Petition for Writ of Certiorari — Gertz v. Anne Arundel County

wo H2 65 SOCT 18175

IN TH@ rice oF THE CLERK

SUPREME COURT OF THE UNITED STATES

October Term 1995

ROBERT E. GERTZ,

Petitioner,

ANNE ARUNDEL COUNTY, MARYLAND,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

James L. Mayer

Counsel of Record

Susan S. James Mayer

10805 Hickory Ridge Road

Suite 200 :

Columbia, Maryland 21044

(410) 740-9401

Counsel for Petitioner,

Robert E. Gertz

————————— SS

LANTAGNE LEGAL PRINTING

801 East Main Street Suite 100 Richmond, Virginia 23219 (800) 847-0477

QUESTION PRESENTED FOR REVIEW

Whether a citizen's substantive due

process rights under the Fourteenth

Amendment are violated and, therefore, 42

USCA § 1983 is applicable where a County,

under guise of police power, enforces an

"emergency" zoning ordinance through

injunctive action that temporarily

deprives that citizen of a vested use of

property which the County had specifically

permitted for a number of years pursuant

to a prior Consent Agreement.

a —— oo

TABLE OF CONTENTS

Page

Question Presented for Review..... i

Table of Authorities ........ iii

Opinions Below .. pe je: «eee

Statement of Jurisdiction “a Aer ee ae ee

Constitutional Provisions, Statutes,

and Ordinances Involved ial sa ae

Statement of Case... ge

Reasons for Granting Writ pa is

Se Se eee ee ee ee

Appendix:

A. Opinion of the Court of

Appeals of Maryland ..... A.1

B. Opinion of the Court of

Special Appeals of Maryland . A.21

C. Judgment of Judge Bruce C.

Williams, Circuit Court

for Anne Arundel ee

Maryland... eee

D. Opinion and Order ‘of Judge

Warren B. Duckett, Jr.

Circuit Court for Anne

Arundel County, Maryland. .. A.38

E. Order of Judge Eugene M.

Lerner Modifying Injunction,

Circuit Court for Anne

Arundel County, Maryland... A.44

F. Interlocutory Injunction

of Judge Eugene M. Lerner,

Circuit Court for Anne

Arundel County, Maryland . « Se

G. Ex Parte Injunction, Circuit

Court for Anne Arundel County,

Maryland... ewe

H. Opinion of Judge Martin A.

Wolff, Circuit Court for Anne Arundel

County, Maryland ....... A.50

«i>

I. Bill No. 28-90, April 23, 1990,

County Council for Anne Arundel

County, Maryland....... A.58

J. 1985 Consent Agreement .... A.71

m. S968. Comcemet a- + «© «© « © « A HG

L. Letter of June 4, 1990 .... A.85

TABLE OF AUTHORITIES

CASES

Pages

B; ee . Bel a: ry

778 F. Supp. 249, aff. 991 F.2d 100,

114 S.Ct. 182, 126 L.E.2d

141 (1993) ict mies De Oy ay ae aoe 28

: - is Ind €

i, 747 F.Supp.

1340 (1990) arg ak a ae ae 22

Collins v. City of Harker Heights,

503 U.S. 115, 112 &.Ct. 1061, 117

L.Ed.2d 261 (1992) et ae a” one ee ee ee ae 17

Colwell _v. Howard County, 31 Md.App.

8, 354 A.2d 210, cert. den. 278 Md.

719 (1975) ra ee). ee a a a 22

Vv n

rvices,

489 U.S. 189, 109 S.Ct. 998,

103 L.Ed.2d 249 (1989) ee a a 17

= ¢ » Baa

U.S. , 129 L.Ed.2d 304,

114 S.Ct. 2309 (1994) ae a eee i393, #2

-iii-

OP OEE PIS AE AE ER RS BEEF IT D

aaa Ma. 4622.41978) . 2+ - es 2s 2+ - + St

Gardner v. Baltimore Mayor &

, 969 F.2d 63

en Cee eros oe ClkLe © & +e ¢ © 13

, 339 Md. 261, 661 A.2d

Sem SEMemree cl bte O98 55 « «0 © # #8 9

o39 Ma. 30% (21987)° 2 © ee 6 we eo 8 22

Associates, Inc., 90 Md. App.

105 cert. dismissed,

998 M4. 229 (2992) «+ 6+ «+--+ e+ 2

Li vy. Frederick C B

issi , 964 F.2d

of County Commissioners

1436 (4th Cir. 1992) . 13

Maryland Board of Pharmacy v.

Sav-a-Lot, Inc., 270 Md. 103, 311

A.2d 242 (1973) aria 4

, 483 U.S. 835, 107 S.Ct.

3141, 97 L.Ed.2d 677 e097)... 20, 21

Pri : oa ae al ;

Development Ltd. Part., 330 Md.

297, 623 A.2d 1296 (1993) .--.- 14, 15

iv

Vv. Ewing, 474 U.S. 214, 106 S.Ct.

507, 88 L. EBa.2d 523 (1985) ..--.- - 16

Richardson v. Town of Eastover,

922 F.2d 1152 (4th Cir. 1991) ...-.- 13

-iv-

Richmond Corp. v. Board of County

, 254 Md. 244, 255 A.2d

398 (1969) ae” Le

15

Ross v. Montgomery County, 252 Md.

497, 250 A.2d 635 (1968) ....+-+- 15

Scott v. Greenville County, 716

F.2d 1409 (4th Cir. 1983) .... 13, 21

State Commission on Human

Re lati Divie:

of Litton Systems Inc., 278 Md.

120, 360 A.24 2° (1976) «- s+ - - + 16

48 F.3d 810 (4th Cir. 1995) ...-. -: y

, 471 U.S. 84,

U.S. v. Locke

107 §.Ct. 1785, 85 L.Ed.2d

64 (1985) 19

Statutes

42 U.S.C. Section 1983 . 3, 4, 7, 8, 9,

10, 11, 14, 22, 23

Ordinances

Anne Arundel County, Maryland,

Bill No. 28-90 ..'.- > 4, 5,6. 3. de;

24, 126,: 37, 28, 39; 48

Constitutional Provisions

United States Constitution:

Fifth Amendment ....-+-+-+ + 5. * 20

Fourteenth Amendment. 2, 3, 4, 26..-- 23

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1995

No.

ROBERT E. GERTZ, Petitioner

Vv.

ANNE ARUNDEL COUNTY, MARYLAND, Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS

OF MARYLAND

Robert E. Gertz, the petitioner

herein, respectfully prays that a writ of

certiorari issue to review the judgment of

the Court of Appeals of Maryland, entered

in the above-entitled case on July 21,

1995.

OPINIONS BELOW

The July 21, 1995 opinion of the

Court of Appeals of Maryland, whose

judgment is herein sought to be reviewed,

is reported at 339 Md. 261, 661 A.2d 1157

(1995), and is reprinted in the separate

Appendix to the Petition, pp. A.1-20. The

prior opinion of the Court of Special

Appeals of Maryland was entered December

8, 1993, No. 194, is unreported and is

reprinted in the Appendix to _ this

Petition, pp. A.21-32. Prior to appellate

review, this case was heard and an oral

opinion on the merits rendered by Judge

Bruce C. Williams of the Circuit Court for

Anne Arundel County, Maryland on December

10, 1992, Case No. 3114763, a transcript

of which is reprinted in the Appendix, pp.

A.33-37. Several months before Judge

Williams rendered his decision, Judge

Warren B. Duckett of the Circuit Court for

Anne Arundel County, Maryland issued an

Opinicn and Order dated February 19, 1992

in response to the parties' Motions for

Summary Judgment, Case No. 3114763, a copy

of which is reprinted in the Appendix, pp.

A. 38-43. Also included in the Appendix

are copies of the Ex Parte Injunction,

Interlocutory Injunction and Order

Modifying Injunction between the parties

in Case No. 3114763 in the Circuit Court

for Anne Arundel County, Maryland,

reprinted on pp. A.44-49. In addition,

the transcribed opinion of Judge Martin A.

Wolff, Circuit Court for Anne Arundel

County, Maryland in the case of Anne

Arundel County v. Robert Gertz, Case No.

3107030, dated December 21, 1989 is

reprinted in the Appendix to the Petition,

pp. A.50-57.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals

of Maryland was entered on July 21, 1995.

The jurisdiction of this Court is invoked

pursuant to 28 U.S.C. §1257(a).

CONSTITUTIONAL PROVISIONS, STATUTES

AND ORDINANCES INVOLVED

This case involves the first section

of the Fourteenth Amendment to the

Constitution of the United States, which

provides as follows:

All persons born or

2

eae eee ew ee aoe Ne Es ww!

10 mater

De eee: ates Ce BA Lew ET Lote es GOS + rare

RI ENT nl at OR ARS Gh tae PIE the a a

naturalized in the United

States, and subject to the

jurisdiction thereof, are

citizens of the United States

and of the State wherein they

reside. No State shall make or

enforce any law which shall

abridge the privileges or

immunities of citizens of the

United States; nor shall any

State deprive any person of

life, liberty, or property,

without due process of law; nor

deny to any person within its

jurisdiction the equal

protection of the laws.

Also at issue in this case is the

applicability of 42 U.S.C. Section 1983,

which provides as follows:

Every person who, under

color of any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects,

or causes to be subjected, any

citizen of the United States or

other person within the

jurisdiction thereof to the

deprivation of any rights,

privileges, or immunities

secured by the Constitution and

laws, shall be liable to the

party injured in an action at

law, suit in equity, or other

proper proceeding for redress.

For the purposes of this

section, any Act of Congress

applicable exclusively to the

District of Columbia shall be

3

considered to be a statute of

the District of Columbia.

The local ordinance involved, Bill

No. 28-90, enacted on April 23, 1990 by

the County Council of Anne Arundel County,

Maryland, is reprinted in the Appendix,

pp. A.58-70.

STATEMENT OF THE CASE

Type of Action

This case involves a use of land

enjoined by governmental action applying a

law enacted after the use was vested.

Petitioner Robert E. Gertz ("Gertz") filed

a Complaint for Declaratory Judgment

against Respondent Anne Arundel County,

Maryland ("the County") on July 6, 1990 in

the Circuit Court for Anne Arundel County,

Md. which Complaint was amended on August

14, 1990 to include an action for

violation of 42 U.S.C. Section 1983

pursuant to the Fourteenth Amendment of

the U.S. Constitution. Gertz amended his

complaint following the County's

enforcement of a new zoning ordinance,

Bill 28-90 (Appendix, pp. A.58-70),

through injunctive action (Appendix, pp.

A.44-49). The new zoning ordinance

purported to regulate sanitary landfills

through permit requirements. The County's

injunction against Petitioner prohibited

Gertz from filling ravines on his farm

property with organic materials, a use of

the property that the County had

specifically agreed to in a Consent

Agreement in 1985, several years before

enactment of Bill 28-90. In addition,

Gertz' use of the property in this manner

4

Pah ee ey oe ieee

had been declared a valid agricultural

land management practice, exempt from

grading permit requirements, in an opinion

rendered by Judge Martin A. Wolff in the

Circuit Court for Anne Arundel County,

Maryland on December 21, 1989 (Anne

Arundel County, Maryland v. Gertz, Case

No. 3107030, Appendix, pp. A.50-57) four

months before enactment of Bill 28-90.

History of Disputes Between the Parties

On August 20, 1985, Gertz and the

County entered into a Consent Agreement

(the "1985 Consent Agreement," Appendix,

A.71-73). The Consent Agreement

allowed Gertz to fill ravines on his farm

property with "raw tree material

consisting of root material, brush, tree

limbs and stumps" or "any rubble

originating off-site" for Gertz’ "and/or

occupant’s farming and/or personal use."

However, because the parties continued to

have disputes subsequent to the 1985

Consent Agreement, a separate agreement,

dated June 10, 1988 was entered into (the

"1988 Contract", Appendix, pp. A.74-84).

The 1988 Contract, in addition to allowing

filling of ravines and construction of a

pond in the same manner allowed in the

1985 Consent Agreement, also allowed

"slash, stumps, root mat and clean earth"

and expressly recognized that the filling

project was a "Conservation Plan," a "farm

plan concerning pasture establishment ;"

that the "pond is already a part of

[Gertz’s] farm plan" and was "installed as

a multipurpose recreation-wildlife area

and sediment basin;" and that the "pond

and proposed pasture use are part of the

conservation plan."

Subsequent to execution of the 1988

Contract, disputes continued and the

County filed a Petition for Contempt

against Gertz which case was heard by the

Honorable Martin A. Wolff. Judge Wolff

ruled that Gertz was not in contempt of

the Consent Agreement; that Gertz was

allowed to farm under the Consent

Agreement between the parties; and that

the filling activity was not a sanitary

landfill requiring a grading permit, but

constituted farming. The County did not

appeal Judge Wolff's decision. (Anne

, Case No. 3107030,

Appendix. pp. A.50-57)

Four months after Judge wolff's

decision, the County enacted Bill No. 28-

90, an "emergency ordinance," regulating

sanitary landfi.le Gertz received a

letter from the Ceunty dated June 4, 1990

advising him that he was in violation of

the new ordinance; that he was required to

obtain "a permit to operate a sanitary

landfill;" and that failure to comply with

Bill 28-90 "may result in legal action."

(Appendix, p. A.85) The ordinance

required, among other things, that if the

land being filled is zoned RA, then the

minimum land area must be at least one

hundred (100) acres. Because of the long

relationship between the parties, the

County knew Gertz' property (zoned RA) was

less than 100 acres in its entirety and

thus Gertz did not, by definition, qualify

for a permit under Bill 28-90. If he

attempted to comply with the new

ordinance, he would be denied a permit; if

he did not comply, the County would still

enjoin a use of the property it had

specifically permitted since 1985. The

6

ordinance also granted to Anne Arundel

County, upon completion of the filling

project, a recreation or open space

easement in the entire property without

compensation to the landowner. The

ordinance listed several other

requirements such as large permit fees,

fencing, and costly engineering plans.

Relying on Judge Wolff’s decision,

Gertz filed, without counsel, a Complaint

for Declaratory Judgment. The County then

filed a Counterclaim (for Immediate,

Interlocutory, Ex Parte and Permanent

Injunctive and Other Relief). The ex

parte injunction was granted on July 20,

1990 (Appendix, pp. A.48-49); Gertz

retained counsel and, after a hearing on

Gertz’ Motion to Dissolve, an

interlocutory injunction was issued

against Gertz prohibiting him from filling

ravines with off-site materials as allowed

under the 1985 Consent Agreement and the

1988 Contract with the County. (Appendix,

pp. A.46-47) Thereafter, Gertz filed his

Amended Complaint alleging violation of 42

U.S.C. Section 1983.

Over the next eight months following

issuance of the injunction, Gertz was

enjoined from filling ravines on his

property as permitted under the 1985

Consent Agreement and 1988 Contract and

thus was out of business since the filling

was his primary source of income. Gertz

ultimately intended to complete the

filling project resulting in more level

pasture which would enable him _ to

establish a horse boarding operation on

his farm.

Both parties filed Motions’ for

Summary Judgment and Judge Warren B.

Duckett, Jr. heard both Motions on June

18, 1991, issuing an Order on February 19,

1992, in Gertz' favor, holding that Gertz

had a vested right to his activities

likening his right under the 1985 Consent

Agreement and the 1988 Contract to a

permit or license (Appendix, pp. A.39-43).

After Judge Duckett's ruling, Gertz was

finally allowed to continue his filling

activity after seventeen (17) months of

being deprived of this right and suffering

great economic loss and property damage.

At the subsequent trial on damages,

Judge Bruce C. Williams required the

parties to present evidence on both

liability and damages. During two days of

testimony, the evidence showed that Gertz'

filling activity had not changed in nature

and purpose since the late 1970's/early

1980's; Appellant was still filling for

farming purposes.

The Rulings Below

At the conclusion of Gertz' case, the

County moved for judgment which Judge

Williams granted, denying Gertz all claims

for relief, constitutional and otherwise.

(Appendix, pp. A.33-37)

Upon appeal, the Maryland Court of

Special Appeals reversed and remanded the

breach of contract claim to the Circuit

Court for a determination as to whether

the County had breached its contract and,

if so, what damages should be awarded.

The Court of Special Appeals, however,

held that 42 U.S.C. Section 1983 is

8

inapplicable. (Case No. 194, December 8,

1993, Appendix, pp. A.21-32) The Court of

Appeals of Maryland granted Certiorari to

determine the applicability of 42 U.S.C.

Section 1983 and issues raised in the

County’s Cross-Petition regarding the

doctrine of res judicata.

In its opinion, dated July 21, 1995,

the Court of Appeals found that the

doctrine of res judicata did not bar the

County’s claim to enforce Bill 28-90

through injunctive action; that Judge

Warren B. Duckett’s Opinion and Order

regarding the Motions for Summary Judgment

was not the law of the case; and that

Gertz suffered no constitutional

deprivation as a result of the County’s

injunctive action prohibiting him from a

use of property that the County had

specifically permitted for a number of

years. ( Vv

339 Md. 261, 661 A.2d 1157 (1995),

Appendix, pp. A.1-20).

REASONS FOR GRANTING THE WRIT

Introduction

In its holding in this case, the

Court of Appeals of Maryland found that

Gertz suffered no constitutional

deprivation and was therefore not entitled

to damages under 42 U.S.C. § 1983.

However, the Court cited no precedent to

support its decision and ignored the legal

standards set forth in Biser v. Town of

Bel Air, Maryland, 778 F.Supp. 249, aff.

991 F.2d 100, cert. den. 114 S.Ct. 182,

126 L.Ed.2d 141 (1993) and other federal

cases cited by Gertz in which Section 1983

9

Claims are brought under the Due Process

Clause of the Fourteenth Amendment.

Because the Court of Appeals failed

to state any legal grounds whatsoever in

its decision, and because the facts in

this case, which are undisputed, show that

the County's actions against Gertz are a

violation of constitutional law and

federal statute, this Court should

determine whether such a violation

occurred. As it now sands, 42 U.S.C. §

1983 has "no teeth" in the State of

Maryland and even a citizen's vested

property rights are Summarily ignored

while, in other states, the same such

rights are protected. Further, the Court

of Appeals' decision amounts to a

repudiation of the law of vested rights as

recognized by other states and federal

courts and allows a county to undermine

its own binding agreements under color of

state law and guise of the police power,

use its legislative authority to alter

those agreements by designing a statute

with requirements a landowner cannot meet,

depriving the landowner of vested rights,

and then escape applicability of 42 U.S.c.

§ 1983. ;

Gertz' Property Interest

As stated in Biser _v., T

‘own of Bel

Air, Maryland, supra., 778 F.Supp. 249,

252:

The Supreme Court has set forth

three types of Section 1983

Claims that may be brought

against the State under the Due

Process Clause of the Fourteenth

10

Amendment. First, the Clause

incorporates many of the

specific protections defined in

the Bill of Rights...Second, the

Due Process Clause contains a

‘guarantee of fair procedure...’

A third type of Constitutional

protection actionable under

Section 1983...is substantive

due process. The substantive

component of the Due Process

Clause bars certain arbitrary,

wrongful government actions

‘regardless of the fairness of

the procedures used to implement

them...’ The right to be free

from arbitrary state action is a

substantive due process right

that arises directly from the

constitution. (Citations

omitted).

The case at bar is of the third type

of claim--a violation by the County of

Gertz’ substantive due process rights.

Several Fourth Circuit cases have set

forth the standard for determining whether

substantive due process rights have been

violated. In Biser, the Court explained

what it termed the "standard of

entitlement" in the following manner:

In order for Biser to state a

substantive due process claim,

he must first demonstrate that

he possesses a ‘cognizable

property interest, rooted in

state law,’ in the lost

benefit...A property interest

requires more than a ‘unilateral

expectation’ that a permit or

11

license will be issued; instead,

there must be a ‘legitimate

Claim of entitlement...’ In

applying this standard of

entitlement, we have held that

if a local agency has '[aJny

significant discretion' in

determining whether a permit

should issue, then a claimant

has no legitimate entitlement

and, hence, no cognizable

property interest. Id. at 991

F.2d 100, 103-104; (Citations

omitted).

In Biser, the claimant "had only a

unilateral expectation that he would

receive the special exception" and, thus,

no cognizable property right under the due

process clause. Id. at 104. The legal

right to the permit had to exist

the permit application was denied and the

Claim of’ entitlement, wrote the Court,

"must come from ‘an existing legislative

or administrative standard.'" Id, at 104.

Contrary to the plaintiff in ;

Gertz had possession of his "permit", the

Consent Agreement and 1988 Contract,

before the County enacted and enforced

Bill 28-90 through injunctive action

prohibiting Gertz' filling activities. As

Judge Duckett stated in his Order granting

Gertz Summary Judgment, "While this

Consent Agreement is not a ‘permit’ as

that word is typically used in zoning

cases, its effect is exactly the same.

oth the Consent Agreement and a permit

pon permission to an individual to engage

in a particular activity and they should

therefore be treated as being synonymous."

12

(Appendix, p. A.41) Further, it cannot be

said that the County had "any significant

discretion conferred upon {[it]" in

terminating or altering the agreements

between the parties because the agreements

did not allow for unilateral termination.

Gardner v. Baltimore Mayor & City Council,

969 F.2d 63, 68 (4th Cir. 1992). See also

Richardson v. Town of Eastover, 922 F.2d

1152 (4th Cir. 1991) (plaintiff had

legitimate claim of entitlement’ to

business license where ordinance required

finding of cause to withhold license and

renewal of license had been summarily

permitted | for six or seven years); Scott

vi , 716 F.2d 1409 (4th

Cir. 1983) (developer entitled to issuance

of permit under state law, the issuance of

which was taken from him by manifest

arbitrariness and unfairness); Linton v.

Frederick County Board of County

Commissioners, 964 F.2d 1436 (4th Cir.

1992) (employee who could be discharged

only for cause had a constitutionally

protected property interest in employment

a the county). See also the recent case

Sylvia Development _

_Corporation v.

caida Dian iaiane 48 F.3d 810 (4th

Cir. 1995).

When the "standard of entitlement" as

set forth in the above cases is applied to

the facts of the instant case, it is

evident that Gertz does possess a

"*cognizable property interest, rooted in

state law.’" Biser, 991 F.2d at 103.

Unlike Biser, Gertz did not have a mere

"unilateral expectation" in a permit to

fill his property, he had _ written

agreements and court decrees guaranteeing

him such a right. There was nothing

13

discretionary either in Judge Wolff's 1989

ruling or the agreements between the

parties: under existing legal standards,

Gertz was entitled to farm pursuant to the

terms of the Consent Agreement and the

filling activity was, in fact, a valid

agricultural land management practice or

farming. There was no doubt on the part

of the County that as a governmental

entity imbued with such authority, it had

granted Gertz permission under’ then-

existing legislative standards to fill

ravines for farming and/or personal

purposes before enacting and enforcing

Bill 28-90.

Therefore, utilizing the "standard of

entitlement," it is clear that Gertz’

interest in the 1985 Consent Agreement and

the 1988 Contract is constitutionally

protected property for purposes of 42

U.S.C. Section 1983 and the Court of

Appeals of Maryland failed to recognize

this.

Gertz' Property Interest Is "Rooted in

State Law"

In Prince George's County v. Sunrise

men , 330 Md. 297, 623

A.2d 1296 (1993), the Court of Appeals of

Maryland held that, "in order for rights

to be vested before a change in the law,

the work done must be recognizable, on

inspection of the property by a reasonable

member of the public, as the commencement

of construction of a building for a use

permitted under the then current zoning."

Id. at 314. Judge Duckett followed this

reasoning when he granted summary judgment

in Gertz’ favor on due process grounds:

14

<cinpdeimeiabcsabaid :

"Por Gertz ‘to have been denied due

process, he must have had a vested right

to the zoning classification which he lost

by operation of law and time.’" (Appendix,

p. A.39) Judge Duckett then cited the

cases of Colwell v. Howard County, 31

Md.App. 8, 354 A.2d 210 (1975); Ross _v.

, 252 Md. 497, 250 A.2d

Montgomery County

635 (1968); and Richmond Corp. v. Board of

County Commissioners for Prince George’ s

County, 254 Md. 244, 255 A.2d 398 (1969)

which state the requirements for acquiring

a vested right: 1) possession of a permit

and 2) knowledge of the use by the

neighborhood.

Using the permit/knowledge of the

neighborhood test, it is again evident

that Gertz has a cognizable property

interest rooted in state law. As Judge

Duckett found, it is undisputed that the

County granted express permission and

allowed the filling activities under the

1985 Consent Agreement and 1988 Contract.

It is also "undisputed," wrote Judge

Duckett, "that Gertz has engaged in the

filling activities permitted by the

Consent Agreement continuously from the

date of the Consent Agreement."

(Appendix, p. A.42)

Thus, the two requirements set forth

in Ross, supra., and rephrased in Sunrise,

~-permission and neighborhood

knowledge of the use--are satisfied and,

as Judge Duckett ruled, Gertz "has a

vested right in the filling activities

permitted in the Consent Agreement."

It is also the law of Maryland that a

law affects substantive rights when the

15

terms of a contract are altered. State

, 278 Md.

120, 360 A.2d 1 (1976) At least twice,

once in the County's Motion to Dismiss and

again in its Memorandum in Opposition to

Plaintiff's Motion for Summary Judgment,

the County acmitted that with the

enactment of Bill 28-90, the agreement

between the parties was altered.

Therefore, by its own admission, the

County's enforcement of Bill 28-90 against

Gertz affected his substantive rights by

altering the parties' agreements.

When Maryland state law concerning

vested rights is applied in this case, the

only conclusion one can draw is that

Gertz' property interest is, in fact,

"rooted in state law" and is a

constitutionally protected vested property

interest’ which the State of Maryland

failed to protect.

Abuse of Power

"The touchstone of due process is

protection of the individual against the

arbitrary exercise of the powers of

government." Biser, supra. at 778 F.Supp.

253 (citations omitted).

In short, the doctrine of

substantive due process is a

constitutionally imposed

limitation, see R n f Un

h Ewing, 474 U.S. 214,

229, 106 S.Ct. 507, 515, 88

L.Ed.2d 523 (1985) (Powell, J.,

concurring), which is intended

only "to prevent government

16

‘from abusing [its] power, or

employing it as an instrument of

oppression.’ " j j

, 503 U.S. 115,

126, 112 S.Ct. 1061, 1069, 117

L.Ed.2d 261 (1992) (quoting

DeShaney v. Winnebago County

Dep't of Soc. Servs., 489 U.S.

189, 196, 109 S.Ct. 998, 1003,

103 L.Ed.2d 249 (1989).

In this case, the undisputed facts

amply demonstrate the burdensome,

unreasonable and oppressive measures the

County was willing to impose on Gertz

despite their agreements. Rather than

appeal Judge Wolff's decision, the County

decided it could get what it wanted

another way--legislative action. Rather

than go through months of the judicial

process, the County decided to create,

enact and enforce Bill 28-90, an

"emergency" ordinance which by design

would force Gertz to stop his filling

activity and could be instituted against

him within four months of Judge Wolff’s

decision.’

IMaryland’s Court of Special

Appeals has ruled in Holmes v.

Maryland Reclamation Associates, Inc.,

90 Md.App. 105, cert. dismissed 328

Md. 229 (1992) that the State of

Maryland has preempted the field in

granting or denying permits for solid

waste management systems such as

rubble landfills, and that a county

may not usurp the State’s permit

granting process. Since Bill 28-90

purported to allow the County to grant

17

Bill 28-90 applies to sanitary

landfills "operated solely for’ the

disposal of rubble"; requires the land

area to be "at least 100 acres" if zoned

RA; requires "fencing and screening that

is at least six feet high"; calls for

engineering plans and material; large bond

and permit fees; limits work hours;

requires wheel washers, daily inspections,

building and location restrictions; and

grants to the County, without compensation

to the landowner, "a recreation or ope

space easement." (Appendix, pp. A.66-68)

It is undisputed that Gertz' farm

property, a continuing family enterprise,

is not operated "solely for the disposal

of rubble" and that the entire acreage is

not 100 acres but less than 87, the fill

area being only about two acres. Thus,

the County's enforcement of Bill 28-90

a permit for a rubble fill, Bill 28-90

would also appear to be invalid on those

separate grounds. This issue was raised

in an Amicus brief in this case, but was

not referred to, nor was it made a part

of, the Court of Appeals decision.

¢ It is interesting to note that in

its Answers to Interrogatories, the County

could list only five other persons or

entities besides Gertz who were affected

by Bill 28-90. All were commercial

landfill operators and none of those

listed were farmers who had agreements

with the County. NO permits were ever

issued pursuant to this "emergency" known

as Bill 28-90.

18

against Gertz entirely prohibited Gertz'

vested use under the 1985 Consent

Agreement and 1988 Contract since Gertz’

property cannot qualify for such use under

Bill 28-90. The Court of Appeals of

Maryland completely ignored this fact in

its holding when it stated, "He was

subject to the Ordinance and failed to

obtain a sanitary landfill permit."

(Appendix, p. A-19) The Court of Appeals

incorrectly held that Gertz could obtain a

permit and continue filling ravines on his

property.

The County enacted and applied this

"Catch-22" ordinance to Gertz with full

knowledge that 1) application of Bill 28-

90 to Gertz was in contravention of Judge

Wolff's unappealed holding aand_ the

County's own agreements with Gertz, and 2)

that even if Gertz attempted to comply, he

would not be able to meet the requirements

and obligations of the new law which the

County imposed while acting under color of

state law. Gertz' refusal to comply or

his willingness to comply would yield the

same result: the complete prohibition of

Gertz' filling activity despite the

County's contractual obligations, and the

inevitable economic loss to Gertz. See

U.S. v. Locke, 471 U.S. 84, 107 S.Ct.

1785, 85 L.Ed.2d 64, 82 (1985) (with

respect to vested property rights, a

legislature has power to impose new

regulatory constraints as long as_ the

constraint or duty imposed is a reasonable

restriction designed to further

legislative objectives) In Locke, the

restrictions were minimal; in the instant

case, the new regulatory constraints were

19

completely prohibitive of Gertz' vested

rights.

In addition, recent Supreme Court

cases have held that the sort of public

recreational easement that the County

required permit holders to grant to the

County under Bill 28-90 constitutes an

unconstitutional taking under the Fifth

Amendment. As the Court noted in Dolan

vy. City of Tigard, 512 U.S. » 129

L.Ed.2d 304, 114 S.Ct. 2309 (1994), the

"right to exclude others is one of the

most essential sticks in the bundle of

rights that are commonly characterized as

property." Id., at 129 L.Ed.2d 316,

citation omitted. The Court found that,

by the City imposing a _ recreational

easement similar to that required by Bill

28-90, Dolan's right to exclude "would not

be regulated, it would be eviscerated."

Id. at 322. In fact, Bill 28-90 required

a recreational easement over the entire

Gertz property while in Dolan the easement

only affected a fifteen foot strip of land

making this taking more severe. Id. at

313. The Court also concluded that there

was no nexus between the required easement

and the legitimate state interest involved

and that the state had the burden to prove

that nexus. Id. at 322-323; see also

dissents of Justice Stevens, at 325, and

Justice Souter, at 334. "The evident

constitutional propriety [of exercise of

the police power} disappears ... if the

condition substituted for the prohibition

utterly fails to further the end advanced

as the justification for the prohibition."

n iforni

483 U.S. 835, 107 S.Ct. 3141, 3148, 97

L.Ed.2d 677 (1987).

20

In the present case, the County's

interest in regulating commercial

landfills to protect the environment had

no reasonable relationship, no nexus, to

its requirement that Gertz' entire private

farmland and future horse ranch be

permanently dedicated to the public's

recreational use. This taking of an

easement, though a secondary issue because

Gertz never applied for a permit, extends

beyond Gertz' real property; the County

did succeed in a taking of Gertz' permit

and did enjoin a vested use of property

under guise of the police power. Scott,

supra, at 1421. (where a previously valid

permit has issued and construction begun,

a subsequent rezoning that effectively

revokes permission to build is a

confiscatory taking of the permit itself)

(Citations omitted)

Although the County has consistently

argued that its actions against Gertz were

merely a reasonable exercise of police

power, the police power is not an

unbridled exercise giving counties the

authority to transcend the state and

federal constitutions, the highest law.

"If a statute purporting to have been

enacted to protect the public morals or

safety is a palpable invasion of rights

secured by fundamental law, then effect

must be given to the Constitution."

P ; -a-Lot,

270 Md. 103, 322 A.2d 242 (1973); Edgewood

Nursing Home v. Maxwell, supra at 427;

see also Dolan v. City of Tigard and

Nollan _v,. California Coastal Commission,

Supra.

In this case, the County enforced new

21

zoning legislation through injunctive

action which resulted in the immediate

cessation of a nonconforming use otherwise

lawful. Such action is unreasonable and

unconstitutional. Grant S, Siee of

Baltimore, 212 Md. 301 (1957). There is

no dispute that Gertz' activity

constitutes a nonconforming use since the

County admitted such in its Brief in the

court below. The Court of Appeals,

however, ignored this argument and failed

to even mention the relevance of Gertz'

activity as a nonconforming use. The case

of =

Missouri, 747 F.Supp. 1340 (1990) is very

much on point in this regard and supports

Gertz' position that the County's

injunctive action against him was

arbitrary and capricious and violated his

substantive due process rights. and,

therefore, violated 42 U.S.C. §1983. In

fact, Gertz' case is even stronger since

the City in Browning-Ferris did not

require the operation of the landfill to

stop as the County was able to accomplish

in the instant case for a period of 17

months, a deprivation not lifted until

Judge Duckett's Order on February 19,

1992. (Appendix, p.p. A.38-43) By that

time, however, the damage was done; Gertz'

substantive due process rights were

violated by the action of the County, his

income was substantially reduced, his farm

property, in particular a pond, was

severely eroded and damaged because Gertz

was enjoined from bringing in fill

necessary to complete erosion control on

the pond. That damage was later repaired

at great expense to Gertz.

22

CONCLUSION

Although the facts of Mr. Gertz’

struggle with the County may be unique,

the situation described to this Court is

fully capable of repeating itself,

especially in the State of Maryland since

the Court of Appeals decision destroys any

hope that 42 U.S.C. §1983 is taken

seriously or has any effect within

Maryland’s boundaries. In this case, Anne

Arundel County and the State of Maryland

should be held fully accountable for a

blatant abuse of power and wrongful,

arbitrary treatment of Gertz under 42

U.S.C. Section 1983. The standard of

entitlement, set forth in the cases cited

in this Petition, supports Gertz’ claim

that he has a= protectible property

interest rooted in state law. The actions

and admissions of the County amply

demonstrate that it orchestrated

legislation which completely prohibited a

valid vested use of property specifically

agreed to.

WHEREFORE, Petitioner Gertz

respectfully prays that a Writ of

Certiorari be granted.

eae

— ee W/L

James L. Mayer, Counsel of cord

10805 Hicko Ridge Road

Suite 200

Columbia, Maryland 21044

(410) 740-9401

23

d A ahha Beet Leet ei td = oe lh a

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1995

ROBERT E. GERTZ, Petitioner

Vv.

ANNE ARUNDEL COUNTY, MARYLAND, Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF APPEALS OF MARYLAND

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

James L. Mayer

Counsel of Record

Susan S. James Mayer

10805 Hickory Ridge Road

Suite 200

Columbia, Maryland 21044

(410) 740-9401

Appendix:

A.

B.

J.

K.

L.

Opinion of the Court of

Appeals of Maryland .... . A.1

Opinion of the Court of

Special Appeals of Maryland . A.21

Judgment of Judge Bruce C.

Williams, Circuit Court

for Anne Arundel County,

Maryland .....++++-+-- A.33

Opinion and Order of Judge

Warren B. Duckett, Jr.,

Circuit Court for Anne

Arundel County, Maryland... A.38

Order of Judge Eugene M.

Lerner Modifying Injunction,

Circuit Court for Anne

Arundel County, Maryland... A.44

Interlocutory Injunction

of Judge Eugene M. Lerner,

Circuit Court for Anne

Arundel County, Maryland oie

Ex Parte Injunction, Circuit

Court for Anne Arundel County,

MemviamG «+ 2.0.2 + 6:0 «© « + ASD

Opinion of Judge Martin A.

Wolff, Circuit Court for Anne Arundel

County, Maryland.......- A,.50

Bill No. 28-90, April 23, 1990,

County Council for Anne Arundel

County, Maryland.......- A.58

1985 Consent Agreement .... A.71

19886 Contract ..-+-+-+« « « » A.74

Letter of June 4, 1990... . A.85

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

661 A.2d 1157

Robert E. GERTZ

v

ANNE ARUNDEL COUNTY, Maryland

No. 13, Sept. Term, 1994

Court of Appeals of Maryland

July 21, 1995

Landowner sought declaratory and other relief from

application of new sanitary landfill ordinance to his

property, which he was filling with rubble for agricultural

purposes. County counterclaimed for injunctive relief.

The Circuit Court, Anne Arundel] County, Warren B.

Duckett, Jr., J., entered partial summary judgment for

landowner on declaratory judgment count, finding that he

had vested right under earlier consent agreement to fill

land, but the Circuit Court, Bruce C. Williams, J., granted

final judgment in favor of county, ruling on all issues in

case and determining that landowner’s filling of property

went beyond farming activity permitted by consent

agreement. The Court of Special Appeals, 98 Md.App.

734, 98 Md.App. 738, reversed and remanded. Landowner

petitioned for certiorari, and county cross-petitioned. The

Court of Appeals, Raker, J., held that: (1) earlier

determination in contempt proceeding on consent

agreement did not have res judicata effect barring counter-

claim for injunctive relief; (2) initial partial summary

judgment order did not bar contrary ruling regarding

application of ordinance in final judgment under law of

case doctrine; and (3) landowner had no claim under §

1983.

Judgment of Court of Special Appeals affirmed in

part, reversed in part and remanded.

Al

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

1. Judgment 713(2), 720

Doctrine of res judicata bars litigation of cause of

action or claim after it has already been or could have

been decided.

2. Judgment 552

Res judicata did not bar county from seeking injunctive

relief to enforce newly enacted sanitary Jandfil] ordinance

on basis of earlier contempt proceeding in which court

determined that landowner’s filling activity was farming

and did not violate consent agreement with county, which

prohibited other dumping. Anne Arundel, Md., County

Code, art. 14, §§ 4-101 to 4-109; art. 28, §§ 1-101(55B, 57),

11-112(a), 12-242.

3. Judgment 301

Order that does not adjudicate al] claims in action or

that adjudicates less than entire claim, or that adjudicates

liabilities of fewer than all parties to action is not final

judgment and may be revised at any time before entry of

final judgment. Md. Rule 2-602(a).

4. Courts 99(3)

Law of case doctrine did not preclude second trial

court from ruling, contrary to first trial court, which

adjudicated only landowner’s declaratory judgment claim

on motion for partial summary judgment, that sanitary

landfill ordinance applied to landowner’s dumping

activities where first trial] court did not adjudicate all

claims in action and thus did not enter final judgment.

Md.Rule 2-602(a). |

A2

GERTZ v. ANNE ARUNDEL COUNTY

(339 Md. 261 (1995).]

5. Civil Rights 130

Eminent Domain 2(1.2)

Landowner did not have § 1983 claim arising from

enactment and application of sanitary landfill ordinance to

his property following entry of consent decree permitting

him to fill land with rubble for agricultural purposes;

consent agreement with county did not entitle landowner

to exemption from future legislation regulating all sanitary

landfills, and thus county did not effect unconstitutional

taking of his property. U.S.C.A. Const.Amends. 5, 14; 42

U.S.C.A. § 1983; Anne Arundel, Md., County Code, art.

14, $§ 4-101 to 4-109, art. 28, §§ 1-101(55B, 57), 11-112(a),

12-242.

Susan S. James Mayer (James L. Mayer, on brief),

Columbia, for petitioner.

Francis M. Gasperich, Crownsville, for amicus

curiae.

Judson P. Garrett, Jr., County Atty. (Robert M.

Pollock, Sr. Asst. County Atty., on brief), Annapolis, for

respondent.

Argued before MURPHY, C.J., AND ELDRIDGE,

RODOWSKY, CHASANOW, KARWACKI, BELL and

RAKER, JJ.

RAKER, Judge.

In this case we are asked to decide whether the

conduct of Anne Arunde] County in enacting and

enforcing an ordinance regulating sanitary landfills, passed

A3

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

as emergency legislation after a judgment in favor of a

landowner against Anne Arundel County, gives rise to a

cause of action under 42 U.S.C. § 1983 (1988). We must

also decide whether, under the doctrine of res judicata, the

judgment bars Anne Arundel County from subsequently

applying the ordinance to land filling activity on the

property. We answer both questions in the negative.

I.

This appeal arises out of an action for declaratory

and other relief filed by Robert E. Gertz ("Gertz") in the

Circuit Court for Anne Arundel County. He sought a

declaratory judgment that Bill No. 28-90 ("the Ordinance"),

entitled "AN EMERGENCY ORDINANCE concerning:

Zoning and Environmental Health-Applications for

Sanitary Landfills, including Rubble Landfills," does not

apply to his land filling activity. In response, Anne

Arundel County ("the County") filed a counterclaim

seeking an injunction to enjoin Gertz’s activities until he

obtained a landfill permit required by the Ordinance.

The land filling activity at issue here involves

Gertz’s plan to establish a farm on his property in Anne

Arundel] County to be used as a horse boarding operation.

To that end, he was filling ravines on his property with raw

tree materials to establish pasture land. The fees he

charged others to accept their organic fill served as his

primary source of income.

The present suit over whether the Ordinance

applies to Gertz is rooted in two earlier events. First, in

1985, the parties settled a grading permit dispute by

entering into a Consent Agreement (the "Agreement") that

A4

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

allowed Gertz to dump, place, dispose, or otherwise store

on his land loads from off-site of raw tree material for his

farming and/or personal use.’ It stated in pertinent part:

1. That [Gertz], except for his and/or occupant’s

farming and/or personal use, shall not dump, place, dispose,

or otherwise store any bulk loads from off-site of raw tree

material consisting of root material, brush, tree limbs and

stumps or otherwise dispose or store any rubble

originating off-site on the Property which is the subject of

this proceeding, unless otherwise or subsequently

specifically permitted by law.

* - - * - ” *

7. That this Consent Order shall be binding on the

heirs, assigns and successors in interest of the parties.

(Emphasis added.) Gertz and the County later agreed to

a slight modification of the Agreement following continued

disputes and erosion problems.

Second, in 1989, after a dispute arose between the

parties as to the nature of Gertz’s activities under the

Agreement, the County filed a Petition for Contempt in

the Circuit Court for Anne Arundel] County. On

December 21, 1989, the Honorable Martin A. Wolff found

' The County had filed a grading permit

enforcement action against Gertz, alleging that he was

engaged in unpermitted grading and filling on the

property. Gertz denied liability and claimed an

agricultural exemption.

A5

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

Gertz not in contempt, ruling that his land filling activity

was farming and permissible under the Agreement ("the

Wolff decision").

On April 23, 1990, the County enacted Bil] No. 28-

90, "[a]n emergency ordinance," which amended Articles

14 and 28 of the Anne Arundel County Code and created

new requirements for sanitary landfills. See Anne Arunde]

County Code Art. 14, §§ 4-101 to 4-109 1987-1993

(Environmental Health), Art. 28, §§ 1-101(55B), 1-101(57),

11-112(a), 12-242 1993-1994 (Zoning). Specifically, the

definition of "sanitary landfill" was modified to include the

planned disposal of "rubble." Jd. art. 14, § 4-101(f)(2).

Rubble is defined, in part, as stumps, brush, roots and

topsoil. See C.O.M.A.R. 26.04.07.11B, 26.04.07.13B. Thus,

rubble includes the raw tree materials that Gertz was using

to fill his ravines.

Gertz was advised in a letter dated June 4, 1990,

that he was using his property as a "rubble landfill" and

that he was required by the new Ordinance to obtain a

sanitary landfill permit to continue this use. He then filed

a declaratory judgment action, and the County responded

with a counter-claim for injunctive relief.

After the circuit court issued an interlocutory

injunction, Gertz filed an Amended Complaint containing

four counts. Count One, claiming breach of contract (of

the Consent Agreement), alleged that the County

breached its contract with him by enacting legislation and

pursuing injunctive relief that prohibited his land filling

activity. He averred that his activities constituted farming,

as previously determined by the circuit court (the Wolff

decision), and, as such, are his contractual right. In Count

A6

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

Two, specific performance, Gertz asked the circuit court

to order the County to specifically perform its contract by

allowing him to continue his filling activity without the

necessity of a sanitary landfill permit. In Count Three, the

declaratory judgment claim, Gertz asked the court to

declare that "[his] fill activities are allowable by law and

under the Contract; the [he] need not obtain a permit

under Bill 28-90; that retroactive application of Bill No.

28-90 is a violation of [his] constitutional rights; [and] that

requiring [him] to obtain a permit and [the County’s] work

stoppage is an unconstitutional taking of [his] property."

Finally, in Count Four, invoking U.S.C. § 1983, Gertz

averred that as a result of the County’s enactment of the

Ordinance and subsequent injunctive action, the County

unconstitutionally impaired his contract rights and violated

his property rights under the Due Process Clause of the

Fourteenth Amendment of the U.S. Constitution and

Article 24 of the Maryland Declaration of Rights.”

Both parties filed motions for summary judgment.

The circuit court, the Honorable Warren B. Duckett, Jr.,

presiding, found in favor of Gertz on the declaratory

judgment count, and issued an order stating that Gertz

had a vested right in his land filling activities and that the

County was estopped from enforcing the Ordinance

against him ("the Duckett decision"). The interlocutory

injunction was dissolved. Judge Duckett did not, however,

address the breach of contract claim or the 42 U.S.C. §

1983 claim.

2 At oral argument before this Court, Gertz expressly

stated that he is not alleging a violation of the Contract

Clause of the U.S. Constitution.

A7

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

The matter was then set before the Honorable

Bruce C. Williams, who granted final judgment in favor of

the County. Judge Williams ruled that all of the issues in

the case, liability as well as damages, were before him.

Following an evidentiary hearing, and contrary to the

ruling of Judge Duckett, Judge Williams concluded that

the provisions of the Ordinance applied to Gertz. He

ruled that the Consent Agreement did not permit Gertz to

run a commercial landfill for profit, and found that his

filling activity went beyond farming and constituted a

commercial landfill operation. Finding no breach of the

Consent Agreement, Judge Williams concluded there was

no interference with a vested right and thus no proof of a

claim under 42 U.S.C. § 1983.

Gertz appealed and, in an unreported opinion, the

Court of Special Appeals held (1) that the 1989 Wolff

decision was res judicata as to the issues before Judge

Williams, and (2) that 42 U.S.C. § 1983 is inapplicable in

this case. According to the intermediate appellate court,

the only issues before Judge Williams were whether, as a

result of the acts by the County, damages could be

awarded under either breach of contract or § 1983. The

court reasoned that res judicata barred Judge Williams

from reconsidering that nature of Gertz’s filling activity,

i.e., whether he was running a landfill or whether he was

farming. The court concluded that because Gertz’s

activities had not changed since Judge Wolff found that he

was farming, the only issue before Judge Williams was

whether the agreement had been breached and, if so, the

nature of the damages. Those issues were remanded to

the circuit court. In addition, the Court of Special Appeals

found that based on the law of the case doctrine, the

Duckett decision that the Ordinance did not apply to

A8

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

Gertz precluded Judge Williams from revisiting that

question. Having concluded that the Ordinance did not

apply to Gertz, the court found § 1983 inapplicable in this

case.

We granted Gertz’s petition for a writ of certiorari

on the 42 U.S.C. § 1983 claim and the cross-petition of the

County on the applicability of the doctrine of res judicata.

We shall first consider whether the Court of Special

Appeals erred in holding that under the doctrine of res

judicata, the Wolff decision barred the County from

regulating the disposal of rubble on Gertz’s farm.

II.

A.

Gertz’s argument that res judicata in the case sub

judice starts with the Wolff decision. In 1989, Judge Wolff

ruled that Gertz was not in contempt of court. In his

opinion, he stated:

Now, I can see where the County’s

going. The County’s saying, you are running

a landfill, not farming. That’s basically the

County’s position, is it not?

Following the County’s agreement, the court continued:

Okay. If that is the problem, then

they can pass ordinances, requiring any off-

site filling, whether it be for farming or not,

over two truckloads, or whatever it be,

needs a permit. But, they’re trying to do it

AQ

GERTZ v. ANNE ARUNDEL COUNTY

(339 Md. 261 (1995).]

in another way, which is not reasonable.

Because, at least in this case, he’s allowed to

farm. And, that was an exception that’s cut

off. So, if the County wants to stop this

practice, it may be a good idea, if that’s what

they want to do, or to control the practice, is

to have some ordinance which would control

it, This Consent Agreement does not. It calls

for farming.

(Emphasis added.)

Gertz argues that res judicata should be applied to

bar the County’s counterclaim before Judge Williams in

1992 because it is the same claim decided by Judge Wolff

in 1989. He interprets the Wolff decision as a finding that

he was not operating a commercial sanitary landfill

requiring a permit. He maintains, moreover, that the

Consent Agreement allows him to place on his land off-

site tree materials for farming. Because his land filling

activity has not changed, he argues that the County’s

counterclaim is but another attempt to force him to apply

for a commercial sanitary landfill permit.

He maintains that in the 1989 action, the County

argued that he was running a landfill, and Judge Wolff

concluded that he was farming. Therefore, the court

implicitly found that he was not running a landfill. He

maintains that the purpose of the County has always been

to regulate his activities as a landfill, that the County’s

claims arise from the same transaction, and that only the

County’s legal theory has changed, nothing else.

He argues that the County’s two claims are the

same based on the same evidence test or the transaction

A10

ee en ee

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

test of the Restatement (Second) of Judgments. He claims

the same evidence would sustain the present action and

the 1989 action. He also argues that the evidentiary facts

in both actions constitute a series of connected

transactions. He maintains that the only distinguishing

factor between the present litigation and the 1989 action

is the County’s attempt to use a different ordinance to

regulate his land filling activities, i.e., Bill No. 28-90 rather

than the grading permit ordinance. He asserts that res

judicata bars the County from again arguing that his

conduct constitutes the operation of a commercial landfill,

that he is not farming, and that he must therefore obtain

a permit.

B.

[1} The doctrine of res judicata bars the litigation

of a cause of action or claim after it has already been or

could have been decided. See De Leon v. Slear, 328 Md.

569, 580, 616 A.2d 380, 385 (1992). The rule of res

judicata was set forth in Alvey v. Alvey, 225 Md. 386, 390,

171 A.2d 92, 94 (1961), as follows:

a judgment between the same parties and

their privies is a final bar to any other suit

upon the same cause of action, and is

conclusive, not only as to all matters that

have been decided in the original suit, but

as to all matters which with propriety could

have been litigated in the first suit.

In DeLeon, 328 Md. at 580, 616 A.2d at 385, this Court

restated the elements of the traditional principle of res

judicata:

All

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

[1] the parties in the present litigation

should be the same or in privity with the

Parties to the earlier case; (2) the second

suit must present the same cause of action

or claim as the first; and (3) in the first suit,

there must have been a valid final judgment

on the merits by a court of competent

jurisdiction.

[2] The focus of this controversy is on the

second element of res judicata: whether the

claim presented before Judge Williams is

the same "claim" or "cause of action"

presented to and decided by Judge Wolff.

If they are the same, res judicata bars the

County from proceeding before Judge

Williams. In Kent County Bad. Of Educ. v.

Bilbrough, 309 Md. 487, 499, 525 A.2d 232,

238 (1987), we adopted the transaction test

of § 24 of the Restatement (Second) of

Judgments as the basic test for determining

when two claims or causes of action are the

same for purposes of res judicata. We

quoted § 24(2) with approval:

What factual grouping constitutes a

"transaction", and what groupings constitute

a "series", are to be determined

pragmatically, giving weight to such

considerations as whether the facts are

related in time, space, origin, or motivation,

whether they form a convenient trial unit,

and whether their treatment as a unit

conforms to the parties’ expectations or

business understanding or usage.

Al2

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

Bilbrough, 309 Md. at 498, 525 A.2d at 238. Applying the

Bilbrough factors, and reviewing the two claims from a

transactional analysis approach, we conclude that the claim

raised in the second action, the action before Judge

Williams, was not the same as the claim decided in the

prior adjudication, the action before Judge Wolff. They

are separate transactions.

We shall first address whether the facts are related

in time, space, Origin, or motivation. The conduct

complained of by the County occurred at different times.

The counterclaim addressed Gertz’s failure to obtain a

landfill permit following the enactment of the Ordinance

in 1990, while the contempt action addressed Gertz’s filling

activity in 1989 under the Consent Agreement. Both of

the County’s claims relate to the same space, focusing on

the filling activity on Gertz’s property in Anne Arundel

County. Nevertheless, the County’s claims originated from

different sources. Significantly, the theory of liability in

the instant action did not exist when the earlier suit was

litigated; thus, Gertz’s argument that the counterclaim is

barred because the County merely changed its legal theory

is inapposite. Although res judicata generally bars a

second suit based on a different legal theory applied to the

same set of facts previously litigated, that rule does not

apply here because it assumes that the second theory of

liability existed when the first action was litigated. See

Bilbrough, 309 Md. at 495-97, 525 A.2d at 236-37. When

the contempt action was litigated, the County had no right

to proceed against Gertz under the Ordinance because it

had not yet been enacted.

In terms of motive, the County’s two claims were

motivated by different consideration. In the contempt

Al3

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

action, the County sought to enforce the Consent

Agreement and to regulate activity related to land grading.

It was not an attempt to regulate Gertz’s activities as a

sanitary landfill requiring a landfill permit. The motive of

the County in the instant action, by contrast, was to enjoin

Gertz’s activities only until such time as he obtained a

landfill permit in compliance with the requirements of the

Ordinance. The motive of the County in enacting the

Ordinance was stated in the findings of fact of Bill No. 28-

90; the existing regulation of sanitary landfill operations,

particularly rubble landfills, was inadequate, requiring the

adoption of interim regulations,’ effective for one year, to

ensure orderly development of sanitary landfills, including

rubble landfills. The recital went on to state that this

regulation was necessary to protect and promote the

health, safety, and welfare of the citizens of Anne Arundel]

County. Based on these interests, the County filed the

counterclaim to enjoin Gertz’s land filling activity only

until such time as he complied with the new law.

We shall next consider whether the facts form a

convenient trial unit. The County’s present and prior

claims would not have formed a convenient trial unit in

the earlier litigation because the County’s rights under the

Ordinance did not exist until April 23, 1990, and therefore

could not have been litigated in the contempt action in

* Section 3 of the Ordinance reads as follows:

That the provisions of this Ordinance

shall be applicable for one year after

the effective date of Bill 28-90 and

Shall expire thereafter without any

further action of the County Council.

Al4

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

1989.

Finally, we shall address whether treating the facts

as separate trial units conforms to the parties’ expectations

or business understanding or usage. Certainly the County

did not consider the Wolff decision to exempt Gertz from

all future regulations relating to sanitary landfills. Gertz

could not have expected that the Wolff decision

determined that he was not running a sanitary landfill, or

that it exempted him from future sanitary landfill

regulations. Significantly, Judge Wolff expressly indicated

that his decision was not intended to affect the County’s

ability under its police power to adopt prospective

legislation that regulated activity like Gertz’s as a sanitary

landfill. We find that Judge Wolff only decided that Gertz

was farming and did not determine whether he was

running a sanitary landfill.

We conclude that Gertz could not have expected

the Consent Agreement to exempt him from a sanitary

landfill permit requirement enacted pursuant to a

legitimate exercise of the governmental power.

Furthermore, the counterclaim of the County for injunctive

relief to enforce the Ordinance is not the same claim that

was litigated in the contempt action. Accordingly, the

doctrine of res judicata does not bar the County from

proceeding before Judge Williams.

Ii.

The Court of Special Appeals also found that the

Duckett decision "became the law of the case," and

concluded that as a result, Judge Williams was barred

from considering whether the Ordinance applied to Gertz’s

Al5

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

activities. We disagree. The order of Judge Duckett was

not the law of the case and was subject to revision under

Maryland Rule 2-602(a).‘ Thus, Judge Williams was not

precluded by the order from applying the provisions of the

Ordinance to Gertz.

[3] Maryland Rule 2-602(a) makes clear that an

order that does not adjudicate all of the claims in an

action, or that adjudicates less than an entire claim, or that

adjudicates the liabilities of fewer than all the parties to

the action is not a final judgment and may be revised at

any time before the entry of a final judgment. See

Rohrbeck v. Rohrbeck. 318 Md. 28, 44, 566 A.2d 767, 775

(1989) (until there is a final judgment, under Maryland

Rule 2-602, all prior ruling remain interlocutory and

subject to revision). We have held, moreover, that "[a]s a

general principle, one judge of a trial court ruling on a

“ Maryland Rule 2-602 provides in pertinent part:

(a) Generally.--Except as provided in section

(b) of this Rule, an order or other form of decision,

however designated, that adjudicates fewer than all

of the claims in an action (whether raised by

original claim, counterclaim, cross-claim, or third-

party claim), or that adjudicates less than an entire

claim, or that adjudicates the rights and liabilities of

fewer than all the parties to the action:

(1) is not a final judgment;

(2) does not terminate the action as to any

of the claims or any of the parties; and

(3) is subject to revision at any time before

the entry of a judgment that adjudicates all of the

fewest claims by and against all of the parties.

Al6

ey ee ae re heel ni 1 SOTA AI oe

eee te ee ae

Reith dethircder

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

matter is not bound by the prior ruling in the same case by

another judge of the court; the second judge, in his

discretion, may ordinarily consider the matter de novo."

State v. Frazier, 298 Md. 422, 449, 470 A.2d 1269, 1283

(1984).

[4] The Duckett decision falls within the terms of

Rule 2-602(a). The order did not address Gertz’s claims

for breach of contract or violation of § 1893, nor the

County’s request for authorization to inspect Gertz’s

property to ensure his compliance with the Consent

Agreement. On Gertz’s claim for declaratory judgment,

the order did not address whether the Ordinance was

applied retroactively in violation of his constitutional

rights, or whether the requirement that Gertz obtain a

permit under the Ordinance and the County’s application

for an injunction for his failure to do so effected an

unconstitutional taking of this property. Judge Duckett

also did not reach the question of damages and he did not

purport to grant final judgment to Gertz. See Rohrbeck,

318 Md. at 41, 566 A.2d at 773. Thus, Judge Williams was

free to apply the Ordinance to Gertz.

IV.

[5[ Finally, we shall consider whether the actions

of the County give rise to a cause of action under 42

U.S.C. § 1983.5 Judge Williams found that Gertz suffered

5 42 U.S.C. § 1983 provides in pertinent part:

Every person who, under color of any

statute, ordinance, regulation, custom, or

Al7

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

no constitutional deprivation and was therefore not

entitled to damages under § 1983. We agree. The Court

of Special Appeals found:

Based upon the ruling by Judge

Duckett, which became the law of the case,

that the ordinance was not applicable to the

Gertz situation because of Judge Wolff's

“farming operation" ruling, we hold that 42

U.S.C. § 1983 does not apply to the matter

at bar. Although the County may have

attempted to divest the right of Gertz to

conduct filling activities on his property for

agricultural purposes, that particular statute

was ruled not to apply to the Gertz

operation.

Although we find that the Ordinance applies to Gertz’s

land filling activity, we affirm the holding of the

intermediate appellate court that Gertz is not entitled to

damages under § 1983.

Gertz does not contend that the County lacked the

power to enact the Ordinance, nor does he attack the

usage, of any State...subjects, or causes to

subjected, any citizen of the United

States...to the deprivation of any rights,

privileges, or immunities secured by the

Constitution and laws, shall be liable to the

party injured in an action at law, suit in

equity, or other proper proceeding for

redress.

A18

ee een ee ae

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).]

validity of the Ordinance facially. He only argues that, as

applied to him, the new sanitary landfill law is

unconstitutional. His argument is that, because the

farming provision of the Consent Agreement and the

Wolff decision concern the same land filling activity

regulated under the Ordinance, the County’s efforts

breached the Agreement, violated his right to substantive

due process, and effected a taking of the equivalent of a

permit to fill his land with raw tree materials, thus giving

rise to a cause of action under 42 U.S.C. § 1983. We

disagree.

Gertz does not have a cause of action under § 1983

for a violation of his constitutional rights. He was subject

to the Ordinance and failed to obtain a sanitary landfill

permit. The actions of the County did not effect an

unconstitutional taking of property because the Consent

Agreement never entitled Gertz to an exemption from

future legislation which was validly enacted under

governmental power to regulate all sanitary landfills in

Anne Arundel County. We therefore deny Gertz’s § 1983

claim.

In sum, we hold that neither the doctrine of res

judicata nor the Duckett decision barred the application of

the Ordinance to the activity of Robert E. Gertz. We also

hold that the actions of the County do not give rise to a

cause of action under 42 U.S.C. § 1983.

JUDGMENT OF THE COURT OF SPECIAL

APPEALS AFFIRMED IN PART, REVERSED IN PART.

CASE REMANDED TO THAT COURT WITH

INSTRUCTIONS TO REINSTATE THE JUDGMENT OF

THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY.

A19

GERTZ v. ANNE ARUNDEL COUNTY

[339 Md. 261 (1995).}

COSTS IN THIS COURT AND IN THE COURT OF

SPECIAL APPEALS TO BE PAID BY

APPELLANT/CROSS-APPELLEE GERTZ.

A20

Ce ee

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 194

September Term, 1993

ROBERT E. GERTZ

V.

ANNE ARUNDEL COUNTY,

MARYLAND

Garrity,

Alpert,

Cathell,

JJ.

Per Curiam

Filed: December 8, 1993

Although the present appeal is from the denial

of a breach of contract claim brought by Robert E.

Gertz (Gertz) against Anne Arundel County (County),

the actual dispute revolves around whether a county

landfill ordinance passed as “emergency legislation” by

the County four months after a 1989 judgment in

A21

favor of Gertz against the County, applied to

landfilling operations on the Gertz property.

Prior to the 1989 Judgment, a Consent

Agreement,’ and a subsequent written amendment

were entered into between Gertz and the County

that allowed Gertz to use off-site organic rubble

consisting of raw tree and root material, brush, tree

limbs and stumps to fill ravines on his farm for the

purpose of attaining pasture land for horses. After

passage of the ordinance, however, the County

argued that Gertz’s land filling activities were

equivalent to operating a commercial landfill that the

new legislation prohibited. Gertz brought the action

at bar against the County for breach of contract and

violation of his rights under 42 U.S.C. § 1983 by

retroactive legislation. The Circuit Court for Anne

Arundel County (Williams, J.) granted Judgment on

behalf of the County.

FACTS

Gertz owns property in Anne Arundel County

on which he isin the process of establishing a farm

to be used as a horse boarding operation. To that

end, he has been filling ravines on his property to

establish pasture land. Until he could complete the

project, the fees he charged others to accept their

Organic rubble fill served as his primary source of

income.

To gain permission for his project, Gertz and

"The "Consent Agreement" was approved by Judge

Robert H. Heller, Jr. of the Circuit Court for Anne

Arunde] County (Civil # 3107030) on August 20, 1985.

A22

aaa a

the County entered into a Consent Agreement in

1985 that allowed Gertz to fill ravines on his farm

with raw tree and root material, brush, tree limbs

and stumps or any rubble originating off-site for

Gertz’s farming and for personal use. The Consent

Agreement stated, in pertinent part:

That [Gertz], except for his and/or

deed 7

shall not dump, place, dispose, or

otherwise store any bulk loads from

off-site of raw tree material consisting

of root material, brush, tree limbs and

stumps or otherwise dispose or store

any rubble originating off-site on the

property which is the subject of this

proceeding, unless otherwise or

subsequently specifically permitted by law

That [Gertz] shall use his best

efforts to pursue development and

implementation of an _ agricultural

land management practices plan in

cooperation withthe Anne Arundel Soil

Conservation District, which shall include

the stabilization of the cited ravine area

to prevent soil loss and erosion

therefrom .. [T)his Consent order

Oe Ta rene 4

parties. (Emphasis added).

In 1988, following continued disputes and

erosion problems, Gertz and the County agreed to a

slight modification to the Consent Agreement to allow

Gertz to continue implementing his conservation and

"farm plan concerning pasture establishment” and

continue to allow only fill "composed of clearing

A23

rubble which is slash, stumps, root material and

clean earth." In addition, four feet of compacted

clean fill was to be used to cover the "top of all

material" to “allow stabilization for future pasture use."

In 1989, the county brought an action for

contempt in the Circuit Court for Anne Arundel

County against Gertz alleging that his filling activities

violated the Consent Agreement. On December 21,

1989, however, the Hon. Martin A. Wolff ruled that

Gertz was not in contempt because: the filling

activities constituted farming activities that had been

permitted under the Consent Agreement. That

judgment was not appealed by the County.

On April 23, 1990, approximately five years after

Gertz had been continuously engaged in the filling

activity permitted by the Consent Agreement, the

County enacted Bill No. 28-90, "[a]n emergency

ordinance," which amended Article 14 and 28 of the

Anne Arundel County Code and created new

requirements for sanitary landfilis. See Anne

Arundel] Co. Code, Article 14 Environmental Health

§4-101 - §4-109; and Article 28 Zoning §§1-

101(55B)(57), 11-112(a), 12-242. Specifically, the

Code was modified so that the definition of "sanitary

landfill” included the planned disposal of "rubble."

Art. 14 §$4-101(f)(2). Rubble is defined as stumps,

brush, roots and topsoil. See, Md. Regs. Code tit.

26 § 26.04.07.11B (1988) (COMAR). These were the

materials being used by Gertz, and, as such, if the

amendments applied to him, he would be required to

obtain a licensing

permit and apply for a special zoning exception.

Indeed, Gertz was advised, by letter dated June 4,

1990, that his filling and grading activities were in

violation of the new ordinance and that failure to

A24

comply could result in legal action.

Gertz filed a Complaint for Declaratory Judgment

seeking to show that Bill 28-90 was invalid as

applied to him and, because of the prior 1989 ruling,

he was not in violation of the Consent Agreement.

The County answered with a Counterclaim for

Immediate, Interlocutory, Ex Parte and Permanent

Injunctive and Other Relief. Following a hearing, an

Interlocutory Injunction was granted.

On August 14, 1990, Gertz filed an Answer

to the counterclaim and amended his declaratory

judgment complaint to also allege breach of contract,

violation of 42 U.S.C. §1983 (1981),? and specific

performance. On April 4, 1991, Gertz filed a

Motion for Summary Judgment. On April 8, the

County filed an Amended Counterclaim for

Forty-two U.S.C. section 1983 provides in pertinent

part:

Civil action for deprivation of rights

Every person who, under

color of any statute,

ordinance, regulation, custom,

or usage, of any

State...subjects...any citizen of

the United States...to the

deprivation of any rights,

privileges, or immunities

secured by the Constitution

and laws, shall be liable to the

party injured in action at law,

suit in equity, or other

proceeding for redress...

A25

permanent injunction, and on May 28, 1991, the

County filed a Motion for Summary Judgment.

The Hon. Warren B. Duckett heard both

Motions for Summary Judgment on June 18, 1991,

and finding that Bill 28-90 did not apply to Gertz’s

actions, granted his motion, thereby dissolving the

interlocutory injunction. The County filed a Motion

to Alter or Amend that was heard by Judge Duckett

on September 16, 1991. Two days later, Judge

Duckett struck his prior summary judgment ruling

leaving both motions still pending. The parties

conferred and by letter requested that the court

grant summary judgment to one or the other, as

they believed that a trial on thee merits was

unnecessary.

On February 19, 1992, Judge Duckett again

granted Summary Judgment on the declaratory

judgment count in favor of Gertz, ordering that

"Robert E. Gertz has a vested right in the filling

activities permitted in the Consent Agreement ...

[and the] County is estopped from enforcing Bill

No. 28-90 to the activities of Robert E. Gertz

that comply with the Consent Agreement."

Gertz then filed an amended Complaint and

sought anincrease in damages on his remaining

clams on breach of contract and violation of

rights under color of law (42 U.S.C, § 1983). In a

two-day hearing before the Hon. Bruce C. Williams

held on December 9 and 10, 1992, the Cour’,

argued that liability had not been determined and

that Judge Duckett’s Order of February 19 merely

determined that Gertz had a right to continue the

activities authorized by the Consent Agreement and

enjoined the County from enforcing Bill 28-90 as to

A26

his filling activities. We believe Judge Williams

properly agreed with the County as to the subject of

the hearing on the remaining counts and required

evidence on both liability and damages.

At the conclusion of Gertz’s case, Judge

Williams granted the County’s Motion for Judgment,

ruling that Gertz was not using his property for

personal or farming use, as permitted by the Consent

Agreement, but instead was operating a commercial

landfill, and that there was no proof of a 42

U.S.C. $1983 claim. It was agreed by the parties

that at no time during these related actions did

Gertz’s activities in filling the ravine area change

in nature or purpose. On appeal, Gertz brings

three issues for our review:

1. Whether Judge Williams

was barred from reaching

the issue of liability either

by the collateral estoppel

effect of the February 19,

1992 ruling of Judge

Duckett or by the December

21, 1989 decision of Judge

Wolff on the grounds of

res judicata.

y 4 Whether the court was

correct that no contract

existed between the parties.

3. Whether the court was

correct that there was no

proof of damages under a

42 U.S.C. §1983 claim.

al

A27

DISCUSSION OF LAW

Res_Judicata_and Collateral Estoppe]

In applying res judicata "[i]f the second suit is

between the same parties and is the same cause of

action, a judgment inthe earlier case on the merits

is an absolute bar, not only asto all matters which

were litigated in the earlier case, but as to all

matters which could have been litigated [res

judicata]." MPC, Inc, v, Kenny, 279 Md. 29, 32

(1977)(citations omitted).

The first of the three-pronged test in Maryland

is "was the claim in the prior adjudication identical

with the one presentedin the action in question."

Id., 279 Md. at 32-33. On December 21, 1989,

the cause of action before Judge Wolff was a

contempt of court proceeding brought by the County

against Gertz for violation of the Consent Agreement.

The County claimed Gertz needed a permit for his

landfill operations. The cause of action in the instant

proceeding emanated from the declaratory judgment

action by Gertz against the County to declare Bill

2890 inapplicable to him because of the Consent

Agreement, thereby precluding the County from

requiring Gertz to obtain a permit for his landfill

operations. Utilizing either the same evidence test,

MPC. Inc., 279 Md. at 33, or the same transaction

Standard adopted from Section 24 of the Second

Restatement of Judgments, the claim in both cases

is the same. See Deleon v. Slear, 328 Md. 569,

589-90 (1992).

The second prong is whether "there was a

valid final judgment on the merits." MPC, Inc., 279

Md. at 32-33. Judge Wolff, relying upon Howard

A28

e een ee ee eee ie

County vy. Carroll, 71 Md. App. 635 (1987), ruled

that, under existing law, Gertz’s activities in filling his

ravine area constituted farming and did not violate

the Consent Agreement. At that hearing, it was

acknowledged by Judge Wolff that Gertz, as in

the Carol] case, had been charging a fee to dump

off-site organic fill into his ravine. Judge Wolff stated

in dicta, however, that "if the County wants to stop

this practice, it may be a good idea, if that’s what

they want to do, or to contro] the practice, is to

have some ordinance which would control] it." The

County argues that this dicta limited Judge Wolff's

ruling to the case before him. We believe, however,

Judge Wolffs decision that Gertz’s activities

constituted permissible farming under the Consent

Agreement was a binding decision on the merits and

was not limited by his gratuitous advice to the

County. Furthermore, the judgment was fina] and

enrolled without appeal.

The final prong of =jesjudicata is whether

"the party against whom the plea is asserted [was]

a party .. to the prior adjudication." MPC, Inc., 279

Md. at 32-33. The parties to both cases are identical.

Although the County acknowledged the ruling

by Judge Wolf that Gertz’s activities constituted a

farming operation, it argued to Judge Williams in

the matter gub judice that the newly enacted

ordinance dealing with sanitary landfills included

rubble landfills, such as on the Gertz property, were

within the licensing requirements.

This brings us again to the issue of whether

Gertz had avesied right to continue the activities

permitted under the Consent Agreement, even

A29

after the passage of the new legislation. As

previously stated, Judge Duckett had granted Summary

Judgment for Gertz, ruling that his activities were

that of farming and conservation practices acceptable

under the Consent Order and that the land was not

being solely used for disposal of rubble and therefore

was beyond the ambit of Bill 28-90.

Judge Duckett further determined that Gertz had

engaged in filling activities permitted by the

Consent Agreement continuously from the date of the

Consent Agreement; that Gertz had a vested right in

the filling activities permitted in the Consent

Agreement; and that the County was estopped

from enforcing Bill No. 28-90 to Gertz’s activities

that fell within the Consent Agreement. Judge

Duckett further determined that the filling activities

had remained the same since Judge Wolff found that

such operation had constituted farming rather than

a sanitary landfill "operated solely for the disposal of

rubble."

In passing, we note that the County had argued

to Judge Duckett that there was no vested right to

a use of property that would preclude the

legislature from enacting a law that subsequently

removed such use. Generally, this may be true,

but, in the instant case, the County had entered

into a written agreement with Gertz that did in fact

confer a vested right of use. See, Chernick v.

Chernick, 327 Md. 470, 478-81 (1992) (consent

decrees have attributes of both binding contracts and

judicial decrees). As such, we believe that

Judge Duckett properly found that Gertz had a

vested right to continue activities permitted by the

Consent Agreement even after the passage of Bill

A30

2g SRT RELI teers let Pee

el ay Sp ap RMN. Seas TE f+

ae ne tied Sea eed

28-90. In any event, that particular issue (of

whether the ordinance applied) having been decided

by Judge Duckeyy should not have been an issue

before Judge Williams. See, MPC, Inc, 279 Md. at 35.

Judge Williams had before him only the issues

of whether, as a result of the acts by the County,

damages properly could be awarded under either

theories of breach of contract or 42 U.S.C. § 1983.

Contrary to Judge Wolff's ruling, Judge Williams

ruled that Gertz’s activities constituted operating

a commercial landfill for profit rather than farming.

The doctrine of res judicata should have been

applied to decide Gertz’s activities, which undisputedly

had not changed since the ruling in 1989 by Judge

Wolff.

Damages Under Breach of Contract Theory

As Judge Williams’ denial of the damages claim

rested on his erroneous finding that Gertz had been

engaged in an activity not allowed by the Consent

Agreement, we must remand this matter to the

circuit court to determine, in light of the prior

judgments in the case, whether the County breached

its agreement and what damages, if any, to which

Gertz may be entitled to recover due to _ the

interruption of his farming project.

Damages Under 42 USC. S 1983 Theory

Based upon the ruling by Judge Duckett, which

became the law of the case, that the ordinance was

not applicable to the Gertz situation because of

Judge Wolff’s “farming operation" ruling, we hold that

42 U.S.C. § 1983 does not apply to the matter at

bar. Although the County may have attempted to

A31

divest the right of Gertz to conduct filling activities

on his property for agricultural purposes, that

particular statute was ruled not to apply to the

Gertz operation.

JUDGMENT REVERSED;

CASE REMANDED TO THE CIRCUIT

COURT FOR ANNE ARUNDEL

COUNTY FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION. COSTS

TO BE PAID BY ANNE ARUNDEL COUNTY.

A32

>. Bs eres le APE hatin ee ERB mw

ROBERT E. GERTZ, IN THE

PLAINTIFF CIRCUIT COURT

FOR ANNE

ARUNDEL COUNTY

)

)

)

)

VS. )

) CASE NO. 3114763

ANNE ARUNDEL )

COUNTY, ET AL, )

DEFENDANT )

PROCEEDINGS IN OPEN COURT

(VOLUME 2 OF 2)

ON

DECEMBER 10, 1992

BEFORE

THE HONORABLE BRUCE C. WILLIAMS

PRESENT:

JAMES L. MAYER,

COUNSEL FOR PLAINTIFF

CHRISTINE R. SADLER,

COUNSEL FOR PLAINTIFF

ROBERT M. POLLOCK,

COUNSEL FOR DEFENDANT

CHERYL P. BOUDREAU,

COUNSEL FOR DEFENDANT

PATRICIA A. BARTON,

COURTROOM CLERK

KATHLEEN M. HIGGINS,

COURT REPORTER

LOIS E. ROWE,

TRANSCRIPTION ONLY

A33

contract --- what their argument about what contract

effectively saying, the County Council may not use ---

use --- use its legislative functions to --- to enact

new laws which affect Mr. Gertz in --- in this

regard. And if they do, they’re liable for 1983

damages. I don’t think the cases go that far. I don’t

think the --- this case should go this far and | ---

and I would submit there’s not a contract and

therefore there’s no basis for 1983. I just want to

make that point at the tail end of it, without getting

into all the other matters.

Thank you.

COURT: All right. Well. I think this case,

obviously, presents a number of issues, but the main

thrust of the plaintiff's claim here is that the County,

by obtaining the injunction in July of 1990, somehow

violated what is called a Consent Agreement, but |

would agree more in the form of a consent decree

since it’s issued by Judge Heller and it’s only read

and approved by the parties in this case --- the

attorneys for the parties, actually. It really is a

consent decree. And I think as such, established a

relationship between the parties as a result of that

other lawsuit.

The problem, as I see it, is that the County, in

obtaining the injunction, was doing so because Mr.

Gertz failed to get the licenses required by the

newly enacted ordinance, Bill 2890, which required all

rubble fills to have a --- a license. And why he didn’t get

the license, I don’t know, but he chose not to, so that

caused the injunction to issue. And I think as a result of

that, we have Judge Wolff's finding that the prior order of

court allowed Mr. Gertz to dump stumps and other raw

A34

rea sass aeenit itd dammenlpnnae neeE

Nene ante tn aCe a

8 ON PEED ETF on me!

tree material on his property as a part of its farming

definition.

The problem, as I see it, is that Mr. Gertz wasn’t only

farming and using this as his personal use. He was

running a commercial landfill for profit. He wasn’t just

trying to fill these ravines to make a pasture for his

farmland. He was running a business. And this so-called

Consent Agreement never gave him any authority to do

that. It specifically says that he’s prohibited from

dumping, placing or disposing, et cetera, except for his or

occupant’s farming and/or personal use. That doesn’t

include commercial landfill operations, which he

apparently was running.

So while the County may have had some reason to get

upset, they could’ve issued him a permit, if he’d applied

for one, but he never did, so that’s why the injunction was

issued.

Now regardless of that history, what’s the remedy?

And I think that the simple answer is the remedy is exactly

what’s Judge --- what Judge Duckett did in response

to that and say that the Consent Agreement gave Mr.

Gertz the right to continue to farm and stump --- tree

material, roots, brush, tree limbs, stumps whatever, for

farming and/or personal use. That’s what the agreement

said and he said he didn’t think it was necessary for him to

get a permit to do that, which is probably true, but it still

didn’t allow a commercial landfill.

So to try to get a recovery against the County for

damages because you had your landfill interrupted, your

profits removed, I don’t think is proper. There is no right

to damages for interruption of the business, either loss of

business or the cost of a delay or whatever measure you

might want to use. I don’t think any of it’s appropriate

A35

since he’s not supposed to net --- be making a profit on

this anyway.

And certainly for some possible use of it ss farmland

later on down the line when they become pastures is too

remote and not a direct result of any injunctive action

sought by the County.

As to the damage to the pond, the only element of

damage is alleged to be what was caused by the rainfall

that occurred right after and during the time of the ---

between the ex parte injunction and the temporary

injunction, both of which were legal proceedings that were

initiated by the County, but not issued by the County.

They were issued by the court. If the rains blew out the -

-- the land and filled in the pond prior to that, that’s an

act of nature and not something that’s caused by the

granting of the injunction.

The --- there’s no --- there was no testimony that these

hundred loads of clean fill that were available to Mr.

Gertz could’ve been placed down in time to build the

berm and necessarily finish the project before the rains got

there, so all that damage is really not appropriate, in any

event. And the cost of removing the silt and other fill

that was washed into the pond was something that was

taken care of --- offset by commercial profits, so that it ---

there wasn’t any loss there anyway, as far as the County

goes.

So I think all and all --- and there’s no proof of federal

claim here. I don’t think that anything that happened

here arises to the lev --- level of the --- that would support

any recovery under the federal provisions 1983.

And I see no extraordinary emotional distress

damages. I think anytime an injunction’s issued against

A36

somebody, you're upset, but that doesn’t mean that you

get additional damages for emotional distress. And |

don’t think that’s been adequately shown here either, so

I will find in favor of the County.

A37

ROBERT E. GERTZ_ IN THE CIRCUIT COURT

Plaintiff FOR ANNE ARUNDEL

COUNTY

v. CASE NO. 3114763

COUNTY EXECUTIVE, et al.

Defendants

OPINION & ORDER

A hearing was held on Summary Judgement

motions on the 18th day of June 199]. At the

conclusion of that hearing, the Court held the

matter sub curia. On the 9th day of July, 1991 the

Court granted Plaintiffs Motion for Summary

Judgement. A hearing was held on a Motion to

Alter or Amend Judgement on the 16th day of

September, 1991. On the 18th day of September,

1991 the Court ordered that the Order granting

Summary Judgement be stricken and the case be set

in for a hearing on the merits. Subsequent to this

order both parties informed the Court that they did

not believe atrial on the merits was necessary.

They requested that the Court determine the case

on the memorandum already filed.

BACKGROUND

Gertz and the County entered into a Consent

Agreement on August 20, 1985, which permits Gertz

to dump and store off-site raw tree and root

material, brush, tree limbs and stumps only for his

farming and personal use. On April 23, 1990, Anne

Arunde] County Council enacted Bill No. 28-90 which

A38

ee ee a ee

modifies sections in both Article 14 and 28 in the

Anne Arundel County Code. The pertinent

modifications affect the definition of "Sanitary Landfill"

and the requirements of a “Sanitary Landfill operated

solely for the disposal of rubble". "Sanitary Landfill" is

defined in Bill. No. 28-90 as "(2) a planned and systematic

method for che disposal of rubble." “Rubble” is defined

by reference to a COMAR definition for "acceptable

wastes” which includes stumps, brush, roots and topsoil.

Gertz is using materia] which the County has defined as

"Rubble".

Anne Arundel County argues that Anne Arunde]

County Bill No. 28-90 restricts Robert E. Gertz’s use of fill

dirt, brush and stumps to fill in a ravine on his farm. The

County claims Gertz is operating a landfill for the disposal

of rubble. Gertz claims he is engaged in recognized

farming activities permitted under a Consent Agreement.

DISCUSSION

Gertz argues that Bill No. 28-90 violates his due

process rights under Maryland Declaration of Rights,

Article 24 and the Fourteenth Amendment to the United

States Constitution. For Gertz "to have been denied due

process, he must have had a vested right to the zoning

classification which he lost by operation of law and time."

Colwell v. Howard County, 31 Md. App. 8, 354 A2d

210 (1975). In many of the Maryland cases involving

"vested rights", the Court of Appeals cites with approval

the following rule;

The majority rule, which can be synthesized

from the multitudinous decisions in this

area, may be stated as follows: A

landowner will be held to have acquired a

vested right to continue construction of a

A39

building or structure and to initiate and

continue a use despite a_ restriction

contained in an ordinance where, prior to

the effective date of the ordinance, in

reliance upon a permit theretofore validly

issued, he has, in good faith, made a

substantial change of position in relation to

the land, made substantial expenditures,

or has incurred substantial obligations.

, 252 Md. 497, 506, 250

Ross_v, Montgomery County

A.2d 635 (1968). The Court of Appeals subsequently

restated the requirements of acquiring a vested right;

In Maryland it is established that in

order to obtain a ‘vested right’ in the

existing zoning use which will be

constitutionally protected against a

subsequent change in the zoning ordinance

prohibiting or limiting that use, the

owner must (1) obtain a permit or

occupancy certificate where required by

the applicable ordinance and (2) must

proceed under that permit or certificate

to exercise it on the land involved so

that the neighborhood may be advised

that the land is being devoted to that

use.

398 (1969).

determine

» 254 Md. 244, 255 A2d

This Court has reviewed the facts to

whether these two requirements for

acquiring a vested right have been met.

A4O

(1)

Anne Arunde] County and Gertz entered into a

Consent Agreement on August 20, 1985, specifically

allowing Gertz, for his farming or personal use, to fill

a ravine on his property with roots, brush, tree limbs

and stumps. This Agreement was slightly modified

in June of 1988 but still permitted Gertz’s filling

activities. While this Consent Agreement is not a

"permit" as that word is typically used in zoning

cases, its effect is exactly the same. Both the

Consent Agreement and a permit give permission to

an individual toengage in a particular activity and

they should therefore be treated as _ being

synonymous.

The Count, argues that Gertz agreed in the

Consent Agreement that permission to operate his

landfill was conditioned upon compliance’ with

subsequent law. The County cites language from the

Agreement which states that Gertz may not fill his

ravines with rubble for any use other than farming

or personal use

This condition of

compliance with subsequent law refers only to uses

other than farming. This language in no way places

a condition upon Gertz to comply with subsequent

changes in the law if he is engaged in filling for his

personal or farming use. The County has not alleged

that Gertz is engaged in filling for anything other

than his personal or farming use.

(2)

The "known in the neighborhood" test requires

the Court tolook at the amount of permitted

activity engaged in by the landowner. See Mayor

A41

, 187 Md.

and City Council of Baltimore v. Shapiro

623, 51 A2d 273 (1946)(neither the intention to

engage in the activity nor sporadic activity meet the

test of being known in the neighborhood); Calhoun

v._County Board of Appeals, 262 Md. 265,277 A2d

589 (1970) (occasional or casual use fails to create

a vested right).

Bill No. 28-90 was passed on April 23, 1990,

almost five years after the Consent Agreement was

entered. into by the parties. It is undisputed that

Gertz has engaged in the ffilling activities

permitted by the Consent Agreement continuously

frenn the date ofthe Consent Agreement. A letter

dated June 4, 1990 from John Peacock of the

Environmental Programs Division for Anne

Arundel] County, to Mr. Gertz, indicates that an

inspection of Gertz’s property showed Gertz was still

engaged in the filling activities as of the date of the

letter.

Gertz has engaged in the permitted activity

continuously for approximately five years. This

amount of continuous activity certainly meets the test

of being known in the neighborhood.

Therefore, it is 19th day of February, 1992, by the

Anne Arunde] County Circuit Court,

ORDERED, Robert E. Gertz has a vested right in the

filling activities permitted in the Consent Agreement. It is

further

ORDERED, Anne Arundel] County is estopped from

enforcing Bill No. 28-90 to the activities of Robert E.

Gertz that comply with the Consent Agreement

A42

d)

(executed)

Warren B. Duckett, Jr.

Judge

A43

ROBERT E. GERTZ ) INTHE

) CIRCUIT COURT

) FOR ANNE

PLAINTIFF ) | ARUNDEL COUNTY

COUNTER- )

DEFENDANT)

) CASE NO. 3114763

VS )

)

ANNE ARUNDEL )

COUNTY, MARYLAND )

)

DEFENDANT __)

COUNTER- )

PLAINTIFF )

ORDER

The following matter having come before the Court

and the Court having taken testimony, orders this 9th

day of January, 1991,

ORDERED, that Plaintiff Robert E. Gertz’

Motion to Modify the Injunction is granted. The

injunction entered on July 27, 1990 is modified to

allow Plaintiff Robert E. Gertz to apply for a

grading permit from the Anne Arundel County

Department of Inspections and Permits to stabilize

the property which is the subject matter of this

lawsuit. All grading must take place only within the

limits of any permit issued by the Department of

Inspections and with clean fill dirt.

Judge Eugene M. Lerner

A44

Cheryl P. Boudreau, Assistant County Attorney

Office of Law, Heritage Office Complex

2662 Riva Road

Annapolis, MD 21401-7374

Attorney for Defendant/Counter-Plaintiff

Susan S. James Mayer

10801 Hickory Ridge Road, Suite 210

Columbia, Maryland 21044

Attorney for Plaintiff/Counter-Defendant

A&S

ROBERT E. GERTZ

Plaintiff

) IN THE

) CIRCUIT COURT

vs. ) FOR

COUNTY EXECUTIVE ) ANNE ARUNDEL

and COUNTY COUNCIL ) COUNTY

OF ANNE ARUNDEL )

COUNTY, ) CASE NO. 3114763

Defendants )

SSSSSSSSCSSSESSSESSESSESESESEAEEEAEKES

ANNE ARUNDEL COUNTY, MARYLAND

Counter-Plaintiff

ROBERT E. GERTZ

Counter-Defendant

INTERLOCUTORY INJUNCTION

The Counter-Plaintiff, having filed a Counter-claim

and Ex Parte Injunction having been issued on the

Counter-claim, and Counter-Defendant having filed a

motion to dissolve Ex Parte Injunction, and the

matter having come before a Court and the Court

having taken testimony and having found the evidence

presented warrants the issuance of an Interiocutory

Injunction, Orders this _27th day of July, 1990

ORDERED, that Counter-Defendant, Robert E.

Gertz is enjoined from accepting fill or permitting

the disposal of fill on the property which is the

subject matter of this law suit. This Injunction is to

remain in effect until a determination on the matter

of Counter-Plaintiffs, Counter-Claim; and it is further

A46

ORDERED, that representative of the Anne

Arundel County Department of Inspections and

Permits have the right to inspect the property,

pursuant to previous Orders of this Court and to

check for compliance with this Injunction, during

daylight hours without prior notice to Counter-

Defendant, Robert E. Gertz.

—__(executed)

Judge Eugene M. Lerner

Circuit Court Judge

cc: Cheryl P. Boudreau

Attorney for Anne Arunde] County

Office of Law

Heritage Office Complex

2662 Riva Road

Annapolis, Maryland 21404

Susan Mayer

Attorney for Robert E. Gertz

10801 Hickory Ridge Road

Columbia, Maryland 21044

A47

ROBERT E. GERTZ _) IN THE

Plaintiff ) CIRCUIT COURT

VS. ) FOR

COUNTY EXECUTIVE ) ANNE ARUNDEL

and COUNTY COUNCIL ) COUNTY

OF ANNE ARUNDEL _)

COUNTY, ) CASE NO. 3114763

Defendants _)

FECES EE

ANNE ARUNDEL COUNTY, MARYLAND

Counter-Plaintiff

ROBERT E. GERTZ

Counter-Defendant

EX PARTE INJUNCTION

The Court, having read and reviewed the pleadings

and Affidavit filed by Counter-Plaintiff, ANNE

ARUNDEL COUNTY, MARYLAND, and having heard

counsel for both parties to this case, and having found that

there will immediate substantial and irreparable harm to

Counter-Plaintiff if an immediate injunction is not issued,

it is this 20th day of July, 1990,

ORDERED that Counter-Defendant, ROBERT E.

GERTZ, is enjoined for a period of ten (10) days from

service of this Order upon him or his counsel from

A48

accepting fill or permitting the disposal of fill on the

property which was the subject matter of this lawsuit;

provided however that Counter-Defendant may move for

hearing on this Ex Parte Injunction with two (2)

days notice to Counter-Plaintiff.

Judge

A49

ANNE ARUNDEL COUNTY, ) IN THE

)

PLAINTIFF ) CIRCUIT COURT

VS FOR

ROBERT GERTZ } ANNE ARUNDEL

DEFENDANT COUNTY

CASE NO. 3107030

ee eS ¢eteeeeeceececununnw es & & *&

COURT’S OPINION

HEARD IN OPEN COURT BEFORE HON.

MARTIN A. WOLFF

December 21, 1989

Present:

Cheryl P. Boudreau, Esq., Assistant County Solicitor

Susan Mayer, Esq., Attorney for Defendant

Nancy Baker, Deputy Clerk

Conchira D. Tuers, Court Reporter

COURT'S OPINION

What we have here is a rather narrow issue,

and whether there are good conservation practices or

not, it’s not the paramount in what the Court has

before it. The respondent in this case has a farm,

A50

i

unbeknownst to the County, they thought he had the

whole farm. He doesn’t have the whole farm. Part

of it has been deeded out. And, back in August of

1985, a Consent Agreement was reached between

Anne Arundel County and Mr. Gertz. At that time,

he had the entire farm. And the Consent Order,

basically there are two paragraphs which are in

contention now.

The first says that the defendant

accepted..this is paragraph one, accept for his and/or

occupant’s farming and/or personal use, shall not

dump, place, dispose, or otherwise to store any bulk

loads from offsite raw materials. And, it goes on.

The other pertinent paragraph is_ the

paragraph four, where he is to use his best efforts

to pursue development and implementation of an

agricultural hand management practice in cooperation

with Anne Arundel] County and the Soil Conservation

District, which plan shall include the stabilization of

the ravine and prevent soil loss and _ erosion

therefrom.

What is happening to this property is not in

dispute. Photographs were offered. Testimony was

offered. But none of it was contradicted by the

defendant. In fact, what is happening is in two

areas of main concern, was one, an existing farm

road was improved and dirt was moved around. |

even think there was some piece of concrete, at one

point, testified as part of the base. And, that road

was put in. And, the second was the filling certain

ravines. I use a plural because I think there is

more than one in guestion or more than one area.

It’s clear that offsite are materials being

A51

brought in, I guess, some days four to five loads.

maximum, perhaps, I think he said once every

couple of months, there may be as many as 20

loads coming in. But, basically, about four loads

from certain contractors which are known to the

respondent, that he can rely on, that they’re not

going to dump, as he said, concrete and other things

there. And, as I said, it’s not in question that the

road was improved. So, those are the two areas that

we're concerned with.

No matter which way the Court would rule

on the case, the road issue is not before the Court,

because we find out that that’s on son, Dale’s

property. And, if there’s a violation, this agreement

runs tO any successive owners. So, if the road is in

violation, Dale is the one who has to be brought in

and the County was not aware of that. They are

aware it now. So, if they wish to pursue that

matter, that’s something that they can do against the

son, Dale. But, certainly the respondent before the

Court does not own that land, and cannot be held

in contempt on that land for its misuse, if in fact,

it’s misuse.

The key to the case, as I see it, is whether

Or not this is what we can call farming. Because he

is not to bring offsite material in to fill, unless it is

for farming use. That being, you can’t run a landfill.

But, you can use offsite material for farming use and

that’s from paragraph one. And at first blush, it

seemed to me, you know, putting piles of trees and

stumps is not farming. To me, that looked like

farming, I always thought was where you may plow

up land and you put seeds in and you grow and

you harvest, and that’s what I traditionally thought of

farming. I told you ail in the beginning, I’m not a

A52

farmer. I have a little plot and I grow, you know,

corn, tomatoes and cucumbers and things like that.

I'm not a big farmer. A little home garden.

This is not a new question because the

Court of Special Appeals in Howard County vs.

Carrol] had a similar question. The facts in that case

are slightly different, but the principles are the same.

Out there, in Carroll County. Howard County, Mr.

Carroll, who is..also an adjoining county by the same

name. Mr. Carroll, Philip Carroll, had some problems

and it dealt with a farm where he was filling in

an area. And, it was pretty much like this case,

because Mr. Allnut there, as opposed to several

contractors here, was bringing in organic fill, basically

tree stumps and things like that. As a matter of

fact, was paying $40 a load, and that was pretty

much what the cost was here, so _ not

disproportionate. And, the County said, well, you

need certain permits and you have to comply with

a section of the Carroll County Code which requires

permits for grading and clearing, except things which

are excepted, and the excepted activities are

agricultural land management practices. And, they

never got to a contempt proceeding in that case.

That went up on the Declaratory Judgement. You

know, what does this mean? It was Mr. Carroll’s

contention that you could fill in the land of the

farm.

And, as I looked at the case, I kind of

disagreed. I said, gee, that it looks to me you're not

farming, you're filling. But, a rather select panel..]

have the highest regard for Chief Judge Gilbert,

Bloom, and Karwacki who authored this opinion.

Actually, it’s Judge Bloom. And, they went through

a careful analysis because, you know, what do you

A53

~<

mean? What is farming? What is agriculture? You

know, everyone seems to think it’s the planting of

seeds and the tending to the crop and the harvest.

But, they go through an analysis of many States

who have interpreted these terms. And, when you

talk about cultivation, cultivation does not mean just

tilling the land to put the seed in, but also they

said encompassed filling in land to make it useable.

That’s..you’re not producing a crop, but that’s part

of the method in which a crop is produced.

Facts in that case, the larger area, bringing

it in, filling it in, filling it with dirt, and using it for

farm land. And Judge Bloom, Karwacki, and Gilbert,

agreed that that is a farm practice.

Now, if you look at the case, whether or

not they needed a grading permit, in this..the

testimony in that, which is similar to that, that it

was a farm land. That there were ravines. That

people were bringing in fill. The purpose was to

create tillable land on the property. The purpose

here is to create pasture land for a horse farm and

there’s no indication that that is not the intention of

the Defendant. He said that all along. I mean, this

is not something he’s come up with today, that he

didn’t say before, as far as 1 know. That this is

something the family had planned on. They've divided

the land up. So, the purpose is to create additional,

useable land. He said horses can’t go down in a

ravine and I’m aware of that. Other people

testified, in that case, a farmer named Warfield

testified that that’s commonly used as a practice.

That case, Mr. Tate, the manager of the farm, said

that that’s a commonly used practice. In this case,

the respondent, Mr. Gertz, has a wealth of farming

A54

experience. He said it’s an acceptable practice. A

neighbor came in and said, yes, this an acceptable

practice of filling in.

And, the opposition in that case, was from

the District Manager from the Howard County Soll

Conservation District, Just like Mr. Wist here. And,

he said the reason that this is bad..well, he said,

one, that a sediment control ordinance..he said the

use, the intended use of the land was not relevant.

It was how it was being used then. In other words,

you were landfilling and he did not look forward to

the ultimate use. That was one thing that was then

said. And, also, I believe, that he had a problem,

that the bringing in was bad. And, also, perhaps the

size. These were some of the reasons that he had

set forth, And Judge Bloom said that this word,

“agricultural land management practices," even a

more broad term in this case, “farming,” is not a

restrictive word. It doesn’t mean putting a seed in

the ground and harvesting. It encompasses everything

_ from preparing land, and that could be filling in, all

the way through the end.

And, if you note here what Mr. Wist’s

problem was, he said, you know, there’s nothing

wrong moving dirt and putting tree fill.putting tree

stumps in if you did it on the property. It’s the

fact that you’re bringing it from off the property.

Well, if it’s good use to do it on the property, how

can it be bad if you bring it in from off the

property? I don’t follow his logic.

Now, I can see where the County’s going.

The County’s saying, you are running a landfill, not

farming. That’s basically the County’s position, is it

not?

AS5

MS. BOUDREAU: I would agree, Judge.

(Continued Opinion)

Okay. If that is the problem, then they can

pass ordinances, requiring any off-site filling, whether

it be for farming or not, over two truckloads, or

whatever it be, needsa permit. But, they're trying

to do it in another way, which is not reasonable.

Because, at least in this case, he’s allowed to farm.

And, that was an exception that’s cut off. So, if the

County wants to stop this practice, it may be a

good idea, if that’s what they want to do, or to

control the practice, is to have some ordinance which

would control it. This Consent Agreement does not.

It calls for farming.

Now, the bottom line is, in this case, if the

real purpose is to control the use of land, that is to

have the land done so there’s not erosion, so there’s

good practices. We know that this land has made,

part of it, has made fine pasture land. So it’s

resulting that way. And, we also know, even by the

County’s own experts, there’s no runoff water. There

is not silt going on other lands. There is no

erosion problem. So, the way he’s doing it is

perfectly acceptable. Perhaps, if he was not doing it

in an acceptable way, and was polluting other

people’s lands, and there was runoff soil and all, that

there may be another way that you could come in.

But, at this point of the case, he has an exemption for

farming. And, under Howard County vs. Carroll and

under the testimony I have, I believe this to be farming.

And, I have nothing to the contrary. It’s not been brought

to my attention that there’s any other regulation that

controls this. We're strictly under the Consent Order.

Now, there may be mechanisms in place in the County

A56

that can control this. I don’t know. That’s not before me.

If there is not, there are ways that you can handle it.

But, he is not in violation of the Consent Order,

number one, because it’s farming. And, as to the fourth

paragraph, he was to get a plan and implement it to try

and stabllize and prevent erosion. He did get a plan and

he did work with it. Now, they backed off at the very end,

the Soil Conservation District, and there’s no animosity.

I mean, your witness, Mr. Wist, is a friend of Mr. Gertz.

He kept calling him by first name and all. They may have

a disagreement as to how it’s being done. But, even he

said, there is no runoff.

There’s no misues of the land. And, he followed the

plan, as far as he was concerned, up to a point. He

disagreed with, I believe, the road area. He thought that

was improper and he also disagreed with the way the land

was being filled. But, I don’t find that to be proper under

the holding in Howard County vs. Carroll.

So, I am going to find that Mr. Gertz is not in

contempt of court. And, I guess, probably, we

should..no, we don’t even need an order in that.

The hearing sheet would be sufficient. And, I don’t

know where the next step lies. But, as far as this

case is concerned, that he is excused at this time.

MS. BOUDREAU: Thank you, Your Honor.

MS. MAYER: Thank you, Your Honor.

MR. GERTZ: Thank you, Your Honor.

COUNTY COUNCIL OF ANNE ARUNDEL COUNTY,

MARYLAND

Legislative Session 1990, Legislative Day No. 7

Bill No. 28-90

Introduced by Mrs. Clagett, Chairman

and The Entire Council

By the County Council, April 2, 1990

Introduced and first read on April 2, 1990

ublic Hearing set for and held on April 18, 1990

By Order: Judy C. Hol Administrative Offi

A BILL ENTITLED

AN EMERGENCY ORDINANCE concerning: Zoning

and Environmental Health Applications for Sanitary

Landfills, including Rubble Landfills

FOR the purpose of providing uncodified interim

regulations Concerning permits and applications for

special exceptions for sanitary landfill operations, including

rubble landfills.

FINDINGS OF FACT

During the past several years, it has become

increasingly apparent to the County Council that existing

regulation of sanitary landfill operations, particularly

rubble fills is inadequate. Numerous complaints have been

received about the inadequacy of standards for review, and

the confusion between the Environmental Health and

Zoning Articles of the County Code.

On February 20, 1990, a meeting composed of

A58

members of the industry anti citizen groups, assisted by

County staff, met and began a review of problems with the

existing regulation of sanitary landfills, including rubble

landfills. As a result of this meeting, a committee has been

formed and is studying resolutions to the problems in this

area.

The study undertaken by this group will be on-going

and will result in various recommendations, including

proposed legislation. However, in the meantime, the

County Council finds that it is necessary to adopt interim

regulations to be effective for one year that will insure

orderly development of sanitary landfills, including rubble

landfills, while the study is going on. These regulations will

supersede existing applicable sections of the

Environmental Health and Zoning Articles of the County

Code as shown in this Bill only for this period of time, and

that will help ensure the orderly development of sanitary

‘landfills, including rubble landfills, in the County. The

County Council also finds that these ~ uncodified interim

regulations upon sanitary landfills, including rubble fills,

am in the best interest of the residents of Anne Arundel

County and am intended to protect and promote the

health, safety, and welfare of the citizens of the County.

EXPLANATION: CAPITALS indicate new matter

temporarily modifying and superseding existing law.

SECTION 1. Be it enacted by the County Council of

Anne Arundel County, Maryland, that Section(s) of the

Anne Arundel] County Code (1985, as amended) are

temporarily modified and superseded as follows:

1. In Article 14 Environmental Health the following shall

apply as shown:

(A) Add § 4-101(e-1) to read as follows:

"(E-1) "RUBBLE" MEANS "ACCEPTABLE

WASTES" AS STATED IN COMAR 26.04.07.13B ."

(B) Substitute the following for existing § 4-101 (f):

"(f) "Sanitary landfill" means:

(1) a planned and systematic method of refuse

disposal by which waste material is placed in the earth in

layers, then compacted and covered with earth or other

approved cover material at the end of each day’s

operation; OR

(2) 4 PLANNED AND SYSTEMATIC METHOD

FOR THE DISPOSAL OF RUBBLE

(C) Substitute the following for the first sentence of existing

$4-105(b):

"(b) Each sanitary landfill shall consist of a planned

and systematic method of refuse disposal whereby the

waste material is placed so that it is thoroughly compacted

and covered at the end of each day’s operation with at

least six inches of compacted natura! soil, earth, or other

nonflammable, nonputrescible material acceptable to the

County Health Officer, OR FOR THE DISPOSAL OF

RUBBLE."

(D) Add the following at the end of existing §4-107(d):

"AT THE DISCRETION OF THE

DEPARTMENT OF INSPECTIONS AND

PERMITS, THE PROVISIONS OF THIS

SUBSECTION MAY BE SATISFIED IF

THE APPLICANT HAS PROVIDED THE

STATE DEPARTMENT OF THE

ENVIRONMENT WITH A BOND IN AN

A60

AMOUNT NO LESS THAN THAT

REQUIRED BY THIS SECTION AS A

CONDITION FOR THE ISSUANCE OF A

PERMIT BY THE STATE."

(E) Substitute the following for existing $§$4-107 (e) and

(f):

"(E) APERMIT EXPIRES CONCURRENTLY WITH

THE EXPIRATION OF A PERMIT ISSUED BY THE

STATE DEPARTMENT OF THE ENVIRONMENT.

(F) FOR A SANITARY LANDFILL THAT IS

OPERATED SOLELY FOR THE DISPOSAL OF

RUBBLE, THE FEE FOR A PERMIT OR RENEWAL

OF A PERMIT SHALL BE SUFFICIENT TO COVER

THE COST OF PROVIDING AN INSPECTOR TO

INSPECT THE LANDHLL AT LEAST ONCE A DAY

PLUS ATTENDANT OVERHEAD COSTS, AS

DETERMINED BY THE DEPARTMENT OF

INSPECTIONS AND PERMITS."

(F) Delete §§4-106 and 4-108(b) in their entirety.

(G) Add $§4-109(s), (t), and (u) to read as follows:

"(S) FOR A SANITARY LANDFILL THAT IS

OPERATED SOLELY FOR THE DISPOSAL OF

RUBBLE:

(1) THE HOURS OF OPERATION SHALL BE

LIMITED TO 7:00 AM. TO 5:00 P.M., MONDAY

THROUGH FRIDAY;

(2) A WHEEL WASHER SHALL BE

AVAILABLE DURING ANY TIME OF OPERATION

AND SHALL BE USED ON ALL VEHICLES

A61

LEAVING THE LANDFILL: AND

(3) COUNTY INSPECTORS SHALL INSPECT

THE OPERATION AT LEAST ONCE DAILY

DURING NORMAL HOURS OF OPERATION AND

AT ANY OTHER TIME, IF THE INSPECTOR DEEMS

IT NECESSARY."

(H) Add $4-109.1 to read as follows:

"4-109.1. STOP-WORK ORDER.

(A) WHENEVER A VIOLATION OF THIS TITLE

IS FOUND ON ANY PROPERTY, WHETHER OR

NOT A PERMIT HAS BEEN ISSUED, THE

DEPARTMENT OF INSPECTIONS AND PERMITS

MAY:

(1) PLACE A STOP-WORK ORDER ON THE

PROPERTY; AND

(2) ISSUE A STOP-WORK ORDER TO ON-SITE

PERSONNEL.

(B) WITHIN SEVEN DAYS AFTER A

STOP-WORK ORDER IS PLACED OR ISSUED AS

SET FORTH IN SUBSECTION (A) OF THIS SECTION,

A COPY OF THE ORDER SHALL BE SENT BY

CERTIFIED MAIL TO THE PERMITEE, IF ANY,

AND TO THE OWNER OF THE PROPERTY, AS

LISTED AMONG THE TAX RECORDS OF THE

COUNTY.

(C) FAILURE TO COMPLY WITH THE

PROVISIONS OF A STOP-WORK ORDER IS A

VIOLATION OF THIS TITLE."

A62

II. In Article 28 Zoning the following shall apply as shown:

(A) Substitute the following for existing §§1-101(55B) and

(57):

"(55B) "RUBBLE" MEANS "ACCEPTABLE

WASTES" AS STATED IN COMAR

26.04.07.13B."

"(57) "Sanitary landfill" means:

(1) a planned and systematic method of refuse

disposal] in which waste material is placed in the earth in

layers, then compacted and covered with earth or other

approved cover material at the end of each day of

operation; OR

(II) APLANNED AND SYSTEMATIC METHOD

FOR THE DISPOSAL OF

RUBBLE."

(B) Substitute the following for existing §11-112(a):

"(A) THE APPROVAL OF A REZONING OR THE

GRANT OF A SPECIAL EXCEPTION OR VARIANCE

MAY BE RESCINDED, SUSPENDED, OR MODIFIED

BY THE ADMINISTRATIVE HEARING OFFICER ON

MOTION OF THE COUNTY, AN AGGRIEVED

PARTY, OR THE OFFICER’S OWN INITIATIVE IF:

(1) THE MOTION CONTAINS SUFFICIENT

FACTS AND EVIDENCE MADE UNDER OATH FOR

THE OFFICER TO FIND THAT THE MOVING

PARTY AT A HEARING WOULD BE ABLE TO

MAKE A PRIMA FACIE SHOWING THAT WOULD

PERMIT THE OFFICER TO MAKE A FINDING

REQUIRED UNDER SUBSECTION (A)(2) OF THIS

SECTION; AND

(2) THE OFFICER FINDS AFTER A HEARING

THAT:

(I) THE APPROVAL OR GRANT IS BASED ON

A FRAUDULENT MISREPRESENTATION OF

MATERIAL INFORMATION STATED IN THE

APPLICATION, TESTIMONY, SITE PLANS, OR

OTHER SUPPORTING DOCUMENTS; OR

(II) THE USE OF THE PROPERTY MATERIAL

DEVIATES FROM THE APPROVED SITE PLAN OR

ZONING CONDITIONS IMPOSED."

(C) Substitute the following for existing §12-242:

"12-242. Sanitary landfills.

(A) (1) A sanitary landfill operated by the County

OTHER, THAN A_ SANITARY LANDFILL

OPERATED SOLELY FOR THE DISPOSAL OF

RUBBLE is permitted in an RA, DD, or W3 District,

provided:

(i) the minimum land area for the operation is at

least 100 acres

(ii) the applicant presents written evidence signed

by the Health Officer that the proposed operadon is in

compliance with Article 14, Title 4 of this Code;

(iii) the facility is surrounded by fencing and

screening that is at least

six feet high;

(iv) the operation does not encroach into the

A64

natural 100-year floodplain of a stream, tributary area,

creek, river, or natural watercoune;

(v) plans and materials are submitted to show:

1. all existing and finished grades;

2. the general vicinity of fill collection;

3. provisions for grading Fill on a scheduled

4. the time of completion of the proposed fill

5. the proposed future use of the property; and

6. computation of floodplain area;

(vi) only waste generated within the boundaries of

the County is accepted as Fill material;

(vii) on completion of the operation, the property

is subject to a recreation or open space easement by the

County;,

(viii) no building pennit is issued for any structure

not to be used for recreational purposes; and

(ix) the operation does not accept hazardous waste,

including oil products and pathogenic or incendiary

material, as fill.

(2) The City of Annapolis may operate its existing

landfill on two contiguous parcels of ground in the Second

Assessment District of the County. Those parcels were

acquired by deeds that are recorded among the land

records of the County at Liber 1413, page 576, and Liber

A65

G.W. 50, page 445.

(3) New sanitary landfills or disposal facilities and the

expansion of existing facilities are not permitted in the

critical area unless an environmentally acceptable

alternative does not exist outside the critical area and

these activities or facilities are needed to correct an

existing water quality or wastewater management problem.

(B) ASANITARY LANDFILL OPERATED SOLELY

FOR THE DISPOSAL OF RUBBLE IS PERMITTED IN

AN RA,DD, OR W3 DISTRICT, PROVIDED:

(1) THE LAND AREA FOR THE OPERATIONS

IS AT LEAST 100 ACRES;

(2) THE FACILITY IS SURROUNDED BY

FENCING AND SCREENING THAT IS AT LEAST SIX

FEET HIGH;

(3) THE OPERATION DOES NOT ENCROACH

INTO THE NATURAL 100- YEAR FLOODPLAIN OF

A STREAM, TRIBUTARY AREA, CREEK, RIVER,

OR NATURAL WATERCOURSE;

(4) PLAINS AND MATERIALS ARE

SUBMITTED TO SHOW:

(I) ALL EXISTING AND FINISHED GRADES;

(Il) THE GENERAL VICINITY OF ALL

COLLECTION;

(III) PROVISIONS FOR GRADING FILL ON

A SCHEDULED BASIS;

(IV) THE TIME OF COMPLETION OF THE

A66

PROPOSED FILL;

(V) THE PROPOSED FUTURE USE OF THE

PROPERTY; AND

(VI) COMPUTATION OF FLOODPLAIN

AREA

(5) ON COMPLETION OF THE OPERATION,

THE PROPERTY IS SUBJECT TO A RECREATION

OR OPEN SPACE EASEMENT BY THE COUNTY;

(6) A BUILDING PERMIT MAY BE ISSUED

ONLY FOR A STRUCTURE THAT IS TO BE USED

FOR RECREATIONAL PURPOSES, EXCEPT A

TEMPORARY BUILDING THAT IS NECESSARY

FOR THE OPERATION OF THE LANDFILL;

(7) THE OPERATION DOES NOT ACCEPT

HAZARDOUS WASTE, INCLUDING OIL PRODUCTS

AND PATHOGENIC OR INCENDIARY MATERIAL,

AS FILL:

(8) ANY AREA USED TO DEPOSIT REFUSE IS

LOCATED AT LEAST 1,000 FEET FROM ANY

LAWFULLY PERMITTED RESIDENTIAL,

NSTITUTIONAL, OR INDUSTRIAL BUILDING;

(9) ANY AREA USED TO DEPOSIT REFUSE

IS LOCATED AT LEAST 100 FEET FROM A PUBLIC

ROADWAY OR A NEIGHBORING PROPERTY;

(10) COMMENTS ARE RECEIVED FROM THE

FIRE MARSHAL, THE HEALTH OFFICER, AND

DEPARTMENT OF PUBLIC WORKS THAT EACH

OF THEM HAS NO OBJECTION TO THE SPECIAL

EXCEPTION;

(11) THE LAND AREA FOR THE OPERATION

IS NOT IN THE CRITICAL AREA:

(12) THE HOURS OF OPERATION ARE

LIMITED TO 7:00 AM. TO 5:00 P.M. MONDAY

THROUGH FRIDAY;

(13) THE APPLICANT PROVES THAT THERE

IS A DEMONSTRATED NEED FOR A RUBBLE

LANDFILL IN THE GEOGRAPHIC AREA OF THE

COUNTY WHERE IT IS LOCATED;

(14) THE APPLICANT PROVES THAT THERE

WILL NOT BE A MATERIAL NEGATIVE IMPACT

ON THE ENVIRONMENT AND, INSOFAR AS

POSSIBLE, THERE WILL BE AN ENVIRONMENTAL

BENEFIT IF THE SPECIAL EXCEPTION IS

GRANTED;

(15) A WHEEL WASHER IS AVAILABLE

DURING ALL TIMES OF OPERATION AND IS USED

ON ALL VEHICLES LEAVING THE LANDFILL; AND

(16) COUNTY INSPECTORS SHALL INSPECT

THE OPERATION AT LEAST ONCE DAILY

DURING NORMAL HOURS OF OPERATION AND

AT ANY OTHER TIME, IF THE INSPECTOR DEEMS

IT NECESSARY."

SECTION 2. And be it further enacted, That special

exception criteria numbered (1) through (16) in subsection

(B) of Section 1, Subsection I1(C) of Bill 28-90 shall apply

only

to applications for special] exceptions for sanitary landfills

made on or after April 2, 1990.

SECTION 3. And be it further enacted, That the

A68

provisions of this Ordinance shall be applicable for one

year after the effective date of Bill 28-90 and shall expire

thereafter without any further action of the County

Council.

SECTION 4. And be it further enacted, That this

Ordinance is hereby declared to be an emergency

ordinance and necessary for the immediate preservation of

the public peace, health, safety, welfare, and property, and

being passed by the affirmative vote of five members of

the County Council, the same shall take effect from the

date it becomes law.

READ AND PASSED this 18th day of April, 1990.

By Order

(executed)

Judy C. Holmes

Administrative Officer

PRESENTED to the County Executive for his

approval this 20th day of April, 1990.

(executed)

Judy C. Holmes

Administrative Officer

APPROVED AND ENACTED: 4/23/90

(executed)

C. James Lightnizer

County Executive

I HEREBY CERTIFY THAT THIS IS A TRUE

AND CORRECT COPY OF BILL NO. 28-90, THE

ORIGINAL OF WHICH IS RETAINED IN THE

FILES OF THE COUNTY COUNCIL.

(executed)

Judy C. Holmes

Administrative Officer

A70

Plaintiff ) IN THE

) CIRCUIT

) COUR” FOR

¥ ) ANNE ARUNDEL

) COUNTY

ROBERT E. GERTZ )

Defendant )

) CASE NO. 3107030

CONSENT AGREEMENT

The Plaintiff, Anne Arunde] County, Maryland,

having filed a Complaint, wherein it complained that

Defendant was engaged in unpermitted grading and

filling on certain property near the intersection of St.

Stephens Church Road and

Chesterfield Road in Anne Arundel County (the

"Subject Property"), and the Defendant having

answered, denying liability and claiming an agricultural

exemption, but the parties nevertheless being desirous

of resolving the differences between them and

agreed asto the form of relief to be granted, it is

this 20th day of 1985, by the Circuit Court for

Anne Arundel County, Maryland, ORDERED,

ADJUDGED AND DECREED as follows:

1. That the Defendant, except for his and/or

occupant’s farming and/or personal use, shall not

dump, place, dispose, or other-wise store any bulk

loads from off-site of raw tree material consisting of

root material, brush, tree limbs and stumps or

otherwise dispose or store any rubble originating

off-site on the property which is the subject of this

A71

a

proceeding, unless otherwise or subsequently specifically

permitted by law.

2. That the Defendant shall not use the

Property, or knowingly permit il same to be used

for unpermitted Junk, salvage or waste disposal.

3. /That the Defendant may retain on the

Property all soil, rock, root material, brush, tree

limbs, stumps and all other nonhazardous substances,

if any, which were received on the Property prior to

institution of this suit.

4. That Defendant shall use his best efforts

to pursue development and implementation of an

agricultural land management practices plan _ in

cooperation with the Anne Arundel Soil Conservation

District, which plan shall include the stabilization of

the cited ravine area to prevent soil los~ and

erosion therefrom.

5. That in the event the Defendant shall

exceed the scope of an a~ proved agricultural land

management practices plan in a manner prohibited by

the applicable State and County Laws or ordinances

or should the approved agricultural land management

practices plan for t:~e subject site suspended,

revoked or rendered void, unless such plan is

otherwise modified or revised, then Defendant shall,

to the extent required by law, apply for all necessary

permits before undertaking any further development

of the subject property.

6. That any and all inspections of the subject

property shall be as provided by normal process of

law.

A72

7. That this Consent Order shall be binding

on the heirs, assigns and successors in interest of the

parties.

8. That the Defendant shall pay open court

costs in this action.

(executed)

JUDGE, CIRCUIT

COURT FOR ANNE

ARUNDEL COUNTY

READ AND APPROVED:

Adrian G. Teel

Anne Arundel County

Director of Administration

__(executed)

Essom V. Ricks, Jr.

Attorney for Plaintiff

_(executed)

John E. Griffith, Jr.

Attorney for Defendant

STATE OF MARYLAND, Anne Arundel County. Sct:

I hereby certify that the foregoing is a true copy of

decree of Court passed in the above entitled case in the

Circuit Court for Anne Arundel County.

In Testimony Whereof I hereby set my hand and affixed

the seal

— for Anne Arundel County the 20th

A73

ANNE ARUNDEL COUNTY, MARYLAND

OFFICE OF LAW

P.O. BOX 1831

ANNAPOLIS, MARYLAND 21404

ANNAPOLIS (301) 280-1316

BALTIMORE (301) 974-6750 X 1316

WASHINGTON (301) 970-8250 X 1316

TELECOPIER (301) 280-1799 X 1316

COUNTY SOLICITOR

Stephen R. Beard

DEPUTY COUNTY SOLICITORS

David S. Bliden

David A. Plymyer

SENIOR ASSISTANT

COUNTY SOLICITOR

Robert M. Pollock

ASSISTANT COUNTY SOLICITORS

Patricia A. Logan

Stephen M. LeGendre

Catherine Durkan

Jamie B. Baer

Donald H. Spence, Jr.

Michele A. Dane

Gail K. Thuman

Karen Lee Cook

John K. Gardner

June 7, 1988

Susan S. James

8293 Main Street

Ellicott City, Maryland 21043

A74

Re: Robert E. Gertz

Dear Susan:

The changes penned in and initialed by Mr.

Gertz tothe Wist letter and the Jonas memorandum

are acceptable to both the County and Jim Wist. |

would like to add two further conditions to the

understanding which, if acceptable to you, can be

incorporated into our entire agreement pursuant to

paragraph four of the August 20, 1985, Consent

Agreement. Those are as follows:

iL. Twenty-four hours prior to initiating the

filling of the ravine, Mr. Gertz will give the County

notice that he is proceeding with the project.

2. Mr. Gertz will permit Mr. Damon Cogar, a

grading supervisor with the Anne Arundel] County

Department of Inspections and Permits to inspect the

site periodically to insure the project is being

performed in accordance with the agreed upon plan.

Should Mr. Cogar leave County employment or be

otherwise unable to inspect the property, another

grading supervisor shall be permitted to inspect the

site periodically.

I have provided a signature line for you below

to approve and agree to these conditions. I have

executed the other agreements but their operation is

contingent upon your agreement to the conditions

listed above and your execution of the approval

below.

Please feel free to contact me if you wish to

discuss this matter further.

Very truly yours,

(executed)

Donald H. Spence, Jr.

Assistant County Solicitor

DHS:ddt

Attachment

c.c. Leroy Jonas, Department of Inspections & Permits

Damon Cogar, Department of Inspections & Permits

Read and Agreed to June _10th , 1988.

executed) .

Susan James, Attorney for Robert E. Gertz

A76

Law Offices of

JAMES L. MAYER

8293 Main Street

Ellicott City, MD 21043

(301) 465-6060

Susan S. James

Edward Benjamin Hall

Donald Hart Spence, Jr., Esq.

Arundel] Center

44 Calvert Street

P.0. Box 1831

Annapolis, MD 21404

Re: Robert E. Gertz

May 18, 1988

Dear Don:

Enclosed please find the original documents |

received from the County through Karen Cook on

May 2, 1988, with the changes we discussed on May

17th penned in and initialed by Mr. Gertz. On

the second page of Mr. Wist’s letter, I have typed

in signatory lines and a date line. Mr. Gertz and

I have signed that page and I have signed page 3

with Mr. Gertz having initialed changes above. This five

page document represents the fulfillment of paragraph 4

of the August 20, 1985 Consent Agreement between

Mr. Gertz and Anne Arundel] County. Mr. Gertz has

agreed to implement the plan specified in this five page

document. In return, the County will allow Mr. Gertz to

finish filling in the ravine on his property pursuant

A77

to the terms in the 5 page document.

Mr. Gertz is anxious to finally complete his

ranch/pond project, so. please let me _ know

immediately if there are any problems.

Thank you in advance.

Yours very truly,

(executed)

Susan S. James

cc: Bob Gertz

A78

United States Soil 211 Chinquapin Round Road

Department of Conservation Annapolis, MD 21401

Agriculture Service 263-6834

January 11, 1988

Mr. Don Spence

Assistant County Solicitor

Office of Law

The Arundel Center

Calvert Street, P.O. Box 1831

Annapolis, MD 21404

Dear Mr. Spence:

Subject: Bob Gertz’s Conservation Plan - Per

your request, the following comments,

plus adjoining topo sheets with drawings,

have been prepared. The rubble fill

items, if followed, will allow Mr. Gertz

to continue implementing his farm plan

concerning pasture establishment. The

pond is already a part of his farm plan;

initial construction has started with

completion hopefully by the first of May.

1. Rubble Fill

a. 4’ minimum compacted clean fill on top of all

material will allow stabilization for future pasture use.

b. Top of fill at downstream end will reach

approximately elev. 85 as shown on County topo.

c. Fill will extend back into _ ravine

A79

approximately 700’ at approximately 2.5% slope.

d. At downstream end of fill, a vegetated

backslope will be established at a 3:1 minimum

compacted slope with an approximate maximum 22’

height.

e. A diversion will be built on top of the fill

approximately 150’ upstream from the downstream

end of the fill; the diversion will be almost 300’

long and constructed on a 1% grade.

f. Riprap on filter cloth will be added from

the outlet of the diversion down the existing swale to

the center of the channel.

g- Gravel and filter cloth will be placed in

the channel] prior to adding any more rubble, the

gravel extending through the fill to help carry surface

water and spring flows.

2. Pond

a. Will be installed as a multi-purpose

recreation-wildlife and sediment basin.

b. Will be built according to USDA-SCS standards

and specifications with construction supervision and as-

built completed by SCS.

c. The pond and proposed pasture use are part of the

conservation plan.

Sincerely,

James W. Wist Jr.

District Conservationist

A80

JWW:dg

cc: Robert E. Gertz

APPROVED AND AGREED TO THIS _6th

DAY OF JUNE, 1988

ROBERT E. GERTZ

(executed)

SUSAN S. JAMES, ESQUIRE

Attorney for Robert E. Gertz

See letter dated 6/1/88 attached

JAMES W. WIST, JR.

(executed contingent upon approval

of letter to Jones dated 6/7/88 _

attached)

DONALD H. SPENCE, JR., ESQUIRE

Attorney for Anne Arunde] County

A8]1

ANNE ARUNDEL COUNTY

Annapolis, Maryland

INTER-OFFICE CORRESPONDENCE

April 28, 1988

TO: Donald H. Spence, Jr., Assistant County Solicitor

FROM: _ L Leroy Jonas, Jr., Assistant Director,

Inspections and Permits

RE: Gertz property St. Stephens Church Road

I have reviewed Mr. Wist’s plan and written

description for restoration activities necessary to bring

the Gertz site into compliance. This plan appears

adequate to address erosion problems at

the site and is acceptable with the following

conditions:

1. No more than approximately 700 linear feet of

the fill should be allowed with the toe ending as shown

on the approved plans.

2. A final fill slope is shown to be 22 feet in height.

This slope will require a total of 66 feet horizontally and

should be included within the 700 feet of fill.

3. The pond must be constructed prior to additional

work in the ravine area to provide adequate sediment

control.

4. James W. Wist, Jr., of the Soil Conservation District

or one of his designated representatives, should inspect the

site periodically to determine that lengths of slopes an

elevations of fill correspond to the approved plan.

A82

5. Fill will only be composed of clearing rubble which

is slash, stumps, root mat and clean earth.

Your cooperation in this matter is appreciated.

LLJ/b

CC: Paul Radauskas, Director, Inspections and Permits

Raymond Riggin, Acting Chief, Environmental

Programs Division

Chron/LLJ

File

(executed by Susan S. James,

Attorney for Robert E. Gertz

{executed by Donald H. Spence

contingent upon your approval

of Jetter

A83

United States Soil 211 Chinquapin Round Road

Department of Conservation Annapolis, MD 21401

Agriculture Service 263-6834

June 1, 1988

Mr. Donald H. Spence, Jr.

Assistant County Solicitor

Arundel Center

44 Calvert Street

P.O. Box 1831

Annapolis, MD 21404

Dear Mr. Spence:

Subject: Robert E. Gertz

I have received a copy of your memo to Leroy

Jonas and myself dated May 26, 1988.

The changes as presented are acceptable to me.

Sincerely,

(executed)

James W. Wist

District Conservationist

Annapolis Field Office

JWW:csc

ce: R. E. Gertz

A84

ANNE ARUNDEL COUNTY, MARYLAND

Heritage Office Complex

P.O. Box 2700

Annapolis, Maryland 21404

(301) 222-7793

DEPARTMENT OF INSPECTIONS AND PERMITS

June 4, 1990

CERTIFIED MAIL: P-146 809 799

Mr. Robert E. Gertz

1211 St. Stephens Church Road

Crownsville, Maryland 21032

RE: 1211 St. Stephens Church Road, Crownsville

Dear Mr. Gertz:

On April 23, 1990, the Anne Arundel County Council

enacted Bill 28-90 that requires the licensure of rubble

landfills. Please find enclosed a copy of that bill for your

reference. A recent inspection of your property indicates

that you are using the property at St. Stephens Church

Road for a rubble landfill. Accordingly, it is necessary that

you obtain a license from Anne Arundel County to

continue this work.

A copy of the application for a permit to operate a

sanitary landfill that is operated solely for the disposal of

rubble is also enclosed. Please complete the application

and return it to this office within thirty days. Your failure

to submit this application within the time outlined above

may result in legal action. Please feel free to call me at

222-7779 if you should have any questions.

A85

Very truly yours,

John Peacock, Chief

Environmental Programs Division

Enclosures

JP/kid

ce: Ray Riggin, Chief, Erosion Control Division

File-Rubble Landfill

Chron

EXHIBIT

A86