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Rockville Cars, LLC v. City of Rockville

United States District Court, D. Maryland

January 4, 2017

ROCKVILLE CARS, LLC, et. al. Plaintiffs,



         Rockville 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.

         After Defendants filed a Motion to Dismiss the Amended Complaint, or, in the Alternative, Motion for Summary Judgment, ECF No. 23, [1] 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.

         Having 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.


         Plaintiffs 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.

         In 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.

         On 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, [3]approved a “(Minor) Site Plan Amendment” (application number STP2013-00143). Am. Compl. ¶ 12.

         Meanwhile, 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.[4] 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.[5]

         Construction 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 Premises.” Id.

         On July 18, 2013, Chief of Planning for the City of Rockville, R. James Wasilak, met with Plaintiffs and their lawyer, Stuart R. Barr, Esquire, [6] 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).

         The 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 105.6(5).[7] Id.

         The 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.

         At all relevant times in this case, disputed administrative actions by the City of Rockville were appealable to an administrative board.[8] 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.

         Several weeks later, on or about October 9, 2013, Property owner Tang authorized Plaintiffs' proposed construction at the Property site. Am. Compl. ¶ 20.

         The 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.[9] Id. Plaintiffs dispute that their work on the Building was so extensive that it necessitated a new Site Plan. Id. ¶ 22.

         Even 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 ...

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