Angel Enterprises Limited Partnership, et al. v. Talbot County, Maryland, et al.
No. 45
IN THE COURT OF APPEALS OF MARYLAND
July 9, 2021
Opinion by Booth, J.
September Term, 2020. Circuit Court for Talbot County Case No.: C-20-CV-18-000011. Argued: April 13, 2021.
IMPOSITION OF CIVIL PENALTIES - ORIGINAL JURISDICTION OVER ADJUDICATION OF PENALTIES IN THE MARYLAND COURTS - JURISDICTION OF BOARD OF APPEALS ESTABLISHED BY CHARTER COUNTY. Talbot County had no authority to confer subject matter jurisdiction upon its Board of Appeals to consider an administrative appeal of civil penalties assessed by the Talbot County Chief Code Compliance Officer. The Maryland General Assembly has not vested boards of appeal established by charter counties with authority to review or consider civil penalties assessed by a code enforcement officer for violations of a county code. Under the applicable Maryland laws, the authority to adjudicate civil penalties arising from violations of a local code enacted by a charter county is within the original jurisdiction of the courts. Because this case originated in the Talbot County Board of Appeals, which did not have jurisdiction over the matter that was the subject of the administrative appeal, the Court of Appeals vacated the judgment and remanded the case to the Board of Appeals with instructions that its decision be vacated and that the assessments be dismissed.
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Booth, J.
Filed: July 9, 2021
Under the applicable provisions of the Talbot County Code, the CCCO had the authority to issue “assessment notices” imposing civil fines that would accrue on a daily basis until the code violations were corrected. Under the County Code, a property owner‘s method for challenging the assessment of civil penalties was to file an administrative appeal to the Talbot County Board of Appeals (sometimes referred to as the “Board of Appeals” or “Board“). Bender and Angel filed an administrative appeal of the assessments on December 29, 2009. After the administrative appeal was stayed by agreement, in 2017, the Board of Appeals conducted an evidentiary hearing on the civil penalties that were assessed by the CCCO‘s notices over the course of five evidentiary hearings, spanning a total of five months. During the Board of Appeals hearing, Bender and Angel‘s counsel made several legal arguments challenging Talbot County‘s process for the imposition of civil penalties—a process that was added to the County Code in 2007. At the conclusion of the evidentiary hearing, the Board of Appeals determined that the CCCO had the authority to issue the civil assessments under the Code and Bender and Angel‘s due process rights were not violated by the County‘s procedure for the adjudication of civil fines. However, the Board determined that, under the applicable provisions of the Code, the daily accrual of fines was stayed by Bender and Angel‘s administrative appeal filed on December 29, 2009.
After Talbot County filed a petition for judicial review of the Board‘s decision that the daily accrual of fines was stayed during the pendency of the administrative appeal, the circuit court reversed that portion of the Board‘s determination and entered an order authorizing Talbot County to enforce the civil assessments “in the amount of $713,400 as originally assessed.”
Bender and Angel filed an appeal to the Court of Special Appeals. The intermediate appellate court agreed with the circuit court that, under the plain language of the Talbot County Code, the Board erred in concluding that the penalties were stayed upon the filing of the administrative appeal. The Court of Special Appeals further determined that, because this case was an administrative appeal and the Board did not “mak[e] a factual finding that [Bender and Angel] owed $713,400[,]” the circuit court erred in making such a factual finding. Accordingly, the Court of Special Appeals vacated the portion of the judgment providing that Bender and Angel owed $713,400, concluding that the amount owed “is a determination to be made in a separate proceeding.” The Court of Special Appeals also remanded the case to the Board of Appeals for the Board to consider additional issues pertaining to the County‘s authority to assess penalties for daily violations of the particular code in question.
For the reasons set forth herein, we also vacate the judgment entered by the circuit court. However, our basis for doing so differs from the reasons expressed by the Court of Special Appeals. We conclude that the Talbot County Board of Appeals lacked subject matter jurisdiction to consider or review the CCCO‘s purported assessment of civil penalties. As explained
I. Background and Procedural History
Angel1 purchased an unimproved lot in Talbot County on September 10, 2002. The unimproved property contained a deed restriction denying the landowner direct access to Maryland Route 33 (“Route 33“) (also commonly referred to as “the St. Michaels Road“) unless approved by the Maryland State Highway Administration, the Talbot County Department of Planning and Zoning, and the Talbot County Public Works Department. Bender intended to construct a residence on the property and obtained a building permit from Talbot County for the construction of the residence in 2003. In connection with the construction of the residence, Bender tried, without success, to obtain approval from Talbot County to build a driveway on the property with direct access to Route 33. Bender met with county representatives in February 2005 and was explicitly told that Angel could not have direct access from this property to Route 33 due to safety and environmental concerns.
Despite the County‘s lack of approval for the driveway, Bender hired a contractor to clear trees and build a driveway in early 2006. The project was ongoing when the County was alerted to the violation by the Maryland Department of the Environment (“MDE“). Upon learning of the unlawful clearing and driveway construction activities, Talbot County issued administrative abatement orders for violations of the Talbot County Code, which kicked off twelve years of enforcement proceedings against Bender and Angel, including: civil and criminal enforcement actions by MDE, county administrative hearings related to the abatement orders, county attempts to assess daily accruing penalties associated with the initial clearing and construction activity, and Bender and Angel‘s efforts to restore the property. We recount the history as follows.
A. Procedural History Related to County Abatement Orders
1. Issuance of Abatement Orders
After learning of the clearing activities and construction of the driveway from MDE, the Talbot County CCCO, Robert Graham, mailed Angel an administrative abatement order on January 23, 2009. This order was followed by a supplemental abatement order, which was mailed to Angel and Bender on February 19, 2009 (the January and February 2009 abatement orders will be collectively referred to as “the abatement orders“). The abatement orders alleged two types of violations: one for cutting trees outside the Critical Area, and the other for cutting trees in the Critical Area. The abatement orders directed the Petitioners to remediate and restore the property. The remediation and restoration requirements established in the abatement orders included, among other things, the removal of the driveway (which required the submission of associated plans for driveway removal), and the restoration of the property to its pre-existing natural habitat (which required a soil erosion and
The abatement orders stated that the Petitioners’ failure to comply with the terms of the orders would subject the property owners to “civil penalties under the
2. Administrative Appeal of Abatement Orders
Petitioners appealed the abatement orders to the Board of Appeals on multiple grounds. After a hearing, the Board issued a decision affirming the abatement orders on November 4, 2009. In accordance with the applicable provisions of the Talbot County Code and State law, Petitioners filed a petition for judicial review to the circuit court on December 2, 2009.
Shortly after Angel and Bender filed the petition for judicial review of the Board of Appeals’ decision, on December 23, 2009, MDE filed a complaint for injunctive relief and civil penalties against Angel and Bender in the Circuit Court for Talbot County (“MDE civil enforcement action“). The circuit court consolidated the administrative appeal and the MDE civil enforcement action. On June 13, 2012, the circuit court issued a memorandum opinion and order in the administrative appeal denying Angel and Bender‘s petition for judicial review. Bender and Angel filed a timely appeal to the Court of Special Appeals.
In April 2013, MDE, Angel, and Bender entered into a consent decree, which required Angel and Bender to remove the partially constructed driveway, restore the property to its pre-construction condition, and to pay civil fines totaling $40,000.2
With the entry of the consent decree between MDE, Bender, and Angel in the separate, but consolidated case, the Court of Special Appeals dismissed Bender and Angel‘s appeal of the administrative action as being moot. Angel Enters. Ltd. P‘ship v. Md. Dep‘t of the Env‘t, No. 1155, slip op. at 5 (Md. Ct. Spec. App. Oct. 8, 2013).
Specifically, the intermediate appellate court determined that because Bender and Angel had agreed to the “essential aspects” of the abatement order in the MDE consent decree—namely, removing the driveway and restoring the property to its preconstruction condition—the administrative appeal was moot. Id. Bender and Angel argued that the appeal was not moot because the County had assessed its own civil penalties based upon the abatement orders. Id. at 6. The intermediate appellate court rejected this argument, noting that the “validity of the penalties . . . are not before this Court on this appeal[.]” Id. Bender and Angel filed a petition for writ of
B. County‘s Assessment of Civil Penalties
On December 2, 2009—the same day Petitioners filed the petition for judicial review of the Board‘s decision upholding the abatement orders—the CCCO issued six notices to Bender and Angel titled “ASSESSMENT OF CIVIL PENALTY – NOTICE OF RIGHT OF REVIEW AND RIGHT TO APPEAL” (referred to collectively as “assessments“). Each assessment contained an individual violation notice and advised Petitioners that “a civil penalty has been assessed against you for the following violation(s) of the Talbot County Code.” Each assessment alleged a violation arising from the clearing and construction of the illegal driveway that occurred in 2006. The illegal actions set forth in the assessments can be categorized as either arising from (1) the 2006 clearing and driveway construction activities that formed the basis of the abatement orders; or (2) the “ongoing failure to correct, discontinue, or abate ongoing . . . violation[s] as required by [the] administrative abatement orders [that were upheld] by decision of [the] Talbot County Board of Appeals [in its decision] dated November 4, 2009.”
The assessments advised that the daily fine would begin to accrue on December 8, 2009 and would continue to accrue each day. The collective daily fines for the continuing violations were $1,500 per day. The assessments stated that the daily violations would continue to accrue until such time as the County received notice that the violations had been “brought into compliance” and the County verified compliance by an inspection. The assessments also provided the following right to appeal to the Board of Appeals:
NOTICE OF RIGHT TO APPEAL TO BOARD OF APPEALS
ANY PERSON AGGRIEVED BY THIS ASSESSMENT OF CIVIL PENALTY MAY FILE AN APPEAL TO THE TALBOT COUNTY BOARD OF APPEALS. AN APPEAL IS TAKEN BY FILING WITH THE BOARD A WRITTEN NOTICE OF APPEAL IN ACCORDANCE WITH CHAPTER 20, TALBOT COUNTY CODE, AND IN ACCORDANCE WITH THE BOARD OF APPEALS RULES OF PROCEDURE, ACCOMPANIED BY THE APPROPRIATE FILING FEE. AN APPEAL MUST BE FILED WITHIN 30 DAYS AFTER THE DATE THE CIVIL PENALTY WAS IMPOSED.
On December 9, 2009, Petitioners filed a request for administrative review of the six assessments with the CCCO.3 Thereafter, on December 29, 2009, Petitioners filed six separate administrative appeals to the Board, challenging the assessments. On April 12, 2010, the Board issued a consent scheduling order consolidating the six appeals and deferring the hearing in the penalty appeal until after the completion of the administrative review by the CCCO, and until the circuit court ruled on a motion to stay that had been filed in the pending administrative appeal on the abatement orders.
On May 27, 2010, the circuit court held a hearing on Bender and Angel‘s motion to
C. Restoration of the Property
As noted above, the circuit court denied the Petitioners’ petition for judicial review of the abatement orders on June 13, 2012. While the appeal was pending before the Court of Special Appeals, and prior to the entry of the MDE consent order, the Petitioners apparently read the writing on the wall and began their efforts to comply with the abatement orders and remediate the property. In September 2012, the Petitioners’ engineers, Lane Engineering, Inc., met with regulators on site to begin work on a restoration plan to bring the property into compliance with the abatement orders. On January 3, 2013, Lane Engineering submitted a restoration plan to the County for its review. Nine months later—on October 10, 2013—the County approved the restoration plan. Once the remediation plan was approved, Angel and Bender commenced remediation. The County approved the restored site on August 31, 2015.
D. County‘s Efforts to Collect Civil Fines
By 2016, the Petitioners had completed construction of the residence. Anticipating that the Petitioners would be seeking an occupancy permit from the County, the County filed a civil complaint in the Circuit Court for Talbot County titled “Complaint for Attachment Before Judgment, Interim and Permanent Charging Order, Preliminary and Permanent Injunctive Relief, and Entry of Money Judgment.” The complaint recited the enforcement history related to the clearing and driveway construction activities, and asserted that “[a]s a direct and proximate result of their willful, knowing, and fraudulent activities, and their multiple violations of the County‘s laws protecting [the] environment and natural resources and the resulting environmental destruction, Bender and [Angel] owe substantial civil penalties to the County.” The complaint alleged that Bender‘s administrative appeal of the abatement orders ended in February 2014 with the Court of Appeals’ denial of the petition for writ of certiorari, that Bender and Angel “elected . . . to procrastinate, delay and to refuse to remove the illegal driveway and correct the environmental destruction on the [p]roperty,” and that the abatement orders had not been satisfied until August 31, 2015, more than one and one-half years after the final judgment in the administrative appeal.
The County attached to its complaint a chart titled “Outstanding and Unpaid Civil Penalties Assessed Against [Angel and Bender]” summarizing assessments that related back to the issuance of the initial assessments on December 8, 2009. Although all of the assessments had a “start date” of December 8, 2009, three of the assessments had an end date of October 10, 2013 (totaling 170 days for which the applicable daily fine was accruing), and three of the assessments had an end date of August 31, 2015 (totaling 743 days for which the daily applicable fine was accruing).4 The chart reflected that the “total
On October 18, 2016, the circuit court entered an order in response to the parties’ consent motion, in which the County agreed to issue the Petitioners’ certificate of occupancy for their residence in consideration of the Petitioners’ agreement to deposit the sum of $713,400 with the clerk of the circuit court “to be held as security to pay to Talbot County for civil penalties found to be due at the conclusion of the pending administrative proceedings, after all ensuing judicial reviews and appeals have been exhausted or otherwise terminated[.]” The court further ordered the case “stayed until the conclusion of the pending administrative proceedings and all ensuing judicial review and appeals have been exhausted or otherwise terminated[.]”
E. The Administrative Appeal of the Civil Penalties
With their occupancy permit in hand, having deposited $713,400 in funds with the circuit court, in November 2016, Petitioners resubmitted the consolidated appeal of the assessments to the Board of Appeals. On April 24, 2017, the Board held its first hearing on the civil penalties appeal. It held five additional evidentiary hearings between May 2017 and September 2017. At the first hearing, Petitioners’ counsel asserted, by motion, several legal arguments in support of Petitioners’ position that the County could not collect the assessments in the manner proposed by the County. Specifically, Petitioners’ counsel argued that under
The County Attorney argued that, once the Board of Appeals made its decision upholding the abatement orders on December 2, 2009, the County was free to issue penalties and “assessed them” on the same date. He explained that the penalties began “accruing” on a daily basis as of December 8, 2009 in an attempt to encourage the Petitioners to begin restoration. The County Attorney introduced into evidence a copy of the former county code and explained that the “Board no longer had the same powers.” He explained that the procedure for administrative appeals had been changed, and that, as a result of these changes, the burden of proof shifted and “now require[s] that the [a]pplicant carries the burden of proof.” In response to questioning from the Board concerning whether the delay in assessing civil penalties “could amount to a denial of substantive due process – being arbitrary and capricious,” the County Attorney responded that “case law indicated the county had considerable discretion in determining whether to assess any penalty[]” and that he did not believe that the penalties assessed in this case were excessive.
After hearing the initial legal arguments presented by the Petitioners’ counsel and the County Attorney, the Board members discussed whether the County had the authority to issue daily assessments during the pendency of the appeal. Several Board members expressed doubt and concern over the County Attorney‘s position. The Board Chairman, Paul Shortall, questioned whether the Board had jurisdiction to consider the matters raised in the appeal. Another member of the Board, Phillip Jones, commented that, although the monetary penalty was coercive and intended to induce compliance, “it is always a citizen‘s right to take appeals[.]” He expressed concern that a citizen‘s right to appeal could be chilled if daily penalties continued to accrue during the pendency of the appeal. He also added that the recent legislative changes to the Board‘s rules of procedures and Code provisions “stack the deck” in favor of the County, adding that the County‘s filing fees to file an administrative appeal to the Board of Appeals are burdensome for most citizens.6
After obtaining legal advice in a closed session, the Board reconvened and proceeded to conduct the evidentiary hearing. The Board deferred its ruling on whether
The Board considered the testimony of several witnesses at the evidentiary hearing. Robert Graham, the CCCO, testified that he had been the enforcement officer for 14 years. He testified that, upon receiving a complaint, his typical practice is to visit the site, assess the site for code violations, and write up abatement orders for any code violations. Mr. Graham explained that, if the property owner does not correct the violations as required by the abatement orders, he has the authority to issue a monetary penalty to “incentivize the property owner to correct the violation.”
Mr. Graham acknowledged that the assessments that he issued to the Petitioners arose from the tree cutting and driveway violations that were the subject of the abatement orders. He admitted that his authority under the Code to issue assessments for civil fines is discretionary—that he typically gives the property owner 30 days to correct the violation identified in the abatement orders prior to issuing assessments, and that he has the discretion to make the abatement period longer. He admitted that in this instance, it would have been impossible for the Petitioners to complete the work required under the abatement orders in 30 days.
Sean Callahan, a principal with Lane Engineering, Inc., testified concerning the engineering firm‘s efforts to resolve the violations on Bender and Angel‘s behalf. Lane Engineering prepared the restoration plans, which were admitted into evidence. Mr. Callahan described the process for preparing the plans, the work involved, and the County‘s timeline for approval of the plans, as well as the timeline for implementing the remediation plan. He testified that he met onsite with regulatory authorities in September 2012. He explained that the preparation of the initial plan took about six weeks and included a forest conservation plan, critical area mitigation plan, soil erosion and sediment control plan, and stormwater management plan. Field work was also involved, including surveying and wetlands delineation.
Mr. Callahan described the County‘s approval process, which involves initial submission of the plans, technical review by County staff, comments and requests for revisions, the engineering firm‘s incorporation of comments and revisions to the plans, and resubmission. He testified that the soil erosion and sediment control plan was submitted in October 2012, less than one month after the on-site meeting. He testified that the County‘s review process took eight months. Mr. Lane also noted that the County selects the dates for replanting, which usually occur in the spring or fall. He explained that when the initial plans were submitted, it would have been possible to complete the plantings in the spring and fall growing seasons for the next calendar year, but because the plans were not immediately approved by the County, the plantings were not able to be completed in those seasons. The Board also heard testimony from Mr. Bridges, with Bridges Land Management, who performed some of the restoration work. Mr. Bridges described the work that his company performed on-site as part of the restoration work. Elisa DeFlaux, the Talbot County Environmental Planner, testified that, she was aware that under the language in the assessments, Petitioners were given six days to complete the restoration work before the fines commenced. She agreed that it would have been impossible to obtain approval of the restoration plan and completion of the work within that time period. She also acknowledged that a ten-month process for county review and approval of plans of this nature was normal.
On December 15, 2017, the Board issued its findings of fact and conclusions of law. The Board concluded that: (1) the County had the authority to issue the civil penalties under the TCC; (2) under applicable provisions of the State Forest Conservation Act,
F. Circuit Court Review of the Board‘s Civil Penalties Decision
Neither side was happy with the Board‘s decision on the civil penalties. On January 16, 2018, the County filed a petition for judicial review of the Board‘s decision. It argued that the Board erred in finding that the daily penalties were stayed after the appeal was filed on December 29, 2009. Angel and Bender filed a cross-petition, asserting that the Board erred in: (1) finding that the County had the authority to impose penalties for continuing violations; (2) upholding the penalties assessed; and (3) refusing to consider Angel‘s due process claim.7
After the submission of legal memoranda by the parties and a hearing, the circuit court issued a written decision. It affirmed the Board‘s decision in part and reversed it in part. First, the court determined that the “Board did not err in denying [Angel‘s] procedural due process challenge[,]” concluding that in a proceeding before a county board of zoning appeals, the applicant bears the burden of proof. Second, the court ruled that the County had the legal authority to impose penalties for continuing violations under
owe, and the County “may seek to enforce [c]ivil [p]enalty [a]ssessments . . . in the amount of $713,400[.]”
Angel and Bender filed an appeal to the Court of Special Appeals. In an unreported
After undertaking a plain language analysis of the pertinent provisions of the Talbot County Code, the court agreed with the circuit court‘s conclusion that the Board erred in determining that the daily assessment of penalties was stayed. Id. at *9. However, the Court of Special Appeals determined that the circuit court erred in imposing penalties in the amount of $713,400 because the Board “did not make a factual finding in this regard[.]” Id. The intermediate appellate court stated that,
although we affirm the circuit court ruling that the continued penalties were not stayed by the December 29, 2009 appeal, we vacate the portion of the judgment providing that [Angel and Bender] owe $713,400. The number of days that the violations continued, and the total amount due, is a determination to be made in a separate proceeding.
The intermediate appellate court rejected Angel and Bender‘s due process arguments, concluding that Bender and Angel had a “meaningful opportunity to be heard, where they presented their evidence and had the opportunity to rebut the County‘s evidence.” Id. at *10. The Court of Special Appeals also rejected Bender and Angel‘s argument that the County lacked the authority to impose continuing violation penalties. Specifically, the court concluded that the County‘s code provisions that permitted civil fines for continuing violations were consistent with the State law provisions authorizing local jurisdictions to establish civil fines for violations of a local forest conservation program and critical area program. Id. at *13-14.
The Court of Special Appeals observed, however, that there is a legal distinction between the County‘s legal authority generally under State law to assess a daily civil penalty for a violation of a code provision, and the County‘s authority in this instance to impose an ongoing daily penalty for the specific six code violations that were the subject of the assessments. Concerning the latter question—whether the County had the authority to impose daily assessments for code violations here—the Court of Special Appeals determined that the answer depended upon the specific violation in question, and the language of the code that governed the particular violation. Id. at *14-15. The intermediate appellate court observed that neither the County nor the Board had undertaken this analysis, and that the Board simply “limited its assessment of the issue [to] whether the County had the legal authority to impose penalties for continuing violations” under the Express Powers Act,
Petitioners filed a petition for writ of certiorari to consider the following questions:
-
Did the Board violate Petitioners’ due process rights by requiring Petitioners to bear the burden of proof (including the burdens of persuasion and going forward with the evidence) to explain the County‘s basis for its actions and also to disprove the propriety and amount of the County‘s civil penalties? - Did the Board err in imposing penalties on a daily, continuing basis, including for days where no violative conduct occurred, and while Petitioners were exercising their right to challenge the County‘s allegations and attempt to impose penalties?
- Did the Board err in finding that Talbot County has the legal authority to impose continuing violation penalties where the Express Powers Act limits the County‘s ability to impose fines and does not authorize penalties for continuing violations?
- Did the Board err in determining that the civil penalties imposed by Talbot County were stayed upon the filing of Petitioners’ appeal pursuant to
Code §§ 58-12A(3) and20-6B(3) ? - Are the civil penalties sought by the County unconstitutionally excessive in violation of
Article 25 of the Maryland Declaration of Rights and theEighth Amendment to the United States Constitution ?
The Respondent filed a conditional cross-petition for writ of certiorari, requesting this Court answer the following additional questions:
- Whether the assessment of daily penalties for zoning violations continue[s] for each day between the violation date and date upon which such violation is abated? . . . or instead whether the penalties only accrue on the dates upon which the illegal actions occurred?
- Whether an appellate court should decide an issue of judicial estoppel that occurred during the judicial review period after an administrative decision (and not remand it to the administrative body for review)?
We granted certiorari on both the petition and the cross-petition.
During this Court‘s oral arguments, we asked counsel questions concerning whether the Talbot County Board of Appeals had subject matter jurisdiction under the Express Powers Act,
Whether the Talbot County Board of Appeals has subject matter jurisdiction under The Express Powers Act, Local Governmental Article, (“LG“)
Title 10-101, et seq. , (and in particular, the jurisdictional parameters of charter county boards of appeal established byLG § 10-305(b) ), to review or adjudicate assessments of civil penalties or fines by the county code compliance enforcement officer?
In response to our invitation, Petitioners and Respondent each submitted supplemental briefing on this issue. For the reasons set forth below, we conclude that the Talbot County Board of Appeals lacked subject matter jurisdiction to review the CCCO‘s assessments of civil penalties, and that the assessments are invalid and unenforceable. Because we determine that the Board of Appeals lacked authority to review the assessments, we do not reach the issues presented by the Petitioners and the Respondent in their petition and cross-petition.8 We shall vacate the judgment of
II.
Discussion
In their petition for writ of certiorari, Petitioners raise several issues related to Talbot County‘s process for assessing and adjudicating civil fines or penalties for violations of the Talbot County Code, and the County‘s legal authority to impose civil penalties in the manner outlined in the Code. The Petitioners’ questions, and the questions posed by the Respondent in its cross-petition, all relate to the process for assessing civil penalties established by the Talbot County Code for code violations, which starts with an assessment notice issued by the CCCO, and provides an administrative right to appeal to the Talbot County Board of Appeals.
The questions presented here involve questions of law, which we consider de novo. Talbot County v. Miles Point Prop., LLC, 415 Md. 372 (2010). Although ordinarily we do not consider a matter that has not been raised in a petition for writ of certiorari, see
For the reasons set forth herein, we hold that the Talbot County Board of Appeals lacks subject matter jurisdiction to consider administrative appeals of civil fines. The General Assembly has vested original jurisdiction in the Maryland courts for the adjudication of civil fines that are sought to be imposed by a charter county under the pertinent provisions of State law. Consistent with the applicable provisions of State law that confer original jurisdiction in the Maryland courts to adjudicate civil penalties arising from code violations enacted by a charter county, the General Assembly has not granted jurisdiction to a board of appeals established by a charter county to conduct an administrative review of assessments of civil penalties.
As we recently explained in K. Hovnanian Homes of Maryland, LLC v. Mayor of Havre de Grace, 472 Md. 267, 292 (2021), when a party is challenging the authority of a local government to take a particular action, it is important to strip away the labels and consider the particular governmental action that is sought to be undertaken. First, we identify the precise nature of the governmental
A. Nature of the Governmental Action—Imposition and Adjudication of Civil Penalties
In this case, the governmental action at the center of the controversy consists of the CCCO‘s issuance of six assessment notices purporting to assess civil penalties arising from: (1) the Petitioners’ unlawful tree clearing and driveway construction activities in 2006; and (2) the Petitioners’ “ongoing failure to correct, discontinue, or abate ongoing” violations as required by the two administrative abatement orders that were the subject of the initial administrative appeal. On their face, the assessment notices are exactly what they are described to be—assessments of civil penalties or monetary fines.
Having identified the nature of the governmental action—we consider whether the County‘s assessment of civil penalties comports with the authority granted to the County by the Maryland Constitution, State law, and, finally, local laws. Although the code enforcement officer has the authority to seek the imposition of civil penalties for code violations, we determine that the local county administrative procedure for the assessment of civil penalties is inconsistent with the applicable provisions of State law that confer original jurisdiction over the adjudication of civil fines of this nature in the Maryland courts. Moreover, we determine that the County‘s code provisions that purport to expand the Board of Appeals’ jurisdiction to encompass administrative appeals of civil fines are inconsistent with State law.
B. Statutory Authority for the Imposition of Civil Penalties by a Charter County for County Code Violation
We start our analysis with
The Home Rule Amendment mandated that the General Assembly enumerate and delegate certain powers, which may be exercised by counties electing a charter form of government. Ritchmount P‘ship v. Bd. of Supervisors of Elections for Anne Arundel Cty., 283 Md. 48, 57 (1978). In compliance with its constitutional mandate, the Legislature enacted the Express Powers Act, “which . . . endows charter counties with a wide array of legislative and administrative powers[.]” Id.; see also Miles Point Prop., LLC, 415 Md. at 384 (explaining that “[t]he Express Powers Act is the General Assembly‘s fulfillment of this constitutional command[]“); Anne Arundel County v. Bowen, 258 Md. 713, 715 (1970) (observing that the Express Powers Act was enacted “[i]n obedience to [Article XI-A‘s]
(stating that the purpose of the Act “is to share with the counties, within well delineated limits the legislative powers formerly reserved to the General Assembly[]“). Prior to October 1, 2013, enumerated express powers that were granted to and conferred upon charter counties were codified in
Under the Express Powers Act, charter counties have the authority to exercise their express powers by legislative enactment. See
Where a charter county enacts local laws on any matter authorized by the Express Powers Act, the Act also grants the county the authority to enforce its laws by civil and criminal fines. Specifically,
Where a charter county adopts civil fines or penalties for violations of its ordinances that are adopted pursuant to the Express Powers Act, the Legislature has conferred exclusive, original jurisdiction over the adjudication of such matters in the courts. Specifically,
In addition to the express powers enumerated under the Express Powers Act, elsewhere under State law, the Legislature has granted local governments additional powers. For example, and as particularly
(1) A person who violates any provision of this subtitle [Forest Conservation Act] or any regulation, order, plan, or management agreement under this subtitle is liable for a penalty not exceeding $1,000 which may be recovered in a civil action brought by the Department or a local authority. Each day a violation continues is a separate violation under this subtitle.
(2) The court may issue an injunction requiring the person to cease the violation and take corrective action to restore or reforest an area.
In addition to adopting a local forest conservation program, the Legislature also requires that local governments with planning and zoning powers over any property which is located within the Chesapeake Bay Critical Area adopt a critical area protection program approved by the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays
(“Critical Area Commission“). See
(2)(i) A person who violates a provision of an order, permit, plan, local program, this subtitle, or regulations adopted, approved, or issued under the authority of this subtitle shall be:
- Subject to prosecution or suit in circuit court or District Court by the chairman or local authorities, who may invoke the sanctions and remedies afforded by State or local law;
- Guilty of a misdemeanor; and
- On conviction in a court of competent jurisdiction, subject to a fine not exceeding $10,000 or imprisonment not exceeding 90 days or both, with costs imposed in the discretion of the court.
(ii) A criminal prosecution or a suit for a civil penalty for violation of a provision of an order, permit, plan, local program, this subtitle, or regulations adopted, approved, or issued under the authority of this subtitle shall be instituted within 3 years after the Commission or the local authorities in fact knew or reasonably should have known of the violation.
(Emphasis added). In addition to the general enforcement provisions set forth above, the Critical Area Law also establishes
In summary, the Express Powers Act,
C. Enforcement Provisions for Violations of Talbot County Code—Talbot County‘s Establishment of an Administrative Process for the Imposition and Adjudication of Civil Penalties
In accordance with the authority granted under the Home Rule Amendment, the Express Powers Act, and other provisions of State law which grant the authority to enact local laws, Talbot County has adopted a Charter and a County Code. The Talbot County Code represents a compilation of its ordinances and public local laws, consisting of Chapters 1 through 190.
this Code shall be subject to separate fines, orders, sanctions, and civil penalties for each offense.” The Code provides that “each offense shall be punishable by a civil penalty of up to $1,000 per calendar day[]” unless a different amount is established under the Code.
The Code designates a CCCO to enforce the provisions of the Code.
The Code requires that the CCCO send a written “notice of violation and assessment of a civil penalty[,]” which shall include:
- Each alleged violation, including a citation to the section of the Talbot County Code allegedly violated;
- Classification of each alleged violation as a continuing or noncontinuing violation;
- Separate assessment of a civil penalty for each violation, and a separate daily assessment for each continuing violation;
- Notice of the right to request administrative review before the Hearing Officer to evaluate the amount(s) of civil penalties; and
- Notice of the right to file an appeal with the Board of Appeals.
If the amount of the civil penalties claimed by the County does not exceed $5,000, the alleged violator has the right to a hearing before a hearing officer appointed by the county manager (and subject to the approval of the County Council), who may “decrease, increase, or confirm the amount of the civil penalty.”
review civil penalties claimed by the County in excess of $5,000 cumulatively.” (Emphasis added).15
D. Talbot County‘s Code Provisions—That Purport to Establish an Administrative Process for the Imposition of Civil Penalties with a Right to an Administrative Appeal to the Board of Appeals—are Ultra Vires and Inconsistent with State Law
The Talbot County Code provisions that establish a procedure for the administrative imposition and adjudication of civil fines by assessment notices issued by a CCCO, with a right to an administrative appeal to the Talbot County Board of Appeals, are inconsistent with the applicable provisions of State law, which vest original jurisdiction in the courts for the adjudication of civil penalties established by a charter county in the exercise of its express powers, as well as in the exercise of additional powers authorized by the Forest Conservation Act and the Critical Area Law. See, e.g.,
have concurrent jurisdiction); see also
The provisions of the Talbot County Code that purport to establish a right to administrative appeal of a civil assessment in the Talbot County Board of Appeals are also inconsistent with the jurisdictional limitations of a charter county board of appeals under the Express Powers Act set forth in
The county board of appeals may have original jurisdiction or jurisdiction to review the action of an administrative officer or unit of county government over matters arising under any law, ordinance, or regulation of the county council that concerns:
- an application for a zoning variation or exception or amendment of a zoning map;
- the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, exemption, waiver, certificate, registration, or other form of permission or of any adjudicatory order; or
- the assessment of any special benefit tax.
(Emphasis added). After considering a matter within its jurisdiction, the county board of appeals is required to file an opinion “that shall include a statement of facts found and the grounds for the decision.”
Under the plain language of
When statutory terms are not defined in a statute, “we may consult a dictionary and give words their ordinary meaning.” Balt. City Det. Ctr. v. Foy, 461 Md. 627, 645 (2018). “Adjudicate” is defined as “to deem or pronounce to be[.]” Adjudicate, Garner‘s Dictionary of Legal Usage (3d ed. 2011). “Order” is defined as “a command or
direction[.]” Order, Garner‘s Dictionary of Legal Usage (3d ed. 2011). The assessments are not adjudicatory orders—they are not pronouncements by the CCCO that command or direct the Petitioners to take a specific action. Rather, the assessments issued to the Petitioners purported to enforce the abatement orders by imposing a daily civil penalty until such time as the Petitioners complied with the separately issued orders.17 To understand
Moreover, if we were to accept the County‘s argument that the assessments constituted “adjudicatory orders” within the subject matter jurisdiction of the Board of Appeals, such an interpretation would be inconsistent with the other statutory provisions, described supra, which confer original jurisdiction over the adjudication of civil penalties and fines in the Maryland courts. We will not adopt an interpretation that is flatly inconsistent with other statutory provisions that explicitly address this subject matter. See, e.g., Immanuel v. Comptroller of Maryland, 449 Md. 76, 87 (2016) (“[I]f two acts can reasonably be construed together, so as to give effect to both, such a construction is
preferred, and the two should be construed together to be interpreted consistently with their general objectives and scope.“).
III.
Conclusion
Talbot County does not have the authority to expand the jurisdiction of its Board of Appeals beyond the jurisdictional limits established by the General Assembly. Accordingly, it lacks the authority to vest its Board of Appeals with administrative review of civil penalties. Because this matter originated in the Board of Appeals, we shall vacate the judgment and direct that the case be dismissed. Additionally, we hold that the assessment notices issued by the CCCO that purported to assess civil penalties subject only to administrative review by the Board of Appeals are facially invalid and unenforceable.
We further hold that, to the extent that Chapter 58 of the Talbot County Code establishes a process for the administrative assessment of civil penalties that is inconsistent with the applicable provisions of State law that confer original jurisdiction in the courts for the adjudication of civil fines and penalties, such provisions of the Talbot County Code are ultra vires and void.
JUDGMENT OF THE COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE THE CIRCUIT COURT‘S JUDGMENT AND TO REMAND TO THE CIRCUIT COURT; WITH FURTHER INSTRUCTIONS TO THE CIRCUIT COURT TO REMAND TO THE BOARD OF APPEALS; WITH FURTHER INSTRUCTIONS THAT THE BOARD VACATE ITS DECISION, AND DISMISS THE ASSESSMENTS. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE DIVIDED EQUALLY BETWEEN THE PARTIES.
Notes
Petitioners contend that the following provisions of the Talbot County Code operated to stay the accrual of daily fines during the pendency of its administrative appeal of the abatement orders.
First,
ENFORCEMENT ACTION – Any suit, action, demand, monetary penalty, abatement order, or other administrative, civil, or criminal proceeding established by the Code and all decisions, judgements, degrees, convictions or penalties issued by any administrative agency or court to enforce the same.
(Emphasis added). With respect to proceedings pending before the Talbot County Board of Appeals,
An application for administrative appeal shall automatically stay all further proceedings to enforce compliance with the order, requirement, decision, or determination, and shall automatically stay all further subdivision, site plan, and related development reviews. There shall be no automatic stay when, in the judgment of the official having administrative authority to decide the question, a stay would cause immediate peril to life or property.
(Emphasis added). Finally,
An appeal stays all actions by the Chief Code Compliance Officer seeking enforcement or compliance with the order or decision being appealed, unless the Chief Code Compliance Officer certifies to the Board of Appeals that (because of facts stated in the certificate), in his/her opinion, such stay will cause imminent peril to life or property. In such a case, action by the Chief Code Compliance Officer shall not be stayed except by order of the Board of Appeals or a court upon application of the party seeking the stay.
A BILL TO CREATE UNIFIED CODE ENFORCEMENT PROCEDURES APPLICABLE TO THE TALBOT COUNTY CODE, WITH CERTAIN CHAPTERS EXCEPTED, INCLUDING PENALTIES FOR DAILY AND CONTINUING VIOLATIONS, TO DESCRIBE PERSONS RESPONSIBLE FOR VIOLATIONS, TO PROVIDE FOR CIVIL PENALTIES, CIVIL INFRACTIONS, ADMINISTRATIVE ABATEMENT ORDERS, INJUNCTIVE RELIEF, AND NON-ISSUANCE, NON-RENEWAL, SUSPENSION OR REVOCATION OF PERMITS, TO MAKE ALL REMEDIES CUMULATIVE, TO PROVIDE FOR RECOUPMENT OF ENFORCEMENT COSTS, TO PROVIDE FOR APPEALS TO THE TALBOT COUNTY BOARD OF APPEALS, AND TO AMEND CHAPTER 10, ENTITLED “ALARMS” § 10-6 “INSPECTIONS AND ENFORCEMENT, VIOLATIONS AND PENALTIES” OF THE TALBOT COUNTY CODE, TO GRANT THE CHIEF CODE COMPLIANCE OFFICER AUTHORITY TO ENFORCE SAID CHAPTER, AND GENERALLY RELATING TO ENFORCEMENT PROCEDURES UNDER THE TALBOT COUNTY CODE