Maryland Reclamation Associates, Inc. v. Harford County

HARRELL, J. The present case is the latest in a sequence of litigation between the parties beginning in 1990. As a consequence of the immediately preceding decision in that sequence, Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476 , 677 A.2d 567 (1996), Appellant, Maryland Reclamation Associates, Inc. (“MRA”), asked the Harford County Zoning Administrator (“the Zoning Administrator”) for certain interpretations of the Harford County zoning ordinance, and particularly a 1991 amendment, as it may apply to a proposed rubble landfill on property owned by MRA. MRA also sought a zoning certificate. Following a lengthy gestation period, the Zoning Administrator, in a 22 February 1999 letter, essentially ruled that the 1991 amendment applied to MRA’s proposal and also denied the zoning certificate application.

The result of the Zoning Administrator’s decisions was that MRA, as far as Harford County was concerned, could not establish its proposed rubble landfill on its property unless it obtained variances from the requirements of the zoning ordinance, as amended in 1991. MRA filed an administrative appeal from the Zoning Administrator’s rulings to the Harford County Board of Appeals (“the Board of Appeals”). 1 On 11 June 2002, the Board of Appeals affirmed the decisions of the Zoning Administrator. Ten days later, MRA sought judicial review of the Board of ³⁵¹ Appeals’s decision in the Circuit Court for Harford County. The Circuit Court affirmed the decision of the Board of Appeals on 22 October 2003.

MRA appealed to the Court of Special Appeals. We, on our initiative and before the appeal was briefed or argued in the Court of Special Appeals, issued a writ of certiorari principally to determine whether the Circuit Court, in view of the appellate history of the underlying matter, properly affirmed the Board of Appeals. Maryland Reclamation v. Harford County, 379 Md. 98 , 839 A.2d 741 (2004). 2 ³⁵² MRA presents the following nine questions for our consideration: I. Has MRA exhausted its administrative remedies such that its claims of error based upon State law including preemption, estoppel, vested rights, non-conforming use and constitutional violations can be heard by this Court?

II

Are the federal issues raised by MRA as grounds for its assertion that Bill 91-10 can not be applied to MRA’s proposed rubble landfill ripe for review by this Court?

III

Is Harford County preempted by State Law including the comprehensive regulatory scheme set forth in the Environmental Article of the Maryland Annotated Code and regulations adopted in support thereof, from applying Bill 91-10 to MRA’s property on Gravel Hill Road given that Bill 91-10 was enacted and purportedly applied to MRA’s property after Harford County zoning and Solid Waste Management Plan approvals had been given to MRA’s rubble landfill application during Phase 1 of the State rubble landfill permit application process?

IV

Is Harford County prevented by the United States and/or Maryland Constitutions and/or the Maryland Declaration of Rights from applying Bill 91-10 to MRA’s proposed rubble landfill on its property given that MRA had a vested right in its County zoning approval to proceed with Phases 2 and 3 the MDE’s rubble landfill permitting process without Harford County being permitted to rescind its prior zoning approval and thereby veto the MDE’s permit application process? ³⁵³ Y. Is Harford County estopped from applying the provisions of Harford County Bill 91-10 to MRA’s proposed operation of a rubble landfill on its property pursuant to its State-issued permit given that MRA purchased its property in justifiable reliance on Harford County’s zoning and Solid Waste Management Plan approvals during Phase 1 of the State’s rubble landfill permitting process, Harford County arbitrarily and unreasonably applied Bill 91-10 to MRA’s proposed rubble landfill after MDE’s Phase 1 permit review was complete, and MRA suffered substantial damages by being prevented from using its property for a rubble landfill by Harford County’s application of Bill 91-10 to MRA’s property?

VI

Will MRA’s operation of a rubble landfill on its property at Gravel Hill Road pursuant to its State-issued Refuse Disposal Permit No. 92-12-35-10-D and as renewed by Refuse Disposal Permit 1996-WRF-0517 violate applicable Harford County zoning given that Harford County granted zoning and Solid Waste Management Plan approval to MRA’s proposed rubble landfill during Phase 1 of the State rubble landfill permit application process?

VII

Will MRA’s continued operation of a rubble landfill on its property pursuant to its State-issued permit constitute a valid non-conforming use pursuant to Harford County Zoning Code, Section 267-18 of the Harford County Zoning Code?

VIII

Did Harford County properly fail to issue MRA’s grading permit due to the passage and application of Bill 91-10 to MRA’s property, which grading permit issuance is a condition of MRA’s Solid Waste Management Plan approval, even though all applicable County review agencies, including zoning, approved the grading permit application before the enactment of Bill 91-10? ³⁵⁴ IX. Did the Hearing Examiner properly rule that MRA is not entitled to rely upon its 1989 County Site Plan approval which pre-dated the enactment of Bill 91-10 given that this issue was not raised by MRA in a Request for Interpretation and was not ruled upon or mentioned by the Zoning Administrator but was raised sua sponte by the Hearing Examiner? We hold that MRA was required to exhaust its administrative remedies prior to the Circuit Court considering its petition for judicial review in this matter. MRA failed to do so because it has not sought variances from the Board of Appeals.

Therefore, we shall vacate the Circuit Court’s order and remand with directions that consideration of the Petition for Judicial Review be stayed. Accordingly, we need, and shall, not address at this time the other questions raised by MRA. I. The present case is the third reported opinion from Maryland’s appellate courts addressing the parties’ dispute. The factual history was summarized extensively in Holmes v. Maryland Reclamation Associates, Inc., 90 Md.App. 120 , 600 A.2d 864 , cert. dismissed sub nom., County Council v. Maryland Reclamation, 328 Md. 229 , 614 A.2d 78 (1992) (MRA I), and Maryland Reclamation Associates, Inc. v. Harford County, 342 Md. 476 , 677 A.2d 567 (1996) (MRA II).

We need recount here only a brief portion of that history. In 1989, MRA began the arduous process of seeking governmental approvals to operate a rubble landfill on its Gravel Hill Road property in Harford County. Late in 1989, Harford County included MRA’s Gravel Hill Road property as a rubble landfill site in the County’s Solid Waste Management Plan. 3 In ³⁵⁵ 1990, after an electoral turnover at the top rungs of the Harford County local government, Resolution 4-90 was introduced in the “new” County Council providing for the removal of MRA’s property from the County’s Solid Waste Management Plan. In the litigation that ensued over the passage of this resolution, the Court of Special Appeals held that Resolution 4-90 was invalid because it was preempted by the State’s authority to regulate solid waste management plans and the issuance of rubble landfill permits.

MRA I, 90 Md.App. at 157 , 600 A.2d at 882 . During the pendency of the litigation in MRA I, Bill 91-10 was introduced in the County Council. Bill 91-10 proposed to change the spatial zoning requirements for a rubble landfill, as a permitted use, by increasing the minimum number of acres required and changing the buffer, setback, and relative topographic elevation requirements. Bill 91-10, as enacted, became effective on 27 March 1991, and is now codified as section 267-40.1 of the Harford County Code.

The Gravel Hill Road property could not conform strictly to many, if not all, of the requirements added or changed by Bill 91-10. MRA filed a complaint in the Circuit Court against Harford County challenging the enactment and application of Bill 91-10 and seeking declaratory and injunctive relief. In MRA II, the upshot of the initial litigation over the enactment of Bill 91-10, we held that, because MRA had not exhausted its administrative remedies, the issue of the application of Bill 91-10 to the Gravel Hill Road property was not ripe for judicial determination. MRA II, 342 Md. at 497 , 677 A.2d at 578 .

In MRA II, we explained that “there clearly were administrative remedies [then] available to Maryland Reclamation,” “[Section] 267.7B(5) of the Harford County Code authorizes the Zoning Administrator to render decisions on the applicability of zoning regulations to particular property under the factual circumstances presented, and § 267-7E of the Code authorizes an appeal from his decision to the ³⁵⁶ Board of Appeals. Maryland Reclamation could have sought a ruling by the Zoning Administrator under that section and could have prosecuted an appeal from any adverse ruling, but it failed to do so. Even if it be assumed, arguendo, that the May 2, 1991, letter from the Director of Planning was such a decision under § 267.7B(5), Maryland Reclamation failed to pursue its appeal to the Board of Appeals. “Moreover, if it was determined that Bill 91-10, or any other Harford County zoning regulation, precluded Maryland Reclamation from proceeding with a rubble landfill on its property, the landowner could have applied for a variance under §§ 267-9 D and 267-11 of the Harford County Code, and could have appealed any adverse decision to the Board of Appeals. “In addition to the provisions of the Harford County Code, state law vests jurisdiction in the Harford County Board of Appeals over [a]n application for a zoning variance or exception____’ Code (1957, 1994 Repl.Vol.), Art. 25A, § 5(U). Furthermore, under Maryland law, the Harford County Board of Appeals would be authorized and required to consider any of the constitutional and other issues raised by Maryland Reclamation to the extent that those issues would be pertinent in the particular proceedings before the Board.” MRA II, 342 Md. at 490-92 , 677 A.2d at 574-75 (citations and footnote omitted).

Following our decision in MRA II, MRA presented its first request for interpretation to the Zoning Administrator on 15 November 1996. Four questions were presented: 1. Does Bill 91-10 apply to MRA’s property on Gravel Hill Road? 2. Can the requirements of Bill 91-10 be validly applied to MRA’s property on Gravel Hill road under the circumstances of this case and in light of the Environmental Article of the Maryland Code as well as other principles of law? ³⁵⁷ 3.

Will operation of a rubble landfill by MRA on its property at Gravel Hill Road pursuant to its State permit be deemed to violate applicable Harford County Code Sections 267-40.1, 267.28C, 267-28D(4) and 267.41? 4. Can MRA obtain the grading permit (No. 92-123) for which it has already applied and paid for and which has not yet been issued, without meeting the current requirements of Harford County Zoning Law? The Zoning Administrator responded to the 15 November 1996 request for interpretation with a letter dated, 18 February 1997, simply stating that Bill 91-10 was applicable to MRA’s proposed rubble landfill. On 7 March 1997, MRA appealed the Zoning Administrator’s decision to the Board of Appeals.

MRA advanced various constitutional, preemption, estoppel, and non-conforming use bases for finding the Zoning Administrator’s decision incorrect. MRA filed with the Zoning Administrator on 10 December 1998 a second request for interpretation of the zoning ordinance. Pursuant to § 267-8 of the Harford County Code, MRA also applied on 29 December 1998 for a zoning certificate to construct and operate its desired rubble landfill.' 4 In the second request for interpretation, MRA asked the Zoning Administrator to answer five more questions related to the ability of the County to apply the requirements of Bill 91-10 to MRA’s Gravel Hill Road property. The five questions presented were: 5.

Whether MRA’s operation of a rubble landfill on its property at Gravel Hill Road pursuant to the State-issued Refuse Disposal Permit No. 92-12-35-10 D and ³⁵⁸ as renewed by Refuse Disposal Permit 1996-WRF-0517 will be deemed to violate applicable Harford County zoning? 6. Whether Harford County is prohibited by the principles of estoppel from applying the provisions of Harford County Bill 91-10 (Section 267-40.1 of the Harford County Code) to MRA’s operation of a rubble landfill on its property pursuant to its state-issued permit referenced in question 1? 7. Whether applying the provisions of Bill 91-10 to MRA’s property and, specifically, the MRA’s operation of a rubble landfill on its property, is prohibited by the United States Constitution and/or the Maryland Declaration of Rights? 8. Whether Harford County is preempted by the Environmental Article of the Maryland Annotated Code, including but not limited to Sections 9-201 et seq. and 9-501 et seq. and applicable regulations promulgated thereto from applying the provisions of Bill 91-10 to MRA’s property and specifically, to MRA’s operation of a rubble landfill on its property pursuant to its State-issued permit referenced in question 1? 9.

Whether MRA’s operation of a rubble landfill on its property pursuant to its State-issued permit referenced in question 1 is a valid non-conforming use pursuant to the Harford County Zoning Code? In a 22 February 1999 letter denying MRA’s request for a zoning certificate, the Zoning Administrator also answered MRA’s questions five and nine, but declined to answer its questions six, seven, and eight. After a remand from the Board of Appeals to the Zoning Administrator, questions six, seven, and eight were answered in a 4 October 2000 letter. After consolidating MRA’s two appeals, the Board of Appeals, by delegation to its Zoning Hearing Examiner, heard the matters on various days over the course of January to October 2001. ³⁵⁹ The Zoning Hearing Examiner issued on 2 April 2002 an extensive written decision affirming the decisions of the Zoning Administrator.

According to the Hearing Examiner, the weight of the evidence showed that the application of Bill 91-10 to the proposed rubble landfill did not violate federal, state, or local laws. Specifically, the Zoning Hearing Examiner’s answers to MRA’s nine questions may be summarized as follows: 1. Bill 91-10 applies to MRA’s property on Gravel Hill Road. 2. The requirements of Bill 91-10 can be validly applied to MRA’s property on Gravel Hill road under the circumstances of this case and in light of the Environmental Article of the Maryland Code as well as other principles of Maryland law. 3.

MRA’s operation of a rubble landfill on its property at Gravel Hill Road pursuant to its state permit will violate applicable Harford County Zoning law, particularly Harford County Code §§ 267-40.1, 267-28C, 267-28D(4) and 267-41. Moreover, the Hearing Examiner questions whether the permit issued to MRA by MDE is validly issued as it was based on misinformation provided to the State by MRA regarding the conformance of the property and use with Harford County Zoning law. 4. MRA cannot obtain a grading permit unless it can meet the requirements of Harford County Zoning law. To the extent MRA does not meet specific standards it must seek a variance and obtain a variance from provisions with which it cannot comply.

MRA’s reliance on site plan approvals that pre-date the enactment of Bill 91-10 is without merit. 5. MRA’s operation of a rubble landfill on its property at Gravel Hill Road pursuant to its State-issued Refuse Disposal Permit No. 91-12-35-10-D and as renewed by Refuse Disposal Permit 1996-WRF-0517 will violate applicable Harford County zoning law. ³⁶⁰ 6. Harford County is not prohibited by the principles of estoppel from applying the provisions of Harford County Bill 91-10 (section 267-40.1 of the Harford County Code) to MRA’s property and specifically, to MRA’s operation of a rubble landfill on its property. 7. MRA’s rubble landfill did not acquire vested rights in its use that would insulate it from the application of Bill 91-10 to that use.

It is the vested rights doctrine itself that allows a landowner to raises issues of constitutional protections. There is no constitutional infringement on the rights of MRA because a vested right was not established. Applying the provisions of Bill 91-10 to MRA’s Gravel Hill Road property is, therefore, not prohibited by the United State’s Constitution and/or the Maryland Declaration of Rights. 8. Harford County is not preempted by the Environmental Article of the Maryland Code, particularly sections 9-201 et seq. and 9-501 et seq, from applying Bill 91-10 to MRA’s Gravel Hill Road property. 9.

MRA’s operation of a rubble landfill on its Gravel Hill Road property is not a valid non-conforming use pursuant to Harford County Zoning Code. On 11 June 2002, the County Council, sitting as the Board of Appeals, adopted the Zoning Hearing Examiner’s decision. Harford County, therefore, refused to issue to MRA a grading permit or zoning certificate for the proposed rubble landfill because of the strictures of Bill 91-10. Neither in response to the Board of Appeals’s final decision, nor on a parallel course to its requests for interpretation or a zoning certificate, did MRA seek variances for relief from the requirements of Bill 91-10.

On 21 June 2002, MRA commenced the current phase of the litigation by petitioning the Circuit Court for Harford County for judicial review of the Board of Appeals’s decision. The Circuit Court affirmed the decision of the Board of Appeals on 22 October 2003. It concluded that “all nine requests for interpretation were answered correctly [by the Zoning Admin ³⁶¹ istrator, Zoning Hearing Examiner, and Board of Appeals], in accordance with the law, and based on substantial evidence, and the decision was also correct when it upheld the zoning administrator’s denial of Maryland Reclamations request for a zoning certificate.” Regrettably, because MRA still has not exhausted its available administrative remedies, as explained in MRA II, we shall vacate the Circuit Court’s judgment and remand with directions to stay final action on the petition for judicial review. Before it may prosecute its petition for judicial review in this matter, MRA must apply for the zoning variances assertedly needed to obtain relief from Bill 91-10.

When final administrative action is taken on variance applications, MRA, if still aggrieved, may seek additional judicial review of Harford County’s actions on the variances and prosecute the present matter. Failure to prosecute variance applications within a reasonable time could result in dismissal of the present petition.

II

A. A fundamental precept of administrative law is the requirement that exclusive or primary administrative remedies ordinarily be exhausted before bringing an action in court. 5 See, e.g., Brown v. Fire and Police Employees’ Retire ³⁶² ment System, 375 Md. 661, 669 , 826 A.2d 525, 530 (2003); Dorsey v. Bethel A.M.E. Church, 375 Md. 59, 76 , 825 A.2d 388, 397-98 (2003); Moose v. Fraternal Order of Police, 369 Md. 476, 492-93 , 800 A.2d 790, 801 (2002); Furnitureland v. Comptroller, 364 Md. 126, 133 , 771 A.2d 1061, 1065 (2001) (“[W]here the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended such remedy to be primary and intended that the administrative remedy must be ... exhausted before resort to the courts”); Montgomery County v. Broadcast Equities, 360 Md. 438, 461 , 758 A.2d 995, 1008 (2000) (“[T]he normal rule [is] that primary administrative ... remedies must be exhausted.”); Josephson v. City of Annapolis, 353 Md. 667, 674-78 , 728 A.2d 690, 693-95 (1998) (when administrative remedies exist in zoning cases, they must be exhausted before other actions, including requests for declaratory judgments, mandamus, and injunctive relief, may be brought); Holiday Point Marina Partners v. Anne Arundel County, 349 Md. 190, 201 , 707 A.2d 829, 834-35 (1998); Zap-pone v. Liberty Life Ins., 349 Md. 45, 60-66 , 706 A.2d 1060, 1067-70 (1998); MRA II, 342 Md. at 492-97 , 677 A.2d at 575-76 , and cases there cited. Moreover, pursuant to the Uniform Declaratory Judgment Act, “[i]f a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu” of a declaratory action proceeding. Md.Code (1973, 2002 RepLVol., 2003 Supp.), § 3-409(b) of the Courts and Judicial Proceedings Article. In Soley v. State Commission on Human Relations, 277 Md. 521, 526 , 356 A.2d 254, 257 (1976), we observed as follows: The rule requiring exhaustion of administrative or statutory remedies is supported by sound reasoning.

The decisions of an administrative agency are often of a discretionary nature, and frequently require an expertise which the agency can bring to bear in sifting the information presented to it. The agency should be afforded the initial opportunity to exercise that discretion and to apply that expertise. Furthermore, to permit interruption for purposes of judicial intervention at various stages of the administrative process might well ³⁶³ undermine the very efficiency which the Legislature intended to achieve in the first instance. Lastly, the courts might be called upon to decide issues which perhaps would never arise if the prescribed administrative remedies were followed.

Eight years ago in MRA II, this Court instructed MRA that before it may obtain judicial