Meadowridge Industrial Center Ltd. Partnership v. Howard County

BISHOP, Judge. Appellee, Browning Ferris, Inc. (“BFI”), petitioned the Zoning Board of Howard County for the establishment of a Solid Waste Overlay Zone on a 17.3 acre parcel of land. The petition, which would allow BFI to construct and operate a solid waste transfer and recovery station on the property, was granted by the Zoning Board, and appellant, Meadowridge Industrial Center Limited Partnership (“Meadowridge”), appealed that decision to the Circuit Court for Howard County. The circuit court affirmed the Board’s decision, and Meadow-ridge noted a timely appeal to this Court.

ISSUES Appellees, BFI and Howard County, raise the following threshold issue: ⁴¹⁴ I. Is the issue of the validity of the Howard County Solid Waste Plan properly before this Court on appeal? Meadowridge, in turn, raises the following issues: II. If the issue of validity is properly before this Court, was the Howard County Solid Waste Plan properly passed into law?

III

Did the Zoning Board commit error by misconstruing the “compelling reasons” requirement established by Howard County Zoning Regulation § 124(A)? FACTS A. The Solid Waste Overlay District Howard County Zoning Regulation § 124 establishes the Solid Waste Overlay District, which is designed “to provide [the] opportunity for solid waste processing facilities not allowed in other zoning districts and to encourage re-use and recycling of solid waste in lieu of disposal at a landfill.” H.C.Z.R. § 124(A). The Solid Waste Overlay District is a floating district, and may be applied to land only if the Zoning Board finds, “upon review of a specific proposal and Preliminary Development Plan, that application of the District at a proposed location will meet the requirements established in [§ 124].” H.C.Z.R. § 124(A). Because of the nature of the uses in a Solid Waste Overlay District, such a district may be applied only to land zoned M-l (Manufacturing, Light) or M-2 (Manufacturing, Heavy).

H.C.Z.R. §§ 124(A); 124(F)(2)(a). The Zoning Board may grant a petition to apply a Solid Waste Overlay District to land zoned M-2 as long as the petition: 1) complies with the requirements of H.C.Z.R. § 124(F)(1); and 2) satisfies the criteria established in H.C.Z.R. § 124(F)(2). The Zoning Board may grant a petition to apply a Solid Waste Overlay District to land zoned M-l as long as: 1) the petition complies with the requirements of H.C.Z.R. § 124(F)(1); 2) the petition satisfies the criteria established in H.C.Z.R. § 124(F)(2); 3) there is a “compelling reason” for doing so (H.C.Z.R. ⁴¹⁵ § 124(A)); and 4) the use in the Solid Waste Overlay District is limited to a waste transfer facility or a material recovery facility (H.C.Z.R. § 124(A)). Howard County Zoning Regulation § 124(F)(1) requires that all petitions for the establishment of a Solid Waste Overlay District contain: 1) a boundary survey of the property covered by the petition (§ 124(F)(1)(a)); 2) an “operations plan” (§ 124(F)(1)(b)); 3) a “preliminary development plan” (§ 124(F)(1)(c)); 4) a description of available markets and intended users of the products and materials (§ 124(F)(1)(d)); 5) a rehabilitation plan, if “a rubble landfill or land clearing debris landfill is proposed” (§ 124(F)(1)(e)); and 6) a summary of other local, state, and federal requirements that will apply to the proposed facility. § 124(F)(1)(f).

Regulation § 124(F)(2) requires that a petition for the establishment of a Solid Waste Overlay District meet the following criteria: 1) the district will overlay land zoned M--1 or M-2 (§ 124(F)(2)(a)); 2) the proposed uses will accomplish the purposes of the Solid Waste Overlay District (§ 124(F)(2)(b)); 3) safe road access will be available to the site (§ 124(F)(2)(c)); 4) setbacks and landscaped areas will provide adequate buffering of the proposed uses from existing land uses in the vicinity (§ 124(F)(2)(d)); 5) outdoor uses will be screened from roads and residential intersections (§ 124(F)(2)(e); 6) the facility will not result in odors, noise, smoke, or other substances or conditions that will adversely affect the surrounding area (§ 124(F)(2)(f)); 7) the operation will be conducted in an environmentally sound manner (§ 124(F)(2)(g)); 8) if part of the area is to be used for retail sales, that area will provide safe ingress and egress for retail customers and will be clearly accessory to the principal use (§ 124(F)(2)(g)); 9) the proposed facility is consistent with the Howard County Solid Waste Management Plan. § 124(F)(2)(i). The two provisions applicable to the disposition of the case sub judice are: 1) the requirement that there be a “compelling reason” for the establishment of a Solid Waste Overlay District on land zoned M-l; and 2) the requirement that all ⁴¹⁶ petitions for the establishment of a Solid Waste Overlay District be consistent with the Howard County Solid Waste Management Plan. B. The Howard County Solid Waste Management Plan Each Maryland county is required to have a solid waste management plan under Md.Code (1982, 1996 Repl.Vol.) § 9-503 of the Environment Article (Envir.), which reads as follows: § 9-503. County plans—Required; review by governing body of county; revision or amendment.

(a) Requirement—Each county shall have a county plan or a plan with adjoining counties that: (1) Is approved by the Department; (2) Covers at least the 10-year period next following adoption by the county governing body; and (3) Deals with: (i) Water supply systems; (ii) Sewerage systems; (iii) Solid waste disposal systems; (iv) Solid waste acceptance facilities; and (v) The systematic collection and disposal of solid waste, including litter. (b) Review by governing body of county.—Except as provided in § 9-515 of this subtitle, each county governing body shall review its county plan at least once every 3 years in accordance with a schedule set by the Department. (c) Revision or amendment.—Each county governing body shall adopt and submit to the Department a revision or amendment to its county plan if: (1) The governing body considers a revision or amendment necessary; or (2) The Department requires a revision or amendment. (d) Public hearing prior to adoption.— ⁴¹⁷ (1) Before a county governing body adopts any revision or amendment to its county plan or adopts a new county plan, the governing body shall: (1) Conduct a public hearing on the county plan, revision, or amendment that may be conducted jointly with other public hearings or meetings; and (ii) Give the principal elected official of each municipal corporation that is affected notice of the county plan, revision, or amendment at least 14 days before the hearing.

(2) (i) Notice of the time and place of the public hearing, together with a summary of the plan, revision, or amendment, shall be published in at least 1 newspaper of general circulation in the county once each week for 2 successive weeks, with the first publication of notice appearing at least 14 days before the hearing. (ii) Notice of the public hearing may be a part of the general notice listing all other items to be considered during the public hearing or meeting. A new proposed Howard County Solid Waste Management Plan was first introduced and read by the Howard County Council on February 7,1994, and a public hearing on that plan was held on February 22, 1994. The Howard County Council eventually passed a plan on June 6,1994.

The proposal, which was first read on February 7 and on which hearings were held on February 22, recognized that “a transfer station will be necessary to support waste export[,]” and provided that “the County will own and operate the transfer station.... ” It also established that the preferred location for the site would be the Alpha Ridge Landfill. The plan passed on June 6 contains some significant changes from the plan that was initially read on February 7 and on which hearings were held on February 22. Instead of requiring that the County own the transfer station, the plan provides that the County “may own and operate the transfer station____” (emphasis added) Also, unlike the initial plan, ⁴¹⁸ the plan passed on June 6 recognizes the potential for a BFI-owned facility on the 17.3 acre tract in Elkridge. The Howard County Council never gave any notice of these changes and never held any hearings on them before they were adopted.

C. Disposition of BFI’s Petition BFI petitioned the Zoning Board for the placement of a Solid Waste Overlay District on a 17.3 acre lot, zoned M-l, located in Elkridge, Maryland; the purpose of the petition is to allow BFI to build • and operate a solid waste transfer station on the property. The station would be designed to accept up to 2,000 tons, per day, of solid waste collected in Howard, Anne Arundel, Harford and Baltimore Counties and Baltimore City, and to compact such waste into twenty-five ton loads. Once compacted, the waste would be shipped to landfills in Virginia and West Virginia. The operation would be continuous, running twenty-four hours a day, seven days a week, and would handle 40 to 50 collector trucks an hour.

Before the Zoning Board, one of the protestants, Blue Stream Partnership, moved to defer consideration of the petition on the ground that the Howard County Solid Waste Management Plan was not validly passed. According to Blue Stream, the adoption of the changes to the original proposal without notice and a hearing made the plan passed on June 6 invalid. The Zoning Board rejected this argument, and, after hearing from all interested parties, granted BFI’s petition. In its opinion granting BFI’s petition, the Zoning Board found that: 1) BFI’s petition complies with the Howard County Solid Waste Management Plan; and 2) because BFI’s petition complies with the Howard County Solid Waste Management Plan, there is a “compelling reason” for establishing a Solid Waste Overlay District on BFI’s land.

Meadowridge appealed the Zoning Board’s decision to the Circuit Court for Howard County. In its appeal, Meadow-ridge advanced a twofold argument: 1) the Zoning Board failed to find and articulate a “compelling reason” for establishing a Solid Waste Overlay District on BFI’s Elkridge property; and 2) the Howard County Solid Waste Manage ⁴¹⁹ ment Plan, with which BFI’s proposed facility is required to be consistent, is invalid because significant amendments to the original proposal were passed without notice and a hearing. The circuit court upheld the Zoning Board’s decision, and Meadowridge noted a timely appeal to this Court. DISCUSSION Standard of Review We recently stated the standard of review in a zoning appeal in Leo J. Umerley v. People’s Counsel for Baltimore County, 108 Md.App. 497 , 672 A.2d 173 (1996): The order of a county zoning authority ‘must be upheld if it is not premised upon an error of law and if [its] conclusions reasonably may be based upon the facts proven.’ An application of the above standard requires that we undertake the three-step analysis set forth by this Court in Comptroller v. World Book Childcraft, 67 Md.App. 424 [ 508 A.2d 148 ] (1986): 1.

First, the reviewing court must determine whether the agency recognized and applied the correct principles of law governing the case. The reviewing court is not constrained to affirm the agency where its order ‘is premised solely upon an erroneous conclusion of law.’ 2. Once it is determined that the agency did not err in its determination or interpretation of the applicable law, the reviewing court next examines the agency’s factual findings to determine if they are supported by substantial evidence, i.e., by such relevant evidence as a reasonable mind might accept as adequate to support a conclusion ____ 3. Finally, the reviewing court must examine how the agency applied the law to the facts.

This, of course, is a judgmental process involving a mixed question of law and fact, and great deference must be accorded to the agency. The test of appellate review of this function is ‘whether ... a reasoning mind could reasonably have reached the ⁴²⁰ conclusion reached by the [agency], consistent with a proper application of the [controlling legal principles]. Also, unlike our review of a trial court’s judgment, we will only uphold the decision of an agency on the basis of the agency’s reasons and findings. We may search the record for evidence to support a trial court’s judgment; and we may sustain that judgment for a reason plainly appearing on the record, even if the reason was not relied on by the trial court.

But we may not uphold an agency’s decision ‘unless it is sustainable on the agency’s findings and for the reasons stated by the agency.’ Id. at 504 , 672 A.2d at 176 (citations omitted). I. Preservation of Validity Issue According to Meadowridge, the Howard County Solid Waste Management Plan passed on June 6, 1994 contains significant changes from the provisions of the proposed plan that was introduced on February 7, 1994 and on which hearings were held on February 22, 1994. Thus, Meadowridge argues, the Howard County Council was required to hold new hearings on the plan passed on June 6. Because it did not, Meadowridge asserts that the plan is invalid, and that the Zoning Board’s reliance on it constitutes reversible error.

In response, appellees point out that Meadowridge did not raise the issue of the validity of the June 6 plan in the proceedings before the Zoning Board. Although the issue was raised before the Zoning Board, it was raised by Blue Stream Partnership, another party opposing BFI’s petition; and the Zoning Board rejected Blue Stream’s argument on the issue. Appellees argue that because Meadowridge itself did not raise the issue before the Zoning Board, it has not preserved the issue for our review. The general rule regarding preservation of issues in administrative cases was stated by the Court of Appeals in Cicala v. Disability Review Board for Prince George’s County, 288 Md. 254 , 418 A.2d 205 (1980): ⁴²¹ A party who knows or should have known that an administrative agency has committed an error and who, despite an opportunity to do so, fails to object in any way or at any time during the course of the administrative proceeding, may not raise an objection for the first time in a judicial review proceeding.

Id. at 262 , 418 A.2d 205 . Cicala , however, involved a different factual scenario from the one sub judice. In Cicala , the issue raised by the appellant had never been raised before, or decided by, the administrative agency. By contrast, in the case sub judice, the issue of the validity of the Howard County Solid Waste Management Plan was raised before, and decided by, the Zoning Board; the only problem is that the appellant in this appeal—Meadowridge—was not the party that raised the issue.

Thus, we must determine whether Meadowridge’s failure to raise the issue of the validity of the plan in the Zoning Board’s proceedings bars it from raising the issue in the case sub judice, even though the issue was raised by another party in the administrative proceedings. We hold that Meadowridge’s failure to raise the issue of the validity of the Howard County Solid Waste Management Plan in the proceedings before the Zoning Board does not bar it from raising the issue in this appeal. The fact that another party protesting the BFI plan raised the issue in those proceedings was sufficient to preserve the issue for our review. Our ruling stems from the rationale for the preservation requirement.

The primary purpose of the rule requiring a party to raise an issue in an administrative proceeding before it can raise that same issue again on appeal is to give the administrative agency the opportunity to decide the issue first; when an appellate court is the first to decide an issue, it deprives the agency of that opportunity. See Bulluck v. Pelham Wood Apartments, 283 Md. 505, 518-19 , 390 A.2d 1119 (1978) (noting that “ ‘[a] reviewing court usurps the agency’s function when it sets aside the administrative determination upon a ground not theretofore presented and deprives the Commission of an opportunity to consider the ⁴²² matter, make its ruling, and state the reasons for its action.’ ”) (quoting Unemployment Compensation Commission v. Aragon, 329 U.S. 143, 155 , 67 S.Ct. 245, 251 , 91 L.Ed. 136 (1946)). Cf. State v. Bell, 334 Md. 178, 189 , 638 A.2d 107 (1994) (rule requiring party to raise issue in criminal proceedings before appellate review of that issue may be had is to ensure fairness in case and promote orderly administration of the law; interests of fairness are furthered by requiring attorneys to bring the position of their clients to the attention of the lower court so that the lower court can pass upon, and possibly correct, any errors in the.proceedings); Medley v. State, 52 Md.App. 225, 231 , 448 A.2d 363 (1982) (rule requiring party to raise issue in criminal proceedings before appellate review of that issue may be had “is a matter of basic fairness to the trial court and to opposing counsel, as well as being fundamental to the proper administration of justice”).

Thus, the fact that the validity issue was raised in the proceedings before the Zoning Board is sufficient to satisfy the purposes of