Ray v. Mayor of Baltimore

MOYLAN, J. This is one of three closely related appeals, all challenging in one way or another the same basic decision by the City of Baltimore. That decision was to create a Planned Unit Development (“PUD”) 1 to be known as the 25th Street Station, in the Remington/Charles Village area of north central Baltimore. The appellees in all three cases include the Mayor and City Council of Baltimore; Bruce Mortimer, Anderson Automotive Group, and Twenty-Fifth Street, LLC (collectively, “Subject Property Owners”); and WV Baltimore-24/Sisson, LLC and WV Baltimore H 25, LLC (collectively “Developers”). The challenges were ultimately decided in the Circuit Court for Baltimore City, in each case ruling that the challengers lacked standing to bring the challenges.

Our special concern on this appeal, therefore, is with the threshold requirement of standing to obtain judicial review of a zoning decision by the City Council. Maryland Code, Article ²¹ 66B, Zoning Enabling Act, § 2:09(a)(l), provides in pertinent part: (a) Who may appeal; procedure— (1) An appeal to the Circuit Court for Baltimore City may be filed ... by any person ... aggrieved by: (ii) A zoning action by the City Council. (3) This subsection does not change the existing standards for review of any zoning action. See Committee for Responsible Development on 25th Street v. Mayor and City Council of Baltimore, 137 Md.App. 60, 74-78 , 767 A.2d 906 (2001).

Developmental Background The proposed PUD will occupy an 11.5 acre parcel of land, bounded by 25th Street and Huntingdon Avenue on the north, by Maryland Avenue on the east, by 24th Street and Sisson Street on the south, and by the CSX railroad tracks on the west. The north-south axis of Howard Street essentially bisects the parcel, just as it separates the Charles Village neighborhood to the east of Howard Street from the Remington neighborhood to its west. The Subject Property Owners have used the land for over half a century as a car dealership. Most recently, General Motors and Honda dealerships have operated from the location.

As the representative of the Baltimore Department of Planning informed the Baltimore City Council at a public hearing, the General Motors dealership would be closing and the Honda dealership would be moving to Baltimore County. On April 19, 2010, Councilwoman Belinda K. Conaway introduced Council Bill 10-0488 to the City Council. The Bill was for the purpose of approving the application of the Developers to designate the 11.518 acres as a Business and Industrial PUD. The PUD contemplates the development of a mixed-use, residential and commercial development project.

The plans for the proposed development include approximately 70 to 80 apartment units; 337, 568 square feet of rented floor space; ²² and 1,027 parking places. “Big-box” retailer Wal-Mart plans to occupy approximately 100,000 square feet of retail space where it plans to build a full-scale grocery. At the time the City approved the PUD, another “big-box” retailer, Lowes Home Center, planned to occupy approximately 150,000 square feet of retail space. The City Council assigned Bill 10-0488 to the Land Use and Transportation Committee, which conducted public hearings on September 15 and September 22, 2010. At the September 15 hearing, Councilwoman Conaway, the Bill’s sponsor, spoke to its purpose: At this site there are 11 acres at the Anderson Automotive site which will be vacated very soon.

We have a proposal for the development project which will hopefully benefit the community. I think that it’s very important that we have something at that site. It is not the preference of myself or the community to have 11 acres of vacant land just sitting with nothing going on. Therefore, this project is being presented to the Land Use Committee to determine if the use of the land is appropriate.

Today’s hearing is not about what will be placed there, but how the land will be used. So we’re looking forward to all of the agency reports and testimony, but again I want to reiterate that it is very important that we have something viable on these 11 acres that benefits the community. The Land Use and Transportation Committee recommended the approval of the Bill on October 6, 2010. On November 22, 2010, the City Council unanimously adopted the Bill and passed Ordinance 10-397, which established the PUD at the subject property.

On November 24, 2010, Mayor Stephanie Rawlings-Blake signed Ordinance 10-397 into law. On December 16, 2010, the Baltimore City Planning Commission approved the final design of the 25th Street Station project. On December 21, 2010, the appellants in this case, Benn Ray and Brendan Coyne, petitioned to the Circuit Court for Baltimore City for judicial review of the City Council’s decision to adopt the 25th Street Station PUD. Filing responses in ²³ opposition to the petition for judicial review were not only the City, the Subject Property Owners, and the Developers, but also the Greater Remington Improvement Association and the Charles Village Civic Association.

On February 11, 2011, the Developers and the Subject Property Owners filed separate Motions to Dismiss the Petition for Judicial Review. The City filed its own Motion to Dismiss on February 14, 2011. A hearing on the Motion to Dismiss was held before Judge Pamela J. White on March 7, 2011. In a four-page Memorandum Opinion and Order filed on March 20, 2011, Judge White granted the Motions to Dismiss, ruling that the appellants lacked standing to petition for judicial review.

The appellants have appealed from that dismissal. The Contentions The contentions before us are threefold. The appellants claim 1. that Judge White erroneously ruled that they did not enjoy standing by virtue of being prima facie aggrieved; 2. that Judge White erroneously ruled that their personal or property rights were not specially and adversely affected; and 3. that Judge White erroneously ruled that the appellant Coyne’s testimony about his property value was inadmissible. The Elephant in the Room As we prepare to address the standing of the two appellants, there is an elephant in the room that, bizarrely, almost everyone is totally ignoring.

At least tentatively, we will acknowledge its presence. The appellant Benn Ray resides at 279 W. 31st Street. Ray, however, is not the owner of the property. He rents it.

In terms of standing, that may not, ipso facto, be disqualifying. But it may. It is at the very least highly unusual. Despite its being an extraordinary feature, however, it is nowhere mentioned in the appellants’ primary brief.

The brief recites simply that Ray lives at such ²⁴ and such a place and then goes on nonchalantly to make his various standing arguments just as if he were the owner of the property. 2 The responsive brief of the City, in its turn, also makes no mention of this potentially critical issue. Nor does the brief of the Subject Property Owners. The Developers, on the other hand, do in their brief allude to the issue, but only briefly and not as a matter of major focus. The opinion of the trial court makes no mention of Ray as a mere renter.

At the hearing on the Motion to Dismiss on March 7, 2011, there was no mention made of Ray’s non-owner status by the City, by the Subject Property Owners, or by the Court. Only the Developers mentioned the subject, but without the citation of any legal authority: Mr. Ray, according to his affidavit, doesn’t even own property. He rents. So he’s out.

He can’t be prima facie aggrieved. The appellants, also without citing any legal authority, made brief reply to the raising of the issue by the Developers: There is no requirement in law for the standing analysis that citizens who challenge the project be an owner ... [Tjhere was no requirement in the law for standing that the challenger—the citizen or challenger be an owner. The court, in its turn, made no ruling on this issue. It may have deemed it unnecessary to do so because Ray, in any event, lacked standing for other reasons.

Our chagrin is that this highly unusual circumstance is at the least worthy of notice and comment and is not some run-of-the-mill commonplace to be taken casually for granted. For standing purposes in zoning challenges, the opinion of Judge Wilson K. Barnes for the Court of Appeals in Bryniarski v. Montgomery County, 247 Md. 137 , 230 A.2d 289 (1967), is the authoritative tap root. As Judge Kehoe stated in Chesapeake Bay Foundation v. Clickner, 192 Md.App. 172, 185 , 993 A.2d 1163 (2010), “Bryniarski is the landmark case in Maryland on ‘aggrievement’ as a requirement for standing in ²⁵ land use appeals.” The Bryniarski opinion, 247 Md. at 143 , 230 A.2d 289 , sets out the two basic preconditions: Under the applicable statutory law, two conditions precedent must be met before a person has standing to appeal to the Circuit Court for Montgomery County from a decision of the Board: (1) he must have been a party to the proceeding before the Board, and (2) he must be aggrieved by the decision of the Board. (Emphasis supplied).

Our concern in this case is with the second threshold requirement of being an “aggrieved” party. Judge Barnes’s opinion lays out the basic requirements for such qualifying aggrievement: Generally speaking, the decisions indicate that 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. 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.

(Emphasis supplied). As a benefit of fortuitous geography, however, some aspiring protestants enjoy a procedural shortcut to aggrieved status: An adjoining, confronting or nearby property owner is deemed, prima facie to be specially damaged and, therefore, a person aggrieved. 247 Md. at 145 , 230 A.2d 289 . See also 120 West Fayette Street v. Mayor & City Council of Baltimore, 407 Md. 253, 271-72 , 964 A.2d 662 (2009) (“Such property owners are granted prima facie aggrieved status due to the sheer proximity of their property to the area that is the subject of the complaint.”); Sugarloaf v. Department of Environment, 344 ²⁶ Md. 271, 297, 686 A.2d 605 (1996); Wier v. Witney Land Company, 257 Md. 600, 608-13 , 263 A.2d 833 (970); Marcus v. Montgomery County, 235 Md. 535, 538-39 , 201 A.2d 777 (1964) (“[T]he text writers and the cases in this jurisdiction and other jurisdictions are in general agreement that an adjacent owner—in the sense of being near or close by—as well as an abutting owner, whose legal rights have been infringed, is an aggrieved person.”); Holland v. Woodhaven Building and Development, Inc., 113 Md.App. 274, 280-81 , 687 A.2d 699 (1997). It is this procedural shortcut to aggrievement that brings to the forefront the appellant Ray’s status as a non-property-owner.

The basic requirement for standing remains aggrievement. Conceivably, one could establish that without being a property owner. There is, however, a gaping procedural and evidentiary chasm between special aggrievement and prima facie aggrievement. It is the latter variety of aggrievement that Ray, as a non-property-owner, is denied.

He is, of course, free to try to establish special aggrievement with its attendant allocation of a stern burden of proof. What he lacks as a non-property owner is the easy prima facie comfort of presumptive aggrievement and standing. What non-ownership may deny Ray is not a chance ultimately to establish aggrieved status, but the benefit of the short and easy route to such status. Even the prima facie shortcut, albeit conferring generous procedural benefits, is not completely hazard-free.

Bryniarski, 247 Md. at 145 , 230 A.2d 289 , makes clear: The person challenging the fact of aggrievement has the burden of denying such damage in his answer to the petition for appeal and of coming forward with evidence to establish that the petitioner is not, in fact, aggrieved. Id. (emphasis supplied). Thus, the presumption of aggrievement may be rebutted, and a “nearby” or even an abutting property owner may ultimately be shown to be unaggrieved and thereby denied standing.

The converse is also true. Even one who does not enjoy presumptive standing by virtue of property ²⁷ ownership and proximity to the situs in dispute may nonetheless establish actual aggrievement. Judge Barnes went on: A person whose property is far removed, from the subject property ordinarily will not be considered a person aggrieved. But he will be considered a person aggrieved if he meets the burden of alleging and proving by competent evidence—either before the board or in the court on appeal if his standing is challenged—the fact that his personal or property rights are specially and adversely affected by the board’s action. 247 Md. at 145 , 230 A.2d 289 (emphasis supplied).

In Holland v. Woodhaven Building and Development, Inc., 113 Md.App. at 281 , 687 A.2d 699 , we entertained an argument by one who was not “a nearby property owner” that he had, for standing purposes, nonetheless established his aggrieved status: 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. (Emphasis supplied).

Thus, both prima facie aggrievement and demonstrated special aggrievement simply give rise to rebuttable presumptions. They satisfy burdens of production for or against standing, but they remain vulnerable to being rebutted on the ultimate merits of aggrievement. The juxtaposition between prima facie aggrievement and special aggrievement is starkly illustrated by Chesapeake Bay Foundation v. Clickner. Clickner had received two zoning variances for projected improvements on Big Dobbins Island in the Magothy River.

The Chesapeake Bay Foundation and the Magothy River Association sought to challenge the granting of those variances. Clickner moved to dismiss their appeals to the Anne Arundel County Board of Appeals on the ground that they lacked standing to take the appeal. ²⁸ Judge Kehoe’s opinion for this Court first affirmed the correctness of the decision of the Board of Appeals that the Chesapeake Bay Foundation and the Magothy River Association, because they were not nearby property owners, were not prima facie aggrieved: In its decision, the majority of the Board focused upon the fact that neither CBF or MRA asserted a property interest in the vicinity of Big Dobbins Island. First, the Board majority correctly noted that, since neither appellant owned real property in close proximity to the island, neither was prima facie aggrieved. 192 Md.App. at 187 , 993 A.2d 1163 . It was when our analysis then turned to the very different question of whether the CBF and the MRA might nonetheless establish special aggrievement that we pointed out that “contrary to the Board’s analysis, property ownership is not a prerequisite to aggrievement.” 192 Md.App. at 189 , 993 A.2d 1163 .

Property ownership is not an absolute prerequisite to being specially aggrieved and is not even an important factor in the relatively rarer cases where the complainant is a governmental agency rather than a private citizen. There is a critical difference between the classes of protestants. 3 ²⁹ Our opinion did not finally decide whether the CBF and the MRA were actually specially aggrieved or not. It remanded the case to the Board of Appeals for that determination, using the proper definition of aggrievement. The opinion pointed out, however, the type of thing that a would-be protestant must sometimes show in order to be entitled to special ag-grievement: Appellants presented evidence to the Board that they have invested substantial amounts of volunteer time, as well as ³⁰ money, on various submerged aquatic vegetation and oyster reef restoration projects in the Magothy River.

The appellants also obtained permits from the State of Maryland in order to further their objectives. CBF has a scientific collection permit from the State of Maryland Department of Natural Resources (“DNR”). That permit allows CBF the right to go back, inspect and retrieve some oysters and reefs in the Magothy River. MRA has a scientific license from the State of Maryland, which permits MRA to take oyster samples, seed the reefs and dive off the reefs in the Magothy River as part of a monitoring program.

The testimony from the appellants was that there are few, if any, other such licenses for the River. This evidence was unchallenged by appellees. On remand, the Board must determine whether these investments of time and money and the permits the appellants hold are sufficient to satisfy the first prong of the test for aggrievement. 192 Md.App. at 190 , 993 A.2d 1163 . A showing of special aggrievement is never automatic.

Protestants such as the Chesapeake Bay Foundation and the Magothy River Association are clearly special cases. Ordinarily, if not universally, an individual citizen as protestant will, almost of necessity, be a property owner. The Bryniar-ski opinion pointed out that all three challengers in that case were “property owners.” In discussing standing, the phrase “property owner” was used no less than twelve times, and no alternative status was referred to. On the critical presumptive state of being prima facie aggrieved, being a “property owner” is the express sine qua non: An adjoining, confronting, or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. 247 Md. at 145 , 230 A.2d 289 (Emphasis supplied).

The pre-Bryniarski opinions all dealt expressly with property owners. Marcus v. Montgomery County Council, 235 Md. 535, 538 , 201 A.2d 777 (1964) (“Mr. Marcus owns and resides at ... Mr. Vrataris owns and resides at ... M. ³¹ Molyneaux owns and resides at----”); DuBay v. Crane, 240 Md. 180 , 213 A.2d 487 (1965); Wilkinson v. Atkinson, 242 Md. 231 , 218 A.2d 503 (1966); White v. Major Realty, Inc., 251 Md. 63, 64 , 246 A.2d 249 (1968) (“the appellants ... who own and reside at....”); Wier v. Witney Land Co., 257 Md. 600, 608 , 263 A.2d 833 (1970) (three separate “property owners”); Maryland-National Capital Park and Planning Commission v. Rockville, 269 Md. 240, 248 , 305 A.2d 122 (1973) (“Neither the Commission nor the County owns any property located within sight or sound of the subject property and have no special interest or damage to give either of them the status of an ‘aggrieved party,’ necessary to present an appeal.”) (emphasis supplied).

The post-Bryniarski opinions, except for the Clickner case, do not break stride. 120 West Fayette Street v. Mayor and City Council of Baltimore, 407 Md. 253, 270 , 964 A.2d 662 (2009) (“120 West Fayette’s allegations that it owned property affected by the redevelopment ... constitutes sufficient standing to maintain their action in court.”); Committee For Responsible Development on 25th Street v. Baltimore, 137 Md.App. 60, 86 , 767 A.2d 906 (2001) (“Generally, to be an aggrieved party, the complaining property owner must be in ‘sight or sound’ range of the property that is the subject of his complaint.”) (emphasis supplied). Although the caselaw may never have expressly stated that a non-property-owner is automatically disqualified from establishing prima, facie aggrievement and standing, an extrapolation from everything the caselaw affirmatively has said would seem to support such a conclusion. Indeed, in Holland v. Woodhaven Building and Development, Inc., 113 Md.App. 274, 280 , 687 A.2d 699 (1996), Judge James Eyler came very close to stating just such a conclusion for this Court: 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. (Emphasis in original).

Practical logic supports such a position. Once the boundary line of prima facie aggrievement is extended beyond property ³² ownership, it becomes exceedingly hard to pinpoint where that extension should stop. If one renting a nearby house on a year-to-year basis should be afforded standing to be aggrieved, why should that entitlement not be extended to one renting an abutting or nearby house on a month-to-month basis? How about a week-to-week basis?

Would the same entitlement to qualify as an aggrieved protestant extend to a lessee of an apartment as well as to the lessee of a home? What about the long-term renter of a room in a nearby house or even a short-term room-and-boarder? What about the long-term (or even short-term) renter of a room in a nearby hotel or motel? How about a live-in relative (or friend) who pays no rent?

Tempting as it might be to move the line in the case of Benn Ray, there is the practical problem of where should the line then be drawn? In law, of course, it is prudent never to say never. Even if, theoretically, one might in some rare situation establish special aggrievement even as a non-owner, a non-owner will still not be entitled to the presumption of prima facie aggrievement. If there are extraordinary circumstances in Ray’s case, it was up to Ray to establish them and not take them for granted.

That he did not do. His non-ownership of the property would seem to deny him the standing to seek judicial review. In this case, however, the Court chooses, as did the City, as did the Subject Property owners, and as did the trial court, to overlook the self-evident. We will assume, purely arguendo, that the elephant is not in the room.

We choose to do this for three reasons. In the first place, our ultimate holding does not depend on Ray’s non-ownership status, for he lacks standing for several other independent reasons. In the second place, no one except the Developers have focused on this issue and we have not had the benefit of any significant legal research or legal argument with respect to it. Under these circumstances, we hesitate to elevate our dicta, even though it be thoroughly considered dicta, to the more authoritative status of an actual holding.

It would not, after all, have been the pivot on which our decision turned. In the third place, we are ³³ pleased to respond to Ray’s contentions on their merits, because they are good teaching tools as negative examples. Accordingly, we will assume, purely arguendo, that Ray’s standing is as bedrock as if he were the fee simple owner of 279 W. 31st Street. How To Qualify As Living “Nearby”?

Let Us Count the Ways Does he qualify then for prima facie aggrievement? The wild card in the Bryniarski deck of “adjoining, confronting, or nearby property owner[s]” is the tetherless adjective “nearby.” In terms of entitlement to “prima facie” aggrievement, notions like “touching,” “contiguous,” “adjoining,” “bounding,” “confronting,” and “abutting” are warm and comforting geometric certainties. The status of being “nearby,” by unnerving contrast, is a will o’ the wisp. Nearbyness, like beauty, is in the eye of the beholder.

It frustratingly eludes the butterfly net of rectilinear thinking. By zoning developers, it is something conceded only grudgingly by inches. By would-be protestants, it is something dispensed bounteously by furlongs. 4 By what folly did a word so evanescent ever make it into the caselaw? It is more than a word; it is a minefield.

In Holland v. Woodhaven Building and Development, Inc., 113 Md.App. at 281 n. 3, 687 A.2d 699 , Judge James Eyler gave us his thought on the ambiguity of being nearby: As an aside, we note that the issue of what constitutes a ‘nearby’ property owner is, itself, a question of fact which may turn on such circumstances as the topography of the subject property and its environs and the nature of the proposed development. The word “nearby,” if not abused, serves a salutary purpose in zoning challenge law. It recognizes the proximate impact on the second tier of surrounding property owners even when they are not literally contiguous to or abutting on the source of their concern. The quality of being “nearby” may embrace even a third tier.

It is when misapplied to the ³⁴ fifth and the sixth tiers, however, that “nearby” is being exploited beyond its reasonable limit. Being “nearby” is a notion that shares the basic concerns of proximity with the “contiguous,” the “confronting,” the “bounding,” and the “abutting.” It cannot be reduced to mathematical measurement, but it is a “close-in” thing and not a “distant” thing. It is a neighborly thing and not a mere technical qualification. One can sense it even when one cannot define it.

In this case, one does not sense that either Coyne or Ray are truly “nearby.” The Basic Geography of Prima Facie Aggrievement The appellant Coyne lives at 2738 Guilford Avenue. That is 0.4 miles from the proposed 25th Street Station, as the crow flies. According to Mapquest, the driving distance is .63 miles. It is four blocks east and three blocks north of the nearest (northeast) corner of the site.

The appellant Ray lives at 279 W. 31st Street. That also is 0.4 miles from the proposed 25th Street Station, again as the crow flies. That is six blocks north plus one lateral block 5 from the nearest (northwest) corner of the site. According to Mapquest, the driving distance is .61 miles.

As a general proposition, a distance of between 0.4 miles and 0.63 miles is beyond the range of being nearby. So is a distance of six or seven busy city blocks. 6 For Ray, moreover, to travel north across 29th ³⁵ Street is, effectively, to go into a completely different neighborhood. In Cassel v. City of Baltimore, 195 Md. 348, 353 , 73 A.2d 486 (1950), “less than 100 feet from the property in dispute” was considered appropriately nearby. In Marcus v. Montgomery County, 235 Md. at 538 , 201 A.2d 777 , there were three would-be protestants.

One who lived a block away from the proposed project was deemed to be prima facie aggrieved. The two who were, respectively, 3/4 of a mile away and 1/4 of a mile away were not prima facie aggrieved and their challenges were dismissed. The property owners who were not sufficiently nearby in DuBay v. Crane, 240 Md. at 183-84 , 213 A.2d 487 , were 1) 1,500 feet away (the appellants in the present case are between 2,112 feet and 3,326 feet away) and 2) 0.4 miles away (precisely the same as the best figure for the two appellants here). In Wilkinson v. Atkinson, 242 Md. at 233 , 218 A.2d 503 , the landowner who was beyond the pale of nearness was 750 feet away (between one-third and one-fourth of the