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Piney Orchard Community Association v. Maryland Department of Environment

Court of Special Appeals of Maryland

December 1, 2016


          Meredith, Berger, Eyler, James R. (Senior Judge, Specially Assigned), JJ.


          BERGER, J.

         This appeal arises from a decision by Appellee, the Maryland Department of the Environment ("MDE" or "the Department"), to issue a refuse disposal system permit to Appellee, Tolson and Associates, LLC ("Tolson") on November 24, 2014. The Tolson Rubble Landfill permit ("permit" or "the permit") authorized Tolson to construct and operate the Tolson Rubble Landfill ("Tolson Landfill" or "the Landfill") located on Capital Raceway Road in Anne Arundel County, Maryland. Although it was not issued until 2014, Tolson applied for the permit in July of 2002.

         Appellants, [1] Piney Orchard Community Association, et al. ("Piney Orchard"), filed a petition for judicial review in the Circuit Court for Anne Arundel County on December 19, 2014, challenging MDE's grant of the permit to Tolson on the grounds that MDE did not comply with Md. Code Ann., Environment Article ("EN"), § 9-210(a)(3)(i).[2] The circuit court affirmed MDE's decision to grant the permit. Appellant Piney Orchard timely noted an appeal to this Court.

         On appeal, Appellants present two issues for our review, [3] which we rephrase as follows:

1. Whether the Maryland Department of the Environment complied with § 9-210(a)(3) of the Environment Article of the Maryland Code in issuing the Tolson Rubble Landfill permit.
2. Whether the trial court erred in finding that Bills 21-14 and 34-03 do not apply to the Tolson Rubble Landfill permit.

         For the reasons discussed below, we shall affirm the judgment of the Circuit Court for Anne Arundel County.


         A. The Permit Approval Process

         MDE is the State agency vested with authority to regulate the installation, alteration, and extension of refuse disposal systems. See EN §§ 1-101(k), 9-204(d); see also COMAR A rubble landfill site, like the one that Tolson proposed to build, is a refuse disposal system, which requires a permit from MDE. Once an application is submitted to MDE, MDE begins a complex review that proceeds in three "phases." COMAR At the completion of each of these phases, the applicant must submit a report, which is reviewed and approved by MDE's Solid Waste Management Program before the next phase begins.

         Phase 1 of this process -- and the part that is most important to this case -- primarily entails a preliminary review of the application and the site itself and an opportunity for a public informational meeting, during which MDE accepts and responds to comments from members of the public. COMAR; see also EN § 9-210(a). Phase 2 focuses on the soil, geology, and hydrology of the proposed site. COMAR During Phase 3, MDE compares the applicant's engineering plans and reports with MDE's technical regulatory requirements and ensures that the proposed landfill will be constructed in a manner that protects public health, public safety, and the environment. COMAR

         Pursuant to EN § 9-210(a), after MDE has reported the findings of its preliminary Phase 1 in writing to the county's chief executive official and planning commission, it must cease processing the application until the County has completed its review of the site "and has provided to the Department a written statement that the refuse disposal system: (i) Meets all applicable county zoning and land use requirements. . . ." EN § 9-210(a)(3)(i). The statute makes clear that the three steps required by EN § 9-210(a) must be followed in this sequence. EN § 9-210(a) and (b). Furthermore, MDE completes most of Phase 1 by the time it requests the County's evaluation and certification of the site, except for the public notice and opportunity for an informational meeting. Critically, MDE may not complete Phase 1 and proceed to Phase 2 until it has received the statement from the County certifying the site's compliance with local zoning and land use codes. See EN § 9-210(b). Although MDE is the agency responsible for ensuring compliance with State laws and regulations, the County is responsible for determining whether a proposed site meets county zoning and land use requirements. See EN § 9-210(a)(3)(i).

         After all three phases of MDE's review, MDE prepares a draft permit and tentative determination and holds a public hearing on the tentative determination. EN § 1-604. Depending on the comments received during the public comments period, MDE may be required to prepare and issue a final determination to approve the permit. EN § 1-601(c). Pursuant to EN § 1-601(c), if a party "participated in a public participation process through the submission of written or oral comments, " that party may petition for judicial review to challenge the final determination to issue the permit. EN § 1-601(c).

         Judicial review must be "on the administrative record before the Department and limited to objections raised during the public comment period, " with minor exceptions. § 1-601(d)(1). Although a party to an action for judicial review "may not challenge the applicant's compliance with zoning and land use requirements, " such a party may question whether MDE complied with § 9-210(a)(3). EN § 1-605(d). In other words, a party to an action for judicial review may challenge whether the County completed its evaluation of a proposed site and submitted a written statement to MDE certifying the site's compliance with county zoning and land use requirements, and whether the site "[i]s in conformity with the county solid waste plan." EN § 9-210(a)(3).

         B. The Tolson Refuse Disposal Permit

         The Tolson Landfill is located within a previously excavated sand and gravel mine. The landfill spans four lots covering a total of approximately 72 acres of land in Anne Arundel County. This location has been the site of sand and gravel mining for over 40 years, and mining and related operations are currently being conducted on other areas of the site. Landfill operations began on the mine in the early 1980s. In 1993, the Anne Arundel County Board of Appeals issued a special exception for the Tolson site, which permitted the construction and operation of a rubble landfill on the site. A rubble landfill is "a sanitary landfill permitted under State law and regulation as a rubble landfill." A.A.C. § 18-1-101. A rubble landfill accepts only trees, land clearing, construction, or demolition debris. See EN § 9-210(c)(2).

         A special exception is an exception to the current law in effect in the zoning district in which a "nonconforming use" of land is located, granted by the Office of Planning and Zoning. See A.A.C. §§ 18-1-101(70), § 18-15-101(d). A special exception "terminates when the use ceases operation for 12 consecutive months or when the scope of the use is so significantly reduced during the 12-month period as to change its nature or character." A.A.C. § 18-15-104(a). The special exception granted in 1993 for the site on which the Tolson operation was located was operative at the time MDE issued the Tolson Permit.

         On July 31, 2002, Tolson applied for a Refuse Disposal Permit. As part of the application process, and pursuant to the statutory requirements of EN §9-210(a)(3), the County evaluated the site and determined whether the facility complied with local zoning and land use laws. On August 28, 2002, the Director of the Department of Public Works, Ronald E. Bowen, and Planning and Zoning Officer in the Office of Planning and Zoning for Anne Arundel County, Denis Canavan, sent MDE a letter stating "Tolson and Associates, L.L.C. proposed Rubble Landfill in the Crofton Area of Anne Arundel County meets all applicable zoning requirements and conforms to the current Solid Waste Management Plan." There is no dispute that the County completed its review of Tolson's proposed rubble landfill and that it had provided to MDE a written statement that the landfill met the statutory requirements prior to MDE's continuation of the permit process. MDE received the completed Phase 1 Report on March 25, 2003.

         MDE held an informational meeting on the permit application on July 15, 2004 after publishing a public notice of the meeting in The Capital and The Maryland Gazette newspapers on June 30, 2004 and July 7, 2004. MDE continued to process Tolson's application through the remaining two phases of the complex approval process. The Phase 2 Report was completed on November 1, 2006, and the Phase 3 Report was completed November 30, 2009.

         On August 3 and 10, 2011, MDE published its Tentative Determination to issue the permit to Tolson in The Capital and The Maryland Gazette newspapers. On August 18, 2011, MDE held a second informational meeting as well as a public hearing on the tentative determination. In its Response to Comments for the Tolson & Associates Rubble Landfill -- a 65-page document sent to concerned citizens who had participated in the permit approval process -- MDE categorized hundreds of oral comments made at the public hearing and written comments received by MDE regarding the Tolson permit into several categories and provided detailed responses. MDE altered conditions of the permit with many of these public concerns in mind and in its Report of Findings, dated January 28, 2014, MDE recommended 12 conditions be added to the permit, but found "that the technical, statutory and regulatory requirements of the application process have been satisfied . . . ."[4] On November 21, 2014, MDE sent letters to concerned citizens, including Piney Orchard, to notify them of its final determination to issue the permit authorizing the construction and operation of the landfill. In its Notice of Final Determination, MDE stated that the draft permit was modified subsequent to the public hearing in response to the concerns of members of the public. The letter provided that MDE

found the application to be technically complete and in compliance with the applicable State laws and regulations. The Final Determination is based upon the review of the permit application and supporting documents submitted by the applicant, and upon testimony and evidence presented at the public hearing held on August 18, 2011 at the Crofton Elementary School.

         Thereafter, MDE issued its Final Determination, effective November 24, 2014, granting Tolson the permit to operate the rubble landfill. Tolson and its affiliates commenced construction related to its rubble landfill activities at the site on the same day. Appellants timely filed their petition for judicial review in the Circuit Court for Anne Arundel County.

         C. Procedural History

         Piney Orchard challenged MDE's decision to approve the permit on the grounds that, as they interpreted it, § 9-210(a)(3)(i) "mandates the conclusion that the proposed rubble landfill complies with local zoning laws at the time of application, at the time of issuance of the permit, and at the time that applicant begins to construct the [rubble landfill]." Because, as Piney Orchard argued, Bill No. 21-14[5] was passed before MDE issued the permit, and the bill prohibited rubble landfills within residential areas of Anne Arundel County, the Tolson landfill did not comply with local zoning regulations. Piney Orchard asserted that "[t]he record lacks any statement by MDE that the proposed [rubble landfill] complies with the [c]ounty current zoning laws." They further noted that MDE should not, therefore, have issued the permit due to this failure to comply.[6]

         In this appeal, Piney Orchard argues that "MDE erred legally when it determined in 2014 that the proposed [rubble landfill] meets all applicable county zoning and land use requirements based on the County's statement in 2002 that the proposed [rubble landfill] complied at that time with the County's zoning law." Piney Orchard's argument is based on the premise that MDE, a state agency, determines whether a rubble landfill meets local zoning regulations, rather than simply whether it has received a written statement from the County certifying the facility's compliance with local zoning regulations. Indeed, Piney Orchard argues that,

[S]ection 9-210(a)(3)(i) required MDE to make the factual finding that the proposed [rubble landfill] complied with local zoning and land use laws when MDE issued the permit in 2014. Instead, MDE stated that the proposed [rubble landfill] met all applicable zoning requirements in 2002.

         Tolson and MDE maintain that the statute creates no such requirement. As such, the statute did not require MDE to make a "factual finding" regarding the Tolson Landfill's compliance with local zoning regulations before it issued the permit, except to the extent that it had received a letter from the County stating the facility's compliance. Moreover, Tolson asserts that MDE must receive only one statement from the County, not multiple statements at each phase in the process, and not even an additional statement just before the permit was approved in 2014. The circuit court agreed with Tolson and MDE.


         I. Standard of Review

         In reviewing the decision of an agency, we "look[] through the circuit court's . . . decision[], although applying the same standards of review, and evaluate[] the decision of the agency." People's Counsel v. Surina, 400 Md. 662, 681 (2007); see also Long Green Valley Ass'n v. Prigel Family Creamery, 206 Md.App. 264, 273 (2012) ("'On appellate review of the decision of an administrative agency, this Court reviews the agency's decision, not the circuit court's decision.'") (quoting Halici v. City of Gaithersburg, 180 Md.App. 238, 248 (2008)).

         Because no statute sets forth an express standard of review, we review MDE's decision under the substantial evidence and arbitrary and capricious standards. See MDE v. Anacostia Riverkeeper, 447 Md. 88, 118-19 (2016). We are "limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." Halici, 180 Md.App. at 248 (internal quotation marks and citations omitted). "In this context, substantial evidence, as the test for reviewing factual findings of administrative agencies, has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Tomlinson v. BKL York LLC, 219 Md.App. 606, 614 (2014) (quoting Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 568-69 (1998)).

         "We have characterized the arbitrary and capricious standard of review as one that is 'extremely deferential.'" Anacostia Riverkeeper, 447 Md. at 120 (quoting Harvey v. Marshall, 389 Md. 243, 299 (2005)). "Our review of the agency's factual findings entails only an appraisal and evaluation of the agency's fact finding and not an independent decision on the evidence." Tomlinson, 219 Md.App. at 614 (quoting Catonsville Nursing Home, Inc., 349 Md. at 568-69). The paramount question we consider is "whether a reasoning mind reasonably could have reached the factual conclusion the agency reached." Anacostia River, 447 Md. at 120 (quoting Najafi v. Motor Vehicle Admin., 418 Md. 164, 173 (2011)).

         This Court reviews, de novo, the agency's conclusions of law, see Schwartz v. Md. Dep't of Natural Res., 385 Md. 534, 554 (2005); however, "a degree of deference should often be accorded the position of the administrative agency." Assateague Coastkeeper v. MDE, 200 Md.App. 665, 690 (2011) (quoting Najafi, 418 Md. at 173-74). An administrative agency's interpretation of a statute that the agency administers should ordinarily be given considerable weight by reviewing courts. Id.

         We review an agency's decision in the light most favorable to the agency, because "its decisions are prima facie correct and carry with them the presumption of validity." Bereano v. State Ethics Comm'n, 403 Md. 716, 732 (2008) (quoting Anderson v. Dep't of Safety & Corr. Servs., 330 Md. 187, 213 (1993)); see also Anacostia Riverkeeper, 447 Md. at 120 (quoting Najafi, 418 Md. at 173) ("[W]e shall review the agency's decision 'in the light most favorable to it.'"). Additionally, the appellant challenging an administrative agency ...

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