delivered the opinion of the Court.
We granted certiorari in the present case to consider the multifarious issues generated by the revocation of respondents Marvin and Herschel Blumbergs’ building and water-sewer permits by petitioners Prince George’s County and the Washington Suburban Sanitary Commission
The factual backdrop to this litigation is both extensive and complex, but, because of the view we take, may be somewhat condensed here. Respondents own approximately forty acres of ground in the Hyattsville area of Prince George’s County on which they had planned to construct a high-rise residential building consisting of two towers, twenty-seven and thirty-five stories high. Aware that their land was situated in an area of restricted sewer service, the Blumbergs began, in the summer of 1971, to make inquiries of the WSSC as to whether such service would be available for their project. 1 Assured that it was still available, the Blumbergs began preparing final plans for their building, and in April 1972 made a formal application to the WSSC for water and sewer service. The commission approved the application on October 25, 1972, and issued the permits on November 13 of that year.
Prior to receiving the necessary WSSC authorizations, respondents applied to Prince George’s County for a building permit, listing themselves as both owners and contractors of the proposed structure. Approval was granted by the county’s Department of Licenses and Permits, which in January 1973 issued a building permit for the thirty-five story tower, in February issued a second permit for the twenty-seven story tower, and subsequently, consolidated the two permits into a third one on March 14,1973. With all necessary authorizations in hand, the Blumbergs made their
A few days before the actual construction commenced, respondents learned that the county was considering a revocation of their building permit because their application had failed to list a licensed builder as required by a recently enacted county law. 2 This law became effective January 1, 1973, and established a licensing requirement for all building contractors within the county, see Prince George’s County Code §§ 2-253.6 to 2-253.18 (1975). 3 In doing so, the ordinance specifically provided that a building permit "shall not be issued to any person except a duly licensed building contractor . . ..” Id. § 2-253.15. Although the Blumbergs’ building permit application had been filed prior to the new law’s effective date, it was not approved and the permit issued until after that date. While respondents believed, as both builder and owner, that this law did not apply to them because of the manner in which the act defines "building contractor”, 4 they nevertheless filed an application for a contractor’s license on March 28,1973, with the Department of Licenses and Permits. A temporary contractor’s license was issued to the respondents on April 5,1973, and a permanent one was delivered on April 17.
While their application for a contractor’s license was pending, the Blumbergs on March 29 began construction of the building because of a condition imposed by the WSSC
The Blumbergs, perceiving the predicament which was developing, arranged a meeting with William W. Gullett, the then Prince George’s County Executive, in an attempt to solve the problem. Mr. Gullett informed respondents that due to its height, considerable opposition to the building had developed in the residential neighborhoods surrounding the project; however, the county executive further indicated that if the Blumbergs would reduce the thirty-five story tower to twenty-seven stories the building permit could be reissued. As a result of this meeting, respondents altered their plans and submitted to the county, on May 8,1973, a revised application for a building permit, this time to construct twin twenty-seven story towers. The new application, as are all building applications, was routinely forwarded to the WSSC
On May 23, 1973, the hearing scheduled by the commission took place with the Blumbergs and other interested citizens present and represented by counsel. The commissioners heard argument from all desiring to be heard after receiving evidence concerning not only the prior commission action with regard to respondents’ applications, but also the present availability of sewer service in the Anacostia Basin area. Following this hearing, the WSSC passed, on May 30, 1973, an order: (i) revoking the previously issued water and sewer permits because they had been granted in contravention of the commission’s own rules, as well as on mistaken information; (ii) declaring that the outstanding permits, even if validly issued, had "expired ... on May 10, 1973 because the County footings inspection for the buildings to which the permits pertain had not been completed;” and (iii) denying the request for a new permit because of the inability, at that time, of the commission’s sewage treatment system to handle the increase which the building would generate.
Following this series of events, the controversy entered the courts when the Blumbergs, on July 10,1973, filed a bill of complaint in the Circuit Court for Prince George’s County seeking injunctive and declaratory relief against Prince
An examination of the decisions of this Court over the last four or five decades will supply ample support for the statement that there are few legal tenets which have received greater acceptance into the jurisprudential law of this State than the one announcing:
[A] claimant ordinarily must seek to redress the wrong of which he complains by using the statutory procedure the legislature has established for that kind of case, if it is adequate and available, and that if he is unsuccessful and wishes aid from the courts, he must take judicial appeals in the manner the legislature has specified rather than by seeking toinvoke the ordinary general jurisdiction of the courts .... [Consequently, we] have consistently held that where a special form of remedy is provided, the litigant must adopt that form and must not bypass the administrative body or official, by pursuing other remedies. [Agrarian, Inc. v. Zoning Inspector, 262 Md. 329 , 332,277 A.2d 591 , 592 (1971).]
See in addition,
e.g., Harbor Island Marina v. Calvert Co.,
1. When the legislative body has indicated an intention that exhaustion of administrative remedies was not a precondition to the institution of normal judicial action. White v. Prince George’s Co., 282 Md. 641, 649,387 A.2d 260 , 265 (1978).
2. When there is a direct attack, constitutional or otherwise, upon the power or authority (including whether it was validly enacted) of the legislative body to pass the legislation from which relief issought, as contrasted with a constitutional or other type issue that goes to the application of a general statute to a particular situation. Harbor Island Marina v. Calvert Co., 286 Md. 303 , 308,407 A.2d 738 , 741 (1979).
3. When an agency requires a party to follow, in a manner and to a degree that is significant, an unauthorized procedure. Stark v. Board of Registration,179 Md. 276 , 284-85,19 A.2d 716 , 720 (1941).
4. Where the administrative agency cannot provide to any substantial degree a remedy. Poe v. Baltimore City,241 Md. 303 , 308-09,216 A.2d 707 , 709 (1966).
5. When the object of, as well as the issues presented by, a judicial proceeding only tangentially or incidentally concern matters which the administrative agency was legislatively created to solve, and do not, in any meaningful way, call for or involve applications of its expertise. Md.-Nat’l Cap. P. & P. v. Wash. Nat’l Area,282 Md. 588 , 594-604,386 A.2d 1216 , 1222-27 (1978).
Of these, the Blumbergs only rely on the fourth as having any bearing on the case now before us, a contention which we discuss later.
In order to explain why we believe the Blumbergs had an administrative procedure available for substantially addressing their grievances against petitioners, which, as a prerequisite to judicial relief, they were obliged to follow, it is desirable that we outline the statutory schemes establishing this remedy. Turning first to the actions of the county, we begin by noting that Prince George’s County, being a charter county established pursuant to Article XI-A of the Maryland Constitution, may exercise only those legislative powers expressly granted to such political subdivisions by the General Assembly. Md. Const., Art. XI-A, § 3;
e.g., Ritchmount Partnership
v.
Board,
[t]o enact local laws ... establishing] a county board of appeals whose members shall be appointed by the county council;... and for the decision by the board on petition by any interested person and after notice and opportunity for hearing ..., of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of... the county council, as shall be specified from time to time ...: the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit... or other form of permission or of any adjudicatory order .... [Id. § 5(U) (emphasis added).]
If a county establishes a board of appeals in conformance with this section, then "any person aggrieved by the decision of the board . .. may appeal to the circuit court for the county” to seek review of this decision, and the circuit court’s action is reviewable by appeal to the Court of Special Appeals. Id. Moreover, the General Assembly has directed that "[t]he review proceedings provided by this subsection shall be exclusive.” Id. (emphasis added).
Pursuant to this authorization, Prince George’s County created, by ordinance, a Board of Appeals "to hear and determine all administrative appeals allowed by ordinance or law,” with the exception of three matters not here relevant. Prince George’s County Code §§ 2-117; 2-118 (1975). More particularly, county law provides:
The owner or occupant of a building or structure or any directly aggrieved person may appeal to the Board of Appeals from a fínal decision of the Building Official refusing to grant a modiGcation of theprovisions of the Basic Code or of this Ordinance[ 7 ] Application for appeal may be made when it is claimed that: The true intent of the Basic Code or of this Ordinance has been incorrectly interpreted or applied. Notice of such appeal shall be in writing and filed within thirty (30) days after the decision is rendered by the Building Official. [Id. § 4-140 (emphasis added).]
Furthermore, the Board of Appeals, in reviewing decisions of the Building Official, is given by the "Ordinance” wide-ranging authority:
The Board of Appeals .. . may vary the application of any provision of the Basic Code or Ordinance to any particular case when, in its opinion, the enforcement thereof would do manifest injustice, and/or would be contrary to the spirit and purpose of the provisions herein or the public interest, or when, in its opinion, the interpretation of the Building Official should be modified or reversed. [Id. § 4-141 (emphasis added).]
Primarily raised in the present case is the question of whether the actions of the county here — declaring the building permit void, issuing a stop work order and refusing to grant a new permit (or reissue an amended old one) providing for towers of fewer stories — are to any extent reviewable under this statutory framework, and if so, whether the review procedures outlined above were required to be followed. The county contends that its actions in this case are reviewable by the Board of Appeals because they were based on an interpretation and application of the county building code (including the BOCA Basic Code), and
The circuit court, as well as the Court of Special Appeals, rejected the county’s argument. The trial court ruled that there was no administrative remedy to exhaust because the Board of Appeals was without power to decide the validity of a building permit or to order the Building Official to change his position with regard to the law. Additionally, that court believed that the Blumbergs were entitled to by-pass the Board since they alleged the existence of a conspiracy, sought damages, and because "pursuit of this matter in the administrative area would have been totally fruitless.” The Court of Special Appeals affirmed the trial judge’s resolution of this issue, although on slightly different grounds. While recognizing that the respondents could have appealed the April 12 determination of Mr. Novak that the permit was "null and void” for failure to obtain a contractor’s license, the intermediate appellate court believed that there existed no need for respondents to do so, since the letter annulling the permit indicated that it would be reissued as soon as proof of licensure was established.
Prince George’s Co. v. Blumberg,
Turning first to the issue of whether an administrative remedy existed with regard to the county’s actions, we begin by noting that section 4-140 of the Prince George’s County Code, providing for appeals to the Board of Appeals, does not limit the jurisdiction of the Board, as suggested by respondents (and held by the intermediate appellate court), to reviewing only those decisions by the Building Official refusing to grant modifications in the building code. Rather, as the second sentence of section 4-140 makes clear, "[application for appeal may be made when it is claimed that the true intent of the Basic Code or of this Ordinance
has been incorrectly interpreted or applied.”
(Emphasis added). It seems to us that this language permits appeals by an aggrieved party from all decisions of the Building Official made under the county building code, including his actions with regard to building permits.
10
Throughout this dispute, the Blumbergs have asserted that they have complied with all applicable county laws, that their building permit was thus valid, and that it was illegally revoked. These were clearly claims that the "intent of the Basic Code or of this Ordinance has been incorrectly interpreted or applied,” since the Basic Code, as amended by the county, addresses the issuance, suspension and revocation of building permits, as well as when stop work orders, as those here, may be
Nor do we agree with the Court of Special Appeals’ characterization of these letters as not being final decisions of the Building Official. In the first place, we fail to see how the determination by Mr. Novak that the building permit was "null and void”, accompanied by a stop work edict, could indicate anything other than finality. While both letters did mention that if the Blumbergs corrected the alleged violations of the law, the permit, upon resubmission of the application, would be reissued, that did not mean that the ruling, without the required change, was any less final, particularly since here the Blumbergs believed that there was no basis for the position taken by Mr. Novak. Moreover, even if this wasn’t a final decision, the failure of Mr. Novak to reissue the permit upon compliance by respondents with the licensure law certainly was. At the same time, the mere fact that the decision by Mr. Novak was influenced or dictated by the County Executive did not make it any less the decision of the Building Official as far as the Blumbergs were concerned. The letters, as well as the stop work order, were signed by Mr. Novak, and thus were decisions by the Building Official for purposes of an administrative appeal. Accordingly, we hold that, with regard to the actions of Prince George’s County, the respondents did have an available administrative remedy which they failed to utilize.
Anticipating the conclusion reached here — that an administrative remedy exists for reviewing the actions of
While we agree that the county Board of Appeals has no jurisdiction to review the WSSC’s actions,
see Board of Appeals v. Marina Apts.,
We find, likewise, little merit in the other arguments raised by respondents in support of their position that exhaustion was not required. This Court has held on many occasions, when faced with a claim of an agency’s unconstitutional taking of property, that such issues must still go through the administrative process, particularly when judicial review is provided.
See,
e.g.,
Arnold v. Prince George’s Co.,
Having determined that the Blumbergs failed to exhaust their administrative remedy with respect to the actions by Prince George’s County, we next examine the suspension and revocation of respondents’ water and sewer permits by petitioner WSSC. Although not raised by the agency, we find that the respondents’ suit against it is also barred for the failure of the Blumbergs to utilize the administrative remedy provided for the redress of WSSC actions. Accordingly, we will direct that this suit against the WSSC likewise be dismissed.
See Sec., Dept. of Human Res. v. Wilson,
The Washington Suburban Sanitary Commission, as a body corporate organized under the laws of the State of Maryland, is, as this Court recently held, an agency of the State, even though it operates principally in Prince George’s and Montgomery Counties.
Katz v. Washington Sub. San. Comm’n,
Assuming for purposes of the present case that the decision by the full Commission was "final” and that no other administrative review was required, we must then determine if the WSSC’s action was in a "contested case.” If it was, then court review must be by way of appeal; if not, then an independent court suit, such as that here, may be proper.
See State Dep’t of A. & Tax. v. Clark,
The final matter which we address in the present case is the contention raised by the Blumbergs in their cross-petition that the bill of complaint, as amended, did state a cause of action against former county executives Gullett and Kelley, that it was therefore error to dismiss them from the suit and the trial court, in so dismissing these officials, abused its discretion in not granting the Blumbergs leave to amend their complaint. We have carefully read both the original and amended bills and find that we agree with Judge Wilner’s assessment of them for the Court of Special Appeals as they pertain to these defendants. With respect to Gullett, "the only
specific
complaint against [him] that smacks of an excess of authority was that he refused to reissue the [building] permit”,
Prince George’s Co. v. Blumberg, supra,
Judgment of the Court of Special Appeals as it pertains to Prince George’s County and the Washington Suburban Sanitary Commission reversed and case remanded to that court with instructions to reverse the judgment entered in the Circuit Court for Prince George’s County against those two defendants without a new trial.
Judgment of the Court of Special Appeals as to William W. Gullett and Winfield M. Kelley, Jr., affirmed.
Costs to be paid by Marvin and Herschel Blumberg.
Notes
. The Blumbergs’ property is situated in the Anacostia Drainage Basin, where, in 1970, the Secretary of the Maryland Department of Health and Mental Hygiene imposed a "sewer moratorium” which "bar[red] the granting of new authorizations after [May 20, 1970,] except with the approval of the State Department of Health and Mental Hygiene.” The WSSC interpreted this moratorium order, however, to permit connections to the existing system if the commission determined there were "unusual circumstances.”
. As Judge Wilner vividly points out in his opinion for the Court of Special Appeals, the underlying reason for the attempted revocation by the county was due to the mounting surrounding community opposition to the proposed height of the building. Prince George’s Co. v. Blumberg,
. For the reader’s convenience, we shall cite to the most recent (1975) Prince George’s County Code when discussing the provisions pertinent to this case, unless a change in the applicable law since 1972 is material.
. Prince George’s County Code § 2-253.6 (1975) defines "building contractor” as follows:
Building Contractor. The term "building contractor” shall mean any person, firm, co-partnership, association, or a corporation, or other organization or combination thereof that for a fixed price, commission, fee or percentage accepts or offers to accept, orders or contracts for performing or superintending the building or construction of any building or structure that is designed to be used as a residence or dwelling, or who constructs for sale any new building or structure for occupancy as a residence or dwelling.
. In January 1973, new sewage flow meters were installed at the WSSC’s Anacostia Pumping Station at Bladensburg, Maryland. Flow figures for the period January 17-March 31, 1973, indicated that the pumping station overflowed 39 out of 74 days, and that a total of 20.6 million gallons of raw, untreated sewage was therefore discharged into the tidal portion of the Anacostia River. This was characterized in a February 1973 report by the Prince George’s County Health Officer as a "serious health hazard.”
. We note that while respondents initially requested that the "court hold a prompt hearing on the merits” of both the original and amended bill of complaints, they did little to bring about a speedy resolution of the dispute. In fait, the record indicates that on January 9,1976, the clerk of the circuit court notified the Blumbergs that their action was to be dismissed under Maryland Rule 530 for lack of prosecution. However, Rule 530 was suspended at the request of respondents, and over the objection of petitioners, nine times by the Circuit Court for Prince George’s County.
. The term "Building Official” refers to the Chief Building Inspector of the Department of Licenses and Permits. Prince George’s County Code § 4-103 (1) (1975). The reference to the "Basic Code” is to the Basic Building Code published by the Building Officials and Code Administrators International (BOCA) which was adopted as the building code of the county, id. § 4-101; while "this Ordinance” is in reference to subtitle 4 of the county code (and includes as codified all sections whose numbering begins with "4-”) entitled "Building”, which consists mainly of amendments to the Basic Code.
. Section 4-230 of the Prince George’s County Code (1972) provides in relevant part: "A building permit shall not be issued under the provisions of the Basic Code and of this Subtitle [(the building code)] unless and until there has been full compliance with the applicable requirements contained therein, and with all statutes, ordinances and regulations containing provisions related to and essential to the safety, health, sanitation and welfare of the occupants or future occupants ... .”
. Respondents also contend that Prince George’s County has failed to preserve for appellate review its exhaustion argument because it did not raise the issue by written motion in the trial court as required by Md. Rules 321 and 323. However, since a claim of failure to exhaust administrative remedies is, as our prior decisions make plain, jurisdictional in nature it may be raised at any time, even on appeal.
See
Sec., Dep’t of Human Res.
. In this regard we note that if the right of appeal was as narrow as that suggested by respondents, it would have been unnecessary for Prince George’s County to amend as they did the suggested appeal provision contained in the BOCA Basic Code which provides:
The owner of a building or structure or any other person may appeal from a decision of the building official refusing to grant a modification of the provisions of the Basic Code covering the manner of construction or materials to be used in the erection, alteration or repair of a building or structure to the board of appeals. Application for appeal may be made when it is claimed that: the true intent of the Basic Code ... have been incorrectly interpreted, the provisions of the Basic Code do not fully apply, or an equally good or better form of construction can be used. [BOCA Basic Code § 127.1 (5th ed. 1970).] We further note that section 4-141 of the Prince George’s County Code (establishing the powers of the Board of Appeals) does not have a counterpart in the BOCA Basic Code.
. While not applicable to the present case, we note that in 1975 the General Assembly established "Consolidated Permit Procedures,” Md. Code (1957, 1975 Repl. Vol., 1979 Cum. Supp.), Art. 78A, §§ 56-67, for the purpose of "coordinat[ingj administrative decision making by ... consolidating application procedures to assist those persons who must obtain permits from one or more local and State agencies” before undertaking development and construction projects. Id. § 56 (c). These procedures provide for joint hearings and fact-finding, coordinated by the Board of Public Works, in connection with permit applications, id. § 59; however, "[ ajdministrative and judicial review of the final action of a local government or State agency on an application for a permit shall be in accordance with the law and procedures governing the issuance of permits by the particular local government or State agency.” Id. § 65.
. Effective March 3,1979, the WSSC adopted regulations-providing, as a matter of right, for an adjudicatory hearing before a "hearing officer” whenever an individual’s "legal rights, duties, or privileges are adversely affected by a decision of the Commission.” 6 Md. Register 463 (1979). The regulations also provide for review of the hearing officer’s decision by appeal to the full commission.