County Commissioners v. Days Cove Reclamation Co.

DAVIS, Judge. This is an appeal from a judgment of the Circuit Court for Baltimore City in favor of appellees/cross-appellants Days Cove Reclamation Company and Springview Land Partnership, Inc. (appellees). The judgment (1) enjoined appellant/cross-appellee the County Commissioners of Queen Anne’s County (appellant) from (1) amending its Solid Waste Management Plan (SWMP or Plan) to delete appellees’ proposed rubble landfill and (2) declared that Ordinance No. 96-13, an amendment to the County’s Zoning Ordinance that imposed certain terms and conditions on the establishment and operation of landfills within the County, was invalid and preempted by State law. 1 Appellees cross-appealed, asserting that Ordinance No. 96-13 violates the Commerce Clause of the United States Constitution and 42 U.S.C. § 1983 . They also argue that the Maryland Department of the Environment (MDE) should ⁵⁰⁹ have been permitted to retain overview control over the pending landfill permit.

By Order dated October 2, 1997, this Court granted a motion of Edward G. Pinder, Evelyn Glanding, and Peggy Boyles (owners of property in the neighborhood of the proposed rubble landfill) and the Millington Quality of Life Preservation Coalition (collectively, “appellant Pinder”) to be joined as appellants/cross-appellees. 2 Appellants raise three questions for our review which we have distilled for clarity: I. Did the circuit court err in holding that appellants’ proposed plan amendment was ripe for adjudication under the Uniform Declaratory Judgments Act, Md. Code, Cts. & Jud. Proc. (C.J.), §§ 8-401 to 3-415?

II

Did the circuit court err in enjoining appellant from amending its SWMP so as to remove appellees’ rubble landfill from the Plan?

III

Did the circuit court err in holding that Ordinance No. 96-13 was an invalid exercise of County zoning and land use authority? On cross-appeal, appellees raise an additional question: IV. Did the lower court err in failing to find that Ordinance No. 96-13 violated the Commerce Clause, thereby giving rise to a 42 U.S.C. § 1983 claim? We answer questions I, II, and IV in the negative; however, because we conclude that the record does .not support the trial court’s finding that several of the standards included in the local ordinance were unreasonable and failed to “bear a sub ⁵¹⁰ stantial relationship to the protection of the public,” we remand for further proceedings to determine the existence, vel non, of a nexus between the challenged “stringent performance standards” and the County’s general welfare.

FACTS On February 15, 1990, appellee Springview Land Partnership (Springview) purchased real property located at the junction of Glanding and Peters Corner Roads in Queen Anne’s County, Maryland. Appellee Springview decided to collaborate with appellee Days Cove Reclamation Company for the purpose of developing and operating a rubble landfill on the acquired property. In June 1993, appellees notified the Queen Anne’s County Department of Public Works of its desire to locate a rubble landfill on the property and requested that the County amend its SWMP to include the proposed facility. On October 18, 1994, then-Commissioner Archibald McGlashan introduced legislation amending the SWMP to provide for certain existing and planned rubble landfills, including the landfill planned for appellees’ property.

On November 1, 1994, the Commissioners held a public hearing on the proposed amendment to the SWMP. The hearing was part of a biennial review of the SWMP as required by Md. Code (1996 RepLVol.), Envir. § 9-503 (§ 9-503(b) requires a review of the plan at least once every three years). The Commissioners approved the amendment, incorporating the property as a proposed rubble landfill with the caveat that “[t]he proposed facility will not be allowed to accept any material until it receives all state, local, and other required permits and approvals.” In December 1995, representatives of appellees met with the County Administrator and the Director of the Department of Public Works to explain their plans for the rubble landfill and to seek the County’s support. Appellees assert that, at the meeting, County officials advised that a revised SWMP would be developed that would provide additional statistical data that further supported the need, both in Queen Anne’s County and throughout the Eastern Shore of Maryland, for ⁵¹¹ the planned landfill.

Appellees aver that the County officials successfully encouraged them to forego filing an application for a conditional use permit with the Board of Appeals until the revised SWMP was developed. Appellants, on the other hand, state that the County officials did not represent to appellees that the revised SWMP would support the need for the proposed landfill or advise them that appellees should delay filing an application for a conditional use permit. Nevertheless, relying on the inclusion of the property in the SWMP, appellees continued to develop plans and prepare permit applications for the proposed landfill. On June 24, 1996, appellees submitted their initial application to MDE for a refuse disposal permit for the proposed facility. 3 Along with their application, appellees submitted a Phase I Report — a site characterization that includes general information regarding site features, land use, geology of the site vicinity, and information,on the proposed facility.

Section IX of the Phase I Report, entitled “Conformance with the Queen Anne’s County Solid Waste Management Plan,” indicated that “the proposed site was included in the Queen Anne’s County Solid Waste Management Plan in 1994.” A copy of the Phase I Report was provided to the Department of Public Works. ⁵¹² On October 30, 1996, the MDE sent a letter to the County requesting the County to provide a written statement as to the status of appellees’ proposed landfill under the County’s zoning and land use requirements and the SWMP. The County responded by letter dated November 26, 1996, stating: “As the Applicants [appellees] have not received conditional use approval from the Board of Appeals, the'proposed rubble landfill is at present not in conformance with the Zoning Ordinance.” 4 As to whether the proposed facility was in compliance with the current SWMP, the County responded: The existing 1976 Solid Waste Management Plan was amended by ordinance with the introduction of legislative bill # 94-16 on October 18, 1994 which was followed by a legislative hearing on November 1, 1994 to include the proposed Unicorn Facility site as a potential rubble landfill. Therefore, this permit application is in conformance with the County’s current Solid Waste Plan as amended. Queen Anne’s County is now in the fourth month of a six month moratorium which has temporarily halted development of rubblefills and sludge storage facilities.

The County Planning Commission has recommended several modifications to the Zoning Ordinance which, if adopted, would not permit the proposed rubble landfill, even as a conditional use. Our Public Works Department is nearing completion of an updated Solid Waste Management Plan which likewise, would have an effect on this application if and when adopted. As a result of these pending matters which may directly impact this application, we ask that our request for an informational meeting concerning the Unicorn Facility be withdrawn until such time that it meets the criteria you ⁵¹³ have identified. We -will keep you advised of any future developments concerning this project.

(Emphasis added.) In a letter dated December 31, 1996, the MDE informed appellees that, because the County Board of Appeals had not granted a conditional use permit, the MDE would not proceed further with its permit review process. The letter stated: The [County’s] letter states that “this permit application is in conformance with the County’s current Solid Waste Plan as amended.” This statement satisfies the requirement under Section 9-210(a) of the Environment Article, Annotated Code of Maryland. The letter also states that “the proposed rubble landfill is at present not in conformance with the Zoning Ordinance.” This statement, however, does not satisfy the zoning and land use requirements under the same statute. Please note that MDE has no jurisdiction over local government issues such as this.

We will not proceed any further with the permit review process and will place this application in an inactive file. On November 19, 1996, the Planning Commission introduced Ordinance No. 96-13 to the Commissioners. The Ordinance was drafted by the Planning Commission with the help of County residents. It contained numerous amendments to the 1994 Queen Anne’s County Zoning Ordinance and Subdivision Regulations.

The amendments, inter alia, (1) include rubble landfills in the definition of “waste disposal facility,” (2) provide that all new waste disposal facilities be owned and operated by Queen Anne’s County or a multi-jurisdictional regional authority, (3) allow waste disposal facilities only in zoning districts designated as agricultural (AG) and suburban industrial (SI) districts, where such facilities are a conditional use, and (4) prescribe performance standards for the construction and operation of rubble landfills in the County. Neither the Planning Commission nor the Department of Planning, which advises the Planning Commission in its development of zoning amendments, conducted any survey, study, or other investigation to determine whether rubble landfills that are ⁵¹⁴ privately owned presented risks to the public health, safety, or welfare that were greater or different from the risks presented by publicly-owned facilities. In a preface to the proposed Amendments, the Planning Commission stated: “The Planning Commission is mindful that most waste sought to be disposed of in Queen Anne’s County is not generated in Queen Anne’s County.” It further noted that “Queen Anne’s County should not become a convenient ‘dumpsite’ for waste products generated elsewhere.... ” On December 17, 1996, a public hearing was held before the Commissioners, at which the Ordinance No. 96-13 received substantial support from County residents. The Commissioners enacted the Ordinance on January 7, 1997, effective as of February 21, 1997.

In or about the second week in January 1997, the County Commissioners published notice that they were proposing to adopt a revised SWMP and that a public hearing would be held on January 28, 1997. Appellees assert that they received the notice on January 27, 1997. The SWMP revisions would, among other things, remove the proposed landfill from the Plan. Representatives of appellees attended the hearing and offered oral and written comments.

County residents who owned nearby property also attended the hearing and expressed their support for the revisions. As of oral argument, no formal action had been taken with respect to the proposed revisions. Before the Commissioners made any determination as to whether to retain or remove the proposed landfill from the County’s revised SWMP, appellees filed a Complaint and First Amended Supplemental Complaint for Writ of Mandamus, Declaratory Judgment, and Other Ancillary Relief against the MDE and the County in the Circuit Court for Baltimore City. Appellees alleged that Ordinance No. 96-13 and the County’s proposed revision of its SWMP (1) were impliedly preempted by the State’s statutory and regulatory scheme for issuing rubble landfill permits, (2) discriminated against interstate and intercounty commerce by requiring that waste disposal facili ⁵¹⁵ ties be publicly owned in violation of the Commerce Clause of the United States Constitution, and (3) violated 42 U.S.C. § 1983 by depriving appellees of their constitutional rights to due process and equal protection.

The MDE moved to dismiss the Complaint, arguing, among other things, that “[t]he issue of the [MDE’s] decision to approve or disapprove the alleged amendments to the Queen Anne’s County plan is not ripe for adjudication because the County has not adopted the alleged amendments and further has not submitted any amendments to the Department for review.” The County joined in the MDE’s motion at oral argument. Following a June 16, 1997 hearing, at which no testimony was presented, the circuit court issued a Memorandum and Order dated July 7, 1997, finding that: (1) the county’s proposed revision of its SWMP to remove the landfill was “imminent” and, therefore, the issue was ripe for adjudication; (2) Ordinance No. 96-13 was invalid because it (a) precluded private ownership of a waste disposal facility, (b) contained unreasonably stringent performance standards for the construction and operation of such facilities and (c) was impliedly preempted by State law; and (3) the County’s proposed revision of its SWMP to remove the Unicorn Facility was impliedly preempted by State law. Appellants timely appealed and appellees filed a cross-appeal. DISCUSSION I Appellants argue that the issue of whether the County could revise its SWMP to remove appellees’ landfill facility from the Plan was not ripe for adjudication in the circuit court.

We agree with the circuit court’s ruling rejecting appellants’ position: The issue is ripe for declaratory judgment, and the [c]ourt will not refrain from considering the respective merit of the parties’ adverse positions. [Appellant’s] contention that the ⁵¹⁶ facts of the case are too speculative and that any potential unlawful action is merely future, contingent and uncertain ignores the reality of the actual controversy. Whether or not the County seeks to amend its Plan must be considered within the context of the parties’ dispute. The anticipated amendments come in the wake of the enactment of a zoning ordinance which, pending the [cjourt’s decision in the within case, precludes [appellees’] operation of the proposed facility. That ordinance is clearly the precursor to an amended, and with respect to the Unicorn Facility, exclusionary Waste Plan.

Action by the County is indeed imminent. The dispute is quite justiciable. Under the so-called “ripeness” doctrine, the [c]ourt is more than satisfied that the case presents ‘“ripening seeds’ of an actual controversy.” See Boyds Civic Ass’n v. Montgomery County, 309 Md. 683, 691 , 526 A.2d 598 (1987) (quoting Kariher’s Petition (No. 1), 284 Pa. 455, 471 , 131 A. 265, 271 (1925)). The Maryland Declaratory Judgments Act (Act) is remedial in nature and “[i]ts purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations.” C.J. § 3-402.

The Act shall be liberally construed and administered. Id. The language of the statute clearly indicates that the exercise of declaratory jurisdiction is within the sound discretion of the trial court. See Tanner v. McKeldin, 202 Md. 569, 577 , 97 A.2d 449 (1953) (construing the former Uniform Declaratory Judgments Act — Md. Ann. Code, art. 31A, § 6).

In a declaratory judgment action, the trial court may sit, not only to determine issues of law, but also as the trier of fact. Its factual determinations will not be disturbed unless clearly erroneous. Aetna Casualty and Sur. Co. v. Brethren Mut.

Ins. Co., 38 Md.App. 197, 206 , 379 A.2d 1234 (1977). Under the Act a court may grant a declaratory judgment or decree in a civil case (except when divorce or annulment of marriage is sought), if it will serve to terminate the uncertainty or controversy giving rise to the proceeding, and if: ⁵¹⁷ (1) [a]n actual controversy exists between contending parties; (2) [antagonistic claims are present between the parties involved which indicate imminent and inevitable litigation; or (3) [a] party asserts a legal relation, status, right, or privilege and this is challenged or denied by an adversary party, who also has or asserts a concrete interest in it. C.J. § 3-409(a).

A primary objective of the Act is to “relieve litigants of the rule of the common law that no declaration of rights may be judicially adjudged unless a right has been violated.... ” Boyds Civic Ass’n v. Montgomery County Council, 309 Md. 683, 691 , 526 A.2d 598 (1987) (quoting Davis v. State, 183 Md. 385, 388 , 37 A.2d 880 (1944)). Indeed, the Court of Appeals in Boyds stated that, “if a court is satisfied that the ‘ripening seeds’ of an actual controversy exist, the facts are not too contingent or speculative for declaratory relief.” Id. at 691, 526 A.2d 598 (citation omitted). Citing E. Borchard, Declaratory Judgments 57 (2d ed.1941), the Boyds Court stated further: The imminence and practical certainty of the act or event in issue, or the intent, capacity, and power to perform, create justiciability as clearly as the completed act or event, or is generally easily distinguishable from remote, contingent, and uncertain events that may never happen and upon which it would be improper to pass as operative facts. Id. at 692 , 526 A.2d 598 (citation omitted).

Thus, Maryland law supports declaratory relief in circumstances when the controversial situation is imminent. In Key Federal Sav. & Loan Ass’n v. Anne Arundel County, 54 Md.App. 633 , 460 A.2d 86 (1983), this Court held that declaratory relief was proper when a property owner brought an action against a county with respect to the County’s threatened withholding of occupancy permits. We held that ⁵¹⁸ the uncertainty of the “threatened” withholding of occupancy permits made declaratory relief proper. Id. at 641—43, 460 A.2d 86 .

Another case, Liss v. Goodman, 224 Md. 173 , 167 A.2d 123 (1960), involved a dispute between the Baltimore City Council and its Board of Estimates regarding powers over budgetary matters. The City Council sought a declaration as to whether it had the authority to reject proposed budgets submitted to it by the Board of Estimates. The case presented a question of ripeness because at the time the legislative body sought the declaration, the Board of Estimates had not yet submitted the annual budget and there was no certainty that the City Council would even want to return or reject that particular budget. Nevertheless, the Court of Appeals held that the action was ripe for adjudication.

Id. at 177-78 , 167 A.2d 123 . After noting that declaratory action should not be used to decide purely theoretical issues, the Court held that the question before it was practical, rather than theoretical. Id. In that regard, the Court stated that “[i]t would seem to be particularly appropriate to have the issue resolved in advance” in order to avoid adverse effects to the City’s financial status caused by its assertion of the right to reject the annual budget.

Id. at 178 , 167 A.2d 123 . By contrast, appellants rely primarily on three cases to support their position that the issue of whether the County may revise its SWMP to exclude the landfill is not ripe for review. Those cases, Maryland Reclamation Assocs., Inc. v. Harford County, 342 Md. 476 , 677 A.2d 567 (1996), Hatt v. Anderson, 297 Md. 42 , 464 A.2d 1076 (1983), and Patuxent Oil Co. v. County Comm’rs of Anne Arundel County, 212 Md. 543 , 129 A.2d 847 (1957), are distinguishable from the instant case, and therefore, do not support appellants’ position. In Maryland Reclamation Assocs., the ripeness issue did not concern whether there existed a justiciable controversy as a prerequisite to the maintenance of a declaratory judgment action.

Rather, it pertained to whether the plaintiff had given the local zoning authority the opportunity to render a final ⁵¹⁹ decision on the nature and extent of the zoning ordinance (thereby exhausting all administrative remedies) in order to maintain a 42 U.S.C. § 1983 claim. Maryland Reclamation Assocs., 342 Md. at 476 , 677 A.2d 567 . Hatt involved a declaratory judgment action that sought to invalidate a county fire department regulation that prohibited criticism of superior officers. As noted in Boyds, 309 Md. at 692 , 526 A.2d 598 , the Hatt declaratory judgment action should have been dismissed because there was no allegation that the regulation had been or was threatened to be applied to the plaintiff in any particular way.

Hatt, 297 Md. at 46-47 , 464 A.2d 1076 . In the instant case, appellees alleged that the change to the SWMP would apply to them. In Patuxent Oil Co., declaratory relief was not available because the plaintiff, unlike appellees herein, had never claimed any denial by the county government of any asserted right and had abandoned the license that was the subject of the litigation. Patuxent Oil Co., 212 Md. at 549-50 , 129 A.2d 847 .

Appellees’ claim as to the landfill’s exclusion from the County’s SWMP is not premature. We recognize, as did the trial court, that the SWMP has not yet been amended and that any amendments must be approved by the MDE before they can be implemented. We agree with the trial court, however, that the issue of whether the County seeks to amend the SWMP must be considered within the context of the parties’ dispute. The anticipated amendments to the SWMP came in the wake of the enactment of Ordinance No. 96-13, which precludes appellees’ operation of the proposed facility.

Further, the County’s November 26, 1996 letter to the MDE stated: The County Planning Commission has recommended several modifications to the Zoning Ordinance which, if adopted, would not permit the proposed rubble landfill, even as a conditional use. Our Public Works Department is nearing completion of an updated Solid Waste Management Plan ⁵²⁰ which likewise, would have an effect on this application if and when adopted. (Emphasis added.) Considering the County Commissioners’ purposeful and coordinated actions in passing the two ordinances, the County’s plan to remove the facility from its SWMP, and the letter of November 26, 1996, the circuit court’s finding that the Plan revision was “imminent” was not an abuse of discretion. The dispute was quite justiciable as the issue presented the “ ‘ripening seeds’ of an actual controversy.” Boyds, 309 Md. at 691 , 526 A.2d 598 .

II A Appellants next contend that the trial court erred in determining that the County’s ability to amend its SWMP to exclude the proposed' landfill was preempted by State law when the landfill had previously been added to the SWMP, but a permit for it had not been issued by the MDE. They further assert that the decision of the trial court divested the County of its traditional zoning power. Appellees counter, arguing that, because the facility was previously included in the County’s SWMP, the County lacked the authority to “delist” the facility in the new County Plan. For this proposition, appellees rely heavily on Holmes v. Maryland Reclamation Assocs., Inc., 90 Md.App. 120, 140-57 , 600 A.2d 864 (1992), as did the trial court.

We agree with appellees. State law will ordinarily preempt a local law “in one of three ways: (1) preemption by conflict, (2) express preemption, or (3) implied preemption.” Perdue Farms, Inc. v. Hadder, 109 Md.App. 582, 588 , 675 A.2d 577 (1996); see Talbot County v. Skipper, 329 Md. 481, 486-88 , 620 A.2d 880 (1993); May Dep’t Stores v. Montgomery County, 118 Md.App. 441, 462 , 702 A.2d 988 (1997), cert. granted, 349 Md. 237 , 707 A.2d 1330 (1998); J. Roland Dashiell Realty Co. v. Wicomico Co. 122 Md.App. 239, 249-50 , 712 A.2d 104 (1998). In Ad+Soil, ⁵²¹ Inc. v. County Comm’rs of Queen Anne’s County, 307 Md. 307, 324 , 513 A.2d 893 (1986), the Court explained: The doctrine of pre-emption is grounded upon the authority of the General Assembly to reserve for itself exclusive dominion over an entire field of legislative concern. When properly invoked, the doctrine precludes local legislative bodies from enacting any legislation whatsoever in the preempted field.

There is no precise formula for determining whether the legislature impliedly intended to preempt an entire field of law. Skipper, 329 Md. at 488 , 620 A.2d 880 ; see Howard, County v.