Days Cove Reclamation Co. v. QUEEN ANNE'S CTY.

• Decision Date: 10 September 2002
• Docket Number: No. 1572,1572
• Citation: 807 A.2d 156,146 Md. App. 469
• Parties: DAYS COVE RECLAMATION COMPANY et al., v. QUEEN ANNE'S COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

807 A.2d 156

146 Md. App. 469

DAYS COVE RECLAMATION COMPANY et al., v. QUEEN ANNE'S COUNTY, Maryland.

No. 1572, September Term, 2001.

Court of Special Appeals of Maryland.

September 10, 2002.

Warren K. Rich (Mark F. Gabler and Rich and Henderson, P.C., on the brief), Annapolis, for appellants.

Patrick E. Thompson (Foster, Braden, Thompson & Palmer, LLP, on the brief), Stevensville, and J. Carroll Holzer (Holzer & Lee, on the brief), Towson, for appellees.

Argued before JAMES R. EYLER, BARBERA and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ. RODOWSKY, Judge.

This appeal arises out of the denial by the Queen Anne's County Board of Appeals (the Board) of a conditional use (special exception) for a rubble landfill.¹ The aggrieved applicant submits that there was a want of substantial evidence to support the Board's action. Underlying this contention are two factually-interrelated legal issues—whether the denial is sustainable under the analysis required by Schultz v. Pritts, 291 Md. 1, 432 A.2d 1319 (1981), and whether the Board encroached into areas preempted by State regulation.

In Schultz, the Court of Appeals explained that conditional uses result from the legislative determination that the use is "compatible with the permitted uses in a use district, but that the beneficial purposes [that conditional] uses serve do not outweigh their possible adverse effect." Id. at 21, 432 A.2d at 1330. The adverse effect referred to is "at the particular location proposed" and is "above and beyond that ordinarily associated with" the particular conditional use. Id. at 22, 432 A.2d at 1330. Thus, the Court held that

"the appropriate standard to be used in determining whether a requested special exception use would have an adverse effect and, therefore, should be denied is whether there are facts and circumstances that show that the particular use proposed at the particular location proposed would have any adverse effects above and beyond those inherently associated with such a special exception use irrespective of its location within the zone."

Id. at 22-23, 432 A.2d at 1331. The conditional use provisions of a county zoning code must be read with the holding of Schultz engrafted upon them. See Mossburg v. Montgomery County, 107 Md.App. 1, 21, 666 A.2d 1253, 1263 (1995), cert. denied, 341 Md. 649, 672 A.2d 623 (1996).

Days Cove Reclamation Company (DCRCo), one of the appellants, seeks to operate the landfill in an agricultural use zone on property owned by the other appellant, Springview, Inc. We shall refer to the appellants jointly as "Applicant." After hearings were conducted on three separate dates in order to accommodate the many protestants, the Board denied Applicant's request by a vote of two to one.

Applicant sought judicial review in the Circuit Court for Queen Anne's County. The circuit court concluded that some of the reasons given by the Board to support denial of the special exception were based on determinations which the State alone could make. The court further concluded that the "Board did not specifically identify those adverse impacts" which justified rejection of the proposed use under the rule of Schultz. Because the court could affirm only for reasons stated by the Board, see United Steelworkers v. Bethlehem Steel Corp., 298 Md. 665, 679, 472 A.2d 62, 69 (1984), the court remanded the matter to the Board.

Applicant appeals from that judgment. The appellees are Queen Anne's County (the County) and persons from the vicinity who oppose the project (the Protestants). There is no cross-appeal by the appellees from the order of remand.

I. Legal Background

Extraction and disposal industrial uses, including a rubble landfill, are permitted in the County as conditional uses in the Agricultural, Countyside, Suburban Industrial and Light Industrial Highway Service zones. Queen Anne's County Code § 18-1-025 (1996). A rubble landfill may not be located within 500 feet of a residential zone, and it must set back 100 feet from the boundaries of the property on which the landfill is located. County Code § 181-132(d)(7)(v).

The County Zoning Code imposes general use standards for conditional uses of any type. Pertinent here is that found in § 13-1-131(b)(3), reading as follows "The proposed use at the proposed location may not result in a substantial or undue adverse effect on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-ofway, or other matters affecting the public health, safety, and general welfare."

In addition, Maryland Code (1982, 1996 Repl.Vol.), § 9-503(a) of the Environment Article (Envir) requires each Maryland county, acting individually or in conjunction with adjoining counties, to adopt a plan dealing with, inter alia, solid waste acceptance facilities. A sanitary landfill "whose primary purpose is to dispose of, treat, or process solid waste" is a type of solid waste acceptance facility. Envir § 9-501(n). The county plan is "a comprehensive plan for adequately providing throughout the county" facilities, including solid waste acceptance facilities. Envir § 9-501(d). County plans are to be reviewed at least once every three years. Envir § 9-503(b). The Maryland Department of Environment (MDE) may require the governing body of a county to adopt, after public hearing, and submit to MDE a revision or amendment to its county plan. Envir § 9-503(c) and (d). When a county submits its proposed county plan, or revision thereof, to MDE, MDE may approve or disapprove in whole or in part or "[m]odify or take other appropriate action on the proposal." Envir § 9-507(a).

The County has a Solid Waste Management Plan. It was amended at Applicant's request in December 1994 to include, as a proposed rubble landfill, the property that is the subject of these proceedings (the Site). The amendment recited that "[t]he facility will not be allowed to accept any material until it receives all state, local and other required permits and approvals."

In June 1996 DCRCo applied to MDE for a permit to operate a rubble landfill at the Site. See County Comm'rs of Queen Anne's County v. Days Cove Reclamation Co., 122 Md.App. 505, 713 A.2d 351 (1998) (DCRCo I). It appears that DCRCo's application for a State permit is presently at the stage of MDE's review process that is described in Envir (2001 Supp.), § 9-210(a)(3) and (b), namely, MDE has ceased processing DCRCo's application awaiting the determination of the County as to whether the proposal "[m]eets all applicable county zoning and land use requirements[.]"² In November 1996 a proposed ordinance was introduced before the County Commissioners that would have amended the County's Solid Waste Management Plan, reversed the action taken in December 1994, and deleted the Site as a potential rubble landfill. DCRCo I,122 Md.App. at 514,713 A.2d at 355. DCRCo obtained an injunction against the proposed ordinance, and this Court affirmed. Based on Holmes v. Maryland Reclamation Assocs., Inc., 90 Md.App. 120, 600 A.2d 864,cert. granted, 327 Md. 55, 607 A.2d 564, and cert. dismissed, 328 Md. 229, 614 A.2d 78 (1992), this Court held that "the County may not now amend the Plan to exclude the facility because of some negative reaction from community representatives. The facility's fate is the province of the MDE." DCRCo I,122 Md.App. at 525,713 A.2d at 361.

Thereafter, by Ordinance No. 99-04, effective June 18, 1999, the County amended § 18-1-132(d) of its Zoning Code, dealing with additional standards for extraction and disposal businesses, including rubble landfills, as conditional uses. All references to geology, groundwater movements, and aquifer information were deleted. See former § 18-1-132(d)(3)(ii)1, 3, 4, and (iii)(4)(i)2. Also deleted from the Zoning Code were requirements that the proposed plan of operation of the Site describe the "types of liners or other barriers to prevent movement through the soils," and the "types of leachates generated and method of managing these materials." Former § 18-1-132(d)(3)(iii)2D and E.

The 1999 amendment also limited to data "related to storm water management" a former requirement that a plan of a proposed rubble landfill include basic data concerning soils and geology. § 18-1-132(d)(4)(i)1. Also added to the Zoning Code in 1999 was the requirement that "[s]ubmittals should demonstrate that the landfills or rubble fill will not adversely affect wetlands, floodplains, or other environmentally sensitive areas." § 18-1-132(d)(7)(vi) 6. The Board quoted this provision in its written opinion in this case.

II. Factual Background

The Site is located in an agricultural zone in the northern part of the County, a little over one mile south of Millington and over three miles north of Sudlersville. A sand and gravel pit operation, formerly conducted at the Site, has been discontinued. The Site consists of fifty-eight acres of unimproved land, lying on the southeasterly side of Glanding Road, south of its acute angle intersection with Peters Corner Road. The Site is bounded on its northeasterly side by Peters Corner Road and along its eastern boundary by railroad tracks of the Penn Central line. That right-of-way is now owned by the State of Maryland. To the south of the Site is a 143 acre farm, the frontage of which extends along the north side of Hackett Corner Road from a southern extension of the Site's eastern property line to Glanding Road.

In the northwest corner of that farm is a relatively small, separately titled parcel, zoned agricultural. It faces on the easterly side of Glanding Road and its northern boundary abuts the southwestern corner of the Site. DCRCo plans to locate a stormwater management pond in that corner. The small parcel is the home of Allen Boyles and his family. It is the closest residence to the Site. A line of trees twenty-five to fifty-five feet tall separates the Boyles's property from the Site.

On the...