Petition for Writ of Certiorari — Maryland Reclamation, Inc. v. Ramblewood Homeowners' Association (No. 06-1569)

No. 06-__

IN THE

Supreme Court of the Anited States

MARYLAND RECLAMATION, INC..

Petitioner.

RAMBLEWOOD HOMEOWNER’S ASSOCIATION. ef al..

Respondents.

Petition for a Writ of Certiorari to the

Maryland Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

RUSSELL W. SHIPLEY *

DENNIS WHITLEY, Hl

SHIPLEY & HORNE, P.A.

1101 Mercantile Lane. Suite 240

Largo, Maryland 20774

(301) 925-1800

* Counsel of Record Attorneys for Petitioner

TC

WiSON-EPES PRINTING CO . INC. — (202) 789-0096 - WASHINGTON,D C 20002

QUESTIONS PRESENTED

On November 17, 1992, the following provision was added

to Section 27-406 of the Prince George’s County Zoning

Ordinance:

(h) . . . that when approving a special exception for a

rubble fill, the District Council shall find that the

proposed use is necessary to serve the projected

growth of Prince George’s County.

Thereafter, on April 26, 2005, Section 27-406(h) of the Prince

George’s County Zoning Ordinance was further “clarified”

when the District Council added the following provision:

that when approving a special exception for a rubble fill,

the District Council shall find that the proposed use is

necessary to serve the projected growth of Prince

George’s County, by applicant proof that without the

proposed use the County’s projected growth will be

adversely affected. Proof of a future deficit in or

absence of County-wide fill capacity does not by itself

constitute proof that a proposed fill is necessary to

serve the projected growth in the County.

The question thus presented is: Whether section 27-406(h) of

the Prince George’s County Zoning Ordinance, which was

enacted for the sole purpose of prohibiting citizens of other

states from using rubble fill capacity in Prince George’s

County and restricting the use of rubble fill capacity in the

County solely to citizens of Prince George’s County, by

conditioning approval of special exceptions for a rubble fill

upon a determination that the proposed rubble fill is needed to

serve the projected growth in Prince George’s County, vio-

lates the Commerce Clause of Article I, section 8 of the

United States Constitution?

Additionally, section 27-133 (f)(1) of the Prince George’s

County Zoning Ordinance establishes that the District Coun-

cil “shall exercise original jurisdiction” in deciding whether

(1)

li

to approve a special exception for a rubble fill. Specifically,

§27-132(f)(1) states:

(f) Jurisdiction

(1) In deciding an appeal to the District Council, or

Council election to review a decision made the

Zoning Hearing Examiner or the Planning Board,

Council shall exercise original jurisdiction.

In the instant matter, the District Council determined that

petitioner’s proposed rubble fill would cause adverse effects

greater than would be anticipated at other locations in the R-R

Zone prior to the evidence being presented during oral argu-

ment. As such the other question presented is whether the

District Council violated the petitioner’s Due Process Rights

guaranteed them in the Fourteenth Amendment of the United

States Constitution and Article 24 of the Maryland Decla-

ration of Rights when the District Council decided that

petitioner’s proposed rubble fill would cause adverse effects

greater than would be anticipated at other locations in the

Rural Residential Zone prior to hearing the evidence in oral

argument.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF AUTHORITIES

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATEMENT

CONCLUSION

APPENDIX A

APPENDIX B

APPENDIX C

APPENDIX D

APPENDIX E

APPENDIX F

1V

TABLE OF AUTHORITIES

CASES Page

Boehm v. Anne Arundel County, 54 Md. App.

497, 459 A.2d 590 (1983) 12

Bowman v. Chicago & Northwest R. Co., 125

C&A Carbone, Inc. v. Town of Clarkstown, 511

U.S. 383, 389-90; 114 S. Ct. 1677, 128 L. Ed.

399 (1994)

City of Philadelphia v. New Jersey, 437 US.

617; 98 S. Ct. 2531; 57 L. Ed. 475 (1978)

Halle Cos. v. Crofton Civic Ass'n, 339 Md 131,

661 A.2d 682 (1994)

Hughes v. Oklahoma, 441 U.S. 322, 60 L. Ed.

2d. 250, 99 S. Ct. 1727 (1979)

Hyson v. Montgomery County Council, 242 Md.

55, 217 A.2d 578 (1966)

Maine v. Taylor, 477 U.S. 131, 91 L. Ed. 2d 110,

106 S. Ct. 2440 (1986)

Minnesota v. Barber, 136 U.S. 313, 34 L. Ed.

455, 10. S. Ct. 862 (1890)

NLRB v. Jones & Laughlin Steel Corp., 301 U.S.

1., 31, 81 L. Ed. 893, 57 S.Ct. 615 (1937)

Pike v. Bruce Church, Inc., 397 U.S. 137, 142,

25 L. Ed. 2d 174, 90 S. Ct. 844 (1970)

OTHER AUTHORITIES

2 Am. Jur.2d Administrative Law § 698 (1962)...

B. Schwartz, Administrative Law § 67 (1976)

IN THE

Supreme Court of the Anited States

No. 06-__

MARYLAND RECLAMATION, INC.,

Petitioner,

Vv.

RAMBLEWOOD HOMEOWNER’S ASSOCIATION, ef al., -

Respondents.

Petition for a Writ of Certiorari to the

Maryland Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

Petitioner, Maryland Reclamation, Inc., requests that a writ

of certiorari issue to review the judgment of the Maryland

Court of Appeals entered on December 15, 2006, in the case

of Maryland Reclamation, LLC v. Ramblewood Homeowner's

Association, et al., Petition Docket No. 297, September Term.

2006, No. 812, September Term, 2005 Court of Special

Appeals. That judgment finally denied Maryland Reclama-

tion’s Petition for Judicial Review filed originally in the

Circuit Court for Prince George’s County, Maryland pursuant

to Maryland Annotated Code. In said petition Maryland

Reclamation, LLC asked the court to determine whether or

not the requirement of § 27-406(h) of the Prince George’s

County Zoning Ordinance violated the interstate commerce

clause of the United States Constitution by requiring the

applicant to prove that the proposed “Sanitary Landfill”

2

(Rubble Fill) was necessary to accommodate the projected

growth within the County and whether the Prince George’s

County Council, sitting as the District Council, (hereinafter

District Council) violated the petitioner’s due process rights

by deciding the outcome of their zoning “special exception”

application appeal prior to hearing oral arguments.

OPINIONS BELOW

The Maryland Court of Appeals has issued an Order in this

case denying Maryland Reclamation’s Petition for Writ for

Certiorari, a copy of which appears in Appendix A to this

petition at page 1. The Maryland Court of Appeals has also

issued an Order in this case denying petitioner’s Motion for

Reconsideration of Denial of Petitioner for Writ of Certiorari,

a copy of which appears in Appendix B to this petition at

page 2. The Maryland Court of Special Appeals has issued an

unreported opinion in this case, a copy of which appears in

Appendix C to this petition at page 3. The Circuit Court for

Prince George’s County, Maryland has also issued an unre-

ported opinion in this case, a copy of which appears in

Appendix D to this petition at page 23. The Circuit Court for

Prince George’s County, Maryland has also issued an unre-

ported Order of Remand in this case, a copy of which appears

in Appendix E to this petition at page 28.

JURISDICTION

The Order of the Maryland Court of Appeals was entered

on December 15, 2006. The Jurisdiction of this Court is

invoked under 28 U.S.C.A. § 1257(a).

CONSTITUTIONAL PROVISION INVOLVED

This case involves the Commerce Clause of Article I, sec-

tion 8 of the Un:ted States Constitution. Such section reads in

pertinent parts as follows:

The Congress shall have Power To lay and collect Taxes,

Duties, Imports and Exercise, to pay the Debts and pro-

3

vide for the common Defence and general Welfare of the

United States; but all Duties, Imports and Exercises shall

be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and

among the several States and with Indian Tribes; . .. .

This case also involves the Due Process Clause of the Four-

teenth Amendment of the United States Constitution and

Article 24 of the Maryland Declaration of Rights. The Due

Process Clause of the Fourteenth Amendment of the United

States Constitution reads as follows:

All persons born or 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 privilege 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 within its jurisdiction the equal protection of the

law.

Article 24 of the Maryland Declaration of Rights reads as

follows:

That no man ought to be taken or imprisoned or dis-

seized of his freehold, liberties or privileges, or out-

lawed,, or exiled, or in any manner, destroyed, or de-

prived of his life, liberty or property, but by judgment of

his peers, or by the Law of the land.

It may also be found in Md. Code Ann. Const. Art. 24 (2003

Replacement Vol.).

STATEMENT

Petitioner, Maryland Reclamation LLC, is a limited liabili-

.ty company organized under the laws of the State of Mary-

land. Petitioner is also the owner of a 131.5374 acres site in

4

Prince George’s County, Maryland (hereinafter the property).

Respondent Ramblewood Homeowners Association is a

corporation organized under the laws of the State of Mary-

land and represents a single family residential community

within a one mile radius of Petitioner’s property. Respondent

Prince George’s County Council, sitting as the District Coun-

cil, is body corporate and politic and a charted niunicipal

corporation under the Maryland Annotated Code Article 23A

and 23B.

On or about April 4, 1999, Petitioner filed Special Excep-

tion Application 4347 (hereinafter SE. 4347) for permission

to convert the approved active surface mining operation and

Class III grading operation on the property into a rubble fill.

The rubble fill application consisted of a west mound, 88.6

acres with a maximum elevation of 250 feet and an east

mound, 42.9 acres with a maximum elevation of 160 feet.

Mcreover, it should also be noted that both of the aforemen-

tioned mound requested in the rubble fill application are the

exact same dimensions as those previously approved for the

Class III fill which is currently in operation.

On or about February 25, 2000, the Maryland National

Park & Planning Commission issued its Technical Staff

Report recommending approval of SE. 4347 with conditions.

On July 20, 2000, the Planning Board finished the public

hearing on SE.4347 and recommended approval with condi-

tions. After eleven hearings beginning on January 31, 2001,

and continuing through August 14, 2001, the Chief Zoning

Hearing Examiner (hereinafter ZHE) for Prince George’s

County issued a decision approving SE. 4347 (for the west

mound) with conditions. The petitioner and the respondent

both filed Exceptions to the ZHE’s decision.

On or about June 10, 2002, the Prince George’s County

Council, sitting as the District Council, (hereinafter Dis-

trict Council) without holding oral argument on the par-

ties Exceptions decided to remand the case back to the

5

ZHE. On June 12, 2002, without having reviewed any

testimony or exhibits on the application or hearing oral

arguments thereon, the District Council issued an Order

of Remand which stated in pertinent parts:

5. The record in this case demonstrates substantial

adverse impacts to adjacent properties and the

surrounding area, if a rubble fill is approved on the

subject property. (Emphasis added) This remand is

ordered only because S.E. 4408, an application for a

rubble fill expansion and extension on property less than

a mile from the subject property, has been remanded to

reexamine the necessity issue in light of the decision in

CAL 01-21330. The necessity issue must be reviewed by

the Examiner in both S.E. 4408 and S.E. 4347, before

the District Council can decide them. (E.P1-P5)

Thereafter, the Technical Staff and the Appellee provided

additional analyses of need and the ZHE held two additional

hearings. On March 3, 2003, the parties submitted written

closing arguments, the record was closed and the ZHE took

the application under advisement. On May 1, 2003, the ZHE

issued her decision on remand approving SE. 4347 (for the

west mound) with conditions. Again, both parties filed Ex-

ceptions to the ZHE’s decision. On or about September 22,

2003, the District Council heard oral argument on the Excep-

tions filed in SE. 4347 and denied Appellee’s application for

the following relevant reasons:

14. The District Council further concludes, as argued by

opposition residents, particularly those in the Ramble-

wood and Robshire Acres communities, that the

applicant did not prove, as is required by § 27-317 of the

Zoning Ordinance, that the proposed rubble fill at this

location will not cause adverse effects greater than

ven.Id be anticipated at other locations in the R-R Zone.

1ias proposed S.E. 4347 site is much closer to estab-

lished residential subdivisions than other R-R sites,

including the S.E 4408 site recentiy approved by the

6

District Council. Visual, noise, and odor effects from the

rubble fill at the subject location will be much greater

than would be anticipated at the S.E 4408 property and

other R-R zone locations. This proof in the record offers

an additional reason to deny the application.

15. Because the applicant did not prove that its pro-

posed rubble fill facility is “necessary to serve the

projected growth in Prince George’s County,” § 27-406

(h), and because the applicant did not show that antici-

pated adverse traffic, noise, odor, and visual effects at

this location will be no worse than they would be at

other R-R locations in the County, § 27-317, the applica-

tion must be denied.

Thereafter, Maryland Reclamation filed a timely Petition

for Judicial Review. On or about July 16, 2000, the Circuit

Court heard oral argument on Respondents’ Petition for

Judicial Review. At the conclusion of the oral argument the

Circuit Court took the case under advisement to issue a

written decision. On or about July 21, 2004, the Circuit Court

issued an Opinion and Order of the Court remanding the case

back to “the District Council for it to explain its rationale for

using what the court deemed to be an unwarranted inter-

pretation of § 27-406(h) (the “necessity” requirement) of the

Prince George’s County Zoning Ordinance.” On or about

November 8}°2004, the respondent District Council re-

adopted its Order of Denial dated September 25, 2003, and

again denied Maryland Reclamation’s Special Exception

application.

Subsequently, on or about July April 29, 2005, the Circuit

Court for Prince George’s County again heard oral argument

on this matter and took the case under advisement. On or

about May 3, 2005, the Circuit Court issued and Opinion and

Order remanding the case back to the District Council for

further proceedings “to consider whether the applicant’s pro-

posed rubble fill will alleviate some of the County’s projected

need” for rubble fill capacity. Thereafter, on or about June 1,

7

2005, and June 10, 2005, the Respondents filed timely

Notices of Appeal.

On February 9, 2006, the Court of Special Appeals held

oral argument and took the case under advisement. On June

22, 2006, the Court of Special Appeals issued an unreported

opinion holding “that there was sufficient facts with respect

to disproportionately adverse effects, and that there was

substantial evidence to support those findings.” On July 24,

2006, the Court of Special Appeals issued its Mandate.

On August 8, 2006, the Petitioner filed a timely Petition for

Writ of Certiorari to the Maryland Court of Appeals. On

October 18, 2006, the Maryland Court of Appeals issued an

Order denying the petition. On November 17, 2006, the

petitioner filed a timely Motion for Reconsideration of the

Order Deny Certiorari. On December 15, 2006, the Court of

Appeals issued an Order denying the petitioner’s Motion for

Reconsideration.

REASONS FOR GRANTING THE WRIT

This case concerns the rights of Maryland Reclamation

LLC to own and operate a rubble fill in Prince George’s

County, Maryland that is able to receive rubble from the

entire Baltimore-Washington Metropolitan region without a

protective local ordinance established to reserve rubble fill

capacity for in-County rubble. The illegal and uncon-

stitutional motives for the necessity provision in § 27-406

of the Prince George’s County Zoning Ordinance is clearly

demonstrated in the legislative history of the amendment.

Ti..s zoning legislation added subsections (g) and (h), at the

end of § 27-406. The “agenda item summary” for Council

Bill 85-1992, approved by the District Council on November

17, 1:92 states the following as the reason for the bill:

There are certain special exception uses, including gas

stations and planned retirement communities, for which

a finding of need within a particular service area must be

8

made. This legislation requires a similar finding for the

approval of rubble fills. Specifically, an analysis must be

included in the Technical Staff Report, and the District

Council must use this information to determine whether

the proposed use is necessary to serve the needs of

Prince George’s County. Appendix F, pg 34(a) (em-

phasis added).

The report of the Council’s Planning, Zoning and Eco-

nomic Development Committee, on the first page of the

agenda item summary, gives the reason for the legislation and

the committee’s favorable (5-0) vote as:

Staff explained that this legislation is intended to ensure

that the rubble fills approved in Prince George’s County

are necessary to serve the needs of this County, and not

the needs of the entire region. The sponsor [of the legis-

lation, Kirk Wineland] added that since Federal law

prohibits the county from restricting the use of privately-

owned rubble fills, requiring a needs analysis prior to

special exception approval will help preserve this re-

source and protect the citizens of the County. Appendix

F; pg 34(a) (emphasis added).

Thus, it is clear that CB-85-1992 was enacted for the sole

purpose of preserving rubble fill space for the needs of Prince

George’s County, “not the needs of the entire region.”

Section 27-406 of the Prince George’s County Zoning

Ordinance deprives individuals in Washington D.C., Northern

Virginia and other counties in Maryland of available rubble

fill capacity and rubble fill applicants, like the Petitioner, are

deprived of a right to offer their needed service to out-of-state

rubble fill users until such time that a need for rubble in

Prince George’s County arises. Discrimination against rubble

from Washington D.C., Northern Virginia and other counties

in Maryland with reference to the needs analysis, in favor of

Prince George’s County rubble is per se invalid, except in a

narrow category of cases (none of which apply to the instant

matier) in which the municipality can demonstrate under

9

strict scrutiny, that it has no other means to advance a legiti-

mate local interest. Maine v. Taylor, 477 U.S. 131, 91 L. Ed.

2d 110, 106 S. Ct. 2440 (1986) (upholding Maine’s ban on

the import of non-indigenous fish, which was causing the

spread of parasites and the adulteration of its native fish

population).

Moreover, banning of out-of-county rubble in the determi-

nation of need required by § 27-406 of the Prince George’s

County Zoning Ordinance implicates the Commerce Clause.

This Court in C&A Carbone, Inc. v. Town of Clarkstown, 511

U.S. 383, 389-90; 114 S. Ct. 1677, 128 L. Ed. 399 (1994), ex-

plained that: ;

as solid waste output continue to apace and land fill

capacity becomes more costly and scarce, state and local

governments are expending significant resources to de-

velop trash control systems that are efficient, lawful and

protective of the environment. The difficulty of their

task is evident from the number of recent cases that we

have heard involving waste transfer and treatment. . .

The case decided today, while perhaps a small new

chapter in that course of decisions, rests nevertheless

upon well-settled principles of our Commerce Clause

jurisprudence. (citations omitted)

The Commerce Clause, U.S. Const. art. I § 8, cl.3, gives

Congress exclusive power over interstate commerce. It is well

settled that actions are within the domain of the Commerce

Clause if they burden interstate commerce or impede its free

flow. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1., 31,

81 L. Ed. 893, 57 S.Ct. 615 (1937). The Commerce Clause

has also been interpreted to invalidate local laws that impose

commercial barriers or discriminate against an article of com-

merce by reason of its origin or destination out of state. City

of Philadelphia v. New Jersey, 437 U.S. 617; 98 S. Ct. 2531;

57 L. Ed. 475 (1978) (striking down a New Jersey statue that

prohibited the import of solid waste); Hughes v. Oklahoma,

10

441 US. 322, 60 L. Ed. 2d. 250, 99 S. Ct. 1727 (1979)

(striking down Oklahoma law that prohibited the export of

natural minnows). As such, in the case sub judice there

should be no doubt that since § 27-406 only focuses on in-

county rubble and excludes from the analysis other rubble

that could potentially be brought in from surrounding

jurisdictions, the constitutional protection of the Commerce

Clause is available. Philadelphia, infra; Bowman v. Chicago

& Northwest R. Co., 125 U.S. 465.

In determining whether to grant Certiorari to address the

Prince George’s County needs provision, this Court’s deci-

sion in C&A Carbone, Inc., v. Town of Clarkstown, 511 U.S.

383, 389-90; 114 S. Ct. 1677, 128 L. Ed. 399 (1994) may be

is helpful. In Carbone, the Town of Clarktown adopted a

trash flow control ordinance requiring all non-hazardous solid

waste within the town to be deposited a one specific transfer

station prior to export. The purpose and effect of the ordi-

nance was to allow the owner of the transfer station to charge

a tipping fee on all trash which originated in the town. After

learning that recyclers in the town were not complying with

the ordinance the town filed suit-in state court. The case even-

tually made its way to the United States Supreme Court

which explained that in determining the validity and consti-

tutionality of local laws which infringe upon the Commerce

Clause, case law has produced two lines of cases: “first,

whether the ordinance discriminates against interstate com-

merce, Philadelphia, 437 U.S. at 624; and second, whether the

ordinance imposes a burden on interstate commerce that is

‘clearly excessive in relation to the putative local benefits,’

Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 25 L. Ed. 2d

174, 90 S. Ct. 844 (1970). Moreover, if the reviewing court

finds that the ordinance discriminates against interstate com-

merce, there is no need to apply the Pike test.

In the instant matter, Section 27-406 (g) and (h) of the

Prince George’s County Zoning Ordinance are illegal and un-

1]

constitutional infringements on interstate commerce. Specifi-

cally, § 27-406 requires approval of a rubble fill application

only upon a showing that there exist an actual deficit of

rubble capacity needed for Prince George’s County rubble.

The Petitioner should not be denied his night to provide

available rubble capacity to the entire Baltimore-Washington

area until there is a need for said capacity for Prince George’s

County. Additionally, public service projects like the con-

struction of the new Wilson Bridge should not be hampered

by a lack of available rubble fill capacity so that the Prince

George’s County Council can conserve rubble capacity on

privately owned property for a public use. Stated differently,

the problem with 27-406 is that it hoards local resources, (i.e.

available rubble fill capacity) for the benefit of local residents

and businesses. Section 27-406 is just the type of local

processing requirement that the United States Supreme Court

has long held invalid. See Minnesota v. Barber, 136 U.S. 313,

34 L. Ed. 455, 10. S. Ct. 862 (1890) (striking down a Minne-

sota statute that required any meat sold within the state, to be

examined by a state inspector.), Pike v. Bruce Church, Inc.,

397 U.S. 137, 142, 25 L. Ed. 2d 174, 90 S. Ct. 844 (1970)

(striking down an Arizona statute that required all Arizona-

grown cantaloupes to be packed in state prior to exporting).

This case also concerns the rights of Maryland Reclama-

tion LLC to a fair hearing under the Due Process Clause of

the Fourteenth Amendment of the United States Constitution

and Article 24 of the Maryland Declaration of Rights.

Specifically, the District Council violated the petitioner’s Due

Process Rights when it decided that petitioner’s proposed

rubble fill would cause adverse effects greater than would be

anticipated at other locations in the Rural Residential Zone

prior to hearing any testimony or any evidence being enter

into the record.

Section 27-133 (f)(1) of the Prince George’s County Zon-

ing Ordinance establishes that the County Council “shall

12

exercise original jurisdiction” in deciding whether to approve

Petitioner’s special exception for a rubble fill. Specifically,

§27-132(f)(1) states:

(f) Jurisdiction

(1) In deciding an appeal to the District Council, or

Council election to review a decision made by the

Zoning Hearing Examiner or the Planning Board,

Council shall exercise original jurisdiction.

Thus, there should be no doubt that the District Council’s

review of the Zoning Hearing Examiner’s decision was de

novo, and that the respondent District Council violated the

Petitioner’s due process right by stating in the Order of

Remand prior to any evidence being placed in the record that

“the record in this case demonstrates substantial adverse

impacts to adjacent properties and the surrounding area, if a

rubble fill is approved on the subject property. (Emphasis

added)

Maryland law is clear that unless otherwise limited by

statute or court rule, a “de novo hearing” of administrative

decision by reviewing boards is an entirely new hearing at

which time all aspects of the case should be heard anew as if

no decision had been previously rendered. Halle Cos. v.

Crofton Civic Ass'n, 339 Md 131, 661 A.2d 682 (1994);

Boehm v. Anne Arundel County, 54 Md. App. 497, 459 A.2d

590 (1983). Moreover, as the Boehm Court stated, an excel-

lent position, of what a “de novo” hearing embraces can be

found in 2 Am. Jur.2d Administrative Law § 698 (1962). That

section provides:

A trial or hearing “de novo” means hying the matter

anew the same as if it had not been heard before and as

if no decision had been previously rendered. Thus, it is

said that where a statute provides that an appeal shall

be heard de novo such a hearing is in no sense a review

of the hearing previously held, but is a complete trial of

the controversy, the same as if no previous hearing had

13

ever been held, especially where the hearing is in a

court of general, original juris-diction. Where a statute

provides for a trial de novo and does not provide that the

findings of the administrative agency shall be conclusive

or of any force, the whole matter is opened up for

consideration on appeal as if the proceeding had been

originally brought in the reviewing court. Trial in court

is not an appellate proceeding where the statute provides

for a suit to set aside an award and for determination of

the issues upon trial de novo. Even though designated an

“appeal,” a review in which the court is not confined to a

mere re-examination of the case as heard before the

administrative agency but hears the case de novo on the

record before the agency and such further evidence as to

be regarded as an original proceeding. Thus, on a trial or

hearing de novo it has been held immaterial what errors

or irregularities or invasion of constitutional rights took

place in the initial proceedings.

A trial de novo or a de novo hearing of the matter

under “review” may be new and different from the trial

or hearing before the administrative agency in respect of

one or more, or all, of the following: evidence heard or

facts considered, especially where the administrative

agency did not afford a hearing; issues raised; findings

made; grounds for decision; and the view of the evi-

dence heard or facts considered, the opinion as to the

preponderance of the evidence, and the proper judgment

to be reached or action to be taken in accordance with

the evidence or facts as thus viewed. The last element

would appear to be the essential element of a true trial or

hearing de novo and may be embraced by general

statements of a court that a trial de novo is involved.

Not all the foregoing elements of a trial or hearing de

novo are necessarily made operative by the fact that new

and additional evidence is admitted in court, at least in

the view of some courts; and not all of the elements are

made operative as to all types of situations by the fact

that a statute expressly authorizes or requires a trial or

14

hearing de novo. The scope of de novo review of the

actions of administrative agencies, or the significance of

a trial designated as a trial de novo in such case, may

vary with the subject matter of the review of the function

of the agency, and may be tested in the light of the

nature and scope of the remedy through which such trial

is made available and the proper distribution of govern-

mental powers among the various branches of govern-

ment under the Constitution. Thus, there may be a tral

de novo upon the record as some statutes expressly

provide, and a trial de novo in which the court must con-

sider the record before the agency, accord a presumption

of correctness or proper deference to the agency findings

and conclusion, and a refrain, at least in matters other

than judicial, from substituting its discretion or judg-

ment for that of the administrative agency. (footnotes

omitted) (emphasis supplied).

It is also well established in Maryland law that whether

constitutional or statutory requirements or elements of fair

play and impartiality have been violated in an administrative

hearing should be decided on a case by case basis. Hyson v.

Montgomery County Council, 242 Md. 55, 217 A.2d 578

(1966), In addressing due process within the context of

administrative hearings, Professor Schwartz, in his treatise on

Administrative Law, states:

The literal meaning of due process is fair procedure.

* * * *

Before an agency takes action which adversely affects

particular rights and obligations, those affected must be

given notice and an opportunity to present their side of

the case in a full and fair hearing. But more is required

of agencies than minimal compliance with the “hear the

other side” principle. When due process requires a hear-

ing, it requires many of the elements of a “trial-type”

hearing. Building upon the due process foundation, the

courts have constructed an imposing edifice of formal

15

adjudicatory procedure. The consequence has been a vir-

tual judicialization of the administrative process. Admin-

istrative procedure has acquired many of the attributes of

courtroom procedure.

The rights required by due process before an admin-

istrative agency typically include the right to:

(1) Notice, including an adequate formulation of the

subjects and issues involved in the case;

(2) Present evidence (both testimony and documents)

and argument;

(3) Rebut adverse evidence, through cross-examina-

tion and other appropriate means;

(4) Appear with counsel

(5) Have the decision based only upon evidence in-

troduce into the record of the hearing;

(Emphasis added) and

(6) Have a complete record, which consists of a tran-

script of the testimony and arguments, together

with the documentary evidence and all other

papers filed in the proceeding. B. Schwartz,

Administrative Law § 67 (1976)

In the instant matter, the Petitioner was entitled to a de

novo appeal on the record and procedural due process re-

quired that Respondent District Council refrain from making

a decision concerning the alleged cumulative adverse effects

of the proposed special exception until such time that oral

argument on the application was held. However, it is clear

that the decision by the District Council to deny Petitioner’s

rubble fill application on September 22, 2003, was not based

on any evidence introduced into the record of the hearing. A

review of the Order of Remand from June 12, 2002, makes

clear that the District Council had already decided to deny

Petitioner’s rubble fill application before it heard the first

scintilla of evidence. Specifically, the District Council de-

16

cided and stated in the aforementioned Order of Remand

almost 15 months earlier, and prior to having any evidence

introduced in the record that “THE RECORD IN THIS

CASE DEMONSTRATES SUBSTANTIAL ADVERSE

IMPACTS TO ADJACENT PROPERTIES AND THE

SURROUNDING AREA, IF A RUBBLE FILL IS AP-

PROVED ON THE SUBJECT PROPERTY.” (Emphasis

added) Consequentially, there should be no doubt that the

District Council decided this case prior to holding oral argu-

ment on September 22, 2003 and Petitioner’s was denied its

due process of law.

CONCLUSION

WHEREFORE, Petitioner requests that a writ of certiorari

issue from this Honorable Court to review the judgment

of the Court of Appeals of Maryland in the case Maryland

Reclamation, LLC v. Ramblewood Homeowner’s Association,

et al., Petition Docket No. 297, September Term, 2006, No.

812, September Term, 2005 Court of Special Appeals. In the

event that the petition is granted, petitioner requests that the

judgment of the Maryland Court of Special Appeals be

reversed, and that the cause be remanded, and that the court

below be directed to approve the petitioner’s application for a

rubble fill.

Respectfully submitted,

RUSSELL W. SHIPLEY *

DENNIS WHITLEY, III

SHIPLEY & HORNE, P.A.

1101 Mercantile Lane, Suite 240

Largo, Maryland 20774

(301) 925-1800

* Counsel of Record Attorneys for Petitioner