United States District Court, D. Maryland
ALAN J. SCHNEIDER
DONALDSON FUNERAL HOME, P.A., et al.
Frederick Motz United States District Judge
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.
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).
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.
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.).
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).
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).
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
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).
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).
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 ...