National Institutes of Health Federal Credit Union v. Hawk

Couch, J., delivered the opinion of the Court. This appeal comes to us from an opinion and order entered by the Circuit Court for Montgomery County on January 22, 1980 affirming the April 4, 1979 decisions of the County Board of Appeals for Montgomery County, Maryland. The County Board had affirmed the issuance on November 18,1977 of a certificate of use and occupancy to the National Institutes of Health Federal Credit Union (Credit Union) for ¹⁹¹ a building located in Bethesda, Maryland. The County Board also revoked a certificate of final inspection and occupancy that had been issued on August 15, 1978 for the same premises.

This appeal followed. For the reasons set forth, we hold that the Circuit Court for Montgomery County erred in affirming the County Board’s decision concerning the 1977 certificate, but was correct in affirming the County Board’s decision concerning the 1978 certificate. On appeal the Credit Union and the appellees present a series of questions concerning the application of zoning laws and equitable doctrines. We shall address the questions after having first discussed the crucial issue of jurisdiction which was presented by the amicus curiae, Montgomery County, Maryland, in its brief.

JURISDICTION OF THE COUNTY BOARD I. Cases A-504 and A-505 Credit Union purchased the property at 9030 Old Georgetown Road, Bethesda, Maryland, in 1977. It is zoned R-60, a designation for single-family residences. The land is improved by a two-story building originally constructed and occupied by the American Speech and Hearing Association pursuant to a special exception granted in 1964 for a scientific society headquarters. Subsequent zoning ordinance amendments changed the status of the site to that of a non-conforming use.

Responding to an inquiry by the Chief of Zoning and Licenses the Montgomery County Attorney, in 1975, indicated that the property’s status would not be affected by its conveyance provided that the nature and character of the property’s use remained substantially the same. In 1976 when the Credit Union sought to purchase the property, it was informed by the County Attorney that a use and occupancy permit would be issued if the non-conforming use of the facility was not abandoned. The Credit Union then ¹⁹² bought the property and obtained the use and occupancy permit on November 18, 1977 for the use of the facility as a "headquarters office.” No appeal was taken from the issuance of this permit within the time period required by law. The Montgomery County Zoning Ordinance allows certain appeals, and states in pertinent part: "59-A-4.3 FILING OF APPEALS (a) Appeals to the board may be made by any person, board, association, corporation, or official allegedly aggrieved by the grant or refusal of a building or use-and-occupancy permit or by any other administrative decision based or claimed to be based, in whole or in part, upon this chapter, including the zoning map.

(e) Except as otherwise specifically provided by statute, any administrative appeal to the board from any action, inaction, decision or order of a department of the Montgomery County Government shall be considered de novo. The Department shall comply with the prehearing submission requirements of Chapter 2A of the Code.” The applicable provisions of Chapter 2 of the Montgomery County Code, 1972, as amended 1977, provide: "Sec. 2-112. Powers, duties and functions. (a) The county board of appeals . ..

(3) Hearing under Building Code. The board shall hear and decide all appeals taken under the Building Code for the Maryland-Washington Regional District, as the same is now in force in the regional district of the county or may hereafter be amended or extended to the entire county; provided, that ¹⁹³ the authority under the Building Code which is hereby transferred to the board established by this article shall be limited to the hearing and deciding of appeals taken from decisions of the division of construction permits of the department of environmental protection, and all such appeals shall be filed with the board within thirty days after the decision of the department of environmental protection. [Footnotes omitted].” On February 8, 1978, the Credit Union applied for a building permit from the Department of Environmental Protection (DEP) for "interior renovations” for a "non-residential” use of an "office/bank/professional” facility. The plans submitted with the permit application disclosed extensive alterations including the addition of a bank vault and eight teller windows. Following a review of the application and plans, the Director of DEP issued a building permit to the Credit Union on April 20, 1978.

No timely appeal was taken from that action. Several letters of complaint were written to DEP by area residents beginning with a letter of Gordon Hawk, now appellee, dated May 21,1978. A subsequent letter written by counsel for the appellees requested the Director of DEP to suspend the use and occupancy permit issued on November 11, 1977 to the Credit Union, and to schedule a show cause proceeding to determine the validity of the initial use and occupancy permit approval. On July 27, 1978, the Director denied both requests.

This denial was appealed on August 9 and August 10, 1978 by two groups of protestants, now the appellees, to the County Board of Appeals, and designated as cases A-504 and A-505. On August 31, 1978, a hearing was convened in the two cases before a hearing examiner pursuant to the County Board’s order. It was learned at the hearing that DEP had issued to the Credit Union a certificate of final inspection and occupancy on August 15, 1978. The hearing was continued in order to give the protestants time to also appeal ¹⁹⁴ the August 15, 1978 action of DEP.

On September 6, 1978, appeals were filed with the County Board protesting the issuance of the final certificate. These cases were designated A-513 and A-514, and were consolidated with the two previous cases. A public hearing was held on September 29, 1978 concerning the four cases. After reviewing the testimony and visiting the subject property, the hearing examiner submitted an extensive report, dated January 24, 1979.

The hearing examiner recommended that the County Board affirm the issuance of the initial use and occupancy permit of November 18,1977, and affirm the subsequent decision of the Director of DEP not to revoke the permit. The examiner also recommended that the County Board reverse the action of DEP in issuing the final certificate on August 15, 1978. The matter was argued before the County Board, and in an opinion dated April 4, 1979, the Board affirmed the Director’s actions concerning the initial permit, and reversed the actions concerning the final certificate. The County Board directed DEP to revoke the final certificate and issue a replacement certificate consistent with the headquarters office use represented and authorized in November of 1977.

The Credit Union appealed to the Circuit Court for Montgomery County, challenging the County Board’s jurisdiction over the subject of a non-conforming use in the present circumstances, arguing that the DEP was estopped to revoke the certificate, and claiming that the County Board misapplied the law in the case. The circuit court affirmed the decisions of the County Board in all four cases, finding that there were no perceivable errors of law in the standards applied by the County Board, and no lack of jurisdiction in the Board to entertain and hear the various appeals. The circuit court also determined that equitable estoppel could not be applied against the County in the present cases. On appeal to this Court, Montgomery County, Maryland, amicus curiae, contends that the County Board had no ¹⁹⁵ jurisdiction over the appeals designated A-504 and A-505, concerning the issuance of the November 18, 1977 permit.

We agree. The County Board should not have heard these appeals and should not have addressed the Director’s issuance of a permit on November 18, 1977, because the thirty-day time limit set forth in Section 2-112 (a) (3) of the Montgomery County Code had already passed before the appeals were filed on August 9 and August 10, 1978. The appellees failed to comply with the procedure for timely appeal, and thus lost their privilege to challenge the initial permit. The jurisdiction of the County Board over the November 18, 1977 permit was not revived by the Director of DEP’s refusal to revoke the permit.

The July 27, 1978 action of the Director, that provoked cases A-504 and A-505, was not an appealable order or decision of the DEP. The hearing examiner recognized this fact and stated in his report: "The 'decision’ which is the subject of Appeals A-504 and A-505 being that evidenced in the letter of July 27,1978 (Exhibit No. 21 in Case A-505) from the Director of the Department of Environmental Protection is not a final administrative decision, order or determination. It is at most a reiteration or reaffirmation of the final administrative decision or order of the department granting the original Use and Occupancy Certificate on November 18,1977. If this were not the case an inequitable, if not chaotic, condition would exist.

All that an appellant would be required to do to preserve a continuing right of appeal would be to maintain a continuing stream of correspondence, dialogue, and requests of the nature pursued by the appellants herein with appropriate departmental authorities even on the most minute issues of contention with the ability to pursue a myriad of appeals ad infinitum. The appeal provisions in the County Code and Zoning Ordinance dealing with administrative proceedings before various County departments and agencies clearly relate in their respective procedure to a ¹⁹⁶ point in time when the finality of the review process is conceded and all opportunities to appeal from administrative decisions and orders are clearly specified within prescribed procedures and time limitations. Hartman v. Prince George’s County, 264 Md. 320 [ 286 A.2d 88 ] (1972).” Both the County Board and the circuit court apparently ignored the hearing examiner’s finding, and chose to exercise jurisdiction over the Director’s action. We, however, hold that cases A-504 and A-505 should have been dismissed as recommended by the hearing examiner.

Dismissal is required by this Court when a lower court or agency lacked