especially among the poorest families,” where “improvement in mental health and decrease in drug addiction” were observed.

“This is the start of the conversation” about UBI in Maryland, Acevero told his House colleagues, stressing that the proposal “really raises all families” and “is a bipartisan issue.” Using cannabis revenues to underwrite it may be just the beginning – “we can also look at other sources,” he explained, in response to legislators’ questions.

 

 

Field of Schemes: A cavalcade of Baltimore projects, done and undone

By Van Smith

Published in City Paper, Nov. 12, 2003

It may sound crass, but development is pure and simple speculation. One can dress it up with high-minded jargon–“public-private partnership” or “urban renewal”–but the game remains a tangled, chancy knot of land deals and debt-fueling projects aided or underwritten by taxpayer dollars.

And so it’s been played in Baltimore since Colonial times, when Baltimore Town, Jones Town, and Fells Point were first laid out in the 1730s. As historian Sherry Olson writes at the beginning of her authoritative tome Baltimore, “the city itself was to be the great speculation,” with its growth driven from the start by the overlapping financial affairs of private and public interests.

Similarly, developers today commonly reduce their risks by relying on public money to build on scarce harbor-front land. This business-government alliance, then-Rouse Co. chief executive officer Mathias DeVito told City Paper back in 1995, “is a part of our culture here.”

Sometimes this development dance has worked, sometimes it hasn’t–and sometimes it turned out differently than intended, or was never done at all. The high-end residences of Mount Vernon Place, built in the 19th century, comprise what many say is the most beautiful urban space in the United States. The high-end condo complex Scarlett Place, on the other hand, looks as much like a Lego creation today as it did in the go-go 1980s, when it rose in the footprint of a closed President Street warehouse. The 6-year-old Columbus Center sits forlornly at the Inner Harbor, an unmitigated failure as a science-based tourist attraction. Next door, though, the brand-name draws at the Power Plant (Barnes and Noble, ESPN Zone, Hard Rock Café) have preserved a striking century-old relic. Harborview Towers along Key Highway broke ground 14 years ago and is only half-built, its lone high-rise bearing a cartoonish resemblance to a lighthouse, but the Howard Street Arts District, meant to revitalize the old west-side shopping district by nurturing the muses, was never built at all.

Successful or not, Baltimore’s drive to build and rebuild has been inexorable, even in the face of the Great Fire of 1904, the Great Depression and other financial disasters, the tenacious flight of jobs and residents to the suburbs, and the riots of 1968. Housing, highways, hotels, industry, office space, public transportation–it’s all gone up, in one way or another, shaped by geography (especially the city’s waterfront and watersheds) and the resolve and resources of the rich and powerful, be they in business or government. And thus we, for better or worse, have places to live, work, play, shop, and travel–places whose stories, sampled below, echo the strains and harmonies of Baltimore’s development.

The Fairfield Ecological Industrial Park 

When Baltimore was awarded a $100 million federal Empowerment Zone grant to boost jobs for poor residents in 1994, city leaders confidently called the proposed Fairfield Ecological Industrial Park the “crown jewel” of the plan. Located on a South Baltimore peninsula far from downtown, the industrial park–a polluting cluster of oil-tank farms, factories, and scrap yards–was to become an economic engine fueled by recycling and reuse; one plant’s waste would be another’s raw material. Residents of the city’s other two Empowerment Zones, one each in East and West Baltimore, were expected to fill the coming jobs, along with the handful of people still living in Fairfield, and businesses would claim tax benefits for hiring them.

Then, nothing really happened. There were planning symposiums, community meetings and strategy sessions–even enrollment in a federal program to make environmental permitting more flexible for businesses there. Much feel-good rhetoric was spun about the eco-industrial park. Then-Mayor Kurt Schmoke and luminaries from Washington used it in speeches as a model for the economy of the future. The city made ambitious promises for capital improvements–new roads, new storm drains, new curbs and lighting. In 1997, the state passed brownfields legislation to make it easier to redevelop abandoned and polluted industrial land, a step that ostensibly would help facilitate the eco-industrial park plan.

Other than the wholesale buyout by the city of the homes of the remaining 300 or so Fairfield residents in 1998, little change came about. In 1999, the eco-industrial park was withdrawn from the flexible-permitting program for inactivity and lack of interest. By 2000, the city was already quieting on the ecological part of the equation, though efforts to bring new business to the area continued. The city has spent about $5.5 million to date on road and drainage improvements in Fairfield. A granite-slab company was enticed with a $150,000 city loan to move there in 2000, the same year that the city forgave $300,000 in debt owed by the Struever Bros. Eccles and Rouse development company, which has been trying since 1989 to revive a polluted portion of Fairfield called Port Liberty. In the end, though, the eco-park concept was abandoned, and Fairfield remains the same old petro-chemical industrial park that it’s been for decades.

The Middle Branch Waterfront 

In 1724, just six years before Baltimore Town was founded on the North Branch of the Patapsco River, landowners in the area approached the legislature with plans for a town at Spring Gardens, near where the Gwynns Falls empties into the Patapsco’s Middle Branch in what is now known as South Baltimore. Their efforts were blocked by John Moale, who owned the land and preferred to mine for iron there–which he did until he died in 1740–so a first settlement was chosen instead on the North Branch. Thus, if not for Moale’s self-interest, Middle Branch would be Baltimore’s Inner Harbor today. Instead, it’s Baltimore’s other, overlooked waterfront.

The Middle Branch was committed to industrial purposes during Baltimore’s formative years in the 19th century. The Baltimore Gas and Electric Co.’s precursor in the 1850s chose Spring Gardens as the site for a gas-making plant, then later chose Westport, across the river, for a giant coal-fired power plant. The Carr Lowery Glass Co., which closed this year, first set up shop on the Middle Branch’s shores in 1889. Rubble from the 1904 fire was pushed into Middle Branch marshland, as was fill from city subway excavations in the 1970s.

The waterway’s other favorite use was recreation, as city dwellers at the turn of the 20th century chose places like Ferry Bar Park and the various rowing clubs dotting the shoreline as weekend destinations. They were always cheek-to-jowl with the smokestacks, but today the BRESCO trash incinerator is the only stack still belching.

Nascent signs of new investment have started to peek through the industrial detritus of Middle Branch. On the former Port Covington railroad yards sits a new Wal-Mart and Sam’s Club that opened in 2002, thanks in part to tax credits. Nearby, at the dilapidated city-owned marina next to the Hanover Street Bridge, a team of investors is planning extensive renovations, including a new restaurant and entertainment venue. The National Aquarium had been planning a $30 million Center for Aquatic Life and Conservation at a 7-acre city park on the west side of the Hanover Street Bridge, but it recently ran into cleanup problems.

Also poking up from the urban detritus–and the refuse and sewage coming into the Middle Branch from the Gwynns Falls and various storm drains–is an ecology of sorts. Herons, kingfishers, and even beavers frequent its shores and rotted piers, which themselves have become vegetated islands of habitat.

For the last quarter century, city planners and local architects have been calling for the Middle Branch to become the city’s “second waterfront” by creating access and amenities along its shores and promoting recreational uses like fishing, biking, and picnicking. As the city strives to solve its extensive leaky-sewer problems and also installs a debris collector to keep trash from entering Middle Branch in the first place, the degraded waterway may yet become a destination again–this time without the heavy industry.

Coldspring NewTown 

Back in 1970, when Abell Foundation President Robert Embry was the city’s housing commissioner, Moshe Safdie captured his imagination. The young Israeli-born Canadian architect had wowed the crowds at Montreal’s 1967 World Fair with Habitat, a complex of modular, mass-produced housing and retail space arranged as a self-contained community for urban markets. With residents fast abandoning Baltimore for the surrounding suburbs, Embry and other city leaders were willing to commit urban-renewal funds to try new things–even something along the lines of Habitat–in order to keep the city’s dwindling middle class. And try they did with Coldspring NewTown.

Located just south of Cylburn Arboretum between Greenspring Avenue and the Jones Falls, the project was initially designed to straddle Coldspring Lane on 370 acres and comprise 3,700 dwelling units for 12,000 people. Some were to live in “deck houses”–raised concrete, aluminum, and-stucco condominium complexes with parking beneath the homes and walkways and green space throughout–and many more in apartment buildings, including a top-entry high-rise to be built down the face of the old Woodberry Quarry. The price tag was $200 million, with $50 million coming from federal coffers. City voters approved a bond sale to insure condo buyers’ mortgages.

In 1977, the first phase was completed: 252 deck houses. They were snatched up by a mixed bag of professionals–including high-ranking city bureaucrats, architects, lawyers, teachers, doctors, and journalists. More public money was spent to lay the foundation for the project’s next phase–the NewTown part of the concept, with stores and community services–when Ronald Reagan became president and nearly turned off the spigot of federal funds that had fueled Baltimore’s urban-renewal gravy train during the 1970s. The project stalled, only a fraction completed.

Until the 1990s, when construction started on a different tack–a hundred or so suburban-style homes along Coldspring NewTown’s boundary with the Cylburn Arboretum–the isolated development was surrounded by vestiges of its failure. Mounds of earth had been moved, sewers and roads installed, foundation work laid down, but much of it was left eerily idle. Almost 900 people, however, now live in what had been uninhabited woodland. Their combined property taxes contribute approximately $500,000 per year to city coffers. That’s not much return for tens of millions of dollars in public investment–unless, of course, you’re one of the original condo buyers who scored unique urban homes for $30,000 to $60,000 with low-rate, bond-insured mortgages.

Inner Harbor East 

Three or four decades ago, Inner Harbor East–a 20-acre parcel around where the Jones Falls empties into the harbor, right next to Little Italy–was slated for a highway interchange. After that proposal crashed and burned, thanks to an epic political battle that spawned several careers (including that of now-U.S. Sen. Barbara Mikulski), a decade-long community planning process started to create a vision for the property.

What was ultimately agreed upon, in a plan made official in 1990–a cluster of upscale townhouses, a marina, offices, retail space, and an 18-story hotel–was “to balance all the interests of neighborhood life with the interests of commercial developers,” as then-Mayor Schmoke explained at the time. New buildings, all agreed, were to have low elevations and a street-level orientation, so as not to overshadow the rowhouses and restaurants of nearby Little Italy and Fells Point.

With a hard-fought plan in place, community activists rested easy. The city held up its end of the bargain, building roads and water lines and completing marina renovations, and then started to sweeten the deal for the property’s main owner–H&S; Bakery owner John Paterakis.

The favors started with $1.5 million in federal money, which was chipped in for a $9.2 million office and apartment complex where Sylvan Learning Systems is now based. Then the city subtracted first $1.7 million, then another $1 million, from Paterakis’ $4 million share of the costs for infrastructure (roads, water lines, marina renovations, etc.). Then, in 1995, the city gave Paterakis another $1.8 million in financial breaks, and deferred his $6.5 million obligation to purchase two city-owned parcels in the development area. But that was just for starters.

The real surprise at Inner Harbor East didn’t come until 1997. At that point, the city’s $150 million Convention Center expansion was completed, but the center needed about 1,000 more hotel rooms in order to support the expected growth in bookings. Two-thirds of the Convention Center’s cost had been covered by the state, so legislators all around Maryland were anxious to see it succeed.

To the surprise of many, Inner Harbor East–about a mile from the Convention Center–was chosen as the Convention Center headquarters hotel’s home in 1997 over two other closer sites. What’s more, Paterakis’ proposed hotel blew the Inner Harbor East plan out of the water–as initially approved, his hotel was to be a 48-story behemoth, costing nearly $150 million, with a third of the cost covered by public funds.

Ultimately, Paterakis’ Baltimore Marriott Waterfront Hotel rose 32 stories–not quite twice the height spelled out in the 1990 urban-renewal plan–and vocal critics have tempered their complaints since its construction was completed in 2000. After all, with a significant public stake in the project, its success significantly impacts city coffers. And now it is joined by a proposal for a $130 million Four Seasons hotel and condo complex made up of two 20-story towers, also receiving healthy public subsidies. So much for Inner Harbor East having the scale and feel of the quaint neighborhoods surrounding it.

HOPE VI 

President Bill Clinton came and went, but Baltimore will bear the mark of $150 million his administration gave to the city’s public-housing program for years to come. The money came in the form of HOPE VI grants, and they were used to demolish and replace antiquated public-housing high-rises with mixed-income townhouse developments for homeowners and public-housing residents alike. Lafayette Courts, Hollander Ridge, Flag House, Murphy Homes, Lexington Terrace, Broadway Homes–for nearly 50 years, these were familiar addresses and home to thousands of Baltimore’s poor. Now they are all gone, some of them replaced with new housing–but for vastly fewer people, and less of them poor, than were living there before.

“When the towers come down, the tenants have to go somewhere, and what they do is fan out to nearby working-class neighborhoods, using federal housing vouchers to pay the rent,” according to an article in the October issue of Governing magazine. “Most of these are aging, fragile communities struggling to stave off dysfunction themselves. A large influx of welfare families brings increased crime and disorder and sometimes threatens a neighborhood’s very survival.” In Baltimore, a study released this year by the Johns Hopkins Institute for Policy Studies found this effect to be the main problem with the HOPE VI program.

The critics aren’t saying the old high-rises–which Al Gore called “monuments of hopelessness”–were preferable. But they make the argument that big-money, big-impact moves like imploding high-rises and replacing them with mixed-income townhouses fails to address the complex root causes of poverty and all its ills. In fact, some call the program government-funded gentrification and complain that HOPE VI amounts to little more than a massive dereliction of duty for the nation’s giant public-housing system, which is supposed to support the poor. Residents lucky enough to obtain housing at the suburban-style complexes, though, find a lot to like–they’re new, clean, and generally safer than what they replaced.

The Public Rails 

Controversial highway plans to link interstates 70 and 95 near Fells Point, then build a bridge over Locust Point, fell through in the 1970s–but not before a portion of I-70 was constructed through a slice of West Baltimore neighborhoods. East-west traffic in Baltimore and those West Baltimore communities have struggled ever since. But part of the strain was meant to be relieved by rail-based public transportation, an idea that has never fully blossomed in Baltimore, despite its demonstrable boost to economic development in cities that have extensive systems.

Baltimore’s extensive trolley system had been phased out entirely by the early 1960s, thanks in part to the indirect efforts of General Motors to shut it down. The new generation of rails now consists of the 15-mile Baltimore Metro subway between Owings Mills and Johns Hopkins’ East Baltimore medical campus, and the 30-mile light-rail line between Hunt Valley and BWI Airport. Combined, the projects cost nearly $2 billion in public funds, with construction lasting two decades.

That price tag is nothing compared to a current proposal, announced earlier this year, to create a six-line, 109-mile, 122-station system for $12 billion over a period of 40 years. The extensive, expensive scheme, dubbed the Baltimore Regional Rail System, was cooked up by an advisory committee of the Mass Transit Administration and has the backing of heavy hitters like the Greater Baltimore Committee, a large and respected business group. But Gov. Robert Ehrlich’s administration is balking at its lofty ambitions, saying a rapid-bus plan may be a feasible alternative, given the tight state budget.

The chilly reception at the State House suggests Baltimore’s rail future, for now, has much more humble possibilities–such as a monorail to carry tourists around the Inner Harbor’s attractions. The idea has cropped up periodically over the last 25 years, most recently in the late 1990s, when then-Mayor Schmoke proposed a $210 million system that officials likened to the one at Disneyland. Others were reminded of the fictional Springfield, where the Simpsons, in a classic episode of the animated show, saw firsthand where monorails lead you–around and around in a runaway train sold to the public by a passing huckster. So, instead of rails for the Inner Harbor, the Greater Baltimore Committee is backing a $26-million electric tram system with dedicated lanes on existing roads. Either way, it sounds like tourists to Baltimore will have their public-transportation problems solved long before Baltimore as a whole does.

Time and Tide: Will the erosion of Maryland’s Critical Areas Act mean even bigger trouble when the next Isabel comes along?

By Van Smith

Published in City Paper, Oct. 22, 2003

Tropical Storm Isabel’s short visit exacted a pricey tribute on the Baltimore region’s shoreline. Thousands of homes were damaged and hundreds destroyed in Baltimore and Anne Arundel counties. Well water in many low-lying communities remains contaminated from the polluted floodwaters. Piers, boats, and boat-lifts were battered, broken, or carried away, while sea walls failed in some places, allowing Isabel to scour away chunks of earth from people’s properties. Bethlehem Steel’s Sparrows Point facility lost its multimillion-dollar power plant and had to close down production for six days. An Anne Arundel sewage-treatment plant also lost power, sending a hefty dose of untreated waste into Cox Creek near the city line. Baltimore City’s tourist-drawing waterfront choked on inventory losses, building damage, and missed business from Isabel’s historic tidal flood, which here and there breached the 100-year flood line. In all of Maryland, estimates of total losses from Isabel are in the hundreds of millions of dollars and climbing.

Given Isabel’s high cost and human suffering, it seems almost quaint to survey her effects on Baltimore County’s North Point State Park, a 1,300-acre tract of marsh, woodlands, fields, and bay-side frontage on the Dundalk peninsula between the Patapsco and Back rivers. But Steve Takos Sr., at 80 and after five surgeries in the past eight months, has good reason to visit on this sunny October afternoon. He first came here in 1937 as a duckpin-setter for a nickel a game, and later took tickets for amusement rides. That’s when it was Bay Shore Park, a resort on a trolley line that drew throngs from around the region to play on the water. One way or another, Takos has been working here ever since. When Beth Steel owned the property from 1946 to 1987, he served as a guide for Sparrows Point executives on lunch-hour hunting and fishing trips. Today, he’s a volunteer park ranger. His long past with the property now compels him to see how it fared in the flood.

“Holy Moses! I’ve never seen it this bad,” Takos exclaims as he stands at the foot of Ferry Grove Pier, where a cluster of waterfront buildings once sat, receiving visitors and trade from the Eastern Shore. Isabel tossed around the scattered remnants of the long-gone structures like so many grains of sand, creating high dunes of rock, brick, and Belgian block stretching back into the woods. Nestled among the mounds are hefty chunks from the shattered sea wall and pier, a section of which collapsed in a jumbled mass of cement and twisted rebar. “Thousand-pound boulders were just picked up and thrown” by the wind-driven waves, Takos marvels, adding that “this may have been worse than the storm of 1933,” which tore down the trolley line’s trestle bridge over nearby Shallow Creek.

Takos has already checked out the pounding the 1,000-foot-long fishing pier took (it’s closed indefinitely) and how storm-driven flotsam knocked the support posts of the restored trolley house out of whack. But he’s mystified by what he finds further up the park’s shoreline. Large trees toppled over a retreating bluff onto a newly expanded beach, where roughly 30 yards of high ground fell into the bay. A butte of sandy earth topped with grass and stones, eight feet high and five feet in diameter, was left standing like a sentry on the gouged-out shore. At its foot, a segment of old “corduroy road” was excavated by the bay’s storm-churned waters. Constructed of large timbers set side by side, the road served mule-drawn carts bringing building materials for the Bay Shore trolley line a century ago but has been buried for decades. The sudden reappearance of the corduroy road pleases Takos: “That’s one good thing [Isabel] did. I always said the tracks ran right through here, and there they are.”

He points to where a drowned section of Bay Shore’s sea wall pokes up through the tide a hundred or so yards offshore. Once a stout, six-mile-long barrier, he explains, the wall has since become an increasingly fragmented line of broken cement and rocks that here descends into open water, forming a shallow bay behind it. “There was all high land up to that sea wall,” he remarks while standing on the edge of the bluff. “Lost all of it in 60 years.” Takos has been around over the decades to watch firsthand as the bay swallowed up the land here. With Isabel’s help, it took another big bite.

The day after Takos’ visit to the park, on Oct. 10, a storm of another sort came down from the state’s highest court and took a bite out of the law designed to protect the bay’s shoreline. The 1984 Critical Areas Act governs development in almost 700,000 acres within a 1,000-foot strip around the Chesapeake Bay’s Maryland shoreline and virtually bans new construction inside a 100-foot buffer zone closest to the water–the so-called “critical areas” where new construction is reviewed, guided, and in some cases stopped altogether. In its final word on the case of Lewis vs. Department of Natural Resources, the seven-member Court of Appeals declined to reconsider a July decision that the three dissenting judges say hobbled the act. Unless the state legislature repairs the damage to the law–and it is expected to try in the coming session that starts in January–planning boards in the 16 bay-side counties and 45 municipalities affected by it can expect to see property owners try to exploit the Court of Appeals decision with new building proposals. Already, “it’s seeping into arguments that we are hearing on the local levels,” says Martin Madden, a former Republican state senator from Howard County who in late spring was named chair of the Critical Areas Commission charged with implementing the law.

North Point State Park’s eroding waterfront has a lesson to teach about the Critical Areas Act: Government may try to legislate development along the shore front, but nature bats last. Scientists expect the coming decades to bring more frequent and stronger storms for the Mid-Atlantic, as the bay rises in step with global sea-level rises. If the experts are right, North Point’s history serves as a graphic harbinger of what ultimately can happen to shoreline development: buildings and piers smashed by the sea, once solid ground eaten away and reclaimed by flooding and erosion. By paving the way for more bay-side development, the Appeals Court’s decision on Lewis virtually assures that more property owners will face those inexorable natural forces in the future, likely losing homes, improvements, and raw acreage in the bargain.

“The [Critical Areas] Act says it’s good to move people out of that buffer area for the bay’s sake,” says J. Court Stevenson, an ecologist and sea-level rise expert at the University of Maryland Center for Environmental Sciences near Cambridge. The law, he points out, theoretically gives the Chesapeake more of a chance to rebound from its various environmental ills by discouraging human activity directly on its shoreline. But, he adds, rising seas and violent storms “show that it’s also good to move people out of the buffer for people’s sake.”

Crafting a passable critical-areas bill back in 1984 meant pulling a few of its teeth. Thousands of undeveloped parcels were legally partitioned into buildable lots before the law took effect and grandfathered in, Madden and the Critical Areas Commission’s executive director, Ren Serey, explain in an interview, but there is no way to estimate how many or their combined acreage. And the law designates 5 percent of land as a “resource conservation area,” subject to a low development density of one dwelling per 20 acres, to be reclassified by local planning boards in a “growth allocation” process to allow more intense uses. The law’s untapped–and largely unknown–potential for future shoreline development is enormous. The only way to slow that growth is for legislators to change the law.

The law’s built-in weaknesses are the source of much browbeating from people who expected it to have done more to rein in waterfront development as its second decade begins. State Del. Joan Cadden, an Anne Arundel County Democrat and member of the General Assembly’s joint Committee on Chesapeake Bay Critical Areas, voiced this sentiment with great frustration at a July 7 committee hearing: “How do we allow them to do these things? I thought that’s what we were all about, making sure that kind of development didn’t happen anymore. I thought that is what we were here for.”

“You all need to get some teeth,” chided Calvert County Democrat Del. George Owings III at the hearing. He told the story of how novelist Tom Clancy cleared a wide swath of trees down to the waterfront of his Calvert County property, “and got a tiny little fine.” “Just pay the fine and take the view, that’s what’s happening here,” Owings said.

Madden had an answer to that. “Enforcement is spotty, inconsistent, and deteriorating,” he told the joint committee. “It’s easier [for property owners] to pay a $500 fine and freely develop the property.” His solution: “We will probably look for penalties in the area of $10,000 instead of $500. We will also work to allow the local governments to refer to the commission on a voluntary basis a violation that they feel maybe they just don’t have the ability to handle because they are overwhelmed with other issues.” Madden also pointed out that the commission has no powers to strengthen its rules or enforcement powers: “The legislature has to do that.”

Madden didn’t have an answer to a big-picture gripe from the committee’s co-chair, state Sen. Roy Dyson, a Southern Maryland Democrat: “The truth of the matter is, what has happened with the bay cleanup is that it has stalled. Million-dollar homeowners support the bay cleanup without understanding their own contributions to the problem.”

The contributions Dyson referred to are actually codified as “findings” in the critical-areas act, making it a matter of law in Maryland that human activities like building and tree-clearing and their cumulative effects harm the bay, while minimizing such activity aids in the bay’s restoration. But Dyson’s allegation of hypocrisy among wealthy waterfront property owners underscores one of the law’s most noticeable impacts: rising property values in the critical areas.

The ink had hardly dried from then-Gov. Harry Hughes’ pen before the land rush started on properties within its yet-to-be-drawn border. Prices started going up immediately, and they’ve never stopped. As a result, wealthier people have been supplanting middle-class waterfront owners. “McMansions are springing up where bungalows used to be,” an Anne Arundel County planner puts it. With the monied property owners come lawyers. From 1984 until 1999, the Critical Areas Act went largely unhindered by adverse court decisions. Then, before the Lewis decision came down, three cases hit the Court of Appeals in succession, and the unanimous rulings of the court knocked open loopholes for more development. As a result, the General Assembly in 2002 revisited and strengthened the act.

Enter Edwin Lewis and his lawyer, Raymond Smethurst Jr. of Salisbury. Working for apparel-industry giants Tommy Hilfiger and Polo Ralph Lauren had been good to Lewis, an avid hunter who’s long enjoyed the Eastern Shore at his waterfront estate. In 1999 he added to his idyllic holdings, buying up nearly 300 acres of Wicomico County marshland. In the middle of it is a five-acre hummock, a rise in the marsh with trees growing on it, where in early 2000 Lewis proceeded to build a hunting lodge, four cabins, and a shed–all of it without permits and all of it inside the 100-foot critical area buffer zone.

Construction was almost over before anyone noticed. Once the authorities caught up with Lewis, Smethurst stepped in, bringing his experience working for those accused on the Eastern Shore of breaking land-use laws. Lewis didn’t purposefully break the critical-area rules, Smethurst explained. Then Lewis sought a zoning variance to allow the lodge and one cabin to remain in the buffer area. When it was denied, Lewis had Smethurst appeal it all the way up to the top–and won, because the court ruled there wasn’t sufficient evidence to show the project harmed the environment.

To Ren Serey, who’s been the executive director of the Critical Areas Commission since 1995, the Lewis ruling was a serious blow both to the commission and to zoning laws generally in Maryland. First off, he explains, it shifted the burden of proof from the property owner to the government in assessing the potential harm a project may cause. Thus, instead of requiring property owners to show local planning boards why their projects would not cause harm, it’s now up to the government to show why the project would cause harm. “That’s new,” says Serey, “and in our viewpoint, a significant burden on local government, both in and outside the critical areas, because now they, not the applicant, have to prove the question of harm.”

The ruling also flouted “the self-imposed hardship rule,” Serey argues. Now, the fact that something has already been built without permits, and that the remedy–removing the structure–would be a “self-imposed hardship,” can be used to argue that it should be allowed to stay. “The court even said,” Serey continues, “that the fact that Mr. Lewis actually started constructing these cabins benefited everybody because he could use their construction to prove that he wasn’t causing harm.” Finally, Serey contends that the court overlooked the findings of the legislature about the cumulative human impacts that harm the bay.

Appeals Court Judge Alan Wilner minced no words in his dissenting opinion on the Lewis case, in which he was joined by two other judges. “This was not just a disagreement over a point of law,” he writes of the 4-3 ruling. “In my view . . . the majority Opinion was deliberately designed, and, unless the General Assembly acts swiftly and decisively, may be effective, not only to dismantle the critical areas program but to seriously weaken fundamental zoning and land use controls generally.” Wilner further wrote that the decision was as “an invitation to the very kind of lawless behavior that occurred in this case–ignore the law, destroy the habitat and build where the law does not permit, do it all in secret, and then claim hardship.”

The majority opinion on Lewis plays down the case’s broader impact. But within days after the Lewis decision came down on July 31, Madden recalls, “we had a hearing in Anne Arundel County where a local zoning examiner had a complaint by some neighbors that a person was building their house much larger than had previously existed within the sensitive buffer area. And it was pointed out that this person had already built it, so to tear it down would be a big inconvenience, but it is a self-imposed hardship, so be it. And the hearing examiner made the comment that, ‘Well, until three days ago, I would have thought that was the case.’ I suspect we’re going to hear a lot more of that.”

The build-first, ask-questions-later mentality is alive and well along the bay. Serey doesn’t know the total number of violations found annually, but says construction without permits is a regular occurrence and that they are usually discovered after a neighbor complains. If the Lewis ruling ends up encouraging lawlessness, as Judge Wilner predicts, and if the fines imposed for breaking the act aren’t increased, the mentality is likely to bloom, resulting in even greater investment in bay-side improvements. To Court Stevenson, the University of Maryland sea-level expert, the whole trend is ass-backward.

Stevenson is standing on what he thinks may be one of the highest points in Dorchester County, the waterside lawn of the Horn Point Laboratory near Cambridge. At the bottom of the grassy slope heading down to the banks of the Choptank River is a sea wall, with a tumble of large rocks behind it. Isabel’s flood tide breached both the wall and the rocks, allowing the bay to scour out large patches of earth and grass along the steep riverbank. Stevenson has worked here since 1972 and says he’s never seen a storm do this.

“We really can’t say what will happen with these storms,” he muses, “so that’s why talking about futures is dicey.” But he does know that the seas are warming measurably on on the Atlantic, which is fueling more hurricanes to hit the Mid-Atlantic coast. “We’re now prone to storm activity that 100 years ago we wouldn’t have seen, with hurricanes just lining up from Africa,” he says. “Isabel did this, and it wasn’t even technically a hurricane anymore. Get a category 2 or 3 hurricane in here, and really get a surge in here–instead of seven feet, say, get eight feet–and there’s going to be wholesale damage.”

So the damage from Isabel, Stevenson hopes, will be read as a warning sign to keep new development out of harm’s way. And, in planning circles, that’s exactly how Isabel was interpreted. “There was a large difference between what was forecast in terms of flooding and what ultimately came to pass,” Baltimore City planner Peter Conrad explains. “In some areas of the city and elsewhere, the water came above the 100-year tidal flood line on the maps used to determine the flood zone for insurance and permitting purposes.”

Ultimately, after a lengthy public process that has yet to begin, new maps could move that line farther inland. “We may add another half-foot or foot of elevation on all new construction” in the city’s flood-prone areas in order to reduce potential storm damage in the future. This “will take several years,” Conrad says, but its impact on shoreline development could be significant. “From the city’s perspective,” he concludes, “we want to encourage development along our tidal area, but we need for it to be safe for 50 or 100 years.”

Stevenson’s research has for years now been focused on trying to help planners like Conrad figure out what more storms and flooding could mean in the context of rising sea levels. The observed rise at the Baltimore City tide gauge is 13 inches from 1903 to 2003, but Stevenson says “most of us believe that we’re seeing an acceleration, and that the rise could be two or even three feet in the next century. Unless we get the greenhouse-gas problem under control–because that’s what’s really driving the rise, the warming atmosphere due to greenhouse gases–it’s just going to get harder and harder and harder in low-lying areas.

“But you’ve got to watch yourself when talking about this stuff,” he jokes. “If you start worrying about this too much, people start to wonder about your sanity.”

Stevenson reaches down and uses his index finger to draw in the sand a profile of a house, the shore, and the sea. “Here’s what Jim Titus says we should do,” he begins. Titus is the federal Environmental Protection Agency’s top sea-level expert, and has long been involved with how the issue pertains to the Chesapeake. “He says let the tide come up, move the houses back, and then buy shore front easements to protect the land in between. But it’s not clear where the money for all those easements will come from. I think it’s more likely that people harden the shoreline to keep the sea-level rise out, with sea walls or bulkheads. And that causes all sorts of ecological problems.”

“There are choices that sea-level rise confronts us with,” Jim Titus explained during a seminar at a national coastal-zone management conference held at the Baltimore Convention Center in mid-July. “But they boil down to this question: Are we going to hold back the sea, or are we going to let our wetlands migrate inland?

“In Maryland, property owners can hold back the sea where they choose to hold back the sea,” he continued. “The general policy seems to be to encourage armoring [the shoreline] and discourage coastal development.” But, he pointed out, conservation easements in Maryland–legal arrangements that, for a price, take away development rights from property owners–don’t affect the right to armor the shoreline, so there would have to be a change in the law to use easements to allow inundated wetlands to re-establish themselves further inland. “We simply haven’t yet completely decided what we intend to do,” he concluded.

Kerry Kehoe, who recently came to the Maryland Department of Natural Resources to direct its coastal program, shares Titus’ and Stevenson’s concerns about how to handle sea-level rise. But he also foresees people’s reactions when they get warning signs that the seas are coming too close to home. “Storm surges and flooding will send a message to get out of there,” he predicted at the coastal conference. “The physical impacts will start to make it obvious–erosion, flooding, higher water tables causing contaminated drinking-water supplies.” Along the undeveloped Chesapeake shoreline, Kehoe points out that “there are still plenty of potential wetland-migration areas” where bulkheads have not been constructed. “The bad news is those very same areas are under substantial development pressure–that’s where people want to live.”

That’s also where the Critical Areas Act was intended to limit growth and development. But, in Stevenson’s estimation, the law’s constraints have had limited–and sometimes dubious–effects. “I think it’s had an impact,” he says with a note of irony. “I’m not so sure it’s all positive, though.” The first thing that comes to mind is the land rush back when the law first passed, which created all those untold thousands of grandfathered tracts. Then there’s the issue of wealth and class: Rising land values in the critical areas mean the waterfront is less and less available to the working-class people who have traditionally lived along the bay. And finally, he points out–and Serey and Madden confirm this–the fact that the 1,000-foot critical-area line doesn’t move inland with sea-level rise, but remains based on wetlands maps drawn in 1972. Although the 100-foot buffer line does shift with rising sea-level, property owners are entitled to bulkhead back to the 1972 tide line.

“The act largely ignores the unavoidable issue of sea-level rise,” Stevenson contends, “and ultimately that’s going to reduce the amount of land subject to it.”

“In the long run,” Stevenson says of the Critical Areas Act, “it had a lot of good ideas, good concepts” about what harms the bay and the human role in that harm. But he says it “hasn’t really delivered” the goods in terms of lessening human impacts. “I don’t know exactly, but it seems to me it hasn’t stopped much development, even in the buffer zone.” He’s waiting for local governments to use up their growth allocations–something that Madden says is years away–because then, presumably, much of the new construction on vacant shoreline will cease. “When the growth allocation really runs out, that’s when I’ll be happy,” he says

Madden, though, defends the act’s impacts. Despite the grandfathering and the growth allocations, it still has significant muscle, he says, and the legislature is always free to strengthen however it sees fit. “We’re going to look for Senator Dyson and Delegate [Barbara] Frush to take the lead on that, based on our recommendations.” Dyson and Frush, the oversight committee’s co-chairs, did not return phone calls about possible critical-areas legislation to be introduced in the coming session.

In the meantime, Madden explains, about 2,000 projects go through critical-areas review each year, a process that sends the commission’s staff through a proposal’s details with a fine-tooth comb, looking to make sure the design and construction minimizes harm to the bay. And that process, along with the more stringent requirements in the buffer zone, has made for more sensible, if not less, development.

“It is going to be interesting,” Madden says, “to compare the damage from Isabel to affected properties that were built after the critical area law took effect, as opposed to properties that existed prior to that. Because I think you’ll find that the development that took place after the critical area law, where we protected the buffer as much as possible while still accommodating growth, had much less damage than pre-existing properties that were built within the buffer right up to the shore. There are good environmental reasons to have a buffer . . . but I think Isabel shows that there are good, sound economical reasons to have a buffer also.”

The question is, how protected is that buffer after the Lewis ruling? And if it is in fact gutted, will expensive, newly developed properties soon face the fate of the thousands of homes hit hard by Isabel–and, in the long run, the fate of Bay Shore Park. Sea-level rise and hurricanes will ultimately rule the shape and scope of future shoreline development, but for now, repeats Madden, shoring up the Critical Areas Act is “up to the legislature.”

Brown to Green: A South Baltimore brownfield becomes a rezoning test case

By Van Smith

Published in City Paper, Apr. 30, 2003

Race Street in South Baltimore has long been a demarcation line between working-class homes and bygone blue-collar jobs. Classic Baltimore rowhouses, block after tidy block of them, extend to the east of Race Street, while to the west lies the Spring Garden Industrial Area–acres of underutilized industrial land, some still productive, much of it vacant or cleared of structures, and a large hazardous-waste site where hundreds of tons of toxic waste were dumped decades ago.

After an April 24 hearing, the Baltimore City Planning Commission recommended breaching this divide by rezoning a two-acre heavy-industrial tract at Race and Ostend streets for residential development. If all goes as planned, the developers–1300 Race Street LLC–hope a warehouse on the site will be converted to condominiums, and that 18 townhomes with two-car garages will rise along the property’s eastern edge. With the commission’s thumbs-up, the proposal will now go before the City Council for final consideration.

The case is the first application of a developing framework of guidelines the city plans to use evaluate rezoning such brownfields for nonindustrial uses. “It’s an old Baltimore situation where industry and rowhouses come right together,” explained city planner Chris Ryer during the hearing. The quasi-public Baltimore Development Corp. (BDC), which works to spur economic growth in the city, has “started to develop some criteria for how we would evaluate these parcels” for redevelopment, Ryer continued. Known as the “Industrial Land Use Analysis,” the framework is not yet finalized but is far enough along that it could be applied to the Race Street conversion.

BDC executive vice president Andy Frank, in an interview before the hearing, explained that brownfields such as the Race Street parcel tend to lie fallow until moneymaking uses are found for them–and more money can be made from residential uses than from offices, retail, or industry.

“In many cases,” Frank said, “it is not unlikely that an industrial reuse will generate enough revenue to underwrite the cost of redevelopment. Some sites, though, are so dirty that they would never be anything else than industrial.”

At the Race Street property, the developers are seeing green in the potential for more homes in what has long been a hot market for housing in South Baltimore. Stephen Strohecker, a realtor and partner in 1300 Race Street LLC, says the new townhomes will likely sell for about $350,000, a somewhat higher price tag than the $250,000 or so that nearby rowhouses cost.

“Significant changes have come to South Baltimore since 1971, the last time the city undertook comprehensive rezoning,” Ryer told the commission, “but not enough change in the immediate area to justify” large-scale conversion of industrial land. “But BDC’s new criteria did give justification to extend an existing residential zoning category across the street to this property.”

The criteria, Ryer explained, are meant to evaluate the selection of marginal or historic industrial properties for rezoning “as long as the conversion does not compete with other activities in the area,” and, just as important, that it doesn’t start “a domino effect” in which more and more of Baltimore’s industrial land is converted to other uses, leading to a scarcity of industrial zones which might someday be needed again.

“Generally, the economy of Baltimore is changing, and has been over the last 20 years,” Ryer’s boss, city planner Susan Williams, told City Paper before the hearing. “We still have a manufacturing base, but we have other kinds of demand for land use–mixed-use, offices, commercial space. And the old loft-style structures of the past are no longer as useful for the industrial marketplace–they don’t want to build up, they want to build out. So there has been creative reuse of these older buildings.” As examples of this, she pointed to new or upcoming projects like Brewers Hill in Canton, Tide Point in Locust Point, and Clipper Mill in Woodberry.

Actually, as Frank points out, the trend goes back even further. The city’s tourism-encrusted waterfront all used to be industrial land, from Harborview on the south side all the way around the Inner Harbor East and Harbor Point on the north side, and has been converted to other uses since the early 1970s, by which time industry had largely abandoned the Inner Harbor.

“So it is not a new issue,” Frank said. “But it is new in that we don’t have as much industrial property to convert anymore, and there have been worries that there may be none left if we need it. So, about a year and a half ago, we decided to pause and get a good, comprehensive look at the demand for industrial property and determine what factors we should consider in converting more land.”

BDC hired Bay Area Economics, a San Francisco-based economic consulting firm, to come up with guidelines; the company completed a draft set of criteria last fall. “It’s still an evolving policy,” Frank explained. “But we tested the Race Street property against the criteria and we’re comfortable that it’ll be a better use. The main question was, would nonindustrial use negatively affect adjacent industrial properties? And we decided it wouldn’t.”

The surrounding residential community has voiced its support for the Race Street rezoning in letters to the Planning Commission. “The reaction has been positive,” South Baltimore Improvement Committee President Amy Grace says. “Any time we can turn an old, run-down, vacant property into something positive for the community, it’s a good thing.”

The Idea Man: Creditor says city rehabber is long on vision, short on cash

By Van Smith

Published in City Paper, Jan. 22, 2003

Last September, developer Charles Jeffries was on the cusp of winning historic-district designation for a large swath of East Baltimore (“Prophet or Loss?,” Sept. 25, 2002). He won, so nearly 5,000 structures in the newly dubbed Broadway East/South Clifton Park Historic District are now eligible for tax credits. The new district includes Perlman Place, Jeffries’ long-stalled housing-rehab project that landed him and his company on the losing end of a court judgment in 1999 for bilking three working-class women in a housing scheme. Jeffries hopes the designation will spur a critical mass of investment in the declining neighborhoods and is hard at work attracting new players to this long-decaying part of the town.

The effort, though, has left Jeffries on the wrong end of another lawsuit–this one from Goodwin and Associates of Frederick, the cultural-resources management firm that prepared Jeffries’ historic-district application at a cost of $47,000 but has yet to receive payment.

“He called me literally daily in December to give some reason or another why he hadn’t paid,” recalled the firm’s president, Chris Goodwin, in a recent telephone interview. Then, Goodwin says, “he pulled a disappearing act and dropped off the face of the earth.” When Goodwin couldn’t get a return phone call from Jeffries, and then couldn’t locate him at the Cathedral Street address on record with the state as the principal office of Jeffries’ Center Development Corp., he says he “smelled a rat” and asked his attorney to draft and file the lawsuit. On Jan. 18, Goodwin says, Jeffries was served the lawsuit at his house in Guilford.

Interviewed by phone on Jan. 16 (before being served the papers), Jeffries said he was unaware of the lawsuit and was not trying to avoid payment or evade service–behavior that was noted of Jeffries during the Perlman Place litigation. “I have lines of credit with all sorts of people who pay bills,” he explains, and this one “should have been paid. I think you are trying to paint some picture that I don’t pay my bills. I have never walked away from a debt that I owed, ever.”

Though Goodwin is pursuing payment from Jeffries, he remains a fan of the developer’s core idea: to redevelop long-abandoned urban tracts. “If you look at East Baltimore, the decay is palpable,” he muses. “And, God, what a housing stock–if it only could be brought back. The potential is huge; Charles Jeffries is right about that. But it requires capital, and I’m skeptical he has what it takes.”

Since winning designation for the new historic district, Jeffries has continued to be active on several development fronts. In November, he and several partners, including the Baltimore Cable Access Corp., the Arena Players, and Baltimore developer Jerry Lymas, announced their vision for the Media Arts Network School. The planned $450 million development would create a campus, a theater, and student housing in an area that now contains scores of blocks (including Perlman Place) that resemble post-war Dresden. Jeffries says his company is also “literally on the verge of starting” renovation of the long-abandoned, 115-year-old Lake Clifton gatehouse, a dilapidated city structure where he hopes to house Center Development Corp.’s offices.

Also in the works is what Jeffries calls a “complicated transaction” to transfer ownership of Mount Vernon’s historic Winans mansion from Agora Publishing to an anonymous donor represented by Jeffries, and finally into the hands of the University of Baltimore. The long-pending deal was first announced nearly a year ago. Bill Lynerd, UB’s vice president of university advancement, says that, “at least according to Charles, we are going to nail this thing very shortly.”

Fire Storm: The 2001 Baltimore tunnel fire still smolders

By Van Smith

Published in City Paper, March 26, 2003

For three days in July 2001, chemical tankers and railroad cars filled with paper burned out of control in a downtown tunnel under Howard Street. As the inferno’s smoke cleared, the National Transportation Safety Board (NTSB) started its work to determine the fire’s origin–an ongoing, secretive investigation whose long-awaited preliminary results, at last word, are expected to be released sometime this spring.

Unbeknownst to most, though, in September 2001 the Nuclear Regulatory Commission (NRC) also began studying the Baltimore fire and obtained privileged information from the NTSB investigation. The NRC hoped to lay to rest a controversial question: Would a nuclear-waste rail cask, a heavy-duty container designed to move spent nuclear fuel around the country, have leaked any of its deadly contents had it been in the hottest part of the Baltimore tunnel fire? In February, the NRC’s results were released: The agency predicted that a cask would have survived intact. But not everyone is convinced by the study’s findings.

“The NRC’s report is an attempt to downplay the real-world conditions that might actually cause casks to fail and release radioactive materials, as we believe the Baltimore rail-tunnel fire would have done,” Robert Halstead told City Paper after the report was released. Halstead is a consultant for the state of Nevada’s Agency for Nuclear Projects, which has battled the NRC for years over nuclear-waste transportation issues.

Halstead was one of dozens of nuclear-waste safety experts, nuclear industry officials, engineers, and citizens gathered at a March 6 public meeting at the NRC headquarters in Rockville to debate the protocol the NRC will use to determine transportation-cask safety and durability. The Baltimore tunnel fire was very much on the agenda.

Views on the risks posed to nuclear-waste transportation casks by an event like the Baltimore fire have been divided since news of the fire spread across the country in the summer of 2001 (“Hot Line,” Sept. 12, 2001). At the time, President George W. Bush had yet to sign off on a plan–which he did approve last year–to ship the nation’s 70,000 tons of spent nuclear fuel to a central repository at Yucca Mountain, Nev. Opponents–primarily anti-nuclear activists and the state of Nevada–saw in the tunnel fire a real-life episode that could be used to fight the Yucca plan.

Critics pointed out that the Howard Street tunnel was initially on the NRC’s proposed waste route from Constellation Energy’s Calvert Cliffs Nuclear Power Plant in Southern Maryland–where a growing inventory of more than 930 metric tons of spent fuel is stored– to Yucca Mountain. They said that if the tunnel fire had burned hot enough and long enough to damage a cask carrying spent fuel, there would be reasonable grounds for concern that potentially deadly radioactive material might be released. Though scale-model tests and computers have been used to gauge the casks’ strength, critics argued, the casks have never been tested on a full-scale basis. So who can say for sure that a real cask could have survived this very real fire?

Yucca proponents, primarily the nuclear industry and its regulators, dismissed such notions as fear-mongering. They stressed the strength of the casks, asserting that the computer models and scale testing provide enough assurance that a 130-ton rail cask will meet the regulatory standards. They also touted the industry’s long record of safety in nuclear-waste transportation: about 3,000 spent-fuel shipments over nearly 40 years, and only eight accidents, none involving a release of radioactivity.

Right around the time the NRC started to gather data about the Baltimore fire, the Sept. 11 terrorist attacks occurred, ushering in a new era of heightened security around the nation’s nuclear-power complex. A video of a 1998 Aberdeen Proving Ground test was obtained by City Paper in February 2002, showing the impact a portable missile warhead would have on a rail cask–it would blow a hole right through the cask wall to possibly catastrophic effect (“Hot Load,” Feb. 20, 2002).

Subsequent concern over the safety of nuclear waste shipments have led to some changes. The Howard Street tunnel has been removed from NRC’s maps of proposed routes for nuclear waste bound for Yucca Mountain; new maps show that Calvert Cliffs’ shipments may instead move by barge up the Chesapeake Bay to the Port of Baltimore. And more significantly for nuclear-waste safety advocates nationwide, the NRC now plans to conduct full-scale transportation-cask testing. As a result, the March 6 NRC hearing was devoted to debate over how to conduct testing, including much heated discussion of the Baltimore tunnel fire.

“St. Patrick’s Day will mark 25 years since the first time that I got involved with the full-scale cask testing issue,” Halstead said by way of introducing himself to attendees. “And in all that time I can’t ever remember the NRC holding a meeting solely for the purpose of discussing full-scale testing. So this is a special occasion.”

Halstead handed out a paper he’d presented a week earlier at a conference in Tucson, Ariz., that recommended comprehensive full-scale cask tests in light of the Baltimore fire’s intensity. “Analyses of that accident by Nevada consultants and by the NRC both conclude that fire temperatures in the Baltimore rail tunnel reached or exceeded 1,500 degrees F,” the paper points out, “although estimates of the fire duration at this temperature vary from seven hours to more than 24 hours.” The regulatory test a cask must pass for certification, meanwhile, is 1,475 degrees Fahrenheit for a half an hour. The difference between the estimated conditions in the Baltimore fire and those in the regulatory standard is so great that Halstead proposes a cask simply be destroyed by fire to see how much heat one can take for how long before it breaks.

Halstead cited a study released in September 2001, conducted for the state of Nevada by Radioactive Waste Management Associates of New York, that predicted that a cask would have failed in the Baltimore fire, causing a release of radioactive cesium gas and the contamination of downtown Baltimore.

As for the NRC’s study, which was a computer simulation conducted by the federal National Institutes of Standards Technology (NIST) based on privileged NTSB information about the fire and data from a staged tunnel fire in West Virginia a few years ago, Halstead said, “We dispute the assumptions and the findings.

“Nevada consultants were barred from attending NRC meetings regarding that report, which sure as hell undermined our confidence in the proceeding,” he said of the February report (which was actually completed last August). He went on to say that the only way to gain “confidence in this report is for the NRC to bring the authors” from NIST in for “a very detailed technical review.” A few heads nodded at Halstead’s suggestion, but otherwise his call to haul in the NIST team for questioning went unheeded.

“The Baltimore fire ought to be the standard that we look at to see if the thermal test reflects what can happen in the real world,” Halstead said. “Unfortunately, instead of having a technically objective and unbiased [NRC] report that captures to the best of our ability what happened in that tunnel, we now have a report that we believe is seriously deficient both technically and in terms of public confidence.”

Kevin Kamps, head of the Nuclear Information Research Service, a non-profit organization that also opposes the Yucca project, picked up on Halstead’s criticism when his turn at the microphone arrived. “I was amazed,” he said of the NRC report, “that the impact of the fire on the radiation shield in the container was beyond the scope of the analysis.” The radiation shield is an inner layer of material, which usually includes lead, that surrounds the packages of spent fuel cells and is a key protective element in a cask.

But Chris Bajwa, the author of the NRC report on the Baltimore fire and an engineer with the NRC’s Spent Fuel Project Office, explained that his study “assumed that after the fire the [radiation] shield was gone, and the dose rates they calculated [from the resulting release] were within the regulatory limits.” Thus, he said, the study shows that “the consequences of a spent-fuel cask being involved in a fire such as the one that occurred in the Howard Street tunnel are minimal. Our conclusion is that there would be no radioactive release.”

At this, Halstead dug in his heels. “It’s clear we’ve got a situation here where two different parties evaluated this fire using different sets of assumptions, and both stand by their findings,” Halstead said in his closing remarks. “As is so often the case in these kinds of disputes, the question is in the assumptions.”

One reasonable assumption, Halstead joked to a reporter as he gathered his papers and prepared to leave, is that the dispute over the Baltimore tunnel fire isn’t likely to let up soon.

Doris McGuigan: 1929-2002

By Van Smith

Published in City Paper, Nov. 20, 2002

The Brooklyn-Curtis Bay community in South Baltimore lost an ardent environmental activist Nov. 10: Doris McGuigan, a gravel-voiced grandmother who ardently believed that chemical-laden air in South Baltimore was poisoning area residents. She died peacefully at home while taking a nap, the victim of an apparent heart attack.

“She was a real force to be reckoned with,” says Terry Harris, a local environmentalist and attorney who worked with McGuigan in many battles over the years. “She was absolutely convinced of environmental problems in her own part of the city, and wouldn’t let anyone tell her otherwise–in some cases single-handedly keeping industry at bay down there.”

McGuigan, 72, first started fighting industrial pollution in the early 1970s, when her mother died after struggling with leukemia. Believing the sickness was due to chemical pollution in South Baltimore, she embarked on 30 years of activism that included battles against incinerators, for better emergency planning, and for relocating the residents of Wagner’s Point, a now abandoned and demolished neighborhood that sits amid industrial-tank farms on the Fairfield peninsula.

Even her adversaries held her in high regard. “You could not ignore Doris, and you could not ignore her point of view,” says Dave Mahler, environmental manager for Sasol North America (formerly Condea Vista Co.), which has a large facility in South Baltimore. “The chemical plants learned that you have to be pretty much open with Doris, and there was a fair level of trust between them and Doris that built up over the years as a result of being open and honest. If there was a problem, or an incident of some sort, it was always a good idea to discuss it with Doris.”

Mahler, who visited McGuigan at her Third Street home on several occasions, was sometimes on the receiving end of her gruffly stated worries about environmental impacts. “Her biggest issue was her concern about the mixtures of all these things in the air,” he says. “While we’ve all made significant emissions reductions over the years, she wanted to know how they reacted with one another once they were released. It’s a question that no one could really answer very well.” But, he continues, “I had a lot of fun with Doris over the years. I wouldn’t take any of it back.”

District Court Judge Timothy Murphy, who formerly represented South Baltimore on the City Council and in the state House of Delegates, respected McGuigan’s self-taught mastery of intricate environmental issues. “Actually, she was an educator,” Murphy says. “She taught herself so much about environmental problems and the impact of various chemicals, and, once she had mastered something, then she would bring it to us. And she had an interesting manner–competitive, without being confrontational–that left no negative impression, even on the industry folks. She wanted them to be good neighbors, and she was a good neighbor back.”

Joining McGuigan in fights over the years were four other Brooklyn-area women, known as “the Environmental Grandmas”: Delores Barnes, Mary Rosso, Jeannette Skrzecz, and Anna Bonenberger. Skrzecz and Bonenberger also have passed away over the last few years, and Barnes has relocated, so McGuigan’s death leaves only Rosso, who recently lost re-election to the state House. “Out of all of them,” Harris says, “Doris was the real leader.”

Prophet or Loss? Controversial developer pushes ambitious East Baltimore real estate proposal

By Van Smith

Published by City Paper, Sept. 25, 2002

Real-estate developer Charles Jeffries Jr.’s decade of working in Baltimore has been marred by turmoil. His million-dollar housing raffle was canceled amid a state probe in 1994, and he was pinned with a $350,000 court judgment in 1999 for bilking three low-income women who bought into Perlman Place, his stalled East Baltimore rowhouse renovation project, his only redevelopment venture to date (“The Shell Game,” City Paper, June 9, 1999). So far, his heavily hyped promises for rejuvenating old rowhouse properties have produced little more than high-profile missteps.

But Jeffries, a 36-year-old Chicagoan who came to Baltimore after getting his MBA from University of Pennsylvania’s Wharton School of Business, is up to his ears in ambitious new plans for aged East Baltimore real estate. It won’t be long, he predicts, before people finally come to see him not as a flimflam artist but as a visionary–someone who helps create success in long-abandoned tracts of nearly unsalvageable housing stock, where naysayers could foresee only continued failure. As his recent activities attest, Jeffries is a man on a mission.

Jeffries’ proposal to turn 110 city blocks into the Broadway East/South Clifton Park Historic District, thereby making the owners of 4,866 structures eligible for state and federal tax credits, will be reviewed at hearings of city and state officials (on Oct. 8 and Oct. 1, respectively). On Sept. 23, Perlman Place–a single block of East Baltimore rowhouses, just north of North Avenue between Patterson Park and Collington avenues–won designation as a city historic district, so local tax credits are now available for Jeffries’ slow-moving project there. In August, the city gave Jeffries a lease for Clifton Park’s 115-year-old Lake Clifton Gatehouse, where he plans to house his latest company, Center Development Corp. And in February, Jeffries emerged as the anonymous “donor’s representative” in a complicated and as-yet-incomplete transaction to put Mount Vernon’s historic Winans mansion, now owned by Agora Publishing, into the hands of the University of Baltimore.

Despite the court record, Jeffries denies any guilt whatsoever about the problems at Perlman Place and talks excitedly about his imminent success. While visiting the gatehouse recently, he seethed with indignation over the treatment he has received at the hands of lawyers and reporters. The lawsuit, he claimed, was “extortion” and the press coverage “the worst kind of muckraking.” In the next moment, he delivered one of his fervent, staccato speeches about the promise of “making neighborhoods come alive” and the “extraordinary opportunities” East Baltimore’s dejected neighborhoods will attract. “All the bad press that’s happened,” he mused before declining to allow a photographer to take a picture of him, “and I’m still here.”

If his vision is realized, Jeffries says, whole sections of East Baltimore, long abandoned except by escalating violence, will experience “snowballing” private investment totaling $450 million by allowing property owners to exploit tax credits available for historic properties. This push will feed off of the momentum created by the coming expansion of the Johns Hopkins medical complex–“only a mile away from Perlman Place,” he points out. The “full schematic design” of his plan will be the subject of an upcoming press release, which will unveil all the pertinent details. In the meantime, he looks forward to being a beneficiary of such a boon, along with many others who support his plan–not just himself and the seven unnamed partners he says are in on the effort, but everyone who is smart enough to recognize the investment potential of East Baltimore rowhouses.

“We’re very excited,” Jeffries enthuses on the phone two days later. “I’m happy to be in the company of these great and well-known parties,” who he says will be joining Center Development in the “extraordinary effort.” The company, which in August changed its bylaws to allow the sale of stock, now has “a lot of investors,” he says. “We’re a lot bigger than we were a few months ago.”

Meanwhile, the Jeffries company behind the housing raffle and Perlman Place, the Center for Affordable Housing, was declared forfeit by the state in 2000 for failure to file a property-tax return, and it still owes Walbrook Mill and Lumber a total of $8,091.67, according to district-court records. Jeffries dismisses such judgments as trivial, pointing out that legal baggage is common among reputable investors, “but Charles Jeffries is the Antichrist” even though he’s bringing hope to “vacant properties and burnt-out neighborhoods.”

Perlman Place has been host to little but violence over at least the last decade. Two murder suspects have been arrested there: nun-strangler Melvin Jones in 1993 and Cherry Hill’s Ulysses Shawn “Sleepy” Daniels in 1997. In 1998, Donte Antonio Kennedy of Perlman Place was wanted for attempted murder. And in 2001, resident Morris Graham was murdered on Greenmount Avenue.

These tragedies unfolded amid buildings that tell repeated stories of failure sold to investors as opportunity. Owners of Perlman Place properties have included:

· Amerifirst Mortgage Corp., a New York-based brokerage that lost its Federal Housing Authority lending privileges for three years beginning in late 2000, when the federal Mortgagee Review Board also fined it $100,000 for unscrupulous lending practices. This, after Amerifirst in the late 1990s teamed up with the Baltimore Urban League, the United Minority Contractors Association, and the Circle of Friends of American Veterans in schemes ostensibly designed to create low-income homeownership opportunities.

· Wayne Phillips, a jazz drummer who reportedly relocated to Arizona in the 1980s after his notorious inner-city investment practices caught up with him–but not before he became a nationally televised real-estate and government-giveaway promoter who drove around town in a Rolls Royce with the license plate “wealth.”

· Former Gov. Marvin Mandel crony Norris Ashe, who made a fortune in the 1980s teaching the throngs who attended his real-estate seminars how to make a killing off cheap urban housing.

· James “King” Corcoran, a former University of Maryland and NFL football player made famous in the 1960s when he quarterbacked a Maryland victory over the Naval Academy squad led by future NFL great Roger Staubach. In 1992, he faced charges in Montgomery County for taking investors’ deposits for sales of Baltimore rowhouses he didn’t own.

Corcoran did own 1903 Perlman Place, though, which he sold for a dollar in 1998 to Jeffries’ Center for Affordable Housing, which resold it the same day for $38,000 to the current resident, Robert Willie. Willie says he’s happy with his home–two rowhouses folded into one, with a small rooftop deck. He adds that he is even happier with it now that the City Council has given Perlman Place local historic-district status.

Perlman Place’s history begs the question: Is Jeffries’ engineering yet another public-incentive-driven housing scheme that, like the earlier ones, will produce little more than new puzzles for title searchers? Jeffries says no–the previous horror stories were investor-driven, he points out, but his ideas are based on creating homeownership rather than absentee landlords.

“His intent is good,” city Councilman Bernard “Jack” Young (D-2nd District) says of Jeffries, but adds that he is “slick” in selling ambitious ideas. Young supported the Perlman Place historic designation but is “concerned over how long it has stalled.” He is less comfortable with Jeffries’ larger plans–“he’s in over his head,” the councilman says–and says he won’t support any more projects until Perlman Place is completed “and he can prove that he can do this.”

The University of Baltimore’s vice president for university advancement, Bill Lynerd, who is familiar with Jeffries’ pending Winans mansion transaction, says he is aware of Jeffries’ troubled track record but finds him “very earnest and sincere. And so far, we have no reason to doubt the validity of the project or his sincerity.” Especially, adds Lynerd, because there are “a lot of parties involved in this, very reputable partners” whose names he is not free to disclose. The deal, he explains, “involves historic-tax credits through a donor-advised fund,” and if it passes “due diligence” and goes forward the donor will never be known.

When told of Jeffries’ involvement in the Winans mansion deal, Richard Gordon, attorney for the Perlman Place plaintiffs, made two quick points. First, he wondered how thorough UB’s due-diligence effort could be since “they haven’t contacted me” about the high-dollar judgment that arose from Jeffries’ only project. Then, suggesting a pattern, Gordon asserted that Jeffries “had an anonymous donor for Perlman Place properties that never materialized.”

Jeffries will say nothing more about his involvement in the Winans mansion negotiations, but he freely waxes poetic about the future of Baltimore. “This is new,” he says of the urban real-estate landscape. “Baltimore’s in a renaissance, and all the boundaries are breaking down, changing peoples’ perspectives on where to live and go.” Why his endless promotion of the investment value of derelict rowhouses? “To change the world,” Jeffries blurts through the phone with palpable zeal. Then, downshifting from the grandiose, he claims to be “just a small piece of the very big pie of what’s happening in East Baltimore. I’m happy to be a part of it.”

Robed and Ready: Sitting judges get elected the easy way

By Van Smith

Published in City Paper, June 26, 2002

Given the rough-and-tumble nature of job security in elected office, incumbent politicians spend much time and energy crafting strategies for winning elections. Here’s a nearly foolproof scenario: Run on a well-financed slate of incumbents filing in both parties’ primaries, all but guaranteeing slots on the general-election ballot should a challenger emerge. That’s what Baltimore’s sitting Circuit Court judges do, and it’s worked for a generation now. Voters haven’t sent a new judge to the bench since 1982, when they chose Kenneth Lavon Johnson, now retired.

This time, barring an unforeseen challenge mounted before the July 1 filing deadline, five of the court’s 30 judges are running together in an uncontested race. Four of the candidates–Shirley Watts, John Glynn, Lynn Stewart, and John Miller–were appointed to the Circuit Court by the Gov. Parris Glendening within the last 16 months. The fifth, Clifton Gordy, has held his seat since 1985. Judges serve 15-year terms after running in the first election after their initial appointments.

As of last November’s campaign-finance report (the latest available), the Baltimore City Sitting Judges Committee had spent about $60,000 of roughly $105,000 it has raised for this election. The judges themselves aren’t involved in the committee’s activities, says campaign chairperson H. Mark Stichel, a private attorney. But the committee engages in the standard electoral fare, with a couple of twists: Almost all of its money comes from lawyers who appear before the bench, and the judges themselves don’t usually hit the campaign trail.

It’s a “difficult issue,” Stichel acknowledges of the money ties between the bar and the bench, but he maintains that contributing to the committee rather than directly to a particular judge “creates a buffer” that lessens the obvious conflict. Better yet, says James Browning, executive director of the government watchdog group Common Cause Maryland, would be some form of public financing for judicial elections.

The current system “impugns the independence of the court and gives the appearance that a verdict can be bought,” Browning says. Public financing would relieve the judges committee from having to raise funds from lawyers, he says, and “would go a long way toward shoring up public confidence” in the way money enters judges races. The change would have to be approved by the state legislature, and there are currently no such proposals pending, Browning says.

The judicial code of conduct limits what judges can say in public, so stumping for office is a dull affair. “It’s really hard to say anything that’s meaningful,” Stichel says. “There’s not much a judge can promise” to do if elected. The judges, he adds, “are not used to campaigning” and are “not comfortable doing it.”

Stichel–noting that he is speaking strictly for himself–says he believes judges shouldn’t be directly elected at all. For example, judges could be appointed to lifetime terms, subject to legislative approval; come up for gubernatorial reappointment at the end of set terms; or subjected to retention elections, in which voters would choose only whether a sitting judge should stay on the bench. But given the current system, the judges have to have someone–in this case, Stichel and committee treasurer Frederick Koontz–to “do the fund-raising and help the judges get over the process of having to run for election,” Stichel says.

Most lawyers and law firms listed in the committee’s campaign-finance report donated from $100 to $500, with a few giving $1,000. “It’s pretty much just lawyers giving,” Stichel says, with the rest coming from people with “pre-existing relationships” with a judge–“personal friends and relatives.” The two biggest contributors to this year’s campaign are Finn Casperson, a New Jersey corporate executive with strong ties to Johns Hopkins University, who gave $4,000, and La-Van Hawkins, a politically active fast-food magnate with significant interests in urban areas, including Baltimore ($3,000).

On the spending side, the committee holds fund-raisers, buys campaign advertising, and sprinkles a selection of politicians and pet causes with contributions. It’s your standard Baltimore campaign effort, right down to using the proper printer: Bromwell Press, a company owned by retiring Baltimore County state Sen. Thomas Bromwell’s cousin.

Perhaps the most unconventional aspect of the judges’ approach to elections, though, is the practice of cross-filing–running in both parties’ primaries. “The theory is that the judges are not supposed to be partisan,” Stichel explains, so they participate in both elections rather than choose one party or the other. There also is a practical element to the strategy, he says: “It’s an insurance policy to get all of the sitting judges to the general election.” If they lose in one party’s primary, they can still win the other’s and make the November ballot.

While the sitting judges usually ease quietly to re-election, an element of public critique occasionally creeps into the process. In 1998, city prosecutor Page Croyder entered the race at the last minute and lambasted the judges’ slate, saying not all of the nine jurists running together deserved another term on the bench. Croyder lost, extending a now-20-year drought for challengers seeking to oust Baltimore judges at the polls. But Stichel says that historically the periodic challenges have helped create a more racially diverse judiciary.

“There’s no question about it, judicial elections are good” for diversifying the bench, says Arthur Murphy, a political consultant and 1998 candidate for clerk of the Circuit Court and the son and brother of African-American attorneys who became judges by challenging the incumbents. (Murphy does note that minority appointments have been stepped up on recent years, adding, “Glendening has been busy.”) Hence the outcry that has kept judicial elections intact through periodic efforts to change the system, the most significant in recent years coming in 1996, when a legislative commission proposed abandoning them.

“If they talk about taking politics out of the judicial process,” Murphy says, “they can kiss my ass.”