Wells Cove water access lawsuit is dismissed

An Anne Arundel County Circuit judge dismissed a lawsuit Tuesday filed against the City of Annapolis by two Eastport residents who had sought to keep public water access at an inlet in Eastport.

The lawsuit was filed on behalf of Jessica Pachler and Karen Jennings by Annapolis attorney Joe Donahue in February. It argued the city was responsible for maintaining public water access at Wells Cove because of a 1986 agreement with a private property owner that established a fivefoot-wide path leading from Boucher Avenue to the water’s edge.

The lawsuit did not meet legal standards because the city does not own the path and thus could not be responsible for providing water access, Circuit Judge Robert J. Thompson said.

“The City of Annapolis itself cannot grant an easement over that which it does not own,” Thompson said before dismissing the case.

The path is instead owned by Blue Heron Cove Condominium Association, which built a cluster of condos on the land in the late 1980s. In accordance with a resolution passed by the City Council, the property owners created a path to the water. The easement was recorded in county land records but it was never dedicated at the request of the city, a key step that was never taken for more than three decades.

The agreement remained in limbo for 36 years until August, when after months of negotiation, the City Law Office and attorneys for the condominium association reached a new agreement, which allows the public to use the path but not enter or exit the water.

City Attorney Mike Lyles, who represented the city Tuesday, called the agreement “bigger and better” than the one promised more than

three decades ago because it defines the size of the access area and includes specific features such as a fence and gravel path that the city would be responsible for building and maintaining.

Under the agreed-to terms, the walking path is available from dawn to dusk. However, the public isn’t permitted to use the water because of a stormwater outfall located there that makes access dangerous, the city said. “Negotiations with the property owner have provided more than the citizens bargained for in 1986,” Lyles said.

Pachler and Jennings maintain the inlet has been used for years by water taxis and the public to put in small boats like kayaks.

“Why would a city administration, who states as one of its biggest goals is to maintain and improve water access, give it away or not negotiate for it,” said Pachler, who was not able to attend the hearing. “Why wouldn’t they say, ‘we didn’t finalize this before but this is our administration’s goal; we’re going say no you have to do what you can do to get riparian rights.’ ”

Blue Heron Cove, which has several finger piers on the water, maintains riparian rights, according to the agreement.

Donahue has contended the lawsuit was never about the pathway but about accessing the water.

“This access has existed for 30 years,” Donahue said following Thompson’s ruling. “Mike Lyles doesn’t think the people of Eastport need more water access.”

Thompson encouraged Donahue to approach Ed Hartman, the attorney representing Blue Heron Cove, to discuss allowing the public to enter the water.

Reached by phone after the hearing, Hartman said that such a discussion is not possible for a variety of reasons including liability, and a lack of space because of the stormwater pipe to allow public use.

”There are no rights to the water and there never have been,” he said.

“When two people form a contract — like the city, and Blue Heron — the fact that the third party wishes that contract said something different, does not change the language of that agreement.”