Evans v. Burruss

• Decision Date: 12 October 2007
• Docket Number: No. 1 September Term, 2007.,1 September Term, 2007.
• Citation: 401 Md. 586,933 A.2d 872
• Parties: John EVANS, et al. v. Thomas BURRUSS, et al.
• Court: Court of Special Appeals of Maryland

933 A.2d 872

401 Md. 586

John EVANS, et al. v. Thomas BURRUSS, et al.

No. 1 September Term, 2007.

Court of Appeals of Maryland.

October 12, 2007.

Reconsideration Denied November 6, 2007.

Steven VanGrack (VanGrack, Axelson, Williamowsky, Bender & Fishman, P.C.; Paul J. Benkert, Jr., on brief), Rockville, for Petitioners.

James L. Parsons, Jr. (Lynott, Lynott & Parsons, P.A., on brief), Rockville, for Respondents.

Argued Before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, and ALAN M. WILNER, (retired, specially assigned) and DALE R. CATHELL, (retired, specially assigned), JJ.

DALE R. CATHELL, Judge (retired, specially assigned).

John Evans, petitioner,¹ appeals to this Court from a judgment rendered by the Court of Special Appeals. In his petition for certiorari and in his brief he presented a single issue for our review:

"Whether a neighboring property owner has a due process right to actual notice of the issuance of a building permit."

Thomas Burruss, et al.,² respondents, filed no cross-petition. We shall resolve only the question raised in the petition.³

I. Facts

On February 20, 2004, petitioner received a building permit⁴ from Montgomery County to erect four amateur radio (ham radio) towers, each 190 feet in height, on his property in Poolesville, Maryland. On June 23, 2004, he received a revised building permit. Approximately five weeks later, on August 5, 2004, construction commenced. Upon seeing construction trucks (cement trucks pouring concrete), work being done, and holes being drilled on petitioner's property, respondents, the abutting property owners, checked with the county authorities and then became aware, for the first time, of the permits that had been issued for the construction of the towers. On August 13, 2004, respondents requested the Montgomery County Department of Permitting Services (DPS) to issue a stop work order.⁵ DPS refused respondents' request.

On August 30, 2004, respondents noted two appeals to the Board of Appeals of Montgomery County in respect to the issuance of the building permits (and sediment control permit issued),⁶ claiming that they had been unlawfully issued. Petitioner and Montgomery County (which intervened in the cases before the Board of Appeals), moved to dismiss the appeals. The motions were granted by the Board. It based one dismissal on untimeliness, and the other because there was no basis to appeal the issuance of a sediment control permit, and because it (the Board) had no authority to hear the appeal.

Respondents then filed a petition for judicial review with the Circuit Court for Montgomery County. Again, the petitioner and Montgomery County moved to dismiss the petition for judicial review. The Circuit Court upheld the Board's finding that the appeal of the original issuance of the building permit was untimely, but found that the subsequent issuance of the sediment control permit had the effect of renewing the building permit, making the appeal timely. On that basis, the Circuit Court remanded the case to the Board for it to entertain the appeal of the building permit. At that point, petitioner filed a notice of appeal of the Circuit Court judgment to the Court of Special Appeals. That Court, in an unreported opinion, issued October 14, 2006, reversed the findings of the Circuit Court that the issuance of the sediment control permit had renewed the issuance of the building permit and that the appeal of the building permit, therefore, had been timely. In other words, the Court reinstated the Board's decision that the appeal of the building permit had been untimely. The Court of Special Appeals, however, remanded the case to the Board of Appeals for it to determine whether respondents had a general⁷ due process right to actual personal notice of the issuance of the building permit and/or a property right that was adversely affected by the issuance of the permit. We granted certiorari. Evans v Burruss, 398 Md. 313, 920 A.2d 1058 (2007).⁸

II. Standard of Review

Our review of the agency's decision entails only an appraisal and evaluation of the agency's fact-finding and not an independent decision on the evidence. Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 560, 569, 709 A.2d 749, 753 (1998); Anderson v. Dep't of Public Safety & Correctional Services, 330 Md. 187, 212, 623 A.2d 198, 210 (1993). When the agency is acting in a fact-finding or quasi-judicial capacity, we review its decision to determine "whether the contested decision was rendered in an illegal, arbitrary, capricious, oppressive or fraudulent manner." Dep't of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 224, 334 A.2d 514, 523 (1975); see Goodwich v. Nolan, 343 Md. 130, 148, 680 A.2d 1040, 1049 (1996); Weiner v. Maryland Ins. Admin., 337 Md. 181, 190, 652 A.2d 125, 129 (1995).

"[A] reviewing court, be it a circuit court or an appellate court, shall apply the substantial evidence test to the final decisions of an administrative agency...." Baltimore Lutheran High School Ass'n, Inc. v. Employment Security Admin., 302 Md. 649, 662, 490 A.2d 701, 708 (1985); see State Highway Admin. v. David A. Bramble, Inc., 351 Md. 226, 238, 717 A.2d 943, 949 (1998); Anderson, 330 Md. at 212, 623 A.2d at 210; Bulluck v. Pelham Wood Apartments, 283 Md. 505, 512, 390 A.2d 1119, 1123 (1978). In this context, "`[s]ubstantial evidence,' as the test for reviewing factual findings of administrative agencies, has been defined as `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[.]'" Bulluck, 283 Md. at 512, 390 A.2d at 1123 (quoting Snowden v. Mayor & City Council of Baltimore, 224 Md. 443, 448, 168 A.2d 390, 392 (1961)); see Catonsville Nursing Home, 349 Md. at 569, 709 A.2d at 753; Caucus Distributors, Inc. v. Maryland Securities Comm'r, 320 Md. 313, 323-24, 577 A.2d 783, 788 (1990). We have stated that, "`[a] court's role is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.'" Bucktail, LLC v. County Council of Talbot County, 352 Md. 530, 552-53, 723 A.2d 440, 450 (1999) (quoting United Parcel Service, Inc. v. People's Counsel, 336 Md. 569, 576-77, 650 A.2d 226, 230 (1994)). "A reviewing court is under no constraints in reversing an administrative decision that is premised solely upon an erroneous conclusion of law." Prince George's County v. Brown, 334 Md. 650, 658, 640 A.2d 1142, 1146 (1994); see Catonsville Nursing Home, 349 Md. at 569, 709 A.2d at 753 (quoting Insurance Comm'r v. Engelman, 345 Md. 402, 411, 692 A.2d 474, 479 (1997)); People's Counsel v. Maryland Marine Mfg. Co., 316 Md. 491, 497, 560 A.2d 32, 34-35 (1989).

"We are also obligated to `review the agency's decision in the light most favorable to the agency,' since their decisions are prima facie correct and carry with them the presumption of validity." Catonsville Nursing Home, 349 Md. at 569, 709 A.2d at 753 (quoting Anderson, 330 Md. at 213, 623 A.2d at 211; Bulluck, 283 Md. at 513, 390 A.2d at 1124). We have noted that our review of an administrative agency's decision differs markedly from our review of the decision of a trial court in other types of civil cases:

"In the latter context the appellate court will search the record for evidence to support the judgment and will sustain the judgment for a reason plainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of agency action the court may not uphold the agency order unless it is sustainable on the agency's findings and for the reasons stated by the agency."

United Steelworkers of America AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679, 472 A.2d 62, 69 (1984).

III. Discussion

A. Are Property Interests Generally Created by Zoning Ordinances?

The Supreme Court of the United States, when discussing the Fourteenth Amendment's procedural protection of property, has stated that:

"Certain attributes of `property' interests protected by procedural due process emerge from these decisions. To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than an unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hearing to provide an opportunity for a person to vindicate those claims.

"Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law-rules or understandings that secure certain benefits and that support claims of entitlement to those benefits." (Emphasis added.)

Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). In Cleveland Board of Education v. Loudermill, the Supreme Court reaffirmed Roth, saying:

"Respondents' federal constitutional claim depends on their having a property right in continued employment. If they did, the State could not deprive them of this property without due process.

"Property interests are not created by the Constitution, `they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....' The Ohio statute plainly creates such an interest. Respondents were `classified civil service employees,' entitled to retain their positions `during good behavior and efficient service,' who could not be dismissed `except . . . for . . . misfeasance, malfeasance, or nonfeasance in office'.... The statute plainly...