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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1995
- **Citation:** 516 U.S. 990

## Text

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

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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

. 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386002_0681%3A1. Public record. Not legal advice.