Jordan Towing, Inc. v. HEBBVILLE AUTO REPAIR

• Decision Date: 12 June 2002
• Docket Number: No. 121,121
• Citation: 800 A.2d 768,369 Md. 439
• Parties: JORDAN TOWING, INC. v. HEBBVILLE AUTO REPAIR, INC., Varsity Auto Repair, Inc., Windsor Service, Inc.
• Court: Maryland Court of Appeals

800 A.2d 768

369 Md. 439

JORDAN TOWING, INC. v. HEBBVILLE AUTO REPAIR, INC., Varsity Auto Repair, Inc., Windsor Service, Inc.

No. 121, Sept. Term, 2001.

Court of Appeals of Maryland.

June 12, 2002.

Michael T. Pate (F. Vernon Boozer of Covahey, Boozer, Devan & Dore, on brief), Towson, for appellant.

Michael B. Sauer (Keith L. Powell, on brief), Towson, for appellee.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL, and LAWRENCE F. RODOWSKY (retired, specially assigned), JJ.

CATHELL, Judge.

The Baltimore County Department of Permits and Development Management (DPM)¹ granted a towing license to Jordan Towing, Inc., appellant. In response to the issuance of that license, Hebbville Auto Repair, Inc., Varsity Auto Repair, Inc., and Windsor Service, Inc., appellees, appealed the approval of appellant's towing license application to the County Board of Appeals of Baltimore County (Board of Appeals). The Board of Appeals reversed the decision of the DPM. Appellant sought judicial review in the Circuit Court for Baltimore County, which affirmed the decision of the Board of Appeals. Appellant filed a Notice of Appeal to the Court of Special Appeals. We granted certiorari on our own motion prior to consideration by the Court of Special Appeals. Jordan Towing, Inc. v. Hebbville Auto Repair Inc., 367 Md. 722, 790 A.2d 673 (2002). Appellant presented the following questions:

"A. Did the Board of Appeals commit error in finding that Windsor Service, Inc., Hebbville Auto Repair, Inc., and Varsity Auto Repair, Inc. have standing to raise an Equal Protection challenge in this case?

B. Did the Board of Appeals commit error in concluding that the actions of the Department of Permits and Development Management were subject to an Equal Protection analysis?

C. Did the Board of Appeals commit error in its determination that the actions of the Department of Permits and Development Management violated the Equal Protection clause of the Fourteenth Amendment?"

In their brief to this Court, the appellees have presented the following responses:

"1. Do Hebbville, et al. have standing? Are Hebbville, et al. aggrieved persons? Has Jordan misstated the issue? Is the issue untimely raised?

2. Consistent with Pollard's Towing, is the County Board of Appeals finding (based on established criteria) that Jordan failed to prove need [entitled to] due deference under the narrow scope of judicial review of factual inferences and application of law to facts?

3. Is the County Board of Appeals interpretation reasonable, as a matter of statutory construction, that it is impermissible to utilize racial diversity and/or racial orientation in a service area to find a need for additional service?

4. Is the County Board of Appeals finding proper, on this record, that county issuance of the license conflicted with the Equal Protection Clause of the United States Constitution?

5. Does the license application comply in other respects with the county towing ordinance?"

We answer appellant's first question in the negative—appellees had standing before the Board of Appeals.

Section 24-225 of the Baltimore County Code, which states, "[a]ny person who is aggrieved by a decision of the department of permits and licenses shall have the right to file an appeal" conferred standing upon appellees to challenge, via an appeal to the Board of Appeals, the granting of appellant's towing license. Appellant contends that this independent basis for standing does not confer standing upon the appellees to raise a constitutional challenge to the granting of appellant's towing license.

The Circuit Court, in the case sub judice, stated:

"The protestants [appellees] clearly have demonstrated they have standing to pursue this action. As the other licensed towers in the district, the business that is presently divided between them will be reduced or diminished by decisions which affect the ability of other towers to be licensed in their district. It is clear that they have been disadvantaged by the decision to permit another tower to be licensed in their region. For this reason, standing has been adequately demonstrated."

We affirm this finding of the Circuit Court that appellees had standing before the Board of Appeals and the Circuit Court challenging the granting of appellant's license. At the administrative level appellees were "aggrieved" under the relevant Baltimore County Code section because their businesses are directly affected by the issuance of an additional towing license in the geographical area where they alone hold licenses. A party is aggrieved and there is standing if the party suffers some "special damage ... differing in character and kind from that suffered by the general public." Weinberg v. Kracke, 189 Md. 275, 280, 55 A.2d 797, 799 (1947); see Sugarloaf Citizens Assn. v. MDE, 344 Md. 271, 686 A.2d 605 (1996);²Inlet Associates v. Assateague House Condo. Assn., 313 Md. 413, 545 A.2d 1296 (1988); Becker v. Litty, 318 Md. 76, 566 A.2d 1101(1989); Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967). In Sugarloaf, 344 Md. at 295, 686 A.2d at 617, this Court discussed aggrievement and emphasized that standing does not depend on the type of issue raised or its likelihood of success and stated:

"Therefore, standing to challenge governmental action, and the merits of the challenge, are separate and distinct issues.... `The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a ... court and not on the issues he wishes to have adjudicated'." [Citations omitted.]

For the reasons stated supra and under the facts of this case, appellees were proper parties to this action and had standing when they appealed the DPM's decision to the Board of Appeals.

We do not directly answer the remaining questions. We shall, however, affirm the decision of the Board of Appeals reversing the issuance of the towing license to appellant. We hold that the Baltimore County Code provisions at issue in the case sub judice cannot be interpreted, under the facts here present, in such a way as to permit the granting of a towing license to appellant.³

I. Facts

a. The Towing Application Process

The case sub judice involves an application by appellant for a towing permit, which is regulated under the Baltimore County Code.⁴ The provision regarding the license requirement reads in pertinent part:

"Sec. 24-226. License required to engage in towing business; storage facilities required.

(a) It shall be unlawful for any person to engage in towing disabled vehicles from the scene of a motor vehicle accident occurring within the county without first having obtained a license from the department of permits and licenses to do so as hereinafter provided or during the suspension or revocation thereof."

The DPM is vested with the authority to determine whether to approve an application for a towing license in accordance with section 24-229, which states:

"Sec. 24-229. Approval of new license towers; location requirements.

(a) New licensed towers shall be approved by the Department of Permits and Licenses based upon the need for additional service. If the need does not exist, the application will not be approved. The transfer of an existing license shall be treated in the same manner as a new license, and any such transfer shall be subject to all provisions applicable thereto."

While the Baltimore County Code does not specify the criteria⁵ to be considered in determining the "need for additional [towing] service,"⁶ the typical practice within the DPM when a towing license application is submitted for a specific geographical area is to refer the application to the Baltimore County Police Department (BCPD) for investigation and review of the need for additional towers in a particular area.⁷ The BCPD then reports back to the DPM and the DPM ultimately issues or declines to issue the license. If a license is issued, a towing business is assigned the specific geographical area within Baltimore County in which it can operate and is notified by the police whenever a disabled vehicle needs to be removed from an accident scene.

Unlike the Baltimore County Code, which does not define or clarify "need" in the code sections pertaining to new towers, the BCPD does utilize specific "need" criteria to assess the need for additional service when forming its report for the DPM. The "Need Criteria" memorandum issued to all of its precincts by the BCPD, and presumably available to applicants,⁸ reads:

"NEED CRITERIA⁹

"The term `need' as presented in Section 24-229 of the Baltimore County Code specifies the Police Department's need for an additional tower in the applicant's area.

"When determining `need', the following factors shall be considered by the Police Department's Towing Unit when processing an application [for] a Baltimore County Towing License.

"1. The geographical location of the tower with respect to the heavily traveled roadways.

2. The number of accidents with disabled vehicles on these heavily traveled roadways in the applicant's area.

3. The proximity of other licensed towers, both in terms [of] miles and minutes between the applicant's location and the licensed towers location that are currently servicing the area.

4. A history of the previous year; late response times and no response times for the licensed towers currently servicing the area. The number of years experience, number of trucks and number of complaints of the licensed towers currently servicing the area.

5. The growth potential for the particular geographical area in which the applicant is located.

6. The average daily traffic count for the heavily traveled roadways in the applicant's area.

7. Whether or not the application is for a location where a tow license had previously been in existence.

8. The quality of the operation of the applicant, including the number of trucks, the number of years experience in towing, and whether

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