Appealability of Zoning Decisions

IV. APPEALABILITY OF ZONING DECISIONS

Builders will customarily take ownership of property subject to all zoning approvals being final and unappealable. After a zoning decision is rendered, there may be a litany of subsequent approvals issued that rely upon the original decision for issuance. Those seeking to stop or slow down a project may appeal subsequent approvals even after the original zoning decision has become final. Construction law practitioners should be aware of the jurisprudence related to zoning appeals in order to determine whether development approvals are final and construction may proceed without the risk of reversal.

When evaluating whether an administrative decision is appealable, the determining factor is whether the event at issue constitutes a "decision" or is rather a ministerial action implementing or confirming a prior decision. The seminal decision related to the appealability of administrative decisions is United Parcel Service, Inc. v. People's Counsel for Baltimore County, 336 Md. 569, 650 A.2d 226 (1994) (hereinafter UPS). In UPS, the Supreme Court of Maryland examined whether the confirmation of zoning issued by zoning verification letter restarted the appeal period through which opponents of a particular development could contest the decision. The court held that the subsequent letter confirming a prior decision was not appealable; it "simply confirmed or reaffirmed [the Commissioner's] prior 'approval' or 'decision' that UPS's use was a permitted one."⁸⁸ Based on the relief requested (the revocation of the building permit), the court determined that the appealable decision was "when the Zoning Commissioner and other officials approved UPS's application for a building permit and the Building Engineer issued a building permit."⁸⁹

The Supreme Court held that if litigants could appeal from "an administrative official's reaffirmation or statement [pertaining to past events], an applicant or a protestant could circumvent entirely the statutory time limits for taking appeals."⁹⁰ If that were so, "an inequitable, if not chaotic, condition would exist. All that an appellant would be required to do to preserve a continuing right of appeal would be to maintain a continuing stream of correspondence, dialogue, and requests . . . with appropriate department authorities even on the most minute issues of contention with the ability to pursue a myriad of appeals ad infinitum."⁹¹

Further jurisprudence on this issue has provided that...