Biser v. Town of Bel Air, s. 92-1675

• Decision Date: 02 April 1993
• Docket Number: Nos. 92-1675,92-1732,s. 92-1675
• Parties: Robert F. BISER, Plaintiff-Appellant, v. TOWN OF BEL AIR; Carol Deibel; Edsel A. Docken, Sr.; James M. Decker; John E. Yantz; Donald Young; D. David Ranney, Jr., Defendants-Appellees. Robert F. Biser, Plaintiff-Appellee, v. Town of Bel Air; Carol Deibel; Edsel A. Docken, Sr.; James M. Decker; John E. Yantz; Donald Young; D. David Ranney, Jr., Defendants-Appellants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 100

991 F.2d 100

Robert F. BISER, Plaintiff-Appellant, v. TOWN OF BEL AIR; Carol Deibel; Edsel A. Docken, Sr.;

James M. Decker; John E. Yantz; Donald Young;

D. David Ranney, Jr., Defendants-Appellees.

Robert F. Biser, Plaintiff-Appellee, v. Town of Bel Air; Carol Deibel; Edsel A. Docken, Sr.;

James M. Decker; John E. Yantz; Donald Young;

D. David Ranney, Jr., Defendants-Appellants.

Nos. 92-1675, 92-1732.

United States Court of Appeals, Fourth Circuit.

Argued Feb. 2, 1993.

Decided April 2, 1993.

W. Michel Pierson, Pierson, Pierson & Nolan, Baltimore, MD, argued for appellant.

Carol Brenick O'Keeffe, argued (Robert H. Levan, on brief) Levan, Schimel, Belman & Abramson, P.A., Columbia, MD, for appellees.

Before WILKINSON and WILKINS, Circuit Judges, and PAYNE, United States District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

This case arises from a local zoning dispute in Bel Air, Maryland. Appellant Robert Biser claims that the Town of Bel Air deprived him of substantive due process when it denied him a "special exception" that would have permitted him to construct two commercial office buildings in an area zoned for residential use. The Circuit Court for Harford County, Maryland held that the Town was equitably estopped from denying Biser his special exception, which that court ordered the Town to grant. After completing his office buildings, Biser filed this suit under 42 U.S.C. § 1983, claiming $1 million in damages from the Town's delay in granting the special exception. The district court dismissed the complaint for failure to state a claim. 778 F.Supp. 249. We believe that neither the relevant zoning laws nor the ruling of the Circuit Court of Harford County was sufficient to confer a cognizable property interest upon Biser. We thus agree with the district court that this local land use dispute does not belong in federal court.

I.

The complaint alleges these facts. Robert Biser owns a tract of real property located at the corner of Vale Road and Rockspring Avenue in the Town of Bel Air, Maryland. That area has been zoned "R-2" (General Residence), restricting buildings in that area to residential use.

Local ordinances provide for commercial office use in residential areas under certain conditions, if the local Board of Appeals approves a special exception. ¹ Maryland law authorizes the Board of Appeals to decide appeals from decisions by administrative officials as well as to grant special exceptions from certain ordinances. Md.Ann.Code art. 66B, § 4.07(d).

In August 1988, Biser contacted Carol Deibel, Director of Planning and Community Development in Bel Air. He sought her assistance in obtaining a special exception from the residential zoning restrictions. Deibel reviewed Biser's preliminary plans for two office buildings and informed him that his plans required setback variances. Deibel suggested that Biser apply for the setback variances, obtain building permits, construct the buildings, and then request the special exception. Deibel informed Biser that the buildings would have to be built before they could be approved for a special exception.

Biser presented his plans at a meeting of the Board of Appeals on September 27, 1988. He informed the Board of his development plans and his desire to ascertain whether there were any impediments to those plans. The Board expressed no objections to Biser's plans and approved the setback variances.

Biser then submitted his completed building plans with his applications for building permits to the Town's Assistant Planner. The building permits were approved on June 27, 1989, but only after the references to "commercial office buildings" in the applications were struck out and replaced with "dwellings."

After construction had begun, Biser sought approval in August 1989 for his storm water management plans. Town employees informed him that the storm water management plans could not be approved until the Board granted a special exception. Biser again contacted Deibel to ascertain what would be required to secure a special exception. Deibel informed Biser that he could apply for a special exception as long as the buildings were "under roof" and their windows had been installed. Biser completed this construction and applied for a special exception at the Board's meeting on September 26, 1989. The Board did not issue a decision at this meeting.

Two days later, the Town's Superintendent of Public Works issued a "stop-work" order. The order stated that the buildings did not comply with the Building Code's requirements for single family dwellings. Biser protested this order without success. In order to avoid further delays, he installed the kitchen and bathroom facilities necessary to comply with the order. The order was lifted on October 16, 1989.

The Board met again on October 24, 1989 to consider Biser's application for a special exception, which the Board denied. Biser appealed the denial to the Circuit Court for Harford County. The Circuit Court found that the ordinance authorizing special exceptions was ambiguous as to whether use and occupancy permits must be presented before the special exception for conversion of a dwelling to office use could be granted. That court further found that Biser had relied to his detriment on the Town's approval of his building permits, and went on to hold that the Town was equitably estopped from denying Biser his special exception. The Circuit Court remanded to the Board with instructions to grant the special exception. The Town complied with that order forthwith.

After some further delay in the permitting process, Biser completed his office buildings. He then filed this suit under 42 U.S.C. § 1983, claiming that he had been denied due process by the Town's delay in granting his special exception. Biser also made two state law claims based on the same facts. The district court dismissed with prejudice the federal count for failure to state a claim, and declined to exercise pendent jurisdiction over the state claims, which the court dismissed without prejudice. Biser appeals from the complaint's dismissal. The Town cross-appeals, contending that the state claims should have been dismissed with prejudice.

II.

In order for Biser to state a substantive due process claim, he must first demonstrate that he possesses a "cognizable property interest, rooted in state law," in the lost benefit. See Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir.1983). We do not believe that Biser held a property interest in the special exception before it was granted by the Board. A property interest requires more than a "unilateral expectation" that a permit or license will be issued; instead, there must be a "legitimate claim of entitlement." See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In applying this standard of entitlement, we have held that if a local agency has "[a]ny significant discretion" in determining whether a permit should issue, then a claimant has no legitimate entitlement and, hence, no cognizable property interest. Gardner v. Baltimore Mayor & City Council, 969 F.2d 63, 68 (4th Cir.1992).

Here the Board of Appeals had significant discretion in deciding whether to grant Biser's application for a special exception. In making its decision, the Board had to determine whether granting the exception "would adversely affect the public health, safety, security, morals or general welfare, or would result in dangerous traffic conditions or would jeopardize the lives or property of people living in the neighborhood." Town of Bel Air Zoning Ordinance, No. 208 art. 16.042. It is difficult to imagine a more flexible standard. Moreover, the ordinance requires the Board to consider eighteen separate factors in making this determination. Id. See also Heath v. Mayor and City Council of Baltimore, 187 Md. 296, 49 A.2d 799, 803 (1946) (noting discretion of local Boards of Appeals in granting special exceptions). In every respect then, the Board of Appeals possessed significant discretion under Gardner in deciding whether to grant special exceptions. Biser had only a unilateral expectation that he would receive the special exception. He possessed no legitimate claim of entitlement, and thus no property right cognizable under the due process clause. The fact that Biser believes that the Board acted arbitrarily on his...