East Star, LLC v. County Commissioners

ZARNOCH, J. STATEMENT OF THE CASE This is another case in the long gray line of potential clashes between local zoning authority and State environmental laws. This appeal comes to us from the Circuit Court for Queen ⁴⁸¹ Anne’s County, which entered summary judgment in favor of appellee, the County Commissioners of Queen Anne’s County (the “County”), and against appellants, East Star, LLC, Shore Sand and Gravel LLC, and David A. Bramble, Inc., (collectively “appellants”). Each appellant conducts sand and gravel excavation operations in Queen Anne’s County and has brought a declaratory judgment action seeking to invalidate an ordinance imposing certain restrictions on their businesses. The circuit court ruled that the ordinance was not preempted by provisions of the State surface mining laws, set forth in Title 15 of the Environmental Article (Env.) of the Maryland Code (1982, 2007 RepLVol.), and did not violate any constitutional right to substantive due process.

Appellants filed a timely notice of appeal. FACTUAL AND LEGAL PROCEEDINGS On September 9, 2008, the Queen Anne’s County Commissioners introduced County Ordinance 08-20 (the “Ordinance” or “CO 08-20”) to amend the Queen Anne’s County Zoning Ordinance, Chapter 18 of the Code of Queen Anne’s County (2004), by adding a new Section 18:1-95E(9) dealing with “[mjajor extraction operations.” 1 After a mandated Planning Commission study and recommendation, including open meetings and a public comment period, a favorable recommendation with amendments was forwarded to the County Commissioners. After more hearings and amendments, the proposed legislation was adopted by the County Commissioners on April 29, 2009. The 2009 Ordinance prohibits major extraction operations from exceeding 20 acres, other than by expansion in 20-acre increments.

A major extraction operation may not exceed five years in duration, but may be renewed in additional five-year increments. In addition, the Ordinance requires that an expansion may not occur until the previously disturbed area is reclaimed. An expansion or renewal must be approved by the ⁴⁸² Board of Appeals in Queen Anne’s County as a conditional use. 2 On February 22, 2010, appellants filed a complaint for declaratory and injunctive relief in the Circuit Court for Queen Anne’s County against the County. In their complaint, appellants sought to have the circuit court declare CO 08-20 to be unlawful because its imposition of conditions on sand and gravel operations was impliedly preempted by State law.

Appellants argued that because State law did not limit the acreage of mining operations, or their duration (up to 25 years), and did not require reclamation prior to proceeding with mining in other areas, the County had no authority to do so. 3 They further asserted that regulatory provisions set forth in Chapter 8 of Title 15 of the Env. Article and Maryland Department of the Environment (“MDE”) were meant to comprehensively control surface mining in Maryland. These provisions, they said, were meant to preempt local surface mining regulation because of the importance of surface mining to the State and the need to balance the industry’s economic value against potential adverse effects to health, safety, and ⁴⁸³ the environment. They argued that the enforcement of the County Ordinance has the effect of making the operation of a sand and gravel mine uneconomical and impossible to conduct, thereby preventing the operation of sand and gravel operations by the appellants of their properties in Queen Anne’s County, contrary to the expressed intent and provisions of the Legislature.

Thus, appellants contended, the Ordinance was preempted by conflict with State law. Appellants also argued that CO 08-20 violated their substantive due process rights by denying the exercise of a lawful business and the use of property without a valid public interest. The County filed an answer and a motion for summary judgment, pointing out that the challenged Ordinance had, as its express purpose, “imposing additional standards on Major Extraction Operations in Queen Anne’s County and clarifying the definition of ‘Major Extraction and Dredge Disposal Use.’ ” It argued that the relevant provisions in the Env. Article complement, rather than preempt, the Ordinance at issue and that the restrictions set forth in the Ordinance are “of the same kind as normally and historically made with respect to land use by local government.” Appellants responded by filing an opposition and a cross-motion for summary judgment.

Following a November 80, 2010 hearing, the circuit court issued a Memorandum and Order dated December 20, 2010, granting the County’s motion for summary judgment. The court concluded that: (1) “The restrictions of [CO] 08-20 are proper zoning conditions that are historically and appropriately within the province of the County and are not ... issues of permitting or licensing that have been preempted by the State”; and, (2) “There has been no violation of substantive due process by virtue of the enactment of [CO] 08-20.” Although a separate order noted the disposition of the summary judgment motions, no declaratory judgment was issued by the circuit court. 4 Appellants filed a timely notice of appeal. ⁴⁸⁴ QUESTIONS PRESENTED Appellants raise three questions for our consideration: 1. Has County Ordinance 08-20 ... been preempted by implication by the Annotated Code of Maryland Environment Article, Title 15, Subtitle 8, and COMAR 26, Subtitle 21? 2. Has County Ordinance 08-20 ... been preempted by conflict by the provisions of the Annotated Code of Maryland Environment Article, Title 15, Subtitle 8, and COMAR 26, Subtitle 21? 3.

Does County Ordinance 08-20 ... violate the substantive due process rights of the Appellants because it is not a valid exercise of the County’s police powers and denies the exercise of lawful business and the use of private property without a valid public interest? For the following reasons, we hold that CO 08-20 has been preempted by State law, and we reverse the ruling of the circuit court. DISCUSSION I. Standard of Review “The standard for appellate review of a trial court’s grant of a motion for summary judgment is whether the court was legally correct.” Hrehorovich v. Harbor Hosp. Ctr., Inc., 93 Md.App. 772, 789 , 614 A.2d 1021 (1992).

Summary judgment is proper “only where there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law.” Id.; see also Md. Rule 2-501. In reviewing the appropriateness of a grant of summary judgment, we will ordinarily only consider the grounds relied on by the trial court. Bell v. Heitkamp Inc., 126 Md.App. 211, 222 , 728 A.2d 743 (1999).

II

Preemption by State Law A. Preemption in General Preemption of local law by state law can be express or implied or can occur when local law conflicts with State law. ⁴⁸⁵ Talbot County v. Skipper, 329 Md. 481, 487-88 , 620 A.2d 880 (1993). 5 Express preemption occurs when the General Assembly, by statutory language, prohibits local legislation in a field. Ad + Soil, Inc. v. County Comm’rs., 307 Md. 307, 324 , 513 A.2d 893 (1986). Preemption by implication occurs when a local law “deals with an area in which the [General Assembly] has acted with such force that an intent by the State to occupy the entire field must be implied.” Skipper, 329 Md. at 488 , 620 A.2d 880 . Conflict preemption occurs “when [a local law] prohibits activity which is intended to be permitted by state law, or permits an activity which is intended to be prohibited by state law.” Skipper, Id. at 487, n. 4, 620 A.2d 880 . 6 Appellants have not argued that CO 08-20 is expressly preempted.

However, they do contend that the Ordinance is impliedly preempted and is inconsistent with State law. B. Preemption by Implication Contending that State law so comprehensively regulates surface mining, appellants argue that the conditions CO 08-20 places on the size, area, duration of surface mining operations, ⁴⁸⁶ and timing of reclamation are preempted by implication. 7 In response, the County asserts that State law recognizes the concurrent authority of local government with respect to surface mining, thereby acknowledging the preeminence of County regulation. In deciding whether there has been preemption by implication, our inquiry is focused on “whether the General Assembly has manifested a purpose to occupy exclusively a particular field.” Ad + Soil, 307 Md. at 324 , 513 A.2d 893 . The comprehensiveness with which the Legislature has spoken is the primary indicator of implied preemption.

Allied Vending, Inc. v. Bowie, 332 Md. 279, 299 , 631 A.2d 77 (1993). Among the secondary factors considered by a court are: 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 legislation, and 7) whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion. Id. at 299-300 , 631 A.2d 77 (citations omitted). C. Relevant Case Law In a number of similar environmental areas, Maryland caselaw is divided on whether State law has indicated an intent on the part of the General Assembly to occupy the particular field and preempt by implication the authority of a ⁴⁸⁷ local jurisdiction to control that area through its zoning or regulatory powers.

In Days Cove Reclamation Co. v. Queen Anne’s County, 146 Md.App. 469 , 807 A.2d 156 (2002), notwithstanding Env. Article § 9-210(a)(3), which prohibits MDE from issuing a permit for rubble landfills unless the county provides a “written statement that the refuse disposal system ... [mjeets all applicable county zoning and land use requirements; and ... [i]s in conformity with the county solid waste plan,” we concluded that the extensive State regulation in the landfill permitting process prohibited the county from acting in areas outside its traditional zoning and land use decisions. Id. at 503, 807 A.2d 156 (noting that the risk that pollutants will produce adverse effects offsite is within MDE’s exclusive evaluation in the permit process; but whether surface runoff or stormwater maintenance basin discharge will cause thermal pollution is within local zoning power because the pollution is “common to many types of land uses”). In Skipper , the Court of Appeals examined MDE’s authority under Env.

Article §§ 9-230 et seq. to regulate sewage sludge management through the issuance of permits, and concluded that the county lacked substantial power to control sewage sludge utilization. See 329 Md. at 489 , 620 A.2d 880 . That case involved a Talbot County ordinance which prohibited the application of sewage sludge until the landowner’s utilization permit from the State had been filed in the local land records. Id. at 485 , 620 A.2d 880 .

Skipper concluded that the State regulatory scheme relating to sewage sludge addressed a multitude of issues, was comprehensive and specific, and “manifested] the general legislative purpose to create an all-encompassing state scheme” of regulation. Id. at 491 , 620 A.2d 880 . Therefore, although Env. Article § 9-233 addressed local authority to legislate regarding zoning and land use, required sewage sludge composting facilities to meet all county zoning requirements and directed MDE to obtain a written statement from that county that it did not oppose issuance of a permit, the local ordinance was held to be preempted by implication.

Id. at 489, 620 A.2d 880 . ⁴⁸⁸ Mayor & City Council of Baltimore v. New Pulaski Co. Ltd. Partn., 112 Md.App. 218, 684 A.2d 888 (1996) involved a challenge to an ordinance that placed a moratorium on new incinerators in Baltimore City. This Court concluded that Subtitles 2 and 5 of Title 10 of the Env. Article which governs the state licensing and regulation of solid waste management plans “indicate[s] an intent of the General Assembly comprehensively to occupy the field of solid waste management.” Id. at 231 , 684 A.2d 888 . The moratorium was invalid because it stripped the State of “its exclusive authority over county plans and the relevant permitting process.” Id.

We also held that “a ban on incinerators is not a traditional area of regulation controlled by local government, except for legitimate zoning and planning reasons.” Id. In contrast, in Md. Reclamation Assocs. v. Harford County, 414 Md. 1 , 994 A.2d 842 (2010), the Court of Appeals declined to find preemption. There, the Court considered whether State law preempted a county ordinance which required, inter alia, that rubble landfills be built on sites of at least 100 acres. Such a limitation, the Court said, was “less restrictive than a categorical ban.” Id. at 44 , 994 A.2d 842 .

The Court concluded that the ordinance was enacted to address “the impact of the use on neighboring properties due to emissions from [a rubble landfill] site, increase in noise, increase in traffic, danger to children, impairment of landscape and visual concerns” which are “classic zoning considerations.” Id. at 40 , 994 A.2d 842 . Because zoning is within the province of local government and because State environmental laws recognized that county zoning laws may limit a property owner’s ability to utilize a MDE permit, the ordinance was found not to be preempted. Id. at 40-42 , 994 A.2d 842 . Finally, in Ad + Soil, the Court of Appeals rejected a preemption challenge to a local law because State environmental laws made references to the concurrent legislative authority of local jurisdictions, required counties to adopt comprehensive management plans “consistent with all local zoning regulations,” and specifically stated that “[a]ny rule or regulation [of MDE] adopted under this subtitle does not limit or ⁴⁸⁹ supersede any other county, municipal, or State law, rule, or regulation that provides greater protection to the public health, safety, or welfare.” 307 Md. at 326-27 , 513 A.2d 893 .

The Court held that, though the General Assembly had enacted “extensive” 8 statewide legislation regarding sewage management, the express language of the statute manifested a policy of “fostering local control under state supervision,” and did not prohibit the local enactment of laws on the subject. Id. at 326 , 513 A.2d 893 . D. State Surface Mining Regulation The General Assembly, in Title 15, Subtitle 8 of the Env. Article, has enacted a very elaborate scheme regulating virtually all aspects of surface mining in Maryland.

Specifically, Env. Article § 15-802(b) directs MDE to adopt a program and implement regulations related to surface mining: [F]or the general welfare of the people of the State, by providing for the protection