Prince George's County v. Blumberg

• Decision Date: 22 August 1980
• Docket Number: No. 147,147
• Parties: PRINCE GEORGE'S COUNTY, Maryland, et al. v. Herschel BLUMBERG et al.
• Court: Maryland Court of Appeals

Page 275

288 Md. 275

418 A.2d 1155

PRINCE GEORGE'S COUNTY, Maryland, et al. v. Herschel BLUMBERG et al.

No. 147.

Court of Appeals of Maryland.

Aug. 22, 1980.

Alan E. D'Appolito, Associate County Atty. (Robert B. Ostrom, County Atty. and Michael O. Connaughton, Deputy County Atty., on the brief), for Prince George's County.

Paul T. Sisson, Associate Counsel, Hyattsville, for Washington Suburban Sanitary Commission.

Barbara A. Sears, Silver Spring (Joseph P. Blocher and Linowes & Blocher, Silver Spring, on the brief), for appellees.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

We granted certiorari in the present case to consider the multifarious issues generated by the revocation of respondents Marvin and Herschel Blumbergs' building and water-sewer permits by petitioners Prince George's County and the Washington Suburban Sanitary Commission (WSSC), respectively. Since we conclude, however, that the respondents failed to exhaust the available administrative remedies, we do not reach the merits of the case but reverse in part the judgment of the Court of Special Appeals, 44 Md.App. 79, 407 A.2d 1151, and directed that court to likewise reverse in part the judgment entered by the Circuit Court for Prince George's County.

The factual backdrop to this litigation is both extensive and complex, but, because of the view we take, may be somewhat condensed here. Respondents own approximately forty acres of ground in the Hyattsville area of Prince George's County on which they had planned to construct a high-rise residential building consisting of two towers, twenty-seven and thirty-five stories high. Aware that their land was situated in an area of restricted sewer service, the Blumbergs began, in the summer of 1971, to make inquiries of the WSSC as to whether such service would be available for their project. ¹ Assured that it was still available, the Blumbergs began preparing final plans for their building, and in April 1972 made a formal application to the WSSC for water and sewer service. The commission approved the application on October 25, 1972, and issued the permits on November 13 of that year.

Prior to receiving the necessary WSSC authorizations, respondents applied to Prince George's County for a building permit, listing themselves as both owners and contractors of the proposed structure. Approval was granted by the county's Department of Licenses and Permits, which in January 1973 issued a building permit for the thirty-five story tower, in February issued a second permit for the twenty-seven story tower, and subsequently, consolidated the two permits into a third one on March 14, 1973. With all necessary authorizations in hand, the Blumbergs made their final preparations to begin construction; however, their problems were just beginning.

A few days before the actual construction commenced, respondents learned that the county was considering a revocation of their building permit because their application had failed to list a licensed builder as required by a recently enacted county law. ² This law became effective January 1, 1973, and established a licensing requirement for all building contractors within the county, see Prince George's County Code §§ 2-253.6 to 2-253.18 (1975). ³ In doing so, the ordinance specifically provided that a building permit "shall not be issued to any person except a duly licensed building contractor . . . ." Id. § 2-253.15. Although the Blumbergs' building permit application had been filed prior to the new law's effective date, it was not approved and the permit issued until after that date. While respondents believed, as both builder and owner, that this law did not apply to them because of the manner in which the act defines "building contractor", ⁴ they nevertheless filed an application for a contractor's license on March 28, 1973, with the Department of Licenses and Permits. A temporary contractor's license was issued to the respondents on April 5, 1973, and a permanent one was delivered on April 17.

While their application for a contractor's license was pending, the Blumbergs on March 29 began construction of the building because of a condition imposed by the WSSC when it issued the water and sewer permits requiring that the footings of the proposed building be completed and pass county inspection within six months of their issue date (here by May 10), otherwise the sewer and water permits would become void. The work continued until April 12, 1973, when the county's Chief Building Inspector, Mr. James R. Novak, issued a stop work order directing the respondents to cease further construction. In an accompanying letter, Mr. Novak explained that "(r)eview of (your building) permit reveals that it was illegally issued because the contractor listed on the permit application does not possess a valid residential Building Contractor's License . . . . The permit is, therefore, null and void." Respondents, having already received their temporary contractor's license prior to the inspector's order, immediately notified the county of this fact, and asked that their building permit be revalidated and the stop work order rescinded. Before the county could rectify its error, however, the Blumbergs' problem was compounded by actions of the WSSC. Upon being notified by the county (which was the normal practice) that the respondents' building permit had been withdrawn, the WSSC, on April 11, 1973, suspended the efficacy of its water and sewer permits. This, in turn, lead the county, on April 19, 1973, to notify the Blumbergs that until the WSSC's suspension was removed, the building permit could not legally be reissued.

The Blumbergs, perceiving the predicament which was developing, arranged a meeting with William W. Gullett, the then Prince George's County Executive, in an attempt to solve the problem. Mr. Gullett informed respondents that due to its height, considerable opposition to the building had developed in the residential neighborhoods surrounding the project; however, the county executive further indicated that if the Blumbergs would reduce the thirty-five story tower to twenty-seven stories the building permit could be reissued. As a result of this meeting, respondents altered their plans and submitted to the county, on May 8, 1973, a revised application for a building permit, this time to construct twin twenty-seven story towers. The new application, as are all building applications, was routinely forwarded to the WSSC in order that it might review the project for sewer and water availability. The commission, having received a request from the Blumbergs for an extension of the six month time limit on their previously issued but now suspended water and sewer permits, as well as update information concerning sewage disposal conditions in the Anacostia Basin, ⁵ set for a hearing all matters then pending with regard to respondents' permits. In the meantime, the county delayed taking action on the revised application for a building permit.

On May 23, 1973, the hearing scheduled by the commission took place with the Blumbergs and other interested citizens present and represented by counsel. The commissioners heard argument from all desiring to be heard after receiving evidence concerning not only the prior commission action with regard to respondents' applications, but also the present availability of sewer service in the Anacostia Basin area. Following this hearing, the WSSC passed, on May 30, 1973, an order: (i) revoking the previously issued water and sewer permits because they had been granted in contravention of the commissions's own rules, as well as on mistaken information; (ii) declaring that the outstanding permits, even if validly issued, had "expired . . . on May 10, 1973 because the County footings inspection for the buildings to which the permits pertain had not been completed;" and (iii) denying the request for a new permit because of the inability, at that time, of the commission's sewage treatment system to handle the increase which the building would generate.

Following this series of events, the controversy entered the courts when the Blumbergs, on July 10, 1973, filed a bill of complaint in the Circuit Court for Prince George's County seeking injunctive and declaratory relief against Prince George's County, County Executive Gullett, and the WSSC. In essence, respondents requested that the court declare that the county's stop work order and WSSC's suspension of their permits was void and unenforceable, and that it enter an order "prohibiting the Defendants . . . from refusing to reissue Plaintiffs' building permit, . . . continuing the suspension of the sewer or water permits, or . . . otherwise interfering with the construction by Plaintiffs of the Plaza Towers Apartments . . .." More than three years later, respondents amended their bill of complaint by joining Winfield M. Kelley, Jr., then County Executive, as an additional defendant, and requesting as a codicil to the previously sought relief, an award of.$4.5 million in compensatory damages and $500,000 in punitive damages-the former representing the cost of delaying construction, and the latter "for Defendants' willful and deliberate misuse of government power." Two years later, the case finally went to trial (more than five years after it was initially instituted) ⁶ and the Circuit Court for Prince George's County (Bowen, J.) ordered, on January 30, 1979, that the county and WSSC reissue the revoked permits; awarded $3,673,919 in compensatory damages against the county; dismissed the damage action against the WSSC on the ground of sovereign immunity; and sustained demurrers filed by the two former County Executives (Gullett and Kelley), dismissing them from the case. All parties, except Gullett and Kelley, appealed the trial court's decision to the Court of Special Appeals, which affirmed all aspects of Judge Bowen's order,...