Prince George's County v. Blumberg

⁸² Wilner, J., delivered the opinion of the Court. This is a case of government running amok. The facts are long and complicated (the printed record extract is nearly 1,500 pages); but what happened, in a nutshell, is that Prince George’s County and the Washington Suburban Sanitary Commission (WSSC), after careful study and review, each issued appropriate permits allowing Herschel and Marvin Blumberg to construct a twenty-million dollar high-rise apartment complex, and, after the Blumbergs had commenced construction pursuant to and in reliance on those permits, those agencies revoked the permits and have refused to reissue them. In an action by the Blumbergs against the county, WSSC, and two former County Executives, the Circuit Court for Prince George’s County (1) directed the county and WSSC to reissue the permits, (2) awarded a judgment for substantial damages against the county, (3) dismissed the action for damages against WSSC on the ground of its sovereign immunity, and (4) sustained demurrers filed by the two former County Executives (Gullett and Kelley), dismissing them from the case.

No one, except Gullett and Kelley, was entirely satisfied with this result. The county has appealed both the directive to reissue the building permit and the judgment for damages; WSSC has appealed the order requiring the reissuance of its water and sewer permits; and the Blumbergs have cross-appealed the court’s refusal to grant monetary relief against WSSC and the dismissal of their action against Gullett and Kelley. We shall here affirm all actions of the circuit court save two; we believe that the court erred (1) in its calculation of damages against the county and (2) in determining that WSSC is entitled to sovereign immunity. We shall therefore remand those aspects of the case for further proceedings in accordance with this Opinion.

The land in question consists of about 40 acres located on Belcrest Road in the Hyattsville area of Prince George’s County. The Blumbergs had planned to develop the property since at least 1961, but because of one thing or another — ⁸³ interest rates, tight money — the project did not begin to move forward in earnest until 1971. On July 16,1971, through counsel, they wrote to WSSC, recounting some of the history of the project, advising of their intention to start construction of a 600-unit high-rise apartment building, and requesting a determination that “the present situation will permit sewer service” for the project. As was pointed out in the letter, the project would not have required any new or extended sewer lines.

There was a line already running across the property, and what the Blumbergs needed was permission to connect into it. This request was referred to the Commission’s Legal Department. On October 6, 1971, Paul J. Hefferon, Staff Counsel to WSSC, responded that, in the Commission’s opinion, because the connection would be into an existing line, “a connection of the proposed apartment building would be permitted under the existing letter order of the State Department of Health dated May 20, 1970.” 1 Upon receipt of this letter, Marvin Blumberg went to see Mr. Hefferon. He “asked him exactly what it [the letter] meant, whether I would get sewer and water, does it mean what I think it says it means, and he said, yes, it means you are going to get sewer and water.” With this assurance, the Blumbergs engaged an architect and began preparing final plans for their building.

On April 6, 1972, they formally applied to WSSC for sewer and water service, paying, at that time, the fees set by WSSC of $8,925. At about this time, WSSC became concerned whether, in light of delays in the expansion of the Blue Plains Treatment Plant, the State-imposed moratorium was sufficient to protect water quality in the metropolitan Washington area. On June 21, 1972, the Commission, by Resolution No. 72-053, decided to impose certain additional restrictions of its own on sewer hookups in a number of the basins in the area, including the Anacostia basin in which the Blumberg project was located. One effect of this Resolution was to subject the Blumberg ⁸⁴ application to approval by the Commission itself, rather than by the staff.

Perhaps in furtherance of this action, on July 27, 1972, John F. Stabely, the head of the WSSC Permits and Records Section, advised the Blumbergs that Mr. Hefferon’s letter of October 6, 1971, “should not be construed as a commitment by the Commission to provide service. Because of limitation in system capacity no commitment for service can be made.” Faced with this apparent retrenchment on the part of the Commission, the Blumbergs pressed their case for hook-up approval. On August 24, they wrote to James A. Stapp, WSSC Director of Engineering and Construction, complaining about the implications of the July letter and pointing out their reliance on previous assurances given by various Commission personnel. They also enlisted the aid of then-County Executive William W. Gullett (a cross-appellee here) and then-County Councilwoman Gladys N. Spellman, both of whom wrote to the Commission endorsing the project.

On August 23, 1972, the Commission adopted Resolution No. 73-066, the second in a series of four dealing with sewer connections. This Resolution, made effective as of August 2, 1972, suspended all applications for sewer connections of the type represented by the Blumberg project (more than 10 dwelling units). There were several exceptions to this suspension, of which two are, or will soon become, relevant here. The first of these was contained in ¶ 2(b) of the Resolution: “situations where, on a premise of availability of water and sewer service, a ... building permit ... has been issued on or before August 2, 1972 by the [county] or where a WSSC connection application ... has been approved or issued by the WSSC on or before August 2,1972.” The second relevant exception was set forth in ¶ 3(c).

This allowed the Commission to suspend or waive the provisions of the Resolution for good cause shown, provided that it first determine the existence of good cause before considering the merits of the application. Notwithstanding this Resolution, the Blumberg application was placed on the Commission’s agenda for its October 4 and October 11 meetings as Item No. 465. In connection therewith, ⁸⁵ Mr. Stapp, the Director of Engineering, submitted to each Commissioner a packet of materia! concerning the project, with a covering memorandum dated September 21, 1972. Among other things, this memorandum points out that the plumbing applications “are pending” and that “Mr. Blumberg wants assurance that his permits will be processed to completion.” {Emphasis supplied.) Testimony from Mr. Stapp and then-Commission Chairman David Elliott established that packets of this type were normally sent to the Commissioners a week or so in advance of the meeting and were brought by them to the meeting.

The Blumberg application was not acted upon at either the October 4 or October 11 meeting, but was deferred until October 25, in order to allow the staff to consider the effect of other pending applications as well on the overall capacity of the water and sewer system. The Commission did, however, at its October 4 meeting, adopt a third Resolution (No. 73-075), amending and making more restrictive the ¶ 2(b) exception contained in the August Resolution. Under the new Resolution, this exemption would be applicable only where (1) a building permit was issued prior to August 2 premised on a statement of water and sewer service availability supplied by WSSC prior to that date, or (2) approval of a connection application by WSSC on or before August 2. By WSSC approval, the Resolution meant “the acceptance and notation on the pertinent application of payment of the requisite fees”, this definition intending to differentiate “between the mere tendering of an application and the WSSC staff action of acceptance and approval thereof, since the fees paid notation is not placed on the application until after such approving review occurs....” While waiting for WSSC to act upon its connection application, the Blumbergs, on October 6, 1972, applied to Prince George’s County for a building permit.

The application listed the Blumbergs as both owners and contractors, and described the project as phase 2 of a 36-story condominium apartment building. October 25 was the magic day for the Blumbergs, for on that day, WSSC approved their connection application and ⁸⁶ directed the staff to process and issue the necessary water and sewer permits. The circumstances under which that decision was made will be discussed later. Suffice it at this point to note only that the Commission’s action was confirmed by letter of its Chairman dated October 27, informing the Blumbergs that their request “has been reviewed and approved for water and sewer service to 600 units apartment project....” The letter continued that the authorization was subject to the installation of appropriate water saving devices, that the Commission’s Plumbing Division and Permits and Records Section would be advised of the Commission’s action “and authorized to process pending application and/or permits to completion”, and that the “connection application and/or hookup plumbing permit” would terminate if construction did not go forward within six months of issuance of the permit.

By “construction gone forward”, the letter said, was meant inspection of the footings by the county. The actual permits were issued on November 13,1972. They reflected what the evidence otherwise showed was proposed: two towers, one 36 stories containing 288 units, one 35 stories containing 280 units, or a total of 568 units. In anticipation of receiving the permits (No. 381286 for one tower, No. 381287 for the other), the Blumbergs, on November 10,1972, paid an additional $8,410 in WSSC fees for attaching plumbing fixtures, these fees being apart from the connection authorization fee and not necessarily being due at that time.

The next series of events concerns Prince George’s County and the building permit. On October 17,1972 —11 days after the Blumbergs filed their application — the County Council adopted and sent to the County Executive Council Bill 72-1972. This bill, signed by County Executive Gullett on November 1, and taking effect January 1, 1973, provided for the licensure of building contractors. A building contractor was defined as a person who “for a fixed price, commission, fee or percentage accepts or offers to accept, orders or contracts for performing or superintending the building or construction of any building or structure . . . designed to be used as a residence or dwelling, or who constructs for sale ⁸⁷ any new building or structure for occupancy as a residence or dwelling.” Any person furnishing character references, evidence of financial responsibility, training and experience, and law-abiding nature, and a $25 fee was entitled to a license.

No examination was required. However, the bill provided that, with an exception not relevant here, a building permit for a residence or dwelling “shall not be issued to any person except, a duly licensed building contractor or his duly authorized agents.” Nee current Prince George’s County Code (1975), § 2-253.15 (then codified as § 2-72). The bill did not declare any such permit inappropriately issued to be invalid; indeed, the only sanction in the bill was a criminal penalty for doing business as a contractor without a license. See 1975 Code, § 2.253.18.

Because they were acting as their own builder, and thus neither constructing the building for a price or fee, or necessarily for the purpose of selling the structure, the Blumbergs apparently believed that they did not fall within the definition of "building contractor”, and were therefore not required to be licensed. Accordingly, they made no application for such a license. On January 25, 1973 — more than three weeks after this bill took effect — the County issued a building permit to the Blumbergs, notwithstanding that, as of then, they had not sought or been granted a contractor’s license pursuant to the new law. The permit (No. 1597-72-CG) authorized construction of Phase I of a 35-story condominium apartment building.

The Blumbergs paiol a permit fee of $6,199. A month later —■ on February 23, 1973 — a second permit was issued (No. 1598-72-CG), upon payment of an additional $4,960, authorizing Phase II of the project — a 27-story apartment tower. 2 On March 13, 1973, upon an amended application, a third permit was issued, this one combining the earlier two permits into one and describing the project as “Phase I 35 Story Condominium Apt. Bldg. Phase II — 27 Story Condominium Apt.

Bldg.” Each of the three permits was based upon an application clearly showing the contractor to ⁸⁸ be the Blumbergs; and yet no question was ever raised about their not being licensed. It should be noted that the same county agency — the Department of Licenses and Permits — was responsible for issuing both building permits and contractor’s licenses. By March 28,1973, Marvin Blumberg had been made aware of the possible need to obtain a contractor’s license, for on that day he paid his $25 and made application for himself and his brother Herschel. A temporary 60-day license was duly issued to the Blumbergs on April 5, 1973, followed by an annual license on April 17,1973. 3 In the meanwhile, on March 29, 1973, the Blumbergs broke ground and started construction.

The first work done was the foundation — a concrete slab three feet thick requiring some 10,000 cubic yards of concrete. The first section footings were poured on March 30, and according to Marvin Blumberg, work proceeded apace, with more concrete being poured on almost a daily basis. The county building inspector was at the site continuously. It was on April 12, 1973, that the raw, naked power of government descended upon the Blumbergs.

The story, as the record reveals it, is this. Notwithstanding all of the investigations, reviews, and approvals leading up to the issuance of the various permits (including zoning and site plan approval by the appropriate local agencies), notwithstanding even that County Executive Gullett himself had earlier endorsed the project in a written letter to WSSC, 4 because some citizens in the vicinity of the project thought that the building would be too high and made their feelings forcefully known to Mr. Gullett, Mr. Gullett decided that the project should not proceed as then authorized. He therefore decided to stop the construction by recalling the building permit. When called to testify, Mr. ⁸⁹ Gullett’s memory about the events that ensued (and his role in causing those events to occur) was unfortunately quite vague, but it is clear beyond doubt that, bowing to community pressure, Gullett ordered that the county building permit be lifted, and that he issued that order solely because of community opposition to the height of the building, and for no other reason. 5 Mr. Gullett apparently recognized that a building permit could not be lawfully revoked solely on the basis of political pressure, especially when construction had already commenced.

Some excuse had to be found. From among those eagerly supplied by opponents of the project, Gullett picked what he thought was the fact that the Blumbergs were not licensed as contractors, as required by law, and that, under then County Code § 2-72, a building permit should not have been issued. Unaware that the Blumbergs had, in fact, obtained their license — obviously making no real attempt to find out — Mr. Gershenow, the Director of Licenses and Permits, under instructions from Gullett and bolstered by a supporting opinion of the county law department, determined that the permit was void and directed his subordinate, James Novak (Chief Building Inspector), to revoke it. 6 Thus it was that on April 12,1973, Mr. Novak wrote a letter to the Blumbergs advising that: (1) “Review of the subject permit reveals that it was illegally issued because the contractor listed on the permit application does not possess a valid residential Building Contractor’s License...(Emphasis supplied.) (2) “The permit is, therefore, null and void. A stop work ⁹⁰ notice has been posted on the job site and work cannot commence until a valid building permit is obtained.” (3) An application for a license can be obtained from the County Service Building.

(4) “At such time as your contractor obtains the required license, the owner or his authorized agent as evidence [sic] by appropriate affidavit, may visit the Permits Office in the County Service Building to amend the permit application to list a properly licensed contractor. Previous agency approvals such as Park and Planning and WSSC will remain valid provided there is no change in law or regulations in the interim period. Following your amendment to the permit application to satisfy the legal requirements, the permit will be validated and a new issue date inserted. There will be no additional fee for the reissue.” (Emphasis supplied.) Having made the decision to lift the permit, the county tarried not in enforcing the Gullett edict.

Novak’s letter was hand delivered to Blumberg at the jobsite the day it was written. That same day — April 12 — the county building inspector slapped two violation notices on the job. The job was very effectively and very quickly shut down, 7 and it remained so despite the fact that Blumberg immediately notified the county that he and his brother were, in fact, licensed. We return now to WSSC, which had also been made aware of some organized opposition to the project, primarily because of the proposed height of the building.

The Commission heard from these groups on April 4 and April 8. Chairman Elliott stated that on April 11, 1973, he received a call from one of Gullett’s aides, Jay Morris, who advised him that “a decision had been made in the County Executive’s Office” to recall four or five permits that did not conform to county regulations “and that we should follow suit.” Elliott interpreted this call as an instruction to take similar action, and expressed the belief that the Commission had a duty to ⁹¹ follow that request if it was legal. 8 He and the Commission apparently thought the request was legal, for that same day, April 11, without notice to the Blumbergs, much less a hearing, the Commission adopted an Order reciting, in relevant part: “The Commission having before it, this 11th day of April 1973, matters presented in connection with the water and sewer permits... issued on November 10, 1972, to [the Blumbergs] and the Commission being advised, by oral report, that the Prince George's County Executive is this date ordering the vacation or withdrawal of the building permit for the construction with respect to which the water and sewer permits pertain, together with the advice that the County Executive proposes to recirculate the building permit proposal to pertinent agencies, including this Commission before the building permit might be reissued or reinstated, and the Commission being advised in the premise, it is, this 11th day of April 1973, “ORDERED, that the efficacy of the permits issued by the Washington Suburban Sanitary Commission on November 10, 1972, with respect to water and sewer service for the proposed Plaza Towers project be, and the same is hereby suspended until further action of this Commission; and it is “FURTHER ORDERED, that the questions heretofore raised with respect to the issuance of the permits on November 10, 1972, together with all matters pertinent to Commission consideration of requests for water and sewer permits, including (but not limited thereto by reason of such specificity) information as to sewage flow calculations and projections at the time of such further action, shall be considered at the time of the further review indicated by the County Executive’s action and by ⁹² the Commission’s within order....” (Emphasis supplied.) Following the adoption of this Order, a copy of which was not mailed to the Blumbergs until April 13, Elliott left a message for Mr. Morris that the Commission “had acted upon the County Executive’s Office request.” It is evident at a glance that the advice given to the Commission of Gullett’s intentions, as recited in its Order, is wholly inconsistent with that conveyed to the Blumbergs in Mr. Novak’s letter. Under the Novak letter, all the Blumbergs had to do to regain the building permit was to show that they were, in fact, licensed. The county resolved this inconsistency, to Blumbergs’ detriment, on April 19 (two days after it issued the annual contractor’s license).

Mr. Novak sent a “follow-up” to his earlier letter, stating, in part: “On April 13, 1973, the Washington Suburban Sanitary Commission ordered that the efficacy of the permits issued by WSSC with respect to water and sewer service is suspended until a Petition for Writ of Mandamus and an Injunction indicating that compliance with the FAA regulations has not been achieved. “Therefore, these two (2) additional items of concern must be resolved for legal reissuance of the building permits to take place.” 9 What was afoot here was not lost upon the Blumbergs. Following receipt of Novak’s letters, Marvin Blumberg went to see Mr. Gullett. According to Blumberg’s uncontradicted ⁹³ testimony, Gullett made clear that the problem was the height of the building. Blumberg offered to revise the project either to reduce the height of the two towers to 27 stories, or to build three towers of 20 stories each.

Gullett, according to Blumberg, agreed to the first alternative, whereupon the Blumbergs started work on revising the plans to reduce the height of the larger tower, 10 obtained approval of the revision by the Maryland-National Capital Park and Planning Commission, and thereafter, on May 8, 1973, filed an application for a revised building permit. The charade continued, however, as the Blumbergs were spun around once more. When the county declined to process the revised application, the Blumbergs contacted Gullett again. This time, they were told that WSSC was holding it up “and he couldn’t do anything about it.” So they went back to WSSC, which conducted what it termed a hearing and what the Blumbergs called “a great show” on May 23.

On May 30, 1973, it issued another Order (which it declined for some unexplained reason to release until June 4,1973), in which the Commission (1) claimed that it didn’t know what it was doing on October 25, 1972, when it adopted Resolution 73-080 and also authorized the Blumberg permits, * 11 (2) treated the revised application for building permit as a new proceeding, notwithstanding that the same 600 units (or less) were involved, and thus considered the earlier permits to be “moot”, and (3) decided that “capability problems in [the] Anacostia Basin system” and delays in the expansion of the Blue Plains Treatment Plant “militate against and preclude a finding at this time, on the basis of the material adduced upon the record on May 23, 1973, that Sewer service is available.” Accordingly, in its operative sections, the Order withdrew the earlier permits and ordered a notation placed ⁹⁴ on the county building permit application, “Sewer and Water service availability not present at this time.” The Kafkaesque drama was now complete. Under § 4-230 of the County Code, that determination precluded reissuance of the building permit. Building upon an erroneous, and clearly spurious, assumption that the Blumbergs were not licensed as contractors, the county and the Commission, in tandem, managed to revoke building, water, and sewer permits (without even offering to refund the substantial fees paid for them) and thus leave the Blumbergs with an enormous construction project in which they had invested a great deal of time and money, and could not complete. On July 10,1973, they filed suit for injunctive and declaratory relief.

With this background, we turn now to the legal issues before us, beginning with those raised by Prince George’s County. (1) Was The Circuit Court Without Jurisdiction Because The Blumbergs Failed to Exhaust A Statutorily Prescribed Administrative Remedy? The question here is whether, as a prerequisite to judicial review, the Blumbergs were obliged to present their grievance against the county to the County Board of Administrative Appeals. Through Md. Annot.

Code art. 25A, § 5 (U) — part of the “Express Powers Act” — the General Assembly has authorized charter counties, by local law, to provide for the establishment of a county board of appeals. Section 5 (U) further authorizes the county to provide, “for the decision by the board on petition by any interested person and after notice and opportunity for hearing and on the basis of the record before the board, of such of the following matters arising (either originally or on review of the action of an administrative officer or agency) under any law, ordinance, or regulation of, or subject to amendment or repeal by, the county council...[:] the issuance, renewal, denial, revocation, suspension, annulment, or modification of any ... permit... ⁹⁵ The statute goes on to permit judicial review of the board’s decision, and concludes with the statement: “The review proceedings provided by this subsection shall be exclusive.” Pursuant to this authorization, Prince George’s County, by ordinance, created a Board of Administrative Appeals and authorized it to “hear and determine all administrative appeals allowed by ordinance or law” with exceptions not relevant here. See 1972 County Code, § 2-117. More particularly, § 4-242 of the County Code provided that: “The owner or occupant of a building or structure or any directly aggrieved person may appeal to the Board of Administrative Appeals from a decision of the Building Official refusing to grant a modification of the provisions of the Basic Code or of this Subtitle.[ 12 ] Application for appeal may be made when it is claimed that the true intent of the Basic Code or of this Subtitle has been incorrectly interpreted or applied.” (Emphasis supplied.) Section 4-242 further authorized the Board to “vary the application of any provision of the Basic Code or this Subtitle to any particular case when, in its opinion, the enforcement thereof would do manifest injustice, and/or would be contrary to the spirit and purpose of the provisions herein or the public interest, or when, in its opinion the interpretation of the Building Official shall be modified or reversed.” The county’s argument is this: (1) the Blumbergs are complaining that Mr. Novak had no authority to revoke the building permit, and no right to refuse to reissue it; (2) the relief sought, aside from damages, is an order directing Novak, or his successor, to reissue the permit; (3) Novak acted in the belief that because the Blumbergs had failed to comply ⁹⁶ with the contractor’s license law, and because WSSC had suspended and later revoked the water and sewer permits, a building permit was barred by § 4-230 of the County Code; 13 (4) his decision and action was therefore based upon an interpretation and application of the Basic Code, as amended; and (5) there is a special, and therefore exclusive, remedy for testing that decision and action, and seeking relief from it — namely, a petition to the Board of Administrative Appeals under § 4-242.

There is a rule, of course, well established in the law, that a litigant must exhaust his available administrative remedies before applying for judicial relief; equally well established, however, are some exceptions to the rule. In State Dep’t of A. & Tax. v. Clark, 281 Md. 385, 403 (1977), the Court of Appeals put it this way: “We have indicated ... that when an administrative remedy is provided by statute, relief provided under those statutory provisions must be exhausted before a litigant may resort to the courts. That is, such a remedy is exclusive, and the administrative body must not be by-passed by pursuing other remedies----However, ‘[tjhere are few absolutes in the law, and the rule that an administrative remedy must be exhausted before recourse is had to the courts is not one of them.’ ” (Citations omitted.) See also Poe v. Baltimore City, 241 Md. 303 (1966). Since it does not appear from the record extract that the county raised the exhaustion question of any of its pre-trial pleadings, we shall have to judge whether the doctrine, or an exception to it, applies based upon the evidentiary record ⁹⁷ made in the lower court, rather than upon just the allegations in the bill of complaint and amended bill of complaint. 14 The doctrine that requires a complainant to exhaust his administrative remedies before invoking the aid of a court traditionally rests upon two bases: one is pragmatic, the other more fundamental.

From a pragmatic point of view, administrative agencies are given the first opportunity to resolve a dispute (that is within their jurisdiction) because (1) they are presumed to have an expertise in the matter not possessed by courts, and (2) if given an opportunity to exercise that expertise, they may obviate all or part of the need for a judicial resolution. The more fundamental reason is simply that when a legislative body validly provides a special means of resolving certain disputes, it is incumbent upon the courts to follow the law and to respect and enforce that procedure. All of this, however, is subject to the underlying premise that an adequate administrative remedy does, in fact, exist; for, if there is no such remedy available, there is nothing to exhaust and neither purpose for the doctrine would be served. It is in this context and in light of the further requirement in § 4-242 of the County Code that a notice of appeal to the Board must be filed within 30 days “after the decision is rendered by the Building Official” that we judge the county’s argument.

The first grievance afforded the Blumbergs was Mr. Novak’s letter of April 12,1973, declaring the building permit null and void because of a failure to have a contractor’s license. That determination could have been appealed to the Board; but, since the letter made clear that the permit would be reissued as soon as proof of licensure was established, there was no need to file such an appeal. The Blumbergs, in fact, were licensed; and, based upon the letter, once they exhibited their license to Novak the permit would be reissued ⁹⁸ and that would be the end of the matter. Why waste a $100 filing fee for an unnecessary appeal?

The letter of April 19 presented a more serious dilemma. Here, Novak, on orders from his supervisor Gershenow, in turn on orders from the County Executive (at whose pleasure he served — see Prince George’s County Charter, Art. IV, § 402, Art. V, §§ 501, 504, 407), indicated that the permit would not be reissued until the “efficacy” of the WSSC permits was restored, certain court proceedings were resolved, and compliance with unspecified FAA regulations was assured. Here was a “Catch-22” masterpiece. WSSC had suspended the efficacy of its permits solely at Gullett’s request and because the county had lifted the building permit; no other reason was given or suggested in the Commission’s April 11 order or in Chairman Elliott’s testimony.

Now, the county was delaying (not denying, only delaying) reissuance of the building permit until the WSSC reinstated its water and sewer permits. What appeal lay from that? The county concedes that the Board of Appeals had no authority whatever to require WSSC to reinstate the efficacy of its water and sewer permits. See Board of Appeals v. Marina Apts., 272 Md. 691 (1974).

That impotence alone made ah administrative appeal essentially worthless, especially in light of the Commission’s subsequent Order of May 30,1973; even if the Board were able to direct, and did in fact direct, Novak to reissue the building permit, the Blumbergs would have been virtually in the same helpless position. It seems highly questionable, moreover, whether the Board had statutory jurisdiction even to entertain an appeal. All that Novak said in this April 19 letter was that the WSSC permits and two other “items of concern” would have to be resolved before reissuance of the building permit. Especially in light of Gullet’s assurances that if the height of the building was reduced the permit would be reissued, however, this was not a “final decision of the Building Official refusing to grant a modification of the provisions of the Basic Code or of [Subtitle 4]”, which is the only basis for an administrative appeal under § 4-242. 15 For one thing, from the letter itself, it was not a ⁹⁹ final decision by anyone.

Secondly, based upon the testimony of Novak and Gullett, it was clearly not Novak’s decision, but that of Gullett. And it had nothing whatever to do with modifying the provisions of the county building code. It seems clear, therefore, that resort to the Board of Appeals would have been entirely fruitless. Section 4-242 says nothing about appeals from a patently political decision of the County Executive.

We conclude, therefore, that the circuit court did have, and did properly exercise, jurisdiction. There was no adequate administrative remedy to be exhausted. (2) Did Prince George’s County Commit An Unlawful Act To the Injury Of Appellees In This Case?____ The county here contends that its revocation of the building permit was lawful, and that it should not be held responsible for anything improper that may have been done by WSSC. We shall examine these interesting arguments.

In support of its first claim, it says: (1) CB 77-1972 provided that a residential building permit “shall not be issued to any person except a duly licensed building contractor”, (2) when the permits in question were issued, the Blumbergs were not so licensed, (3) such permits were therefore void ab initio and conferred no rights whatever on the Blumbergs, and (4) consequently, the county’s action of April 12, 1973, was perfectly legal. The Court of Appeals, it is true, has stated on a number of occasions that a municipal authority is not estopped from asserting the invalidity of a building permit that was erroneously and unlawfully issued — that such a permit confers no rights upon its holder. See, for example, Lipstiz v. Parr, 164 Md. 222 (1933); Berwyn Heights v. Rogers, 228 Md. 271 (1962); Kent County v. Abel, 246 Md. 395 (1967); and cf. City of Hagerstown v. Long Meadow, 264 Md. 481 (1972). ¹⁰⁰ Those cases, however, and others reaching similar conclusions, involved not merely a defect in the issuance of the permit, but rather a situation in which the project authorized by the permit was itself illegal. In each case, the proposed structure was prohibited by the applicable zoning ordinance.

The illegality was not in the permit or the manner of its issuance, but rather in what it purported to authorize; and that illegality was a continuing one. Such is not the case here, of course. Not only was there no defect in the project, but by April 12,1973, there was nothing illegal about the permit either. Whatever violation had existed when the permit was first issued had already been cured.

The “void ab initio” theory has no relevance at all to this case. The county, ever resourceful, seeks to dismiss the annoying fact that the alleged violation had already been cured and that the Blumbergs were in fact in compliance with the law when their permit was suspended by asserting, as though it had some significance, that the Blumbergs had neglected to amend their application to reflect their subsequent licensure. This disingenuous non sequitur fails to account for the fact that nowhere in either the licensure law or the building code is there any requirement that such information be reported on an application for a building permit (much less that an application validly filed prior to enactment of the new law had to be retroactively amended). 16 The simple fact is that the county law defines very carefully the limited grounds for suspending or revoking a permit, and none of those grounds authorized, or were relied upon in, the April 12 suspension. 17 We turn then to the question of whether the lifting of the building permit became lawful because of the intervening ¹⁰¹ action of WSSC. Ordinarily, there would be a semblance of merit to this aspect of the county’s argument: absence or valid withdrawal of the WSSC water and sewer permits might, under § 4-280 of the County Code, justify the non-issuance, or even the suspension, of a building permit.

But where, as here, the evidence established that the action of WSSC on April 11 — the only action that was relied upon in the county’s letter of April 19 — had been orchestrated by the County Executive and was based solely upon the fact that the county had (wrongfully) suspended the building permit and had itself requested WSSC to take comparable action, the county will not be heard to lay the blame on WSSC and thereby justify an action that was otherwise wholly unjustifiable. Quite apart from the shared culpability of WSSC, an issue we shall discuss later in this Opinion, the county cannot hide behind actions of WSSC that it, the county, deliberately set in motion. 18 The answer to the county’s second question, therefore, is “yes”; it did commit an unlawful act to the injury of appellees. 19 (3) Governmental Immunity The county here asserts that even if, arguendo, revocation of the building permit was wrongful — even if based, as it says, “on an erroneous interpretation of County law or political motivation”, nevertheless, because the culpable county officials acted in a discretionary governmental capacity, the county is not answerable in damages for their wrongful acts. They seek support for this conclusion from Carey v. Baltimore County, 262 Md. 491 (1971), and Bradshaw v. Prince George’s County, 284 Md. 294 (1979). ¹⁰² We start with the proposition that, except for the doctrine of governmental immunity, a county is in the same position as anyone else whose wrongful acts cause damage to another person. Its only shield is the immunity it possesses as a governmental entity.

In 1970, Prince George’s County adopted a charter form of government. Included in its first charter, which became effective in February, 1971, was § 1013, which provided as follows: “Governmental Liability. The County may be sued in actions sounding in tort in the same manner and to the same extent that any private person may be sued. The County shall carry liability insurance with adequate limits to compensate for injury to persons or damage to property resulting from negligence and other wrongdoings of its officers, agents, and employees.

Nothing herein shall preclude the County from meeting the requirements of this section by a funded self-insurance program.” In Bradshaw v. Prince George’s County, supra, the Court of Appeals held this provision to be a valid and effective waiver of the county’s governmental immunity, not only with respect to its own corporate acts, but also for the “actionable tortious conduct” of its officers “for which liability can be imputed to the County.” 284 Md. at 302 . The Court went on, then, to discuss the circumstances under which such vicarious liability might exist. Bradshaw involved the actions (or non-action) of police officers, whom the Court concluded were in the status of “public officials”. Public officials, said the court, have a qualified immunity of their own, which is independent from that of the county, and rests upon a different basis.

They are “protected by a qualified immunity against civil liability for non-malicious acts performed within the scope of [their] authority.” Id. at 303. The key ingredients of this immunity are (1) the absence of malice, and (2) acting within the scope of authority. Public officials, in other words, have no liability for mere negligence. The “bottom line” of Bradshaw is that there can be no ¹⁰³ vicarious liability on the part of the county unless there is primary liability on the part of the public officials whose conduct created the injury.

Indeed, the actual decision in Bradshaw affirming summary judgments in favor of the county and the individual officers was based on the fact that the plaintiff had not alleged either malice or an abuse of authority on the part of the officers. This case proceeded upon an amended bill of complaint, filed in October, 1976, in which the Blumbergs sued not only the county and WSSC, but Gullett and Kelley as well. No other officials or employees of the county or WSSC were sued. As to Gullett, it was alleged that (1) he was the County Executive, (2) in that capacity he had “direct control” over the Department of Licenses and Permits and thus over the processing and issuing of building permits, (3) neither he nor any other official had authority to revoke a building permit except for fraud or misrepresentation (Basic Code, § 114.6), (4) although the Blumbergs complied with the April 12 directive, Gullett and the county refused to reissue the permit, and (5) a revised application for a 27-story structure was filed “upon representation by the Defendant Gullett that a building permit would be issued if the height of the 35-story building were reduced accordingly.” That constitutes the sum and substance of the pleaded allegations against Gullett, and indeed against any of the individual comity officials. 20 There was no direct allegation of malice on the part of anyone, and, as noted, the only specific complaint against Gullett that smacks of an excess of authority was that he refused to reissue the permit.

A full year after the amended complaint was filed, Gullett and Kelley filed a demurrer in which they asserted that they were not proper parties to the action, that they acted lawfully “in refusing to issue” building permits, and a number of special defenses not relevant here. They did not interpose their immunity or suggest that a cause of action had not been alleged (except to the extent of their claim that they were not ¹⁰⁴ “proper parties” to the action). After a hearing, the court sustained their demurrer on the grounds that (1) the plaintiffs “have lost nothing of consequence” and (2) there were no allegations that would entitle the Blumbergs to a judgment against them separate and apart from any judgment they might obtain against the county. The court stated further that because of its doubt that the Blumbergs “can amend to state a cause of action against these two men individually or would even want to do so if the Court gave them permission to do so”, the demurrer would be and was sustained without leave to amend.

The Blumbergs have challenged the correctness of this ruling in their cross-appeal, but because it is germane to the issue raised by the county, we shall consider it here. They assert that the amended complaint did state a cause of action against Gullett and Kelley, and that, in concluding that it did not, the court erred both in substance and by relying on a ground not raised in the demurrer. It is true that the demurrer, and the court’s expressed reason for sustaining it could (and should) have been more precise; but there is no doubt that the ruling was correct. The amended bill simply did not state a cause of action against Gullett or Kelley (or any other county official), and they were therefore properly dismissed.

With respect to the preclusion of further amendment, the printed record does not reveal that the Blumbergs ever asked for leave to amend or objected to the court’s denial of such leave. Accordingly, even if that aspect of the ruling would have amounted to an abuse of discretion under the principles recounted in Hertelendy v. Montgomery Cty., 245 Md. 554, 566 (1967), the issue has not been preserved for appellate review. From this, it might be argued that, as no cause of action lay against Gullett or any other county official, there could be no vicarious liability against the county. Indeed, this would seem to flow quite naturally from what the Court said in Bradshaw .

But things are never so easy. For whatever reason, the county never raised in the lower court the issue of its governmental immunity. It not only filed no pre-trial pleading ¹⁰⁵ asserting such a defense, but, at the conclusion of trial on the issue of liability, its counsel acknowledged that it was not interposing that defense. Under Maryland Rule 323 b, of course, a motion raising governmental immunity may be filed at any time, including on appeal; and, although it does not appear that the county has ever raised the defense by motion, as seemingly required by Rule 323, we shall nevertheless consider the argument. 21 In doing so, however, we shall, in terms of the county’s liability, look not solely at what was alleged in the amended bill as we would be obliged to do had the defense been raised prior to trial, but at what was shown at trial.

We know of no other way to fairly mesh Maryland Rules 323 b and 1085. If we are to consider the defense initially on appeal, in fairness to appellees and to the trial court, we must do so on the basis of the entire record before us. The question, then, is whether the circuit court found that any county public officials acted maliciously or in excess of their authority and, if so, whether there was sufficient evidence to support that finding. If so, the prerequisite for vicarious liability is present.

In announcing its findings and decision as to liability, the