Bell-Zuccarelli v. City of Gaithersburg et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 3/27/2015. (kns, Deputy Clerk)(c/m 3/30/15 rs/ch)

,.,

,

IN THE UNITED STATES DISTRICT
COURT
FOR THE DISTRICT
OF MARYLAND

IFJl£ll
•.••
t~

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-_,fIlTERED

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IIICfIVEO

MAR 302015

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AT &REENaElT

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DARLINE D.H.
BELL-ZUCCARELLI

ClEFti<U.S. DIInUCT COURT

D1STIIIGT OF MAR'ltANO

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PlaintilT

DEPlilY

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CITY OF GAITHERSBURG,

Civil No. P.JM 14-1306

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*
*
*
*

v.
et al.

Defendants

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MEMORANDUM

Darline
members

pro se, has sued the City of Gaithersburg,

Bell-Zuccarelli,

of its City Council,

and three City employees

civil rights under the 14th Amendment
Court

DENIES

Motion
MOOTS

Bell-Zuccarelli's

to Amend

for allegedly

to the U.S. Constitution.

Motion

the Complaint,

Defendants'

OPINION

to Exclude

GRANTS

Motion to Dimiss, and DISMISSES

Motion

DENIES

five

Bell-Zuccarelli's

For the following

Exhibits,

Defendants'

violating

its Mayor,

reasons,

the

Bell-Zuccarelli's

for Summary

Judgment,

the case with prejudice.

A.
According
"condemned"

Complaint,

a 192 square foot accessory

having inspected
requirements

to the two-page

the property.

as of September

on January

structure

Bell-Zuccarelli
27, 2012,

16, 2014, the City of Gaithersburg

located on Bell-Zuccarelli's

property without

alleges that she had met the permit and inspection
and describes

the "condemnation"

as a malicious

attempt by the City to have her tear down her shed. She adds that the City threatened
$500.00

fine and 90 days in jail if she failed to comply.

make the corrections

because

she believes

She concedes

that the City approved

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her with a

that she has refused to

the shed on September

27,

,
,\

2012. See Compl.

'I'i 12-16, ECF NO.2.

alleged eondemnation

on January

More specifieally, Bell-Zueearelli alleges that the City's

16, 2014 "violat[ed]

[her] eivil right[s] under the 14th

Amendment to the Constitution as it relates to due process of law." Id. ~ 12.
In Mareh of 2014, Bell-Zuccarelli

filed a Complaint in Montgomery County Cireuit

Court. On April 17,2014, the Defendants removed this case to this Court, and filed a Motion to
Dismiss, or in the alternative, for Summary Judgment. ECF NO.6. Bell-Zuccarelli then filed a
Motion to Exclude the Exhibits attaehed to the Defendants' Motion to Dismiss, and sought to
amend her Complaint to include a "violation of her 4th Amendment right." She alleges "that the
City of Gaithersburg seized her property with[out] a warrant and probable eause[] when the City
of Gaithersburg condemned her shed and denied her access to it." ECF No. 15.

B.
Defendants'

Motion is styled as a motion to dismiss under Federal Rule of Civil

Procedure 12(b)(6), "or in the alternative" for summary judgment under Federal Rule of Civil
Procedure 56. Def's

Sr.. ECF No.6-I,

at 1. A motion styled in this manner implieates the

Court's discretion under Rule 12(d) of the Federal Rules of Civil Procedure. Although a court
ordinarily does not consider matters outside the pleadings or resolve faetual disputes when ruling
on a motion to dismiss, the court, in its diseretion. may consider matters outside of the pleadings,
pursuant to Rule 12(d). See Sager v. HOIl.\'.Comm'n of Anne Arllndel Cn/y., 855 F. Supp. 2d 524,
542 (D. Md. 2012) (citing Bosiger v.

u.s. Airways.

Inc., 510 F.3d 442, 450 (4th Cir. 2007)). If

the court does so, "the motion must be treated as one for summary judgment under Rule 56," and
"[aJII parties must be given a reasonable opportunity to present all the material that is pertinent to
the motion."' Fed. R. Civ. 1'. 12(d).

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When the movant expressly captions its motion "in the alternative" as one for summary
judgment, and submits matters outside the pleadings for the court's consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur; the court "does not have an
obligation to notify parties of the obvious." See Sager, 855 F. Supp. 2d at 542 (citing Laughlin v.
Melro. Wash. Airporl.\ AUIh., 149 F.3d 253, 261 (4th Cir. 1998)).
Here, Bell-Zuccarelli

was on notice that conversion of the Motion under Rule 12(d)

might occur. Defendants' Motion was expressly captioned as a Motion "in the alternative" for
Summary Judgment, Def.'s Br., ECF No.6-I,

at I, and the Clerk of the Court sent Bell-

Zuccarelli a letter informing her of that fact, attaching a copy of Rule 56. ECF NO.8. BellZuccarelli acknowledged as much in her Response, in which she "request( ed] that this court deny
the defendants['j

motion to dismiss this case or alternative(ly] for summary judgment and allow

this case to proceed to trial." ECF No. II, at 2. She also attached two exhibits to her Response: a
newspaper article and a copy of the January 16,2014 Notice to Correct Violation. ECF Nos. II.
I, I 1.2. As noted above, she also moved to exclude the exhibits attached to Defendants' Motion,
because, she says, they are "unrelated to the plaintiffs complaint. ( ... ] (T]his case is a case of
constitutional

right violation, not (a] Maryland Residential Code violation. Residential Codes

violations should be resolved at the state and county level." ECF No. 14, at ~~ 1-8.
A court' s discretion to convert a motion to dismiss into one for summary judgment
"'should

be exercised with great caution and attention to the parties' procedural rights.' In

general. courts are guided by whether consideration of extraneous material 'is likely to facilitate
the disposition of the action,' and 'whether discovery prior to the utilization of the summary
judgment procedure' is necessary." Sager, 855 F. Supp. 2d at 542 (quoting 5C Wright & Miller,
Federal Practice and Procedure ~ 1366, at 149, 165-67 (3d ed. 2004, 20 II Supp.)) (internal

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citations omitted). But this is not a true conversion of a Motion to Dismiss because Defendants
have explicitly

moved "in the alternative"

for summary judgment.

challenged materials consist almost entirely of public records-most
issued by the City of Gaithersburg's
Zuccarrelli's
structure

Indeed,

notably, building permits-

Planning and Code Administration.

due process claims rise and fall based on the characteristics

as contemplated

by these permits,

consideration

Defendants'

Because Bellof her accessory

of the exhibits

will facilitate

disposition of the action. Finally, Bell-Zuccarelli does not expressly oppose proceeding under
Rule 12(d), nor does she argue that discovery is needed, nor is there any reason to suppose
discovery would make a particle of difference in analyzing the case. Accordingly, the Court will
address Defendants' Motion as a Motion for Summary Judgment.

c.
A brief review of the the factual and procedural history of the case follows.
On November 22, 2010, Bell-Zuccarelli

submitted a Residential Improvement Permit

Application to the City of Gaithersburg Planning and Code Administration.

ECF No. 6-3. Her

Application indicated that the Permit Type sought was a "shed," and the work description stated:
"Constructing

a shed in my back yard." Bell-Zuccarelli indicated that she would be doing no

mechanical work on the project and that, while she was putting in outlets and wiring, she was
"not putting electricity in now." She estimated the project's
property's

cost at $1000. She listed the

zoning code as R-90. On December 16, 2010, the City issued a permit for the

construction of a 140 square foot shed in the rear yard, and noted that the City might require a
separate electrical permit. ECF No. 6-4. On June 6, 2012, Bell-Zuccarelli applied for a permit to
"install electrical outlets and lights in shed." ECF No. 6-5.

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The City inspected the shed scveral times over the summer, and on September 27,2012,
issucd a permit marked "fina!." ECF No. 6_61 This permit described the project as a 216 square
foot "shed" and was accompanied by a permit for electrical work for "shed." Defendants have
attached as exhibits photographs that they represent were taken on the date that the permit
issued; these photographs depict an unfinished open space. ECF No. 6-8.
Over a year later, Gazette.net published an article in its online newspaper featuring BellZuccarelli's shed. ECF No. 6-8. The article reported that Bell-Zuccarelli and her husband had in
fact built a small house in Bell-Zuccarelli's
accompanying

backyard for her daughter to live in. The article and

photographs indicated that the house had a furnished living room, kitchenette,

sleeping loti, bathroom, air conditioning, and heat. The article quoted Bell-Zuccarelli's
saying: "The house is great ...

daughter

If she had the water hooked up, I would be more than happy to

live in it:'
The City became aware of these apparent features of the "shed" through the Gazette.net
2

article, and on January 16, 2014, issued an Official Notice to Correct Violations. ECF No. 6_10.

The Notice ordered Bell-Zuccarelli to cease and desist the use of the accessory structure as a
single family dwelling, and to cease and desist the usc of the accessory structure on the grounds
that it had been altered from the approved electrical and building permits. The Notice advised
Bell-Zuccarelli that shc had the right to immediately petition the City Board of Appeals if she
felt that the notice had been issued in error.
On January 27, 2014, Bell-Zuccarelli applied for another permit to complete electrical
work. ECF No. 6-11. City inspectors visited the structure on February 18,2014 pursuant to the

I In her Complaint.
Bell-Zuccarelli argues that she had "met the permit and inspection requirements on September
27,2012" and that the shed was "approved on Septemher 27, 2012." ECF No. 21i~ 13: 16.
2 In her Complaint. Bell-Zuccarelli alleges that the City condemned her shed on January 16,2014. ECF NO.2, at ~

12.

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January 27, 2014 permit application, documented and photographed further alleged violations,
and concluded that the structure was out of compliance with the permit. That same day, the City
served Bell-Zuccarelli with a second Official Notice to Correct Violations. ECF Nos. 6-13; 6.14.
There is no indication in the record that Bell-Zuccarelli ever complied with either Notice
to Correct Violations nor that she has sought review of either Notice pursuant the relevant City
appeals process.

D.
Rule 56 rcqulrcs summary judgment

where the "pleadings,

depositions,

answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law," Anderson ". Uberty Lobby, Inc" 477 U.S. 242,247 (1986) (quoting Fed. R. Civ.
P. 56(c)). A disputc of a material fact is "genuine" if "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party," Anderson, 477 U,S. at 248, while "a fact is
"material"

if it "might affect the outcome of the suit under the governing law." Id. at 248

(citations omitted).
Bell-Zuccarelli

alleges that the Defendants violated her "civil rights under the 14th

Amendment to the Constitution as it relates to due process of law," in particular, that they
conspired to "condemn" the accessory structure, and that they maliciously attempted to have
Bell-Zuccarelli "tear down the shed," Defendants did so, she maintains, despite the fact that BellZuccarelli had met permit and inspection requirements on September 27, 2012.
The Court construes Bell-Zuccarelli's

pro se pleading to raise a 14th Amendment due

process claim under 42 U.S.C. ~ 1983, and accordingly exercises subject matter jurisdiction over
this matter pursuant to 28 U.S.c. ~ 1331.

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The Due Process Clause of the 14th Amendment affords both procedural and substantive
due process. The Supreme Court has held "[t]he requirements of procedural due process apply
only to the deprivation of interests encompassed by the Fourteenth Amendment's

protection of

liberty and property," Bd. oIRegen/s oIS/a/e Colleges v, Ro/h, 408 U.S. 564, 569 (1972), while
substantive due process under the Fourteenth Amendment "forbids the government to infringe ..
'fundamental'
infringement

liberty interests at all, no matter what process is provided,

is narrowly

tailored

to serve a compelling

state interest,"

unless the

Washing/on

v,

Glucksberg, 521 U.S, 702, 721 (1997) (citing Reno v. Flores, 507 U.S. 292, 302 (1993)).
Bell-Zuccarelli has not identitled what type of due process has allegedly been denied her.
As a threshold matter, she is obligated to tlrst demonstrate the property or liberty interest at
issue. If no protected property interest exists, there is no need to consider whether any alleged
deprivation of that interest occurred without "due process," See Greenspring Racque/ Club, Inc.
I'.

Bal/imore Cn/y., /14d., 232 F.3d 887, at *7 (4th Cir. 2000) (amrming dismissal of substantive

due process claim where plaintiff did not identify the constitutionally protected property interest
at issue).
It is well established that "[t]o have a property interest in a benetlt, a person clearly must
have more than an abstract need or desire for it. [The individual] must have more than a
unilatcral expectation of it. [She] must, instcad, have a legitimate claim of entitlement to it."
Ro/h, 408 U.S. at 577. These protected "[p]roperty interests, of course, are not created by the
Constitution.
understandings

Rather they are created and their dimensions are detlned by existing rules or
that stem from an independent

cognizable property interest Bell-Zuccarelli

source such as state law." Id. Thus, any

may have in the accessory structure she seeks to

vindicate stems from applicable state zoning law. See Scott v. Greenville Cn/y., 716 F.2d 1409,

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1418 (4th Cir. 1983) ("The starting point for our inquiry is to determine whether state or local
law afforded Scott a 'protectable property interest in the pennit' sufficient to trigger federal due
process guarantees.") (citations omitted).
In Maryland, state poliey regarding land use provides that "(I) the orderly development
and use of land and structures requires comprehensive regulation through the implementation of
planning and zoning controls; and (2) planning and zoning controls shall be implemented by
local government."

S

Md. Code Ann .. Land Use

4-101(a). Pursuant to that policy, state law

grants authority to local legislative bodies such as the City of Gaithersburg to establish and
administer planning and zoning controls. To that end, in order "to ensure conformity with the
intent and purpose of this division and of the local jurisdiction's zoning law, a legislative body
may retain the power to approve or disapprove: (I) the design of buildings, construction,
landscaping. or other improvements; and (2) changes made or to be made on the land being
zoned or rezoned," Md. Code Ann., Land Use

S

4-103(e). However, the legislative body's

authority to require individuals to obtain design approval hinges on whether the legislative body
adopts local law that includes enforcement procedures and provides notice to individuals. Md.
Code Ann., Land Use

S 4-1 03(d).

Bell.Zuccarelli's

property is located in an R-90 zone which, under the Gaithersburg City

Code, permits accessory structures as a use by right. City Code

S 24-28(6).

The Code defines an

accessory structure as "[aJ structure on the same lot with, and of a nature customarily incidental
and subordinate to. the principal structure, and is not attached by any part of a common wall or
common roof to the main building" City Code

S

24-1. However, the Code also provides that in

R.90 zones "not more than one single-family dwelling shall be permitted on anyone
Code

S

lot" City

24-164. A dwelling is defined as "[aJ building or portion thereof arranged or designed to

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provide living facilities for one or more families, excepting trailers and mobile homes." City
Code ~ 24-1.
Bell-Zuccarelli applied for and received approval in September of 2012 for an accessory
structure-a

shed-pursuant

to the established permitting process. However, the record plainly

reveals that as of January 16, 2014, the date that the City issued the Official Notice to Correct
Violations, Bell-Zuccarelli's

structure far exceeded the scope of the linal permit. The content and

photographs of the newspaper articles cited by both parties, the City's inspection records, as well
as the pictures taken by the City during an inspection of Bell-Zuccarelli's

property, reveal an

accessory structure with a fully furnished living room,) a kitchenette with a stocked refrigerator,
a sleeping loti with a bed. a staircase, and a bathroom. Drawing all reasonable inlerences in BellZuccarelli's

favor, there can be no genuine dispute that as of January 16, 2014, the accessory

structure she constructed was arranged to provide living facilities for one or more families, and
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was therefore a "dwelling" within the meaning of the City code.

Even assuming Bell-Zuccarelli had a vested property interest in the accessory structure as
approved in September of 2012, she did not have such a property interest in the structure as it
existed in January of 2014. the point in time that the City condemned the structure. While the
City Code provides that accessory structures are a usc permitted "by right" in an R.90 zone, the
Code also forbids more than one single-family dwelling on one lot. Bell-Zuccarelli

plainly

cannot rely on the September 2012 permit for an accessory structure to claim a protected

~ The Court notes the presence of a decorative \\:ooden sign hanging on the living room wall underneath the
television. The wooden sign reads "HOME." ECF No. 6-14, at I.
~ Bell-Zuccarelli moves to exclude Defendants' exhibits because ..[tlhis case is a case of constitutional right
violation, not [aJ Maryland Residential Code violation." ECF No. 14. at Ii I 1-8. As discussed above, the scope of
Bell-Zuccarelli's
constitutionally cognizable proPC11y interest stems from state zoning law, so Defendants' exhibits
arc directly relevant to this case. She also argues that photographs of the inside of the shed, ECF NO.6-II, were
illegally obtained by the City of Gaithersburg, who seized her property without a warrant. See id. at ~ 9. Even
assuming Bell-Zuccarelli's
allegation had merit, the exclusion of these photographs would not alter the Court's
conclusions. which are based on the other exhibits, including the newspaper photographs in ECF No. 6-9.

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property interest

In

second single family dwelling, because she has no "legitimate claim of

entitlement" under state or municipal law to use and maintain an accessory structure as a second
single family dwelling.
Because Bell-Zuccarelli has no protected property interest, there is no need to consider
whether the City's alleged deprivation of that interest occurred without with "due process." See
Greenspring,

232 F.3d at *7. Beyond that, the Court notes that both Notices to Correct

Violations expressly provided Bell-Zuccarelli with notice of her right to have the City's actions
reviewed

by the City's

Board of Appeals,

which has the power to decide appeals of

determinations made by the City's Planning and Code Administration department. See City Code

S

24-187. There is no indication in the record that Bell-Zuccarelli ever availed herself of this

process.
Accordingly, Bell-Zuccarelli's

Motion to Exclude Exhibits, ECF No. 14, is DENIED and

Defendants' Motion for Summary Judgment, ECF NO.6, is GRANTED.
E,
Bell-Zuccarelli has moved to amend her Complaint to "include [aJ violation of her 4th
Amendment right." complaining "that the City of Gaithersburg seized her property with[out] a
warrant and probable cause[] when the City of Gaithersburg condemned her shed and denied her
access to it," ECF No. 15. but the Motion is pointless.
l.eave to amend should be denied under Federal Rule of Civil Procedure 15(a) "only
when the amendment would be prejudicial to the opposing party, there has been bad faith on the
part of the moving party, or the amendment would have been futile." Mackie v. Jewish Found.
for Grp. Homes, 2011 WI. 1770043. at *10 (D. Md. May 9, 2011) (citing Johnson v. Orowea(
Foods Co., 785 F.2d 503. 509 (4th Cir. 1986)). An amendment is futile if it would not survive a

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motion to dismiss or for summary judgment. Id (citing Sound of"lll/sic Co. v. Minnesota Min. &
Mfg Co., 477 F.3d 910, 923 (7th Cir. 2007)).
The Fourth Amendmcnt's protections against unreasonable seizures clearly extend to real
property, and apply to temporary and partial seizures. See Presley v. City OjCharlollesville,

464

F.3d 480, 483, 487 (4th Cir. 2006). The Suprcme Court has held that a seizure of property occurs
whcnever "'there is some meaningful interference with an individual's possessory interests in that
property." Id. at 487 (citing United Slates v. Jacobsen, 466 U.S. 109, 113 (1984)). But even
when a seizure of property occurs, reasonableness remains the ultimate standard under the Fourth
Amendment. As is true in other circumstances, the reasonableness determination will reflect a
"careful balancing of governmental and private interests"

See Soldal v. Cook CIlIY., JIl., 506

U.S. 56, 71 (1992).
Here, the City of Gaithersburg issued two Official Notices to Correct Violations to BellZuccarelli. These Notices instructed her to cease the use of the shed as a single family dwelling,
to cease and desist occupancy of the shed unless or until the structure would be restored to the
condition approved by the September 27, 2012 permit, and to correct specific electrical and
structural violations. The Notices explained that failure to comply would result in the issuance of
fines or legal action. There is no indication in the proposed Amended Complaint or the record
before the Court that the City physically denied Bell-Zuccarelli access to the structure.
The Court will assume without deciding that the City's actions constituted a seizure of
property cognizable under the Fourth Amendment. However, as discussed above, there is no
gcnuine dispute that as of January 16, 2014, the accessory structure on Bell-Zuccarelli's

property

was arranged to provide living facilities for one or more families, indisputably in violation of the
City Code. The City Planning and Code Administration respondcd by issuing Notices to Correct

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..
Violations, which provided instructions on the nature of the violations, the steps necessary to
obtain approval of the corrections, the potential sanctions for failing to comply, and the process
by which Bell-Zuccarelli could appeal the Planning and Code Administration's

determination.

The Court finds that that the issuance of these Notices reflected a reasonable balance of
governmental and private interests. Indeed, it is difficult to imagine a more straightforward and
reasonable exercise of municipal zoning enforcement authority. To the extent that the City's
actions at issue might constitute a seizure, the seizure was a reasonable one.
Accordingly, Bell-Zuccarelli's

Motion to Amend the Complaint is DENIED as futile.

A separate Final Order of Judgment will ISSUE.

TER J. MESSITTE
ATES DISTRICT JUDGE

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