David W. Chertkof Trust v. Department of Natural Resources

• Decision Date: 07 April 1972
• Docket Number: No. 301,301
• Citation: 289 A.2d 314,265 Md. 291
• Parties: DAVID W. CHERTKOF TRUST v. DEPARTMENT OF NATURAL RESOURCES and Anne Arundel Soil Conservation District.
• Court: Maryland Court of Appeals

Page 291

265 Md. 291

289 A.2d 314

DAVID W. CHERTKOF TRUST v. DEPARTMENT OF NATURAL RESOURCES and Anne Arundel Soil

Conservation District.

No. 301.

Court of Appeals of Maryland.

April 7, 1972.

Alan I. Baron, Baltimore (Sachs & Baron, Baltimore, on the brief), for appellant.

Warren K. Rich, Sp. Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen., Baltimore, on the brief), for appellees.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SMITH, JJ.

FINAN, Judge.

The David W. Chertkof Trust (Chertkof), property owner and appellant, brings this appeal from an order of the Circuit Court for Anne Arundel County, sitting in equity (Childs, J.), sustaining the demurrer of the Department of Natural Resources, an agency of the State of Maryland, and the Anne Arundel Soil Conservation District, a governmental subdivision of the State of Maryland, defendants below and appellees, and hereafter collectively referred to as the State, to the bill of complaint filed by Chertkof requesting injunctive relief.

Chertkof in its bill states that it owns a tract of land in Anne Arundel County consisting of approximately 33 1/3 acres and that parallel to the northern boundary of this property is a tributary of Curtis Bay known as Cabin Branch which runs along the property for about 3,500 feet, until it passes under the Baltimore and Annapolis Boulevard through a box culvert with an aperture of approximately 3.8 feet by 10.2 feet. Chertkof further alleges that the State has adopted Cabin Branch as an integral part of the storm water system of Anne Arundel County and that the State is currently in the process of constructing a series of storm drains and culverts which: (1) will increase the velocity of water run off into Cabin Branch; (2) will increase the volume of water run off into Cabin Branch; (3) will increase the sediment load carried by Cabin Branch; and (4) will result in an increased effective drainage area served by Cabin Branch. The petition also alleges that the result of current construction of culverts and storm drains will be the flooding of Chertkof's adjacent property, as well as the flooding of the Baltimore and Annapolis Boulevard due to the inadequate box culvert. It becomes significant to note that the petition states that, 'At the confluence of Cabin Branch and a tributary, where the end of a channel currently under construction by the defendants is to be located, * * * the drainage area is approximately 760 acres.'

The relief sought essentially calls upon the State to control and correct the potential flood conditions it is artificially creating by channelizing Cabin Branch and enlarging the box culvert.

The State's demurrer challenged the legal sufficiency of the bill of complaint on two grounds; (1) that Chertkof's request for an injunction was anticipatory since no actual damage was alleged, and (2) that Chertkof had not exhausted its administrative remedies. The chancellor expressly recognized the validity of both of these challenges in sustaining the demurrer and they form the issues now before us on appeal. We prefer to discuss them in an order inverse to that presented above.

Chertkof claims that there were no administrative remedies open to it. We do not agree with this. Code (1971 Supp.) Art. 96A, Sec. 12(a), requires that all parties, including the State or any political subdivisions, wishing to change the course, current or cross-section of any stream must first obtain a permit from the Department of Water Resources of the State of Maryland. Other provisions in the statute, which we will later discuss, establish a method whereby an aggrieved party may obtain an administrative review of the Department's actions. However, Chertkof claims that the Cabin Branch project is exempted from this requirement by the last phrase of Section 12(a) which provides, '* * * nor shall it apply to drainage systems designed exclusively for the purpose of collection, conveyance, or disposal of storm water.'

In response to this argument, the State contends that the Department of Water Resources by virtue of Water Resources Regulation 3.5.02C, among the regulations promulgated by that body, has determined that drainage areas of over 400 acres do not fall within the exemption of Section 12(a) of Article 96A. The reason given for this is that under Regulation 3.5.02, titled 'When Permits are Not Required,' (the exemption section), subsection C exempts: 'Storm drainage systems built by or under permit from County or City concerned and draining less than 400 acres.' By the very allegations of Chertkof's bill of complaint the Cabin Branch project drainage area contains some 760 acres, clearly beyond the purview of the regulatory exemption.

In argument before this Court the point was made as to whether the Department of Water Resources by the promulgation of a regulation could modify Section 12(a) of Article 96A. We agree that Section 5(d) of Article 96A, clearly states the general rule of law that the Department may '(not) change or modify any law enacted by the General Assembly.' However, the Department contends that it has not done this by the enactment of Regulation 3.5.02C. It reasons that the exemption from the permit requirement for drainage systems collecting or disposing of storm water, as provided by Section...