• Unused 12-Year Old Permit Still Valid for MDE
  • April 17, 2017 | Author: Margaret M. Witherup
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • The Maryland Court of Special Appeals recently affirmed the issuance of a rubble landfill permit over the objection of a local community association, despite the fact that the permit was based upon a 12-year old county approval that had not been updated. In Piney Orchard Community Association v. Maryland Department of the Environment, 231 Md. App. 80 (2016), the court held that the Maryland Department of the Environment (“MDE”) was not required to make an independent determination that the site was in compliance with local zoning and land use requirements at the time of issuance of the permit, but could instead rely on a local approval issued shortly after the permit application was filed 12 years earlier. 

    The case arose out of an application filed by Tolson & Associates, LLC (“Tolson”) in June 2002 for a refuse disposal permit to operate a rubble landfill at its previously excavated sand and gravel mine in Anne Arundel County. A rubble landfill is one that accepts only trees, land clearing, construction, or demolition debris. As part of the permit process, the County evaluated the site and sent MDE a letter in August 2002 stating that the “proposed Rubble Landfill . . . meets all applicable zoning requirements and conforms to the current Solid Waste Management Plan.”

    MDE proceeded to process the permit application and held a public informational meeting in July 2004. MDE and Tolson continued to perform the environmental and engineering studies necessary to ensure the landfill would be constructed in a manner that protects public health and the environment, a long and complex process. Reports documenting the studies were completed in 2009. In August 2011, MDE published its tentative determination to issue the permit and held a second informational meeting as well as a public hearing. MDE received hundreds of oral and written comments from concerned citizens, including Piney Orchard Community Association (“Piney Orchard”), regarding the proposed permit. MDE prepared a written response to the public comments and made several changes to the permit conditions. In November 2014, MDE issued its final determination granting Tolson the permit to operate the rubble landfill.

    Piney Orchard challenged MDE’s decision to issue the permit on the grounds that MDE had not made an independent factual finding that the landfill met local zoning requirements at the time the permit was issued in 2014 and had improperly relied on the 2002 approval letter from the County. In rejecting Piney Orchard’s argument, the Court of Special Appeals noted that the statute governing the issuance of rubble landfill permits required that the County “has provided to the Department a written statement that the refuse disposal system: (i) [m]eets all applicable county zoning and land use requirements; and (ii) [i]s in conformity with the county solid waste plan.” The court held that MDE’s receipt of the letter from Anne Arundel County in 2002 satisfied the requirements of the statute, there was no requirement for an updated letter, and MDE was not required to make an independent factual determination of the applicant’s compliance with local zoning. 

    The court also held that two zoning ordinances precluding the grant of new special exceptions for rubble landfills in residential districts and imposing new requirements for certain landfills did not apply retroactively to the site. The court observed that neither ordinance contained a retroactivity clause nor operated to invalidate the special exception for the site, which became final in 1993. 

    Commentary: Although it is not unusual for an environmental permit process to take several years to complete, Piney Orchard’s frustration with MDE’s reliance on a 12-year old statement of conformity with local zoning is understandable. Nonetheless, the court’s decision is consistent with the traditional deference given to agencies acting within the scope of their expertise, as well as deference to local zoning authorities on land use decisions. Once the County issued its statement that the proposed landfill satisfied local zoning requirements, that is all the statute required for MDE to continue to process the permit. The court was not going to require MDE to substitute its judgment for that of the County by requiring it to make an independent determination regarding the site’s compliance with local zoning.