City looks to save public access to Wells Cove

Building new dock, buying easements, using eminent domain all on the table

In an attempt to remedy a three-decadeold mistake, Annapolis is pursuing multiple avenues to keep public water access at a cove in Eastport, including building a city-owned dock, purchasing easements from private property owners or — as a last resort using eminent domain.

Wells Cove, the sleepy inlet just off Boucher Avenue, has been the subject of debate, a lawsuit and public outcry in recent weeks as some in the Annapolis community worry it might disappear altogether if the city doesn’t act. In the mid-1980s, a well-meaning Annapolis City Council sought to keep the water there open to the public by requiring a condominium developer to build a path to the water’s edge.

But subsequent city administrations failed to make the agreement permanent, and eventually, the issue was lost to time.

Thirty-five years later, Annapolis officials want to fix the situation and are exploring several options in the hopes of keeping open the small patch of land residents have used for years to launch small boats and kayaks.

One would see the city build a dock overtop of an existing stormwater outflow. Two other involve purchasing easements — or permission for the public to use the land — from private property owners. If those efforts fail, the city could resort to eminent domain — the taking of private property for public use in exchange for compensation.

“We really want to keep this water access. We’re doing everything we can,” City Manager David Jarrell said.

The wrangling over Wells Cove began last year when Gerry Perham, a private property owner, installed a floating dock off of his bulkhead on the eastern side of the inlet. Residents complained the dock blocked their water access, and Perham applied for a permit with the Annapolis Port Wardens after it was built.

That led to more than six months of hearings and the passage of an ordinance requiring the Port Wardens to consider public water access during their licensing and permitting process. The ordinance forced Port Wardens to delay their decision last month before the commission approved the application.

Mayor Gavin Buckley said the Wells Cove situation came to his attention last fall, and the city took action over the last few months.

“We swung into motion and started the ball rolling on a step-by-step process to get this done,” he said. “And I’m going to get it done.”

Here are the options the city is exploring: The first and arguably most ideal option in the city’s view is to build a dock on top of the stormwater outflow. The outflow pipe is wide and does not allow for safe or easy water access currently.

The project is being studied by the Public Works Department and would be the cheapest way to preserve access and avoid litigation, Jarrell said.

As for easements, the city has recently

reached out to the private owners on either side of the inlet to discuss purchasing easements from them. Agreeing to an easement with either would mean the private owners retain ownership of the land but permit the public to use the property for water access.

Perham, the property owner to the east, said in an email that it was “premature to speculate” about a possible easement until the city completes negotiations with the other private owners, Blue Heron Cove Condominium Association, Inc., which owns condos on the west side.

Ed Hartman, the attorney representing the condominium association has spoken with City Attorney Mike Lyles, he said, but no formal negotiations have yet occurred regarding a potential easement.

For now, all of those options are still viable, Jarrell said.

However, Jarrell said he “suspects” negotiating with Perham and Blue Heron Cove “would likely require eminent domain” because neither side seem like they want to “make a sale.”

This is perhaps the least appealing outcome of the lot in the city’s view because it would require the issue to be settled in the courts, Jarrell said. And in the end, the city would fully own the properties and offer them to the public for use.

A reasonable offer must first be made before eminent domain can be used. No dollar amounts have yet been discussed.

Water access lawsuit

Jessica Pachler and Karen Jennings, both Eastport residents, have sued the city to save the Wells Cove access point.

Pachler and Jennings’ lawsuit, filed in February, claims the city already holds an easement on part of the Blue Heron Cove property as part of the City Council’s approval of the project in 1986. The city has filed a motion to dismiss the case.

Under the terms of the lawsuit, the city would have to direct the condominium association to remove grass plantings blocking the pathway to the water; install a sidewalk and oyster shell pathway that connects Boucher Avenue to the water, and oversee the removal of a “No Trespassing” sign.

Lastly, the Annapolis Harbormaster and Police Department would be required to enforce the boundaries of the public landing to ensure no boats block access.

“We are not trying to be, and do not want to be, adversarial, we would just like the city to uphold the public’s right to public water access at Wells Cove,” Pachler wrote in an email to the council and city staff on Sunday.

Water access now?

While the city seeks out private solutions and battles litigation, a larger question remains that has further complicated the situation: Is there currently public water access at Wells Cove?

Thirty-five years ago, when the Annapolis City Council approved the construction of the Blue Heron Cove Condominiums, it included a condition that public water access is included on the property.

A narrow five-foot-wide path was cut from Boucher Avenue to the water’s edge, where it widens slightly to accommodate the stormwater pipe.

A plat was recorded on the property in 1993. It reads, “The (five-foot) pedestrian and limited waterfront area is a right of way for public access to the water. This (fivefoot path) and limited waterfront area has been dedicated to the public use and shall be deeded to the City of Annapolis upon request.”

Jarrell admitted that after the development was approved and the plat of the property was recorded, the city failed to formally request access be deeded to them. It has remained that way for decades.

The issue came to a head at a March 23 Port Wardens meeting when Annapolis city officials appeared to disagree over the question of the existence of the easement.

The query was raised during deliberations of an application by Perhman on the eastern bank of Wells Cove for a kayak launch. The Wardens eventually approved the application in part after Assistant City

Attorney Kerry Berger said there is no public water easement at the Wells Cove, a notion that appeared to be in conflict with Planning and Zoning Director Sally Nash’s position that, “There is an easement, it’s just not held by the city.”

Nash wrote a memo — with help from the Office of Law — to the Port Wardens on March 15 that stated the city was in the process of requesting an easement once a land survey was finalized.

“At that point, an easement for public use, as intended when the property was developed, will exist,” Nash wrote.

At the same Port Wardens meeting, Hartman, the attorney for Blue Heron Cove, argued the residents may be able to go down to the water but aren’t permitted to enter it.

“The public does use it. You can walk down it. The current documentation doesn’t explain who can use it. It’s our opinion there are no riparian rights,” Hartman said in an interview.

Riparian water rights are those granted to waterfront property owners to use the water.

Alderman Ross Arnett, D-Ward 8, who represents the area, has expressed frustration at the city’s handling the situation and argued that any claim that the easement doesn’t exist is “self-serving [expletive].”

“If we lose that public access, there is going to be hell to pay,” he said. “I will not be re-elected. I think the mayor won’t get re-elected.”