Evans v. Burruss
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John Evans, et al. v. Thomas Burruss, et al. No. 1, September Term, 2007 Headnote: The issua nce of bu ilding perm its is a ministerial ac t. Where a building permit is issued to a property owner for construction on their property, that issuance does not create property rights in neighboring or adjacent property owners. Where a zoning ordinance d oes not req uire the servic e of actual, p ersonal no tice to neighboring or adjacent property owners, the failure to give those neighboring or adjacent property owners actual, personal service is not a denial of due process. Circuit Co urt for Mo ntgomery C ounty Civil Case No. 260494 IN THE COURT OF APPEALS OF MARYLAND No. 1 September Term, 2007 John Ev ans, et al. v. Thoma s Burruss, e t al. Bell, C. J. Raker Harrell Battaglia Greene Wilner, Alan M. (retired, specially assigned) Cathell, Dale R. (retired, specially assigned), JJ. Opinion by Cathell, J. Filed: October 12, 2007 John Evans, petitioner, 1 appeals to this Court from a judgm ent rendered by the Cou rt of Special Appeals. In his petition for certiorari and in his brief he presented a single issue for our rev iew: Whether a neighboring property owner ha s a due pro cess right to actual n otice of the issua nce of a buildin g perm it. Thomas Burru ss, et al., 2 respondents, filed no cross-petition. We shall resolve only the question raised in the petition.3 1 As we note, infra, Montgomery County, Maryland, filed a motion to participate as amicus curiae, which we granted on May 21, 2007. 2 Thomas Burruss and his wife, Judith Burruss, and Alan Gaunoux, collectively will be refe rred to a s respo ndents or Bur russ. 3 Respondents, although having filed no petition of their own, in their brief advance two additional issues: 1. Whether the Board of Appeals erred as a matter of law by refusing to allow Respon dents an opportunity to make a factual showing of substantial deprivation of their property interests based upon the issuance of the building permits. 2. Whether the thirty day time for appeal requirement is applicable to the facts of this case . In a footnote in respond ents brief, Burruss acknowledges that his second issue was not addressed in petitioner s brief, but asserts that it was discu ssed in the p etition for certio rari. In the petition, its mention was conditioned on a finding adverse to petitioner on the question directly presented in the petition. In lig ht of our d ecision, the thirty-day issue will not be addressed. We decline to sepa rately add ress resp onden ts first qu estion a bove. As indicated, responde nts did not file a cross-p etition. The issu es before th is Court, generally, are limited to the questions presented in petitions, not o ther, or additio nal, question s that later app ear in briefs. Accordingly, except to the extent that respondents first question might be in directly discussed in our treatment of the question in the petition, it too will not be addressed. I. Facts On February 20, 2004, petitioner received a build ing permit 4 from Mo ntgomery County to erect four ama teur radio (ha m radio) tow ers, each 19 0 feet in he ight, on his property in Poolesville, Maryland. On June 23, 2004, he received a revised bu ilding perm it. Approx imately five wee ks later, on A ugust 5, 2004, construction commenced. Upon seeing construction trucks (cement trucks pouring concrete), work being done, and holes being drilled on petitioner s property, respondents, the abutting property owners, checked with the county authorities and then became aware, for the first time, of the permits that had been issued for the con struction of th e towers. O n Augu st 13, 2004, respondents requested the Montgom ery County Department of Permitting Services (DPS) to issue a stop work orde r.5 DPS refuse d respo ndents reque st. On August 30, 2004, respondents noted two appeals to the Board of Appeals of Montgom ery County in respect to the issuance of the building permits (and sediment control permit issued), 6 claiming that they had been unlawfully issued. Petitioner and Mo ntgomery 4 That gen eral building permit, like most such permits for projects that meet general zoning and building code requirements, is not required to be subject to a public hearing process, although the file and all matters relating to it are public reco rds and av ailable to members of the public, including these respondents, for exam ination. Tha t permit, as w ith the ten thousand or more building perm its, or other types of permits, issued in Mo ntgomery County annually, was issued in the usual course of business. 5 A stop work order was subsequently issued by DPS in respect to a possible minor sedime nt contr ol issue. 6 DPS had initially determined that the project d id not mee t the threshold for requiring (contin ued...) -2- County (which intervened in the cases before the Board of Appeals), moved to dismiss the appeals. The motions were granted by the Board. It based one dismissal on untimeliness, and the other because there was no basis to appeal the is suance o f a sedime nt control pe rmit, and beca use it (the Bo ard) had n o authority to he ar the appe al. Respondents then filed a petition for judicial review with the Circuit Court for Montgom ery Coun ty. Again, the petitioner and Montgomery County moved to dismiss the petition for judicial review. The Circuit Court upheld the Board s finding that the appeal of the original issuance of the building permit was untimely, but found that the subsequent issuance of the sediment control permit had the effect o f renew ing the build ing permit, making the appeal timely. On that basis, the Circuit Court remanded the case to the Board for it to enter tain the a ppeal o f the bu ilding p ermit. At that poin t, petitioner filed a notice of appeal of the C ircuit Co urt judg ment to the Co urt of S pecial A ppeals . That Court, in an unreported opinion, issued October 14, 2006, reversed the findings of the Circuit Court that the issuance of the sediment control permit had renewed the issuance of the building permit and that the appeal of the building permit, therefore, had been timely. In other words, the Court reinstated the Board s decision that the appeal of the building permit had been untimely. The Court of Special Appeals, however, remanded the case to the Board of 6 (...continued) a sediment control permit. Later when its determination came into q uestion, petitioner, although it is not clear that he was required to do so, nonetheless applied for and received a sediment c ontrol perm it. -3- Appea ls for it to determine whether respondents had a general7 due process right to actual personal notice of th e issuance o f the buildin g permit an d/or a prop erty right that was adversely affect ed by the issuanc e of the permit. W e grante d certior ari. Evans v. Burruss, 398 Md. 31 3, 920 A.2d 10 58 (2007). 8 II. Standard of Review Our review of the agency s decision entails only an appraisal and evaluation of the agency s fact-finding and not an independent decision on the evidence. Catonsville Nursing Home, Inc. v. Loveman, 349 Md. 56 0, 569, 709 A.2d 74 9, 753 (19 98); Anderson v. D ep t of Public Safety & Correctional Services, 330 Md. 187, 212, 623 A.2d 198, 210 (1993). When the agency is acting in a fact-findin g or quasi-ju dicial capac ity, we review its decision to determine whether the contested decision was rendered in an illeg al, ar bitra ry, capricious, oppressive or fraudu lent ma nner. Dep t of Natural Resources v. Linchester Sand & Gravel Corp., 274 Md. 211, 224, 334 A.2 d 514, 52 3 (1975); see Goodwich v. Nolan, 343 Md. 130, 148, 680 A.2d 10 40, 1049 (1996 ); Weiner v. Maryland Ins. Adm in., 337 Md. 181, 190, 652 A.2d 1 25, 129 (1995 ). [A] reviewing court, be it a circ uit court or an appellate court, shall apply the 7 General, as used here, means as opp osed to a specific provision in the Montgom ery County statutes requiring actual personal notice to neighbors of the issuance of building permits for specific properties. The parties have not informed the Court of any such requirement in respect to the general, normal issuance of building permits in Montg omery Coun ty. We kn ow of none. 8 Montgomery County, Maryland filed a motion to participate as amicus curiae, which we granted on May 21, 2007. -4- substantial evidence test to the final decisions of an administrative agency . . . . Baltimore Lutheran High S chool A ss n, Inc. v. Employment Security Admin., 302 Md. 649, 662, 490 A.2d 701, 708 (1985); see State Highway Admin. v. David A. Bramble, Inc., 351 Md. 226, 238, 717 A.2 d 943, 94 9 (1998); Anderson, 330 Md. at 212, 623 A .2d at 210; Bulluck v. Pelham Wood Apartm ents, 283 Md. 505, 512, 390 A.2d 1119, 1123 (19 78). In this co ntext, [s]ubstantial evidence , as the test for re viewing f actual findings of administrative agencies, has been defined as such relevant evidence as a reasonable mind might accept as a dequate to support a conclusion[.] Bulluck, 283 Md. at 512, 390 A.2d at 23 (quoting Snowden v. Mayor & City Cou ncil of Baltim ore, 224 Md . 443, 448, 1 68 A.2d 390, 392 (1961)); see Catonsv ille Nursing Home, 349 Md. at 569, 709 A.2d at 753; Caucus Distributors, Inc. v. Maryland Securities Comm r, 320 Md. 313, 323-24, 577 A.2d 783, 788 (1990). We have stated that, [a] court s role is limited to determining if there is substantial evidence in the record as a whole to support the agency s findings and conclusions, and to determine if the administrative decision is premised upon an erroneo us conclusion of law . Bucktail, LLC v. County Counc il of Talbot C ounty, 352 Md. 530, 552-53, 723 A.2d 440, 450 (1999)(quoting United Parcel Se rvice, Inc. v. People s Counsel, 336 Md. 569, 576-77, 650 A.2d 226, 230 (1994)). A reviewing court is under no constraints in reversing an administrative decision tha t is premised solely upon an erroneous conclusion of law. Prince George s County v. Brown, 334 M d. 650, 658 , 640 A.2d 1142, 11 46 (1994 ); see Catonsv ille Nursing Home, 349 Md. at 569, 709 A.2d at 753 (quoting Insurance Comm r v. Engelman, -5- 345 Md. 40 2, 411, 692 A.2d 47 4, 479 (19 97)); People s Counsel v. Maryland Marine Mfg. Co., 316 M d. 491, 4 97, 560 A.2d 3 2, 34-3 5 (198 9). We are also obligated to review the agency s decision in the light most favorable to the agency, since their decisions are prima fac ie correct and carry with them the presumption of validity. Catonsville Nursing Home, 349 Md. at 569, 709 A.2d at 753 (quoting Anderson, 330 M d. at 213, 62 3 A.2d a t 211; Bulluck, 283 Md. at 513, 390 A.2d at 1124). We h ave n oted that o ur review of an adm inistrativ e age ncy s decision differs markedly fro m our rev iew of the decision of a trial court in oth er types of civil ca ses: In the latter conte xt the appe llate court w ill search the rec ord for ev idence to support the judgment and w ill sustain the jud gment fo r a reason p lainly appearing on the record whether or not the reason was expressly relied upon by the trial court. However, in judicial review of agency action the court may not uphold the agency order unless it is sustainable on the agency s findings and fo r the rea sons sta ted by the agenc y. United Steel Workers of America AFL-CIO, Local 2610 v. Bethlehem Steel Corp., 298 Md. 665, 679, 472 A .2d 62, 69 (1984). III. Discussion A. Are Property Interests Gen erally Created by Zoning O rdinances? The Supreme Court of the United S tates, when discussing th e Fourteen th Amen dment s p rocedural p rotection of property, has state d that: Certain attributes of property interests protected by procedural due process emerg e from these d ecision s. To have a pro perty interest in a b enefit, a person clearly must have more th an an a bstract n eed or d esire fo r it. He must have more than an unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution -6- of property to protect those claim s upon w hich peop le rely in their daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the constitutional right to a hea ring to prov ide an opp ortunity for a person to vindica te those claims. Property interests, of cou rse, are not c reated by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law rules or understandings that secure certain benefits and that support claims of entitlement to those benefits. (Emp hasis ad ded.) Board of Regen ts of State Co lleges v. Roth , 408 U .S. 564 , 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). In Clevelan d Board of Educa tion v. Loud ermill, the Supreme C ourt reaffirmed Roth, saying: Respondents federal constitutional claim depends on their having a property right in continued employment. If they did, the State could not depriv e them of this p roperty w ithout d ue proc ess. Property interests are not created by the Constitution, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law . . . . The Oh io statute plain ly creates such an interest. Respondents were classified civil service employees, entitled to retain their positions during good behavior and efficient service, wh o could no t be dismisse d except . . . for . . . misfeasance, malfeasance, or non feasan ce in of fice . . . . The statute plainly supports the conclusion, reached by both low er courts, that re sponden ts possessed property rights in continued employmen t. (Citatio ns omi tted.) (Em phasis a dded.) (Footn otes om itted.) Louderm ill, 470 U.S. 532, 538 -39, 105 S. Ct. 1487 , 1491, 84 L. Ed. 2d 494 (1985). Unlike the Ohio statute referred to by the Louderm ill Court, there is no ordinance or other statute that has been brou ght to our atte ntion, or that w e hav e fou nd, th at p lainl y creates any right for the resp ondents to participate in the purely ministerial process leading to the issuance of a building permit where the application and the permit are in accordance -7- with the law. Montgom ery County Code ( M CC ) (2003 ),9 § 8-25, provides that w here the application complies with all the requirements of the building and zoning provisions, the Director must issue a permit as soon as practicable. Section 8-25 provides in relevant pa rt: (a) Action on applica tion. The Director must examine or cause to be examined each application for a building permit or an amen dment to a permit within a reasonable time after the application is filed. If the application or the plans do not conform to all requirem ents of this Chapter, the Director must reject the application in writing and specify the reasons fo r rejecting it. If the proposed work co nforms to all requireme nts of the Chapter and all other applicable laws and regulations, the Director must issue a permit for the work as soon as practicable . (Em phasis a dded.) Sub-section (g) further provides: The building permit or a true copy thereof and a copy of the building or other plans covered by the permit shall b e kept on th e site of ope rations ope n to inspection by the departm ent, fire or police o fficials in the c ourse of th eir duties, during the entire time the work is in progress and until its co mpletio n. We have been directed to no further express requirement in the MCC, under the circumstances here prese nt, 10 placed on the permit holder or the Director or any other official to notify abutting or neighboring prop erty owners of the issuance of a building permit. We 9 This portion of the M CC has remained unchang ed from 2 003 to the p resent. 10 There is a p rovision in the MCC requiring a more conspicuous notice for new construction on vacan t, residentially or agriculturally zoned land that would affect the footprint or height of any existing structure. The Board found that provision d id not apply in the circumstances of this case. That issue has not been preserved for this Court because of the limited nature of the issue raised in the certiorari petition and the absence of a crosspetition . That iss ue is no t before us and we do not dec ide it. -8- have found none. Accordingly, the MCC itself creates no righ t of notice n or does it crea te any additional property rights in adjacent prope rty owners that they do not have inh eren tly. 11 In Feldman v. Star Homes, Inc.,12 neighbors contended that, as neighboring property owners, they had a constitutional right to public hearings in respect to an approval of a subdivision plan, even though the local statutes did not require public hea rings. The Court held: [W]e find nothing in the sections dealing with subdivision plans that requires notice or a public hearing. Indeed, under Section 118, it is provided that the mere failure of the Commission to act upon a plan submitted to it shall be equivalent to appr oval. . . . In the ab sence o f . . . restrictions duly imposed by the zoning authorities, it is still true that a property owner has the right to use his property as he sees fit, so long as the use does not constitute a nuisance. The appellants contend, however, that they have a constitutional right to a hearing before a street layout is ap proved by the Co mmiss ion. . . . In the instant case it does n ot appear th at property rights of the appellants we re affected by the Commission s approval. Feldman, 199 Md. 1, 6 , 84 A.2d 903, 905 (1951). Referring to Feldman, this Court in Clarke v. C ounty Co mmissio ners for C arroll Cou nty, stated: This leaves for our remaining consideratio n only appellants argument that they were denied a hearing prior to approval of the [subdivision] plan. . . . [N]either Art. 66B nor the subdivision regulations require that a public hearing be conducted by the com mission before acting on sub division plans. Nor does this arg umen t rise to a constitu tional le vel . . . . (Emp hasis ad ded.) 270 Md 343, 35 0, 311 A.2d 41 7, 421 (1973). Ne ither Feldman nor Clarke has been 11 We do not address whether the County could create such property rights. 12 Feldman was an action for declaratory judgment, not a petition for judicial review. Noneth eless, its langua ge remain s relevant in th e constitution al context. -9- overruled and they remain the law in this State. Indeed, this point of law in Feldman has been recognized as the contrary view to that of another jurisdiction. In Horn v. County of Ventura, the Califor nia Court o pined on th e position the n extant in that State in respe ct to notices and hearings of applications for subdivisions of land: [The] party urges that plaintiff [adjacent property owner] suffered no significant deprivation of pro perty which w ould invo ke constitutio nal rights to notice and hearing. However . . . land use decisions which substantially affect the property rights of owners of adjacent parcels may constitute deprivations of property w ithin the contex t of pro cedura l due pr ocess. . . . (For a contrary view, see Feldman v. Star Homes (1951) 199 Md. 1, 84 A.2d 903 and Hancock v. City of Concord (1974) 114 N .H. 404, 322 A .2d 605.) 24 Cal.3d 605 (1 979). In Hancock,13 statutory provisions14 provided that abutting property owners we re entitled to participate in hearings in respect to applications for subdivision approval. The issue involved whether non-abutting, but nearby, property ow ners 15 were entitled to be heard at the hearing s in respect to applications for subdivision approval. The Court identified the 13 In a later ca se, Weeks Restaurant Corp. v. City of Dover, 119 N.H. 541, 404 A.2d 294 (1979), the New Hampshire Court overruled the Hancock decision on an aggriev ed party issue based on the zoning and plann ing nature of that case. Th e present case, as it appears before us, does not involve planning and zoning. It is a building permit case. 14 We have n ot been directed to any statutory provisions in the instant c ase applica ble in Montgomery County that specifically provide for notice to adjacent or neighboring property owners, or that provide for hearing, prior to the issuance of a building permit that is perm itted as o f right. W e know of non e. 15 The statute there involved required notices of hearings to be sent to owners of abutting property. The re were n o provision s requiring n otice to other n earby proper ty owners. -10- issue as: [W]hether no nabutters have a right to be heard at a hearing before the C oncord Planning Board conce rning an application for s ubdivision under RSA [Revised Statutes Annotated] 36:23. Hancock v. City of Concord, 114 N.H. 404[, 322 A.2d 605] (1974). That Court opined: Mr. Sylvia sought to subdivide his land into separate parcels for the purpose of erecting garden apartments, a permitted use in the R-3 district. Notice of a May 1, 1972 hearing . . . was sent to abutters of the Sylvia property as required by RSA 36:23. Plaintiffs, as nonabutters were not entitled to notice under RSA 36:23 and were not notified of the hearing by the planning board, but learned of the hearing and were in attendance. . . . They alleged before the superior court that their properties would be affected . . . and that they [had] intended to speak at the hearing , but we re not g iven tha t oppor tunity. Plaintiffs argue that the decision of the board without giving them an opportunity to speak at the hearing amounted to a deprivation of their property rights without due process of law . Hancock, 114 N.H. at 404-06, 322 A.2d at 605-06. The New Hamp shire Cou rt went on to hold that: We do not agree that failure to allow plaintiffs an opportunity to speak at a hearing pursuant to RSA 36:23 amounts to an unconstitutional deprivation of their property rights under the due pro cess clause. While the legislature could have provided for a public hearing . . . as it has in several other sections . . . failure to so provide is in no way vio lative of the due process clause nor incons istent w ith the ba sic princ iples of represe ntative g overnm ent. Hancock, 114 N .H. at 40 7, 322 A .2d at 60 7. See Carter v. City of Nashua, 116 N.H. 466, 362 A .2d 191 (1976 ). Laclede Gas Co. v. Abrahamson, 296 S.W.2d 100 (Mo. 1956), was a condemnation case where th e plaintiffs w ere seeking to intervene in an action in which property belonging -11- to another property owne r was being taken. Citing Feldman and other cases, the Co urt opined: Inte rest, generally, means a con cern which is more tha n me re cu riosi ty, or academ ic or sentimental desire. One interested in an action is one w ho is interested in the outcome or result thereof because he has a legal right which will be direct ly aff ected the reby or a legal liability which w ill be directly enlarged or diminished by the judgment or decree in such action. ... The Court held that no right to intervene was shown because the intervenor showed no direct interest in the litigation but on ly a conseque ntial interest in the probable use of the property if plaintiff is successful, and no possibility of gain or loss from the direct lega l effect of a ny judgmen t that might be rendered. Laclede Gas Co., 296 S.W.2d at 102-103. Returning to our own State, we recently discussed a similar issue. In a case involving the Public Service Commission, where there was a statutory provision requiring advertisement of a public hearing, but no other notice requirem ent, neighb oring prop erty owners asserted that they wer e entitled to actua l person al notice of the h earing. The question posed, as relevant to the instant case, in Sprenger v. Public Service Commission of Maryland, 400 Md. 1, 5, 926 A .2d 238, 240 (200 7),16 was: Is an interested person . . . entitled to bring an action for declaratory relief if the Public Service Commission fails to provide [actual personal] notice [to the interested person ] and the time to file an appeal . . . has expired? After noting that th e only express requireme nt for a general notice of the hearing through 16 The proposed project was 10.8 linear miles of wind turbines to be erected at high elevatio ns in W estern M aryland. It w as a fac ility design ed to ge nerate e nergy fro m win d. -12- newspaper publication had been met, we addressed the contention that Sprenger was entitled to actual personal notice of the hearing. There is no requirement in [the statutes] that personal service of notice be given to interested p ersons. Th ose section s only require tha t notice be given to interested persons. If we were to agree with petitioners that these sections required personal service of notice, we would be, at best, forcing an interpre tation th at limits th e man ner in w hich no tice ma y be give n. . . . ... [U]nder petitioner s theory, all interested persons should receive personal service of notice. Petitioners, without substantive explanation, define interested persons as those owning property contiguous to the Facility and those within half a mile of the project. . . . [H]ow then would the Commission determine who are interested persons? In the circumstances of this case s hould individuals whose sight lines are affected by the towers be included? They could be five miles or more away located in the mountainous terrain w here the Facility is sited. . . . And wh at about tho se thousan ds who might claim to be, or to pass, within earshot of the spinning blades? Would all of such persons or groups, and many others, be entitled to personal individualized service of notice? The extent of the pool of interested pe rsons cou ld never b e determ ined. . . . The agency could never be sure it had served notice, by certified mail or otherw ise, on a ll intereste d parties . Sprenger, 400 Md. at 30-32, 926 A.2d at 255-56. This case also involves high tow ers, albeit less tha n half as tall as the towers in Sprenger. We have found no evidence in the record we have reviewed that indicates that the fall pattern 17 of the towers was an issue. As far as can readily be discerned, the issue revolves around the towers being in the line of sight of respondents.18 While the area from 17 Fall pattern re lates to the direc tion, and w here, the tow ers would fall if they fell. 18 It might be described by some as visual pollution. -13- which the pool of interested persons might come may well be less in the present case than the potentially impacted area in Sprenger, depending on demographics, the pool of interested persons m ight well be larger. If indiv idualized p ersonal no tice were to be required, how could the agency ever verify that it had given such notice to all interested persons? How c ould it do so in the over 1 0,000 instan ces of min isterial building permit issuances each year in that county and the numerous other types of permits is sued in Montgom ery Cou nty? In cases such as this, where the underlying issue involves sight lines, hundr eds, if n ot thou sands, o f individ ualized person al notice s migh t be requ ired. This is not a case where municipal authorities have the right to exercise initial discretion. It is not a request for a variance. It is not a request for piecemeal rezoning. According to the record, at the time of the original issuance of the permit, petitioner s project complied with the provisions of the land use codes and building codes.19 As such, the 19 There was an issue, before the Board, as to whether the towers complied with the zoning code at the time of original issuance. On judicial review, the trial court agreed that it did. Th e Cou rt of Sp ecial A ppeals did not reverse that find ing. As we have indicated, responde nts filed no cross-petition and petitioner did not raise that issue in his petition. Acco rdingly the correct ness of that rulin g is not b efore u s. The issue of whether the project was controlled by the amendment ultimately made to the zoning code resulting from respondents complaints to county officials, or by the Code as it existe d at the tim e of the issuanc e of the buildin g perm its, was li tigated b elow. While the issue of vested rights is not properly before us, and accordingly, we do not resolve that issue, we do note, as we indicated above, that the construction of the tow ers commenced on August 5, 2004. That construction was observed and then verified by responde nts no later than August 13, 2004. Th e amend ment to the ordinance, which respondents argued below should have been binding on petitioner, was not enacted until December 26, 2005, over 15 months after the construction had b egun and respo ndents were (contin ued...) -14- 19 (...continued) aware of it. The date on which vesting (construction shou ld be so advanced that the nature of the construction could be observed by persons passing by) under Maryland jurisprudence, would be determined, would be the date when the amendment was enacted, in this case December 26, 2005. Judge Moylan, for the Court of Special Appeals in Town of Sykesville v. West Shore Communications, Inc., 110 Md. App. 300, 677 A.2d 102 (1996), reiterated the standards gleaned from our cases for vesting in Maryland: For a right to proceed with construction under existing zoning to vest, three conditions must be satisfied: 1) there must be the actual physical commencement of some significant and visible construction; 2) the commencement must be undertaken in good f aith, to wit, with the intention to continue with the construction and to carry it through completion; and 3) the commencement of constru ction must b e pursuan t to a validly issued building permit. 100 Md. A pp. at 305, 677 A.2d at 104 (quoting Prince George s County v. Sunrise Development Ltd. P ship , 330 Md. 297, 314, 623 A.2d 1296, 1304 (1993)) . In respect to the first condition, that Court stated: If the public c ould have seen that construction had started before the zoning change, the public can apprec iate that th e new law is n ot being violated . . . . ... By contrast w ith . . . Sunrise, the construction completed in this case . . . was no mere token construction but was extensive . It was, moreover, readily apparent and visible [on the date the ordinance was changed] to any intereste d neigh bors or other o bserve rs. . . . By the time the ordinance was adopted the site had been graded; an excavation for the tower base had been dug; and two layers of rebar steel had been installed. . . . In the contex t in which th e work w as being p erformed , the work c learly indicated that a tower w as being erected. (Em phasis added.) Sykesville, 110 M d. App . at 320- 21, 677 A.2d. a t 111-1 2. It seems highly un likely, given the fact that respondents had observed construction which flagged its nature fifteen or m ore months earlier, that petitioner had not progressed with construction to the point that the na ture of w hat was b eing built w ould be rea dily observable to passersb y on De cemb er 26, 2005 especially given that the tow ers were destined to b e 190 fee t tall. There being no cross-petition, however, it is not necessary, as we indicated, to resolve (contin ued...) -15- issuance o f the buildin g permit w as a purely min isterial act. B. The Issuan ce of Building P ermits, Genera lly, is a Ministerial Act We recently stated in City of Bo wie v. Prin ce Geor ge s Cou nty, that: The City s third and final issue challenges the sufficiency of the notice given of the filing of the application for final plat approval and the Planning Board s hearing the reon. The City asserts that it w as denied d ue proces s rights by the Board s failure to provide it notice that Green Hotels had filed for final plat approva l and that the B oard had scheduled the matter fo r hearing. The parties argue at length whether the Board s action . . . should be deemed ministerial, and thus relieved of any externally-imposed formal notice requirement or should be labeled d iscretionary, therefore making it incumbent upon th e Boa rd to pro vide ac tual noti ce to the City. . . . It is elementar y that governm ental bodies, tribunals, agencies . . . and officials . . . exercise functions that are divided into three general categories: exec utive [i.e., ministerial], judicial, and legislative . . . . And functions, when they are not purely and completely judicial or legislative in nature, but have qualities or incidents resembling them , are referred to a s quasijudicial o r quasi-l egislativ e [i.e., dis cretiona ry]. Ministerial acts are objective in nature and include, for example, the issuance of a building permit, predicated upon presentation of final plat approv al, as in the case sub jud ice. . . . The City also argues that it was en titled not just to no tice but to meaning ful notice of the Board s acceptance . . . of Green H otels final plat. Green Hotels co ntends that the Subd ivision Reg ulations . . . are pu rposely silent as to any procedure requiring notice or public hearing at the final plat stage. . . . ... [We hold that] as the Board s act of approving or rejecting the final plat is a ministerial function, we find no merit in the City s contention that it was denied due process by the Board s failure to provide it specific and individualized notice of the Board s receipt and scheduling of Green Hotels applica tion for final pla t appro val. 19 (...continued) the issue of ve sting. -16- Bowie , 384 Md. 413, 439-43, 863 A.2d 976, 991-93 (2004) (quoting Hyson v. Montgomery County Counc il, 242 Md. 55, 62, 217 A.2d 578, 582 -83 (1966)). See Ma rtin v. Bucklin , 214 Md.140, 142-43, 133 A.2d 426, 426-27 (1957) (recognizing the ministerial nature of the application and issuance process in respect to building perm its in denying mandamu s). In Potomac Electric Po wer Co mpany v. Montg omery C ounty, 80 Md. App. 107, 118, 560 A.2d 50, 56 (1989 ), where, alb eit perhaps as dicta, C hief Judg e Gilbert, fo r the interme diate appellate court, opined: Once the PSC has by order authorized the erection of power lines along a designated route, little more remains for local government to do except perform the ministe rial duty of issuing the nec essary bu ilding p ermits. 20 20 Many other jurisdictions also generally consider the approval and issuance of building permits, or similar acts of approval by governmental officials, as ministerial in nature. See Ridgeview Partners, LLC v. Entwistle, 354 F.Supp.2d 395, 400 (S.D.N.Y. 2005) (Where the court defined ministerial acts, such as the issuance of a building permit, as an act without discretion to grant or deny, and not subject to review.); Wal-Mart Stores, Inc. v. County of Clark, 125 F.Supp.2d 420, 427 (D.Nev. 1999) ( Further, the issuance of a building permit is a purely ministerial act in this case. ); Prentiss v. City of South Pasadena, 18 Cal.Rptr.2d 641, 645 (1993) ( [T]he following actions shall be presumed ministerial: [] (1) Issuance of building permits. ) (quoting Cal. Admin. Code, tit. 14 § 15268); G.B.V. International, Ltd. v. Broward County, 709 So. 2d 155, 156 (Fla. 1998) ( [T]he developer had complied with all of these requirements, so that approval was a ministerial function. )(overturned on other grounds at Broward County v. G.B.V. International Ltd., 787 So. 2d 838 (2001)); Citizens Against Reckless Development v. Zoning Bd. of the City and County of Honolulu, 114 Haw. 184, 200, 159 P.3d 143, 145 (2007); Clegg v. Zoning Board of Appeals of the City and County of Honolulu, 73 Haw. 1, 7, 826 P.2d 876, 879 (1992) ( [W]e characterized the function of the Building Department in its issuance of a building permit as purely ministerial. ); U.S. Home & Development Corp. v. LaMura, 89 N.J.Super. 254, 259, 214 A.2d 538, 541 (1965); 67 Vestry Tenants Ass n v. Raab, 658 N.Y.S.2d 804, 809, 172 Misc.2d 214, 219-20 (Sup. 1997) (Ministerial acts such as building permits are exempted from statutory provision allowing review.); Charter Land (contin ued...) -17- Acc ordingly, we hold that the issuance of building permits in respect to applications that fully comply with applicable ordinances and regulations of a particular subdivision is a 20 (...continued) Development Corp. v. Hartmann, 566 N.Y.S.2d 375, 376, 170 A.D.2d 600, 601 (1991) ( Once a variance had been granted, the respondent was not bestowed with any discretion, but was obligated to issue the building permits as a ministerial act . . . . ); Parks v. Bd. of County Comm rs of Tillamook County, 11 Or.App. 177, 203, 501 P.2d 85, 98 (1972) ( The issuing of permits has often been held to be an administrative or ministerial act . . . . ) (quoting 2 Rathkopf, The Law of Zoning and Planning 55-3, 55-4 (3d ed 1966)); McNaughton Co. v. Witmer, 149 Pa.Commw. 307, 613 A.2d 104 (1992); Walrath v. Fisher, 20 Chest. 50, 54 Pa. D. & C.2d 709, 711-12 (1971) (holding that mandamus lies to direct an official to perform his ministerial duty of issuing a building permit); Rhodes v. Shapiro, 494 S.W.2d 248, 250 (Tex. Civ.App. 1973) ( Where . . . the applicant complies with all existing requirements, the issuance of a building permit . . . becomes a mere ministerial duty. ); Homebuilders Ass n of Kitsap County v. City of Bainbridge Island, 137 Wash.App. 338, 341, 153 P.3d 231, 233 (2007) (Where the determination of where in the budget to account for fees the Court stated: All fees and costs associated with processing ministerial building permits are accounted for in the Building Subfund. ). In Asche v. Bloomquist, where a nuisance action was attempting to be maintained in the face of claims that appellant had to exhaust administrative remedies in respect to her attempt to oppose the building of a house that would obstruct her view of Mt. Rainier, the Court, in addressing a specific statutory provision, held: Here, the first element . . . is met. They lost their view of Mt. Rainier when the Bloomquists began building their house under the permit s authority. The last element is also met. The KCC [Kitsap County Code] provisions do not specify an appeal process for building permits. The closest analogous code provisions indicate that an applicant can appeal ministerial decisions, but it does not provide for appeals by neighbors. Accordingly, there was no administrative process for the Asches to exhaust. (Citations omitted.) Asche, 132 Wash.App. 784, 792, 133 P.3d 475, 479 (2006). See Lincoln Shiloh Associates, Ltd. v. Mukilteo Water District, 45 Wash.App. 123, 128, 724 P.2d 1083, 1086 (1986) ( [P]rocessing a building permit is a ministerial act . . . . ); Pentagram Corp. v. City of Seattle, 28 Wash.App. 219, 227, 622 P.2d 892, 896 (1981) ( The issuance of building permits . . . generally is considered ministerial in the sense that the applicant is entitled to a permit once it complies with the applicable laws and ordinances. ). -18- ministerial act. No notices beyond that provided for in the applicable laws of the particular jurisdiction are norma lly required. The failure to giv e notice when none is required by constitution or statute , is not, no rmally, a denial of due process,21 nor is it the deprivation of any of the bun dle o f rights in cide nt to the o wne rship of private property. C. Adjoining Ow ners Property Rights in the Perm itting Process We shall now examine what pro perty rights, if any at all, an abutting or neighboring property owner (or owners) may have in respect to the uses of nearby property when such uses are permitted by zoning or other governmental regulation. In that examination w e are especially cognizant of the police power aspect, i.e., its limitations, of the zoning laws. We have not been directed to any of our cases, nor have w e discovered any, in which this Court has held that the is suance o f a building permit for o ne prope rty, creates or interfe res with property rights of owners of adjoining properties. Several of our cases, including England v. Mayor and Council of Rockville, 230 Md. 43, 185 A.2d 378 (1962), which involved a zon ing reclassific ation, indirectly ind icate exactly the oppos ite. England briefly discussed, so mewh at obliquely, neig hboring p roperty rights in the police power context. After the trial court had basically found that England, the property owner applying for a reclassification, was entitled to it, the lower court had, nonetheless, upheld the denial of the reclassification based upon neighboring owners 21 Due process concerns may exist when notices are required to be given by constitution or statute and it is alleged that they have not been made. -19- concerns . There, w e said: We think appellants proved their case. The Chancellor stated in his opinion that from a view of the property it is apparent that eventually all of the land in the vicinity, and including the subject property, shou ld be zoned for industrial and/or commercial purposes. . . . He stated that the proposed change would b e of no be nefit to surrounding property owners. We think the chancellor misapplied the applic able princip les of law to the facts of this case. . . . There was clear evidence of orig inal mis take or c hange of con dition . . . . Under the circumstances, benefit to the neighboring residents is not a proper test. Restrictions imposed under the police power must be related to the general welfare and cannot be supported on the basis of benefit to surrounding property. (Emphasis adde d.) England, 230 Md. at 46, 185 A.2d at 380. Similarly, in the earlier reclassification case, Hoffman v. Mayor and C ity Council of Baltimore, we stated: If a residential neighborhoo d desires protection by a border of unused prop erty, necessarily it must provide its own pro perty, not appro priate its neighbors for this purpose. In order to imp ose restrictions some valid exercise of the police power must be proven. But such power is invoked for the protection of the property restricted and not to g ive protection to surrounding prop erty. Hoffman, 197 M d. 294, 301, 79 A.2d 367, 510 (1950) (quoting Chayt v. Maryland Jockey Club, 179 M d. 390, 3 95, 18 A .2d 856 , 858 (1 941)). Chayt v. Maryland Jockey Club, supra, involved Pimlico Race Track and a change to the original zo ning for the particular area. Part of the race track property involved had been grand-fathered as a non-conforming use and had been used mainly for parking. Maryland Jockey Club applied for permits to construct stables on the site. Neighboring residential property owners sought and received an injunction restraining the Jockey Club -20- from constructing the stables ne ar their residen tial prope rty. Thereafter, the zoning ordinance was amended so as to permit, as of right, the construction of the stables. The Jockey Club then petitioned the trial court to dissolve the injunction based upon the change in zoning classification. The injunction was dissolved and the neig hboring residential property own ers appealed. This Court, in deciding that the original enactment of the zoning ordinance had created no property rights in the abutting residential property owners, stated: In order to impose restrictions some valid exercise of the police power must be proven. But such power is in voked fo r the protectio n of the pro perty restricted and not to give p rotection to surrounding property. It is basic to the law of property that a man shall be allowed the widest use of his property consonant with the pro tection of h is neighbo rs. In order to justify therefore the restriction of that use, it m ust be show n that such r estriction is in some manner related to the police power of the sovereign. The imposition of that restriction, however, creates no vested [property ] right [in neighboring property owners] in the continuance of that [previous zoning] c ondition [on the prop erties of the applicant]. Since, therefore, appellants [neighboring property owners] acquired no vested [property] right under the original Zoning Ordinance, it follows that the amending ordinance placing neighboring properties in a lower classification, and to that extent freeing such properties from the burdens of the original ordinance, deprives ap pellants [neighboring property owners] of no legal rights inasmuch as it takes nothing from them that they have a right to insist upon. (Emph asis added.) Chayt v. Maryland Jockey Club, 179 Md. at 395, 18 A.2d at 858-59. The issue has been indirectly addressed in at least one other state. The issue was presented in Weaver v. Bishop, 52 P.2d 853 (Okla. 1935), like Chayt, a case for injunctive relief by adjoining property owners, in respect to the uses being made of property for which a building permit had been used. As in the instant case, the matter of the absence of notice -21- of the issuance of the permit also was presented in that the time for appeal had expired before the adjoining property owne rs discovered the use. Th ere the Supreme C ourt of Oklahoma held: The plaintiffs further allege that if it be construed that the defendant has a good and valid p ermit to construct said filling station, and that plaintiffs are barred from appealing the action of the said building inspector . . . that plaintiff s will be depriv ed of th eir prop erty witho ut due p rocess o f law . . . . ... [D]efe ndants allege that said zoning ordinance was duly passed and approved in the manner required by law, after d ue notice to property owners, and that the plaintiffs had the right at all times to make application to the legislative body . . . to amend the said ordinance, and could . . . have submitted . . . all the questions and objections now sought to be presented . . . that plaintiffs under said ordinance have no right to an appeal to the action of the building inspector in granting the permit here in, and that if th e plaintiffs had any suc h right to appeal, that such righ t was lost in that the appeal was not taken within the time prescribed. ... The plaintiffs response is in substance that the building permit issued to the de fenda nt . . . was void fo r want o f notice to the pla intiffs . . . . The evidence is that no notice . . . was given either of the plaintiffs, and that the plaintiffs had no knowledge of same until after the expiration of more than ten days [the appeal period]. The zoning ordinance . . . does not provide for such n otice . . . . The record does not disclose that under the ordinance of Tulsa that notice to other parties is r equired ge nerally in obtaining municipal permits, and the rule is that, where no notice is required, failure to give notice does not affect the v alidity of the perm it. The function o f municip al building p ermits is to evidence compliance with the applicable ordinances and regulations and that the proposed construction meets building requirements. W here the prerequisite conditions have been complied w ith on the part of the app licant, the Board or official may have no discretion to refuse the permit for some reason other than a noncompliance with the conditions precedent; and such an applicant may invoke the aid of the court to prevent the unreasonable refusal and to compel the granting of the permit. The issuance of such a permit is not ordinarily an -22- adjudication of the property rights of third persons. (Citatio ns omi tted.) (Emphasis add ed.) Weaver v. Bishop, 52 P.2 d at 856 -58. If any such property rights exist when a permitting ordinance does not require notice, they must be discovered in background principles of property law.22 Actual physical invasions of one s p roperty may be a ddressed b y suits in ejectmen t, perhaps trespass, in respect to title-actions to quiet title and the like. None of these situa tions appea r to exist in the present cas e. Some a ctions that m ight exist relating to uses of adjacent property include, and primarily are related to, actions to abate private nuisances. In Prah v. Maretti, 108 Wis.2d 223, 232, 321 N.W.2d 182, 187 (1982), that Court restated the concept that applies in Maryland as well: The private nuisance d octrine has tra ditionally been e mployed . . . to balanc e the co nflicting rights of landow ners . . . . 23 22 The term background principles of the State s law of property and nuisance came into the modern language of real property in the often cited case of Lucas v. South Carolina Coastal Counc il, 505 U.S. 1003, 1029, 112 S. Ct. 2886, 2900, 12 0 L. Ed. 2d 798 (1992), where, in a regulatory takings context, the Court noted: Any limitation so severe cannot be newly legislated or decreed (without compensation), but must inhere in the title itself, in the restrictions that background principles of the State s law of property and nuisance already place upon land ownership. A law or decree with such an effect must, in other words, do no more than duplic ate the result that co uld have b een achiev ed in the courts by adjacent lan downe rs (or other un iquely affected persons) under the State s law of private nuisance, or by the State under its complementary powe r to abate nuisan ces that a ffect th e public genera lly, or other wise. 23 At one time in England as a part of nuisance law, the Doctrine of Prior Appropriation and the Doctrine of Ancient Lights applied. The former held that the first user to appropriate a resource had the right to the continued use of the resource. T he latter held (contin ued...) -23- Private nuisances, moreover, are not a normal element of rights arising out of th e issuance of building permits even when n otice require ments exis t, and private nuisances , if they exist, norma lly do so inde pendently of t he issuan ce of any public per mits. Genera lly, they cann ot be litig ated in a petition for jud icial revie w of a dminis trative ag ency actio ns. The cases before this Court, giv ing rise to the single question properly befo re us, are both administrative petitions for review. Neither of them is a request for abatement of nuisances.24 IV. Conclusion We hold that where, such as in th is case, the relev ant statute applicable to the issuance of permits as a ministeria l act does no t require the se rvice of ac tual, persona l notice to adjacent or neighboring property owners, the failure to do that which is not required to be done is not a denial of due process. We hold further that, generally, the issuance of building permits and similar p ermits are ministerial acts. Finally, we hold, as a matter of law, that the issuance of building permits to the owner of one prop erty fo r con struc tion on th at property, creates no additional property rights in adjoining or neighboring property owners. 23 (...continued) that if a landowner had received sunlight across adjoining property for a specified period of time, the land owner w as entitled to co ntinue to rec eive unob structed acc ess to sunlig ht across the adjo ining p roperty. Prah, 108 Wis .2d at 233, 3 21 N.W .2d at 188 (f ootnote omitted). Even if these doctrines survived in this country. It is do ubtful that the y would apply to the construction of amateur radio towers, such as these in the case sub judice. 24 We are in formed th at actions, other than this action in respect to a review of administrative decision, are pending and have been stayed below, awaiting the outcome of this actio n. -24- Acc ordingly, we reverse that part of the Court of Special Appeals judgment that remanded the case to the Board of Appeals to receive evidence in respect to whether the issuance of the building permit infringed upon the respondents property rights. The judgment of the Court of Special Appeals as to the non-renewal (via the sediment control permit) of the building permit and the timeliness or lack thereof is otherwise affirmed. The result of our holding is that the decision of the Board of Appeals of Montgomery County is to be affirmed. THE DECISION OF THE COURT OF SPECIAL APPEALS IS REVERSED IN PART AND AFFIRMED IN PART; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WIT H DIRECTIONS TO REMAND THE CASE TO THE CIRCUIT COURT FOR MONTGOMERY COUNTY WITH DIRECTIONS TO AFFIRM THE DECISION OF THE BOARD OF A P P E A L S O F M O NT G O M ER Y COUNTY; COSTS TO BE PAID BY RES PON DEN TS. -25-
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