Baer v. Wicomico Cnty. Bd. of Appeals, 777-2020

CourtCourt of Special Appeals of Maryland
Writing for the CourtLEAHY, J.
PartiesJEFFREY S. BAER, ET AL. v. WICOMICO COUNTY BOARD OF APPEALS, ET AL.
Docket Number777-2020
Decision Date09 June 2022

JEFFREY S. BAER, ET AL.
v.
WICOMICO COUNTY BOARD OF APPEALS, ET AL.

No. 777-2020

Court of Special Appeals of Maryland

June 9, 2022


Circuit Court for Wicomico County Case No. C-22-CV-19-000447

Berger, Nazarian, Leahy, JJ.

OPINION [*]

LEAHY, J.

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In the underlying administrative action, the Wicomico County Department of Planning Zoning & Community Development issued a building permit for a three-million-gallon storage tank to be constructed on a property located in the A-1 zone at the intersection of Porter Mill Road and Riggin Road near Mardela Springs. The property is owned by appellee, Edmond H. Burns, IV. Fourteen neighboring property owners (collectively, the "Appellants" or "Petitioners" below)[1] appealed the issuance of the permit to the Wicomico County Board of Appeals (the "Board"). The Board dismissed the appeal as untimely because it was not "submitted within 30 days of the Zoning Administrator's decision." Appellants filed the underlying petition for judicial review challenging the decision of the Board on the grounds that: (1) the "Board of Appeals Rules of Procedure" do not set out a deadline for filing an appeal; and (2) the Board's reliance on the 30-day "Time for Appeal" contained in the Wicomico County Code was unauthorized and in violation of State law. The circuit court affirmed the Board's decision to deny the appeal as untimely, and Appellants appealed the court's judgment.

The Appellants present two issues for our review both of which boil down to whether the Board erred in dismissing their appeal as untimely without a hearing.[2] For the

2

reasons that follow, we conclude that the Board of Appeals correctly decided that the notice of appeal was untimely and, accordingly, we affirm the judgment of the circuit court.

BACKGROUND

On May 7, 2019, Mr. Burns submitted an "Application for Residential Building Plan Review" with the Building Division of the Wicomico County Department of Planning Zoning & Community Development for a building permit to construct a "3 million gallon storage tank" on his land at the northeast corner of Porter Mill Road and Riggin Road. On May 20, 2019, the Department approved the application and issued Mr. Burns Building Permit No. 28267 (the "Permit").

Approximately five months later, on September 14, 2019, counsel for Petitioners sent a letter to Mr. Burns expressing Petitioners' objections to the Permit. Specifically, counsel asserted that "there were two legal impediments to your plans: zoning and nuisance." First, the "proposed tank is a commercial or industrial use which is not a permitted use in the A-1 zoning district." Counsel threatened "to file a declaratory judgment suit in the Circuit Court for Wicomico County, asking the [c]ourt to declare [Mr. Burns'] building permit 'null and void' and [his] tank unlawful[.]" Second, the Petitioners "object[ed] to the pungent odor of the sludge (DAF) material" that would emanate from

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the tank. Counsel for Petitioners asserted, "it is apparent that your application of this material constitutes at least an actionable private nuisance." Again, counsel cautioned that unless the odor was eliminated, "my clients will be compelled to take legal action to halt its application on land in close proximity to their residences."

Counsel for Petitioners then filed a notice of appeal from the issuance of the Permit to the Wicomico County Board of Appeals on October 31, 2019-six months after the permit issued and 47 days after sending Mr. Burns a letter stating Petitioners' objections to the permit. The notice, addressed to the chair of the Board of Appeals, asserted: "I hereby enter an appeal to the Board of Appeals pursuant to § 7-3 of the County Code from the Building Inspector's issuance of a Building Permit[.]" The notice provided two grounds for the appeal:

1. Upon information and belief, the storage tank was erroneously determined to be an inherently permitted use in the A-1 Agriculture-Rural zoning district
2. Upon information and belief, the building permit was approved as "Ag exempt" from pertinent State and County stormwater management, soil conservation and forest conservation laws and regulations without satisfactory evidence that the storage tank, as proposed, could be placed on the property in compliance with those laws and regulations being submitted - until at least October 17, 2019.

On November 4, 2019, the Board denied the appeal as untimely in a letter from the Chairman of the Board to Petitioners. The Chairman's letter provided, in full:

The Board of Appeals has received your appeal of Building Permit No. 28267 that was issued on May 20, 2019. The Notice raises two issues related to decisions of the County Zoning Administrator.
An appeal must be submitted within 30 days of the Zoning Administrator's decision. The Notice was not submitted to the Department
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of Planning, Zoning, and Community Development until October 29, 2019. Therefore, the Notice is not timely and it will not be considered by the Board.

Within 30 days of the Board's decision, Petitioners filed a petition for judicial review in the Circuit Court for Wicomico County. They filed their "Memorandum in Support of Their Request for Judicial Review" on March 24, 2020. In the "Statement of Facts," Petitioners asserted:

The Application for the building permit was not advertised, nearby property owners (including Petitioners) were not notified of the application and no public hearing was held. Nor, on information and belief, was the property posted with any notice that a building permit had been applied for or had been issued. Only a very few of Petitioners were even aware of the permit and its issuance until more than 30 days after its issuance.

Turning to their argument, the Petitioners asserted that the "Board's November 4, 2019 decision denying Petitioners' appeal on the basis that the appeal 'must be submitted within 30 days of the Zoning Administrator's decision' was in error," because the Board's Rules of Procedure "do not set forth any time by which such an appeal must be filed." (Emphasis in original). Building on that contention, the Petitioners urged that section 225-154.B. of the Wicomico County Code, which requires that a written notice of appeal be submitted "within 30 days from the officer's decision," could not cure the alleged omission because the Land Use Article of the Maryland Code "states explicitly that the appeal time must be set forth 'in the rules of the board of appeals'-not in the county code." Finally, they posited that the County Code could not substitute for the Board's rules because the "Land Use Article stat[es] that '[t]he legislative body may not serve as the board of appeals.'"

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On April 16, 2020, the County responded and asserted that the appeal was untimely because Petitioners "failed to appeal within the 30-day period" set forth in section 225-154 of the Wicomico County Code. In response to Petitioners' contention that the adoption of the County Code was improper, the County averred that section 4-304 of the Land Use Article allows "the board of appeals to adopt rules, which are in accordance with any local law." (Emphasis in original).

Eight days later, Mr. Burns filed his "Answer to Petitioners' Memorandum in Support of Their Request for Judicial Review." Echoing the County's contentions, Mr. Burns argued that the thirty-day period for filing an appeal is set forth in section 225-154 of the Wicomico County Code. According to Mr. Burns, "the Council implemented the 30-day time limit within which an appeal must be filed[, ] and the Board adopted that rule precisely as the Legislature intended." Mr. Burns argued that "the Board's adoption of rules of procedure from the Council in no way equates to the 'legislative body . . . serving as the board of appeals" but "evidences the fact that the Board exercised its independent and sovereign authority and discretion conferred upon it by both state and local laws." Regarding any argument that the Petitioners lacked notice, Mr. Burns asserted that the Petitioners had notice at least five days prior to approval of the Permit and that Petitioners "failed to file their appeal within 30 days of their own correspondence to Mr. Burns putting him on notice that they would appeal."

In their reply to the County and Mr. Burns' oppositions, Petitioners asserted that the County and Mr. Burns' "contentions, although creative, reflect an unreasonable and

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impermissible avoidance of the State mandated requirement of section 4-306." According to Petitioners, the "operative legislation in this instance specifies that the information is to be furnished in a board's rules. But, in this case, it is not."

After a hearing held before the circuit court on September 2, 2020, [3] the circuit court issued an "Opinion and Order." The court found that the Petitioners' "arguments lack[ed] merit." The court noted that the Board's rules state, at the outset of Section 2: "These rules are supplementary to requirements set forth in the Wicomico County Code, which should be reviewed for additional procedural requirements." Therefore, the court reasoned, "a reader of the Board's rules is directed to the County Code, which provides, at Section 225-154[B.], 'Time for Appeal - A written notice of appeal shall be submitted to the Department of Planning, Zoning and Community Development within thirty (30) days from the officer's decision."' The court rejected Petitioners' argument that "the Board's procedures are invalid . . . because the specific time period for appeal was not set forth directly in the Board's rules":

The phrase "provided by the rules of the board . . .," given its plain meaning, requires simply that a reasonable time frame must be "provided." This phrase in no way precludes the Board from referring a party to another, readily available source. To hold
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