Lucile Horne v. Mayor and City Council of Balt

Filing 920091028

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1483

LUCILE M. HORNE; OPHELIA M. HORNE, Plaintiffs ­ Appellants, v. MAYOR & CITY COUNCIL OF BALTIMORE, Defendant ­ Appellee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:07-cv-01110-RDB)

Argued:

September 22, 2009

Decided:

October 28, 2009

Before MOTZ and KING, Circuit Judges, and Mark S. DAVIS, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

John Henry Morris, Jr., LAW OFFICE OF JOHN H. MORRIS, JR., Baltimore, Maryland, for Appellants. Matthew Wade Nayden, Chief Solicitor, BALTIMORE CITY SOLICITOR'S OFFICE, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: In April 2007, Lucile M. Horne and Ophelia M. Horne (the "Hornes") filed a civil action in the District of Maryland

against the Mayor and City Council of Baltimore (the "City"), contending that the City had contravened the Hornes' Fifth and Fourteenth Amendment rights by granting a zoning variance on neighboring compensation. the district to property without adequate notice or just

By its Opinion and Order of February 27, 2008, court Federal granted Rule of the City's motion to dismiss, for See

pursuant

Civil

Procedure

12(b)(6),

failure to state a claim upon which relief can be granted.

Horne v. Mayor & City Council of Balt., No. 1:07-cv-01110 (D. Md. Feb. 27, 2008) (the "Opinion"). 1 The Hornes have appealed

the dismissal and, as explained below, we affirm.

I. A. For many years the Hornes have owned a townhouse located at 1223 North Eden Street in Baltimore, Maryland. 2 As the end unit

The Opinion is found at J.A. 13-24. (Citations herein to "J.A.__" refer to the contents of the Joint Appendix filed by the parties in this appeal.) The facts recounted herein are derived from the allegations made in the Hornes' complaint, found at J.A. 3-10.
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in a series of row houses on North Eden Street, their townhouse is attached on its southern side to the townhouse at 1221 North Eden Street. On its northern side, the Hornes' property abuts

the rear of the lot at 1401 East Preston Street (the "Preston Street property"). Prior to 2002, the Preston Street property

contained a townhouse and a small walkway on the rear portion thereof (the "setback"), the consequence of a Baltimore zoning stricture limiting construction to no closer than twenty-five feet of the rear property line (the "setback requirement"). In property October was 2002, the townhouse its at the Preston the Street Dawson For

firebombed

because

residents,

family, had opposed the neighborhood's illegal drug trade.

nearly three years, the Preston Street property was essentially vacant, containing only the burned-out shell of the Dawsons' townhouse. In June 2005, developer James French sought to

transform the ruins of the Dawsons' townhouse into a three-story community center, to be named in honor of the Dawson family. His initial building permit request was denied, however, as he had not received approval to use the Preston Street property for a community center or complied with the setback requirement. Thus, to secure the necessary approvals, French filed an appeal ("Appeal No. 497-05") with Baltimore's Board of Municipal and Zoning Appeals (the "Board").

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The Board scheduled a public hearing to address the issues in Appeal No. 497-05 for July 12, 2005. A notice listing the

time, date, and location of the public hearing was posted at the Preston Street property. Although not specifically mentioning

the setback requirement issue, the notice explained that the public hearing would address "Appeal 497-05 for a permit to

construct a new three-story community center on the[] premises." Opinion 3. posted at Prior to the hearing, the Hornes saw the notice the Preston Street property. The Hornes did not

attend the hearing, however, as they then had no objection to the construction of the community center. After the public hearing, the Board granted Appeal No. 49705, including the requested variance from the twenty-five-foot setback requirement (the "setback variance"). Because the

Hornes did not reside in their townhouse at 1223 North Eden Street, they were not aware that the setback variance had been granted until nearly a year later, in May 2006, when

construction of the community center had progressed to the point that it abutted the northern wall of their property. B. On April 30, 2007, the Hornes filed their two-count

complaint against the City under the provisions of 42 U.S.C. § 1983. In the first count of their complaint, they alleged

that their property interest in the setback requirement had been 4

abridged without due process, in contravention of the Fourteenth Amendment, when the Board granted the setback variance for the Preston Street property without sufficient notice. In the

second count of their complaint, the Hornes asserted that, due to the lack of such notice, the setback variance constituted an unconstitutional specifically, denying to taking under in and . . . the the Fifth second Amendment. count of that the More "[b]y issues the

they

alleged due

Plaintiffs their

complete and to

notice the

affecting

property

extent

that

Plaintiffs have suffered economic loss relating [thereto] . . ., the Defendants' zoning decision constitutes a taking under the Fifth Amendment . . . for which Plaintiffs have been denied just compensation." On J.A. 9. 11, 2007, the City moved to dismiss the

September

entirety of the § 1983 complaint under Rule 12(b)(6), asserting that the Hornes lacked a constitutionally protected property

interest in the setback requirement and thus failed to state any claim under the Fifth or Fourteenth Amendment upon which relief could be granted. By its Opinion of February 27, 2008, the

district court agreed and granted the City's motion to dismiss. In so ruling, the court recognized that "to state a claim under both constitutional provisions, [the Hornes] must allege that they have a constitutionally protected property interest."

Opinion 7.

The court ruled that the Hornes' putative property 5

interest was "not a legitimate property interest giving rise to a § 1983 claim Id. under either the Fifth or Fourteenth

Amendment[]."

Specifically, the court concluded that the

Board's retention of "unfettered discretion to grant or deny the requested variance" precluded the Hornes' right" assertion in the of any

"constitutionally

cognizable

property

setback

requirement or any variances therefrom.

Id. at 9. 3

The Hornes have filed a timely notice of appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.

II. We review de novo a district court's dismissal of a

complaint under Rule 12(b)(6).

See Duckworth v. State Admin. Our

Bd. of Election Laws, 332 F.3d 769, 772 (4th Cir. 2003).

focus in conducting such a review is on the legal sufficiency of the complaint, Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008), and, in making our review, we must accept as true

In the alternative, the Opinion observed that any property interest in the setback variance would belong only to the owners of the Preston Street property, in that a person cannot derive a property interest solely from the effect that neighboring property has on the value of one's own property. See Opinion 910. As explained below, the Hornes' Fifth and Fourteenth Amendment claims are insufficient because the Board's broad discretionary authority undermines their asserted property interest in the setback requirement. Thus, we need not further address the district court's alternate analysis.

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the complaint's factual allegations and construe all facts and reasonable plaintiff, Venkatraman 2005). contain inferences see v. in v. the light most 551 F.3d favorable 89, 420 94 to the

Erickson REI Sys.,

Pardus, 417

U.S. 418,

(2007); Cir.

Inc.,

(4th

Nevertheless, to survive dismissal, the complaint must "enough facts to state a claim to relief that is

plausible on its face." 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

III. The Fourteenth Amendment bars the States and their

instrumentalities from "depriv[ing] any person of life, liberty, or property, without due process of law." XIV. As the Supreme Court has observed, U.S. Const. amend. "[t]he Fourteenth

Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits. take many forms." These interests -- property interests -- may Bd. of Regents of State Colls. v. Roth, 408

U.S. 564, 576 (1972). The Fifth Amendment, pursuant to its Takings Clause,

forbids the taking of private property "for public use without just compensation." U.S. Const. amend. V. By virtue of the

Fourteenth Amendment, the Takings Clause applies to state and local governments, such as Baltimore City. 7 Penn Cent. Transp.

Co. v. City of N.Y., 438 U.S. 104, 122 (1978); Ballard Fish & Oyster Co. v. Glaser Constr. Co., 424 F.2d 473, 474 (4th Cir. 1970). take an Under the Fifth Amendment, therefore, the City may not individual's property, either through governmental

regulation or physical invasion, without just compensation. Significantly, in order to state a claim under either the Fifth or the Fourteenth Amendment, the Hornes must allege a

cognizable property interest.

"Property interests, of course,

are not created by the Constitution," but stem instead "from an independent source such as state law." Roth, 408 U.S. at 577.

As such, we must assess whether, under either state or local law, the Hornes can legitimately assert a property interest in the setback requirement this on the we Preston Street that, have [or] property. to more a possess than In a an

conducting protected abstract

analysis,

are one it

mindful "must . . .

property need or

interest, desire for

unilateral

expectation of it," and "must, instead, have a legitimate claim of entitlement to it." First, we assess Id. whether the Hornes' asserted property

right stems from any principle of Maryland law.

In its 1941

decision in Chayt v. Maryland Jockey Club of Baltimore City, the Court of Appeals of Maryland concluded that property owners had "no vested right in the continuance 18 A.2d 8 856, of 859 [a restriction on

neighboring

property]."

(1941).

"Since,

therefore,

appellants

acquired

no

vested

right

under

the

original Zoning Ordinance," Maryland's highest court ruled that, "it follows that the amending ordinance placing nearby

properties in a lower classification . . . deprives appellants of no legal rights inasmuch as it takes nothing from them that they have a right to insist upon." precedent, the Maryland courts have Id. Predicated on this to forestall

declined

changes on one piece of property simply because of its effects on neighboring properties. See, e.g., Hoffman v. Mayor & City

Council of Balt., 79 A.2d 367, 370 (1951) (explaining that "[i]f a residential neighborhood desires protection by a border of unused property, necessarily it must provide its own property, not appropriate its neighbors', for this purpose," as zoning restrictions exist "for the protection of the property

restricted and not to give protection to surrounding property") (internal England v. quotation Mayor & marks Council and of citations Rockville, omitted); 185 A.2d see 378, also 380

(1962) ("Restrictions imposed under the police power must be related to the general welfare and cannot be supported on the basis of benefit to surrounding property."). Second, to complete our analysis we must also assess

whether any provision of local law -- here the Zoning Code of Baltimore interest City in (the "Code") -- grants the Hornes a property this

the

setback

requirement. 9

In

conducting

assessment, standard decisions.

we

must

adhere

to

the to

"claim zoning

of

entitlement" municipal

that

governs

challenges

and

See, e.g., Biser v. Town of Bel Air, 991 F.2d 100,

104 (4th Cir. 1993); Gardner v. Balt. Mayor & City Council, 969 F.2d 63, 68-69 (4th Cir. 1992). Pursuant thereto, if the Board

possesses "`[a]ny significant discretion'" in deciding whether to grant the setback variance, the Hornes have "no legitimate entitlement Biser, 991 and, F.2d hence, at 104 no cognizable property 969 interest." at 68)

(quoting

Gardner,

F.2d

(alteration in original). of discretion accorded

This "standard focuses on the amount issuing agency by law," with "a the

the

cognizable

property

interest

exist[ing]

`only

when

discretion of the issuing agency is so narrowly circumscribed that approval of a proper application is virtually assured.'" Gardner, 969 F.2d at 68 (quoting RRI Realty Corp. v. Inc. Vill. of Southampton, 870 F.2d 911, 918 (2d Cir. 1989)). Thus, it is

only when a zoning board is required by law to act in a specific way with respect to a particular zoning variance that a person can assert a cognizable property interest therein. See id.;

accord Scott v. Greenville County, 716 F.2d 1409, 1418 (4th Cir. 1983). Under the Code, the Board has been accorded broad

discretion to "authorize a yard or setback that is less than that otherwise required by the applicable regulation." 10 § 15-

203; see § 15-101. decision, the Code

As with the zoning provision in our Biser requires the Board, in making a variance

decision, to determine, inter alia, that the variance will not "create hazardous traffic conditions," "otherwise endanger the public safety," "be detrimental to or endanger the public

health, security, general welfare, or morals," or "in any way be contrary to the public interest;" the Board must also determine that "the variance is in harmony with the purpose and intent of th[e] article." § 15-219; see Biser, 991 F.2d at 104 (observing

that "[i]t is difficult to imagine a more flexible standard"). To be sure, one of the required determinations is that "the variance will not[] . . . be injurious to the use and enjoyment of other property in the and immediate impair vicinity[] values or in . . . the

substantially neighborhood."

diminish § 15-219.

property

The fact that specific factors guide

the Board's disposition of a variance request, however, in no way nullifies the reality that the Board possesses the

discretion to make such determinations, and to either grant or deny a requested variance. In other words, contrary to the

Hornes' assertion, the Board's discretion to grant a setback variance exists independent of a determination, by way of

example, that a particular variance will not adversely affect neighboring properties or will be in harmony with the purposes of the Code. See § 15-203. 11

Because deciding

the

Code to

grants grant a

the

Board

broad

discretion the

in

whether

setback

variance,

Hornes See

possessed only a unilateral expectation in that regard. Biser, 991 F.2d at 104.

Hence, the Hornes had "`no protectable Gardner, 969 F.2d

property interest'" in the setback variance.

at 69 (quoting United Land Corp. v. Clarke, 613 F.2d 497, 501 (4th Cir. 1980)). Since the Hornes had no property interest in

the setback variance, they also had no property interest in a setback requirement from which a variance could, in the Board's discretion, be granted. 4 obviates any claim by In short, the Board's broad discretion the Hornes of a constitutionally

cognizable property interest arising under either the Fifth or Fourteenth Amendment. 5 As such, the district court correctly

Because the Board had such discretion to act with respect to the setback variance, it is immaterial whether the asserted property interest is characterized as, inter alia, in the setback requirement, the setback variance, or the Board's decision regarding the variance. The Hornes also assert a property interest in the process by which the Board makes its zoning decisions. But, "[p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement." Olim v. Wakinekona, 461 U.S. 238, 250 (1983). Thus, absent an underlying property interest, the Hornes possess no procedural due process rights in the zoning decision proceedings. See Mallette v. Arlington County Employees' Supplemental Ret. Sys. II, 91 F.3d 630, 635 (4th Cir. 1996) (explaining that "the statute at issue must create an entitlement to the benefit before procedural due process rights are triggered") (internal quotation marks omitted).
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dismissed the complaint in its entirety for failure to state a claim upon which relief can be granted.

IV. Pursuant to the foregoing, we affirm the district court's dismissal of the complaint. AFFIRMED

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