After‑the‑fact mitigation change for 205 St. Cuthbert approved despite staff recommending denial

The Chesapeake Bay Board voted unanimously on Nov. 14, 2024, to grant an after‑the‑fact modification to a mitigation plan at 205 St. Cuthbert, an item that drew extended staff explanation, public testimony and a discussion of enforcement history.

Staff summary and enforcement history: Mike Wilson, Section Chief for Stormwater Resource Protection, told the board that the property’s original exception and mitigation plan were approved in 2021 and that an additional patio/walkway exception was approved in 2021 with associated mitigation. Staff identified an unapproved change to the approved mitigation — installation of tall fescue turf and common rush (Juncus spp.) — that occurred in April 2023 and issued a notice of violation in November 2023. The County Attorney’s Office sent letters of legal action in January and August 2024. Staff concluded the request "is not in keeping with the spirit intent of the previously approved exception request, and should be denied by the Board," citing the county standard that exceptions not be granted for conditions that are self‑created or self‑imposed. Staff nonetheless presented an option for approval if the board wished to accept payment into the county’s Chesapeake Bay Mitigation Fund and record an affidavit; staff set a deadline that payment and affidavit be completed by Dec. 30 of the calendar year if the board approved.

Applicant testimony: Dr. James L. Mullins, the property owner, apologized to the board for failing to request an amendment and described the reasoning behind the change: multiple species planted as mitigation (including sweet pepperbush and yellow yarrow) failed by summer 2022 under heavy rain or drought; he said he worked with a landscaper to install turf and common rush to reduce erosion and protect the pond edge. Mullins said he planted additional trees beyond the original mitigation and offered to make a $2,500 payment to the Chesapeake Bay Mitigation Fund if the board approved the modification.

Board discussion and decision: Board members acknowledged the enforcement history and staff’s legal concerns but several members said the on‑the‑ground condition (planted juncus and established turf appearing stable) and additional voluntary plantings weighed in favor of approval. Following discussion, a member moved to grant the exception request for CBPA‑24‑141 (205 St. Cuthbert); the board adopted the motion by roll call (O'Brien, May, Bowie, Rodley voted yes; motion passed 4‑0). Staff had told the board that, should the board approve, the approval should be conditioned on payment to the county mitigation fund and filing an affidavit by the specified deadline; those administrative conditions were described on the record.

Why it matters: The item illustrates the tension between enforcement of approved mitigation plans and on‑the‑ground remediation actions taken by property owners. Staff emphasized that the modification was a major change from previously approved mitigation and that approvals should not reward self‑created conditions; the applicant argued the change was a practical response to repeated planting failures and erosion risk.

Next steps: According to staff’s presentation, the exception approval would become null and void if required payment and affidavit are not completed by Dec. 30. The County Attorney’s Office remains engaged in the enforcement history noted on the record.