Ray v. Mayor of Baltimore

ADKINS, J. Petitioners here seek to block a Planned Unit Development (“PUD”) with a Wal-Mart supercenter in Baltimore City, but have been stymied by Circuit Court and appellate rulings against them on the threshold question of standing. Although the test to show standing has been established in Maryland for more than half a century, the issue continues to generate appellate cases. That is partly because the test is fact-sensitive and is not readily reduced to a set of rules. As we have explained, to have standing to challenge a zoning reclassification, a person’s property interest “must be such that he is personally and specially affected in a way different from that suffered by the public generally.” See Bryniarski v. Montgomery Cnty.

Bd. of Appeals, 247 Md. 137, 144 , 230 A.2d 289, 294 (1967). Today, we decline to adopt Petitioners’ theory that the class of persons aggrieved by ⁷⁸ approval of this PUD must include the entire Charles Village and Remington neighborhoods. Moreover, Petitioner’s alternative argument, that they meet the specially aggrieved standard set forth above, does not withstand close examination. FACTS AND LEGAL PROCEEDINGS On November 22, 2010, the Baltimore City Council passed Ordinance 10-397, which approved a PUD for an 11.5-acre tract of land known as the “25th Street Station.” The PUD authorizes a mixed-use development located in the Remington and Charles Village neighborhoods of Baltimore City.

It is anticipated to “bring approximately 20 national retailers ..., as well as 70-80 market-rate apartment units.” Benn Ray and Brendan Coyne (“Petitioners”) filed a Petition for Judicial Review of the PUD’s approval. Ray resides in the Remington neighborhood at 279 W. 31st Street, Baltimore, Maryland. His residence is 2,212.39 feet, or approximately 0.4 miles, away from the PUD. Ray claims that he can see the PUD site from his second-floor bathroom during the winter months of the year, and that he can hear noise from the PUD site when his second-floor bathroom window is open.

He believes that the PUD “will directly and dramatically increase traffic ... in front of [his] home,” which “will make it more dangerous for [him,]” given that “W. 31 St. is a narrow residential road that [he] believe[s] is ill equipped to handle the increased level of traffic.” Ray also believes that “the Wal-Mart planned to be part of the project will change the character of [his] neighborhood.” Coyne resides in the Charles Village neighborhood at 2738 Guilford Ave., Baltimore, Maryland 21218. His residence is 2,002.18 feet, or approximately 0.4 miles, away from the PUD. Coyne has produced no evidence to show that he can see or hear the PUD from his residence. 1 Coyne’s main contention is that the PUD, and specifically the planned Wal-Mart store, ⁷⁹ will adversely change the character of his neighborhood because the Wal-Mart store will force out many local businesses that he frequents, resulting in vacant buildings in his neighborhood. Coyne is of the opinion that the addition of the WalMart store will also lower wages of workers in his neighborhood, causing there to be “fewer employed people.” He believes that this “will lead to a higher number of residents failing to properly maintain their property.” Coyne claims that he is familiar with property values in the neighborhood and believes that these adverse effects will make “Charles Village a less desirable place to live,” thereby decreasing the value of his home.

The Mayor and City Council of Baltimore City, the owners of the subject property, and the developers of the PUD (“Respondents”) timely responded to the petition for judicial review, and all filed motions to dismiss, alleging that Petitioners lacked standing to challenge the PUD. In a written order, Judge Pamela J. White of the Baltimore City Circuit Court granted Respondents’ motions and dismissed Petitioners’ Petition for Judicial Review. She found that “Petitioners are not ‘adjoining, confronting or nearby’ property owners and thereby do not enjoy prima facie aggrieved status.” Nor had Petitioners shown any special interest or damage unique to Petitioners that would distinguish them from the general public. Judge White explained that “see[ing] roof tops or parking lots or traffic activity ... or hear[ing] city noise from blocks away, or deal[ing] with traffic congestion, or worrying] about local businesses ... are not circumstances that are unique or different from many other Baltimore residents among the general public.” Judge White also found that Coyne’s beliefs about the potential decrease in his property’s value were not admissible.

The Court of Special Appeals affirmed. In a reported opinion authored by Judge Moylan, the intermediate appellate court agreed with the Circuit Court that Petitioners did not qualify for prima facie aggrieved status and that Petitioners had failed to show any special aggrievement different from the ⁸⁰ public generally. Ray v. Mayor of Balt., 203 Md.App. 15, 35-36, 45-46 , 36 A.3d 521, 533, 539-40 (2012). On May 9, 2012, this Court granted a writ of certiorari, Ray v. Mayor of Baltimore, 426 Md. 427 , 44 A.3d 421 (2012), to answer the following questions: 1.

Did the Court of Special Appeals err when it equated Petitioners’ neighborhoods of Charles Village and Remington with the general public and ruled that they lacked standing because others in their neighborhood were adversely affected in similar ways? 2. Did the Court of Special Appeals err when it held that Petitioners lacked standing because they were neither “nearby” nor specially aggrieved without considering the unique adverse effects caused by a new type of large development on 11.5 acres in an urban neighborhood? 2 We shall hold that the Circuit Court did not err in dismissing Petitioners’ Petition for Judicial Review. DISCUSSION Petitioners filed for judicial review of the PUD ordinance under Md.Code (1957, 2010 Repl.Vol.), Article 66B, § 2.09(a)(l)(ii). This section provides: (a) Who may appeal; procedure. — (1) An appeal to the Circuit Court of Baltimore City may be filed jointly or severally by any person, taxpayer, or officer, department, board, or bureau of the City aggrieved by: (i) A decision of the Board of Municipal and Zoning Appeals; or (ii) A zoning action by the City Council.

(Emphasis added). 3 ⁸¹ Id. In Bryniarski v. Montgomery County Board of Appeals, this Court described a “person aggrieved” as: 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. (Emphasis added). 247 Md. at 144 , 230 A.2d at 294 . 4 The Court then offered several general principles, two of which are relevant here.

First, “| a]n adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.” Id. at 145 , 230 A.2d at 294 . Second, “[a] person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved ... [unless he meets the burden of alleging and proving ... that his personal or property rights are specially and adversely affected.” Id., 230 A.2d at 295 . Beyond these general principles provided in Bryniarski , we have not articulated what it means to be “specially affected” or how one proves that his harm is different from the public harm. Rather, the standard is flexible in the sense that it is based on a fact-intensive, case-by-case analysis. ⁸² Therefore, before we can determine whether Petitioners are “specially affected,” we examine the fact patterns that have emerged from our earlier cases.

In doing so, we keep in mind that the concept of special aggrievement used in current zoning laws has its roots in the laws pertaining to the tort action of public nuisance. See 4 Edward H. Ziegler, Jr., Rathkopfs The Law of Zoning and Planning § 63:14 (2012) (“This strict standard of [special] aggrievement for standing to enforce a zoning ordinance is based in early nuisance law which antedated zoning.”). As the Rathkopfs treatise explains, [T]he “special damage” rule was an outgrowth of the law of public nuisance. Inasmuch as a public nuisance was an offense against the state and, accordingly, was subject to abatement on motion of the proper governmental agency, an individual could not maintain an action for a public nuisance unless he suffered some special damage from the public nuisance.

(Emphasis added). Id. (quoting Skaggs-Alberbson’s v. ABC Liquors, Inc., 363 So.2d 1082, 1088 (Fla.1978)) (alteration in original). Without the special damage, “a private citizen has no standing to champion the right of the public in abating a public nuisance.” 5 Id. § 63:14 n. 1.

When we examine Petitioners’ specific arguments, we will call upon the law of nuisance for enlightenment. But first, we will review how the Maryland cases have applied the principles summarized in Bryniarski . Proximity as a Measuring Stick of Standing A review of our cases, where standing to challenge a rezoning action was at issue, reveals one critical point: prox ⁸³ imity is the most important factor to be considered. The relevance and import of other facts tending to show aggrievement depends on how close the affected property is to the rezoned property. 6 There is, however, no bright-line rule for exactly how close a property must be in order to show special aggrievement.

Instead, this Court has maintained a flexible standard, finding standing in cases that do not quite satisfy the “adjoining, confronting or nearby” standard of prima, facie aggrievement, but are nudging up against that line. Protestants in such cases will be considered to pass the standing threshold if they allege specific facts of their injury. In other words, once sufficient proximity is shown, some typical allegations of harm acquire legal significance that would otherwise be discounted. But in the absence of proximity, much more is needed.

For example, an owner’s lay opinion of decreasing property values and increasing traffic has been considered sufficient for special aggrievement when combined with proximity that is almost as great as in cases where properties are “adjoining, confronting or nearby.” See Habliston v. Salisbury, 258 Md. ⁸⁴ 350, 352, 354-55 , 265 A.2d 885, 885-87 (1970) (protestant 200 to 500 feet away from reclassification of 16 acres to residential was specially aggrieved based on close proximity and lay testimony of decreasing property value); Chatham Corp. v. Beltram, 252 Md. 578, 579-80, 584 , 251 A.2d 1, 2, 4 (1969) (protestants in sight of 6.74 acres reclassified to permit apartments were “specially aggrieved” based on “proximity of their homes within [1000 feet of the rezoning] and their feeling that the increased density would depreciate their property values”); see also Alvey v. Hedin, 243 Md. 334, 337, 339 , 221 A.2d 62, 63-64 (1966) (protestants 250 feet away from rezoning to construct marina on 4.75 acres were specially aggrieved based on close proximity and special problems with lights, noise, and refuse); Toomey v. Gomeringer, 235 Md. 456, 460 , 201 A.2d 842, 844 (1964) (about two city blocks away and testimony of real estate expert that there was change in residential character and decreasing property values). 7 Conversely, without sufficient proximity, similar facts will only support general aggrievement. For example, when the affected properties are not sufficiently close to the site to qualify as almost prima facie aggrieved, claims of increasing traffic, change in the character of the neighborhood, lay opinion projecting a decrease in property values, and limited visibility have been held to show only general aggrievement. See Shore Acres Improvement Ass’n, Inc. v. Anne Arundel Cnty. Bd. of Appeals, 251 Md. 310, 312, 317-18 , 247 A.2d 402, 403, 406 (1968) (protestant 3760 feet in straight line, or 9400 feet by road, not specially aggrieved by reclassification of 206 acres to apartments and commercial, despite claim of increased traffic); White v. Major Realty, Inc., 251 Md. 63, 64 , 246 A.2d 249, 250-51 (1968) (protestant 0.5 miles away, who alleged increased traffic, increase use of water system, over ⁸⁵ crowded schools, and change in character of community, not specially aggrieved by reclassification of 64 acres to residential and apartments); Wilkinson v. Atkinson, 242 Md. 281, 233-35 , 218 A.2d 503, 505-06 (1966) (protestant 750 feet in straight line, or 0.7 miles by road, who testified that she could see the property across the Beltway, provided lay opinion of decreasing property values, and alleged change in the community and increased traffic, not specially aggrieved by reclassification to apartments); DuBay v. Crane, 240 Md. 180, 182-84, 185-86 , 213 A.2d 487, 488-90 (1965) (three protestants 1500 feet, 0.4 miles, and 0.9 miles away, who claimed increase in sewage disposal, increased traffic, and lay opinion of decreasing property values, not specially aggrieved by reclassification of 35 acres for apartments); Marcus v. Montgomery Cnty.

Council, 235 Md. 535, 537-38, 541 , 201 A.2d 777, 778-79, 781 (1964) (protestants with claims of increased traffic, increase in school population, 0.25 miles and 0.75 miles away from site re-zoned to apartments and commercial only generally aggrieved); Pattison v. Corby, 226 Md. 97, 99-100, 103 , 172 A.2d 490, 491-92, 494 (1961) (claim of change in character of neighborhood by protestant a “considerable distance” away from the 54 acres to be rezoned as multiple family residential was general aggrievement). 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. Dicta in Maryland cases suggest a third, poorly-defined category of protestants with standing who, despite being “far removed from the subject property,” may nevertheless be able ⁸⁶ to establish “the fact that his personal or property rights are specially and adversely affected by the board’s action.” Bryniarski, 247 Md. at 145 , 230 A.2d at 295 . Although this point has been repeated in other cases, 8 we have found no instance in which the Court held that a person who was far removed from the site of rezoning actually qualified as “specially aggrieved.” This Case With this framework in mind, we turn to the issues presented by this case. Petitioners advance two arguments: (1) the aggrieved class should be defined as the entire neighborhood; and (2) their claims for special aggrievement — including their proximity to the PUD, a change in the character of the neighborhood, increased traffic, and visibility of the PUD — are sufficient to establish standing.

Additionally, Petitioner Coyne argues that the Circuit Court erred in ruling inadmissible his testimony regarding a decrease in the value of his property. Petitioners vs. General Public Petitioners argue that the Court of Special Appeals improperly compared them to other residents of Charles Village and Remington, which they assert are the areas the PUD will impact. 9 Instead, they maintain that “an analysis of whether ⁸⁷ Petitioners have standing requires a comparison of their aggrievement to any aggrievement of a person outside of Charles Village and Remington,” not within it. In essence, they ask us to define these two neighborhoods as the aggrieved class. To justify this position, Petitioners look to Alvey v. Hedin, a case involving the rezoning of 4.75 acres from agricultural to commercial for the purpose of building a marina. 243 Md. at 336 , 221 A.2d at 63 .

The two protestants in Alvey lived 250 feet across from the proposed marina and had beer cans, toilet paper, and other refuse float onto their property. Id. at 338 , 221 A.2d at 64 . After quoting the general rule that standing is only awarded to those who can show special aggrievement, we found both protestants to be within the “aggrieved class.” Id. at 339 , 221 A.2d at 64 (quoting DuBay, 240 Md. at 185 , 213 A.2d at 489-90 ). We reasoned that the protestants were specially aggrieved “because their closeness to the marina property, their special problems with lights and noise as well as with the refuse emanating from the operation of the marina, make the effect of this commercialization on them different from its effect upon members of the public generally.” Id.

In Petitioners’ view, Alvey “established that the fact that two neighbors may suffer the same aggrievement does not preclude either neighbor from being specially aggrieved.” To further support their thesis that the scope of the aggrieved class entitled to standing should have been these neighborhoods, Petitioners analogize this case to special exception or conditional use cases. In support of that argument, they quote Md. Overpak Corp. v. Mayor of Balt., where we noted that “a PUD partakes more of the characteristics of a conditional use than any other zoning construct or mechanism recognized in Baltimore City.” 395 Md. 16, 30 , 909 A.2d 235, 243 (2006). They argue that “[cjourts routinely analyze neighborhoods in special exception or rezoning cases.” Moreover, ⁸⁸ they point out that the PUD section in the Baltimore City Code mentions the term “neighborhood” as well: it provides that a PUD may not “adversely affect the surrounding neighborhood.” Balt. City Rev.Code, Zoning § 9 — 112(b)(2) (2010).

Thus, Petitioners conclude that, because of the focus on the concept of “neighborhood” in conditional use cases and the Zoning Code, we should use it in defining an aggrieved party as well. Respondents counter that both the Circuit Court and the Court of Special Appeals were correct to rely on the well-established standard set forth in Bryniarski , under which a person must show “that he is personally and specially affected in a way different from that suffered by the public generally.” 247 Md. at 144 , 230 A.2d at 294 . Using this standard, Respondents argue that “[ajggrievement is analyzed based on whether an individual is specially and adversely affected by a zoning decision — not whether a neighborhood is affected.” To support this assertion, Respondents cite several cases — including Marcus, White, DuBay, and Wilkinson — and argue that this Court has denied protestants aggrieved status even when they lived in the same community or neighborhood as the rezoning action. We agree with Respondents that the creation of a class of aggrieved persons is done on an individual scale and not based on delineations of city neighborhoods. 10 See Marcus, 235 Md. at 538, 541 , 201 A.2d at 779, 781 (denying standing to property owner 0.75 miles from site because “[t]here is no evidence that his home is within sight of the subject properties nor that the proposed rezoning would have any effect whatever on it except such effect as all other residential properties in the whole Wheaton and Glenmont area of Montgomery County might suffer”); see also DuBay, 240 Md. at 183 , 213 A.2d at 489 (“[I]n addition to showing the proximity of one property to the other, [standing] requires proof of the adverse effect the ⁸⁹ changed status of the rezoned property has, or could have, on the use, enjoyment and value of the property of the protestant in order to establish the status of the appellant as an aggrieved person.”). 11 As we sketched out above, with the exception of those protestants who are prima facie aggrieved, the requirement that an individual prove special aggrievement has been well-established for more than half a century.

We are not aware of any case in which this Court has deviated from that standard. Indeed, even Alvey , the case relied on by Petitioners, supports this holding. There, in referring to the “aggrieved class,” the Court was using the word “class” to mean a category of individuals who showed special aggrievement different from the general public. It was not referring to the whole neighborhood or even numerous people.

Instead, the aggrieved class consisted of the two individuals who were able to show that they were specially aggrieved by virtue of the detritus deposited on their shores. Alvey does not support Petitioners’ argument because Petitioners’ theory depends on subtracting individual special aggrievement from the analysis — it assumes that every member of the neighborhood is automatically specially aggrieved. By comparing everyone inside the neighborhood to everyone outside of the neighborhood, there is no chance for the Court to examine whether the people inside the neighborhood are in fact specially aggrieved. Even Petitioners acknowledge that “[t]he neighborhood could include an individual who is not ⁹⁰ aggrieved.” Yet, under Petitioners’ proposed definition of an “aggrieved class,” this non-aggrieved person would still be given standing, a result at odds with our jurisprudence, which requires proof of harm to the individual.

Petitioners’ reliance on cases in which courts have analyzed neighborhoods in rezoning cases and to the governing standards of the Zoning Code is also misplaced. Neither the Code nor the cases apply to the issue of standing to support judicial review. Rather they apply to the merits at issue — whether a rezoning action was properly granted or denied. Certiorari was sought and granted here not on the question of whether the PUD should have been approved, but whether Petitioners had standing to seek judicial review of the decision of the City Council.

These diverse issues call for different legal standards, and 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.” Bryniarski, 247 Md. at 144 , 230 A.2d at 294 . Creating a bright-line rule, under which each person in the entire neighborhood qualifies as a member of the specially aggrieved class in every PUD case, as Petitioners propose, would be tantamount to abandoning the Bryniarski rule that the facts and circumstances of each case would govern. 12 We decline to adopt such a bright-line rule. Instead, we will examine the specific facts alleged to show aggrievement in this case and compare that injury to harm suffered by the general public. Petitioners’ Claims of Special Aggrievement The second issue before this Court is whether “the unique adverse effects caused by a new type of large development on 11.5 acres in an urban neighborhood” were sufficient to accord Petitioners standing as specially aggrieved persons.

This ⁹¹ question is simply another way of asking whether Petitioners have met their burden of showing special aggrievement. In determining whether Petitioners have met their burden of showing special aggrievement, we remain aware of the appropriate standard of review. In this case, the Circuit Court converted the motions to dismiss into motions for summary judgment by considering materials outside of the pleadings, including Petitioners’ affidavits. See Md. Rule 2-322(c); 120 W. Fayette St., LLLP v. Mayor of Balt, 407 Md. 253, 263 , 964 A.2d 662, 667 (2009).

When this Court reviews the granting of a motion for summary judgment, “we must consider whether a dispute of material fact existed and whether the trial judge was legally correct.” Comm. for Responsible Dev. on 25th St. v. Mayor of Balt., 137 Md.App. 60, 74 , 767 A.2d 906, 913 (2001) (citations and quotation marks omitted). Petitioners’ Proximity to the PUD Petitioners concede that they are not prima facie aggrieved as they both reside approximately 0.4 miles from the PUD. Thus, to establish special aggrievement through proximity, Petitioners must still