FREE STATE RECYCL. v. BD. OF CTY. COM'RS FREDERICK, MJG-92-1653.

• Decision Date: 14 September 1994
• Docket Number: No. MJG-92-1653.,MJG-92-1653.
• Citation: 885 F. Supp. 798
• Parties: FREE STATE RECYCLING SYSTEMS CORP., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR FREDERICK COUNTY, MD., et al., Defendants.
• Court: U.S. District Court — District of Maryland

885 F. Supp. 798

FREE STATE RECYCLING SYSTEMS CORP., Plaintiff, v. BOARD OF COUNTY COMMISSIONERS FOR FREDERICK COUNTY, MD., et al., Defendants.

No. MJG-92-1653.

United States District Court, D. Maryland.

September 14, 1994.

COPYRIGHT MATERIAL OMITTED

Ralph Gordon, Brenda D. Thew, Gordon & Simmons, Frederick, MD, for plaintiff.

Daniel Karp, Allen, Johnson, Alexander & Karp, Baltimore, MD, for defendants.

GARBIS, District Judge.

The third count of this case — in which Plaintiff seeks a declaratory judgment that Defendants' Solid Waste Amendment ("SWA") legislation was enacted in violation of Maryland and Frederick County law — was tried separately before the Court without a jury. Having heard the evidence, reviewed the exhibits, and considered the arguments of counsel made both orally and in memoranda, the Court issues this Memorandum of Decision as its findings of fact and conclusions of law. See Fed.R.Civ.P. 52(a).

For reasons stated below, the Court concludes that the procedures employed in the enactment of the SWA fail to meet the requirements imposed by Maryland and Frederick County law. The hastily passed ordinance substantially bypassed vital steps in the legislative process. By disguising the focus of the ordinance until a point at which public comment would be meaningless, the Board of County Commissioners of Frederick County (the "Board") denied Free State Recycling Systems Corp. ("Free State") and others similarly situated their statutory right to participate in the process. As a consequence of that and other statutory violations addressed in the decision that follows, the SWA enacted on November 19, 1991, must be declared invalid.

I. STATUTORY BACKGROUND

A. Maryland Law

In Maryland, local legislative bodies are given broad discretion as to the manner in which they may enact zoning ordinances. A county council is limited only by the statutory requirement that they provide notice and a public forum to interested parties before so doing. Under Section 4.04 of the Zoning and Planning Article of the Maryland Code, regulations "may not become effective until 10 days after at least 1 public hearing in relation thereto, at which parties in interest and citizens shall have an opportunity to be heard." Md.Code Ann. art. 66B, § 4.04(a) (1988).

The related notice provision, requiring the disclosure of both technical information about the hearing and substantive information about the proposed zoning legislation, reads as follows:

Notice of the time and place of the public hearing, together with a summary of the proposed regulation, restriction, or boundary, shall be published in at least 1 newspaper of general circulation in the jurisdiction once each week for 2 successive weeks, with the first such publication of notice appearing at least 14 days prior to the hearing.

Id. § 4.04(b). Taken as a whole, Section 4.04 requires that counties provide interested parties with a meaningful opportunity to be heard before they enact or alter zoning laws.

B. Frederick County Law

Frederick County has established step-by-step procedures for the proper consideration of zoning text amendments. The process is begun as follows:

An application for text amendment may be made by any citizen, initiated by resolution of the board of county commissioners, by motion of the planning commission or by any other governmental agency of the county. An application for text amendment will set forth the new text and the existing text, if any, to be deleted.¹

Frederick County, Md., Code § 1-19-68(a). Applications are to be submitted on standardized forms, filed in the office of the zoning administrator, and open to public inspection for at least sixty days before the first hearing at which they are addressed. Id. §§ 1-19-67, 1-19-68(a).

The proposed amendment is first considered by the Frederick County Planning Commission (the "Planning Commission"), whose authority and actions are governed by the next section of the code:

(a) All proposed ... text amendments will be referred to the planning commission for an investigation and recommendation.

(b) The planning commission shall hold a public hearing on the proposed text amendment in accordance with this chapter.

. . . . .

(d) Within thirty-two (32) days after the last public hearing or meeting, the planning commission shall forward its recommendation to the board of county commissioners.

Id. § 1-19-69. In sum, the Planning Commission is entrusted with the tasks of conducting the substantive evaluation of such amendments and providing the Board with recommendations informed by its expertise in zoning matters.

Within thirty days of its receipt of the Planning Commission's recommendation, the Board "shall hold a public hearing on the amendment requested." Id. § 1-19-70(1)(a). Notice of that hearing must meet the standards established in Section 1-19-72, which are essentially identical to those of Section 4.04(b) quoted above. The Board's authority to act upon the application is limited as follows:

The decision of the county commissioners approving, denying, or dismissing any application for a ... text amendment shall be rendered within sixty (60) days of the last public hearing, unless such time is extended by an official resolution adopted by the county commissioners.

Id. § 1-19-70(2)(b).

As an integrated process, Frederick County's zoning laws are designed to ensure expert evaluation of proposed amendments by the Planning Commission, full and fair notice and opportunities for comment by potentially affected parties, and informed and timely decision-making by the Board.

II. THE ENACTMENT OF THE SOLID WASTE TEXT AMENDMENT

For almost five years, Free State has attempted to secure the County and State permits and approvals needed to operate a solid waste recycling center in Frederick County, Maryland. The Board, after an election swept new members into office, vigorously opposed the project and tried to prevent Free State from securing permits from the Maryland Department of the Environment and the Maryland Department of Natural Resources. Free State responded by filing a lawsuit. To settle the suit, Free State and the Board entered into a Settlement Agreement in which the Board agreed to help Free State get the necessary State permits.²

Notwithstanding the Settlement Agreement, the Board used its control over zoning restrictions to sidetrack the Free State project. During the second half of 1991, the Board commenced procedures for amending Frederick County's zoning ordinance to address its concerns about the growing number of waste disposal facilities in the area. Among its other reasons for taking the steps, the Board sought through the amendment process to stop the Free State project.³ However, regardless of the motives for the changes, the SWA was not properly enacted.

The parties disagree as to whether Free State's facility fell within the "Recycling Operations" designation of the existing ordinance. The Court finds that it did. Although "Recycling Operations" was not given a codified definition, the classification was defined in practice and Free State met that definition.⁴ In documents dating back to 1989, the Planning Commission and the Board labeled Free State a "recycling center" and a "recycling acceptance and processing facility." At trial, Frederick County Zoning Administrator Michael Thompson testified that he considered Free State to be a recycling operation. And, before the SWA was enacted, Free State had sought and received the necessary site plan approval to engage in such an operation. In a November 5, 1990, memo to County Commissioner Wayne Keeler regarding Free State, Frederick County Planning Director Jim Shaw wrote, "I would point out that our zoning/site plan approval was for a recycling operation."

On August 8, 1991, the Board passed a resolution that directed "the planning staff to prepare proposals for zoning text amendments to provide better control over the approval and location of selected solid waste facilities." These "preliminary proposals" were to be sent "back to the Board by the first week of September for further direction and then the Board would start with scheduling." While several generalized concerns were mentioned in the resolution, no specifics were addressed and no text to be added or deleted was proposed. The Board filed no application form.

On September 26, 1991, the Planning Commission advertised a public hearing on the zoning text amendment, which was to be held on Wednesday, October 10, 1991.⁵ The notice named a number of sections of the Frederick County Code to be amended by adding definitions, specifying districts in which certain types of facilities may be located, and establishing standards for floating zone uses and special exception uses. No suggestion was made that any existing permitted use would be deleted. No suggestion was made that any changes aside from those listed in the advertisement were being considered.

The first complete draft of the SWA ("Draft 1") was available for public inspection the following day, only fourteen days before the Planning Commission's hearing. Dated September 27, 1991, Draft 1 lists the staff as the "applicant" for the amendment and, in its substantive sections, continues the classification of "Recycling Operations" as a permitted use subject to site plan approval. The applicant planning staff filed no application form.

On Thursday, October 3, 1991, the planning staff presented a revised version of the SWA ("Draft 2") to the Planning Commission for its recommendation. In its analysis attached to Draft 2, the staff made no mention of its consideration of any deletions of any existing uses from the zoning ordinance. To the contrary, they highlighted the fact that the "Solid Waste Operations" use table "includes the uses previously in the Ordinance and adds numerous new solid waste operation uses." The staff recommended "approval of the text amendment as proposed," noting only that...