HAMILTON, Senior Circuit Judge:
Jane Huggins, trading as SADISCO of Maryland (SADISCO) brought the present civil action against Prince George's County, Maryland (the County) and five County officials (the Officials) after the County shut down the salvage automobile wholesaling business operated by SADISCO on a parcel of land that SADISCO owned within the County. SADISCO's complaint alleged one count under federal law and four counts under Maryland's common law. The district court dismissed certain counts pursuant to Federal Rule of Civil Procedure 12(b)(6) and granted summary judgment in favor of the County and the Officials with respect to the remaining counts. This timely appeal followed. We affirm the judgment below in toto.
In November 2001, SADISCO purchased a 99.7 acre parcel of land located in the County, with the intention of operating a salvage automobile wholesaling business on such parcel, which use is a permitted use within the industrial zones in which the parcel is located.
Of relevance to the issues on appeal, the Property directly abuts a portion of the southeastern fence line of Andrews Air Force Base. Also of relevance to the issues on appeal is the fact that Andrews Air Force Base is a designated Superfund site. A Superfund site is a site which the United States Environmental Protection Agency has added to its Superfund list, also known as the National Priorities List, pursuant to its authority under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 to 9675. United States v. General Electric Co., 670 F.3d 377, 381 n. 3 (1st Cir.2012). "`Superfund' sites are those which require priority remedial attention because of the presence, or suspected presence, of a dangerous accumulation of hazardous wastes." United States v. Cannons Eng'g Corp., 899 F.2d 79, 83 (1st Cir.1990).
The real estate purchase contract pursuant to which SADISCO purchased the Property reflects SADISCO's knowledge of the Property's environmental condition in relation to Andrews Air Force Base. Specifically, under the bolded and underlined heading "
(J.A. 2562).
On December 20, 2001, SADISCO applied to the County for a use and occupancy permit in order to operate a salvage automobile wholesaling business on the Property. Approximately three months later, SADISCO applied for a permit in order to temporarily house a construction trailer on the Property.
The record is undisputed that on June 12, 2002, the County issued SADISCO a permit to house a construction trailer on the Property. However, the parties hotly contest whether the County actually issued SADISCO a use and occupancy permit in response to its December 2001 application for one. Nonetheless, the record is undisputed that by the end of October 2002, the County had legitimately revoked any and all outstanding permits that it had issued to SADISCO with respect to the Property based upon SADISCO's violation of numerous County Code provisions. For example, on October 16, 2002, the County cited SADISCO for performing grading work on approximately twenty acres of the Property without obtaining the required grading permit. For a second example, on October 30, 2002, the County cited SADISCO for impermissibly operating its salvage automobile wholesaling business out of the construction trailer.
Undaunted, SADISCO continued to operate its salvage automobile wholesaling
On September 3, 2003, SADISCO and the County entered into two consent orders, one for each petition for injunctive relief. The consent order pertaining to SADISCO's illegal grading activities (the Grading Consent Order) provided that within sixty days SADISCO would, inter alia, "[o]btain the required grading permit and approved erosion and sediment control plan." (J.A. 1867). The consent order pertaining to SADISCO's zoning violations (the Zoning Consent Order) provided that within ninety days SADISCO would: (1) "Vacate the premises until a valid use and occupancy permit is obtained"; (2) "Cease use of the premises until a valid use and occupancy permit is obtained"; and (3) "Obtain a building permit for the existing trailers or remove them from the premises" (J.A. 1864). The Zoning Consent Order further provided that if SADISCO did not take these corrective actions within ninety days, the County
(J.A. 1864).
On appeal, SADISCO makes much of the fact that the day before it signed the consent orders, its attorney Lawrence Taub sent a letter to Associate County Attorney Anne Magner, stating:
(J.A. 1852) (letter dated September 2, 2003). The record is undisputed that the letter described the standard practice of the County to work with property owners to resolve County Code violations and to forbear from enforcement as long as the property owner was making good faith efforts to cure its violations. Associate County Attorney Anne Magner never responded to the letter. According to SADISCO, this letter memorialized an oral contract between SADISCO and the County that predates the consent orders.
The County then granted SADISCO a series of requested extensions of the deadline
Moreover, based upon requests by SADISCO to allow it more time to comply with the requirements of the Zoning Consent Order, the County permitted SADISCO to operate its salvage automobile wholesaling business on the Property until the middle of March 2004. However, on March 18, 2004, the County notified SADISCO in writing that it intended to carry out enforcement of the Zoning Consent Order on or after March 28, 2004.
At an April 27, 2004 meeting of various County officials, the decision was made to enforce the Zoning Consent Order. The sign-in sheet in the record reflects that such officials included, among others: (1) Cynthia Barry, Zoning Inspector Supervisor for the County's Department of Environmental Resources (County Zoning Inspector Supervisor Barry); (2) Jeffrey Dehan, Code Enforcement Officer in the Community Standards Division of the Site Development Inspection Section of the County's Department of Environmental Resources (County Code Enforcement Officer Dehan); and (3) Anne Williams, Environmental Crimes Specialist for the Division of Environmental Health of the County's Health Department (County Environmental Crimes Specialist Williams). Of relevance to the issues on appeal, prior to this meeting, the County knew that groundwater at Andrews Air Force base had long been contaminated with chlorobenzene and other volatile organic chemicals. The County also knew that preliminary studies had found low concentrations of chlorobenzene within ground water seeps along the fence line between Andrews Air Force Base and the Property and at higher concentration levels on property not owned by SADISCO but nonetheless adjacent to the Property and next to the fence line at Andrews Air Force Base. Furthermore, the County knew that it would not be able to learn the exact extent of the groundwater contamination in regard to the Property until issuance of an environmental report, based upon sampling data, that was expected to be issued later in the year (2004).
A written document, entitled "Sadisco Property (Foxley Road) Action Items," detailed how the County intended to proceed, as determined at the April 27, 2004 meeting. The County's Department of Environmental Resources would actually padlock the gate SADISCO had installed across the Foxley Road right-of-way on the Property. Until SADISCO obtained the necessary County permits (e.g., for grading and use and occupancy), SADISCO would only be allowed to access the Property to remove cars and perform other tasks on the Property that would bring SADISCO into compliance. The County padlocked the Property the next day on April 28, 2004.
Nearly three years later, on March 30, 2007, SADISCO filed the present civil action in the United States District Court for the District of Maryland against the County and the Officials, individually and in their respective official capacities. The Officials consist of: (1) County Zoning Inspector Supervisor Barry; (2) Erv Beckert, District Engineer in the County's Department of Public Works and Transportation (County District Engineer Beckert); (3) County Code Enforcement Officer Dehan; (4) Thomas Matzen, Associate Director of the Community Standards Division of the County's Department of Environmental Resources (County Associate
The complaint alleged five counts as follows. Pursuant to 42 U.S.C. § 1983, Count 1 alleged the County and the Officials (collectively the Defendants) violated SADISCO's substantive due process rights under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Count 2 alleged the Defendants violated SADISCO's substantive due process rights under the Maryland Declaration of Rights. Count 3 alleged breach of contract under Maryland common law against the County alone. Count 4 alleged tortious interference with economic relations under Maryland common law against the Defendants. Count 5 alleged negligent misrepresentation under Maryland common law against the Defendants.
In February 2008, the district court dismissed Counts 2, 4, and 5 on the basis that SADISCO had failed to comply with, and was not entitled to waiver of, the pre-suit notice requirements of the Local Government Tort Claims Act (the LGTCA), Md. Code Ann., Cts. & Jud. Proc. § 5-304(b). The district court dismissed Count 3 as time barred to the extent SADISCO alleged breach of a written contract. The district court allowed discovery to proceed on Count 3 to the extent such count alleged breach of two oral contracts. The district court also allowed discovery to proceed against the Officials with respect to Count 1, but stayed discovery against the County for any potential liability under Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See id. at 690, 98 S.Ct. 2018 (limiting liability of local governmental units not part of the state for Eleventh Amendment purposes for constitutionally offensive actions of its employees to actions taken by such employees in furtherance of some municipal policy or custom); Vathekan v. Prince George's County, Md., 154 F.3d 173, 180 (4th Cir.1998) (observing that Monell "established that municipalities and counties could be liable for constitutional deprivations under § 1983").
On February 9, 2009, the Defendants moved for summary judgment on the remaining counts, with the Officials in their individual capacities each seeking to be dismissed on the basis of qualified immunity. On July 24, 2009, the district court ruled as follows. The district court dismissed the Officials in their individual capacities from the action on the basis of qualified immunity. Because SADISCO's naming of the Officials as defendants in their official capacities served as suits against the County, the County remained as the sole defendant with respect to Count 1.
On May 3, 2010, the County again moved for summary judgment with respect to Count 1, which motion the district court granted on November 9, 2010. Huggins v. Prince George's County, Md., 750 F.Supp.2d 549 (D.Md.2010). This timely appeal followed.
We first address SADISCO's challenge to the district court's grant of summary judgment in favor of the County with respect to the portions of Count 3 alleging breach of two oral contracts that SADISCO alleges existed between it and the County. SADISCO contends that such oral contracts arose from two identical promises made by the County, approximately nine months apart, to forbear shutting down SADISCO's salvage automobile wholesaling business on the Property, as long as SADISCO diligently pursued issuance of the necessary permits. According to SADISCO, the first promise occurred on November 21, 2002, during a meeting between SADISCO representatives on the one hand and County Zoning Inspector Supervisor Barry and County Code Enforcement Officer Dehan on the other. SADISCO contends the second promise occurred on September 2, 2003, one day before the County and SADISCO entered into the consent orders, when the County, through Associate County Attorney Anne Magner, made the same promise.
When the district court asked SADISCO at the summary judgment hearing regarding the remaining portion of Count 3 "what... the county [was to] get out of that so-called agreement?," referring to the alleged second promise, SADISCO responded:
(J.A. 426). SADISCO also represented at the same summary judgment hearing that the alleged oral contracts had no fixed terms. SADISCO alleges the County breached the alleged oral contracts when it padlocked SADISCO's business on April 28, 2004. On appeal, as it did below, SADISCO points to various portions of deposition testimony, including deposition testimony by Associate County Attorney Anne Magner, as its primary evidence in support of the alleged oral contracts.
Below, after considering the parties' written arguments in the summary judgment motion papers and the parties' oral arguments at the summary judgment hearing, the district court granted summary judgment in favor of the County on the ground that no consideration in favor of the County existed to support a valid oral contract which predated the Consent Orders.
We agree with the district court. First, because the first-in-time of the two alleged oral contracts (November 2002) predates the County's filing of its two enforcement actions against SADISCO (May 2003), SADISCO's agreement to enter into the consent orders to settle the enforcement actions cannot serve as consideration for such alleged oral contract.
Although the second-in-time of the two alleged oral contracts (September 2003) post dates the County's filing of its two enforcement actions against SADISCO (May 2003), such alleged oral contract suffers from a different, but nonetheless
Maryland substantive law, which the parties agree applies to analyze SADISCO's breach of oral contracts claim, is clear that the parol evidence rule bars admission of SADISCO's evidence of a prior agreement to vary or contradict the terms of the written Consent Orders in an effort to establish that it gave consideration for the second-in-time alleged oral contract. Calomiris v. Woods, 353 Md. 425, 727 A.2d 358, 361 (1999) ("Maryland law generally requires giving legal effect to the clear terms of a contract and bars the admission of prior or contemporaneous agreements or negotiations to vary or contradict a written contractual term."); Higgins v. Barnes, 310 Md. 532, 530 A.2d 724, 726 (1987) (in absence of fraud, duress, or mutual mistake, parol evidence is not admissible to show the intention of the parties or to vary, alter, or contradict the terms of a contract that is complete and unambiguous).
Despite the fact that SADISCO's claims of open-ended deadlines directly contradict the unambiguous sixty-day and ninety-day deadlines in the Consent Orders, SADISCO argues that the parol evidence rule does not apply because neither Consent Order contained an integration clause. SADISCO's argument is without merit. Under Maryland law, although an integration clause is indicative of the intention of the parties to finalize their complete understanding in a written contract, the existence of such a clause in a contract is not a prerequisite to application of the parol evidence rule. See, e.g., Kasten Constr. Co. v. Rod Enterprises, Inc., 268 Md. 318, 301 A.2d 12, 17 (1973) (Maryland follows objective test for interpreting written contracts; where contract is plain and unambiguous and in absence of fraud, duress, or mutual mistake, court cannot look beyond four corners of the written contract to evidence of prior statements or agreements, especially when contract contains integration clause).
Here, the bottom line is that, pursuant to the written Zoning Consent Order, which consent order post dates the second alleged oral contract, SADISCO plainly and unambiguously agreed that if it "d[id] not take the corrective actions ordered," in the Zoning Consent Order within ninety days of September 3, 1993, the County "shall have the authority to take all action
We next address SADISCO's challenge to the district court's grant of summary judgment in favor of the Defendants with respect to Count 1, its substantive due process claim under the Due Process Clause of the Fourteenth Amendment to the United States Constitution. SADISCO's challenge is without merit.
The Due Process Clause of the Fourteenth Amendment states, in relevant part, "No State shall ... deprive any person of... property, without due process of law...." U.S. Const. amend. XIV. In County of Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998), the Supreme Court explained that "the core of the concept" of due process is "protection against arbitrary action," id. at 845, 118 S.Ct. 1708, and that "only the most egregious official conduct can be said to be arbitrary in the constitutional sense," id. at 846, 118 S.Ct. 1708 (internal quotation marks omitted). The Court further explained, "the substantive component of the Due Process Clause is violated by executive action only when it can properly be characterized as arbitrary, or conscience shocking, in a constitutional sense." Id. at 847, 118 S.Ct. 1708 (internal quotation marks omitted). "[C]onduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level." Id. at 849, 118 S.Ct. 1708.
SADISCO premises its substantive due process claim on the following two property interests: "(1) its right to use the [P]roperty under permits issued by the County and (2) the County's express agreement to allow [it] to continue operating." (SADISCO's Opening Brief at 29). Notably, SADISCO does not contend that the decision to shut down its salvage automobile wholesaling business on the Property was motivated by any intent on the part of the Defendants to injure SADISCO. Rather, according to SADISCO, the Defendants violated its right to substantive due process in regard to these asserted property interests by shutting down its salvage automobile wholesaling business on the Property based upon the Officials' respective individual fears as well as their collective fear that the County would incur liability for expensive environmental clean-up costs in connection with the Foxley Road right-of-way.
The district court disposed of this count with respect to the County on the basis that SADISCO had not forecast sufficient evidence that it had a property interest protected by the Fourteenth Amendment. We agree with the district court on this point. First, assuming arguendo that a
SADISCO's asserted property right to operate its business on the Property pursuant to permits issued by the County does not work either. Critically, the record is undisputed that by the end of October 2002, the County had legitimately revoked any and all outstanding permits that it had issued to SADISCO with respect to the Property because of SADISCO's violation of numerous County Code provisions, so that by the time the County shut down SADISCO's salvage automobile wholesaling business on April 28, 2004, SADISCO no longer held any valid permits.
SADISCO addresses the revocation issue by citing A Helping Hand, LLC v. Baltimore County, Md., 515 F.3d 356 (4th Cir.2008), for the proposition that "once a permit is issued, even one day of noticeable use of a permit creates a vested right." (SADISCO's Opening Br. at 34 n. 6). A recitation of the relevant facts of A Helping Hand, LLC and the relevant law makes clear why this proposition is irrelevant to SADISCO's substantive due process claim.
In A Helping Hand, LLC, a methadone treatment clinic (the Clinic) obtained a valid permit to operate on a particular parcel of land in Baltimore County, Maryland (the Slade Avenue location), as required by the applicable county zoning ordinance, and had exercised the permit on the land such that the surrounding neighborhood was advised that the Slade Avenue location was being devoted to use as a methadone clinic. Id. at 371. One day after the Clinic obtained the permit, a bill was signed into law changing the applicable Baltimore County zoning ordinance to add additional requirements for state-licensed medical clinics, including drug abuse treatment centers, to operate in Baltimore County. Id. at 360. The new zoning law became effective the day of enactment. Id. Soon thereafter, Baltimore County moved to enforce the new zoning law against the Clinic. Id. at 360-61. The Clinic ultimately sued Baltimore County in federal court for, inter alia, violation of its substantive due process rights under the Due Process Clause of the Fourteenth Amendment based upon its property interest in its permit to operate its methadone clinic at the Slade Avenue location. Id. at 370. The jury returned a verdict in favor of the Clinic on this claim, and Baltimore County appealed. Id. at 361.
On appeal, Baltimore County challenged the district court's jury instruction that the Clinic had a vested property interest in its continued operation at the Slade Avenue location. We rejected this challenge on the basis that the district court did not err in so instructing the jury. Id. at 372. In this regard, we first observed that state law governed the issue of whether the Clinic had a cognizable property interest that could trigger federal due process guarantees. Id. at 370. Next, we set forth requirements under Maryland law for the Clinic to have a vested property right in continued operation at the Slade Avenue location:
Id. at 370-71 (quoting Powell v. Calvert County, 368 Md. 400, 795 A.2d 96, 102 (2002) (quoting Richmond Corp. v. Bd. of County Comm'rs for Prince George's County, 254 Md. 244, 255 A.2d 398, 404 (1969))). After reviewing the evidence, we held the Clinic had met both of these requirements.
We next rejected Baltimore County's argument that "the district court erred in instructing the jury that the Clinic had a vested property interest in its continued operation at the Slade Avenue [location] because `under Maryland law, a person has no vested rights in a permit that is the subject of continuing litigation.'" Id. at 371. Although we recognized that Baltimore County had accurately quoted this principle, we held that such principle was irrelevant to the case because "neither the issuance of the permit nor the ordinance pursuant to which it was issued [wa]s the subject of ongoing litigation." Id. Rather, we observed, the litigation concerned Baltimore County's attempt to change the zoning law to preclude the Clinic from operating. Id. Thus, we upheld the instruction. Id. at 372.
The obvious and material distinction between the present case and A Helping Hand, LLC is that the permit held by the Clinic was still in existence at the time of the challenged action. This, of course, is not so with respect to SADISCO's permits. Thus, A Helping Hand, LLC does not provide any sort of a helping hand to SADISCO.
Finally, to the extent SADISCO has any residual interest in the revoked permits that could possibly serve as a property interest for its substantive due process claim, a proposition for which we are gravely doubtful, the claim nonetheless fails because it does not approach the conscience shocking threshold for a substantive due process violation by executive action. Here, there is absolutely no evidence that any of the Defendants deliberately intended to injure SADISCO. Indeed, the record bespeaks the opposite in that the Defendants worked with SADISCO for over two years in an effort to help it obtain all of the proper permits and operate in accordance with all County laws. Moreover, the desire to avoid the crushing financial liability that comes with "responsible party" status under CERCLA if SADISCO were permitted to continue its activities on the Property is an understandable governmental concern. Although SADISCO attempts to make this case all about the Defendants' desire to avoid CERCLA liability, the undisputed evidence in the record shows a mixed motive situation with the fact that SADISCO had never obtained all of the proper permits playing more than a minimal role in the decision to shut down SADISCO's salvage automobile wholesaling business on the Property.
Because SADISCO cannot establish a substantive due process violation, the district court properly granted summary judgment in favor of the County with respect to Count 1. Moreover, SADISCO's failure to establish a constitutional violation at all under the Due Process Clause of the Fourteenth Amendment entitled the Officials to qualified immunity with respect to Count 1. Brockington v. Boykins, 637 F.3d 503, 506 (4th Cir.2011). In sum, we affirm the judgment below with respect to Count 1.
Lastly, we address SADISCO's challenge to the district court's dismissal
By its terms, the LGTCA prohibits "an action for unliquidated damages ... against a local government or its employees unless" the plaintiff provides notice of the claim "within 180 days after the injury." Md.Code Ann., Cts. & Jud. Proc. § 5-304(b)(1). For claims arising in Prince George's County, the LGTCA provides that the notice: (1) "shall be given in person or by certified mail ... by the claimant or the representative of the claimant," id. § 5-304(c)(1), "to the county solicitor or county attorney," id. § 5-304(c)(3)(iii); and (2) "shall be in writing and shall state the time, place, and cause of the injury," id. § 5-304(b)(2).
Although Maryland courts have recognized a substantial compliance exception to the LGTCA, the exception is narrow:
Hansen v. City of Laurel, 193 Md.App. 80, 996 A.2d 882, 891 (2010) (alteration, citation, and internal quotation marks omitted). A plaintiff must not only demonstrate substantial compliance as to the content of the notice within the 180-day period, but also as to the statutory recipient. Wilbon v. Hunsicker, 172 Md.App. 181, 913 A.2d 678, 689-92 (2006).
In the event a plaintiff fails to strictly or at least substantially comply with the LGTCA's notice requirements, his tort case seeking unliquidated damages against a local government in Maryland can still proceed if the plaintiff can show good cause exists to waive such requirements and the defendant cannot affirmatively show that its defense has been prejudiced by lack of required notice. Md. Code Ann., Cts. & Jud. Proc. § 5-304(d). A showing of good cause is mandatory; lack of prejudice to the defendant alone does not justify waiver of the LGTCA's notice requirements. Hargrove v. Mayor and City Council of Baltimore, 146 Md.App. 457, 807 A.2d 149, 151 (2002) "Good cause exists when a claimant prosecutes a claim with that degree of diligence that an ordinarily prudent person would have exercised under the same or similar circumstances." Wilbon, 913 A.2d at 693 (internal quotation marks omitted). A court's determination that good cause for failure to comply with the LGTCA's notice requirements has or has not been shown is reviewed for abuse of discretion. Hargrove, 807 A.2d at 152.
Here, SADISCO does not assert that it strictly complied with the LGTCA's notice requirements. Rather, it asserts that its lack of strict compliance should be excused because it substantially complied with the LGTCA's notice requirements or, alternatively, because it has shown good cause for its lack of compliance.
After careful review of the record, the written briefs of the parties, the relevant legal precedent, and after hearing oral argument in this appeal, we hold the district court correctly rejected both of these arguments. Accordingly, we affirm the district court's dismissal of Counts 2, 4, and 5 on the basis that SADISCO failed to comply
In conclusion, we affirm the judgment below in toto.
AFFIRMED