Kendall v. Howard Cnty.

• Decision Date: 21 May 2013
• Docket Number: No. 50,Sept. Term, 2012.,50
• Citation: 66 A.3d 684,431 Md. 590
• Parties: Paul F. KENDALL, et al. v. HOWARD COUNTY, Maryland.
• Court: Maryland Court of Appeals

431 Md. 590

66 A.3d 684

Paul F. KENDALL, et al.

v.HOWARD COUNTY, Maryland.

No. 50, Sept. Term, 2012.

Court of Appeals of Maryland.

May 21, 2013.

Susan B. Gray, Highland, MD, Paul F. Kendall, Ellicott City, MD, for Petitioners.

Loius P. Ruzzi, Senior Assistant County Solicitor, (Margaret Ann Nolan, Howard County Solicitor, Howard County Office of Law, Ellicott City, MD), for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, ALAN M. WILNER, (Retired, Specially Assigned), JJ.

BARBERA, J.

In order to pursue a civil action a plaintiff must demonstrate “standing” to bring the suit, meaning that the plaintiff must show that he or she “is entitled to invoke the judicial process in a particular instance.” Adams v. Manown, 328 Md. 463, 480, 615 A.2d 611 (1992). When, as in the present case, a plaintiff seeks to redress what is claimed to be a public wrong, the plaintiff must also demonstrate that he or she has “ suffered some special damage from such wrong differing in character and kind from that suffered by the general public.” Weinberg v. Kracke, 189 Md. 275, 280, 55 A.2d 797 (1947).

Petitioners, two residents of Howard County, Maryland, filed a complaint in the Circuit Court for Howard County seeking a declaratory judgment that a variety of County resolutions, ordinances, zoning decisions, and administrative actions violated the Howard County Charter (Charter).¹ Petitioners claim that Respondent, Howard County (County), by taking certain actions by resolution or administrative decision, rather than passing an original bill as the Charter requires for all legislative acts, denied Petitioners the opportunity to petition those acts to referendum. This, allege Petitioners, infringes their right to referendum under the Charter and, consequently, violates their interests in their constitutional rights to free speech and to vote.

Howard County moved to dismiss the action for declaratory relief, asserting, among other grounds, that Petitioners lacked standing to bring the action. Petitioners countered that their standing lay in the language of the Charter itself. The Charter reserves to “the people” of Howard County the right to petition to referendum “any law or part of a law” enacted by the County Council, see § 211, and defines certain planning and zoning activities as “legislative acts,” which “may be petitioned to referendum by the people of the county pursuant to Section 211 of the Charter,” see § 202(g). Notably, Petitioners expressly disclaimed any other form of standing.

The Circuit Court granted the motion to dismiss, ruling, in pertinent part, that Petitioners lacked standing. The Court of Special Appeals affirmed the judgment of dismissal, holding that Petitioners failed to show a concrete injury to their voting rights and thereby lacked standing. Kendall v. Howard County, 204 Md.App. 440, 453, 41 A.3d 727 (2012).

We granted certiorari to review the judgment of the Court of Special Appeals and now affirm the judgment of that Court.

I.The Howard County Charter

Howard County adopted a charter form of home rule in 1968.²Turf Valley Assocs. v. Zoning Bd. of Howard Cnty., 262 Md. 632, 634, 278 A.2d 574 (1971). The Charter is, “in effect, a local constitution,” which “ fixes the framework for the organization of the county government.” Ritchmount P'ship v. Bd. of Supervisors of Elections, 283 Md. 48, 58, 388 A.2d 523 (1978). The Charter vests the executive power in the County Executive, see § 302, and the legislative power in the County Council,³see § 202.

The County Council must pass all laws by “original bill.” § 209(a); see also § 209(c) (setting forth the “[p]rocedure for passage of laws”). The Charter refers to a “bill” that has been enacted in conformance with the Charter as either an “act,” “ordinance,” “public local law,” or “legislative act.” § 914(a), (b). “Resolution,” by contrast, is defined as “a measure adopted by the Council having the force and effect of law but of a temporary or administrative character.” § 914(c).⁴ The terms resolution and ordinance are distinct:

A resolution “ordinarily denotes something less solemn or formal than, or not rising to the dignity of, an ordinance.” A resolution passed by a legislative body “deals with matters of a special or temporary character ... [and] generally speaking, is simply an expression of opinion or mind concerning some particular item of business coming within the legislative body's official cognizance, ordinarily ministerial in character and relating to the administrative business of the municipality.” ...

An ordinance is distinctly a legislative act; it prescribes “some permanent role of conduct or government, to continue in force until the ordinance is repealed.”

Inlet Assocs. v. Assateague House Condo. Ass'n, 313 Md. 413, 427–28, 545 A.2d 1296 (1988) (first and second alterations in original) (quoting E. McQuillin, Municipal Corporations, § 15.02 (3d ed.1981)).

Section 211(a) of the Charter reserves to the people the right to petition to referendum any law enacted by the County Council. That section, entitled “Scope of the referendum,” provides, in relevant part,

The people of Howard County reserve to themselves the power known as “The Referendum,” by petition to have submitted to the registered voters of the County to approve or reject at the polls, any law or a part of any law of the Council. The referendum petition against any such law shall be sufficient if signed by five per centum of the registered voters of the County, but in any case not less than 1,500 nor more than 5,000 signatures shall be required. Such petition shall be filed with the Board of Supervisors of Elections of Howard County within sixty days after the law is enacted.⁵

In 1994, the people of Howard County successfully petitioned to referendum, and the majority of voters approved at the polls, a charter amendment clarifying that certain acts related to land use taken by the County must be passed by original bill, and therefore are subject to the people's right to referendum. See Charter § 202(g) (Editor's note). That amendment was codified at § 202(g) of the Charter, which reads:

Any amendment, restatement or revision to the Howard County General Plan, the Howard County Zoning Regulations or Howard County Zoning Maps, other than a reclassification map amendment established under the “change and mistake” principle set out by the Maryland Court of Appeals, is declared to be a legislative act and may be passed only by the Howard County Council by original bill in accordance with the legislative procedure set forth in Section 209 of the Howard County Charter. Such an act shall be subject to executive veto and may be petitioned to referendum by the people of the county pursuant to Section 211 of the Charter.

As we shall see, it is this section, in conjunction with the general referendum provisions in § 211, upon which Petitioners base their claim that they have standing to pursue declaratory relief for the County's alleged violations of the Charter.

The Litigation

Petitioners, Paul F. Kendall and Frank Martin, are taxpayers, property owners, registered voters, and residents of Howard County, Maryland. In 2009, Petitioners, along with other plaintiffs,⁶ initiated the present action in the Circuit Court for Howard County. They sought a declaration that specified acts and decisions relating to land use and attributable to the County were null and void ab initio. Petitioners view those decisions as “ legislative acts” that were accomplished by means other than passage by original bill, in violation of the Charter. Petitioners also sought to enjoin the County from taking any steps in furtherance of the challenged acts. ⁷

In their amended complaint, Petitioners claimed that, taken together, §§ 202(g), 207, 209, and 211 of the Charter establish the right of the people of Howard County to petition to referendum and vote on all County decisions that are “legislative acts.” Petitioners alleged that by failing to adhere to the law-making procedures set forth in the Charter, particularly with respect to certain land use decisions,⁸ the County “circumvent[s] the people's right of referendum and their ability to veto or approve these decisions at the polls.” Each of the four counts of the amended complaint identified specific County decisions, which Petitioners argued either did not follow the procedure required by the Charter for legislative acts, or authorize the Council to take action by resolution or by administrative decision that the Charter requires be accomplished by original bill. In Count I, Petitioners asked the Circuit Court to invalidate 54 resolutions passed by the County Council between 2006 and 2008 and five council bills enacted between 1988 and 1994 (specifying that certain actions be undertaken by resolution). In Count II, Petitioners demanded that the Circuit Court likewise invalidate: § 16.200 et seq. of the Howard County Code; five sections of the Howard County Zoning Regulations (§§ 117.1, 117.3, 125, 126, and 127.1); nine individual zoning map amendments approved by the Zoning Board; and a zoning map change made by decision of the Department of Planning and Zoning. Similarly, in Count III, Petitioners sought a declaration that the following are null and void: § 18.101 of the County Code (delegating to the Director the authority to make Metropolitan District inclusion decisions); §§ 18.1205 through 18.1210 of the Howard County Code (permitting shared septic systems); 40 decisions of the Director of Public Works, made between 2006 and 2008, that incorporated specified properties into the Metropolitan District; ⁹ and an agreement between the County and a developer accepting a particular shared septic system into the County's public sewerage system. And in Count IV, Petitioners mounted the same challenge to approval by County officials of the construction of an interchange and the study of four other interchanges on Route 32...