Committee for Responsible Development on 25th Street v. Mayor of Baltimore

KENNEY, Judge. This case arises out of a judgment of the Circuit Court for Baltimore City (“the City”) dismissing a request for judicial review made by appellant, Douglas M. Armstrong (“Armstrong”), and the Committee for Responsible Development on 25th Street (the “Committee”), based on lack of standing. 1 Armstrong and the Committee had petitioned for judicial review of a decision of the Board of Municipal and Zoning Appeals (the “Board”) denying their appeal of the issuance of a permit to appellees Robert Wexler (“Wexler”) and Charles Street Baltimore CVS, Inc. (“CVS”). Appellant presents three questions on appeal, which we have reworded and reordered as follows: 1. Is the interpretation of Council Ordinance Number 967, creating a Parking Lot District, as it relates to accessory parking lots, a matter of great public importance and likely to reoccur and therefore not moot? 2.

Does an unaggrieved taxpayer in Baltimore City have standing to petition for judicial review of a decision of the Board of Municipal and Zoning Appeals? ⁶⁶ 3. Is the appellant aggrieved and thus has standing to petition for judicial review of a decision of the Board of Municipal and Zoning Appeals? Finding no error, we affirm. FACTS AND PROCEEDINGS On July 9, 1999, the City issued a permit to Wexler and his lessee, CVS, that allowed them to consolidate lots and erect a drugstore/pharmacy on property located at 2500-2506 North Charles Street (the “Property”).

The permit contemplated the demolition of ten vacant buildings in order to accommodate the pharmacy and the adjacent parking lot containing sixteen parking spaces. The Property is zoned B-2-3 business; a pharmacy is a permitted use within that zoning area. The Property is also within the Charles Village parking lot district. Section 9.0-1 of the Baltimore City Zoning Ordinance (“BCZO”) requires accessory off-street parking to support the permitted use. 2 Armstrong resides at 2828 North Howard Street, which is approximately two blocks west and three blocks north of the Property.

Armstrong, along with the Committee, 3 appealed the grant of the permit. Both argued that the BCZO required plans for a parking lot like the sixteen space lot contemplated by CVS “to be reviewed by the Civic Design Commission and ultimately authorized ‘by an ordinance approved by the Mayor and City Council of Baltimore.’ ” The Board held a hearing on August 31, 1999. At the hearing, Armstrong argued, on behalf of himself and the Committee, that the capacity of the CVS parking lot was more than double what was needed in a B-2-3 district. He also expressed concern about the need to raze ten row houses to make way for a retail structure that did not blend in with the ⁶⁷ historical character of the neighborhood.

He also argued that the exterior design of the CVS did not meet the requirements under the zoning ordinances. Armstrong and other citizens appearing at the hearing argued that CVS needed to obtain an ordinance to build the sixteen space parking lot because of its location in a parking lot district. At the hearing, the attorney for the Mayor and City Council of Baltimore (the “City”) argued as follows: I can say that the standard practice and procedure of the zoning office has been to approve accessory parking for all uses in the parking lot districts without requiring an ordinance. The language, and I do agree that the language isn’t the best wherein they talked about parking lots versus as a permitted use without saying anything about accessory.

It’s silent on the accessory aspect of it. The—I mean that, I think, is something that’s poorly written in the ordinance. However, the standard practice and procedure ever since 1971 when the ordinance was implemented has been to allow accessory parking without applying the requirements of parking lots. The City acknowledged that if the parking lot were the principal use of the property, an ordinance would be necessary.

A parking lot is defined by the BCZO as “the land used for the off-street parking of three or more motor vehicles together with the adjoining and perimeter areas required under this section or elsewhere under the laws and ordinances of Baltimore City.” BCZO § 9.0—3(b). The City noted that the principal use of the property in this case was for a pharmacy and that, consequently, the proposed parking lot was an accessory use. The City, moreover, contended that the zoning ordinance does not prohibit developers from providing more parking spaces than required in an accessory lot, even when the development is in a parking lot district. The City, CVS, and Wexler all adduced evidence that other retail establishments in the neighborhood, specifically Hollywood Video and a Safeway supermarket, had accessory parking with spaces in excess of the minimum requirements. ⁶⁸ These businesses had not been required to receive ordinance approval because the City believed an ordinance was unnecessary for accessory use parking lots.

The Board handed down its decision sustaining the grant of the permit on September 9, 1999. Appellants filed a request for judicial review to the Circuit Court for Baltimore City. Appellees Wexler and the City moved to dismiss the appeal, arguing that both Armstrong and the Committee lacked standing. In their response to the motion to dismiss, “Appellants concede[d] that the Committee lacks standing, [but argued that] it is without question that Douglas Armstrong possesses such standing to bring this appeal.” Along with his response to the motion to dismiss, Armstrong filed an affidavit stating that all of the information in the motion was true and correct and attaching documents concerning both his own property as well as affected property on Charles Street.

The circuit court held a hearing on January 7, 2000, and granted the motion to dismiss, stating: In this particular case, the Court has been reaching for that which needs to be done. The question before this Court, and this Court’s finding is whether or not it’s a showing of Mr. Armstrong being an aggrieved party. The Court does not have before it that which is clearly a contact to him. Arguably, that his house from his steps, the front or back, he cannot see the location.

Someone would argue, well he doesn’t have to walk past it, but that’s why he’s there. He would like to walk down the street and see and feel Charles Village as being what it was when he decided to move there and that his kids will know what Charles Village is, and his grandkids will know why he moved there. And hopefully he sticks around. In this particular case before the Court, the Court does not have what it needs to have in accordance to that which has been found and decided not only by Brynaiarski, but several other cases, reported, I might add, that deals with the issue.

The McCormick Spice case dealt with the issue ⁶⁹ raised here, specifically as to what it looks like in its impact and why we feel that it should not be torn down.... What is very clear to this Court is that you have to be more specific in the battle to be able to make your argument. ... They stand that which is before me in applicable law, the Court grants the motion to dismiss. As to the Committee, the Court further finds, based on the applicable law and the cases and its interpretation, the Court is required to grant the motion to dismiss as to Mr. Armstrong, with its apologies.

Armstrong’s motion to reconsider was denied by the court on February 25, 2000. This appeal followed. DISCUSSION I. Mootness Appellant argues that this case is not moot even though appellees had already razed the buildings in order to commence construction of the pharmacy and parking lot. He asks us to decide how the particular provisions of the zoning ordinances should be applied in this case. “A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy.” Coburn v. Coburn, 342 Md. 244, 250 , 674 A.2d 951 (1996).

Moot cases are generally dismissed without a decision on the merits. Coburn, 342 Md. at 250 , 674 A.2d 951 . In rare instances, however, we can address a moot case if it “presents ‘unresolved issues in matters of important public concern that, if decided, will establish a rule for future conduct,’ or the issue presented is ‘capable of repetition, yet evading review.’ ” Stevenson v. Lanham, 127 Md.App. 597, 612 , 736 A.2d 363 (1999) (citations omitted). In the instant case, Armstrong was attempting to prevent the destruction of designed buildings along Charles Street.

These buildings have been destroyed, so we cannot provide an ⁷⁰ effective remedy, as the buildings cannot be put back. 4 Armstrong argues that this Court could still provide him with an effective remedy by requiring aesthetic changes or a reduction in the number of parking spaces. Armstrong appears to us to be requesting that we order appellees to abide by the requirements of BCZO § 9.0-3, but any failure by the appellees to abide by the requirements of the ordinance is not at issue in this case. 5 Rather, we must decide whether our interpretation of the ordinance would fall into one of the two categories that would ⁷¹ allow us to address the substance of appellant’s arguments despite the fact that his case is moot. Appellant advises that he “has reason to believe additional development requiring parking lots within the district will occur in the imminent future,” and we do not doubt that development will continue to occur. We must examine the likelihood of someone else being in Armstrong’s position, that is, a party before the Board but not a person aggrieved for the purposes of judicial review before the circuit court.

According to the statute, “[ajppeals to the Board of Zoning Appeals may be taken by any person aggrieved ... by any decision of the administrative officer.” Maryland Code (1957, 1998 Repl.Vol.), Art. 66B, § 2.08(d). We note that Armstrong’s standing before the Board was never at issue. In any event, the requirements for administrative standing are such that one may have administrative standing, but lack standing to seek judicial review. Sugarloaf Citizens’ Ass’n v. Dep’t of Environment, 344 Md. 271, 285-86 , 686 A.2d 605 (1996).

Thus, it is conceivable that a concerned citizen or group of citizens may be allowed to argue against a zoning decision before the Board but not be sufficiently aggrieved to seek judicial review of the Board’s decision. In addition, Armstrong’s ability to bring a declaratory judgment action in this case is uncertain. The Board has primary jurisdiction over zoning issues. 6 If Armstrong filed a declara- ⁷² tory judgment action regarding the interpretation or constitutionality of the ordinance, he would first have to exhaust his administrative remedies. Josephson v. City of Annapolis, 353 Md. 667, 675-76 , 728 A.2d 690 (1998); Respess v. City of Frederick, 82 Md.App. 253, 259-60 , 571 A.2d 252 (1990).

This scenario would lead to the same problem with standing that exists in the present case, as we will discuss infra. Even assuming that he could meet the requirements of showing a “justiciable controversy” pursuant to Md.Code (1974, 1998 Repl.Vol.), § 3-409(a) of the Courts and Judicial Proceedings Article, he would lack standing. Standing to bring a declaratory judgment is the same as for other cases; there must be a “legal interest” such as “one of property, one arising out of a contract, one protected against tortious invasion, or one founded on a statute which confers a privilege.” Baltimore Steam Co. v. Baltimore Gas & Elec. Co., 123 Md.App. 1, 15 , 716 A.2d 1042 (1998) (quoting Tennessee Elec.

Power Co. v. Tennessee Valley Auth., 306 U.S. 118, 137-38 , 59 S.Ct. 366, 369 , 83 L.Ed. 543 (1939)). We recognize that Baltimore Steam Co. has since been vacated by the Court of Appeals because the case had become moot during the appellate process. Baltimore Gas & Elec. Co. v. Baltimore Steam Co., 353 Md. 142 , 725 A.2d 549 (1999).

Nevertheless, we believe that our explanation of standing in the administrative context is helpful: ⁷³ Ordinarily, only the public authorities have standing to seek redress for violations of the public laws, and a private individual has standing to do so only when she can show that she has “ ‘suffered some special damage [read “injury”] from such wrong differing in character and kind from that suffered by the general public.’ ” Becker v. Litty, 318 Md. 76, 92-93 , 566 A.2d 1101, 1109 (1989) (quoting Weinberg v. Kracke, 189 Md. 275, 280 , 55 A.2d 797, 799 (1947)). Baltimore Steam Co., 123 Md.App. at 18 , 716 A.2d 1042 . Armstrong has not suffered, nor will he conceivably suffer, “special damages” such that he will have standing to bring a declaratory judgment action. We believe that the circumstances present an issue of public concern that is “capable of repetition yet evading review.” Thus, we would be prepared to address the substance of appellant’s argument if he indeed has standing.

II

Standard of Review Appellant appeals an order of the trial court that granted appellees’ separate cross-motions to dismiss based on appellant’s lack of standing. Both parties’ pleadings, however, contained supplemental information that the judge did not exclude during the hearing, including the entire record below as well as documents attached to the parties’ motions. Thus, because the standard for reviewing a motion to dismiss is different from the standard for reviewing a motion for summary judgment, we must first resolve what motion the court actually granted even though it stated that it granted the motion to dismiss. The record indicates that the parties in this case supplemented their motions with various materials, including copies of plats, an affidavit, tax documents, and applications to raze different buildings along North Charles Street.

As this Court stated in Boyd v. Hickman, 114 Md.App. 108 , 689 A.2d 106 , cert. denied, 346 Md. 26 , 694 A.2d 949 (1997): When the circuit court considers matters outside the pleadings, the court treats the matter as a motion for summary ⁷⁴ judgment, and the legal effect of the ruling in favor of the moving party is to grant a motion for summary judgment notwithstanding the court’s designation of the ruling as a motion to dismiss. Id. at 117-18 , 689 A.2d 106 (citations omitted); see Md. Rule 2-322(c). Because the circuit court considered materials outside the pleadings, 7 the order in this case was a grant of a motion for summary judgment and we will treat it as such. “When reviewing the trial court’s grant of a motion for summary judgment, we must consider whether a dispute of material fact existed and whether the trial judge was legally correct.” Taylor v. Feissner, 103 Md.App. 356, 366 , 653 A.2d 947 , cert. denied, 339 Md. 355 , 663 A.2d 73 (1995).

III

Standing of Appellant as a Taxpayer Armstrong’s first argument is that, as a taxpayer, he had standing to petition for judicial review of the Board’s decision to uphold the grant of the permit. As support for this argument, he points to Section 11.0-3(0(1) of the BCZO, which states: Any person or persons jointly or severally aggrieved by any decision of the Board, or any taxpayer, or any officer, department, board, or bureau of the municipality, may appeal such decision to the Baltimore City Court setting forth that such decision is unlawful, in whole or in part, and specifying the unlawful grounds thereof. This language dates back to at least 1950. The Maryland Code, on the other hand, states: Any person or persons, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, jointly or severally aggrieved by any decision of the board of appeals, ⁷⁵ or by a zoning action by the local legislative body, may appeal the same to the Circuit Court for Baltimore City.

Art. 66B, § 2.09(a). This language went into effect with the 1970 amendment to the statute. Despite appellant’s arguments to the contrary, a conflict exists between the local zoning ordinance and the foregoing Code provision, as the local ordinance allows a taxpayer, whether aggrieved or not, to appeal a decision by the Board. See Boulden v. Mayor & Comm’rs of Town of Elkton, 311 Md. 411, 414 , 535 A.2d 477 (1988) (interpreting a State statute with almost identical language as allowing non-aggrieved taxpayers to appeal a zoning decision).

The Code, however, requires the taxpayer to have been aggrieved by the Board’s decision. See Boulden, 311 Md. at 417 , 535 A.2d 477 (stating that a municipal ordinance with language substantially identical to that of Art. 66B, § 2.09 required aggrievement). In situations like this, where there is a conflict between a Baltimore City ordinance and a public general law of the State, the public general law controls: All such local laws enacted by the Mayor of Baltimore and City Council of the City of Baltimore or the Council of the Counties as hereinbefore provided, shall be subject to the same rules of interpretation as those now applicable to the Public Local Laws of this State, except that in case of any conflict between said local law and any Public General Law now or hereafter enacted the Public General Law shall control. Md. Const., art.

XI-A, § 3. See also Boulden, 311 Md. at 415 , 535 A.2d 477 . Armstrong attempts to circumvent the plain language of the statute by citing a number of cases allowing taxpayers standing in Baltimore City by virtue of their status as taxpayers. See, e.g., City of Baltimore v. Byrd, 191 Md. 632 , 62 A.2d 588 (1948); Norwood Heights Improvement Ass’n., Inc. v. Mayor & City Council of Baltimore, et al., 195 Md. 368 , 73 A.2d 529 (1950); Windsor Hills Improvement Ass’n., Inc. v. Mayor & City Council of Baltimore, 195 Md. 383 , 73 A.2d 531 ⁷⁶ (1950); and Kennerly, et al. v. Mayor & City Council of Baltimore, 247 Md. 601 , 233 A.2d 800 (1967).

As appellant conceded at oral argument, each of these cases concerns an earlier version of Art. 66B, § 2.09 and are not instructive. Appellant relies heavily on Sipes v. Board of Municipal and Zoning Appeals, 99 Md.App. 78 , 635 A.2d 86 (1994), in arguing that he had standing by virtue of his status as a taxpayer. He cites to the following dicta for support: “there is no question that Sipes, as a taxpayer, was entitled to appeal the decision of the Board.” Sipes, 99 Md.App. at 90 , 635 A.2d 86 . This is not a holding of the case, however, as Sipes’ standing as both a taxpayer and as an aggrieved party was not contested.

Sipes, 99 Md.App. at 89 , 635 A.2d 86 . As noted by the Court, the “only question the parties ask us to decide is whether Sipes could intervene in an appeal after the running of the thirty day appeal period, where that appeal was originally filed by parties without standing.” Sipes, 99 Md.App. at 90 , 635 A.2d 86 . The issue of conflict between Art. 66B, § 2.09 and subsection 11.0—3(i )(1) of BCZO was not raised in Sipes . Appellant seeks to bolster his argument by stating that the words “or other taxpayer” in Article 66B, § 2.09 are superfluous because if aggrievement is required of any party seeking an appeal “any person or persons aggrieved” would be sufficient.

Under longstanding rules of statutory construction, we should avoid rendering a clause, sentence, or phrase “surplusage, superfluous, meaningless, or nugatory.” State v. Pagano, 341 Md. 129, 134 , 669 A.2d 1339 (1996) (quoting Montgomery County v. Buckman, 333 Md. 516, 524 , 636 A.2d 448 (1994)). If we accepted appellant’s arguments, we could be rendering a good portion of the statute—“or any taxpayér, or any officer, department, board, bureau of the jurisdiction”—meaningless. Appellant next argues that, by enacting Art. 66B, § 2.09(f), the legislature gave the Mayor and City Council of Baltimore City the power to broaden standing to request judicial review of Board decisions. BCZO § 11.0-3(0(1)- Section 2.09(f) states: ⁷⁷ In addition to the appeal provided in this section, the Mayor and the City Council may provide for appeal to the Circuit Court for Baltimore City of any matter arising under the planning and zoning laws of the City of Baltimore.

The decision of the Circuit Court for Baltimore City may be appealed to the Court of Special Appeals. This subsection does not restrict any charter or other power of the city. Art. 66B, § 2.09(f) (emphasis supplied). Of course, “[e]very quest to discover and give effect to the objectives of the legislature begins with the text of the statute.” Huffman v. State, 356 Md. 622, 628 , 741 A.2d 1088, 1091 (1999).

If the legislature’s intentions are evident from the text of the statute, our inquiry normally will cease and the plain meaning of the statute will govern. Adamson v. Correctional Medical Services, Inc., 359 Md. 238, 251 , 753 A.2d 501 (2000) (citations omitted). The plain language of § 2.09(f) concerns the appeal of “matters” arising under the planning and zoning laws of Baltimore City, and not standing. We do not interpret the language of this statutory provision as allowing the Mayor or City Council to expand standing beyond that conferred by the State legislature.

We hold that taxpayers must be aggrieved in order to seek judicial review of the decision of the Board. If we find that the BCZO § 11.0-3(Z )(1) is in conflict with and preempted by Art. 66B, § 2.09(a), as we have done, appellant then argues that State statute is unconstitutional, because it “arbitrarily discriminates against residents and taxpayers of Baltimore City as opposed to taxpayers located in the counties.” Armstrong did not raise this issue before the trial court, so it is unpreserved for appeal. Moreover, this argument is without merit. We view Armstrong’s claim as resting on equal protection grounds.

See Gooslin v. State, 132 Md.App. 290, 297 , 752 A.2d 642 , cert. denied, 359 Md. 334 , 753 A.2d 1031 (2000). Equal protection claims will be reviewed under the rational basis standard unless the classification burdens a “suspect class” or impinges upon a “fundamental right.” Gooslin, 132 Md.App. at 297-98 , 752 ⁷⁸ A.2d 642. Suspect classes include gender, race, illegitimacy, and alienage, and not place of residence. Murphy v. Edmonds, 325 Md. 342, 357 , 601 A.2d 102 (1992).

As appellant conceded at oral argument, there is no “suspect class” involved here. Our next inquiry, therefore, is whether the right at issue here is a “fundamental right.” The right at issue is the right to have a decision of the zoning Board reviewed by the circuit court. The right to an appeal is not a right required by due process of law, nor is it an inherent or inalienable right. Lindsey v. Normet, 405 U.S. 56 , 92 S.Ct. 862 , 31 L.Ed.2d 36 (1972); Griffin v. Illinois, 351 U.S. 12 , 76 S.Ct. 585 , 100 L.Ed. 891 (1956); Brown v. State, 237 Md. 492, 498-499 , 207 A.2d 103, 108 (1965); Winkler v. State, 194 Md. 1, 16-17 , 69 A.2d 674, 679-680 (1949), and cases therein cited.

See also 16 Am.Jur.2d Constitutional Law § 584 (1964); 2 Am.Jur.2d Administrative Law § 557 (1962); 4 Am.Jur.2d Appeal and Error § 1 (1962). An appellate right is entirely statutory in origin and no person or agency may prosecute such an appeal unless the right is conferred by statute. See Lohss v. State, 272 Md. 113, 116 , 321 A.2d 534, 536-537 (1974); Mace Produce Co. v. State’s Attorney, 251 Md. 503, 508 , 248 A.2d 346, 350 (1968); Subsequent Injury Fund v. Pack, 250 Md. 306, 309 , 242 A.2d 506, 509 (1968); Switkes v. John McShain, Inc., 202 Md. 340, 343 , 96 A.2d 617, 619 (1953). See also Ex parte Abdu, 247 U.S. 27 , 38 S.Ct. 447 , 62 L.Ed. 966 (1917[1918]); 2 J. Poe, Pleading and Practice § 826 (Tiffany ed.1925).

If appellate review is not permitted unless expressly granted by statute, as was held in Urbana Civic Ass’n, Inc. v. Urbana Mobile Village, Inc., 260 Md. 458, 460-461 , 272 A.2d 628, 630 (1971), a fortiori, there is equally no right of appeal if that right is expressly excluded by statute. Criminal Injuries Comp. Board v. Gould, 273 Md. 486, 500 , 331 A.2d 55 (1975); see also Holmes v. Robinson, 84 Md.App. 144, 151 , 578 A.2d 294 (1990), cert. denied, 321 Md. 501 , 583 A.2d 275 (1991). Here, the right to appeal the Board’s ⁷⁹ decision is limited by the statute such that not everyone can appeal.

Thus, we review this law under the rational basis test. “The rational basis test requires appellant to prove that (1) the County treated [him] differently than it treated others similarly situated, and (2) the disparate treatment did not bear a rational relationship to a legitimate interest.” Security Management Corp. v. Baltimore County, 104 Md.App. 234, 243-44 , 655 A.2d 1326 , cert. denied, 339 Md. 643 , 664 A.2d 886 (1995). The sum total of appellant’s argument is: Taxpayers in the county have a right to appeal based upon Article 66B, Section 4.08. Wexler acknowledges that Article 66B, Section 4.08 permits taxpayers in the county to appeal zoning decisions to the Circuit Court in the exact same fashion as the Baltimore City Ordinance and the earlier provisions of Article 66B. There is no rationale or justification in the legislation to suggest that the Maryland General Assembly has any basis to discriminate against taxpayers of Baltimore City, as compared with taxpayers in the counties in denying them the same ability to appeal.

The Appellants have found no language which would support and justify the distinctions between rights of taxpayers to appeal in the City as opposed to the counties authorized under Article 66B. If a law is applied and administered by public authority “with an evil eye and an unequal hand” so as to make unjust discriminations between persons in similar circumstances, material to their rights, such denial of equal justice is within the prohibition of the Constitution. See Bruce v. Director of Common Dept. of Chesapeake Bay Affairs[Director, Dept. of Chesapeake Bay Affairs], 261 Md. 585, at 600 [ 276 A.2d 200 ] (1971). As to an appeal within Baltimore City there is, of course, no discrimination.

Anyone, including taxpayers from outside Baltimore City, wishing to appeal a Board decision to the Circuit Court for Baltimore City must show aggrievement. The alleged discrimination arises from the differences in standing vis-a-vis appeals of zoning