PDK, of McLean, Va., has development plans for a 28-acre property on western Kent Island, located on the southwest side of U.S. Route 50 and State Route 8. Kent Island Commons would include a Wal-Mart store; a hotel and conference center; and restaurants and offices.

The county commissioners, sitting as the sanitary commission, voted in November 1999 to amend the county sewer and water plan to designate the 28-acre property as available for public sewer service. The sanitary commission also voted to remove the cap on the total amount of sewage capacity (30,000 gpd) which could be allocated to new building projects in one year.

In May 2000, the sanitary commission voted to deny PDK's request for sewer and water allocation. The commissioners cited various concerns, including the project's potential negative impacts on traffic and public safety; and the amount of remaining treatment capacity in the Kent Narrows Stevensville Grasonville sewage treatment plant - the county sewage treatment plant located on Kent Island. 

PDK filed a civil action which asked the circuit court to grant the allocation request. In September 2000, Judge Sause upheld the sanitary commission's decision. But in late April 2001, Sause issued a memorandum of law supporting a writ of mandamus that ordered the county to approve PDK's request for sewer and water allocation. Sause, citing a ruling by the Maryland Court of Appeals in the 1969 case of City of Cumberland v. Powles, wrote in his memorandum that the sanitary commission is not authorized to "pick and choose" who is authorized to use sanitary facilities already in place.

The county commissioners abided by the circuit court order and granted the sewer allocation for the Kent Island Commons project, but the commissioners also appealed the decision to the Court of Special Appeals, Maryland's intermediate appellate court.

The appellate court ruling was made by Judges Peter Krauser, Clayton Greene and Raymond G. Thieme Jr. The opinion, written by Thieme, said the county drew "a distinction between the ministerial duty of providing sewer service and the discretionary duty of providing a volume for allocation. We agree that such a distinction is extremely important in the case at bar."

The appeals court opinion said the Wal-Mart case is different from the City of Cumberland case because that 1969 case dealt "with the denial of water service to a residence under the ill-found theory that such denial would avoid the need (by the city) for another water source." The opinion said the denial in the Wal-Mart case "was not for a sewer allocation, but for a specific amount of sewerage that was deemed to be too great at the current time."

Attorney Christopher Drummond, counsel for the Queen Anne's County Planning Commission, relayed news of the decision during the commission meeting Thursday morning. County Commissioner John McQueeney, also a planning commission member, was pleased.

PDK can ask the Court of Appeals, Maryland's highest court, to consider hearing the case. 

©The Star Democrat 2002