Howard County v. Carroll

• Citation: 526 A.2d 996,71 Md.App. 635
• Decision Date: 01 September 1986
• Docket Number: No. 1566,1566
• Parties: HOWARD COUNTY, Maryland, v. Phillip CARROLL. ,
• Court: Court of Special Appeals of Maryland

Page 635

71 Md.App. 635

526 A.2d 996

HOWARD COUNTY, Maryland, v. Phillip CARROLL.

No. 1566, Sept. Term, 1986.

Court of Special Appeals of Maryland.

June 12, 1987.

F. Todd Taylor, Jr., Asst. Co. Sol. (Barbara M. Cook, Co. Sol., on the brief) Ellicott City, for appellant.

Susan S. James (James L. Mayer, on the brief), Ellicott City, for appellee.

Argued before GILBERT, C.J., and BLOOM and KARWACKI, JJ.

BLOOM, Judge.

Appellee, Phillip Carroll, was cited by the Sediment Control Division of the Howard County Department of Public Works for violating Section 3.402 of the Howard County Code prohibiting grading without a permit and an approved sediment control plan. He brought a declaratory judgment action in the Circuit Court for Howard County to determine the constitutionality of the Sediment Erosion and Control Ordinance, §§ 3.400-3.409 of the Howard County Code, and the applicability of that ordinance to the activities conducted on his property. Judge Guy J. Cicone, sitting without a jury, upheld the constitutionality of the ordinance, but found that Carroll's activities were exempted from its operation by section 3.402(c)(1) of the Howard County Code because those activities constituted "agricultural land management practices." Howard County appeals from that adverse decision.

The sole issue presented on appeal is whether the trial court erred in concluding that appellant's activities were exempt from the provisions of the Howard County Sediment and Erosion Control Ordinance. For the reasons set forth below, we shall affirm the decision of the circuit court.

I. Statutory Framework

Section 8-1103(e)(2)(i) of the Md. Natural Resources Code Ann. (1983 Repl.Vol. & 1986 Supp.) empowers the Department of Natural Resources to delegate to qualifying counties and municipalities the authority to enforce compliance with the provisions of the State's Sediment Control Law, sections 8-1101--8-1108. Sections 3.400-3.409 of the Howard County Code were enacted pursuant to Section 8-1103(e)(2)(i).

The purpose of the Howard County Sediment Erosion and Control Ordinance, as stated in Section 3.400, is:

to protect, maintain and enhance the public health, safety, and general welfare by establishing minimum requirements and procedures to control the adverse impacts associated with accelerated soil erosion and resultant sedimentation. Minimizing soil erosion and off-site sedimentation will minimize damage to public and private property, and assist in the attainment and maintenance of water quality standards.

Pursuant to section 3.402(a), the ordinance applies to any person who "clear[s] or grade[s] land" except those specifically exempted from its operation under section 3.402(c). Clearing refers to "[a]ny activity which removes the vegetative ground cover." Section 3.401(d). By definition, to grade is "[t]o cause disturbance of the earth. This shall include but not be limited to any excavating, filling, stockpiling of earth materials, grubbing, root mat or top soil disturbance, or any combination of them." Section 3.401(1). Those whose operations are not specifically exempted are required, under sections 3.402(b) and 3.403(a), respectively, to obtain a grading permit from the Bureau of Inspections, Licenses and Permits of the Department of Public Works and to obtain approval of an erosion and sediment control plan from the Howard County Soil Conservation District.

As does its state counterpart, section 8-1102 of the Natural Resources Article, section 3.402(c)(1) of the Howard County Code provides that a grading permit and approved sediment control plan are not required for grading or clearing associated with "agricultural land management practices." While that term is not defined in the state statute, section 3.401(b) of the County Code defines "agricultural land management practices" as involving "[t]hose methods and procedures used in the cultivation of land in order to further crop and livestock production and conservation of related soil and water resources. Logging and timber removal operations may not be considered a part of this definition."

We shall now proceed to examine the evidence presented below regarding appellee's operations.

II. Facts

Appellee is a farmer by occupation. His property, Doughoregan Manor, contains 2,400 acres of land, of which 1,100 acres are farmed. There is a ravine on the farm, approximately 2 to 4 acres in size. Sometime in 1981 appellee granted an exclusive license to Fred Allnutt, a commercial excavator, to dump various organic materials--trees, stumps, brush, dirt--into the ravine. ¹

Allnutt, the excavator, testified about the landfill operations. He noted that when the operation began trees that were in the gully had to be taken down and the gully had to be widened to get the dirt needed to cover over the trees. Later, dirt was stockpiled to finish the filling. Allnutt also discussed various sediment control measures taken in filling the ravine. A pond was created to "catch silt" and as a "holding area for the trees." In addition, the trees and brush dumped acted as "natural retainers" of silt. He considered the berm seeded on the back side of the ravine, combined with the "ponding effect" in front, to be the "prime preventer[s] of silt from going onto any other property." His inspections revealed these measures had been effective in preventing any sediment runoff.

Appellee's primary purpose in having the ravine filled was to create additional tillable land on his property. ² In fact, by this filling process, approximately four acres of land has been rendered useful to the production of crops. At trial, appellee noted that he had obtained a permit in 1985 from the Office of Environmental Programs, Department of Health & Mental Hygiene, authorizing a landfill "consisting only of tree stumps, brush and clean earth."

Kenneth Warfield, a Howard County farmer, testified that the activities appellee engaged in were commonly used by farmers to produce additional arable land. The organic fill made the land more fertile. Reducing the slopes of a ravine served to prevent soil erosion. He was unaware of any other farmers who had been required to obtain a grading permit for similar operations.

Alfred Tate, appellee's crop manager, testified that filling the ravine in the manner conducted had the triple benefits of creating additional tillable land, stopping soil erosion and making it easier for the workers to farm the crop land surrounding the former ravine. He asserted that in approximately 30 days the formerly inhospitable ground would be sowed in grain. Tate further testified that the additional cuts made into the land around the ravine were necessary to divert sediment problems. Had the cuts not been made, "you'd have a feather edge like filling, like pouring too much water in a 'bathtub' " and the dirt and limbs would flow away.

Robert Ziehm, District Manager for the Howard County Soil Conservation District, testified on behalf of the County. He stated that the District's Board of Supervisors concluded appellee's activities did not constitute an "agricultural land management practice" for the following reasons:

Basically, what the sediment control ordinance says in relation to agricultural land management practices is that they are those methods and procedures used in the cultivation of land. It makes no reference to creation of land, the reclamation of land, the renovation of land, or any similar activity. So the Board looked at it from the standpoint of, what would be appropriate in an agricultural situation for that kind of operation. And what they ... contemplated was has Mr. Carroll come to the District and requested assistance ... for purposes of ... healing the gully that was there and eventual cropping of that land, what would we have recommended. And they decided that ... because of the magnitude of the job and the extent of it and the ... fact that it had expanded over a period of several years, that it was, well beyond the scope of anything that we would have recommended, and certainly not in compliance with ... the standards and specifications for sediment control. They looked at the fact that not only was ... a gully being healed by the filling operation, but that additional undisturbed area was being excavated to depths of twenty or thirty feet and widths of twenty or thirty feet to create additional fill area.... Using organic debris in a fill is specifically prohibited by both [the] Soil Conservation Service, agricultural specifications, and it's also strictly prohibited in the standards and specifications for sediment control, which is the state wide document for sediment control plan approval.

Ziehm further testified that appellant's intent to produce tillable land was not relevant to the Board's decision. While he believed better sediment control practices should have been utilized, Ziehm admitted that "[the Board] looked specifically for evidence of sediment leaving the site and we found none."

On cross-examination, Ziehm retrenched somewhat on his position. He admitted that the Board's recommendations for sediment control practices were irrelevant if appellee were exempt under the statute. He further conceded that appellee had created farmland for crop production and acknowledged that it was not within the Board's purview to disallow the filling of a gully to produce agricultural land.

Richard Powell, Chief of the Sediment Control Division for the county, testified he believed that appellee's activities did not constitute an agricultural land management practice because appellee had gone beyond mere filling of an existing gully and, by large cuts, had created an additional area needing to be filled.

The court, in its oral ruling at trial, concluded that appellee's practices were exempt under section 3.402(c)(1) for these reasons: (1) although the activities were "admittedly vast in scope, [they were] nonetheless agricultural in nature"; (2) the...