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In 1990, the Halle Companies, on behalf of its
wholly owned enterprise, Chesapeake Terrace, filed two special
exception requests in Anne Arundel (AA) County. The special
exception applications were for surface mining and to operate
a rubble landfill. The AA County Administrative Hearing
Officer subsequently denied both special exceptions on September
24, 1990.
The applicant/property owner appealed the decision to the
AA County Board of Appeals. During the appeal hearing, AA
County and the following 4 non-profit civic organizations
testified against the issuance of a special exception.
Forks of the Patuxent Improvement Association, Inc.
Greater Odenton Improvement Association, Inc.
Greater Crofton Council
Crofton Civic Association, Inc.
Sixteen administrative hearings were held before the AA
County Board of Appeals over a period of 17 months from
April 1992 through September 1993.
On December 23, 1993, the AA County Board of Appeals granted
a special exception approval for the surface mining and
rubble landfill with the following conditions.
1. Patuxent Road shall NOT be used as an entrance to the
operation.
2. Conway Road is to be used as the entrance to the operation
with the following conditions:
a. A right turn lane shall be constructed on eastbound Conway
Road at Route 3 to a minimum length of 500 feet.
b. From the intersection of Patuxent Road and Conway Road
to the entrance of the site, the road shall be improved
with 12-foot travel lanes and 8-foot shoulders improved
to County standards where the County right-of-way exists.
Additionally, the petitioner shall pursue a diligent course
to obtain the right-of-way from private owners, where possible.
c. The road improvements on Conway Road from Route 3 to
Patuxent Road shall be constructed before any rubble landfill
or surface mining operation begins; road improvements from
the intersection of Conway Road and Patuxent Road to the
entrance of the site are to be completed within one year
of the start of operations.
d. The access obtained to the site from Conway Road shall
be through a fee simple right-of-way, not through an easement.
3. The life of the landfill operation, from beginning of
waste collection to the final waste acceptance shall be
limited to 12 years.
4. The hours of operation for the rubble landfill and the
sand and gravel operation shall be limited to 7:00 a.m.
to 5:00 p.m., Monday through Friday, with no weekend hours.
5. The petitioners are to notify all landowners with ¾ of
a mile that they can opt to have the petitioners replace
a shallow well at the petitioners' expense prior to and
up until 12 months after the commencement of the operations.
6. The granting of the special exception neither approves
nor denies railroad operations to bring rubble to the site.
If the operation is to be used, the petitioners shall receive
further approval from the County and other monitoring agencies.
7. Fencing shall be erected around the active operation
to a height of 6 feet with only one lockable gate.
On January 19, 1994, a Petition for Judicial Review of the
Board of Appeals' Order was filed in Circuit Court for AA
County by four civic associations and 18 individuals who
had opposed the project before the Board of Appeals.
On February 8, 1994, AA County notified the Court of its
intention to participate in the action and moved to intervene
as a party appellant in the case.
On February 22, 1994, Bill 14-94 was introduced for the
purpose of revising the AA County 10-Year Solid Waste Management
Plan (SWMP). The Chesapeake Terrace Landfill was included
in the draft version as a proposed facility.
On April 4, 1994, an amended Bill 14-94 was introduced to
remove all reference to the Chesapeake Terrace Landfill.
This Bill was passed by the AA County Council on May 25,
1994, and approved and enacted into law on May 31, 1994.
On August 31, 1994, Judge Martin A. Wolff of the Circuit
Court for AA County reversed the decision of the Board of
Appeals. The Circuit Court held that the Board of Appeals
had expanded the scope of its inquiry to such a degree that
the nature of the original application was significantly
altered when it imposed the Conway Road access requirement
as a condition to the special exception. The Circuit Court
held that the AA County Board of Appeals exceeded the boundaries
of its authority and erred as matter of law when it granted
the special exception beyond the scope of the original application.
On July 17, 1995, the Court of Appeals issued its opinion,
which stated that the AA County Board of Appeals could properly
consider the issue of access through Conway Road to the
proposed facility. In upholding the condition, the Court
indicated it was justifiable in terms relating to the public
health, safety and welfare.
On October 9, 1996, Halle's successor in the interest of
the rubble landfill, National Waste Managers, Inc. (NWM),
filed a complaint in the AA County Circuit Court. The complaint
contained seven counts:
Count 1
Request that the court order AA County to include NWM in
the SWMP.
Count 2
Request an order of the court requiring AA County to provide
a written statement be sent to the Maryland Department of
the Environment (MDE) stating that NWM's project meets applicable
county zoning and land use requirements and is in conformity
with the SWMP.
Count 3
Request the court declare that NWM is entitled to have its
project included in the AA County SWMP and to have the county
deliver the statement that the project is in conformity
with the Plan.
Count 4
Request damages because due process was not provided.
Count 5
Request compensation for taking of property (state law).
Count 6
Request compensation for taking of property (federal law).
Count 7
Request equal protection.
Note 1: The complaint alleges that NWM applied to the MDE
for a solid waste refuse disposal permit to install and
operate a rubble landfill which will not be used unless
AA County includes the project in its AA County SWMP. NWM
asserted that AA County improperly removed all references
to the project from the 1994 SWMP an that MDE will not take
any action on issuing the permit because the proposed facility
was not included in the current Plan. Moreover, the complaint
further alleges that processing of the application would
not occur until the MDE received a written statement from
AA County that the proposed facility meets all applicable
AA County zoning and land use requirements and is in conformity
with the SWMP.
Note 2: NWM filed a Motion for Partial Summary Judgement
on Count 1 requesting that the Court order the project be
included in the SWMP. The Court issued a declaration that
AA County violated NMW rights for failing to include the
proposed project in the Plan. AA County filed a Cross Summary
Judgement requesting judgement on all counts of the complaint.
On March 26, 1997, Judge Clayton Greene, Jr. issued written
Memorandum Opinion and Order, which stated the NWM project,
be included in the SWMP. The Order also stated that in deleting
all references to the NWM as a proposed facility in Bill
14-94, AA County invaded the MDE's permit review prerogative.
Finally, the Court ordered AA County to amend the Plan to
include the proposed facility. The Circuit Court found that
the decision to exclude the project from the AA County Plan
was arbitrary and inconsistent with the determination made
by the Board of Appeals that the landfill was needed. The
Court specifically stated that if AA County refused to include
the project in the Plan because of public opinion, that
decision was inconsistent with the statutory scheme. The
Court held that if NWM was entitled to any damages, the
decision for damages may be severely limited because the
Court's determination only gives NWM the right to be included
in the Plan and does not require MDE to issue the permit.
On April 24, 1997, AA County appealed the decision rendered
on March 26, 1997, to the Court of Special Appeals. Subsequently,
NWM filed a Petition for Contempt for failure of AA County
to comply with the March 26, 1997, court order.
On August 1, 1997, Judge Clayton Greene, Jr. found that
AA County was in Contempt of Court and was fined $250,000.
The court further ordered that AA County could purge itself
of the fine by providing a written statement to the MDE
that the proposed project meets all applicable county zoning
and land use requirements and is in conformity with the
AA County SWMP. It further required AA County to take all
steps consistent with law to enact an ordinance to include
the proposed facility in the Plan as an emergency measure
and that this measure be enacted at the earliest possible
date. It was also required that AA County delete certain
language from the proposed ordinance that had been previously
submitted to Court.
On August 4, 1997, AA County sent a letter to MDE which
stated, "pursuant to the enclosed judicial order, the
AA County Department of Public Works informs you that the
above reference facility meets all applicable County zoning
and land use requirements and is in conformity with the
County Solid Waste Plan."
On August 21, 1997, the Court amended its Order of August
1, 1997. The Court struck the provisions set forth above
that AA County was required to take to purge itself of the
contempt except for the requirement that AA County send
a letter to the MDE, which condition AA County had already
satisfied. The Order also stated that AA County shall comply
with State law as interpreted by the Court so that MDE may
consider whether the proposed facility is necessary.
On August 28, 1997, AA County appealed the decision of the
Circuit Court for AA County finding it in contempt in the
judgement/order on August 1, 1997, as amended on August
21, 1997.
On November 19, 1997, AA County sent a letter to the MDE
stating that the "special exception approval obtained
by the referenced applicant on December 12, 1993, was rescinded
by operation of law effective August 23, 1997."
On December 30, 1997, NWM filed a petition for Contempt
and on January 6, 1998, the case was specially assigned
to Judge Eugene Lerner. The Petition for Contempt asserted
that AA County's action in forwarding its letter of November
19, 1997, to the MDE violated the Court's prior Orders as
well as the state permitting statute.
On March 25, 1998, the Court of Special Appeals confirmed
Judge Greene's original Grant of Summary Judgement on Court
1, in an unreported opinion. The Court of Special Appeals
held that AA County's decision to delete the proposed facility
from the Plan was not within the scope of its involvement
as set forth in MDE's statute. The Court of Special Appeals
further held that the action of AA County in deleting the
facility from the Plan was beyond the scope of any authorized
county involvement.
On April 21, 1998, Judge Eugene Lerner held that AA County
could not be held in contempt of the Court Order for sending
the November 19, 1997 letter regarding the expiration of
NWM special exception approval. Judge Lerner ruled that
it was NWM responsibility, not AA County's, to safeguard
its special exception approval by requesting an extension
prior to its expiration on August 17, 1997.
On May 22, 1998, NWM filed a Notice of Appeal in the Court
of Special Appeals seeking a review of Judge Lerner's Order,
which denied its Petition for Contempt against AA County.
However, AA County moved to dismiss the appeal, arguing
that the ruling was not a final appealable order.
On July 16, 1998, the Motion to Dismiss was granted by the
Court of Special Appeals and the appeal was denied.
On September 29, 1998, in an unreported opinion by the Court
of Special Appeals, they affirmed Judge Greene's opinion
that AA County was in contempt of court. However, the Court
of Special Appeals remanded the case to the Circuit Court
for reconsideration of an appropriate purging provision.
The Court ruled that the purging provision imposed upon
AA County that it send a letter to the MDE indicating that
the proposed facility meets all applicable zoning and land
use requirements and was in conformity with the Plan was
beyond the scope of Count 1 of the Complaint for which the
summary judgement had been originally granted.
On December 1, 1998, NWM filed a Request for Issuance of
an Injunction and a Motion for Partial Summary Judgment
on Count 3 of the Complaint. NWM was seeking the issuance
of an injunction directing AA County to provide MDE with
a written statement that the project conforms to the Plan
and complies with local zoning and land use regulations.
On July 7, 1999, NWM filed an Amendment by Interlineation
which alleges additional allegations that AA County blocked
MDE processing of NWM application by refusing to forward
the written statement to the MDE that the proposed project
was in conformance with the Plan because AA County alleged
that sufficient disposal capacity already existed for rubble.
The Amendment further alleges that AA County's action in
removing the project from the Plan were judged unlawful.
The Amendment indicates that AA County's action in sending
MDE a letter indicating that NWM special exception had lapsed
by operation of law were wrongful. Finally, the Amendment
alleged that AA County failed to treat NWM in the same fashion
as applicant for the Cunningham Rubble Landfill because
AA County took an inconsistent position that the Cunningham
special exception was tolled during litigation.
The Amendment by Interlineation also added Count 8 which
requested an injunction compelling AA County to forward
a written statement to MDE withdrawing its letter which
stated that the special exception had lapsed by operation
of law. Additionally, the injunction requested an order
compelling AA County to notify MDE that the proposed facility
meets all applicable zoning and land use requirements.
On September 10, 1999, Judge Lerner denied NWM request for
injunction. He found that AA County acted properly in notifying
MDE that the special exception had expired by operation
of law on August 17, 1997.
On September 20, 1999, NWM appealed the denial of its request
for an injunction and request for the issuance of an appropriate
purging order to the Court of Special Appeals.
On
October 13, 2000, in an unreported opinion issued by the
Court of Special
Appeals authorized by Judge Hollender, the Court held that
the two-year period
during which the special exception must be utilized under
the AA County law
was tolled by the circuit court litigation. The Court held
that tolling principles
applied to the circumstances of the case.
On
November 9, 2000, AA County filed a Motion for Reconsideration
to request
that the opinion be published and certain portions of the
opinion be stricken.
On
December 4, 2000, the Motion for Reconsideration was granted
and on
December 6, 2000, the court of Special Appeals issued a
slightly revised reported
opinion.
On
January 22, 2001, AA County requested an appeal at the Maryland
Court of
Appeals.
On
April 13, 2001, the Court of Appeals denied the request.
On
December 31, 2001, MDE held an Informational Meeting at
the Odenton Fire Hall,
1425 Annapolis Road, Odenton, MD, at 6:30 pm, to provide
information to the general
public concerning a Refuse Deposal Permit Application submitted
by the Halle
companies for the construction and operation of the proposed
Chesapeake Terrace
Landfill.
On
January 11, 2002, MDE received an addendum to the Phase
II geohydrologic report
from the Halle Companies regarding the request to reactivate
their pending Refuse
Disposal Permit Application for the Chesapeake Terrace Landfill.
Sometime
during 2002, the Halle Company//National Waste Management,
cut a deal with an Oklahoma-based Indian Tribe to take over
the land so that it would become tribal property and fall
under the Jurisdiction of the Bureau of Indian Affairs and
the Federal Government. (The purpose was that the State
of Maryland and Anne Arundel County would have no jurisdiction
over this property.)
The
Federal government’s laws governing landfills is much
less strict than Maryland’s state and county laws.
This would allow the developer to get permits much quicker.
It would also take all county and state authority away from
the state and county and none of the revenues from the landfill
would go to either the state of Maryland or Anne Arundel
County.
2003
No activity.
2004
NWM
requested that Anne Arundel County, MD, grant them another
2-year extension of time on their two Variances. One for
a sand and gravel operation and one for a landfill.
On
April 16, 2004, the Board of Appeals granted NWM a 2-year
extension of time.
In
February 3, 2005, MDE notified NWM that their Phase II Geology
and Hydrology Report was complete.
On
April 14, 2005, NWM submitted their Phase III package to
MDE for review.
On
October 27, 2005, NWM requested an extension of time for
their two variances before
variance
to Anne Arundel County Code, Section 12-107, requiring special
exception rubble landfill and sand and gravel use to be
in operation within two years. Maryland Department of the
Enviornment permit process takes longer than two years;
the landowner's permits are about to expire in the Spring;
one for a sand and gravel operation and the other for a
rubble landfill. (This request was made early, since the
2-year extension requested in 2004 was not expiring until
spring 2006.)
2006
February
1, 2006, the granting of an extension of time was appealed.
June
8 and July 6, 2006, the Anne Arundel County Board of Appeals
conducted an Appeals hearing.
September
2006, the Board of Appeals granted NWM another 2-year extension
of time.
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MAPs
