State Dept. of Health v. Walker

• Decision Date: 04 May 1965
• Docket Number: No. 230,230
• Citation: 209 A.2d 555,238 Md. 512
• Parties: STATE DEPARTMENT OF HEALTH et al. v. Robert C. WALKER.
• Court: Maryland Court of Appeals

Page 512

238 Md. 512

209 A.2d 555

STATE DEPARTMENT OF HEALTH et al. v. Robert C. WALKER.

No. 230.

Court of Appeals of Maryland.

May 4, 1965.

Louis E. Schmidt, Sp. Asst. Atty. Gen. (Thomas B. Finan, Atty. Gen., on the brief), for appellants.

Raymond S. Smethurst, Jr., Salisbury, (Adkins & Potts, Salisbury, on the brief), for appellee.

Argued March 4, 1965 before HAMMOND, HORNEY, SYBERT, OPPENHEIMER and BARNES, JJ.

Reargued April 7, 1965 before PRESCOTT, C. J., and HAMMOND, HORNEY, MARBURY, SYBERT, OPPENHEIMER and BARNES, JJ.

MARBURY, Judge.

This is an appeal by Dr. Fred S. Waesche, Deputy State Health Officer for Worcester County and the Maryland State Department of Health, from an order directing the issuance of a writ of mandamus, after a hearing by the Circuit Court for Worcester County, sitting without a jury, commanding appellants and the Worcester County Board of Health to approve two applications for water supply and sewage disposal system permits as submitted by Robert C. Walker, appellee.

The appellee is the owner of two parcels of land located on Assateague Island. Situated between the Atlantic Ocean on the east and Chincoteague and Sinepuxent Bays on the west. Assateague Island is a barrier sand reef some twenty-three miles long in Maryland and extending nine miles into Virginia, varying in width from a quarter of a mile to approximately two miles, with land elevations from zero to twelve feet above sea level. Originally a part of a long peninsula extending southerly from the Maryland-Delaware line to Chincoteague, Virginia, on a part of which is now the resort town of Ocean City, Maryland, Assateague became an island when a major storm in 1933 cut an inlet through the peninsula just south of Ocean City. Its topography ranges from white sand beaches on the Atlantic shore to marshland on the west side. Some parts are covered with trees and grass while other areas, lower in elevation and known locally as 'Foxhill Levels', are occasionally subjected to the wash of the tides. In general, the island is comparable topographically to the Ocean City area.

The portions of the island involved here lie near the middle of the Maryland area, several miles north of Foxhill Levels and several miles south of the Ocean City inlet, being a part of or contiguous to an area that has been subdivided in accordance with a recorded plat entitled 'Ocean Beach, Inc., Maryland, Section A.' This plat had been previously approved by the State Department of Health as complying with the rules and regulations promulgated under the authority of Code (1957), Article 43, section 396. The first of the subject parcels is a fifty acre tract on the west side of the island near Chincoteague Bay at a point where at one time construction was begun on a bridge from the island to the mainland; the other is a 200' X 200' parcel representing two adjacent lots in the platted subdivision of Ocean Beach, Section A. For these two locations appellee designed sewage disposal systems which collected waste matter in 1000 gallon sedimentation tanks and discharged the liquid effluent therefrom into drain fields in the adjacent ground through a distribution box which regulates the flow to various sections of the drain field. The design of the systems was never questioned by the health authorities.

Walker submitted his designs and other relevant data to the office of the Deputy State Health Officer for Worcester County on May 27, 1963, on application forms supplied by the Health Department entitled 'Application for Water Supply and Sewage Disposal System Permit.' The application for the fifty acre tract described above was designated as permit No. 120-63; and the two lots were included in another application permit No. 121-63. These were received by Miss Alice Schoolfield, a sanitarian on the Department's staff for Worcester County, who in company with the appellee, proceeded to the two sites to inspect the land and test the percolation qualities. At the first site, it being the fifty acre parcel on which Walker proposed to construct a hunting lodge, a test pit was dug in the sand and filled with water. The sanitarian timed the seepage or percolation of the water and recorded the result, 3 inches in 2 minutes, on application permit No. 120-63. They then proceeded to the site of the next parcel, the two contiguous 100' X 200' lots, where another test pit was dug. However, since there was no water available in the vicinity and since in her opinion the higher elevation and similar sandy soil justified it, Miss Schoolfield estimated the percolation time for the second parcel to be 1 inch in 1 1/2 to 2 minutes, and entered this information on permit application No. 121-63. It is relevant to point out that the minimum percolation time required by the State Department of Health regulations is 1 inch in 5 minutes.

Application No. 120-63, which was submitted on the same day the percolation tests were conducted, was approved by Miss Schoolfield as an authorized agent and representative of Dr. Waesche, although appellee was not so informed. Application No. 121-63 was not actually received by Dr. Waesche's office until February 8, 1964, and in accordance with a directive in the form of a letter dated April 4, 1963, from Dr. Perry F Prather, Commissioner of Health, received by Dr. Waesche, was neither approved nor denied. However, both applications were sent to the Department's office in Baltimore as directed. When some time had passed without any word as to the disposition of his permit applications, appellee contacted Dr. Waesche only to be informed that the Department of Health had directed that all such applications for Assateague Island be forwarded to Baltimore for review. Then, when ten months had elapsed without any indication from the appellants as to the status of his permit applications, Walker on March 9, 1964, filed a petition for a writ of mandamus to require the appellants to either approve or disapproved the applications. Almost immediately, he received a letter from Dr. Waesche enclosing a copy of a letter to him from Dr. Prather dated March 26, 1964, in effect denying the permits for the stated reasons that 'the soil and geographical conditions of these areas are such as to preclude a safe and proper operation of the desired installations.' Upon receipt of this letter, appellee again petitioned for a writ of mandamus to review the actions of the appellants, alleging among other matters, that the denial of the permits was arbitrary and without justification.

At the hearing before Judge Prettyman, Walker testified that he was an architect, engineer and land surveyor registered in several states including Maryland. It was shown that he had been retained in the early 1950's by the promoters of the Ocean Beach project as their consulting engineer, had done all of the field surveying and engineering work necessary to the preparation of the recorder plats of the development, including the plat of Section A, and in connection therewith had determined elevations throughout the Maryland portion of the island with reference to the established United States Coast and Geodetic Survey benchmarks. He had also been retained as an engineer to supervise the construction of a private toll bridge from the island to the mainland. In the sanitation field, it was established that appellee had, subsequent to his formal education in that field, designed and supervised the construction of many installations of sewage disposal systems in Maryland and other states. More particularly, he testified that he had designed and installed systems both in the Ocean City area and on Assateague Island that had been approved by the health authorities. In his opinion, many of those systems had been on sites less favorable than these which are the subject of this litigation. After indicating that he was familiar with the sites in question, Walker was of the opinion that the requirements imposed by the regulations had been met and that from an engineering standpoint, there was no reason why the permits should have been denied.

Miss Schoolfield, a sanitarian with twenty years' experience in the Worcester County area, confirmed her percolation tests and stated without equivocation that in her opinion the soil at the two sites belonging to the appellee was suitable for subsurface drainage and that both of the submitted designs complied with the Department's regulations which she administers.

Dr. Waesche, who is charged with the responsibility of administering the regulations of the Department in Worcester County, testified that Miss Schoolfield's approval of permit application No. 120-63 was done with his knowledge and concurrence, and that application No. 121-63 also fully complied with the regulations, although he had not formally approved it because of the intervention of the Department officials in Baltimore. It was further developed that it was not the custom of the Department to require him to refer such applications to it for review. The record indicates that this was the only time that such a request had been received. He also stated that until receipt of the letter from Dr. Prather directing all applications for Assateague to be sent to Baltimore, permits had been granted on the island for lots that were comparable to those owned by the appellee.

To answer the allegations of the appellee's petition for a writ of mandamus, the Department first called as a witness Dr. Prather. However, he stated that he was not familiar with either appellee's applications or the sites in question, had never been on or flown over Assateague Island, and in denying the permit applications he relied entirely upon the advice of his engineer, Robert Brown.

The record shows that Brown identified himself as the Chief, Bureau of Environmental Hygiene, Maryland State Department of Health, a post which he has held since 1951 and in which he oversees, among other matters, the regulation...