Acorn Land, LLC v. Baltimore County, Maryland

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-2150
ACORN LAND, LLC, d/b/a PCS Homes,
Plaintiff - Appellant,
v.
BALTIMORE COUNTY, MARYLAND, A Body Corporate and Politic;
PEOPLE’S COUNSEL FOR BALTIMORE COUNTY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:09-cv-00422-CCB)
Argued: May 12, 2010 Decided: September 21, 2010
Before GREGORY, Circuit Judge, C. Arlen BEAM, Senior Circuit
Judge of the United States Court of Appeals for the Eighth
Circuit, sitting by designation, and Samuel G. WILSON, United
States District Judge for the Western District of Virginia,
sitting by designation.
Affirmed in part, reversed in part, and remanded with
instructions by unpublished per curiam opinion.
ARGUED: J. David Breemer, PACIFIC LEGAL FOUNDATION, Sacramento,
California, for Appellant. James Joseph Nolan, Jr., BALTIMORE
COUNTY OFFICE OF LAW, Towson, Maryland; Peter Max Zimmerman,
Towson, Maryland, for Appellees. ON BRIEF: John E. Beverungen,
County Attorney, BALTIMORE COUNTY OFFICE OF LAW, Towson,
Maryland, for Appellee Baltimore County, Maryland.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Following the Baltimore County Council’s (Council) decision
to rezone Acorn Land, LLC’s (Acorn) property, Acorn filed suit
against Baltimore County (County) in Maryland state court. Acorn
sought, among other relief, a declaratory judgment that the
rezoning constituted an unlawful taking under the United States
Constitution and violated Acorn’s substantive due process
rights. The County removed the case to federal court, where the
district court dismissed Acorn’s claims as unripe. Acorn now
appeals the district court’s dismissal of those claims, and we
reverse in part and affirm in part.
I.
We accept the well-pleaded facts in Acorn’s complaint 1 as
true and recite them in the light most favorable to Acorn. See
Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In
April 2004, Acorn purchased a tract of land within Baltimore
County’s Urban-Rural Demarcation Line (URDL) zoned “Density
Residential 1” (DR-1). 2 The property is directly adjacent to an
1
Specifically, we “consider the complaint in its entirety,
as well as . . . documents incorporated into the complaint by
reference.” Matrix Capital Mgmt. Fund, LP v. BearingPoint, Inc.,
576 F.3d 172, 176 (4th Cir. 2009) (quotation omitted).
2
Properties zoned DR-1 may accommodate one single family
dwelling per acre.
3
interstate highway and the University of Maryland, Baltimore
County Research Park, and is otherwise surrounded by lots
containing single family dwellings. Shortly after purchasing
the property, Acorn filed a petition to amend the property’s
water/sewer classification to facilitate residential
development. Specifically, the property’s then-existing
water/sewer classification was W-6/S-6, “Area of Future
Consideration,” 3 and Acorn petitioned to amend the classification
to W-3/S-3, “Capital Facilities Area.” 4 Acorn’s petition
explained that public water and sewer mains, which existed in
close proximity to its property, could easily be extended to
serve the property.
Several public agencies reviewed Acorn's petition and all
recommended its approval to the Baltimore County Planning Board
(Planning Board). In September 2004, after considering these
recommendations, the Planning Board likewise recommended to the
Council that Acorn’s petition be granted. In January 2005, the
Council reviewed the Planning Board’s water/sewer amendment
recommendations for several properties, including Acorn’s
3
“Areas of Future Consideration” are areas to be considered
in the design of major facilities for growth and development
beyond the Land Use Master Plan.
4
“Capital Facilities Areas” are areas in which water and
sewerage facilities are required and possible.
4
property. Acorn’s petition received opposition from citizens as
well as state senators and delegates. While the Council adopted
the Planning Board’s recommendations as to all other properties,
the Council, without explanation, took no action on Acorn’s
petition. As a result, no change was made to the tract’s
water/sewer classification and Acorn was prevented from
proceeding with residential development.
On January 10, 2007, Acorn filed a petition for writ of
mandamus in the Circuit Court for Baltimore County to compel the
Council to forward the Planning Board’s recommendation to amend
the property’s water/sewer classification to the Maryland
Department of the Environment (MDE) for review. On April 7,
2008, the circuit court held that mandamus relief was warranted
and ordered the County to forward the Planning Board’s
recommendation to the MDE. Notably, the court determined that
Acorn met Baltimore County’s established objective criteria for
water/sewer reclassification and that the Council’s denial of
Acorn’s petition was “arbitrary and capricious.” The County
appealed this decision, and upon the County’s motion, the
circuit court stayed enforcement of its order pending the
appeal.
Meanwhile, in November 2007, after Acorn filed its petition
for writ of mandamus, a county councilman filed a petition to
5
rezone Acorn’s tract as “Agricultural Protection 2” (RC-2), 5 as
part of the County’s 2008 Comprehensive Zoning Map Process
(CZMP). On April 24, 2008, the Planning Board recommended to
the Council that Acorn’s tract remain zoned as DR-1. The
Council reviewed the Planning Board’s recommendation, but
nevertheless decided to rezone Acorn’s tract as “Rural-
Residential” (RC-5). 6 Due to this zoning reclassification, the
maximum residential density on Acorn’s property was cut in half,
and Acorn’s water/sewer classification changed from W-6/S-6 to
W-7/S-7, “No Planned Community or Multi-Use Service.” 7
On October 8, 2008, following the Council’s decision to
rezone Acorn’s tract, the County dismissed its appeal of the
circuit court’s mandamus order as moot. In its notice of
dismissal, the County explained that, as a result of its
reclassification to the RC-5 zone, Acorn’s property was subject
to a different water/sewer classification and the County could
no longer comply with the circuit court’s order to forward the
5
Property zoned RC-2 is primarily used to foster and protect
agriculture, though limited residential development is
permitted.
6
Under the RC-5 zoning classification, property may be put
to agricultural use or may accommodate one single family
dwelling per two acres.
7
Areas classified as “No Planned Community or Multi-Use
Service” are areas of planned, low-density growth for which
metropolitan water and sewerage facilities are neither planned
nor intended.
6
Planning Board’s recommendation to the MDE. Thus, the Council’s
decision to rezone Acorn’s property effectively allowed the
County to sidestep the circuit court’s order.
Based on the above events, Acorn filed a complaint for
declaratory judgment in the Circuit Court for Baltimore County
on January 23, 2009, asserting, among other claims, that the
Council’s actions (1) were “arbitrary and capricious” and
violated Acorn’s substantive due process rights, and (2)
effected an unlawful taking without just compensation in
violation of both the Maryland Constitution and the United
States Constitution. Upon the County’s notice of removal, the
suit was removed to the District of Maryland in February 2009,
and the federal district court granted the People’s Counsel for
Baltimore County’s motion to join and/or intervene. See Acorn
Land, LLC v. Baltimore County, 648 F. Supp. 2d 742, 744 n.1 (D.
Md. 2009). The County and the People’s Counsel (defendants)
filed motions to dismiss.
The district court dismissed Acorn’s state constitutional
claims because Acorn failed to exhaust applicable state
remedies. Then, the district court dismissed Acorn’s federal
substantive due process and takings claims as unripe due to
Acorn’s failure to petition the County Board of Appeals to
reclassify Acorn’s property back to the DR-1 zoning
classification. On appeal, Acorn challenges only the district
7
court’s dismissal of its federal claims. For the reasons
discussed below, we reverse in part and affirm in part.
II.
Acorn’s sole argument on appeal is that the district court
erroneously dismissed its as-applied federal takings and
substantive due process claims for lack of ripeness.
Specifically, Acorn asserts that it need not petition the County
Board of Appeals for reclassification to ripen its claims. We
review the district court’s dismissal for lack of ripeness de
novo. Miller v. Brown, 462 F.3d 312, 316 (4th Cir. 2006).
A.
First, Acorn’s complaint asserts that the Council’s zoning
decisions constitute a regulatory taking without just
compensation in violation of the Fifth Amendment, which applies
to states through the Fourteenth Amendment. Chicago, Burlington
& Quincy R.R. Co. v. Chicago, 166 U.S. 226, 241 (1897). To
present a ripe regulatory takings claim, the plaintiff must
demonstrate that: (1) the government entity charged with
implementing the regulations in question has issued a “final
decision regarding the application of the regulations to the
property at issue,” and (2) the plaintiff has sought and been
denied just compensation through available and adequate state
8
procedures for seeking just compensation. Williamson County
Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S.
172, 186, 195 (1985). Notably, the Supreme Court has clarified
that Williamson’s ripeness prongs are “prudential hurdles,”
Suitum v. Tahoe Reg’l Planning Agency, 520 U.S. 725, 734 (1997),
not jurisdictional requirements. Stop the Beach Renourishment,
Inc. v. Florida Dep’t of Envtl. Prot., 130 S. Ct. 2592, 2610
(2010). Here, the only issue properly before this court is
whether Acorn satisfied Williamson’s first, “final decision”
prong. 8
As a preliminary matter, we note that Williamson’s final
decision requirement is intended to inform the courts’
determination of whether a regulation, as applied, constitutes a
regulatory taking. As discussed in more detail below, a
property regulation constitutes a taking if it goes “too far.”
Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001). Simply
put, the determination of whether a regulation goes too far
8
The defendants contend that Acorn also failed to satisfy
Williamson’s second, “just compensation” prong. However, the
defendants did not raise this argument below or in their opening
appellate brief. Indeed, it was not until the panel requested
the parties to address Williamson’s second prong that the
defendants finally pressed this argument. Therefore, because
Williamson’s just compensation prong is not a jurisdictional
requirement, we deem this argument waived. Beach, 130 S. Ct. at
2610; see also United States v. Jones, 308 F.3d 425, 427 n.1
(4th Cir. 2002) (holding that an argument not raised in the
opening appellate brief is waived).
9
"cannot be resolved in definitive terms" until there is a final
decision demonstrating "'the extent of permitted development' on
the land in question." Id. at 618 (quoting MacDonald, Sommer &
Frates v. Yolo County, 477 U.S. 340, 351 (1986)).
For a developer to obtain a final decision, she must
generally submit “a plan for development of [her] property as
the ordinances permit,” Agins v. City of Tiburon, 447 U.S. 255,
260 (1980), rev'd on other grounds, Lingle v. Chevron U.S.A.,
Inc. 544 U.S. 528, 532 (2005). Then, “where the regulatory
regime offers the possibility of a variance from its facial
requirements, [the developer] must go beyond submitting a plan
for development and actually seek such a variance to ripen his
claim.” Suitum, 520 U.S. at 736-37. Consequently, “the final
decision requirement is not satisfied when a developer submits,
and a land-use authority denies, a grandiose development
proposal, leaving open the possibility that lesser uses of the
property might be permitted." Palazzolo, 533 U.S. at 619.
These general rules support the principle that “a landowner may
not establish a taking before a land-use authority has the
opportunity, using its own reasonable procedures, to decide and
explain the reach of a challenged regulation.” Id. at 620.
That said, there are several notable exceptions to these
general rules. First, developers need not engage in futile acts
to obtain a final decision. Indeed, the final decision prong is
10
satisfied “once it becomes clear that the agency lacks the
discretion to permit any development, or the permissible uses of
the property are known to a reasonable degree of certainty.”
Id. In the same vein, the final decision prong is satisfied
where "a zoning agency . . . has dug in its heels and made clear
that all . . . applications will be denied." Murphy v. New
Milford Zoning Comm'n, 402 F.3d 342, 349 (2d Cir. 2005). Next,
landowners are not required to resort to “repetitive or unfair
land-use procedures” to obtain a final decision. Palazzolo, 533
U.S. at 621. And finally, the final decision prong does not
require landowners to exhaust administrative remedies. 9 In other
words, landowners need not resort to clearly remedial
procedures, such as appealing to an administrative board where
9
In Williamson, the Court explained that plaintiffs need not
exhaust state administrative remedies to satisfy the final
decision prong where their claim is predicated on 42 U.S.C. §
1983. Williamson, 473 U.S. at 192-93. Here, the defendants
argue that Acorn must exhaust state administrative remedies
because it did not cite § 1983 in its complaint. We disagree.
“Federal and state court decisional law is virtually unanimous
that a complaint need not specifically refer to § 1983, so long
as the essential elements of the claim are [pled].” Hill v.
North Tex. State Hosp., No. 7:09-CV-158-0, 2010 WL 330209, at *2
(N.D. Tex. Jan. 26, 2010) (emphasis in original); see, e.g.,
Smith-Berch, Inc. v. Baltimore County, 68 F. Supp. 2d 602, 626
(D. Md. 1999). To state a cause of action under § 1983, a
plaintiff must establish “(1) the deprivation of a right secured
by the Constitution or a federal statute; (2) by a person; (3)
acting under color of state law.” Jenkins v. Medford, 119 F.3d
1156, 1159-60 (4th Cir. 1997). Acorn pled these essential
elements.
11
the board is empowered only to review, not participate in, the
lower agency’s decisionmaking. Williamson, 473 U.S. at 193.
Here, in short, to begin residentially developing its
property, Acorn submitted a petition to amend its property’s
water/sewer classification and the Planning Board recommended
its approval. However, after receiving opposition from citizens
and state politicians, the Council blocked Acorn’s petition,
without explanation, through what the Circuit Court of Baltimore
County deemed “arbitrary and capricious” conduct. Once the
circuit court ordered the Council to forward the Planning
Board’s recommendation to the MDE, the Council appealed that
decision, obtained a stay of enforcement, and then conveniently
avoided the circuit court’s order by rezoning Acorn’s property.
The rezoning both cut the property’s maximum residential density
by half and placed the property in the lowest water/sewer
classification.
Based on these well-pled facts, we hold that Acorn
satisfied Williamson’s final decision prong. To be sure, we
acknowledge that Williamson would generally require Acorn to
seek a density variance to ripen its claim and that Acorn has
not sought such a variance here. However, the Baltimore County
Zoning Regulations do not permit an increase in residential
density through variance procedures. Indeed, Baltimore County
Zoning Regulations section 307.1 provides that the Zoning
12
Commissioner and the County Board of Appeals, upon appeal, may
grant height and area variances, but “[n]o increase in
residential density beyond that otherwise allowable by the
Zoning Regulations shall be permitted as a result of any such
grant of a variance.”
Moreover, we reject the defendants’ argument that
petitioning the County Board of Appeals for zoning
reclassification is equivalent to seeking a density variance
under Williamson and that Acorn must therefore petition for
reclassification to ripen its claim. Under Maryland law,
“reclassification” or “rezoning” is “a change in the existing
zoning law itself, so far as the subject property is concerned,”
Cadem v. Nanna, 221 A.2d 703, 707 (Md. 1966) (alteration
omitted), whereas a variance is “an authorization for [that] . .
. which is prohibited by a zoning ordinance.” Mueller v.
People’s Counsel for Baltimore County, 934 A.2d 974, 989 (Md.
Ct. Spec. App. 2007) (alterations in original) (quotation
omitted). In other words, reclassification applies an entirely
different zoning classification to the property in question,
whereas the approval/denial of a variance helps define how the
property’s existing zoning classification applies. This
distinction is important because, under Williamson, a land-use
authority must only have the opportunity “to decide and explain
the reach of [the] challenged regulation.” Palazzolo, 533 U.S.
13at 620 (emphasis added). Accordingly, we find that requiring
Acorn to petition for reclassification is tantamount to
requiring Acorn to exhaust state administrative remedies—a
requirement expressly prohibited in Williamson. Williamson, 473
U.S. at 193.
Lastly, we duly recognize that in some cases, pursuant to
fair and reasonable zoning procedures, developers may be
required to submit multiple plans, applications, and the like to
ripen their takings claims. See, e.g., id. 473 U.S. at 176-82.
Here, however, Acorn was subjected to unfair and unreasonable
zoning procedures when the Council blocked Acorn’s water/sewer
petition, without explanation, after the petition met the
County’s objective criteria for amending Acorn’s property’s
water/sewer classification. Indeed, the Circuit Court for
Baltimore County went so far as to deem such action “arbitrary
and capricious.” Then, once the circuit court ordered the
Council to forward the Planning Board’s recommendation to the
MDE, the Council again effectively denied Acorn water/sewer
access by rezoning Acorn’s property. In light of such
sophistry, it is clear that the Council has “dug in its heels”
and will not allow Acorn to receive necessary access to public
water/sewer systems to residentially develop its property.
Murphy, 402 F.3d at 349. Thus, under these circumstances, we
conclude that it would be both futile and unfair to require
14
Acorn to jump through any additional administrative hoops to
obtain a “final decision.” Palazzolo, 533 U.S. at 621(“Government authorities, of course, may not burden property by
imposition of repetitive or unfair land-use procedures in order
to avoid a final decision.”).
For the foregoing reasons, we are satisfied that the
“permissible uses of [Acorn’s] property are known to a
reasonable degree of certainty,” and Williamson’s first prong is
satisfied. Id. at 620.
B.
Acorn’s complaint also asserts that the Council’s zoning
decisions were arbitrary and capricious and therefore violated
Acorn’s substantive due process rights. 10 This claim, like
Acorn’s regulatory takings claim, is not ripe until the claimant
has obtained a final decision from the government entity charged
10
The defendants argue that Acorn’s complaint does not
sufficiently allege a federal substantive due process claim
because Acorn does not cite the Fourteenth Amendment. Like the
district court, however, we assume that Acorn relied on both the
Due Process Clause of the Fourteenth Amendment to the United
States Constitution and Maryland’s state constitutional
equivalent. See Acorn Land, 648 F. Supp. 2d at 747 n.6. After
all, Maryland “precedent states clearly that the Maryland and
Federal due process provisions have been read ‘in pari
materia.’” Koshko v. Haining, 921 A.2d 171, 194 n.22 (Md.
2007).
15
with implementing the regulations in question. 11 See Southview
Assocs., Ltd. v. Bongartz, 980 F.2d 84, 96-97 (2d Cir. 1992).
Given that Acorn has obtained a final decision from the Council,
its substantive due process claim, like its takings claim, is
ripe for review.
III.
On the merits of Acorn’s claims, the defendants argue that
Acorn’s complaint does not state plausible takings or
substantive due process claims. Under Federal Rule of Civil
Procedure 8(a)(2), a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to
relief.” “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation
omitted). This “plausibility” standard is satisfied “when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
11
We note, however, that arbitrary and capricious
substantive due process claims are not subject to Williamson’s
second, “just compensation” prong. Front Royal & Warren County
Indus. Park Corp. v. Town of Front Royal, 135 F.3d 275, 283 n.3
(4th Cir. 1998); Southview Assocs., Ltd. v. Bongartz, 980 F.2d
84, 96-97 (2d Cir. 1992).
16
misconduct alleged.” Id. We consider the sufficiency of
Acorn’s claims in turn, beginning with its as-applied takings
claim.
A.
“[T]o make out a takings claim, a plaintiff must
demonstrate that the government took property without just
compensation.” Presley v. City of Charlottesville, 464 F.3d
480, 485 (4th Cir. 2006) (alteration omitted). In the
regulatory takings context, a property regulation that goes "too
far" will be recognized as a taking. Palazzolo, 533 U.S. at
617. Notably, even if a regulation falls short of denying all
economically beneficial use of a landowner’s property, “a taking
nonetheless may have occurred, depending on a complex of factors
including the regulation's economic effect on the landowner, the
extent to which the regulation interferes with reasonable
investment-backed expectations, and the character of the
government action." Id. (citing Penn Central Transp. Co. v.
New York City, 438 U.S. 104, 124 (1978)). This ad hoc, multi-
factor inquiry is “informed by the purpose of the Takings
Clause, which is to prevent the government from forcing some
people alone to bear public burdens which, in all fairness and
justice, should be borne by the public as a whole.” Id. at 617-
18 (internal quotation omitted).
17
We find that Acorn has pled facts that plausibly state a
regulatory takings claim under the ad hoc, multi-factor test
articulated above. First, Acorn’s complaint plausibly pleads
that the Council’s decision to rezone Acorn’s property had an
adverse economic effect on Acorn. Specifically, Acorn’s
complaint asserts that the decision, which effectively denied
public water/sewer access, prohibited Acorn from residentially
developing its property. Acorn also pled that, due to its
property’s location and size, Acorn’s property is not suited for
non-development and/or agricultural uses. Finally, Acorn’s
complaint states that the Council’s decision caused $25 million
in damages.
Next, Acorn has plausibly pled that the Council’s actions
interfered with Acorn’s reasonable investment-backed
expectations. Indeed, the circuit court’s decision, which has
not been overturned and is incorporated into Acorn’s complaint,
holds that Acorn met the objective criteria for amending its
water/sewer classification and that the Council arbitrarily and
capriciously blocked Acorn’s petition. Based on the circuit
court’s order, we find that Acorn has plausibly pled that it had
a reasonable investment-backed expectation to residentially
develop its property with public water/sewer access. Moreover,
we find that Acorn plausibly pled that the Council interfered
with this reasonable expectation when it rezoned Acorn’s
18
property and denied Acorn’s property the public water/sewer
access necessary for such development.
Moreover, we find that Acorn has plausibly pled that the
character of the Council’s actions was inequitable and
illegitimate. Indeed, as discussed above, Acorn’s complaint
notes that the circuit court decided the Council arbitrarily and
capriciously blocked Acorn’s efforts to amend its water/sewer
petition. This fact casts a shadow over the Council’s later
decision to rezone Acorn’s property, which effectively
sidestepped the circuit court’s order. Thus, Acorn’s complaint
plausibly pleads that the Council’s actions constituted an
illegitimate and inequitable attempt to prevent Acorn from
developing its property. Cf. Laurel Sand & Gravel, Inc. v.
Wilson, 519 F.3d 156, 165 (4th Cir. 2008) (finding no taking, in
part, because the “character of the government action here is
both legitimate and equitable”).
Finally, Acorn pled that the County has not paid Acorn just
compensation for the regulatory taking. Accordingly, we hold
that Acorn has sufficiently pled a regulatory takings claim that
is plausible on its face.
B.
To make out an arbitrary and capricious substantive due
process claim, Acorn must demonstrate “(1) that [it] had
19
property or a property interest; (2) that the state deprived
[it] of this property or property interest; and (3) that the
state’s action falls so far beyond the outer limits of
legitimate governmental action that no process could cure the
deficiency.” Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810,
827 (4th Cir. 1995) (emphasis in original). Although, as
discussed above, we found that Acorn’s substantive due process
claim is ripe because Acorn obtained a “final decision,” we hold
that Acorn’s complaint does not plead a plausible arbitrary and
capricious substantive due process claim.
Assuming arguendo that Acorn’s complaint sufficiently
pleads the first two prongs of an arbitrary and capricious due
process claim, Acorn’s complaint fails under the third prong
because it did not plausibly plead that no state-court process
could cure Acorn’s injury. Indeed, the “[Due Process] Clause is
violated only where the state courts can do nothing to rectify
the injury that the state has already arbitrarily inflicted.”
Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995). Notably,
under Maryland law, the state courts possess the authority to
strike down zoning decisions that are “arbitrary, capricious,
discriminatory or illegal.” Trustees of McDonogh Educ. Fund &
Institute v. Baltimore County, 158 A.2d 637, 645 (Md. 1960).
Acorn’s complaint does not assert that seeking such relief in
state court would not rectify its injury. Thus, as to Acorn’s
20
substantive due process claim, Acorn has failed to state a claim
that is plausible on its face. See Sylvia, 48 F.3d at 829(“[T]he fact that established state procedures were available to
address and correct illegal actions by the [Zoning] Board belies
the existence of a substantive due process claim.”).
Accordingly, we affirm the district court’s decision to dismiss
this claim, albeit on different grounds.
IV.
For the foregoing reasons, we affirm in part and reverse in
part, and remand for proceedings consistent with this opinion.
AFFIRMED IN PART,
REVERSED IN PART, AND
REMANDED WITH INSTRUCTIONS
21