Para v. 1691 Ltd. P'ship

• Decision Date: 01 May 2013
• Docket Number: No. 0657,Sept. Term, 2011.,0657
• Citation: 65 A.3d 221,211 Md.App. 335
• Parties: Drew PARA, et al., v. 1691 LIMITED PARTNERSHIP, et al.
• Court: Court of Special Appeals of Maryland

211 Md.App. 335

65 A.3d 221

Drew PARA, et al.,

v.1691 LIMITED PARTNERSHIP, et al.

No. 0657, Sept. Term, 2011.

Court of Special Appeals of Maryland.

May 1, 2013.

G. Macy Nelson, (David S. Lynch, on the brief), Towson, MD, for Appellant.

Emily A. Vainieri (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for Appellee.

Panel: KEHOE, HOTTEN and CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

HOTTEN, J.

This appeal involves the issuance of a permit by appellee, the Maryland Department of the Environment (“MDE” or “the Department”), to appellee, 1691 Limited Partnership (“1691”), for the construction of a “big-box” retail center on freshwater nontidal wetlands in Crofton, Anne Arundel County,Maryland.¹ 1691 is a Maryland limited partnership, in the business of land development, that owns parcels of land in and around Crofton, Anne Arundel County, Maryland.

As discussed in more detail, infra, both federal and State law maintain comprehensive programs for the “conservation, regulation, enhancement, creation, monitoring, and wise use of nontidal wetlands.” Md.Code (1996, 2007 Repl.Vol.), § 5–903(a) of the Environmental Article. As a consequence, appellants, Drew Para, et al., challenged MDE's initial recommendation to issue 1691 a construction permit and argued that 1691 had neither presented substantial evidence of public need nor ruled out all other practicable alternative designs and locations for its proposed retail center.

Subsequent to MDE's initial recommendation, a contested case hearing was held before an Administrative Law Judge (“ALJ”) with the Office of Administrative Hearings (“OAH”). The contested case hearing was held over six days in September and October of 2009. On December 30, 2009, the ALJ issued a detailed Proposed Decision and Order upholding MDE's issuance of the construction permit, with certain modifications.

Appellants filed exceptions to the ALJ's recommendations and, after a hearing before the Final Decision Maker for MDE (“FDM”), MDE issued its Final Decision and Order on June 29, 2010, denying all of appellants' exceptions and affirming the ALJ's proposed decision. Appellants subsequently filed a petition for judicial review before the circuit court,² which further denied appellants' exceptions and affirmed the FDM's decision to issue a construction permit to appellees. Appellants noted an appeal to this Court, and presented seven questions for our review.³ We have consolidated, rephrased, and reordered these questions, to the extent properly before this Court, as follows:

1. Whether the record lacked substantial evidence to support the FDM's decisionthat no practicable alternative existed for 1691's proposed development?

2. Whether the FDM erred in approving 1691's wetland's mitigation plan where 1691 traded land to the County rather than donating the land to the county when the wetland's mitigation project stated that 1691 would donate the land to the County? ⁴

For the reasons that follow, we shall affirm the judgment of the circuit court.

I.STATUTORY BACKGROUND

In 1972, the United States Congress enacted the federal Clean Water Act (“CWA”) to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a) (2008). As part of this enactment, Congress noted that nontidal wetlands are a crucial natural resource that assist in the purification of the Nation's open waters and additionally “provide habitat[s] for many plants and animals.” See Richard H. McNeer, Nontidal Wetlands Protection Maryland and Virginia, 51 Md. L.Rev. 105, 106. Thus, protection of these wetlands, as important wildlife refuges, is a legitimate purpose for which the CWA was intended, United States v. Akers, 785 F.2d 814 (1986); and, as a consequence, “[t]he federal scheme, laid out in the [CWA], requires a developer to obtain a permit from the United States Army Corps of Engineers before filling wetland areas.” McNeer, supra, 51 Md. L.Rev. at 106 (citing the Federal Water Pollution Control Act Amendments of 1972, Pub.L. No. 92–500, 86 Stat., 816, as amended by the Clean Water Act of 1977, Pub.L. No. 95–217, 91 Stat. 1566 (codified as amended at 33 U.S.C. §§ 1251–1376 (2008)) (footnote omitted)). In addition, the CWA's 1977 amendments provide for an environmentally based program that delegates to state governments an option of permitting authority for discharges of dredging or fill material into the navigable waters and wetlands of the United States within that state's jurisdiction. 33 U.S.C. § 1344(g).

In response, Maryland's General Assembly enacted the Maryland Nontidal Wetlands Protection Act (“the Act”), Md.Code (1996, 2007 Repl.Vol.), §§ 5–901 through 5–911 of the Environmental Article, “[for] the purpose of establishing a statewide program for the conservation, enhancement, and regulation of nontidal wetlands in [the] State.” S.B. 481, 399th Sess. (Md.1989). See also Md.Code (1996, 2007 Repl.Vol.), § 5–902(a) of the Environmental Article (noting that nontidal wetlands play an important role in the preservation and protection of the Chesapeake Bay and other waters of the State). Cf. Md.Code (1996, 2007 Repl.Vol.), § 16–102 et seq., of the Environmental Article (outlining Maryland's purpose in protecting wetlands through the State generally). Since its enactment, the goal of the Act remains to prevent “overall loss in nontidal wetlands acreage and function and to strive for a net resource gain in nontidal wetlands over present conditions.” Md.Code (1996, 2007 Repl.Vol.), § 5–902(b) of the Environmental Article.⁵ The Act requires that persons who wish to conduct certain regulated activities within the nontidal wetlands apply for a MDE permit to lawfully engage in the regulated activity. Md.Code (1996, 2007 Repl.Vol.), § 5–906(b)(1) of the Environmental Article. Section 5–901(j)(1) of the Environmental Article classifies regulated activities as the following:

(i) The removal, excavation, or dredging of soil, sand, gravel, minerals, organic matter, or materials of any kind;

(ii) The changing of existing drainage characteristics, sedimentation patterns, flow patterns, or flood retention characteristics;

(iii) The disturbance of the water level or water table by drainage, impoundment, or other means;

(iv) The dumping, discharging of material, or filling with material, including the driving of piles and placing of obstructions;

(v) The grading or removal of material that would alter existing topography; and

(vi) The destruction or removal of plant life that would alter the character of a nontidal wetland.

Md.Code (1996, 2007 Repl.Vol.), § 5–901(j)(1) of the Environmental Article.

In general, however, MDE “may not issue a nontidal wetland permit for a regulated activity unless the Department finds that the applicant has demonstrated that the regulated activity” meets four criteria. Md.Code (1996, 2007 Repl.Vol.), § 5–907(a)et seq. of the Environmental Article. In order for the regulated activities to be permissible, they must either be “water dependant” or independent of water with no “practicable alternatives.” Id. § 5–907(a)(1).⁶ Further, the proposed regulated activity must “minimize alteration or impairment of the nontidal wetland, including existing topography, vegetation, fish and wildlife resources, and hydrological conditions.” Id. § 5–907(a)(2). It must not “cause or contribute to a degradation of groundwaters or surface waters.” Id. § 5–907(a)(3). Lastly, the proposed regulated activity must be consistent with “any comprehensive management plan that may be developed in accordance” with MDE's watershed management plans addressing nontidal wetland protection, creation, and restoration. Id. § 5–907(a)(4); Md.Code (1996, 2007 Repl.Vol.), § 5–908 of the Environmental Article.

In sum, Subtitle 5 of the Environmental Article demonstrates the legislature's efforts at balancing two important State interests. First, the General Assembly recognized the importance in protecting the Chesapeake Bay as one of the world's great estuaries that plentifully supplies blue crabs, clams, and oysters in its waters, in part, through the preservation of Maryland's nontidal wetlands. See Md. Bd. Pub. Works v. Hovnanian's Four Seasons at Kent Island, LLC (“ Hovnanian III ”), 425 Md. 482, 486, 42 A.3d 40 (2012); Foley v. Hovnanian at Kent Island, LLC (“ Hovnanian II ”), 410 Md. 128, 132, 978 A.2d 222 (2009). Second, the General Assembly acknowledged the importance of continued land development for regulated industries and population growth. It is through this lens that we now review the facts of the case at bar.

II.FACTUAL AND PROCEDURAL HISTORY

(A) 1691's Application to MDE.

On January 28, 2002, 1691 filed a permit application for construction in freshwater nontidal wetlands on property it owns in the unincorporated area of Crofton, Anne Arundel County, Maryland (hereinafter referenced as “the property”). The property is approximately seventeen to twenty acres and fronts along the west side of Maryland Route 3. The nontidal wetlands within the property are primarily the result of past sand and gravel mining activity. Notwithstanding the nontidal wetlands on the property, it is zoned C–3 under the Anne Arundel County Code and designated for general commercial development. SeeAnne Arundel Cnty.,Md., Code § 18–2–105 (2005). ⁷ Among the many permitted uses of a C–3 designated property is the development of business complexes, commercial recreational facilities, conference centers, schools, and department stores. Anne Arundel Cnty.,Md., Code § 18– 5–102 (2005) (outlining a comprehensive list of all permitted, conditional, special exception, and business complex auxiliary uses for C–3 zoned properties).

1691's application identified the proposed regulated activity as the development of a “big box” retail store greater than 130,000 square feet “with [an] associated parking lot and drives on the site of a former sand and gravel pit.” According to 1691, the...