PINEY ORCHARD COMMUNITY ASSOCIATION, et al.
MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.
Meredith, Berger, Eyler, James R. (Senior Judge, Specially
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.
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). The circuit court affirmed MDE's
decision to grant the permit. Appellant Piney Orchard timely
noted an appeal to this Court.
appeal, Appellants present two issues for our review,
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
2. Whether the trial court erred in finding that Bills 21-14
and 34-03 do not apply to the Tolson Rubble Landfill permit.
reasons discussed below, we shall affirm the judgment of the
Circuit Court for Anne Arundel County.
AND PROCEDURAL BACKGROUND
Permit Approval Process
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 26.04.07.03B(1). 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
26.04.07.13-.18. 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.
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
26.04.07.14; see also EN § 9-210(a). Phase 2
focuses on the soil, geology, and hydrology of the proposed
site. COMAR 26.04.07.15. 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.
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
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).
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).
Tolson Refuse Disposal Permit
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).
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.
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
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.
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 . . .
." 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
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
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.
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 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
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.
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.
Standard of Review
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)).
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)).
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)).
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.
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 ...