Holland v. Woodhaven Building & Development, Inc.

EYLER, Judge. The primary issue addressed on this appeal is whether an amendment to the Town of Hampstead Code should be applied retroactively to confer standing on appellants to appeal .a zoning decision to the Hampstead Board of Zoning Appeals. We hold that retroactive application of the zoning amendment is not appropriate under the facts of this case and affirm the Board of Zoning Appeals’ dismissal of appellants’ appeal. ²⁷⁷ Facts On August 29, 1994, the Town of Hampstead Planning & Zoning Commission (Commission) granted final approval to Woodhaven Building & Development, Inc., appellee, for a residential subdivision known as North Carroll Farms, Section IV, a planned unit development consisting of 220 units. On September 28, 1994, four residents of Hampstead, Stephen A. Holland, Kris P. Koch, Kim Meekins, and James E. Springer, appealed to the Hampstead Board of Zoning Appeals (Board).

Three of the appellants assert that they are nearby property owners, and the fourth has a child in the first grade at the elementary school which would serve North Carroll Farms, Section IV. On March 6, 1995, the Board, by a 2-to-l vote, declined to reach the merits and dismissed the appeal on the ground that appellants were not parties aggrieved within the meaning of § 135-157 of the Hampstead Code, the section governing appeals to the Board. The appellants named above, plus an additional 80 residents of Hampstead, noted an appeal to the Circuit Court for Carroll County. While that action was pending, the Mayor and City Council of Hampstead approved Ordinance 268, effective July 17, 1995, which repealed and reenacted § 135-157 of the Hampstead Code and permitted any Hampstead taxpayer to appeal to the Board.

Appellee challenged the validity of the ordinance in the circuit court and the Town of Hampstead filed a motion to intervene, which was granted. On January 3, 1996, the circuit court entered an order invalidating Ordinance 268 on the ground that it was preempted by State law. See Md.Code, art. 66B, § 4.07(e) (limiting appeals to boards of zoning appeals to aggrieved parties). The circuit court also affirmed the Board’s finding that the original appellants were not persons aggrieved within the meaning of the prior ordinance.

The Town of Hampstead and all of the citizen appellants noted an appeal to this Court. ²⁷⁸ Questions Presented The Town of Hampstead presents two questions that, in essence, ask us to decide whether the Town of Hampstead Code § 135-157 is preempted by State law. In addition to the preemption question, the individual appellants ask us to consider (1) whether they have standing to challenge the action of the Commission under the prior ordinance; and (2) whether the circuit court should have reached the merits because Article 66B, § 4.08(a) authorizes any taxpayer to appeal from a board of appeals to the circuit court regardless of whether there was standing to appeal to the Board. Among the questions raised by appellee is whether the amendment to § 135-157 should be applied retroactively to cure appellants’ purported lack of standing before the Board. 1 Preliminarily, we uphold the Board’s determination that appellants were not persons aggrieved within the meaning of former § 135-157. Further, we will not reach the issue of preemption because we hold that the amendment to § 135-157 should not be applied retroactively to this case.

Finally, we reject appellants’ argument that the circuit court should have considered the merits of appellants’ appeal. Discussion A. Appellants’ Aggrieved Status At the time this matter was heard by the Board, § 135-157 provided, in pertinent part, as follows: An appeal to the Board may be taken by any person aggrieved or by any officer, department, board, commission, or bureau of the town affected by any decision of the Zoning Administrator.... ²⁷⁹ Appellants argue that the original four protestants are persons aggrieved within the meaning of this statute. The principles governing the determination of whether a party is sufficiently aggrieved to possess standing to appeal to a board of zoning appeals were discussed by the Court of Appeals in Bryniarski v. Montgomery Co. Bd. of Appeals, 247 Md. 137 , 230 A.2d 289 (1967). Specifically, a person aggrieved is one whose personal or property rights are adversely affected by the decision of the [zoning commission].[ 2 ] 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.

Id. at 144 , 230 A.2d 289 . As further noted in that case, the question of aggrievement is a fact question that must be determined on a case by case basis. Id. In reviewing the Board’s finding that the original appellants were no more aggrieved “than anyone else in the town,” our function is to ascertain whether substantial evidence supports the Board’s findings.

Erb v. Maryland Dep’t of Env’t, 110 Md.App. 246 , 676 A.2d 1017 (1996); Howard County v. Davidsonville Area Civic & Potomac River Assocs., 72 Md.App. 19, 34 , 527 A.2d 772 , cert. denied sub nom St. Mary’s County Watermen’s Ass’n v. Howard County, 311 Md. 286 , 533 A.2d 1308 (1987). “Substantial evidence” is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Jett v. Maryland Dep’t of Env’t, 77 Md.App. 503, 505 , 551 A.2d 139 (1989) (quoting Bulluck v. Pelham Wood Apartments, 283 ²⁸⁰ Md. 505, 512, 390 A.2d 1119 (1978)). In applying this test, we defer to the Board’s expertise and will not substitute our judgment for that of the Board as long as the Board’s decision is “fairly debatable” in light of the evidence presented to it. Id.; Cromwell v. Ward, 102 Md.App. 691, 709-10 , 651 A.2d 424 (1995); Red Roof Inns v. People’s Counsel of Baltimore County, 96 Md.App. 219, 223-24 , 624 A.2d 1281 (1993). Relying on Bryniarski, supra, and Wier v. Witney Land Company, 257 Md. 600 , 263 A.2d 833 (1970), appellants argue that three of the original protestants are nearby property owners and deemed to be aggrieved.

While we agree with appellants that a protestant who establishes that he is a nearby property owner has made out a prima facie case of aggrievement which must then be rebutted by the party challenging standing, Bryniarski, 247 Md. at 144-45 , 230 A.2d 289 , we disagree that the three protestants met their prima facie burden in the instant case. None of the three protestants testified before the Board, and no evidence regarding their aggrieved status was admitted on their behalf. Appellants argue that because the protestants’ addresses appear on the Application for Hearing and indicate that the protestants reside in North Carroll Farms, the protestants met their burden of establishing that they were nearby property owners. We disagree.

Unlike the petition in Bryniarski , the Application for Hearing contains no allegation that the protestants are “ ‘owners of property immediately contiguous or in close proximity’ ” to the subject property. Id. at 146-47 , 230 A.2d 289 . Neither was a vicinity map, indicating the proximity of protestants’ property, attached to the application. Id. at 147 , 230 A.2d 289 .

Similarly, none of the protestants are listed on the “List of Adjoining and Confronting Property Owners” required by the County to be given notice of the pending proceeding. Id. Indeed, there is nothing in the application or otherwise before the Board that indicated that any of the three protestants were property owners, let alone owners of nearby property. Neither are there any other allegations, general or specific, that the protestants were specially aggrieved.

Accordingly, the three prot ²⁸¹ estants do not meet the requirements of Bryniarski. See also Wier, 257 Md. at 612-13 , 263 A.2d 833 (where there was evidence that the protestants’ property was within sight distance of the subject property). 3 Appellants alternatively argue that the fourth protestant, Mr. Holland, was sufficiently aggrieved to challenge the Commission’s approval of the subdivision. Appellants concede that Mr. Holland is not a nearby property owner. Nevertheless, appellants argue that Mr. Holland demonstrated that he was specially aggrieved by the subdivision approval in a manner distinct from the public generally.

Mr. Holland testified before the Board that he has a child in the elementary school that would serve the subdivision and that the school has been certified as inadequate because of overcrowding. Mr. Holland further testified that he uses roads that would become further congested by the development and that he relies on the Town of Hampstead’s water system, which would be further burdened by the development. Appellants conclude that, while these effects may be suffered by others, the fact that they are suffered by a class of people does not mean that they are indistinct from the effects on the public generally. While we agree with appellants that the size of the aggrieved class is not dispositive of a particular protestant’s standing, we believe that the record in this case is such that the Board’s conclusion regarding Mr. Holland’s status is fairly debatable.

On cross-examination, Mr. Holland acknowledged that the affect of the subdivision on the school would be no different for his children than for any other child attending such school, and that he would be no more affected by the ²⁸² subdivision than any other member of the general public living, traveling or working in the area. While the evidence may have supported a finding by the Board that Mr. Holland was specially aggrieved, it did not compel such a finding by the Board. Accordingly, appellants did not have standing to appeal to the Board absent a retroactive application of Ordinance 268. B. Retroactive Application of Ordinance 268 The protestants filed their appeal to the Board on September 28,1994.

The Board dismissed the protestants’ appeal on March 6, 1995. On June 27, 1995, and while the appeal was pending in the circuit court, the Town of Hampstead enacted Ordinance 268 to amend § 135-157, effective July 17, 1995. This amendment broadened the class Of persons who may appeal to the Board to include “any Town of Hampstead taxpayer.” Appellee argues that application of the ordinance to the instant case constitutes retroactive application of a statute. Appellee further argues that retroactive application of statutes is disfavored by Maryland law unless expressly intended by the legislature, and that the ordinance evinces no such intent.

Appellant counters that application of Ordinance 268 to this case would not affect any vested rights of appellee, and that the amendment is merely procedural and, thus, must be applied retroactively. Jn this case, appellants seek to apply Ordinance 268 to cure their lack of standing before the Board even though they did not have standing at the timé that the Board dismissed their appeal. We agree with appellee that such an application of Ordinance 268 would constitute a retroactive application of that ordinance. See St. Comrn’n on Human Rel. v. Amecom Div., 278 Md. 120, 123 , 360 A.2d 1 (1976) (defining a retroactive statute as “one which purports to determine the legal significance of acts or events that have occurred prior to the statute’s effective date”).

That does not end our inquiry, however, because there is no absolute prohibition against ²⁸³ retroactive application of a statute. Id. Absent interference with vested rights or violations of procedural due process, the legislature may enact a retroactive statute. Id.

Given, however, that we construe Ordinance 268 to operate prospectively, we do not even reach the issue of whether a retroactive application of that ordinance would adversely affect appellee’s vested rights. The rules governing retroactivity that we address in this case are rules of statutory construction. 4 Such rules are easy to state, but difficult to apply. A number of Maryland cases can be cited for the general proposition that a statute is presumed to operate prospectively from its effective date absent a clear expression of legislative intent that the statute is to be applied retroactively. Arundel Corp. v. County Comm’rs of Carroll County, 323 Md. 504, 510 , 594 A.2d 95 (1991); Mason v. State, 309 Md. 215, 219 , 522 A.2d 1344 (1987); WSSC v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 560-60 , 520 A.2d 1319 (1987) and cases discussed therein.

Despite the presumption of prospectivity, a number of other cases support the proposition that when a legislative change in law affects only procedural matters, rather than substantive rights, it applies to all actions, whether accrued, pending, or future, unless a contrary intention is expressed. Roth v. Dimensions, 332 Md. 627, 636-38 , 632 A.2d 1170 (1993); Starfish Condo. Assoc. v. Yorkridge Serv. Corp., Inc., 295 Md. 693, 705 , 458 A.2d 805 (1983); Winston v. Winston, 290 Md. 641, 649-50 , 431 A.2d 1330 (1981); Holmes v.Crim.

Injuries Comp. Bd., 278 Md. 60 , 63 n. 2, 359 A.2d 84 (1976); Richardson v. Richardson, 217 Md. 316, 320 , 142 A.2d 550 (1958). As a preliminary matter, the question of what is procedural and what is substantive often is a difficult one to determine. See, e.g., Mason, 309 Md. at 221-22 , 522 A.2d 1344 (where ²⁸⁴ amendment to Post Conviction Procedure Act, limiting number of petitions that could be filed under Act, was held to affect petitioner’s substantive rights).

While standing could be characterized as a procedural question only, see Starfish, 295 Md. at 704, 708 , 458 A.2d 805 , it also could be characterized as a substantive matter, inasmuch as it involves the ability to pursue a right of action. To complicate matters, appellants cite another line of cases that hold that “an appellate court must apply the law in effect at the time a case is decided, provided that its application does not affect intervening vested rights.” O’Donnell v. Bassler, 289 Md. 501, 508 , 425 A.2d 1003 (1981) (citing County Council for Prince George’s County v. Carl M. Freeman Associates, Inc., 281 Md. 70, 76 , 376 A.2d 860 (1977); Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 127 , 291 A.2d 672 (1972)). See also Yorkdale v. Powell, 237 Md. 121, 124 , 205 A.2d 269 (1964) (quoting Woman’s Club of Chevy Chase v. State Tax Comm., 195 Md. 16, 19 , 72 A.2d 742 (1950)). A