Maryland court finds county erred in waiving forest conservation law

An effort to prevent development of one of the last large, unprotected forests near the upper Chesapeake Bay has won a signal victory, but too late to spare some of its oldest trees from the bulldozer.

A Harford County Circuit Court judge ruled May 9 that the county’s planning and zoning officials improperly granted developers permission three years ago to remove 49 large “specimen” trees while developing a business park in a 326-acre tract known as Abingdon Woods.

Forest-clearing was under way at Abingdon Woods in Harford County, MD, as shown here on Aug. 30, 2022. (AJ Metcalf/Chesapeake Bay Foundation)

Harford Investors LLP and BTC III I-95 Logistics Center LLC received county approval in 2020 to clear 220 wooded acres for the construction of four large warehouses, restaurants, shops, a hotel and gas station. As part of the plan, the county also waived a requirement in its forest conservation ordinance that would have required the developers to preserve trees that were notable specimens because of their size and age.

The county allowed the removal of 49 of 85 such trees after the developers asserted that it would be a hardship to keep them.

The Chesapeake Bay Foundation and some residents living near Abingdon Woods filed suit in 2020, arguing that the county failed to follow the Forest Conservation Act, the 1991 state law on which the county’s ordinance was modeled. Harford Circuit Judge Diane Adkins-Tobin at first dismissed the case, ruling at the time that the county’s sign-off on a developer’s forest conservation plan could not be appealed until the entire project was approved.

But in 2022, Maryland’s highest court — now called the Maryland Supreme Court — ruled that a developer’s forest conservation plan could be challenged in court and sent it back for reconsideration. The Harford judge then ordered a temporary halt to construction until she could hear and decide the case, but clearing at the site had already begun.

In January, when the case came up for a hearing, the county — which had until then defended its decision — switched its position and asked the judge to send the issue back to the county to reconsider.

In her May 9 opinion, Adkins-Tobin did just that. She declared that the county had not made any findings of fact, as required by the law, to justify waiving the preservation of all specimen trees.

The Bay Foundation hailed the latest ruling as a “major victory.”

Haha Branch flows along the western side of Abingdon Woods on its way to the Bush River, a Chesapeake Bay tributary, in Harford County, MD.

“The judge’s ruling sends a message to counties and developers that there must be a clear factual basis for granting waivers from the state’s requirements to protect forested land,” said Paul Smail, the organization’s attorney.

“Most developers won’t suffer hardship,” Smail added, “by preserving forests and large trees that benefit residents' physical and mental health, the enjoyment of their property, and improve water quality.”

Tracey Waite, chair of the Save Abingdon Woods Coalition, said the rulings set important precedents for preserving trees and forests.

“These court actions and decisions have kept hope alive even as trees were being cut down,” she said.

Before work was stopped at the site, though, the developer felled 22 of the specimen trees.

“Families of turkeys were seen running out of the woods and through suburban neighborhoods looking for cover,” she said. Polluted runoff into the stream called Haha Branch also was observed after rainstorms, she added.

The Bay Foundation’s lawyer noted that project opponents had tried and failed to prevent the start of tree clearing until the case could be resolved. He said he and his clients are now weighing what recourse they have for the loss of those trees.

Meanwhile, the court has yet to rule on a separate related lawsuit challenging the Maryland Department of the Environment’s decision to let the developer build across wetlands and a stream.

Harford County spokesman Joe Cluster said officials are still reviewing the ruling in the Bay Foundation lawsuit and weighing their next step. That decision comes at a time when Republican County Executive Bob Cassilly, who took office in December, has expressed reservations about the environmental impacts of e-commerce-related warehouse development in the county.

At Cassilly’s behest, the county council in April approved a three-month moratorium on warehouse projects while officials weigh what if any new limits or requirements they want to place on them. That has at least temporarily held up another large warehouse project proposed on Perryman Peninsula near the Bush River, a tributary of the Chesapeake Bay.

Waite said that during the moratorium, her group and others hope to persuade the county to alter its development laws to permit distribution centers larger than 200,000 square feet only on land zoned for industry — which would prevent construction of what she called “mega-warehouses” at Abingdon Woods and Perryman Peninsula.

“There's every reason to keep fighting,” she said.

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