Piney Orchard Cmty. Ass'n v. Md. Dep't of the Env't
| Decision Date | 01 December 2016 |
| Docket Number | No. 1124, Sept. Term, 2015,1124, Sept. Term, 2015 |
| Citation | 149 A.3d 1175,231 Md.App. 80 |
| Parties | Piney Orchard Community Association, et al. v. Maryland Department of the Environment, et al. |
| Court | Court of Special Appeals of Maryland |
G. Macy Nelson, Towson, MD, for Appellant.
Anthony G. Gorski (Peter C. Hershey, Rich and Henderson PC, Annapolis, MD, Douglas K. Thornton, Frederick, MD), on the brief. Stephanie C. Williams (Brian E. Frosh, Atty. Gen., on the brief), of Baltimore, MD, for Appellee.
Meredith, Berger, James R. Eyler (Senior Judge, Specially Assigned), JJ.
This appeal arises from a decision by Appellee, the Maryland Department of the Environment (“MDE” or “the Department”), to issue a refuse disposal system permit to Appellee, Tolson and Associates, LLC (“Tolson”) on November 24, 2014. The Tolson Rubble Landfill permit (“permit” or “the permit”) authorized Tolson to construct and operate the Tolson Rubble Landfill (“Tolson Landfill” or “the Landfill”) located on Capital Raceway Road in Anne Arundel County, Maryland. Although it was not issued until 2014, Tolson applied for the permit in July of 2002.
Appellants,1 Piney Orchard Community Association, et al. (“Piney Orchard”), filed a petition for judicial review in the Circuit Court for Anne Arundel County on December 19, 2014, challenging MDE's grant of the permit to Tolson on the grounds that MDE did not comply with Md. Code Ann., Environment Article (“EN”), § 9–210(a)(3)(i).2 The circuit court affirmed MDE's decision to grant the permit. Appellant Piney Orchard timely noted an appeal to this Court.
On appeal, Appellants present two issues for our review,3 which we rephrase as follows:
For the reasons discussed below, we shall affirm the judgment of the Circuit Court for Anne Arundel County.
MDE is the State agency vested with authority to regulate the installation, alteration, and extension of refuse disposal systems. See EN §§ 1–101(k), 9–204(d) ; see also COMAR 26.04.07.03B(1). A rubble landfill site, like the one that Tolson proposed to build, is a refuse disposal system, which requires a permit from MDE. Once an application is submitted to MDE, MDE begins a complex review that proceeds in three “phases.” COMAR 26.04.07.13 –.18. At the completion of each of these phases, the applicant must submit a report, which is reviewed and approved by MDE's Solid Waste Management Program before the next phase begins.
Phase 1 of this process—and the part that is most important to this case—primarily entails a preliminary review of the application and the site itself and an opportunity for a public informational meeting, during which MDE accepts and responds to comments from members of the public. COMAR 26.04.07.14 ; see also EN § 9–210(a). Phase 2 focuses on the soil, geology, and hydrology of the proposed site. COMAR 26.04.07.15. During Phase 3, MDE compares the applicant's engineering plans and reports with MDE's technical regulatory requirements and ensures that the proposed landfill will be constructed in a manner that protects public health, public safety, and the environment. COMAR 26.04.07.16.
Pursuant to EN § 9–210(a), after MDE has reported the findings of its preliminary Phase 1 in writing to the county's chief executive official and planning commission, it must cease processing the application until the County has completed its review of the site “and has provided to the Department a written statement that the refuse disposal system: (i) Meets all applicable county zoning and land use requirements ....” EN § 9–210(a)(3)(i). The statute makes clear that the three steps required by EN § 9–210(a) must be followed in this sequence. EN § 9–210(a) and (b). Furthermore, MDE completes most of Phase 1 by the time it requests the County's evaluation and certification of the site, except for the public notice and opportunity for an informational meeting. Critically, MDE may not complete Phase 1 and proceed to Phase 2 until it has received the statement from the County certifying the site's compliance with local zoning and land use codes. See EN § 9–210(b). Although MDE is the agency responsible for ensuring compliance with State laws and regulations, the County is responsible for determining whether a proposed site meets county zoning and land use requirements. See EN § 9–210(a)(3)(i).
After all three phases of MDE's review, MDE prepares a draft permit and tentative determination and holds a public hearing on the tentative determination. EN § 1–604. Depending on the comments received during the public comments period, MDE may be required to prepare and issue a final determination to approve the permit. EN § 1–601(c). Pursuant to EN § 1–601(c), if a party “participated in a public participation process through the submission of written or oral comments,” that party may petition for judicial review to challenge the final determination to issue the permit. EN § 1–601(c).
Judicial review must be “on the administrative record before the Department and limited to objections raised during the public comment period,” with minor exceptions. § 1–601(d)(1). Although a party to an action for judicial review “may not challenge the applicant's compliance with zoning and land use requirements,” such a party may question whether MDE complied with § 9–210(a)(3). EN § 1–605(d). In other words, a party to an action for judicial review may challenge whether the County completed its evaluation of a proposed site and submitted a written statement to MDE certifying the site's compliance with county zoning and land use requirements, and whether the site “[i]s in conformity with the county solid waste plan.”EN § 9–210(a)(3).
The Tolson Landfill is located within a previously excavated sand and gravel mine. The landfill spans four lots covering a total of approximately 72 acres of land in Anne Arundel County. This location has been the site of sand and gravel mining for over 40 years, and mining and related operations are currently being conducted on other areas of the site. Landfill operations began on the mine in the early 1980s. In 1993, the Anne Arundel County Board of Appeals issued a special exception for the Tolson site, which permitted the construction and operation of a rubble landfill on the site. A rubble landfill is “a sanitary landfill permitted under State law and regulation as a rubble landfill.” A.A.C. § 18–1–101. A rubble landfill accepts only trees, land clearing, construction, or demolition debris. See EN § 9–210(c)(2).
A special exception is an exception to the current law in effect in the zoning district in which a “nonconforming use” of land is located, granted by the Office of Planning and Zoning. See A.A.C. §§ 18–1–101(70), § 18–15–101(d). A special exception “terminates when the use ceases operation for 12 consecutive months or when the scope of the use is so significantly reduced during the 12–month period as to change its nature or character.” A.A.C. § 18–15–104(a). The special exception granted in 1993 for the site on which the Tolson operation was located was operative at the time MDE issued the Tolson Permit.
On July 31, 2002, Tolson applied for a Refuse Disposal Permit. As part of the application process, and pursuant to the statutory requirements of EN § 9–210(a)(3), the County evaluated the site and determined whether the facility complied with local zoning and land use laws. On August 28, 2002, the Director of the Department of Public Works, Ronald E. Bowen, and Planning and Zoning Officer in the Office of Planning and Zoning for Anne Arundel County, Denis Canavan, sent MDE a letter stating “Tolson and Associates, L.L.C. proposed Rubble Landfill in the Crofton Area of Anne Arundel County meets all applicable zoning requirements and conforms to the current Solid Waste Management Plan.” There is no dispute that the County completed its review of Tolson's proposed rubble landfill and that it had provided to MDE a written statement that the landfill met the statutory requirements prior to MDE's continuation of the permit process. MDE received the completed Phase 1 Report on March 25, 2003.
MDE held an informational meeting on the permit application on July 15, 2004 after publishing a public notice of the meeting in The Capital and The Maryland Gazette newspapers on June 30, 2004 and July 7, 2004. MDE continued to process Tolson's application through the remaining two phases of the complex approval process. The Phase 2 Report was completed on November 1, 2006, and the Phase 3 Report was completed November 30, 2009.
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