Jane Huggins v. Prince George's County, MD , 683 F.3d 525 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JANE POWERS HUGGINS, trading as 
SADISCO of Maryland,
Plaintiff-Appellant,
v.
PRINCE GEORGE’S COUNTY,
MARYLAND; CYNTHIA D. BARRY,
Individually and in her Official
Capacity as Zoning Inspector’s
Supervisor for the Prince George’s
County Department of
Environmental Resources; ERV T.
BECKERT, Individually and in his  No. 10-2366
Official Capacity as District
Engineer in the Prince George’s
County Department of Public
Works and Transportation; JEFFREY
M. DEHAN, Individually and in his
Official Capacity as Code
Enforcement Officer in the
Community Standards Division,
Site Development Inspection
Section of the Prince George’s
County Department of
Environmental Resources;

2 HUGGINS v. PRINCE GEORGE’S COUNTY
THOMAS F. MATZEN, Individually 
and in his Official Capacity as
Associate Director of the
Community Standards Division of
the Prince George’s County
Department of Environmental
Resources; ANNE E. WILLIAMS,
Individually and in her Official
Capacity as Environmental Crimes

Specialist for the Division of
Environmental Health of the
Prince George’s County
Department of Public Works and
Transportation,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Alexander Williams, Jr., District Judge.
(8:07-cv-00825-AW)
Argued: May 16, 2012
Decided: June 27, 2012
Before AGEE and DIAZ, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by published opinion. Senior Judge Hamilton wrote
the opinion, in which Judge Agee and Judge Diaz joined.
HUGGINS v. PRINCE GEORGE’S COUNTY 3
COUNSEL
ARGUED: Matthew Woodruff Sawchak, ELLIS & WIN-
TERS, LLP, Raleigh, North Carolina, for Appellant. William
Walter Wilkins, NEXSEN PRUET, LLC, Greenville, South
Carolina, for Appellees. ON BRIEF: Thomas H. Segars, Jer-
emy M. Falcone, ELLIS & WINTERS, LLP, Raleigh, North
Carolina; Linda S. Woolf, K. Nichole Nesbitt, GOODELL
DEVRIES LEECH & DANN, LLP, Baltimore, Maryland, for
Appellant. Shelley Lynn Johnson, PRINCE GEORGE’S
COUNTY OFFICE OF LAW, Upper Marlboro, Maryland;
Kirsten E. Small, NEXSEN PRUET, LLC, Greenville, South
Carolina, for Appellees.
OPINION
HAMILTON, Senior Circuit Judge:
Jane Huggins, trading as SADISCO of Maryland
(SADISCO) brought the present civil action against Prince
George’s County, Maryland (the County) and five County
officials (the Officials) after the County shut down the sal-
vage automobile wholesaling business operated by SADISCO
on a parcel of land that SADISCO owned within the County.
SADISCO’s complaint alleged one count under federal law
and four counts under Maryland’s common law. The district
court dismissed certain counts pursuant to Federal Rule of
Civil Procedure 12(b)(6) and granted summary judgment in
favor of the County and the Officials with respect to the
remaining counts. This timely appeal followed. We affirm the
judgment below in toto.
I.
In November 2001, SADISCO purchased a 99.7 acre parcel
of land located in the County, with the intention of operating
4 HUGGINS v. PRINCE GEORGE’S COUNTY
a salvage automobile wholesaling business on such parcel,
which use is a permitted use within the industrial zones in
which the parcel is located.1 The Property is bisected north-to-
south by Foxley Road, a dedicated public right-of-way. The
majority of Foxley Road is not paved.
Of relevance to the issues on appeal, the Property directly
abuts a portion of the southeastern fence line of Andrews Air
Force Base. Also of relevance to the issues on appeal is the
fact that Andrews Air Force Base is a designated Superfund
site. A Superfund site is a site which the United States Envi-
ronmental Protection Agency has added to its Superfund list,
also known as the National Priorities List, pursuant to its
authority under the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 (CERCLA), 42
U.S.C. §§ 9601 to 9675. United States v. General Electric
Co., 670 F.3d 377, 381 n.3 (1st Cir. 2012). "‘Superfund’ sites
are those which require priority remedial attention because of
the presence, or suspected presence, of a dangerous accumula-
tion of hazardous wastes." United States v. Cannons Eng’g
Corp., 899 F.2d 79, 83 (1st Cir. 1990).
The real estate purchase contract pursuant to which
SADISCO purchased the Property reflects SADISCO’s
knowledge of the Property’s environmental condition in rela-
tion to Andrews Air Force Base. Specifically, under the
bolded and underlined heading " Environmental," such con-
tract provided, in relevant part:
Purchaser acknowledges (1) that the Property is
located adjacent to Andrews Air Force Base, an
active U.S. Department of Defense facility which
was listed on the National Priorities List in 1999, (2)
that contaminants from Andrews Air Force Base
have migrated beneath the County-owned right-of-
1
From here forward, we will refer to the 99.7 acre parcel at issue as "the
Property."
HUGGINS v. PRINCE GEORGE’S COUNTY 5
way which provides access to the Property, and (3)
that contaminants from Andrews Air Force Base
may affect the Property now or in the future. Pur-
chaser accepts the Property "as-is" and shall have no
recourse against Seller with respect to the environ-
mental condition of the Property under any theory of
liability.
(J.A. 2562).
On December 20, 2001, SADISCO applied to the County
for a use and occupancy permit in order to operate a salvage
automobile wholesaling business on the Property. Approxi-
mately three months later, SADISCO applied for a permit in
order to temporarily house a construction trailer on the Prop-
erty.2
The record is undisputed that on June 12, 2002, the County
issued SADISCO a permit to house a construction trailer on
the Property. However, the parties hotly contest whether the
County actually issued SADISCO a use and occupancy permit
in response to its December 2001 application for one. None-
theless, the record is undisputed that by the end of October
2002, the County had legitimately revoked any and all out-
standing permits that it had issued to SADISCO with respect
to the Property based upon SADISCO’s violation of numer-
ous County Code provisions. For example, on October 16,
2002, the County cited SADISCO for performing grading
work on approximately twenty acres of the Property without
obtaining the required grading permit. For a second example,
on October 30, 2002, the County cited SADISCO for imper-
2
While the Prince George’s County Code provides that "[a] temporary
permit may be issued for a construction contractor’s office," such code
further provides that "[t]he permit shall be issued only when actual con-
struction on or in the immediate vicinity of the temporary use site necessi-
tates the structures and uses; [and] [t]he permit shall remain valid only for
the time required for the construction . . . ." Prince George’s County Code
(County Code) § 27-261(a).
6 HUGGINS v. PRINCE GEORGE’S COUNTY
missibly operating its salvage automobile wholesaling busi-
ness out of the construction trailer.
Undaunted, SADISCO continued to operate its salvage
automobile wholesaling business on the Property and contin-
ued to perform grading work without applying for any of the
required permits. Consequently, in May 2003, the County
filed two petitions in Maryland state court for injunctive
relief, one based upon SADISCO’s grading permit violations
and the other based upon SADISCO’s zoning code violations.
On September 3, 2003, SADISCO and the County entered
into two consent orders, one for each petition for injunctive
relief. The consent order pertaining to SADISCO’s illegal
grading activities (the Grading Consent Order) provided that
within sixty days SADISCO would, inter alia, "[o]btain the
required grading permit and approved erosion and sediment
control plan." (J.A. 1867). The consent order pertaining to
SADISCO’s zoning violations (the Zoning Consent Order)
provided that within ninety days SADISCO would: (1) "Va-
cate the premises until a valid use and occupancy permit is
obtained"; (2) "Cease use of the premises until a valid use and
occupancy permit is obtained"; and (3) "Obtain a building
permit for the existing trailers or remove them from the prem-
ises" (J.A. 1864). The Zoning Consent Order further provided
that if SADISCO did not take these corrective actions within
ninety days, the County
shall have the authority to take all action necessary
to enter onto the [Property] to execute this Order,
and to remove the occupants and close down the
operation of the business/use on the premises by
posting and securing the [P]roperty, and permit no
one to enter onto the [P]roperty for the purpose of
conducting business until a valid use and occupancy
permit is obtained and the costs of the suit are paid
....
HUGGINS v. PRINCE GEORGE’S COUNTY 7
(J.A. 1864).
On appeal, SADISCO makes much of the fact that the day
before it signed the consent orders, its attorney Lawrence
Taub sent a letter to Associate County Attorney Anne
Magner, stating:
On behalf of my client, I have discussed the timing
issue with both you and [County Department of
Environmental Resource’s] staff (Inspectors [Fred]
Holtzberger and [Jeffrey] DeHan), and I have been
told by all that even though the Consent Order[s]
[are] limited to these specific timeframes, if the
required permits and other actions have not been
fully accomplished by the end of those time periods,
but the County staff sees that my client has been dili-
gently pursuing these applications and that the fail-
ure to obtain these permits is not as a result of any
inaction by my client, the County staff will continue
to work with my client, will not take actions to cause
it to cease operations upon [the] [P]roperty, and will
allow my client to continue to operate upon its prop-
erty while continuing to diligently pursue issuance of
the required permits. My client’s execution of these
Consent Orders is thus premised upon its under-
standing and acceptance of this representation by
you and the County [Department of Environmental
Resources] staff.
(J.A. 1852) (letter dated September 2, 2003). The record is
undisputed that the letter described the standard practice of
the County to work with property owners to resolve County
Code violations and to forbear from enforcement as long as
the property owner was making good faith efforts to cure its
violations. Associate County Attorney Anne Magner never
responded to the letter. According to SADISCO, this letter
memorialized an oral contract between SADISCO and the
County that predates the consent orders.
8 HUGGINS v. PRINCE GEORGE’S COUNTY
The County then granted SADISCO a series of requested
extensions of the deadline for compliance with the terms of
the Grading Consent Order based upon SADISCO’s represen-
tations that it was diligently working to meet such require-
ments. Ultimately, the County extended the deadline for
SADISCO’s compliance with the terms of the Grading Con-
sent Order to July 3, 2004.
Moreover, based upon requests by SADISCO to allow it
more time to comply with the requirements of the Zoning
Consent Order, the County permitted SADISCO to operate its
salvage automobile wholesaling business on the Property until
the middle of March 2004. However, on March 18, 2004, the
County notified SADISCO in writing that it intended to carry
out enforcement of the Zoning Consent Order on or after
March 28, 2004.
At an April 27, 2004 meeting of various County officials,
the decision was made to enforce the Zoning Consent Order.
The sign-in sheet in the record reflects that such officials
included, among others: (1) Cynthia Barry, Zoning Inspector
Supervisor for the County’s Department of Environmental
Resources (County Zoning Inspector Supervisor Barry); (2)
Jeffrey Dehan, Code Enforcement Officer in the Community
Standards Division of the Site Development Inspection Sec-
tion of the County’s Department of Environmental Resources
(County Code Enforcement Officer Dehan); and (3) Anne
Williams, Environmental Crimes Specialist for the Division
of Environmental Health of the County’s Health Department
(County Environmental Crimes Specialist Williams). Of rele-
vance to the issues on appeal, prior to this meeting, the
County knew that groundwater at Andrews Air Force base
had long been contaminated with chlorobenzene and other
volatile organic chemicals. The County also knew that prelim-
inary studies had found low concentrations of chlorobenzene
within ground water seeps along the fence line between
Andrews Air Force Base and the Property and at higher con-
centration levels on property not owned by SADISCO but
HUGGINS v. PRINCE GEORGE’S COUNTY 9
nonetheless adjacent to the Property and next to the fence line
at Andrews Air Force Base. Furthermore, the County knew
that it would not be able to learn the exact extent of the
groundwater contamination in regard to the Property until
issuance of an environmental report, based upon sampling
data, that was expected to be issued later in the year (2004).
A written document, entitled "Sadisco Property (Foxley
Road) Action Items," detailed how the County intended to
proceed, as determined at the April 27, 2004 meeting. The
County’s Department of Environmental Resources would
actually padlock the gate SADISCO had installed across the
Foxley Road right-of-way on the Property. Until SADISCO
obtained the necessary County permits (e.g., for grading and
use and occupancy), SADISCO would only be allowed to
access the Property to remove cars and perform other tasks on
the Property that would bring SADISCO into compliance.
The County padlocked the Property the next day on April 28,
2004.
Nearly three years later, on March 30, 2007, SADISCO
filed the present civil action in the United States District
Court for the District of Maryland against the County and the
Officials, individually and in their respective official capaci-
ties. The Officials consist of: (1) County Zoning Inspector
Supervisor Barry; (2) Erv Beckert, District Engineer in the
County’s Department of Public Works and Transportation
(County District Engineer Beckert); (3) County Code
Enforcement Officer Dehan; (4) Thomas Matzen, Associate
Director of the Community Standards Division of the Coun-
ty’s Department of Environmental Resources (County Asso-
ciate Director of the Community Standards Division); and (5)
County Environmental Crimes Specialist Williams.
The complaint alleged five counts as follows. Pursuant to
42 U.S.C. § 1983, Count 1 alleged the County and the Offi-
cials (collectively the Defendants) violated SADISCO’s sub-
stantive due process rights under the Due Process Clause of
10 HUGGINS v. PRINCE GEORGE’S COUNTY
the Fourteenth Amendment to the United States Constitution.
Count 2 alleged the Defendants violated SADISCO’s substan-
tive due process rights under the Maryland Declaration of
Rights. Count 3 alleged breach of contract under Maryland
common law against the County alone. Count 4 alleged tor-
tious interference with economic relations under Maryland
common law against the Defendants. Count 5 alleged negli-
gent misrepresentation under Maryland common law against
the Defendants.
In February 2008, the district court dismissed Counts 2, 4,
and 5 on the basis that SADISCO had failed to comply with,
and was not entitled to waiver of, the pre-suit notice require-
ments of the Local Government Tort Claims Act (the
LGTCA), Md. Code Ann., Cts. & Jud. Proc. § 5-304(b). The
district court dismissed Count 3 as time barred to the extent
SADISCO alleged breach of a written contract. The district
court allowed discovery to proceed on Count 3 to the extent
such count alleged breach of two oral contracts. The district
court also allowed discovery to proceed against the Officials
with respect to Count 1, but stayed discovery against the
County for any potential liability under Monell v. Department
of Social Services, 436 U.S. 658 (1978). See id. at 690 (limit-
ing liability of local governmental units not part of the state
for Eleventh Amendment purposes for constitutionally offen-
sive actions of its employees to actions taken by such employ-
ees in furtherance of some municipal policy or custom);
Vathekan v. Prince George’s County, Md., 154 F.3d 173, 180
(4th Cir. 1998) (observing that Monell "established that
municipalities and counties could be liable for constitutional
deprivations under § 1983").
On February 9, 2009, the Defendants moved for summary
judgment on the remaining counts, with the Officials in their
individual capacities each seeking to be dismissed on the
basis of qualified immunity. On July 24, 2009, the district
court ruled as follows. The district court dismissed the Offi-
cials in their individual capacities from the action on the basis
HUGGINS v. PRINCE GEORGE’S COUNTY 11
of qualified immunity. Because SADISCO’s naming of the
Officials as defendants in their official capacities served as
suits against the County, the County remained as the sole
defendant with respect to Count 1.3 See Kentucky v. Graham,
473 U.S. 159, 166 (1985) ("As long as the government entity
receives notice and an opportunity to respond, an official-
capacity suit is, in all respects other than name, to be treated
as a suit against the entity."). The district court denied the
County’s motion for summary judgment on Count 1. How-
ever, the district court granted the County’s motion for sum-
mary judgment with respect to the remaining portion of Count
3, i.e., for allegedly breaching two alleged oral contracts.
On May 3, 2010, the County again moved for summary
judgment with respect to Count 1, which motion the district
court granted on November 9, 2010. Huggins v. Prince
George’s County, Md., 750 F. Supp. 2d 549 (D.Md. 2010).
This timely appeal followed.
On appeal, SADISCO challenges: (1) the district court’s
grant of summary judgment in favor of the County with
respect to Count 1; (2) the district court’s dismissal, based
upon qualified immunity, of the Officials in their individual
capacities with respect to Count 1; (3) the district court’s
grant of summary judgment with respect to Count 3’s allega-
tion of breach of two alleged oral contracts between
SADISCO and the County; and (4) the district court’s Rule
12(b)(6) dismissal of Counts 2, 4, and 5.
II.
We first address SADISCO’s challenge to the district
court’s grant of summary judgment in favor of the County
with respect to the portions of Count 3 alleging breach of two
oral contracts that SADISCO alleges existed between it and
3
From here forward, we treat the County and the Officials sued in their
official capacities as the County.
12 HUGGINS v. PRINCE GEORGE’S COUNTY
the County. SADISCO contends that such oral contracts arose
from two identical promises made by the County, approxi-
mately nine months apart, to forbear shutting down SADIS-
CO’s salvage automobile wholesaling business on the
Property, as long as SADISCO diligently pursued issuance of
the necessary permits. According to SADISCO, the first
promise occurred on November 21, 2002, during a meeting
between SADISCO representatives on the one hand and
County Zoning Inspector Supervisor Barry and County Code
Enforcement Officer Dehan on the other. SADISCO contends
the second promise occurred on September 2, 2003, one day
before the County and SADISCO entered into the consent
orders, when the County, through Associate County Attorney
Anne Magner, made the same promise.
When the district court asked SADISCO at the summary
judgment hearing regarding the remaining portion of Count 3
"what . . . the county [was to] get out of that so-called agree-
ment?," referring to the alleged second promise, SADISCO
responded:
Two things mainly. First of all, SADISCO’s entry
into the consent orders. SADISCO could have liti-
gated this matter instead of entering into consent
orders at that point in September of ’03, but
SADISCO relinquished that opportunity and entered
into the consent orders. That’s the consideration.
(J.A. 426). SADISCO also represented at the same summary
judgment hearing that the alleged oral contracts had no fixed
terms. SADISCO alleges the County breached the alleged oral
contracts when it padlocked SADISCO’s business on April
28, 2004. On appeal, as it did below, SADISCO points to var-
ious portions of deposition testimony, including deposition
testimony by Associate County Attorney Anne Magner, as its
primary evidence in support of the alleged oral contracts.
Below, after considering the parties’ written arguments in
the summary judgment motion papers and the parties’ oral
HUGGINS v. PRINCE GEORGE’S COUNTY 13
arguments at the summary judgment hearing, the district court
granted summary judgment in favor of the County on the
ground that no consideration in favor of the County existed to
support a valid oral contract which predated the Consent
Orders.
We agree with the district court. First, because the first-in-
time of the two alleged oral contracts (November 2002) pre-
dates the County’s filing of its two enforcement actions
against SADISCO (May 2003), SADISCO’s agreement to
enter into the consent orders to settle the enforcement actions
cannot serve as consideration for such alleged oral contract.
Although the second-in-time of the two alleged oral con-
tracts (September 2003) post dates the County’s filing of its
two enforcement actions against SADISCO (May 2003), such
alleged oral contract suffers from a different, but nonetheless
fatal problem. The County adamantly denies the existence of
such an oral contract and the evidence upon which SADISCO
attempts to rely in order to prove that it gave the County valid
consideration for the alleged second-in-time oral contract is
barred from admission by the parol evidence rule because
such evidence directly contradicts the two subsequent written
consent orders. Between the consent orders, which are matters
of contract under Maryland law, Allstate Ins. Co. v. Stine-
baugh, 824 A.2d 87, 97 (Md. 2003), SADISCO collectively
agreed, inter alia: (1) to relinquish its rights and opportunities
to defend itself in the two then pending enforcement actions;
(2) to obtain a grading permit and an approved erosion and
sediment control plan and to perform various work at the
Property within sixty days; (3) to vacate the premises within
ninety days unless SADISCO obtained a valid use and occu-
pancy permit; and (4) unless SADISCO took the corrective
actions specified in the Zoning Consent Order within ninety
days, the County possessed the authority to shut down
SADISCO’s salvage automobile wholesaling business on the
Property "until a valid use and occupancy permit is obtained
and the costs of the suit are paid . . . ." (J.A. 1864). By relying
14 HUGGINS v. PRINCE GEORGE’S COUNTY
on parol evidence, SADISCO attempts to contradict the dead-
lines for its compliance with its obligations under the consent
orders with an open-ended period of time for compliance.
Maryland substantive law, which the parties agree applies
to analyze SADISCO’s breach of oral contracts claim, is clear
that the parol evidence rule bars admission of SADISCO’s
evidence of a prior agreement to vary or contradict the terms
of the written Consent Orders in an effort to establish that it
gave consideration for the second-in-time alleged oral con-
tract. Calomiris v. Woods, 727 A.2d 358, 361 (Md. 1999)
("Maryland law generally requires giving legal effect to the
clear terms of a contract and bars the admission of prior or
contemporaneous agreements or negotiations to vary or con-
tradict a written contractual term."); Higgins v. Barnes, 530
A.2d 724, 726 (1987) (in absence of fraud, duress, or mutual
mistake, parol evidence is not admissible to show the inten-
tion of the parties or to vary, alter, or contradict the terms of
a contract that is complete and unambiguous).
Despite the fact that SADISCO’s claims of open-ended
deadlines directly contradict the unambiguous sixty-day and
ninety-day deadlines in the Consent Orders, SADISCO argues
that the parol evidence rule does not apply because neither
Consent Order contained an integration clause. SADISCO’s
argument is without merit. Under Maryland law, although an
integration clause is indicative of the intention of the parties
to finalize their complete understanding in a written contract,
the existence of such a clause in a contract is not a prerequi-
site to application of the parol evidence rule. See, e.g., Kasten
Constr. Co. v. Rod Enterprises, Inc., 301 A.2d 12, 17 (1973)
(Maryland follows objective test for interpreting written con-
tracts; where contract is plain and unambiguous and in
absence of fraud, duress, or mutual mistake, court cannot look
beyond four corners of the written contract to evidence of
prior statements or agreements, especially when contract con-
tains integration clause).
HUGGINS v. PRINCE GEORGE’S COUNTY 15
Here, the bottom line is that, pursuant to the written Zoning
Consent Order, which consent order post dates the second
alleged oral contract, SADISCO plainly and unambiguously
agreed that if it "d[id] not take the corrective actions ordered,"
in the Zoning Consent Order within ninety days of September
3, 1993, the County "shall have the authority to take all action
necessary to enter onto the [P]roperty . . . to execute this
Order, and to remove the occupants and close down the oper-
ation of the business/use on the premises . . . ." (J.A. 1864).
The effect of SADISCO’s claim alleging breach of the second
oral contract and its offer of deposition testimony and other
various evidence in support, is to directly contradict this plain
and unambiguous language of the Zoning Consent Order.
Because SADISCO has not shown (or even alleged) that it
entered into the Zoning Consent Order because of fraud,
duress, or by mutual mistake, the parol evidence rule steps in
to bar such effort. Kasten Constr. Co., 301 A.2d at 17. See
also Strickler Eng’g Corp. v. Seminar, 122 A.2d 563, 568
(Md. 1956) ("Where parties have expressed their intention in
clear and definite terms the paper must be construed accord-
ing to the true meaning of the words used therein."). In sum,
we hold the district court properly granted summary judgment
in favor of the County with respect to the portion of Count 3
alleging breach of two alleged oral contracts and affirm the
judgment below in that respect.
III.
We next address SADISCO’s challenge to the district
court’s grant of summary judgment in favor of the Defendants
with respect to Count 1, its substantive due process claim
under the Due Process Clause of the Fourteenth Amendment
to the United States Constitution. SADISCO’s challenge is
without merit.
The Due Process Clause of the Fourteenth Amendment
states, in relevant part, "No State shall . . . deprive any person
of . . . property, without due process of law. . . ." U.S. Const.
16 HUGGINS v. PRINCE GEORGE’S COUNTY
amend. XIV. In County of Sacramento v. Lewis, 523 U.S. 833(1998), the Supreme Court explained that "the core of the
concept" of due process is "protection against arbitrary
action," id. at 845, and that "only the most egregious official
conduct can be said to be arbitrary in the constitutional
sense," id. at 846 (internal quotation marks omitted). The
Court further explained, "the substantive component of the
Due Process Clause is violated by executive action only when
it can properly be characterized as arbitrary, or conscience
shocking, in a constitutional sense." Id. at 847 (internal quota-
tion marks omitted). "[C]onduct intended to injure in some
way unjustifiable by any government interest is the sort of
official action most likely to rise to the conscience-shocking
level." Id. at 849.
SADISCO premises its substantive due process claim on
the following two property interests: "(1) its right to use the
[P]roperty under permits issued by the County and (2) the
County’s express agreement to allow [it] to continue operat-
ing." (SADISCO’s Opening Brief at 29). Notably, SADISCO
does not contend that the decision to shut down its salvage
automobile wholesaling business on the Property was moti-
vated by any intent on the part of the Defendants to injure
SADISCO. Rather, according to SADISCO, the Defendants
violated its right to substantive due process in regard to these
asserted property interests by shutting down its salvage auto-
mobile wholesaling business on the Property based upon the
Officials’ respective individual fears as well as their collective
fear that the County would incur liability for expensive envi-
ronmental clean-up costs in connection with the Foxley Road
right-of-way.
The district court disposed of this count with respect to the
County on the basis that SADISCO had not forecast sufficient
evidence that it had a property interest protected by the Four-
teenth Amendment. We agree with the district court on this
point. First, assuming arguendo that a party can make out a
substantive due process claim based upon a property interest
HUGGINS v. PRINCE GEORGE’S COUNTY 17
in an existing contract, SADISCO cannot maintain a substan-
tive due process claim upon this basis because, as we just held
in Part II of this opinion, supra at 15, SADISCO failed to
establish an enforceable contract between it and the County in
which the County agreed to allow it to continue operating its
salvage automobile wholesaling business on the Property as
long as SADISCO diligently pursued obtaining the necessary
permits.
SADISCO’s asserted property right to operate its business
on the Property pursuant to permits issued by the County does
not work either. Critically, the record is undisputed that by the
end of October 2002, the County had legitimately revoked
any and all outstanding permits that it had issued to
SADISCO with respect to the Property because of SADIS-
CO’s violation of numerous County Code provisions, so that
by the time the County shut down SADISCO’s salvage auto-
mobile wholesaling business on April 28, 2004, SADISCO no
longer held any valid permits.
SADISCO addresses the revocation issue by citing A Help-
ing Hand, LLC v. Baltimore County, Md., 515 F.3d 356 (4th
Cir. 2008), for the proposition that "once a permit is issued,
even one day of noticeable use of a permit creates a vested
right." (SADISCO’s Opening Br. at 34 n.6). A recitation of
the relevant facts of A Helping Hand, LLC and the relevant
law makes clear why this proposition is irrelevant to SADIS-
CO’s substantive due process claim.
In A Helping Hand, LLC, a methadone treatment clinic (the
Clinic) obtained a valid permit to operate on a particular par-
cel of land in Baltimore County, Maryland (the Slade Avenue
location), as required by the applicable county zoning ordi-
nance, and had exercised the permit on the land such that the
surrounding neighborhood was advised that the Slade Avenue
location was being devoted to use as a methadone clinic. Id.
at 371. One day after the Clinic obtained the permit, a bill was
signed into law changing the applicable Baltimore County
18 HUGGINS v. PRINCE GEORGE’S COUNTY
zoning ordinance to add additional requirements for state-
licensed medical clinics, including drug abuse treatment cen-
ters, to operate in Baltimore County. Id. at 360. The new zon-
ing law became effective the day of enactment. Id. Soon
thereafter, Baltimore County moved to enforce the new zon-
ing law against the Clinic. Id. at 360-61. The Clinic ultimately
sued Baltimore County in federal court for, inter alia, viola-
tion of its substantive due process rights under the Due Pro-
cess Clause of the Fourteenth Amendment based upon its
property interest in its permit to operate its methadone clinic
at the Slade Avenue location. Id. at 370. The jury returned a
verdict in favor of the Clinic on this claim, and Baltimore
County appealed. Id. at 361.
On appeal, Baltimore County challenged the district court’s
jury instruction that the Clinic had a vested property interest
in its continued operation at the Slade Avenue location. We
rejected this challenge on the basis that the district court did
not err in so instructing the jury. Id. at 372. In this regard, we
first observed that state law governed the issue of whether the
Clinic had a cognizable property interest that could trigger
federal due process guarantees. Id. at 370. Next, we set forth
requirements under Maryland law for the Clinic to have a
vested property right in continued operation at the Slade Ave-
nue location:
"‘it is established that in order to obtain a "vested
right" in the existing zoning use which will be con-
stitutionally protected against a subsequent change in
the zoning ordinance prohibiting or limiting that use,
the owner must (1) obtain a permit or occupancy cer-
tificate where required by the applicable ordinance
and (2) must proceed under that permit or certificate
to exercise it on the land involved so that the neigh-
borhood may be advised that the land is being
devoted to that use.’"
Id. at 370-71 (quoting Powell v. Calvert County, 795 A.2d 96,
102 (Md. 2002) (quoting Richmond Corp. v. Bd. of County
HUGGINS v. PRINCE GEORGE’S COUNTY 19
Comm’rs for Prince George’s County, 255 A.2d 398, 404
(1969))). After reviewing the evidence, we held the Clinic had
met both of these requirements.
We next rejected Baltimore County’s argument that "the
district court erred in instructing the jury that the Clinic had
a vested property interest in its continued operation at the
Slade Avenue [location] because ‘under Maryland law, a per-
son has no vested rights in a permit that is the subject of con-
tinuing litigation.’" Id. at 371. Although we recognized that
Baltimore County had accurately quoted this principle, we
held that such principle was irrelevant to the case because
"neither the issuance of the permit nor the ordinance pursuant
to which it was issued [wa]s the subject of ongoing litigation."
Id. Rather, we observed, the litigation concerned Baltimore
County’s attempt to change the zoning law to preclude the
Clinic from operating. Id. Thus, we upheld the instruction. Id.
at 372.
The obvious and material distinction between the present
case and A Helping Hand, LLC is that the permit held by the
Clinic was still in existence at the time of the challenged
action. This, of course, is not so with respect to SADISCO’s
permits. Thus, A Helping Hand, LLC does not provide any
sort of a helping hand to SADISCO.
Finally, to the extent SADISCO has any residual interest in
the revoked permits that could possibly serve as a property
interest for its substantive due process claim, a proposition for
which we are gravely doubtful, the claim nonetheless fails
because it does not approach the conscience shocking thresh-
old for a substantive due process violation by executive
action. Here, there is absolutely no evidence that any of the
Defendants deliberately intended to injure SADISCO. Indeed,
the record bespeaks the opposite in that the Defendants
worked with SADISCO for over two years in an effort to help
it obtain all of the proper permits and operate in accordance
with all County laws. Moreover, the desire to avoid the crush-
20 HUGGINS v. PRINCE GEORGE’S COUNTY
ing financial liability that comes with "responsible party" sta-
tus under CERCLA if SADISCO were permitted to continue
its activities on the Property is an understandable governmen-
tal concern. Although SADISCO attempts to make this case
all about the Defendants’ desire to avoid CERCLA liability,
the undisputed evidence in the record shows a mixed motive
situation with the fact that SADISCO had never obtained all
of the proper permits playing more than a minimal role in the
decision to shut down SADISCO’s salvage automobile
wholesaling business on the Property.
Because SADISCO cannot establish a substantive due pro-
cess violation, the district court properly granted summary
judgment in favor of the County with respect to Count 1.
Moreover, SADISCO’s failure to establish a constitutional
violation at all under the Due Process Clause of the Four-
teenth Amendment entitled the Officials to qualified immu-
nity with respect to Count 1. Brockington v. Boykins, 637 F.3d
503, 506 (4th Cir. 2011). In sum, we affirm the judgment
below with respect to Count 1.
IV.
Lastly, we address SADISCO’s challenge to the district
court’s dismissal of Counts 2, 4, and 5, which the district
court dismissed on the basis that SADISCO failed to comply
with the notice requirements of the LGTCA (either fully or
substantially) and failed to show good cause for its noncom-
pliance.
By its terms, the LGTCA prohibits "an action for unliqui-
dated damages . . . against a local government or its employ-
ees unless" the plaintiff provides notice of the claim "within
180 days after the injury." Md. Code Ann., Cts. & Jud. Proc.
§ 5-304(b)(1). For claims arising in Prince George’s County,
the LGTCA provides that the notice: (1) "shall be given in
person or by certified mail . . . by the claimant or the repre-
sentative of the claimant," id. § 5-304(c)(1), "to the county
HUGGINS v. PRINCE GEORGE’S COUNTY 21
solicitor or county attorney," id. § 5-304(c)(3)(iii); and (2)
"shall be in writing and shall state the time, place, and cause
of the injury," id. § 5-304(b)(2).
Although Maryland courts have recognized a substantial
compliance exception to the LGTCA, the exception is narrow:
The touchstone of substantial compliance is whether
the alleged notice was sufficient to fulfill the purpose
of the requirement. The purpose of the notice
requirement is to apprise local governments of possi-
ble liability at a time when they can conduct their
own investigation into the relevant facts, while evi-
dence and the recollection of witnesses are still
fresh. Thus, substantial compliance will occur when
the local government receives actual notice such that
it is given the opportunity to properly investigate the
potential tort claim.
Hansen v. City of Laurel, 996 A.2d 882, 891 (Md. Ct. Spec.
App. 2010) (alteration, citation, and internal quotation marks
omitted). A plaintiff must not only demonstrate substantial
compliance as to the content of the notice within the 180-day
period, but also as to the statutory recipient. Wilbon v. Huns-
icker, 913 A.2d 678, 689-204 (Md. Ct. Spec. App. 2006).
In the event a plaintiff fails to strictly or at least substan-
tially comply with the LGTCA’s notice requirements, his tort
case seeking unliquidated damages against a local govern-
ment in Maryland can still proceed if the plaintiff can show
good cause exists to waive such requirements and the defen-
dant cannot affirmatively show that its defense has been prej-
udiced by lack of required notice. Md. Code Ann., Cts. & Jud.
Proc. § 5-304(d). A showing of good cause is mandatory; lack
of prejudice to the defendant alone does not justify waiver of
the LGTCA’s notice requirements. Hargrove v. Mayor and
City Council of Baltimore, 807 A.2d 149, 151 (Md. Ct. Spec.
App. 2002) "Good cause exists when a claimant prosecutes a
22 HUGGINS v. PRINCE GEORGE’S COUNTY
claim with that degree of diligence that an ordinarily prudent
person would have exercised under the same or similar cir-
cumstances." Wilbon, 913 A.2d at 693 (internal quotation
marks omitted). A court’s determination that good cause for
failure to comply with the LGTCA’s notice requirements has
or has not been shown is reviewed for abuse of discretion.
Hargrove, 807 A.2d at 152.
Here, SADISCO does not assert that it strictly complied
with the LGTCA’s notice requirements. Rather, it asserts that
its lack of strict compliance should be excused because it sub-
stantially complied with the LGTCA’s notice requirements or,
alternatively, because it has shown good cause for its lack of
compliance.
After careful review of the record, the written briefs of the
parties, the relevant legal precedent, and after hearing oral
argument in this appeal, we hold the district court correctly
rejected both of these arguments. Accordingly, we affirm the
district court’s dismissal of Counts 2, 4, and 5 on the basis
that SADISCO failed to comply with the notice requirements
of the LGTCA (either fully or substantially) and failed to
show good cause for such noncompliance.
V.
In conclusion, we affirm the judgment below in toto.4
AFFIRMED
4
SADISCO also raises several additional arguments they contend
should be resolved in their favor. We have fully considered such argu-
ments and find them to be without merit.