Maharaj v. Smith Ballooning, LLC

1

SUSAN MAHARAJ, et al. v. SMITH BALLOONING, LLC, et al.

No. 368-2022

Court of Special Appeals of Maryland^[**]

January 12, 2023

Circuit Court for Frederick County Case No. C-10-CV-21-000162

Leahy Beachley, Meredith, Timothy E. (Senior Judge, Specially Assigned), JJ.

OPINION ^[*]

Beachley, J Appellants, Susan Maharaj and Erich Blatter, filed suit in the Circuit Court for Frederick County against appellees, Smith Ballooning, LLC, Patrick Smith, Meagan Smith, and Kevin Smith; Barbara and Luke Galant; Thomas Barse and Carolann McConaughy, d/b/a Milkhouse Brewery at Stillpoint Farm (collectively, "Milkhouse Brewery"); and Berrywine Plantations, Inc. Appellants' operative complaint alleged that appellees committed, or aided others in committing, various torts against appellants related to the flying of hot air balloons over or near appellants' home. In addition to requesting an injunction against further tortious conduct, appellants sought to enjoin appellees from launching and landing hot air balloons from properties near appellants' home. Appellees filed motions to dismiss the claim for injunction, alleging that appellants failed to exhaust certain administrative remedies provided in the Frederick County Zoning Ordinance. The circuit court granted appellees' motions to dismiss. Appellants noted this timely appeal and present a single question for our review, which we have rephrased:^[1]

Did the court err in granting appellees' motions to dismiss the claim for injunctive relief on the basis that appellants failed to exhaust administrative remedies provided in the Frederick County Zoning Ordinance?

In their brief, appellees assert that this appeal is precluded by the final judgment rule. We first conclude that this appeal is a proper interlocutory appeal. On the merits, we conclude that although the circuit court was correct in ruling that appellants must exhaust administrative remedies to the extent their claim for injunctive relief is based on an interpretation of zoning regulations, the court erred in dismissing appellants' request for injunctive relief based on appellees' alleged tortious conduct.

FACTUAL AND PROCEDURAL BACKGROUND^[2]

This appeal arises from a longstanding dispute between appellants, who live in a rural area of Frederick County, and Smith Ballooning, Inc., an entity that provides hot air balloon tours in the county. Smith Ballooning is owned by Patrick Smith, Meagan Smith, and Kevin Smith. Smith Ballooning, which does business as Tailwinds Over Frederick, launches and lands hot air balloons at multiple locations across Frederick County, including three locations relevant to the present case: a residential property owned by Barbara and Luke Galant (the "Galant property"), Milkhouse Brewery, and Berrywine Plantations. The Galant property is located directly across the street from appellants' property. Milkhouse Brewery is "1.5 miles away" from appellants' property. Appellants allege that Berrywine Plantations "is in close enough proximity to [appellants' property] that flights undertaken to/from [Berrywine Plantations] are believed to maneuver over and/or within the direct proximity of" appellants' property. When launching from or landing at these locations, the hot air balloons would sometimes fly at a low altitude over or near appellants' property, affording passengers a clear view of the property. Additionally, the burners used during flight made a loud noise audible from inside appellants' home.

Appellants contacted the Smiths on multiple occasions to inform them of the problems stemming from flights over or near their property. Smith Ballooning nevertheless continued to launch from and land at appellees' properties. Appellants contacted the Frederick County Zoning Administrator about the balloon launches and landings occurring on the Galant property. In July 2020, Kathy Evans, a representative of the Zoning Administrator, contacted Patrick Smith about Smith Ballooning's use of the Galant property. In a phone call, Ms. Evans "told Patrick Smith that despite having the Galants' permission, [Smith Ballooning does] not have approval from Frederick County Zoning to conduct such activities from the Galant property." After this conversation, Ms. Evans drafted a letter to the Galants informing them that they were in violation of Frederick County Ordinance 1-19-2.110,^[3] but this letter was apparently never mailed. During a subsequent conversation with the Zoning Administrator, Patrick Smith agreed to no longer launch or land at the Galant property, after which the Zoning Administrator considered the matter closed. The Zoning Administrator was never made aware of launches and landings at Milkhouse Brewery or Berrywine Plantations.

On April 16, 2021, appellants filed a complaint in the Circuit Court for Frederick County against Smith Ballooning, Patrick Smith, and the Galants. The complaint contained four counts: Invasion of Privacy, Private Nuisance, Trespass, and Aiding and Abetting Tortious Conduct. Appellants sought an injunction based on each of these claims, as well as monetary damages.

Appellants filed their First Amended Complaint on December 15, 2021. The First Amended Complaint added the following defendants: Meagan Smith and Kevin Smith (owners/agents of Smith Ballooning); Thomas Barse and Carolann McConaughy (the owners of Milkhouse Brewery); and Berrywine Plantations, Inc. In their First Amended Complaint, appellants added a separate count for "Injunctive Relief," while continuing to also request an injunction in the prayers for relief associated with each individual tort count. Appellants sought to enjoin appellees from "conducting and/or assisting, supporting, supplementing, encouraging, instigating and/or advising," the flights of commercial hot air balloons from the appellee property owners' properties. Appellants also added counts for "Loss of Consortium" and "Strict Liability for Abnormally Dangerous Activity."

On March 25, 2022, appellants filed their Second Amended Complaint, the operative complaint for this appeal. In the "Factual Allegations" section of the operative complaint, appellants alleged that passengers on the balloon flights were able to observe appellants "in the casual enjoyment of their property," including photographing and videotaping appellants on their property. Appellants further alleged that the balloon burners "make loud and audible noise" and "emit fumes which are perceptible" by appellants, thereby disrupting the appellants' enjoyment of their home and property. Appellants alleged that the Galants, Milkhouse Brewery, and Berrywine Plantations "encouraged, incited, aided or abetted" Smith Ballooning's tortious conduct. In their count for injunctive relief, appellants averred that the appellees' "conduct is tortious, and constitutes invasion of privacy, trespass, nuisance, loss of consortium, strict liability for an abnormally dangerous condition and/or the aiding or abetting of those torts." Appellants maintained without substantive change Count I for Injunctive Relief against all appellees as it initially appeared in their First Amended Complaint.^[4]

Appellees Smith Ballooning, the Smiths, and the Galants filed a Motion to Dismiss or in the Alternative, Motion for Partial Summary Judgment. They argued that appellants' claims were preempted by federal law because all claims involving the flying of aircraft are regulated by the Federal Aviation Administration ("FAA"). Smith Ballooning, the Smiths and the Galants further argued that appellants failed to exhaust administrative remedies available to them through the FAA, and asserted that an order enjoining Smith Ballooning from flying over or near appellants' property would interfere with their right to utilize navigable airspace. Appellees Berrywine Plantations, Milkhouse Brewery, and the Smiths also filed separate motions to dismiss in which they argued that Count I of the operative complaint for "Injunctive Relief" failed to state a claim upon which relief could be granted, providing two bases for their motions: (1) an injunction is a remedy, not a stand- alone cause of action, and (2) appellants failed to sufficiently allege that they will suffer irreparable harm as a result of appellees' actions.^[5]

In appellants' opposition to the motions, they asserted that FAA regulations were not implicated because they did not seek to enjoin Smith Ballooning from flying over or near their property. Rather, appellants argued that, because they sought to enjoin Smith Ballooning from launching balloons from appellees' properties, regulatory authority of the ballooning activity was controlled by Frederick County Zoning Ordinance. In response, appellees argued that appellants failed to exhaust their administrative remedies before the Frederick County Zoning Administrator and Board of Appeals as provided in the Frederick County Code.

The court held a hearing on appellees' motions on March 31, 2022. At the hearing, appellees argued that "the Frederick County courts have no authority to prohibit the overflights of the balloons," which appellees argued was appellants' ultimate aim. In appellees' view, "the regulation of aircraft, air space and airmen lies within the total jurisdiction of the federal government." Appellees alternatively contended that, although appellants had made a complaint to the Zoning Administrator, they failed to exhaust their administrative remedies as provided in the Frederick County Zoning Ordinance.

Appellants responded that they were unable to appeal the Zoning Administrator's decision because, first, they were not made aware of any such determination, and second, the Zoning Administrator did not affirmatively conclude that there was no zoning violation, but rather used his...