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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1144

## Text

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

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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

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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

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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

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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.

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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

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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

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1319%3A1. Public record. Not legal advice.