Relating to Real Estate
Board of Appeals Cannot Review Assessment of Civil Penalties
In Angel Enterprises Limited Partnership v. Talbot County, Maryland, 474 Md. 237 (2021), Angel Enterprises Limited Partnership (Angel) purchased an unimproved lot in Talbot County on September 10, 2002. The lot was subject to a deed restriction denying the property direct access to Maryland Route 33/St. Michaels Road unless such access was approved by the Maryland State Highway Administration, the Talbot County Department of Planning and Zoning, and the Talbot County Public Works Department. Angel obtained a building permit to build a house, but it was unsuccessful in obtaining approval to build a driveway to Route 33. That did not stop Angel, which hired a contractor to clear trees and build a driveway.
Upon learning of this, the Talbot County Chief Code Compliance Officer (CCCO) issued abatement orders for violations of the Talbot County Code. The orders required the property owner to correct the violations and restore the property to its pre-construction condition. Ultimately, the civil penalties of up to $1,000 per calendar day for each violation totaled $713,400.
Angel and its general partner Morton Bender appealed to the Talbot County Board of Appeals, which determined that the CCCO had the authority to issue the civil assessments. 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. Talbot County appealed that ruling to the Circuit Court for Talbot County, which 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.”
On appeal, the Maryland Court of Special Appeals (CSA) 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 CSA further held that the circuit court erred in making the factual finding that defendants owed $713,400 because the Board of Appeals had not done that.
The Maryland Court of Appeals granted certiorari on the petition and cross-petition of the parties. During oral arguments, the Court of Appeals asked counsel to brief whether the Talbot County Board of Appeals had subject matter jurisdiction under the Express Powers Act, Local Government Article, Title 10, Subtitle 2, to review the CCCO’s assessment of civil fines or penalties.
The Court of Appeals held that the adjudication of civil penalties by a charter county in these circumstances is within the original jurisdiction of the Maryland courts, not within the jurisdiction of a local board of appeals that is established by a charter county under the Express Powers Act. The Court concluded 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. Therefore, the Court vacated the judgment and remanded the case with instructions that the Board’s decision be vacated and that the assessments be dismissed.
Observation
Angel Enterprises Limited Partnership v. Talbot County is a significant departure from code enforcement in most charter counties. In those counties, the code enforcement officer issues citations for violations, and there might be an administrative hearing at which a violation is determined and a fine assessed. Most jurisdictions provide that appeal is to a local board of appeals, like Talbot County in the Angel case. Angel holds that the Board of Appeals has no jurisdiction to evaluate the civil fine and that exclusive original jurisdiction to adjudicate the fine is with the courts. This could mean possibly two appeals: one to the local board of appeals on the substance of the violation and a second concurrent appeal to the courts on the amount of the civil fine. This decision will have broad impact, given that Maryland has 11 charter counties: Anne Arundel, Baltimore, Cecil, Dorchester, Frederick, Harford, Howard, Montgomery, Prince George’s, Talbot and Wicomico.
Edward J. Levin and Bill Shaughnessy wrote this article. Bill, a former Member of Gordon Feinblatt’s Real Estate Practice Group, can be reached at bills@sunmedgrowers.com.
Ed Levin
410-576-1900 • elevin@gfrlaw.com