National Waste Managers, Inc. v. Anne Arundel County

HOLLANDER, Judge. The protracted history 1 of this case arises from the tireless efforts of National Waste Managers, Inc. (“National”), appellant, to establish and operate a rubble landfill in Odenton (the “Landfill”), and the equally persistent opposition of Anne Arundel County (the “County”), appellee, to that project. 2 The County’s opposition to the Landfill has impeded National’s effort to acquire the requisite permit from the Maryland Department of the Environment (“MDE”). Moreover, the seemingly endless dispute concerning the proposed Landfill has spawned numerous legal battles in various courts of this State, including many appellate proceedings. The current appeal concerns the denial of National’s requests tor injunctive relief and an appropriate purging provi ⁵⁸⁸ sion.

National sought to require the County to take the necessary steps to enable MDE to process National’s request for a State rubble landfill permit, which National must procure before it may legally operate the Landfill. In addition, following a remand from this Court in connection with an earlier appeal, National asked the trial court to set an appropriate purge provision with respect to the trial court’s finding of contempt by the County. These requests resulted in two orders issued by the Circuit Court for Anne Arundel County, both dated September 10, 1999. In one, the trial court declined to establish a purge provision, reasoning that it was “unnecessary” because appellant’s special exception expired by operation of law on August 17, 1997.

In the other, the court denied National’s related requests for injunctive relief. Thereafter, National noted this appeal, 3 which the County has moved to dismiss. Appellant presents four rather lengthy questions for our review: I. Did the trial court (Lerner, J.) err in denying injunctive relief on the ground that a modification to purging provisions to a contempt order had modified the underlying judgments that 'Anne Arundel County violated State law by deleting all reference to Chesapeake Terrace from its SWMP, where the original judgments had become law of the case by their affirmance by this Court and the denial of a writ of certiorari by the Court of Appeals, and where this Court specifically rejected the argument raised in the County’s prior appeal, holding that the underlying writ and order had not been modified?

II

Did the trial court improperly deny injunctive relief on the ground that [National] failed to safeguard its special exception approval and that such approval expired because [National] did not open and operate ⁵⁸⁹ its rubble landfill within two years of the decision of the “approving authority,” as set forth in Section 12-107, where [National] has spent over nine years in litigation with the County seeking to protect its special exception rights and was prevented, as a matter of law, from opening within the two year period because of the County’s adjudged violation of State law?

III

Did the two year period set forth in Section 12-107 start to run, where Section 12-242(C) of the County Code explicitly modified the term of rubble land fill special exceptions to run concurrent with the issuance of a permit by MDE?

IV

Was the two year period of Section 12-107 tolled by the County’s actions and NWM’s resort to litigation to protect its special exception rights? The County offers five grounds to support its motion to dismiss the appeal: A. The Denial of Appellant’s Motion for Appropriate Purging Provision Does Not Constitute An Appealable Order. B. Even if [National] Is Permitted to Raise on Appeal the Issue of [thej Purging Provision of the Contempt Order Issued Finally on August 21, 1997, the Appeal is Untimely. C. [National] Is Not Entitled to Appellate Relief Because It Failed to Exhaust Administrative Remedies.

D. The Issues Raised by This Appeal Have Been Rendered Moot. E. The Law of the Case Dictates that the Appeal Be Dismissed. For the reasons set forth below, we shall vacate the court’s orders and remand for further proceedings. ⁵⁹⁰ FACTUAL BACKGROUND 4 The issues presented on appeal do not require a full recitation of the long and complex history of this case. Instead, we concentrate on the facts pertinent to the issues before us, gleaned primarily from the record and earlier appellate opinions. 5 In 1990, National sought administrative approval from the County for a special exception and variance to operate a rubble landfill.

After a County hearing officer denied National’s request for a special exception and a variance, National appealed to the County’s Board of Appeals (the “Board”). In 1993, after a de novo review that produced 2000 pages of testimony and numerous documents, the Board granted the special exception and variance requests, subject to several conditions. Thereafter, numerous community associations and several individual property owners sought judicial review of the Board’s decision in the circuit court. The County became a party to the proceeding when the circuit court granted its motion to intervene.

Prior to the judicial review hearing in the circuit court with regard to the special exception, a bill was introduced before the County Council that included the Landfill in the County’s Solid Waste Management Plan (“SWMP”). 6 Subsequently, ⁵⁹¹ the legislation was amended to omit any reference to the Landfill. .At about the same time that National began the special exception process, it also began the permit application process with MDE. See Code of Maryland Regulations (“COMAR”) 26.04.07.14-16. In 1991, National submitted its request to MDE for approval of the third and final phase of its application. Because the Landfill was not included in the County’s SWMP in May 1994, MDE suspended its consideration of National’s permit application, pending receipt from the County of a written statement (“Statement of Conformance”) advising that the proposed Landfill satisfied the applicable County zoning and land use requirements, and was in conformity with the County’s SWMP.

See Md.Code (1982, 1996 Repl.Vol, 1999 Supp.), § 9-210(a)(3) of the Environment Article (“E.A.”). On judicial review, the circuit court reversed the Board’s approval of the special exception and variance, on the ground that the Board exceeded its de novo authority by imposing a certain condition to its approval. National then noted an appeal, and the matter proceeded directly to the Court of Appeals. In an opinion filed on July 17, 1995, that Court reversed, upholding the Board’s condition as “justifiable,” because it related “to the public health, safety and welfare.” See Halle Cos. v. Crofton Civic Ass’n, 339 Md. 131, 149 , 661 A.2d 682 (1995) (“National I ”).

Reconsideration was denied on August 17,1995. Despite the decision in National I, the County declined to send a statement of conformance to MDE. Accordingly, on October 9,1996, National filed a seven-count complaint against the County in the Circuit Court for Anne Arundel County. The first three counts are relevant here.

In the first count, National sought a writ of mandamus requiring the County to include the Landfill in its SWMP. In the second count, National also requested a writ of mandamus, directing the County to issue the Statement of Conformance. The third count sought a declaratory judgment that: (1) National is entitled to have the Landfill included in the SWMP; (2) National is entitled to ⁵⁹² delivery of the Statement of Conformance to MDE; and (3) the County acted unlawfully in failing to include the Landfill in the 1994 amendments to the SWMP. On November 1, 1996, National filed a motion for partial summary judgment, limited to counts 1 and 3, in which it asked the court to: (1) issue a writ of mandamus directing the County to include the Landfill in its SWMP, and (2) declare that the County’s failure to include the Landfill in its SWMP was unlawful.

Although Count 3 asked for both a declaration requiring inclusion of the project in the SWMP and a Statement of Conformance, the motion itself only sought, based on Count 3, a declaration “that the County’s failure to include the [Landfill] in its [SWMP] violates [National’s] legal rights under State law (Count 3).” The County filed a cross-motion for summary judgment on all counts. Following a hearing on February 28, 1997, the circuit court (Greene, J.) denied the County’s motion but granted partial summary judgment to National. In its ruling, the court said that National was “entitled to partial summary judgment on count 1, mandamus, ordering that the [National] project be included in the SWM Plan....” It also ruled that National was entitled to a declaration that the County had violated State law by failing to include the proposed Landfill in the SWMP. Accordingly, the court required the County to amend the SWMP to include the proposed facility.

Nevertheless, the trial court recognized that “final authority” for the project rested with the State, and that the court’s determination “only gives [National] a right to be included in the Plan,” but “does not ... require the MDE to issue a permit.” In other words, it was up to MDE to determine whether to issue the permit. The court’s opinion and order of March 26, 1997, further provided, in part: ORDERED and DECLARED that the [Landfill] be included in the Anne Arundel County [SWMP]; and it is further ORDERED and DECLARED that the County in deleting all reference to [the Landfill] as a proposed facility in ⁵⁹³ Bill 14-94 invaded the State’s permit review prerogative; and it is further ORDERED and DECLARED that the County shall amend the [SWMP] to include [the Landfill] as a proposed facility consistent with the law. On April 18, 1997, the County filed a motion to revise the order of March 26, 1997, as well as a motion to stay enforcement of the judgment, pending resolution of the motion. Less than a week later, while the revisory motion was pending, the County noted an appeal to this Court from the order of March 26, 1997.

See Anne Arundel County v. National Waste Managers, Inc., No. 810, Sept. Term 1997, 120 Md.App. 741 (filed Mar. 25, 1998) (“National II”), cert. denied, 350 Md. 275 , 711 A.2d 867 (1998). The County also fik-d a second motion to stay enforcement of the March 26th order, based on the pending appeal. After the circuit court denied the motions, the County petitioned this Court to stay the order of March 26, 1997, pending disposition of the appeal. We denied that request on June 27, 1997.

On July 16, 1997, the Court of Appeals imposed a brief stay of enforcement pending its review of a petition for certiorari. On June 3, 1997, in the midst of the County’s unsuccessful efforts to obtain a stay of judgment, National filed its first petition for contempt, alleging that the County had failed to comply with the order of March 26, 1997. National averred: It has been more than two months since this court issued its order declaring that the County violated the law and requiring the County to remedy its unlawful action by complying with the law immediately. The County has done nothing to comply.

Therefore, National requested, inter alia: That this Court pass an Order requiring the Defendant to commence action within 24 hours necessary to include the Project in its Solid Waste Management Plan, and to deliver to the State within 24 hours the written statement that the project meets all applicable County zoning and land use ⁵⁹⁴ requirements and is in conformity with the County’s Solid Waste Management Plan. In its answer, the County defended largely on the grounds that it had appealed the circuit court decision, and it had obtained a stay of enforcement from the Court of Appeals on July 16, 1997, rendering the circuit court without jurisdiction to take further action until resolution of the appeal in this Court. After the Court of Appeals denied the County’s request for stay, the County filed an amended answer to the contempt petition, denying that it was in contempt. Following a hearing, the circuit court found the County in contempt of its order of March 26, 1997.

In an oral opinion, the court reasoned: In this case, it has been a long struggle, a long battle between [National] and the county to get the development of [National’s] property. The Court drafted an Opinion in March of 1997 in light of the request for mandamus, a written Opinion, which in reading it again, it is very clear and very concise as to what the Court was directing. On August 1,1997, the circuit court issued a contempt order (the “original contempt order”) stating, in part: 1. [The County] is hereby adjudged in contempt of this Court’s order dated March 26, 1997, and is hereby fined the sum of Two Hundred and Fifty Thousand Dollars ($250,000) for its contempt of the Order of this Court, and 2. That [the County] may purge itself of that contempt by taking each and every of [sic] the following actions: A. [The County], through its Department of Public Works shall provide within five days of the date of this Order, its written statement to [MDE] that the [Landfill] meets all applicable county zoning and land use requirements and is in conformity with the County’s [SWMP]; and B. [The County] take [sic] all steps consistent with law to act upon an ordinance to include [the Landfill] in the Plan as an emergency measure, effective as of the date which it is enacted; and ⁵⁹⁵ C. [The County] shall enact that measure at the earliest possible date, represented by the County to be September 2, 1997; and, D. [The County’s] role in landfill regulation has been limited by [MDE].

Therefore, [the County] may add to the language set forth in the proposed ordinance submitted to this Court a statement of the history of the proceedings related to [the Landfill], but shall delete the proposed language, cited below: Due to the amount of time that has passed since the initial application, [MDE] has required updated technical report submissions prior to scheduling the public hearing on the proposed plan. Many of the site specific information such as facility size, design specifications, buffer zones, environmental controls, waste types and quantities, waste sources, facility service capacity and life projects, therefore are not known at this time. Once all this information is made available to the County, this Plan will be amended to include such information as well as the manner by which the facility will operate. (Footnotes omitted).

Thereafter, the County complied with § 2.A of the original contempt order when, on August 4, 1997, the Deputy Director of the County’s Department of Public Works sent a Statement of Conformance to MDE. It said: Pursuant to the enclosed judicial order, the Anne Arundel County Department of Public Works informs you that the [Landfill] meets all applicable [C]ounty zoning and land use requirements and is in conformity with the County [SWMP], As we shall see, infra, the County’s Statement of Conformance had a rather short life span. On August 21, 1997, the circuit court amended its original contempt order, sua sponte (the “amended contempt order”), pursuant to C.J. § 6-408. The amended contempt order provided, in part: The issue here is not the process by which the County complies with State law.

That matter was not presented to the Court. Therefore, the County is not restricted in using ⁵⁹⁶ methods available to it to accomplish its legislative mandate, as declared in the order of this Court dated March 26,1997. Therefore, it is ... ORDERED, that provisions 2.B, C, and D, of the [original contempt order], are, hereby deleted as those provisions are unnecessary in view of the County’s certification of compliance with provision 2.A. ORDERED, that [the County] shall comply with State law, as interpreted above by the Court, so that MDE may consider whether the [Landfill] is needed.

ORDERED, that all other provisions of [the original contempt order] remain in full force and effect. The trial court issued the amended contempt order, which deleted paragraphs 2.B, 2.C, and 2.D of the original contempt order,, after it became aware that the County had complied with ¶ 2.A of the original contempt order. Obviously, the court did not then know that the County would later withdraw the Statement by Conformance by advising MDE that the special exception had expired. In doing so, the County, in effect, rendered the Statement of Conformance, issued to satisfy ¶ 2.A, of no help with regard to National’s effort to secure the necessary MDE permit.

On August 28, 1997, during the pendency of the County’s appeal from the Order of March 26, 1997, the County noted yet another appeal to this Court, which challenged the findings of contempt in both the original and amended contempt orders. Anne Arundel County v. National Waste Managers, Inc., No. 96, Sept. Term 1998, 123 Md.App. 795 (filed Sept. 29, 1998) (“National III ”), cert. denied, 352 Md. 336 , 722 A.2d 63 (1998). While both of the County’s appeals were pending, the County sent two letters to MDE, one on November 19, 1997, and the other on December 10, 1997. Both letters advised MDE that National’s special exception had expired by operation of law in August 1997. 7 In the letter of November 19, ⁵⁹⁷ 1997, the County’s Department of Planning and Code Enforcement wrote to MDE stating that, pursuant to Anne Arundel County Code, Art. 28, § 12-107(a) (1985 & Supp.1999) (“A.A.C.C.”), 8 National’s “special exception approval obtained ... on December 12, 1993, was rescinded by operation of law effective August 28, 1997[sic].” Thus, the County asserted that the special exception expired on August 23, 1997, even though it had written to MDE less than three weeks earlier, on August 4, 1997, advising that National’s proposed landfill “is in conformity with the County [SWMP].” The County’s letters spawned the filing by National in December 1997 of a second contempt petition.

In that petition, National complained that the County had failed to comply with either the original or amended contempt order. A few months later, on March 25, 1998, this Court filed its opinion in National II, affirming the Order of March 26, 1997. That Order, as we noted, granted partial summary judgment to National with respect to counts 1 and 8 of its complaint. The Court of Appeals subsequently denied certiorari.

On April 17, 1998, the County filed an amended answer to National’s second contempt petition. 9 The County claimed, inter alia, that it complied with the purge provision when, on August 4, 1997, it notified MDE that National was in conformity with the SWMP. The County also noted that the amended contempt order “deleted any directive that the [Cjounty’s SWM Plan be amended to include” the Landfill. Further, the County asserted that National’s special exception approval expired by operation of law on August 17, 1997, and National “failed to apply for extension of the approval.” Therefore, it ⁵⁹⁸ claimed that, pursuant to A.A.C.C. § 12-107, the County had the right to inform MDE that the special exception had expired, which it did by letter of November 19,1997. According to the County, National was required by A.A.C.C. § 12-107 to operate the Landfill within two years from its receipt of the special exception.

The County recognized that the two-year period set forth in § 12-107 “was tolled by the litigation arising directly from the grant of special exception approval. Such litigation concluded with the issuance of the court of special appeals’s [sic] mandate on August 17, 1995.” 10 Thus, according to the County, the two-year period was tolled until August 17, 1995, and expired on August 17, 1997. The County also maintained that the lower court’s orders did not bar the County from notifying MDE “of the current status of an applicant’s special exception approval,” nor did they excuse National from its obligations to comply with local law and “safeguard” its special exception. A hearing was held on National’s second contempt petition on April 20, 1998.

In a memorandum opinion and order filed on April 22, 1998, the court (Lerner, J.) denied National’s second contempt petition, reasoning, in part: The County cannot be held in contempt of Judge Greene’s [original contempt] order as long as the County has complied with the order. The order specifically required that the County take the steps listed [in § 2 of the original contempt order] in order to purge the $250,000 fine for contempt. The County did comply with Judge Greene’s order. The County sent a letter to MDE on August 4,1997, stating that the [Landfill] “meets all applicable county zoning and land use requirements and is in conformity with the County [SWMP].” Meanwhile [National’s] special exception approval which was granted on December 12, 1993 expired on August 17, ⁵⁹⁹ 1997.

The applicable section of the Zoning Article of the Anne Arundel County Code specifically states: § 12-107 RESCISSION. (a) Except as provided in subsection (b) or subsection (c) of this section, approval of a special exception is rescinded by operation of law if: (1) action to implement the use is not begun within one year after the decision of the approving authority; and (2) the use is not completed and in operation within two years after the decision. Even though [National] received its special exception approval on December 12, 1993, and was to expire on December 12, 1995, due to the two year timeframe provided by the County Code, the approval date was extended until August 17, 1995. The approval date was tolled until August 17, 1995, because that was the date of the Court of Special Appeals mandate [sic] 11 , therefore, the special exception approval was to expire on August 17, 1997.

The County cannot be held in contempt of a court order for [National’s] failure to comply with specific provisions of the County Code. The County was well within its right to notify MDE on November 19, 1997, of the expiration of [National’s] special exceptions approval. It was [Nation al’s] responsibility, not the County’s, to safeguard it [sic] special exception approval by requesting an extension prior to its expiration on August 17, 1997. Therefore, because [National] did not seek an extension of its special exceptions approval, it has lost the approval.

The County cannot be held in contempt for such a result. (Emphasis added) (citations omitted). On May 1,1998, National filed a motion to alter, amend, and revise the judgment denying its second petition for contempt, which was denied on May 19, 1998. As a result, National filed ⁶⁰⁰ an “amended” notice of appeal 12 to this Court on May 28, 1998, challenging the circuit court’s denials of the second contempt petition and the revisory motion.

Pursuant to the County’s motion, we dismissed that appeal on July 16, 1998. 13 Subsequently, on September 29,1998, we issued our opinion in National III, which affirmed the finding of contempt embodied in the original and amended contempt orders. National III, slip op. at 15. Nevertheless, we vacated the purge provision set forth in § 2.A of the original contempt order. We did so because National only moved for summary judgment with respect to Counts 1 and 3 of its initial complaint, and the Statement of Conformance that was the essence of the purge provision in ¶ 2.A was the subject of Count 2.

Although Count 3 also included a request for the Statement of Conformance, National did not ask for relief pursuant to that count in its summary judgment motion. Consequently, we concluded that ¶ 2.A of the original contempt order exceeded the scope of the March 26th order. Because the court deleted the other purge provisions when it issued its Amended Contempt Order, we remanded “to the circuit court for reconsideration of an appropriate purging provision.” Id., slip op. at 18. On December 1, 1998, appellant moved for partial summary judgment as to Count 3(b) of its complaint, seeking a declaratory judgment that the County acted unlawfully by refusing to issue a written Statement of Conformance to MDE pursuant to E.A. § 9-210, informing MDE that the Landfill conforms with the SWMP and other zoning and land use regulations.

National also requested an injunction directing the County to provide the statement of conformance. ⁶⁰¹ Thereafter, on or about July 7, 1999, National filed an “Amendment by Interlineation,” amending National’s October 9, 1996, complaint by adding Count 8 as well as several new factual averments. Count 8 read, in pertinent part: The County’s action in forwarding the November 19, 1998, [sic] letter to MDE notifying MDE that [National’s] special exception had been rescinded, has unlawfully blocked the processing of [National’s] state rubblefíll permit application and has unlawfully interfered with the preemptive state statutory scheme for rubble licensing.... Wherefore, [National] prays that this Court: (a) Issue an injunction directing the County to forward a written statement to MDE withdrawing its letter dated November 19, 1998[sic] and to notify MDE that the [Landfill] meets all applicable zoning and land use requirements .... [14] National also filed a “Request for the Imposition of an Appropriate Purging Provision” (the “purge motion”) and two separate injunction requests, each styled “Request For Injunction.” The first asked the court to issue a permanent injunction requiring the County to place the Landfill in its SWMP. The second sought an injunction in accordance with Count 8 of National’s amended complaint.

Although it is unclear from the record, it appears that National’s summary judgment motion of December 1, 1998, its requests for injunction of July 7, 1999, and the purge motion, were all before the court at an evidentiary hearing on September 9, 1999. The next day, the court (Lemer, J.) issued the two orders that are at issue here. In one, the court refused to grant appellant’s requests for injunctions. The other denied the purge motion.

The court did not specifically address National’s December 1, 1998, summary judgment motion, however. With respect to the Order denying the injunction requests, the court explained the basis of its decision in a footnote, stating: “Judge Greene’s Amendment deleted the request that ⁶⁰² the County include the Chesapeake Terrace Facility in the solid waste management plan by Order dated August 21, 1997. Judge Greene deemed the plan unnecessary.” The court did not address the significance, if any, of Judge Greene’s decision to issue the Amended Contempt Order after he was informed that the County had complied on August 4, 1997 with ¶ 2.A of the original contempt order. With respect to the other Order denying the purge motion, the court also provided its reasoning in a footnote. .It said: This issue is moot.

On April 21, 1998, there was a denial of the second Petition for Contempt. This court found that the County acted properly in contacting the Maryland Department of Environment that the special exception granted [to National] expired on August 17, 1997 and there was no need for the county to include the property in the [SWMP], Appellant noted the present appeal (“National IV”) from both orders of September 10,1999. We shall include additional facts in our discussion. DISCUSSION We begin our analysis with consideration of a threshold question: Did National’s special exception expire by operation of law on August 17, 1997, as the County contends and as the court below ruled.

If National’s special exception expired in December 1997, the County maintains that National would not have been entitled to the injunctive relief requested at the hearing in September 1999, or to a revised purge order. A.A.C.C., Art. 28, § 12-107 is relevant here. It provides: (a) Except as provided in subsection (b) or subsection (c) of this section, approval of a special exception is rescinded by operation of law if: (1)