Posted by: Patricia Salkin | March 4, 2017

MD Court of Special Appeals Finds Petition for Judicial Review was Time Barred

In 2002, Appellant Davis Wood obtained a building permit from the Town of St. Michaels and began constructing an addition to a residential structure. In 2004, once the addition had been substantially completed, one of Mr. Wood’s neighbors, James Valliant, complained to the Town’s Zoning Inspector that the addition appeared to violate the rear setback restriction line. Instead of initiating a zoning enforcement action against Mr. Wood, the Zoning Inspector issued Mr. Wood a temporary occupancy permit. In 2010, the Zoning Inspector determined that it would impose an undue hardship if she required the removal of the encroaching structure, and issued Mr. Wood a final occupancy permit. Mr. Valliant appealed the Zoning Inspector’s determination, and the Town’s Board of Zoning Appeals affirmed the Zoning Inspector’s action in 2013. Mr. Valliant then filed a petition for judicial review in the Circuit Court which struck down the Board of Zoning Appeals’ decision.

At issue in this case was whether Mr. Valliant’s petition for judicial review was precluded by CJP § 5-114. Here, the court determined that findings of the Board of Zoning Appeals indicated that the setback line restriction, the primary focus of Mr. Valliant’s challenge, first occurred sometime prior to February 12, 2004. Even assuming that Mr. Valliant’s filing of an administrative appeal of the Zoning Inspector’s issuance of the final occupancy permit constituted the initiation of an action or proceeding as contemplated by CJP § 5-114(b)(1), the appeal to the Board of Zoning Appeals had not been filed until June 21, 2010: over three years after the date the setback violation first occurred. Additionally, the court held that the time limit imposed by CJP § 5-114(b)(1) was a statute of repose; as such, the court did not consider whether the deadline for initiating an action was extended. Accordingly, the Circuit Court’s holding was reversed.

Wood v Villiant, 2017 WL 562476 (MD unrep. 2/10/2017)

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