Kendall v. Howard County

BARBERA, J. In order to pursue a civil action a plaintiff must demonstrate “standing” to bring the suit, meaning that the plaintiff must show that he or she “is entitled to invoke the judicial process in a particular instance.” Adams v. Manown, 328 Md. 463, 480 , 615 A.2d 611 (1992). When, as in the present case, a plaintiff seeks to redress what is claimed to be a public wrong, the plaintiff must also demonstrate that he or she has “suffered some special damage from such wrong differing in character and kind from that suffered by the general public.” Weinberg v. Kracke, 189 Md. 275, 280 , 55 A.2d 797 (1947). Petitioners, two residents of Howard County, Maryland, filed a complaint in the Circuit Court for Howard County seeking a declaratory judgment that a variety of County resolutions, ordinances, zoning decisions, and administrative actions violated the Howard County Charter (Charter). 1 Petitioners claim that Respondent, Howard County (County), by ⁵⁹⁴ taking certain actions by resolution or administrative decision, rather than passing an original bill as the Charter requires for all legislative acts, denied Petitioners the opportunity to petition those acts to referendum. This, allege Petitioners, infringes their right to referendum under the Charter and, consequently, violates their interests in their constitutional rights to free speech and to vote.

Howard County moved to dismiss the action for declaratory relief, asserting, among other grounds, that Petitioners lacked standing to bring the action. Petitioners countered that their standing lay in the language of the Charter itself. The Charter reserves to “the people” of Howard County the right to petition to referendum “any law or part of a law” enacted by the County Council, see § 211, and defines certain planning and zoning activities as “legislative acts,” which “may be petitioned to referendum by the people of the county pursuant to Section 211 of the Charter,” see § 202(g). Notably, Petitioners expressly disclaimed any other form of standing.

The Circuit Court granted the motion to dismiss, ruling, in pertinent part, that Petitioners lacked standing. The Court of Special Appeals affirmed the judgment of dismissal, holding that Petitioners failed to show a concrete injury to their voting rights and thereby lacked standing. Kendall v. Howard County, 204 Md.App. 440, 453 , 41 A.3d 727 (2012). We granted certiorari to review the judgment of the Court of Special Appeals and now affirm the judgment of that Court.

I. The Howard County Charter Howard County adopted a charter form of home rule in 1968. 2 Turf Valley Assocs. v. Zoning Bd. of Howard Cnty., ⁵⁹⁵ 262 Md. 632, 634 , 278 A.2d 574 (1971). The Charter is, “in effect, a local constitution,” which “fixes the framework for the organization of the county government.” Ritchmount P’ship v. Bd. of Supervisors of Elections, 283 Md. 48, 58 , 388 A.2d 523 (1978). The Charter vests the executive power in the County Executive, see § 302, and the legislative power in the County Council, 3 see § 202. The County Council must pass all laws by “original bill.” § 209(a); see also § 209(c) (setting forth the “[p]rocedure for passage of laws”).

The Charter refers to a “bill” that has been enacted in conformance with the Charter as either an “act,” “ordinance,” “public local law,” or “legislative act.” § 914(a), (b). “Resolution,” by contrast, is defined as “a measure adopted by the Council having the force and effect of law but of a temporary or administrative character.” § 914(c). 4 The terms resolution and ordinance are distinct: ⁵⁹⁶ A resolution “ordinarily denotes something less solemn or formal than, or not rising to the dignity of, an ordinance.” A resolution passed by a legislative body “deals with matters of a special or temporary character ... [and] generally speaking, is simply an expression of opinion or mind concerning some particular item of business coming within the legislative body’s official cognizance, ordinarily ministerial in character and relating to the administrative business of the municipality.” ... An ordinance is distinctly a legislative act; it prescribes “some permanent role of conduct or government, to continue in force until the ordinance is repealed.” Inlet Assocs. v. Assateague House Condo. Ass’n, 318 Md. 413, 427-28 , 545 A.2d 1296 (1988) (first and second alterations in original) (quoting E. McQuillin, Municipal Corporations, § 15.02 (3d ed.1981)). Section 211(a) of the Charter reserves to the people the right to petition to referendum any law enacted by the County Council.

That section, entitled “Scope of the referendum,” provides, in relevant part, The people of Howard County reserve to themselves the power known as “The Referendum,” by petition to have submitted to the registered voters of the County to approve or reject at the polls, any law or a part of any law of the Council. The referendum petition against any such law shall be sufficient if signed by five per centum of the registered voters of the County, but in any case not less than 1,500 nor more than 5,000 signatures shall be required. Such petition shall be filed with the Board of Supervisors of Elections of Howard County within sixty days after the law is enacted.[ 5 ] ⁵⁹⁷ In 1994, the people of Howard County successfully petitioned to referendum, and the majority of voters approved at the polls, a charter amendment clarifying that certain acts related to land use taken by the County must be passed by original bill, and therefore are subject to the people’s right to referendum. See Charter § 202(g) (Editor’s note).

That amendment was codified at § 202(g) of the Charter, which reads: Any amendment, restatement or revision to the Howard County General Plan, the Howard County Zoning Regulations or Howard County Zoning Maps, other than a reclassification map amendment established under the “change and mistake” principle set out by the Maryland Court of Appeals, is declared to be a legislative act and may be passed only by the Howard County Council by original bill in accordance with the legislative procedure set forth in Section 209 of the Howard County Charter. Such an act shall be subject to executive veto and may be petitioned to referendum by the people of the county pursuant to Section 211 of the Charter. As we shall see, it is this section, in conjunction with the general referendum provisions in § 211, upon which Petitioners base their claim that they have standing to pursue declaratory relief for the County’s alleged violations of the Charter. The Litigation Petitioners, Paul F. Kendall and Frank Martin, are taxpayers, property owners, registered voters, and residents of Howard County, Maryland.

In 2009, Petitioners, along with other plaintiffs, 6 initiated the present action in the Circuit Court for Howard County. They sought a declaration that specified ⁵⁹⁸ acts and decisions relating to land use and attributable to the County were null and void ab initio. Petitioners view those decisions as “legislative acts” that were accomplished by means other than passage by original bill, in violation of the Charter. Petitioners also sought to enjoin the County from taking any steps in furtherance of the challenged acts. 7 In their amended complaint, Petitioners claimed that, taken together, §§ 202(g), 207, 209, and 211 of the Charter establish the right of the people of Howard County to petition to referendum and vote on all County decisions that are “legislative acts.” Petitioners alleged that by failing to adhere to the law-making procedures set forth in the Charter, particularly with respect to certain land use decisions, 8 the County “circumvent[s] the people’s right of referendum and their ability to veto or approve these decisions at the polls.” Each of the ⁵⁹⁹ four counts of the amended complaint identified specific County decisions, which Petitioners argued either did not follow the procedure required by the Charter for legislative acts, or authorize the Council to take action by resolution or by administrative decision that the Charter requires be accomplished by original bill.

In Count I, Petitioners asked the Circuit Court to invalidate 54 resolutions passed by the County Council between 2006 and 2008 and five council bills enacted between 1988 and 1994 (specifying that certain actions be undertaken by resolution). In Count II, Petitioners demanded that the Circuit Court likewise invalidate: § 16.200 et seq. of the Howard County Code; five sections of the Howard County Zoning Regulations (§§ 117.1, 117.3, 125, 126, and 127.1); nine individual zoning map amendments approved by the Zoning Board; and a zoning map change made by decision of the Department of Planning and Zoning. Similarly, in Count III, Petitioners sought a declaration that the following are null and void: § 18.101 of the County Code (delegating to the Director the authority to make Metropolitan District inclusion decisions); §§ 18.1205 through 18.1210 of the Howard County Code (permitting shared septic systems); 40 decisions of the Director of Public Works, made between 2006 and 2008, that incorporated specified properties into the Metropolitan District; 9 and an agreement between the County and a developer accepting a particular shared septic system into the County’s public sewerage system. And in Count IV, Petitioners mounted the same challenge to approval by County officials of the construction of an interchange and the study ⁶⁰⁰ of four other interchanges on Route 32 that were not shown on the County’s General Plan.

The County moved to dismiss the amended complaint. Following a hearing, the Circuit Court granted the County’s motion on three grounds, ruling that Petitioners failed to: demonstrate particularized harm in connection with the identified County decisions, necessary to establish standing; join all parties who would be affected if the declaratory relief sought were granted; and exhaust administrative remedies. The Court of Special Appeals affirmed. Kendall, 204 Md. App. at 453 , 41 A.3d 727 .

The Court noted that neither the failure to join necessary parties nor the failure to exhaust administrative remedies would alone justify dismissal in this case. Id. at 448-49 , 41 A.3d 727 . The Court concluded, though, that the Circuit Court properly dismissed the action for lack of Petitioners’ standing to sue because they had demonstrated no “concrete injury” to their right to vote. Id. at 453 , 41 A.3d 727 (quoting Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962)).

The Court of Special Appeals explained that this is not a case in which “alleged failures in the petition process were at issue, or electoral issues were in the forefront,” but rather one in which “voting and referendum is decidedly in the background.” Kendall, 204 Md.App. at 451 , 41 A.3d 727 . Further, the Court distinguished between “a compulsory referendum mandated by a legislative body,” such as the one at issue in Bishop v. Bartlett, 575 F.3d 419 (4th Cir.2009), and “an optional or ‘facultative’ referendum initiated by citizen petition.” Kendall, 204 Md.App. at 452 & n. 7, 41 A.3d 727 (citing Ritchmount, 283 Md. at 60 , 388 A.2d 523 ). The Court of Special Appeals reasoned that the former is triggered automatically and “the right to vote is undeniably affected,” but the right to vote in the present matter, alleged to be infringed upon by the actions of the County Council, is “triggered only when sufficient valid signatures are gathered to place the question on the ballot.” Kendall, 204 Md.App. at 452 , 41 A.3d 727 . Noting that Petitioners “ha[d] not initiated the referendum process for any of the challenged land use actions,” the Court of ⁶⁰¹ Special Appeals concluded that “the ‘critical point’ implicating the right to vote has not yet been reached.” Id. at 453 , 41 A.3d 727 (quoting Bishop, 575 F.3d at 424 ).

We issued a writ of certiorari, Kendall v. Howard County, 427 Md. 606 , 50 A.3d 606 (2012), to answer the following questions posed by Petitioners: 1. Whether the alleged denial by County officials of individual rights protected under the United States Constitution, in this case the First Amendment rights of free speech, association and petitioning, the right to vote, and the 14th Amendment right of substantive due process, all elements of Petitioners’ state-created right of referendum, provide the harm necessary to give Petitioners standing to sue in a declaratory judgment action in state court? 2. Whether joinder rules are applicable to the case at bar, and if so, whether the “public rights” exemption as set forth in National Licorice Co. v. NLRB, 309 U.S. 350 [ 60 S.Ct. 569 , 84 L.Ed. 799 ] (1940), or a variation thereof should be applicable to a case such as this where Petitioners have alleged the total and complete circumvention and thus denial of the right of referendum established in their Charter? Because we hold that Petitioners’ amended complaint fails to allege facts sufficient to establish standing, we do not reach the second question presented.

We further express no view as to Petitioners’ likelihood of success on the merits, particularly as to whether the County decisions identified in the amended complaint are “legislative acts,” as Petitioners so contend.

II

In reviewing a trial court’s grant of a motion to dismiss, “we accept all well-pled facts in the complaint, and reasonable inferences drawn from them, in a light most favorable to the non-moving party.” Converge Servs. Group, LLC v. Curran, 383 Md. 462, 475 , 860 A.2d 871 (2004). We then ⁶⁰² determine whether the trial court was “legally correct in its decision to dismiss.” Washington Suburban Sanitary Comm’n v. Phillips, 413 Md. 606, 618 , 994 A.2d 411 (2010) (quoting McDaniel v. Am. Honda Fin.

Corp., 400 Md. 75, 83 , 926 A.2d 757 (2007)). Although it is “rarely appropriate” to dismiss a declaratory judgment action, dismissal is proper “when the party seeking such judgment has no standing and there is no justiciable controversy properly before the court.” Roper v. Camuso, 376 Md. 240 , 246-47 n. 3, 829 A.2d 589 (2003). Petitioners argue here, as they have below, that the right of referendum over legislative acts, reserved in the Charter to “the people,” is itself sufficient to “create[ ] standing in Petitioners and every other ‘Person’ in the County” to allege that a particular decision is a “legislative act” and thus should have been accomplished by the procedures laid out in the Charter for original bills. Petitioners also contend that the complete denial of the right to petition the alleged legislative acts to referendum consequently renders Petitioners unable to exercise their First Amendment rights to free speech and political association (i.e., the petition circulation and signature-gathering process) and their constitutional right to vote on successful petitions.

According to Petitioners, the mere allegation of a violation of these constitutional and referendum rights is sufficient to confer standing. The County responds that the test for standing proposed by Petitioners “would bestow upon each and every ‘person in the County’ the right to sue for any past, present or future perceived violation of the Charter, regardless of whether such person sustained an injury or adverse effect of any kind.” The County submits that the Circuit Court properly dismissed the action because Petitioners have not alleged “any legally protectable interest sufficient to warrant the invocation of the court’s power to provide declaratory relief.” The County observes that Petitioners have made no attempt to show they have suffered any concrete or particularized harm as a result of the County actions identified in the amended complaint. As the County sees it, Petitioners’ claim is best characterized as a ⁶⁰³ “generalized interest” in forcing the County to comply with its own Charter, which does not, in and of itself, confer standing. We agree with the County. “We have said time and again that the existence of a justiciable controversy is an absolute prerequisite to the maintenance of a declaratory judgment action.” 10 Md. State Admin.

Bd. of Election Laws v. Talbot Cnty., 316 Md. 332, 339 , 558 A.2d 724 (1988). “The doctrine of standing is an element of the larger question of justiciability and is designed to ensure that a party seeking relief has a sufficiently cognizable stake in the outcome so as to present a court with a dispute that is capable of judicial resolution.” Hand v. Mfrs. & Traders Trust Co., 405 Md. 375, 399 , 952 A.2d 240 (2008) (quoting Sec. Pac. Nat’l Bank v. Evans, 31 A.D.3d 278 , 820 N.Y.S.2d 2, 3-4 (2006)); see Talbot Cnty., 316 Md. at 339 , 558 A.2d 724 (observing that “[j]usticiability encompasses a number of requirements,” including that “the plaintiffs must have standing to bring suit”). “Under Maryland common law, standing to bring a judicial action generally depends on whether one is ‘aggrieved,’ which means whether a plaintiff has ‘an interest such that he [or she] is personally and specifically affected in a way different from ... the public generally.’ ” Jones v. Prince George’s Cnty., 378 Md. 98 , 835 A.2d 632 (2003) (first alteration in Jones; second alteration in Sugarloaf) (quoting Sugarloaf Citizens’ Ass’n v. Dep’t. of the Env’t, 344 Md. 271, 288 , 686 A.2d 605 (1996)); see, e.g., Evans ⁶⁰⁴ v. State, 396 Md: 256, 328, 914 A.2d 25 (2006) (“[A]n individual or an organization has no standing in court unless he has also suffered some kind of special damage from such wrong differing in character and kind from that suffered by the general public.” (quoting Medical Waste Assocs., Inc. v. Md. Waste Coalition, Inc., 327 Md. 596, 612 , 612 A.2d 241 (1992)) (internal quotation marks omitted)). Moreover, a plaintiff must satisfy the court that “the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute or constitutional guarantee in question.” Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153 , 90 S.Ct. 827 , 25 L.Ed.2d 184 (1970); accord 120 West Fayette St., LLLP v. Mayor of Baltimore, 407 Md. 253, 270 , 964 A.2d 662 (2009).

In their amended complaint Petitioners attack a laundry list of County land use and zoning decisions, spanning several years, all of which Petitioners have asked the Circuit Court to invalidate as null and void ab initio. Petitioners’ standing to litigate their claim fails under our cases involving county and municipal land use decisions, in each of which we have applied unfailingly the “special damage” requirement of standing principles. Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137 , 230 A.2d 289 (1967), supplies an example. We plainly stated there that, when “a declaration[ 11 ] nullifying a zoning ordinance for constitutional or other reasons is sought,” similar to the declaration sought by Petitioners here, a plaintiff must allege with specificity precisely “how he is specially ⁶⁰⁵ damaged, by the zoning ordinance.” Id. at 144 , 230 A.2d 289 (emphasis added).

The determination of whether a plaintiff has sufficiently alleged that he or she is “personally and specially affected in a way different from that suffered by the public generally” depends upon “the facts and circumstances of the particular case under review.” Id. We have held that a party’s proximity to the area affected by a local land use decision may, under certain circumstances, satisfy this “specially damaged” standing requirement. Recently, in Ray v. Mayor of Baltimore, 430 Md. 74 , 59 A.3d 545 (2013), we summarized the principles of such aggrievement as follows: In sum, Maryland courts have accorded standing to challenge a rezoning action to two types of protestants: those who are prima facie aggrieved and those who are almost prima facie aggrieved. A protestant is prima facie aggrieved when his proximity makes him an adjoining, confronting, or nearby property owner.

A protestant is specially 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 to be considered almost prima facie aggrieved, and offers “plus factors” supporting injury. Other individuals are generally aggrieved. Id. at 85 , 59 A.3d 545 ; see also 120 West Fayette, 407 Md. at 271-72 , 964 A.2d 662 . Alternatively, a party, as a taxpayer, may satisfy the “special damage” standing requirement by alleging both “1) an action by a municipal corporation or public official that is illegal or ultra vires, and 2) that the action may injuriously affect the taxpayer’s property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes.” 120 West Fayette, 407 Md. at 267 , 964 A.2d 662 ; see also Citizens Planning and Housing Ass’n v. Cnty.

Exec., 273 Md. 333, 339 , 329 A.2d 681 (1974) (“[A] taxpayer may invoke the aid of a court of equity to restrain the action of a public official or an administrative agency when such action is illegal ⁶⁰⁶ or ultra vires, and may injuriously affect the taxpayer’s rights and property ... only when some special damage is alleged and proved, or a special interest is shown which is distinct from that of the general public.” (citations omitted)). A particularly illustrative example of these two avenues for satisfying the standing requirement is found in Inlet Associates v. Assateague House Condominium Ass’n, 313 Md. 413 , 545 A.2d 1296 (1988). In Inlet Associates , various plaintiffs sought, among other things, a declaration that Ocean City’s transfer of a specified property interest to a developer by resolution was an illegal ultra vires act because the disposition was required, under the Ocean City Charter, to be passed by ordinance rather than resolution. Id. at 422-23, 545 A.2d 1296 .

Like the Howard County Charter, § C-411 of the Ocean City Charter established a procedure by which the people can petition ordinances to referendum. Id. at 426, 545 A.2d 1296 . Agreeing with the plaintiffs that “a simple resolution” was not sufficient “to validate the City’s actions,” and, instead, an ordinance was required, id. at 434, 545 A.2d 1296 , we determined, as had the trial court, that the plaintiffs had demonstrated the requisite standing to complain, id. at 441, 545 A.2d 1296 . We identified the various ways in which the plaintiffs had shown that the proposed development plan “would adversely affect the value and use of the plaintiffs’ properties,” which were situated near the proposed development site.

Id. at 441-42, 545 A.2d 1296 . We added that, as taxpayers, the plaintiffs had sufficiently alleged the “reasonable existence of [the] potential” for “pecuniary loss or increased taxes.” Id. at 442-43, 545 A.2d 1296 . Inlet Associates demonstrates that plaintiffs who allege a local government has failed to use ordinances to take action, as required by their local charter, may invoke the well-recognized avenues of either property owner standing or taxpayer standing to vindicate their claim, if the facts and circumstances of that case so provide. Cf. 120 West Fayette, 407 Md. at 258, 269, 273 , 964 A.2d 662 (holding that the ⁶⁰⁷ allegations in the plaintiffs complaint were sufficient to establish either taxpayer standing or property owner standing where the plaintiff sought a declaratory judgment that a Land Disposition Agreement entered into by the defendants, the Mayor and City Council of Baltimore, violated the Charter and laws of the City); Ansell v. Howard County Council, 264 Md. 629, 634 , 287 A.2d 774 (1972) (concluding that a plaintiff had standing under the circumstances, as a taxpayer, to seek a declaration that a County resolution was illegal and ultra vires because it should have been passed by “bill” or “ordinance” under the Howard County Charter).

Like the plaintiffs in Inlet Associates , Petitioners claim that certain local government actions related to land use are invalid because they were effectuated in violation of the local charter. More specifically, Petitioners allege that by using this improper procedure to make decisions, the County circumvents the people’s right to petition those decisions to referendum. But unlike the plaintiffs in Inlet Associates , Petitioners have expressly eschewed any reliance on taxpayer standing, and they have not demonstrated that they are specially harmed by the County decisions as property owners. Petitioners do not even suggest that they have made either showing.

To the contrary, Petitioners argue that