Posted by: Patricia Salkin | January 11, 2014

MD Court of Spec. Appeals Holds Appellants Have Standing to Challenge Rezoning But They Must Join Necessary Parties

Anne Arundel County (“County”), Maryland adopted as amended Bill No 12-11 which repealed and reenacted zoning classifications for 59,045 parcels of land and changed zoning classifications for 264 of those parcels in two Districts. Amendment 25, reclassified Parcels 69 and 200 to a more intensive residential classification. Parcel 141 was reclassified to a commercial office district. Appellants, Stephen Bell, William Chapin, and Rosie Shorter owned land in proximity to these parcels. They first filed a petition for judicial review, or, in the alternative, for a writ of mandamus, in the Circuit Court challenging the legality of the enactment of the Bill. The circuit court dismissed the petition for lack of jurisdiction. They then filed a complaint for declaratory relief against the County, alleging that it had failed to provide the public with the required notice of the proposed zoning changes, and, further, that the rezoning of Parcels 114, 141, 69 and 200 constituted illegal spot zoning and illegal contract zoning.

The County moved to dismiss the complaint, contending that there was no justiciable controversy before the court, that appellants lacked standing to bring an action for declaratory relief challenging the Bill, and that, alternatively, appellants had failed to exhaust the administrative remedies available to them under the Code. Appellants agreed to drop their allegation that the Bill had been enacted without the requisite public notice.
The Circuit Court granted the motion to dismiss, holding that plaintiffs’ interests in the matter were not any different than the interests of the general public. The court first determined that appellants had failed to join all necessary parties that may have been affected by the Bill in their initial complaint. As stipulated over 260 distinct parcels of land were affected. Additionally, the court concluded that appellants lacked standing to pursue declaratory relief because there was not a single reported case in Maryland where a party in a declaratory judgment action has been found to have prima facie standing to challenge comprehensive rezoning legislation based on ownership of property nearby or in proximity to property that was rezoned. Further, appellants did not have standing based on affected personal or property rights. They cited increased traffic, potential property value decrease and change in character to the surrounding neighborhood. The court stated that the law was clear that expected increased traffic did not give the requisite standing needed because the inconvenience is one likely to be suffered by any member of the public. The court also noted that the potential impact of the construction on property values was not personally and specifically different from that suffered by the general public. Finally, it was apparent that a potential change in community was not sufficient to show personal and specific aggrievement to have standing.

On appeal, The Court of Special Appeals noted that in enacting Bill No. 12-11, the County Council acted in a legislative capacity. Appellants Chapin and Bell were near enough to Parcel 141 to be prima facie aggrieved since both appellants can see Parcel 141 from various points on their properties, and hear noise coming from it. Therefore, appellants had standing to challenge the legality of Bill 12-11’s rezoning of Parcel 141.

Maryland law also gives standing to those who have been “almost prima facie aggrieved.” The Court explained that a protestant is specially aggrieved when she is farther away than an adjoining, confronting, or nearby property owner, but is still close enough to the site of the rezoning to be considered almost prima facie aggrieved, and offers “plus factors” supporting injury. There are no rules for who qualifies as “almost” prima facie aggrieved. Further, there are no rules as to what constitutes sufficient “plus factors” to show special aggrievement. In making a determination, courts will examine the specific facts alleged to show aggrievement and compare that injury to harm suffered by the general public.Appellants’ “plus factors”, allegations as to the impact the changed status of the rezoned property has, or could have, on the use, enjoyment and value of their properties, was sufficient to show that Chapin and Bell had suffered an injury special to them. They argues that the rezoning of Parcel 114 would increase traffic in the areas surrounding their properties and make the roads more dangerous. The court stated that recent decisions have clarified that an increase in traffic, by itself, was insufficient to establish standing. Second, two sources of noise were identified, which they asserted would increase as a result of the enactment. First, they can hear noise from traffic traveling on nearby roads, and argued that this noise would increase as traffic increases. Second, they argued that they could hear sound from commercial establishments located next to Parcel 114, and contended that this proves that they would also be able to hear sound from the commercial development planned for Parcel 114. Third, the rezoning of Parcel 114 would change the character of their neighborhoods. Lastly, the rezoning of Parcel 114 would decrease the value of their properties due to the expected increases in traffic, noise, privacy, and changes in the neighborhood. The court stated that Chapin and Bell were “merely speculating” as to what their properties would be worth post-development. Therefore, the only “plus factor” in favor of a determination that they were specially aggrieved was the noise radiating from increased traffic and increased commercial activity from that property.

The court stated that Chapin and Bell had shown special aggrievement, therefore the Circuit Court made an error in concluding that appellants lacked standing. In addition, the Circuit Court also based its finding that appellants lacked standing because of ripeness. The court concluded that neither Amendment 25 nor Bill 12-11 immediately caused appellants any injury. Here, the court did not agree stating that in determining whether an owner has been sufficiently aggrieved to have standing, courts have considered the expected effects of the rezoning. Finally, the court found no merit in preventing parties, who otherwise have standing, from pursuing the sorts of challenges raised by appellants on a timely basis. This would give county councils nearly unchecked authority to pass zoning laws. As an alternative, the Circuit Court dismissed appellants’ complaint on the ground that appellant failed to join all necessary parties in the action. Specifically, appellants needed to have joined the owners of all 264 parcels rezoned by Bill 12-11. The court agreed, but on these facts, dismissal was inappropriate and on remand, the Court said that the appellants should be granted leave to amend to add the remaining necessary parties. The judgment of the Circuit Court was vacated and the case remanded.

Bell v. Anne Arundel County, 2013 WL 6096843 (Md. Ct. Spec. App. 11/20/2013)

The opinion can be accessed at: http://www.mdcourts.gov/opinions/cosa/2013/0273s12.pdf


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