Posted by: Patricia Salkin | August 27, 2015

MD Court of Special Appeals Finds that Moe’s did Not Have Standing to Challenge the Granting of a Special Permit to Chipotle

The parties to this appeal are two foreign limited liability companies: A Guy Named Moe, LLC (“Moe’s”), appellant, and Chipotle Mexican Grill of Colorado, LLC (“Chipotle”), appellee. Moe’s, a Virginia LLC, leases 122 Dock Street in Annapolis and has operated a restaurant at that location since 2006. On August 27, 2012, Chipotle, a competitor of Moe’s, filed an application for a special exception with the City’s Department of Planning and Zoning, so that it could open a “standard restaurant” at 36 Market Space in downtown Annapolis, a location just four to five hundred feet from one of Moe’s restaurants. Moe’s petitioned for review of decision of city department of zoning and planning, approving application for special exception. The circuit court responded by dismissing Moe’s petition, reasoning that, because Moe’s, as a lessee of the Dock Street property, did not pay any taxes on that property, it lacked standing to challenge the Board’s decision.

The court found that the threshold issue of this appeal was not whether Moe’s was a “taxpayer” or “a person aggrieved,” or neither one at all, but whether the petition at issue was void ab initio, given that, at the time that it was filed, Moe’s had lost its right to do business in Maryland and was nonetheless continuing to do business in Maryland. Moe’s had its right to do business forfeited by the SDAT on November 16, 2006, which occurred because Moe’s “hadn’t filed the proper registration and the fees” in violation of C.A. § 4A–1002 and 4A–1013. That right was not reinstated nearly seven years later, on September 24, 2013. Moe’s nonetheless continued to do business in Maryland during the period of forfeiture and, during that period, it not only opposed Chipotle’s special-exception application before the Board but then filed the petition at issue, in the circuit court, contesting the Board’s decision to grant Moe’s a special exception. The court found that if a domestic LLC could not, by “negative implication,” file or maintain suit, then surely a foreign LLC containing an express bar to such legal action could not file or maintain suit, or its legal equivalent, a petition for judicial review.

Furthermore, the court held that even if Moe’s were a “person aggrieved” under L.U. § 4–401(a)(1) and therefore had standing to petition the court for review as such, Moe’s petition must nonetheless be dismissed because it did not meet Rule 7–203(a)’s 30–day deadline, as it had no right to “maintain suit” under C.A. § 4A–1007(a) during the entire 30–day period and, when it re-attained that right, the thirty-day period had long since lapsed. Additionally, the court found “a person is not ‘aggrieved’ for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business.” As this was the case here, the dismissal of Moe’s claim was affirmed.

A Guy Named Moe, LLC and Chipotle Mexican Grill of Colorado, LLC, 115A.3d 733 (MD 5/29/2015)

The opinion can be accessed at: http://caselaw.findlaw.com/md-court-of-special-appeals/1702502.html


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