Board of County Commissioners v. Southern Resources Management, Inc.

• Decision Date: 10 December 2003
• Docket Number: No. 2687,2687
• Citation: 154 Md. App. 10,837 A.2d 1059
• Parties: BOARD OF COUNTY COMMISSIONERS FOR ST. MARY'S COUNTY v. SOUTHERN RESOURCES MANAGEMENT, INC., et al.
• Court: Court of Special Appeals of Maryland

837 A.2d 1059

154 Md. App. 10

BOARD OF COUNTY COMMISSIONERS FOR ST. MARY'S COUNTY v. SOUTHERN RESOURCES MANAGEMENT, INC., et al.

No. 2687, Sept. Term, 2002.

Court of Special Appeals of Maryland.

December 10, 2003.

Linda Springrose, Leonardtown, for Appellant.

Gorman E. Getty, III (Britt, Getty Law Offices on the brief), Cumberland, for Appellee.

Argued Before JAMES R. EYLER, BARBERA, and CHARLES E. MOYLAN, Jr. (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

This case arises out of an effort by Southern Resources Management, Inc. and Robert Gollahon (hereinafter both will be referred to as Gollahon), appellees and cross appellants, to obtain subdivision approval¹ for a 792.84 parcel of land zoned "rural preservation district," located in St. Mary's County (hereinafter the Property). On February 28, 2000, the St. Mary's County Planning Commission (hereinafter the Planning Commission) approved the subdivision plan for section 1, phase 1, which proposed five fifteen acre lots on a total of 76.67 acres, and approved the phasing plan for the remainder of the Property. The approval for section 1, phase 1 was final and permitted development to go forward, subject to appeal, but the approval of the phasing plan was not a final subdivision approval.

The St. Mary's County Board of County Commissioners (hereinafter the County Commissioners), appellant and cross appellee, and the St. Mary's County Health Department (hereinafter Health Department) appealed to the St. Mary's County Board of Appeals (hereinafter the Board). On February 5, 2001, the Board reversed the Planning Commission's approval. Thereafter, Gollahon filed a petition for judicial review in the Circuit Court for St. Mary's County. On January 13, 2003, the circuit court reversed the Board. The County Commissioners appealed to this Court.

We agree with the circuit court that the Board's decision cannot be affirmed, but we disagree with the court's disposition. Consequently, we shall reverse the judgment of the circuit court, vacate the decision of the Board, and remand the case to the Board for further proceedings consistent with this opinion.

Factual Background

In the 1950's, the Property was owned by Hunter Chemical Corporation and Federal Ordnance Corporation, which manufactured and tested ordnance for the United States Navy from 1952 to 1956. The ordnance included items known as detonators, igniters, fuse boosters, and similar items containing relatively small amounts of explosives, used to detonate munitions. Approximately 100 acres of the Property were used in the manufacturing process. The companies buried unwanted live ordnance on the property as a means of disposing of it.

In 1959, Thiokol Chemical Corporation (hereinafter Thiokol)² purchased the Property. In 1966 and 1967, Thiokol performed an investigation of the site, located three burial sites, and removed ordnance. Documents indicate, however, that even after this removal process, Thiokol believed that live ordnance remained on the Property.

In the early 1980's, all buildings on the Property were razed. In 1984, the Property was placed on the State's List of Potential Hazardous Waste Sites so that it could be evaluated. In 1985, the Maryland Department of the Environment (MDE) conducted a preliminary assessment and determined that the site was a low priority for investigation. In 1989, NUS Corporation performed an assessment of the Property for the Environmental Protection Agency (EPA). The NUS Corporation described chemicals found on the site, indicated that they did not pose significant health or environmental concerns, but also stated that the "greatest concern" was the reported burial of shock sensitive explosives. As a result, it recommended against activities that would disturb the soil or cause shocks to the ground. The EPA listed the site as "no further remedial action planned." In this same time frame, International Technology Corporation also investigated the Property, apparently on behalf of Thiokol.

In 1991, Thiokol decided to pursue remedial action, and a work plan was developed. According to a Thiokol report, Thiokol conducted a historical analysis, surveyed and removed all surface debris, used three geophysical methods³ to locate any buried debris, employed a consultant to intensively explore the sites identified by the surveys, and excavated the sites with the approval of the MDE and the office of the State Fire Marshal (Fire Marshal). The surveys were performed by Geophex, Ltd., and the ordnance was removed by Human Factors Applications, Inc. (HFA). Ninety six priority sites were identified through use of the surveys, by considering the information obtained in the historical investigation, and by considering the location of the former buildings. During investigation of the sites, HFA recovered detonators, flash tubes, boosters, powder rings, igniters, and squibs. A total of 1,360 pounds of material, the same as or similar to the type described above, were recovered and destroyed. In June, 1995, after the remediation was completed, Thiokol issued a report, and the report was placed in the St. Mary's County Public Library.

In January, 1999, Gollahon purchased the Property with the intent of developing a residential subdivision. Prior to the sale, Thiokol recorded a declaration of covenants among the land records, prohibiting construction on a substantial number of acres, the area where manufacturing had occurred. In early 1999, Gollahon moved ahead with his subdivision plans. In June, MDE expressed concern regarding the potential hazard of buried ordnance. MDE reviewed HFA documents and determined that HFA believed that not all sites investigated by it had been completely cleaned. HFA also advised that the surveys used might not be able to detect small amounts of ordnance and had "hit or miss capabilities."

Thiokol became re-involved and contracted with Apex Environmental, Inc. (Apex) and UXB International, Inc. (UXB) to perform additional remediation. Apex and UXB developed work plans in conjunction with MDE and the Fire Marshal. Ten sites, totaling 22.4 acres, were identified to be explored. The work plans were approved by MDE and the Fire Marshal, and the plans were determined to be in conformance with United States Army Corps of Engineers and Department of Defense standards.

According to Apex's final report dated June 30, 2000, approximately 16,000 detonators were recovered, plus small quantities of blasting caps, boosters, detonator fuses, flash tubes, and squibs. Also recovered were .5 pounds of raw propellant, .8 pounds of military dynamite, and 2.5 inert rocket warheads. In all, approximately 82 pounds of material was recovered with a net explosive weight of approximately 11 pounds. In addition, 218 tons of soil containing an estimated 3.5 to 10.4 pounds of detonators were removed from the property.

By letter dated November 23, 1999, the Fire Marshal advised Thiokol that the work plan had been completed in accordance with the work plan approved by that office, and by letter dated December 3, 1999, MDE advised Thiokol that, for the areas sampled, "no significant chemical contamination exists above acceptable risk levels". The letter further stated that once the ordnance investigation is completed, it would issue a final determination.

At some point in 1999, Gollahon applied to St. Mary's County Department of Planning and Zoning⁴ for subdivision approval. Gollahon divided the Property into two sections. Section 1, phase 1 consisted of 76.74 acres, and section 2 consisted of the remaining 716.16 acres. On February 28, 2000, the Planning Commission granted final approval for section 1, phase 1 and granted approval for the phasing plan for section 2. Robert Gollahon, John B. Norris, Jr., with NG & O Engineering, Inc., Vince DiRenzo, with Apex, and Hugh Sease, with UXB, testified in support of the application. The first paragraph of the minutes of the February 28 meeting states:

Ms. Grover stated that all agencies have issued final approvals with regard to Section 1, and there are no outstanding issues. Staff recommends approval. However, regarding the Phasing Plan for Section 2, there has been an ongoing cleanup of residual contamination from detonators previously manufactured on site by the Hunter Manufacturing Company. Applicant states cleanup has proceeded to the point where the site has deemed to be `clean' except for one large pile of dirt. However, in the absence of a final determination from MDE and in view of the number of outstanding issues on this section, including site access, staff recommends the Commission defer decision on the phasing plan until all outstanding issues are resolved.

The minutes inform us that Gollahon advised the Planning Commission that the areas of concern with respect to ordnance were contained in the area used for manufacturing, the area restricted by the declaration of covenants. Mr. DiRenzo reported on the cleanup of the site. Detonators were discussed, and Mr. DiRenzo stated they were small and would not inflict injury. Ms. Ann Rose, Director of Environmental Health, stated that, to the contrary, she was advised by a representative of UXP that detonators could cause injury. A representative of the Fire Marshal's office advised that the Fire Marshal was merely certifying that the work plan had been completed and was not certifying the site as safe for residential construction.

The County Commissioners and the Health Department requested the Planning Commission to reconsider its decision. The Planning Commission denied the request, and the County Commissioners and the Health Department appealed to the Board.

The Board held evidentiary hearings on July 13, 2000, August 24, 2000, December 4, 2000, and December 7, 2000. The Board also held a work session on July 24, 2000. That session was not recorded, and no minutes were kept.

In addition to receiving documentary evidence, the Board heard testimony from...