Posted by: Patricia Salkin | January 27, 2013

MD Court of Appeals Find No Standing to Challenge PUD That would Include a Wal-Mart

Ben Ray and Brendan Coyne (“Plaintiffs”) live in residences approximately 0.4 miles away (2,212 feet for Ray and 2,002 feet for Coyne) from a planned unit development (“PUD”) that is anticipated to bring in twenty national retailers and house seventy to eighty apartment units. Plaintiffs filed a Petition for Judicial Review in an attempt to block its construction. The City Council and Mayor of Baltimore responded by filing motions to dismiss alleging that Plaintiffs lacked standing to challenge the PUD. Both plaintiffs claim that the construction of the PUD will adversely affect the character of each of their neighborhoods, mainly due to the addition of a Wal-Mart store. Plaintiffs claim that the Wal-Mart will force local business to close and lower the wages of neighborhood workers, thereby causing fewer people to be employed. This in turn will cause those people to neglect maintaining their properties which will decrease the overall values of houses in the area. Ray also claims that the Wal-Mart store will make his neighborhood more dangerous due to the increase in traffic through the narrow streets.

In order to have standing, a person’s property interest “must be such that he is personally and specially affected in a way different from that suffered by the public generally.” While Coyne produced no evidence showing that he can see or hear the PUD from his residence, Ray stated that he could view the PUD from his bathroom window during the winter months when there is no foliage on the trees, and can hear the PUD when his bathroom window is open. The City Court granted the motions to dismiss for lack of standing because neither plaintiff had shown any special interest or damage unique to themselves; the types of views, noises, traffic congestion, and worries about local businesses were not circumstances “unique or different from many other Baltimore residents among the general public.” Additionally, the court noted that Plainitffs would not qualify for prima facie aggrieved status because their properties were not adjoining, confronting or nearby property owners to the PUD. The Court of Special Appeals affirmed for the same reasons.

Under Maryland Code, any aggrieved person can appeal to the Circuit Court a zoning action by the City Council. An aggrieved person is one whose “personal or property rights are adversely affected by the decision of the board,” adding that this person must also be “personally and specially affected in a way different from that suffered by the public generally.” A property owner whose property adjoins, confronts or is near the property at issue is deemed, prima facie, to be specially damaged and therefore aggrieved. However, if a person’s property is far removed from the property at issue, a court will generally not consider that person aggrieved. But a person’s property that is still close enough to be considered as almost prima facie aggrieved and offers additional factors supporting an injury can still maintain “aggrieved person” status. Therefore, according to the court and past cases, proximity is the linchpin. The analysis of whether someone is specially affected is a fact-sensitive case-by-case inquiry.

Plaintiffs conceded that they were not prima facie aggrieved because they both live almost half of a mile from the PUD. Therefore, their only basis for standing would be as a specially aggrieved party by proximity. This means that they must reside close enough to be almost prima facie aggrieved and produce some additional evidence establishing injury. Unfortunately for Plaintiffs, the court found no instances where a person living over 2,000 feet away qualified as an almost prima facie aggrieved party. In fact, the court has applied this category of aggrievement to persons at a maximum of 1,000 feet away from the subject property.

Lastly, Plaintiffs attempted to establish standing under a third and final category, one that the court has never before found. This category requires a showing that the reclassification produces a harm directly and specifically impacting their property. Plaintiffs sought to prove this by arguing that the PUD would 1) detrimentally change the character of the neighborhood, 2) increase traffic, 3) create an eye sore, and 4) decrease property value. The court rejected all four arguments. It pointed out first that it had never upheld standing based on change in neighborhood character to a non-prima facie aggrieved party, in addition to the fact that the City Council conducted numerous reviews and held public hearings and meeting before determining that this PUD would change the character of the neighborhood for the better, not worse. The court then noted that, once again, it had never upheld standing to a party alleging increased traffic. Along those lines, Ray’s visibility argument failed because he failed to cited to any cases where a party, who lacked proximity to the rezoning action, was granted standing based on a claim of such limited visibility. Finally, because Coyne only offered lay opinion testimony claiming that property values would decrease, which the court deemed to be mere speculation about a future prospect. Expert testimony would have been needed in this situation, so the court refused to consider his argument.

Needless to say, Plaintiffs failed to satisfy this last category for standing. The court concluded that the Plaintiffs did not allege specific facts to demonstrate that they were specially aggrieved in a manner different than the general public, and therefore they did not have standing to bring this action.

Ray v Mayor and City Council, 2013 WL 216298 (Md. 1/22/2013)

The opinion can be accessed at: http://mdcourts.gov/opinions/coa/2013/21a12.pdf


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