Md. Dep't of The Env't v. Days Cove Reclamation Co. Inc.

• Decision Date: 30 August 2011
• Docket Number: No. 1725,2008.,Sept. Term,1725
• Citation: 27 A.3d 565,200 Md.App. 256
• Parties: MARYLAND DEPARTMENT OF the ENVIRONMENT, et al.v.DAYS COVE RECLAMATION CO., INC.
• Court: Court of Special Appeals of Maryland

200 Md.App. 256

27 A.3d 565

MARYLAND DEPARTMENT OF the ENVIRONMENT, et al.

v.DAYS COVE RECLAMATION CO., INC.

No. 1725

Sept. Term

2008.

Court of Special Appeals of Maryland.

Aug. 30, 2011.

Dan Friedman (Douglas F. Gansler, Atty. Gen., Kathryn M. Rowe, Jacquelin Russell, on the brief), Annapolis, MD, for Appellant.James J. Doyle, III (Warren K. Rich, on the brief), Annapolis, MD, for Appellee.Panel: KRAUSER, C.J., JAMES R. EYLER, and CHARLES E. MOYLAN, JR., (Retired, Specially Assigned), JJ.¹KRAUSER, C.J.

We are asked to decide whether Chapter 161 of the 2007 Laws of Maryland ² is a “special law” under Article III, § 33 of the Maryland Constitution and, as a consequence, prohibited by it.

Enacted in 2007, Chapter 161 prohibits the Maryland Department of the Environment (“MDE”) from issuing a permit for the construction or operation of a rubble landfill within close proximity to certain waterways in the State of Maryland. Fearing that its planned landfill was subject to this legislative proscription, Days Cove Reclamation Company (“Days Cove”), appellee, filed an action in the Circuit Court for Baltimore City, claiming that Chapter 161 is an unconstitutional “special law,” that it denies Days Cove due process and equal protection of the law, and that it effectuates an unlawful taking of Days Cove's property. Concluding that Chapter 161 is an unconstitutional special law, the Baltimore City circuit court granted summary judgment in favor of Days Cove. The State of Maryland, the MDE, and its Secretary, appellants, contend that that decision was in error and request that we reverse and remand, a request that, for the reasons set forth below, we shall grant.

BACKGROUND

In 1995, before the enactment of Chapter 161, Days Cove, with the intention of constructing and operating a rubble landfill, leased a parcel of land in Queen Anne's County that would later fall within the proscriptions of that statute. Although Queen Anne's County initially approved the construction of the landfill and incorporated it into the county's solid waste management plan, it thereafter repeatedly attempted to withdraw its approval. Those attempts proved unsuccessful at the appellate level. See Days Cove Reclamation Co. v. Queen Anne's County, 146 Md.App. 469, 807 A.2d 156 (2002) (“ Days Cove II ”); County Comm'rs of Queen Anne's County v. Days Cove Reclamation Co., 122 Md.App. 505, 713 A.2d 351 (1998) (“ Days Cove I ”).

In Days Cove I, we found that an attempt by the Queen Anne's County Commissioners to amend the County's solid waste management plan, so as to de-list Days Cove's proposed rubble landfill from that plan, was pre-empted by State law.³ We reasoned that the Commissioners' prior inclusion of the landfill in the plan had the effect of completing and thereby ending its planning role within the general scheme established by the Maryland Code, §§ 9–501 through 9–521 of the Environment Article (“EN”), because the “ legislature has reserved the ‘permit-issuing segment’ of the process to the MDE.” Days Cove I, 122 Md.App. at 523, 713 A.2d 351. We, therefore, concluded that the Commissioners' attempt to de-list the proposed rubble landfill “breach[ed] the ‘permit’ power ... specifically reserved for the State,” id. at 526, 713 A.2d 351, and upheld the ruling of the circuit court, enjoining the Commissioners from amending the County's solid waste management plan. Id. at 520–26, 713 A.2d 351. Then, in Days Cove II, when the Queen Anne's County Board of Appeals denied Days Cove's application for a conditional use to operate its proposed rubble landfill, we declared that, in the absence of any evidence to demonstrate the unsuitability of the site, the Board of Appeals was required to issue Days Cove a conditional-use zoning permit for its proposed landfill. Days Cove II, 146 Md.App. at 485–94, 506–08, 807 A.2d 156.

But that did not signal the conclusion of the approval process. Days Cove's landfill application still had to be approved by the MDE.

Parenthetically, we note that, in 2004, Queen Anne's County did amend its zoning ordinance to exclude rubble landfills as a conditional use anywhere in the county. That amendment does not, as both sides acknowledge, apply to Days Cove's pending application, but it does prospectively preclude any future applications.

Then, in 2006, the General Assembly enacted, as an emergency measure, the legislative predecessor to Chapter 161, Chapter 228, Laws of Maryland 2006 (“Chapter 228”), which created the same measures to protect the same waterways that Chapter 161 later would. But, its protective measures, in contrast to those of Chapter 161, were to expire after three years.⁴ It amended EN § 9–204 by inserting a new subsection (m):

The Secretary may not issue any permit under this section to construct or operate a rubble landfill within 4 miles of Unicorn Lake in Queen Anne's County, within 1 mile of the Piscataway Creek, a Piscataway Creek tributary, or the Mattawoman Creek, or within 1 mile of any other tributary in Prince George's County that flows directly or indirectly into the Potomac River.

In response to Chapter 228, Days Cove filed a lawsuit in the Circuit Court for Baltimore City, claiming, among other things, that Chapter 228, the precursor to Chapter 161, was an unconstitutional “special law.” The circuit court disagreed and denied Days Cove's subsequent request for summary relief on that ground. This suit was voluntarily dismissed when Chapter 228 was superceded by Chapter 161, which re-imposes Chapter 228's prohibitions, but contains no cut-off date, as Chapter 228 did.

The enactment of Chapter 161 prompted Days Cove to file the instant lawsuit, claiming that Chapter 161, like its legislative predecessor, Chapter 228, is an unconstitutional special law. It further alleged, as it did with respect to Chapter 228, that Chapter 161 denies Days Cove due process and equal protection of the law and that it effectuates an unlawful taking of Days Cove's property. Granting Days Cove's motion for summary judgment, the Baltimore City circuit court held that Chapter 161 is invalid under Article III, § 33 of the Maryland Constitution because it is a prohibited special law.

DISCUSSION

Before proceeding any further, we believe that it would be helpful to first address the lens through which Days Cove views Chapter 161, a lens so narrow in focus that it distorts rather than enhances that provision of the law. Throughout its brief, Days Cove concentrates only on the application of Chapter 161 to Queen Anne's County, largely ignoring the application of the law to other parts of the State, namely, Prince George's County and, possibly, Charles and Kent Counties as well.⁵ That focus is appropriate, maintains Days Cove, because, in applying the statute providing for severability of unconstitutional statutory provisions,⁶ one can “properly sever[ ] the portion of the law dealing with the geographic area of Queen Anne's County, from the area of Prince George's County.” Applying this approach, it contends that “there could be no serious contention that[, within Queen Anne's County, Chapter 161] applies, and can only apply, solely to Days Cove.”

Days Cove then proceeds to misconstrue the circuit court's decision. Asserting that “the Circuit Court properly exercised its responsibility in analyzing and striking down as little of the law as necessary,” Days Cove claims that, because “the statute deals with distinct and separate subject matters and two distinct areas of the state, it was perfectly proper, ... [for] the Circuit Court to limit its analysis to the Days Cove application in Queen Anne's County, and to refrain from considering constitutional challenges to the statute as a whole[.]” But the circuit court's decision did much more than that, as it struck down the entire statute in all its applications. Although the circuit court initially suggested that it was only concerned with the application of Chapter 161 in Queen Anne's County, it nonetheless found the entire statute to be unconstitutional, declaring: “For the reasons cited above, the Court shall enter a Declaratory Judgment finding that Chapter 161 of the 2007 Acts of the General Assembly is an invalid special law in violation of Art. III, § 33 of the Maryland Constitution.”

And Days Cove cites no authority for the proposition that, in construing a law applying to widely separated geographical regions, a court may first limit its focus to a single location, analyze the law's impact on that location only, without reference to the statute as a whole, and then declare the entire law to be unconstitutional, which was precisely what the court below did. Nor are we aware of any such authority.

The cases cited by Days Cove in support of its severability argument indicate that severance is permissible, but only after a judicial determination that the law in question is unconstitutional and that the constitutional portion of the measure can be salvaged by excising the offending section or phrase. Reno v. American Civil Liberties Union, 521 U.S. 844, 882–85, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (declining, with one narrow exception, to apply severability clause to facially overbroad Communications Decency Act of 1996 because Act was not “readily susceptible” to limiting construction); Alaska Airlines v. Brock, 480 U.S. 678, 107 S.Ct. 1476, 94 L.Ed.2d 661 (1987) (holding that unconstitutional legislative-veto provision was severable from remaining parts of Airline Deregulation Act of 1978); National Treasury Employees Union v. United States, 990 F.2d 1271 (D.C.Cir.1993) (after invalidating honorarium ban in § 501(b) of the Ethics in Government Act on First Amendment grounds, Court of Appeals severed portion of statute covering Executive Branch only, leaving intact honorarium ban on members of Congress and judiciary), rev'd in part on other grounds, 513 U.S. 454, 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995); Montrose Christian School v. Walsh, 363...