Erb v. Maryland Dept. of Environment, 1245

Citation676 A.2d 1017,110 Md.App. 246
Decision Date01 September 1995
Docket NumberNo. 1245,1245
CourtCourt of Special Appeals of Maryland

Page 246

110 Md.App. 246
676 A.2d 1017
John M. ERB
No. 1245, Sept. Term, 1995.
Court of Special Appeals of Maryland.
May 30, 1996.

[676 A.2d 1020]

Page 251

John M. Erb, Edgewater, pro se.

Page 252

Neile S. Friedman, Assistant Attorney General (J. Joseph Curran, Jr., Attorney General and Nancy W. Young, Assistant Attorney General, on the brief), Baltimore, for Appellee.

Argued before CATHELL, DAVIS and MURPHY, JJ.


John M. Erb, appellant, owns three adjoining lots of land in Calvert County. His application for a permit to construct a new on-site sewage disposal system, a septic system, as part of his plans to build a house on the property, was denied by the Maryland Department of the Environment (MDE), appellee. That decision was affirmed by the [676 A.2d 1021] Circuit Court for Calvert County (Clagett, J., presiding). Appellant, appearing in propria persona, appeals therefrom. We rephrase the questions he raises:

1. Is the agency's decision supported by substantial evidence or based upon an error of law?

2. Did the State deprive appellant of his property without due process of law, in that appellant's application was denied while certain variances have been granted to owners of neighboring parcels?

3. Did the State take appellant's property without providing him with just compensation?

4. Did the circuit court err in refusing to allow appellant to introduce new evidence?

5. Did the circuit court err in denying appellant a trial by jury?

Perceiving no reversible error, we shall affirm the judgment of the circuit court.

Factual and Procedural Background

Appellant has owned the undeveloped property in question since 1982, and it has been held by various members of his family since the 1920s. Combined, the lots total 6,000 square feet in area, approximately one-seventh of an acre. The lots are located on a steep slope; the grade is, on average, thirty-three

Page 253

percent or greater. The only portion of the property that is not on such a steep slope contains a natural drainage swale.

As we have stated, appellant, desiring to build a house on the property, applied to the Calvert County Health Department (CCHD) for a permit to construct an on-site septic system. An evaluation of appellant's property was performed, and, in an attempt to accommodate appellant, certain regulatory requirements pertaining to the minimum size for lots were waived. See Code of Maryland Regulations (COMAR) Nonetheless, the CCHD, finding that the placement of a septic system on appellant's property could not be accomplished within the remaining regulatory guidelines, due to the natural characteristics of the property, and that such a system could pose a serious threat to public health and lead to the pollution of the waters of this State, denied his application.

An administrative hearing was held on June 3, 1993, before an Administrative Law Judge (ALJ). Among the evidence presented was the testimony of three experts: William Haygood, a licensed sanitarian in charge of the CCHD water and sewer programs; Jay Prager, the head of the Innovative and Alternative On-Site Sewage Disposal Program for MDE; and David Edwards, a senior civil design engineer, testifying on appellant's behalf.

Edwards presented a plan to regrade appellant's property to decrease the slope to twenty-five percent, the regulatory maximum for installation of a septic system, COMAR, divert water runoff, install retaining walls, if necessary, and fill the drainage swale so as to create an area large enough for the location of the septic system. Edwards conceded, however, that even with these modifications appellant's property would still not meet all of the applicable requirements.

Haygood testified that, based upon his inspections of the property, a septic system placed thereon would fail because of the nature of the property. Of specific concern were the size

Page 254

of the lots, the topography, and the presence of the natural drainage swale. See COMAR,, Haygood stated that the placement of septic systems in ground with a grade of greater than twenty-five percent is avoided because of "the possibility of sewage erupting from the side of the slope and draining into another area." Additionally, he testified that the placement of a septic system in or near a drainage swale decreases the effectiveness of the system and is, therefore, not permitted. See COMAR

Prager's testimony was consistent with Haygood's in respect to the unsuitability of appellant's property for a septic system. Prager did not, however, testify about the potential for use of an innovative and alternative sewage system--other types of sewage disposal systems that will function properly in areas that are inappropriate for conventional[676 A.2d 1022] septic systems--on appellant's property.

The ALJ, in his Proposed Decision, concluded that appellant had failed to meet his burden of showing "that the septic system he proposes to install on his Calvert County property will comply with pertinent State Environmental statutes and regulations." See COMAR Specifically, the ALJ found that appellant's lots are located on an incline with an average grade of thirty-three percent and that appellant's property also contains a natural drainage swale, which fills with water following a moderate rainstorm. From the expert testimony, the ALJ concluded that the consequences of placing a septic system within twenty-five feet of such a steep slope is that sewage is likely to erupt out of the side of the slope and that the placement of a system within twenty-five feet of a drainage swale, even if it were filled in as suggested by Edwards, could result in an overflow to the surface, resulting in impermissible pollution of the waters of the State, see Md.Code (1987, 1993 Repl.Vol.), § 9-319 of the Environment Article (EN); COMAR, as well as being a potential serious health hazard, see EN § 9-223.

Page 255

Upon the filing of appellant's written exceptions, a hearing was held before a Final Decision Maker, a designee of the Secretary of the MDE. In his Final Decision and Order, the Final Decision Maker denied appellant's exceptions and affirmed the ALJ's decision. Appellant then challenged the MDE's decision before the Circuit Court for Calvert County. There, he filed a Motion For Leave To Amend Complaint, in which he sought to present arguments and evidence regarding the potential use of innovative and alternative on-site sewage system disposal technologies on his property. Holding that because the case was an appeal from an administrative agency and that the court may not consider matters outside the administrative record, the circuit court denied appellant's motion. The court went on to affirm the MDE's decision, finding that its decision was supported by competent, material, and substantial evidence and that the decision was not affected by any error of law.

The Agency Decision

Judicial review of this administrative agency's decision is authorized by Maryland Code (1984, 1995 Repl.Vol.), § 10-222 of the State Government Article (SG). Under subsection (h), when exercising such review, the court may:

(1) remand the case for further proceedings;

(2) affirm the final decision; or

(3) reverse or modify the decision if any substantial right of the petitioner may have been prejudiced because a finding, conclusion, or decision:

(i) is unconstitutional;

(ii) exceeds the statutory authority or jurisdiction of the final decision maker;

(iii) results from an unlawful procedure;

(iv) is affected by any other error of law;

(v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or

(vi) is arbitrary or capricious.

In general,

Page 256

a] court's role is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law

United Parcel Serv., Inc. v. People's Counsel, 336 Md. 569, 577, 650 A.2d 226 (1994); Ward v. Department of Pub. Safety & Correctional Servs., 339 Md. 343, 347, 663 A.2d 66 (1995). We must determine in each case whether the agency's decision is "in accordance with the law or whether it is arbitrary, illegal, and capricious." Moseman v. County Council, 99 Md.App. 258, 262, 636 A.2d 499, cert. denied, 335 Md. 229, 643 A.2d 383 (1994); Curry v. Department of Pub. Safety & Correctional Servs., 102 Md.App. 620, 626-27, 651 A.2d 390 (1994), cert. denied, 338 Md. 252, 657 A.2d 1182 (1995).

Our review of the agency's factual findings entails only an appraisal and evaluation of the agency's fact-finding and not an independent decision on the evidence. [676 A.2d 1023] Anderson v. Department of Pub. Safety & Correctional Servs., 330 Md. 187, 212, 623 A.2d 198 (1993). This examination seeks to find the substantiality of the evidence. "That is to say, a reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency...." Baltimore Lutheran High Sch. Ass'n v. Employment Sec. Admin., 302 Md. 649, 662, 490 A.2d 701 (1985); Anderson, 330 Md. at 212, 623 A.2d 198; Bulluck v. Pelham Wood Apts., 283 Md. 505, 511-13, 390 A.2d 1119 (1978); Moseman, 99 Md.App. at 262, 636 A.2d 499. In this context, " '[s]ubstantial evidence,' as the test for reviewing factual findings of administrative agencies, has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]' " Bulluck, 283 Md. at 512, 390 A.2d 1119 (quoting Snowden v. Mayor of Baltimore, 224 Md. 443, 448, 168 A.2d 390 (1961)). In terms of fact-finding, we must emphasize that under no circumstances may we substitute our judgment for that...

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