In re Clough

1

IN THE MATTER OF CANDICE CLOUGH

No. 803-2023

Court of Special Appeals of Maryland

May 15, 2024

UNREPORTED ^[*]

Circuit Court for Montgomery County Case No C-15-CV-23-000012

Wells, C.J., Beachley, Raker, Irma S. (Senior Judge, Specially Assigned), JJ.

OPINION

Wells, C.J. Candice Clough, appellant, filed an administrative appeal to the Board of Appeals for Montgomery County ("the Board"), requesting review of three agency decisions. The Board dismissed the appeal upon a finding that it lacked subject matter jurisdiction over one of the decisions, and that the appeals from the other two decisions were filed after the time to do so had expired. Clough filed a petition for judicial review in the Circuit Court for Montgomery County, which affirmed the Board's decision. This timely appeal followed.

Clough presents eleven questions in her brief, the majority of which are outside of the scope of our review.^[1] The sole issue before this Court is whether the Board erred as a matter of law in determining that it lacked jurisdiction to consider Clough's appeal and granting summary disposition on that basis. For the reasons discussed below, we conclude that the Board did not err. Accordingly, we affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On February 12, 2020, a conditional use application was filed with the Montgomery County Office of Zoning and Administrative Hearings ("OZAH").^[2] The applicant sought approval to develop property, identified as 19105 N. Frederick Road, Gaithersburg ("Subject Property"), for use as an independent living facility for senior citizens. Clough did not participate in the public hearing on the application. On July 1, 2020, OZAH issued a written decision approving the conditional use application.

On April 26, 2022, the Montgomery County Department of Permitting Services ("DPS") issued a sediment control permit for the Subject Property. On May 12, 2022, DPS issued a building permit for the construction of a senior apartment building on the Subject Property.

On October 10, 2022, Clough filed an administrative appeal with the Montgomery County Board of Appeals ("the Board"). She challenged the conditional use approval as well as the issuance of the sediment control and building permits. The title owner of the Subject Property, Frederick Road Senior 4% Owner, LLC ("Frederick Road"), which had intervened in the proceedings before the Board, filed a motion for summary disposition on grounds that the appeal was untimely. Montgomery County ("the County") filed a motion for summary disposition on the same grounds. The County further asserted that the Board had no jurisdiction to review the issuance of a sediment control permit.

The Board heard oral argument on the motions for summary disposition. Clough, proceeding as a self-represented litigant, argued against dismissal on grounds that she had no notice of the application for conditional use or the hearing examiner's decision approving the application until August 2022.^[3] She said that the sign that had been posted on the Subject Property, which she evidently never saw, was "not adequate notice" because its location would have been difficult to see from a moving vehicle.

On December 9, 2022, the Board issued a written opinion dismissing the appeal for lack of jurisdiction. The Board reasoned that it had no authority to review the issuance of the sediment control permit, and that the time for filing an appeal from the issuance of the building permit and the approval of the conditional use application had expired. Addressing Clough's claim of lack of notice, the Board found that "all notice requirements were met prior to the granting of" the conditional use application. The Board based that finding on an exhibit in a substantively identical administrative appeal filed by Joseph Gothard, which, the Board noted, had also been dismissed for lack of jurisdiction.^[4] The exhibit referred to by the Board is not part of the record in this appeal. The Board further found that Clough was not legally entitled to receive mailed notice of the decision approving the conditional use application or the issuance of the building permit.^[5] Clough sought judicial review in the Circuit Court for Montgomery County. Following a hearing, the court affirmed the Board's conclusion that it lacked jurisdiction to review the decisions at issue. On the issue of notice, the court agreed with the Board's conclusion that Clough was not entitled to notice at any stage of the process that resulted in the approval of the conditional use application because she was not an "abutting or confronting property owner[,]" and she had not participated in the public hearing. The court further found that the Montgomery County Code ("County Code") does not require DPS or permit holders to notify surrounding property owners of the issuance of a building permit. This timely appeal followed.^[6]

STANDARD OF REVIEW

In reviewing a circuit court decision on appeal from a decision of an administrative agency, such as a county board of appeals, this court "'looks through the circuit court's . . . decision[], although applying the same standards of review, and evaluates the decision of the agency.'" Anne Arundel Cnty. v. 808 Bestgate Realty, LLC, 479 Md. 404, 419, rev'd on other grounds, 479 Md. 404 (2022) (quoting People's Counsel for Balt. Cnty. v. Surina, 400 Md. 662, 681 (2007)). "We review the agency's decision in the light most favorable to it, and we presume it to be valid." Id. (citing Assateague Coastal Trust, Inc. v. Schwalbach, 448 Md. 112, 124 (2016)).

In this case, the agency decision at issue is the Board's order granting summary disposition. Rule 3.2.2 of the Montgomery County Board of Appeals Rules of Procedure provides as follows:

Motion for summary disposition. Any party may file a motion to dismiss any issue in a case on the grounds that the application and other supporting documentation establish that there is no genuine issue of material fact to be resolved and that dismissal or other appropriate relief should be rendered as a matter of law.

"The legal standard for granting summary disposition is the same as that for granting summary judgment under Maryland Rule 2-501(a)." Brawner Builders, Inc. v. State Highway Admin., 476 Md. 15, 31 (2021). "[S]ummary disposition is appropriate if 'there is no genuine issue of material fact[,] and [a] party is entitled to prevail as a matter of law.'" Id. (citation omitted)).

"It is well-settled that the propriety of granting a motion for summary disposition is a legal question which we review de novo." Id. at 30-31. "When reviewing conclusions of law, . . .no . . . deference is given to the agency's conclusion." 808 Bestgate, 479 Md. at 419 (citations omitted). "[A]lthough we often will give considerable weight to the agency's experience in interpreting a statute that it administers, it is within our prerogative to determine whether an agency's conclusions of law are correct, and to remedy the situation if found to be wrong.'" Id. at 419-420 (quoting John A. v. Board of Ed. for Howard Cnty., 400 Md. 363, 382 (2007)).

DISCUSSION

A. The Board Did Not Err in Dismissing the Appeal From the Conditional Use Decision.

The Board's jurisdiction is set forth in Chapter 2 of the County Code. As it relates to the issue before us, the Code provides that the Board has jurisdiction to "hear and decide each . . . conditional use appeal, unless Chapter 59 directs otherwise." County Code sec. 2112. Chapter 59, in turn, requires that an appeal from a decision of the hearing examiner be filed within 10 days after the issuance of the hearing examiner's report and decision. County Code sec. 59.7.3.1.F.1.c. The Supreme Court of Maryland has "consistently held" that, where a statutory provision establishes a time for filing an appeal, and the appeal was not filed within the prescribed period, "the appellate tribunal ha[s] no authority to decide the case on its merits." United Parcel Service, Inc. v. People's Couns. for Balt. Cnty., 336 Md. 569, 580 (1994) (citing Dabrowski v. Dondalski, 320 Md. 392, 397-98 (1990); Walbert v. Walbert, 310 Md. 657, 662 (1987)).

Here, the hearing examiner's decision was issued on July 1, 2020, therefore, the time to appeal expired on July 11, 2020. It is undisputed that Clough filed her appeal on October 10, 2022, over two years later. Consequently, the Board lacked authority to review the hearing examiner's decision. The Board did not err in granting summary disposition and dismissing the appeal from the conditional use approval.^[7]

Clough contends that the Board erred in granting summary disposition because, according to Clough, there was no evidence of compliance with the notice provisions applicable to a conditional use application. In response to this claim, Frederick Road asserts that the issue of notice is irrelevant to the question of the Board's jurisdiction to hear the appeal.^[8] We agree with Frederick Road. A county board of appeals "is purely a statutory creature and may exercise only those powers expressly granted to it by law or those which can be fairly implied." Halle Companies v. Crofton Civic Ass'n, 339 Md. 131, 140 (1995) (citation omitted). We find nothing in Chapter 2 or Chapter 59 of the County Code that authorizes the Board to extend the time to appeal a decision of the hearing examiner. Accord United Parcel, 336 Md. at 580-81 (holding that, where county code provides, without exception, that an appeal from the issuance of a building permit begins to run from a fixed date, the county board of appeals has no authority to apply the "discovery rule" to extend the time to appeal).

B. The Board Did Not Err in Dismissing the Appeal from the Issuance...