Prince George's County v. Carusillo

Moore, J., delivered the opinion of the Court. Once again, Prince George’s County asks this Court to uphold its refusal to upgrade the water and sewer classification of the 3.46 acres owned by the appellees, Louis J. and Anna Carusillo. We ruled in favor of the County in 1979, affirming the Circuit Court for Prince George’s County (McCullough, J.), which had dismissed the Carusillos’ petition because they had failed to exhaust their administrative remedies after the County Council denied their request. Carusillo v. Prince George’s County, No. 385, September Term, 1979, filed December 12,1979 (unreported).

However, the Court of Appeals reversed, finding that the Carusillos had no administrative remedies to exhaust before seeking review of the Council’s action. Carusillo v. Prince George’s County, 289 Md. 436 , 424 A.2d 1106 (1981). Accordingly, the case was remanded, and Judge McCullough, who on May 5, 1981 held a hearing on the merits, remarked, "we are back to square one.” Even so, the court concluded that the County Council’s refusal to grant the appellees’ requested upgrade was arbitrary and capricious. Thus, the writ of mandamus was proper and the court ordered appellees’ property upgraded.

On appeal, the County contends that mandamus is not applicable to the denial of an application for the upgrade of a water and sewer classification because Art. 43 § 387C, Md. Ann. Code (1957, 1980 Repl. Vol.) requires the exercise of discretion by the Prince George’s County Council. Further, the County asserts that its refusal to grant the upgrade was not arbitrary and capricious and was supported by substantial evidence. We agree with Judge McCullough’s reasoning and shall affirm. ⁴⁶ I Louis J. and Anna Carusillo’s property is located on Livingston Road in Oxon Hill, Maryland, just off Indian Head Highway, a major state artery, and adjacent to the historic St. John’s Church, which has water and sewer service.

The property is zoned C-2 (General Commercial-Existing) and is in water and sewer systems area 5, 1 which means that the County expects to provide water and sewer services from seven to ten years after the adoption of the Ten-Year Water and Sewer Plan, as mandated by Art. 43 § 387C. This statute requires annual revisions and amendments to the Ten-Year Plan, which initially took effect in 1971. On February 1, 1977, the Carusillos applied for an upgrade to area 3, which would have made water and sewer services available in one to two years. Under the present designation, the property cannot be developed because water and sewer service is not available.

When the County Council enacted the annual revisions on December 16, 1977, after the proper notice and public hearing pursuant to Section 387C (b)l.(i), no provision was made for upgrade of the Carusillo property. Thus, their request was effectively denied. However, a request by Dave Brown Chevrolet, a commercial property about two miles away, to upgrade to area 3 was granted. 2 ⁴⁷ The Carusillos filed an Amended Petition for a Writ of Mandamus, Declaratory Judgment, Injunction, Damages, and other appropriate relief on August 28, 1978. They alleged that certain criteria described in Section 387C, in council resolutions enacted pursuant thereto, and in the Ten-Year Plan were applicable to all individual requests for water and sewer area changes, and that they met these criteria.

The criteria included the following: 1. a preliminary subdivision plan approved by the Maryland-National Capital Park and Planning Commission (M-NCPPC); 2. sewage and transmission capacity within the .applicable drainage basin; 3. proper zoning; 4. conformity with the adopted master plan; and 5. ability to be serviced by a non-program extension. At the trial on January 29, 1979, the parties stipulated to the following: 1. That the property of the Petitioners [Carusillos] herein involved can be served without additional programmed size sewer; 2. That there existed, at the time of the decision in this matter by the County Council for Prince George’s County, physical system capacity for the proposed development of the Petitioners’ property; 3.

That the criteria publicly set forth by the County Council for change in sewer systems area category are contained in the adopted Ten Year Water and Sewer Plan text as well as Article 43, Section 387C; ⁴⁸ 4. That the above criteria were applied to Petitioners’ property'as well as others; 5. That Petitioners’ property is presently zoned C-2; 6. That such zone allows the construction of a retail commercial store containing 3,000 square feet; 7.

That a request by Dave Brown Chevrolet for sewer systems area category 3 was approved by the Council; 8. That Dave Brown Chevrolet is located in the same drainage basin (i.e., Piscataway Sewage Treatment Plant) as Petitioners’ property; and 9. That St. John’s Church which opposes the extension of sewer to this property is sewered by public sewer and water and is almost across the street from the property. The County’s only witness was Ken Leslie, a planner with the County Department of Program Planning and Economic Development, the agency responsible for receiving individual requests for upgrades and coordinating the reviews of such requests by the Department of Public Works, the Department of Health, the Washington Suburban Sanitary Commission and the M-NCPPC.

He testified that the sewer line to which the Carusillos sought access was an extension off the main line (to which St. John’s Church was hooked) and had been built in 1969 to pick up a failing septic tank problem in a subdivision called Fort Foote Estates. The intention, he said, was not to open up the drainage basin to new development but to provide service to a health hazard area. The Carusillos proposed to build, at their own cost, a 1,360-foot line to this extension which led to the main trunk line. According to Mr. Leslie, the major facts underlying his recommendation that the Carusillos’ property remain in area 5 were: ⁴⁹ 1. there was no pending growth in the large area 5 surrounding the Carusillo acreage; 2. while the original South Potomac Master Plan designated the property for commercial use, the new Master Plan for Subregion VII was being drawn up and any changes in sewer classification should await its promulgation; 3 3. the extension of sewer into area 5 would not conform with the orderly expansion of public utilities which is one of the major purposes of the Ten-Year Plan; 4. the recommendation of the M-NCPPC in favor of an upgrade, because adequate public facilities including water and sewer existed, was based on a mistake of fact that the Carusillos’ property was in area 4, not 5; 5. although the property’s preliminary subdivision plan was approved, as required by the Ten-Year Plan’s criteria, an accompanying site plan, required by the M-NCPPC, has not been approved; 6. the proximity of the property to St. John’s Church, which opposed the development, 4 and the 100-year flood plain, since filled, "has raised several questions regarding the most appropriate land use for the property”; and 7. although Livingston Road is capable of handling the increased traffic, all major intersections with Md. Route 210 (Indian Head Highway) ⁵⁰ are now "experiencing operational problems” which would be compounded by any additional traffic in the area.

On remand, Judge McCullough specifically held that three of these factors were inappropriate in considering a systems area change, to wit, the site plan, the location of St. John’s Church, and the expected increase in traffic. The Carusillos, he said, had met all the criteria required for an upgrade, and the Council’s action in refusing to grant the change was arbitrary and capricious because no evidence was presented to the Council to warrant such refusal. II The plaintiff seeking a writ of mandamus must demonstrate that a public official has a plain duty to perform certain acts, that the plaintiff has a plain right to have those acts performed, and that no other adequate remedy exists by which plaintiffs rights can be vindicated. University of Maryland v. Cleland, 504 F.Supp. 351, 354 (D.Md. 1980).

Criminal Injuries Compensation Board v. Gould, 273 Md. 486 , 331 A.2d 55 (1975). The writ will not lie if the plaintiff has any other remedy, A.S. Abell Co. v. Sweeney, 274 Md. 715 , 337 A.2d 77 (1975); if the duty to act is discretionary and not ministerial, Maryland Action for Foster Children, Inc. v. State, 279 Md. 133 , 367 A.2d 491 (1977); or if the action is not shown to be arbitrary, capricious or illegal. Tyler v. Baltimore County, 251 Md. 420 , 247 A.2d 704 (1968). The writ will lie if no statutory provision for a hearing or review exists and public officials are alleged to have abused their discretion.

State Department of Health v. Walker, 238 Md. 512 , 209 A.2d 555 (1965). The County argues that Art. 43 § 387C requires the exercise of much discretion by the Council, various officials and several agencies. We agree. The County does have discretion in formulating and amending the Ten-Year Water and Sewer Plan, in preparing a statement of policies and objectives to be achieved and implemented by the Plan and ⁵¹ subsequent amendments, and in considering all aspects of planning, zoning, population estimates, engineering economics, and other state regional, municipal, local and area plans.

However, nothing in Section 387C grants the County any discretion to set up criteria defining each of the six water and sewer areas and then refuse to permit any change when an applicant has met the criteria in a specific classification. Nothing in Section 387C says the Council or county officials may pick and choose among those who have met the criteria, to grant an upgrade to one and not to the other. Such far-reaching discretion is equivalent to arbitrariness. See Walker, supra, 238 Md. at 523 .

The language of the statute, Art. 43, § 387C (b) 4.(i) is clear: "4. In addition, every county plan shall— (i) Provide for the orderly expansion and extension of community and multiuse water supply systems, community and multiuse sewerage systems and solid waste disposal systems in a manner consistent with all applicable county and local comprehensive land use plans and sizing and staging of facilities construction shall be consistent with these plans. The plan shall demonstrate this through the use of graphic and tabular information. (v) Delineate with all practical precision those portions of the county