author: MacDaniel, J.,

text:
    VERONA HOUSING, INC. v. ST. MARY’S COUNTY METROPOLITAN COMMISSION
    [No. 1039,
    September Term, 1979.]

      Decided April 16, 1980.

    The cause was argued before Melvin, Couch and MacDaniel, JJ.

      Salvatore E. Anello, III, with whom was Arnold R. Silbiger on the brief, for appellant.

      Neil J. Dilloff, with whom was Charles W. Mander on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Appellant Verona Housing, Incorporated, was sued by the St. Mary’s County Metropolitan Commission to recover certain monies allegedly due and owing to the Commission for water service furnished to appellant’s apartment complex over the past ten years. The Commission had filed a bill of complaint seeking certain declaratory and mandatory injunctive relief. The appellant demurred, challenging the court’s equitable jurisdiction • and, alternatively, its power to fashion the relief requested. In February 1979 the demurrer was overruled; appellant then answered the bill of complaint and the Commission filed a motion for summary judgment. On March 6, 1979, the Circuit Court for St. Mary’s County, sitting in equity, granted the Commission’s motion, and awarded the declaratory and mandatory injunctive relief requested. Appellant then filed this appeal, challenging the trial court’s dismissal of its demurrer, its grant of summary judgment and its power to award the equitable relief requested.

The story of this case is long, and its facts complex, so we had best begin at the beginning. Appellant Verona Housing, Incorporated, (hereinafter Verona) is a New Jersey corporation authorized to carry on business in the State of Maryland. It is the successor in interest to the Patuxent Section I, Patuxent Section II and Patuxent Section IV Corporations. As such, it owns a ninety-nine year non-renewable, non-redeemable leasehold interest in certain land in Lexington Park, Maryland, the reversionary interest being owned by the United States of America. The land is improved by an eight to nine-hundred-unit apartment complex, known as the St. Mary’s Garden Apartments, which Verona manages. It appears that, for all practical purposes, Verona has no attachable assets in Maryland. The monthly rental income from the complex has been assigned to certain New Jersey banking interests: Verona merely collects the rents in order to transfer them to the assignee.

Appellee St. Mary’s County Metropolitan Commission, (hereinafter the Commission) is a body corporate and politic of a political subdivision of the State of Maryland, created by the General Assembly to manage a public water and sewage system for St. Mary’s County. It supplies such services to the St. Mary’s Garden Apartments.

In 1971, the Commission assumed control of the privately owned and operated Patuxent Water Company, Inc., which, until that time, had provided water service to the apartment complex, then operated by Verona’s predecessors in interest. The dispute began when the Commission raised the water service rates. A running battle then ensued, during the course of which Verona’s predecessors ceased paying their water bills, so that by September 1973, the arrearage had grown to $91,050.88. Efforts at an amicable settlement having failed, Verona’s predecessors brought suit in the United States District Court for the District of Maryland, seeking declaratory relief that certain sections of the Code of Public Laws of St. Mary’s County (pertaining to the Commission’s authority to set rates and charges) be declared unconstitutional, and injunctive relief preventing both the collection of the arrearage and the cessation of water service for nonpayment. On June 25,1974, after a full hearing, the complaint was dismissed and the Commission awarded a judgment of $91,050.88. On March 26, 1975, the Fourth Circuit Court of Appeals affirmed the District Court’s decision.

The Commission then set out to satisfy its judgment. By May 31, 1975, the arrearage, including the uncollected judgment and other late fees, had grown to $151,172.15. In August, the parties resolved upon a payment plan to eliminate the indebtedness. The Commission recorded its Federal District Court judgment in the Circuit Court for St. Mary’s County on September 22, 1975. Meanwhile, problems developed with the repayment schedule, so that the August agreement was modified on October 22, 1975.

Despite these agreements, the dispute persisted during the next two years so that, by January 1978, Verona, as successor in interest, still owed the Commission $80,885.91. At last, impatient to have its Federal Court judgment satisfied and its current charges paid when due, the Commission filed this suit, in equity, on January 26,1978.

In response to the Commission’s suit, Verona filed an action against the Commission pursuant to Md. Code, Art. 43, § 450, alleging that the rates, fees and charges established by the Commission were "unreasonably high, lack[ed] uniformity, and [were] arbitrary, capricious, discriminatory and confiscatory.” Then, on June 16, 1978, Verona demurred to the Commission’s petition. On July 12, 1978, the Commission answered the demurrer. It also filed a Motion Raising Preliminary Objection to Verona’s Bill of Complaint on the grounds of lack of subject matter jurisdiction based on res judicata or collateral estoppel and lis pendens. Subsequently, upon motion by the Commission, the two actions were consolidated. Additionally, the parties entered into a settlement agreement which was duly signed and filed with the court as a stipulation.

Throughout 1978, Verona only paid for current service and front foot benefit charges sporadically; its unpaid balance increased, so that by January 1979, its arrearage had grown by an additional $34,333.27. In response, on January 24, 1979, the Commission filed a motion for a mandatory injunction pendente lite to compel Verona to pay its current charges.

Events now moved more swiftly. A hearing on the Commission’s motion raising preliminary objection to Verona’s suit had been held on January 9th. By Order dated January 31st, the trial court granted the Commission’s motion and dismissed Verona’s suit, ruling that it was an attempt to relitigate the issues raised in Verona’s Federal Court action and therefore barred by the doctrine of res judicata. On February 14, 1979, the Commission filed a motion for summary judgment in the amount of $108,758.04. Verona answered the Commission’s motion for mandatory injunction pendente lite on February 15th, and on the sixteenth Verona’s demurrer was overruled, with leave granted to answer within fifteen days.

On March 6, 1979, hearing was held on the Commission’s motion for summary judgment, and the motion was granted. By decree entered March 21st, and modified August 9,1979, the court affirmed the balance of the Federal Court judgment, plus interest, and awarded current service and front foot benefit charges as well. Additionally, by way of a mandatory injunction, the court ordered Verona to pay into the court all rent monies collected from tenants residing at the St. Mary’s Garden Apartments until such time as the court decreed that they be disbursed to the Commission in satisfaction of the court’s judgment. Verona then filed a timely appeal to this Court.

Verona first alleges error to the chancellor’s dismissal of its demurrer. In it, Verona alleged that the Commission had an adequate remedy at law, and that the Commission sought to invoke the court’s equity jurisdiction pursuant to § 8-211, Md. Real Prop. Code Ann. which, Verona asserted, was a remedial statute, available exclusively to tenants. The issue for decision, therefore, is whether the Commission alleged sufficient facts in its petition to invoke the equity jurisdiction of the court below.

In its January 26, 1978, petition the Commission first requested that the court issue a declaratory decree affirming the existence and amount of the unpaid balance of the Federal Court judgment, Verona’s delinquency and the Commission’s right, pursuant to statute, to cut off water service to the St. Mary’s Garden Apartments under those circumstances. The Commission had also joined all the tenants of the apartment complex as a defendant class; it further requested a declaratory decree that its petition constituted sufficient notice to the tenants of the Commission’s right and intent to cut off water service, should all else fail. Clearly however, the Commission did not wish to exercise its right. It further petitioned the court that Verona be mandatorily enjoined to collect the tenants’ rents when due and owing; that they be paid directly to the court; that the court retain them until the accumulation equalled the indebtedness and that the court then pay them to the Commission in satisfaction of the debt. In support of its petition for a mandatory injunction the Commission alleged as follows:

"16. The termination of water service by plaintiff to St. Mary’s Garden Apartments would constitute a substantial threat to the life and health of the defendant tenants.
17. Said termination of service would be as a direct result of the landlord’s failure to pay the water bills past due and owing to plaintiff, said landlords being defendants Verona and St. Mary’s Garden Apartments.
18. Pursuant to Real Property Article Section 8-211 of the Annotated Code of Maryland, defendants Richmond, Gibson, and Furlong, as representatives of the class of tenants, may pay their rent directly into Court where the landlord’s failure to pay its water bills causes a termination of water services.
19. ... defendants Richmond, Gibson, and Furlong, as representatives of the class of tenants, are not directly liable to plaintiff for monies past due and owing for water service or benefit charges and . .. plaintiff does not desire to penalize said defendants and other members of the class by terminating water service, . ...”

Maryland Rule 370 a. 2. provides:

"A bill or petition shall contain a concise statement of the facts upon which the plaintiff seeks relief, and such averments as may be necessary to entitle him to the relief sought, and, may also contain such facts as are intended to avoid an anticipated defense.”

Subsection b. of that Rule states:

"A formal combination clause, or allegation of want of remedy at law, or other similar formal averment, shall not be required.”

And in Balto. Import Car v. Md. Port Auth., 258 Md. 335, 339-40 (1970), the Court of Appeals quoted from its opinion in Smith v. Shiebeck, 180 Md. 412, 420 (1942), to like effect:

" * * The material facts essential to the complainant’s right to obtain relief should be alleged, but a general statement of the facts is sufficient. It is not necessary to state minutely all the circumstances which may conduce to prove the general charge, as these circumstances are properly matters of evidence which need not be recited to enable them to be admitted as proof [citing cases]. Even though every particular circumstance is not stated, the bill will be held sufficient if it states the complaint with reasonable certainty, clearness and accuracy so as to apprise the defendant of the nature of the claim brought against him.’ ”

Verona’s demurrer challenged the jurisdiction of the court to grant the equitable relief requested. But it is well settled that "a demurrer to an entire bill of complaint must fail if, eliminating any portion of it that may be defective, enough remains to present a sufficient ground for equitable relief.” Causey v. Gray, 250 Md. 380, 391 (1968); Smith v. Smith, 216 Md. 141, 145 (1958); see also Jackson v. Cupples, 239 Md. 637, 641 (1965). In light of the Commission’s request for declaratory relief, the question before the chancellor in ruling on the demurrer was clear-cut. As the Court of Appeals explained in Hunt v. Montgomery County, 248 Md. 403 (1967), at 408-09:

"Ordinarily the only place a demurrer has in the declaratory process is to challenge the legal availability/of the remedy sought to be used. In Shapiro v. County Comm’rs, 219 Md. 298, 301-03, Judge Prescott for the Court said:
'In actions for declaratory judgments or decrees, as in actions generally, a demurrer admits all of the alleged facts that are well pleaded.
* * *
'It should be borne in mind that a demurrer is rarely appropriate in a declaratory judgment action. Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff. The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so, even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree/ (Citation omitted.)
The reason is plain why a demurrer should be used in declaratory judgment actions only to challenge the legal availability or appropriateness of the remedy.
'Where the plaintiffs pleading sets forth an actual or justiciable controversy, it is not subject to demurrer since it sets forth a cause of action, even though the plaintiff may not be entitled to a favorable declaration on the facts stated in his complaint; that is, in passing on the demurrer, the court is not concerned with the question whether the plaintiff is right in a controversy, but only with whether he is entitled to a declaration of rights with respect to the matters alleged.’ 22 Am. Jur. 2d Declaratory Judgments, § 91 (1965).” (Emphasis added.)

And see Causey v. Gray, supra, at 391; Woodland Beach Ass’n v. Worley, 253 Md. 442, 447-48 (1969); Balto. Import Car v. Md. Port Auth., supra, at 338-39, and Mauzy v. Hornbeck, 285 Md. 84, 91 (1979).

And in Woodland Beach, supra, at 448, the Court wrote:

"Speaking generally, it is only when the declaration sought does not present a justiciable issue ... that a demurrer would be appropriate, if the lack of a justiciable issue clearly appeared on the face of the bill of complaint or declaration.”

Although the Commission did not specifically invoke the Maryland Uniform Declaratory Judgments Acts as part of its prayer for a "declaratory decree,” nevertheless, we think it beyond doubt that the Commission thereby requested relief which it was inherently within the chancellor’s power to grant. But even admitting, arguendo, that the Commission was entitled to a declaration of its statutory right, vebnon, to discontinue water service to the apartment complex, Verona would still assert that the demurrer should not have been overruled. Verona argues that the court lacked the necessary equitable jurisdiction: first, because the Commission requested relief available exclusively to tenants (Md. Real Prop. Art. § 8-211), and second, because its remedies at law were adequate in any event.

To begin with, although it is true that, under the Act, declaratory relief is equally available in law and equity, nevertheless it has long been clear that the distinction between law and equity has not thereby been abolished. That is to say, a bill not properly in equity will not become so by the mere addition of a prayer for declaratory relief. As the Court of Appeals stated in Bachman v. Lembach, 192 Md. 35, 43 (1949): "We find nothing in the statute that would enlarge the equitable jurisdiction upon a mere prayer for declaratory relief....” This Court recently examined the Uniform Act, and specifically its section 3-402 (Purpose and construction of subtitle), in Corkran v. Zoning Comm’r, 41 Md. App. 437 (1979), and we observed, at 439-40:

"That section provides that the act is remedial in nature. 'Its purpose is to settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations. It shall be liberally construed and administered.’ Courts Art. § 3-402. The Court of Appeals, in Himes v. Day, 254 Md. 197, 206, 254 A.2d 181, 186 (1969), speaking through the late Judge Finan, said 'We think Judge O’Donnell’s observation in the court below, that declaratory judgment procedure is available at law as well as in equity is quite correct.’ See also Fisher v. Tyler, 24 Md. App. 663, 668, 332 A.2d 265, 268 (1975). ’The determination of whether the action is properly at law or in equity,’Judge Thompson wrote for the Court in Fisher v. Tyler, supra, ’must be made by an examination of the nature of the claim asserted and the relief requested. ’ 24 Md. App. at 668-69, 332 A.2d at 268.” (Footnote omitted, emphasis added.)

Examining the "nature of the claim asserted and the relief requested” in the Commission’s petition, we think that in light of the Commission’s request for mandatory injunctive relief the petition was properly in equity. It is undoubtedly true that the remedies afforded by § 8-211 of the Real Property Art. are available exclusively to tenants. But Verona’s assertions to the contrary notwithstanding, we read the Commission’s petition not so much to have invoked that section, but merely to have alluded to it as a basis for its assertion that the court had the general power, in equity and by analogy, to grant the mandatory injunctive relief requested. And we think it beyond doubt that an equity court does have such power in a proper case. That being so, and since, at the very least, the Commission was entitled to a declaration of its statutory right to discontinue water service, we think Verona’s demurrer was properly overruled.

As for Verona’s assertion that mandatory injunctive relief should have been denied in any event because the Commission’s legal remedies were adequate, we shall simply note that we think Verona seriously misapprehends the nature of an adequate remedy at law. In State v. Ficker, 266 Md. 500 (1972), the Court of Appeals wrote, at 509:

"In C. & P.R.R. Co. v. Penna. R.R. Co., 57 Md. 267, 271, we quoted, with approval, Story’s definition of an adequate remedy at law:
'" * * * It must be adequate; for if at law it falls short of what the party is entitled to, that founds a jurisdiction in equity. And it must be complete; that is, must obtain the full end and justice of the case. It must reach the whole mischief, and secure the whole right of the party in a perfect manner, at the present time and in the future; otherwise, equity will interfere and give such relief and aid as the exigency of the particular case may require. The jurisdiction of a court of equity is, therefore, sometimes concurrent with the jurisdiction of a court of law, it is sometimes exclusive of it; and it is sometimes auxiliary to it.” ’
We applied the principle in Baker v. Howard County Hunt, 171 Md. 159, 174-75, stating:
'To justify refusal of equitable relief on the ground that the appellant therefor has a remedy at law, the legal remedy must be fully adequate and complete * * *, for, as stated in Fletcher, Equity Pleadings & Practice, p. 246, "The remedy at law which precludes relief in equity must be as practical and efficient to the ends of justice and its prompt administration as the remedy in equity.” ’ ”

As earlier noted, for all practical purposes Verona had no attachable property in Maryland; nor were the rents which it collected attachable. And although the Commission could have discontinued water service to the apartment complex, (presumably forcing the tenants to invoke their § 8-211 rent escrow remedy) the Commission would still have been without an adequate remedy to collect its judgment. Under the circumstances, we think it clear that the only practical, efficient and complete remedy available to the Commission was that which the chancellor dispensed.

Lastly, Verona alleges error to the chancellor’s grant of the Commission’s motion for summary judgment. The record before us discloses that Verona did not contest liability for the water service charges, merely the amount. In its answer to the Commission’s motion, Verona averred that "[t]here [was] a genuine dispute as to the amount owed for current service charges .. .”; and, in an accompanying affidavit, Verona’s assistant secretary stated no more than that he had reviewed the records of the Commission and the corporation and that, as of the date of the affidavit, the balances owed by the corporation were "different” than those alleged by the Commission. Verona would have us believe that these averments were sufficient to raise the "genuine issue as to a material fact” necessary to defeat the Commission’s motion. We think not.

In Brown v. Suburban Cadillac, Inc., 260 Md. 251 (1971), the Court of Appeals stated, at 255:

"... when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact. Foreman v. Melrod, 257 Md. 435 441, 263 A.2d 559 (1970); Fishman Const. Co. v. Hansen, 238 Md. 418, 422-423, 209 A.2d 605 (1965), and cases cited therein. And, the opposing party must make such a showing by facts which would be admissible in evidence. Maryland Rule 610 b; Foreman v. Melrod, supra; Fishman Construction Co. v. Hansen, supra; Strickler Engineering Corp. v. Seminar, Inc., 210 Md. 93, 100, 122 A.2d 563 (1956).” (Footnote omitted, emphasis added.)

And, in Lynx, Inc. v. Ordnance Products, 273 Md. 1 (1974), the Court wrote, at 7-8:

"A bare allegation in a general way that there is a dispute as to material facts is never sufficient to defeat a motion for summary judgment. James v. Tyler, 269 Md. 48, 304 A.2d 256 (1973); Shaffer v. Lohr, 264 Md. 397, 287 A.2d 42 (1972); Melbourne v. Griffith, 263 Md. 486, 283 A.2d 363 (1971). General Allegations which do not show facts in detail and with precision are insufficient to prevent the entry of summary judgment. Davis v. Montgomery County, 267 Md. 456, 298 A.2d 178 (1972).”

And see Hurt v. Stillman & Dolan, Inc., 35 Md. App. 644, 647 (1977). We think Verona’s bald assertions of the existence of a dispute were hardly sufficient to warrant denial of the Commission’s motion for summary judgment. Under all the circumstances, we believe the motion for summary judgment was properly granted.

Judgment affirmed. Appellant to pay the costs.

      . 1957 Md. Laws, ch. 8 L6, as amended.

      . Patuxent Section I Corporation, et al. v. St. Mary’s County Metropolitan Commission, Civil Action No. 71-637 T.

      . Law Docket, No. 5916.

      . $67,242.45 in current charges and debt service charges on the Federal judgment, plus $13,643.46 interest on the unpaid balance, computed since July 1, 1975.

      . St. Mary’s County Metropolitan Commission v. Verona Housing, Inc. and St. Mary’s Garden Apartments and Abner S. Richmond and Everett G. Gibson and Robert Furlong, Equity No. A6917. The last three codefendants, tenants, were named to represent a class of all the tenants, who were joined in this suit for reasons which will be made clear later in this opinion.

      . Verona Housing, Inc. v. St. Mary’s County Metropolitan Commission, Equity No. A6998, filed March 28, 1978.

      . Affirmed on appeal, Verona Housing, Inc. v. St. Mary’s County Metropolitan Commission, No. 158, September Term, 1979 (Court of Special Appeals, November 23, 1979 (unreported).)

      . Representing $67,242.45 plus interest, or $80,088.43 (the balance due on its Federal Court judgment) plus $23,669.61 in current charges.

      . Md. Code (1974) § 8-211 of the Real Property Article (Repair of dangerous defects; rent escrow.)

      . Code of Local Public Laws of St. Mary’s County (1978), § 113-13 (formerly § 168):
      "In addition to any other powers and penalties contained in this chapter, the commission may discontinue water and sewer services for nonpayment of any service, connection, inspection, benefit, or any other charge if not paid within 30 days of the due date. A penalty of $10 in addition to payment of the bill shall be paid before service is restored.”

      . Md. Code (1974, 1980 Repl. Vol.) Cts. & Jud. Proc. Art., § 3-401, et seq.

      . Md. Cts. & Jud. Proc. Art., § 3-406 (Power to Construe) provides, in part:
      "Any person ... whose rights, status, or other legal relations are affected by a statute, municipal ordinance, administrative rule or regulation ... may have determined any question of construction or validity arising under the instrument, statute, ordinance, administrative rule or regulation ... and obtain a declaration of rights, status, or other legal relations under it.”
      And § 3-403 (Jurisdiction) provides:
      "(a) In general. — Except for the District Court, a court of record within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed. An action or proceeding is not open to objection on the ground that a declaratory judgment or decree is prayed for.
      (b) Enumeration not exclusive. — The enumeration in § 3-406 ... does not limit or restrict the exercise of the general powers conferred in subsection (a) in any proceeding where declaratory relief is sought and in which a judgment or decree will terminate the controversy or remove an uncertainty.”


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    ANNE ARUNDEL COUNTY, MARYLAND v. GOVERNOR, STATE OF MARYLAND et al.
    [No. 1592,
    September Term, 1979.]

      Per Curiam Order February 15, 1980.

      Opinion Filed April 16, 1980.

    PER CURIAM ORDER
    This cause having come on for argument before this Court, it is this 15th day of February, 1980, by the Court of Special Appeals of Maryland,

      ORDERED, that the order of the Circuit Court for Anne Arundel County of January 29, 1980, as supplemented and clarified by the order of February 14, 1980, which in turn clarified the order of February 8, 1980, be and the same is hereby affirmed. The opinion in this cause shall be filed at a later date. Costs to be paid by the appellant. Mandate to issue forthwith.
    The cause was argued before Gilbert, C. J., and Morton and Melvin, JJ.

      Thomas G. Redman, Assistant County Solicitor for Anne Arundel County, for appellant.

      Thomas A. Deming, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Richard W. Emory, Jr., Assistant Attorney General, on the brief, for appellees Governor, State of Maryland et al. Thomas M. Downs, with whom were Blumenthal, May, Downs & Merrill, P.A. on the brief, for appellee Browning-Ferris, Inc.
   Gilbert, C. J.,

delivered the opinion of the Court.

The distance from Sharptown in Wicomico County, to Curtis Bay, Anne Arundel County, is approximately 80 miles. Nevertheless, the State of Maryland needed almost three months to complete the journey. The reason for the delay enroute was the paper barricade hastily pieced together by Anne Arundel County. As it turned out, the roadblock was easily pierced, yet it caused the State to make a detour through the courts. At first, the Circuit Court for Anne Arundel County enjoined temporarily the County from interfering with the State’s transporting of polychlorinated biphenyl (PCB) and storing it at the United States General Services Administration (GSA) facility at Curtis Bay. Dissatisfied at its lack of success in the circuit court, the County appealed to this Court. Once here they requested that we "stay” the temporary injunction issued by Judge Morris Turk of the circuit court and "advance” the matter for hearing in March 1980. The State opposed both of the County’s requests, noting that to grant what the County asked would for all practical purposes defeat the State in its efforts to move the PCB from Sharptown to Curtis Bay. We found it unnecessary to "stay” Judge Turk’s order, but we did advance the case for argument to Friday, February 15,1980.

After oral argument, we issued a per curiam order in which we affirmed the temporary injunction. In our order we said that we would subsequently explain the reasons for our action.

The County, refusing to concede defeat, sought certiorari to the Court of Appeals. That Court, in an unprecedented night session, February 19,1980, denied a "stay” and denied certiorari.

Although the transportation and storage of PCB has been accomplished, so that the issue in this particular case has been mooted, we deem it advisable to discuss the point of law involved.

The County, learning that "large amounts of PCB ... stored... at Sharptown” might be moved to "a site owned by the ... [GSA] known as the Ordnance Depot located adjacent to Curtis Creek in Anne Arundel County” filed a "Bill of Complaint for an Ex Parte, Interlocutory and Permanent Injunction” against the State. The action, brought in the Circuit Court for Anne Arundel County, alleged, inter alia:

"11. That the Ordnance Depot may be the depository of many other [Designated Hazardous Substances] DHS.
12. That one integral element which ... [the State] should have considered in reaching a decision as to the storage of PCB at the Ordnance Depot was what other DHS is already at the site, in what amounts, the proximity to the proposed storage area, and the effect of an involvement of PCB with other DHS in the event of a national [sic] or man made disaster.
13. That, in fact .. . [the State has] not entered into such consideration ... [and does] not have an inventory of what is stored at the site, nor has same been requested.
14. That the Ordnance Depot is situated in a metropolitan community and is surrounded by the dwellings and places of employment of thousands of individuals whose health and safety could be affected by mishandling of or catastrophe associated with the PCB.
15. That the Ordnance Depot is located adjacent to major water and road networks which could be adversely affected by the mishandling of or catastrophe associated with the PCB.
16. That . .. [the County’s] Fire Department, through arrangement with the GSA has the primary responsibility for fire suppression on the site and must have specific information regarding the precise location, type, amount, toxicity and other technical details of all DHS at the site in order to responsibly and effectively suppress any conflagration.
17. That... [County agencies] would be involved on an initial response basis were there to be a natural or man made disaster at the site, these being the Health Department, Police Department, Office of Emergency Preparedness, and various divisions of the Public Works Department.
18. That the transportation of large amounts of PCB over long distances through populated areas from one area of storage to another site for storage purposes creates an unnecessary risk to the health and safety of the general public and a threat to the environment.
19. That ... [the State] should not grant any transportation or storage approvals for a new site until complete compliance has been demonstrated with CFR Part 761.42, to wit:
a. The proposed site does not have adequate roof and walls to prevent the seepage of rain water;
b. The proposed site does not have an adequate floor surrounded by continuous curbing;
c. The proposed site, particularly the doors and other access portals thereto are not constructed so as to prevent liquids from seeping out;
d. The proposed site does not have an impervious floor;
e. The proposed site is not significantly distant from a 100 year flood plain in its relationship to Curtis Creek.
f. The proposed site does not have facilities for safe decontamination of the equipment used to handle PCB.
g. No arrangements have been made to provide inspection of the site at least every 30 days; and
h. Other summary irregularities.
20. That no immediate health or safety reason compels the movement of the PCB before a careful study is completed and all safety regulations duly complied with.
21. That a precipitous decision to move the PCB does present a clear present and immediate threat to the health, safety and welfare of many citizens of the State of Maryland in general, and Anne Arundel County in particular, and to the environment.
22. That... [the County] has received no formal request to participate in a decision making process which is so vital to the citizens of Anne Arundel County and the consequence of which would be ...
[the County’s] to bear.
23. That ... [the County] has requested data from the GSA regarding the Ordnance Depot and is employing a responsible consultant to study every aspect of the impact of the storage of PCB at this site.
24. That no harm or prejudice will be sustained if ... [the State delays its] approval of the transportation and storage of the PCB until such time as the study is completed.
25. That... [the State] should require the GSA to compile and publish an environmental impact statement dealing with the effect of the present storage of DHS at the said Ordnance Depot and as to any proposed future storage there.
26. That immediate, substantial and irreparable injury will result if approval to transport and store PCB at the said site is given before adequate study is conducted as set forth above.” (Emphasis in original.)

Judge Williams, on November 13, 1979, granted the sought ex parte injunction and required the State to respond within ten days. The parties entered into a stipulation "whereby it was agreed that the ... [County] need not continue to seek ex parte relief pending the hearing on the interlocutory injunction and that... [the State] would notify ... [the County] when .. . applications were submitted ... to ... transfer ... the PCB.” The State demurred to the County’s suit, but because of subsequent events, the demurrer was withdrawn in open court.

In this Court the facts were conceded to be those found by Judge Morris Turk in the Circuit Court for Anne Arundel County. We now quote extensively, with minor editing, from the Memorandum Opinion of Judge Turk:

"In the interim, the Anne Arundel County Council passed two ordinances relating to the storage and transfer of hazardous substances within the County. Bill Number 158-79 amends Anne Arundel County Code § 11-401, 11-409 (i) and to add § 11-408 (g). Its stated purpose is:
'. . . to further define the terms hazardous, TOXIC and special wastes; to establish certain license and permit fees and bond requirements; to provide that the application for the approval of the depositing of hazardous, TOXIC and special wastes shall be on a prescribed form; to require a manifest to accompany certain shipments; to prohibit the landfilling in Anne Arundel County of certain wastes not generated in the County; TO PERMIT REQUESTS FOR INJUNCTIVE RELIEF OR OTHER APPROPRIATE REMEDIES FOR SUBTITLE VIOLATION; to prohibit the transportation on the roads of Anne Arundel County, OR IN THE COASTAL ZONES AS DEFINED IN THE COASTAL ZONE COMMISSION OF ANNE ARUNDEL COUNTY REPORT, of such wastes not generated in the County, and generally relating to the regulation of transporting and disposal of dangerous substances in Anne Arundel County.’ [(Emphasis in original.)]
Bill Number 159-79 amended the County Code to add § 11-408 (h) and (i). The Council’s express intent was:
'... to add certain definitions relating to hazardous, TOXIC and special wastes; to permit the movement in Anne Arundel County of certain hazardous, TOXIC and special wastes under certain conditions; to establish certain licenses for the transporting of certain substances; providing that the subtitle does not apply to certain substances; establishing certain license and permit fees; providing that the ordinance is contingent on the passage of another; and generally relating to the regulation of certain dangerous substances in Anne Arundel County.’ [(Emphasis in original.)]

As a result of the passage of these local ordinances by Anne Arundel County, the ... [State] filed a counter-claim for Declaratory Injunction and Interlocutory and Permanent Relief alleging that State and Federal regulation[s] of hazardous substances have preempted the field of hazardous waste control from local regulation; that the area is beyond the County’s legislative authority; and that the ordinances violate the commerce clause of the Federal Constitution....

A hearing on both interlocutory injunctions was held ... on January 11, 1980. On that date, after consultation with all parties ..., Browning-Ferris, Inc., a certified hauler of hazardous substances, was granted leave to intervene as a party-Defendant. . . .

The ... [State’s] case was supported by the testimony of several individuals who represented various Federal and State agencies in developing the plan for the movement of the PCB’s from Sharptown and their storage at Curtis Bay.

Mr. Philip Retallick, an environmental scientist with the United States Environmental Protection Agency (EPA) testified concerning the chemical characteristics and hazards of PCB’s....

Mr. Retallick described the workings of the Federal Water Pollution Control Act § 311, which provides for expenditure of federal funds whenever one of the 'Regional Response Teams’ authorized by that Act determines that a navigable waterway is being threatened by the discharge or potential discharge of hazardous substances. The EPA became involved following notification by the Coast Guard that a Sharptown facility operated by the GRICO Company for the purpose of recovering and reclaiming waste oil was storing hazardous substances in an unsafe fashion.

An on-site investigation revealed that several tanks, some located approximately 25 yards from the Nanticoke River, contained petro-chemicals, waste oil and PCB’s and other hazardous substances. Testing was done at EPA, Coast Guard and DNR Laboratories. The testing report indicated that Tank No. 16, which is located closest to the River, contains PCB’s in the level of 310,000 parts per million (ppm). Tank No. 17 contains traces of xylene, a chemical with a flash point of 80 degrees Fahrenheit. Tank No. 18 contains xylene mixed with PCB in the level of 6,700 ppm. (See Defendants’ Exhibit A).

Mr. Retallick testified that materials containing PCB’s in excess of 50 ppm are considered to be a toxic substance. As to the effect of PCB’s, Mr. Retallick stated that PCB causes liver cancer in test animals, such as mice and rats. When humans come into contact with PCB’s, they are susceptible to a skin reaction much like acne, dizziness, jaundice, loss of appetite, sterility and nausea. Also, PCB’s are not biodegradable and remain in the environment for approximately the same length of time as the insecticide DDT. The soil can absorb PCB’s. In waterways, PCB’s sink to the bottom and rest in the sediment where it can be consumed by fish and other acquatic [sic] species. If these fish are in turn eaten by others along the food chain, the PCB’s are passed along, resting in the fatty tissue of the recipient.

Mr. Retallick further testified that liquids containing PCB’s between 50 and 500 ppm can be boiled in an EPA approved boiler and that such a facility did exist in Maryland. Liquids containing PCB’s in excess of 500 ppm must be burned in EPA approved incinerators. At present, there are incinerators in Arkansas and Texas that have successfully completed the testing stage and are awaiting final approval. Assuming no public opposition to those plants, they will be operational by April 1,1980. In Sharptown tanks, 7960 gallons of PCB materials may be destroyed in boilers and 24,510 gallons must be burned in incinerators.

Testing by the Coast Guard and the National Oceanic Atmospheric Administration (NO A A) revealed no abnormal levels of PCB’s in the Nanticoke River adjacent to the GRICO site, at the time of said test.

Mr. Retallick personally inspected the Sharptown facility in connection with his duties with EPA as a member of the regional response team. As such, he is charged with the enforcement of the Federal Toxic Substances Control Act and 40 CFR § 761.42, which sets forth the Federal requirements for the storage of PCB’s. He found that the present Sharptown facility is deficient in that the tanks lack an impervious base of finished concrete or steel; there are no adequate roof and walls, the tanks are below the 100 year flood plain, there is no proper levee system to protect the River nearby.

The Team felt that leaving the material in the tanks at Sharptown constitutes a serious hazard. The tanks, resting on sandy soil, would have to be raised to construct an impervious base. The danger of rupture in such a procedure was felt to be too great.

The Court attempted to obtain from Mr. Retallick a general statement as to the approximate period of time from the transfer from Sharptown to final disposal in the incinerators. He stated that removal from the tanks to Curtis Bay would take approximately two weeks and that, assuming an April 1, 1980 starting date for the incinerators, all of the material could be out of Curtis Bay by April 14, 1980.

The Mayor of Sharptown, Mr. Ralph Cordrey, testified on behalf of the ... [State]. He described the location of the GRICO facility as surrounded by Sharptown on three sides, the fourth side being the Nanticoke River. Mr. Cordrey stated that because of the seriousness of the situation, an evacuation plan was developed by the local fire department with the help of civil defense officials in Salisbury, in the event of an emergency. The plan includes, among other things, a three block evacuation. Finally, the Mayor testified concerning the importance of the Nanticoke River as a rich source of local food and income and its value as a prime spawning area for Chesapeake Bay rockfish.

Mr. James L. Hearn, Director of the Department of Natural Resources Water Resources Administration, a named Defendant, testified concerning the State’s role in the present controversy. Tests of materials taken by DNR during the August visit to Sharptown along with EPA and the Coast Guard resulted in findings identical to those reported by Mr. Retallick.

Based on the preliminary results of these tests, the Response Team, of which Mr. Hearn was a member, surveyed 1,000 potential sites for interim storage, consisting mainly of State and Federal government facilities. Criteria for selection included availability, expense, present use, modification required, access, security, proximity to population centers and number of persons working in the area. Only one potential private site located in Jessup, Georgia, was considered, but that facility did not meet Federal standards and is now under investigation by EPA. Haulers of hazardous substances contacted by the Team were unable to suggest any additional private locations.

... [A] Memorandum to Mr. Hearn from the Maryland Environmental Service, listed the five final candidate sites for interim storage. These included a vacant turkey house at the Maryland Correctional Institute in Washington County, the Dundalk Marine Terminal, the Edgewood Area of the Aberdeen Proving Ground, an abandoned Nike Site in Tolchester and the Curtis Bay Ordnance Depot.

Mr. Hearn stated that the Curtis Bay Depot was given a 'priority one’ rating due to its immediate availability, security, location one-half mile from the nearest population center, the fact that only 30-40 persons are employed there and the minor nature of the modifications required. ... In addition, Mr. Hearn described the Curtis Bay warehouse as 1/4 to 1/2 mile to the nearest water and 19 feet above the 100 year flood plain.

[The witness testified as to why other sites were rejected.] . .. [T]he suggestion of keeping the material in drums on trucks at the GRICO location was rejected because all of Sharptown is below the 100 year flood plain.

Mr. Hearn was cross-examined at length about the events leading up to the selection of Curtis Bay. The DNR issued an administrative order against Mr. Grigsby, the owner of the GRICO facility and the Small Business Administration (SBA) as trustee of the Company, ordering them to remove the PCB’s from Sharptown. . . . Mr. Hearn also described an unsuccessful attempt to have General Electric Inc. accept the PCB’s so the Company can store the chemical along with their own at its Philadelphia location.

. . . Captain John Kime of the Coast Guard, Captain of the Port of Baltimore, Marine Safety Officer, . . . testified concerning his duties under § 311 of the Federal Water Pollution Control Act. By agreement between EPA and the Coast Guard, the latter agency assumes control over water pollution emergencies occurring in the coastal areas of the United States.

In his capacity as the pre-designated on-scene coordinator of the Regional Response Team, Captain Kime received a telephone call this past July, from the SBA. After having assumed control of the GRICO facility as Trustee under a loan agreement, the SBA conducted a sale of the property. After the sale, Mr. Grigsby of GRICO informed the SBA that hazardous materials were stored along with the waste oils at Sharptown. The Buyer refused to complete his purchase.

. . . [T]he Coast Guard declared the situation at Sharptown to be a Federal project under § 311 to secure funding. In July, the Sharptown facility was secured, the fence repaired, valves checked, handles removed and spouts plugged. SBA was ordered to take action but by order of Judge Miller of the United States District Court in Case No. M-78-702, Mr. Grigsby was declared to be the owner of the chemicals at Sharptown. After being ordered to remove the wastes, Mr. Grigsby refused.

Captain Kime confirmed the testimony of Mr. Retallick and Mr. Hearn, stating that samples were taken in July, August and September, 1979. After the Response Team formally invoked § 311, Captain Kime suggested that an interim storage site be selected pending final approval of proper incinerators. He indicated that the Response Team, in considering . . . five candidate sites, voted unanimously in favor of only one, Curtis Bay. However, the Team’s vote was advisory only and the final selection of the GSA Depot was Captain Rime’s. The Captain testified that after the initial selection, he initiated a meeting with Anne Arundel County officials, including members of the County delegation at which a 'second look’ was requested. Captain Kime agreed to reconsider but confirmed the selection of Curtis Bay as the interim storage site.

Factors considered by Captain Kime included ease of modification to EPA standards; security considerations; impact on present use, present storage of other 'national emergency materials’, remoteness from populated areas and unauthorized traffic, and location above the 100 year flood plain.

Next, he described the Curtis Bay facility and its comparison with the EPA criteria for proper storage of PCB’s as outlined above. The floor is made of concrete, over which an additional four inches of concrete was poured. Berms 12 inches high and 20 inches thick have been constructed. In addition, an impervious epoxy coating has been applied to the floor. Access to the warehouse is via four heavy metal doors. Surrounding the warehouse is a concrete apron upon which the transfer of the PCB would occur.

The Coast Guard has made arrangements with the owners of the Texas incinerator, Rollins Environmental Services, to transfer the material from Sharptown to Curtis Bay and from there to any of the three incinerators as soon as any one of them are approved, the same being Rollins incinerator in Texas, the Endsco facility in Arkansas and a Dutch incinerator ship owned by Insco.

Captain Kime’s estimate of the time-table for final disposal differed from Mr. Retallick’s inasmuch as the Coast Guard was more involved with the details of the negotiations with Rollins. As of the hearing, no final contract had been signed, but the Coast Guard was prepared to accept the changes made by Rollins to the initial proposal. These included no more than 30 days worth of PCB’s to be stored in Texas, which is 100,000 gallons and a provision giving Rollins 60 to 90 days from final approval for removal. Therefore, assuming no public opposition to an April 1, 1980 opening date for the Texas facility, July 1,1980, would mark the end of a 90 day term. On cross-examination a 'realistic’ final completion date was calculated to fall between July 1st and Labor Day. Nonetheless, the Curtis Bay agreement with GSA . . . gives December 31, 1980, as the expiration date.

The planned procedure for the transfer of the PCB’s [from Sharptown to Curtis Bay] was outlined by Captain Kime. Within thirty days from final agreement, the Contractor would come on scene at Sharptown accompanied by a Coast Guard mobile command, laboratory facilities and air quality testing equipment. Materials containing PCB’s with less than 50 ppm (non-hazardous) would be transferred to tank trucks and sent to New Jersey and Arkansas. The materials containing hazardous levels of PCB’s would be pumped into 55 gallon drums approved by the DOT according to 49 CFR § 178.82 and filled at 90 per cent capacity. The lids would be screw tops, threaded and countersunk. These drums would be loaded onto closed tractor trailers at 80 drums per truck. The trucks would transfer the materials at the rate of two loads per day totaling an estimated ten to fifteen truck loads. Movement would occur during daylight, non-rush hours, in good weather, with a State Police escort. The trucks would leave Sharptown on Route 313, onto Route 50, then North on Route 2 to Ordnance Road to the Curtis Bay Depot, all State highways.

The trucks would be unloaded on the concrete apron surrounding the warehouse inside a dike system prepared to contain 100 per cent of the material being transferred. Protective clothing and clean-up materials would be available on-site. A forklift truck, meeting Underwriters Laboratory standards for movement of explosives would be used. The drums would be placed on wood or steel pallets, four to a pallet and stacked two pallets high. An emergency generator for lighting would be available during the transfer. At no time would the drums rest on bare soil.

. . . Anne Arundel County officials were not consulted until after the initial selection of Curtis Bay.

It was . . . revealed that there is no electricity in the warehouse and that future on-site inspections would be made using portable and natural lighting. A spill prevention control and counter measures plan under 40 CFR § 112 (b) would be developed and approved by EPA prior to movement.

A dispute between State and Federal officials over the necessity of a State permit for the Curtis Bay facility was revealed. . . . [T]he Coast Guard . . . [provided] all materials required for [such] a permit [from the State] but explicitly . . . [denied] the necessity for one. A State certification for transporting the materials must be obtained by the hauler.

Mr. Hearn of the Water Resources Administration . .. testified that based upon the materials provided by the Coast Guard, the State was prepared to issue an emergency permit for the Curtis Bay facility despite the lack of a formal application. If no removal has occurred at the end of 180 days, a new decision would be made by the State. As far as the transportation certification, Mr. Hearn has had no contact with the proposed hauler, Rollins, other than providing a copy of the applicable regulations. Hauler certification can be provided within two days of application to the Hazardous Waste Permit Division.

.. . [The County offered the testimony of] the County Executive, Mr. Robert A. Pascal. Mr. Pascal described the County’s relationship with the Curtis Bay facility in that the County Office of Emergency Preparedness, Police and Fire officials consider the Depot to be within their jurisdiction and responsibility. . . . [He] expressed his concern over the lack of any County input into the selection of Anne Arundel County as the storage site for hazardous materials, the potential impact of any spills on the County population, vandalism and the proximity of the Baltimore-Washington International Airport glide path and other oil storage tanks in Curtis Bay.

Mr. Donald T. Perry, Chief of the County Water Division, testified concerning the location of the Anne Arundel County water supply.. . . Mr. Perry .. . [said] that the distance from the GSA warehouse to the County wells was two and a half miles.

Mr. Perry’s expert qualifications did not extend to the chemical properties of PCB’s and organic chemicals in general and their movement through soils in contaminating water supplies. On cross-examination, Mr. Perry testified . . . that based on Captain Kime’s testimony, he had no reason to believe that the PCB’s would come into contact with the ground below the warehouse.

Mr. Singh Dillon, Director of Environmental Health in the County, testified concerning his duties in enforcing State and County Health ordinances.... He ... [explained] his . .. understanding of his duties under the new County Ordinances, 158-79 and 159-79. Mr. Dillon stated that they applied to storage and transportation of hazardous wastes such as PCB’s, applied substantially the same criteria for approval as used by DNR and EPA and were designed to force involvement of County officials in the area of local hazardous waste disposal.

The final witness was a research and development chemist with the Minaret Corporation, Mr. Fred Cashen. His area of expertise concerns the effect of hazardous chemicals such as PCB on life forms.

Mr. Cashen’s testimony was intended to raise concerns regarding the storage of materials containing PCB’s and xylene in the manner outlined by the. . . [State]. Xylene’s low flash point was cause for concern on his part. This was exacerbated by the fact that xylene vapors collect near the floor while the GSA ventilators are near the ceiling. These chemical properties, plus the planned storage on wooden pallets gave rise to his conclusion that the storage plan presented an extreme fire hazard. Mr. Cashen’s conclusions concerning proper storage of xylene was based on the recommendations of the National Fire Prevention Association Manual. He has never inspected the Curtis Bay warehouse.”

The County sought a dichotomous injunction: 1) to enjoin the State from invoking its statutory and regulatory powers as a means of issuing a permit to the Coast Guard to operate a hazardous waste (PCB) facility at the GSA site in Curtis Bay; 2) to enjoin the State from issuing a permit to a hauler authorizing transportation of the PCB.

The State, by way of counterclaim, requested that the court 1) "issue an interlocutory injunction enjoining ... [the County] from enforcing the provisions of Bill Nos. 158-79 and 159-79” and 2) after hearing the counterclaim on its merits, issue a declaratory judgment that the same provisions "are unauthorized and invalid under the Federal Constitution, the State Constitution and the laws of the State of Maryland....”

1.

Based on the evidence presented, Judge Turk ruled that the County had not met its "burden of showing clear and definite facts demonstrating a danger of irreparable injury or that the public interest... [would be] best served by the storage of the PCB materials at Sharptown, even for a short term.” The judge found that the County simply was unable to show that the storage of the PCB at Curtis Bay posed an imminent threat to the populace.

The State was more successful than its political subdivision. The evidence produced by the State satisfied the trial judge as to the safety of the Curtis Bay facility. At the same time the State demonstrated that to allow the PCB to remain in Sharptown posed an imminent threat to that area.

Judge Turk then made four specific findings of fact:

1. An emergency existed at Sharptown with respect to the PCB storage.
2. The tank in which the PCB was stored did not meet the required standards.
3. Both the Federal and State Governments made a systematic selection of the Curtis Bay facility as the proper place to store PCB pending removal to incinerators.
4. That there is far less danger to the public if the storage of the PCB occurs at Curtis Bay than there is by continuing storage at Sharptown.

The court held that the State established a likelihood of success when the case was tried on its merits, and that, were he to grant the County’s request, it would be the equivalent of standing idly by "in the face of a precipitously dangerous situation” that could result in permanent, serious, and irreparable damage to the people of the State. Judge Turk, as we noted earlier, granted the State’s request and enjoined the County from enforcing its newly enacted ordinances.

2.

The matter of the transportation permit was disposed of summarily because the County was unable to show "any facts which would support... [that] extreme action.” Hence, the requested relief was denied.

The County noted its appeal to this Court.

The County and the State conceded at oral argument that the sole issue before this Court is whether Judge Turk abused his discretion in rejecting the issuance of the temporary injunction sought by the County, and in granting the State’s requested interlocutory injunction against the enforcement of the County’s ordinances 158-79 and 159-79.

All that Judge Turk was called upon to decide, and all that he did decide, was that the State, at the hearing before him, "demonstrated a likelihood of success [when the case is heard] on the merits [and that there existed] an immediate danger of irreparable harm and a threat to the public interest” if the temporary injunction against the County’s enforcement of the ordinance was not issued.

We, therefore, confine our discussion to the limited issue before us, leaving to another day the interesting underlying questions of federal and State preemption in the area of environmental control as well as the County’s authority, if any, to regulate State actions.

The Court of Appeals, speaking through Judge Digges in State Department of Health and Mental Hygiene v. Baltimore County, 281 Md. 548, 550, 383 A.2d 51, 53 (1977), noted that "it is a rare instance in which a trial court’s discretionary decision to grant or to deny a preliminary injunction will be disturbed . . . [on appeal].”

Judge Digges went on to explicate that:

"While there is '[n]o principle .. . better established, than that the granting or refusing of a writ of injunction, is a matter resting in the sound discretion of the court,’ Shoemaker v. Mechanics Bank, 31 Md. 396, 398 (1869); see Kahl v. Con. Gas, El. Lt. & Power Co., 189 Md. 655, 658, 57 A.2d 331, 332-33 (1948), it is also true that this discretion must be exercised by the chancellor upon a consideration of all the circumstances of the case. McKeever v. Realty Corp., 183 Md. 216, 225, 37 A.2d 305, 310 (1944); Williams v. M. & C.C. of Balto., 128 Md. 140, 157-58, 97 A. 140, 145 (1916); E. Miller, Equity Procedure § 574, at 682 (1897). It is frequently said that a proper exercise of discretion requires the court to consider four factors: likelihood of success on the merits; the 'balance of convenience’; irreparable injury, which can include the necessity to maintain the status quo; and, where appropriate, the public interest. See, e.g., Wieck v. Sterenbuch, 350 A.2d 384, 387 & n. 3 (D.C. 1976) (citation of authorities). And it is the complainant who has the burden of presenting a case justifying the granting of a preliminary injunction, Baltimore v. Warren Manuf. Co., 59 Md. 96, 105 (1882), so that if the facts as stated in the bill of complaint or, when appropriate, as shown by the evidence, are not 'full and sufficiently definite and clear, in support of the right asserted, and that such right has been violated,’ the court will not order preliminary relief.” (Emphasis supplied.) 281 Md. at 554, 383 A.2d at 55.

Where, as here, two levels of government, i.e., State and County, are acting in what they believe to be the public interest, and those beliefs result in an irreconcilable conflict in the carrying out of their respective governmental duties,

"a court of equity can best resolve the impasse by issuing a temporary injunction ... to preserve the status quo until a decision on the merits is rendered, so long as that course does not result in greater harm to the public interest than would a refusal to interfere. Thus in Pr. George’s Co. v. Md-Nat’l Cap., 269 Md. 202, 306 A.2d 223, cert. denied, 414 U.S. 1068 (1973), we indicated that declaratory relief was appropriate where public agencies are at loggerheads, id. at 209-10 [228], and further concluded that '[t]he controversy was so "ripe” for declaratory relief that the chancellor ... properly issued the temporary injunction to prevent, pendente lite, grave injury to the Commission’s park and planning functions and recreational activities ... by [proposed actions of| the County Executive’ ” (Footnote omitted.) (Emphasis supplied.) 281 Md. at 556, 383 A.2d at 56.

Applying the four factors of State Department of Health and Mental Hygiene, supra, to the instant case, we conclude, as did Judge Turk, that the State’s likelihood of success upon the trial on the merits is substantial. When we add to that conclusion the possibility of the irremediable damage that could have resulted to the people of Maryland if the PCB had not been removed immediately from the Sharptown storage tanks to a place of relative safety, it becomes crystalline that Judge Turk properly exercised his discretion when he refused to restrain the State from moving the PCB and, instead, enjoined the County from enforcing the ordinances which would have frustrated the State’s action.

      . Sharptown is located at the intersections of Maryland Routes 313 and 348. It is on the south shore of the Nanticoke River.

      . The actual parties defendant, appellees, here were: Harry R. Hughes, Governor of Maryland; James B. Coulter, Secretary, Department of Natural Resources, State of Maryland; Thomas C. Andrews, Director, Water Resources Administration, Department of Natural Resources, State of Maryland; J. L. Hearn, Program Director, Enforcement Program — Water Resources Administration, Department of Natural Resources, State of Maryland; Browning-Ferris, Inc., a contractor hauler of the P.C.B. who was allowed "to intervene as a party defendant.” Governor Hughes and the other State officials were sued in their official capacities. For convenience sake we shall refer to them collectively as "the State.”

      . On December 21, 1979, the Mayor and City Council of Baltimore, on motion, were allowed to intervene as a party plaintiff. For simplicity’s sake we shall refer to both plaintiffs as the "County.”

      . See note 2, supra.

      5. The proper citation is 40 CFR § 761.42.

      6. 40 CFR § 761.42 (b) (5) requires that "[ajll PCB Articles and PCB Containers in storage shall be checked for leaks at least once every 30 days.”

      . Quoted from Memorandum of January 29, 1980.

      . The parties, in this Court, agreed that Judge Turk’s recitation of facts was complete and accurate.

      9. The Memorandum was an exhibit introduced into evidence by the State.

      . Maryland Natural Resources Code Ann. (1974, 1979 Cum. Supp.) § 8-1413.2 (Safe disposal of designated hazardous substances).

      . COMAR 08.05.05.08 (Applications for a Facility Permit) and 08.05.05.09 (Temporary — Emergency Permits).

      . The Coast Guard, while seeking the permit, denied that it actually needed one from the State.

      . Md. Natural Resources Code Ann. (1974, 1979 Cum. Supp.) § 8.1413.2(1) provides: "Except for designated hazardous substances used for residential purposes or those regulated by the [Maryland State] Department of Agriculture, a person may not transport a designated hazardous substance to a facility within the State unless the person first obtains a certificate from the Department [of Natural Resources] and the transporting vehicle is certified by the Department [of Natural Resources].”


author: Morton, J.,

text:
    GEORGE RUNYON et al. v. MARTIN GLACKIN et al.
    [No. 444,
    September Term, 1979.]

      Decided April 17, 1980.

    The cause was argued before Gilbert, C. J., and Morton and MacDaniel, JJ.

      Richard M. Hartman for appellants.

      Cypert O. Whitfill, with whom was Michael E. Leaf on the brief, for appellees Glackin. Gregory A. Rapisarda for other appellee.
   Morton, J.,

delivered the opinion of the Court.

This is an appeal from an order entered in the Circuit Court for Harford County (Cameron, J., presiding) affirming a decision of the Harford County Council to rezone 261.7 acres of land owned by the appellees, Paul and Martin Glackin, from A-l, Agricultural District, to R-l, Suburban Residence District. The appeal was filed by several nearby property owners. The case is presented on an agreed statement of facts.

The appellants pose the following questions:

"I. Did the lower court err in its holding that the decision of Jay v. Smith was limited only to one particular rezoning case?
II. Did the lower court err in its finding that the evidence of change in the neighborhood was sufficient to render the matter 'fairly debatable’?”

The record reveals that in 1957 the Glackin property, a farm of some 261 acres, was classified as A-l, Agricultural District, under the comprehensive zoning ordinance adopted by Harford County in 1957. Under § 7 of the ordinance, no distinction was made between land use as agricultural or residential; if an owner wanted to subdivide his land into residences, he had only to submit an acceptable subdivision plat.

In 1973 the County Council of Harford County enacted Bill 73-42. Under its terms lot sizes upon which a dwelling could be erected were changed from 20,000 square feet to 40,000 square feet and minimum lot widths were increased from 100 feet to 150 feet. It also provided: "If a property owner or developer petitions for rezoning to an 'R’ classification for subdivision purposes, he shall submit a subdivision map for preliminary plan review so that both the subdivision and rezoning applications can proceed simultáneously.”

The appellees, deciding to subdivide their farm into a residential area not permitted by the newly enacted Bill 73-42, filed a petition for rezoning of their land from A-l, Agricultural District, to R-l, Suburban Residence District. The petition and subdivision plans were reviewed by the staff of the Department of Planning and Zoning of Harford County and the staff recommended approval thereof.

After an extended hearing before the zoning hearing officer, the hearing officer rendered a decision on October 4, 1976, finding that appellees had not demonstrated a sufficient change in the character of the neighborhood to justify approval of the requested reclassification.

Approximately a month prior to the hearing officer’s decision, ordinance 73-42 had been declared unconstitutional by the Circuit Court for Harford County in that the ordinance treated the owners of land zoned A-l differently than in other classifications.

Judge Edward D. Higinbothom, who rendered the decision in Fender and Knox v. Harford County, Maryland, agreed not to file a final order until the Harford County Council could enact a new bill to correct the constitutional defects in ordinance 73-42.

In February, 1977, Bill 76-111 was passed by the County Council. It expressly repealed ordinance 73-42 and reenacted a new Article 7 of the Harford County Zoning Ordinance.

Thereafter, arguments were heard on appellees’ petition for rezoning to R-l and on April 20, 1977, the County Council denied appellees’ petition. An appeal was taken by the appellees to the Circuit Court for Harford County and that court remanded the case to the County Council when it was found that the County Council did not have the entire record before it at the time of its decision denying appellees’ petition for rezoning. The County Council then heard additional arguments and on the basis of a review of the entire record granted appellees’ petition for rezoning on December 7, 1977. The appellants then appealed to the Circuit Court for Harford County and that court affirmed the decision of the County Council granting the reclassification. This appeal followed.

With respect to appellants’ first contention, it appears that this Court on February 2,1977, in Jay v. Smith, 34 Md. App. 538 (1977), reversed the decision of the Circuit Court for Harford County which had affirmed the finding of the Harford County Council that there had been sufficient changes in the character of the neighborhood to support the reclassification of the applicants’ property from A-l to R-l.

In addressing the issues presented in Jay v. Smith, this Court said, at 543:

"We conclude that the basic issue for determination in this case is whether the construction of 71 single family dwellings within the defined 'neighborhood’ in the period between 1957 (the date of original zoning) and December 4, 1973 (the date upon which ordinance 73-42 took effect) may be considered as changes justifying rezoning of the subject tract.”

We then said, at 546: "We find in this record no change in the 'neighborhood’ as would justify the proposed reclassification. ”

In reaching this conclusion we pointed to the language of the circuit court, at 544:

" 'The Court [Circuit Court for Harford County] is of the opinion that the evidence presented to the hearing examiner on the issue of "change”, in the form of evidence of the number of houses built on lots of three (3) acres or less since 1957 in an area encompassed by the map which applicant said is her neighborhood, certainly meets the "fairly debatable” standard.’ ”

This Court then went on to say, at 544:

"We do not find such a position to be sound under the circumstances of this case. [Emphasis added.] It is true that there are cases in which it has been said that 'changes’ antecedent to the last comprehensive rezoning may be taken into consideration, along with other changes, in the determination whether later piece-meal rezoning lawfully is permissible.”

In the course of its opinion in Jay v. Smith, the Court quoted extensively from the opinion of the Court of Appeals in Town of Somerset v. County, 229 Md. 42 (1962), to the effect that:

"'Changes which may have occurred prior to the last comprehensive rezoning need not be wholly disregarded when a change from that zoning is under consideration. It may be — as was the case here — that it was a rather close question in the minds of the officials concerned whether a change in the zoning of the land involved should not have been made at the time of the last comprehensive zoning, and additional changes thereafter may bring the zoning status of the land as to which action is sought over the line dividing different zones.’ ” 34 Md. App. 545.

In reaching this conclusion the Court of Appeals relied on their holding in Muhly v. County Council, 218 Md. 543 (1959), and Nelson v. Montgomery County, 214 Md. 587 (1957).

In Jay v. Smith, referring to those Court i c Appeals cases, it was said, at 546:

"We are persuaded that the rationale of those cases has no applicability to the subject case.
Here, the preamble to ordinance 73-42 makes crystal clear that the haphazard 'changes’ — now urged in sole support of the subject reclassification — were the very events that were declared to be in 'circumvention of the proposed county comprehensive plan’ and had put 'undue pressure on existing public facilities and create problems of an urban nature that may be in conflict with agricultural conservation.’ To permit those antecedent events to serve as a foundation for this reclassification would be to subvert ordinance 73-42 and render its passage a mockery.”

It becomes at once apparent that the Court in Jay v. Smith rested its decision partially, if not entirely, upon the wording of the preamble to ordinance 73-42. In the case at bar, we are confronted with a different ordinance, 76-111, which expressly repealed ordinance 73-42. Significantly, 76-111 does not contain the preamble which accompanied 73-42.

The appellants would have us believe that somehow the failure to include in 76-111 the preamble to 73-42 was through inadvertence or oversight and that "it is not unreasonable to believe that the same conditions existed in Harford County in February, 1977 as prompted the passage of Bill 73-42 in December, 1973 . . . .”

The County Council of Harford County is a legislative body charged with the responsibility of passing laws in the interest of the general welfare of the citizens of that county. We cannot subscribe to the suggestion that in the course of its labors and deliberations leading to the passage of ordinance 76-111, the Council simply overlooked or inadvertently failed to include in ordinance 76-111 the lengthy preamble contained in 73-42, which preamble was crucial to our discussion in Jay v. Smith. By the same token the omission of the 73-42 preamble compels us to conclude that ordinance 76-111 must be viewed in a different perspective than our view of 73-42 in Jay v. Smith.

Thus, we revert to a focus upon the Court of Appeals decisions in Town of Somerset v. County, supra, Muhly v. County Council, supra, and Nelson v. Montgomery County, supra, the rationale of which cases we felt compelled to reject in Jay v. Smith because of the preamble. The Court of Appeals cases make it clear, whether we treat ordinance 76-111 as comprehensive zoning, that changes made prior to its passage need not be disregarded when considering an application for rezoning.

From our review of the record it becomes clear that we cannot find error in the conclusion reached by the County Council of Harford County that "sufficient change from solely agricultural use to residential use, the category requested, had occurred since 1957, the date of the Zoning Ordinance. These changes were sufficient to demonstrate a necessity for reclassification of the property to the category requested.”

And we find no error in the trial judge’s holding that "the Council decision was at the very least fairly debatable----”

Judgment affirmed; costs to be paid by appellants.

      . The constitutionality of Bill 73-42 was never raised or considered by the Court in Jay v. Smith.


text:
    CARL SNOWDEN v. HANDGUN PERMIT REVIEW BOARD OF THE MARYLAND DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES
    [No. 978,
    September Term, 1979.]

      Decided April 17, 1980.

    The cause was argued before Gilbert, C. J., and Moylan and Mason, JJ.

      Keith Krissoff, with whom were Alan Hilliard Legum and Legum, Cochran, Chartrand & Wyatt, P.A. on the brief, for appellant.

      James J. Doyle, III, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and H. Edgar Lentz, Assistant Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Carl Snowden seeks to obtain a permit to carry a gun. The Superintendent of State Police, the Hand Gun Permit Review Board and the Circuit Court for Anne Arundel County (Thieme, J.), all agree that there is "no substantial reason” for him to do so.

The record discloses that on October 10, 1978, Mr. Snowden, who is employed as a social worker by Anne Arundel County, submitted an application for a handgun permit to the Superintendent of the Maryland State Police (State Police.) His stated reason for needing a permit was self-protection.

Pursuant to the Code provisions, the State Police conducted an investigation into Mr. Snowden’s request. An investigator contacted Snowden’s place of employment and learned from his supervisor that there was no reason for Snowden to be armed in his job, and further that the supervisor knew of no threats or assaults committed against Mr. Snowden. When Snowden himself was contacted by a State Police investigator, he told the investigator that he was a community activist, working in anti-drug and anti-crime programs. He reported that he had heard from various people of threats to do him bodily harm. He was not, however, able to provide the names of any persons who had threatened him, nor did he report any assaults. Apparently, the information Snowden possessed as to the threats was passed to him by others who said they had heard the threats or heard of them.

Snowden’s application was rejected by the Superintendent of the State Police on November 8, 1978, because Mr. Snowden did not have "a good and substantial reason to wear, carry or transport a handgun.” Snowden, as he is permitted to do by Md. Ann. Code art. 27, § 36E (g) (ii) (1979 Cum. Supp.), appealed to the Handgun Permit Review Board (Board), a separate agency of the Department of Public Safety & Correctional Services. Md. Ann. Code art. 27, § 36E (g) (1979 Cum. Supp.).

The Board reviewed the findings of the Superintendent and considered the additional evidence presented to the Board by Snowden. That evidence included two newspaper articles from the Evening Capital which referred to his drug combating activities in Anne Arundel County. He also offered a memorandum prepared by him for his attorney which included statements that:

1. He received threats after newspaper articles indicated that he was calling on public officials to crack down on drug pushers in Meade Village (an Odenton public housing project).

2. A named resident, Ms. Jeannie Herold, overheard a group of men (otherwise unidentified) threatening harm to Mr. Snowden if he went to Meade Village.

3. "That the potential for violence exist [sic] in the Meade Village community, as demonstrated by the reported attacks on residents in Meade Village as reported to the police.”

4. Mr. Snowden reported the threats to Lt. Lee Apperson of the narcotics division of the Anne Arundel County Police Department and to State’s Attorney, Warren B. Duckett.

5. Mr. Snowden planned to continue his community work which would involve him in anti-drug and anti-crime activities.

The Board issued its Decision and Order on January 10, 1979. The Board found, inter alia, that Mr. Snowden had been involved in community work dealing with drug control and prevention, had received threats, but had never been assaulted in connection with these activities. The Board further found that the degree of apprehended danger to which appellant felt he was subjected was not sufficient to warrant the issuance of a permit, and Mr. Snowden had not demonstrated a "good and substantial reason” to carry a handgun.

In its conclusions of law, the Board found that the applicant had not met the statutory requirements for issuance of a handgun permit.

Snowden appealed the Board’s decision to the Circuit Court for Anne Arundel County. Following a hearing, Judge Thieme issued a "Memorandum and Order” in which he dismissed the appeal and affirmed the Board.

Snowden appealed to this Court where he raised two issues:

"I. The Decision of the Handgun Permit Review Board that Appellant lacks 'Good and Substantial Reason’ to wear, carry, or transport a handgun is unsupported by competent, material and substantial evidence in view of the entire record as submitted.
II. The Decision of the Handgun Permit Review Board that Appellant lacks 'Good and Substantial Reason’ to wear, carry, or transport a handgun is arbitrary and capricious.”

The only issue actually before this Court is whether the circuit court erred in upholding the Board’s decision. The applicant for a handgun permit has the burden of establishing a "good and substantial reason” to wear, carry, or transport a handgun. Md. Ann. Code art. 27, § 36E (a) (6). If the evidence presented is not sufficient to meet this burden, the Board must sustain the decision of the State Police. Md. Ann. Code art. 27, § 36E (g) (1979 Cum. Supp.).

By Laws 1972, ch. 13, § 3, the Maryland General Assembly enacted comprehensive handgun legislation. The Act is now codified as Md. Ann. Code art. 27, § 36B et seq. As part of its Declaration of Policy, Md. Ann. Code art. 27, § 36B (a), the Legislature said, "Further regulations on the wearing, carrying, and transporting of handguns are necessary to preserve the peace and tranquility of the State and to protect the rights and liberties of its citizens.” Md. Ann. Code art. 27, § 36B (a) (iv). The Handgun Permit Review Board is empowered to sustain, reverse, or modify any rejection or revocation of a handgun permit by the State Police. Md. Ann. Code art. 27, § 36E (g) (ii) (1979 Cum. Supp.).

"The primary function of administrative agencies is to advance the will and weal of the people as ordained by their representatives — the Legislature. These agencies are created in order to perform activities which the Legislature deems desirable and necessary to forward the health, safety, welfare and morals of the citizens of this State.” Department of Natural Resources v. Linchester, 274 Md. 211, 222 (1975).

The role of the judiciary in reviewing the decisions of an administrative agency is extremely narrow because of the recognized expertise of the agency in a particular field. Secretary v. Crowder, 43 Md. App. 276, 280 (1979). We noted in Crowder the court’s 1) deference to agency expertise; 2) the presumption of validity of agency actions; 3) the inappropriateness of a court’s substituting its fact finding for that of the agency; and 4) the correction of agency decisions only when they are illegal, arbitrary, and unreasonable acts. Secretary v. Crowder, supra at 280-81.

Viewing Mr. Snowden’s contentions in light of the guidelines set out in Crowder and its ancestors, we look at the entire record to determine whether the circuit court correctly decided that the Board could have reasonably drawn inferences from the facts before it to support its decision that the appellant lacked "good and substantial reason” to carry a handgun. "LN]ot only is it the province of the agency to resolve conflicting evidence, but where inconsistent inferences from the same evidence can be drawn, it is for the agency to draw the inferences,” Bulluck v. Pelham Wood Apartments, 283 Md. 505, 513 (1978), not the court. In the instant case there was no conflicting evidence. The Board merely had to decide whether the appellant’s evidence was sufficient for it to reverse or modify the Superintendent’s refusal to issue a handgun permit to Mr. Snowden.

The appellant suggests that the phrase "reasonable precaution against apprehended danger” is the sole criterion for defining "good and substantial reason.” He urges that "apprehended danger” is to be viewed from the subjective standpoint of the applicant. Relying on that premise as true, he then states that since a reasonable mind "could not reasonably conclude that Mr. Snowden is not apprehensive of danger,” the Board lacked substantial evidence to deny a permit. If we accept Snowden’s reasoning there would never be a time when a lawful person, fearful of his safety, would be denied a permit to carry a gun. Any vague threat would be sufficient to cause apprehension and, thus, the right to have a permit to carry a handgun. We think the phrase "good and substantial reason,” as used in Md. Ann. Code art. 27, § 36E (a) (6), means something more than personal anxiety over having one’s name connected publicly with anti-drug and anti-crime activities. It means, we believe, something more than the concern the individual may have because he has been told by another, that she heard some unidentified men threatening to harm the applicant if he journeys to Meade Village. The statute makes clear that it is the Board not the applicant, that decides whether there is "apprehended danger” to the applicant. If the Act were read as Mr. Snowden would have the court read it, there would be no necessity for a review by the Board. Each person could decide for himself or herself that he or she was in danger. The State Police would become a "rubber stamp” agency for the purpose of handing out handgun permits. The carefully considered legislation would be rendered absolutely meaningless insofar as the control of handguns is concerned.

It was reasonable for the Board to consider and give weight to the fact that Snowden did not need a handgun for employment purposes, that he did not know the names of any persons threatening him, that at least one of the threats was relayed to him by a third party, and that the inferences drawn from the facts did not substantiate a valid reason for a permit to be granted.

Snowden argues that since his evidence was "uncontradicted, undisputed, and unimpeached” he has made out "a case in compliance with every prerequisite of the ... [statute], thus leaving no foundation of fact for the denial of ... [his application] and placing upon ... [the Board] the mandatory duty of approving it.” Heaps v. Cobb, 185 Md. 372, 385 (1945).

Appellant misreads the Heaps opinion as precedent for the instant case. In Heaps the widow of a deceased Baltimore City employee sought death benefits from the Employees’ Retirement System. The Board of Trustees of the system, under the ordinance in question, had a "duty” to pay the widow of a deceased member the prescribed pension if it received evidence or proof that the death "was the natural and proximate result of an accident ... in the actual performance of duty,. . . and not caused by wilful negligence on the part of the member.” Heaps v. Cobb, supra at 382.

The Court of Appeals in that case held that under the plain words of the ordinance there was no latitude for the exercise of judgment and discretion when there were indisputable and uncontradicted facts supporting the claim for pension.

The statute, in the case now before us, leaves to the Board the question of what is "good and substantial reason.”

The circuit court’s scope of review "is limited 'to whether a reasoning mind reasonably could have reached the factual conclusion the agency reached.’ ” Bulluck v. Pelham Wood Apartments, supra at 512, citing Dickinson-Tidewater v. Supervisor, 273 Md. 245 (1974). A court cannot substitute its fact finding process for that of an agency. Judge Thieme, based on the record before him, could not say that the Board’s decision was "unsupported by competent, material, and substantial evidence in view of the entire record as submitted.”

There is nothing in the record to indicate that the Board’s decision was either arbitrary or capricious, and Judge Thieme correctly affirmed the Board. We perceive no error.

Judgment affirmed.

Costs to be paid by appellant.

      . Md. Ann. Code art. 27, § 36 (E) (a) provides for the issuance of a handgun permit by the State Police to any person who is found to meet the six criteria of the section. Appellant was denied a permit on the sixth item of the criteria, namely: "(6) Has, based on the results of investigation, good and substantial reason to wear, carry, or transport a handgun, provided however, that the phrase 'good and substantial reason’ as used herein shall be deemed to include a finding that such permit is necessary as a reasonable precaution against apprehended danger.”

      . Md. Ann. Code art. 27, § 36E (1979 Cum. Supp.) provides that judicial review of Board decisions is governed by the Administrative Procedure Act. That Act, codified in Md. Ann. Code art. 41, § 255(F) (1979 Cum. Supp.), provides for reversal of an agency decision if "the administrative findings, inferences, conclusions or decisions are:
      (5) Unsupported by competent, material, and substantial evidence in view of the entire record as submitted; or
      (6) Arbitrary and capricious.”

      . Although the Board stated in answers to Appellant’s interrogatories that proof of an assault, names of individuals who have made threats, or the need for a handgun in employment are not necessary prerequisites to the granting of a permit, these factors or the lack thereof can be considered by the Board.