author: Moylan, J.

text:
    153 A.3d 899
    Brandon AMES v. STATE of Maryland
    No. 534,
    Sept. Term, 2016
    Court of Special Appeals of Maryland.
    February 3, 2017

      Rachel Simmonsen (Paul B. DeWolfe, Public Defender on the brief) all of Baltimore, MD, for Appellant.
    Todd W. Hesel (Brian E. Frosh, Atty. Gen. on the brief) all of Baltimore, MD, for Appellee.
    Graeff, Kehoe, Charles E. Moylan, Jr. (Senior Judge, Specially Assigned), JJ.
   Moylan, J.

In 1968 the Supreme Court, in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), extended to the police a broad new investigative prerogative, along with a concomitant self-protective measure, permitting for the first time official intrusion into the privacy of citizens on predicates less substantial than probable cause. Recognizing the potential for abuse of the new prerogatives, the Supreme Court sought to keep them under tight control by circumscribing them with austere limitations. With the passage of 49 years, however, the police inevitably still embrace the prerogatives enthusiastically but are increasingly less than vigilant in observing the limitations. The specimen of this tendency now on the table for examination is a Terry frisk.

The appellant, Brandon Ames, was convicted by a Wicomico County jury of the possession of a fake controlled dangerous substance with intent to distribute, the possession of heroin, and the possession of drug paraphernalia. On appeal, he raises the single contention that his pre-trial motion to suppress the physical evidence was erroneously denied.

The Handwriting on the Wall

In denying the motion to suppress the physical evidence, the suppression hearing judge was ominously prophetic:

“It’s very thin, ... and Ms. Bell is making some real good arguments that may hold up on appeal[.] [But] with all of these facts coupled together under the totality of the circumstances, I don’t think it was an unreasonable search and seizure. I’m going to deny your motion to suppress.
“But I commend you for a good argument, and I think maybe an Appellate Court should parse this out, because there is ... caselaw [that] is kind of contradictory, and this is a close one on the facts.”

(Emphasis supplied). Mene. Mene. The handwriting was on the wall.

The Constitutional Tilt Against Warrantless Activity

As we undertake our analysis, the constitutional starting point is clear. As this Court pointed out in State v. Mason, 173 Md.App. 414, 429, 919 A.2d 752 (2007):

“We must never lose sight of our starting point that warrantless searches and seizures, including the ongoing seizure of a person at the curbside, are presumptively unreasonable and that the burden is on the State to rebut that presumption and persuade the suppression hearing judge otherwise.”

An Anonymous Phone Call and Its Aftermath

The State’s case is, indeed, thin in many respects. The single witness at the suppression hearing was Delmar Police Officer Nicholas Aungst. On September 18, 2015, at 4:23 p.m., Officer Aungst received an anonymous telephone call from someone who “refused to give their name.” The caller said that a black man “wearing dark grey sweatpants and a Chicago Bulls hat” was standing in front of “the 700 building of Chestnut Manor” with a gun in the waistband on his pants. There was no description of the man’s height or weight, his hairstyle, his shirt, or his shoes.

Officer Aungst responded to the Chestnut Manor Apartments but did not see anyone matching the description. He continued with his regular patrol duties. At 4:45 p.m., Officer Aungst received a call from Dispatch providing the “exact description” he had earlier received directly, of a black man wearing sweatpants and a Chicago Bulls hat “in front again with a gun in his waistband.” We note at this point that the second call added nothing to the first call in terms of our Fourth Amendment analysis. There was no identification of the source of Dispatch’s information. The anonymous caller may have called back a second time. Dispatch, on the other hand, may simply have sent out the message that had earlier been received. Our analysis will be based upon the police receipt of a presumptively single anonymous message.

After that call from Dispatch, Officer Aungst returned to the apartment complex. On this occasion, he saw the appellant, a black man wearing gray sweatpants and a Chicago Bulls hat. The appellant was “leaning up against the building” in the entranceway of the 700 block of Chestnut Manor. The appellant’s hands were visible and empty. He did not throw anything, nor did he attempt to flee as the officer approached. Officer Aungst began questioning the appellant. We will give the officer the benefit of the doubt and characterize that questioning as a mere accosting. Officer Aungst stated that the appellant “seemed very nervous.” At the suppression hearing he testified:

“I asked [the appellant] if he had anything on him that I needed to worry about. He said no and started shaking.”

The appellant denied having a weapon, but the officer noted that he “kept touching his left front pocket,” which the officer interpreted as an “involuntary response” to contraband in his pockets. According to the officer, the appellant made no threatening gestures. Although we will elaborate on this more fully infra, we note that there is no such Constitutionally sanctioned procedure as a Terry frisk as an adjunct to a mere accosting.

An Immediate Escalation to the Terry Level

At that point, which we designate as the critical point for analysis, Officer Aungst shifted the encounter into operational Fourth Amendment gear. He subjected the appellant to a Terry frisk by executing an “open-hand pat-down of [the appellant’s] outer garments.”

In the course of the frisk, Officer Aungst felt nothing in the appellant’s waistband but did detect a soft “large bulge” in the appellant’s left front pants pocket. The officer asked, “What is this?” The appellant “didn’t answer ... at first and just started shaking.” The officer asked, “Is there anything in here that can hurt me?” The appellant responded, “Yes, I do have needles.” The officer reached into the appellant’s pocket and removed an opaque coin purse.” Inside the purse, the officer found “a plastic bag containing ... a hard rock-like substance” that “resembled crack cocaine.” He also found other bags, some containing a white powdery substance, plus a spoon and two needles. There obviously had been a significant Fourth Amendment intrusion. The single issue on appeal is whether that intrusion was justified.

Assessing an Anonymous Informant’s Reliability

The initial scenario in this case is virtually indistinguishable from that before the Supreme Court in Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000). The gist of the tip in this case is that the appellant had a gun in his waistband. Such was the issue, 529 U.S. at 268, 120 S.Ct. 1375, in Florida v. J.L.

“The question presented in this case is whether an anonymous tip that a person is carrying a gun is, without more, sufficient to justify a police officer’s stop and frisk of that person. We hold that it is not.”

(Emphasis supplied).

Even as in the present case, the anonymous tip in Florida v. J.L. identified a place, described the suspect’s clothing, and alleged that the suspect was carrying a gun.

“On October 13, 1995, an anonymous caller reported to the Miami-Dade Police that a young black male standing at a particular bus stop and wearing a plaid shirt was carrying a_gun.,.. [N]othing is known about the informant. Sometime after the police received the tip—the record does not say how long—two officers were instructed to respond. They arrived at the bus stop about six minutes later and saw three black males “just hanging out [there].” One of the three, respondent J.L., was wearing a plaid shirt. Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., told him to put his hands up on the bus stop, frisked him, and seized a gun from J.L.’s pocket.”

529 U.S. at 268, 120 S.Ct. 1375. (Emphasis supplied).

The Supreme Court recognized at the outset, 529 U.S. at 270, 120 S.Ct. 1375, the general unreliability of an anonymous informant.

“Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.”

(Emphasis supplied; internal citations and quotations omitted).

The Court hastened to add, however, that even an anonymous tip may be sufficiently corroborated, by independent police verification of some of the information supplied by the informant, to justify reliance, at least to the level of Terry v. Ohio’s reasonable suspicion standard.

“As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop. The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.”

529 U.S. at 270, 120 S.Ct. 1375. (Emphasis supplied; quotations omitted).

The very low level of independent police verification available in Florida v. J.L., however, was inadequate to raise the anonymous telephone tip to Terry’s constitutional standard. Absent such bolstering, the tip could not justify interfering with a citizen’s rights.

“All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.”

529 U.S. at 271, 120 S.Ct. 1375.

The inadequacy of the independent police verification in Florida v. J.L. does not bode well for almost precisely the same independent police verification in the case now before us.

“Florida contends that the tip was reliable because its description of the suspect’s visible attributes proved accurate: There really was a young black male wearing a plaid shirt at the bus stop.”

(Emphasis supplied).

The tip there was about a young black male. The tip here was about a young black male. The tip there described his clothing. The tip here described his clothing. The tip there had the suspect standing in front of a bus stop. The tip here had the suspect standing in front of a building. The tip there alleged the possession of a gun. The tip here alleged the possession of a gun. In both cases, the independent police investigation confirmed that a young black male was, indeed, wearing the previously described clothing at the previously described location. In each case, everything was corroborated except the possession of the gun. The Supreme Court explained, 529 U.S. at 272, 120 S.Ct. 1375, why the tip in that case failed to pass constitutional muster.

“An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.”

(Emphasis supplied).

The absence of corroboration of the anonymous telephone tip in Florida v. J.L. (as well as in the present case) contrasts sharply with the massive independent police verification corroborating an anonymous telephone tip in Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). The tipster in Alabama v. White was able to predict the suspect’s future activity of a type that only an insider would know. As the police watched, the predicted activities came to pass, as the tip, step by step, ripened into reliability.

“We think it also important that, ‘the anonymous [tip] contained a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted.’ The fact that the officers found a car precisely matching the caller’s description in front of the building is an example of the former. Anyone could have ‘predicted’ that fact because it was a condition presumably existing at the time of the call. What was important was the caller’s ability to predict respondent’s future behavior, because it demonstrated inside information—a special familiarity with respondent’s affairs. The general public would have had no way of knowing that respondent would shortly leave the building, get in the described car, and drive the most direct route to Dobey’s Motel. Because only a small number of people are generally privy to an individual’s itinerary, it is reasonable for police to believe that a person with access to such information is likely to also have access to reliable information about that individual’s illegal activities. When significant aspects of the caller’s predictions were verified, there was reason to believe not only that the caller was honest but also that he was well informed, at least well enough to justify the stop.”

496 U.S. at 332, 110 S.Ct. 2412. (Emphasis supplied).

There was, of course, no such massive corroboration of predicted behavior in Florida v. J.L. and no such massive corroboration in the case now before us. Even Alabama v. White, with its massive corroboration, was modest about its own adequacy: “it is a close case.” Id. The bare-bones anonymous telephone tip in the present case, with no significant independent police verification, failed to establish the reasonable suspicion that a crime had occurred, was then occurring, or was about to occur necessary to justify a Terry stop or the reasonable suspicion that the appellant was armed and dangerous necessary to justify a Terry frisk.

A Terry Stop

This is exclusively a Terry frisk case and not a Terry stop case, and the two do not conflate. A brief word about Terry stops is desirable, nonetheless, simply to provide the necessary context for an analysis that looks to the relationship between a stop and a frisk. The Terry stop and the Terry frisk, of course, serve quite distinct purposes. The stop is crime-related, its purpose being to prevent or to detect crime. The reasonable articulable suspicion for a stop must be framed in terms of that purpose. The frisk, by diametric contrast, is not intended to be an investigative tool at all. Its express purpose and animating concern is the safeguarding of the life and limb of the stopping officer. In Graham v. State, 146 Md.App, 327, 358-59, 807 A.2d 75 (2002), we stressed this difference in purposes:

“The respective interests served by stops and by frisks are distinct. The stop is crime-related. What is, therefore, required is reasonable suspicion that a crime has occurred, is then occurring, or is about to occur. The frisk, by contrast, is concerned only with officer safety. What is, therefore, required is a reasonable articulable suspicion that the person stopped is armed and dangerous.”

(Emphasis supplied). In Gibbs v. State, 18 Md.App. 230, 241, 306 A.2d 587 (1973), this Court had earlier pointed out that the purpose of a Terry frisk was not to prevent or to detect crime.

“Even after a reasonable ‘stop’ has been made, the governmental interest which permits the further intrusion of a limited search—a ‘frisk’—of the person is not the prevention or the detection of crime, but rather the protection of the officer making the ‘stop.’ ”

(Emphasis supplied).

Terry v. Ohio itself, 392 U.S. at 23, 88 S.Ct. 1868, made the distinction in purpose absolutely clear.

“We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him...

(Emphasis supplied). As a result, the Terry stop and the Terry frisk each require separate justification. As was stated in Alfred v. State, 61 Md.App. 647, 664, 487 A.2d 1228 (1985):

“Even if the stop had been legitimate, that would not imply the legitimacy of the frisk. As a distinct intrusion, the frisk requires its own independent justification.”

(Emphasis supplied).

The distinct requirements were fully articulated in Gibbs v. State, 18 Md.App. at 238-39, 306 A.2d 587:

“It is furthermore clear that the policeman must be able to articulate specific facts justifying both the ‘stop’ and, quite independently, the ‘frisk.’ The latter does not follow inexorably from the former. Terry points out very emphatically that different governmental interests are involved in ‘stops,’ on the one hand, and ‘frisks,’ on the other hand. Although a reasonable ‘stop’ is a necessary predecessor to a reasonable ‘frisk,’ a reasonable ‘frisk’ does not inevitably follow in the wake of every reasonable ‘stop.’ ”

(Emphasis supplied).

In the present case, there was no Terry stop. At the suppression hearing, the State did not attempt to establish a Terry stop. Before us, the State does not contend that there was an antecedent Terry stop. As he was asking questions of the appellant, Officer Aungst went immediately for a Terry frisk. It was as if Officer Aungst considered a Terry frisk to be a permissible adjunct to a mere accosting.

Even if, purely arguendo, there had been an antecedent Terry stop, however, it is clear from everything we have said about the anonymous telephone tip and the essentially insignificant police observation that followed it, that there was no reasonable articulable suspicion to justify a Terry stop. The ostensible Terry frisk is on its own.

The Terry Frisk

The ostensible Terry frisk, which was the lone rationale for the State’s seizure of the physical evidence in this case, failed abjectly to pass constitutional muster in three separate ways, any one of which would be fatal.

A. The Lack of Reasonable Suspicion That the Stopee Was Armed and Dangerous.

The purpose for a Terry stop and the purpose for a Terry frisk are, as we have stated, very different. The Terry stop is part of law enforcement’s arsenal in its war on crimes. In the words of Terry v. Ohio itself, 392 U.S. at 22, 88 S.Ct. 1868,

“[W]e consider first the nature and extent of the governmental interests involved. One general interest is of course that of effective crime prevention and detection; it is this interest which underlies the recognition that a police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.”

(Emphasis supplied). And see, Gibbs v. State, 18 Md.App. at 239-40, 306 A.2d 587.

The purpose of the Terry frisk, by diametric contrast, is not directly crime-related at all but is exclusively concerned with officer safety, with safeguarding the life and limb of the officer who is thrust into the potentially dangerous situation of conducting a Terry stop, perhaps in a darkened alley and perhaps at three o’clock in the morning. Terry addressed, 392 U.S. at 28-24, 88 S.Ct. 1868, the distinct purpose of the Terry frisk:

“We are now concerned with more than the governmental interest in investigating crime; in addition, there is the more immediate interest of the police officer in taking steps to assure himself that the person with whom he is dealing is not armed with a weapon that could unexpectedly and fatally be used against him.”

(Emphasis supplied). See also Gibbs v. State, 18 Md.App. at 241, 306 A.2d 587; Alfred v. State, 61 Md.App. 647, 666, 487 A.2d 1228 (1985).

Before we even turn to the qualitative assessment of the rationale being urged as a justification for the Terry frisk, there is first the threshold requirement that the frisking officer articulate his specific reasons for believing that the suspect was armed and dangerous. It is not enough that objective circumstances be present that might have permitted some other officer in some other case to conclude that the suspect was armed and dangerous. It is required that the frisking officer himself expressly articulate the specific reasons he had for believing that the frisk was necessary. In Graham v. State, 146 Md.App. 327, 359, 807 A.2d 75 (2002), this Court spoke of the articulation requirement:

“One of the key requirements of reasonable suspicion, for either a stop or a frisk, is not only that it be present but that it be actually articulated. For a good frisk, it is not enough that in the abstract facts have been developed that might, objectively, permit some officer somewhere to conclude that the suspect or stoppee was armed and dangerous. It is required that the frisking officer actually articulate the factors that lead to his reasonable suspicion that a frisk was necessary for his own protection.”

(Emphasis supplied).

The companion case to Terry v. Ohio was Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). The stopping officer in Sibron lunged for Sibron’s shirt pocket from which he recovered drugs. The State contended that when Sibron himself moved toward his shirt pocket, that could have justified the officer in believing that a weapon might be there. The Supreme Court reminded the State that the officer failed to articulate any such reasons and gave instead a different reason that failed to mention a fear of a weapon:

“In the case of the self-protective search for weapons, [the officer] must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous. Patrolman Martin’s testimony reveals no such facts. The suspect’s mere act of talking with a number of known narcotics addicts over an eight-hour period no more gives rise to reasonable fear of life or limb on the part of the police officer than it justifies an arrest for committing a crime. Nor did Patrolman Martin urge that when Sibron put his hand in his pocket, he feared that he was going for a weapon and acted in self-defense.”

392 U.S. at 64, 88 S.Ct. 1889. (Emphasis supplied). See also, Gibbs v. State, 18 Md.App. at 242, 306 A.2d 587 (“In the service of this governmental end [a Terry frisk for weapons], there is still a need for articulation.”); Alfred v. State, 61 Md.App. at 665, 487 A.2d 1228 (“If in the present case the police had any reason to suspect that the Appellant and Alexander were armed, they failed utterly to articulate those reasons.” (Emphasis supplied)); Whitehead v. State, 116 Md. App. 497, 508, 698 A.2d 1115 (1997) (“In this case, Trooper Donovan, ,.. did not articulate that he wished to conduct a search to protect himself.” (Emphasis supplied).).

Although the Terry stop and the Terry frisk each serves a different purpose, the constitutional requirement of reasonable articulable suspicion is precisely the same in both cases. Reasonable suspicion for a Terry stop and reasonable suspicion for a Terry frisk must rise to precisely the same level in each of the respective test tubes. Based on the Supreme Court opinion in Florida y, J.L., we have, supra, analyzed at length why an anonymous and essentially uncorroborated telephone tip did not establish reasonable articulable particularized and individualized suspicion to justify a Terry stop. For precisely the same reasons, it could not justify a Terry frisk. In either test tube, it lacked the necessary reliability.

B. The Absence of an Antecedent Terry Stop.

A Terry frisk is neither a self-contained nor freestanding police prerogative. It has no life of its own. Just as a search incident is no more than an adjunct to a lawful arrest and does not exist outside the universe of the lawful arrest, so too is a Terry frisk a mere adjunct of a Terry stop that does not exist outside the universe of the Terry stop. A Terry stop is an indispensable prerequisite to a Terry frisk. It is also true, moreover, that the required antecedent Terry stop be a Constitutionally reasonable stop, and not a mere flawed attempt at one. A vigilant officer may not observe the passing parade of life go by, develop reasonable Terry-level suspicion that certain members of the passing parade are armed, and presume to frisk them. It is only when duty requires an officer to go in harm’s way that the additional protection becomes necessary. Short of that point, the officer is adequately protected simply by staying out of harm’s way. The police cannot, in a word, get to Beta without passing through Alpha.

The reason for this limitation on police behavior is that ordinarily the Constitution does not permit, by way of search or seizure, a police intrusion on the privacy of a citizen on a predicate less substantial than probable cause. To permit it, as in the case of a Terry frisk, on the lesser predicate of reasonable suspicion is a significant departure from the norm. As part of the Terry v. Ohio totality, however, the Terry frisk was deliberately designed to afford an officer an enhanced protection, to wit, a protection activated by a less rigorous predicate, but only in those special circumstances wherein a Terry stop has placed the officer in enhanced danger. A reasonable suspicion to believe that a crime has occurred imposes upon an officer the sometimes dangerous duty to stop a suspect and to investigate further even in hazardous surroundings. In such circumstances, the officer is permitted the additional safeguard for his own protection. The Terry stop and the Terry frisk are inseparable parts of the same package. In the Terry case itself, the concurring opinion of Justice Harlan made this symbiotic relationship absolutely clear.

“[I]f the frisk is justified in order to protect the officer during an encounter with a citizen, the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop. Any person, including a policeman, is at liberty to avoid a person he considers dangerous. If and when a policeman has a right instead to disarm such a person for his own protection, he must first have a right not to avoid him but to be in his presence. That right must be more than the liberty (again, possessed by every citizen) to address questions to other persons, for ordinarily the person addressed has an equal right to ignore his interrogator and walk away; he certainly need not submit to a frisk for the questioner’s protection. I would make it perfectly clear that the right to frisk in this case depends upon the reasonableness of a forcible stop to investigate a suspected crime.”

392 U.S. at 32-33, 88 S.Ct. 1868 (Harlan, J., concurring) (emphasis supplied).

4 Wayne R. LaFave, Search and Seizure (3d ed. 1996), pp. 247-49, describes the same indivisible relationship:

“[A] frisk for self-protection cannot be undertaken when the officer has unnecessarily put himself in a position of danger by not avoiding the individual in question. This means that in the absence of some legitimate basis for the officer being in immediate proximity to the person, a degree of suspicion that the person is armed which would suffice to justify a frisk if there were that basis will not alone justify such a search. For example, if a policeman sees a suspicious bulge which possibly could be a gun in the pocket of a pedestrian who is not engaged in any suspicious conduct, the officer may not approach him and conduct a frisk. And this is so even though the bulge would support a frisk had there been a prior lawful stop. Likewise, if an officer, lacking the quantum of suspicion required by Terry to make a forcible stop, instead conducts a non-seizure field interrogation, he may not frisk the person interrogated upon suspicion he is armed; in such a case the officer may protect himself by not engaging in the confrontation.”

(Emphasis supplied).

In Graham v. State, 146 Md.App. at 362, 807 A.2d 75, this Court spoke to the same enhanced danger/enhanced protection totality:

“From the beginning in 1968, the Supreme Court made it clear that there is a necessity principle behind permitting the police to execute a frisk on a predicate less substantial than probable cause. When a police officer’s duty requires that he stop and interrogate potentially dangerous individuals suspected of engaging in crime, he must be permitted, when there is reasonable suspicion of danger, to act for his own self-protection. A Terry-frisk, therefore, may, frequently but not always, follow a Terry-stop. The corollary is that a reasonable Terry-stop is a condition precedent to a reasonable Terry-frisk.”

(Emphasis supplied).

In this case, Officer Aungst barged impetuously on to the Beta of a Terry frisk without having gone through the Alpha of a Terry stop. Constitutionally, that was a bridge too far.

C. The Excessive Scope of the Frisk

The Terry frisk in this case was thrice bereft. Even if, arguendo, this Terry frisk had been an adjunct of a Terry stop, and even if, arguendo, there had been reasonable suspicion to believe that the appellant was armed and dangerous, the frisk would still have incurred the constitutional opprobrium of having been excessive in scope.

The permitted scope of any search (and a frisk is a junior varsity search) is whatever is necessary to serve the purpose of that particular search—but not one little bit more. What then would have been the purpose of this particular Terry frisk? In Gibbs v. State, 18 Md.App. at 241, 306 A.2d 587, this Court set out the purpose succinctly.

“Even after a reasonable ‘stop’ has been made, the governmental interest which permits the further intrusion of a limited search—a ‘frisk’—of the person is not the prevention or the detection of crime, but rather the protection of the officer making the stop.”

(Emphasis supplied).

In Alfred v. State, 61 Md.App. at 666, 487 A.2d 1228, we made that animating purpose very clear.

“The very raison d’étre for a frisk, as the frequent boon companion of the stop, is the protection of the life and limb of the stopping officer from the stoppee during the course of the stop.”

(Emphasis supplied).

With, therefore, the exclusive purpose of the frisk being the discovery of weapons the stoppee might use to harm the stopping officer, the scope limitation on the frisk logically follows. Alfred v. State, 61 Md.App. at 669, 487 A.2d 1228, articulated the self-evident limitation.

“Under the ever-present minimization requirement of the Fourth Amendment, only a pat-down of the exterior of the clothing surface is permitted. The reason for this limitation is that a pat-down is enough to reveal the presence of large and palpable weapons, such as guns, knives, blackjacks, and brass knuckles.”

(Emphasis supplied).

In Anderson v. State, 78 Md.App. 471, 477-78, 553 A.2d 1296 (1989), we elaborated on the minimization requirement and the application of that minimization requirement to a pat-down of the clothing to detect almost all weapons.

“There is under the Fourth Amendment an ever-present requirement for the police to minimize even necessary intrusions. The permitted scope of an intrusion is whatever is necessary to serve the purpose of that particular intrusion, but nothing more.... The reason the Fourth Amendment permits a policeman to conduct a minimal search (a frisk) of a suspect upon such a lesser predicate is the necessity of protecting from harm the life and limb of the stopping officer. The danger is that the stoppee may be armed. Because almost all weapons—guns, knives, blackjacks, brass knuckles—are hard, palpable objects, their presence may be detected by a close pat-down of the exterior of the clothing surface. Because that is all that is necessary, that is all that is permitted.”

(Emphasis supplied).

The pat-down for weapons sanctioned by the Supreme Court in the Terry case itself is an exemplar of how a proper frisk should be limited in its intensity.

“Officer McFadden patted down the outer clothing of petitioner and his two companions. He did not place his hands in their pockets or under the outer surface of their garments until he had felt weapons, and then he merely reached for and removed the guns. He never did invade Katz’ person beyond the outer surfaces of his clothes, since he discovered nothing in his pat-down which might have been a weapon. Officer McFadden confined his search strictly to what was minimally necessary to learn whether the men were armed and to disarm them once he discovered the weapons. He did not conduct a general exploratory search for whatever evidence of criminal activity he might find.”

392 U.S. at 29-30, 88 S.Ct. 1868. (Emphasis supplied).

With these austere limitations in mind, we turn to the ostensible Terry frisk in this case. As Officer Aungst performed his “open-handed pat-down of [the appellant’s] outer garments,” he felt nothing in the waistband but he did detect a soft “large bulge” in the appellant’s left front pants pocket. We know of no theory by which a soft bulge could reasonably be interpreted to be a gun, a knife, a blackjack, or brass knuckles. There was thus no indication that a weapon was present and Officer Aungst should simply have proceeded with the pat-down until he was satisfied that the appellant had no weapons. Whatever else the appellant may have had on his person was constitutionally beside the point.

His investigative curiosity piqued, however, Officer Aungst allowed the frisk to wander off the protective track and to slide onto the investigative track. With respect to the soft bulge, the officer asked the appellant, “What is this?” the appellant “didn’t answer ... at first and just simply started shaking.” In effect, the appellant was being interrogated, under very coercive circumstances, about something detected on his person other than a weapon. Officer Aungst behaved as if he were thinking that, when he detected an unknown object other than a weapon, he was entitled to investigate further and/or to inquire further as to what that unknown object was. That, of course, was the crossing of the line, albeit perhaps a slight crossing, that the limitations on the Terry frisk were designed to prevent.

Officer Aungst then asked, “Is there anything in here that can hurt me?” The appellant replied, “Yes, I do, I have needles.” Officer Aungst articulated no fear of acupuncture, but nonetheless reached into the appellant’s pants and removed an opaque coin purse. That may have been the critical moment when he stepped out of bounds. The coin purse was obviously not a weapon. If necessary, a mere squeeze of the coin purse could have confirmed that there was no weapon inside it. McDowell v. State, 407 Md. 327, 341, 965 A.2d 877 (2009).

In his testimony as to his reaction, Officer Aungst did not express a fear about being stuck with a needle. After a pro forma mention of officer safety, the officer revealed a basis for investigative suspicion.

“Yes. First of all, officers’ safety. Needles can go through a lot of things, so I wanted to secure those items, Second of all, being that it’s in a high crime area, needles generally indicate the use of heroin. So, therefore, I assumed there was contraband in the [appellantj’s pocket.”

The officer reached into the appellant’s pants pocket and pulled out what turned out to be a coin purse. The officer then opened the coin purse and pulled out a plastic bag. Investigating the plastic bag more closely, the officer found within it “a hard rock-like substance” that “resembled crack cocaine.” The officer also recovered other bags, some of them containing a white powdery substance as well as a spoon and two needles. This was the case against the appellant who was then arrested for the possession of narcotics and the possession of narcotics paraphernalia. The question is whether this Terry frisk went beyond the minimal pat-down of the exterior of clothing surface necessary to reassure Officer Aungst that he was not threatened by offensive weapons.

In arguing the case before the suppression hearing judge, the State seemed to be making the same leap of faith that Officer Aungst made in taking, a leap away from officer safety and into the investigation of narcotics possession.

“He is in a high drug area. He’s in the Chestnut Manor Apartments. This description, then he feels what he believes to be consistent in his experience with that could be contraband coupled with the defendant’s statement that I have needles, I think the officer would be negligent to—[.]”

(Emphasis supplied).

The State’s assumption seemed to be that once the appellant mentioned “needles,” the Terry frisk was history and what was thereafter taking place was a criminal investigation of narcotics possession. The State’s brief argued:

“I think this is exactly the same. He is admitting to committing a misdemeanor of having drug paraphernalia in his pocket. It’s the same as if he would have told the officer, I have a marijuana pipe in my pocket. Once he admitted a misdemeanor, the possession of drug paraphernalia, he could have been charged solely with the needles.”

(Emphasis supplied).

Where the State was going on the suppression issue, however, is hard to figure. Even if it had been true, as argued by the State, that the appellant “could have been charged solely with the needles,” the fact is that he was not so charged or arrested. What then justified the rest of the search? The pulling of the coin purse from the appellant’s pocket? The opening of the coin purse? The retrieval of a plastic bag? The search of the plastic bag? Those things were not the product of a search incident to a lawful arrest, for no arrest (lawful or unlawful) had been made. There was simply no justification even offered for the search that, step by step, produced these items, and they, therefore, should have been suppressed. As the Court of Appeals explained in State v. Smith, 345 Md. 460, 465, 693 A.2d 749 (1997):

“[T]he objective is to discover weapons readily available to a suspect that may be used against the officer, not to ferret out carefully concealed items that could not be accessed without some difficulty. General exploratory searches are not permitted, and police officers must distinguish between the need to protect themselves and the desire to uncover incriminating evidence.”

(Emphasis supplied).

Although each excess may have been small, seguing almost • indiscernibly into the next, the bottom line was that the appellant suffered, in its bottom line totality, what amounted to a fully intensive search-incident of his person and not an austerely limited pat-down for weapons. It is a classic example of a scope violation, with the Terry limitations being lost in the investigative bustle.

Were all the arguendos satisfied along the way, this ultimate search of the appellant, under the guise of a Terry frisk, we would hold to have been an unreasonable scope violation of the far more limited intrusion authorized by the concern for officer safety.

It Comes With the Territory

When half a century ago Terry v. Ohio was in its infancy, everyone understood that the grant of a broad new prerogative to the police and the built in limitation on the prerogative were but flip sides of the same indivisible coin. An understanding of the limitation was indispensable to a full understanding of the prerogative itself. It was the price that had to be paid for the prerogative. The limitation is not an arbitrary technicality designed to make the officer’s job more difficult. It is a built-in aspect of the prerogative itself. It comes with the territory.

JUDGMENT REVERSED; COSTS TO BE PAID BY WICOMICO COUNTY.

      . The leading question of the Assistant District Attorney strove desperately to keep Patrolman Martin on message. "You had reason at that point, I assume, to fear that Sibron was going for his gun?” The "sawy” patrolman, however, abjured so wimpish an apprehension. “Naw. I knew that was where he kept his stash.” Factually, the stage had been set, but the patrolman failed to articulate the necessary message. That failure to articulate was dispositive.

      . It is elementary that the Fourth Amendment recognizes no such extra-Constitutional procedure as a frisk incident to a mere accosting. This is so even if the accosting grandiosely proclaims itself to be a "field interview.” See Graham v. State, 146 Md.App. at 364-68, 807 A.2d 75.

      . Through the appellant’s clothing, the officer felt a soft but large bulge. The State, for the first time on appeal, pushes out the envelope beyond its breaking point by invoking at that early juncture the “plain feel” doctrine of Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993). In Dickerson, 508 U.S. at 375-76, 113 S.Ct. 2130, the Supreme Court analogized the “plain feel” doctrine to the "plain view” doctrine:
      "We think that this doctrine has an obvious application by analogy to cases in which an officer discovers contraband through the sense of touch during an otherwise lawful search.... If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of privacy beyond that already authorized by the officer’s search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.”
      (Emphasis supplied; footnote omitted).
      Just as with the plain view doctrine, warrantless seizure is only permitted if the “contour or mass” of the object that is felt "makes its identity immediately apparent” as contraband, to the probable cause level. A mere piquing of curiosity and a desire to investigate further do not suffice. Dickerson made it clear, 508 U.S. at 378, 113 S.Ct. 2130, that any further “squeezing, sliding, and otherwise manipulating” of the object in order to confirm the initial suspicion is not permitted. That the further investigation here was the inquiry "What is this?” rather than a further manipulation of the bulge is inconsequential. This was not an occasion for the “plain feel” doctrine and that doctrine was never argued before the suppression hearing judge. It is a hypothetical afterthought.
      The allure of the "plain feel” doctrine, moreover, far exceeds its actual utility. The limitation is that more is required than simply the legitimate feeling of an object of interest. As a Fourth Amendment trigger, the sense of touch must supply the ultimate answer and not simply give rise to an intriguing further question. Had the "plain feel” doctrine applied in the present case, Officer Aungst, upon feeling the soft large bulge, would not have needed to ask, "What is this?” He would already have known the answer through his sense of touch. There would have been no need for further examination, either by way of sliding the suspect object back and forth between the fingers or by a pair of follow-up questions to the appellant. The bulge piqued Officer Aungst’s curiosity, and he did not want to let the subject go. That, however, is not a progressing scenario authorized by the "plain feel" doctrine.

      . In groping for a rationale, the State, for the first time on appeal, descends deep into the subjunctive mood to come up with a hypothetical. With reference of Officer Aungst's seizure and subsequent opening and searching of the coin purse, the State's brief argues, "Although not mentioned by the officer, the search was a proper search incident to arrest.” The State and this Court must be reading different transcripts. In the record of the suppression hearing (which is our entire factual universe), we find no glimmer of a suggestion of an arrest ever having been made. The notion of a search incident to arrest was never argued nor ever mentioned to the hearing judge. There is, of course, an exception to the warrant requirement for a search incident to lawful arrest. There is no such thing, on the other hand, as a search incident to a non-arrest. Nor is there any such thing as a search incident to an imaginary arrest that might have been made but wasn’t.


source: Caselaw Access Project

author: Meredith, J.

license: Public Domain

text:
    155 A.3d 531
    Davis H. WOOD v. James VALLIANT
    No. 1852,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    Filed: February 28, 2017

      Michael J. Jacobs (Melanie J. Barney, Jacobs & Barney, LLC on the brief), Easton, MD, for Appellant.

      Willard C. Parker, II (Sara A. Baugh, Parker, Counts, Melton & Goodman, PC on the brief), Easton, MD, for Appel-lee.
    Panel: Meredith, Arthur, J. Frederick Sharer (Senior Judge, specially assigned), JJ.
   Opinion by

Meredith, J.

In 2002, Davis Wood, appellant, obtained a building permit from the Town of St. Michaels and began constructing an addition to a residential structure at 203 Green Street. After the addition was substantially completed in 2004, one of Mr. Wood’s neighbors complained to the Town’s Zoning Inspector that the addition appeared to violate the rear setback restriction line. At the time, James Valliant, appellee, held a life estate interest in the property at 205 Green Street. For reasons we will explain in more detail later in this opinion, the Town never initiated a zoning enforcement action against Mr. Wood. Instead, the building passed its final inspection in 2006, and 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 she issued Mr. Wood a final occupancy permit. Some of Mr. Wood’s neighbors, including 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 and others then filed a petition for judicial review in the Circuit Court for Talbot County. The circuit court’s ruling in favor of Mr. Valliant and the other petitioners in that proceeding is the subject of this appeal (although Mr. Valliant alone participated as an appellee in this Court).

One of the arguments made by Mr. Wood in opposition to the petition for judicial review was based upon a statutory time limit that prohibits a person from initiating an action “arising out of a failure of a building or structure to comply with a setback line restriction more than 3 years after the date on which the violation first occurred.” Maryland Code (1973, 2013 Repl. Vol., 2014 Supp.), Courts and Judicial Proceedings Article (“CJP”), § 5—114(b)(1). The circuit court concluded that this statute was inapplicable to the petition seeking judicial review of the ruling of the Town’s Board of Zoning Appeals. But the circuit court acknowledged that “this action would not exist without the setback violation on Mr. Wood’s property, which occurred sometime between 2002 and 2004.” And, indeed, the only ruling as to which Mr. Valliant and the other petitioners sought relief in this case was the Town’s decision not to require Mr. Wood to remove the structure that created the setback line violation. Consequently, we conclude that the circuit court erred in rejecting Mr. Wood’s argument that the petition for judicial review was time-barred by CJP § 5-114(b), and we will reverse the judgment of the circuit court.

FACTS AND PROCEDURAL BACKGROUND

Davis Wood owns the residential property located at 203 Green Street in St. Michaels, Maryland, In the fall of 2002, the Town of St, Michaels issued a building permit for him to renovate the existing structure and construct an addition that extended from the rear of the house. In 2002, Mr. Valliant was the owner of an interest in the property next door, at 205 Green Street.

In 2003, Mr. Valliant and others complained to the Zoning Inspector that the height of the foundation on Mr. Wood’s renovated building was not in accordance with the building permit. But the Zoning Inspector concluded that the elevation of the foundation was in compliance with the building permit, and that ruling was upheld by the Circuit Court for Talbot County and this Court.

Construction proceeded. By May of 2004, the footings and foundation for the addition were placed, and framing had been completed. The renovations to the pre-existing structure were completed.

But, in May 2004, a new complaint was made to the Zoning-Inspector by one of Mr. Wood’s neighbors, who asserted that the addition appeared to be in violation of the applicable rear lot line setback restriction. By letter dated May 17, 2004, the Zoning Inspector advised Mr. Wood that, although the addition was in compliance with his building permit, the addition did not meet the required 25 foot rear yard setback restriction. The Zoning Inspector suggested that Mr. Wood apply for a variance. He did so, but he was notified by letter dated October 6, 2004, that his application for a variance was denied.

Mr. Wood began to explore options for removing the portion of the structure that violated the 25 foot setback restriction, and he worked with an architect to develop revised plans for modifying and finishing the house. On August 12, 2006, the construction on Mr. Wood’s property passed the “final” inspection required by his building permit, but the setback violation created by the addition remained unabated. On October 24, 2006, the Zoning Inspector issued Mr. Wood a temporary occupancy permit for the residence at 203 Green Street.

The Zoning Inspector extended the temporary occupancy permit eleven times. After the eleventh extension of a temporary occupancy permit was granted on April 1, 2010, the Zoning Inspector conducted a fresh review of the case to see if there was an alternative to requiring removal of the portion of the structure that violated the 25 foot setback restriction. Based upon her 2010 review of the records in the file and the Town’s zoning ordinance, she decided not to require enforcement of the setback restriction. On April 30, 2010, the Zoning Inspector issued a memorandum ruling in which she found that “an undue hardship, of the type specifically contemplated by the St. Michael’s Zoning Code, § 340-8.D, would result if the owner were required to remove the improvements constructed and completed pursuant to the legally issued building permit.” The memorandum concluded:

The improvements may remain as constructed and shall be considered a legal non-conformity with respect to rear-yard setbacks, front-yard setbacks and any other matters which now or in the future may be shown to be nonconforming with respect to the addition as it was lawfully constructed pursuant to [Building] Permit No. 3226. As a result of the above findings of this date, and as a result of my determination that all inspections have been satisfactorily issued, a final occupancy permit has been issued and any now existing non-conformity resulting from lawful construction pursuant to Permit No. 3225 shall be deemed a legal non-conformity.

When Mr. Wood’s neighbors, including Mr. Valliant, received notice of this action, they filed an appeal, asking the Town’s Board of Zoning Appeals to overrule the decision of the Zoning Inspector. At the hearing before the Board, the Zoning Inspector explained that the improvements to Mr. Wood’s property had been constructed “in accordance with the plans and specifications that had been previously submitted and approved by the different reviewing agencies within the Town, including [her] predecessor in the position of Zoning Inspector/Code Enforcement Officer.” She noted: “The rear yard setback requirement violation was not noticed o[r] commented upon until after the improvements to the Wood house in violation of that requirement were completely constructed.” She confirmed that, when the application for the building permit was filed, the location of the addition was clearly shown on the plans, and, despite multiple levels of review by the zoning office and the Town’s Historic District Commission, no one had ever raised a concern about the rear yard setback. When the Town had published the required notice of issuance of the building permit in 2002, no appeal was filed.

The Zoning Inspector noted that, after construction began, the first inspection required under the building permit was for the footers, which were inspected and approved on May 29, 2003. The Zoning Inspector commented that, “[i]t is at this stage of construction that compliance with setbacks normally—generally is verified.” But no one raised any issue about the rear yard setback at that point. Noting that she had been hired as the Zoning Inspector in July 2003, the Zoning Inspector observed that the next inspection, addressing the framing, occurred on February 12, 2004, and, again, no one raised any question about compliance with the rear yard setback.

The Zoning Inspector testified that, when a neighboring property owner notified the Town on May 3, 2004, that there appeared to be a violation of the rear yard setback restriction, that was “the first time any issue relative to the rear yard setback is documented in the project files.” She investigated the complaint, confirmed the setback violation, and suggested to Mr. Wood that one possible solution would be for him to seek a variance from the setback restriction. Mr. Wood’s application for a variance was denied.

The Zoning Inspector testified that “the house was substantially completed prior to the discovery of the rear yard setback issue,” and, after the variance was denied, Mr. Wood “sought a temporary occupancy permit for that portion of the house not in conflict with the rear yard setback requirement. That request was granted on October 24, 2006.”

She acknowledged that, in the spring of 2010, “the then Town Manager asked me if I would be willing to review the Town Zoning Code to see if there were any provisions in the Code which could have been considered but had not been considered during the initial process.” But, she insisted, “I reconsidered the matter on my own accord free from any outside influences.” The Zoning Inspector said she based her decision not to take action to enforce the 25 foot rear yard setback restriction, and to issue the final occupancy permit, on several factors. It appeared that the previous zoning inspector had missed the setback problem and had never discussed it with Mr. Wood or his representatives. Moreover, the Zoning Inspector stated: “I did not believe that [Mr. Wood] or any of the representatives ever deliberately tried to avoid compliance with the 25-foot rear yard setback requirement.” Further, “the improvements to the Wood residence were made in substantial compliance with all approved plans and requirements.” The Zoning Inspector found no evidence that Mr. Wood “ever tried to avoid compliance through deceit or trickery,” and, during the seven years this Zoning Inspector had been dealing with this project, “the Woods and their representative[s] ... appeared to be straight forward and forthright.”

The Zoning Inspector was also influenced by her discovery that the Town’s Zoning Code had been amended in September 2003, at which time Ordinance 291 added § 340-8.D to the Code. This provision, which provided for non-enforcement of provisions of the Zoning Code under certain circumstances to avoid “undue hardship,” had not been previously considered. Section 340-8.D of the Town’s Zoning Code provided, in part:

To avoid undue hardship, nothing in this chapter shall be deemed to require a change in the plans, construction, or designated use of any building on which actual construction was lawfully begun prior to the effective date of adoption or amendment of this chapter and upon which actual building construction has been diligently carried on.

The Zoning Inspector testified: “I deemed that consideration should have been given to that provision. Clearly construction had begun and diligently been carried on prior to September 2nd, 2003,” the date on which the Town adopted this amendment to Chapter 340. The Zoning Inspector concluded: “To require the redesign and reconstruction of the substantially completed house would impose a considerable hardship on the Woods [because] the renovations, as is apparent from the plans and visual examination of the home, were considerable, extensive and undoubtedly expensive.”

For all those reasons, the Zoning Inspector testified, “I concluded that the Woods incurred a hardship and I concluded that it had not been brought about through their actions.” The Zoning Inspector said that, in issuing the final occupancy permit despite the setback violation, “I have exercised my best efforts to properly consider the various aspects of this matter in making my decision to issue the occupancy permit,” and “I tried my best to reconcile the requirements of and the rights granted by the Town Code with the facts as understood by me in reaching the decision.”

Counsel for the neighbors who appealed the issuance of the final occupancy permit argued to the Board of Zoning Appeals that the Zoning Inspector did not have the legal authority to refuse to enforce a violation of the Zoning Code, and further, that § 340-8.D was not applicable to the circumstances of this case because the 25-foot rear yard setback restriction was in effect before construction began, and was not amended after construction commenced on Mr. Wood’s addition.

On September 18, 2013, the Board of Zoning Appeals ruled that “the Zoning Inspector’s determination, set forth in the April 30, 2010, Memorandum, and her issuance of the Final Occupancy Permit on May 7, 2010, were not in error and therefore were not arbitrary, capricious, or illegal.” The Board explained:

The Board finds that in the unique circumstances of this case, and in light of all the time that passed, it would be unfair and inequitable for the Town to impose the draconian penalty of requiring Mr. Wood to tear down the rear of his house. Based on the evidence and arguments presented and the matters of record of the entire history of the proceedings concerning the Wood property, the Board finds that there was an excessive passage of time between when the Building Permit was issued in November of 2002, and when a neighboring property [sic] notified [the Zoning Inspector] of the encroachment in May of 2004. No one—not neighbors, not the Town, not the appellants [including Mr. Valli-ant]—raised the issue of the encroachment into the rear yard setback area until after footings were placed, the framing was installed, and construction of the renovations was completed. The Board finds that Mr. Wood substantially completed the construction of his residence, and that the inspections of the footings, foundation, and framing were completed and approved before the issue of the rear yard setback was raised, for the first time, in May of 2004.... The excess passage of time between when the Building Permit was issued and when the encroachment was discovered, coupled with the totality of circumstances surrounding the discovery of the encroachment, creates a uniqueness that causes this case to be more complicated than a simple rear yard setback violation, and skews the equities in favor of the homeowner, Mr. Wood.
* * *
The Board finds that the facts of this case present a narrow set of circumstances and uniqueness that support the Zoning Inspector’s determination in her 2010 Memorandum and her issuance of the Final Occupancy Permit.

On October 15, 2013, Mr. Valliant and two other petitioners jointly filed the petition for judicial review that is the subject of this appeal. In the supporting memorandum filed by counsel for Mr. Valliant and his fellow petitioners, they argued that the Board of Zoning Appeals had erred in affirming the rulings of the Zoning Inspector because the 2010 ruling was, in effect, a reversal of the Board’s previous denial of the requested variance, and the Board further erred in accepting the Zoning Inspector’s interpretation of § 340-8.D, and in ruling that the passage of time and the equities supported the Zoning Inspector’s decision not to enforce the setback restriction.

In opposition to the petition for judicial review, Mr. Wood argued that the Board of Zoning Appeals had ruled correctly that the Zoning Inspector was empowered to exercise discretion “not to continue to assert the rear setback as a violation,” and, in making that decision, the Town, acting through the Zoning Inspector, had properly exercised “its responsibility to ensure that the Zoning Ordinance is being administered equitably and in the best interests of the Town.” In a supplemental memorandum answering the petition for judicial review, Mr. Wood argued that CJP § 6—114(b)(1) bars the petitioners’ action because this case is, at its core, a challenge to a setback violation that was the subject of a letter from the Zoning Inspector dated May 17, 2004. Because none of the petitioners had initiated any action or proceeding against Mr. Wood within three years after that date, the supplemental memorandum argued that the current complaints relative to the unabated setback violation were now time-barred.

After conducting a hearing, the Circuit Court for Talbot County issued a written ruling in favor of the petitioners. The court dismissed Mr. Wood’s argument based upon the time limit imposed by CJP § 5—114(b) because, the court said, “Petitioners are not challenging the setback violation.” The court viewed the most recent ruling of the Board of Zoning Appeals as an impermissible change of mind from the Board’s 2004 denial of a variance. The circuit court ruled that the Zoning Inspector was required by law to enforce the provisions of the Town’s Zoning Ordinance, and was without discretion to disregard the setback violation in this case. The court ruled that the decision of the Board of Zoning Appeals of September 18, 2013, was reversed, and the case was remanded for further consideration.

Mr. Wood then filed the present appeal. Only Mr. Valliant participated as an appellee in this appeal.

STANDARD OF REVIEW

Whether the neighboring property owners’ petition for judicial review was precluded by CJP § 5-114 is a question of law that we review due novo. Lewis v. Baltimore Convention Center, 231 Md.App. 144, 152, 149 A.3d 1218 (2016). In our analysis, we shall accept all factual findings made by the Board of Zoning Appeals for which there is substantial evidence in the record to support the findings. Afshin Attar v. DMS Tollgate, LLC, 451 Md. 272, 279, 152 A.3d 765 (2017).

DISCUSSION

We are persuaded that the neighboring property owners’ petition for judicial review was subject to the time limit that CJP § 5-114(b)(1) imposes upon “an action or proceeding arising out of a failure of a building or structure to comply with a setback line restriction,” and it is clear that the petition for judicial review was filed “more than 3 years after the date on which the violation first occurred.” The action was therefore time-barred and should have been dismissed by the circuit court, leaving the ruling of the Board of Zoning Appeals to stand as issued on September 18, 2013.

Section 5-114 of the Courts and Judicial Proceeding Article is captioned “Setback line restrictions.” Subsection (b) imposes time limits upon the initiation of an action arising out of the construction of a building or structure that is not in compliance with a setback line restriction. Subsection (b)(1) imposes a three-year limit within which a person must initiate an action or proceeding, and that three-year period begins on “the date on which the violation first occurred.” Subsections (b)(2), (b)(3), and (b)(4) impose a three-year limit within which a governmental entity must initiate an action or proceeding if the encroaching structure was constructed pursuant to a building permit, and the “otherwise valid building permit ... wrongfully permitted the building or structure to violate a setback line restriction.” Subsection (b)(4) establishes that the time limit for a governmental entity to initiate an action or proceeding begins on “the date on which the final building inspection was approved.”

To this day, neither the Town nor any other governmental entity of which we are aware has “initiate[d] an action or proceeding arising out of’ the failure of Mr, Wood’s addition to comply with the rear yard setback line restriction. So, in this appeal, we are primarily concerned with the time limit that was imposed upon Mr. Valliant (and other persons) by CJP § 5-114(b)(1).

As noted, the time limit for any person (other than a governmental entity) to “initiate an action or proceeding arising out of a failure of a building or structure to comply with a setback line restriction” is three years from “the date on which the violation first occurred.” Although, with respect to actions by governmental entities, CJP § 5—114(b)(4) explicitly provides that the meaning of the phrase “date on which the violation first occurred” shall be “deemed to be the date on which the final building inspection was approved,” there is no comparable statutory definition of the “first occurred” phrase as used in the statutory time limit applicable to claims by persons, ie., CJP § 5—114(b)(1). Accordingly, we are left to interpret that phrase pursuant to ordinary rules of statutory construction. The plain meaning of the phrase “the date on which the violation first occurred” is the date on which the owner of the property first performed construction of any component of a building or structure that encroaches upon the setback line restriction.

In this case, the findings of the Board of Zoning Appeals make it plain that the setback line restriction that is at the heart of Mr. Valliant’s challenge to the most recent ruling of the Board first occurred sometime prior to February 12, 2004. That is the date on which the Town’s building inspectors approved the framing of the structure Mr, Wood was constructing. If Mr. Valliant or other complaining neighbors had initiated an action or proceeding relative to the setback line restriction long before they eventually did, we might have needed a more precise factual finding regarding the date on which the setback violation “first occurred.” But, in this case, we can assume that the violation had to have first occurred by the time the structure had progressed to the point that the framing could pass inspection, and it is clear that no action or proceeding was initiated by Mr. Valliant (or the other petitioners) within three years after that date.

Indeed, the record reflects that, as of the date the Zoning Inspector issued the final occupancy permit on May 7, 2010, neither any person nor any governmental entity had initiated an action or proceeding against Mr. Wood arising out of the rear yard setback violation. Assuming, without deciding, that, when Mr. Valliant and others filed an administrative appeal of the Zoning Inspector’s issuance of the final occupancy permit, that filing constituted the initiation of an action or proceeding as contemplated by CJP § 5—114(b)(1), that appeal to the Board of Zoning Appeals was not filed until June 21, 2010, which was well beyond three years after the date the setback violation first occurred.

Counsel for Mr. Valliant argues that CJP § 5—114(b) is not applicable to this case because the 2010 appeal to the Board of Zoning Appeals does not arise out of a setback violation, but rather, arises out of the Zoning Inspector’s improper issuance of a final occupancy permit. This strained argument cannot overcome the fact that the only complaint that has been asserted regarding the allegedly erroneous issuance of the final occupancy permit is based entirely upon the violation of the rear yard setback line restriction. It would not be an overstatement to say that, if we remove from this case the neighbors’ complaint that the addition constructed on Mr. Wood’s property is in violation of the rear yard setback restriction, there would be nothing remaining to talk about in this case. Clearly, the 2010 appeal to the Board of Zoning Appeals arose out of the setback line violation that first occurred more than three years earlier, and the same holds true for the circuit court proceeding seeking judicial review of the Board’s 2010 ruling.

In light of this, we need not address Mr. Wood’s argument that the time limit imposed by CJP § 5—114(b)(1) is a statute of repose. In Anderson v. United States, 427 Md. 99, 117, 46 A.3d 426 (2012), the Court of Appeals quoted this definition of a statute of repose from Black’s Law Dictionary 1546 (9th ed. 2009): “A statute of repose is defined as a ‘statute barring any suit that is brought after a specified time since the defendant acted (such as by designing or manufacturing a product), even if this period ends before the plaintiff has suffered a resulting injury.’ ” (Footnote omitted.) Section 5-114(b)(l) appears to fit this description; the statute bars any action or proceeding from being initiated more than three years after the defendant caused a setback violation to occur, without regard to whether that violation has caused any identifiable injury. In CJP § 5—114(b)(1), the triggering event that starts the three year time limit for initiating an action is defined, as in other statutes of repose—see, e.g., CJP § 5-108(a); CJP § 5-108(b); and CJP § 5-112—as an event (namely, “the date on which the violation first occurred”) that is “unrelated to when the [claimant’s] injury or discovery of the injury occurs.” Anderson, 427 Md. at 118, 46 A.3d 426. In Anderson, Judge Harrell wrote for the Court of Appeals and explained: “In common parlance, statutes of limitation and statutes of repose are differentiated consistently and confidently by whether the triggering event is an injury or an unrelated event; the latter applying to a statute of repose.” Id. at 119, 46 A.3d 426. The Anderson Court further explained that “[t]he purpose of a statute of repose is to provide an absolute bar to an action or to provide a grant of immunity to a class of potential defendants after a designated time period.” Id. at 118, 46 A.3d 426. And, because the legislative purpose of a statute of repose is to provide an absolute bar to claims after a designated time, issues concerning discovery of the injury and tolling of the time limit are not pertinent to the application of a statute of repose. Id. at 121, 46 A.3d 426.

But, regardless of whether the time limit imposed by CJP § 5-114(b)(l) is a statute of repose or a statute of limitation, when a building or an addition to a building is constructed in violation of a setback restriction, any person who wishes to pursue an action or proceeding arising from that setback violation must act within three years after the violation first occurred. In this case, no person initiated a timely action or proceeding.

JUDGMENT OF THE CIRCUIT COURT FOR TALBOT COUNTY REVERSED, AND THIS CASE IS REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS THE PETITION FOR JUDICIAL REVIEW. COSTS TO BE PAID BY APPELLEE.

      . The other petitioners who joined Mr. Valliant in filing the petition for judicial review in the circuit court were: Wickersham, LLC, and Boat Carpenters, LLC.

      .In addition to raising the issue based upon CJP § 5-114(b), Mr. Wood raised other issues which we need not address because we conclude that judicial review was time-barred. Questions presented in his brief included:
      1. Do the holdings in Falls Road Community Ass’n, Inc. v. Baltimore County, 437 Md. 115, 85 A.3d 185 (2014), concerning a local government's discretionary authority with respect to enforcement of zoning violations, preclude a third parly property owner from challenging the Zoning Inspector’s discretionary determination, made for good cause, not to enforce compliance of a setback violation?
      2. Does the holding in Falls Road preclude a circuit court from ordering a de facto writ of mandamus requiring a Zoning Inspector to enforce compliance of a setback violation that the Zoning Inspector had determined for good cause not to enforce?
      3. Did the Circuit Court err when it reversed the longstanding interpretation of the Zoning Inspector and the Board to find that notwithstanding the provisions of [CJP] § 5-114(b), a building permit cannot be considered to be a valid building permit when it is later discovered that the permit issued incorrectly permitted the building to violate a setback restriction?
      4. Did the Zoning Inspector properly exercise her discretionary authority pursuant to Town of St. Michaels Code, § 340-8D and the holding in Falls Road, when she determined not to enforce compliance of a setback violation?

      . On June 29, 2016, this Court was notified by Wood’s attorney that Mr. Valliant died on June 22, 2016. To date, no other party has been substituted in Mr. Valliant’s place in this appeal. We were advised by counsel for appellant that Mr. Valliant held only a life estate in the property at 205 Green Street,

      . CJP § 5-114(b) provides:
      (b) (1) A person may not initiate an action or proceeding arising out of a failure of a building or structure to comply with a setback line restriction more than 3 years after the date on which the violation first occurred.
      (2) A governmental entity may not initiate an action or proceeding arising out of a failure of a building or structure to comply with a setback line restriction more than 3 years after the date on which the violation first occurred if the building or structure was constructed or reconstructed:
      (i) In compliance with an otherwise valid building permit, except that the building permit wrongfully permitted the building or structure to violate a setback line restriction; or
      (ii) Under a valid building permit, and the building or structure failed to comply with a setback line restriction accurately reflected in the permit,
      (3) For purposes of paragraph (2)(i) of this subsection and notwithstanding any other provision of State or local law to the contrary, a building permit that was otherwise validly issued, except that the permit wrongfully permitted the building or structure to violate a setback line restriction, shall be considered a valid building permit.
      (4) For purposes of paragraph (2) of this subsection, the date on which the violation first occurred shall be deemed to be the date on which the final building inspection was approved.
      CJP§ 5-114(d) provides:
      (d) This section may not be construed to abrogate or affect the defense of laches or any other defense that a person may have to an action or proceeding for a violation of a setback line restriction.


author: Eyler, James R., J.

text:
    155 A.3d 901
    Kathleen B. BOOMER, et al. v. WATERMAN FAMILY LIMITED PARTNERSHIP, et al.
    No. 1783,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    March 2, 2017
    See also 2017 WL 822671.

      Jesse B. Hammock (Peter R. Cotter, Parker, Goodman, Gordon & Hammock, LLC, on the brief), Easton, MD, for appellant.
    Brynja M. Booth (Booth, Booth, Cropper & Marriner, PC of Easton, MD) Joseph A. Stevens (Justin M. Hoyt, Stevens, Palmer, LLC of Centreville, MD), all on the brief, for appellee.
    Berger, Shaw Geter, James R. Eyler (Senior Judge, Specially Assigned), JJ.

       Judge Christopher B. Kehoe did not participate in the decision to publish this opinion.

   Eyler, James R., J.

The issue on this appeal is whether the Board of County Commissioners of Queen Anne’s County (“the County Commissioners”) had the authority to rescind a previously adopted ordinance in which they had approved the rezoning of a parcel of land that had been annexed and rezoned by the Town of Queenstown. We answer that question in the affirmative.

On November 25, 2014, by a vote of three to two, the County Commissioners adopted Resolution 14-31, which approved Queenstown’s new zoning classification for the annexed parcel that allowed land uses substantially different, or at a substantially higher density, from what previously had been allowed. On December 2, 2014, four County Commissioners, elected at the 2014 general election, were sworn into office. On December 9, 2014, by a vote of four to one, the County Commissioners adopted Resolution 14-33, which withdrew, rescinded, voided, and nullified Resolution 14-31.

In response to the adoption of Resolution 14-33, the Town Commissioners of Queenstown (“the Town Commissioners”) and the Waterman Family Limited Partnership (“Waterman”), the owner of the subject property, filed, in the Circuit Court for Queen Anne’s County, a petition for judicial review and request for a writ of administrative mandamus. Waterman also filed a declaratory judgment action in the same court against the County Commissioners. In both cases, the Town Commissioners and Waterman alleged that the County Commissioners lacked authority to rescind Resolution 14-31. The two cases were consolidated. Kathleen Boomer, Marie McNurlan, Paul A. McNurlan, Stacy L. Swartwood, and the Queen Anne’s Conservation Association (“QACA”) intervened as interested parties, all of whom were aligned with the County Commissioners.

After a hearing on July 21, 2015, the circuit court entered summary judgment in favor of Waterman and the Town Commissioners and declared Resolution 14-33 “null, void and of no legal force and effect” on the ground that the County Commissioners lacked the “authority to repeal or rescind [Resolution] 14-31.” In addition, the court granted the relief requested in the petition for judicial review and the request for a writ of administrative mandamus filed by the Town Commissioners and Waterman. The County Commissioners and the interested parties filed motions for reconsideration. On September 30, 2015, the court denied the motions. This timely appeal followed. Subsequently, the County Commissioners voluntarily withdrew from the appeal. As a result, the parties before us are the interested parties, whom we shall refer to collectively as “the QACA appellants,” and the Town Commissioners and Waterman, appellees.

ISSUE PRESENTED

The sole issue presented by the QACA appellants for our consideration is whether the County Commissioners had the authority to rescind or repeal Resolution 14-81. For the reasons set forth below, we hold that the County Commissioners did have that authority, and as a result, we shall reverse the judgments of the circuit court.

FACTUAL BACKGROUND

The basic facts are not in dispute. Waterman is the owner of approximately 140 acres of land in Queen Anne’s County, commonly referred to as the Wheatlands Farm property, located immediately south of U.S. Route 50 and across from a commercial development known as the Queenstown Outlets. Prior to the events that are the subject of this appeal, the property was zoned Countryside, a designation that permitted agricultural and low density uses. On June 25, 2014, Waterman filed a petition with the Town of Queenstown seeking to have the Wheatlands Farm property annexed into the town. The goal, after annexation, was to seek rezoning. After a public hearing, the Town Commissioners voted to annex the property. Thereafter, the Town Commissioners adopted an ordinance rezoning the Wheatlands Farm property from Countryside to Planned Regional Commercial, which permitted commercial and high density uses. The effective date of that ordinance was dependent upon a waiver by the County Commissioners of the existing zoning density pursuant to Md. Code (2013 Repl. Vol., 2014 Supp.), § 4-416(b) of the Local Government Article (“LG”). The statute provided that the property could not be rezoned to permit development for uses substantially different from previously authorized uses or uses at a substantially higher density, for a period of five years, unless the County Commissioners granted express approval and waived the five-year period.

After a public hearing, on November 25, 2014, the County Commissioners passed Resolution 14-31, which granted the express approval needed to allow for rezoning to a classification that was substantially different and at a higher density. The approval of Resolution 14-31 allowed development consistent with the “Planned Regional Commercial” classification without having to wait the five-year period referred to in LG § 4-416.

On December 2, 2014, the newly elected commissioners took office. On December 9, 2014, the County Commissioners adopted Resolution 14-33, which rescinded the express approval that previously had been granted. In response to that action, Waterman and the Town Commissioners filed the court actions described above.

Ultimately, the circuit court concluded that the County Commissioners “had no authority to repeal and rescind Resolution 14-31.” On July 21, 2015, the court granted summary judgment in favor of Waterman and the Town Commissioners, and granted the relief requested in the petition for judicial review and writ of administrative mandamus. It also issued a declaratory judgment providing that “Resolution 14-33 adopted by the County Commissioners of Queen Anne’s County on December 9, 2014, ... hereby is declared to be null, void and of no legal force and effect.”

After the court denied motions for reconsideration, the County Commissioners and the QACA appellants noted appeals to this Court. Subsequently, the County Commissioners dismissed their appeal.

DISCUSSION

I.

The QACA appellants contend that the circuit court erred in granting summary judgment in favor of Waterman and the Town Commissioners because, under Article XI-F, Section 6 of the Maryland Constitution, the county had the legal authority to adopt Resolution 14-33, thereby rescinding Resolution 14-31. They argue that both Resolutions were public local laws, not public general laws; that LG § 4-416 cannot restrict Queen Anne’s County’s power under the Maryland Constitution to repeal a public local law like Resolution 14-31; and that even absent an express power to rescind a resolution, the County Commissioners have the inherent power to do so.

Appellees argue that, in this context, the County Commissioners’ sole source of authority to act was LG § 4-416, a public general law; thus, Resolution 14-33 cannot be a public local law under the Maryland Constitution. Pointing out that LG § 4-416 does not contain an express right to rescind and relying on language in the statute providing that, once waiver has been granted, the Town Commissioners have “exclusive jurisdiction” over zoning, appellees conclude that the plain language of the statute prohibited the rescission of Resolution 14-31.

Maryland’s Constitution provides that “[a] code county may enact, amend, or repeal a public local law of that county by a resolution of the board of county commissioners. The General Assembly may amplify the provisions of this section by general law in any manner not inconsistent with this Article.” Md. Const, art. XI-F, § 6. The Constitution defines “public local law” as:

a law applicable to the incorporation, organization, or government of a code county and contained in the county’s code of public laws; but this latter term specifically does not include (i) the charters of municipal corporations under Article 11E of this Constitution, (ii) the laws or charters of counties under Article 11A of this Constitution; (iii) laws, whether or not Statewide in application, in the code of public general laws, (iv) laws which apply to more than one county, and (v) ordinances and resolutions of the county government enacted under public local laws.

Md. Const, art. XI-F, § 1.

There is no dispute that Queen Anne’s County is a code county. See Kent Island Def. League, LLC v. Queen Anne’s County Bd. of Elections, 145 Md.App. 684, 689, 806 A.2d 341, cert. denied, 371 Md. 615, 810 A.2d 962 (2002). Thus, the issue to be resolved is whether Resolutions 14-31 and 14-33 were public local laws. Our decision in Kent Island Def. League provides guidance on that issue.

Kent Island Def. League arose out of two ordinances enacted by the Queen Anne’s County Commissioners approving a petition to re-designate property pursuant to the Chesapeake Bay Critical Area Protection Program, which had been enacted by the General Assembly. Kent Island Def. League, LLC, 145 Md.App. at 686-87, 806 A.2d 341. A voters’ organization known as Kent Island Defense League, LLC, presented to the Queen Anne’s County Board of Elections a petition to refer the two ordinances to the voters of the County. Id. at 688, 806 A.2d 341. The Elections Director determined that the petition was legally deficient because the ordinances were not subject to referendum and the petition was deficient in form. Id. Kent Island Defense League, LLC and its president, who was a registered voter in Queen Anne’s County, filed, in the Circuit Court for Queen Anne’s County, a petition for judicial review of that decision. Id. The developer of the property that was the subject of the referendum petition and others filed a complaint for declaratory judgment seeking a declaration that the petition for referendum was legally deficient. Id. After a hearing, the Circuit Court for Queen Anne’s County held that the ordinances were not subject to referendum. Id. Kent Island Defense League, LLC appealed.

In affirming the circuit court’s judgment, we addressed the issue of whether the ordinances were “public local laws” within the meaning of Article XI-F, Section 7 of the Maryland Constitution which provided, in part, as it does now, that “[a]ny action of a code county in the enactment, amendment, or repeal of a public local law is subject to a referendum of the voters in the county[.]” Id. at 689, 806 A.2d 341. We held that the ordinances in question were enacted under the authority of the public general law that established the Chesapeake Bay Critical Area Protection Program and not pursuant to the county’s home rule powers. Id. at 692, 806 A.2d 341. As a result, the ordinances were not public local laws. Id.

In reaching that conclusion, we discussed the process of determining whether a law is general or local as follows:

The classification of legislative action as general or local is based on “subject matter and substance and not merely on form,” Cole v. Secretary of State, 249 Md. 425, 433, 240 A.2d 272 (1968), and is determined by applying “settled legal principles to the facts of particular cases.” Dasch v. Jackson, 170 Md. 251, 260, 183 A. 534 (1936). Enactments that apply to a single subdivision of the state regarding a subject of local import are considered local laws. See Tyma v. Montgomery County, 369 Md. 497, 507, 801 A.2d 148, 154 (2002)(citing Steimel v. Bd. of Election Supervisors of Prince George’s County, 278 Md. 1, 5, 357 A.2d 386 (1976); and Norris v. Mayor and City Council of Baltimore, 172 Md. 667, 192, 192 A. 531, 537 (1937)). Even an enactment that appears local in nature is a general law if it affects the interests of more than one geographical subdivision or the entire state. See Cole, 249 Md. at 434-35, 240 A.2d 272 (citations omitted)(“The rationale ... lies in the concept that while the immediate objective sought to be achieved was local in character, the statutes indirectly affected matters of significant interests to the entire state: i.e., regulation of elections, control of natural resources, and protection of state revenues derived from licenses.”)(footnote omitted). The fact that the County’s actions followed standard home rule procedures does not mean that the original authorization for the action was the home rule power. The actions were pursuant to, were affected by, and had an effect on, the entire State Critical Area Program.

Id. at 693-94, 192 A. 531.

Applying the analysis discussed in Kent Island Def. League to the facts of the instant case, we conclude that Resolutions 14-31 and 14-33 were public local laws adopted pursuant to Article XI-F, Section 6, and subject to rescission. Both Resolutions applied to the Wheatlands Farm property that is located within “a single subdivision of the state.” Kent Island Def. League, 145 Md.App. at 693, 806 A.2d 341. Appellees argue that the Town of Queenstown is a subdivision separate from the County. As used in Kent Island Def. League and in the context of this case, the term “subdivision” refers to a county or Baltimore City, however, not a municipality or municipal corporation. A decision regarding the zoning density limits applicable to Wheatlands Farm has no consequence on any land outside of Queen Anne’s County and is a matter of purely local import. Unlike Kent Island Def. League, the instant case does not involve a State mandated program requiring uniformity. Rather, the County’s ability to waive its zoning density limits was purely discretionary.

The subject matter of the Resolutions in question leads us to reject appellees’ argument that the County’s authority to waive its zoning density limits for the subject property is derived solely from LG § 4-416(a), a public general law. Article XI-F, Section 6, allows the General Assembly to “amplify the provision of this section by general law in any manner not inconsistent with this Article.” The use of the word “amplify” is important in that it allows the General Assembly to increase the County’s power to pass local laws. There is nothing that restricts the power to rescind a local law adopted pursuant to the power granted to the County by Article XI-F, Section 6. Indeed, any express or implied limitation on the County’s right to rescind a local law would stand in direct conflict with the State’s Constitutional provision.

The language in LG § 4-416 giving “exclusive jurisdiction” to the Town Commissioners, relied on by appellees, does not address the issue before us. It simply provides that, once the County has validly approved the rezoning, the Town Commissioners have exclusive jurisdiction. It does not address whether, in fact, a valid approval exists.

Moreover, even absent an express provision in LG § 4-416 permitting the rescission of a local resolution, the County has the inherent power to do so. In Dal Maso v. Bd. of County Comm’rs of Prince George’s County, in reviewing the actions of the Montgomery County Commissioners, sitting as the District Council, the Court of Appeals stated:

When a zoning board defines or prescribes the character and nature of the buildings which may be made or erected in a given area, its effect is all in the future; its plan is a guide to those who may erect buildings and the uses and businesses to which they may be devoted; its activities are legislative within the limits of the delegation of powers conferred. The Legislature can amend, qualify, or repeal any of its laws, affecting all persons and property which have not acquired rights vested under existing law; all of the courts agree on this. It has been frequently held that this rule applies also to boards and agencies to which legislative power has been delegated and that they may undo, consider and reconsider their action upon measures before them. ‘It is a general rule, subject to certain qualifications hereinafter noted, that a Municipal Corporation has the right to reconsider its actions and ordinances, and adopt a measure or ordinance that has previously been defeated or rescind one that has been previously adopted before the rights of third parties have vested. Moreover, in the absence of statute or a rule to the contrary, the Council may reconsider, adopt or rescind an ordinance at a meeting subsequent to that at which it was defeated or adopted, at least where conditions have not changed and no vested rights have intervened.’ 37 Am.Jur.Sec. 150, p. 762.

Dal Maso, 182 Md. 200, 206, 34 A.2d 464 (1943). See also Schultze v. Montgomery County Planning Bd., 230 Md. 76, 81-82, 185 A.2d 502 (1962) (An administrative body acting in a quasi-judicial capacity has the right to correct errors in its decisions, but this power must not be exercised arbitrarily and can only be exercised where there is justification and good cause); Cinque v. Montgomery County Planning Bd., 173 Md.App. 349, 361, 918 A.2d 1254 (2007) (Maryland recognizes the inherent authority of agencies to reconsider their own quasi-judicial decisions). The Resolutions in question in this case were statements of position or policy with an administrative effect. The reasoning of Dal Maso is applicable here.

Section 4-416 of the Local Government Article is silent with respect to the power to rescind a waiver. We presume that, at the time the Legislature enacted § 4-416 and its predecessors, it had full knowledge and information regarding a county’s inherent right to rescind a prior decision. Harden v. Mass Transit Admin., 277 Md. 399, 406-07, 354 A.2d 817 (1976) (“The General Assembly is presumed to have had, and acted with respect to, full knowledge and information as to prior and existing law and legislation on the subject of the statute and the policy of the prior law.”) (citing Allers v. Tittsworth, 269 Md. 677, 684, 309 A.2d 476 (1973)). Absent a law or doctrine prohibiting such an action, we conclude that the County has the inherent power to reverse its own action with respect to a public local law.

As the Court of Appeals recognized in Dal Maso, however, the authority to rescind a resolution is not without limitation. If rights were to vest during the interim between the enactment of a resolution and its rescission, the County would lose its ability to rescind, at least to the extent that rights had vested. Dal Maso, 182 Md. at 206-07, 34 A.2d 464. See also Town of Sykesville v. West Shore Communications, Inc., 110 Md.App. 300, 305 and 317-22, 677 A.2d 102 (1996)(regarding zoning changes, rights do not vest unless there is some significant and visible construction undertaken in good faith and pursuant to valid permit). There is no assertion in the instant case that any rights vested during the short time that elapsed between the adoption of Resolution 14-31 and the adoption of Resolution 14-33.

The substantive analysis required by Kent Island Def. League, the provisions of Article XI-F and LG § 4-416, and Maryland law recognizing the County Commissioners’ inherent right to rescind a prior decision, lead us to conclude that Resolutions 14-31 and 14-33 are public local laws and that the County had the power to reverse its action in Resolution 14-31 by adopting Resolution 14-33.

Although appellees’ frustration is understandable, the result in this case is a product of our form of government.

JUDGMENTS OF THE CIRCUIT COURT FOR QUEEN ANNE’S COUNTY REVERSED; COSTS TO BE PAID BY APPELLEES.

      . Section 4-416 of the Local Government Article provided, in part:
      (a) Existing municipal authority.—(1) Notwithstanding § 4—104(f) of this title, if an area is annexed to a municipality that has planning and zoning authority at the time of annexation, the municipality shall have exclusive jurisdiction over planning, subdivision control, and zoning in the area annexed.

      (b) Different land use or density.—Without the express approval of the county commissioners or county council of the county in which the municipality is located, for 5 years after an annexation by a municipality, the municipality may not allow development of the annexed land for land uses substantially different than the authorized use, or at a substantially higher density, not exceeding 50%, than could be granted for the proposed development, in accordance with the zoning classification of the county applicable at the time of the annexation.
      (c) County approval of zoning classification.-—Notwithstanding § 4-204 of the Land Use Article and if the county expressly approves, the municipality may place the annexed land in a zoning classification that allows a land use or density different from the land use or density specified in the zoning classification of the county or agency with planning and zoning jurisdiction over the land prior to its annexation applicable at the time of the annexation.
      The provisions of LG § 4-416, along with other annexation provisions, became effective on October 1, 2013. LG § 4-416 was derived without substantive change from Md. Code (1957, 1973 Repl. Vol., 2012 Supp.), Art. 23A, § 9(c) (1) and (2) and § 19(s).

      . In addition to filing notices of appeal, on October 9, 2015, the QACA appellants filed in the Circuit Court for Queen Anne’s County a petition for judicial review, seeking review of the County Commissioners’ enactment of Resolution 14-31. Waterman and the Town Commissioners filed motions to dismiss that petition for judicial review on the grounds that it was untimely and barred by res judicata. An interested party, Edward G. Modell, filed a response to the petition for judicial review and a request to have the hearing on the petition postponed. The circuit court did not rule on Mr. Modell’s request for postponement, but Mr. Modell appeared at the hearing on November 17, 2015. Following that hearing, the court dismissed the petition for judicial review on the grounds that it was untimely and barred by res judicata. It also held that Mr. Modell's claims were barred by collateral estoppel. The QACA appellants and Mr. Modell filed timely notices of appeal. See, Modell et al. v. Waterman Family Ltd. Partnership, et al., 232 Md.App. 13, 155 A.3d 909 (2017).