Kendall v. Howard Cnty.

• Decision Date: 11 April 2012
• Docket Number: Sept. Term,No. 0235,2010.,0235
• Citation: 204 Md.App. 440,41 A.3d 727
• Parties: Paul F. KENDALL, et al. v. HOWARD COUNTY.
• Court: Court of Special Appeals of Maryland

204 Md.App. 440

41 A.3d 727

Paul F. KENDALL, et al.

v.HOWARD COUNTY.

No. 0235

Sept. Term

2010.

Court of Special Appeals of Maryland.

April 11, 2012.

Susan B. Gray, Ellicott City, MD, for Appellant.

Louis P. Ruzzi (Margaret Ann Nolan Howard County Solicitor, on the brief), Ellicott City, MD, for Appellee.

Panel: ZARNOCH, WRIGHT, and J. FREDERICK SHARER (Retired, Specially Assigned), JJ.

ZARNOCH, J.

In this case, a group of Howard County residents have challenged the validity of more than 100 land use actions taken by the County over the last two decades. Having been rebuffed by the federal courts, see infra at 3, in the Fall of 2009, appellant Paul F. Kendall and three other residents (“Kendall” or “Kendall appellants”) filed a complaint against the County in the Circuit Court for Howard County seeking a declaratory judgment that various County resolutions, ordinances, zoning decisions and administrative actions violated provisions of the County Charter. The County filed a motion to dismiss, raising procedural and jurisdictional objections to the lawsuit. After a hearing in February 2010, the circuit court granted the County's motion and dismissed the complaint. This appeal followed.

QUESTIONS PRESENTED

Kendall has raised the following issues for our review:

1. Whether the trial court erred in holding that Appellants/Plaintiffs below had no standing to bring suit.

2. Whether the trial court erred in dismissing the case because Appellants/Plaintiffs had failed to join necessary parties.

3. Whether the trial court erred in dismissing the case because Appellants/Plaintiffs below had failed to exhaust their administrative remedies.

FACTS AND PROCEEDINGS

In 1994, by charter initiative, citizens of Howard County placed on the ballot and won voter approval of a charter amendment, which in its present form provides:

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.

Howard County Charter, § 202(g)1.

The Kendall appellants became dissatisfied with the County's compliance with the 1994 Charter Amendment. As noted in their 2009 complaint in the circuit court:

[F]or years it has been the plan, policy and practice of Howard County and its legislative and executive agencies, acting under color of state law, but in violation of the County Charter, to make legislative determinations or facilitate the making of such determinations, particularly on matters related to land use, through means other than the appropriate and required legislative process and passage of an original bill, in order to circumvent the people's right of referendum and their ability to veto or approve these decisions at the polls. In the past three years alone there have been hundreds of decisions of such nature.... Circumventing the peoples' right of referendum typically is done in one of three ways: (1) the County Council passes laws and accomplishes “legislative acts” by resolution instead of by bill; (2) the County Council, by bill, illegally delegates “legislative” decision-making to administrative entities; and (3) administrative entities, without any purported delegation, make “legislative” determinations which are required under the Charter to be accomplished by the County Council by bill.

In 2009, Kendall and other County residents, filed suit in U.S. District Court for the District of Maryland to challenge these alleged violations on federal constitutional grounds. The County defendants moved to dismiss, arguing that the plaintiffs lacked standing to pursue their action and that the court should abstain from deciding the state law issues inherent in their claims. The District Court granted the motion in part, ordering abstention so that the plaintiffs could bring their claims in State court. Kendall v. Howard County, 2009 WL 2358359, 2009 U.S. Dist. LEXIS 65829.

Taking action on two fronts, the plaintiffs in the federal suit noted an appeal and the Kendall appellants filed their declaratory judgment action in State court. Before their case was argued in this Court, the U.S. Court of Appeals for the Fourth Circuit rejected their appeal on a different basis than the district court—lack of standing. Kendall v. Howard County, 424 Fed.Appx. 232 (4th Cir.2011). This concluded the federal litigation.¹

In their complaint in the circuit court, the Kendall appellants indicated that each has been “a taxpayer,² property owner, resident and registered voter in Howard County.” In Count I of the complaint, they challenged the Council's passage between 2006 and 2008 of 54 land use resolutions which should have been passed “by original bill, subject to petitioning to referendum,” as well as 5 ordinances enacted between 1988 and 1994, which required certain acts to be passed by resolution. In Count II, they attacked, on a similar basis, 9 County Zoning Board adjudications, 5 Planning Board decisions and one determination of the Department of Planning and Zoning made between 2006 and 2008. Count III challenged the administrative inclusion between 2006 and 2008 of 40 properties in the Metropolitan District, a 1997 ordinance which shifted decision-making for inclusion of such properties in the District from the Council to the Director of Public Works, and a 2007 agreement regarding the sharing of septic systems. Finally, in Count IV, the Kendall appellants alleged that the inclusion of 5 Route 32 interchanges as part of the planned transportation infrastructure of the County was not enacted by original bill in order to circumvent the “electorate's right to approve or reject at the polls [these] major policy decision[s].” Among the relief requested was a declaration that all of the land use actions named in the complaint were “null and void ab initio and of no effect.” In addition, injunctive relief was also sought.

After the County moved to dismiss and the court heard argument, the circuit judge issued the following ruling from the bench:

I do find that there is [an] enormous standing problem in terms of the Plaintiffs' ability to demonstrate a particularized harm and that there is, therefore, no justiciable controversy.

I also find that there are an enormous number of individuals who would be affected by any sort of declaratory relief in this case, who have not been made parties to this case, and that is a fatal flaw in this request for declaratory relief.

I do also find that there are existing statutory remedies for all of these decisions that have been included. The fifty-five [ sic ] in count 1; the zoning decision in count 2; the public water and sewer issues in count 3; the highway interchanges in count 4, all of which have statutory remedies available to the Plaintiffs.

They either have not been pursued or have been pursued in a truncated way that has not allowed for the issues to gravitate to the appellate court of this state. But there are statutory remedies available that make declaratory relief unnecessary.

And I am going to grant the motion to dismiss with prejudice. This will give you another opportunity to appeal. Okay? And I encourage you to seize it. You can stop dancing, get some resolution.

DISCUSSION

I. Standard of Review

In review of a circuit court's grant of a motion to dismiss, we must determine whether the court was “legally correct.” Hrehorovich v. Harbor Hosp. Ctr., Inc. 93 Md.App. 772, 785, 614 A.2d 1021 (1992). The “grant of a motion to dismiss is proper if the complaint does not disclose, on its face, a legally sufficient cause of action.” Id. In review of the complaint, we “presume the truth of all well-pleaded facts ... along with any reasonable inferences derived therefrom.” Higginbotham v. PSC, 171 Md.App. 254, 264, 909 A.2d 1087 (2006). We will affirm the dismissal if “the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.” Id.

II. Contentions of the Parties

The Kendall appellants ground their standing to sue in “the right to referendum and vote granted to the People of Howard County.” That right, they say, is “personal and subsumed within ... the associational and free speech rights attached to a referendum effort.” Relying on Bishop v. Bartlett, 575 F.3d 419 (4th Cir.2009), and apparently its source, FEC v. Akins, 524 U.S. 11, 118 S.Ct. 1777, 141 L.Ed.2d 10 (1998), they argue that a plaintiff's assertion of voter standing is not defeated by a contention that the voter's lawsuit involves only a “generalized grievance” shared by other citizens. In response, the County asserts that Kendall lacks “any legally protected interest sufficient to warrant the invocation of the court's power to provide declaratory relief.”

On the necessary parties issue, Kendall contends:

The notion that anyone who has or might have [an] adverse interest in the challenged actions is specious. Even if every act challenged was [overturned] by this Court, the County Council could remedy this reversal by the simple passage of a bill approving the reversed actions.

Appellants also state that dismissal was not the appropriate remedy if necessary parties are found lacking. Rather, they assert the court should have ordered such persons to be joined as parties. Kendall also argues that when “public rights” are at stake, there is no need to apply the traditional rules governing joinder. The County responds that the Kendall appellants ignore “the real-world consequences” of their requested relief, noting:

Appellants cannot ask ...