Lewis v. Gansler

204 Md.App. 454

42 A.3d 63

Edwin H. LEWIS

v.Douglas F. GANSLER, et al.

No. 2174, Sept. Term, 2009.

Court of Special Appeals of Maryland.

April 25, 2012.

Matthew T. Mills & Raymond S. Smethurst, Jr. (Adkins, Potts & Smethurst, LLP, on the brief) Salisbury, MD, for appellant.

Adam D. Snyder (Douglas F. Gansler, Atty. Gen., on the brief) Baltimore, MD, for appellee.

Panel: KRAUSER, C.J., KEHOE, ARRIE W. DAVIS (Retired, Specially Assigned), JJ.

KEHOE, J.

The primary issue in this appeal is whether the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays (the “Commission”) acted in a quasi-legislative or in a quasi-judicial capacity when it decided that certain provisions of Wicomico County's Critical Area program did not conform to state law. We conclude that the Commission was acting quasi-legislatively and that it did not exceed its statutory authority in so doing. Thus, we will affirm a decision of the Circuit Court for Wicomico County granting summary judgment to the Attorney General and the Commission in an action against Edwin H. Lewis to enforce provisions of Wicomico County's Critical Area program. On appeal, Mr. Lewis presents two questions which we have reworded:

I. Was the Commission acting within the scope of its authority when, pursuant to Natural Resources Article § 8–1809( l ), it determined that Wicomico County's Critical Area program contained a clear mistake, omission, or conflict with the Critical Area Act or criteria?

II. Did the Commission illegally interfere with Mr. Lewis's efforts to obtain a demolition permit and other related permits from Wicomico County?

BACKGROUND

This is the third time that aspects of the long-running dispute between Appellant and State and local regulatory agencies have been addressed by an appellate court of this State. See Lewis v. Dep't of Natural Res., 377 Md. 382, 395, 833 A.2d 563 (2003) (“Lewis I ”); Lewis v. Dep't of Natural Res., No. 608, September Term 2005 (filed January 22, 2007), cert. denied399 Md. 34, 922 A.2d 574 (2007) (“ Lewis II ”). We set out the statutory scheme as explained by Judge James Eyler in Lewis II, with some additions.

In 1984, the General Assembly enacted the Maryland Critical Area Act (the “Act”), codified as Md.Code. Ann., Nat. Res. § 8–1801 et seq. (1973, 2007 Repl.Vol., 2011 Supp.) (“NR”), to establish and implement a resource protection program to protect the water quality and natural habitats of the Chesapeake Bay and its tributaries. NR § 8–1801(b)(1).¹ A cooperative endeavor, the Act authorized local governments exercising planning and zoning powers within the Critical Area ² to establish resource protection programs in a “consistent and uniform manner subject to State criteria and oversight.” NR § 8–1801(b)(2). The “criteria” referred to in § 8–1801(b)(2) are set out in COMAR 27.01.10.01 et seq. Among these is that each local jurisdiction “shall demonstrate that the local regulations and programs proposed to meet the criteria in this regulation are enforceable.” COMAR 27.01.10.01.H.

A local government's program typically consists of provisions in the jurisdiction's zoning and subdivision regulations, comprehensive plans and similar land use controls pertaining to the Critical Area. SeeNR § 8–1808(c). These provisions are to implement the Act's three primary goals: minimizing adverse impacts on water quality from pollutants; conserving fish, wildlife and plant habitat; and establishing land use policies to accomplish the first two while accommodating growth within the Critical Area and, at the same time, addressing “the fact that, even if pollution is controlled, the number, movement, and activities of persons in the [Critical] area can create adverse environmental impacts.” SeeNR § 8–1808(b).

One of the most important aspects of any Critical Area program is the “buffer,” defined as “an existing, naturally vegetated area, or an area established in vegetation and managed to protect aquatic, wetlands, shoreline, and terrestrial environments from manmade disturbances.” NR § 8–1802(a)(4). Restrictions upon development activities within buffer areas are integral components of each local Critical Area program. See, e.g.,COMAR 27.01.09.01.C (setting out mandatory policies regarding buffer protection for each local program); Critical Area Comm'n v. Moreland, 418 Md. 111, 116 n. 9, 12 A.3d 1223 (2011) (noting the “significant environmental benefits of requiring a permanently protected buffer between upland land uses and tidal waters, tidal wetlands, and tributary streams....”).

Local governments have the primary responsibility for the development and implementation of their respective programs, subject to the review and approval of the Commission. NR § 8–1808(a). To ensure that local programs comply with statutory and regulatory requirements and are enforceable, the Commission has been granted “all powers necessary for carrying out the purposes of this subtitle, including ...;” the power to adopt and amend regulations for the administration and enforcement of the State and local programs. NR § 8–1806(a)(1).

In addition to its other oversight and review powers, if the Commission concludes that a local government's program “contains a clear mistake, omission or conflict with the criteria or law, the Commission may: (i) notify the local jurisdiction of the specific deficiency; and (ii) request that the jurisdiction submit a proposed program amendment or program refinement to correct the deficiency.” NR § 8–1809( l )(1). The local jurisdiction must submit any necessary amendments to the Commission within 90 days of being notified of the deficiency. NR § 8–1809( l )(2). Any projects approved by the local jurisdiction “under a part of a program that the Commission had determined to be deficient shall be null and void after notice of the deficiency.” NR § 8–1809( l )(3).

In addition to local enforcement efforts, the Chair of the Commission may refer a possible violation of a local Critical Area program to the Attorney General for enforcement proceedings. NR § 8–1815. This statute authorizes the Attorney General in such an action to “invoke any sanction or remedy available to local authorities,” § 18–515(c), as well as to bring an action in equity to, among other things, “compel restoration of lands or structures to their condition prior to any modification which was done in violation of approved project plans.” NR § 8–515(d).

Wicomico County's Critical Area program, approved by the Critical Area Commission on September 6, 1989, is codified in Chapter 125 of the County Code. SeeWicomico, Maryland County Code § 125–1(C).

Pertinent to the issues before us, Chapter 125 prohibits “new development activities, including clearing of existing natural vegetation, erection of structures, construction of new roads, parking areas or other impervious surfaces and the placement of sewage disposal systems” within the buffer. County Code § 125–9. Additionally, the County Code authorizes the County's Board of Appeals to grant variances from the strict application of the County's Critical Area regulations, including its buffer regulations. See County Code §§ 125–35 to 125–38.³ The County Code contains enforcement provisions. Specifically, the County Zoning Administrator is authorized to enforce the County Code by notifying offending property owners of the violation, “indicating the nature of the violation and ordering the action necessary to correct it[,]” including ordering the removal of illegal structures, and taking “any other action authorized by this chapter to ensure compliance with or to prevent violation of its provisions.” County Code § 125– 11(B)(1)(b).

Having set forth the statutory scheme in very broad strokes, we now turn to the facts in the case before us.

Factual and Procedural Background⁴

In April 1999, Appellant purchased a tract of land in Wicomico County on a tributary of the Nanticoke River consisting of 69.57 acres of tidal marsh surrounding three upland areas aggregating 7.23 acres. The largest of the upland areas, named “Phillips Island,” totals 5.30 acres and is the subject of the current litigation. “Because of the island's irregular shape, nearly the entire island ... lies within the Critical Area Buffer, as defined by the county Code.” Lewis I, 377 Md. at 395, 833 A.2d 563.

In the Summer or Fall of 1999, Appellant hired a contractor to construct six buildings on the island. Id., 377 Md. at 395–396, 833 A.2d 563. At least part of each building was located in the buffer. Id. Neither Appellant nor his contractor obtained permits or sought County approval prior to initiating construction. Id. at 395, 833 A.2d 563. When this was called to his attention, Appellant “ceased construction of the camp and began to confer with County officials in an attempt to obtain the necessary permits.” Id. at 395 n. 9, 833 A.2d 563.

Thereafter, Appellant submitted an application to the Wicomico County Board of Appeals for an after-the-fact variance from the restriction on building in the Critical Area Buffer. The Board denied the application in a written decision dated February 13, 2001. Lewis I, 377 Md. at 397, 833 A.2d 563. The Board's decision was affirmed by both the Circuit Court for Wicomico County and this Court, but was vacated and remanded to the Board by the Court of Appeals for failure to consider “all of the Wicomico County Code variance criteria and misapplying the unwarranted hardship standard.” Lewis I, 377 Md. at 390, 437, 833 A.2d 563.⁵

On remand, the Board held additional argument but did not receive new evidence. Lewis II, slip op. 2. Issuing new findings and conclusions to address the mandate of Lewis I, the Board again denied Appellant's variance application on June 24, 2004. Lewis II, slip op. 2. The circuit court upheld the Board's decision and this Court affirmed on January 22, 2007. Lewis II, slip op. 2, 24. The Court of Appeals denied Appellant's petition for a writ of certiorari on May 11, 2007....