Department of Natural Resources v. Linchester Sand & Gravel Corp., 80

• Citation: 334 A.2d 514,274 Md. 211
• Decision Date: 19 March 1975
• Docket Number: No. 80,80
• Parties: DEPARTMENT OF NATURAL RESOURCES v. LINCHESTER SAND AND GRAVEL CORPORATION.
• Court: Maryland Court of Appeals

Page 211

274 Md. 211

334 A.2d 514

DEPARTMENT OF NATURAL RESOURCES v. LINCHESTER SAND AND GRAVEL CORPORATION.

No. 80.

Court of Appeals of Maryland.

March 19, 1975.

Warren K. Rich, Asst. Atty. Gen., Annapolis (Francis B. Burch, Atty. Gen. and Henry R. Lord, Deputy Atty. Gen., Baltimore, on the brief), for appellant.

Thomas S. Simpkins, Princess Anne (Thomas J. Spain, Princess Anne, on the brief), for appellee.

Argued before MURPHY, C. J. SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

DIGGES, Judge.

Maryland's recently enacted 'wetlands statute,' marshalled by the General Assembly to protect those vast acres of ecologically, economically, aesthetically and recreationally valuable terraqueous areas having completely, partially or periodically submerged bottoms, which are the habitats of innumerable variations of aquatic life, is the legal quagmire through which was must wade in order to resolve this dispute. ¹ Although the basic legal question requires considerable analysis, the facts of this case are not muddled.

Approximately four years ago Linchester Sand and Gravel Corporation, the appellee, purchased five acres of land, located in Somerset County and bounded on two sides by the Wicomico River and its tributary, the Dames Quarter Creek, so that the owner of that corporation, William C. Sharpley, could build two summer homes on the property-one for himself and one for his son. Approximately half of this purchase is composed of wetlands, since it becomes inundated by spring tides. ² As a consequence, Sharpley, apparently unaware of the necessity of obtaining beforehand a permit as required by Maryland Code (1974), § 9-306(a) of the Natural Resources Article, set about the task of altering the wetlands portion of the property to make it more suitable for home construction and access to the beach. To accomplish this Sharpley began to dredge the marsh and use the borrow obtained as fill for a man-made dune. In the process of doing this he created a cut into his private wetland which resulted in the despoliation of a considerable portion of both his and the adjoining public marsh. The appellant, the Department of Natural Resources, describes the destructive nature of Sharpley's activities by asserting that 'The effect of the unauthorized flacement of fill on the march area destroyed an area 40 feet by approximately 150 feet of tidal State wetlands. The larger impact, however, of this fill was to prevent the flooding of the marshland by blocking off the marsh and thereby allow water to become impounded within the marsh, cutting off the free flow of water thereupon. Part of the marsh therefore has already died with the probable enlargement of a mosquito problem.'

When these dredging and filling activities came to the attention of the department it issued a 'cease and desist order' which commanded the landowner to terminate this topographical alteration until he obtained a proper permit as is required by § 9-306. In an effort to comply with this mandate, Sharpley submitted his application, which, following departmental study, was denied by the Secretary of the Department of Natural Resources on April 10, 1973. Undeterred by what he considered to be an unreasonable action by the Secretary, Sharpley appealed to the department's board of review as is permitted by § 9-307. However, his hopes to obtain the permit through this source were also dashed when, on October 1, 1973, the board affirmed the Secretary's decision.

Having been rebuffed in his efforts to obtain a permit through these administrative processes, Sharpley then turned to the judicial branch of this State's government for relief by appealing the departmental denial of his permit to the Circuit Court for Somerset County (Duer, C. J.), where he sought a de novo trial by jury under the provisions of § 9-308. That section of the 'wetlands statute' states:

'(a) Appeal procedure; time limitation.-Any party to the appeal to the board of review pursuant to § 9-307 may appeal to the circuit court for the county in which the land is located within 30 days after the decision of the board of review.

(b) Appeal not subject to Administrative Procedure Act; de novo trial; election of jury trial no right of removal.-The appeal is not subject to the provisions of the Administrative Procedure Act. The court shall hear the case de novo. Either party may elect a jury trial. There is no right of removal.

(c) Court may set aside or modify decision if unreasonable exercise of police power.-If the court finds that the decision of the board of review appealed from is an unreasonable exercise of police power, it may set aside or modify the determination.'

At the jury trial which followed this request, Judge Duer, while deciding as a matter of law that 'reasonable preservation of a natural resource is a valid exercise of police powers,' nevertheless, permitted the jury to determine the ultimate question of whether the permit in this case should be granted. Aside from informing the jury of its general duties and upon whom the burden of proof rests, the court's instructions consisted almost exclusively of a verbatim reading of the following excerpted language from § 9-306(b) and (c) and § 9-102 of the 'wetlands statute':

'Now, it says this: 'In granting, denying, or limiting any permit, the secretary,' meaning the secretary of the Board of Natural Resources, 'or his duly designated hearing officer shall consider the effect of the proposed work with reference to the public health and welfare, marine fisheries, shellfisheries, wildlife, economic benefits, the protection of life and property from flood, hurricane and other natural disasters, and the public policy set forth in this subtitle. In granting a permit, the secretary may limit or impose conditions or limitations designed to carry out the public policy set forth in this subtitle. Upon receipt of an application for a permit pursuant to this section, the secretary or his designee,' meaning one that he would designate to act for him in his stead, 'shall hold a public hearing on the matter within 60 days after receipt of the application. A decision shall be made by the secretary within 30 days after the hearing. Failure to act in conformance with either of these requirements shall constitute automatic approval of the application for permit as stated.'

'Now, ladies and gentlemen, in the start of the Wetlands Acts, this is Declaration of Public Policy, 'It is declared that in many areas of the State, much of the wetlands have been lost or despoiled by unregulated dredging, dumping, filling, and like activities, and that the remaining wetlands of this State are in jeopardy of being lost or despoiled by these and other activities; that such loss or despoliation will adversely affect, if not entirely eliminate, the value of such wetlands as a source of nutrients to finfish, crustacea and shellfish of significant economic value; that such loss or despoliation will destroy such wetlands as habitats for plants and animals of significant economic value and will eliminate or substantially reduce marine commerce, recreation, and aesthetic enjoyment; and that such loss or despoliation will, in most cases, disturb the natural ability of tidal wetlands to reduce flood damage and adversely affect the public health and welfare; that such loss or despoliation will substantially reduce the capacity of such wetlands to absorb silt and will thus result in increased silting of channels and harbor areas to the detriment of free navigation. Therefore, it is declared to be the public policy of this State, taking into account varying ecological, economic, developmental, recreational and aesthetic values, to preserve the wetlands and to prevent the despoliation and destruction thereof." ³

The jury answered the following issue which the court submitted to it-'After weighing the facts, considering the testimony and applying the law as given to you by the court, should the requested permit be granted or denied?'-by responding, 'Granted.' Accordingly, judgment was entered in favor of the appellee.

After Sharpley's trial court victory, the Department of Natural Resources appealed to this Court, asserting that this type of extensive and nullifying judicial de novo review, under § 9-308(b), is not permitted by the Maryland Constitution because 'the judicial branch of government may not usurp the province of the administrative prerogative.' We agree with the appellant, and, therefore, will reverse the judgment entered in the circuit court. ⁴

Taken literally the language of § 9-308(b) seems to sustain the conclusion reached by the circuit court that a landowner who is not content with the Department of Natural Resources' conclusion concerning his use of his own wetlands can appeal to the judicial branch of government and in doing so have the slate cleansed to the extent that the court, or the jury if opted for, can completely substitute its own judgment for that of the administrative agency without regard to that agency's prior determination. The appellant does not argue that the words should be given a meaning at variance with this; instead, it contends that such a scope of judicial review, built into the 'wetlands statute,' is unconstitutional, as being 'a usurpation of the traditional division of powers between the legislative and judicial branches' of this State's government.

In assessing the constitutionality of an act of the General Assembly we are mindful of the fact that enactments of the Legislature are presumed to be constitutionally valid and that this presumption prevails until it appears that the enactment under consideration is invalid or obnoxious to the expressed terms of the Constitution or to the necessary implication afforded by, or flowing from, such expressed provisions. Md. Bd. of Pharmacy v. Sav-A-Lot, 270 Md. 103, 106-07, 311 A.2d 242 (1973); Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 48-49, 300 A.2d...