Greater Towson Council of Community Associations v. DMS Development, LLC

Berger, J. This appeal arises from two petitions for judicial review in the Circuit Court for Baltimore County of two zoning decisions of the Board of Appeals (“Board”) involving a proposed Planned Unit Development (“101 York PUD” or “the PUD”) located in Baltimore County, Maryland. Appellant and cross-appellee, Greater Towson Council of Community Associations (“GTC”)—an “umbrella group” that represents more than 30 neighborhoods in Towson, Maryland—opposed the approval of the PUD before the Board in one case (the “PUD approval case”), and the County Council’s grant of a waiver of local “open space” requirements in the other case (the “open space waiver ease”). The Board ruled in favor of the developer of the 101 York PUD, appellee and cross-appellant, DMS Development, LLC (“DMS”) in both cases. The cases were consolidated before the circuit court, and DMS moved to dismiss GTC’s petition based on its assertion that GTC lacked standing.

Multiple parties have been involved at varying points during the ascent to this Court of both cases. Nevertheless, only GTC timely filed and continued to maintain its petitions for judicial review before the circuit court at the decisive point in the proceedings. In both appeals from the circuit court affirming the Board’s decisions on the merits in both cases, GTC presents several issues for our review. Many aspects of the issues are overlapping as GTC had averred in the PUD approval case that the PUD should not be approved because the open space waiver was not properly granted.

We list the issues on the merits of each case in turn. In the open space waiver case, GTC asks us to decide the following questions, which we have reworded as follows: 1. Whether the circuit court erred when it affirmed the ruling of the Board to grant the open space waiver, even though the County’s original approval of the waiver was granted by the Deputy Administrative Officer and Director of Permits Approvals and Inspections (“Deputy Director”), rather than the Director of Recreation and Parks. 2. Whether the circuit court erred when it determined that the PUD constituted a “dormitory” and affirmed the Board’s decision to approve the open space waiver, which was based on its finding that the PUD was located in a “RAE” district. 3.

Whether the circuit court erred when it affirmed the ruling of the Board that the open space waiver fee of “zero” was not appealable. In GTC’s appeal of the circuit court’s affirmance of the Board’s decision in the PUD approval case, GTC presents us with the following issues: 1. Whether the Board and the circuit court erred when each ruled that the Administrative Law Judge had no statutory authority to condition approval of the PUD on the payment of an open space waiver fee. 2. Whether the circuit court erred when it found that the Deputy Director’s approval of an open space waiver did not render the waiver invalid and, therefore, that the Board erred when it affirmed the Administrative Law Judge’s decision to approve the PUD. 3.

Whether the circuit court erred when it affirmed the Board’s decision affirming the decision of the Administrative Law Judge to approve the PUD, the Board’s decision in the open space waiver case to grant the waiver on the basis of the PUD’s zoning district, without determining whether the PUD constituted a “dormitory.” 4. Whether the circuit court erred when it affirmed the Board’s decision to affirm the ruling of the Administrative Law Judge, which found that the zoning density permitted on the property was properly amended by the County Council. DMS has noted cross-appeals in both cases, arguing that the GTC does not have standing to maintain an appeal. In that context, DMS presents us with primarily three issues, which we have reworded as follows: I. Whether the circuit court erred when it denied DMS’s motion to dismiss GTC’s petition for judicial review of the Board’s decision in the open space waiver case based on GTC’s lack of standing before the circuit court.

II

Whether the circuit court erred when it denied DMS’s motion to dismiss GTC’s petition for judicial review of the Board’s decision in the PUD approval case based on GTC’s lack of standing before the circuit court.

III

Whether the circuit court erred when it granted motions to intervene in the PUD approval case after the limitations period for filing an appeal of the Board’s decision had expired, DMS had filed a motion to dismiss GTC’s petition for judicial review, and where the intervenors were not parties in the proceedings before the Board. Because of the similarity of the standing issues in both cases, and because GTC’s standing to appeal the Board’s decisions to the circuit court is determinative in both the PUD approval case and the open space waiver case, we have consolidated our opinions in both cases below. In our view, the issues presented by DMS in its cross-appeals are dispositive in both cases. We hold that GTC did not have standing to petition for judicial review of the Board’s decisions in either of the two cases, and therefore, the circuit court erred when it denied DMS’s motion to dismiss and reached the merits of the case.

FACTS AND PROCEEDINGS DMS is the developer of property which is the subject of a proposed PUD, known as the 101 York PUD. The proposed PUD’s location is in the heart of urban Towson, Maryland, just north of the intersection of York Road and Burke Avenue. The PUD will contain a “mixed residential dormitory and commercial project.” On July 7, 2014 the Baltimore County Council (“County Council”) passed Resolution 40-14, which made the PUD eligible for review by Baltimore County agencies. Pursuant to BCC § 32-6-108(c), new developments are required to provide a certain amount of recreational “open space” depending on the number of residential units.

DMS was granted a waiver of the local open space requirement, and the County set the fee to be paid in lieu of meeting the open space requirements at “zero” dollars. On October 7, 2013 the PUD application was submitted to the County Council. The Post-Submission Community Input Meeting was held on October 30, 2013, On April 24, the Baltimore County Council resolved Resolution 40-14, which provided that the 101 York PUD was eligible for continued review, pursuant to BCC § 32-4-241 et. seq. The Pre-Concept Meeting was held on July 21, 2014, followed by a Community Input Meeting on September 9, 2014 and two more Community Input Meetings on October 6 and 28 of 2014.

A Concept Plan Conference was held on August 8, 2014 and a Development Plan Conference was held on December 10, 2014. On January 9, 2015 Arnold Jablon, Deputy Administrative Officer and Director of Permits Approvals and Inspections, recommended that the Council approve DMS’s request for a waiver of the local open space requirements. The recommendation was based on several factors including DMS’s representation that it was exempt from satisfying the open space requirements because: (1) the “[pjroject is located in a RAE zone or CT district;” and (2) the “[pjroject is... dormitories for the housing of not less than 50 students attending an accredited higher education institution.” Additionally, the Department of Recreation and Parks determined that “there is no suitable land to meet the open space requirements” and confirmed that “[tjhere is no Master Plan and/or other County plan conflict.” 1 On December 10, 2014, the Zoning Review Board issued an additional comment to its final recommendations noting, The dormitory rooms shall be occupied as temporary housing by matriculating Towson University students only. A Special Hearing shall be required prior to any such rooms being rented or otherwise occupied as permanent or temporary housing to non matriculating Towson University Students.

According to Resolution 63-00, the fee-in-lieu for a local open space waiver for this project was set at “zero” dollars. The Council approved Resolution 40-14 at its July 7, 2014 meeting, which approved the continued review of the proposed PUD. Resolution 40-14 provides the following: WHEREAS, the site fronts York Road and is zoned B.M. and R.A.E.2, and the PUD proposes the development of a high quality mixed residential dormitory and commercial project containing 611 beds, 495 parking spaces, and approximately 10,000 square feet of commercial spaces, and provides for two means of access, one via York Road and one via an easement to Burke Avenue which involves access to commercial parking over an adjacent parcel through a residential zone R.A.E.2; * * * WHEREAS, prior to the submission of its application the developer DMS held extensive community meetings with surrounding homeowners’ associations and interested stakeholders, including the Greater Towson Council of Community Associations and the Towson Triangle Committee created by the office of Councilman Marks; * * * BE IT RESOLVED BY THE COUNTY COUNCIL OF BALTIMORE COUNTY, MARYLAND that the proposed site for the general development PUD filed by DMS and known as “101 York” is eligible for continued County review in accordance with Section 32-4-241, et seq. of the County Code. BE IT FURTHER RESOLVED, that due to the public policy and community benefits that stem from the PUD, the County Council approves the proposed density for the proposed PUD to permit a total of 611 dormitory beds on the property, 495 parking spaces, and the inclusion of approximately 10,000 square feet of commercial space on the site; and BE IT FURTHER RESOLVED, that the County Council approves the use of two means of access for the PUD, one via York Road and one via an easement to Burke Avenue which involves access to commercial parking over an adjacent parcel through a residential zone (R.A.E.2).

After the three Community Input Meetings and the County’s approval of the PUD, GTC and the American Legion, an adjacent property owner, opposed the approval before the Hearing Examiner, also referred to in the proceedings below as the Administrative Law Judge (“ALJ”). The proceedings before the ALJ on the approval of the PUD began on January 12, 2015. The ALJ approved the PUD on May 12, 2015, subject to certain conditions including that DMS pay a waiver fee of $1,358,084.00, rather than the zero dollar waiver fee set by the County Council in Resolution 63-00. GTC appealed the ALJ’s approval of the waiver to the Board, and DMS appealed the ALJ’s decision to make approval of the PUD subject to the payment of a $1,358,084.00 fee.

On October 5, 2015, the Board affirmed the ALJ’s decision to approve the PUD, but reversed the ALJ’s decision to make approval subject to the fee set by the ALJ. The Board based its decision on its conclusion that the ALJ did not have authority or jurisdiction over the decision to grant the open space waiver. That authority, the Board found, was given to the Board under the Baltimore County Charter, §§ 602 and 603. Indeed, the open space waiver issue was pending before the Board in a separate case when the ALJ issued his findings on that issue.

Unlike the PUD approval ease, which first went before the AL J only on the issue of the PUD’s approval, the first decision to be made and contested in the open space waiver case was the decision of the Director of Permits Approvals and Inspections to approve the open space waiver on January 9, 2015. GTC appealed the County’s grant of an open space waiver to the Board of Appeals directly. The Board of Appeals reviewed the decision to grant the open space waiver de novo. See Md. Code (2013, 2013 Repl.

Vol.), § 10-305, Local Government Art. (permitting original jurisdiction for local county boards of appeals or jurisdiction to review the action of an administrative officer or unit of county government.). On September 17, 2015, the Board of Appeals in the open space waiver case approved the waiver for the 101 York PUD, including the County Council’s designation of a zero dollar waiver fee. Two separate petitions for judicial review were filed in the Circuit Court for Baltimore County of the Board’s October 5, 2015 decision, which affirmed the ALJ’s decision to approve the PUD but reversed the ALJ’s ruling making approval of the PUD subject to a $1,358,084.00 fee for the open space waiver. The first petition was filed by GTC on October 16, 2015, and the second petition was filed on October 29, 2015 by the American Legion, Post No. 22, Inc. (“American Legion”), along with the following individuals: Frederick Hofferbert, Jr., James Rebbert, Paul Moran, John Adair, and Kraig Dean, all of 125 York Road.

On January 21, 2016, after previously attempting to file a dismissal of their petition on January 15, 2016, the American Legion and all of the individual petitioners, as well as DMS, filed a Stipulation of Partial Dismissal in the PUD approval case. After the stipulated dismissal, the only remaining petitioner in both the PUD approval case and the open space waiver case was GTC. DMS filed motions to dismiss in both the PUD approval case as well as the open space waiver case based on GTC’s lack of standing. On or around February 16, 2016, after DMS filed its motions to dismiss, Towson Lubrication, LLC (doing business as Jiffy Lube) (“Towson Lubrication”), Helen Keplinger (“Kep-linger”), Ed Kilcullen (“Kilcullen”) and two others 2 filed motions to intervene in the petition for judicial review of the Board’s decision in the PUD approval case. 3 None of the intervenors were parties before the Board proceedings in the PUD approval case.

DMS opposed the motion to intervene. Both the PUD approval and the open space waiver cases were consolidated for the proceedings before the circuit court. At the June 1, 2016 hearing, the circuit court denied DMS’s motions to dismiss based on GTC’s lack of standing in both cases. The circuit court further granted the motion to intervene filed by Towson Lubrication, Keplinger, and Kilcullen in the PUD approval case, despite acknowledging that the inter-venors were not parties in the case before the Board.

The circuit court’s decision to grant the motions to intervene was based, in part, on its determination that GTC—the only remaining petitioner in the case—had standing to petition for judicial review. By the end of the proceedings on June 1, 2016, however, the circuit court affirmed both of the Board’s decisions—the September 17, 2015 decision to approve the open space waiver for the 101 York PUD and the Board’s October 5, 2015 decision to affirm the ALJ’s decision to approve the PUD. Additional facts will be provided below as they become relevant. DISCUSSION I. Statutory Framework There are two paths by which a land use decision made by the County may reach the Board.

Counties are permitted to create local Boards of Appeals under the authority of Md. Code (2013, 2013 Repl. Vol.), § 10-305 of the Local Government Article (“LG”). Under that authority, a Board of Appeals “may have original jurisdiction or jurisdiction to review the action of an administrative officer or unit of county government.” LG § 10-305(b). The Court of Appeals provided in Chesapeake Bay Found., Inc. v. DCW Dutchship Island, LLC, that a county has the “ability to set reasonable conditions precedent to access to its Board of Appeals [as] an exercise of its Home Rule.” 439 Md. 588, 604 , 97 A.3d 135 (2014).

The final approval of a PUD, after the Council approves its continued review, is made by a Hearing Officer (the ALJ), which is subject to review by the Board, if an appeal of the ALJ’s decision is filed. The Baltimore County Code (“BCC”) provides certain procedures and design requirements for the approval of a PUD. Among other requirements, “[a]n application for approval for a [PUD] shall be submitted to the” appropriate County Council member and include certain content, such as “an explanation of how the site and acreage meet the criteria for the type of [PUD] that is proposed.” BCC § 32-4-242(a) & (b). “[Community residents and organizations may provide written input and comments regarding the proposed development to the Council member” before the Council adopts “a resolution approving the continued review of the [PUD],” assuming all other preliminary community meetings, public postings and notices, and reviews conducted by county agencies are met. See BCC § 32-4-242(a)-(c).

Finally, the Council may adopt a resolution approving “the continued review of the [PUD] in accordance with the procedures of’ the BCC and county zoning regulations “[i]f the Council finds that the [PUD] will achieve a development of substantially higher quality than a conventional development would achieve and that the proposed site for the [PUD] is eligible for county review.” BCC § 32-4-242(d)(1). Further, “[t]he Council may amend or modify the densities or uses in the proposed [PUD] and shall include such amendments or modifications in the resolution adopted under this subsection.” BCC § 32-4-242(d)(2). Next, an ALJ, <(conduct[s] a hearing on the PUD development plan in accordance with the provisions of §§ 32-4-227 and 32-4-228.” BCC § 32-4-245; see also § 32-4-227(a) (providing that “final action on a Development Plan may not be taken until after a public quasi-judicial hearing before a Hearing Officer”). The ALJ must “issue a written decision that approves or denies the PUD development plan and may condition approval on comments contained in the Director’s report or otherwise.” BCC § 32-4-245(a)(2).

The scope of the ALJ’s review of the proposed PUD encompasses the PUD’s “compliance with the requirements of the Baltimore County Zoning Regulations and the development regulations,” including “[t]he height, area, setback, parking, open space, sign and other development and zoning requirements of the underlying zone or district that apply in that portion of the proposed [PUD].” BCC § 32-4-245(b). The ALJ’s approval of the PUD development plan may be conditioned on “higher design standards,” and the ALJ may “[a]pprove modifications of the applicable requirements of the underlying zone upon a finding that they are necessary to achieve the intent and purpose of [Article 32, Section 4 of the Code],” and “[a]ccept any proposed community benefit and further define its terms.” BCC § 32-4-245(b)(3). With the exception of further defining the terms of the community benefit, the ALJ “may not alter the amendments of modifications imposed by the County Council under § 32-4-242(c) or ... alter the community benefit identified in the Council resolution.” BCC § 32-4-245(b)(4). The ALJ’s decision “is subject to appeal” under BCC § 32-4-281.

See BCC § 32-4-245(d). Pursuant to BCC § 32-4-281, “[a] person aggrieved or feeling aggrieved by final action on a Development Plan may file a notice of appeal with the Board of Appeals ... within 30 days after the date of the final decision of the Hearing Officer.” Under this section of the Code, aggrieved persons or persons “feeling aggrieved” entitled to appeal the decision of the ALJ “include[] a duly constituted civic, improvement, or community association,” as long as certain circumstances are met. BCC § 32-4-281(a). Those circumstances include when the PUD is either of the following: (ii) Of such a nature as to personally and specifically affect, damage, or impact the members of the association in a way different from that suffered by the members of any other associations or in a way different from a general interest such as is the concern shared by the public in general; or (iii) Of such a nature or type as to give the members of the association a valid and discernible property interest in the property that is the subject of the Development Plan.

BCC § 32-4-281(a)(2). Once an appeal of the ALJ’s decision to the Board is filed, the Board conducts a proceeding during which it will “[h]ear[ ] oral argument of the parties” and “[r]eceive[ ] written briefs, if requested by any party to the proceeding.” BCC § 32-4-281(d). Further, “[a]t the Board’s discretion, additional evidence and testimony may be allowed.” Id. At the conclusion of the proceedings before the Board, the Board may proceed according to the following provision: The [Board] may ... “[a]ffirm the decision of the Hearing Officer; or ... [r]everse or modify the decision of the Hearing Officer if the decision ...

(1) [ejxceeds the statutory authority or jurisdiction of the Hearing Officer; (2) Results from an unlawful procedure; (3) [i]s affected by any other error of law; (4) [i]s unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (5) [i]s arbitrary or capricious. BCC § 32-4-281(e)(l). An appeal of a Board of Appeals decision is properly heard upon a petition for judicial review in the circuit court. 4 See Md. Rule 7-202(a). Pursuant to Maryland Rule 7-208(a), “a petition for judicial review of an agency decision shall be filed within 30 days ... of ... the date of the order or action of which review is sought ....” After a timely petition is filed, “any other person may file a petition within ten days after the date the agency mailed notice of the filing of the first petition, or within the period set forth in section (a), whichever is later.” Md. Rule 7-202(b).

We note here an important difference between standing requirements before the Board and standing requirements to bring a petition for judicial review before the circuit court. As the Court in Sugarloaf Citizens’ Ass’n v. Dep’t of Env’t, 344 Md. 271, 286 , 686 A.2d 605 (1996) noted, liberal standing requirements are afforded to those who seek to challenge a county agency’s decision before the Board of Appeals. 5 As the Court of Appeals has previously explained, Bearing in mind that the format for proceedings before administrative agencies is intentionally designed to be informal so as to encourage citizen participation, we think that absent a reasonable agency or other regulation providing for a more formal method of becoming a party, anyone clearly identifying himself to the agency for the record as having an interest in the outcome of a matter being considered by the agency, thereby becomes a party to the proceedings. Med. Waste Assocs., Inc. v. Md. Waste Coal., Inc., 327 Md. 596, 611 , 612 A.2d 241 (1992) (quoting Morris v. Howard Res. & Dev.

Corp., 278 Md. 417, 423 , 365 A.2d 34 (1976)). In Comm. for Responsible Dev. on 25th Street v. Mayor & Cty. Council of Baltimore (hereinafter “25th Street”), we explained that “the requirements for administrative standing are such that one may have administrative standing, but lack standing to seek judicial review.” 137 Md.App. 60, 71 , 767 A.2d 906 (2001) (citing Sugarloaf Citizens’Ass’n, supra, 344 Md. at 285-86 , 686 A.2d 605 ). Because the threshold for standing before the Board is relatively low compared to standing requirements to bring a case before the circuit court, we explained 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.” Id.

In Sugarloaf, the Court of Appeals articulated the policy underlying administrative standing requirements in Maryland permitting wide latitude to persons aggrieved or “feeling aggrieved” by county zoning decisions: “The requirements for administrative standing under Maryland law are not very strict. Absent a statute or a reasonable regulation specifying criteria for administrative standing, one may become a party to an administrative proceeding rather easily.” Id. at 286, 686 A.2d 605 . Although the Baltimore County Code provides standing requirements for persons who may challenge final decisions of the ALJ, those provisions actually extend, rather than restrict, “person[s] aggrieved or feeling aggrieved” to community associations where the development plan “specially aggrieves” its members. BCC § 32-4-281(a)(2); see also § 32-4-281 (b) (permitting “person[s] aggrieved ... by final action on a Development Plan” to appeal the ALJ’s decision to the Board “within 30 days after the date of the final decision of the [ALJ] ”).

Thus, like the petitioner in 25th Street, a petitioner may find itself with standing to appeal an ALJ’s approval of a PUD to the Board of Appeals, but without the requisite standing to petition for judicial review before the circuit court.

II

Standard of Review Whether the circuit court erred when it denied DMS’s motion to dismiss is a question of law, which we review de novo. See Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 142 , 46 A.3d 443 (2012) (quoting Reichs Ford Rd. Joint Venture v. State Rds. Comm’n of the State Highway Admin., 388 Md. 500, 509 , 880 A.2d 307 (2005)).

When we consider the circuit court’s decision, we bear in mind that: [A] court must assume the truth of, and view in a light most favorable to the non-moving party, all well-pleaded facts and allegations contained in the complaint, as well as all inferences that may reasonably be drawn from them, and order dismissal only if the allegations and permissible inferences, if true, would not afford relief to the plaintiff. Id. at 142, 46 A.3d 443 . In this case, the circuit court considered testimony from the president of GTC in making its determination that GTC had standing. “When the circuit court considers matters outside the pleadings, the court treats the matter as a motion for summary judgment.” 25th Street, 137 Md.App. at 73-74 , 767 A.2d 906 (2001) (quoting Boyd v. Hickman, 114 Md.App. 108 , 689 A.2d 106 (1997)). Whether we treat the circuit court’s decision as a denial of a motion to dismiss or for summary judgment, however, we review whether the court’s decision was correct as a matter of law.

Id. at 74, 767 A.2d 906 . More specifically, however, “[a] party’s standing to appeal either to this Court or to a circuit court from the decision of a zoning board is a question of law, which we review de novo.” Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.App. 479, 494 , 822 A.2d 478 (2003).

III

The Circuit Court Erred by Denying DMS’s Motion to Dismiss Based on Petitioner’s Lack of Standing to Petition for Judicial Review of the Decision of the Board of Appeals. Whether GTC’s appeal “is properly before us ... depends upon whether [GTC] has standing.” Id. A petitioner’s establishment of standing demonstrates “the right of the individual to assert the claim in the judicial forum.” State Ctr., LLC v. Lexington Charles Ltd., 438 Md. 451, 517-18 , 92 A.3d 400 (2014). The Court of Appeals has held that “the claimant alone is responsible for raising the grounds for which his right to access the judiciary system exists.” Id. at 517 , 92 A.3d 400 (citations omitted).

It is well established in Maryland that, in order to have standing to petition for judicial review, a party must meet “two conditions precedent.” Bryniarski v. Montgomery Cnty. Bd. of Appeals, 247 Md. 137, 143 , 230 A.2d 289 (1967); see also Med. Waste v. Md. Waste, 327 Md. 596, 611 , 612 A.2d 241 (1992) (citations omitted) (“In order to be entitled to judicial review in a contested case, one must both be a ‘party’ to the administrative proceedings and be ‘aggrieved’ by the final decision of the agency.”). First, a petitioner “must have been a party to the proceeding before the Board.” 6 Bryniarski, supra, 247 Md. at 143 , 230 A.2d 289 .

If he or she participated in the case before the Board, the court’s next inquiry is whether the party is “aggrieved” by the decision of the Board. Id. at 144 , 230 A.2d 289 . With regard to land use and zoning decisions, we define an “aggrieved party” as “one whose personal or property rights are adversely affected by the decision of the Board.” Id. Specifically, the consequences of the Board’s decision must affect the petitioner specifically, “in a way different from that suffered by the public generally.” Id.

Property ownership alone does not “provide unfettered access to the courts to citizens unhappy with all actions taken by state or local governing bodies .... ” See Anne Arundel County v. Bell, 442 Md. 539, 576 , 113 A.3d 639 (2015) (citing State Center, supra, 438 Md. at 519 , 92 A.3d 400 ) (discussing commonalities between property owner standing and taxpayer standing). Because of the requirement that a person’s interests must be specially affected, “standing issues are ‘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.’ ” Ray v. Mayor & City Council of Baltimore, 430 Md. 74, 90 , 59 A.3d 545 (2013) (quoting Bryniarski, supra, 247 Md. at 144 , 230 A.2d 289 ). Depending on the circumstances, we typically examine the proximity of a person’s property to the site for which the zoning decision was made in determining whether an individual is “aggrieved.” See Bryniarski, supra, 247 Md. at 144 , 230 A.2d 289 ; see also Ray, supra, 430 Md. at 83 , 59 A.3d 546 . Indeed, the weight attributed to a petitioner’s “aggrievement” is most often evaluated by “how close the affected property is to the re-zoned property.” Ray, supra, 430 Md. at 83 , 69 A.3d 545 .

Generally, therefore, “proximity is the most important factor to be considered” in determining whether a protestant is per se aggrieved, “where standing to challenge a rezoning action [is] at issue.” Id. at 82-83, 59 A.3d 545 . In Ray, following Bryniarski, the Court of Appeals reviewed primarily two categories of property owners who have standing to petition for judicial review in zoning cases. Id. at 81-83 , 59 A.3d 545 . First, a party is deemed to be “specially damaged,” and therefore “prima facie aggrieved,” if the petitioner owns property that is “adjoining, confronting, or nearby” the rezoned property.

Id. at 85 , 59 A.3d 545 . A second category includes “a protestant [who] is almost prima facie aggrieved when ‘she is farther away than an adjoining, confronting, or nearby property owner, but is still close enough to the site of the rezoning action ... and offers ‘plus factors’ supporting injury.’ ” Bell, supra, 442 Md. at 559 , 113 A.3d 639 (quoting Ray, supra, 430 Md. at 86 , 59 A.3d at 551-52 ). Importantly, this additional factor must establish that the petitioner’s personal or property rights are “personally and specially affected in a way different from