State Trumps Locals

A county zoning board acts unlawfully if it refuses to approve a zoning change for a landfill based on factors reserved for state environmental authorities, according to a state appeals court ruling. State law requires each Maryland county to adopt and periodically update a solid waste plan. In 1994, upon request by Days Cove Reclamation Co. (DCR), officials in Queen Anne's County, Md., amended its plan to include a proposed landfill on certain agricultural property. Two years later, DCR applied to the state for a permit to operate a landfill at the site. Subsequently, the county attempted to delete the landfill site from its amended plan, but DCR obtained a court order blocking the proposed action.

The state's permit process was later halted, pending a routine determination of DCR's compliance with county land use requirements. DCR applied for a special zoning permit for the operation of its landfill. County law allows landfills as conditional uses in farming areas, subject to certain general standards.

The county zoning board conducted a hearing. DCR's witnesses included an engineer, a traffic consultant, a real estate appraiser and an environmental consultant. The county's own planning and zoning department and public works department recommended approval. For their part, the opponents presented a number of witnesses on environmental matters, plus testimony from public officials and angry citizens.

Finding likely adverse effects, the county zoning board denied DCR's request. The company appealed the decision to the county circuit court, which concluded that the board's denial was faulty in two respects: It wrongfully interjected environmental concerns into the process, and it failed to identify relevant site-specific adverse effects. The court remanded the case to the board for reconsideration. Contending that the board's approach was fundamentally wrong, DCR appealed to a higher court.

The Maryland Court of Special Appeals reversed the circuit court's judgment and directed the county zoning board to issue DCR a zoning permit.

The appeals court found insufficient evidence to support the board's decision. The justices were particularly critical of the testimony by the opponents' environmental science expert witness, citing his speculative assumptions, misunderstanding of the facts, not to mention his lack of education in environmental science.

Overall, the appeals court found that the board had acted in an area where state law has given state environmental officials exclusive authority. Referring to legislative history and various court decisions, the court concluded that only a limited role existed for local zoning in landfill siting.

“[I]nsofar as landfills are concerned, the traditional zoning and land use decisions[,] which … are to be made by the local government[,] do not include determining what is necessary in order to protect the environment from the pollutants that are generated … by a … landfill,” the opinion stated.

The columnist is a Washington, D.C., attorney and serves as general counsel of the Solid Waste Association of North America.

[Days Cove Reclamation Co. v. Queen Anne's County, No. 1572, Court of Special Appeals of Maryland, Sept. 10, 2002]

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