Carey v. Baltimore County

Finan, J., delivered the opinion of the Court. The appellant and plaintiff below, Mr. George L. ⁴⁹² Carey, filed an action at law seeking monetary damages from Baltimore County, Maryland, a municipal corporation (County). In his declaration Carey alleges that for some time he had been the owner of valuable real estate located in the 9th election district of Baltimore County and that during the year 1968 he made application for a building permit to construct a residence on a portion of his property. On May 17,1968, he was issued a new building permit by the Department of Permits and Licenses of the County, which permit was extended to May 17, 1970.

Carey further alleges that pursuant to the permit he “proceeded to make arrangements for construction and substantial sums of money were invested and that he obligated himself for additional sums of money in connection therewith.” The declaration is ambiguous in its allegations as to whether or not construction had actually begun. On January 6, 1970, the County Building Engineer notified Carey by letter to discontinue any work under the permit. This notification of January 6, 1970, was attached to his declaration as an exhibit and for a better understanding of this case we set forth the pertinent portions of this communication: “Dear Mr. Carey: As a result of a request by the Baltimore County Health Department as outlined in their inter-office communication with Mr. Gerard Dietz I. am hereby ordering all work on building permit 86025 to stop. A copy of this communication is here enclosed. “When you have met the requirements of the Health Department and notified this department in writing, you will be allowed to proceed . . .

Very truly yours, /s/ Charles B. Wheeler Building Engineer” ⁴⁹³ It is significant to note that Carey, although appending the above letter to the declaration, did not attach the inter-office memorandum which had been forwarded to him with this letter. The inter-office communication appears in the appellee’s appendix to their brief and reads: “TO Mr. Gerald J. Dietz [Health Department] FROM Mr. Thomas H. Devlin [Health Department] SUBJECT Cancellation of Building Application No. 86025 January 2,1970 Reference is made to Building Application No. 86025, for the construction of a dwelling on property owned by Mr. George L. Carey, III, on a private road near Malvern Avenue, Election District 9. Satisfactory soil tests were conducted on high ground at the site indicated on the approved plot plan submitted to the Department of Health with the application. An inspection was conducted of this site on December, 1969, at which time it was discovered that the dwelling was under construction but located at a different location, in a swampy area where the soil is unsuitable for sewage disposal.

Careful examination of the Office Copy of the Building Application indicates that it was undoubtedly altered following approval by the Department of Health on May 5, 1968. This alteration was dated May 10, 1968, and signed by Mr. Carey, who scratched out the site approved by this office. For these reasons, I am requesting that an order to stop construction on this dwelling be issued. ⁴⁹⁴ Your cooperation respecting the situation will be deeply appreciated. /b/ Thomas H. Devlin, Director BUREAU OF ENVIRONMENTAL HEALTH.” Carey filed suit against the County on September 11, 1970, alleging that the County “has wrongfully stopped the plaintiff’s construction and has therefore deprived him of all reasonable use of his property, has taken valuable property rights of the plaintiff without due process * * *,” whereby he claimed $100,000 damages. The County responded to the suit by filing a motion raising preliminary objection, and moving for a judgment in its favor on the ground that: “it [the County] has sovereign immunity against liability in the instant action as all of the facts alleged by the complainant could only have been committed in the exercise of a governmental function.” A hearing was held on this motion which resulted in Proctor, J., dismissing the declaration.

In the opinion accompanying the order of dismissal the court recited the reasons why the County revoked the permit, namely, “that there is no satisfactory procedure for the disposition of sanitary sewerage; that the prior approval was either based on a location for the dwelling different from that on which the dwelling is being constructed, or error so far as whether the soil at the proposed location of the septic tank would satisfactorily pass a percolation test * * In its opinion the lower court also assumed that construction had commenced at the time of the revocation of the permit. Judge Proctor found that the defense of governmental immunity was not only properly raised by the motion raising preliminary objection, but that under Maryland Rule 323b, the County was required to raise such an issue by a preliminary motion. The trial court further relying on Irvine v. Montgomery County, 239 Md. 113, 118 , 210 A. 2d 359 (1965), ⁴⁹⁵ and Lipsitz v. Parr, 164 Md. 222, 227 , 164 A. 743 (1933), held in favor of the County, quoting Irvine to the effect, “* * * in issuing permits for construction a municipality is only exercising its governmental authority and is immune from action against it. * * *” The appeal taken by Carey questions the ruling of the lower court granting the dismissal of the declaration. We are of the opinion that the lower court should be affirmed.

On appeal, counsel for Carey argues that no evidence was presented at the hearing on the motion raising preliminary objection and that the reasons recited by the lower court in its opinion as to why the County revoked the permit “were based solely upon statements made by counsel,” and were not part of the record. Indeed, there are two matters the clarification of which would have been of considerable aid to this Court in rendering its opinion. One is the matter just mentioned relative to the reasons for the revocation of the permit which appears nowhere in the record; the other is the status of the inter-office communication of the County Bureau of Environmental Health, which appears on page one of the appellee’s appendix, and a copy of which was included in the original letter written by the County Buildings Engineer to Mr. Carey, notifying him that the permit was revoked. This inter-office communication not only sets forth the reasons for the revocation of the permit but also mentions that “the dwelling was under construction” at the time of the inspection which precipitated the revocation of the permit; however, nowhere in the record can this inter-office communication be found.

Accordingly, our opinion will be predicated on the allegations as they appear in the appellant’s declaration. This case is controlled by the doctrine of sovereign immunity which applies when a municipality is called upon to respond in damages for an act performed in pursuit of a governmental function. The doctrine was clearly enunciated by this Court in recent years in Irvine v. Montgomery County, supra. The facts in that case are ⁴⁹⁶ not of a pattern which accommodates the facts in the instant case and although the suit was brought in equity-seeking injunctive relief for continuing damages to the plaintiff’s property, the language employed by the Court is quite apposite.

In Irvine , the property owner alleged that the County approved the subdivision plat submitted by the private developer and issued building and road construction permits within the platted subdivision and that the excavation, grading and paving of streets pursuant to these plans had unlawfully diverted surface water so as to deny the property owner access to his land. The gravamen of the complaint was that the County had in the exercise of a proprietary function committed an act of public nuisance. Judge Oppenheimer writing for the Court held the actions on the part of the County to be a governmental function, stating: “* * * There can be no recovery in Maryland against a municipal corporation for injuries occasioned by its negligence or nonfeasance in the exercise of functions essentially governmental in character * * *. * * * “* * * However, in issuing permits for construction, a municipality is only exercising its governmental authority and is immune from action against it. * * * Even though the permits were for street construction, the municipal corporation is immune from liability for error of judgment unaffected by negligence. * * 239 Md. 117 -118. In 13 Am.Jur.2d, Buildings- § 10 p. 275, it is stated: “A city, in attempting to revoke building permits, acts within its police or governmental