Two Eastport residents do not have standing to sue Blue Heron Cove Condominiums and the city over the public’s right to access Wells Cove, an inlet in Eastport, an appellate court has ruled.
The July 2 opinion by Judge Melanie Shaw of the 4th Appellate Judicial Circuit, reverses a judgment issued last year by Anne Arundel County Circuit Court Judge Elizabeth S. Morris, which said residents of the Blue Heron Cove condominiums cannot block the public from accessing Spa Creek.
Shaw was one of three judges to hear the case in early March.
Shaw’s opinion states that the two Eastport residents, who do not live in Blue Heron Cove, failed to prove they suffered a unique “monetary burden” by being unable to use the water inlet, and therefore could not sue as taxpayers on behalf of the general public and that the Circuit Court for Anne Arundel County “erred” in its judgment in March 2023.
In 1986, the city required that a path be built so that the public would have access to the open space and waterfront area of Wells Cove. In 1992, the owners of Blue Heron Cove signed an agreement guaranteeing the public’s access to the pathway and the waters at Wells Cove.
In February 2021, Annapolis attorney Joe Donahue filed a lawsuit in the Circuit Court of Anne Arundel County on behalf of two Eastport residents, Jessica Pachler and Karen Jennings, to enforce the agreement. The suit was dismissed in September of that year by a circuit court judge who found it did not meet legal standards.
Pachler and Jennings filed a second lawsuit later that year, renewing the legal challenge after the city signed an agreement with Blue Heron that cut off water access to other Eastport residents.
The 2021 agreement allows the public to walk to, but not enter, the water at Wells Cove. The walking path is open from dawn to dusk.
Morris’s 2023 judgment invalidated that agreement. Until the Appellate Court of Maryland issues a mandate based on Shaw’s opinion, it is unclear what happens next. The mandate of the court is the formal entry of the appellate court judgment and the relinquishment of jurisdiction back to the lower court, according to Bradley Turner, spokesperson for the Appellate Court of Maryland.
“We are pleased that the Appellate Court of Maryland recognized our standing argument and we look forward to the resolution of this matter,” said C. Edward Hartman, the attorney representing Blue Heron Cove Condominium Association Inc.
The appellate court has 30 days from July 2 to issue its mandate.
“We were disappointed with the procedural decision of the court, who reversed the case without adjudicating the merits. My clients filed here on behalf of their Eastport neighborhood, and sadly, this fight against our city is not over,” Donahue said in a statement Friday.
A petition to the Supreme Court of Maryland can be filed 15 days after a mandate is issued. Donahue said he has not decided his next steps.
The decision comes nearly a week after the city released a draft of its first Public Water Access Plan, an effort to increase the number of places people can use to enjoy the city’s waterways. Wells Cove was among the sites to receive improvements, including a path along the water.
“Wells Cove remains a priority point of public water access and the city is committed to making necessary improvements within the provisions of the easement,” Eric Leshinsky, chief comprehensive planner for the city, said in a statement last week.