National Waste Managers, Inc. v. Forks of the Patuxent Improvement Ass'n

Wilner, J. BACKGROUND The origin of this saga goes back to 1990, when petitioner (whom we shall refer to as National) sought zoning approval to construct and operate a rubble landfill on a 482-acre parcel and to conduct a sand and gravel operation on 108 acres of that same parcel. The parcel is located in an RA (Rural-Agricultural) zone in the Odenton area of Anne Arundel ⁴²⁷ County. Those operations are permitted by special exception in an RA zone. See Anne Arundel County Code, § 18^4-106 (hereafter AA Code).

What has driven this case for the last 27 years is the confluence of (1) administrative and judicial litigation during a substantial part of that period, (2) a time-consuming process for obtaining State and county permits required in order to construct and operate the proposed facilities, (3) time limits under county zoning laws on obtaining those permits, and (4) extension and tolling provisions under county law. We begin with 1990, when a county Administrative Hearing Officer (AHO) denied National’s request for special exceptions and an appeal was taken to the Anne Arundel County Board of Appeals. On December 23, 1993, after an on-site inspection and sixteen hearings spread over a three-year period, the Board of Appeals granted the special exceptions, along with two setback variances permitting the landfill to extend 760 feet closer to a residential area and 100 feet closer to a property line than otherwise was allowed. Evidence in support of the request, credited by the Board, showed that the property had been mined during the preceding 40 years and was likened to a moonscape, full of debris, containing ravines that were 30 to 45 feet deep, and subject to erosion.

Illegal dumping, target shooting, and hunting regularly occurred on the property. After commenting on the evidence, the Board concluded that, with the conditions it intended to impose, National was capable of meeting all of the performance standards required by law and had met its burden of showing the necessity for the two requested variances. The Board found, specifically, that the proposed operations “will be no more objectionable with regard to noise, fumes, vibration, or light to nearby properties than operations in permitted uses.” 1993 Memorandum of Opinion, at 30. With respect to the setback variances, the Board noted that, due to the previous mining operation, the land was cratered up to the property line and that the purpose of the variances was to permit petitioners to fill in those areas “so that the dangerous and eroding conditions no ⁴²⁸ longer exist.” Id. at 31-32.

The Board’s Order limited the life of the landfill operation to 12 years, from the beginning of waste collection to the final waste acceptance. The impact of several statutes becomes relevant at this point, although they will be discussed again later. The Anne Arundel County zoning law is contained in Article 18 of the AA Code. Section 18-16-304 sets forth criteria for granting special exceptions, and § 18-16-305 sets forth requirements and standards for granting variances.

General standards for approving variances are contained also in § 3-1-207, which is part of the AA Code dealing with the Board of Appeals. Subsections (a)(2) and (e) of that section are particularly relevant. Subsection (a)(2) provides: “The Board of Appeals may vary or modify the provisions of Article 18 of this Code when it is alleged that practical difficulties or unnecessary hardships prevent carrying out the strict letter of that article, provided the spirit of the law shall be observed, public safety secured, and substantial justice done. A variance may be granted only upon an affirmative finding that ...

(2) because of exceptional circumstances other than financial considerations, the grant of a variance is necessary to avoid practical difficulties or unnecessary hardship, and to enable the applicant to develop the lot.” Subsection (e), as it pertains to this case, precludes the granting of a variance unless the Board finds: “(1) the variance is the minimum variance necessary to afford relief; (2) the granting of the variance will not: (i) alter the essential character of the neighborhood or district in which the lot is located; (ii) substantially impair the appropriate use or development of adjacent property; [or] ⅜ ⅜ ⅜ ⅜ (v) be detrimental to the public welfare.” 1 ⁴²⁹ AA Code, § 18-16-405(a) adds, in relevant part, that “[a] variance or special exception that is not extended or tolled expires by operation of law unless the applicant within 18 months of the granting of the variance or special exception (1) obtains a building permit or (2) files an application for subdivision.” Subsection (b) of that statute permits an applicant to file an application for a variance to extend that time, and subsection (c) provides that “[t]he pendency of litigation may toll the time periods set forth in subsection (a) to the extent provided by law.” Section 18-16-405 thus speaks of, or refers to, two kinds of variances—a subsection (a) variance, which is substantive in nature, allowing something to be done that otherwise is impermissible, such as the variances granted to National from the setback requirements, and a temporal variance referred to in subsection (b), which merely extends a time requirement for obtaining necessary permits. Bearing on that county ordinance is Md. Code, Environment Article, § 9-204(d), which requires a refuse disposal permit issued by the Maryland Department of the Environment (MDE) before a person may install a landfill, or any other refuse disposal system. As we shall explain, obtaining such a permit can be a lengthy process that can take years to complete. The Board’s decision touched off a determined effort, mostly by the county, to overturn it and scuttle any prospect of the landfill or sand and gravel operation ever opening.

Much of that effort was described by the Court of Special Appeals in National Waste v. Anne Arundel, 135 Md.App. 585 , 763 A.2d 264 (2000), which we need not repeat. Suffice it to say that (1) the Board’s decision was ultimately affirmed by this Court in Halle v. Crofton Civic, 339 Md. 131 , 661 A.2d 682 (1995), (2) declaratory judgments and injunctions were issued against the county to halt its obfuscating tactics, and (3) twice the county was held in contempt for violating orders of the Circuit Court. ⁴³⁰ That aspect of the litigation came to an end when the Court of Special Appeals rejected the county’s arguments in National Waste, supra and remanded the case to address other issues, and this Court denied the county’s petition for certiorari. See Anne Arundel County v. National Waste, 363 Md. 659 , 770 A.2d 167 (2001). The Board found that the time requirements under § 18-16-405(a) were tolled due to the litigation and did not begin to run until April 13, 2001—nearly eight years after the Board had granted the special exceptions and setback variances— when this Court denied certiorari, and that the two-year time limit would extend to that day in 2003.

In January 2003, National applied for a two-year extension which, after a hearing, the Board granted on April 14, 2004. In its Memorandum of Opinion, the Board recounted testimony from the Administrator of MDE’s Solid Waste Program regarding the approval process for a waste disposal permit, noting that new requirements had been established since 1993, including the requirement of liners and new hydrogeological studies. The Board recognized that there were protestants who expressed concerns regarding traffic, air pollution, and land use issues—matters that had been considered when the Board had approved the special exceptions—and that there were six times more homes in the community than there were in 1990. After considering all of the evidence, the Board found that, as a result of the delay occasioned by the litigation, National had “to begin the process nearly over again” and that it would take a minimum of three years to complete that process. 2004 Memorandum of Opinion, at 7.

It added that there was no way National could obtain the necessary approvals in time to comply with the zoning regulations, and that “the interaction of the overlapping regulations has resulted in the exceptional circumstance to be suffered by [National].” Id. The Board expressly rejected the protestants’ complaints (1) that National failed to show due diligence in pursuing the MDE permit, ⁴³¹ and (2) of an adverse impact of the project on the neighborhood. With respect to the first complaint, the Board found that “the applicants have diligently pursued the reactivation of the permit application for the rubble landfill with the State of Maryland” and that any delays in the process “have been caused by difficulties in obtaining governmental commentary on the application.” Id. at 8. It noted in that regard a 14-month delay in the State’s response to a submission by National.

As to the impact on the neighborhood, the Board explained that the focus “is not on the special exceptions and variance that were approved” but only “on variances to permit a two-year extension.” Id, at 9. It added: “If there are many more homes in the community now, those homes have been constructed with full knowledge of the approved special exceptions for a sand and gravel/rubble landfill. There is nothing inherently improper regarding the location of a sand and gravel/rubble landfill near residences. In fact, the County Code expressly permits such uses in residential areas so long as a special exception has been granted.” Id.

The Board further found that the use of the property as a sand and gravel/landfill “will not substantially impair the appropriate use or development of adjacent properties.” Id. Its ultimate conclusion was that National had presented adequate evidence to meet the criteria set forth in AA Code, § 3-1-207 to obtain the requested two-year variances. In April 2005—a year before the existing extension period was to end—National requested a further two-year extension, which the AHO granted. An appeal was taken to the Board, which affirmed that decision and granted the extension.

In its 2006 Memorandum of Opinion, the Board discussed in greater detail the five-phase process for obtaining an MDE waste disposal permit, which is set forth in COMAR 26.04.07, as well as the efforts National had made in pursuit of that permit. ⁴³² Phase 1 centers on gathering basic information regarding the project and the site. MDE circulates that information to Federal, State, and local agencies for review and comment, to determine whether the site is suitable for the intended use. As it had done in its 2004 Memorandum of Opinion, the Board noted the heightened standards adopted by MDE in 1997 that “required [National] to start over from scratch.” 2006 Memorandum of Opinion, at 6. Phase 2 consists of a hydrogeological investigation.

The applicant is required to identify and analyze groundwater and geological conditions at the site. That information also is circulated to Federal, State, and local agencies for review and comment. The Board found that, in February 2005, MDE approved National’s submissions through Phase 2. Phase 8 involves engineering design.

It takes the information, especially the hydrogeological information from Phase 2, and designs a landfill with those considerations in mind. Phase 3 submissions were made in April 2005. Phase 4 is a review stage. MDE reviews all of the information from Phases 1 through 3 to ensure that all of the statutory and regulatory requirements have been met, prepares documents it will need to present to the public regarding the proposed permit, and drafts a proposed permit for the site.

Finally, Phase 5 is for public comment. MDE advertises and holds a hearing on the draft permit and invites the public to submit comments. After all comments are received, MDE engages in a final review and then issues the proposed permit, issues it with modifications, or denies it. As they had earlier, the protestants complained that National had not been diligent in pursuing the permit and that the project would have an adverse impact on the neighborhood, and, as it had earlier, the Board rejected those complaints.

Repeating much of what it had said in its 2004 Memorandum of Opinion, the Board again concluded that National’s “responses to the various requests and comments have been timely, particularly given the complexity and detail of the required information” and that “[t]he use of this property as a sand and gravel/rubble landfill operation will not substantially impair the appropriate use or development of adjacent proper ⁴³³ ties.” Id. In further explanation of that conclusion, the Board observed: “As explained previously, these special exceptions have been approved for many years. The Zoning Regulations permit those special exceptions. The need for the now requested variances are the direct result of the review time for State approval for the operations.

Although some of the area residents may not like the use of the property as a sand and gravel or rubble landfill with a variance, there is nothing inherent in those operations that impair the use or development of adjacent properties with residences or any other lawful use.” Given those conclusions, the Board granted a two-year extension, to commence September 20, 2006, but added that, if National failed to implement and complete the special exceptions and variances within that two-year period, no further extensions would be granted. Aggrieved by that provision, National, in April 2008, sought judicial review and was successful in that effort. In May 2008, the Circuit Court found that provision to be arbitrary, capricious, and an abuse of the Board’s discretion, and vacated it. See Chesapeake Terrace NMW v. Board of Appeals (Cir. Ct. Anne Arundel County, Case No. C-06-117596 AA).

National must have filed another request for extension, although we are unable to locate such a request in the record. Our assumption that such a request was made is supported by the fact that the AHO and the Board of Appeals granted it, although it took nearly three years for that to happen. 2 The proceeding before the Board was largely an updated replay of what had occurred twice before. National submitted a Phase 3 plan in April 2005, to which MDE responded in November 2006. A revised report, consisting of seven volumes, was ⁴³⁴ submitted to MDE in June 2008, to which MDE responded in February 2009.

A response to that was submitted in April 2009, and that was under stúdy by MDE. The Administrator of the MDE Solid Waste Program indicated that it would take several months to complete the Phase 3 review, that Phase 4 would be a relatively quick in-house proceeding, and the public hearings and comment (Phase 5) would then commence. Protestants complained again about lack of diligence on the part of National and increased traffic in the neighborhood. The Board found, as it had twice before, that National “ha[d] been diligent in pursuing completion of the MDE process,” and that it had “continued to supply MDE with information and communicated with them on a frequent and diligent basis.” 2011 Memorandum of Opinion, at 8, 9.

With respect to the community, the Board stated: “We find that the character of the neighborhood is that of mixed use that ranges from rural residential to commercial resources for the Odenton community. [National has] an approved, lawful special exception on this site. The approved use of this property as a sand and gravel operation and rubble landfill is known within the community and, we believe, is part of the character of the community. The rubble fill will heal a large, old mining scar on the subject property. The land is currently not in use by the community save a few trespassers who dump trash.” Id. at 10.

Addressing the traffic issue, the Board expressly found the protestants’ testimony not to be persuasive and iterated that the issue, in any event, was not on the special exception that allowed the landfill and sand and gravel operation, which already had been approved, but only on “whether a variance to permit a two year extension will change the character of the neighborhood.” Id. The Board granted another two-year extension dating from January 3, 2011. Finally, we come to what brings the case here—National’s request for a fourth two-year extension filed in December 2012, the Board’s effective denial of that request, and a ⁴³⁵ reversal of that decision and remand to the Board by the Circuit Court for Anne Arundel County and by the Court of Special Appeals, albeit with different instructions as to the standard the Board was to apply in reconsidering its decision. The Board consists of seven members, and, in the four previous proceedings, at least six of the members sat on the case.

This time, for whatever reason, only four members sat— in retrospect, at least, not a wise decision. 3 Four hearings were held—one in June 2013, two in August of that year, and one in October. At the time, the MDE permit process was still stuck in Phase 3, where it had been since 2005, partly because MDE insisted on an additional twelve months of soil and water tests. The MDE Administrator of the Solid Waste Program—the same gentleman who had testified in the three prior proceedings—attributed the delay to the size of the project. 4 With respect to progress made since 2011, the Administrator stated that, in March of that year, MDE sent a letter to National raising a number of issues, to which National responded in March 2012. A response to National’s submission was sent in July of 2012, and responses to that were submitted in December 2012 and February 2013.

After describing this back-and-forth, the Administrator confirmed his earlier testimony that National had been diligent in pursuing the project and said that it had done the work required and provided the information requested. Specifically, he agreed that, since the last extension in 2011, National had been “diligently pursuing this project.” He stated that Phase 3 should be completed during 2013 and, if the requested extension were granted, “the MDE process could be completed.” 2013 Memorandum of Opinion, at 5. ⁴³⁶ A matter not thoroughly explored earlier surfaced, namely the attaining of county permits and approvals. A representative of the county Office of Planning and Zoning, which supported the proposed extension, pointed out that approval by county agencies of National’s site development and storm water management plans would be necessary and that a new traffic study may be required, all of which could take up to four years. He opined that some of the work could have been done sooner but did not believe that those efforts would have changed the situation or that National would have received the necessary approvals that were then pending.

Specifically, he testified that, if National had filed an application for a building permit, it would not have been processed until the MDE permit was issued. On this evidence, two members of the Board concluded that National had been diligent in pursuing completion of the MDE permitting process, that the existing situation was not within its control, and that it constituted exceptional circumstances that warranted granting the time extension. They also believed that a two-year extension was the minimum necessary to afford relief. They concluded as well that the extension “will not alter the character of this neighborhood” and “will not substantially impair the appropriate use or development of adjacent properties” and “will not be detrimental to the public welfare. 2013 Memorandum of Opinion, at 13, 14.

They believed that “[n]o traffic will result from the grant of the time extension.” Id. at 14. The other two members found no exceptional circumstances that would warrant the extension. They concluded that National had not been diligently pursuing the MDE permit and had made no effort to begin the permitting process with the county, which they believed could have been pursued contemporaneously with seeking the MDE permit. Nor did they believe that a two-year extension was the minimum necessary to afford relief.

That conclusion was based on the evidence that more than two years would be required. ⁴³⁷ The denying members expressed concern as well that the requested variances would substantially impair the appropriate use or development of adjacent properties. In that regard, they stated: “The pending construction of a landfill on this property has been a burden on the neighborhood for years and the community is justified in seeking an end date. [National’s] lack of diligence in pursuing their applications has resulted in at least 12 years of repeated extensions of time. By allowing further extensions, the development of adjacent properties will continue