Skilled Legal Representation in Maryland
Rich & Henderson
- December 2008 – Rich & Henderson Win Against the Maryland Department of the Environment
- November 2008 – Principal Counsel to MDE Outlines Enhanced Enforcement Measures
- August 2008 – A Platform to Fines
- May/June 2008 – Ever-Expanding Reach Of Critical Area Commission
- April 2008 – Critical Area Law Developments
Rich & Henderson Win Against the Maryland Department of the Environment
In a ruling that has broad implications for legislation passed by the General Assembly, the Circuit Court for Baltimore City agreed with Days Cove Reclamation Company and its counsel, Rich & Henderson, and found that a law enacted in 2007 violated the Maryland Constitution. In so doing, the court breathed new life into that provision of the Maryland Constitution that invalidates “special laws” and pushed back against inappropriate legislation targeting a specific party.
The case stems from an effort by Days Cove to obtain a rubble landfill permit within four miles of an area known as Unicorn Lake in Queen Anne’s County. After years of legal angling in which the local county attempted through various means to prevent the construction of a rubble landfill near the lake, the county successfully persuaded the Maryland General Assembly to enact legislation that outlawed the issuance of a rubble landfill permit within four miles of Unicorn Lake. Rich & Henderson, on behalf of Days Cove, immediately challenged this legislation on various grounds, including that it was a special law in violation of the Maryland Constitution.
In its favorable ruling, the court pointed to various considerations and factors in determining whether legislation constitutes a special law. The court noted that the law implicitly identified the Plaintiff. Although Days Cove was not specifically named in the legislation, legislative sponsors noted that it was intended to stop a rubble landfill within four miles of Unicorn Lake; the fact that the Court noted could only identify Days Cove since it was the only entity proceeding through the MDE permit process to accomplish that goal. Thus, the court concluded that Days Cove was the only entity discriminated by the legislation. Moreover, the court also relied on the fact that the county had, after Days Cove sought its MDE permit, amended its zoning ordinance prohibiting a rubble landfill as a conditional use anywhere in the county. The court agreed with Rich & Henderson by finding the county’s action, together with the state legislation, created a class of one – Days Cove Reclamation Company.
The Attorney General’s office has filed an appeal in this case on behalf of MDE and as such, the question of whether this legislation constitutes, as found by the Circuit Court, a special law will be decided in the appellate courts.
Principal Counsel to MDE Outlines Enhanced Enforcement Measures
In a recent discussion with members of the Maryland State Bar Association’s Environmental Law Section, the new Principal Counsel to the Maryland Department of the Environment (MDE), Steven Johnson, outlined several new initiatives and priorities that may have a significant impact on Maryland’s regulated business community. Citing the priorities of Attorney General Douglas Gansler, Johnson stated that the Office of the Attorney General will be more aggressive in prosecuting alleged violations of the state’s environmental laws and will seek to establish new legal precedents that will expand the state and public’s ability to act in response to perceived violations. Johnson directs the Assistant Attorneys General assigned to the MDE who prosecute alleged violations referred to them by the agency’s regulatory personnel.
Johnson has directed his office to seek more aggressive action in two ways: by filing civil lawsuits and seeking higher penalties. He has directed his staff to recommend to the MDE that the agency should file civil suits in court rather than bringing actions through administrative hearings. In addition, he has directed that his staff seek penalties based on the maximum amounts allowed by law, stating that a party’s ability to pay penalties was not a primary concern. Furthermore, he hopes to establish legal precedent in state courts with regards to what civil penalties are deemed reasonable, including capturing environmental restoration costs.
Another item of interest was Johnson’s stated support for pending legislative efforts aimed at expanding third-party standing in state courts. This proposed legislation, anticipated for introduction in the 2009 General Assembly session in Annapolis, would likely allow citizen suits under state environmental law and enable private parties to seek enforcement as a ‘private Attorneys General.’ Currently, only third parties directly impacted by an issue, usually through property ownership, have standing to join a civil lawsuit as a party. An expansion in third-party standing would allow the public at large as well as environmental advocacy groups to join in certain actions, increasing the potential cost of defending claims.
Taken together, these issues all point to a state government that will take more aggressive action to prosecute and recover monetary damages from those alleged to have violated environmental laws. How these issues are implemented on a routine basis has yet to be seen, especially in light of the state’s recent budgetary concerns, but record settlements have recently been obtained from highly visible parties, including $4 million from Exxon Mobil Corporation for a gasoline spill in Baltimore County and $1 million from Constellation Power Source Generation for groundwater impacts associated with the placement of fly ash in Anne Arundel County.
A Platform to Fines
By Zhen Zhang
This article originally appeared in the August 15, 2008, edition of the Bar Bulletin and is reprinted with permission of the Maryland State Bar Association.
EVER EXPANDING REACH OF CRITICAL AREA COMMISSION
By James J. Doyle, III and Timothy R. Henderson
May/June 2008, Reproduced with permission from MSBA
Critical Area Law Developments
House Bill 1253 http://www.richlaw.com/Articles-Seminars/House-Bill-1253.pdf changed the Critical Area Law. The law has passed in the House and Senate and was signed into law http://www.richlaw.com/Articles-Seminars/Ch-119-hb1253E.pdf by the governor on April 24, 2008. The law is set to become effective on July 1, 2008.
Highlights of changes:
- Increase in lot coverage is presumed to be contrary to the purpose of the Critical Area Act. Lot coverage may not exceed 15 percent unless the lot is less than an acre. If you have a building permit before July 1, 2008 and initiate construction and inspection before July 1, 2009, then the new limitations do not apply.
- The Resource Conservation Area (RCA), the Intense Development Area (IDA) and the Limited Development Area (LDA) are now specifically defined. For example, RCA is nature-dominated land, where housing density must be less than one unit per five acres.
- In the RCA, the buffer has changed from 100 feet to 200 feet. For IDA and LDA the buffer remains 100 feet.
- The 200 feet buffer can be reduced based on hardship conditions. A property owner may be exempt from the 200 feet buffer if the application for subdivision or site plan approval is submitted before July 1, 2008 and recorded by July 1, 2010, and if growth allocation is not involved.
- Variances are permitted, but must be evaluated according to the criteria in the law. Local jurisdictions may use different standards that are in the law, but they must be approved by the Critical Area Commission. The commission now has 130 days to act on local program amendments instead of 90. The commission also has power to amend the criteria if the local government criteria are deemed inappropriate.
- New minimum criteria for map amendments for new IDA include public sewer and an average density of 3.5 units/acre.
- Criminal penalties have been added, but cannot apply to violations that existed before July 1, 2008.