Ad'+ 'Soil, Inc. v. County Com'rs of Queen Anne's County
| Decision Date | 26 August 1986 |
| Docket Number | No. 143,143 |
| Citation | 307 Md. 307,513 A.2d 893 |
| Parties | Page 307 307 Md. 307 513 A.2d 893 AD + SOIL, INC. v. COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY, |
| Court | Maryland Court of Appeals |
Jeffrey A. Dunn (Benjamin R. Civiletti, James A. Dunbar and Venable, Baetjer & Howard, on the brief), Baltimore, for appellant.
Roger D. Redden (Paul A. Tiburzi and G. Richard Dent, on the brief, Baltimore, and Patrick E. Thompson, Co. Atty., on the brief, Centreville), for appellee.
Argued before MURPHY, C.J., and SMITH, * ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.
Since 1974, the General Assembly has required that any person intending to engage in the "collection, handling, burning, storage, or transportation of sewage sludge" obtain a permit from the State Department of Health and Mental Hygiene. See chapter 680 of the Acts of 1974. 1 Involved in this case is a sewage sludge storage and distribution facility located in Queen Anne's County. The principal issue is whether, in light of the public general laws of the state governing sewage sludge management and utilization, the county may exercise its local zoning power to regulate the operation of such a facility which has previously obtained the requisite state permits from the Department.
Ad + Soil, Inc. (Ad + Soil) is a Pennsylvania corporation engaged in the business of disposing of processed sewage sludge. Its first sludge disposal contract, beginning in June of 1982, was with the Washington Suburban Sanitary Commission; it expired in March of 1985. Since October 1984, the company has contracted with the District of Columbia to dispose of at least 200 tons of sludge per day from the Blue Plains Wastewater Treatment Plant. Ad+Soil's primary responsibility under the contract is to transport the sludge in sealed trucks to Maryland's Eastern Shore, where it applies the sludge free of charge to the fields of cooperating farmers for use as a fertilizer and soil conditioner.
Under certain weather conditions, such as heavy rain or sub-freezing temperatures, the sludge cannot be applied to the fields. Ad + Soil's contract with the District therefore requires that it maintain the capacity to store 18,000 tons of sludge, this being the amount which it is obligated to remove from Blue Plains over a 90-day period.
In 1982, Ad + Soil obtained a site in Queen Anne's County from which it began distributing sludge to cooperating farms. The site was zoned A-1 Agricultural under the county's Zoning Ordinance. Although the record is not entirely clear, it appears that Ad + Soil did obtain the necessary permit from the Department of Health and Mental Hygiene, as then required by Code (1982), § 9-210(b) of the Health-Environmental Article, to operate a sludge transfer station at this site. 2
By letter dated December 21, 1982, the County Zoning Administrator notified Ad + Soil that its sludge transfer station violated the applicable provisions of the Queen Anne's County Zoning Ordinance. 3 In response to Ad + Soil's request for a clarification, the Zoning Administrator in a letter dated December 28, 1982 explained that 4
In early 1983, Ad + Soil leased a new site in the county comprising approximately ten acres near Queenstown. The site was located in an M-2 General Industrial District, and was part of an existing gravel quarry owned by R.B. Baker & Sons, Inc. Under § 16.101 of the Zoning Ordinance, any use or structure permitted in a B-2 district is also permitted in an M-2 district, subject to certain modifications and exceptions. Ad + Soil selected the new site as the location for both its transfer operation and the construction of a sludge storage facility. By letter dated June 23, 1983, the Zoning Administrator advised Ad + Soil that a zoning permit and a release from an existing conditional use decision affecting the site would be required before operations could begin. 5
On June 24, 1983, Ad + Soil obtained a state permit from the Department of Health and Mental Hygiene authorizing it to transport sludge to its Queen Anne's County facility, store up to approximately 2,100 tons at the site, and transfer the sludge to cooperating farms. Ad + Soil began such operations immediately upon obtaining the state permit. It did not, however, apply for zoning approval from the county authorities.
By letter dated August 23, 1983, the Zoning Administrator notified Baker that because the use of the site had been changed and improvements added without zoning approval, he was to cease all activities at the site until the requisite zoning permits were obtained, together with a release from the existing conditional use decision.
On September 13, 1983, Baker and Ad + Soil applied for a zoning certificate and a building permit for the facility which remained in full operation. The following day, Baker, as owner of the site, filed an application with the County Board of Appeals for the release of the existing conditional use. The applicants were informed that consideration of their application for the zoning certificate and building permit would be delayed until the Board had acted on the application for a release from its earlier conditional use decision.
On October 26, 1983, the Board granted Baker's application for release of the conditional use of the property. By letter dated November 2, 1983, however, the Zoning Administrator notified Baker and Ad + Soil that the County Commissioners had adopted amendments to the Zoning Ordinance on October 25, 1983 which expressly made the storage and distribution of sewage sludge a conditional use in A-1, A-2, and M-2 districts. 6 The letter indicated that the application for a zoning certificate and building permit would not be granted until the requisite conditional use permit was obtained from the Board; Baker and Ad + Soil were directed to apply for the necessary zoning authorization or cease all activities at the site within fifteen days.
Neither Baker nor Ad + Soil applied for the requisite zoning approvals within the allotted time; nevertheless, operations at the site continued and indeed intensified. On December 28, 1983, Ad + Soil obtained a state permit authorizing it to operate, in accordance with its construction and site plan previously approved by the Department, a large, newly constructed sludge storage facility at the same location. The storage facility, characterized by Ad + Soil's president as a "manure lagoon," consisted essentially of a shallow, man-made pit surrounded by an earthen dike, containing a surface area of approximately 90,000 square feet, and the capacity to store approximately 36,000 tons of sludge. Ad + Soil began storing sludge within this structure the day after it obtained the state permit, without applying for any form of zoning approval from the county authorities.
During December, Ad + Soil sued the county in the United States District Court for the District of Maryland, seeking injunctive and declaratory relief. In its complaint, Ad + Soil challenged the October, 1983 amendments to the Zoning Ordinance on several grounds, including pre-emption by and irreconcilable conflict with state law. In June, 1984, the federal court granted the county's motion to dismiss on the basis of abstention, concluding that the case presented unsettled questions of state law which were best resolved in a state court. See Ad + Soil Serv. v. Bd. of Cty. Com'rs of Queen Anne's, 596 F.Supp. 1139 (D.Md.1984).
On August 9, 1984, Baker and Ad + Soil filed applications with the Board of Appeals for the conditional use permit required by § 16.202 of the amended Zoning Ordinance, and for four variances from its setback, freeboard, and bonding requirements. The matter was docketed as Case CU-56, and a hearing was conducted on October 4, 1984. On October 25, the Board unanimously denied the applications. It first explained that, under the Zoning Ordinance, it was authorized to grant variances only in response to extraordinary conditions unique to the property involved that would make literal compliance with the Ordinance exceptionally difficult, and then only when the granting of the variance would not be substantially detrimental to adjacent property or contrary to the purpose of the Ordinance. The Board concluded that Baker and Ad + Soil had failed to produce any evidence of these requisites.
Because the variances were necessary to satisfy the requirements for the conditional use permit, the permit was also denied. The Board noted, however, that the Ordinance required it to consider in all conditional use cases such factors as the probable effect of the use on property values and the peaceful enjoyment of people in their homes, and the probable effects of any odors on the surrounding property. The Board also noted that the Ordinance required denial of permits if the use would adversely affect the public health, safety, security, morals, or welfare, or would jeopardize the lives or property of people living in the neighborhood. Because of undisputed evidence regarding the emanation of odors from Ad + Soil's facilities, and what it viewed as unresolved questions as to the facilities' impact on the local environment, the Board indicated that had it considered the merits of the conditional use application it would have denied the permit on that ground as well. The Board further determined that the county zoning ordinance had not been pre-empted by the provisions of state law governing the operation of sewage sludge facilities.
In November 1984, Ad + Soil filed a timely appeal to the Circuit Court for Queen Anne's County from the Board's order in Case CU-56, contending that it was arbitrary and capricious and that the county's zoning...
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