County Com'rs of Queen Anne's County v. Soaring Vistas Properties, Inc.

• Decision Date: 01 September 1997
• Docket Number: No. 741,741
• Citation: 121 Md.App. 140,708 A.2d 1066
• Parties: , 46 ERC 1748 COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY, et al. v. SOARING VISTAS PROPERTIES, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 140

121 Md.App. 140

708 A.2d 1066, 46 ERC 1748

COUNTY COMMISSIONERS OF QUEEN ANNE'S COUNTY, et al. v. SOARING VISTAS PROPERTIES, INC., et al.

No. 741, Sept. Term, 1997.

Court of Special Appeals of Maryland.

April 29, 1998.

Lynn McLain, Baltimore (Patrick Thompson, Foster, Braden & Thompson, Stevensville and George A. Weber, III and Law Offices of Peter Angelos, Baltimore, on the brief), for appellants.

Ernest S. Cookerly, Cookerly & Barroll, LLC, Chestertown and Edward H. Hammond, Ocean City, for Amicus Curiae, County Com'rs of Kent County.

Warren K. Rich and William D. Evans (Rich and Henderson, P.C., on the brief), Annapolis, for appellees.

Argued before MOYLAN, HOLLANDER and SONNER, JJ.

HOLLANDER, Judge.

In this case, we must determine whether State law preempts a local zoning ordinance that makes construction of a sewage sludge storage facility a conditional use. Soaring Vistas Properties, Inc. ("Soaring Vistas") and Wheelabrator Water Technologies, Inc. ("Wheelabrator"), appellees, filed suit in the Circuit Court for Queen Anne's County against the following parties, all appellants herein: Queen Anne's County (the "County"); the County Commissioners of Queen Anne's County (the "Commissioners"); Michael F. Zimmer, Jr., President of the Commissioners; George P. O'Donnell, Vice-President of the Commissioners; and Mark Belton, Commissioner of Queen Anne's County. Appellees sought declaratory and injunctive relief, alleging that Maryland Code (1982, 1996 Repl.Vol.), §§ 9-230 through 9-249 of the Environment Article ("E.A.") ("Sewage Sludge Part"), preempted §§ 4002 and 7203(C) of the Queen Anne's County Zoning Ordinance (the "Zoning Ordinance").

Both parties moved for summary judgment. In their motion, appellants argued that State law did not preempt the County's right to regulate sewage sludge storage facilities. After the trial court granted appellees' motion for summary judgment, appellants timely noted their appeal. They present two questions for our review, which we have restated slightly:

I. Did the trial court err in granting appellees' motion for summary judgment, when it held that the Environment Article of the Maryland Code preempts that part of the Zoning Ordinance that makes permanent sludge storage facilities a conditional use, subject to evaluation by the County under traditional zoning criteria?

II. Did the trial court err in granting appellees' motion for summary judgment, when it held unconstitutional the Zoning Ordinance that makes permanent sludge storage facilities a conditional use subject to evaluation by the County under traditional zoning criteria?

Although not framed as a specific question, at the conclusion of their brief, appellants also asked us to remand the case to the circuit court for entry of summary judgment in their favor with respect to the preemption issue, in order to uphold "the validity of that part of the Queen Anne's County ordinance that makes sewage sludge facilities a conditional use."

For the reasons set forth below, we conclude that the trial court erred in granting summary judgment in favor of appellees, and in failing to grant summary judgment in favor of appellants. Accordingly, we shall vacate the entry of summary judgment and remand this case to the circuit court for further proceedings.

FACTUAL SUMMARY

Soaring Vistas, a wholly-owned subsidiary of Wheelabrator, owns 425.67 acres of farmland in the County, zoned for agricultural use. The land is used for farming and guided game hunting. Wheelabrator, which operates the farm through its Bio Gro Division, conducts farming operations on the land, including the production of corn, soybean, wheat, alfalfa and orchard grass hay. As part of its operation, Wheelabrator applies biosolids, also known as treated sewage sludge, to the farmland as fertilizer and soil conditioner. In order to store more sewage sludge, Wheelabrator sought to construct a 3.4 acre sewage sludge storage facility (the "Facility") on the property. The proposed facility would include two silos, each 14 feet high and 135 feet in diameter, with the capacity to hold 2,697,400 gallons, or 11,464 wet tons of sewage sludge.

On December 29, 1994, Wheelabrator applied to the Maryland Department of the Environment ("MDE") for a State Sewage Sludge Utilization Permit for the Facility, in accordance with E.A. § 9-231. Thereafter, the Commissioners advised appellees that, pursuant to §§ 4002 and 7203(C) of the Zoning Ordinance, they had to obtain a conditional use permit before the Facility could be built and operated.

On September 15, 1995, Wheelabrator filed a conditional use application with the County. Subsequently, on May 21, 1996, MDE issued a draft permit and tentative decision approving the Facility. Section (G)(3) of the draft permit provided, in part, that "[t]he issuance of this permit does not ... authorize ... any infringement of federal, state, or local laws or regulations." Attached to the draft permit was a letter to Wheelabrator from Gail Castleman, the Hearings Coordinator for the Waste Management Administration, a division of MDE. Ms. Castleman wrote that the draft permit "represents a tentative determination by the Waste Management Administration on [the] application; it is not the official finalized permit to construct and operate the wastewater sludge storage facility at the Soaring Vista Properties site near Church Hill, Maryland." (Boldface in original).

Shortly thereafter, on July 2, 1996, the Commissioners enacted Ordinance No. 96-07 (the "Moratorium"), which established a six month moratorium on all new applications for sewage sludge storage facilities or rubble landfills, and on all pending applications for those facilities. The purpose of the Moratorium was to allow County officials an opportunity to examine existing sewage sludge and rubble landfill regulations, and to modify them if necessary to protect and promote the public health, safety, and general welfare. The Moratorium prompted appellees to file suit on August 16, 1996, seeking declaratory and injunctive relief with respect to the enforcement of the Moratorium and §§ 4002 and 7203(C) of the Zoning Ordinance. The parties agree that the dispute concerning the Moratorium is now moot.

On January 7, 1997, prior to the trial court's decision concerning the cross-motions for summary judgment, A. Hussain Alhija, Acting Chief of the Design and Certification Division of MDE, issued a letter to "Concerned Citizen[s]" regarding the Facility, stating that "it is recommended that this permit be issued, but that the draft permit be amended to address certain concerns expressed by members of the community which will host this sewage sludge storage facility." Alhija attached to the letter a document titled "NOTICE OF FINAL DETERMINATION AND OPPORTUNITY TO REQUEST A CONTESTED CASE HEARING," which provided that MDE "has made a final determination to issue the Sewage Sludge Utilization Permit for this site." A document styled "Findings and Recommendations" was also appended to the letter. It stated, in part:

7. ISSUE: MDE should adhere to the County's six month moratorium on sewage sludge storage facilities and rubblefills, which started on July 2, 1996.

RESPONSE: MDE considers an application for a Sewage Sludge Utilization Permit based on environmental and public health determinations. Zoning and other local issues must be determined separately by the local authority, but the Sewage Sludge Utilization Permit does not allow the permittee to violate local laws or regulations, as stated in the draft permit's General Conditions Part G:

"2. Nothing in this permit shall be construed to preclude the institution of any legal action nor relieve the permittee from civil or criminal responsibilities and/or penalties for noncompliance with Title 7 and 9 of the Environment Article, Annotated Code of Maryland or any federal, local or other state law or regulation.

3. The issuance of this permit does not convey any property rights in either real or personal property, or any exclusive privileges nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state, or local laws or regulations."

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10. ISSUE: Increased truck traffic will cause dangerous conditions.

RESPONSE: Zoning issues are out of the jurisdiction of the Department, but as indicated in response # 7 the permit does not allow violation of local laws and regulations.

* * * 22. ISSUE: Approvals are needed from the State Fire Marshall, the Department of Agriculture, and the Department of Transportation.

RESPONSE: Approvals from these agencies are not required by law or regulation for issuance of a sewage sludge storage permit. However, as shown in response # 7 the permit does not allow violation of local laws and regulations.

(Boldface in original; italics added).

Thereafter, the trial court granted appellees' motion for summary judgment. The court also declared that §§ 4002 and 7203(C), "insofar as they apply to biosolids (sewage sludge) utilization, are unconstitutional, unlawful, null and void because they conflict with the State's statutory and regulatory scheme for issuing sewage sludge utilization permits and are impliedly preempted thereby." In a written memorandum and order dated March 10, 1997, the court explained, in pertinent part:

The local ordinances restricting sewage sludge utilization, i.e. [,] the Moratorium and Zoning Ordinance §§ 4002 and 7203(c) [sic], are preempted by §§ 9-230 through 9-249 of the Environment Article.

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In [Talbot County v.] Skipper [329 Md. 481, 620 A.2d 880 (1993) ], the Court of Appeals specifically stated that the General Assembly has preempted the field of sewage sludge utilization. The Court held that Environment Article, §§ 9-230 through 9-249, constitutes a very comprehensive scheme regulating sewage sludge utilization in Maryland (Skipper, 329 Md., at 491-92, 620 A.2d 880)[.]

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