Bay Journal

Spat over oyster lease near historic manse leads to legislation

Sotterley Plantation backers seek veto power over future aquaculture operations in Southern Maryland creek

  • By Rona Kobell on April 06, 2017
This 2012 photo shows the view to the water from the porch of Sotterley Plantation. (Dave Harp) Sotterley's manse, first built in 1703, has been restored, and the entire tract, including outbuildings, has been designated a National Historic Landmark. (Dave Harp) Another view from the Sotterley porch, taken recently, without leaves on the trees.  (Jon Farrington) View from Talmadge Petty's shoreline of Sotterley Creek, taken recently. White buoys marking Petty's oyster leases are in distance. (Talmadge Petty)

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.

About Rona Kobell

Rona Kobell is a former writer for the Baltimore Sun. .(JavaScript must be enabled to view this email address).

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Samuel Baldwin on April 07, 2017:

As an attorney who has been involved with this matter for several years, I'd saw this article is evenly presented. There are indeed conflicting socially beneficial goals here. Both sides make valid points. While the oyster leases in the Patuxent River may in fact be several feet below the surface of the water, the seven hundred oyster cages that are proposed for Sotterley Creek will at times be above water. Many will be a mere two inches below the surface. This Creek has for years been used by every school child in the county for a sixth grade field trip sponsored in part by Sotterley. These seven hundred cages, and the boom boat raising and dropping those cages, will now be directly between the school children and a beach they would normally access. The concern expressed by Congressman Hoyer was for Sotterley Creek. The approval given by the Army Corps was for a differ not lease in the Patuxent River. While the Sotterley Creek lease will not involve floating pvc pipes, it will still mar the view shed with the placement of about forty buoys and the workings and noise of the accompanying boom boat. And make no mistake about the importance of viewshed to the citizens of our state. The Petty family was paid $600,000 several years ago by the state, signing a conservation easement that in part required them to protect the viewshed of Sotterley and Sotterley Creek. I have just finished serving as President of the Historic St. Mary's City Foundation. Just this year, we secured several hundred thousand dollars from the State to make waterfront improvement - a new Dove ( the boat that brought settles to Maryland ) and improvements to our pier. This legislation protects these investments of state monies. As for the 'protections' offered by the Maryland Historical Trust, the person who conducted the review for the MHT testified that he had never been to Sotterley before he approved this application. Even though he knew that Sotterley was a National Historic Landmark, he neither visited Sotterley, nor did he bother to pick up the phone and call Sotterley's Executive Director for comments. Instead, he simply sat at his desk in Annapolis and put what he referred to as a "little man" on his Google Earth screen to see what the "little man" saw. That was it. He further testified that, while doing this exercise at his desk, he at times had no idea where his "little man" was standing and what, if any, cultural or historical significance related to the site. It's that kind of review that should appropriately be balanced by allowing these two sites, Sotterley and St. Mary's City, to say "no, not here". No one denies the contribution of acquaculture. But there are hundreds of miles of shoreline where these oyster leases can be placed. Sotterley cannot move its educational programs elsewhere, nor can Historic St. Mary's City. That is essentially the conflict of these two otherwise worthy projects.

Bob Rheault on April 07, 2017:

It is almost amusing that the affluent waterfront mansion owners who have managed to get this legislation passed in the House and how have engaged talented legal representation are referring to Mr Petty as a "privileged white guy." Somehow 40 buoys on cages in 8' of water and a working skiff are an impediment to their enjoyment of their view. But crab traps and fishermen are acceptable. To working watermen, the view of these waterfront mansions is an affront to the senses. But we recognize that we don't own the land, much as these waterfront homeowners do not own the water.

Gita S. van Heerden on April 09, 2017:

My grandmother (not great-grandmother) was Mabel S. Ingalls, the last private owner of Sotterley. Her parents, wealthy New Yorkers, had discovered this old plantation house in St. Mary’s County, fell in love with the place, bought in in 1910, and restored the house and grounds meticulously. They were history buffs who did their best to recreate visually what the place was like in colonial times. Their daughter bought the property out of her father’s estate and opened it to the public in the early 1960s. She felt it was a place that the public needed to know about, a place to learn about their history. The Patuxent River and Sotterley Creek were integral parts of Sotterley Plantation and essential to its story over nearly 300 years of history. Historic Sotterley, Inc. is a living museum for an international audience. Its importance at a federal, state and local level has been recognized by the millions of dollars that has been put into preserving the house and grounds. It is one of four Middle Passage sites in Maryland, memorials to the enslaved Africans who were brought to this country, to its lasting shame. Sotterley Creek is a memorial site, and yes, I find it immoral that it be turned into a commercial venture and blocked from public usage. Over the course of years Mrs. Ingalls sold parcels abutting the core of the property to friends, with the understanding that they shared her vision about Sotterley and most importantly about its view shed. It was very important to her that the public be able to enjoy the vistas that would have remained the same for hundreds of years. The Petty family bought 300 acres from her, and they clearly shared her outlook. Mr. Tal Petty, one of their sons, knows this very well, and it is sad that he has turned into the kind of neighbor who shows little to no regard for the only reason he has ended up there. Indeed, his family’s property received an additional $600,000 from the state of Maryland to limit their development rights as part of a larger state effort to preserve Sotterley for the public. This is not an issue of rich landowners not wanting oystering in their view shed. Mr. Petty has several acres of leases in front of his property, and wants to double or triple that up the Patuxent River. And that’s fine. (What is not fine is that he never bothered to tell his neighbors, who own the small dirt access road to his dock, that he was planning on putting in an increasingly large commercial enterprise there. While he has a right of way over that road for residential use, it is clearly not intended for commercial use. One wonders why he didn’t tell the neighbors who own the road what his plans were.) This is an issue of a National Historic Landmark and the story it tells to the public. It is a story about the history of slavery. And it is a story about a guy who lucked into a situation and is not particularly interested in upholding the bargain that resulted in his happy circumstances of becoming an oyster farmer. Sotterley Creek has always been fished and oystered. But this has been done in a spirit of cooperation, with individuals able to fish the banks, run their trot lines, and enjoy working the river as has been done for hundreds of years. By plastering the bottom with oyster cages, much of it is now effectively closed off to the public welfare. Sotterley Creek has always been a port in a storm, a calm place open to the public. At the top of the hill overlooking it has been Sotterley Mansion, like it was during the Revolutionary War, the War of 1812, the Civil War. Sotterley Creek has many shallow spots where people ran trot lines and fished, and then it has a deep channel, too deep for trot-lining. The shallow spots are now off limits to everyone but Mr. Petty. To say this is just a new version of commercial activity is disingenuous. Rather, it is a way to insure that only one person will benefit, the person who was lucky enough to have landed there because his parents shared a vision of Sotterley and its open waterways. Sotterley and its surroundings is an American treasure, a history of this nation told over 300 years. The effort and money that has been put into keeping it this way is a testament to its importance at the local, state, national and international level. There are many many places in which oyster cages can be placed. There is only one Sotterley.

Capt. Sherri malone on April 09, 2017:

Sad, when did making a living become a crime. I guess it was easier to send the slaves out to pull oysters in front.of the mansion in 1847, then it is to for a county resident to make a living for his family.

Regina Parks on April 09, 2017:

...and how does history become history? Let us all hope Mr. Petty is beginning a movement that will be part of a tour 100 years from now where schoolchildren are taught how our great government respected the individual in his right to persue happiness.

Sarah on April 09, 2017:

It is rediculous to whine about this because as school children we don't ever get to go in the water at Sotterley all we did is take boring tours of an old house without that much history. I lived down the street from Sotterley for 30 years and grew up swimming in the creeks. I prefer oyster farming because it cleans the water to the stupid jet skis and power boats which disturb the natural ecosystem. The most fun we ever had was on skipjack tours learning and touching things and getting dirty. Sotterley is boring and for old people the place doesn't really serve the public that well, Woodlawn a local waterfront winery is way cooler and much better at being open to the public. Sotterley is a place for rich people to be snobby to each other. Support the local waterman, clean the bay. Hollywood Oyster Company has turned the local general store from a run down building to a nice place to have a beer and do oyster tasting it is good for promoting tourism. Sotterley people yell at you for waking your dog down the street on a leash even when you a a part of the neighborhood, don't even get me started on how lame the wine fest is - these people can't throw a good party or event when they try hard.

Rich Mora on April 10, 2017:

The oyster operation has greatly impacted my fishing,crabbing and duck hunting that I have been doing there for forty years.Not happy!

Andrew Marani on April 10, 2017:

It's a working bay and they don't own the water or the view. Efforts should always be made to avoid ugly infrastructure, in this case using underwater cages does that. Nothing wrong with those school kids seeing someone working on the bay and it doesn't stop them from reaching the beach. Oyster leases are a very important part of saving the bay and reducing pressure on natural oyster bars. Dress it up however you will, this is still a case of "not in my backyard" or in this case, not in my view shed.

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