PETER J. MESSITTE, District Judge.
Rockville Cars, LLC and Priority 1 Automotive Group, Inc. (collectively Plaintiffs) have sued the City of Rockville, Maryland and Robert L. Purkey Jr. in his personal capacity (collectively Defendants). Plaintiffs, who operate a BMW automobile dealership in Rockville, contend that Defendants deprived them of their procedural due process rights under the Fourteenth Amendment to the U.S. Constitution, made actionable pursuant to 42 U.S.C. § 1983. Defendants did so, say Plaintiffs, when they issued a "Suspension of Building Permit — Stop Work Order," which halted Plaintiffs' construction of a new BMW show room.
After Defendants filed a Motion to Dismiss the Amended Complaint, or, in the Alternative, Motion for Summary Judgment, ECF No. 23,
Having considered the parties' filings and oral argument, the Court will
Plaintiffs sell new and used BMW automobiles. Am. Compl. ¶ 6, ECF No. 21. They possess a leasehold interest in real property bearing the address 1350 Rockville Pike, Rockville, Maryland 20852 (the Property). Id. The Property is owned in fact by a third party, Robin Tang. Id. ¶ 17. Plaintiffs acquired their lease of the Property for the purpose of developing a show room for the luxury BMW cars they sell. Id. ¶ 7. The Property had previously been used as a restaurant and small furniture retail store. Id. ¶ 8.
In pursuit of their intention to develop the show room, Plaintiffs were required to submit the following: (1) a "Site Plan Application" to the City of Rockville's Department of Community Planning and Development Services (City Planner), in order to change the commercial use of the building on the property from "split retail/restaurant" to "automotive sales/retail" and (2) a Building Permit Application to the City of Rockville Inspection Services Division in order to commence construction on the new building. See id. ¶ 12, 14.
On October 15, 2012, Plaintiffs submitted their Site Plan Application to the City Planner. Defs'. Mot. to Dismiss, Exhibit F1, ECF No. 23-F1. The Site Plan Application represented that "[t]he existing building is going to be gutted and renovated but not expanded" and that "[t]he proposed automotive sales (retail) use will replace the vacated, approved restaurant use within the existing building." Id. The Site Plan Application also stated that the owner of the Property was Robin Tang. Id. Attached to the Site Plan Application were building elevation drawings for the "building renovation." Id. On March 21, 2013, the City of Rockville, subject to conditions,
Meanwhile, on February 28, 2013, Plaintiffs submitted a Building Permit Application to Rockville's Inspection Services Division. Defs'. Mot. to Dismiss, Exhibit D, ECF No. 23-D. The Project Description in the Application stated: "The Project is a renovation of an existing retail and restaurant building. The existing building consists of two tenant spaces which will be demolished and combined into a space for auto sales and associated offices." Id. Notably, the Building Permit Application listed "Priority One Automotive," rather than Robin Tang, as the Property owner.
Construction on the site began soon thereafter, and in July 2013, the building on the Property was razed, except for the cement slab underlying the structure. Am. Compl. ¶ 14. That same month, Defendants received a letter from Property owner, Robin Tang, stating that: "I recently learned that BMW has caused the existing structure on the Premises to be substantially demolished. The demolition of the existing structure was undertaken without my knowledge or approval. I have not approved Tenant's Work presently in progress at the Premises." Defs'. Mot. to Dismiss, Exhibit C, ECF No. 23-C. Tang also stated, "Please be advised that until further notice I am withdrawing my consent for BMW or its agents to apply for permits in connection with the Premises." Id.
On July 18, 2013, Chief of Planning for the City of Rockville, R. James Wasilak, met with Plaintiffs and their lawyer, Stuart R. Barr, Esquire,
The following day, July 19, 2013, Robert L. Purkey, Jr., Acting Chief of Inspection Services for Defendant City of Rockville (and an individual Defendant in this case), issued a "Suspension of Building Permit — Stop Work Order" (Suspension Letter). Am. Compl. ¶ 15. In the Suspension Letter, Purkey stated that Property owner Robin Tang had advised the City that Plaintiffs did not have authority to submit the Building Permit Application. Defs'. Mot. to Dismiss, Exhibit A, ECF No. 23-A. Purkey's Suspension Letter also said that "[i]n addition to lacking the Property owner's authority, the scope of work, as submitted for the Building Permit is not in compliance with minor site plan amendment STP2013-00143 . . ." id, indicating that the Building Permit was being suspended pursuant to City Code Chapter 5, Article 5, Section 105.6(5).
The Suspension Letter also indicated that the Building Permit would remain suspended until the Property owner, i.e. Robin Tang, authorized all construction as submitted in obtaining building permit BLD2013-18229, and further advised that "[a] new site plan application must be submitted to, and approved by the City of Rockville." Id. The Suspension Letter went on to indicate that "[a] Notice of Violation outlining the specifics of the inconsistences will be issued to Priority One Automotive separately." Id. According to Plaintiffs, they never received a separate Notice of Violation. See Plfs.' Mot. for Partial Summary Judgment, 8.
At all relevant times in this case, disputed administrative actions by the City of Rockville were appealable to an administrative board.
Several weeks later, on or about October 9, 2013, Property owner Tang authorized Plaintiffs' proposed construction at the Property site. Am. Compl. ¶ 20.
The City did not, however, immediately lift the Suspension order. On December 23, 2013, Wasilak wrote a letter to Attorney Barr explaining that the continued suspension of the Building Permit was due to the fact that "the prior building was razed to the ground and its structural elements, including the walls and roof, were removed." Id. ¶ 21. According to Wasilak, the demolition of the building required a new Site Plan to bring the building in conformity with current zoning laws.
Even so, Plaintiffs submitted a new Site Plan Application (STP2014-00205), and on May 16, 2014, the Plan submitted by Plaintiffs was approved, subject to conditions. Id. ¶ 23. In approving the new Site Plan Application, the City of Rockville provided additional detail as to why the previous Site Plan STP2013-00143 had been suspended. Id. Wasilak told Plaintiffs that "[a]pproval allows the applicant to construct a new freestanding building, replacing the former building on the site that was razed/demolished to its foundational slab. Due to the razing of the building, approval of a Level 1 site plan was required to allow for reconstruction, which was not included in approved Minor Site Plan STP2013-00143." Id. Following approval of the new Site Plan Application, the suspension was in effect lifted and construction under the Building Permit resumed. See Defs.' Mot. to Dismiss, 16-17.
Rockville Cars, LLC, later joined by Priority 1 Automotive Group, Inc., thereafter filed their original and Amended Complaints in this Court. In the Amended Complaint (ECF No. 21), Plaintiffs assert that they expended considerable amounts of money in rent and costs associated with the Property during the course of Defendants' so-called "suspension." Am. Compl. ¶ 25-26. Plaintiffs submit that the Suspension Letter was not a suspension at all, but rather a revocation or termination of the original July 2013 Building Permit. Id. ¶ 27 Accordingly, they have fashioned a violation of due process claim under the Fourteenth Amendment to recover damages. Id. ¶ 28-30.
Federal Rule of Civil Procedure 12(b)(6) governs dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "[T]he purpose of Rule 12(b)(6) is to test the sufficiency of a complaint and not to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and quotation marks omitted). "[I]n evaluating a Rule 12(b)(6) motion to dismiss, a court accepts all well-pled facts as true and construes these facts in the light most favorable to the plaintiff in weighing the legal sufficiency of the complaint." Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). The court will also "draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor. . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). But "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement fail to constitute well-pled facts. . . ." Nemet Chevrolet, 591 F.3d at 255. "[A] complaint must contain `sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)) (quotation marks omitted). "Facial plausibility is established once the factual content of a complaint `allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Id. at 256 (quoting Iqbal, 129 S. Ct. at 1949). "[T]he complaint's factual allegations must produce an inference of liability strong enough to nudge the plaintiff's claims `across the line from conceivable to plausible.'" Id. (quoting Iqbal, 129 S. Ct. at 1952).
In order to succeed on a procedural due process claim,
"It is well-settled that the Fourteenth Amendment itself does not create property interests. `Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.'" Tri County Paving, Inc., 281 F.3d at 436 (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972)). Turning to Maryland law, then, a "vested right [can] only result when a lawful [building] permit was obtained and the owner, in good faith, has proceeded with such construction under it." Rockville Fuel & Feed Co. v. Gaithersburg, 266 Md. 117, 127, 291 A.2d 672, 677 (1972). Accordingly, a property right only vests upon the issuance of a lawful and properly-issued building permit. See Relay Imp. Ass'n v. Sycamore Realty Co., 105 Md.App. 701, 725 (1995) ("In Maryland, our strict version of the vested rights rule . . . provides, in effect, that a landowner may rely on nothing other than a properly-issued permit."). In Baiza v. City of Coll. Park, 192 Md.App. 321, 334 (2010), the Court of Special Appeals of Maryland held that where a city issued a permit in error because of an applicant's failure to comply with a city ordinance, the applicant never had a lawfully issued building permit, and accordingly never had a vested right. See also Marzullo v. Kahl, 366 Md. 158, 193 (2001) (holding that where a permit was improperly issued, it was not a lawful permit, and permittee was not entitled to a vested right); see also KTK Min. of Virginia, LLC v. City of Selma, Ala., 984 F.Supp.2d 1209, 12226 n.11 (S.D. Ala. 2013) ("[W]here a building permit is issued in violation of [a] zoning ordinance, it is invalid, and the permittee acquires no vested rights thereunder and this although the permittee has incurred expense in connection therewith and in reliance thereon.").
Here, by reason of the misrepresentations in the Site Plan Application and the Building Permit Application, Plaintiffs never obtained a lawful building permit and thus never acquired a vested right. In the Site Plan Application, they represented that "[t]he existing building [was] going to be gutted and renovated but not expanded" and that "[t]he proposed automotive sales (retail) use [would] replace the vacated, approved restaurant use within the existing building." But the Site Plan Application made no mention of demolishing or razing the existing building; it explicitly held the project out as a mere renovation. Plaintiffs' failure to disclose the demolition was without question a material omission that could have substantially altered the City Planner's assessment of the Site Plan Application, and could as well have diverted its attention from the applicability of the City of Rockville's "build to" requirement.
To repeat: the Building Permit Application misrepresented that Priority 1 Automotive, rather than Robin Tang, was the owner of the Property. This statement, for whatever reason, quite simply was not true. Yet the certification that Plaintiffs made in the Application expressly affirmed that they had the authority to submit the Building Permit Application and that the application they were submitting was correct. In consequence, the Building Permit, just like the (Minor) Site Plan Amendment, was not properly-issued. Furthermore, the Building Permit expressly provided that the permit was "void if [a] zoning ordinance is violated." In light of the demolition, the "build-to" requirement of the ordinance most certainly would have been violated once Plaintiffs demolished the old building and undertook construction on the new building they had in mind.
Because Plaintiffs did not receive a lawful building permit, they did not have a vested property interest
The inquiry could very well end here. See Greenspring Racquet Club, Inc. v. Baltimore Cty., Maryland, 232 F.3d 887, *7 (4th Cir. 2000) ("If no protected property interest exists, there is no need to consider whether any alleged deprivation of that interest was effected with `due process.'"). Accord Bell-Zuccarelli v. City of Gaithersburg, No. CIV. PJM 14-1306, 2015 WL 1517359, at *4 (D. Md. Mar. 30, 2015). However, in order to tie down loose ends, the Court will consider the second requirement for a valid procedural due process claim.
Assuming Plaintiffs had a vested property interest in the approved Building Permit, Defendants did not deprive them of that interest. The suspension of the Building Permit was not a "de facto termination" of the Permit. Both in name and function, it was a suspension, nothing more and nothing less. Cf. Logan v. Zimmerman Brush Co., 455 U.S. 422, 433 (1982) (noting that a hearing is "required before the owner is finally deprived of a protected property interest") (emphasis supplied).The Suspension Notice stated that, "[t]he suspension may be lifted once the above noted items have been submitted and verified." Indeed, once Plaintiffs obtained Property owner Tang's authorization and submitted a new Site Plan, they were allowed to complete construction under the same Building Permit. Because this was a routine, temporary suspension of construction which could resume when the misrepresentations were corrected, Plaintiffs were not deprived of a protected property interest.
In any event, Plaintiffs' assertion that "there are no sections of the Rockville City Code that allowed the Defendants to revoke the approval of the building permit" is simply incorrect. The Suspension Letter fully complied with Ordinance 14-12, Section 105.6 of the Code because it was in writing and stated the reasons for the suspension.
Accordingly, even if Plaintiffs are presumed to have had a vested property right, Plaintiffs were not unduly deprived of it.
Once again, the inquiry could end at this point. See Greenspring 232 F.3d 887, *7 (4th Cir. 2000) ("If no protected property interest exists, there is no need to consider whether any alleged deprivation of that interest was effected with `due process.'"). Accord Bell-Zuccarelli v. City of Gaithersburg, No. CIV. PJM 14-1306, 2015 WL 1517359, at *6 (D. Md. Mar. 30, 2015). See also Wilkinson v. Austin, 545 U.S. 209, 221, 125 S.Ct. 2384, 2393, 162 L. Ed. 2d 174 (2005) ("We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest."). However, so there can be no mistake, the Court will consider whether the suspension occurred without due process.
Assuming, arguendo, that Plaintiffs had a vested property right and that Defendants deprived them of that interest, their suit would still be dismissible because Defendants afforded them all the process they were due.
"Due process of law generally requires that a deprivation of property be preceded by notice and opportunity for hearing appropriate to the nature of the case. However, to determine whether a procedural due process violation has occurred, courts must consult the entire panoply of pre-deprivation and post-deprivation process provided by the state." Tri-County Paving, Inc. v. Ashe County, 281 F.3d 430, 436 (4th Cir. 2002). "[T]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Cleveland Board of Ed. v. Loudermill, 470 U.S. 532, 545, 105 S.Ct. 1487, 1495 (1985) (quoting Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971)). "The timing, content of the notice and the form of the hearing will depend upon a proper balancing of the competing interests involved." Garraghty v. Jordan, 830 F.2d 1295, 1300 (4th Cir. 1987).
In the present case, because the alleged deprivation of Plaintiffs' supposed property interest concerned the regulation of land use, the suspension required only a minimal amount of process.
Moreover, appropriate post-deprivation process was always available to Plaintiffs through the constitutionally sufficient administrative appeal process provided by the Rockville City Code. As previously indicated, Rockville City Code, Chapter 5, Article 5, Section 113 permitted "[a]ny person aggrieved by and desirous of challenging a decision of the administrative authority in connection with the interpretation, application, or modification of any provision of this chapter relating to the manner of construction or materials used in connection with the erection, alteration, or repair of a building or structure or system installed therein, [to] appeal such decision to a Board of Adjustments and Appeals." Plaintiffs' suggestion that the Rockville Code did not advise them of their right to appeal, or alternatively that the seven day window to appeal was not adequate, is hardly persuasive. Had Plaintiffs been advised by Defendants that no such appeal could be taken or had they otherwise been somehow blocked from appealing, their argument might be more plausible. Standing alone, however, Plaintiffs' subjective belief that no right to appeal existed cuts no ice at all.
Beyond that, Plaintiffs always had the option of turning to Maryland's state courts to dispute the adequacy of the appeal process. But Plaintiffs apparently gave the matter little or no thought. That circumstance also undercuts their claim. See Mora v. City of Gaithersburg, 519 F.3d 216, 230 (2008) ("[Plaintiff] cannot plausibly claim that Maryland's procedures are unfair when he has not tried to avail himself of them. The state courts are open to him. [The plaintiff] simply found it unnecessary even to enter upon, let alone travel the entire length of, that road."). See also Mora v. City of Gaithersburg, 462 F.Supp.2d 675, 695 (D. Md. 2006) ("[I]t is clear that at all times Mora has had recourse to Maryland's circuit courts and/or its district courts to secure return of his property . . . Certainly Maryland circuit courts, in the exercise of their general jurisdiction . . . or district courts in the exercise of their replevin jurisdiction could entertain Mora's claim and order immediate return of the detained property rightfully taken and wrongfully detained."). Cf. Tri Cty. Paving, Inc. v. Ashe Cty., 281 F.3d 430, 438 (4th Cir. 2002) ("Additionally, [plaintiff] had remedies available to it in the state courts but chose not to utilize them. For example, [it] could have petitioned a state court for a writ of mandamus to compel the County to issue a building permit if it was unlawfully withheld" or "filed an inverse condemnation suit in state court. [Plaintiff] chose not to pursue any of these avenues of relief in the state courts. It therefore cannot complain now that the state did not provide adequate procedures.").
For the foregoing reasons, Defendants' Motion to Dismiss (ECF No. 23) is
