Cnty. Council of Prince George's Cnty. v. Palmer Rd. Landfill, Inc.

• Decision Date: 27 August 2020
• Docket Number: No. 2584, Sept. Term, 2018,2584, Sept. Term, 2018
• Citation: 236 A.3d 766,247 Md.App. 403
• Parties: COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY v. PALMER ROAD LANDFILL, INC.
• Court: Court of Special Appeals of Maryland

247 Md.App. 403

236 A.3d 766

COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY

v.PALMER ROAD LANDFILL, INC.

No. 2584, Sept. Term, 2018

Court of Special Appeals of Maryland.

August 27, 2020

Argued by Rajesh A. Kumar, Principal Counsel (Prince George's County Council, on the brief), Upper Marlboro, MD, for Appellant.

Argued by Dennis Whitley (Arthur J. Horne, Jr., Shipley & Horne PA, on the brief), Largo, MD, for Appellee.

Fader, C.J., Leahy, Deborah S. Eyler (Senior Judge, Specially Assigned), JJ.

Leahy, J.

The County Council of Prince George's County, sitting as the District Council (the "Council"), appeals from a decision by the Circuit Court for Prince George's County in favor of Palmer Road Landfill, Inc. and Palmer Road, LLC (together "Palmer Road"). Palmer Road submitted an application, in 2015, for a special exception and variance to continue operating its 175-acre rubble fill site in Fort Washington, Maryland (the "Application"). The Council denied the Application in 2018 on the ground that certain procedural time limitations contained in § 27-405.1 of the Prince George's County Code ("PGCC")¹ were not followed, prompting Palmer Road's petition for judicial review in the circuit court. The court reversed the Council's order of denial and remanded the matter to the Council with instructions to approve the Application.

The ordinance in question, governing Class 3 fills, specifies that:

Within one hundred and twenty (120) days after an application for a Class 3 fill is accepted by the Planning Board, the Zoning Hearing Examiner shall conduct a public hearing. The Zoning Hearing Examiner's written decision on an application shall be issued within thirty (30) days after the public hearing. Where the District Council makes the final decision, the Council's final order shall be issued within sixty (60) days of the Examiner's decision.

PGCC § 27-405.01(a)(1) (emphasis added).

The Council presents two questions for our review,² which we have rephrased as follows:

1. Did the Council err when it denied the Application based on the failure to comply with the timeframes contained in PGCC § 27-405.01(a)(1)?

2. Did the Circuit Court err when it remanded the Council's decision with instructions to approve the special exception and variance?

We affirm the circuit court's decision to reverse the Council's denial of the underlying Application on procedural grounds because the timeframes contained in PGCC § 27-405.01(a)(1) were waived at every level of review, including when the Council decided to hold a hearing on the Application and failed to raise the issue until its decision to reject the Application. Concurrently, we vacate the court's instruction to the Council to approve Palmer Road's Application because the Council has yet to consider the Application on its merits. Accordingly, we shall affirm, in part, and vacate, in part, the judgment of the circuit court.

BACKGROUND

1. History of Site³

Palmer Road owns approximately 175 acres in Fort Washington and has been operating a Class 3 fill⁴ on the property through a series of grading permits issued by Prince George's County. The site consisted originally of forty acres on which another company, starting in 1981, operated a rubble dump and then a Class 3 fill. Palmer Road purchased the forty-acre parcel and the landfill rights in 1989.

In 1991, Prince George's County issued Palmer Road a grading permit, noted as a "reissue," after Palmer Road purchased three additional parcels to expand the site. Throughout the 1990s, Palmer Road continued to add to the site area and the County continued to issue grading permits for operation of the Class 3 fill. On June 8, 2000, when the total site area was 108 acres, the County issued Palmer Road a grading permit with an expiration date of June 8, 2005. Palmer Road subsequently placed an additional sixty-seven acres under contract and, on September 26, 2003, was issued a grading permit with an expiration date of September 26, 2005 for the proposed total site area of 175 acres.

2. CB-87-2003

On November 25, 2003, the Council enacted CB-87-2003, which imposed a special exception requirement on Class 3 fills in all zones where they are permitted. The section of the bill now codified at PGCC § 27-405.01 provides the criteria for approval of temporary special exceptions for a Class 3 fill.⁵ The bill took effect on March 31, 2004.

The sponsor of the bill had expressed concern over the "proliferation of [Class 3 fill] uses in inappropriate locations in the County without any requirements other than a grading permit." He explained that the purpose of CB-87-2003 was "to provide regulations that would allow the County to have better oversight of new and existing Class 3 fill operations." After suggestions by the sponsor were incorporated, footnotes in the sections of the bill that set forth the uses permitted in different zones provided as follows:

A Class 3 fill in existence as of October 7, 2003 that is operating pursuant to any validly issued grading permit, and is not in violation, shall be permitted to continue in operation as a matter of right, but is limited to the fill area established by any previously issued grading permit, not to exceed two renewals of the permit. Those fill operations that are in violation on October 7, 2003 have until December 31, 2003 to comply, or their permit is void.

As a result, CB-87-2003 grandfathered existing Class 3 fills, like Palmer Road, for two five-year permit renewals before requiring the fills to obtain special exception approval in order to continue.

Palmer Road, therefore, was able to continue in operation under the grading permit issued on September 26, 2003 until its expiration on September 26, 2005. Then, in accordance with CB-87-2003, Palmer Road was issued its first grading permit renewal on September 29, 2005. The second renewal was issued in September 2010.

3. 2015 Special Exception Application

On September 25, 2015, days before its second grading permit renewal was set to expire, Palmer Road submitted an application for a special exception so that it could continue the operation of the existing fill site for an additional five years. One year later, in September 2016, Palmer Road supplied the Prince George's County Planning Department, Development Review Division ("DRD") with a Statement of Justification ("SOJ") in support of the special exception request. Palmer Road included a request for a variance from PGCC § 27-405.01(a)(5)⁶ at the end of the SOJ.

Palmer Road's Application was deemed filed on October 10, 2016 when it was accepted by the DRD. On December 2, 2016, Christina Pompa, a member of the technical staff of the DRD ("Technical Staff"), emailed Palmer Road's counsel requesting a response to her comments and revisions to the special exception Application, the SOJ, and the site plan. She instructed Palmer Road to "update [the] project description in [its] application to reference [the] variance sought" and to "update [the] Introduction and Request on page 1 of the SOJ to reference the need for a variance[,]" unless Palmer Road could provide information to eliminate the need for a variance. Ms. Pompa also informed Palmer Road that she would review the resubmittal and then, if no further changes were necessary, request additional copies for the Zoning Hearing Examiner ("ZHE").

In January 2017, Ms. Pompa followed up and asked Palmer Road's counsel when the resubmittal would be filed and advised that Palmer Road would need to file a "waiver request":

Per Section 27-405.01(a)(1) of the County Code, the ZHE is required to hold a public hearing within 120 days of date of acceptance by the Planning Board. In this case, the project was accepted on October 10, 2016. Therefore the ZHE is required to hold a hearing by February 7, 2017. We are not going to make that date because the project still needs to be scheduled for a Planning Board date and the TSR needs to be published 2 weeks prior to the PB meeting date. A waiver request will need to be filed with the Zoning Section and we will provide that information to the ZHE either when we transmit the case or prior to transmitting.

That same day, Palmer Road's counsel responded to Ms. Pompa by letter stating:

Pursuant to Section 27-405.01(a)(1), the applicant respectfully requests a waiver of the 120-day review period for the above-referenced Special Exception to allow time for the applicant to address recently discovered site design related questions. Therefore, please accept this request for the Zoning Hearing Examiner hearing to be rescheduled for a later date.

One month later, on February 6, 2017, the DRD applications supervisor emailed Palmer Road's counsel to request submission of an amended special exception application, a revised SOJ, and a variance fee. Counsel replied the next day to confirm the amount of the variance fee. Then, on February 16, 2017, Palmer Road filed its resubmittal materials, including a revised special exception application and SOJ, and a point-by-point response to the items delineated in Ms. Pompa's December 2, 2016 email.

In March 2017, the Technical Staff issued its report recommending approval of the Application with conditions. Because the Planning Board did not schedule the matter for public hearing and, instead, adopted the Technical Staff's recommendation, the Application was transmitted directly to the ZHE on April 4. The ZHE held a public hearing on June 21, 2017 and issued her notice of decision, which approved the Application with conditions, on July 21, 2017.

Pursuant to its authority under PGCC § 27-312(a)(2)(C),⁷ the Council, on September 11, 2017, elected to make the final decision on the Application. On October 23, 2017, the Council held oral argument on the matter and heard from a member of the Planning Department, who gave a presentation on the Application, and from Palmer Road. The Chair noted, "[w]e have opposition, but he's not signed up to speak." After asking Palmer Road's counsel a series of questions, another...