United States District Court, D. Maryland
ROCKVILLE CARS, LLC, et. al. Plaintiffs,
CITY OF ROCKVILLE, MARYLAND et. al. Defendants.
J. MESSITTE UNITED STATES DISTRICT JUDGE
Cars, LLC and Priority 1 Automotive Group, Inc. (collectively
Plaintiffs) have sued the City of Rockville, Maryland and
Robert L. Purkey Jr. in his personal capacity (collectively
Defendants). Plaintiffs, who operate a BMW automobile
dealership in Rockville, contend that Defendants deprived
them of their procedural due process rights under the
Fourteenth Amendment to the U.S. Constitution, made
actionable pursuant to 42 U.S.C. § 1983. Defendants did
so, say Plaintiffs, when they issued a “Suspension of
Building Permit - Stop Work Order, ” which halted
Plaintiffs' construction of a new BMW show room.
Defendants filed a Motion to Dismiss the Amended Complaint,
or, in the Alternative, Motion for Summary Judgment, ECF No.
Plaintiffs filed a Response in Opposition and Cross-Motion
for Partial Summary Judgment and Motion for Discovery. ECF
No. 26. In the spring of last year, the Court held a hearing
on the cross-motions. ECF No. 29.
considered the parties' filings and oral argument, the
Court will GRANT Defendants' Motion to Dismiss, ECF No.
23. Accordingly, Plaintiffs' Amended Complaint, ECF No.
21, will be DISMISSED WITH PREJUDICE. Plaintiffs'
Cross-Motion for Partial Summary Judgment and Motion for
Discovery, ECF No. 26, will be DENIED.
FACTS AND PROCEDUREAL HISTORY
sell new and used BMW automobiles. Am. Compl. ¶ 6, ECF
No. 21. They possess a leasehold interest in real property
bearing the address 1350 Rockville Pike, Rockville, Maryland
20852 (the Property). Id. The Property is owned in
fact by a third party, Robin Tang. Id. ¶ 17.
Plaintiffs acquired their lease of the Property for the
purpose of developing a show room for the luxury BMW cars
they sell. Id. ¶ 7. The Property had previously
been used as a restaurant and small furniture retail store.
Id. ¶ 8.
pursuit of their intention to develop the show room,
Plaintiffs were required to submit the following: (1) a
“Site Plan Application” to the City of
Rockville's Department of Community Planning and
Development Services (City Planner), in order to change the
commercial use of the building on the property from
“split retail / restaurant” to “automotive
sales / retail” and (2) a Building Permit Application
to the City of Rockville Inspection Services Division in
order to commence construction on the new building. See
id. ¶ 12, 14.
October 15, 2012, Plaintiffs submitted their Site Plan
Application to the City Planner. Defs'. Mot. to Dismiss,
Exhibit F1, ECF No. 23-F1. The Site Plan Application
represented that “[t]he existing building is going to
be gutted and renovated but not expanded” and that
“[t]he proposed automotive sales (retail) use will
replace the vacated, approved restaurant use within the
existing building.” Id. The Site Plan
Application also stated that the owner of the Property was
Robin Tang. Id. Attached to the Site Plan
Application were building elevation drawings for the
“building renovation.” Id. On March 21,
2013, the City of Rockville, subject to conditions,
approved a “(Minor) Site Plan
Amendment” (application number STP2013-00143). Am.
Compl. ¶ 12.
on February 28, 2013, Plaintiffs submitted a Building Permit
Application to Rockville's Inspection Services Division.
Defs'. Mot. to Dismiss, Exhibit D, ECF No. 23-D. The
Project Description in the Application stated: “The
Project is a renovation of an existing retail and restaurant
building. The existing building consists of two tenant spaces
which will be demolished and combined into a space for auto
sales and associated offices.” Id. Notably,
the Building Permit Application listed “Priority One
Automotive, ” rather than Robin Tang, as the Property
owner. Id. On April 12, 2013, the City
of Rockville issued Plaintiffs a Building Permit
(BLD2013-18229) for the Project. See Defs'. Mot.
to Dismiss, Exhibit E, ECF No. 23-E.
on the site began soon thereafter, and in July 2013, the
building on the Property was razed, except for the cement
slab underlying the structure. Am. Compl. ¶ 14. That
same month, Defendants received a letter from Property owner,
Robin Tang, stating that: “I recently learned that BMW
has caused the existing structure on the Premises to be
substantially demolished. The demolition of the existing
structure was undertaken without my knowledge or approval. I
have not approved Tenant's Work presently in progress at
the Premises.” Defs'. Mot. to Dismiss, Exhibit C,
ECF No. 23-C. Tang also stated, “Please be advised that
until further notice I am withdrawing my consent for BMW or
its agents to apply for permits in connection with the
18, 2013, Chief of Planning for the City of Rockville, R.
James Wasilak, met with Plaintiffs and their lawyer, Stuart
R. Barr, Esquire,  and discussed the fact that the work done
on the Property did not comply with the Site Plan Amendment.
See Defs'. Mot. to Dismiss, Exhibit F2, ECF No.
23-F2. Later that day, Barr sent Wasilak and other City of
Rockville employees an e-mail, saying:
I want to thank you again for taking the time to meet with
me and our client on short notice earlier today
about the 1350 Rockville Pike Project. I had not previously
worked on this project and became aware of this matter for
the first time earlier today. I appreciate your patience as I
have tried to review everything quickly and understand the
situation. As I have gathered more information, things are
starting to become more clear. As I have mentioned, if there
is any distinction between renovation work and new
construction that is explained in the City Zoning Ordinance
or Code (or anywhere else), I would appreciate reviewing
that. As you know, I would like to try to help resolve this
situation as quickly as possible to allow the project to move
forward.” Id. (emphasis supplied).
following day, July 19, 2013, Robert L. Purkey, Jr., Acting
Chief of Inspection Services for Defendant City of Rockville
(and an individual Defendant in this case), issued a
“Suspension of Building Permit - Stop Work Order”
(Suspension Letter). Am. Compl. ¶ 15. In the Suspension
Letter, Purkey stated that Property owner Robin Tang had
advised the City that Plaintiffs did not have authority to
submit the Building Permit Application. Defs'. Mot. to
Dismiss, Exhibit A, ECF No. 23-A. Purkey's Suspension
Letter also said that “[i]n addition to lacking the
Property owner's authority, the scope of work, as
submitted for the Building Permit is not in compliance with
minor site plan amendment STP2013-00143 . . .”
id, indicating that the Building Permit was being
suspended pursuant to City Code Chapter 5, Article 5, Section
Suspension Letter also indicated that the Building Permit
would remain suspended until the Property owner, i.e. Robin
Tang, authorized all construction as submitted in obtaining
building permit BLD2013-18229, and further advised that
“[a] new site plan application must be submitted to,
and approved by the City of Rockville.” Id.
The Suspension Letter went on to indicate that “[a]
Notice of Violation outlining the specifics of the
inconsistences will be issued to Priority One Automotive
separately.” Id. According to Plaintiffs, they
never received a separate Notice of Violation. See
Plfs.' Mot. for Partial Summary Judgment, 8.
relevant times in this case, disputed administrative actions
by the City of Rockville were appealable to an administrative
board. See Defs.' Mot. to Dismiss,
13. Specifically, the Rockville City Code, Chapter 5, Article
5, Section 113 provided that “[a]ny person aggrieved by
and desirous of challenging a decision of the administrative
authority in connection with the interpretation, application,
or modification of any provision of this chapter relating to
the manner of construction or materials used in connection
with the erection, alteration, or repair of a building or
structure or system installed therein, shall appeal such
decision to a Board of Adjustments and Appeals.”
Defs'. Mot. to Dismiss, Exhibit B, ECF No. 23-B
Plaintiffs never filed an administrative appeal of the
City's Suspension Notice. See Plfs.' Mot.
for Partial Summary Judgment, 25-29.
weeks later, on or about October 9, 2013, Property owner Tang
authorized Plaintiffs' proposed construction at the
Property site. Am. Compl. ¶ 20.
City did not, however, immediately lift the Suspension order.
On December 23, 2013, Wasilak wrote a letter to Attorney Barr
explaining that the continued suspension of the Building
Permit was due to the fact that “the prior building was
razed to the ground and its structural elements, including
the walls and roof, were removed.” Id. ¶
21. According to Wasilak, the demolition of the building
required a new Site Plan to bring the building in conformity
with current zoning laws. Id. Plaintiffs dispute that
their work on the Building was so extensive that it
necessitated a new Site Plan. Id. ¶ 22.
so, Plaintiffs submitted a new Site Plan Application
(STP2014-00205), and on May 16, 2014, the Plan submitted by
Plaintiffs was approved, subject to conditions. Id.
¶ 23. In approving the new Site Plan Application, the
City of Rockville provided additional detail as to why the
previous Site Plan STP2013-00143 had been suspended.
Id. Wasilak told Plaintiffs that “[a]pproval
allows the applicant to construct a new freestanding
building, replacing the former building on the site that was
razed/demolished to its foundational slab. Due to the razing
of the building, approval of a Level 1 site plan was required
to allow for reconstruction, which was not included in
approved Minor Site Plan ...