Petition for Writ of Certiorari — New Pulaski Co. v. Mayor of Baltimore

00 759 Nov 1 520g

No. 00- Urrice OF JHE CLERK

IN THE

Supreme Court of the United States

THE NEW PULASKI COMPANY LIMITED PARTNERSHIP,

Petitioner,

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES CouRT OF APPEALS FOR THE FouRTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Rocer W. Titus

Counsel of Record

MITCHELL Y. MIRVISS

Kevin B. COLLINS

VENABLE, BAETJER AND Howarpb, LLP

One Church Street, Fifth Floor

Rockville, Maryland 20850

(301) 217-5600

Attorneys for Petitioner

163258 @) Counsel! Press LLC

(800) 274-3321 + (800) 359-6859

ar sm eee RERORoRN . . re. . 0 PARNER ce ten IU TY TNR PEGS 2 SOS URW AOR ANOS OAR (EA SPR EAR

i

QUESTION PRESENTED

Is the finality requirement for the ripeness of a

constitutional claim inapplicable where the available

variance or exemption process requires a decision by a

“legislative/political” body? '

i

TABLE OF CONTENTS

Queshon Presetel i. cis si eeee es ee eeeeeees

Table of Contents ..... (Ace e eee eekea ees

Table of Cited Awthorvtees 2... 2c ccc veccseseice

Table of Appemipees cc ss isi ndae co yenseweeees

Opinions Below and Statement of Jurisdiction ....

Constitutional Provisions and Ordinances

venvede wo ac cc ceee kee eee

Statement of the Case snd District Court

Juviedactigm oko vc kk cane’ Cee eee

Facts Material to the Question Presented ........

a. Background Facts Concerning the

Incinereht. 3... ian cee

b. The Incinerator Moratorium and the Express

Exemption Procedure. .......scscsaveass

c. Pulaski’s Pursuit of an Exemption. .......

Reasons for Granting the Writ .................

Compbesigm .. . nics idbseesnu eee

Page

ill

TABLE OF CITED AUTHORITIES

Page

Cases:

Hodel v. Virginia Surface Mining & Reclamation

Ass'n, Inc., 452 U.S. 264 (1981) ............. 9

Lucas v. South Carolina Coastal Council, 505 U.S.

SE or a 2 n.d oc a bo bok 0b a wok oa cn dds 9

!

Mayor & City Council v. The New Pulaski Company

Limited Partnership, 684 A.2d 888 (Md. Ct. Spec.

App. 1996), cert. denied, 690 A.2d 523

a ee 4,7

Penn Central Transp. Co. v. City of New York, 438

De en ee en 17

Suitum v. Tahoe Reg 'l Planning Agency, 520 U.S.

Ne ooo 6 Ss aac hota’ doade 9,14

Tahoe-Sierra Preservation Council vy. Tahoe

Reg 'l Planning Agency, 911 F.2d 1321 (9th Cir.

LS see oe a ae aa 3, 10, 11, 12, 14

Tahoe-Sierra Preservation Council vy. Tahoe

Reg'l Planning Agency, 938 F.2d 153 (9th Cir.

TESST Ra eee een 3, 10, 15, 17

Williamson County Regional Planning Comm'n vy.

Hamilton Bank, 473 U.S. 172 cag ed passim

Yee v. City of Escondido, 503 U.S. 519 (1992) .... 13

iv

Cited Authorities

Page

United States Constitution:

EE hk tk ks rasa ERA 1,4

Ee axcedkbigescedsessscuasecesae 2,4

Statutes:

Be Ces END 6 KC LES eviewhd cccneeecee |

28 U.S.C. § EEE Sidhe nak abadieneiaader nou 1

Be Cs EEE 4 kp edanecccdeceesinaes ]

gk ae 2 ry rer ry Ore ree 4

Md. Code Ann., Cts. & Jud. Proc. § 5-101 ....... 8

Rule:

United States Supreme Court Rule 10(c) ........ 8

Other Authorities:

City of Baltimore, Ordinance No. 128 ....... 2, 6, 7, 10

City of Baltimore, Council Bill No. 846 ........ 2

TABLE OF APPENDICES

Appendix A — Opinion Of The United States Court

Of Appeals For The Fourth Circuit Dated And

precunnel Siby DR BOOO 555 sk wn oe ee

Appendix B — Memorandum Opinion And Order

Of The United States District Court For The

District Of Maryland Dated July 22,1997 .....

Appendix C — Order Of The United States Court

Of Appeals For The Fourth Circuit Denying

Petition For Rehearing And Rehearing En Banc

Dated And Filed August 15,2000 ............

Appendix D — City Of Baltimore, Ordinance

No. 128, Enacted Amguet 7,1992 .........0-.

Appendix E — City Of Baltimore, Council Bill No.

846, Proposed May 9, 1994 .................

Appendix F — Certication For Council Bill No. 846

By City Of Balitmore’s Director Of The

Department Of Public Works, Dated May 5,

SOO i366 2ceweeats tee ee eee

l

The New Pulaski Company Limited Partnership

(“Pulaski”) petitions for a writ of certiorari to review the

judgment below of the United States Court of Appeals for

the Fourth Circuit.

OPINIONS BELOW AND

STATEMENT OF JURISDICTION

The Fourth Circuit’s judgment issued on July 20, 2000.

Its decision appears at 2000 WL 1005207 and 2000 US.

App. LEXIS 17492 and is reprinted in Appendix A. A timely

petition for rehearing and for rehearing en banc was denied

on August 15, 2000. (Appendix C). This petition is filed

within 90 days of that date. Jurisdiction in this Court is

founded on 28 U.S.C. § 1254(1).

The District Court’s decision in this case was rendered

on July 22, 1997. The District Court possessed original

jurisdiction over the case pursuant to 28 U.S.C. §§ 1331 and

1343(a)(3). Its opinion is reprinted in Appendix B.

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

Constitutional Provisions:

U.S. Const. Amendment V.

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury, except

in Cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

2

for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any

criminal caseto be a witness against himself, nor

be deprived of life, liberty, or property, without

due process of law; nor shall private property be

_ taken for public use, without just compensation.

U.S. Const. Amendment XIV.

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 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.

Ordinances:

City of Baltimore, Ordinance No. 128, enacted

8/7/92

Due to its length, this ordinance is reproduced

in Appendix D at p. 31a.

City of Baltimore, Council Bill No. 846,

proposed 5/9/94

Due to its length, this ordinance is reproduced

in Appendix E at p. 37a.

3

STATEMENT OF THE CASE AND

DISTRICT COURT JURISDICTION

This is a case in which the Petitioner faithfully adhered

to this Court’s oft-stated proscription against bringing

unripe constitutional claims by first exhausting its

remedies under state law through the pursuit of an exemption

expressly authorized in the pertinent municipal ordinance.

Petitioner brought the action below within the applicable

period of limitations following an unsuccessful attempt to

secure the exemption, only to be met by an assertion,

accepted by the District Court and a divided Court of

Appeals, that its claims were barred by limitations because

of a novel “political/legislative” exception to the final

decision ripeness requirement. Those courts deemed the

claims untimely because the exemption process set forth in

the ordinance involved in part the political judgment of a

municipal legislative body, as opposed to the administrative

judgment of an executive agency. The Fourth Circuit’s

two-to-one decision was rendered over the strong dissent of

Judge Karen J. Williams, who described the majority’s

reasoning as “disingenuous.” (App. A at 20a).

The Fourth Circuit’s division echoes a previous split by

the Court of Appeals for the Ninth Circuit, where two panels

disagreed on whether an exception to the ripeness doctrine

exists for purportedly “political/legislative” decisions by a

state planning agency. Compare Tahoe-Sierra Preservation

Council v. Tahoe Reg’! Planning Agency, 911 F.2d 1321,

1344-47 (9th Cir. 1990) (“Tahoe I’) with Tahoe-Sierra

Preservation Council v. Tahoe Reg’! Planning Agency,

938 F.2d 153, 157 (9th Cir. 1991) (“Tahoe IT’).

4

This case is significant because it presents the Court with

the opportunity, indeed the necessity, to clarify that there is

no “political/legislative” exception to the ripeness final

decision doctrine described by this Court in Williamson

County Regional Planning Comm'n v. Hamilton Bank,

473 U.S. 172 (1985). If the decision is allowed to stand, the

predictable result will be a flood of premature takings and

other constitutional claims brought by practitioners

understandably reluctant to await the outcome of an

exemption process that may or may not be deemed “political”

or “legislative” post hoc.

Pulaski commenced this lawsuit in Maryland state court

against the Mayor and City Council of Baltimore (the “City”’)

asserting claims, inter alia, under 42 U.S.C. § 1983 and

seeking substantial damages for the City’s unlawful and

unconstitutional actions to force the closure of Pulaski’s solid

waste incinerator located in Baltimore City. Pulaski alleged

that the City had violated its rights under the Takings Clause

of the Fifth Amendment and the Due Process Clause of the

Fourteenth Amendment (and their counterparts in the

Maryland state constitution) by imposing and maintaining

an illegal moratorium ordinance banning the replacement of

its obsolete solid waste incinerator facility.'

The City removed the case to the District Court.

Although it rejected a number of the City’s arguments for

dismissal, including arguments going to the merits of

Pulaski’s claims, the District Court dismissed Pulaski’s

1. The state courts had previously held the moratorium

ordinance illegal under Maryland state law. See Mayor & City

Council v. The New Pulaski Company Limited Partnership, 684 A.2d

888 (Md. Ct. Spec. App. 1996), cert. denied, 690 A.2d 523

(Md. 1997).

5

complaint on limitations grounds, and this decision was

affirmed by the Fourth Circuit in a two-to-one decision.

(App. A & B).

FACTS MATERIAL TO THE

QUESTION PRESENTED

a. Background Facts Concerning the Incinerator.

From 1956 through 1981, the City constructed, owned,

and operated a solid waste incinerator (the “Incinerator’’)

located in the city and was responsible for all costs of its

operation and maintenance. By 1981, the Incinerator was in

dilapidated condition and in desperate need of repair.

Because of the tremendous costs irvolved in upkeep and

repair of the Incinerator, the City sold it to Pulaski for

$41,000,000 and agreed to pay Pulaski operating fees to fund,

inter alia, the costs of complying with environmental laws,

orders, and regulations.

Although the City initially paid its share of the cost of

substantial renovations by Pulaski to bring the Incinerator

into compliance with State and federal environmental

standards, the City eventually received heavy criticism for

its compliance with the Pulaski contract, which opponents

condemned as unfair and economically disadvantageous to

the City. In 1989, the City learned that its share of retrofit

costs for complying with new environmental standards could

exceed $40 million, a politically untenable sum. Therefore,

the City advised Pulaski that it would not reimburse any

expenses for retrofitting the Incinerator, saddling Pulaski

with the entire $60 million cost of retrofitting — costs that

the City acknowledged were necessary to comply with

environmental requirements. In response, Pulaski proposed

6

to replace its existing Incinerator with a new state-of-

the-art, waste-to-energy facility, at no cost to the City, rather

than continue the retrofit process.

b. The Incinerator Moratorium and the Express

Exemption Procedure.

In January 1992, news of Pulaski’s imminent sale of the

Incinerator to another company for construction of the new

facility was made public, resulting in an even greater outcry

by community and environmental activists. Pulaski

opponents on the City Council immediately introduced a bill

to impose a moratorium on the construction, reconstruction,

replacement, or expansion of any incinerator in Baltimore

City (the “Moratorium”). (App. D). Moratorium sponsors

on the City Council publicly confirmed that their bill was

intended to block the sale or replacement of the Incinerator

by Pulaski and thus indirectly force its permanent closure

due to the prohibitive costs of retrofitting. That way, the City

might avoid incurring condemnation damages that some

feared could approach $100 million. The Moratorium was

enacted on August 8, 1992, effective September 6, 1992.

An amendment to the bill established a procedure

whereby an incinerator could be exempted from the

Moratorium. That procedure (set forth in § 3(a)) established

an administrative process in which a party seeking an

exemption was required to obtain from the City’s public

works director a certification that such action was “necessary

to serve the public interest in the efficient, economic, safe,

and environmentally sound disposal of solid waste.”

(App. D). Thereafter, the City Council could consider the

request and approve the requested exemption.

ee

7

c. Pulaski’s Pursuit of an Exemption.

Following enactment of the Moratorium, Pulaski sought

an exemption. On March 11, 1994, it submitted a detailed

study to the City showing the need for a new incinerator.

Based on this study and its own internal report, the director

of public works approved Pulaski’s request for an exemption

on May 5, 1994, certifying that replacement of the Incinerator

was “necessary to serve the public interest in the efficient,

economic, safe, and environmentally sound disposal of solid

waste” for the City and its environs. Pursuant to § 3(a),

he certified that the City Council should ratify that decision

in an ordinance exempting Pulaski from the Moratorium.

(App. F).

Four days after this certification, a bill to grant Pulaski

an exemption was introduced in the City Council

(the “Exemption Bill”). (App. E). Despite an auspicious

start — sponsorship by a majority of City Council members

and a promise of support by the City’s Mayor — the

Exemption Bill languished. As a result, in June 1995 Pulaski

filed a declaratory judgment action in state court seeking to

overturn the Moratorium. The City admitted in its answer

filed in that case in September 1995 that the Exemption Bill

was then “dead” as a legislative proposition.

In January 1996, the state court entered a declaratory

judgment in favor of Pulaski, striking down the Moratorium

because it was preempted by state environmental laws.

This decision was affirmed on appeal. See Mayor & City

Council v. The New Pulaski Company Limited Partnership,

684 A.2d 888 (Md. Ct. Spec. App. 1996), cert. denied,

690 A.2d 523 (Md. 1997).

8

On December 31, 1996, Pulaski filed the instant action

in the state court alleging that the City’s enactment of the

Moratorium and failure to grant an exemption amounted to

a taking of its property without just compensation and

violated Pulaski’s rights to substantive due process.

The action was filed more than three years after enactment

of the Moratorium, but less than three years after the City’s

director of public works issued his certification

recommending approval of the requested exemption.

Following removal by the City to the District Court,

the District Court dismissed Pulaski’s action, ruling that it

was barred by Maryland’s three-year statute of limitations.

See Md. Code Ann., Cts. & Jud. Proc. § 5-101. From the

Fourth Circuit’s divided affirmance, Pulaski submits this

Petition for a Writ of Certiorari. ;

REASONS FOR GRANTING THE WRIT

This Petition should be granted to review the Fourth

Circuit’s establishment of a new “legislative/political”

exception to the heretofore clear ripenesss guidelines for

takings and other constitutional claims in conflict with this

Court’s decision in Williamson County Regional Planning

Comm'n v. Hamilton Bank, 473 U.S. 172 (1985) and its

progeny. See Rule 10(c). As a practical matter, the Fourth

Circuit’s ruling could trigger a cascade of premature

constitutional claims by obfuscating one of the clear and

well-settled finality guidelines in the abstruse areas of takings

jurisprudence and substantive due process.

In Williamson County, this Court articulated a two-part

ripeness test that a takings plaintiff must satisfy before a

court can decide whether a regulation “goes too far” so as to

9

require the payment of just compensation. This case involves

the first prong of that test, which holds that “a claim that the

application of government regulations effects a taking is not

ripe until the government entity charged with implementing

the regulations has reached a final decision regarding the

application of the regulations to the property at issue.”

473 U.S. at 186.?

The reason for the “final decision” requirement analyzed

in Williamson County is simple. If an aggrieved landowner

is permitted to seek relief from the regulation, “ ‘a mutually

acceptable solution might well be reached . . . obviating any

need to address the constitutional questions.’ ” Jd. at 187

(quoting Hodel v. Virginia Surface Mining & Reclamation

Ass'n, Inc., 452 U.S. 264, 297 (1981)). This Court has

consistently applied this final decision ripeness requirement,

see, e.g., Suitum v. Tahoe Reg’! Planning Agency, 520 U.S.

725, 733-34 (1997); Lucas v. South Carolina Coastal

Council, 505 U.S. 1003, 1011-13 (1992), recognizing that

although it derives from a blend of prudential concerns and

constitutional requirements, it is a jurisdictional prerequisite

for bringing a constitutional claim in federal court.

See Suitum, 520 U.S. at 733 n.7.

In this case, the Fourth Circuit, at the urging of the City,

engrafted an unworkable “legislative/political” exception

onto the finality requirement based on the allegedly

“legislative/political” nature of the exemption procedure in

the Moratorium. Specifically, the panel majority concluded

that the second portion of the process — enactment of an

2. The second Williamson County requirement, which is not

at issue in this case, compels a property owner to exhaust any

compensation remedies under state law before litigating its federal

claims in federal court. Jd. at 194-95.

10

ordinance by the City Council exempting the specified

incinerator from the Moratorium pursuant to the certification

of the City’s public works director — involved an inherently

political and unconstrained legislative function that did

not constitute an “administrative” remedy that Pulaski

was required to have exhausted. See Appendix A at pages

10a-12a.

The scant precedential basis for the Fourth Circuit’s

adoption of the “legislative/political” exception to the final

decision requirement was a Ninth Circuit decision,

Tahoe-Sierra Preservation Council v. Tahoe Reg '] Planning

Agency, 938 F.2d 153, 157 (9th Cir. 1991) (“Tahoe IT’),

that summarily rejected a prior decision involving the same

parties and similar issues, Tahoe-Sierra Preservation

Council v. Tahoe Reg’! Planning Agency, 911 F.2d 1321,

1344-47 (9th Cir. 1990) (“Tahoe I’). Tahoe II adopted,

without substantive discussion, Judge Kozinski’s dissent in

Tahoe I, which espoused a “legislative/political” exception

to the final decision requirement of Williamson County.

The J7ahoe cases involved takings claims brought in

‘ connection with a regional development plan. The plan did

not have a variance or exception procedure, but permitted

the regional planning agency to effect changes in its

development regulations by amending the plan. Judge

Kozinski reasoned in his Tahoe / dissent that a legislative

decision whether to amend a law is never “final” and,

consequently, that the plan provisions allowing citizens to

seek an amendment did not create a ripeness bar.

The Fourth Circuit panel adopted Judge Kozinski’s

reasoning and held that it applied to the exemption procedure

of § 3(a) of the Moratorium. Its rationale was that

il

[t]he administrative process is, by its nature,

finite. At the end of the process the governmental

body makes a decision and communicates it to

the applicant. The consideration of a proposed

ordinance, on the other hand, “requires an exercise

of political judgment.” And, as Judge Kozinski

said, “Political processes are, by their nature,

infinite.”

(App. A at 9a-10a).

The Fourth Circuit panel decision did not, however,

address the majority per curiam opinion in Tahoe I, which

clearly rejected Judge Kozinski’s new exception and

criticized it as unsound. The Ninth Circuit panel explained:

[T]he dissent’s attempt to distinguish variances

from amendments appears to be based on a

fundamental misconception of the process by

which such decisions are made. The dissent seems

to believe that variances are the province of

bureaucrats with green eye-shades who, based

solely on the principles of engineering or

mathematics, apply slide-rules to citizens’

requests; while amendments are considered by

Machiavellian politicians who are concerned

principally with issuing political decisions that

will advance their careers. That is simply not the

case. Variance applications frequently raise

controversial political questions which engender

substantial community division and debate;

ultimately, many are decided on broad policy

grounds. Moreover, such decisions may well be

made by the very same legislators who act on

12

proposals to amend zoning legislation.

For example, in the City of Los Angeles, the loser

in a zoning variance battle has the right to appeal

the decision to the City Council, where the fifteen

elected members of that body make the final

decision, subject only to the Mayor’s night to veto

their action. Los Angeles Municipal Code

§§ 12.27-12.28. Thus, the distinction relied on by

the dissent simply does not exist.

911 F.2d at 1338-39 (emphasis added).

This case poses a far stronger basis for rejecting the

“legislative/political” exception than the Tahoe cases.

Here, the Moratorium used a hybrid process, delegating

initial responsibility for consideration of exemptions to an

administrative agency, and then giving final authority over

that administrative decision to the City Council. In the

absence of Pulaski’s obtaining the necessary approval from

the City agency, with the appropriate certification and

statutory findings, the City Council lacked the power to grant

an exemption. Accordingly, as Judge Williams recognized,

the Moratorium exemption provision contained both

administrative and legislative components.

Second, unlike the amorphous right to pursue

“an amendment” to regulations at issue in Zahoe, Baltimore’s

exemption process was crafted to function like a zoning

variance, allowing individual incinerator operators to seek

individual relief for their particular incinerators based on

narrowly defined criteria. In administrative law terms, the

Tahoe decision amendment process falls into the legislative

rulemaking category, while the Moratorium exemption

13

process closely resembles land use variance procedures

conducted before legislative bodies sitting in a quasi-

administrative or quasi-judicial Capacity.

As Judge Williams’ dissent portends, there are countless

laws, ordinances, and regulations subject to takings and other

constitutional claims, with a myriad of factual differences

| between them, that will make application of a “‘legislative/

political” exception problematical, at best. However, aside

from just the factual differences, there are several

fundamental reasons for this Court to examine, and

resoundingly reject, the Fourth and Ninth Circuits’ adoption

of a “legislative/political” exception to Williamson County’s

final decision ripeness requirements.

First, such a distinction is wholly contrary to the basic

underpinning of ripeness doctrine, which requires a final

decision by whatever “governmental entity” has the

discretionary authority to minimize infringement on the

property rights in issue. See Williamson County, 473 U.S. at

186. To this end, this Court has applied Williamson County’s

ripeness requirements to a municipal council acting in a

legislative and an administrative fashion, like the City

Council here. See Yee v. City of Escondido, 503 U.S. 519,

533-34 (1992) (takings claims brought by owners of a mobile

home park were unripe inasmuch as the park owners had not

sought rent increases from the city council). In short, it is

the existence of an exemption procedure, not the body

authorized to approve exemptions, that is of paramount

importance.

Second, the Fourth Circuit panel’s disregard of an

express exemption procedure set forth squarely within the

Moratorium itself is totally inconsistent with the

requirements of Williamson County and the long, unbroken

14

line of cases that both precede and follow it. The decision

disregards Williamson County’s mandate that a property

owner must first seek relief through any exemption or

variance procedure and receive a “final decision” from the

“government entity” charged with implementing the

regulations before a takings claim is ripe for filing in federal

court. Instead, the decision simply held that Pulaski’s

claims were ripe (and therefore limitations began to run)

upon enactment of the Moratorium because the “Moratorium

interfered with Pulaski’s primary use of its property in

concrete ways.” This decision hopelessly confuses the time

of a taking with the date of finality of the decision for ripeness

purposes. For that reason, Judge Williams was correct in

characterizing the majority’s panel decision as disingenuous.

Third, this Court has never even mentioned a possible

exception to the ripeness requirements of Williamson County

based on the “political” or “legislative” nature of the

exemption decision-maker. Instead, in Suitum, this Court

reiterated that Williamson County’s ripeness requirement of

finality “responds to the high degree of discretion

characteristically possessed by [local agencies] in softening

the strictures of the general regulations they administer.”

520 U.S. at 738 (emphasis added). Broad discretionary

powers to grant or deny variances and exceptions are

commonplace in zoning ordinances. See Williamson County,

473 U.S. at 188 & 188 n.9 (at issue in that case were

“ “[vJariances [that] may be granted’ ” by a local planning

commission if the subdivider can show extreme hardship and

consistency with the regulatory intent and the commission

finds “ ‘conditions peculiar to the site’ ”) (emphasis added).

Indeed, as the Ninth Circuit recognized in 7ahoe /,

zoning matters and variances are routinely decided by

ordinances approved by legislative bodies. The determination

15

by the Fourth Circuit in this case that the Moratorium

exemption process is legislative because the Moratorium

vests the final authority in a legislative body confuses the

ordinary for the extraordinary and creates a distinction

without a difference — a dangerously unwise one at best.

Finally, the Fourth Circuit’s decision, coupled with the

Ninth Circuit's decision in Tahoe J/, will invite an avalanche

of premature claims by property owners affected by

regulations and ordinances which permit relief by procedures

that involve actions by a legislative body, such as a county

council. Prudent counsel will need to file constitutional

claims before receipt of a final decision on the application

of regulations to a particular piece of property, if the

exemption process entails actions by a “political”

or “legislative” body, such as a city or county council.

Otherwise, if they wait for a final decision, they risk facing

arguments, as Baltimore City argued in the Fourth Circuit,

that the constitutional claims were brought both too early

and too late! (See App. A at 21a, fn). Judge William’s’

dissent was absolutely correct in stating that

[i)f Pulaski had attempted to bring suit prior to

seeking an exemption, there is no doubt that a

federal court would have considered the action

not yet ripe for a judicial determination. Pulaski

correctly would have been sent back to the

Director of Public Works to seek approval for an

exemption because it had the right and obligation

to seek a specific determination of how the

Ordinance would affect its property before raising

the constitutional takings question.

(App. A at 19a-20a (emphasis added)).

16

In sum, the Fourth Circuit’s adoption of a “legislative/

political” exception to the final decision ripeness requirement

of Williamson County is wholly inconsistent with Williamson

County and its progeny, as well as the actual exemption

provision in the Moratorium. This “legislative/political”

exception is an unworkable departure from the heretofore

clear ripeness guidelines established by this Court for

constitutional claims. It should be reviewed, and rejected,

by this Court.

17

CONCLUSION

A writ of certiorari should therefore be issued in this

case to determine whether to establish an amorphous

exception to the heretofore clear and unambi guous ripeness

requirements in Williamson County and its progeny.

This Court has repeatedly recognized the confounding nature

of takings claims. See Penn Central T, ransp. Co. v. City of

New York, 438 U.S. 104, 123 (1978) (“The question of what

constitutes a ‘taking’ for purposes of the Fifth Amendment

has proved to be a problem of considerable difficulty”).

The Fourth Circuit’s decision in this case and the Ninth

Circuit’s decision in Tahoe IJ compound that problem by

obfuscating one of the few uncomplicated guidelines

in ripeness jurisprudence, namely the clear rule

that constitutional claims are not ripe, and therefore

jurisdictionally defective, until the claimant has received

a final decision from the “governmental entity charged

with implementing the regulations.” Williamson County,

473 U.S. at 186.

For the foregoing reasons, the Petition for a Writ of

Certiorari should be granted.

Respectfully submitted,

ROGER W. Titus

Counsel of Record

MITCHELL Y. MIrRVIss

KEvIN B. CoLLins

VENABLE, BAETJER AND Howarp, LLP

One Church Street, Fifth Floor

Rockville, Maryland 20850

(301) 217-5600

Attorneys for Petitioner

APPENDIX

la

APPENDIX A — OPINION OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DATED AND DECIDED JULY 20, 2000

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2118

THE NEw PuLaski Company LIMITED PARTNERSHIP,

a Maryland Limited Partnership,

Plaintiff-Appellant,

v.

Mayor AND City CounciL oF BALTIMORE,

a Municipal Corporation,

Defendant-Appellee.

No. 97-2204

THE New Putaski Company LIMITED PARTNERSHIP,

a Maryland Limited Partnership,

Plaintiff-Appellee,

v.

Mayor AND City Council. oF BALTIMORE,

a Municipal Corporation,

Defendant-Appellant.

2a

Appendix A

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CA-97-38-S)

Argued: January 29, 1999

Decided: July 20, 2000

Before WILLIAMS, MICHAEL, and MOTZ,

Circuit Judges.

* * a

OPINION

MICHAEL, Circuit Judge:

The New Pulaski Limited Partnership Company

(Pulaski) sued the Mayor and City Council of Baltimore

(together, the “City”) in Maryland state court, asserting that

the City had violated its rights under the Takings Clause of

the Fifth Amendment and the Due Process Clause of the

Fourteenth Amendment by imposing and maintaining a

moratorium ordinance that prevented Pulaski from building

a replacement incinerator on its Baltimore property. Although

the case was brought mainly under 42 U.S.C. § 1983, Pulaski

also relied on provisions in the Maryland Constitution. The

City removed the action to federal court, where the judge

dismissed Pulaski’s complaint on statute-of-limitations

grounds. We affirm.

heii

3a

Appendix A

I.

We accept the well-pleaded facts in the complaint and

recite them in the light most favorable to Pulaski. See Brooks

v. City of Winston-Salem, 85 F.3d 178, 181 (4th Cir. 1996).

The case arises out of the operation of a solid waste

incinerator located on Pulaski Highway in Baltimore. The

City owned and operated the incinerator for twenty-five

years, from 1956 until 1981. On May 6, 1981, the City sold

the incinerator to Pulaski for $41 million and leased the

associated land to Pulaski for fifty years. As part of the

transaction, Pulaski and the City entered into a Waste

Disposal Service Agreement (WDSA). The WDSA required

Pulaski to provide priority waste disposal service to the City

and other local jurisdictions. In return, the City was required

to reimburse Pulaski for certain expenses in operating the

incinerator, including the costs of complying with

environmental laws, orders, and regulations. The WDSA’s

Original term was fifteen years, and the City had options to

renew the agreement for up to fifteen additional years.

For the first eleven years the WDSA was in effect, the

City paid its prescribed share of environmental compliance

costs. Trouble began, however, when the Maryland

Department of the Environment (MDE) took steps to force

Pulaski to comply with the federal Clean Air Act

Amendments of 1990 and the EPA’s implementing

regulations. Specifically, the MDE ordered Pulaski either to

make substantial renovations to the incinerator or to replace

it with a new facility. When the City learned that the cost to

upgrade the incinerator could exceed $40 million, it balked.

In a letter dated May 8, 1992, the City advised Pulaski that

4a

Appendix A

it would “not reimburse any expenses incurred in

retro-fitting” the incinerator. With the City refusing to pay

its share, Pulaski could not afford to retrofit the existing

incinerator. Pulaski therefore proposed an alternative:

it would build a new, state-of-the-art (replacement)

incinerator on the site that would comply with the new

environmental laws and regulations. Pulaski offered to build

the replacement facility at no cost to the City, to pay the

City a $10 million start-up fee, and to release the City from

its obligation to pay a portion of the cost to retrofit the

existing incinerator.

Meanwhile, community opposition was mounting

against the operation of any incinerator — whether retrofitted

or new — at the Pulaski site. The public pressure prompted

the Baltimore City Council to enact an ordinance on August

7, 1992, prohibiting construction, reconstruction, replacement,

or expansion of any incinerator in the City (the “Moratorium”’).

The Moratorium provided that the City Council could, by

further ordinance, authorize an incinerator project, if it was

certified by the Director of Public Works. The Moratorium

stated, in pertinent part:

AN ORDINANCE concerning

A MORATORIUM ON THE CONSTRUCTION

OF INCINERATORS

FOR the purpose of imposing a 5-year moratorium

on the construction, reconstruction (other than

pollution control measures), replacement and

expansion of incinerators within Baltimore City;

ee

Sa

Appendix A

providing for certification by the Director of

Public Works regarding the necessity for certain

construction, reconstruction, replacement or

expansion, and City Council approval thereof and

defining certain terms; providing for an extension

of the moratorium under certain circumstances,

and providing penalties.

* * -

SEC. 3. AND BE IT FURTHER ORDAINED,

That for a period of 5 years subsequent to the date

of enactment of this Ordinance:

a. No person shall construct, reconstruct,

replace or expand any incinerator in Baltimore

City. Provided, however, that if the Director of

Public Works certifies in a written report by detail

and analysis to the City Council that such

construction, reconstruction, replacement or

expansion is necessary to serve the public

interest in the efficient, economic, safe and

environmentally sound disposal of solid waste,

the City Council by ordinance may approve such

construction, reconstruction, replacement or

expansion.

Baltimore, Md., Ordinance No. 128, 1992 Legislative

Session (effective Sept. 6, 1992).

After enacting the Moratorium, the City continued to

make things difficult for Pulaski. The City cut off shipments

6a

Appendix A

of its trash to Pulaski, interfered with Pulaski’s supply of

trash from Baltimore County, and denied Pulaski the use of

a municipal landfill to dispose of waste ash. The City also

delayed making payments due to Pulaski under the WDSA.

On December 22, 1993, Pulaski sued the City in the Circuit

Court for Baltimore County, seeking (!) a declaratory

judgment that the Moratorium was preempted by state law

and (2) damages for the City’s alleged breach of the WDSA.

A Pulaski representative met with the Mayor on January 24,

1994, to discuss settlement of the lawsuit. The Mayor

promised Pulaski that he would support an ordinance

exempting Pulaski from the Moratorium if Pulaski would

withdraw its lawsuit and negotiate an agreement terminating

the WDSA. Encouraged by the Mayor’s assurances, Pulaski

dismissed its lawsuit without prejudice on January 31, 1994,

and entered into negotiations with the City to terminate the

WDSA.

On March 11, 1994, Pulaski’s consultant submitted a

report to the Director of Public Works that supported the

need for a replacement incinerator. Thereafter, on May 5,

1994, the Director certified to the City Council that a

replacement incinerator at the Pulaski site was “necessary

to serve the public interest.” Four days later, a bill was

introduced in the City Council to grant Pulaski an exemption

from the Moratorium (the “Exemption Bill”). The Exemption

Bill was never submitted to a vote. Indeed, it was not even

reported out of committee.

Although the Exemption Bill had languished for an entire

year, on May 3, 1995, Pulaski entered into a Settlement

Implementation Agreement (the “SIA”) with the City

7a

Appendix A

terminating the WDSA. Among other things, the SIA ended

the City’s obligation to pay Pulaski operating costs, including

retrofitting costs, for the old incinerator. Also, Pulaski waived

all outstanding contractual claims under the WDSA.

On June 23, 1995, less than two months after signing

the SIA, Pulaski filed a second declaratory judgment action

in the Circuit Court for Baltimore County seeking to

invalidate the Moratorium. On January 5, 1996, that court

entered judgment in favor of Pulaski, striking down the

Moratorium on the ground that it was preempted by state

environmental laws. The Court of Special Appeals of

Maryland affirmed, Baltimore vy. New Pulaski Co. Limited

Partnership, 684 A.2d 888 (Md. Ct. Spec. App. 1996), and

the State’s Court of Appeals denied the City’s petition for a

writ of certiorari, Baltimore v. New Pulaski Co. Limited

Partnership, 690 A.2d 523 (Md. 1997).

Pulaski shut down the old incinerator in August of 1995,

and it never built a new one. Pulaski contends that the City’s

obstructive tactics caused delays that prevented Pulaski from

building a profitable replacement incinerator. Pulaski filed

the case that is now before us in the Circuit Court for

Baltimore County on December 31, 1996. Pulaski alleges

that the City’s imposition of the Moratorium, as well as its

failure to pass an ordinance exempting Pulaski from it,

(1) amounted to a taking of its property without just

compensation in violation of the United States and Maryland

Constitutions and (2) violated Pulaski’s right to substantive

due process under the United States and Maryland

Constitutions. The City removed the case to federal court

and filed a motion to dismiss on the ground that Pulaski’s

8a

Appendix A

claims were time barred. The district court granted the

motion, concluding that Pulaski’s claims accrued “upon

enactment of the moratorium” in 1992 and were thus barred

by Maryland's three-year statute of limitations. (Maryland’s

three-year statute, embodied in Md. Code Ann. Cts. & Jud.

Proc. § 5-101, applies to this § 1983 action.) The district

court also held that the “continuing wrongs” theory did not

operate to toll the statute. Finally, the court held that the

City was not equitably estopped from raising the statute of

limitations as a defense. Pulaski appeals.

Il.

Pulaski argues that the three-year statute of limitations

did not begin to run on its “as applied” takings claims until

the City Council failed to enact the Exemption Bill.

According to Pulaski, the passage of the Moratorium

ordinance, which blocked construction of the replacement

incinerator, did not trigger the statute. We cannot agree.

When an ordinance is alleged to have effected a taking,

the claim accrues when the “ordinance interferes in a clear,

concrete fashion with the property’s primary use.” National

Advertising Co. v. City of Raleigh, 947 F.2d 1158, 1163 (4th

Cir. 1991) (holding that takings claim directed at ordinance

restricting off-premises advertising signs accrued on the date

of enactment, even though there was a 5-year grace period

for nonconforming signs). However, a takings claim is not

ripe, and the statute of limitations does not begin to run,

unless the property owner has exhausted any available

administrative exemption and compensation procedures. /d.

at 1166. As we noted in National Advertising, the need to

9a

Appendix A

determine whether a claim is ripe is required by Williamson

County Regional Planning Commission v. Hamilton Bank

of Johnson City, 473 U.S. 172 (1985). See National

Advertising, 947 F.2d at 1166 n.12. In Williamson the

Supreme Court held that a takings claim remains premature

until the governmental entity “has reached a final decision

regarding the application of the regulations to the property

at issue.” Williamson, 473 U.S. at 186 (emphasis added).

And, in National Advertising we held that Williamson's

requirement for a final decision was satisfied upon enactment

of an ordinance restricting land use when the ordinance did

not contain administrative variance or exemption procedures

“through which [property] owners might obtain relief.”

National Advertising, 947 F.2d at 1166.

The question for us is whether the Moratorium contained

any true administrative exemption procedures that would

have prevented Pulaski’s claim from being mature on the

effective date of the Moratorium. In answering this question,

we must decide whether the process by which City Council

considered an exemption ordinance was administrative or

legislative. Understanding the process is essential because

an administrative “decision denying a variance is final,

whereas a [legislative] decision not to [pass] a law never

is.” Tahoe-Sierra Preservation Council. Inc. y. Tahoe

Regional Planning Agency, 911 F.2d 1331, 1345 (9th Cir.

1990) (Kozinski, J., dissenting), relied upon in Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Regional Planning

Agency, 938 F.2d 153, 157 (9th Cir. 1991). Under an

administrative exemption process, the decisionmaking body

grants or denies an exemption based on established standards

that guide the decision. The administrative process is, by its

10a

Appendix A

nature, finite. See Tahoe-Sierra Preservation Council, 91}

F.2d at 1345. At the end of the process the governmental

body makes a decision and communicates it to the applicant.

The consideration of a proposed ordinance, on the other hand,

“requires an exercise of political judgment.” /d. And, as

Judge Kozinski said,

Political processes are, by their nature, infinite.

A change in the makeup of the legislative body, a

shift in the political winds, or even a change in

attitude based on further experience or additional

wisdom, may be a sufficient reason for a political

body to change its mind. . . . There is thus no way

for a court to say that a legislative process has -

come to rest with respect to a [proposed] law.

... To require plaintiffs to demonstrate that

a governing body has made a final decision about

what amendments it will allow is to preclude

judicial review altogether, as each day brings a

new opportunity for the legislature, in its wisdom,

to change the law.

Id. (footnotes omitted).

Here, the Moratorium, which outlawed replacement

incinerators (including Pulaski’s), permitted the Director of

Public Works to certify to the City Council that a replacement

incinerator was “necessary to serve the public interest in the

efficient, economic, safe and environmentally sound disposal

of solid waste.” Once the Director made a certification, the

City Council could, if it chose, pass an ordinance approving

construction of an incinerator. In this case Pulaski submitted

lla

Appendix A

materials to the Director to support the need for a replacement

incinerator, and the Director made a certification of need to

the City Council. The Exemption Bill was then introduced.

Nothing happened thereafter. The bill was never reported

out of committee, and it was never brought up for a vote in

City Council. No final decision on the possible exemption

was ever communicated to Pulaski.

The process for the City Council’s consideration of the

Exemption Bill was not administrative. Although there were

standards for the Director’s certification of need, the City

Council itself was not subject to any guidelines in deciding

whether or when to consider an exemption ordinance. The

City Council let the Exemption Bill languish, taking no action

at all. That failure to act was the exercise of political

judgment. The process was thus legislative, and there was,

by definition, no “final decision” on the exemption proposal.

Pulaski argues that its “as applied” takings claim “did

not ripen, and therefore for limitations purposes, did not arise

or accrue until, at the earliest, September 1995, when the

City filed a pleading admitting that the Exemption Bill was

‘dead.’ ” Brief for Appellant at 24. As our discussion above

indicates, this contention has no merit. F irst, filing a pleading

admitting that proposed exemption legislation is “dead” is

not the same as making a final administrative decision to deny

an exemption. Second, Pulaski’s argument proves how difficult

it would be for courts to determine the exact date on which

the passage of an ordinance was no longer possible. Indeed,

deciding when proposed legislation is “dead” is virtually

impossible. A bill that is pronounced “dead” today may regain

life tomorrow, or next week, or next year. Thus, Pulaski’s

12a

Appendix A

approach for determining ripeness would bring uncertainty

for everyone. Neither property owners nor the government

would know for sure when a takings claim had matured.

For all of the foregoing reasons we hold that Pulaski’s

claim accrued upon the enactment of the Moratorium, for

that was when the City interfered with Pulaski’s use of its

property in a clear, concrete fashion.*

* The dissent concludes that Pulaski’s takings claim accrued

on May 5, 1994, when the Director of Public Works took action

that was favorable to Pulaski by certifying to the City Council that

a replacement incinerator was in the public interest. According to

the dissent, the Director’s power to certify provides an

“administrative component” to the process for seeking an exemption

from the Moratorium. See post at 15. Further, under the dissent’s

theory, the Director’s certification on May 5, 1994, was a “final

decision” under Williamson County Regional Planning Commission.

It was not a final decision. Williamson makes clear that a takings

claim is not ripe “until the administrative agency has arrived at a

final, definitive position regarding how” it will allow “the particular

land in question” to be used. Williamson, 473 U.S. at 191. See also

id. at 186 (stating that “a claim that the application of government

regulations effects a taking of a property interest is not ripe until

the government entity charged with implementing the regulations

has reached a final decision regarding the application of the

regulations to the property at issue.”) (emphasis added). The Director

did not have the authority to make a final decision on whether an

exemption ordinance would be enacted. That decision was reserved

for the City Council, and it was a decision that would be made

through the legislative (or political) process. As the dissent

recognizes, “it is difficult for a court to determine when a legislative

process is ‘final.’ ” Post at 15. For that reason, we must conclude

that any taking occurred (and Pulaski’s claim arose) when the

Moratorium was enacted.

13a

Appendix A

Il.

Pulaski’s second argument on appeal is that even if its

takings claims accrued upon enactment of the Moratorium,

‘the City’s continued enforcement of the Moratorium and the

City’s conduct following the Moratorium’s enactment

constitute “continuing wrongs” that tolled the limitations

period. Again, we disagree. The Moratorium squarely

prohibited Pulaski from building a replacement incinerator

on its property. Any taking thus occurred when the

| Moratorium passed. After that (as the following discussion

demonstrates), nothing the City did changed the nature of

the taking or enlarged its impact.

In National Advertising Company v. City of Raleigh, 947

: F.2d 1158 (4th Cir. 1991), itselfa takings case, we outlined

the parameters of the “continuing wrongs” theory. We began

by observing that “[a] continuing violation is occasioned by

continual unlawful acts, not continual ill effects from an

7 original violation.” Jd. at 1166 (quoting Ward v. Caulk, 650

| F.2d 1144, 1147 (9th Cir. 1981)). We proceeded to apply a

two-part analysis to determine whether a continuing wrong

had occurred. We examined (1) “the nature of the wrongful

7 conduct and harm alleged” and (2) “[t]he particular policies

| of the statute of limitations in question.” National

| Advertising, 947 F.2d at 1167.

Pulaski’s essential allegation of harm is that the

Moratorium caused it to lose “the only economically

berieficial or productive use of its property.” In addition,

Pulaski alleges that the following actions by the City were

continuing wrongs: (1) threats to initiate condemnation

l4a

Appendix A

proceedings against the property, (2) false expressions of

support for a replacement incinerator that were designed to

lure Pulaski into withdrawing its 1993 lawsuit for damages

under the WDSA, (3) cessation of the use of Pulaski’s facility

for disposal of trash and refusal to allow Pulaski to dispose

of ash at a City landfill, (4) bad faith refusal to consider the

Exemption Bill, and (5) continuing efforts to defend the

Moratorium in litigation initiated by Pulaski.

We will begin the analysis, as National Advertising

requires, by looking at “the nature of the [continuing]

wrongful conduct and harm alleged” by Pulaski. See National

Advertising, 947 F.2d at 1167. For the harm to be continuing,

it must add to the alleged takings injury or otherwise

constitute a taking itself. See id. Pulaski’'s first allegation of

continuing harm is that the City threatened to start

condemnation proceedings after the Moratorium had been

enacted. Pulaski acknowledges that the Moratorium caused

it to lose the “only economically beneficial or productive

use of its property.” This means that any taking occurred at

the time of the Moratorium’s enactment. With the property

already taken, a later threat of condemnation was not either

a taking or the source of additional takings injury. Pulaski’s

second and third allegations of continuing harm relate to

claims that the City interfered with or breached the WDSA,

the agreement under which Pulaski incinerated trash for the

City. These allegations are contract-related claims, not

takings claims. Indeed, Pulaski waived all outstanding

contractual claims against the City under the WDSA on May

3, 1995, nearly three years after the Moratorium was passed

and one year after the Exemption Bill had been introduced.

The tourth allegation, that the City Council refused in bad

15a

Appendix A

faith to consider the Exemption Bill, is also not an allegation

of a taking or a takings injury. As we have indicated, the

City Council’s failure to act on the Exemption Bill was

simply the exercise of political judgment. It was not a

concrete governmental act that amounted to a taking of

property. Pulaski’s final allegation of continuing harm is the

City’s defense of the Moratorium when Pulaski sued to have

it invalidated in state court. The City’s defense of the

Moratorium is simply one of the consequences of the

Moratorium’s enactment; the defense was “not a separate

violation,” and it did not add to any takings injury alleged.

See National Advertising, 947 F.2d at 1167.

Finally, an examination of the “particular policies of the

statute of limitations in question,” National Advertising, 947

F.2d at 1168, supports the conclusion that the continuing

wrong exception should not be applied here. In particular,

the continuing wrong theory should not be applied to relieve

a plaintiff from its duty of reasonable diligence in pursuing

its claims. See id. at 1168 (citing Ocean Acres Ltd. v. Dare

County Bd. of Health, 707 F.2d 103, 107 (4th Cir. 1983)).

Pulaski was aware of the Moratorium from the time of its

enactment. It realized at the time that the Moratorium

deprived it of significant beneficial and productive use of

its property. Pulaski was in a position to challenge the

Moratorium within the three-year statute of limitations, and

it should have. There is nothing in statutes-of-limitations

policies that require a finding of continuing violation.

IV.

Pulaski’s last argument is that the City is equitably

estopped from raising the statute of limitations as a defense

loa

Appendix A

to Pulaski’s claims. Pulaski’s estoppel argument is based on

its assertion that the City reneged on its promise to exempt

Pulaski from the Moratorium. The district court concluded

that this argument was “far too weak to support [an estoppel]

bar,” noting that Pulaski’s “reliance on the shifting sands of

political support to overcome popular opposition to its plans

hardly justifies it now in raising failure or withdrawal of

that support as an estoppel.” We also conclude that estoppel

is not a bar, and we affirm on the reasoning of the district

court. See The New Pulaski Company Limited Partnership

v. Mayor and City Council of Baltimore, Civ. No. S 97-38,

mem. op. at 5-6 (D. Md. July 22, 1997).

V.

Because the 1992 Moratorium interfered with Pulaski’:

primary use of its property in concrete ways (it could not

build a replacement incinerator), the district court was correct

to conclude that Pulaski’s cause of action arose when the

Moratorium was enacted. The district court was also correct

to reject Pulaski’s continuing wrong and estoppel theories.

Because Pulaski’s claims were time barred, we affirm the

district court’s order dismissing Pulaski’s complaint. In light

of this disposition, it will not be necessary for us to consider

the City’s cross-appeal.

AFFIRMED

17a

Appendix A

WILLIAMS, Circuit Judge, dissenting:

Despite the fact that Pulaski pursued an exemption to a

local zoning ordinance prior to bringing its takings claim in

federal court, as required by Williamson County Reg'l

Planning Comm'n v. Hamilton Bank, 473 U.S. 172 (1985),

the majority holds that Pulaski’s claim is time-barred because

its cause of action accrued upon the enactment of the

ordinance and Pulaski failed to bring suit within the

applicable statute of limitations. Because I believe that the

applicable statute of limitations could not begin running until

Pulaski at least received notice from the relevant

administrative agency regarding its exemption request,

| respectfully dissent.

In Williamson County, the Supreme Court noted that “‘a

claim that the application of government regulations effects

a taking of a property interest is not ripe until the

governmental entity charged with implementing the

regulations has reached a final decision regarding the

application of the regulations to the property at issue.” /d. at

186. The reason for this requirement is simple: If an

aggrieved landowner seeks administrative relief, “ ‘a

mutually acceptable solution might well be reached ...

obviating any need to address the constitutional questions.’ ”

Id. at 187 (quoting Hodel v. Virginia Surface Mining &

Reclamation Ass'n, Inc., 452 U.S. 264, 297 (1981)). A

takings challenge to the application of a governmental

regulation to a specific piece of property is unripe if the

regulation provides variance or administrative review

procedures through which the aggrieved landowner might

obtain relief and the landowner has not yet availed itself of

18a

Appendix A

those procedures. See National Advertising Co. v. City of

Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991). In sum, the

ripeness requirement properly forces courts to defer to a local

governmental body’s grievance procedure before passing

judgment. It naturally follows that if an action is not ripe,

the applicable statute of limitations cannot begin running.

See Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 687

(9th Cir. 1993); Biddison v. City of Chicago, 921 F.2d 724,

728-29 (7th Cir. 1991). In fact, the majority concedes as

much. See ante at 7.

The City expressly indicated its willingness to suspend

the general moratorium on improving or constructing

incinerators if the Director of Public Works submitted a

written report detailing and analyzing the public interest in

specific instances. See Baltimore, Md., Ordinance No. 128,

1992 Legislative Session (effective Sept. 6, 1992) (the

Ordinance). In good faith, Pulaski followed the procedure

outlined in the Ordinance, and, on May 5, 1994, obtained

the Director of Public Works’s certification that a new

Pulaski incinerator was necessary to serve the public interest

in the efficient and environmentally sound disposal of solid

waste. At that point, the process moved to the Baltimore City

Council, as contemplated by the Ordinance. Although a bill

that would have exempted Pulaski from the Ordinance (the

Exemption Bill) was introduced on or about May 9, 1994, it

was never reported out of committee or brought for a vote.

In fact, the City, in an answer to Pulaski’s declaratory

judgment action filed in federal district court on September

14, 1995, admitted that the Exemption Bill was “dead” as a

legislative proposition.

19a

Appendix A

Despite Pulaski’s efforts to obtain an exemption from

the Ordinance, the majority holds that Pulaski should have

brought its claim at the time the Ordinance was enacted

because the exemption procedure was “legislative” in nature,

and, therefore, Pulaski never received a “final decision” on

its exemption request. In support of this administrative/

legislative distinction, the majority cites Tahoe-Sierra

Preservation Council, Inc. v. Tahoe Reg 'l Planning Agency,

911 F.2d 1331, 1345 (9th Cir. 1990) (Kozinski, J., dissenting

in part) (Tahoe /), relied upon in Tahoe-Sierra Preservation

Council, Inc. v. Tahoe Reg 'l Planning Agency, 938 F.2d 153,

157 (9th Cir. 1991) (Tahoe I/). Tahoe / involved the process

by which a regional planning agency could adopt amendments

requested by a landowner to a regional development plan.

See Tahoe 1, 911 F.2d at 1336. In concluding that the

landowner did not need to ask for an amendment prior to

bringing a takings claim, Judge Kozinski reasoned that

because deciding whether to amend a law “requires an

exercise of political judgment,” id. at 1345, it is impossible

“for a court to say that a legislative process has come to rest

with respect to a challenged law,” id. at 1345-46. The

majority's reliance upon Tahoe / is not entirely apropos

because the exemption procedure in this case involves both

an administrative and legislative component. Pulaski was

required first to undergo a finite administrative review by

the Director of Public Works, and only after the Director of

Public Works certified that Pulaski’s proposed incinerator

was necessary to serve the public interest did the City Council

have the authority to approve such construction by ordinance.

That the exemption process includes an administrative

component is not an insignificant detail. If Pulaski had

20a

Appendix A

attempted to bring suit prior to seeking an exemption, there

is no doubt that a federal court would have considered the

action not yet ripe for a judicial determination. Pulaski

correctly would have been sent back to the Director of Public

Works to seek approval for an exemption because it had the

right and obligation to seek a specific determination of how

the Ordinance would affect its property before raising the

constitutional takings question. See Williamson County, 473

U.S. at 186. It is simply disingenuous to hold, as the majority

effectively does, that Pulaski knew “or ha[d] reason to know

of the injury,” National Advertising Co., 947 F.2d at 1162

(internal quotation marks omitted), when it did not even know

whether the City would or could grant an exemption in

accordance with the Ordinance. Indeed, had the Director of

Public Works determined that Pulaski’s proposed incinerator

was not necessary to serve the public interest, I have no doubt

that the majority would conclude that that determination was

a “final decision” for purposes of satisfying the ripeness

requirement of Williamson County. It simply makes no sense

to conclude that Pulaski’s claim accrued at an earlier time

merely because it succeeded in convincing the Director of

Public Works that it deserved an exemption from the

Ordinance. Recognizing that it is difficult for a court to

determine when a legislative process is “final,” particularly

where the legislature has broad discretion on whether to act,

I would hold that Pulaski’s claim ripened, and would start

the running of the statute of limitations, when the Director

of Public Works made its final determination on Pulaski’s

exemption request.

In sum, I believe that Pulaski’s cause of action accrued

on May 5, 1994, when the Director of Public Works completed

BN a MARES ATER Ma STI eet der wer te i

ON See Se

es Sea ee ee ot As,

2la

Appendix A

his analysis and “certified to the City Council that a

replacement incinerator at the Pulaski site was necessary to

serve the public interest.” Ante at 5 (internal quotation marks

omitted). Because Pulaski filed its suit on December 31,

1996, well within the three-year statutory limit, | would hold

that its claim was not time-barred and would reverse the

district court’s dismissal of Pulaski’s claim on this ground.*

* I agree with the district court that the release executed

between the parties does not bar this litigation and that Pulaski stated

a claim for purposes of Federal Rule of Civil Procedure 12.

Moreover, I am not persuaded by the City’s arguments that this case

is not ripe (1) because the moratorium was judicially invalidated

before Pulaski received a final decision and (2) because it is possible

that the City might approve an alternative proposal put forward by

Pulaski. The latter argument is mooted by the invalidation of the

statute. The first argument does not prevent Pulaski’s claim from

ripening because the claim asserts that the enactment and

enforcement of the moratorium during the several-year time period

deprived Pulaski of valuable property that is now unrecoverable.

22a

APPENDIX B — MEMORANDUM OPINION AND

ORDER OF THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

DATED JULY 22, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 97-38

THE NEW PULASKI COMPANY

LIMITED PARTNERSHIP

v.

MAYOR AND CITY COUNCIL OF BALTIMORE

MEMORANDUM OPINION

This is a dispute over the City of Baltimore’s Moratorium

on construction and renovation of certain incinerator

facilities. The ordinance creating the moratorium was struck

down by the state courts of Maryland on state-law

(preemption) grounds in Baltimore v. New Pulaski, 112 Md.

App. 218 (1996), cert. denied, 344 Md. 717 (1997). This

suit, removed by the City to this Court, asserts claims of

federal and state constitutional violations, via 42 U.S.C.

§1983, stemming from the moratorium ordinance, to include

takings and substantive due process claims. The City has

moved to dismiss. The motion has been fully briefed, and

no oral argument is needed. Local Rule 105.6, D.Md.

The City’s motion will be granted, on the ground that

the complaint is barred by limitations.

23a

Appendix B

Before turning to the dispositive point, the Court will

briefly address some of the points raised by the City that it

deems unpersuasive. The Court cannot say, as a matter of

law (and only such a finding would suffice under Rule 12),

that the release (SIA) earlier executed between the parties

bars this litigation. The release is certainly not so clear as to

future claims involving construction or attempted

construction of a mew facility as to allow the Court, as a

matter of law, to construe it as barring this suit. In fact, the

release consistently speaks in terms of the “existing

incinerator,” a term that is defined to the exclusion of the

term “new incinerator.” Thus, if there is indeed a lack of

ambiguity in the release, it goes in the other direction from

the City’s position. And if the agreement is ambiguous, then

the Court must take evidence on the parties’ intention. In

either event, a Rule 12 dismissal on grounds of release would

be inappropriate. Also, the City is likely collaterally estopped

from raising the release as a bar to claims related to the “new

incinerator” by the trial court’s rejection of that position in

the state case, a ruling from which no appeal was taken.

Moving on to the City’s substantive arguments for

dismissal, the Court finds that none of them would support a

Rule 12(b)(6) dismissal.

First, there is a dispute that cannot be resolved in the

context of a motion to dismiss as to whether there has been

an interference with property rights sufficient to sustain a

cause of action for uncompensated taking under the Fifth

and Fourteenth Amendments, as opposed merely to a

legitimate exercise of governmental regulatory power over

an industry that affects the public’s health and welfare. This

24a

Appendix B

is an unsettled area of jurisprudence, in which facts — such

as other economically viable uses of the property, to name

just one — play a key role, even though the decision as to

whether there has been a compensable taking is ultimately

one of law, rather than of pure fact. See, e.g., Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992).

Thus, the questions raised as to whether there was actually a

taking are clearly unsuitable for resolution on the pleadings.

Second, the law of the Fourth Circuit does not bar the

pleading of a substantive due process claim here. Cf. Sylvia

Dev. Corp. v. Calvert County, 48 F.3d 810 (4th Cir. 1995).

The Court is not persuaded that the Fourth Circuit would be

much swayed by the Ninth Circuit’s decision in Armendariz

v. Penman, 75 F.3d 1311 (9th Cir. 1996) (en banc).

Third, the Court is not convinced that the Fourth Circuit

would find that the plaintiff's failure to pursue state law

remedies for the taking at issue bars direct action under the

Fifth and Fourteenth Amendments.

Also, the Court is of the opinion that the case law does

not shield the legislation at issue from judicial inquiry in a

takings/due process case, given the allegations of the present

plaintiff, which must be taken as true in a Rule 12 context,

of double-dealing by the enacting municipality. See, e.g.,

Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983).

Turning now to the dispositive issue, the Court finds

that any interference with the plaintiff's property right to

construct a new facility occurred, if at all, upon the

Moratorium’s enactment in the summer of 1992, and,

25a

Appendix B

therefore, this action is barred by the three-year limitations

period of Maryland law which must be applied to this §1983

suit. See National Advertising Co. v. City of Raleigh, 947

F.2d 1158, 1161 (4th Cir. 1991), cert. denied, 504 U.S. 931

(1992). The question of when the cause of action accrued,

though, is to be decided by federal law. /d. at 1162.

In the summer of 1992, when the Moratorium was

enacted, it plainly prohibited any construction of a new

facility or alteration to the existing facility absent the

legislative act of granting, by ordinance, an exception.

Baltimore v. New Pulaski, 112 Md. App. at 222. At that time,

the parties well knew that the old facility could not continue

to operate for long, given its problems with meeting air

quality standards and the impracticality of a retrofit. Jd. The

Moratorium was enacted as a direct result of political

pressure from local opponents of the incinerator. Jd.

Thus, precisely the injury complained of here — the

statutory limitation placed by the City on the plaintiff’s use

of its property for its desired purpose — occurred on

enactment of the ordinance. Such a result is consistent with

the Fourth Circuit’s approach to a similar issue in National

Advertising, supra. In that case, the Fourth Circuit held that

an action under §1983 asserting a takings challenge to an

ordinance regulating billboards accrued upon its enactment.

The same is true of the ordinance at issue in this case.

It may well be that the parties negotiated for legislative

relief from the Moratorium, but the official action of the City

causing the harm to the plaintiff — that harm being its

inability to construct a new facility or to renovate the failing

26a

Appendix B

old one — occurred when the Moratorium was enacted, not

when the relief bill failed or when the existing incinerator

was forced to shut down. Thus, under the “‘ad hoc, factual

inquiries” test of National Advertising, 947 F.2d at 1163-66,

the present plaintiff could have, but did not, mount an “as

applied” challenge to the ordinance upon its enactment, and,

therefore, the present suit is time-barred, unless there is some

escape for the plaintiff from the limitations bar.

As in National Advertising, the present plaintiff

unconvincingly asserts a “continuing harm” theory to toll

the accrual of the action, but, as in National Advertising,

this Court rejects the effort. Here, as in National Advertising,

the injurious act occurred upon enactment of the ordinance,

947 F.2d at 1166-68, and neither the prospect of negotiating

its way out of the Moratorium nor reliance upon overcoming

the political opposition that a legislative exception to the

Moratorium was sure to engender excuses the plaintiff from

its duty to pursue constitutional challenges with diligence.

Id. at 1168.

Finally, the plaintiff's argument for raising an equitable

estoppel against the City are far too weak to support such a

bar, in light of the fact that there is no manifest injustice to

the plaintiff from the actions pegged by it as amounting to

an equitable estoppel (in its opposition Memorandum at 30).

Cf. Schaefer v. Anne Aru’ el County, Md., 17 F.3d 711 (4th

Cir. 1994). The plaintiff i. obviously a sophisticated entity,

a “power player” in the world where politics and business

intersect, and, as such, reliance on the shifting sands of

political support to overcome popular opposition to its plans

27a

Appendix B

hardly justifies it now in raising failure or withdrawal of

that support as an estoppel.

The Court need not, in view of the above, address the

ripeness argument raised by the City.

Finally, it could well be that, were the record fully

developed for summary judgment purposes, see Celotex

Corp. v. Catrett, 477 U.S. 317, 326 n.6 (1986), this case

might turn out to be nothing more than the kind of land-use

dispute dressed up in constitutional finery that the district

courts in this Circuit have been instructed to eschew, see

Sylvia Dev. Corp., supra, 48 F.3d at 828-29, but it also might

be that the plaintiff would have a triable case under §1983

as to one or more of its theories. What is, though, clear at

this stage is that its complaint is time-barred.

For the stated reasons, the defendant’s motion to dismiss

is hereby GRANTED. A separate order will be entered

accordingly.

s/ Frederic N. Smalkin

Frederic N. Smalkin

U.S. District Judge

28a

Appendix B

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

Civil No. S 97-38

THE NEW PULASKI COMPANY

LIMITED PARTNERSHIP

we

MAYOR AND CITY COUNCIL OF BALTIMORE

ORDER

For the reasons stated ina Memorandum Opinion of even

date herewith, it is, by the Court, this 22nd day of July, 1997,

ORDERED:

1. That the defendant’s motion to dismiss BE, and it

hereby IS, GRANTED;

2. That the present complaint BE, and it hereby IS,

DISMISSED, as barred by limitations; and

3. That the Clerk mail copies hereof to counsel.

s/ Frederic N. Smalkin

Frederic N. Smalkin

U.S. District Judge

29a

APPENDIX C — ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT

DENYING PETITION FOR REHEARING

AND REHEARING EN BANC DATED

AND FILED AUGUST 15, 2000

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 97-2118

CA-97-38-S

THE NEW PULASKI COMPANY LIMITED

PARTNERSHIP, a Maryland Limited Partnership

Plaintiff — Appellant

v.

MAYOR AND CITY COUNCIL OF BALTIMORE,

a Municipal Corporation

Defendant — Appellee

No. 97-2204

CA-97-38-S

THE NEW PULASKI COMPANY LIMITED

PARTNERSHIP, a Maryland Limited Partnership

Plaintiff — Appellee

V.

MAYOR AND CITY COUNCIL OF BALTIMORE,

a Municipal Corporation

Defendant — Appellant

30a

Appendix C

On Petition for Rehearing and Rehearing En Banc

The appellant’s petition for rehearing and rehearing

en banc was submitted to this Court. As no member of this

Court or the panel requested a poll on the petition for

rehearing en banc, and

As the panel considered the petition for rehearing and is

of the opinion that it should be denied,

IT IS ORDERED that the petition for rehearing and

rehearing en banc is denied.

For the Court,

/s/ Patricia S. Connor

CLERK

3la

APPENDIX D — CITY OF BALTIMORE, ORDINANCE

NO. 128, ENACTED AUGUST 7, 1992

EXPLANATION: CAPITALS INDICATE

ADDED TO EXISTING LAW.

[BRACKETS] indicate matter deleted from existing law.

Underlining indicates amendment to bill.

Strike-out indicates matter stricken from the bill by

amendment or deleted from the law by amendment.

CITY OF BALTIMORE

ORDINANCE NO. 128

(Council Bill No. 54)

AN ORDINANCE concerning

A MORATORIUM ON THE CONSTRUCTION

OF INCINERATORS

FOR the purpose of imposing a 5-year moratorium on the

construction, reconstruction—akeratien (other than

pollution control measures), replacement and expansion

of incinerators within Baltimore City;; providing for

certification by the Director of Public Works regarding

the necessity for certain construction, reconstruction,

replacement or expansion, and City Council approval

thereof and defining certain terms; providing for an

extension of the moratorium under certain conditions,

and providing penalties.

32a

Appendix D

SECTION 1. BE IT ORDAINED BY THE MAYOR

AND CITY COUNCIL OF BALTIMORE, That the Mayor

and City Council finds that:

The incineration of solid waste produces toxic substances

and contributes to air, water and ground pollution,

endangering the health and well-being of residents in the

area of such facilities.

Large scale incineration of solid waste delays and

undermines the implementation of environmentally sound

alternatives to burning, such as source reduction, recycling

and composting.

A significant amount of recyclable and compostable

material that could be removed from the solid waste stream

is needlessly burned each year in Baltimore City.

To achieve the State’s mandated recycling goals and the

City’s commitment to the disposal of solid waste through

environmentally sound alternatives, such as reduction,

recycling, and composting, and to benefit the health and

welfare of the residents of the City, the City must temporarily

ban the construction, reconstructionakeratiern (other than

pollution control] measures), replacement and expansion of

incinerators within the City’s limits.

A limited ban on the construction or akeratier expansion

of incinerators will allow the City time to develop and

implement safe, economical, and environmentally sound

alternatives to the incineration of solid waste, all to the

benefit of the health, welfare and economic well-being of

the residents of the City of Baltimore.

33a

Appendix D

SEC. 2. AND BE IT FURTHER ORDAINED, That as

used in this ordinance, the following definitions apply:

a. “Incinerator” means a solid waste burning facility and

includes: 1) a plant that burns solid waste, such as mass-burn,

resource recovery and waste-to-energy facilities; and 2) a plant

that burns any fuel product derived in whole or in part from

solid waste. The term incinerator does not include any boiler,

process heater, vent gas burner system, flare, after burner,

Or vapor incinerator owned and operated by a business for

the disposal of the business’s by product which is generated

on site by that business.

b. “Recyclable material” means material which would

otherwise become solid waste, and which may be collected,

separated, processed and returned to the economy in the form

of raw materials or products.

c. “Solid waste” means garbage, refuse, and other waste

products, including solid, liquid, semisolid, or contained

gaseous material generated by industry, agriculture,

commercial businesses, government and residences, but does

not include solid or dissolved material in sewage or in

irrigation return flows.

d. “Source reduction” means the reduction of solid waste

before it enters the solid waste stream, by methods such as

product redesign, materials substitution, materials reuse and

packaging restrictions.

e. “Expand” and “expansion” means any change in the

€._EXxpana and expansion means any change in the

incinerator’s structure and/or operation that would result in

additional burning Capacity or capability.

SESS ES OE Te Te

34a

Appendix D

SEC. 3. AND BEIT FURTHER ORDAINED, That for

a period of 5 years subsequent to the date of enactment of

this Ordinance:

a. Fhe-City-shal-net No person shall construct,

reconstruct, ater; replace or expand any incinerator in

Baltimore City. Provided, however, that if the Director of

Public Works certifies in a written report by detail and

analysis to the City Council that such construction

reconstruction, replacement or expansion is necessary to

serve the public interest in the efficient, economic, safe and

environmentally sound disposal of solid waste, the City

Council by ordinance may approve such construction,

reconstruction, replacement or expansion.

d-b. Nothing contained herein shall abrogate any

permittee’s responsibility to comply with local, state or

federal laws relating to pollution controls and any

construction, reconstruction, improvement or replacement

necessarily associated therewith.

35a

Appendix D

SEC. 4. AND BE IT FURTHER ORDAINED, That six

months before expiration of the 5-year moratorium, the

Director of Public Works shall submit to the Mayor and to

the City Council a written report indicating the extent of the

City’s achievement of state-mandated standards for recycling

and solid waste stream reduction. In the event that the

Director reports that the City has not yet achieved a

40 percent reduction in the City’s solid waste stream through

source reduction, recycling, and composting by the expiration

of the moratorium period, then, without the necessity of

further action by the City Council, the moratorium as

provided herein shall be automatically renewed for an

additional 5-year period or until such time as the Director

reports that the 40 percent reduction has been achieved,

whichever occurs first.

SEC. 5. AND BE IT FURTHER ORDAINED, That

within six (6) months after the effective date of this

Ordinance, the City of Baltimore shall include in its ten (10)

year solid waste plan, solid waste management programs that

rely on safe, economical, and environmentally sound

alternatives to the burning of solid waste.

SEC. 6. AND BE IT FURTHER ORDAINED, That any

person who violates any provision of this Ordinance or any

rule or regulation promulgated by the Director of Public

Works pursuant to this Ordinance, shall be deemed guilty of

a misdemeanor, and, upon conviction thereof, shall be fined

not less than $500.00 nor more than $1,000.00. If a violation

is continuing, each day of violation shall constitute a separate

offense.

36a

Appendix D

SEC. 7. AND BE IT FURTHER ORDAINED, That if

any provision of this Ordinance or the application thereof to

any person or circumstance is held invalid for any reason in

a court of competent jurisdiction, the invalidity does not

affect other provisions or any other application of this

Ordinance which can be given effect without the invalid

provision or application, and for this purpose the provisions

of this Ordinance are declared severable.

SEC. 8. AND BEIT FURTHER ORDAINED, That this

ordinance shall take effect on the 30th day after the date of

its enactment.

Certified as duly passed this JUN 18 1992

(Signed) Mary Pat Clarke

President, Baltimore City Council

Certified as duly delivered to His Honor, the Mayor, this

JUN 19 1992

(Signed) Leonard F. Wright

Chief Clerk

Approved this AUG 7 1992

(Signed) Kurt L. Schmoke

Mayor, Baltimore City

37a

APPENDIX E — CITY OF BALTIMORE, COUNCIL

BILL NO. 846, PROPOSED MAY 9, 1994

EXPLANATION: CAPITALS INDICATE

ADDED TO EXISTING LAW.

[BRACKETS] indicate matter deleted from existing law.

CITY OF BALTIMORE

COUNCIL BILL NO. 846 — FIRST READER

BY: Vice President Hall, Councilmembers Branch,

Cunningham, Curran, Welch, Dixon, Reeves, Spector,

DiBlasi, Stukes

Requested by: Pulaski Company

Address: 300 E. Joppa Road, Baltimore, MD 21286

Tel: 821-1100

Introduced: May 9, 1994

Assigned to: Health and Environment Committee

REFERRED TO THE FOLLOWING MUNICIPAL

AGENCIES: City Solicitor, Planning Commission, Dept. of

Public Works, Health Department, Dept. of Finance, Board

of Estimates, Baltimore Development Corporation

A BILL ENTITLED

AN ORDINANCE concerning

RESOURCE RECOVERY FACILITY

6709 PULASKI HIGHWAY

WASTE-TO-ENERGY FACILITY

1801 ANNAPOLIS ROAD

FOR the purpose of approving the construction of a modern

incinerator/resource recovery facility at 6709 Pulaski

38a

Appendix E

Highway and the expansion of the waste-to-energy

BRESCO facility at 1801 Annapolis Road pursuant to

the recommendation of the Department of Public Works

and Ordinance No. 128 of the 1992 Legislative Session.

SECTION 1. BE IT ORDAINED BY THE MAYOR

AND CITY COUNCIL OF BALTIMORE, That the Mayor

and City Council finds that:

Pursuant to Ordinance No. 128 of the 1992 Legislative

Session, the Mayor and City Council of Baltimore (the

“City”) required the Director of Public Works of the City to

provide a written report to the City in connection with any

proposed construction, reconstruction, replacement or

expansion of any incinerator in Baltimore City (subject to

certain exclusions).

The Director of Public Works has certified in a written

report to the City that the construction of a new, modern

state on the art incineration facility (the “New Facility”) at

6709 Pulaski Highway, which would replace the five original

furnaces now operating at the site, and the expansion of the

waste-to-energy facility (the “BRESCO Facility”) at 1801

Annapolis Road is necessary to serve the public interest in

the efficient, economic, safe and environmentally sound

disposal of solid waste.

The City will not be responsible for payment of any of

the costs of constructing the New Facility which will utilize

modern methods of incineration and pollution control and

will operate more efficiently than the existing facility.

39a

Appendix E

The Baltimore metropolitan area is in need of modern,

efficient state of the art incineration capacity in order to

preserve landfill space throughout the area and to maintain

and improve management of solid waste disposal, as well as

to promote economic development.

The construction of the New Facility can be undertaken

without imposing on the City the obligation to provide a

waste stream and/or make Tipping Fee payments to the

operator of the New Facility.

The New Facility will reduce the need for additional

landfill space in the metropolitan area, will increase the

competitive options for disposal of solid waste and will

permit the efficient, economic, safe and environmentally

sound disposal of solid waste in the Baltimore metropolitan

area.

Accordingly, the City has determined, pursuant to

Section 3(a) of Ordinance No. 128, to approve the

construction of the New Facility and the expansion of the

BRESCO Facility as described above.

SEC. 2. AND BE IT FURTHER ORDAINED, That the

City approves the construction, reconstruction, replacement

and expansion of an incineration facility at 6709 Pulaski

Highway and the expansion of the waste-to-energy facility

at 1801 Annapolis Road in accordance with, and as generally

described in, the written report from the Director of Public

Works.

eT ee

40a

Appendix E

SEC. 3. AND BE IT FURTHER ORDAINED, That all

construction, reconstruction, replacement and expansion of

the incineration facility at 6709 Pulaski Highway and the

waste-to-energy facility at 1801 Annapolis Road shall be

carried out in strict accordance with all applicable federal

and state environmental laws and regulations.

SEC. 4. AND BE IT FURTHER ORDAINED, That this

ordinance shall take effect on the date of its enactment.

4la

APPENDIX F — CERTICATION FOR COUNCIL BILL

NO. 846 BY CITY OF BALITMORE’S DIRECTOR OF

THE DEPARTMENT OF PUBLIC WORKS,

DATED MAY 5, 1994

CERTIFICATION

I, George G. Balog, Director of the Department of Public

Works for Baltimore City, do hereby make this Certification

this 5th day of May, 1994 in accordance with City Council

Ordinance 128 of 1994.

l.

City of Baltimore Ordinance No. 128 (1992) bars the

construction, reconstruction (other than pollution control

measures), replacement or expansion of incinerators

within Baltimore City; provided however, that if the

Director of Public Works certifies in a written report by

detail and analysis to the City Council that such

construction, reconstruction, replacement or expansion

is necessary to serve the public interest in the efficient,

economic, safe and environmentally sound disposal of

solid waste, the City Council by ordinance may approve

such construction, reconstruction, replacement or

expansion.

In accordance with the requirements of this ordinance,

I hereby submit to the Baltimore City Council may

recommendation that it consider the replacement of the

incinerator located at 6900 Pulaski Highway (“Pulaski

Incinerator”) and the expansion of the waste-to-energy

facility located at 8201 Annapolis Road (“BRESCO”).

I have concluded that replacement of the Pulaski

Incinerator and expansion of BRESCO are necessary to

serve the public interest in the efficient, economic, safe

and environmentally sound disposal of solid waste.

42a

Appendix F

My analysis and recommendation are based on the

considerations discussed below, together with the report

submitted by F. Pierce Linaweaver & Associates, Inc.

dated March 11, 1994 (Attachment A) and the report

prepared by Dave Marc, Engineering Supervisor, Bureau

of Solid Waste, dated May 2, 1994 (Attachment B),

which I incorporate herein by reference as part of my

report to the City Council.

The City of Baltimore is bound by compacts executed

in 1980 and 1993 to solve the problem of solid waste

disposal on a regional basis, together with Anne Arundel,

Baltimore, Howard, Harford and Carroll Counties.

See Northeast Maryland Regional Solid Waste

Management Agreement and Amendments dated

December 1, 1980; Regional Solid Waste Management

Compact for Baltimore City and Anne Arundel,

Baltimore, Carroll, Harford and Howard Counties, dated

December 31, 1993. These compacts expressly recognize

that the problem of solid waste disposal does not respect

political boundaries, and if it is to be solved in an

efficient, cost-effective and environmentally sound

manner, must be addressed by all regional governments

acting in cooperation with one another. The 1993

compact requires all signatory jurisdictions to “identify

specific multi-jurisdictional projects for implementation

and incorporate these projects and programs into each

individual 10-year solid waste management plan.”

Baltimore’s contractual obligations are underscored by

the Maryland Department of the Environment, which has

expressed concern to my department that Baltimore’s

43a

Appendix F

draft 10 year solid waste management plan does not

provide for adequate regional cooperation in the disposal

of solid waste. Unless Baltimore addresses this issue to

the satisfaction of MDE, we risk rejection of the plan by

the State.

In addition to Baltimore’s contractual obligations and

the concerns expressed by MDE regarding lack of

regional cooperation, it is self-evident that a regional

solution to the problem of solid waste disposal will

benefit Baltimore City. If we can solve the problem of

regional waste disposal, we will make the Baltimore

metropolitan area more attractive to new business,

directly and indirectly increasing revenue to the City.

Currently in the Baltimore metropolitan region, there

are 900,000 tons of solid waste being disposed of

annually in area landfills. This landfill space will be

consumed within the next five to ten years, necessitating

development of alternate methods of disposal. Moreover,

Baltimore County is presently entering into a five year

landfill plan which upon expiration would require a

permanent solution to their solid waste needs.

In addition to landfills there are three options for waste

disposal: incineration (preferably in waste-to-energy

facilities), composting and recycling. I am of the opinion

that all three methods should be used to achieve a

reliable, safe and efficient solid waste management plan.

It is clear, however, that incineration in waste-to-energy

facilities must be the major component in a regional

44a

Appendix F

solution to the waste disposal problem. Such facilities

must have the capacity to consume the current quotient

of incinerated waste plus the 900,000 tons of waste

currently being landfilled. There are two existing

incinerators in Baltimore City — the Pulaski Incinerator

and BRESCO (which converts the incinerated product

into steam and electrical energy). The former is obsolete,

however, and the latter does not comply with the Clean

Air Act amendments as proposed. If these facilities are

to be fully utilized in the future so as to meet the region’s

need, it will be necessary to demolish the Pulaski

Incinerator and erect a replacement facility, and expand

BRESCO.

10. The owners of the Pulaski Incinerator have proposed a

state-of-the-art waste-to-energy facility, to be

constructed and operated without any expense to the

City. The owner of BRESCO has likewise proposed

renovation of, and construction of an addition to, the

existing plant. It is my opinion that these proposals are

necessary to serve the public interest in the efficicnt,

economic, safe and environmentally sound disposal of

solid waste. I should add, of course, that composting

and recycling must also play a significant role in the

solution of the regional solid waste disposal problem.

For these reasons, and for the reasons set forth in Attachments

A and B hereto, it is my recommendation that the City

Council consider construction of the proposed facilities.

s/ George G. Balog

GEORGE G. BALOG

DIRECTOR

MEDIATE arte