Chertkof v. Department of Natural Resources, Water Resources Administration, 1253

• Citation: 402 A.2d 1315,43 Md.App. 10
• Decision Date: 09 July 1979
• Docket Number: No. 1253,1253
• Parties: Jack O. CHERTKOF, Trustee v. DEPARTMENT OF NATURAL RESOURCES, WATER RESOURCES ADMINISTRATION et al.
• Court: Court of Special Appeals of Maryland

Page 10

43 Md.App. 10

402 A.2d 1315

Jack O. CHERTKOF, Trustee v. DEPARTMENT OF NATURAL RESOURCES, WATER RESOURCES ADMINISTRATION et al.

No. 1253.

Court of Special Appeals of Maryland.

July 9, 1979.

M. Natalie McSherry, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellant.

Thomas A. Deming, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. and Edward F. Lawson, Asst. Atty. Gen., on the brief, for appellee Department of Natural Resources, Water Resources Administration.

John M. Court, Asst. County Sol. for Anne Arundel County, with whom were Richard Lazer Hillman, County Sol., on the brief, for other appellee.

Argued before MOORE, MASON and LISS, JJ.

LISS, Judge.

This case arises out of an order of the Circuit Court for Anne Arundel County which dismissed an appeal by the appellant, Jack O. Chertkof. The appeal was from a decision of the Board of Review of the Department of Natural Resources that affirmed the appellee, Department of Natural Resources, Water Resources Administration's issuance of a waterway construction permit to Anne Arundel County. The appeal was noted in the Circuit Court for Anne Arundel County on March 12, 1976. Demurrers were filed by Anne Arundel County (hereinafter, the County) and the State of Maryland which were sustained with leave to amend on July 14, 1976. An amended petition was filed on August 16, 1976. Demurrers filed by the State and the County were overruled on November 9, 1976. The case came on for hearing on June 19, 1978. It was submitted on the basis of the record before the Department and a full and complete argument was held. On October 18, 1978, the trial court ordered that the amended petition for appeal be dismissed. It is from that order that this appeal was taken.

The permit issued by the Department of Natural Resources authorized Anne Arundel County to alter, in part, the course, current and cross section of Cabin Branch, and to construct a new roadway which would be necessitated by the changes made to Cabin Branch. Cabin Branch is a small intermittent stream in northern Anne Arundel County. The drainage area of Cabin Branch at the downstream end of the permit site consists of 1177 acres. The area lies to the northeast of the Baltimore-Washington International Airport and encompasses parts of residential subdivisions known as "Shipley" and "Woodlawn Heights." Cabin Branch flows from west to east under the W.B.&A. railroad embankment, Maryland Route 648, Ritchie Street (not to be confused with Ritchie Highway), and thence, under Maryland Route 3 and on toward Curtis Creek.

The appellant owns a long tract of land in Anne Arundel County of approximately fifteen parcels totaling 150 acres that measure approximately four miles in length adjacent to and contiguous with Cabin Branch from headwaters to tidal waters. The controversy between the appellant, and the appellees dates back to 1970 when the County first began developing a series of storm drains and culverts which upon completion would drain into Cabin Branch. At that time, the appellant sought injunctive relief by way of a suit filed against the Department of Natural Resources requesting that the County be required to maintain Cabin Branch as a part of the storm water system of Anne Arundel County so as to prevent the creation of a nuisance and to provide adequate means for passing off the waters which would be concentrated and increased by the construction of the contemplated storm drains and culverts. Appellant also sought to have the Anne Arundel Circuit Court require the County to channelize Cabin Branch so that the waterway would be adequate to assume the expected increased flow. That action ultimately reached the Court of Appeals in the case of Chertkof Trust v. Department of Natural Resources, 265 Md. 291, 289 A.2d 314 (1972). The appellant's complaint in that case was dismissed as premature because construction on the storm drains had not yet begun, and because the appellant failed to exhaust its administrative remedies by noting an appeal to the Board of Review of the Department of Natural Resources.

The first applications for permits involving Cabin Branch were filed by Anne Arundel County in 1971. Two applications were filed at that time. The first involved the application here in controversy. The second was an application to replace the culvert under the W.B.&A. embankment upstream from appellant's property with a larger culvert. The latter application was withdrawn at the time of the 1973 hearing before the Water Resources Administration and was referred back to Anne Arundel County for restudy. The remaining application included the County's proposal to locate a new road, Burwood Road, along Cabin Branch between Route 648 and Ritchie Street. To implement the proposal, the County proposed to enlarge the existing culverts under Route 648, to erect a new one under Ritchie Street, and to construct a new channel for Cabin Branch extending easterly from Maryland Route 648 for approximately 1900 feet and then transacting into the existing channel of Cabin Branch. Appellant's property in the area of the Burwood Road project and downstream is flat. The stream channel is shallow. As a result, depending on the magnitude of storm related flow, a portion of the flat land would be included in the flood plain for Cabin Branch. No present development of any kind exists on the portion of appellant's land which might be affected by the occasional incidence of floodwaters.

In support of its permit application, the County, in the hearing before the Water Resources Administration, submitted engineering data which included an estimate of floodwaters in Cabin Branch resulting from a fifty-year storm event. After a lengthy hearing, the Administration concluded that the expected flow from the entire drainage area above the Burwood Road project site was estimated to be 1700 cubic feet per second (c. f. s.). This was the assumption that the proposed new W.B.&A. culvert would freely pass such flows. Mr. Chertkof testified at the October, 1973 hearing before the Board of Review that he had his own expert verify the calculations of the County. As we read the transcript, Mr. Chertkof did not challenge the figure of 1700 c. f. s. but accepted this estimate. The Board determined that the Department properly had concluded that the culverts and channel of the Burwood Road project would safely carry such floodwaters. Appellant did not appeal this determination. The Board of Review also determined, however, that the Department had not considered sufficiently the impact of additional fifty-year flood flows, attributable to the Burwood Road project itself, on downstream areas.

On the basis of this conclusion, the Board of Review remanded the application to the Department of Natural Resources for further investigation.

On remand, the Department requested and the County submitted a supplemental engineering report concerning the impact of floodwaters downstream from the project. Employing the formula used previously the engineers determined that in a fifty-year storm the Burwood Road project would contribute an additional forty c. f. s. to the 1700 c. f. s. flow. The consulting engineers (John E. Harms, Jr. and Associates, Inc.) calculated that this additional flow would increase stream depth by .25 inch and stream width by 14.5 inches. A rehearing on the issuance of the permit was held before the Board of Review on January 12, 1976, and at that rehearing the same engineers filed a supplemental report which showed an increase of depth in the channel of .25 inch, with a slight back-up at the existing culvert under Route 3 causing an increase in depth at that point of 2.5 inches. The corresponding increases in spread would be 1.5 feet in the channel as a whole and three feet at the Route 3 culvert.

On reviewing the engineers' report, an expert for the Department concluded that "the difference between flooding characteristics before and after this proposed project are so insignificant that it is impractical to measure the difference." Based on this evidence, the Board of Review concluded that the permit issued on July 7, 1975 had been properly issued.

It is from this action that the petition to the Circuit Court for Anne Arundel County was filed.

Appellant contends that there are four issues to be determined by this appeal. He states them to be as follows:

1. Was the lower court correct in affirming the decision of the Board of Review where that decision was based upon an assumption as to existing conditions, which assumption was unsupported by the evidence?

2. Was the lower court correct in affirming the decision of the Board of Review where that decision was based upon testimony which assumed optimum future development rather than existing conditions?

3. Was the lower court correct in affirming the decision of the Board of Review where that decision failed to make any provision protecting appellant's property from the adverse effects of the project proposed?

4. Was the lower court correct in affirming the decision of the Board of Review, which decision considered only the isolated effects of one project, when that project is part of an overall scheme of development which will, in total, cause significant adverse effects to the appellant's property?

1 and 2

Appellant contends that the decision of the Board of Review as to the effect of the Burwood Road project was unsupported by any competent or substantial evidence. He suggests the reports of Harms and Associates were made on the basis of assumptions which were incorrect and without any basis in fact. In his argument to substantiate these conclusions, he offers his contention that the State neglected to consider...