Posted by: Patricia Salkin | April 2, 2012

Maryland Appeals Court Finds County Surface Mining Ordinance Preempted by State Laws

Appellant sand and gravel operators in Queen Anne’s County, Maryland, challenged a county ordinance which sought to regulate major extraction operations, arguing the ordinance was preempted by state surface mining laws and was a violation of substantive due process.  The circuit court had upheld the ordinance and the operators appealed. 

The Maryland Department of the Environment (MDE) regulates surface mining operations within the state and maintains a permitting process for operators.  Appellants contended that these state regulations are so comprehensive in nature that they impliedly preempt the County’s ordinance, which attempts to restrict the duration, size and scope of mining operations, among other things.  In addition, the appellants contended that the ordinance was preempted by conflict, since some of its provisions are in direct conflict with those of the state.

The Maryland Court of Special Appeals held that the MDE had created “a very elaborate scheme regulating virtually all aspects of surface mining in Maryland.”  To determine whether these laws impliedly preempted the County ordinance, the court applied the seven-factor test outlined in Allied Vending, Inc. v. Bowie, 332 Md. 279 (1993).  The factors considered under the Allied Vending test include “1) whether local laws existed prior to the enactment of state laws governing the same subject matter, 2) whether the state laws provide for pervasive administrative regulation, 3) whether the local ordinance regulates an area in which some local control has traditionally been allowed, 4) whether the state law expressly provides concurrent legislative authority to act in the field, 5) whether a state agency responsible for administering and enforcing the state law has recognized local authority to act in the field, 6) whether the particular aspect of the field sought to be regulated by the local government has been addressed by the state legislation, and 7) whether a two-tiered regulatory process existing if local laws were not preempted would engender chaos and confusion.”   In this case, the court felt that the Allied Vendor factors “cut in favor of preemption” because the state regulatory framework had existed prior to the County ordinance, because the general law already addressed the particular aspect the County sought to control, and because the County sought to regulate the time of major extraction operations, which local municipalities have traditionally not been able to control.  The County also sought to require a conditional use approval for operators to expand or renew projects which were already allowed under state law.  For all of those reasons, the court felt that the Count had impermissibly sought “to impose the types of requirements on surface mining that go beyond classic zoning considerations” that local municipalities are allowed to regulate under the state scheme, and thus the County’s attempts to regulate were impliedly preempted by state law. 

Even without the implied preemption, the court agreed with appellants that conflict preemption was present in this case.  The ordinance sought to regulate the maximum area of surface disturbance, the time period mining would be allowed, and the time limitations on mining permits – all areas that had been regulated, and regulated differently, but the state law.  Since the County’s ordinance placed additional and incompatible restrictions on surface mining, it was in direct conflict with the state law and thus preempted. 

The case is remanded with direction to issue a declaratory judgment making invalid the County ordinance. 

East Star LLC v. County Commissioners of Queen Anne’s County, 2012 WL 657878 (Md. App. 3/1/12) 

The opinion can be accessed at:  http://www.leagle.com/xmlResult.aspx?xmldoc=In%20MDCO%2020120301291.xml&docbase=CSLWAR3-2007-CURR


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