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John Evans, et al. v. Thomas Burruss, et al. No. 1, September Term, 2007
Headnote: The issua nce of bu ilding perm its is a ministerial ac t. Where a building permit is issued to a property owner for construction on their property, that issuance does not create property rights in neighboring or adjacent property owners. Where a zoning ordinance d oes not req uire the servic e of actual, p ersonal no tice to neighboring or adjacent property owners, the failure to give those neighboring or adjacent property owners actual, personal service is not a denial of due process.

Circuit Co urt for Mo ntgomery C ounty Civil Case No. 260494

IN THE COURT OF APPEALS OF MARYLAND No. 1 September Term, 2007

John Ev ans, et al. v. Thoma s Burruss, e t al.

Bell, C. J. Raker Harrell Battaglia Greene Wilner, Alan M. (retired, specially assigned) Cathell, Dale R. (retired, specially assigned), JJ.

Opinion by Cathell, J.

Filed:

October 12, 2007

John Evans, petitioner, 1 appeals to this Court from a judgm ent rendered by the Cou rt of Special Appeals. In his petition for certiorari and in his brief he presented a single issue for our rev iew: "Whether a neighboring property owner ha s a due pro cess right to actual n otice of the issua nce of a buildin g perm it." Thomas Burru ss, et al., 2 respondents, filed no cross-petition. We shall resolve only the question raised in the petition.3

As we note, infra, Montgomery County, Maryland, filed a motion to participate as amicus curiae, which we granted on May 21, 2007. Thomas Burruss and his wife, Judith Burruss, and Alan Gaunoux, collectively will be refe rred to a s respo ndents or Bur russ. Respondents, although having filed no petition of their own, in their brief advance two additional issues: "1. Whether the Board of Appeals erred as a matter of law by refusing to allow Respon dents an opportunity to make a factual showing of substantial deprivation of their property interests based upon the issuance of the building permits. "2. Whether the thirty day `time for appeal' requirement is applicable to the facts of this case ." In a footnote in respond ents' brief, Burruss acknowledges that his second issue was not addressed in petitioner's brief, but asserts that it was discu ssed in the p etition for certio rari. In the petition, its mention was conditioned on a finding adverse to petitioner on the question directly presented in the petition. In lig ht of our d ecision, the thirty-day issue will not be addressed. We decline to sepa rately add ress resp onden ts' first qu estion a bove. As indicated, responde nts did not file a cross-p etition. The issu es before th is Court, generally, are limited to the questions presented in petitions, not o ther, or additio nal, question s that later app ear in briefs. Accordingly, except to the extent that respondents' first question might be in directly discussed in our treatment of the question in the petition, it too will not be addressed.
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I. Facts On February 20, 2004, petitioner received a build ing permit 4 from Mo ntgomery County to erect four ama teur radio (ha m radio) tow ers, each 19 0 feet in he ight, on his property in Poolesville, Maryland. On June 23, 2004, he received a revised bu ilding perm it. Approx imately five wee ks later, on A ugust 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 con struction of th e towers. O n Augu st 13, 2004, respondents requested the Montgom ery County Department of Permitting Services (DPS) to issue a stop work orde r.5 DPS refuse d respo ndents ' reque st. On August 30, 2004, respondents noted two appeals to the Board of Appeals of Montgom ery 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 Mo ntgomery

That gen eral building permit, like most such permits for projects that meet general zoning and building code requirements, is not required to be subject to a public hearing process, although the file and all matters relating to it are public reco rds and av ailable to members of the public, including these respondents, for exam ination. Tha t permit, as w ith the ten thousand or more building perm its, or other types of permits, issued in Mo ntgomery County annually, was issued in the usual course of business. A stop work order was subsequently issued by DPS in respect to a possible minor sedime nt contr ol issue.
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DPS had initially determined that the project d id not mee t the threshold for requiring (contin ued...) -2-

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 is suance o f a sedime nt control pe rmit, and beca use it (the Bo ard) had n o authority to he ar the appe al. Respondents then filed a petition for judicial review with the Circuit Court for Montgom ery Coun ty. 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 o f renew ing the build ing permit, making the appeal timely. On that basis, the Circuit Court remanded the case to the Board for it to enter tain the a ppeal o f the bu ilding p ermit. At that poin t, petitioner filed a notice of appeal of the C ircuit Co urt judg ment to the Co urt of S pecial A ppeals . 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

(...continued) a sediment control permit. Later when its determination came into q uestion, petitioner, although it is not clear that he was required to do so, nonetheless applied for and received a sediment c ontrol perm it. -3-

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Appea ls for it to determine whether respondents had a general7 due process right to actual personal notice of th e issuance o f the buildin g permit an d/or a prop erty right that was adversely affect ed by the issuanc e of the permit. W e grante d certior ari. Evans v. Burruss , 398 Md. 31 3, 920 A.2d 10 58 (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. 56 0, 569, 709 A.2d 74 9, 753 (19 98); Anderson v. D ep't of Public Safety & Correctional Services, 330 Md. 187, 212, 623 A.2d 198, 210 (1993). When the agency is acting in a fact-findin g or quasi-ju dicial capac ity, we review its decision to determine "whether the contested decision was rendered in an illeg al, ar bitra ry, capricious, oppressive or fraudu lent ma nner." Dep't of Natural Resources v. Linchester Sand & Gravel Corp ., 274 Md. 211, 224, 334 A.2 d 514, 52 3 (1975); see Goodwich v. Nolan, 343 Md. 130, 148, 680 A.2d 10 40, 1049 (1996 ); Weiner v. Maryland Ins. Adm in ., 337 Md. 181, 190, 652 A.2d 1 25, 129 (1995 ). "[A] reviewing court, be it a circ uit court or an appellate court, shall apply the
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General, as used here, means as opp osed to a specific provision in the Montgom ery County statutes requiring actual personal notice to neighbors of the issuance of building permits for specific properties. The parties have not informed the Court of any such requirement in respect to the general, normal issuance of building permits in Montg omery Coun ty. We kn ow of none. Montgomery County, Maryland filed a motion to participate as amicus curiae, which we granted on May 21, 2007. -48

substantial evidence test to the final decisions of an administrative agency . . . ." Baltimore Lutheran High S chool A ss'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.2 d 943, 94 9 (1998); Anderson, 330 Md. at 212, 623 A .2d at 210; Bulluck v. Pelham Wood Apartm ents , 283 Md. 505, 512, 390 A.2d 1119, 1123 (19 78). In this co ntext, "`[s]ubstantial evidence ,' as the test for re viewing f actual findings of administrative agencies, has been defined as `such relevant evidence as a reasonable mind might accept as a dequate to support a conclusion[.]'" Bulluck, 283 Md. at 512, 390 A.2d at 23 (quoting Snowden v. Mayor & City Cou ncil of Baltim ore , 224 Md . 443, 448, 1 68 A.2d 390, 392 (1961)); see Catonsv ille 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 erroneo us conclusion of law .'" Bucktail, LLC v. County Counc il of Talbot C ounty , 352 Md. 530, 552-53, 723 A.2d 440, 450 (1999)(quoting United Parcel Se rvice, 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 tha t is premised solely upon an erroneous conclusion of law." Prince George's County v. Brown, 334 M d. 650, 658 , 640 A.2d 1142, 11 46 (1994 ); see Catonsv ille Nursing Home, 349 Md. at 569, 709 A.2d at 753 (quoting Insurance Comm'r v. Engelman,

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345 Md. 40 2, 411, 692 A.2d 47 4, 479 (19 97)); People's Counsel v. Maryland Marine Mfg. Co. , 316 M d. 491, 4 97, 560 A.2d 3 2, 34-3 5 (198 9). "We are also obligated to `review the agency's decision in the light most favorable to the agency,' since their decisions are prima fac ie correct and carry with them the presumption of validity." Catonsville Nursing Home , 349 Md. at 569, 709 A.2d at 753 (quoting Anderson, 330 M d. at 213, 62 3 A.2d a t 211; Bulluck, 283 Md. at 513, 390 A.2d at 1124). We h ave n oted that o ur review of an adm inistrativ e age ncy's decision differs markedly fro m our rev iew of the decision of a trial court in oth er types of civil ca ses: "In the latter conte xt the appe llate court w ill search the rec ord for ev idence to support the judgment and w ill sustain the jud gment fo r a reason p lainly 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 fo r the rea sons sta ted by the agenc y." United Steel Workers 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 Gen erally Created by Zoning O rdinances? The Supreme Court of the United S tates, when discussing th e Fourteen th Amen dment's p rocedural p rotection of property, has state d that: "Certain attributes of `property' interests protected by procedural due process emerg e from these d ecision s. To have a pro perty interest in a b enefit, a person clearly must have more th an an a bstract n eed or d esire fo r 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 -6-

of property to protect those claim s upon w hich peop le rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hea ring to prov ide an opp ortunity for a person to vindica te those claims. " Property interests, of cou rse, are not c reated 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

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