United Parcel Service, Inc. v. People's Counsel

ELDRIDGE, Judge. This case involves procedural issues relating to the exercise of jurisdiction by a county board of appeals. I. The controversy originated with United Parcel Service’s, and its subsidiary Verbal Corporation’s, 1 desire to establish a parcel distribution facility in the Loveton Industrial Park at 14402 York Road, in Baltimore County. The Loveton Industrial Park has been zoned Manufacturing Light (ML) since 1973.

UPS had targeted Loveton Industrial Park as an ⁵⁷² appropriate site for a distribution center as early as 1985, prior to acquiring the property. In furtherance of its plans to acquire land and construct a facility at the Loveton site, UPS approached the Baltimore County Zoning Commissioner to obtain an informal determination whether its plans for the site conformed with the County’s zoning laws. At a meeting on June 14, 1985, the Commissioner orally advised UPS that its proposed use at the Loveton site was permitted as of right under the applicable zoning classification. On July 8,1985, UPS sent a letter to the Commissioner, seeking confirmation of his view.

The letter was returned to UPS with the addition of a marginal note, dated July 10, 1985, in which the Commissioner wrote: “The aforementioned use of this property zoned ML is one that is permitted as of right & is OK.” Subsequently, UPS purchased a 36-acre parcel within Loveton Industrial Park. In order to construct a building in Baltimore County, one first must obtain a building permit from the Office of the Building Engineer, which is part of the Department of Permits and Licenses. Baltimore County Code (BCC) §§ 7-1, 7-36(a) (1988). 2 Upon the filing of an application for a building permit, the Building Engineer provides the Zoning Commissioner with a copy of the application for his approval before a permit may issue. Baltimore County Zoning Regulations § 500.1.

The Commissioner determines whether the application is in proper form and whether the proposed use “complies in all respects with the regulations then in effect with respect to zoning.” Ibid. If the Commissioner approves the application, and all other requirements are met, the Building Engineer may then issue a building permit. If the application is denied, the applicant may petition the County Board of Appeals for review of the denial. BCC § 7-36(a)(3, 4). ⁵⁷³ On July 3,1986, UPS applied to the Building Engineer for a building permit.

Its application was approved by the Zoning Commissioner’s office on August 18, 1986. After several other approvals were forthcoming, the Baltimore County Building Engineer issued the building permit on October 28, 1986. After commencement of construction, Mr. Paul Hupfer, a local citizen, wrote a letter, dated January 11, 1987, to the Director of the Office of Planning and Zoning for Baltimore County. The letter referred to the construction of “a large warehouse style building in the Loveton Industrial Park which will be ... used ... by UPS,” described what Mr. Hupfer believed would be the manner in which the building would be used, and asserted that the proposed use was not a permitted use.

Mr. Hupfer stated that the facility fell within the category of “Trucking Terminal, Class I,” which was permitted in the ML zone only by special exception. Mr. Hupfer pointed out that his search of the records disclosed no filing for a special exception for this facility. He “requestfed] that this letter be considered a formal recorded objection.” The Zoning Commissioner responded with a letter dated January 19, 1987. The Commissioner’s letter stated in part as follows: “The property in question is zoned ML, which permits warehousing as of right.

After review of the UPS proposal, it was determined that the proposed use was and is in fact a warehouse, rather than a trucking facility as you suggest. Although obviously large trucks will be utilizing the facility, loading and unloading, the purpose of the site is to warehouse packages until such time as they are loaded for delivery.... I have determined that the use more closely resembles that of a warehouse than as a trucking facility.... [T]hus the building permit was issued. ij: # sk :Js ^ * “In fact, your description of what would transpire at the site underscores the warehousing aspect of the proposed use. Transfer of the packages to other locations for final distribution is but one characteristic of a warehousing oper ⁵⁷⁴ ation.

I am more convinced than ever that the UPS is a warehouse operation and does not require a spécial exception.” Mr. Hupfer, joined by the Sparks-Glencoe Community Association, the Sparks-Quaker Bottom Community Association, and the Alexander Crossing Homeowners Association, Inc., in a letter to the Zoning Commissioner dated February 8, 1987, requested that the “letter decision dated January 19, 1987 ... be set for an appeal hearing before the County Board of Appeals of Baltimore County.” Specifically, he stated that the matter to be decided was whether the UPS building permit “should be revoked for failure of UPS to apply for a Special Exception.... The ... issue is my total disagreement with your interpretation that the facility being constructed by UPS is a warehouse.” UPS contested the Board of Appeals’ authority to entertain an appeal, arguing that any appeal should have been taken within 30 days from the issuance of the building permit. On April 29, 1987, the Board held a hearing, and on May 20, 1987, it decided that it had the authority to entertain the appeal. The Board rejected the argument by Mr. Hupfer and the associations that the Zoning Commissioner’s January 19,1987, letter to Mr. Hupfer was an appealable decision; in the Board’s view, the Zoning Commissioner in 1987 simply confirmed his earlier decision.

Nevertheless, the Board held that Mr. Hupfer and the associations could appeal from the “decision by Commissioner Jablon [that] was made no later than July 10, 1985, when his written interpretation of the proposed use was communicated to UPS.” Moreover, without conducting an evidentiary hearing, the Board decided that the appeal from the 1985 “decision” was not subject to a timeliness objection, even though the Baltimore County Code required that appeals from decisions of the Zoning Commissioner be taken within 30 days. The Board reasoned that the “discovery rule,” as applied to the running of the general statute of limitations in Pierce v. Johns-Manville Sales Corp., 296 Md. 656 , 464 A.2d 1020 (1983), was applicable under the circumstances. The Board stated: “Al ⁵⁷⁵ though the appeal to this Board from ... [the Zoning Commissioner’s] decision was well beyond the thirty-day period ..., we still believe it to be timely. It is clear that the appellants herein first discovered Zoning Commissioner Jablon’s determination upon receipt of his letter of January 19, 1987.

Further, their efforts to ascertain the Commissioner’s position were, in our view, diligent.” Thus, the Board held that the 30-day period for an appeal did not begin to run until receipt of the January 19, 1987, letter, when Mr. Hupfer and the various associations “reasonably discovered” the harm. The appeal to the Board was deemed to be timely because it was instituted within 30 days of January 19th. UPS, joined by Baltimore County, then sought judicial review of this determination in the Circuit Court for Baltimore County. The circuit court dismissed the action, agreeing with Mr. Hupfer, the associations, and the People’s Counsel for Baltimore County, that the Board’s interlocutory decision was not immediately reviewable. 3 The Court of Special Appeals, in an unreported opinion, affirmed, and this Court denied a petition for a writ of certiorari, Verbal Corp. v. Hupfer, 313 Md. 31 , 542 A.2d 858 (1988).

The merits of the case were then heard by the Board of Appeals. In a 2-1 decision, the Board held that the use determination was properly made and that no special exception was necessary. It alternatively held that UPS’s use of the property was permitted under the “equitable doctrine of estoppel.” The protestants then brought in the Circuit Court for Baltimore County an action for judicial review. They challenged the Board’s rulings on the merits; they also argued that the Zoning Commissioner’s January 19, 1987, letter was an appealable decision and furnished the basis for the Board’s authority to decide the case.

In addition, UPS filed an action for judicial review, seeking review of the Board’s decision that ⁵⁷⁶ it had authority to entertain the appeal. The circuit court rejected UPS’s contention that the Board of Appeals lacked authority to entertain the appeal. Moreover, the circuit court reversed the Board’s decision on the merits, holding that the proposed facility was, as a matter of law, a trucking terminal. The court also held that the doctrine of equitable estoppel could not be applied to save “an illegal use.” The circuit court remanded the case to the Board of Appeals for a determination of whether a special exception was warranted.

UPS and Baltimore County appealed, and the Court of Special Appeals affirmed in a 2-1 decision, United Parcel v. People’s Counsel, 93 Md.App. 59 , 611 A.2d 993 (1992). The intermediate appellate court held that (1) the circuit court was correct in reversing the Board of Appeals’ decision on the merits, (2) the doctrine of equitable estoppel was not available to save an illegally issued building permit, (3) the January 19, 1987, letter by the Zoning Commissioner to Mr. Hupfer was a “decision” within the meaning of § 26-132 of the Baltimore County Code, and therefore appealable to the Board of Appeals, and (4) the “appeal” taken to the Board of Appeals was within the 30-day time period. UPS and Baltimore County filed in this Court petitions for a writ of certiorari which we granted, 329 Md. 338 , 619 A.2d 547 (1993). We shall hold that the Board of Appeals, the circuit court and the Court of Special Appeals erred as a matter of law when they held that the Board of Appeals had authority to entertain an appeal from the Zoning Commissioner’s 1985 margin note to UPS or from his January 19, 1987, letter to Mr. Hupfer.

Therefore, we do not reach, and the tribunals below should not have reached, the issues relating to permitted use and estoppel. 4 II. Judicial review of administrative agency action is narrow. The court’s task on review is not to “ ‘substitute its ⁵⁷⁷ judgment for the expertise of those persons who constitute the administrative agency,’ ” Bulluck v. Pelham Woods Apts., 283 Md. 505, 513 , 390 A.2d 1119, 1124 (1978), quoting Bernstein v. Real Estate Comm., 221 Md. 221, 230 , 156 A.2d 657, 662 (1959), appeal dismissed, 363 U.S. 419 , 80 S.Ct. 1257 , 4 L.Ed.2d 1515 (1960). A reviewing “Court may not uphold the agency order unless it is sustainable on the agency’s findings and for the reasons stated by the agency.” United Steelworkers v. Beth.

Steel, 298 Md. 665, 679 , 472 A.2d 62, 69 (1984). A court’s role is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. See, e.g., Younkers v. Prince George’s County, 333 Md. 14, 18-19 , 633 A.2d 861, 863 (1993); Maryland State Police v. Lindsey, 318 Md. 325, 334 , 568 A.2d 29, 33 (1990); People’s Counsel v. Maryland Marine, 316 Md. 491, 496-497 , 560 A.2d 32, 34-35 (1989); State Election Bd. v. Billhimer, 314 Md. 46, 58 , 548 A.2d 819, 826 (1988), cert. denied, 490 U.S. 1007 , 109 S.Ct. 1644 , 104 L.Ed.2d 159 (1989); Balto. Lutheran High Sch. v. Emp.

Sec. Adm., 302 Md. 649, 661-662 , 490 A.2d 701, 708 (1985) (“ordinarily, the court reviewing a final decision of an administrative agency shall determine (1) the legality of the decision and (2) whether there was substantial evidence from the record as a whole to support the decision”). Throughout this case two grounds have been advanced in support of the protestants’ contention that the Board of Appeals had the authority to entertain this case on the merits. First, the Board of Appeals specifically held that, under the “discovery rule,” an appeal in 1987 could be taken from the Zoning Commissioner’s “decision” of July 10, 1985. Alternatively, the protestants have argued that the January 19, 1987, letter by the Commissioner to Mr. Hupfer was a final decision by the Zoning Commissioner subject to appeal.

The Board of Appeals ruled upon both theories, and, as previously stated, held that it could exercise jurisdiction under the first theory. The Court of Special Appeals upheld the Board’s exercise of jurisdiction based on the second of these theories. We hold ⁵⁷⁸ that, as a matter of law, neither event could serve as the basis for the Board’s authority to entertain the case. A. The Baltimore County statute authorizing appeals to the Board of Appeals from decisions of the Zoning Commissioner, BCC § 26-132(a), states that “[n]otice of such appeals shall be filed ... within thirty (30) days from the date of any final order appealed____” The Board of Appeals concluded that an appeal could be maintained from the Zoning Commissioner’s marginal note dated July 10,1985, although more than a year had passed since then.

It premised its holding on the “discovery rule.” The Board stated that the Zoning Commissioner’s use determination for the UPS facility occurred during the exchanges between the Commissioner and UPS in 1985. Furthermore, the Board, without holding an evidentiary hearing, “found” that Mr. Hupfer was unaware of the Zoning Commissioner’s 1985 use determination until receipt of the Commissioner’s letter dated January 19, 1987. Therefore, according to the Board, the 30-day appeal period did not begin to run until Mr. Hupfer’s receipt of the January 19, 1987, letter, when Mr. Hupfer could reasonably have been expected to know of.the Zoning Commissioner’s determination. The so-called “discovery rule” is a principle of statutory construction and application, which is employed to determine when a cause of action has “accrued” within the meaning of that term in a statute of limitations.

See, e.g., Hecht v. Resolution Trust, 333 Md. 324 , 635 A.2d 394 (1994); Pierce v. Johns-Manville Sales Corp., supra, 296 Md. 656 , 464 A.2d 1020 ; Poffenberger v. Risser, 290 Md. 631 , 431 A.2d 677 (1981). Those cases specifically involved the general statute of limitations set forth in Maryland Code (1974, 1989 Repl. Vol., 1994 Cum.Supp.), § 5-101 of the Courts and Judicial Proceedings Article, which provides (emphasis added): “A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code ⁵⁷⁹ provides a different period of time within which an action shall be commenced.” No definition of the word “accrues” is provided in the statute. “Because the term ‘accrue’ is undefined by the legislature, the question of accrual is left to judicial determination.” Hecht v. Resolution Trust, supra, 333 Md. at 333, 635 A.2d at 399 . See Pierce v. Johns-Manville Sales Corp., supra, 296 Md. at 664 , 464 A.2d at 1025 .

We have held that, generally, a cause of action “accrues” within the meaning of § 5-101 when “the plaintiff knows or should know of the injury, its probable cause, and ... [the defendant’s] wrongdoing.... ” Hecht, 333 Md. at 336 , 635 A.2d at 400 . As previously indicated, the Baltimore County statute authorizing appeals to the Board of Appeals, § 26-132 of the Baltimore County Code, states as follows: “(a) Any person or persons, jointly or severally, or any taxpayer aggrieved or feeling aggrieved by any decision or order of the zoning commissioner or the director of zoning administration and development management shall have the right to appeal therefrom to the county board of appeals. $ $ $ ^ $ “Notice of such appeals shall be filed, in writing, with the director within thirty (30) days from date of any final order appealed, together with the required fee as provided in the zoning regulations.” The above-quoted section is not a statute of limitations. Instead, it is a “time for appeal” provision like that set forth in Maryland Rule 8-202(a) (“the notice of appeal shall be filed within 30 days after entry of the judgment or order from which the appeal is taken”). Section 26-132 of the Baltimore County Code, like Rule 8-202(a), specifies the time for appealing from a decision by an official or tribunal exercising original jurisdiction to an appellate tribunal within the same governmental framework.

A statute of limitations, on the other ⁵⁸⁰ hand, typically concerns the time for filing an original cause of action, complaint or request. Like other “time for appeal” provisions, BCC § 26-132 neither contains the word “accrues” nor speaks in terms of accrual. Moreover, there is no language in § 26-132 which could furnish the basis for a flexible doctrine like the discovery rule. Rather, the time for appeal begins to run from a fixed date.

In mandatory language, the Baltimore County statute states that a notice of appeal “shall” be filed within thirty days of the decision from which the appeal is taken. Under language like that set forth in BCC § 26-132, this Court has consistently held that, where the notice of appeal was not filed within the prescribed period after the final decision from which the appeal was taken, the appellate tribunal had no authority to decide the case on its merits. See, e.g., Dabrowski v. Dondalski, 320 Md. 392, 397-398 , 578 A.2d 211, 214-215 (1990); Walbert v. Walbert, 310 Md. 657, 662 , 531 A.2d 291, 293 (1987), and cases there cited. A case very much on point is Miller v. Pinto, 305 Md. 396 , 504 A.2d 1140 (1986).

In Miller , Mr. and Mrs. Pinto received approval from the Kent County Zoning Administrator for their intended use of their property. The Zoning Administrator, in a letter dated August 20, 1982, gave his express approval of the intended use. In April of 1983, an adjacent property owner, Mr. Miller, took an appeal to the Board of Appeals from the Zoning Administrator’s letter of August 1982. Like BCC § 26-132, the Kent County zoning ordinance required that an appeal from the final decision of the Zoning Administrator be taken within 30 days.

This Court held that the Kent County Board of Appeals had no appellate jurisdiction over the case, as “the 30-day period had expired long before Miller filed an application for review of the Zoning Administrator’s August 1982 letter....” 305 Md. at 405 , 504 A.2d at 1144 . Consequently, the Board of Appeals erred in holding that, under the “discovery rule,” the protestants’ appeal could be ⁵⁸¹ treated as a timely appeal from the 1985 advice and marginal note from the Zoning Commissioner. 5 B. The protestants' principal argument, both at the administrative level and before the courts, has been that the January 19, 1987, letter from the Zoning Commissioner to Mr. Hupfer constituted an appealable event. If the January 19th letter was appealable, then the appeal taken on February 8, 1987, was timely, and the Board was authorized to decide the merits of the case. The protestants rely on language in the Express Powers Act, Maryland Code (1957, 1994 Repl.

Vol.), Art. 25A, § 5(U), on the Baltimore County Charter, and on BCC § 26-132(a). Baltimore County is a charter county pursuant to Article XI-A of the Maryland Constitution. Article 25A, § 5, of the Maryland Code enumerates the express powers which are granted to and conferred upon any county which adopts a charter under Article XI-A of the Constitution. Section 5(U) of Article 25A provides the authority for a charter county “[t]o enact local laws providing (1) for the establishment of a county board of appeals ... and (4) for the decision by the ⁵⁸² 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, as shall be specified from time to time by such local laws enacted under this subsection: An application for a zoning variation or-exception ...; the issuance, renewal, denial, revocation, suspension, annulment, or modification of any license, permit, approval, ... or other form of permission or of any adjudicatory order.... ” (Emphasis added).

The appellate jurisdiction of a board of appeals set forth in Art. 25A, § 5(U), is incorporated by reference into § 602(d) of the Baltimore County Charter, which provides as follows: “Appeals from executive, administrative and adjudicatory orders. The county board of appeals shall hear and decide appeals from all other administrative and adjudicatory orders as may from time to time be provided by Article 25A of the Annotated Code of Maryland (1957 Edition), as amended, or by legislative act of the county council not inconsistent therewith.” The protestants have consistently argued, and the Court of Special Appeals agreed, that the January 19, 1987, letter “constitutes an ‘action of an administrative officer’ relating to an ‘approval ... or other form of permission’ under Art. 25A, § 5(U).” See 93 Md.App. at 83 , 611 A.2d at 1005 . The protestants also argue