County Commissioners v. Arundel Corp.

BISHOP, Judge. The County Commissioners of Carroll County, Maryland (hereinafter appellant) appeals the decision of the Circuit Court for Carroll County reversing a Carroll County Board of Zoning Appeals’ (Board) rejection of two applications for conditional use permits filed by The Arundel Corporation and Tidewater Quarries, Inc. (hereinafter appellees). ISSUE Appellant asks whether the trial court erred in holding that a zoning text amendment specifying information to be submitted with certain conditional use applications, prior to ⁴²⁰ public hearings, does not apply to pending applications for conditional use permits. 1 FACTS On August 17, 1987 counsel for Tidewater Quarries, Inc., one of the appellees, submitted to the Board an application to conduct quarrying or extractive-type industries on two parcels of land located within the County’s “A” agricultural zoning district. 2 Appellee did not furnish plans or drawings indicating the present and proposed use for the site, proposed construction, or proposed site development as required. The Board notified appellee of the defects in its application and on February 5, 1988, after having received no response, advised appellee that if the defects were not cured by March 1, 1988 the application would become void.

On February 24, 1988 appellee Tidewater joined with appellee Arundel Corporation and submitted an “Amended Application” that deleted 106 acres from the originally proposed quarry site and included a narrative explanation of the nature of the request, an engineer’s site plan and a topographic map of the site. On the same date appellees filed another application for a conditional use to quarry other properties within the agricultural district. Included within this subsequent application was the parcel deleted from the “Amended Application,” some additional land, a narrative explanation of the nature of the request, an engineer’s site plan and a topographic map of the site. Prior to scheduling a public hearing on appellees’ applications, appellant enacted Ordinance T-75 which amended the ⁴²¹ Carroll County Zoning Ordinance.

Section 3 of the amendment requires applications for conditional use permits to conduct extractive-type industries in the agricultural district to be accompanied by: (a) A detailed site development plan for the proposed extractive operations indicating the following: location of extractive operations, topography, buffer areas, berms, landscaping plan, forested areas existing and/or proposed, if any, fences and fence heights, haul roads, buildings, structures, storage areas, off-street parking areas, exterior lighting plan indicating location, height and type of fixtures, storm water management structures, sediment and erosion control measures, line-of-sight and cross section studies showing where line-of-sight from surrounding properties will or will not be interrupted and any additional information which the petitioner believes appropriate. (b) A copy of all necessary State permits or letters of certification from each State agency that it has completed its review of the proposed mining operations and is prepared to issue its permit, together with a copy of the documents on which such permits are or will be issued. (c) A comprehensive hydrogeologic study incorporating geologic mapping, water budget analysis, aerial photography, test borings for subsurface exploration, photogeologic earth fracture analysis, pumping test methods and results conducted on borings, hydrogeologic data, description of data interpretations, and recommendations regarding protective methods to be employed to assure safe and environmentally acceptable operations and any additional information which petitioner believes appropriate. (d) The approved land reclamation and restoration plan required by State law.

(e) A map of the proposed truck haul routes plan showing haul routes to the nearest major highway and traffic engineering studies and analysis demonstrating the effects of any proposed extractive-type industry on ⁴²² present and projected road systems, bridges, and traffic safety conditions. (f) A noise analysis and steps taken to control any noise generated by every aspect of the operation, including the noise reduction measures to be taken to reduce noise levels leaving the site and to conform those levels of noise to law. (g) A description of dust control measures to be employed on site. (h) Hours of operation.

(i) A description of environmental impacts and planned mitigation measures. (j) Any additional information as may be required by the Planning Commission or the County Commissioners. Ordinance T-75 was adopted on March 28, 1988 and by its own terms purported to become effective immediately. The executed ordinance was filed with the Clerk of the Court on May 31, 1988. 3 The Board notified the appellees by letter of May 5, 1988 that it considered Ordinance T-75 applicable to the two pending applications and that, because the applications failed to comply with the ordinance, they were rejected.

The Board reiterated its position in two letters to appellees dated June 10 and 24, 1988 making it clear that it considered such letters to constitute the “official and final decision in this matter.” The appellees appealed the decision of the Board to the Circuit Court for Carroll County. In their memoranda and at oral argument appellees contended that Ordinance T-75 is preempted by State law, is unconstitutionally vague and overbroad, the Board improperly applied the requirements ⁴²³ of T-75 and that the Board generally infringed upon their rights to due process by not processing the applications and failing to schedule hearings within a reasonable time. The court found only that Ordinance T-75 was improperly applied retroactively and made “no comment on the validity of Ordinance T-75.” The court then remanded the matter to the Board with “instructions that it consider appellant’s applications ... in accord with the Zoning Ordinance as its provisions ... existed on February 24, 1988.” This timely appeal followed. DISCUSSION Appellant argues that Ordinance T-75 applied to the pending applications for conditional use permits.

Appellant contends that the ordinance is procedural in nature and, as such, may be applied retrospectively. In support of this contention appellant asserts that the information required to be supplied pursuant to the amended ordinance could have been requested by the Board under the previous enactment, and, retrospective application of T-75 would not deprive appellees of any vested right. Appellees respond that Ordinance T-75 was not simply a procedural amendment to the Zoning Ordinance but also changed the substance of what an applicant must prove to obtain a conditional use permit for extractive-type industries and, as such, the ordinance may not be applied retrospectively. The trial court found the following: ... [T]he Court views the Amendments contained in Section 3 of the Ordinance as substantial alterations of then-existing zoning law, significantly increasing the burden on Appellants.

T-75 requires, among other things, a comprehensive hydrogeologic study, an approved land reclamation and restoration plan, a map of proposed truck haul routes, a noise analysis, a description of dust control measures, and “any additional information as may be required by the Planning Commission or the County Com ⁴²⁴ missioners.” No such requirements existed for Applications for these Conditional Uses under the County Zoning Ordinance as it existed prior to the adoption of Ordinance T-75, and to the Court’s knowledge no similar requirements exist for Applications for other Conditional Uses____ The Court will therefore remand the matter to the Board with instructions that it consider Appellants’ Applications for a Conditional Use in accord with the Zoning Ordinance as its provisions concerning conditional uses existed on February 24, 1988. In so holding, the court relied on Janda v. General Motors, 237 Md. 161 , 205 A.2d 228 (1964) as summarized in Maryland Insurance Guaranty Association v. Muhl, 66 Md.App. 359, 364-65 , 504 A.2d 637 (1986): In Janda v. General Motors, 237 Md. 161 , 205 A.2d 228 (1964), the Court of Appeals set forth four principles for determining whether a statute is to be applied “retrospectively or prospectively”: (1) ordinarily, “a change affecting procedure only, and not substantive rights ... applies to all actions ... whether accrued, pending or future, unless a contrary intention is expressed”; (2) ordinarily, “a statute affecting matters or rights of substance will not be given a retrospective operation as to transactions, matters and events not in litigation at the time the statute takes effect" unless the Legislature expressly directs otherwise or unless its “manifest intention ... could not otherwise be gratified”; (3) even if the Legislature so intended, a statute “will not be applied retrospectively to divest or adversely affect vested rights and (4) a statute which “affects or controls a matter still in litigation when it became law will be applied by the court reviewing the case at the time the statute takes effect although it was not yet law when the decision, appealed from was rendered, even if matters or claims of substance (not constitutionally protected), as distinguished from matters procedural or those affecting the remedy