Spat over oyster lease near historic manse leads to legislation
Sotterley Plantation backers seek veto power over future aquaculture operations in Southern Maryland creek
A neighborhood skirmish over a single shellfish lease in a small Southern Maryland creek has turned into a full-blown oyster war pitting descendants of some of the state’s wealthiest and most influential families against a nascent but growing industry.
Trustees and staff at Sotterley Plantation, a restored 18th century Patuxent River estate, opposed a 3-acre lease just offshore that Talmadge Petty, the founder of Hollywood Oyster Co., applied for to grow oysters. Sotterley and neighboring homeowners on the picturesque creek protested Petty’s lease, contending that having the aquaculture operation within sight would ruin the plantation’s historic ambiance.
After 18 months of litigation and bureaucratic procedures, the Department of Natural Resources came down in favor of the oyster farming operation.
Now, plantation supporters seek to stop oyster farmers from leasing within 300 feet of the shoreline of Sotterley and other historic properties. Michael Whitson, the politically connected former president of the Sotterley board of trustees, enlisted Del. Dana Stein, a Baltimore County Democrat, to sponsor legislation that would give those property owners veto power over leases in waters already approved for aquaculture by the state.
Stein’s bill, H.B. 1284, sailed through the House of Delegates. It passed 139 to 1 after being amended to limit its scope from historic places, which would have encompassed hundreds of properties, to the state’s 70-some designated National Historic Landmarks.
But the bill has gotten a more skeptical reception in the Senate, where after an April 4 hearing, it remains in committee as the 90-day legislative session nears its conclusion Monday at midnight.
The plantation’s supporters say the viewshed is important for telling Sotterley’s story, particularly the part about how slave ships came up Sotterley Creek from the Patuxent to support the landed gentry’s opulent lifestyle. A slave cabin remains on the site, as does an African-American graveyard.
“You go out there, and you see this privileged white guy who has plunked down his oysters on what should be a memorial site,” said Gita Van Heerden, a Sotterley descendant and supporter. Her family once owned Sotterley and now owns a waterfront home close by. “It is immoral, it is greedy, and it is everything that is wrong with America.”
Van Heerden and another nearby neighbor, the Liu family, remain in litigation with Petty over his Sotterley Creek lease.
Petty acknowledged that he is fortunate enough to live on his family’s 300-acre farm, also close to the plantation. He said he knows Sotterley is special, and that his family has benefitted from that proximity.
Van Heerden’s grandmother, Mabel Satterlee Ingalls, was the last private owner of Sotterley and deeded it to the historical foundation when she died in 1993. But it nearly shut down because of lack of funds to operate and maintain the house and grounds. In addition to the neighbors who supported the property, U.S. Rep. Steny Hoyer helped to secure funds, and state bond funds also contributed. As the oldest continuously working plantation in the state, Sotterley has reckoned with its past, welcoming the descendants of slaves in plantation events and restoring the slave cabin.
Petty said he supports that mission, but added that Sotterley was once a working waterfront with active oyster grounds and port activity that didn’t resemble today’s pristine view. He and his fellow oyster farmers maintain that the fight over leases isn’t about historic viewsheds, but about the views of neighbors like Van Heerden. They say this dispute is no different than the ones waged coastwide against wealthy property owners who believe they own the water that came with their view.
“This is basically NIMBYism under the guise of history,” said Petty, who sells oysters under the brand name Sweet Jesus. “It’s a real travesty.”
Stein, though, argued that the historic landmarks were “not a special interest” because they are for the public good.
“In my mind, it’s not inconsistent with other restrictions on officially designated historic properties,” he said. “The viewshed can be considered part of what makes it historic. The only limitation in the bill as it’s amended is if the owner says no.”
Of the 74 properties on the state's historic landmarks list, Stein said 18 could be impacted. Only two are likely to have the proper environmental conditions to secure an oyster lease because of salinity, pollution issues and proximity to natural oyster bars: Sotterley and historic St. Mary’s City.
Stein said he and other House committee members that heard his bill are aware of the neighbors’ pending litigation against Petty’s Sotterley Creek lease. Stein said he doesn’t think his bill has anything to do with it.
“I don’t see how it could be retroactive,” Stein said.
But Don Webster, a University of Maryland aquaculture expert, said the legislation is just the latest in a variety of tactics that wealthy property owners have used in an effort to bar leases in view of their homes.
“What they are hoping is that they can get a legislative ticket, and then they can go to the Court of Special Appeals, and get his lease overturned,” Webster said.
Van Heerden’s attorney, Sam Baldwin Jr., insisted the legislation and the litigation were separate, and he did not request the bill. However, he acknowledged that Stein’s bill, if it became law, would help his case, which is a personal one. Baldwin has written a book about the plantation and is married to Janice Briscoe, who is president of Sotterley’s board of trustees and Baldwin’s law partner.
Baldwin said he plans to argue to the Court of Special Appeals that the public investment in Sotterley and other national historic landmarks outweighs the public interest in promoting aquaculture.
Petty and his fellow oyster farmers didn’t learn of Stein’s bill until it already had a hearing in the House, so they had no chance there to voice their concerns with it.
Of particular concern to them was a photo of oyster floats surrounded by PVC pipes that Whitson showed at the March House hearing while telling delegates that those were the type that would be placed in the area of creek leased by Petty. But Petty, like many other oyster farmers, does not use those floats; his lease is for raising oysters in cages on the bottom, with only some buoys visible on the surface.
Stein acknowledged that he later learned that Whitson’s photo didn’t portray accurately what could be seen from Sotterley. Had he known that cages like Petty’s were underwater, Stein said, he would have amended his bill to give historic property owners a veto only over aquaculture operations visible on the water’s surface.
The Maryland Department of Natural Resources submitted written testimony opposing Stein’s bill in the House, arguing that it had already worked closely with the Maryland Historical Trust and did not approve leases until the trust is satisfied the lease won’t interfere with its mission. It called the bill’s provisions “unnecessary and contrary to the current mission of the aquaculture program.”
Sen. Kathy Klausmeier, a Baltimore County Democrat who has served on the state’s aquaculture coordinating council for a decade, sent a letter opposing Stein’s bill to the Senate committee that reviewed it on April 4. She recalled how Webster and others worked to streamline Maryland’s leasing law in 2010, removing 32 pages of restrictions.
“We had 100 years of barnacles on those lease laws,” Webster said.
Even with those changes, Maryland oyster farmers have complained that the process still takes too long, a year or more compared with just four months in Virginia.
Much work goes into the lease process before an oyster farmer files an application. The DNR and its aquaculture review board help potential farmers choose sites away from natural oyster bars and that minimize impacts in public fishing areas. Once a lease application is submitted, the DNR identifies property owners through the public notice process and also sends homeowners adjoining the lease a letter. If the department decides to grant the lease, opponents can appeal, first to an administrative law judge and then to Circuit Court.
Determined opponents with resources can tie lease applications up in knots. In Maryland’s coastal bays, aspiring oyster farmers Don Marsh and Steve Gordon battled their neighbors for more than five years before they obtained shellfish leases. In Kent County, another startup aquaculturist, Scott Budden, had to work out compromises with watermen and duck hunters before he could put his oysters in the water, which took four years.
Sotterley Plantation gave up its fight after losing its first appeal of the DNR’s decision. But Nancy Easterling, executive director of the nonprofit that manages the estate, said she supports the Stein bill to help other historic properties.
“If we don’t step up and say something after the fact, then who is going to say something?” she asked. “As the state looks at resources like this, which go far beyond one person, one family, there needs to be an eye looking at these.”
But the U.S. Army Corps of Engineers, which also must approve shellfish leases in navigable waters, said they considered the historic impacts before giving Petty’s application the go-ahead.
Kathy Anderson, chief of Maryland’s southern section for the Corps regulatory branch, said the agency received Petty’s lease application in February 2015. Eleven months later, while still reviewing it, the Corps received a letter from Hoyer, who represents Southern Maryland, expressing concerns about the lease. Hoyer, who is the House minority whip, noted that a lot of federal dollars had been invested in Sotterley and asked to be apprised of the Corps’ review as it progressed.
Anderson said she and her Corps colleagues contacted the Maryland Historical Trust and surveyed the property. The Petty application was for submerged cages in water that was 8– 9 feet deep, leaving between 5–6 feet of water over the cages.
“We documented the approximate distance from lease to building, and looked at viewshed issues for cages that would be submerged,” she said. “We determined and documented that lease site was 2,500 feet from the home. In our coordination with the Maryland Historical Trust, they did not provide any further objections in our review process.”
The Corps approved Petty’s lease application August 2016 and sent Hoyer a detailed response. They did not hear from the congressman on the matter again. Stein said Hoyer never contacted him about his bill, and Whitson, who said he counts Hoyer as a friend, said, “I do not speak, and did not speak, for Steny.” He did not ask him to write the letter, he said, or apply any pressure.
A Maryland businessman active in Democratic circles who has served on the state Critical Area Commission and the Maryland Transportation Authority, as well as the Sotterley board, Whitson said he didn’t go to Stein because he thought he had some influence. He went, he said, because the state leasing law “has currently no restriction” to protect historic properties, and that national historic landmarks “are not places where (shellfish farming) should occur.”
Oyster farmers say Stein’s bill, even if it would only affect a relative handful of properties, sets a bad precedent.
“What I don’t like is that the bill takes the power to negotiate a solution that everyone can be happy with from DNR and gives the landowner a veto to say, ‘No, I don’t want anything.’” said Jon Farrington, past president of the Southern Maryland Shellfish Growers Association. Farrington said the Maryland Historical Trust had a concern with one of his leases, the site of a historic naval battle. They reached a compromise, Farrington said, when he promised to turn over any historic artifacts. He hasn’t found any.
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