Maryland Department of the Environment v. Days Cove Reclamation Co.

KRAUSER, C.J. We are asked to decide whether Chapter 161 of the 2007 Laws of Maryland 2 is a “special law” under Article III, § 33 ²⁵⁹ of the Maryland Constitution and, as a consequence, prohibited by it. Enacted in 2007, Chapter 161 prohibits the Maryland Department of the Environment (“MDE”) from issuing a permit for the construction or operation of a rubble landfill within close proximity to certain waterways in the State of Maryland. Fearing that its planned landfill was subject to this legislative proscription, Days Cove Reclamation Company (“Days Cove”), appellee, filed an action in the Circuit Court for Baltimore City, claiming that Chapter 161 is an unconstitutional “special law,” that it denies Days Cove due process and equal protection of the law, and that it effectuates an unlawful taking of Days Cove’s property. Concluding that Chapter 161 is an unconstitutional special law, the Baltimore City circuit court granted summary judgment in favor of Days Cove.

The State of Maryland, the MDE, and its Secretary, appellants, contend that that decision was in error and request that we reverse and remand, a request that, for the reasons set forth below, we shall grant. BACKGROUND In 1995, before the enactment of Chapter 161, Days Cove, with the intention of constructing and operating a rubble landfill, leased a parcel of land in Queen Anne’s County that would later fall within the proscriptions of that statute. Although Queen Anne’s County initially approved the construction of the landfill and incorporated it into the county’s solid waste management plan, it thereafter repeatedly attempted to withdraw its approval. Those attempts proved unsuccessful at the appellate level.

See Days Cove Reclamation Co. v. Queen Anne’s County, 146 Md.App. 469 , 807 A.2d 156 (2002) (“Days Cove II”); County Comm’rs of Queen Anne’s County v. Days Cove Reclamation Co., 122 Md.App. 505 , 713 A.2d 351 (1998) (“Days Cove I ”). In Days Cove I, we found that an attempt by the Queen Anne’s County Commissioners to amend the County’s solid waste management plan, so as to de-list Days Cove’s proposed ²⁶⁰ rubble landfill from that plan, was pre-empted by State law. 3 We reasoned that the Commissioners’ prior inclusion of the landfill in the plan had the effect of completing and thereby ending its planning role within the general scheme established by the Maryland Code, §§ 9-501 through 9-521 of the Environment Article (“EN”), because the “legislature has reserved the ‘permit-issuing segment’ of the process to the MDE.” Days Cove I, 122 Md.App. at 523 , 713 A.2d 351 . We, therefore, concluded that the Commissioners’ attempt to de-list the proposed rubble landfill “breach[ed] the ‘permit’ power ... specifically reserved for the State,” id. at 526 , 713 A.2d 351 , and upheld the ruling of the circuit court, enjoining the Commissioners from amending the County’s solid waste management plan. Id. at 520-26 , 713 A.2d 351 .

Then, in Days Cove II, when the Queen Anne’s County Board of Appeals denied Days Cove’s application for a conditional use to operate its proposed rubble landfill, we declared that, in the absence of any evidence to demonstrate the unsuitability of the site, the Board of Appeals was required to issue Days Cove a conditional-use zoning permit for its proposed landfill. Days Cove II, 146 Md.App. at 485-94, 506-08 , 807 A.2d 156 . But that did not signal the conclusion of the approval process. Days Cove’s landfill application still had to be approved by the MDE.

Parenthetically, we note that, in 2004, Queen Anne’s County did amend its zoning ordinance to exclude rubble landfills as a conditional use anywhere in the county. That amendment does not, as both sides acknowledge, apply to Days Cove’s pending application, but it does prospectively preclude any future applications. Then, in 2006, the General Assembly enacted, as an emergency measure, the legislative predecessor to Chapter 161, Chapter 228, Laws of Maryland 2006 (“Chapter 228”), which ²⁶¹ created the same measures to protect the same waterways that Chapter 161 later would. But, its protective measures, in contrast to those of Chapter 161, were to expire after three years. 4 It amended EN § 9-204 by inserting a new subsection (m): The Secretary may not issue any permit under this section to construct or operate a rubble landfill within 4 miles of Unicorn Lake in Queen Anne’s County, within 1 mile of the Piscataway Creek, a Piscataway Creek tributary, or the Mattawoman Creek, or within 1 mile of any other tributary in Prince George’s County that flows directly or indirectly into the Potomac River.

In response to Chapter 228, Days Cove filed a lawsuit in the Circuit Court for Baltimore City, claiming, among other things, that Chapter 228, the precursor to Chapter 161, was an unconstitutional “special law.” The circuit court disagreed and denied Days Cove’s subsequent request for summary relief on that ground. This suit was voluntarily dismissed when Chapter 228 was superceded by Chapter 161, which reimposes Chapter 228’s prohibitions, but contains no cut-off date, as Chapter 228 did. The enactment of Chapter 161 prompted Days Cove to file the instant lawsuit, claiming that Chapter 161, like its legislative predecessor, Chapter 228, is an unconstitutional special law. It further alleged, as it did with respect to Chapter 228, that Chapter 161 denies Days Cove due process and equal protection of the law and that it effectuates an unlawful taking of Days Cove’s property.

Granting Days Cove’s motion for summary judgment, the Baltimore City circuit court held that Chapter 161 is invalid under Article III, § 33 of the Maryland Constitution because it is a prohibited special law. ²⁶² DISCUSSION Before proceeding any further, we believe that it would be helpful to first address the lens through which Days Cove views Chapter 161, a lens so narrow in focus that it distorts rather than enhances that provision of the law. Throughout its brief, Days Cove concentrates only on the application of Chapter 161 to Queen Anne’s County, largely ignoring the application of the law to other parts of the State, namely, Prince George’s County and, possibly, Charles and Kent Counties as well. 5 That focus is appropriate, maintains Days Cove, because, in applying the statute providing for severability of unconstitutional statutory provisions, 6 one can “properly sever[] the portion of the law dealing with the geographic area of Queen Anne’s County, from the area of Prince George’s County.” Applying this approach, it contends that “there could be no serious contention that[, within Queen Anne’s County, Chapter 161] applies, and can only apply, solely to Days Cove.” Days Cove then proceeds to misconstrue the circuit court’s decision. Asserting that “the Circuit Court properly exercised its responsibility in analyzing and striking down as little of the ²⁶³ law as necessary,” Days Cove claims that, because “the statute deals with distinct and separate subject matters and two distinct areas of the state, it was perfectly proper, ... [for] the Circuit Court to limit its analysis to the Days Cove application in Queen Anne’s County, and to refrain from considering constitutional challenges to the statute as a whole[.]” But the circuit court’s decision did much more than that, as it struck down the entire statute in all its applications. Although the circuit court initially suggested that it was only concerned with the application of Chapter 161 in Queen Anne’s County, it nonetheless found the entire statute to be unconstitutional, declaring: “For the reasons cited above, the Court shall enter a Declaratory Judgment finding that Chapter 161 of the 2007 Acts of the General Assembly is an invalid special law in violation of Art. Ill, § 33 of the Maryland Constitution.” And Days Cove cites no authority for the proposition that, in construing a law applying to widely separated geographical regions, a court may first limit its focus to a single location, analyze the law’s impact on that location only, without reference to the statute as a whole, and then declare the entire law to be unconstitutional, which was precisely what the court below did.

Nor are we aware of any such authority. The cases cited by Days Cove in support of its severability argument indicate that severance is permissible, but only after a judicial determination that the law in question is unconstitutional and that the constitutional portion of the measure can be salvaged by excising the offending section or phrase. Reno v. American Civil Liberties Union, 521 U.S. 844, 882-85 , 117 S.Ct. 2329 , 138 L.Ed.2d 874 (1997) (declining, with one narrow exception, to apply severability clause to facially overbroad Communications Decency Act of 1996 because Act was not “readily susceptible” to limiting construction); Alaska Airlines v. Brock, 480 U.S. 678 , 107 S.Ct. 1476 , 94 L.Ed.2d 661 (1987) (holding that unconstitutional legislative-veto provision was severable from remaining parts of Airline Deregulation Act of 1978); National Treasury Employees Union v. United States, 990 F.2d 1271 (D.C.Cir.1993) (after invalidating honor ²⁶⁴ arium ban in § 501(b) of the Ethics in Government Act on First Amendment grounds, Court of Appeals severed portion of statute covering Executive Branch only, leaving intact honorarium ban on members of Congress and judiciary), rev’d in part on other grounds, 513 U.S. 454 , 115 S.Ct. 1003 , 130 L.Ed.2d 964 (1995); Montrose Christian School v. Walsh, 363 Md. 565 , 770 A.2d 111 (2001) (severing facially unconstitutional religious exception from Montgomery County employment anti-discrimination ordinance); Davis v. State, 294 Md. 370 , 451 A.2d 107 (1982) (severing unconstitutional religious group membership exception from statute mandating childhood immunization as condition of school enrollment). Hence, we must first consider Chapter 161 in its entirety and not just that part of the law that applies to Queen Anne’s County.

I. Article III, § 33 of the Maryland Constitution, prohibits, in certain circumstances, “special laws,” avowing: “And the General Assembly shall pass no special Law, for any case, for which provision has been made, by an existing General Law.” 7 In other words, a law is constitutionally impermissible under § 33 if two conditions are met: (1) the law is a “special law” and (2) a “general law” relating to the same subject ²⁶⁵ matter already exists. See Jones v. House of Reformation, 176 Md. 43, 55-56 , 3 A.2d 728 (1939). What is the difference between a “special law” and a general law, for the purposes of § 33? “A special law is one that relates to particular persons or things of a class, as distinguished from a general law which applies to all persons or things of a class.” Prince George’s County v. B. & O. R.R. Co., 113 Md. 179, 183 , 77 A. 433 (1910). “[I]n applying § 33 to determine whether an enactment affects less than an entire class and is, therefore, a ‘special law,’ [Maryland courts have] looked to the purpose of the constitutional prohibition.” Cities Serv. Co. v. Governor, 290 Md. 553, 568 , 431 A.2d 663 (1981).

The purpose of § 33 is “to prevent one who has sufficient influence to secure legislation from getting an undue advantage over others” as well as to “prevent the dispensation or grants of special privileges to special interests, through the instrumentality of special legislation, in conflict with previously enacted general legislation covering the same subject matter.” Id. at 568-69, 431 A.2d 663 (quotations and internal punctuation omitted). In determining whether § 33 prohibits a particular piece of legislation, the Court of Appeals has “pointed to various considerations and factors, although certainly no one is conclusive in all cases.” Id. at 569, 431 A.2d 663 . Those “considerations and factors” include: “whether [the legislation] was actually intended to benefit or burden a particular member or members of a class instead of an entire class”; whether the legislation identifies particular individuals or entities; whether “a particular individual or business sought and received special advantages from the Legislature, or if other similar individuals or businesses were discriminated against by the legislation”; whether the legislation’s substantive and practical effect, “and not merely its form,” show that it singles out one individual or entity, from a general category, for special treatment; and whether “the legislatively drawn distinctions ... are arbitrary and without any reasonable basis.” Id. at 569-70 , 431 A.2d 663 . One last “pertinent consideration[ ]” is ²⁶⁶ the public interest underlying the enactment, and the inadequacy of the general law to serve that interest.

Id. at 570 , 431 A.2d 663 . We now apply the foregoing “considerations and factors” to the enactment of Chapter 161. Whether Chapter 161 Was Actually Intended to Benefit or Burden a Particular Member of a Class Instead of an Entire Class The MDE contends that Chapter 161 is not a special law because it is not a “private Act[], for the relief of particular named parties, or providing for individual cases,” Montague v. State, 54 Md. 481, 490 (1880), but rather, “broadly applies to any person who, now or in the future, would want to build or operate a landfill in the widespread geographic areas covered by the law.” Days Cove counters that Chapter 161 is such a law inasmuch as it “creates a closed class of one,” namely Days Cove, and there is a general law “dealing with the asserted public interest in this case, the protection of the environment.” In support of its “closed-class-of-one” claim, Days Cove asserts that Chapter 161 applies only to it because Chapter 161 cannot now or in the future apply to anyone else, reasoning that, because Queen Anne’s County amended its zoning laws in 2004 to prohibit the issuance of a conditional use for rubble landfills anywhere in the county and because, under Maryland Code (1982, 2007 Repl.Vol.), EN § 9-210(a)(3), the MDE is prohibited from issuing a permit to install or modify such a facility unless it complies with county zoning laws, “[t]here will be no other permit applicants [for rubble landfills] anywhere” in Queen Anne’s County in the future. And, since Days Cove had the only pending application for a rubble landfill in the affected area, the “practical effect” of Chapter 161, concludes Days Cove, is to burden only it.

In addressing Days Cove’s “closed-class-of-one” argument, we find Potomac Sand & Gravel Co. v. Governor of Md., 266 Md. 358 , 293 A.2d 241 (1972) (per curiam), particularly pertinent. In that case, the Court of Appeals held that a public local law, Chapter 792 of the 1971 Laws of Maryland, prevent ²⁶⁷ ing anyone from dredging certain specified wetlands in Charles County, was not a special law. 8 Potomac Sand and Gravel Company, which was engaged in the business of dredging sand and gravel deposits found in land that it owned and from the beds of tidal waters surrounding that land, was the only entity then affected by the dredging ban. It brought a declaratory judgment action claiming, among other things, that Chapter 792, which did not apply to neighboring counties, denied it equal protection of the laws and was violative of Article III, § 33. In rejecting Potomac Sand’s claim, the Court reasoned that, although only one entity was immediately affected by the law, the prohibition on dredging was applicable to “others,” that is, anyone who might wish to engage in the prohibited activity.

The Court of Appeals explained: [The dredging prohibition] does not provide relief of a particular named party. It is true that Potomac Company may be the only party affected by [the law], but if others wished to dredge the wetlands of Charles County, they too would be prohibited from doing so. [The dredging prohibition] is applicable to all persons, but is limited to Charles County because the wetlands sought to be protected ... are located in Charles County. Id. at 379, 293 A.2d 241 . Thus, the Potomac Sand Court flatly rejected a “closed-class-of-one” claim very similar to the one before us, leading us to conclude that, because others who may wish to establish a rubble landfill within the defined areas in Queen Anne’s and Prince George’s Counties would be prohibited from doing so, Chapter 161, likewise, “is applicable to all persons, but is limited to [Queen Anne’s and Prince George’s Counties] be ²⁶⁸ cause the wetlands sought to be protected ... are located in [those counties].” Id.

Furthermore, the three out-of-state cases cited by Days Cove — City of Springfield v. Sprint Spectrum, L.P., 203 S.W.3d 177 (Mo.2006); Harrisburg School District v. Hickok, 563 Pa. 391 , 761 A.2d 1132 (2000); and Pennsylvania Turnpike Commission v. Pennsylvania, 587 Pa. 347 , 899 A.2d 1085 (2006) — to support its “closed-class-of-one” argument are not applicable here. In City of Springfield v. Sprint Spectrum, L.P., 203 S.W.3d 177 , the Supreme Court of Missouri considered the constitutionality, under a Missouri provision similar to Article III, § 33, of a statutory scheme that exempted certain municipalities from a statewide limit on their authority to impose business license taxes on phone companies. Only those municipalities that had already “taken affirmative action to collect” such a tax prior to January 15, 2005, were exempt from the limitations. Because the statute setting forth the cutoff date was enacted after January 15, 2005, and had an effective date of August 28, 2005, “the class of cities that could come within this exemption was fixed, based on an immutable, historical fact: whether an ordinance meeting the specifications of [the statute] had or had not already been passed and enforced by the city prior to January 15, 2005.” Id. at 185.

Consequently, the Court held that the statute was a special law. Unlike the instant case, in Sprint Spectrum, where the class was closed because it was “based on an immutable, historical fact,” id. at 185, here, the class of persons and organizations covered by Chapter 161 is open, because the statute operates prospectively to prevent the Secretary of the MDE from issuing a permit to anyone in the future who wishes to establish a rubble landfill in the affected areas. In Harrisburg School District v. Hickok, 563 Pa. 391 , 761 A.2d 1132 (2000), the Supreme Court of Pennsylvania considered whether a provision of a state law, the Education Empowerment Act of 2000, was a special law under that state’s ²⁶⁹ analogue to Article III, § 33. In general, the Education Empowerment Act provided for state control over school districts having a history of low test scores.

The challenged provision established an exception to this general scheme: “If a school district is ‘a school district of the second class with a history of low test performance which is coterminous with the city of the third class which contains the permanent seat of government,’ i.e., if the school district is located in Harrisburg, the secretary is directed not to include the district on the list of schools with low performance, but to immediately certify the district as an ‘education empowerment district,”’ which would remain under local, rather than state, control. Id. at 1135. The Court held that the provision was a special law. As the Supreme Court of Pennsylvania explained, the class created by the Education Empowerment Act of 2000, although defined obtusely through a maze of jargon, was actually a closed class of one consisting of the state capital, Harrisburg.

Id. Thus, Ilickok is unlike the present case because the class defined by Chapter 161 is open. In Pennsylvania Turnpike Commission v. Pennsylvania, 587 Pa. 347 , 899 A.2d 1085 (2006), the Supreme Court of Pennsylvania addressed whether the First-Level Supervisor Collective Bargaining Act, which mandated that the Pennsylvania Turnpike Commission collectively bargain with its first-level supervisors, 9 was a special law. After noting that the statute, as originally introduced in the legislature, was intended to apply broadly to public employers, 899 A.2d at 1087 , the Court invalidated it because, among other reasons, the statute “created a class with one member and did so in a fashion that makes it impossible for another member to join the class,” since it “defined ‘public employer’ as ‘The Pennsylvania Turnpike Commission.’ ” Id. at 1098.

Thus, Pennsylvania Turnpike Commission also differs materially from the instant case. ²⁷⁰ As to Days Cove’s claim that the legislative intent underlying Chapter 161 was to impose a burden only on it, Days Cove relies on what it calls “the history of this legislation,” pointing first to the legislative testimony of the bill’s sponsor and others regarding the necessity of Chapter 161, then to the lack of testimony concerning other landfills in Queen Anne’s or Prince George’s Counties, and, finally, to an “analysis of [Chapter 161] [that] refers to one and only one proposed facility: the Days Cove facility near Unicorn Lake.” It concludes: “To claim that Chapter 161 is targeted at any facility other than the Days Cove proposal simply belies the record set out before the General Assembly at the time of enactment.” It appears that Days Cove is asking us to discern some illicit motive on the part of the General Assembly from the legislative testimony presented in favor of Chapter 161. This is not, however, a proper line of inquiry for this Court. As we stated in Pack Shack, Inc. v. Howard County, 138 Md.App. 59, 72 , 770 A.2d 1028 (2001): “It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive.” We explained: “What motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for us to eschew guesswork.” Id. Indeed, “[i]t is well-settled that when the judiciary reviews a statute or other governmental enactment, either for validity or to determine the legal effect of the enactment in a particular situation, the judiciary is ordinarily not concerned with whatever may have motivated the legislative body or other governmental actor.” Workers’ Comp.

Comm’n v. Driver, 336 Md. 105, 118 , 647 A.2d 96 (1994). Thus, legislative testimony is largely irrelevant with respect to a determination as to whether Chapter 161 is a special law. And, for this reason, we attach no significance to the fact that no other landfill facility was mentioned in legislative testimony or an “analysis” of the bill. Moreover, the focus of testimony and ²⁷¹ analysis was on Days Cove simply because there was no other entity actively planning, at that time, to construct a landfill in any of the areas covered by Chapter 161. 10 Nor are we persuaded that the 2004 amendment to the zoning ordinance of Queen Anne’s County, which purportedly excludes rubble landfills as a conditional use in the county, affects the constitutionality of Chapter 161.

Days Cove cites no authority for the proposition that a local ordinance can invalidate an otherwise constitutional state statute. Whether Chapter 161 Identifies Particular Individuals or Entities If an act expressly states that it applies only to a particular, named individual or entity, it may run afoul of Article III, § 33. So may “equivalent” means of identifying a particular entity. Reyes v. Prince George’s County, 281 Md. 279, 305-06 , 380 A.2d 12 (1977).

Days Cove asserts that “it is clear that Chapter 161 could apply only to Days Cove in Queen Anne’s County.” Thus, it contends, Chapter 161 is a special law despite its failure to expressly name a particular entity. In Reyes , however, the Court of Appeals concluded that an act authorizing Prince George’s County to sell bonds to acquire “any sports stadium or sports arena” in the county was not a special law, even though only one arena, the former Capital Centre, existed in the county at the time. It was not a special law, explained the Court, because “if the county wishes to acquire or finance other sports facilities in the county, it may do so.” Id. at 306 , 380 A.2d 12 . On the other hand, “had [the law] specifically identified the arena by name or in any equivalent manner,” the Court acknowledged, “it might well have been a special law.” Id. at 305-06 , 380 A.2d 12 .

But since it, instead, “referred to sports arenas or sports stadia no ²⁷² matter where located in the county, any facility meeting this definition fell within its ambit.” Id. at 306 , 380 A.2d 12 . Moreover, as noted earlier, Potomac Sand held that Chapter 792 of the 1971 Laws of Maryland, though it applied only to a single entity at the time of its enactment, was not a special law because it was “applicable to all persons” in the affected county. 266 Md. at 379 , 293 A.2d 241 . Finally, Beauchamp v. Somerset County, 256 Md. 541 , 261 A.2d 461 , supra, provides an instructive contrast to Reyes, Potomac Sand, and, for that matter, to the instant case. In Beauchamp , the Court of Appeals held that Chapter 674 of the Laws of 1966 was a special law as to a matter already covered by a public general law.

That law provided as follows: “Notwithstanding any requirements of the subtitle to the contrary, in Somerset County, an incorporated'American Legion Post is exempted from payment of any taxes ... levied against the property of any such Post by the Somerset County Sanitary District, Inc[.]” 256 Md. at 546 , 261 A.2d 461 (italics omitted). In so holding, the Court noted that, although no entity was specifically named, the practical effect of the tax exemption was to benefit only one Post, American Legion Post No. 94: The facts in this case ... indicate that although the Sanitary Commission has county-wide authority, it has established'only one sub-district ... in which the lands of American Legion Post No. 94 are located and it is the only American Legion Post in the sub-district.... It is thus seen that the practical effect and the effect intended by the sponsors of the Act was to exempt American Legion Post No. 94 from any assessment or charge by the Sanitary Commission. The Act thus, in effect, applies to one taxpayer only and to the lands of that one taxpayer.

Id. at 549 , 261 A.2d 461 (emphasis omitted). Beauchamp thus exemplifies a special law that identifies “in an[] equivalent manner” a particular beneficiary, American Legion Post No. 94. Reyes, 281 Md. at 305 , 380 A.2d 12 . ²⁷³ The instant case is more like Reyes and Potomac Sand than Beauchamp . Here, the legislation applies not only to Days Cove, or even to any person or entity that, in the future, might wish to construct a rubble landfill within four miles of Unicorn Lake in Queen Anne’s County, but also to designated parts of Prince George’s County.

Indeed, even “laws affecting only a single entity have been upheld where they can apply, in principle, to other similarly situated entities.” State v. Burning Tree Club, Inc., 315 Md. 254, 275 , 554 A.2d 366 (1989), citing Reyes and Potomac Sand. Chapter 161 clearly “applies], in principle, to other similarly situated entities,” that is, to anyone else who might, in the future, wish to establish or operate a rubble landfill in the areas prohibited by Chapter 161, and does not identify a particular entity “in an[ ] equivalent manner.” Whether a Particular Entity Sought and Received Special Advantages from the Legislature, or Other Similar Entities Were Discriminated Against by Chapter 161 Days Cove contends that “the Legislature, by the passage of Chapter 161, intended to burden [it] in particular, and was not acting to limit the entire class of landfill operators in order to protect natural areas.” The MDE counters that there is “no indication that any individual or business sought or received special advantages from the [Legislature with respect to Chapter 161.” Chapter 161 is not expressly or impliedly intended to benefit or burden Days Cove alone. As the MDE points out, Chapter 161 lacks any exceptions or date limitations that would allow one or more competitors to do what is denied to Days Cove. Chapter 161 has broad application, covering any and all persons or entities interested in building and operating a rubble landfill in the defined geographical regions.

And, although Chapter 161 may immediately affect only Days Cove’s pending permit application, that fact alone, as we have observed, is not sufficient to