Ray v. Mayor & City Council of Balt.

• Decision Date: 22 January 2013
• Docket Number: Sept. Term, 2012.,No. 21,21
• Citation: 430 Md. 74,59 A.3d 545
• Parties: Benn RAY, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
• Court: Maryland Court of Appeals

430 Md. 74

59 A.3d 545

Benn RAY, et al.

v.MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 21, Sept. Term, 2012.

Court of Appeals of Maryland.

Jan. 22, 2013.

G. Macy Nelson (David S. Lynch of Law office of G. Macy Nelson, LLC, Towson, MD), on brief, for petitioners.

Charles S. Hirsch (Jon M. Laria of Ballard Spahr LLP, Baltimore, MD; Jason T. Vettori of Smith, Gildea & Schmidt, LLC, Towson, MD), on briefs, for respondents.

Sandra R. Gutman, Chief Solicitor (George A. Nilson, City Solicitor, Adam S. Levine, Assistant Solicitor, Baltimore City Department of Law, Baltimore, MD), on brief, for respondents.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

ADKINS, J.

Petitioners here seek to block a Planned Unit Development (“PUD”) with a Wal–Mart supercenter in Baltimore City, but have been stymied by Circuit Court and appellate rulings against them on the threshold question of standing. Although the test to show standing has been established in Maryland for more than half a century, the issue continues to generate appellate cases. That is partly because the test is fact-sensitive and is not readily reduced to a set of rules.

As we have explained, to have standing to challenge a zoning reclassification, a person's property interest “must be such that he is personally and specially affected in a way different from that suffered by the public generally.” See Bryniarski v. Montgomery Cnty. Bd. of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967). Today, we decline to adopt Petitioners' theory that the class of persons aggrieved by approval of this PUD must include the entire Charles Village and Remington neighborhoods. Moreover, Petitioner's alternative argument, that they meet the specially aggrieved standard set forth above, does not withstand close examination.

FACTS AND LEGAL PROCEEDINGS

On November 22, 2010, the Baltimore City Council passed Ordinance 10–397, which approved a PUD for an 11.5–acre tract of land known as the “25th Street Station.” The PUD authorizes a mixed-use development located in the Remington and Charles Village neighborhoods of Baltimore City. It is anticipated to “bring approximately 20 national retailers ..., as well as 70–80 market-rate apartment units.”

Benn Ray and Brendan Coyne (“Petitioners”) filed a Petition for Judicial Review of the PUD's approval. Ray resides in the Remington neighborhood at 279 W. 31st Street, Baltimore, Maryland. His residence is 2,212.39 feet, or approximately 0.4 miles, away from the PUD. Ray claims that he can see the PUD site from his second-floor bathroom during the winter months of the year, and that he can hear noise from the PUD site when his second-floor bathroom window is open. He believes that the PUD “will directly and dramatically increase traffic ... in front of [his] home,” which “will make it more dangerous for [him,]” given that “W. 31 St. is a narrow residential road that [he] believe[s] is ill equipped to handle the increased level of traffic.” Ray also believes that “the Wal–Mart planned to be part of the project will change the character of [his] neighborhood.”

Coyne resides in the Charles Village neighborhood at 2738 Guilford Ave., Baltimore, Maryland 21218. His residence is 2,002.18 feet, or approximately 0.4 miles, away from the PUD. Coyne has produced no evidence to show that he can see or hear the PUD from his residence.¹ Coyne's main contention is that the PUD, and specifically the planned Wal–Mart store, will adversely change the character of his neighborhood because the Wal–Mart store will force out many local businesses that he frequents, resulting in vacant buildings in his neighborhood. Coyne is of the opinion that the addition of the Wal–Mart store will also lower wages of workers in his neighborhood, causing there to be “fewer employed people.” He believes that this “will lead to a higher number of residents failing to properly maintain their property.” Coyne claims that he is familiarwith property values in the neighborhood and believes that these adverse effects will make “Charles Village a less desirable place to live,” thereby decreasing the value of his home.

The Mayor and City Council of Baltimore City, the owners of the subject property, and the developers of the PUD (“Respondents”) timely responded to the petition for judicial review, and all filed motions to dismiss, alleging that Petitioners lacked standing to challenge the PUD. In a written order, Judge Pamela J. White of the Baltimore City Circuit Court granted Respondents' motions and dismissed Petitioners' Petition for Judicial Review. She found that “Petitioners are not ‘adjoining, confronting or nearby’ property owners and thereby do not enjoy prima facie aggrieved status.” Nor had Petitioners shown any special interest or damage unique to Petitioners that would distinguish them from the general public. Judge White explained that “see[ing] roof tops or parking lots or traffic activity ... or hear[ing] city noise from blocks away, or deal[ing] with traffic congestion, or worry[ing] about local businesses ... are not circumstances that are unique or different from many other Baltimore residents among the general public.” Judge White also found that Coyne's beliefs about the potential decrease in his property's value were not admissible.

The Court of Special Appeals affirmed. In a reported opinion authored by Judge Moylan, the intermediate appellate court agreed with the Circuit Court that Petitioners did not qualify for prima facie aggrieved status and that Petitioners had failed to show any special aggrievement different from the public generally. Ray v. Mayor of Balt., 203 Md.App. 15, 35–36, 45–46, 36 A.3d 521, 533, 539–40 (2012).

On May 9, 2012, this Court granted a writ of certiorari, Ray v. Mayor of Baltimore, 426 Md. 427, 44 A.3d 421 (2012), to answer the following questions:

1. Did the Court of Special Appeals err when it equated Petitioners' neighborhoods of Charles Village and Remington with the general public and ruled that they lacked standing because others in their neighborhood were adversely affected in similar ways?

2. Did the Court of Special Appeals err when it held that Petitioners lacked standing because they were neither “nearby” nor specially aggrieved without considering the unique adverse effects caused by a new type of large development on 11.5 acres in an urban neighborhood? ²

We shall hold that the Circuit Court did not err in dismissing Petitioners' Petition for Judicial Review.

DISCUSSION

Petitioners filed for judicial review of the PUD ordinance under Md.Code (1957, 2010 Repl.Vol.), Article 66B, § 2.09(a)(1)(ii). This section provides:

(a) Who may appeal; procedure.—(1) An appeal to the Circuit Court of Baltimore City may be filed jointly or severally by any person, taxpayer, or officer, department, board, or bureau of the City aggrieved by:

(i) A decision of the Board of Municipal and Zoning Appeals; or

(ii) A zoning action by the City Council.

(Emphasis added).³

Id. In Bryniarski v. Montgomery County Board of Appeals, this Court described a “person aggrieved” as:

one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally. (Emphasis added).

247 Md. at 144, 230 A.2d at 294.⁴ The Court then offered several general principles, two of which are relevant here. First, “[a]n adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.” Id. at 145, 230 A.2d at 294. Second, “[a] person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved ... [unless] he meets the burden of alleging and proving ... that his personal or property rights are specially and adversely affected.” Id., 230 A.2d at 295.

Beyond these general principles provided in Bryniarski, we have not articulated what it means to be “specially affected” or how one proves that his harm is different from the public harm. Rather, the standard is flexible in the sense that it is based on a fact-intensive, case-by-case analysis. Therefore, before we can determine whether Petitioners are “specially affected,” we examine the fact patterns that have emerged from our earlier cases.

In doing so, we keep in mind that the concept of special aggrievement used in current zoning laws has its roots in the laws pertaining to the tort action of public nuisance. See 4 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and Planning § 63:14 (2012) (“This strict standard of [special] aggrievement for standing to enforce a zoning ordinance is based in early nuisance law which antedated zoning.”). As the Rathkopf's treatise explains,

[T]he “special damage” rule was an outgrowth of the law of public nuisance. Inasmuch as a public nuisance was an offense against the state and, accordingly, was subject to abatement on motion of the proper governmental agency, an individual could not maintain an action for a public nuisance unless he suffered some special damage from the public nuisance. (Emphasis added).

Id. (quoting Skaggs–Albertson's v. ABC Liquors, Inc., 363 So.2d 1082, 1088 (Fla.1978)) (alteration in original). Without the special damage, “a private citizen has no standing to champion the right of the publicin abating a public nuisance.” ⁵Id. § 63:14 n. 1.

When we examine Petitioners' specific arguments, we will call upon the law of nuisance for enlightenment. But first, we will review how the Maryland cases have applied the principles summarized in Bryniarski.

Proximity as a Measuring Stick of Standing

A review of our cases, where standing to challenge a rezoning action was at issue, reveals one critical point: proximityis the most important...