Long-running dispute over Chesapeake tract settled

By Scott Harper
The Virginian-Pilot

Chesapeake

A long and contentious legal battle over one of the largest undeveloped tracts left in Chesapeake has been settled, ending a case that highlighted the difficult balance of property rights and government protection of wetlands.

The U.S. Department of Justice released three proposed agreements last week that would resolve alleged wetlands violations dating to 1999 on the Bosher Tract, also known as the Green Sea Farm, a 1,560-acre parcel in southern Chesapeake.

The Bosher family, which owns the land, says hired hands merely were cleaning out farm ditches in 1999, the government says they were illegally dumping muck and dirt from the ditches into ecologically important nontidal wetlands, considered "waters of the United States."

The settlements side step this core issue, but include a $65,000 penalty against Elwood H. Perry, a family friend and manager of the Bosher property, and a $35,000 fine against Frank T. Williams, a large land owner whose Virginia Beach-based company was farming a piece of the Bosher Tract.

For their part, the Boshers agreed to split their land in two: about 870 acres will be restored or converted into wetlands and preserved; the remainder will be left as is for potential development.

Kitty Bosher, president and secretary of Sea Bay Development Corp. and Green Sea Farms LLC, two family-owned companies that oversee the tract, said Tuesday that there are no plans for development. Previously, the tract was linked to a possible golf course project and senior citizen housing, none of which came to fruition.

But after nearly a decade of fighting government regulators, Bosher said, the family is glad a settlement has been reached.

"We're all ready to move on," she said.

Under the agreements, the Boshers will donate the preservation area to the city of Chesapeake, the state or The Nature Conservancy. It cannot be mowed, cut, cleared or drained but will be maintained as a wetlands sanctuary.

Failure to meet the terms of the settlement could result in civil fines for the family businesses. Bosher said she did not know the value of the 870-acre preservation area, only that "it's a lot."

The Environmental Protection Agency announced the three settlements last Friday without comment.

Resembling low-lying fields and forests, nontidal wetlands are pervasive in Hampton Roads, and their regulation has long been a source of frustration, confusion and lawsuits.

Nontidal wetlands play important roles in nature, soaking up pollutants, curbing flooding and providing habitat for wildlife. But for decades they were considered irritating swamplands which were routinely filled and built upon. Such activity today requires permits and compensation for ecological loss.

The Boshers, like many land owners involved in such disputes, contested whether the tract even contained wetlands.

The property is land locked along Johnstown Road and Shillelagh Road. The nearest stream is Bells Mill Creek, which meanders for miles before emptying into the Southern Branch of the Elizabeth River.

Bosher has said that an inspector with the Army Corps of Engineers witnessed the ditch-cleaning work by Ferrell's Backhoe Service and Frank T. Williams Farms in 1999 but said nothing. Soon after that, the family received a violation notice from the Corps.

Perry, the site manager, also was present that day. Under the settlements, he agreed to pay penalties against Ferrell's Backhoe Service because "the owner has since died and his widow was left with all kinds of bills and debt," said Samuel Meekins, a Virginia Beach attorney representing Perry.

Meekins said his client opted for a settlement and a $65,000 penalty because contesting the charges in court "would have cost him a fortune."

Scott Harper, (757) 446-2340, scott.harper@pilotonline.com