Biser v. Deibel

⁶⁷⁴ DAVIS, Judge. In 1990, appellant Robert F. Biser sought judicial review in the Circuit Court for Harford County of the decision of the Board of Appeals (Board) of the Town of Bel Air. On January 26,1990, the trial court (Baldwin, J.) issued an order requiring the Town of Bel Air to grant appellant the special exceptions and variances allowing him to use buildings for commercial purposes on property zoned residential. On September 25, 1992, appellant filed suit in the circuit court against appellees Carol L. Deibel, Edsel A. Docken, and four other defendants for compensatory and punitive damages alleging the intentional and negligent deprivation of property rights, and the tort of negligent misrepresentation arising from the Board’s initial denial of his request for the special exception.

In response, appellees filed a joint memorandum for summary judgment, which the lower court (Carr, J.) granted. Appellant filed an appeal to the Court of Special Appeals. On December 31, 1997, this Court affirmed the grant of summary judgment on three counts, but reversed the judgment for appellees on Count IV, and remanded for further proceedings. Soon thereafter, appellees filed a second motion for summary judgment alleging that they were entitled to public official immunity.

On November 30, 1998, the trial court issued a written opinion and order granting appellees’ motion for summary judgment. Appellant timely noted this appeal and presents for our review two questions, which we restate as follows: I. Did the trial court err by concluding that appellee Deibel was a public official entitled to immunity?

II

Did the trial court err in holding, as a matter of law, that appellant failed to state a claim of negligent misrepresentation upon which relief can be granted against appellees? For the reasons set forth herein, we answer appellant’s questions in the negative, and affirm the judgment of the lower court. ⁶⁷⁵ FACTUAL BACKGROUND Appellant owns two contiguous tracts of land situated in the R-2 zoning district in the Town of Bel Air upon which he sought to construct two office buildings. The town zoning ordinance permitted the conversion of a dwelling into a professional office space only upon approval as a special exception by the Board. In August 1988, appellant met with appellee Carol L. Deibel, Director of Planning and Community Development (Director of Planning) for the Town of Bel Air, to discuss the particulars that would allow him to construct office buildings on the property.

Deibel advised appellant that he should obtain setback variances from the Board before constructing the office buildings; he should thereafter request approval of the special exception once the buildings were substantially complete. After the setback variances were granted, appellant was to construct the two buildings to appear as if they were residential dwellings. On September 27, 1988, appellant appeared before the Board for a hearing on his application for setback variances, and his request was granted. Appellant, in May 1989, completed his building plans and submitted applications for building permits to appellee Edsel A. Docken, Assistant Planner of the Town of Bel Air.

When Docken reviewed the plans, he discovered that the buildings were designed solely for commercial use and were, in fact, labeled as office buildings. Docken then altered the applications by striking out the reference to “commercial office building” and replacing it with the word “dwelling.” Docken advised appellant that this alteration on the application must be done, because the buildings could not yet be commercial structures. The building permits for the construction of residential dwellings were issued on June 27, 1989 and, subsequently, appellant began construction. In August 1989, appellant sought approval of the project’s underground storm water management facility.

Appellant was informed that approval for the storm water management facility could not be given until the Board had granted special exceptions that would ⁶⁷⁶ permit conversion of the structures from residential to commercial use. Deibel advised appellant that the buildings would have to be substantially completed in order to be granted special exceptions. On September 26, 1989, after having completed the necessary construction, appellant presented his application to the Board, which challenged appellant’s application and adjourned the hearing without rendering a decision. Two days later, David Ranney, the Town Superintendent of Public Works, issued a stop-work order, stating that the buildings did not comply with the building code requirements for residential dwellings.

The order directed that the structures be made suitable for residential use. On October 2, 1989, appellant met with appellees and other town officials to discuss the stop-work order. As a result of the meeting, appellant agreed to resubmit building plans that would include kitchen facilities and bathrooms for each building in order to comply with the code. Additionally, as part of the agreement, the stop-work order would be lifted as soon as new building plans were completed.

On October 24,1989, the Board of Appeals again considered appellant’s request for special exceptions to convert the buildings for commercial use. Appellant informed the Board of his conversations with Deibel along with the conditions that had been agreed upon for lifting the stop-work order. The Board, on October 29, 1989, issued a letter denying appellant’s application. In response, appellant appealed the Board’s ruling to the Circuit Court for Harford County (Carr, J.).

On January 26, 1990, the lower court reversed the Board’s ruling and remanded the matter to the Board with instructions to grant the requested special exceptions and variances. The Board complied with the lower court’s order and granted the special exceptions and variances. On September 25, 1992, appellant filed a complaint in the circuit court against appellees and four other employees of the Town of Bel Air. Appellant filed suit to recover losses sustained as a result of the delays in completion of the project.

Appellees and the four other defendants filed a joint motion for summary judgment. The trial court granted summary ⁶⁷⁷ judgment in favor of all of the defendants and determined that they were protected by public immunity. Appellant timely filed an appeal to this Court, which in turn affirmed the entry of summary judgments in favor of appellees on three of the four counts. With respect to appellees, we held that there was no support in the record for the lower court’s conclusion that their positions qualified them for official immunity, and remanded for further proceedings on that issue.

Finding that appellant’s challenge to the circuit court’s ruling that appellees acted without malice, as of a matter of law, was moot, we declined to address that issue. On remand, appellees moved for summary judgment. The circuit court granted summary judgment in favor of appellees and held that Deibel qualified for immunity by virtue of her position, but Docken did not. Although Docken was not entitled to immunity, the lower court concluded that neither appellee was liable for negligent misrepresentation on the facts presented.

Appellant timely noted this appeal. DISCUSSION I Appellant maintains that the lower court erred in determining that Deibel was entitled to public official immunity. He argues that Deibel failed to satisfy the elements that constitute public official status. Specifically, he asserts that the sovereignty Deibel exercised was not exercised in her own right.

Deibel contends that her positions as the Director of Planning and the Zoning Administrator entitle her to public official status and, therefore, to public official immunity, since her job was created by law and involves continuing rather than occasional duties. Further, she urges that, by enforcing the subdivision regulations and zoning ordinances, she “exercise[s] some portion of the sovereign power of the State.” It is well established that an individual who is a public official, as opposed to a government employee, is immune from liability for “his [or her] tortious conduct occurr[ing] while he [or she] was performing discretionary, as opposed to ministe ⁶⁷⁸ rial, acts in furtherance of his [or her] official duties.” See James v. Prince George’s County, 288 Md. 315, 323 , 418 A.2d 1173 (1980) (emphasis added; citations omitted). In addition, § 5-321 (b)(1) of the Maryland Code provides in relevant part: An official of a municipal corporation, while acting in a discretionary capacity, without malice, and within the scope of the official’s employment or authority shall be immune as an official or individual from any civil liability for the performance of the action. Md. Code (1995 Repl.Vol.), Cts. & Jud.

Proc. § 5-321(b)(1). In Duncan v. Koustenis, 260 Md. 98, 105 , 271 A2d 547 (1970), the Court of Appeals set forth the following criteria for determining whether a person is a public official: (1) the position was created by law and involves continuing and not occasional duties; (2) the holder performs an important public duty; (3) the position calls for the exercise of some portion of the sovereign power of the State; and (4) the position has a definite term for which a commission is issued and a bond and an oath are required. The four guidelines are not conclusive and each may be given greater or lesser emphasis depending on the factual circumstances. James, 288 Md. at 324 , 418 A2d 1173 .

Moreover, an individual who fails to meet most of these tests may still be considered a public official if he or she exercises a large portion of the sovereign power of government. Id. at 324-25 , 418 A2d 1173 . In the case at bar, neither party disputes that both of Deibel’s positions involve continuing and not occasional duties. Both parties acknowledge that neither of Deibel’s positions have a defined term for which a commission has been issued.

No bond or oath in either capacity as Director of Planning or Zoning Administrator has been taken. Appellant mainly focuses on whether Deibel’s positions were created by law, and whether they call for the exercise of some portion of the sovereign power of the State. ⁶⁷⁹ In support of the motion for summary judgment, the circuit court was provided copies of certain sections of the Bel Air Town Code establishing that both the positions of Director of Planning and of Zoning Administrator are created by law. The Town’s Charter which establishes the position of Director of Planning is provided for in Section 602 of the Town of Bel Air Code which states: “In addition to the Town Administrator there may be department heads including a Chief of Police, Superintendent of Public Works, Director of Planning and a Town Clerk.” Section 602(b) requires the Town Administrator to appoint the Director of Planning with the approval of the Board of Town Commissioners. Further, Zoning Ordinance No. 208 Article 15.01 states: “There is hereby established the office of Zoning Administrator to enforce this Ordinance in accordance with its administrative provisions.” Clearly, the positions of Director of Planning and of Zoning Administrator are established by the Code of the Town of Bel Air as public offices that are appointed by the commissioner and created by law.

Appellant next asserts that the sovereign power that Deibel exercises is not exercised in her own right. This contention is