County Commissioners v. Soaring Vistas Properties, Inc.

HOLLANDER, Judge. In this case, we must determine whether State law preempts a local zoning ordinance that makes construction of a sewage sludge storage facility a conditional use. Soaring Vistas Properties, Inc. (“Soaring Vistas”) and Wheelabrator Water Technologies, Inc. (‘Wheelabrator”), appellees, filed suit in the Circuit Court for Queen Anne’s County against the following parties, all appellants herein: Queen Anne’s County (the “County”); the County Commissioners of Queen Anne’s County (the “Commissioners”); Michael F. Zimmer, Jr., President of the Commissioners; George P. O’Donnell, Vice-President of the Commissioners; and Mark Belton, Commissioner of Queen Anne’s County. Appellees sought declaratory and injunctive relief, alleging that Maryland Code (1982, 1996 Repl.Vol.), §§ 9-280 through 9-249 of the Environment Article (“E.A.”) (“Sewage Sludge Part”), preempted §§ 4002 and 7203(C) of the Queen Anne’s County Zoning Ordinance (the “Zoning Ordinance”).

Both parties moved for summary judgment. In their motion, appellants argued that State law did not preempt the County’s right to regulate sewage sludge storage facilities. After the trial court granted appellees’ motion for summary judgment, appellants timely noted their appeal. They present two questions for our review, which we have restated slightly: I. Did the trial court err in granting appellees’ motion for summary judgment, when it held that the Environment Article of the Maryland Code preempts that part of the Zoning Ordinance that makes permanent sludge storage facilities a conditional use, subject to evaluation by the County under traditional zoning criteria?

II

Did the trial court err in granting appellees’ motion for summary judgment, when it held unconstitutional the Zoning Ordinance that makes permanent sludge storage facilities a conditional use subject to evaluation by the County under traditional zoning criteria? ¹⁴³ Although not framed as a specific question, at the conclusion of their brief, appellants also asked us to remand the case to the circuit court for entry of summary judgment in their favor with respect to the preemption issue, in order to uphold “the validity of that part of the Queen Anne’s County ordinance that makes sewage sludge facilities a conditional use.” For the reasons set forth below, we conclude that the trial court erred in granting summary judgment in favor of appellees, and in failing to grant summary judgment in favor of appellants. Accordingly, we shall vacate the entry of summary judgment and remand this case to the circuit court for further proceedings. FACTUAL SUMMARY Soaring Vista, a wholly-owned subsidiary of Wheelabrator, owns 425.67 acres of farmland in the County, zoned for agricultural use. The land is used for farming and guided game hunting.

Wheelabrator, which operates the farm through its Bio Gro Division, conducts farming operations on the land, including the production of corn, soybean, wheat, alfalfa and orchard grass hay. As part of its operation, Wheelabrator applies biosolids, also known as treated sewage sludge, to the farmland as fertilizer and soil conditioner. In order to store more sewage sludge, Wheelabrator sought to construct a 3.4 acre sewage sludge storage facility (the “Facility”) on the property. The proposed facility would include two silos, each 14 feet high and 135 feet in diameter, with the capacity to hold 2,697,400 gallons, or 11,464 wet tons of sewage sludge.

On December 29, 1994, Wheelabrator applied to the Maryland Department of the Environment (“MDE”) for a State Sewage Sludge Utilization Permit for the Facility, in accordance with E.A. § 9-231. Thereafter, the Commissioners advised appellees that, pursuant to §§ 4002 and 7203(C) of the Zoning Ordinance, they had to obtain a conditional use permit before the Facility could be built and operated. ¹⁴⁴ On September 15,1995, Wheelabrator filed a conditional use application with the County. Subsequently, on May 21, 1996, MDE issued a draft permit and tentative decision approving the Facility. Section (G)(3) of the draft permit provided, in part, that “[t]he issuance of this permit does not ... authorize ... any infringement of federal, state, or local laws or regulations.” Attached to the draft permit was a letter to Wheelabrator from Gail Castleman, the Hearings Coordinator for the Waste Management Administration, a division of MDE.

Ms. Castleman wrote that the draft permit “represents a tentative determination by the Waste Management Administration on [the] application; it is not the official finalized permit to construct and operate the wastewater sludge storage facility at the Soaring Vista Properties site near Church Hill, Maryland.” (Boldface in original). Shortly thereafter, on July 2, 1996, the Commissioners enacted Ordinance No. 96-07 (the “Moratorium”), which established a six month moratorium on all new applications for sewage sludge storage facilities or rubble landfills, and on all pending applications for those facilities. The purpose of the Moratorium was to allow County officials an opportunity to examine existing sewage sludge and rubble landfill regulations, and to modify them if necessary to protect and promote the public health, safety, and general welfare. The Moratorium prompted appellees to file suit on August 16, 1996, seeking declaratory and injunctive relief with respect to the enforcement of the Moratorium and §§ 4002 and 7203(C) of the Zoning Ordinance.

The parties agree that the dispute concerning the Moratorium is now moot. On January 7, 1997, prior to the trial court’s decision concerning the cross-motions for summary judgment, A. Hussain Alhija, Acting Chief of the Design and Certification Division of MDE, issued a letter to “Concerned Citizen[s]” regarding the Facility, stating that “it is recommended that this permit be issued, but that the draft permit be amended to address certain concerns expressed by members of the community which will host this sewage sludge storage facility.” Alhija attached to the letter a document titled “NOTICE OF ¹⁴⁵ FINAL DETERMINATION AND OPPORTUNITY TO REQUEST A CONTESTED CASE HEARING,” which provided that MDE “has made a final determination to issue the Sewage Sludge Utilization Permit for this site.” A document styled “Findings and Recommendations” was also appended to the letter. It stated, in part: 7. ISSUE: MDE should adhere to the County’s six month moratorium on sewage sludge storage facilities and rubblefills, which started on July 2,1996.

RESPONSE: MDE considers an application for a Sewage Sludge Utilization Permit based on environmental and public health determinations. Zoning and other local issues must be determined, separately by the local authority, but the Sewage Sludge Utilization Permit does not allow the permittee to violate local laws or regulations, as stated in the draft permit’s General Conditions Part G: “2. Nothing in this permit shall be construed to preclude the institution of any legal action nor relieve the permittee from civil or criminal responsibilities and/or penalties for noncompliance with Title 7 and 9 of the Environment Article, Annotated Code of Maryland or any federal, local or other state law or regulation. 3. The issuance of this permit does not convey any property rights in either real or personal property, or any exclusive privileges nor does it authorize any injury to private property or any invasion of personal rights, nor any infringement of federal, state, or local laws or regulations.” 10.

ISSUE: Increased truck traffic will cause dangerous conditions. RESPONSE: Zoning issues are out of the jurisdiction of the Department, but as indicated in response # 7 the permit does not allow violation of local laws and regulations. ¹⁴⁶ * * * 22. ISSUE: Approvals are needed from the State Fire Marshall, the Department of Agriculture, and the Department of Transportation. RESPONSE: Approvals from these agencies are not required by law or regulation for issuance of a sewage sludge storage permit.

However, as shown in response # 7 the permit does not allow violation of local laws and regulations. (Boldface in original; italics added). Thereafter, the trial court granted appellees’ motion for summary judgment. The court also declared that §§ 4002 and 7203(C), “insofar as they apply to biosolids (sewage sludge) utilization, are unconstitutional, unlawful, null and void because they conflict with the State’s statutory and regulatory scheme for issuing sewage sludge utilization permits and are impliedly preempted thereby.” In a written memorandum and order dated March 10, 1997, the court explained, in pertinent part: The local ordinances restricting sewage sludge utilization, ie.[,] the Moratorium and Zoning Ordinance §§ 4002 and 7203(c) [sic], are preempted by §§ 9-230 through 9-249 of the Environment Article.

In [Talbot County v.] Skipper [ 329 Md. 481 , 620 A.2d 880 (1993) ], the Court of Appeals specifically stated that the General Assembly has preempted the field of sewage sludge utilization. The Court held that Environment Article, §§ 9-230 through 9-249, constitutes a very comprehensive scheme regulating sewage sludge utilization in Maryland (Skipper, 329 Md., at 491-92 , 620 A.2d 880 )[.] % * * Here, then, it is clear that the General Assembly has preempted the field of sewage sludge utilization. There ¹⁴⁷ fore, the Moratorium and §§ 4002 and 7203(c) [sic] of the Zoning Ordinance are invalid. * * * Environment Article § 9-201(t) states, “ ‘Utilize Sewage Sludge’” means to collect, handle, burn, store, treat, or transport sewage sludge to or from a sewage sludge generator or utilizer in this State, to apply it to land, or to dispose of it.” A sewage sludge utilization permit authorizes the permit holder, inter alia, to land apply sewage sludge according to the terms of the permit. Environment Article, § 9-237(a). * * * Sections 4002 and 7203(c) [sic], requiring conditional use approval of sewage sludge facilities, are [in direct conflict with E.A. § 9-237(a) ] as they place additional restrictions on the usage of sewage sludge.

The Environment Article specifically authorizes the storage of sewage sludge once an MDE permit has been issued. Here, the applicable sections of the Zoning Ordinance, by means of the conditional use requirement, prohibit an activity which the Legislature expressly intended to permit. The court denied appellees’ other contentions as moot. STANDARD OF REVIEW Maryland Rule 2-501, which governs summary judgment, provides that a trial court may grant a motion for summary judgment only if there is no genuine dispute as to any material fact and one party is entitled to judgment as matter of law.

Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); see also Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737-38 , 625 A.2d 1005 (1993); Sachs v. Regal Savings Bank, FSB, 119 Md.App. 276, 277 , 705 A.2d 1 (1998); Bits “N” Bytes Computer Supplies, Inc. v. Chesapeake ¹⁴⁸ & Potomac Tel. Co., 97 Md.App. 557, 580-81 , 631 A.2d 485 (1993), cert. denied, 333 Md. 385 , 635 A.2d 425 (1994); Seaboard Sur. Co. v. Richard F. Kline, Inc., 91 Md.App. 236, 242-45 , 603 A.2d 1357 (1992). Conversely, the entry of summary judgment is not foreclosed if a dispute exists as to a fact that is not material to the outcome of the case.

Scroggins v. Dahne, 335 Md. 688, 691 , 645 A.2d 1160 (1994). A material fact is one that will somehow affect the outcome of the case. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). In resolving the motion, the court must construe the facts, and all inferences reasonably drawn from those facts, in the light most favorable to the non-moving party.

Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); King, 303 Md. at 110-11 , 492 A.2d 608 ; Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 387 , 693 A.2d 370 (1997); Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . Mere formal denials or conclusory allegations of a party are not sufficient to prevent summary judgment. Tennant, 115 Md.App. at 386-87 , 693 A.2d 370 ; Bagwell, 106 Md.App. at 488 , 665 A.2d 297 ; Seaboard Sur., 91 Md.App. at 243 , 603 A.2d 1357 . In the absence of a genuine dispute as to material fact, this Court must determine whether the trial court was legally correct.

Beatty, 330 Md. at 737 , 625 A.2d 1005 ; see also Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); King, 303 Md. at 111 , 492 A.2d 608 . Ordinarily, we will review a trial court’s decision granting summary judgment “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Hoffman v. United Iron and Metal Co., Inc., 108 Md.App. 117, 132-33 , 671 A.2d 55 (1996). THE STATUTORY SCHEMES Section 4002 of the Zoning Ordinance categorizes uses that are permitted by right, uses that are conditional, as well as uses that are prohibited in certain districts. “Extraction and Disposal” operations on agricultural land are permitted only ¹⁴⁹ as conditional uses. Section 4002(E)(3).

Pursuant to section 4009(C), entitled “INDUSTRIAL USES,” operations involving “Extraction and disposal” include “sludge disposal or storage.” 1 Section 4009(C) further provides that such “uses create major disruptions to the area’s environment, even when carefully regulated. Dust, dirt, noise, and unsightly conditions can be anticipated. None of these uses is an acceptable neighbor in a residential environment.” Section 7202 of the Zoning Ordinance sets forth standards for conditional uses, including the findings that the County Board of Appeals must make in order to grant an application for a conditional use in a proposed location. Section 7202 provides, in part: No application for a conditional use shall be approved unless the Board of Appeals shall specifically find the proposed conditional use appropriate in the location for which it is proposed.

This finding shall be based on the following criteria: A. The proposed use at the proposed location shall be in harmony with the general purpose, goals, objectives, and standards of Queen Anne’s County Comprehensive Plan, this Ordinance, or any other plan, program, map, or ordinance adopted, or under consideration pursuant to official notice, by the County. B. The proposed use at the proposed location shall not result in a substantial or undue adverse effect on adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, or other matters affecting the public health, safety, and general welfare. Section 7203 of the Zoning Ordinance establishes standards that must be met for certain specified conditional uses, in ¹⁵⁰ addition to the requirements that are set forth in Section 7202. Specifically, § 7203(C), which is entitled “Extraction and Disposal,” pertains to sludge disposal operations, including “landfills, trash transfer sites, incinerators, sludge or other land disposal or storage of septic tank wastes or sludges.” It mandates that an applicant must provide certain additional information, including, inter alia, a plan of the general area, a plan of the proposed site, a plan of the operation, an end use plan, and performance standards for the operation of the facility.

As we shall see, the State has enacted a broad statutory scheme governing sewage sludge. E.A. § 9-230 directs MDE to adopt regulations governing sewage sludge utilization, and it requires Department of Agriculture approval of regulations that pertain to land application of sewage sludge. It further delineates matters that must be considered in adopting regulations, including alternative utilization methods, pathogen control, advertising requirements concerning both public hearings and public information meetings, performance bonds, liability insurance or other forms of security, procedures for notifying local governments and other interested parties, and adequate standards for transporting sewage sludge. E.A. § 9-230(b).

In adopting regulations for the land application of sewage sludge, E.A. § 9-230(c) requires MDE to consider, inter alia, methods for calculating loading rates, crops that are to be grown on the land on which the sewage sludge will be applied, the nature of nearby surface water or groundwater, the character of any affected area, and the character of any nearby existing or planned land uses and transport routes. Further, E.A. § 9-230(c) requires consideration of the proximity of the land on which the sewage sludge may be applied to “sensitive” areas, such as flood plains, wetlands, and other areas of critical concern. It also requires consideration of reasonable buffer areas to separate homes or other property from land on which sewage sludge may be applied. Prior to utilizing sewage sludge, E.A. § 9-231 requires a person to obtain a permit from MDE, and E.A. § 9-232 ¹⁵¹ establishes the requirements for sewage sludge utilization permits.

These include, inter alia, a certification from the applicant as to the truth and accuracy of the completed application, the written consent of the owner of the land on which the sewage will be applied, an agreement to permit access to the site for inspections, and the filing of a bond or other security. E.A. § 9-232. E.A. § 9-234 pertains to public hearings in connection with an application for a permit to use sewage sludge. Under E.A. § 9-236, MDE is required to issue a sewage sludge utilization permit to an applicant who satisfies the requirements of the subtitle.

Further, E.A. § 9-237 provides that the holder of the permit is authorized to utilize sewage sludge in accordance with the terms of the permit. In E.A. §§ 9-238 and 9-239, the Legislature established procedures for the term and renewal of sewage sludge utilization permits. In addition, in E.A. §§ 9-240 through 9-243, the Legislature set forth the requirements to maintain a sewage sludge utilization permit. E.A. § 9-245 governs denial of a sewage sludge utilization permit, while E.A § 9-246 delineates when MDE may suspend, revoke, modify, or refuse to renew a permit.

A “Sewage Sludge Utilization Fund” has been created pursuant to E.A. § 9-244. E.A. § 9-247 pertains to standing to sue or intervene in a suit to force compliance with the Sewage Sludge Part and E.A. §§ 9-269 and 9-270. Further, E.A. § 9-248 authorizes MDE to seek an injunction for any violation concerning the utilization of sewage sludge. In E.A. § 9-249, the Legislature mandates that sewage sludge must be utilized in accordance with the Sewage Sludge subtitle, as well as E.A. §§ 9-269 and 9-270.

Other sections will be discussed, infra. DISCUSSION A. The crux of appellants’ contention is that the Sewage Sludge Part, E.A. §§ 9-230 through 9-249, does not preempt §§ 4002 and 7203(C) of the Zoning Ordinance, which makes the erec ¹⁵² tion of a sewage sludge storage facility a conditional use. In particular, appellants focus on the right of local government to determine the location of such facilities. Moreover, they suggest that the decision of the trial court, which divested the County of its traditional zoning power, has broad implications for all local governments.

Appellees counter that the General Assembly’s enactment of a comprehensive, ubiquitous statutory scheme concerning sewage sludge manifests its intent to preempt regulation of the field. Thus, appellees contend that even if the Zoning Ordinance does not expressly conflict with State law, it is nevertheless preempted by implication. Consequently, they assert that the Zoning Ordinance is of no effect. Our task, then, requires us to resolve whether the Sewage Sludge Part preempts §§ 4002 and 7203(C) of the Zoning Ordinance.

We conclude that it does not. A 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, 487-88 , 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). In Ad + Soil, Inc. v. County Commissioners of Queen Anne’s County, 307 Md. 307 , 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.

Id. at 324 , 513 A.2d 893 . The Sewage Sludge Part does not expressly preempt local zoning law in connection with the storage of sewage sludge. The trial court found, instead, that the Legislature impliedly preempted the field. Accordingly, we first consider the validity of the court’s finding of preemption by implication. ¹⁵³ B. 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. Potomac Elec. Power Co., 319 Md. 511, 523 , 573 A.2d 821 (1990). Absent express preemption, a primary indicator of “a legislative purpose to pre-empt an entire field of law is the comprehensiveness with which the General Assembly has legislated the field.” Allied Vending, Inc. v. Bowie, 332 Md. 279, 299 , 631 A.2d 77 (1993) (citations and quotations omitted); see Ad + Soil, 307 Md. at 328 , 513 A.2d 893 ; Mayor of Baltimore v. Sitnick & Firey, 254 Md. 303, 323 , 255 A.2d 376 (1969). A variety of secondary factors are often considered in deciding whether State law preempts a local law by implication.

In Allied Vending, 332 Md. 279 , 631 A.2d 77 , the Court stated that courts should consider 1) whether local laws existed prior to the enactment of the state laws governing the same subject matter, 2) whether the state laws provide for pervasive administrative regulation, 3) whether the local ordinance regulates an area in which some local control has traditionally been allowed, 4) whether the state law expressly provides concurrent legislative authority to local jurisdictions or requires compliance with local ordinances, 5) whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field, 6) whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislature, and 7) whether a two-tiered regulatory process existing if local laws were not pre-empted would engender chaos and confusion[.] Id. at 299-300 , 631 A.2d 77 (citations omitted); see Mayor of Baltimore v. New Pulaski Co. Ltd. Partnership, 112 Md.App. 218, 226-27 , 684 A.2d 888 (1996), cert. denied, 344 Md. 717 , 690 A.2d 523 (1997). ¹⁵⁴ In analyzing the doctrine of preemption in the context of this case, we must also understand what is meant by the term “conditional use” within the meaning of zoning law. Recently, in Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607 , 701 A.2d 879 (1997), we observed: “The conditional use or special exception[ 2 ] is a part of the comprehensive zoning plan sharing the presumption that, as such, it is in the interest of the general welfare, and therefore, valid. The special exception is a valid zoning mechanism that delegates to an administrative board a limited authority to allow enumerated uses which the legislature has determined to be permissible absent any fact or circumstance negating the presumption. The duties given the Board are to judge whether the neighboring properties in the general neighborhood would be adversely affected and whether the use in the particular case is in harmony with the general purpose and intent of the plan.” Id. at 644-45 , 701 A.2d 879 (quoting Anderson v. Sawyer, 23 Md.App. 612, 617 , 329 A.2d 716 (1974)).

We also examined the concept of conditional use in Cromwell v. Ward, 102 Md.App. 691 , 651 A.2d 424 (1995), stating: “ ‘A conditional use is a desirable use which is attended with detrimental effects which require that certain conditions be met....’” Id. at 702 , 651 A.2d 424 (citations omitted). Accordingly, conditional uses are permitted uses, so long as the conditions set out in the zoning ordinance are satisfied. Id. at 699 n. 5, 651 A.2d 424 . In reaching its conclusion of implied preemption, the trial court relied on Talbot County v. Skipper, 329 Md. 481 , 620 A.2d 880 .

Appellants posit that Ad + Soil, 307 Md. 307 , 513 A.2d 893 , not Skipper, controls. In Ad + Soil, the Court considered whether State law governing the management and utilization of sewage sludge precluded Queen Anne’s County from exercising its local ¹⁵⁵ zoning authority to regulate the operation of a sewage sludge facility. Concluding that State law then in effect did not preempt the field of sewage sludge utilization, the Court determined that enactment or enforcement of local zoning laws was not prohibited. Ad + Soil, 307 Md. at 324 , 513 A.2d 893 .

Notwithstanding the enactment of “extensive statewide legislation in the field of sewage management, the legislation manifests a general policy of fostering local control under state supervision, rather than to totally prohibit the enactment of laws on the subject at the local level.” Id. at 326 , 513 A.2d 893 . The Court further said: The General Assembly simply did not legislate upon the interplay between the state statutes and the pre-existing local zoning regulations, thereby suggesting that it intended no change in the applicability of such local regulations. Thus, the state permits must be viewed as authorization to operate a sewage sludge facility, subject to the lawful requirements of the applicable zoning regulations. Because Ad + Soil’s compliance with the Zoning Ordinance is in effect an implicit condition in the state permits, the Ordinance cannot be said to prohibit what the permits authorize.

Id. at 336 , 513 A.2d 893 (emphasis added). The Ad + Soil Court observed that