September 4, 2008

Baltimore City Circuit Judge Nixes Ban on Unicorn Rubble-Fill

By Steve Lash

A Maryland law aimed at preventing the construction and operation of a rubble landfill near a Queen Anne's County lake has been struck down as unconstitutionally targeting and burdening a single company.

Baltimore City Circuit Judge Martin P. Welch ruled that the 2007 law, barring the state environmental agency from approving a rubble landfill within four miles of Unicorn Lake, violates the Maryland Constitution's prohibition on "special" laws, those aimed at a specific person or company to prevent the individual or entity from taking otherwise lawful action.

The target of the controversial law, referred to in court papers as Chapter 161, was Days Cove Reclamation Company Inc., which at the time of the statute's enactment was nearing state approval to build and operate a landfill within 1,000 feet of the lake, Welch said.

The landfill, first proposed in 1993, has drawn opposition from nearby residents and the Queen Anne's County Board of Commissioners, which originally supported the planned facility. Chapter 161 does not mention Days Cove by name, but Welch stated in his decision that the waste-management company was clearly the sole target of the legislation.

Days Cove was the only company the board had approved to operate a landfill near the lake, Welch wrote. In addition, Sen. E.J. Pipkin, R-Queen Anne's County, wrote during General Assembly consideration of the measure that the legislation, which he sponsored, was an effort to "stop this landfill," Welch stated.

"The plaintiff is a member of a class of one," Welch wrote. "Although Chapter 161 does not explicitly or specifically identify plaintiff [Days Cove], it does implicitly identify plaintiff. This distinction does not weaken the argument for the finding of a special law."

Welch added that other statutes calling for state approval before landfills can be built provide opponents with adequate opportunity to object without unconstitutionally singling out a single entity.

No special favors

James J. Doyle III, Days Cove's attorney, hailed Welch's decision not only as a victory for his client but as sending a message to legislators that "there are limits" to their efforts to block specific companies from engaging in otherwise lawful endeavors.

"It is significant in that it does say that there is life to the special-law provision in the Constitution," said Doyle, of counsel at Rich & Henderson P.C. in Annapolis. "You don't really see many challenges or things overturned on that basis."

Doyle, who could have litigated the case in Queen Anne's County, said he opted for Baltimore City Circuit Court because the named defendant in the case, the Maryland Department of the Environment, is based there.

Though MDE was the named defendant, the case was argued by Assistant Attorney General Daniel A. Friedman, counsel to the General Assembly. He argued unsuccessfully that Chapter 161 was constitutional.

The Special Law prohibition tells the General Assembly, "Don't give anybody special favors," Friedman said. "Don't single me out to be treated good or bad."

Chapter 161 should have passed constitutional muster because it did not single out Days Cove but barred any company from building and operating a landfill near Unicorn Lake, Friedman said.

The attorney general's office has not yet decided whether it will appeal, Friedman said.

Fifteen years

Welch's ruling marked the latest event in a 15-year effort by Days Cove to construct the landfill near Unicorn Lake.

The 43-acre lake was created nearly 150 years ago when a dam was constructed for a woolen mill. The lake was purchased by the state for $1 in 1961; it is used as a largemouth bass and bluegill fishery and contains a wide variety of other fish.

In 1994, Days Cove's landfill proposal had the approval of the Queen Anne's County Board of Commissioners, which amended the county's solid-waste management plan to permit the facility near the lake.

The board, however, altered course in 1996 after Days Cove applied for a state permit with the MDE. The commissioners attempted to amend the solid-waste management plan to block the landfill, an effort the Court of Special Appeals struck down as pre-empted by state law.

The county also turned to the General Assembly.

In 2006, the legislature passed a three-year moratorium preventing MDE from issuing landfill permits for projects within four miles of the lake. A year later, it made the prohibition permanent by enacting Chapter 161.

Prior to the 2006 law, Days Cove had sought and received MDE approval of the first two phases of the agency's three-phase approval process before landfill construction could begin.

Welch's ruling, barring appeal, clears the way for the company to seek approval of the third and final phase, Doyle said.

"There's no indication that MDE will not do a proper job in processing this permit," he added.

Originally published by Steve Lash.

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