Holiday Point Marina Partners v. Anne Arundel County

WENNER, Judge. Appellant, Holiday Point Marina Partners, filed a Complaint in the Circuit Court for Anne Arundel County, seeking a ¹⁶³ declaration that Article 28, § 5-108(e) of the Anne Arundel County Code is preempted by State and federal law. After the trial court granted Anne Arundel County’s Motion for Summary Judgment and denied appellant’s motion, appellant noted this appeal, inquiring: I. Did the Anne Arundel County Circuit Court commit reversible error by determining that Anne Arundel County did not exceed its authority under the Express Powers Act despite the clear language contained in Article 25A, Section 5(X) Md.Ann.Code by enacting Article 28, Section 5—108(e) of the Anne Arundel County Code?

II

Did the Anne Arundel County Circuit Court commit reversible error by finding that the comprehensive State statutory and regulatory scheme governing construction of marinas in State wetlands and protecting water quality, shellfish and consumers of shellfish did not pre-empt by implication Article 28, Section 5-108(e) of the Anne Arundel County Code?

III

Did the Anne Arundel County Circuit Court commit reversible error by determining that the general public laws and regulations of Maryland governing the location and construction of marinas in State wetlands and protecting water quality, shellfish and consumers of shellfish, did not pre-empt by conflict Article 28, Section 5-108(e) of the Anne Arundel County Code?

IV

Did the Anne Arundel County Circuit Court commit reversible error by not finding that the U.S. Army Corps of Engineers permit preempts Article 28, Section 5-108(e) under federal law? Finding no error, we shall affirm the judgment of the circuit court. Facts Appellant has owned and operated a commercial marina in Anne Arundel County since 1971. The property is zoned MB-1 and MC-1 under the Anne Arundel County Code, permitting ¹⁶⁴ the operation of a commercial marina.

In 1985, appellant began planning to expand its marina, contemplating 100 additional boat slips. Between 1985 and 1993, appellant participated in an exhaustive review of its expansion plans by the United States Army Corps of Engineers, the Maryland Department of Environment (MDE), the Maryland Department of Natural Resources, and Anne Arundel County. By 31 July 1993, appellant had obtained all required federal and State permits. Afterwards, appellant applied to the Anne Arundel County Office of Planning and Zoning (AAPZ) for a building permit.

Appellant was informed by AAPZ that in order to acquire a building permit it was first necessary to obtain a variance from Article 28, § 5-108(e) of the Anne Arundel County Code. Section 5-108(e)(3) provides: (e) Marina group districts and marina facilities may not be located, as measured in a straight line through the water, closer than the following distances to shellfish beds: (3) One-half of a mile [or 2,640 feet] for a marina with more than 100 slips. The site of the proposed expansion is approximately 2,350 feet from the nearest boundary of a natural oyster bar. After completion, the nearest pier head would come within 1,800 feet of the oyster bar.

Despite County support, the AAPZ denied appellant’s application for a variance. Discussion On appeal, appellant presents several alternative theories why the County’s zoning ordinance is void, all of them invoking the doctrine of legislative preemption. We shall discuss each in turn. I. Express Powers Act Md.Code Ann. Article 25A, § 5 empowers charter counties to enact laws for the health, safety, morals, and welfare of its citizens, providing: ¹⁶⁵ The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say: (A) Local Legislation To enact local laws for such county, including the power to repeal or amend local laws thereof enacted by the General Assembly upon the matters covered by the express powers in this Article granted; to provide for the enforcement of all ordinances, resolutions, bylaws and regulations adopted under the authority of this article by fines, penalties and imprisonment, enforceable according to law as may be prescribed, but no such fine or penalty shall exceed $1,000.00 for any offense other than a fair housing law offense or imprisonment for more than six months; to provide for the enforcement of local fair housing laws by fines or penalties that do not exceed the fines or penalties provided in the Federal Fair Housing Act Amendments of 1988 for enforcement of similar federal fair housing laws; to provide for enforcement of all ordinances, resolutions, bylaws, and regulations adopted under the authority of this article by civil fines and penalties.

Such authority, however, is subject to the State’s constitution and public general laws. Md. Constitution Art. XI-A, § 3. According to appellant, Article 28, Section 5-108(e) of the Anne Arundel County Code is inconsistent with Maryland’s regulatory scheme governing the siting of marinas in relation to shellfish beds and therefore violates Md.Code Ann. Article 25A, § 5(X)(2)(v)(4) (1994 Repl.Vol.). 1 We have neither been referred to, nor have we discovered any such scheme. ¹⁶⁶ As we see it, the purpose of the County zoning ordinance is to reduce the amount of human pathonegens and other pollutants emanating from marina facilities in waters adjacent to natural oyster bars and other shellfish areas. A report issued by the Anne Arundel County Office of Planning 2 concluded that discharge and runoff from such facilities contributed to high concentrations of harmful bacteria in shellfish, ultimately risking the health of those who consume them.

It is beyond cavil that a municipality may protect the health, welfare, and safety of their citizens by exercising its zoning authority. Howard County, Md. v. Dorsey, 292 Md. 351, 363 , 438 A.2d 1339 (1982). Indeed, the plain language of Article 25A, § 5(X)(1)(i) provides: § 5. Enumeration.

The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say * * *: (X) Planning and Zoning (l)(i) To enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning, * * * (emphasis added). It is also beyond question that a county may protect the environment by exercising its zoning authority. See generally Mayor and Aldermen of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399 , 396 A.2d 1080 (1979) (environmental effects of additional boat slips could be considered in zoning); Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66 , 254 A.2d 700 (1969) (zoning plan which ¹⁶⁷ protected open areas and watershed proper consideration of public safety, health, and welfare). 3 We therefore conclude that appellee was properly exercising its zoning authority under Md.Code Ann. Article 25A, § 5(X)(l)(i) in considering a marina’s impact on the surrounding environment. To conclude otherwise would be to ignore the clear import of Article 25A and prevent municipalities from enacting legislation important to the health, welfare, and safety of its citizens.

II

State Law Preemption Appellant next contends that, since the State has enacted legislation governing water quality and protecting shellfish, the County is precluded from enacting zoning ordinances in any way touching or concerning those same issues. Specifically, appellant argues that, because the County zoning ordinance requires a marina’s boat slips to be located farther from natural oyster beds than that mandated by state law, the County has preempted the State’s legislation. We disagree, and explain. The Court of Appeals has recognized at least three grounds upon which local ordinances must yield to State legislation on the same matter: “(1) ordinances which conflict with public general law, (2) ordinances which deal with matters which are part of an entire subject matter on which the General Assembly has expressly reserved unto itself the right to legislate, and (3) ¹⁶⁸ ordinances which deal with an area in which the General Assembly has acted with such force that an intent to occupy the entire field must be implied.” Board v. Harker, 316 Md. 683, 697 , 561 A.2d 219 (1989) (quoting McCarthy v. Bd. of Educ. of A.A. County, 280 Md. 634, 639 , 374 A.2d 1135 (1977)).

Although not contending that the General Assembly has expressly preempted the field, appellant contends that the General Assembly has impliedly done so, or alternatively, that the County’s zoning ordinance conflicts with the public general laws of the State. We shall address these theories in turn. A. Field Preemption Appellant first points to a 28 August 1987 letter from MDE indicating the State’s intention to restrict harvesting shellfish to no less than 200 feet from marinas with more than 100 boat slips. Consequently, appellant concludes that the County’s zoning ordinance conflicts with the MDE’s “assessment guidelines.” In endeavoring to create a legislative field of separating marinas from shellfish beds, appellant carefully surveys the regulatory framework surrounding the water quality certification process. 4 Appellant, however, has failed to refer us to any legislation specifically dealing with siting marinas in relation to shellfish beds. 5 Rather, appellant attempts to persuade us that, when measured against the pervasive State and federal licensing schemes, together with the State’s inherent ¹⁶⁹ power to protect the Bay’s resources, the County zoning ordinance may not address similar concerns.

We are unpersuaded. Appellant contends that the County’s zoning ordinance is void because it “imposes restrictions on the issuance of a building permit based upon environmental considerations, such as the survival time of coliform bacteria in water, resulting in the imposition of the separation distances between marinas and shellfish.” We remind appellant that it is permissible for a county to exercise its zoning authority to protect the health and welfare of its citizens by controlling land use impacts on the environment. Alternatively, appellant contends that “given the complexity and comprehensiveness of the State’s regulation of the separation of marinas and oysters, water quality, and tidal wetlands, § 5-108(e) is preempted.” See Allied Vending v. Bowie, 332 Md. 279 , 631 A.2d 77 (1993). To be sure, the Court of Appeals pointed out in Allied a number of secondary factors “it had considered in determining whether preemption by implication exists ...

(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.” Allied, 332 Md. at 299 , 631 A.2d 77 (citations omitted). Appellant insists that § 5-108(e) creates regulatory chaos and confusion. Citing State and federal standards ¹⁷⁰ governing water quality certification, appellant contends that the County zoning ordinance interferes with maintaining those standards. If that be so, we fail to understand why both the State and federal wetlands licenses obtained by appellant specifically note that appellant is not relieved from complying with local land use requirements. 6 We find it neither confusing nor chaotic that appellant must comply with State, federal, and local regulations.

The crux of appellant’s position is that, since the State has dealt with the regulation of water quality in an effort to control the environment, aquatic resources (including shellfish), and human health, the County is precluded from accomplishing similar objectives by enacting a zoning ordinance. We disagree. Md.Code Environment Ann. § 9-302 specifically states: (a) Purposes of subtitle.—The purpose of this subtitle is to establish effective programs and to provide additional and cumulative remedies to prevent, abate, and control pollution of the waters of this State. (c) Department to carry out objectives.—The Department shall cooperate with local governments, agencies of other states, and the federal government in carrying out the objectives of subsection (b) of this section (emphasis added).

If anything, this statute reveals that the legislature envisioned an environmental partnership between the State and local governments, rather than preempting local governments from dealing with the same concerns. Though not conclusive of preemption, the “lack of reference to pre-existing local law is a factor to consider in deciding ¹⁷¹ whether the General Assembly intended to preempt a particular field.” Howard County v. Pepco, 319 Md. 511, 529 , 573 A.2d 821 (1990). In Pepeo, Howard County sought to impose additional requirements on the construction of overhead transmission lines carrying in excess of 69,000 volts. Noting that Md.Code Ann. Article 78 gives the Public Service Commission (PSC) plenary authority to regulate electrical transmission lines carrying in excess of 69,000 volts, the Court pointed out that despite the lack of reference to existing local laws, Article 78, § 54A “plainly demonstrate^] an intent to formulate a comprehensive regulatory scheme to regulate exclusively the construction of overhead transmission lines designed to carry in excess of 69,000 volts.” Pepco, 319 Md. 511 at 529 , 573 A.2d 821 .

The Court also noted that