Clift v. Ware

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GEORGIA O. CLIFT,
Plaintiff-Appellant,
v.
DONNA M. WARE; ROBERT J.
No. 98-1251
DVORAK; ANNE ARUNDEL COUNTY,
MARYLAND, a Body Politic of the
State of Maryland,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge.
(CA-97-2957-JFM)
Argued: October 26, 1998
Decided: December 18, 1998
Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and MOON, United States District Judge for the
Western District of Virginia, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Thomas Arthur Pavlinic, Annapolis, Maryland, for
Appellant. John Francis Breads, Jr., Senior Assistant County Attor-
ney, Annapolis, Maryland, for Appellees. ON BRIEF: Phillip F.
Scheibe, County Attorney, Annapolis, Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
In this local land-use dispute, plaintiff sued municipal officials
under 42 U.S.C. § 1983 for denying her a permit to demolish her
home. Plaintiff eventually received the permit, yet sought to recover
her costs of litigation and delay. Because the applicable municipal
building code gives local officials the discretion to deny such permit
applications, however, plaintiff lacked a cognizable property interest
in the demolition permit. We therefore affirm the district court's dis-
missal of her claims.
I.
For approximately one hundred thirty years Georgia O. Clift's fam-
ily owned a Victorian home at 5601 Ballman Avenue in Anne Arun-
del County, Maryland. Last occupied in 1985, the structure fell into
serious disrepair -- it had no running water, electricity, or heating
system, it had holes in its roof, and it suffered damage from vandal-
ism. Once assessed at $83,000, the house was reassessed in 1993 at
a value of only $5,000. Concerned about liability, unable to render the
house habitable, and lacking a caretaker for the property, Clift asked
her attorney, Thomas A. Pavlinic, to obtain a demolition permit in
1994.
Pavlinic initially consulted with Donna M. Ware, the Historic Sites
Surveyor for Anne Arundel County, who allegedly stated that she
would urge the Director of Planning and Code Enforcement, Robert
J. Dvorak, to deny the permit application. Ware had listed the Ball-
man Avenue property on the Maryland Inventory of Historic Proper-
ties (MIHP) in 1985.
On July 29, 1994, Pavlinic wrote to Dvorak to request a demolition
permit. The letter included a permit application but did not include the
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application fee, Clift's original signature, or the accompanying infor-
mation required by the county building code. On August 16 Pavlinic
re-submitted the permit application. This submission also lacked the
application fee and the required supporting information.
On September 1 Dvorak informed Pavlinic that he intended to deny
Clift's permit application because the house was in a "stable and
secured state" and because Clift allegedly anticipated a future subdivi-
sion on the site. Clift denies that she or Pavlinic ever expressed an
interest in subdividing the property.
In the following weeks Ware and Dvorak submitted an emergency
ordinance to the Anne Arundel County Council. The proposed ordi-
nance barred demolition on MIHP properties "unless retention of the
structure threatens public health or safety or denies the owner every
economically viable use of the property." Anne Arundel County Bldg.
Code § 110.1.1. Ware testified in favor of the ordinance at an October
3 council meeting, and the council passed it that same night. The
County later conceded that it passed the ordinance because of Clift's
desire to demolish her house.
Clift appealed the permit denial to the Anne Arundel County Board
of Appeals. On April 7, 1995, the Board granted Clift's request for
a demolition permit. The Board applied the new county ordinance to
Clift's appeal, but found that a permit should issue because the reha-
bilitation of the Ballman Street house was not an economically viable
option. The County appealed this decision to the Circuit Court of
Anne Arundel County, but that court affirmed the Board's decision.
The County then appealed to the Court of Special Appeals of
Maryland, which found that the Board should not have applied the
new ordinance to Clift's application and remanded the case for further
proceedings. Instead of pursuing additional proceedings, the County
issued Clift a demolition permit on March 6, 1997. The house was
razed a few weeks later.
Clift filed this action under 42 U.S.C. § 1983 against Ware, Dvo-
rak, and Anne Arundel County, claiming that the defendants violated
her constitutional property rights by denying her building permit
application. The district court granted the defendants' motion to dis-
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miss. Clift appeals that order with respect to defendants Ware and
Dvorak. We affirm.
II.
For Clift to succeed on her due process claim, she must show a
"cognizable property interest, rooted in state law," in the demolition
permit. Biser v. Town of Bel Air, 991 F.2d 100, 103-04 (4th Cir. 1993)
(internal quotation marks omitted). The state or municipal scheme
must provide her not a mere "unilateral expectation," but rather a "le-
gitimate claim of entitlement" to the permit. Board of Regents v. Roth,
408 U.S. 564, 577 (1972). Local permitting schemes only grant such
an entitlement where "the local agency lacks all discretion to deny
issuance of the permit or to withhold its approval." Gardner v. City
of Baltimore Mayor & City Council, 969 F.2d 63, 68 (4th Cir. 1992);
see also Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 826-27
(4th Cir. 1995). "Any significant discretion conferred upon the local
agency defeats the claim of a property interest." Gardner, 969 F.2d
at 68.
Because the Anne Arundel County Building Code vests discretion
in local officials, Clift's claim to a property interest must fail. Under
the building code the official reviewing a permit application must
determine whether that application "conforms to the requirements of
this code and all laws and ordinances applicable thereto." Anne Arun-
del County Bldg. Code § 112.1.* Clift's belief that her application
satisfied this criteria does not eliminate the grant of discretion -- the
very "question of whether criteria are met must be resolved by the
exercise of judgment." Sylvia Dev. Corp., 48 F.3d at 826. Even if
Clift had submitted a complete application -- and the evidence in the
record suggests that she did not -- Dvorak's discretion under section
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*It is not clear from the record which edition of the BOCA National
Building Code applied in Anne Arundel County at the time of Dvorak's
decision. The pertinent provisions of the 1990 edition, presented by
appellees to this court and cited in this opinion, are identical in all mate-
rial respects to their renumbered counterparts in the 1993 edition, cur-
rently in force in the County. See Anne Arundel County Code, art. 20,
§ 2-101.
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112.1 to review applications and deny permits forecloses her claim of
entitlement to the demolition permit.
Clift argues that, under section 105 of the building code, the issu-
ance of a permit in her case was a "certainty." This section, however,
merely lists criteria that must be met before a demolition permit may
issue. Even assuming, as the code requires, that Clift obtained a
release from her local utility companies, see Anne Arundel County
Bldg. Code § 105.1, and provided written notice to her neighbors, see
id. § 105.2, these actions simply satisfied the conditions precedent
articulated in section 105. The building official's discretion under sec-
tion 112.1 remains.
Clift further contends that Dvorak's exercise of discretion was a
stalling tactic, intended to delay the demolition of her home until he
and Ware could push their historic buildings ordinance through the
county council. Be that as it may, "[t]he fact that the permit could
have been denied on nonarbitrary grounds defeats the federal due pro-
cess claim." Gardner, 969 F.2d at 71 (internal quotation marks omit-
ted). As we have noted, Dvorak had the discretion to deny Clift's
permit application for any shortcoming under the building code or any
other law or ordinance. This discretion forecloses Clift's asserted
property interest in the permit.
III.
Because Clift was not entitled to the demolition permit under state
or municipal law, she did not have a property interest in that permit.
Ware and Dvorak therefore did not deprive Clift of a right protected
by the Fourteenth Amendment to the Constitution. For this reason, we
affirm the judgment of the district court.
AFFIRMED
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