"What further research and reflection have revealed, however, is that both the Court and the Commissioners have overlooked the fact that the controlling principles are of a legal character, of constitutional dimension, and that the application of discretion is to be made only after such legal principles have been applied," Sause wrote.

In the memorandum, Judge Sause said, "The action of the Commission thus involves no fault of motive or logic, but fails only because the law provides no basis for the exercise of either under the circumstances of this case."

The memorandum details how Judge Sause based his determination on similar cases and specifically one case which took place in Cumberland, Md. in the City of Cumberland v. Powles, supra.

Judge Sause states in the memorandum, "In the present case, the Sanitary Commission's concern for depletion of its facilities, coupled with its concession that 'preliminary work has begun on the expansion of the KN/S/G plant,' is virtually identical to the situation in Powles, where 'a third source of water supply to meet its projected needs [will be required] irrespective of the granting or refusal to grant water taps.' This Court believes the law to be that, to paraphrase the Court of Appeals in the Cumberland case; 'The [Commission] is not authorized to make individual determinations to the granting or refusal to grant the right to use sanitary facilities and while motivated by the best intention, cannot be permitted to pick or choose.' "

Joe Stevens, attorney for PDK said this memorandum came as a surprise to them and they are currently evaluating the decision in order to decide on how they will proceed with this matter.

"Obviously, the developer and Wal-Mart are pleased with the results," said Stevens.

"We are somewhat stunned by the decision and are working out what our next steps will be," said County Commission President George O'Donnell. "We were obviously very disappointed that the court overturned their original decision. We thought the written decision would reflect the court's original findings."

O'Donnell said the commission has not yet determined if they will appeal this recent decision by Judge Sause. O'Donnell said if they appeal the case, it would go to the Maryland Court of Special Appeals in Annapolis.

"At this point, we are trying to determine what role the sanitary commission can play in granting sewer and water allocations. As a result of the recent court rulings, we would be obliged to grant allocations if the capacity exists," said O'Donnell. "The problem is, it puts the county in a bad position to make sure there are enough allocations until the next plant expansion."

The proposed Kent Commons development is planned for a 28-acre parcel on western Kent Island just south of the Bay Bridge. The project calls for a Wal-Mart superstore, a 123-room hotel and conference center, restaurants and offices. Last October, Wal-Mart purchased nearly 25 acres of the 28-acre parcel for $4.87 million.