Holmes v. Maryland Reclamation Associates, Inc.

• Citation: 600 A.2d 864,90 Md.App. 120
• Decision Date: 01 September 1990
• Docket Number: No. 2003,2003
• Parties: Charles HOLMES, et al. v. MARYLAND RECLAMATION ASSOCIATES, INC
• Court: Court of Special Appeals of Maryland

Page 120

90 Md.App. 120

600 A.2d 864

Charles HOLMES, et al. v. MARYLAND RECLAMATION ASSOCIATES, INC.

No. 2003 Sept. Term, 1990.

Court of Special Appeals of Maryland.

Jan. 29, 1992.

Certiorari granted June 15, 1992.

James R. Eyler, Baltimore (Kara M. Miller and Miles & Stockbridge on the brief), for appellant, County Council.

Patricia K. Nimmerrichter, Upper Marlboro (Bryan & Nimmerrichter on the brief), for appellants, intervenors.

Scott Burns and Charles Christianson, Baltimore, for amicus curiae, The Community Coalition of Harford County.

Robert J. Carson (Randall M. Lutz, Ronald G. Dawson, Patricia McHugh Lambert, Smith, Somerville & Case, Baltimore, William D. Hooper and Lentz, Hooper, Jacobs & Blevins, P.A., Bel Air, on the brief), for appellee, Maryland Reclamation Associates, Inc.

Argued before MOYLAN, ALPERT and MOTZ, JJ.

ALPERT, Judge.

In this, the final decade of the twentieth century, we are witness to the ceaseless changes in the law that have occurred over the past nine decades. Against the background of widespread social change, we have overhauled and augmented much of the law that prevailed at the turn of the century. There came a time when we

had to reckon with the newest social problem to demand the center of the stage, the problem of mankind and the L. Friedman, A History of American Law, 680 (1973). Recognizing the destruction, the public pressed for legal action to preserve and manage the planet's scarce and threatened resources.

                physical environment.   Air and water pollution, urban squeeze, and other symptoms of distress were old enough;  there had always been voices crying in and for the wilderness.   But the voices became more strident from the 1960s on.   A real sense of doom began hanging over this small and limited world.   Many sources fed the ecological movement....  [T]he crisis was real.   Resources were not infinite.   Big business was poisoning the rivers and darkening the air;  lumber companies were chopping down irreplaceable trees;  cities were pouring tons of muck into lakes and oceans;  highway engineers were driving concrete paths through pieces of the American heart and heritage
                

* * * * * *

This case involves a proposed rubble landfill in Harford County. The principal issue is whether the state laws governing landfills preclude Harford County, in the guise of removing the proposed landfill site from its Solid Waste Management Plan, from substituting itself for the state in the permit review process. The Circuit Court for Harford County (Whitfill, J.) entered a judgment against the Harford County Council, which the Council now appeals. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS

Maryland Reclamation Associates (hereinafter MRA) wishes to establish in Harford County a landfill for receiving rubble deposits. In late August, 1989, MRA contracted to purchase property located on Gravel Hill Road, Harford County. The land had been mined extensively since the mid-1950s, pursuant to a valid surface mining permit issued by the State of Maryland for a 7.39 acre portion of the property. The state also had issued an industrial waste management permit covering a twenty eight acre portion of MRA applied to the Maryland Department of the Environment (hereinafter MDE) for its approval of another rubble landfill at the Gravel Hill Road site. Prior to, or in conjunction with, this application, MRA was involved in discussions with the Harford County Department of Public Works and MDE concerning this proposed facility. The Department of Public Works is part of the Harford County government's executive branch.

                the property, allowing interment of broken concrete, tree stumps, and brush.   This section of the property had been used as a rubble fill for more than four years
                

MRA asked the Harford County Council (hereinafter the Council) to include MRA's proposed landfill in Harford County's Solid Waste Management Plan (hereinafter SWM Plan or Plan). The Harford County Department of Public Works supported MRA's application, and requested that the proposed landfill include a cell for asbestos interment because the County's SWM Plan had no designated asbestos interment sites. MRA agreed to this request.

At its November 7, 1989 meeting, the Council conducted a public hearing to consider the Gravel Hill Road site as a landfill. The Council heard comments from the project's proponents and opponents, plus it received detailed technical information.

At its next session on November 14, 1989, the Council passed a motion that approved including the Gravel Hill Road project in the County's SWM Plan. The Council's attorney had advised the Council that it must act on the matter before November 17, or MDE would treat MRA's request as having been approved. ¹ Council members Fielder, Hooper, Hatem, and Hardwicke voted to include the site in the Plan. Council members Risacher and Parrott abstained, stating that they had inadequate information to make the decision, particularly with respect to the asbestos MDE gave initial approval to MRA's project on November 20, 1989. MRA then filed with MDE the extensive reports and drawings required to obtain the next level of MDE approvals.

                disposal.   Council member Schafer abstained because his son, Richard Schafer, is MRA's president.   The Council also mandated twenty seven conditions governing the landfill's operation.   MRA agreed to these conditions in discussions with the Executive Branch and with the Council.   The Council transmitted to MDE its decision to include the site in the County's SWM Plan
                

After the Council agreed to include the rubble landfill in the County's SWM Plan, MRA's attorney, William Hooper, asked the Council to clarify two of the aforementioned conditions. He discussed this with the Council's president, John Hardwicke. Hardwicke apparently took the position that the language Hooper requested was in fact a clarification and not a substantive modification of the conditions previously approved. On December 8, 1989, Hardwicke directed the Secretary of the Council to send to John Lawther, Chief of MDE's Solid Wastes Division, a letter noting these clarifications. Hardwicke disclosed to the other Council members neither the clarifications nor the letter. When this later came to the Council's attention, it passed a motion and sent MDE a letter indicating that the conditions as originally stated were what the Council intended and that, in the Council's opinion, the letter of clarification was in fact a substantive modification of the conditions. The Council took this action on February 6, 1990. It made no attempt to rescind its prior decision to include MRA's property in the County's SWM Plan.

MRA proceeded with its purchase of the property. The deal closed on February 9, 1990, and MRA paid a $732,500 purchase price, financed by an $800,000 mortgage loan from the Bank of Maryland.

On February 13, 1990, Council members Wilson and Parrott introduced Resolution 4-90. The resolution follows A RESOLUTION amending the Harford County Solid Waste Management Plan to delete the Gravel Hill Road Rubble Landfill.

WHEREAS, On November 14, 1989, the County Council approved a request to add the proposed Gravel Hill Road Rubble Landfill to the county's Solid Waste Management Plan; and

WHEREAS, Ensuring an adequate and safe water supply for Harford County residents is an essential part of every land use issue decision; and

WHEREAS, In order to make a responsible land use decision, the Council needed additional time to obtain the necessary scientific information on the landfill's possible effect on the surrounding community's water supply, but was required to act on the request by November 17, 1989 under Maryland Department of Environment regulations; and

WHEREAS, A number of residents of the Gravel Hill Road area had problems with their existing water supply, and these problems may or may not have been caused by mining at the site of the proposed rubble landfill of Gravel Hill Road; and

WHEREAS, Under the current proposal for the rubble landfill the residents of the Gravel Hill Road area have no guarantee that further excavation of the landfill site will not affect their water supply; and

WHEREAS, The Harford County Water and Sewerage plan does not include the Gravel Hill Road area within the area scheduled to receive public water in the next 10 years.

NOW, THEREFORE, BE IT RESOLVED, by the County Council of Harford County, Maryland, that the Harford County Solid Waste Management Plan is hereby amended to delete the Gravel Hill Road Rubble Landfill from the Plan.

Council membership had changed by this time. Hardwicke had resigned to accept a position as the state's Chief Administrative Law Judge, and the Council had appointed At the final vote on this resolution, which the Council passed on May 8, 1990, Schafer again abstained, Fielder abstained, and Hooper abstained on advice from the Ethics Board because he is a principal in Harford Sanitation, which is in the business of trash collection. Council members Hatem, Risacher, Parrott, and Wilson voted to adopt the resolution. Neither Wilson, Risacher, nor Parrott participated in the November vote to amend the SWM Plan to include MRA's proposed rubble fill site: Wilson was not then a Council member, and Risacher and Parrott had abstained.

                Jeffrey Wilson to fill that vacancy.   Wilson and Council member Parrott introduced Resolution 4-90.   The Council held four public hearings concerning Resolution 4-90's adoption, during which it heard oral statements, and admitted letters and other exhibits
                

After the Council passed Resolution 4-90, MDE stopped processing MRA's application for an expanded rubble fill permit before it completed its technical evaluation of MRA's secondary phase applications.

MRA filed suit in the Circuit Court for Harford County against the County Council of Harford County and Harford County, Maryland, seeking declaratory relief and alleging that the...