Holiday Point Marina Partners v. Anne Arundel County

666 A.2d 1332, 107 Md. App. 160, 1995 Md. App. LEXIS 183
CourtCourt of Special Appeals of Maryland
DecidedNovember 7, 1995
DocketNo. 252
StatusPublished
Cited by3 cases

This text of 666 A.2d 1332 (Holiday Point Marina Partners v. Anne Arundel County) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holiday Point Marina Partners v. Anne Arundel County, 666 A.2d 1332, 107 Md. App. 160, 1995 Md. App. LEXIS 183 (Md. Ct. App. 1995).

Opinion

WENNER, Judge.

Appellant, Holiday Point Marina Partners, filed a Complaint in the Circuit Court for Anne Arundel County, seeking a [163]*163declaration that Article 28, § 5-108(e) of the Anne Arundel County Code is preempted by State and federal law. After the trial court granted Anne Arundel County’s Motion for Summary Judgment and denied appellant’s motion, appellant noted this appeal, inquiring:

I. Did the Anne Arundel County Circuit Court commit reversible error by determining that Anne Arundel County did not exceed its authority under the Express Powers Act despite the clear language contained in Article 25A, Section 5(X) Md.Ann.Code by enacting Article 28, Section 5—108(e) of the Anne Arundel County Code?
II. Did the Anne Arundel County Circuit Court commit reversible error by finding that the comprehensive State statutory and regulatory scheme governing construction of marinas in State wetlands and protecting water quality, shellfish and consumers of shellfish did not pre-empt by implication Article 28, Section 5-108(e) of the Anne Arundel County Code?
III. Did the Anne Arundel County Circuit Court commit reversible error by determining that the general public laws and regulations of Maryland governing the location and construction of marinas in State wetlands and protecting water quality, shellfish and consumers of shellfish, did not pre-empt by conflict Article 28, Section 5-108(e) of the Anne Arundel County Code?
IV. Did the Anne Arundel County Circuit Court commit reversible error by not finding that the U.S. Army Corps of Engineers permit preempts Article 28, Section 5-108(e) under federal law?

Finding no error, we shall affirm the judgment of the circuit court.

Facts

Appellant has owned and operated a commercial marina in Anne Arundel County since 1971. The property is zoned MB-1 and MC-1 under the Anne Arundel County Code, permitting [164]*164the operation of a commercial marina. In 1985, appellant began planning to expand its marina, contemplating 100 additional boat slips. Between 1985 and 1993, appellant participated in an exhaustive review of its expansion plans by the United States Army Corps of Engineers, the Maryland Department of Environment (MDE), the Maryland Department of Natural Resources, and Anne Arundel County. By 31 July 1993, appellant had obtained all required federal and State permits. Afterwards, appellant applied to the Anne Arundel County Office of Planning and Zoning (AAPZ) for a building permit. Appellant was informed by AAPZ that in order to acquire a building permit it was first necessary to obtain a variance from Article 28, § 5-108(e) of the Anne Arundel County Code. Section 5-108(e)(3) provides:

(e) Marina group districts and marina facilities may not be located, as measured in a straight line through the water, closer than the following distances to shellfish beds:
(3) One-half of a mile [or 2,640 feet] for a marina with more than 100 slips.

The site of the proposed expansion is approximately 2,350 feet from the nearest boundary of a natural oyster bar. After completion, the nearest pier head would come within 1,800 feet of the oyster bar. Despite County support, the AAPZ denied appellant’s application for a variance.

Discussion

On appeal, appellant presents several alternative theories why the County’s zoning ordinance is void, all of them invoking the doctrine of legislative preemption. We shall discuss each in turn.

I.

Express Powers Act

Md.Code Ann. Article 25A, § 5 empowers charter counties to enact laws for the health, safety, morals, and welfare of its citizens, providing:

[165]*165The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say:
(A) Local Legislation
To enact local laws for such county, including the power to repeal or amend local laws thereof enacted by the General Assembly upon the matters covered by the express powers in this Article granted; to provide for the enforcement of all ordinances, resolutions, bylaws and regulations adopted under the authority of this article by fines, penalties and imprisonment, enforceable according to law as may be prescribed, but no such fine or penalty shall exceed $1,000.00 for any offense other than a fair housing law offense or imprisonment for more than six months; to provide for the enforcement of local fair housing laws by fines or penalties that do not exceed the fines or penalties provided in the Federal Fair Housing Act Amendments of 1988 for enforcement of similar federal fair housing laws; to provide for enforcement of all ordinances, resolutions, bylaws, and regulations adopted under the authority of this article by civil fines and penalties.

Such authority, however, is subject to the State’s constitution and public general laws. Md. Constitution Art. XI-A, § 3. According to appellant, Article 28, Section 5-108(e) of the Anne Arundel County Code is inconsistent with Maryland’s regulatory scheme governing the siting of marinas in relation to shellfish beds and therefore violates Md.Code Ann. Article 25A, § 5(X)(2)(v)(4) (1994 Repl.Vol.).1 We have neither been referred to, nor have we discovered any such scheme.

[166]*166As we see it, the purpose of the County zoning ordinance is to reduce the amount of human pathonegens and other pollutants emanating from marina facilities in waters adjacent to natural oyster bars and other shellfish areas. A report issued by the Anne Arundel County Office of Planning2 concluded that discharge and runoff from such facilities contributed to high concentrations of harmful bacteria in shellfish, ultimately risking the health of those who consume them.

It is beyond cavil that a municipality may protect the health, welfare, and safety of their citizens by exercising its zoning authority. Howard County, Md. v. Dorsey, 292 Md. 351, 363, 438 A.2d 1339 (1982). Indeed, the plain language of Article 25A, § 5(X)(1)(i) provides:

§ 5. Enumeration.
The following enumerated express powers are granted to and conferred upon any county or counties which hereafter form a charter under the provisions of Article XI-A of the Constitution, that is to say * * *:
(X) Planning and Zoning
(l)(i) To enact local laws, for the protection and promotion of public safety, health, morals, and welfare, relating to zoning and planning, * * * (emphasis added).

It is also beyond question that a county may protect the environment by exercising its zoning authority. See generally Mayor and Aldermen of Annapolis v. Annapolis Waterfront Co., 284 Md. 383, 399, 396 A.2d 1080 (1979) (environmental effects of additional boat slips could be considered in zoning); Norbeck Village Joint Venture v. Montgomery County Council, 254 Md.

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Bluebook (online)
666 A.2d 1332, 107 Md. App. 160, 1995 Md. App. LEXIS 183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holiday-point-marina-partners-v-anne-arundel-county-mdctspecapp-1995.