Sipes v. Board of Municipal and Zoning Appeals

BISHOP, Judge. Appellee Brooklyn Salvage Corporation (“BSC”) filed an application with appellee Board of Municipal and Zoning Appeals of Baltimore City (the “Board”) for alteration of an existing conditional use of a junk yard. After a hearing, the Board approved the application on August 6, 1992. Appellants, Community of Curtis Bay Association, Inc. (“CCBA”), Concerned Citizens for a Better Brooklyn, Inc. (“CCBB”), and Maryland Waste Coalition, Inc. (“MWC”), (collectively, the “Organizations”) filed an order for appeal of the Board’s decision to the Circuit Court for Baltimore City on August 27, 1992.

BSC filed an answer to the Organizations’ appeal and a ⁸¹ motion to dismiss or, in the alternative, for summary judgment (hereinafter “first motion to dismiss”), both of which the Board adopted. Before the circuit court ruled on that motion, appellant Gloria Sipes (“Sipes”) filed a motion to intervene on October 13, 1992; the motion to intervene was filed forty-seven days after the appeal was noted and sixty-eight days after the decision of the Board. On the same date, the Organizations and Sipes filed an amended petition and order for appeal. In response, BSC filed a second motion to dismiss or, in the alternative, for summary judgment (hereinafter “second motion to dismiss”), which the Board adopted.

The circuit court granted Sipes’s motion to intervene and denied appellees’ second motion to dismiss; it never ruled on the first motion to dismiss. After a hearing on the merits, the court remanded the case to the Board for a new hearing. BSC filed a motion to alter or amend judgment, along with an affidavit of Lalit H. Gadhia (“Gadhia”), Chairman of the Board. Appellants moved to strike the affidavit.

After a hearing, the court denied appellants’ motion to strike and granted BSC’s motion to alter or amend judgment, and affirmed the Board’s action. Appellants filed a timely notice of appeal to this Court. Issues Appellants raise four issues, which we restate as follows: I. Whether the circuit court erred when it considered an affidavit that was not a part of the agency record.

II

Whether the circuit court erred when it gave weight to the ex-parte affidavit of a single Board member which purported to state what the entire Board actually intended in its unanimous Resolution, in contradiction to what was actually stated in that Resolution.

III

Whether the circuit court erred when it affirmed the Board’s decision despite the fact that the Resolution stated inapplicable provisions of law, leaving the court ⁸² unable to determine whether there was substantial evidence on the record for the grant of the permit.

IV

Whether the circuit court erred when it determined that the Board’s revised decision was supported by substantial evidence. Appellees, without taking a cross-appeal, raise one issue: Whether the circuit court had jurisdiction to hear the appeal of the Board’s decision where: A. the Organizations were neither taxpayers nor “persons aggrieved” by the decision of the Board; and B. Sipes’s motion to intervene in the appeal was filed more than thirty days after the date of the Board’s decision. Because we shall conclude that the circuit court erred when it granted Sipes’s motion to intervene and denied appellees’ motions to dismiss, we need not address the merits of appellants’ contentions. Facts The facts surrounding BSC’s application to the Board, the Board’s decision, and the circuit court’s consideration of the affidavit of Gadhia are not relevant to our discussion, infra.

The facts that are relevant to the issue of standing are as follows. In response to the Organizations’ order for appeal of the Board’s decision, appellees moved to dismiss the appeal based on the Organizations’ failure to allege in the order for appeal either'their status as taxpayers or as “aggrieved” persons; at least one of these is necessary to have standing to appeal from a decision of the Board. The trial court did not rule on that motion because, before it could do so, Sipes filed her motion to intervene and the Organizations and Sipes filed the amended petition and order for appeal. In the motion to intervene, Sipes averred in relevant part: 8.

Given Ms. Sipes’ status as a Maryland taxpayer, the proximity of her home to the shredder site, the fact that she ⁸³ has consistently voiced her concerns to [BSC] and the Board, Ms. Sipes has standing to appeal the Board’s ruling. ... 9. The interests of the existing parties to the appeal and Ms. Sipes are not the same, since each of three appellants has appealed in order to protect the interests of itself and its members, in light of the health, safety, environmental and other interests which concern the entire community surrounding [BSC’s property]. Ms. Sipes, however, is concerned with a more limited geographical area, namely that of her home, and with the health and safety concerns peculiar to her.... 10. Since the particular interests of Ms. Sipes may not be adequately represented by the current parties, and since her interests will be impaired by disposition of this appeal were she not to intervene, Ms. Sipes hereby moves to intervene pursuant to Rule 2-214(a).

In the amended petition and order for appeal, the Organizations and Sipes stated: 1. ... Appellants amend the Petition and Order for Appeal to state in greater detail the facts supporting that each of the Appellants is “aggrieved,” thus has standing to appeal, and to correct a misnomer by including Gloria Sipes as an Appellant, since she is aggrieved and should have been named as an Appellant.... 6. [CCBA] is “aggrieved” by the Board’s decision ... since its monthly meetings are held at the Curtis Bay Recreation Center, within one-half of a mile of [BSC]’s site. Since [CCBA]’s corporate purpose is to protect the health and environment of the Curtis Bay area, and since [BSC]’s shredder directly threatens these interests and [CCBA]’s meetings, [CCBA] has a separate and distinct property interest in the subject matter of this appeal, thus has standing. 7. [CCBB] is “aggrieved” by the Board’s decision ... since its meetings are regularly held at the Brooklyn Com ⁸⁴ munity Center, within two to two ánd one-half miles of [BSC]’s site. Since [CCBB’s] corporate purpose is to protect the health and environment of the Brooklyn area, and since [BSC]’s shredder directly threatens these interests and [CCBB’s] meetings, [CCBB] has a separate and distinct property interest in the subject matter of this appeal, thus has standing. 8. [MWC] is “aggrieved” by the Board’s decision ... since its corporate purpose is to protect the health and environment by ensuring compliance with existing laws and regulations affecting the environment....

Since [BSC]’s shredder permit directly threatens these interests, [MWC] has a separate and distinct property interest in the subject matter of this appeal, thus has standing. 9. ... Sipes is “aggrieved” by the Board’s decision ... since she is a resident of the Curtis Bay area who lives in close proximity to [BSC] ..., thus is directly subject to the health and environmental hazards that the shredder imposes. * * # ❖ % >fs 14. ... Sipes, as President of [CCBA], as a member of [MWC], and on her own behalf, should have been named as an Appellant in the original Petition. • Appellees responded with a second motion to dismiss, again arguing that the Organizations lacked standing to appeal. Appellees also argued that Sipes could not intervene in a “defective” appeal (ie., one where none of the original parties has standing to appeal) after the expiration of the thirty day period for appealing the Board’s decision.

On December 7,1992, the circuit court held a hearing on the parties’ motions. The court granted Sipes’s motion to intervene and denied appellees’ second motion to dismiss. The court did not rule on the first motion to dismiss because, in its view, it was “rendered moot” by the court’s denial of the second motion to dismiss. Although the court did not state in its order the reasons for its decision, it did incorporate by reference the “reasons stated on the record on December 7, ⁸⁵ 1992.” Unfortunately, the record on appeal to this Court does not include a transcription of that hearing because of a mechanical problem with the court reporter’s recorder.

Additional facts will be included in the discussion, infra. Discussion Justice Holmes once said, “ ‘Law is secreted in the interstices of procedure.’ ” See Capron v. Mandel, 250 Md. 255, 259 , 241 A.2d 892 (1968) (quoting from an unidentified source). This case is a striking example of why careful adherence to the rules of procedure cannot be overlooked. As we have indicated supra, we shall hold that the circuit court erred when it entertained the appeal from the Board because the Organizations did not have standing to appeal and Sipes could not intervene after the running of the thirty day period for taking an appeal.

Before we address that issue, however, we must first decide whether we have jurisdiction to address the issue of standing in light of appellees’ failure to note a cross-appeal. Appellants cite Joseph H. Munson Co. v. Secretary of State, 294 Md. 160 , 448 A.2d 935 (1982), aff'd, 467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984), and argue that appellees’ failure to note a cross-appeal from the circuit court’s judgment precludes them from raising the issue of standing in this Court. We disagree. In Munson, the plaintiff, a company that engaged in fund raising for charitable organizations, sought, among other things, to have a provision of the Maryland Code declared unconstitutional.

The Secretary of State not only opposed the constitutional challenge on the merits, but also challenged the plaintiffs standing to make such a challenge. After the trial court upheld the constitutionality of the statute (thus, implicitly, finding that the plaintiff had standing), the plaintiff unsuccessfully appealed the issue of the statute’s constitutionality to this Court. The Secretary did not appeal the ruling on standing. The plaintiff then petitioned the Court of Appeals for a writ of certiorari on the constitutional issue; the Secretary filed a cross-petition relating to the plaintiffs standing to ⁸⁶ challenge the constitutionality of the statute.

The Court granted both the petition and cross-petition. The plaintiff argued that the Secretary’s standing argument was not properly before the Court. The Court of Appeals agreed. The Court explained that “[u]nder circumstances where absence of standing would present an alternate ground for upholding a trial court’s judgment, an appellee is entitled to argue that ground in an appellate court.

In such situation, a cross-appeal would be unnecessary and, in fact, would be improper.” 294 Md. at 167 , 448 A.2d 935 (citation omitted); see also Temoney v. State, 290 Md. 251, 261 , 429 A.2d 1018 (1981); Offutt v. Montgomery County Bd. of Educ., 285 Md. 557 , 563 n. 3, 404 A.2d 281 (1979). The Court recognized, however, that the Secretary was attempting to attack a declaratory judgment, which the trial court rendered on the merits. Under these circumstances the Court “would be obliged to order that the trial court’s judgment be reversed and that the case be remanded with directions to dismiss the action.” 294 Md. at 168 , 448 A.2d 935 . The Court concluded that the failure to file a valid, timely order of appeal precluded the Secretary from attacking the trial court’s declaratory judgment.

But cf. Capron v. Mandel, 250 Md. 255, 258-59 , 241 A.2d 892 (1968) (appellee may raise on appeal the correctness of the lower court’s refusal to grant a motion to dismiss based on improper venue and want of a necessary party, even though no cross-appeal is filed). We agree with appellants that, in the case sub judice, the purported lack of standing would not afford an “alternative ground for affirming the trial court” because the circuit court affirmed the Board’s decision on the merits. Rather, a determination that appellants lacked standing in the circuit court would require that we reverse the circuit court’s judgment and remand the matter to that court with instructions to dismiss the appeal. See Munson, 294 Md. at 168 , 448 A.2d 935 .

Our inquiry does not end here, however. The Court in Munson also considered whether “the standing issue may be that type of question which [an appellate ⁸⁷ court] will resolve on [its] own motion.” 294 Md. at 168 , 448 A.2d 935 . First, the Court observed that “[s]everal Maryland cases ... indicate that questions concerning the plaintiffs standing to maintain the action do not fall within this category.” Id. at 169 , 448 A.2d 935 . The Court cited as examples Toomey v. Gomeringer, 235 Md. 456, 460-61 , 201 A.2d 842 (1964); Costello v. Sieling, 223 Md. 24, 29 , 161 A.2d 824 (1960); Pressman v. Mayor of Baltimore, 222 Md. 330, 334 , 160 A.2d 379 (1960); Mayor of Baltimore v. N.A.A.C.P., 221 Md. 329, 332 , 157 A.2d 433 (1960); and, Pumphrey v. Pumphrey, 11 Md.App. 287, 292-93 , 273 A.2d 637 (1971).

The Court then cited several cases that “seem to suggest that the standing of a plaintiff to maintain an action is an issue which an appellate court will address on its own motion”, 294 Md. at 169 , 448 A.2d 935 , including Reyes v. Prince George’s County, 281 Md. 279, 287-89 , 380 A.2d 12 (1977); Ginn v. Farley, 43 Md.App. 229, 232 , 403 A.2d 858 (1979), cert. denied, 286 Md. 747 (1980); and, Balance Ltd. v. Short, 35 Md.App. 10, 11 , 368 A.2d 1116 (1977). Ultimately, the Court did not have to resolve the seeming conflict because, in either event, the plaintiff in Munson did have standing. In this case, we must decide whether appellees can challenge appellants’ standing in the circuit court appeal because, unlike the Court in Munson , we are unable to conclude that appellants had standing. In each of the first category of cases the Court of Appeals cited in Munson , the party challenging standing failed to raise that issue in the lower court.

In this case, however, appellees clearly raised the issue below—twice in fact. We find the second category of cases the Court cited in Munson , all of which are more recent, to be more persuasive. Although the issue of standing may not be jurisdictional in nature, see Costello, 223 Md. at 29 , 161 A.2d 824 ; Maryland Waste Coalition, Inc. v. Maryland Dep’t of Env’t, 84 Md.App. 544, 548 , 581 A.2d 60 (1990), rev’d on other grounds, 327 Md. 596 , 612 A.2d 241 (1992), it does go to the very heart of whether the controversy before the court is justiciable, see Reyes, 281 Md. at 287-89 , 380 A.2d 12 . If the controversy is nonjusticiable, it should not be before the court, ⁸⁸ and therefore must be dismissed.

See, e.g., Ginn, 43 Md.App. at 232 , 403 A.2d 858 . The failure of a party to file a notice of cross-appeal does not prevent an appellate court from considering whether the lower court had, or the appellate court has, jurisdiction over the case. By the same token, it should not prevent us from considering the issue of standing in this case, especially where appellees raised the issue in the circuit court. See also Windsor Hills Improvement Ass’n v. Mayor of Baltimore, 195 Md. 383, 394 , 73 A.2d 531 (1950) (discussed infra, wherein the Court of Appeals addressed the appellee’s motion to dismiss the appeal on grounds similar to those relied upon by appellees in the case sub judice, even though the appellee did not file a cross-appeal).

We shall also consider whether the circuit court abused its discretion when it granted Sipes’s motion to intervene because that issue is so closely interrelated with whether any of the appellants had standing to pursue the appeal. Appellees argue that the only parties to appeal the decision of the Board within the thirty day period provided in Rule B4 were the Organizations, which do not have standing because they are neither taxpayers nor “aggrieved” parties. (Rule B4, which was in effect at the time of the circuit court proceedings, has since been superseded by Rule 7-203, effective July 1, 1993, which although substantively identical in all respects material to this appeal does treat the thirty day period as one of limitations.) Further, appellees contend that Sipes’s motion to intervene, filed more than sixty days after the date of the Board’s decision, was untimely under both Rule B4 and Rule 2-214, and did not contain an explanation as to why Sipes did not take action before the running of the thirty day period. In sum, appellees maintain that, [bjecause the time for appeal had expired and there was no appellant with standing in the case when Sipes filed her Motion to Intervene, there was no justiciable controversy in which Sipes could intervene.

Having failed to note a timely appeal from the Board’s decision, Sipes could not use Md. Rule 2-214 to bootstrap herself into a case that had termi ⁸⁹ nated and in which the decision of the Board had become final. Appellees rely, in part, on Windsor Hills, supra. Appellants do not take issue with whether the Organizations had standing to appeal the Board’s decision. Rather, they argue that (1) Sipes had standing as both a taxpayer and as an aggrieved party (which appellees do not dispute); (2) under Windsor Hills, the circuit court had the discretion to permit Sipes to intervene; and, (3) the circuit court properly exercised that discretion when it granted Sipes’s motion pursuant to Rule 2-214.

It is not necessary that we spend a great deal of time discussing whether the Organizations had standing to appeal; appellants do not dispute appellees’ assertion that they did not. Indeed, the Organizations did not allege sufficient facts in its amended petition and order for appeal from which the circuit court could conclude that they were either taxpayers or aggrieved parties. See Norwood Heights Improvement Ass’n v. Mayor of Baltimore, 195 Md. 368, 372-73 , 73 A.2d 529 (1950) (neighborhood improvement association not showing that it was a taxpayer or person aggrieved by the decision of the Board, or that it had any interest to be affected by the outcome of the case, was not entitled to appeal); Bryniarski v. Montgomery County Bd. of Appeals, 247 Md. 137, 144 , 230 A.2d 289 (1967) (“[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.”); see also Maryland-National Capital Park & Planning Comm’n v. Smith, 333 Md. 3, 10-14 , 633 A.2d 855, 859-61 (1993) (holding that the Maryland-National Capital Park & Planning Commission, an advisory body, was not an aggrieved party and thus did not have standing in a circuit court appeal because “[i]t has not suffered any monetary loss, and ... has no special personal interest at stake” different ⁹⁰ from that of the public in general); see also Pattison v. Corby, 226 Md. 97, 103 , 172 A.2d 490 (1961) (“a rezoned area one-half mile away and effectively hidden from view was too far to give the protestants standing to sue in the absence of a showing of special damage”); Shore Acres Improvement Ass’n v. Anne Arundel County Bd. of Appeals, 251 Md. 310, 317-18 , 247 A.2d 402 (1968) (community association’s appeal from zoning board decision dismissed because its property, located 3,760 feet measured in a straight line, and approximately 9,400 feet by road, from the rezoned property, was too distant to be “ ‘especially affected in a way different from that suffered by the public generally’ ”).

Further, there is no question that Sipes, as a taxpayer, was entitled to appeal the decision of the Board. The only question the parties ask us to decide is whether Sipes could intervene in an appeal after the running of the thirty day appeal period, where that appeal was originally filed by parties without standing. Appellants and appellees both cite Windsor Hills,