Angel Enterprises Limited Partnership, et al. v. Talbot County, Maryland, et al., No. 45, 

September Term, 2020, Opinion by J. Booth 

IMPOSITION OF CIVIL PENALTIES – ORIGINAL JURISDICTION OVER 

ADJUDICATION OF PENALTIES IN THE MARYLAND COURTS –

JURISDICTION OF BOARD OF APPEALS ESTABLISHED BY CHARTER 

COUNTY. Talbot County had no authority to confer subject matter jurisdiction upon its 

Board of Appeals to consider an administrative appeal of civil penalties assessed by the 

Talbot County Chief Code Compliance Officer. The Maryland General Assembly has not 

vested boards of appeal established by charter counties with authority to review or consider 

civil penalties assessed by a code enforcement officer for violations of a county code. 

Under the applicable Maryland laws, the authority to adjudicate civil penalties arising from 

violations of a local code enacted by a charter county is within the original jurisdiction of 

the courts. Because this case originated in the Talbot County Board of Appeals, which did 

not have jurisdiction over the matter that was the subject of the administrative appeal, the 

Court of Appeals vacated the judgment and remanded the case to the Board of Appeals 

with instructions that its decision be vacated and that the assessments be dismissed. 
Circuit Court for Talbot County

Case No.: C-20-CV-18-000011

Argued: April 13, 2021

IN THE COURT OF APPEALS

OF MARYLAND

No. 45

September Term, 2020

ANGEL ENTERPRISES LIMITED 

PARTNERSHIP, et al.

v.

TALBOT COUNTY, MARYLAND, et al.

Barbera, C.J.

McDonald

Watts

Hotten

Getty

Booth

Biran,

JJ.

Opinion by Booth, J.

Filed: July 9, 2021
In this case, Petitioners, Angel Enterprises Limited Partnership (“Angel”) and 

Morton Bender (“Bender”) (sometimesreferred to collectively as “Petitioners”) have posed 

several questions to this Court concerning Talbot County’s authority to impose civil 

penalties totaling $713,400 for Petitioners’ violations of the Talbot County Code 

(sometimes referred to as the “County Code,” “Code,” or “TCC”) arising from their 

unlawful actions associated with clearing trees and constructing a driveway on their 

property without a permit. The penalties were imposed by six assessment notices issued 

after the Talbot County Chief Code Compliance Officer (“CCCO”) was advised of the 

violations and issued abatement orders that required the property owners to correct the 

violations and restore the property to its pre-construction condition. 

Under the applicable provisions of the Talbot County Code, the CCCO had the 

authority to issue “assessment notices” imposing civil fines that would accrue on a daily 

basis until the code violations were corrected. Under the County Code, a property owner’s 

method for challenging the assessment of civil penalties was to file an administrative 

appeal to the Talbot County Board of Appeals (sometimes referred to as the “Board of 

Appeals” or “Board”). Bender and Angel filed an administrative appeal of the assessments 

on December 29, 2009. After the administrative appeal was stayed by agreement, in 2017, 

the Board of Appeals conducted an evidentiary hearing on the civil penalties that were 

assessed by the CCCO’s notices over the course of five evidentiary hearings, spanning a 

total of five months. During the Board of Appeals hearing, Bender and Angel’s counsel 

made several legal arguments challenging Talbot County’s process for the imposition of 

civil penalties—a process that was added to the County Code in 2007. At the conclusion 
2

of the evidentiary hearing, the Board of Appeals determined that the CCCO had the 

authority to issue the civil assessments under the Code and Bender and Angel’s due process 

rights were not violated by the County’s procedure for the adjudication of civil fines. 

However, the Board determined that, under the applicable provisions of the Code, the daily 

accrual of fines wasstayed by Bender and Angel’s administrative appeal filed on December 

29, 2009. 

After Talbot County filed a petition for judicial review of the Board’s decision that 

the daily accrual of fines was stayed during the pendency of the administrative appeal, the 

circuit court reversed that portion of the Board’s determination and entered an order 

authorizing Talbot County to enforce the civil assessments “in the amount of $713,400 as 

originally assessed.” 

Bender and Angel filed an appeal to the Court of Special Appeals. The intermediate 

appellate court agreed with the circuit court that, under the plain language of the Talbot 

County Code, the Board erred in concluding that the penalties were stayed upon the filing 

of the administrative appeal. The Court of Special Appeals further determined that, 

because this case was an administrative appeal and the Board did not “mak[e] a factual 

finding that [Bender and Angel] owed $713,400[,]” the circuit court erred in making such 

a factual finding. Accordingly, the Court of Special Appeals vacated the portion of the 

judgment providing that Bender and Angel owed $713,400, concluding that the amount 

owed “is a determination to be made in a separate proceeding.” The Court of Special 

Appeals also remanded the case to the Board of Appeals for the Board to consider 
3

additional issues pertaining to the County’s authority to assess penalties for daily violations 

of the particular code in question. 

For the reasons set forth herein, we also vacate the judgment entered by the circuit 

court. However, our basis for doing so differs from the reasons expressed by the Court of 

Special Appeals. We conclude that the Talbot County Board of Appeals lacked subject 

matter jurisdiction to consider or review the CCCO’s purported assessment of civil 

penalties. As explained herein, the adjudication of civil penalties by a charter county in 

circumstances such as those presented here is within the original jurisdiction of the 

Maryland courts, and not within the jurisdiction of a local board of appeals established by 

a charter county under the authority granted by the Express Powers Act. Accordingly, we 

vacate the judgment and remand this matter with instructions that the Board’s decision be 

vacated, and the assessments be dismissed. 

I.

Background and Procedural History

Angel1 purchased an unimproved lot in Talbot County on September 10, 2002. The 

unimproved property contained a deed restriction denying the landowner direct access to 

Maryland Route 33 (“Route 33”) (also commonly referred to as “the St. Michaels Road”)

unless approved by the Maryland State Highway Administration, the Talbot County 

Department of Planning and Zoning, and the Talbot County Public Works Department. 

Bender intended to construct a residence on the property and obtained a building permit 

1 Angel is the owner of the property. Morton Bender is Angel’s general partner. 
4

from Talbot County for the construction of the residence in 2003. In connection with the 

construction of the residence, Bender tried, without success, to obtain approval from Talbot 

County to build a driveway on the property with direct access to Route 33. Bender met 

with county representatives in February 2005 and was explicitly told that Angel could not 

have direct access from this property to Route 33 due to safety and environmental concerns. 

Despite the County’s lack of approval for the driveway, Bender hired a contractor 

to clear trees and build a driveway in early 2006. The project was ongoing when the County 

was alerted to the violation by the Maryland Department of the Environment (“MDE”). 

Upon learning of the unlawful clearing and driveway construction activities, Talbot County 

issued administrative abatement orders for violations of the Talbot County Code, which 

kicked off twelve years of enforcement proceedings against Bender and Angel, including:

civil and criminal enforcement actions by MDE, county administrative hearings related to 

the abatement orders, county attempts to assess daily accruing penalties associated with the 

initial clearing and construction activity, and Bender and Angel’s efforts to restore the 

property. We recount the history as follows. 

A. Procedural History Related to County Abatement Orders 

1. Issuance of Abatement Orders

After learning of the clearing activities and construction of the driveway from MDE, 

the Talbot County CCCO, Robert Graham, mailed Angel an administrative abatement 

order on January 23, 2009. This order was followed by a supplemental abatement order, 

which was mailed to Angel and Bender on February 19, 2009 (the January and February 

2009 abatement orders will be collectively referred to as “the abatement orders”). The 
5

abatement orders alleged two types of violations: one for cutting trees outside the Critical 

Area, and the other for cutting trees in the Critical Area. The abatement orders directed 

the Petitioners to remediate and restore the property. The remediation and restoration

requirements established in the abatement orders included, among other things, the removal 

of the driveway (which required the submission of associated plans for driveway removal),

and the restoration of the property to its pre-existing natural habitat (which required a soil 

erosion and sediment control plan, a stormwater management plan, a non-tidal wetlands 

management plan, a habitat protection plan, and a forest replacement plan with a 3 to 1 

ratio for replanting of trees removed). 

The abatement orders stated that the Petitioners’ failure to comply with the terms of 

the orders would subject the property owners to “civil penalties under the Talbot County 

Code Section 58-5 of up to $1,000 per calendar day for each violation.” The abatement 

orders stated that “civil penalties for continuing violations may be assessed separately for 

each violation for each day each violation continues.” Additionally, according to the 

abatement orders, “[f]or continuing violations for which civil penalties have been assessed, 

the civil penalty continues to accrue until the County receives written notice the property 

has been brought into compliance and the County verifies compliance by inspection or 

otherwise.” The abatement orders also stated that they were subject to appeal to the Board 

of Appeals. 

2. Administrative Appeal of Abatement Orders

Petitioners appealed the abatement orders to the Board of Appeals on multiple 

grounds. After a hearing, the Board issued a decision affirming the abatement orders on 
6

November 4, 2009. In accordance with the applicable provisions of the Talbot County 

Code and State law, Petitioners filed a petition for judicial review to the circuit court on 

December 2, 2009.

Shortly after Angel and Bender filed the petition for judicial review of the Board of 

Appeals’ decision, on December 23, 2009, MDE filed a complaint for injunctive relief and 

civil penalties against Angel and Bender in the Circuit Court for Talbot County (“MDE 

civil enforcement action”). The circuit court consolidated the administrative appeal and 

the MDE civil enforcement action. On June 13, 2012, the circuit court issued a 

memorandum opinion and order in the administrative appeal denying Angel and Bender’s 

petition for judicial review. Bender and Angel filed a timely appeal to the Court of Special 

Appeals. 

In April 2013, MDE, Angel, and Bender entered into a consent decree, which 

required Angel and Bender to remove the partially constructed driveway, restore the 

property to its pre-construction condition, and to pay civil fines totaling $40,000.2

With the entry of the consent decree between MDE, Bender, and Angel in the 

separate, but consolidated case, the Court of Special Appeals dismissed Bender and 

Angel’s appeal of the administrative action as being moot. Angel Enters. Ltd. P’ship v. 

Md. Dep’t of the Env’t, No. 1155, slip op. at 5 (Md. Ct. Spec. App. Oct. 8, 2013). 

2

In addition to the civil enforcement action, MDE also brought a criminal case 

against Bender and Angel, which was resolved by plea agreement. Angel pleaded guilty 

to two counts of unlawfully conducting a regulated activity in a non-tidal wetland without 

first obtaining a permit. The State entered a nolle prosequi on the criminal charges against 

Bender.
7

Specifically, the intermediate appellate court determined that because Bender and Angel 

had agreed to the “essential aspects” of the abatement order in the MDE consent decree—

namely, removing the driveway and restoring the property to its preconstruction 

condition—the administrative appeal was moot. Id. Bender and Angel argued that the 

appeal was not moot because the County had assessed its own civil penalties based upon 

the abatement orders. Id. at 6. The intermediate appellate court rejected this argument, 

noting that the “validity of the penalties . . . are not before this Court on this appeal[.]” Id. 

Bender and Angel filed a petition for writ of certiorari to this Court, which was denied in 

January 2014, bringing the administrative appeal of the county abatement orders to its 

conclusion. 

B. County’s Assessment of Civil Penalties 

On December 2, 2009—the same day Petitioners filed the petition for judicial 

review of the Board’s decision upholding the abatement orders—the CCCO issued six 

notices to Bender and Angel titled “ASSESSMENT OF CIVIL PENALTY – NOTICE OF 

RIGHT OF REVIEW AND RIGHT TO APPEAL” (referred to collectively as 

“assessments”). Each assessment contained an individual violation notice and advised 

Petitioners that “a civil penalty has been assessed against you for the following violation(s)

of the Talbot County Code.” Each assessment alleged a violation arising from the clearing 

and construction of the illegal driveway that occurred in 2006. The illegal actions set forth 

in the assessments can be categorized as either arising from (1) the 2006 clearing and 

driveway construction activities that formed the basis of the abatement orders; or (2) the 

“ongoing failure to correct, discontinue, or abate ongoing . . . violation[s] as required by 
8

[the] administrative abatement orders [that were upheld] by decision of [the] Talbot County 

Board of Appeals [in its decision] dated November 4, 2009.”

The assessments advised that the daily fine would begin to accrue on December 8, 

2009 and would continue to accrue each day. The collective daily fines for the continuing 

violations were $1,500 per day. The assessments stated that the daily violations would 

continue to accrue until such time as the County received notice that the violations had

been “brought into compliance” and the County verified compliance by an inspection. The 

assessments also provided the following right to appeal to the Board of Appeals: 

NOTICE OF RIGHT TO APPEAL TO BOARD OF APPEALS

ANY PERSON AGGRIEVED BY THIS ASSESSMENT OF CIVIL 

PENALTY MAY FILE AN APPEAL TO THE TALBOT COUNTY 

BOARD OF APPEALS. AN APPEAL IS TAKEN BY FILING WITH THE 

BOARD A WRITTEN NOTICE OF APPEAL IN ACCORDANCE WITH 

CHAPTER 20, TALBOT COUNTY CODE, AND IN ACCORDANCE 

WITH THE BOARD OF APPEALS RULES OF PROCEDURE, 

ACCOMPANIED BY THE APPROPRIATE FILING FEE. AN APPEAL 

MUST BE FILED WITHIN 30 DAYS AFTER THE DATE THE CIVIL 

PENALTY WAS IMPOSED. 

On December 9, 2009, Petitioners filed a request for administrative review of the 

six assessments with the CCCO.

3

 Thereafter, on December 29, 2009, Petitioners filed six 

separate administrative appeals to the Board, challenging the assessments. On April 12, 

2010, the Board issued a consent scheduling order consolidating the six appeals and 

3 At the time that assessments were filed, the Talbot County Code provided for an 

initial right to a hearing before the CCCO. Prior to issuing a decision on the request for 

administrative review, however, the Talbot County Code was amended, and the provisions 

of the Code providing for initial review before the CCCO were no longer applicable to 

Petitioners’ appeal. 
9

deferring the hearing in the penalty appeal until after the completion of the administrative 

review by the CCCO, and until the circuit court ruled on a motion to stay that had been 

filed in the pending administrative appeal on the abatement orders. 

On May 27, 2010, the circuit court held a hearing on Bender and Angel’s motion to 

stay the administrative appeal of the abatement orders. At that hearing, the County 

consented to a stay of the continued tolling of penalties while the administrative appeal of 

the abatement orders was pending in the circuit court. The assessment “appeal” that 

Petitioners filed with the Talbot County Board of Appeals remained inactive over the 

ensuing years until August 2016. We briefly pause our discussion of the assessments and 

turn to Angel and Bender’s remediation efforts and restoration of the property. 

C. Restoration of the Property

As noted above, the circuit court denied the Petitioners’ petition for judicial review

of the abatement orders on June 13, 2012. While the appeal was pending before the Court 

of Special Appeals, and prior to the entry of the MDE consent order, the Petitioners 

apparently read the writing on the wall and began their efforts to comply with the abatement 

orders and remediate the property. In September 2012, the Petitioners’ engineers, Lane 

Engineering, Inc., met with regulators on site to begin work on a restoration plan to bring 

the property into compliance with the abatement orders. On January 3, 2013, Lane 

Engineering submitted a restoration plan to the County for its review. Nine months later—

on October 10, 2013—the County approved the restoration plan. Once the remediation 

plan was approved, Angel and Bender commenced remediation. The County approved the 

restored site on August 31, 2015. 
10

D. County’s Efforts to Collect Civil Fines

By 2016, the Petitioners had completed construction of the residence. Anticipating 

that the Petitioners would be seeking an occupancy permit from the County, the County 

filed a civil complaint in the Circuit Court for Talbot County titled “Complaint for 

Attachment Before Judgment, Interim and Permanent Charging Order, Preliminary and 

Permanent Injunctive Relief, and Entry of Money Judgment.” The complaint recited the 

enforcement history related to the clearing and driveway construction activities, and 

asserted that “[a]s a direct and proximate result of their willful, knowing, and fraudulent 

activities, and their multiple violations of the County’s laws protecting [the] environment 

and natural resources and the resulting environmental destruction, Bender and [Angel] owe 

substantial civil penalties to the County.” The complaint alleged that Bender’s 

administrative appeal of the abatement orders ended in February 2014 with the Court of 

Appeals’ denial of the petition for writ of certiorari, that Bender and Angel “elected . . . to 

procrastinate, delay and to refuse to remove the illegal driveway and correct the 

environmental destruction on the [p]roperty,” and that the abatement orders had not been 

satisfied until August 31, 2015, more than one and one-half years after the final judgment 

in the administrative appeal. 

The County attached to its complaint a chart titled “Outstanding and Unpaid Civil 

Penalties Assessed Against [Angel and Bender]” summarizing assessments that related 

back to the issuance of the initial assessments on December 8, 2009. Although all of the 

assessments had a “start date” of December 8, 2009, three of the assessments had an end 

date of October 10, 2013 (totaling 170 days for which the applicable daily fine was 
11

accruing), and three of the assessments had an end date of August 31, 2015 (totaling 743 

days for which the daily applicable fine was accruing).4 The chart reflected that the “total 

amount claimed by [the County]” in fines was $713,400. The complaint requested, among 

other things, that the court: (1) issue an attachment before judgment on the property for the 

amount of the fines sought; (2) issue a preliminary and permanent injunction enjoining the 

Petitioners from selling the property, or encumbering the property “until all outstanding 

civil penalties owed to the County have been reduced to final judgment and fully paid;” 

and (3) enter a money judgment in favor of the County against Bender and Angel “for all 

civil penalties found to be due at the conclusion of the pending administrative proceedings 

when all judicial proceedings have been exhausted or otherwise terminated[.]”

On October 18, 2016, the circuit court entered an order in response to the parties’ 

consent motion, in which the County agreed to issue the Petitioners’ certificate of 

occupancy for their residence in consideration of the Petitioners’ agreement to deposit the 

sum of $713,400 with the clerk of the circuit court “to be held as security to pay to Talbot 

County for civil penalties found to be due at the conclusion of the pending administrative 

proceedings, after all ensuing judicial reviews and appeals have been exhausted or 

otherwise terminated[.]” The court further ordered the case “stayed until the conclusion of 

the pending administrative proceedings and all ensuing judicial review and appeals have 

been exhausted or otherwise terminated[.]”

4 The end date for three of the assessments—October 10, 2013—coincides with the 

date that the County gave its final approval of the Petitioners’ restoration plan. The end 

date for the other three assessments—August 31, 2015—coincides with the date that the 

County gave its final approval of the restoration of the property. 
12

E. The Administrative Appeal of the Civil Penalties 

With their occupancy permit in hand, having deposited $713,400 in funds with the 

circuit court, in November 2016, Petitioners resubmitted the consolidated appeal of the 

assessments to the Board of Appeals. On April 24, 2017, the Board held its first hearing 

on the civil penalties appeal. It held five additional evidentiary hearings between May 

2017 and September 2017. At the first hearing, Petitioners’ counsel asserted, by motion, 

several legal arguments in support of Petitioners’ position that the County could not collect 

the assessments in the manner proposed by the County. Specifically, Petitioners’ counsel

argued that under TCC §§ 58-12 A.(3) and 20-6 B.(3),5the Petitioners’ filing of the petition 

5 Petitioners contend that the following provisions of the Talbot County Code 

operated to stay the accrual of daily fines during the pendency of its administrative appeal 

of the abatement orders. 

First, TCC § 1-14 supplies the following definition of enforcement action: 

ENFORCEMENT ACTION – Any suit, action, demand, monetary penalty, 

abatement order, or other administrative, civil, or criminal proceeding 

established by the Code and all decisions, judgements, degrees, convictions 

or penalties issued by any administrative agency or court to enforce the 

same. 

(Emphasis added). With respect to proceedings pending before the Talbot County Board 

of Appeals, TCC § 20-6 B.(3) provides as follows: 

An application for administrative appeal shall automatically stay all further 

proceedings to enforce compliance with the order, requirement, decision, or 

determination, and shall automatically stay all further subdivision, site plan, 

and related development reviews. There shall be no automatic stay when, in 

the judgment of the official having administrative authority to decide the 

question, a stay would cause immediate peril to life or property. 

(Emphasis added). Finally, TCC § 58-12 A.(3) provides as follows: 

 
13

for judicial review of the abatement orders operated as a stay of any enforcement action to 

enforce the abatement orders against the Petitioners. Petitioners’ counsel asserted that the 

assessments were imposed to force Petitioners’ compliance with the abatement orders, 

which the Code did not permit so long as the abatement orders were being challenged on 

appeal. Counsel also argued that Petitioners were entitled to a full evidentiary hearing prior 

to the imposition of the assessments. Petitioners’ counsel suggested that the County had 

“split[] its cause of action” by separating the assessments or penalties arising from the 

abatement orders from the abatement orders themselves. 

The County Attorney argued that, once the Board of Appeals made its decision 

upholding the abatement orders on December 2, 2009, the County was free to issue 

penalties and “assessed them” on the same date. He explained that the penalties began 

“accruing” on a daily basis as of December 8, 2009 in an attempt to encourage the 

Petitioners to begin restoration. The County Attorney introduced into evidence a copy of 

the former county code and explained that the “Board no longer had the same powers.” He 

explained that the procedure for administrative appeals had been changed, and that, as a 

result of these changes, the burden of proof shifted and “now require[s] that the [a]pplicant 

carries the burden of proof.” In response to questioning from the Board concerning 

An appeal stays all actions by the Chief Code Compliance Officer seeking 

enforcement or compliance with the order or decision being appealed, unless 

the Chief Code Compliance Officer certifies to the Board of Appeals that 

(because of facts stated in the certificate), in his/her opinion, such stay will 

cause imminent peril to life or property. In such a case, action by the Chief 

Code Compliance Officer shall not be stayed except by order of the Board of 

Appeals or a court upon application of the party seeking the stay. 
14

whether the delay in assessing civil penalties “could amount to a denial of substantive due 

process – being arbitrary and capricious,” the County Attorney responded that “case law 

indicated the county had considerable discretion in determining whether to assess any 

penalty[]” and that he did not believe that the penalties assessed in this case were excessive. 

After hearing the initial legal arguments presented by the Petitioners’ counsel and 

the County Attorney, the Board members discussed whether the County had the authority 

to issue daily assessments during the pendency of the appeal. Several Board members 

expressed doubt and concern over the County Attorney’s position. The Board Chairman, 

Paul Shortall, questioned whether the Board had jurisdiction to consider the matters raised 

in the appeal. Another member of the Board, Phillip Jones, commented that, although the 

monetary penalty was coercive and intended to induce compliance, “it is always a citizen’s 

right to take appeals[.]” He expressed concern that a citizen’s right to appeal could be 

chilled if daily penalties continued to accrue during the pendency of the appeal. He also 

added that the recent legislative changes to the Board’s rules of procedures and Code

provisions “stack the deck” in favor of the County, adding that the County’s filing fees to 

file an administrative appeal to the Board of Appeals are burdensome for most citizens.6 

After obtaining legal advice in a closed session, the Board reconvened and 

proceeded to conduct the evidentiary hearing. The Board deferred its ruling on whether 

6 The County’s filing fee for a Board of Appeals hearing is $750. Initially, the 

County charged Petitioners a filing fee of $4,500, representing a separate filing fee for each 

of the six assessments. The County ultimately agreed to consolidate the appeals and 

charged a single filing fee of $750. 
15

the assessments were stayed during the pendency of the appeal of the abatement orders

until after it received the evidence. 

The Board considered the testimony of several witnesses at the evidentiary hearing. 

Robert Graham, the CCCO, testified that he had been the enforcement officer for 14 years. 

He testified that, upon receiving a complaint, his typical practice is to visit the site, assess

the site for code violations, and write up abatement orders for any code violations. Mr. 

Graham explained that, if the property owner does not correct the violations as required by 

the abatement orders, he has the authority to issue a monetary penalty to “incentivize the 

property owner to correct the violation.” 

Mr. Graham acknowledged that the assessments that he issued to the Petitioners 

arose from the tree cutting and driveway violations that were the subject of the abatement 

orders. He admitted that his authority under the Code to issue assessments for civil fines

is discretionary—that he typically gives the property owner 30 days to correct the violation 

identified in the abatement orders prior to issuing assessments, and that he has the 

discretion to make the abatement period longer. He admitted that in this instance, it would 

have been impossible for the Petitioners to complete the work required under the abatement 

orders in 30 days. 

Sean Callahan, a principal with Lane Engineering, Inc., testified concerning the 

engineering firm’s efforts to resolve the violations on Bender and Angel’s behalf. Lane 

Engineering prepared the restoration plans, which were admitted into evidence. Mr. 

Callahan described the process for preparing the plans, the work involved, and the County’s 

timeline for approval of the plans, as well as the timeline for implementing the remediation 
16

plan. He testified that he met onsite with regulatory authorities in September 2012. He 

explained that the preparation of the initial plan took about six weeks and included a forest 

conservation plan, critical area mitigation plan, soil erosion and sediment control plan, and 

stormwater management plan. Field work was also involved, including surveying and

wetlands delineation. 

Mr. Callahan described the County’s approval process, which involves initial 

submission of the plans, technical review by County staff, comments and requests for 

revisions, the engineering firm’s incorporation of comments and revisions to the plans, and 

resubmission. He testified that the soil erosion and sediment control plan was submitted 

in October 2012, less than one month after the on-site meeting. He testified that the 

County’s review process took eight months. Mr. Lane also noted that the County selects 

the dates for replanting, which usually occur in the spring or fall. He explained that when 

the initial plans were submitted, it would have been possible to complete the plantings in 

the spring and fall growing seasons for the next calendar year, but because the plans were 

not immediately approved by the County, the plantings were not able to be completed in 

those seasons. The Board also heard testimony from Mr. Bridges, with Bridges Land 

Management, who performed some of the restoration work. Mr. Bridges described the 

work that his company performed on-site as part of the restoration work. Elisa DeFlaux, 

the Talbot County Environmental Planner, testified that, she was aware that under the 

language in the assessments, Petitioners were given six days to complete the restoration 

work before the fines commenced. She agreed that it would have been impossible to obtain 

approval of the restoration plan and completion of the work within that time period. She 
17

also acknowledged that a ten-month process for county review and approval of plans of 

this nature was normal. She agreed that the County establishes the planting completion 

dates, which in this case, would have involved the fall and spring growing seasons. She 

explained that the restoration is not complete until the plantings are installed and approved. 

On December 15, 2017, the Board issued its findings of fact and conclusions of law.

The Board concluded that: (1) the County had the authority to issue the civil penalties under 

the TCC; (2) under applicable provisions of the State Forest Conservation Act, NR § 5-

1612(d)(1), the Legislature had delegated to the County the authority to charge a penalty 

in an amount not to exceed $1,000 per day, with each day constituting a separate violation; 

and (3) the CCCO did not err in assessing the monetary penalty. However, the Board 

agreed with Angel and Bender that the civil penalties were stayed during the pendency of 

Bender and Angel’s administrative appeal. The Board concluded that, under the plain 

language of TCC §§ 58-12 A.(3) and 20-6 B.(3), Petitioners’ administrative appeal of the 

civil penalties, which was filed on December 29, 2009, stayed the accrual of the daily 

penalties authorized by TCC §§ 58-3. Accordingly, the Board determined that, although

the assessments were “valid and enforceable and fell within the statutory limits and that 

Mr. Graham acted properly” in issuing them, the daily assessments were only permitted 

from December 8, 2009 (the date under which the penalties commenced under the 

assessment notices), until Angel’s administrative appeal of the assessments, which was 

filed on December 29, 2009. 
18

F. Circuit Court Review of the Board’s Civil Penalties Decision

Neither side was happy with the Board’s decision on the civil penalties. On January 

16, 2018, the County filed a petition for judicial review of the Board’s decision. It argued 

that the Board erred in finding that the daily penalties were stayed after the appeal was filed 

on December 29, 2009. Angel and Bender filed a cross-petition, asserting that the Board 

erred in: (1) finding that the County had the authority to impose penalties for continuing 

violations; (2) upholding the penalties assessed; and (3) refusing to consider Angel’s due 

process claim.

7

 

After the submission of legal memoranda by the parties and a hearing, the circuit 

court issued a written decision. It affirmed the Board’s decision in part and reversed it in 

part. First, the court determined that the “Board did not err in denying [Angel’s] procedural 

due process challenge[,]” concluding that in a proceeding before a county board of zoning 

appeals, the applicant bears the burden of proof. Second, the court ruled that the County 

had the legal authority to impose penalties for continuing violations under TCC § 58-5 D. 

Third, the court upheld the Board’s determination that the penalties assessed by the CCCO 

were not arbitrary or capricious. Finally, the court determined that the Board erred in 

concluding that the accrual of the civil penalty assessments was stayed under the applicable 

provisions of the County Code. The circuit court determined that Angel and Bender were 

“liable for the full amount of the civil penalties as assessed by Talbot County[,]” that they 

7 The Board declined to consider the due process argument, concluding that the 

argument was barred by collateral estoppel because Bender and Angel had previously 

raised a due process claim in a separate board proceeding. 
19

owe, and the County “may seek to enforce [c]ivil [p]enalty [a]ssessments . . . in the amount

of $713,400[.]” 

Angel and Bender filed an appeal to the Court of Special Appeals. In an unreported 

opinion, the Court of Special Appeals affirmed the circuit court judgment in part, and 

reversed it in part, vacating the circuit court’s entry of judgment with respect to the civil 

penalties totaling $713,400, with instructions that the case be remanded to the Board of 

Appeals for further proceedings. Angel Enters. Ltd. P’ship v. Talbot County, No. 2842, 

Sept. Term, 2018, 2020 WL 4882450 (Md. Ct. Spec. App. Aug. 20, 2020). 

After undertaking a plain language analysis of the pertinent provisions of the Talbot 

County Code, the court agreed with the circuit court’s conclusion that the Board erred in 

determining that the daily assessment of penalties was stayed. Id. at *9. However, the 

Court of Special Appeals determined that the circuit court erred in imposing penalties in 

the amount of $713,400 because the Board “did not make a factual finding in this regard[.]” 

Id. The intermediate appellate court stated that, 

although we affirm the circuit court ruling that the continued penalties were 

not stayed by the December 29, 2009 appeal, we vacate the portion of the 

judgment providing that [Angel and Bender] owe $713,400. The number of 

days that the violations continued, and the total amount due, is a 

determination to be made in a separate proceeding.

Id.

The intermediate appellate court rejected Angel and Bender’s due process 

arguments, concluding that Bender and Angel had a “meaningful opportunity to be heard, 

where they presented their evidence and had the opportunity to rebut the County’s 

evidence.” Id. at *10. The Court of Special Appeals also rejected Bender and Angel’s 
20

argument that the County lacked the authority to impose continuing violation penalties. 

Specifically, the court concluded that the County’s code provisions that permitted civil 

fines for continuing violations were consistent with the State law provisions authorizing 

local jurisdictions to establish civil fines for violations of a local forest conservation 

program and critical area program. Id. at *13–14. 

The Court of Special Appeals observed, however, that there is a legal distinction 

between the County’s legal authority generally under State law to assess a daily civil 

penalty for a violation of a code provision, and the County’s authority in this instance to 

impose an ongoing daily penalty for the specific six code violations that were the subject 

of the assessments. Concerning the latter question—whether the County had the authority 

to impose daily assessments for code violations here—the Court of Special Appeals 

determined that the answer depended upon the specific violation in question, and the 

language of the code that governed the particular violation. Id. at *14–15. The 

intermediate appellate court observed that neither the County nor the Board had undertaken 

this analysis, and that the Board simply “limited its assessment of the issue [to] whether 

the County had the legal authority to impose penalties for continuing violations” under the 

Express Powers Act, Local Government Article, Title 10. Id. at *15 (emphasis added).

Because the Board did not undertake that determination, the intermediate appellate court 

stated that it would “vacate the circuit court’s ruling in this regard and remand for further 

consideration of this issue.” Id. Finally, the Court of Special Appeals rejected Bender and 

Angel’s argument that the assessments were duplicative or arbitrary and capricious. Id. at 

*16–17. The mandate issued by the Court of Special Appeals remanded the case to the 
21

circuit court “with instructions to remand the case to the Board for further proceedings 

consistent with this opinion.” (Capitalization omitted). 

Petitioners filed a petition for writ of certiorari to consider the following questions: 

1. Did the Board violate Petitioners’ due process rights by requiring 

Petitioners to bear the burden of proof (including the burdens of 

persuasion and going forward with the evidence) to explain the County’s 

basis for its actions and also to disprove the propriety and amount of the 

County’s civil penalties? 

2. Did the Board err in imposing penalties on a daily, continuing basis, 

including for days where no violative conduct occurred, and while 

Petitioners were exercising their right to challenge the County’s 

allegations and attempt to impose penalties?

3. Did the Board err in finding that Talbot County has the legal authority to 

impose continuing violation penalties where the Express Powers Act 

limits the County’s ability to impose fines and does not authorize 

penalties for continuing violations? 

4. Did the Board err in determining that the civil penalties imposed by 

Talbot County were stayed upon the filing of Petitioners’ appeal pursuant 

to Code §§58-12A(3) and 20-6B(3)?

5. Are the civil penalties sought by the County unconstitutionally excessive 

in violation of Article 25 of the Maryland Declaration of Rights and the 

Eighth Amendment to the United States Constitution? 

The Respondent filed a conditional cross-petition for writ of certiorari, requesting 

this Court answer the following additional questions:

1. Whether the assessment of daily penalties for zoning violations 

continue[s] for each day between the violation date and date upon which 

such violation is abated? . . . or instead whether the penalties only accrue 

on the dates upon which the illegal actions occurred?

2. Whether an appellate court should decide an issue of judicial estoppel that 

occurred during the judicial review period after an administrative 

decision (and not remand it to the administrative body for review)?
22

We granted certiorari on both the petition and the cross-petition.

During this Court’s oral arguments, we asked counsel questions concerning whether 

the Talbot County Board of Appeals had subject matter jurisdiction under the Express 

Powers Act, Local Government Article, Title 10, Subtitle 2 to review the CCCO’s

assessment of civil fines or penalties. Following oral argument, we entered an order 

inviting the parties to submit supplemental briefing on the following question: 

Whether the Talbot County Board of Appeals has subject matter jurisdiction 

under The Express Powers Act, Local Governmental Article, (“LG”) Title 

10-101, et seq., (and in particular, the jurisdictional parameters of charter 

county boards of appeal established by LG § 10-305(b)), to review or 

adjudicate assessments of civil penalties or fines by the county code 

compliance enforcement officer? 

In response to our invitation, Petitioners and Respondent each submitted 

supplemental briefing on this issue. For the reasons set forth below, we conclude that the 

Talbot County Board of Appeals lacked subject matter jurisdiction to review the CCCO’s 

assessments of civil penalties, and that the assessments are invalid and unenforceable. 

Because we determine that the Board of Appeals lacked authority to review the 

assessments, we do not reach the issues presented by the Petitioners and the Respondent in 

their petition and cross-petition.8 We shall vacate the judgment of the circuit court and

issue a mandate with instructions that the Board of Appeals dismiss the assessments. 

8 Given that we have determined that the Board of Appeals lacked jurisdiction to 

consider the assessments in the first instance, and our dismissal of the case, we do not reach 

the merits of the remaining issues upon which certiorari was granted. Our opinion should 

not be considered as either agreeing or disagreeing with the legal determinations by the 

circuit court and the Court of Special Appeals in its unreported opinion on matters that we 

have not considered. To the extent that our dismissal of this case leads to further 
23

II. 

Discussion

In their petition for writ of certiorari, Petitioners raise several issues related to 

Talbot County’s process for assessing and adjudicating civil fines or penalties for 

violations of the Talbot County Code, and the County’s legal authority to impose civil 

penalties in the manner outlined in the Code. The Petitioners’ questions, and the questions 

posed by the Respondent in its cross-petition, all relate to the process for assessing civil 

penalties established by the Talbot County Code for code violations, which starts with an 

assessment notice issued by the CCCO, and provides an administrative right to appeal to 

the Talbot County Board of Appeals.

The questions presented here involve questions of law, which we consider de novo. 

Talbot County v. Miles Point Prop., LLC, 415 Md. 372 (2010). Although ordinarily we do 

not consider a matter that has not been raised in a petition for writ of certiorari, see

Maryland Rule 8-131(b), that rule is not absolute. The issue raised by this Court involves 

whether the Board of Appeals had subject matter jurisdiction to consider an appeal of civil 

fines imposed by assessment notices. “Lack of subject matter jurisdiction may be raised 

at any time, including initially on appeal. Additionally, the issue of subject matter 

jurisdiction need not be raised by a party, but may be raised by a court sua sponte.” Cty. 

Council of Prince George’s Cty. v. Dutcher, 365 Md. 399, 405 n.4 (2001) (citations 

omitted); see also Duffy v. Conaway, 295 Md. 242, 254–55 n.8 (1983) (observing that 

proceedings between these parties, they will be free to argue their respective legal positions 

on the matters that were not considered herein. 
24

subject matter “jurisdiction is a matter which, if noticed, will be addressed by a court even 

though it was not raised by any of the parties[]”) (citations omitted). 

For the reasons set forth herein, we hold that the Talbot County Board of Appeals 

lacks subject matter jurisdiction to consider administrative appeals of civil fines. The 

General Assembly has vested original jurisdiction in the Maryland courts for the 

adjudication of civil fines that are sought to be imposed by a charter county under the 

pertinent provisions of State law. Consistent with the applicable provisions of State law 

that confer original jurisdiction in the Maryland courts to adjudicate civil penalties arising 

from code violations enacted by a charter county, the General Assembly has not granted 

jurisdiction to a board of appeals established by a charter county to conduct an 

administrative review of assessments of civil penalties. 

As we recently explained in K. Hovnanian Homes of Maryland, LLC v. Mayor of 

Havre de Grace, 472 Md. 267, 292 (2021), when a party is challenging the authority of a 

local government to take a particular action, it is important to strip away the labels and 

consider the particular governmental action that is sought to be undertaken. First, we

identify the precise nature of the governmental action in question. Id. Second, we 

determine whether the local government “has the legal authority to undertake the action, 

and if so, whether the contemplated action was correctly undertaken consistent with that 

grant of authority.” Id. (emphasis in original). 
25

A. Nature of the Governmental Action—Imposition and Adjudication of Civil 

Penalties

In this case, the governmental action at the center of the controversy consists of the 

CCCO’s issuance of six assessment notices purporting to assess civil penalties arising 

from: (1) the Petitioners’ unlawful tree clearing and driveway construction activities in 

2006; and (2) the Petitioners’ “ongoing failure to correct, discontinue, or abate ongoing” 

violations as required by the two administrative abatement orders that were the subject of 

the initial administrative appeal. On their face, the assessment notices are exactly what 

they are described to be—assessments of civil penalties or monetary fines. 

Having identified the nature of the governmental action—we consider whether the 

County’s assessment of civil penalties comports with the authority granted to the County 

by the Maryland Constitution, State law, and, finally, local laws. Although the code 

enforcement officer has the authority to seek the imposition of civil penalties for code 

violations, we determine that the local county administrative procedure for the assessment 

of civil penalties is inconsistent with the applicable provisions of State law that confer 

original jurisdiction over the adjudication of civil fines of this nature in the Maryland 

courts. Moreover, we determine that the County’s code provisions that purport to expand 

the Board of Appeals’ jurisdiction to encompass administrative appeals of civil fines are

inconsistent with State law. 
26

B. Statutory Authority for the Imposition of Civil Penalties by a Charter 

County for County Code Violation

We start our analysis with Article XI-A of the Constitution of Maryland (“the Home 

Rule Amendment”),9and the Express Powers Act of the Maryland Code, Local 

Government Article § 10-101, et seq. Talbot County has elected a charter form of local 

government, deriving its constitutional source of authority from Article XI-A, Section 2 of 

the Maryland Constitution, which provides that “[t]he General Assembly shall by public 

general law provide a grant of express powers for such County or Counties as may 

thereafter form a charter under the provisions of this Article.” Md. Const. art. XI-A, § 2. 

The Home Rule Amendment mandated that the General Assembly enumerate and 

delegate certain powers, which may be exercised by counties electing a charter form of 

government. Ritchmount P’ship v. Bd. of Supervisors of Elections for Anne Arundel Cty.,

283 Md. 48, 57 (1978). In compliance with its constitutional mandate, the Legislature 

enacted the Express Powers Act, “which . . . endows charter counties with a wide array of 

legislative and administrative powers[.]” Id.; see also Miles Point Prop., LLC, 415 Md. at

384 (explaining that “[t]he Express Powers Act is the General Assembly’s fulfillment of 

this constitutional command[]”); Anne Arundel County v. Bowen, 258 Md. 713, 715 (1970) 

(observing that the Express Powers Act was enacted “[i]n obedience to [Article XI-A’s] 

mandate”); Cty. Council for Montgomery Cty. v. Inv’rs Funding Corp., 270 Md. 403, 418 

9 For a history of the Home Rule Amendment, Article XI-A of the Maryland 

Constitution, see Ritchmount Partnership v. Board of Supervisors of Elections for Anne 

Arundel County, 283 Md. 48 (1978). 
27

(1973) (stating that the purpose of the Act “is to share with the counties, within well

delineated limits the legislative powers formerly reserved to the General Assembly[]”). 

Prior to October 1, 2013, enumerated express powers that were granted to and conferred 

upon charter counties were codified in Maryland Code, Article 25 A, § 5 (1957, 2011 Repl. 

Vol). Former Article 25A, § 5 was re-codified without substantive change as part of the 

code revision and creation of the Local Government Article (“LG”) by ch. 119 of 2013 

Laws of Maryland. 

Under the Express Powers Act, charter counties have the authority to exercise their 

express powers by legislative enactment. See LG § 10-102(a). In addition to the laundrylist of enumerated express powers identified in the Express Powers Act (see LG § 10-301, 

et seq.),10 the Express Powers Act grants a charter county council additional legislative 

powers to pass ordinances or resolutions that “may aid in maintaining the peace, good 

government, health, and welfare of the county[,]” but only to the extent that the exercise of 

such powers is not “inconsistent with State law[.]” LG § 10-206(a); see also LG § 10-

206(b) (“A county may exercise the powers provided under this title only to the extent that 

the powers are not preempted by or in conflict with public general law.”). 

10 The specific enumerated powers set forth in the Express Powers Act, LG § 10-

102, et seq. grant charter counties the authority to adopt local laws on a broad range of 

topics including: the establishment of a county board of appeals (LG § 10-305); the 

establishment of election districts and precincts (LG § 10-306); the establishment of a 

competitive bidding process (LG § 10-310); acquisition of property (LG § 10-312); 

imposition of taxes (LG § 10-313); waste disposal, soil erosion, and building construction 

standards (LG § 10-317); fences (LG § 10-318); public parks (LG § 10-323); planning and 

zoning (LG § 10-324); historic preservation (LG § 10-325); public health nuisances (LG 

§ 10-328); and animals (LG § 10-329). 
28

Where a charter county enacts local laws on any matter authorized by the Express 

Powers Act, the Act also grants the county the authority to enforce its laws by civil and 

criminal fines. Specifically, LG § 10-202(b) provides that: “[a] county may provide for 

the enforcement of an ordinance, a resolution, a bylaw, or a regulation adopted under this 

title: (1) by civil fines not exceeding $1,000; or (2) by criminal fines and penalties not 

exceeding $1,000 and imprisonment not exceeding 6 months.” (Emphasis added). 

Where a charter county adopts civil fines or penalties for violations of its ordinances

that are adopted pursuant to the Express Powers Act, the Legislature has conferred 

exclusive, original jurisdiction over the adjudication of such matters in the courts. 

Specifically, Courts and Judicial Proceedings Article (“CJ”) § 4-401 confers upon the 

Maryland District Court, “exclusive original civil jurisdiction in: . . . [a] proceeding for 

adjudication of: . . . [a] violation of an ordinance enacted: . . . [b]y a charter county for 

which a civil penalty is provided under § 10-202 of the Local Government Article[.]”

(Emphasis added). The District Court’s exclusive original jurisdiction over the 

adjudication of civil penalties is subject to the provisions of CJ § 4-402(d), which grants 

concurrent jurisdiction in the circuit court, if the amount in controversy exceeds $5,000, 

exclusive of prejudgment interest or attorney’s fees, if allowable. 

In addition to the express powers enumerated under the Express Powers Act, 

elsewhere under State law, the Legislature has granted local governments additional 

powers. For example, and as particularly pertinent here, the Legislature requires that a 

local government with planning and zoning authority adopt a forest conservation program, 

consistent with standards established by State law, which must be approved by the 
29

Department of Natural Resources (“Department”) (“the Forest Conservation Act”). See 

Maryland Code, Natural Resources Article (“NR”) § 5-1603. The enforcement provisions 

of the Forest Conservation Act, NR § 5-1612, grant enforcement authority to the 

Department, as well as any local authority that has adopted a forest conservation program. 

The penalty provisions for violations of the Forest Conservation Act are similar in nature 

to the civil penalties authorized by the General Assembly under the Express Powers Act

for violations of ordinances enacted by charter counties: 

(1) A person who violates any provision of this subtitle [Forest Conservation 

Act] or any regulation, order, plan, or management agreement under this 

subtitle is liable for a penalty not exceeding $1,000 which may be recovered 

in a civil action brought by the Department or a local authority. Each day a 

violation continues is a separate violation under this subtitle.

(2) The court may issue an injunction requiring the person to cease the 

violation and take corrective action to restore or reforest an area. 

NR § 5-1612(d) (emphasis added).11

In addition to adopting a local forest conservation program, the Legislature also 

requires that local governments with planning and zoning powers over any property which 

is located within the Chesapeake Bay Critical Area adopt a critical area protection program 

approved by the Critical Area Commission for the Chesapeake and Atlantic Coastal Bays 

11 To assist local governments with the development of a local forest conservation 

program, the Department of Natural Resources has promulgated, by regulation, a Model 

Forest Conservation Ordinance. See Code of Maryland Regulations (“COMAR”) 

08.19.03.01. The enforcement provisions in the Model Ordinance, which provide for the 

establishment “of a penalty not to exceed $1,000, which may be recovered in a civil action 

brought by the Department[,]” are identical to the enforcement provisions for a violation 

set forth in NR § 5-1612. 
30

(“Critical Area Commission”). See NR § 8-1801, et seq. (“Critical Area Laws”). The 

Critical Area Law, NR § 8-1815(a), establishes the following enforcement provisions: 

(2)(i) A person who violates a provision of an order, permit, plan, local 

program, this subtitle, or regulations adopted, approved, or issued under the 

authority of this subtitle shall be: 

1. Subject to prosecution or suit in circuit court or District Court by 

the chairman or local authorities, who may invoke the sanctions 

and remedies afforded by State or local law; 

2. Guilty of a misdemeanor; and 

3. On conviction in a court of competent jurisdiction, subject to a fine 

not exceeding $10,000 or imprisonment not exceeding 90 days or 

both, with costs imposed in the discretion of the court. 

(ii) A criminal prosecution or a suit for a civil penalty for violation of a

provision of an order, permit, plan, local program, this subtitle, or 

regulations adopted, approved, or issued under the authority of this subtitle 

shall be instituted within 3 years after the Commission or the local authorities 

in fact knew or reasonably should have known of the violation. 

(Emphasis added). In addition to the general enforcement provisions set forth above, the 

Critical Area Law also establishes additional, supplemental penalties and remedies for 

damages occasioned by tree cutting or clearing activities in the critical area in violation of 

an approved local program. See NR § 8-1815.1. These laws permit a local jurisdiction, 

the Critical Area Commission, or the Office of the Attorney General to bring an action in 

the circuit court to require, among other things, that the violator replant trees or for damages 

“[t]o be assessed by a circuit court in an amount equal to the estimated cost of replanting 

trees.” NR § 8-1815.1(b). 

In summary, the Express Powers Act, LG § 10-202, grants charter counties the 

authority to impose civil fines for violations of its ordinances enacted pursuant to the 
31

exercise of its express powers. The Legislature has conferred original jurisdiction for the 

adjudication of such penalties and fines in the District Court, see CJ § 4-401(10)(vi)(1), 

with concurrent jurisdiction in the circuit courts where the amount exceeds $5,000, see CJ 

§ 4-402(d). In addition to powers granted under the Express Powers Act, and as pertinent 

here, where the Legislature has required the adoption of a local conservation program and 

a critical area program, the Legislature has created similar enforcement provisions, 

authorizing the assessment of civil penalties which are brought “as a civil action” (in the 

case of a forest conservation violation) or as “suit in circuit court or District Court” (in the 

case of a critical area violation, in addition to potential criminal prosecution). Under the 

applicable provisions of State law that authorize a charter county to impose civil fines for 

violations of its ordinances and local laws, including laws related to violations of a local 

forest conservation program and critical area program, such laws provide for the 

adjudication of civil fines and penalties within the original jurisdiction of the Maryland 

courts. 

C. Enforcement Provisions for Violations of Talbot County Code—Talbot 

County’s Establishment of an Administrative Process for the Imposition 

and Adjudication of Civil Penalties 

In accordance with the authority granted under the Home Rule Amendment, the 

Express Powers Act, and other provisions of State law which grant the authority to enact 

local laws, Talbot County has adopted a Charter and a County Code. The Talbot County 

Code represents a compilation of its ordinances and public local laws, consisting of 

Chapters 1 through 190. TCC § 1-1. In 2007, the Talbot County Council enacted Bill No. 

1108, which adopted a new Chapter 58 to the Talbot County Code, which purported to 
32

create unified code enforcement procedures applicable to the Talbot County Code, 

including provisions for the accrual of daily civil penalties for continuing code violations, 

and a county administrative process for the imposition of civil fines and penalties by the 

code compliance officer, with the right to appeal to the Talbot County Board of Appeals.12 

Chapter 58, titled “Enforcement of Code,” establishes the enforcement provisions 

available to the County, as well as the penalties for violations of the County Code.13 TCC 

§ 58-3 provides that each violation of the Code that occurs and “each calendar day that a 

violation continues shall be a separate offense. Any person who violates any provision of 

12 The full title of Bill No. 1108 from the 2007 Legislative Session of the Talbot 

County Council is: 

A BILL TO CREATE UNIFIED CODE ENFORCEMENT PROCEDURES 

APPLICABLE TO THE TALBOT COUNTY CODE, WITH CERTAIN 

CHAPTERS EXCEPTED, INCLUDING PENALTIES FOR DAILY AND 

CONTINUING VIOLATIONS, TO DESCRIBE PERSONS RESPONSIBLE 

FOR VIOLATIONS, TO PROVIDE FOR CIVIL PENALTIES, CIVIL 

INFRACTIONS, ADMINISTRATIVE ABATEMENT ORDERS, 

INJUNCTIVE RELIEF, AND NON-ISSUANCE, NON-RENEWAL, 

SUSPENSION OR REVOCATION OF PERMITS, TO MAKE ALL 

REMEDIES CUMULATIVE, TO PROVIDE FOR RECOUPMENT OF 

ENFORCEMENT COSTS, TO PROVIDE FOR APPEALS TO THE 

TALBOT COUNTY BOARD OF APPEALS, AND TO AMEND CHAPTER 

10, ENTITLED “ALARMS” § 10-6 “INSPECTIONS AND 

ENFORCEMENT, VIOLATIONS AND PENALTIES” OF THE TALBOT 

COUNTY CODE, TO GRANT THE CHIEF CODE COMPLIANCE 

OFFICER AUTHORITY TO ENFORCE SAID CHAPTER, AND 

GENERALLY RELATING TO ENFORCEMENT PROCEDURES UNDER 

THE TALBOT COUNTY CODE

13 The enforcement provisions set forth in Chapter 58 “apply to every chapter, 

article, and section of [the] Code except Chapter 8 (Airport); Chapter 11 (Alcoholic 

Beverages); Chapter 15 (Animals); Chapter 102 (Parks and Recreation); Chapter 121 

(Public Landings); and Chapter 159 (Smoking and Tobacco Products).” TCC § 58-1.
33

this Code shall be subject to separate fines, orders, sanctions, and civil penalties for each 

offense.” The Code provides that “each offense shall be punishable by a civil penalty of 

up to $1,000 per calendar day[]” unless a different amount is established under the Code. 

TCC § 58-5 A, C. As the title of the original 2007 bill reflects, instead of providing for the 

adjudication of civil penalties for code violations by the courts, Chapter 58 establishes an 

administrative process for the imposition of civil penalties. As set forth below, the 

County’s administrative process for the imposition of civil penalties is extensive and 

provides only limited review by the circuit court in the form of a petition for judicial 

review. 

The Code designates a CCCO to enforce the provisions of the Code. TCC § 58-2. 

The Code states that “[t]he amount of a civil penalty shall be administratively imposed by 

the [CCCO] by written notice.” TCC § 58-5 A. (Emphasis added). The CCCO is vested 

with the authority to determine the amount of the civil penalty, which “shall be determined 

per calendar day[,]” after considering the following factors: “(1) [t]he severity of the 

violation for which the penalty is to be assessed; (2) [t]he presence or absence of good 

faith of the violator; (3) [a]ny history of prior violations.” Id. 

The Code requires that the CCCO send a written “notice of violation and assessment 

of a civil penalty[,]” which shall include: 

(1) Each alleged violation, including a citation to the section of the Talbot 

County Code allegedly violated;

(2) Classification of each alleged violation as a continuing or 

noncontinuing violation; 
34

(3) Separate assessment of a civil penalty for each violation, and a 

separate daily assessment for each continuing violation; 

(4) Notice of the right to request administrative review before the Hearing 

Officer to evaluate the amount(s) of civil penalties; and 

(5) Notice of the right to file an appeal with the Board of Appeals. 

TCC § 58-5 B. The Code provides for the imposition of civil penalties for each calendar 

day that a violation continues, with no requirement that the County provide additional 

“assessments, notice, or hearings.” TCC § 58-5 D. Additionally, through the use of the 

word “shall,” the TCC seems to require the imposition of a daily fine by rote computation: 

“The total amount payable for continuing violations shall be the amount assessed per 

calendar day for each violation multiplied by the number of calendar days that each 

violation has continued.” Id. (Emphasis added).14 

If the amount of the civil penalties claimed by the County does not exceed $5,000, 

the alleged violator has the right to a hearing before a hearing officer appointed by the 

county manager (and subject to the approval of the County Council), who may “decrease, 

increase, or confirm the amount of the civil penalty.” TCC § 58-2 B. TCC § 58-2 C 

provides that the Talbot County “Board of Appeals shall have exclusive jurisdiction to 

14 The County Attorney confirmed this interpretation by advising the Board that 

under the TCC, the “civil penalty continues to operate with no further enforcement action 

required. There’s no further action required by the county, by the County code officer. It 

continues to accrue by operation of law.” 
35

review civil penalties claimed by the County in excess of $5,000 cumulatively.” (Emphasis 

added).15 

D. Talbot County’s Code Provisions—That Purport to Establish an 

Administrative Process for the Imposition of Civil Penalties with a Right to 

an Administrative Appeal to the Board of Appeals—are Ultra Vires and 

Inconsistent with State Law

The Talbot County Code provisions that establish a procedure for the administrative 

imposition and adjudication of civil fines by assessment notices issued by a CCCO, with a 

right to an administrative appeal to the Talbot County Board of Appeals, are inconsistent 

with the applicable provisions of State law, which vest original jurisdiction in the courts 

for the adjudication of civil penalties established by a charter county in the exercise of its 

express powers, as well as in the exercise of additional powers authorized by the Forest 

Conservation Act and the Critical Area Law. See, e.g., CJ §§ 4-401(10)(vi)(1), 4-402(d) 

(establishing exclusive original jurisdiction for the adjudication of penalties for violations 

arising under a charter county’s exercise of express powers in the District Court unless the 

amount in controversy exceeds $5,000, in which case the trial courts of general jurisdiction 

15 We observe that, in addition to the administrative process for the assessment of 

civil penalties, the County Code also provides for the enforcement for the provisions of its 

code by municipal infraction. See TCC § 58-6 (“In addition to other remedies, violations 

of this Code may be prosecuted as municipal infractions.”). The County Code specifically 

incorporates the provisions of Local Government Article (“LG”) § 6-102, which govern 

the process for municipal infractions. Unlike the administrative process that the County 

has established for assessments of civil penalties (with limited judicial review after an 

administrative appeal), the municipal infraction process is undertaken pursuant to the 

original jurisdiction of the District Court. LG § 6-101, et seq. The State Laws governing 

municipal infractions set forth a comprehensive process for the imposition of civil fines 

not exceeding $1,000, including the issuance of a citation with a summons, an election to 

stand trial, and the process and proceeding for adjudication by the court. Id. 
36

have concurrent jurisdiction); see also NR § 5-1612 (authorizing recovery of civil fines for 

violations of a local forestation program in a civil action brought by a local authority)

(emphasis added); NR § 8-1815(a) (authorizing “prosecution or suit in circuit court or

District Court” for fines and penalties related to violations of a local critical area program) 

(emphasis added). 

The provisions of the Talbot County Code that purport to establish a right to 

administrative appeal of a civil assessment in the Talbot County Board of Appeals are also 

inconsistent with the jurisdictional limitations of a charter county board of appeals under 

the Express Powers Act set forth in LG § 10-305(a)(1). Under the Express Powers Act, a 

charter county may enact local laws to provide for the establishment of a county board of 

appeals, whose members shall be appointed by the local legislative body. LG § 10-

305(a)(1). Where a charter county elects to establish a board of appeals, the Express 

Powers Act, LG § 10-305(b), also sets the jurisdictional parameters of the board as follows: 

The county board of appeals may have original jurisdiction or jurisdiction 

to review the action of an administrative officer or unit of county government 

over matters arising under any law, ordinance, or regulation of the county 

council that concerns:

(1) an application for a zoning variation or exception or amendment of a 

zoning map; 

(2) the issuance, renewal, denial, revocation, suspension, annulment, or 

modification of any license, permit, approval, exemption, waiver, 

certificate, registration, or other form of permission or of any adjudicatory 

order; or 

(3) the assessment of any special benefit tax. 
37

(Emphasis added). After considering a matter within its jurisdiction, the county board of 

appeals is required to file an opinion “that shall include a statement of facts found and the 

grounds for the decision.” LG § 10-305(c). Any person aggrieved by a decision and a 

party to the proceeding before the county board of appeals may seek judicial review by the 

circuit court. LG § 10-305(d). Any party to the circuit court proceeding who is aggrieved 

by the decision in the circuit court may appeal to the Court of Special Appeals in the same 

manner provided for in civil cases.16 Id. 

Under the plain language of LG § 10-305(b), the jurisdiction conferred upon a local 

board of appeals by the Legislature does not include original jurisdiction or administrative 

adjudicatory review of civil fines or penalties or other civil assessments. The County 

argues that it has the authority under the Express Powers Act to confer jurisdiction upon 

its Board of Appeals to consider civil assessments because the assessments issued by the 

CCCO constitute “adjudicatory orders.” We disagree. 

When statutory terms are not defined in a statute, “we may consult a dictionary and 

give words their ordinary meaning.” Balt. City Det. Ctr. v. Foy, 461 Md. 627, 645 (2018). 

“Adjudicate” is defined as “to deem or pronounce to be[.]” Adjudicate, Garner’s 

Dictionary of Legal Usage (3d ed. 2011). “Order” is defined as “a command or 

16 Of course, one of the fundamental tenets of administrative law is that judicial 

review of a matter arising under the jurisdiction of an administrative agency is different 

from a matter arising under the original jurisdiction of the courts. “Judicial review of 

administrative agency action is narrow.” United Parcel Serv., Inc. v. People’s Counsel for 

Balt. Cty., 336 Md. 569, 576 (1994). “A court’s role is limited to determining if there is 

substantial evidence in the record as a whole to support the agency’s findings and 

conclusions, and to determine if the administrative decision is premised upon an erroneous 

conclusion of law.” Id. at 577 (citations omitted). 
38

direction[.]” Order, Garner’s Dictionary of Legal Usage (3d ed. 2011). The assessments 

are not adjudicatory orders—they are not pronouncements by the CCCO that command or 

direct the Petitioners to take a specific action. Rather, the assessments issued to the 

Petitioners purported to enforce the abatement orders by imposing a daily civil penalty 

until such time as the Petitioners complied with the separately issued orders.

17

 To 

understand the difference between adjudicatory orders and civil assessments, one need look 

no further than the face of the abatement orders that were issued by the CCCO, which were

“adjudicatory orders”

18—they directed the Petitioners to take remedial action to correct the 

violations, specifying the precise manner for the correction of the violations.

Moreover, if we were to accept the County’s argument that the assessments 

constituted “adjudicatory orders” within the subject matter jurisdiction of the Board of 

Appeals, such an interpretation would be inconsistent with the other statutory provisions,

described supra, which confer original jurisdiction over the adjudication of civil penalties 

and fines in the Maryland courts. We will not adopt an interpretation that is flatly 

inconsistent with other statutory provisions that explicitly address this subject matter. See,

e.g., Immanuel v. Comptroller of Maryland, 449 Md. 76, 87 (2016) (“[I]f two acts can 

reasonably be construed together, so as to give effect to both, such a construction is 

17 At the Board of Appeals hearing, the County Attorney made this very point by 

noting that “the civil penalties that were issued in this case were intended to enforce the 

obligations in the abatement order[s].” (Emphasis added). 

18 In contrast to the assessments, the abatement orders constituted adjudicatory 

orders that were subject to administrative review by the Board of Appeals. 
39

preferred, and the two should be construed together to be interpreted consistently with their 

general objectives and scope.”).

III.

Conclusion

Talbot County does not have the authority to expand the jurisdiction of its Board of 

Appeals beyond the jurisdictional limits established by the General Assembly. 

Accordingly, it lacks the authority to vest its Board of Appeals with administrative review 

of civil penalties. Because this matter originated in the Board of Appeals, we shall vacate 

the judgment and direct that the case be dismissed. Additionally, we hold that the 

assessment notices issued by the CCCO that purported to assess civil penalties subject only 

to administrative review by the Board of Appeals are facially invalid and unenforceable. 

We further hold that, to the extent that Chapter 58 of the Talbot County Code 

establishes a process for the administrative assessment of civil penalties that is inconsistent 

with the applicable provisions of State law that confer original jurisdiction in the courts for 

the adjudication of civil fines and penalties, such provisions of the Talbot County Code are 

ultra vires and void. 

JUDGMENT OF THE COURT OF 

SPECIAL APPEALS VACATED; CASE 

REMANDED TO THAT COURT WITH 

INSTRUCTIONS TO VACATE THE 

CIRCUIT COURT’S JUDGMENT AND TO 

REMAND TO THE CIRCUIT COURT; 

WITH FURTHER INSTRUCTIONS TO 

THE CIRCUIT COURT TO REMAND TO 

THE BOARD OF APPEALS; WITH 

FURTHER INSTRUCTIONS THAT THE 

BOARD VACATE ITS DECISION, AND 
40

DISMISS THE ASSESSMENTS. COSTS IN 

THIS COURT AND THE COURT OF 

SPECIAL APPEALS TO BE DIVIDED 

EQUALLY BETWEEN THE PARTIES.