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Schneider v. Donaldson Funeral Home, P.A.

United States District Court, D. Maryland

January 6, 2017

ALAN J. SCHNEIDER
v.
DONALDSON FUNERAL HOME, P.A., et al.

          MEMORANDUM

          J. Frederick Motz United States District Judge

         Plaintiff Alan J. Schneider (“Schneider”) brings this lawsuit against defendants Donaldson Funeral Home, P.A., Donaldson Properties No. 3 LLC, Dewitt Jay Donaldson (collectively “Donaldson”), and Howard County, Maryland (“the County”), seeking declaratory and injunctive relief and the imposition of civil penalties under the Federal Water Pollution Control Act (“the Act” or “CWA”). Schneider asserts multiple violations of the CWA relating to Donaldson's construction of a funeral home and mortuary on a parcel of land near Schneider's residential property and abutting a state waterway. Now pending is Schneider's motion for temporary restraining order (“TRO”) and preliminary injunctive relief, (ECF No. 12), Donaldson's motion to dismiss (ECF No. 14), and the County's motion to dismiss, (ECF No. 10). The motions are fully briefed and no oral argument is necessary. See Local R. 105.6. For the reasons set forth below, Schneider's motion for temporary restraining order and preliminary injunctive relief is denied, and both Donaldson's and the County's motions to dismiss are granted.

         BACKGROUND

         This dispute arises out of Donaldson's construction of a funeral home and mortuary in Howard County, Maryland. Plaintiff lives on a residential property at 12598 Clarksville Pike in Clarksville, Maryland, near defendant Donaldson's construction site. (ECF No. 1 ¶¶ 49-50). Donaldson's property is intersected on the northwest corner by a small waterway (“the Tributary”) that flows parallel to the back property line and downstream towards Schneider's residential lot and alongside his property line. (Id. ¶¶ 50-51). Schneider derives aesthetic benefit from the Tributary bordering his residential property and he “regularly enjoy[s] the natural environment behind [his] home.” (Id. at Ex. 5, p. 2). The Tributary eventually flows into Carrolls Branch I, a slightly larger waterway that has been designated, along with its tributary streams, as a “Tier II” waterway by the Maryland Department of the Environment (“MDE”). (Id. ¶¶ 51-52). MDE designates certain bodies of water as Tier II when “the water quality . . . is better than that required by water quality standards to support the existing and designated uses.” Md. Code Regs. 26.08.02.04-1(C) (2016). Carrolls Branch I has been designated for use as Recreational Trout Waters and Public Water Supplies. (ECF No. 1 ¶ 53).

         In January of 2010, Donaldson proposed the construction of a funeral home and mortuary on a parcel of residential property in Clarksville, Maryland located upstream from Schneider's residence. (Id. ¶ 47). Despite the efforts of Schneider and other local residents to oppose Donaldson's development plan, the County's Board of Appeals (“the Board”) granted Donaldson a conditional use permit to build the proposed mortuary in July 2013. (Id. ¶ 61). The Board's approval was conditioned on Donaldson's adherence to the Amended Conditional Use Plan the defendant submitted to the Board in August 2012. (Id. ¶ 62, Ex. 8, p. 2). The Amended Conditional Use Plan did not identify any wetlands on the site, and an expert hired by Donaldson to testify at the Board hearing stated that he did not find any wetlands when inspecting the property. (Id. ¶ 63, 65, Ex. 13, Ex.14, p. 13). According to Schneider, Donaldson never submitted a “Social and Economic Justification” (“SEJ”) for the building project. (Id. ¶ 66).

         The Board, Schneider claims, is required to request an SEJ from a permit applicant prior to allowing the discharge of material into a Tier II waterway, and the Board must consider the SEJ before approving a construction permit. (Id.).

         In August of 2015, MDE visited the Donaldson site and observed the presence of jurisdictional wetlands. (Id. ¶ 63). In response, Donaldson updated his building site plan to include the wetlands and submitted the revised plan to the County's Department of Planning and Zoning (“DPZ”) for permit consideration in October 2015. (Id. ¶ 67). In November, Schneider and other local citizens informed DPZ that Donaldson was required to apply for coverage under MDE's General Permit for Stormwater Associated with Construction Activity (“GCP”) before commencing construction on the property. (Id. ¶ 72-73). Schneider also told the County that an antidegradation review was required prior to granting a construction permit. (Id. ¶ 71). According to Schneider, Donaldson began clearing vegetation and moving heavy equipment on the property on March 26, 2016. (Id. ¶ 74). On April 4, 2016, DPZ officially issued Donaldson a “Commercial New Building Permit.” (Id. ¶ 68). The County, Schneider claims, never conducted any kind of antidegradation review, and Donaldson did not receive coverage under the state GCP before his building permit was approved by DPZ. (see Id. ¶ 68-74). Donaldson applied for coverage under the GCP no earlier than April 4, 2016. (Id. ¶ 75). Schneider alleges Donaldson's GCP application included outdated information about the property and that Donaldson did not include a no-discharge alternative analysis or an SEJ as required to satisfy Maryland's Tier II Antidegradation Review requirements. (Id. ¶ 77). Plaintiff claims that Donaldson's construction of the funeral home and mortuary is causing the unlawful discharge of materials into the Tributary. (See Id. ¶¶ 85-105).

         Schneider sent a Notice of Intent to Sue (NOI) under Section 505 of the CWA to the County and to Donaldson on April 6, 2016, and he mailed copies of the NOI to the Administrator of the EPA, the Maryland Secretary of the Environment, and the Regional Adminsitrator for the EPA Region 3. (Id. ¶ 79). All intended recipients received copies of the NOI between April 7 and April 11, 2016. (Id. ¶ 80). Schneider filed a complaint in this court on August, 122016. The complaint asserts three claims against Donaldson under the CWA: discharge of pollutants without an authorizing permit under Section 402 (Count I), discharge of dredge or fill material to jurisdictional waters without an authorizing permit under Section 404 (Count II), and failure to conduct an antidegradation review (Count III). The complaint also brings one claim against the County under the CWA for failure to conduct an antidegradation review (Count IV). On September 9, 2016, Schneider filed a motion for a TRO and preliminary injunctive relief. (ECF No. 12). The County filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on September 9, 2016. (ECF No. 10). Defendant Donaldson filed a motion to dismiss pursuant to Rule 12(b)(1) and 12(b)(6) on September 13, 2016, seeking dismissal of all three counts. (ECF No. 14).

         STANDARD

         Schneider moves for a TRO and preliminary injunction against both Donaldson and the County. In order to demonstrate the appropriateness of a TRO or a preliminary injunction, the plaintiff must establish “(1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Preliminary injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quoting 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 2948, pp. 129-130 (2d ed.1995)).

         Donaldson and the County move to dismiss Schneider's claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction. Federal courts maintain subject matter jurisdiction only over actual “cases or controversies, ” U.S. Const. art. III, § 2, and the doctrine of standing is a critical aspect of this constitutional requirement. Marshall v. Meadows, 105 F.3d 904, 906 (4th Cir.1997); see also Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church and State, Inc., 454 U.S. 464, 471-76 (1982)) (“Article III gives federal courts jurisdiction only over ‘cases and controversies, ' . . . and the doctrine of standing identifies disputes appropriate for judicial resolution.”). In order to establish standing, a plaintiff must demonstrate: 1) he has suffered an “injury in fact” which is both “concrete and particularized” and “actual or imminent, ” rather than “‘conjectural' or ‘hypothetical;'” (2) the injury is “fairly traceable to the challenged action of the defendant and not the result of the independent action of some third party not before the court;” and (3) it is “‘likely, ' as opposed to merely ‘speculative, ' that the injury will be ‘redressed by a favorable decision.'” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (citations omitted). The CWA gives standing to any “person or persons having an interest which is or may be adversely affected, ” 33 U.S.C. § 1365(a), (g), and the CWA standing threshold is satisfied when a litigant meets the requirements for standing under Article III, see, e.g., Sierra Club v. Virginia Elec. & Power Co., 145 F.Supp.3d 601, 609 (E.D. Va. 2015).

         Additionally, defendants move to dismiss Schneider's CWA claims under Federal Rule of Civil Procedure 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6) for failure to state a claim, the court “must accept as true all of the factual allegations contained in the complaint” and “draw all reasonable inferences in favor of the plaintiff.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011). The complaint must allege facts sufficient to “state a claim to relief that is plausible on its face, ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), and allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009). The court is not required to accept the legal conclusions derived from the facts, and “[a] complaint that provides no more than labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient to meet the pleading standard. Twombly, 550 U.S. at 555; see also Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (stating that the “mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)”). Generally, a motion to dismiss for failure to state a claim “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999); see also Tobey v. James, 706 F.3d 379, 387 (4th Cir. 2013). In considering a motion to dismiss under Rule 12(b)(6), a court is generally limited to reviewing the allegations contained in the complaint. See Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016). The court may, however, consider documents that are “explicitly incorporated into the complaint by reference and those attached to the complaint as exhibits, ” a “document submitted by the movant that was not attached to or expressly incorporated in a complaint, so long as the document was integral to the complaint and there is no dispute about the document's authenticity, ” id. at 166, and “matters of public record, ” Moore v. Flagstar Bank, 6 F.Supp.2d 496, 500 (E.D. Va. 1997).

         ANALYSIS

         Plaintiff Scheider moves for a TRO and preliminary injunctive relief against defendants Donaldson and the County, requesting that the court order Donaldson to stop construction of the funeral home and mortuary on his Clarksville property. Schneider's complaint alleges three claims against defendant Donaldson under the CWA: discharge of pollutants without an authorizing permit under section 402 (Count I); discharge of dredge or fill material to jurisdictional waters without authorizing permit under section 404 (Count II); and failure to conduct an antidegradation review (Count II). Additionally, Schneider claims the County has violated the CWA by failing to conduct an ...


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