Filed: Oct. 28, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1483 LUCILE M. HORNE; OPHELIA M. HORNE, Plaintiffs – Appellants, v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cv-01110-RDB) Argued: September 22, 2009 Decided: October 28, 2009 Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern Di
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1483 LUCILE M. HORNE; OPHELIA M. HORNE, Plaintiffs – Appellants, v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant – Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cv-01110-RDB) Argued: September 22, 2009 Decided: October 28, 2009 Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern Dis..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1483
LUCILE M. HORNE; OPHELIA M. HORNE,
Plaintiffs – Appellants,
v.
MAYOR & CITY COUNCIL OF BALTIMORE,
Defendant – Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:07-cv-01110-RDB)
Argued: September 22, 2009 Decided: October 28, 2009
Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United
States District Judge for the Eastern District of Virginia,
sitting by designation.
Affirmed by unpublished per curiam opinion.
John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, JR.,
Baltimore, Maryland, for Appellants. Matthew Wade Nayden, Chief
Solicitor, BALTIMORE CITY SOLICITOR’S OFFICE, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In April 2007, Lucile M. Horne and Ophelia M. Horne (the
“Hornes”) filed a civil action in the District of Maryland
against the Mayor and City Council of Baltimore (the “City”),
contending that the City had contravened the Hornes’ Fifth and
Fourteenth Amendment rights by granting a zoning variance on
neighboring property without adequate notice or just
compensation. By its Opinion and Order of February 27, 2008,
the district court granted the City’s motion to dismiss,
pursuant to Federal Rule of Civil Procedure 12(b)(6), for
failure to state a claim upon which relief can be granted. See
Horne v. Mayor & City Council of Balt., No. 1:07-cv-01110 (D.
Md. Feb. 27, 2008) (the “Opinion”). 1 The Hornes have appealed
the dismissal and, as explained below, we affirm.
I.
A.
For many years the Hornes have owned a townhouse located at
1223 North Eden Street in Baltimore, Maryland. 2 As the end unit
1
The Opinion is found at J.A. 13-24. (Citations herein to
“J.A.__” refer to the contents of the Joint Appendix filed by
the parties in this appeal.)
2
The facts recounted herein are derived from the
allegations made in the Hornes’ complaint, found at J.A. 3-10.
2
in a series of row houses on North Eden Street, their townhouse
is attached on its southern side to the townhouse at 1221 North
Eden Street. On its northern side, the Hornes’ property abuts
the rear of the lot at 1401 East Preston Street (the “Preston
Street property”). Prior to 2002, the Preston Street property
contained a townhouse and a small walkway on the rear portion
thereof (the “setback”), the consequence of a Baltimore zoning
stricture limiting construction to no closer than twenty-five
feet of the rear property line (the “setback requirement”).
In October 2002, the townhouse at the Preston Street
property was firebombed because its residents, the Dawson
family, had opposed the neighborhood’s illegal drug trade. For
nearly three years, the Preston Street property was essentially
vacant, containing only the burned-out shell of the Dawsons’
townhouse. In June 2005, developer James French sought to
transform the ruins of the Dawsons’ townhouse into a three-story
community center, to be named in honor of the Dawson family.
His initial building permit request was denied, however, as he
had not received approval to use the Preston Street property for
a community center or complied with the setback requirement.
Thus, to secure the necessary approvals, French filed an appeal
(“Appeal No. 497-05”) with Baltimore’s Board of Municipal and
Zoning Appeals (the “Board”).
3
The Board scheduled a public hearing to address the issues
in Appeal No. 497-05 for July 12, 2005. A notice listing the
time, date, and location of the public hearing was posted at the
Preston Street property. Although not specifically mentioning
the setback requirement issue, the notice explained that the
public hearing would address “Appeal 497-05 for a permit to
construct a new three-story community center on the[] premises.”
Opinion 3. Prior to the hearing, the Hornes saw the notice
posted at the Preston Street property. The Hornes did not
attend the hearing, however, as they then had no objection to
the construction of the community center.
After the public hearing, the Board granted Appeal No. 497-
05, including the requested variance from the twenty-five-foot
setback requirement (the “setback variance”). Because the
Hornes did not reside in their townhouse at 1223 North Eden
Street, they were not aware that the setback variance had been
granted until nearly a year later, in May 2006, when
construction of the community center had progressed to the point
that it abutted the northern wall of their property.
B.
On April 30, 2007, the Hornes filed their two-count
complaint against the City under the provisions of 42 U.S.C.
§ 1983. In the first count of their complaint, they alleged
that their property interest in the setback requirement had been
4
abridged without due process, in contravention of the Fourteenth
Amendment, when the Board granted the setback variance for the
Preston Street property without sufficient notice. In the
second count of their complaint, the Hornes asserted that, due
to the lack of such notice, the setback variance constituted an
unconstitutional taking under the Fifth Amendment. More
specifically, they alleged in the second count that “[b]y
denying to Plaintiffs due and complete notice of the issues
affecting their property . . . and to the extent that the
Plaintiffs have suffered economic loss relating [thereto] . . .,
the Defendants’ zoning decision constitutes a taking under the
Fifth Amendment . . . for which Plaintiffs have been denied just
compensation.” J.A. 9.
On September 11, 2007, the City moved to dismiss the
entirety of the § 1983 complaint under Rule 12(b)(6), asserting
that the Hornes lacked a constitutionally protected property
interest in the setback requirement and thus failed to state any
claim under the Fifth or Fourteenth Amendment upon which relief
could be granted. By its Opinion of February 27, 2008, the
district court agreed and granted the City’s motion to dismiss.
In so ruling, the court recognized that “to state a claim under
both constitutional provisions, [the Hornes] must allege that
they have a constitutionally protected property interest.”
Opinion 7. The court ruled that the Hornes’ putative property
5
interest was “not a legitimate property interest giving rise to
a § 1983 claim under either the Fifth or Fourteenth
Amendment[].” Id. Specifically, the court concluded that the
Board’s retention of “unfettered discretion to grant or deny the
requested variance” precluded the Hornes’ assertion of any
“constitutionally cognizable property right” in the setback
requirement or any variances therefrom.
Id. at 9. 3
The Hornes have filed a timely notice of appeal, and we
possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
We review de novo a district court’s dismissal of a
complaint under Rule 12(b)(6). See Duckworth v. State Admin.
Bd. of Election Laws, 332 F.3d 769, 772 (4th Cir. 2003). Our
focus in conducting such a review is on the legal sufficiency of
the complaint, Giarratano v. Johnson,
521 F.3d 298, 302 (4th
Cir. 2008), and, in making our review, we must accept as true
3
In the alternative, the Opinion observed that any property
interest in the setback variance would belong only to the owners
of the Preston Street property, in that a person cannot derive a
property interest solely from the effect that neighboring
property has on the value of one’s own property. See Opinion 9-
10. As explained below, the Hornes’ Fifth and Fourteenth
Amendment claims are insufficient because the Board’s broad
discretionary authority undermines their asserted property
interest in the setback requirement. Thus, we need not further
address the district court’s alternate analysis.
6
the complaint’s factual allegations and construe all facts and
reasonable inferences in the light most favorable to the
plaintiff, see Erickson v. Pardus, 551 U.S. 89, 94 (2007);
Venkatraman v. REI Sys., Inc.,
417 F.3d 418, 420 (4th Cir.
2005). Nevertheless, to survive dismissal, the complaint must
contain “enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S.
544, 570 (2007).
III.
The Fourteenth Amendment bars the States and their
instrumentalities from “depriv[ing] any person of life, liberty,
or property, without due process of law.” U.S. Const. amend.
XIV. As the Supreme Court has observed, “[t]he Fourteenth
Amendment’s procedural protection of property is a safeguard of
the security of interests that a person has already acquired in
specific benefits. These interests — property interests — may
take many forms.” Bd. of Regents of State Colls. v. Roth, 408
U.S. 564, 576 (1972).
The Fifth Amendment, pursuant to its Takings Clause,
forbids the taking of private property “for public use without
just compensation.” U.S. Const. amend. V. By virtue of the
Fourteenth Amendment, the Takings Clause applies to state and
local governments, such as Baltimore City. Penn Cent. Transp.
7
Co. v. City of N.Y., 438 U.S. 104, 122 (1978); Ballard Fish &
Oyster Co. v. Glaser Constr. Co.,
424 F.2d 473, 474 (4th Cir.
1970). Under the Fifth Amendment, therefore, the City may not
take an individual’s property, either through governmental
regulation or physical invasion, without just compensation.
Significantly, in order to state a claim under either the
Fifth or the Fourteenth Amendment, the Hornes must allege a
cognizable property interest. “Property interests, of course,
are not created by the Constitution,” but stem instead “from an
independent source such as state law.” Roth, 408 U.S. at 577.
As such, we must assess whether, under either state or local
law, the Hornes can legitimately assert a property interest in
the setback requirement on the Preston Street property. In
conducting this analysis, we are mindful that, to possess a
protected property interest, one “must have more than an
abstract need or desire for it . . . [or] a unilateral
expectation of it,” and “must, instead, have a legitimate claim
of entitlement to it.”
Id.
First, we assess whether the Hornes’ asserted property
right stems from any principle of Maryland law. In its 1941
decision in Chayt v. Maryland Jockey Club of Baltimore City, the
Court of Appeals of Maryland concluded that property owners had
“no vested right in the continuance of [a restriction on
neighboring property].”
18 A.2d 856, 859 (1941). “Since,
8
therefore, appellants acquired no vested right under the
original Zoning Ordinance,” Maryland’s highest court ruled that,
“it follows that the amending ordinance placing nearby
properties in a lower classification . . . deprives appellants
of no legal rights inasmuch as it takes nothing from them that
they have a right to insist upon.” Id. Predicated on this
precedent, the Maryland courts have declined to forestall
changes on one piece of property simply because of its effects
on neighboring properties. See, e.g., Hoffman v. Mayor & City
Council of Balt.,
79 A.2d 367, 370 (1951) (explaining that “[i]f
a residential neighborhood desires protection by a border of
unused property, necessarily it must provide its own property,
not appropriate its neighbors’, for this purpose,” as zoning
restrictions exist “for the protection of the property
restricted and not to give protection to surrounding property”)
(internal quotation marks and citations omitted); see also
England v. Mayor & Council of Rockville,
185 A.2d 378, 380
(1962) (“Restrictions imposed under the police power must be
related to the general welfare and cannot be supported on the
basis of benefit to surrounding property.”).
Second, to complete our analysis we must also assess
whether any provision of local law — here the Zoning Code of
Baltimore City (the “Code”) — grants the Hornes a property
interest in the setback requirement. In conducting this
9
assessment, we must adhere to the “claim of entitlement”
standard that governs challenges to zoning and municipal
decisions. See, e.g., Biser v. Town of Bel Air, 991 F.2d 100,
104 (4th Cir. 1993); Gardner v. Balt. Mayor & City Council,
969
F.2d 63, 68-69 (4th Cir. 1992). Pursuant thereto, if the Board
possesses “‘[a]ny significant discretion’” in deciding whether
to grant the setback variance, the Hornes have “no legitimate
entitlement and, hence, no cognizable property interest.”
Biser, 991 F.2d at 104 (quoting
Gardner, 969 F.2d at 68)
(alteration in original). This “standard focuses on the amount
of discretion accorded the issuing agency by law,” with “a
cognizable property interest exist[ing] ‘only when the
discretion of the issuing agency is so narrowly circumscribed
that approval of a proper application is virtually assured.’”
Gardner, 969 F.2d at 68 (quoting RRI Realty Corp. v. Inc. Vill.
of Southampton,
870 F.2d 911, 918 (2d Cir. 1989)). Thus, it is
only when a zoning board is required by law to act in a specific
way with respect to a particular zoning variance that a person
can assert a cognizable property interest therein. See id.;
accord Scott v. Greenville County,
716 F.2d 1409, 1418 (4th Cir.
1983).
Under the Code, the Board has been accorded broad
discretion to “authorize a yard or setback that is less than
that otherwise required by the applicable regulation.” § 15-
10
203; see § 15-101. As with the zoning provision in our Biser
decision, the Code requires the Board, in making a variance
decision, to determine, inter alia, that the variance will not
“create hazardous traffic conditions,” “otherwise endanger the
public safety,” “be detrimental to or endanger the public
health, security, general welfare, or morals,” or “in any way be
contrary to the public interest;” the Board must also determine
that “the variance is in harmony with the purpose and intent of
th[e] article.” § 15-219; see Biser, 991 F.2d at 104 (observing
that “[i]t is difficult to imagine a more flexible standard”).
To be sure, one of the required determinations is that “the
variance will not[] . . . be injurious to the use and enjoyment
of other property in the immediate vicinity[] or . . .
substantially diminish and impair property values in the
neighborhood.” § 15-219. The fact that specific factors guide
the Board’s disposition of a variance request, however, in no
way nullifies the reality that the Board possesses the
discretion to make such determinations, and to either grant or
deny a requested variance. In other words, contrary to the
Hornes’ assertion, the Board’s discretion to grant a setback
variance exists independent of a determination, by way of
example, that a particular variance will not adversely affect
neighboring properties or will be in harmony with the purposes
of the Code. See § 15-203.
11
Because the Code grants the Board broad discretion in
deciding whether to grant a setback variance, the Hornes
possessed only a unilateral expectation in that regard. See
Biser, 991 F.2d at 104. Hence, the Hornes had “‘no protectable
property interest’” in the setback variance.
Gardner, 969 F.2d
at 69 (quoting United Land Corp. v. Clarke,
613 F.2d 497, 501
(4th Cir. 1980)). Since the Hornes had no property interest in
the setback variance, they also had no property interest in a
setback requirement from which a variance could, in the Board’s
discretion, be granted. 4 In short, the Board’s broad discretion
obviates any claim by the Hornes of a constitutionally
cognizable property interest arising under either the Fifth or
Fourteenth Amendment. 5 As such, the district court correctly
4
Because the Board had such discretion to act with respect
to the setback variance, it is immaterial whether the asserted
property interest is characterized as, inter alia, in the
setback requirement, the setback variance, or the Board’s
decision regarding the variance.
5
The Hornes also assert a property interest in the process
by which the Board makes its zoning decisions. But, “[p]rocess
is not an end in itself. Its constitutional purpose is to
protect a substantive interest to which the individual has a
legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S.
238, 250 (1983). Thus, absent an underlying property interest,
the Hornes possess no procedural due process rights in the
zoning decision proceedings. See Mallette v. Arlington County
Employees’ Supplemental Ret. Sys. II,
91 F.3d 630, 635 (4th Cir.
1996) (explaining that “the statute at issue must create an
entitlement to the benefit before procedural due process rights
are triggered”) (internal quotation marks omitted).
12
dismissed the complaint in its entirety for failure to state a
claim upon which relief can be granted.
IV.
Pursuant to the foregoing, we affirm the district court’s
dismissal of the complaint.
AFFIRMED
13
