Bell v. Anne Arundel County

KEHOE, J. This is an appeal from a judgment of the Circuit Court for Anne Arundel County dismissing with prejudice a challenge to a 2011 comprehensive rezoning ordinance. The appellants 1 are property owners and community associations asserting ¹⁶⁶ that the rezoning ordinance is invalid as to certain properties. The appellees are the County and some of the affected property owners. 2 In granting appellees’ motions for summary judgment, the circuit court concluded that appellants did not have standing to bring a challenge and that appellants had failed to join all necessary parties to the litigation. We see the case differently.

We conclude that, in light of recent decisions by this Court and the Court of Appeals, 3 some of the appellants were presumptively aggrieved by the rezoning ordinance, and that these presumptions were unrebutted on the record before the circuit court. We agree with the circuit court that appellants failed to join all necessary parties but, under the circumstances, the proper step was to give appellants an opportunity to join all necessary parties. We will vacate the court’s judgment and remand this case for further proceedings. BACKGROUND As a charter county, Anne Arundel County is required to review and revise its comprehensive plan and its zoning ordinance on a periodic basis.

See Md. Code (2012) Land Use Article (“LU”) §§ 1-416 and 1-417. 4 Section 18-2-106(b)(l) of the Anne Arundel County Code (the “Code”) authorizes the County Council to amend its zoning map — called the Digital Zoning Layer — by comprehensive zoning legislation. ¹⁶⁷ On February 22, 2011, Bill No 12-11 was introduced before the Anne Arundel County Council. The bill proposed a comprehensive rezoning of Councilmanic Districts I and IV in Anne Arundel County. During the public hearing process, the County Council considered numerous proposed amendments and eventually adopted Bill 12-11 as amended. Bill No. 12-11 repealed and reenacted the zoning classifications for 59,045 individual parcels of land located in the two Districts and changed the zoning classifications of 264 of those parcels.

Bill No. 12-11 included Amendment 25, which, among other changes, reclassified Tax Map 36 Parcels 69 and 200 from open space and low density residential uses to a more intensive residential classification. Appellants take issue with this rezoning. Appellee BBSS is the owner of Parcels 69 and 200. Appellants also challenge two proposals contained in the original bill which changed the zoning classifications of Tax Map 36, Parcels 114 and 141.

Parcel 114 was reclassified from a lower density residential zone to one allowing commercial offices and similar uses. This parcel is owned by Baldwin Enterprises, Inc., who is not a party to this action. 5 Likewise, Parcel 141 was reclassified from a residential zone to a commercial office district. Parcel 141 is owned by appellee Southern Shores Development Company. Of the appellants, only Stephen Bell, William Chapin, and Rosie Shorter own land in reasonable proximity to any of these parcels.

Shorter owns residential property that abuts Parcels 69 and 200. Chapin owns residential property located approximately 100 feet from Parcel 141 and 500 feet from Parcel 114. Bell owns residential property situated approximately 80 feet from Parcel 141 and 500 feet from Parcel 114. The Proceedings Before the Circuit Court Appellants first filed a petition for judicial review, or, in the alternative, for a writ of mandamus, in the Circuit Court for ¹⁶⁸ Anne Arundel County, challenging the legality of the County’s enactment of Bill No. 12-11.

After a round of dismissal motions and a hearing, the circuit court dismissed the petition for lack of jurisdiction. Appellants then filed a complaint for declaratory relief against the County, alleging that it had “failed to provide the public with the required notice of the proposed zoning changes,” and, further, that the rezoning of Parcels 114, 141, 69 and 200 constituted illegal spot zoning and illegal contract zoning. 6 In response, appellees BBSS, Wach, Towser Developers, and South Shores Development Company — the owners of Parcels 69, 200, and 141 — as well as BWI Technology Park Phase III, L.L.C., United Properties, L.L.P., Sincaltom Associates, and David Callahan all moved to intervene in the suit. The circuit court granted the motion. On September 26, 2011, the County moved to dismiss the complaint, contending that there was no justiciable controversy before the court, that appellants lacked standing to bring an action for declaratory relief challenging Bill No. 12-11, and that, alternatively, appellants had failed to exhaust the administrative remedies available to them under the County Code.

The remaining appellees filed motions to dismiss asserting that appellants lacked standing and had failed to join all necessary parties. On March 5, 2012, a hearing was held on the motions to dismiss. At the hearing, although appellants contested most of the appellees’ contentions, they agreed to drop their allegation that Bill No. 12-11 had been enacted without the requisite public notice. As a result, interveners BWI Technology Park Phase III, L.L.C., United Properties, L.L.P., Sincaltom Associates, and David Callahan withdrew from the ease, leaving only the appellees as defendants. ¹⁶⁹ On March 27, 2012, the circuit court issued a memorandum opinion and order granting the motions to dismiss.

In its opinion, the court first determined that appellants had failed to join all necessary parties, stating, in pertinent part, (emphasis in original): It is clear from the proceedings in this case that Plaintiffs have failed to join all parties who may be affected by Bill No. 12-11. As stipulated between the parties at the March 5, 2012 hearing, over two-hundred and sixty (260) distinct parcels of land are affected through the implementation of Bill No. 12-11. The status of these properties clearly may be affected by the rezoning scheme of the bill.... In the initial complaint, Plaintiffs failed to name all owners of the over two-hundred sixty (260) parcels that may potentially be affected by Bill No. 12-11.

As such Plaintiffs have failed to join necessary and indispensable parties in violation of Md. Rule 2-211 and Md.Code Ann. Cts. & Jud. Proc. § 3-405(a)(2). The court additionally concluded that appellants lacked standing to pursue the declaratory relief sought. The court divided its standings analysis into two sub-parts: 1) whether appellants had prima facie standing, and 2) whether appellants had standing based on affected personal or property rights — i.e., whether they had been specially aggrieved.

As to the first question, the circuit court reasoned (footnote omitted): One means of establishing a prima facie case of aggrievement in Maryland is to be an adjoining, confronting or nearby property owner. [120 West Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 271 , 964 A.2d 662 (2009).] Property owners that are precisely abutting the subject property and within sight and sound of the property at issue have standing as an aggrieved party on judicial review. Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 147 , 230 A.2d 289 (1967). There is not a single reported case in Maryland where a party in a declaratory judgment action has been found to have prima facie aggrievement or standing to challenge ¹⁷⁰ comprehensive rezoning legislation based on ownership of property nearby or in proximity to property that was rezoned. The only potential allegation made by Plaintiffs to claim standing based on proximity is that “noise is a primary concern for Plaintiffs who live in close proximity to the land subject to Proposal 4-4 and 4-12.” The mere rezoning of the property located near Plaintiffs’ property will not immediately cause additional noise.

Before development may occur on any of the property affected by Bill No. 12-11, numerous permits and approvals must be obtained from the County and the State. Plaintiffs will have the opportunity to challenge any future development at the required development review proceedings. Because Plaintiffs have failed to show that they are prima facie aggrieved by the rezoning itself and because there will be additional opportunities for Plaintiffs to voice their concerns over noise should development occur on the land affected by Bill No. 12-11, Plaintiffs do not have prima facie standing to challenge the comprehensive rezoning scheme through a declaratory judgment action. On the question of whether appellants had been specially aggrieved, the court concluded that: An aggrieved party may establish standing if it can be shown that 1) the aggrieved person’s personal or property rights are specially and adversely affected by the land use decision and 2) that the aggrieved person is personally and specifically affected in a way that is different from what is suffered by the general public.

Bryniarski, 247 Md. at 144-145 [ 230 A.2d 289 ]. In their complaints, Plaintiffs cite increased traffic, potential property value decrease and change in character to the surrounding neighborhood as means to achieve standing through special aggrievement. With regard to increased traffic, Maryland Courts have held that a potential increase in traffic flow does not qualify a person for special aggrievement. “Even if increased traffic would turn out to be a problem, it would be a general problem and not a problem special to appellant.” Benn Ray et al. v. Mayor & City Council of Baltimore et al. [ 203 ¹⁷¹ Md.App. 15, 42 , 36 A.3d 521 (2012), aff'd 430 Md. 74 , 59 A.3d 545 (2013) ]. The law is clear that expected increased traffic does not give the requisite standing needed as the inconvenience feared is one likely to be suffered by any member of the public.

Wilkinson v. Atkinson, 242 Md. [231, 234, 218 A.2d 503 (1966) ]. In their affidavits, Plaintiffs Rosie Shorter, William Chapin and Stephen Bell all claim that that Bill No. 12-11’s reclassification of the subject properties will negatively affect their respective property values. Plaintiffs argue that the presupposition of a decrease in property value is sufficient to give them standing in seeking declaratory judgment. ... The potential impact of the construction on property values is not “personally and specifically different from that suffered by the public generally.” Bryniarski, 247 Md. at 144 [ 230 A.2d 289 ].

Therefore, Plaintiffs do not qualify as aggrieved parties by claiming that property values may diminish as a result of future hypothetical construction. The aggrievement is not specific enough to the individuals. Benn Ray et al. v. Mayor & City Council of Baltimore et al., [ 203 Md.App. 15 , 36 A.3d 521 (2012), aff'd, 430 Md. 74 , 59 A.3d 545 (2013) ]. Finally, Plaintiffs argue that they have standing because the character of the neighborhood may be changed as a result of the comprehensive rezoning scheme____In White v. Major Realty, 251 Md. [63, 64, 246 A.2d 249 (1968) ], the Plaintiff claimed, inter alia, that the zoning changes under consideration would “change the entire character of our community.” The Court of Appeals rejected the claim and stated that the appellants did not establish the necessary special damage to their property (an adverse effect different from that suffered by the public generally) to make them aggrieved.

In this case it is apparent that a potential change in community is not sufficient to show personal and specific aggrievement. Therefore, the Court fails to find that Plaintiffs’ interests in the matter are any different than the interests of a member of the general public. Plaintiffs ¹⁷² do not have standing to bring a claim based on potential change in the character of the neighborhood. Accordingly, the circuit court dismissed the complaint with prejudice and this appeal followed.

DISCUSSION The motions to dismiss filed in this case included matters outside the four corners of the complaint and its exhibits. We will therefore treat the motions as motions for summary judgment. Md. Rule 2-322(c). 7 As the Court of Appeals explained in D’Aoust v. Diamond, 424 Md. 549 , 36 A.3d 941 (2012): We have interpreted this Rule to mean that “[w]hen a party presents factual matters outside the pleadings, and the [trial judge] does not exclude them from consideration in the course of acting on a facial motion to dismiss, the [trial judge] must treat the motion as a motion for summary judgment.” If a trial judge has been presented with facts or allegations outside of those in the complaint and has not specifically excluded them from consideration, we have acted on the presumption that the additional information was considered by the trial judge. Id. at 573 , 36 A.3d 941 (quoting Dual, Inc. v. Lockheed Martin Corp., 383 Md. 151,161 , 857 A.2d 1095 (2004)).

Where, as here, there are no factual disputes at issue, an appellate court reviews a circuit court’s grant of summary judgment de novo to determine whether the circuit court was legally correct. Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82 , 923 A.2d 1 (2007); Lombardi v. Montgom ¹⁷³ ery County, 108 Md.App. 695, 710 , 673 A.2d 762 (1996); Md. Rule 2-501.

I. Prima Facie Aggrievement Appellants first assert that they “have standing because [Shorter, Chapin, and Bell] are all prima facie aggrieved based on their proximity to [Parcels 69, 200, 114, and 141]” — specifically, because Shorter’s property abuts Parcels 69 and 200, and because Chapin’s and Bell’s properties are located in close proximity to Parcels 114 and 141. In support of this proposition, appellants cite to three Maryland appellate decisions: Bryniarski v. Montgomery County, 247 Md. 137 , 230 A.2d 289 (1967); 120 West Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253 , 964 A.2d 662 (2009); and Long Green Valley Ass’n v. Bellevale Farms, Inc., 205 Md.App. 636, 688 , 46 A.3d 473 (2012), aff'd on other grounds, 432 Md. 292, 324 , 68 A.3d 843 (2013). 8 Appellants rely on the following passage in Bryniarski , wherein the Court of Appeals explained the concept of prima facie aggrievement as follows: “An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.... ” Bryniarski, 247 Md. at 145 , 230 A.2d 289 (internal citations omitted). In appellants’ view, because Shorter, Chapin, and Bell are either “adjoining, confronting, or nearby property owner[s]” to land rezoned by Bill No. 12-11, they are prima facie aggrieved and, thus, have standing to challenge the bill. Although we agree with appellants’ ultimate conclusion, the path to this result is more arduous than they suggest.

The above-quoted passage is contained within the Bryniarski Court’s discussion of aggrievement in the context of an appeal of a decision of a local administrative agency acting in a quasi-judicial capacity, specifically, whether to grant an application for a special exception. Id. at 141-42 , 230 A.2d 289 . In ¹⁷⁴ such circumstances, the Bryniarski Court articulated the following test: In cases involving appeals under the provisions of a zoning ordinance: (a) It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication. (b) An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.

The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved. (c) A person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved. But he will be considered a person aggrieved if he meets the burden of alleging and proving by competent evidence — either before the board or in the court on appeal if his standing is challenged — the fact that his personal or property rights are specially and adversely affected by the board’s action. Id. at 144-45 , 230 A.2d 289 (numbering removed, citations omitted, emphasis added).

In enacting Bill No. 12-11, the County Council acted in a legislative, as opposed to a quasi-judicial capacity. See Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 532 , 814 A.2d 469 (2002) (citing, among other authorities, Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 711-13 , 376 A.2d 483 (1977)). Appellants have challenged the legality of the ordinance by bringing the instant suit for declaratory relief. The Bryniarski Court laid out a separate test applicable in such circumstances.

As the Court explained: There is a distinction between the degree of certainty of allegations and proof of aggrievement in cases in equity and in cases involving a petition for a writ of mandamus on one ¹⁷⁵ hand, and in statutory appeals from the board to the original court of record on the other. (a) When the suit is in equity and a declaration nullifying a zoning ordinance for constitutional or other reasons is sought, the allegations by the plaintiff of how he is specially damaged by the zoning ordinance must be definite, and he must meet the burden of showing such special damage by competent evidence. (b) In a mandamus action the same rule is applicable. 247 Md. at 144 , 230 A.2d 289 (numbering removed, internal citations omitted, emphasis added). Thus, under Bryniarski , the concept of prima facie aggrievement assists litigants only in judicial reviews of decisions of a zoning agency acting in a quasi-judicial capacity.

Were we to apply this rule in the instant case, Bryniarski suggests that Shorter, Chapin, and Bell, having brought a declaratory judgment action, could not attain standing as prima facie aggrieved parties based solely on the proximity of their properties to Parcels 69, 200, 114, and 141. Appellants, however, argue that the Court of Appeals’ decision in 120 West Fayette St. and this Court’s decision in Long Green Valley “extend [prima facie aggrievement principles] beyond the judicial review arena to[ ] other challenges of land-use regulations.” We turn to this contention. In 120 West Fayette St., the plaintiff filed a complaint in equity seeking a declaration that a land disposition agreement entered into by Baltimore City violated the City’s Charter and other applicable laws. The circuit court dismissed the complaint on the ground that plaintiff lacked standing to challenge the agreement.

In reversing this decision, the Court of Appeals held, first, that the plaintiff had “taxpayer standing,” 407 Md. at 268-69 , 964 A.2d 662 , and alternatively, that the plaintiff had “property owner standing” under Bryniarski. Id. at 273, 964 A.2d 662 . In making this latter determination, the Court explained (emphasis added): Under Maryland common law principles if an individual ... is seeking to redress a public wrong ... that individual ¹⁷⁶ has no standing in court unless the individual has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public. This common law requirement of personal and specific damage or “aggrievement” is embodied in Maryland’s statutory Zoning laws.

Generally, one is deemed “aggrieved” if he, she, or it can demonstrate that the land use decision will adversely affect his, her, or its interest, and that such interest is personal or specific, and not shared by the general public. Moreover, in actions for judicial review of administrative land use decisions an adjoining, confronting or nearby property owner is deemed, prima facie ... a person aggrieved. The person or entity challenging the fact of aggrievement has the burden of denying such damage in his or her answer ... and of coming forward with evidence to rebut the presumption of aggrievement. Such property owners are granted prima facie aggrieved status due to the sheer proximity of their property to the area that is the subject of the complaint.

Because land use ... is at least one of the prime considerations with which an urban renewal plan is reasonably sure to be concerned, we conclude that the principles that confer standing upon an adjoining, confronting or neighboring property oumer to seek judicial review of land use decisions, logically extend to an adjoining, confronting, or neighboring property oumer that is challenging a municipalities’ allegedly illegal avoidance of urban renewal and procurement ordinances. Id. at 270-72 , 964 A.2d 662 (internal quotation marks, brackets, and citations omitted). Several aspects of the Court’s standing analysis in 120 West Fayette support its application in the present case. First, as in the present case, 120 West Fayette involved a declaratory judgment action challenging a legislative action, as opposed to a quasi-judicial administrative decision.

Second, the Court in 120 West Fayette applied the Bryniarski prima facie aggrievement standard to the facts before it, concluding that the ¹⁷⁷ facts before it were similar enough to those generally involved in actions for judicial review of administrative land use decisions to warrant application of the Bryniarski test previously reserved for “cases involving appeals under the provisions of a zoning ordinance.” See Bryniarski, 247 Md. at 144-45 , 230 A.2d 289 . We see little practical difference in the context of standing between an action “challenging a municipalities’ allegedly illegal avoidance of urban renewal and procurement ordinances,” and one challenging a county’s comprehensive rezoning ordinance because the county council exceeded its powers in enacting it. What the Court said of the plaintiff in 120 West Fayette St. is equally true of Chapin, Bell, and Shorter in the present case: Because, [plaintiff] had alleged that it will be able to both see and hear the allegedly illegal redevelopment of these properties from its doorsteps, it follows that [plaintiff] will be directly impacted by and had a direct interest in the redevelopment. 407 Md. at 272-73 , 964 A.2d 662 . Our conclusion that the Court’s reasoning in 120 West Fayette St. should apply in the present case is consistent this Court’s analysis and holding in Long Green Valley.

In that case, the plaintiffs filed a complaint seeking a declaration that the Maryland Agricultural Land Preservation Foundation (“MALPF”) had misinterpreted the terms of an agricultural preservation easement to permit the landowners to construct and operate a creamery on the property. 205 Md.App. at 642-43 , 46 A.3d 473 . Defendants asserted that the plaintiffs lacked standing to bring the action and the circuit court agreed. On appeal, the plaintiffs contended that they had standing based on, among other grounds, the fact that they would be prima facie “specially harmed” — i.e. aggrieved — by the creamery because of its proximity to their properties. This Court, quoting the above-cited passage from 120 West Fayette St. explained, in pertinent part, that: Based on 120 W. Fayette’s extension of the standing principles of ...

Bryniarski [and its precursors] beyond the ¹⁷⁸ judicial review arena, it appears that adjoining, confronting or neighboring property owners may have standing to challenge as an illegal or ultra vires action the approval of a proposed use of land subject to a MALPF easement. Long Green Valley, 205 Md.App. at 688 , 46 A.3d 473 . Noting that the appellants in that case owned property “adjacent to” the area governed by the easement, and that they alleged that they would suffer various harms if the MALPF’s interpretation of the easement were to stand, we concluded that: Following the reasoning of 120 W. Fayette, the [appellants] would be considered prima facie aggrieved, and thus relieved of the burden of alleging specific harm---- Thus, we conclude that the circuit court, without the benefit of 120 W. Fayette, erred in determining on summary judgment that the [appellants] lacked neighbor property owner standing. Id. at 689 , 46 A.3d 473 (emphasis in original).

Long Green Valley provides further support to the notion that prima facie aggrievement principles should apply in the instant case. First, as with 120 West Fayette St. and the case at bar, Long Green Valley was an action for declaratory relief. Second, in that case, plaintiffs challenged the legality of an “approval of a proposed use of land.” 205 Md.App. at 688 , 46 A.3d 473 . Here, likewise, appellants have challenged the legality of the County’s approval of certain land uses for Parcels 69, 200,114, and 141.

Appellees point out that there are differences between this case and 120 West Fayette St. and Long Green Valley . First, appellees argue that those cases did not, as here, involve a challenge to the legality of comprehensive rezoning legislation, but instead dealt with claims concerning the legality and interpretation of contractual instruments — the Land Disposition Agreement in 120 West Fayette St. and the agricultural preservation easement in Long Green Valley . We do not consider this difference to be dispositive. While appellees are certainly correct in their observation that nei ¹⁷⁹ ther 120 West Fayette St. nor Long Green Valley involved rezoning legislation enacted by a County Council, it is equally true that the former cases dealt with the regulation of land use by a governmental body.

As the Court stated in 120 West Fayette St., even though “[zjoning and land use provisions are not completely synonymous and co-terminous, [] they are closely related, as zoning is a form of land use regulation.” 120 West Fayette St., 407 Md. at 271 n. 7, 964 A.2d 662 (internal quotation marks and citations omitted). Indeed, the similarities between zoning and other land use regulations inspired both the Court of Appeals’ and this Court’s conclusions in 120 West Fayette St. and Long Green Valley that prima fade aggrievement principles should apply in those cases. See 407 Md. at 271-72 , 964 A.2d 662 ; 205 Md.App. at 687-89 , 46 A.3d 473 . For the same reasons, we perceive no logical or practical reason why we should remove this case from the application of the principles espoused in 120 West Fayette St. and Long Green Valley simply because appellants have challenged a comprehensive zoning ordinance, as opposed to another form of land use regulation or governmentallyimposed development control.

Second, appellees argue that 120 West Fayette St. and Long Green Valley are distinguishable from the instant facts because the land use regulation in those cases affected only a small number of properties. Here, in contrast, Bill 12-11 affected tens of thousands of properties across Anne Arundel County. We disagree with appellees that the scope of appellants’ challenge extends to all of the 59,045 parcels rezoned by the bill. The only claim of appellants applicable to the entirety of Bill 12-11 — inadequate public notice — was dropped at the hearing before the circuit court and is no longer before us.

What remains are, essentially, challenges to three discrete and readily severable portions of the bill, involving Amendment 25 and Parcels 114 and 141. These challenges do not affect tens of thousands of properties and owners, but, instead, involve, at ¹⁸⁰ most, thirteen parcels and their owners. 9 We are not convinced that the rule in the instant case should differ from the one articulated in 120 West Fayette St. and Long Green Valley . In light of 120 West Fayette St. and Long Green Valley , and, pending further instruction from the Court of Appeals, we hold that the prima facie aggrievement principles articulated in Bryniarski are applicable to the present case. 10 Applying these principles, appellant Shorter owns property abutting Parcels 69 and 200 — parcels rezoned by Amendment 25 — and, therefore, has been prima facie aggrieved by the enactment of that amendment. Thus, appellants have standing to challenge Amendment 25.

See Long Green Valley, at 652, 46 A.3d 473 (quoting Board of License Comm’rs v. Haberlin, 320 Md. 399, 404 , 578 A.2d 215 (1990) (‘Where there exists a party having standing to bring an action or take an appeal, we shall not ordinarily inquire as to whether another party on the same side also has standing.”)). In our view, appellants Chapin and Bell are near enough to Parcel 141 to be prima facie aggrieved. Chapin’s property is located approximately 100 feet from this parcel, and Bell’s property sits only 80 feet away. Evidencing the unobstructed ¹⁸¹