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Smoke Rise, Inc. v. Washington Suburban Sanitary Comm'n

Citation: 6 ELR 20389
No. No. 73-1031, 400 F. Supp. 1369/8 ERC 1350/(D. Md., 08/18/1975) motions to dismiss amended complaint granted, partial summary judgment motions granted in part and denied in part

The court dismisses a takings and due process challenge to five-year sewer moratoria, but hold that requiring landowners to request exemption from a front foot assessment only at the time of the original assessment (prior to imposition of the moratoria) violates due process. Jurisdiction of the court is properly invoked, since plaintiffs have presented a federal question. The doctrine of exhaustion of administrative remedies is inapplicable because the denial by the Secretary of the Department of Health and Mental Hygiene of an exemption to the moratoria does not constitute a "contested case" subject to further administrative appeal within the meaning of the Maryland Administrative Procedure Act. In addition, exhaustion does not apply to persons seeking to install individual sewerage systems outside the Washington Suburban Sanitary Commission (WSSC) system. An administrative appeal lies only from the Secretary's approval of a county sewerage plan, with which individual systems must be consistent, not from decisions regarding individual land exemptions. Furthermore, only municipalities, not individuals, have standing to contest the wisdom of land use classifications under the comprehensive sewerage plan. In addressing the taking issue, the court emphasizes the distinction between a taking under the police power and the state's exercise of its eminent domain power. The former results from excessive restriction of a public harm; the latter entails securing a public benefit. The sewer moratoria implement the state's police power public trust duty to preserve the state's waters from sewage overflows. In any event, a taking has not occurred, since plaintiffs' land has not been rendered worthless by the temporary sewer moratoria. A deprivation of property without due process occurs when the police power is arbitrarily or unreasonably exercised. The purpose of the moratoria — protection of the public health — is clearly legitimate. Conversely, the illegitimate purpose of a naked ban on growth is not a purpose of the moratoria, which have been accompanied by carefully though out interim and long-range growth plans. In addition, the reasonableness of the moratoria must be measured by their duration and by the scope of the problem addressed. A five-year sewer ban is not unreasonable when viewed in terms of the metropolitan region's planning responsibilities under § 208 of the Federal Water Pollution Control Act Amendments of 1972, the federal impoundment of sewage treatment funds, and the interjurisdictional complexity of the sewage problem. Nor has the ban on private septic systems deprived the plaintiffs of property without due process, since orderly growth may be regulated by reasonable, comprehensive sewerage restrictions. However, due process is offended by the defendants' interpretation of the front foot assessment regulation to require application for an exemption contemporaneously with the original assessment, when the moratoria were imposed subsequent to the assessment.

Counsel for Plaintiffs
Joseph P. Blocher
John J. Delaney
Linowes & Blocher
600 Metropolitan Bldg.
8720 Georgia Ave.
Silver Spring MD 20910
(301) 588-8580

Counsel for Defendants
Paul T. Sisson
Washington Suburban Sanitary Commission
4017 Hamilton St.
Hyattsville MD 20781
(301) 277-7700

Richard S. McKernon, Montgomery County Attorney
John B. Walsh, Jr., Asst. County Attorney
County Office Bldg.
Rockville MD 20850
(301) 279-1346

Joseph S. Casula, Prince George's County Attorney
James F. Sharkey, Asst. County Attorney
14746 Main St.
Upper Marlboro MD 20870
(301) 627-5400

Francis B. Burch, Maryland Attorney General
Donald H. Noren
Paul M. Vettori Asst. Attorneys General, Dept. of Health and Mental Hygiene
Warren K. Rich
Edward Lawson Asst. Attorneys General, Dept. of Environmental Services
1 S. Calvert St.
Baltimore MD 21202
(301) 383-3737

Robert H. Levan
Sanford E. Wool Maryland-National Capital Park and Planning Commission
8787 Georgia Ave.
Silver Spring MD 20910
(301) 589-1480