Cylburn Arboretum Ass'n v. Mayor of Baltimore

BLOOM, Judge. This appeal by Cylbum Arboretum Association, Inc. (Association) is from the dismissal, for lack of standing, of its petition for judicial review of a zoning ordinance, Ordinance No. 266, passed by appellee Mayor and City Council of Baltimore, the municipal body corporate of the City of Baltimore (the City), approving the application of appellee Cylburn Hills L.L.C. to establish a Planned Unit Development known as Cylburn Hills. Appellant’s brief lists a triad of issues: I. Is appellant an aggrieved party under Art. 66B, § 2.09 of the Maryland Annotated Code?

II

Does appellant have a personal interest which would be adversely affected by the Planned Unit Development authorized by Baltimore City Ordinance 266?

III

Does appellant have an interest which is specifically affected in a way different from that suffered by the public generally? We rephrase those issues as a single question: Did the Circuit Court for Baltimore City err in ruling that the Association was not an aggrieved party under § 2.09 of Art. 66B of the Maryland Code and thus had no standing to challenge the validity of Ordinance No. 266? Our answer to that question being “No,” we shall affirm the judgment of the circuit court. ¹⁸⁵ FACTS Cylburn, or Cylburn Park, once the residence of a wealthy Baltimore family, was acquired by the City in 1943. The deed conveying Cylburn to the City contains a provision that the property is to be used as a public park.

In 1954, a group of citizens called the Steering Committee drafted a plan to establish a garden center and wild flower preserve in the park and to maintain its facilities. The Baltimore City Board of Recreation and Parks unanimously approved the Steering Committee’s proposed plan in December 1954 and authorized the Steering Committee to use those areas of the arboretum that were then available as a garden center and wild flower preserve pursuant to the plan. In October 1958, the Cylburn Mansion was opened to the public. The Steering Committee, which was renamed the Cylburn Wildflower Preserve and Garden Center, presently maintains an office and a gift shop in the mansion.

The mansion is also used to conduct fundraising activities and hold horticulture and nature classes. The Cylburn Wildflower Preserve and Garden Center was incorporated in December 1970. In August 1982, the Cylburn Wildflower Preserve and Garden Center amended its Articles of Incorporation to rename itself the Cylburn Arboretum Association, Incorporated. Under its Articles of Incorporation, the Association was given “all of the powers conferred by the General laws of the State of Maryland,” and is authorized to “preserve and augment the existing natural beauty and facilities of Cylburn Arboretum____” On 10 March 1970, the Director of the Baltimore City Department of Recreation and Parks, Douglas S. Tawney, sent a letter to the Association’s president, advising him as follows: I regard our existing relationship as a revocable license to use to our mutual advantage the facilities at Cylburn [Park], If your organization becomes incorporated and we continue to operate in the same fashion under our revocable license ¹⁸⁶ or verbal understanding, I can see no adverse affects [sic] of incorporation.

Since 1958, the Association, under license from, i.e., with the permission of, the City’s Department of Recreation and Parks, has occupied and preserved the Cylburn Mansion, maintained the park’s grounds and gardens, installed sprinklers, conducted an annual “Market Day,” and planted trees and other vegetation in the park. The Association acknowledges that this permissive use, which is not for any specific term of duration, does not constitute a property right of interest; it is, as the 1970 letter of Mr. Tawney characterized it, a revocable license. The Association contends that, pursuant to that license, it has spent over $440,000 and volunteered “hundreds of thousands of manhours in an effort to preserve, protect and promote the Cylburn Arboretum.” On 8 January 1978, the City, having acquired a tract of land abutting the south boundary of Cylburn Park, approved Ordinance No. 242. Paragraph B.3 of Ordinance 242 established, on that abutting property, a “buffer area,” the purpose of which was to protect the park from haphazard development around its borders.

On 27 October 1993, the City, having contracted to sell to Cylburn Hills L.L.C. a substantial part of the buffer property, enacted Ordinance No. 266, which approved the purchaser’s application for a zoning change to permit development of the property as a Planned Unit Development (PUD). According to a proposed site plan, some residential units of the PUD would be constructed close to the park’s southern boundary. On 26 November 1993, the Association filed a petition in the Circuit Court for Baltimore City for judicial review of Ordinance 266, alleging that the Ordinance illegally allowed development within the buffer zone created by Ordinance 242. The City moved to dismiss the petition on the grounds that the Association lacked standing under Maryland Code (1957, 1988 RepLVol., 1994 Cum.Supp.), Art. 66B, § 2.09.

The circuit court granted the motion on 3 March 1994 and dismissed the Association’s petition with leave to amend. Appellant subse ¹⁸⁷ quently filed an amended petition on 16 March 1994, which the City again moved to dismiss on the grounds that appellant lacked standing. On 12 May 1994, the City enacted Ordinance No. 324, which purported to amend Ordinance 242 in a manner that would eliminate the arguments raised in the Associations’s amended petition. On 20 May 1994, the City moved to dismiss the amended petition as moot.

After the court granted its motion to intervene in July 1994, Cylburn Hills L.L.C. also moved to dismiss the Association’s amended petition, essentially adopting the arguments set forth in the City’s motion. In opposition, the Association submitted several exhibits and affidavits to support its claim that it has standing. 1 Treating appellees’ motions to dismiss as motions for summary judgment, the circuit court, in a Memorandum Opinion and Order issued 14 July 1994, denied appellees’ motions to dismiss the amended petition as being moot, but granted their motions to dismiss for lack of standing. Discussion The principal question in the case before us is whether the lower court erred in granting summary judgment. A trial court may grant summary judgment when pre-trial documents demonstrate that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.

Md. Rule 2-501(e). Even assuming that appellant did have a license to use Cylburn Park, none of the facts upon which the lower court based its judgment are in dispute. 2 Thus, in reviewing the grant of summary judgment, ¹⁸⁸ we need only determine “whether the trial court was legally correct.” Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 737 , 625 A.2d 1005 (1992). Appellant contends that, as an association, 3 it has standing to challenge the City’s zoning action pursuant to Maryland Code (1957, 1988 Repl.Vol., 1994 Cum.Supp.), Art. 66B, § 2.09. Article 66B, § 2.09 provides that “[a]ny person or persons ... jointly or severally aggrieved by ... a zoning action by the local legislative body, may appeal the same to the Circuit Court for Baltimore City.” In Bryniarski v. Montgomery County, 247 Md. 137, 144 , 230 A.2d 289 (1967), the Court of Appeals interpreted the meaning of the term “aggrieved” as follows: [A] person aggrieved by the decision of a board of zoning appeals is 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. DuBay v. Crane, 240 Md. 180, 185 , 213 A.2d 487 (1965). The circumstances under which this occurs have been determined by the courts on a case by case basis, and the decision in each case rests upon the facts and circumstances of the particular case under review. The Court further stated that the complainant carries the burden of establishing that he is “aggrieved.” Id. at 144-45, 230 A.2d 289 . ¹⁸⁹ The Court in Bryniarski established a two-prong test that a plaintiff must meet to establish standing to challenge a zoning act.

First, the plaintiff must demonstrate that it has a personal or property interest that will be adversely affected by the zoning act. Second, the plaintiff must establish that his personal or property interest will be harmed by the zoning act in a way that is distinct from the harm that the general public will suffer. A. Personal Interest Appellant, recognizing that a revocable license does not constitute a property interest, Mayor of Baltimore v. Brack, 175 Md. 615 , 3 A.2d 471 (1939); Brehm v. Richards, 152 Md. 126 , 136 A. 618 (1927), has not asserted that it satisfies the first prong of the Bryniarski test based on a property interest derived from its revocable license to use the park. Instead, appellant contends that its revocable license, coupled with the vast amounts of money and labor that it has donated to the park over the years, establishes the personal interest contemplated in Bryniarski .

The circuit court found appellant’s argument to be unpersuasive. According to the lower court, because appellant “has no property rights adversely affected by any of the ordinances, ... the Association cannot prevail” under traditional standing analysis. Citing Izaak Walton League v. Monroe Co., 448 So.2d 1170, 1174 (Fla.Dist.Ct.App.1984); Miller v. Fulton County, 258 Ga. 882 , 375 S.E.2d 864, 865 (1989); Clark Oil & Ref. Corp. v. City of Evanston, 23 Ill.2d 48 , 177 N.E.2d 191, 192-93 (1961); and