Superior Outdoor Signs, Inc. v. Eller Media Co.

DEBORAH S. EYLER, J. The Board of Zoning Appeals of the Town of Willards (“Board”) granted variances to Eller Media Company (“Eller”) and E. Dean W. Richardson, the appellees, allowing them to replace two existing non-conforming billboards and to erect ⁴⁸⁷ two new billboards on property on Route 50 (“the Subject Property”), in Wicomico County. In the Circuit Court for Wicomico County, Superior Outdoor Signs, Inc. (“Superior”), and Scott P. Gregory, the appellants, brought an action for judicial review of the Board’s decision. The court affirmed the decision. On appeal, the appellants contend the court’s ruling was in error because there was no showing of unwarranted hardship, as required by the Town of Willards’s zoning ordinance.

The appellees have moved to dismiss the appeal for lack of standing. Alternatively, they contend the Board’s decision should be upheld because it was supported by substantial evidence, including evidence of unwarranted hardship. For the following reasons, we shall grant the appellees’ motion to dismiss the appeal. FACTS AND PROCEEDINGS The Subject Property, which is owned by Richardson and others, is a 400-feet-wide strip of land, occupying 25.11 acres, that is bordered on the north by the easterly lanes of Route 50 and on the west by Bent Pine Road.

The Subject Property is in the Town of Willards, on the edge of town. 1 It is zoned Commercial. Eller Media Company leases the Subject Property from its owners for the placement and maintenance of billboards that are visible from the easterly lanes of Route 50. Two billboards have been situated on the Subject Property for decades, since before the Town of Willards enacted a zoning ordinance. Under section 12 of the Town of Willards’s zoning ordinance, “outdoor advertising structures,” i.e., billboards, are permitted uses in the Commercial Zone, with certain restrictions for setback, spacing, structure type, sign area, distance from residential district, lighting, and height.

Pursuant to ⁴⁸⁸ section 22(B)(2) of the zoning ordinance, the Board may grant variances from these restrictions. Under section 19 of the zoning ordinance, the billboards that have been situated on the Subject Property are legal, non-conforming uses. The appellees applied for building permits to replace the original billboards with monopole billboard structures. Because the replacement structures were considered upgrades to a non-conforming use, which require approval by the Board under section 19 of the zoning ordinance, the permits were denied.

In addition, the appellees applied for building permits to erect two new billboards and allow all four billboards on the Subject Property to vary from the setback, spacing, and sign area restrictions required by the zoning ordinance. Those building permits also were- denied. The appellees then filed applications for variances with the Board. The Board held a public hearing on the appellees’ application for variances.

After hearing from those in favor of the application and those opposed, the Board members deliberated and voted to grant the variances for the existing billboards and to grant some of the other requested variances, so as to permit construction of two new billboards. In an action for judicial review in the Circuit Court for Wicomico County, the appellants argued that the Board’s decision was not supported by substantial evidence of an unwarranted hardship so as to justify its granting the variances. As we shall discuss below, the appellees moved to dismiss the action on the ground that the appellants lacked standing. They also responded on the merits by arguing that the Board’s decision was supported by substantial evidence and was made in accordance with the town’s zoning ordinance.

The circuit court held a hearing and found that the Board’s decision was supported by substantial evidence. It issued a written order and entered judgment, in favor of the appellees. The. appellants then noted a timely appeal to this Court. We shall include additional pertinent facts in our discussion. ⁴⁸⁹ DISCUSSION The appellees have moved to dismiss this appeal on the ground that Superior and Gregory lack standing.

They contend that Superior and Gregory can have standing to appeal to this Court only if at least one of them had standing to bring the action for judicial review in the circuit court, and that neither had standing to bring that action. The Town of Willards is a municipal corporation. Among its enumerated express powers is the power to “provide reasonable zoning regulations subject to the referendum of the voters at regular or special elections.” Md.Code (2001), art. 23A, section 2(b)(30). Under Md.Code (1998 Repl.Vol., 2001 Supp.), art. 66B, which governs land use, ie., planning, zoning, and development, except in chartered counties, 2 a local legislative body, including the elected body of a town, see section 1(f), is further authorized to adopt planning, zoning, and development ordinances and regulations.

Art. 66B, § 4.01(a) and (b). Pursuant to section 4.07(a)(1), each local legislative body must provide for the appointment of a board of appeals which has, among its general powers, that of authorizing in specific cases variances from the terms of the local jurisdiction’s zoning ordinance. Art. 66B, § 4.07(d)(3). Appeals to the circuit court from the decision of a local board of appeals, including boards of local jurisdictions and municipalities other than Baltimore City, and appeals thereafter to this Court, are governed by article 66B, section 4.08. 3 That statute states, in relevant part: (a) Who may appeal; procedure. — (1) Any of the following persons may, jointly or severally, appeal a decision of a board of appeals ... to the circuit court of the county: (i) A person aggrieved by the decision ...; (ii) Any taxpayer; or ⁴⁹⁰ (iii)Any officer, department, board, or bureau of the local jurisdiction.... .1: * $ $ $ * (e) Decision of circuit court; appeal to the Court of Special Appeals; costs. — (1) After deciding an appeal under this section, the circuit court shall file a formal order embodying its final decision.

(2)(i) A party may file an appeal from the decision of the circuit court with the Court of Special Appeals, during the period and in the manner prescribed by the Maryland Rule's.... Thus, under section 4.08(a), a person may bring a circuit court action for judicial review of the decision of a board of appeals if he is “aggrieved” by it, or he is “any taxpayer,” or if he is within the category of persons listed in subsection (iii) (which is not at issue here). Boulden v. Mayor & Comm’rs, 311 Md. 411 , 535 A.2d 477 (1988); Stephans v. Bd. of County Comm’rs, 41 Md.App. 494 , 397 A.2d 289 , rev’d on other grounds, 286 Md. 384 , 408 A.2d 1017 (1979); Clise v. Phillips Coal, Inc., 40 Md.App. 609 , 392 A.2d 1177 (1978). And under section 4.08(e), a person may appeal the circuit court’s decision in an action for judicial review if he was a party, i.e., a proper party, to the circuit court action.

Clise, supra, at 613 , 392 A.2d 1177 . A. Facts Pertinent to the Issue of Standing There is no mention of Superior in the agency record. The agency record reveals that Gregory attended the hearing before the Board. He signed the attendance sheet, “Scott Gregory Property Owner (Willards), [telephone number], Bishopville.” He briefly testified, identifying himself as “a property owner of Delaware Sign Company” and stating his opposition to the application for variances.

Testimony by others established that Delaware Sign Company, Inc. (“DSC”), owns a parcel of land in the Town of Willards adjacent to and west of the Subject Property, across Bent Pine Road. Like the ⁴⁹¹ Subject Property, DSC’s parcel is zoned Commercial, borders on the easterly lanes of Route 50, and contains several billboards. The petition for judicial review filed in the circuit court is captioned: IN THE CIRCUIT COURT FOR WICOMICO COUNTY PETITION OF SUPERIOR OUTDOOR SIGNS, INC. AND SCOTT GREGORY 1305 S. SALISURY BOULEVARD SALISBURY, MARYLAND 21801 FOR JUDICIAL REVIEW OF THE DECISION OF THE BOARD OF ZONING APPEALS, TOWN OF WILLARDS, WICOMICO COUNTY, ...

DATED JUNE 19, 2001 REGARDING ELLER MEDIA COMPANY/DEAN RICHARDSON, ET AL. It is entitled, “Notice of Appeal,” and is one paragraph long. The petition does not give an address for Gregory, other than to include him in the Salisbury address given for Superior. (The docket entries post Superior’s address as the Salisbury address in the caption and post no address for Gregory.) The petition states: “Appellants were parties to the agency proceeding.” 4 In the appellants’ Rule 7-207 memorandum, Gregory included himself among those who had opposed the application for variances before the Board.

He did not set forth any statement or allege any facts about his aggrievement status, if any, or his taxpayer status, if any. The appellees filed a Rule 7-207 memorandum that included a motion to dismiss for lack of standing. They took the position that neither Superior nor Gregory was a party to the proceeding before the Board and that neither had made an allegation, either before the agency or in a circuit court petition, about being in any way aggrieved or being “any taxpayer.” 5 ⁴⁹² The appellants did not file a reply memorandum or a response to the motion to dismiss for lack of standing. During the hearing before the circuit court, the appellants’ lawyer acknowledged in response to a question from the bench that Superior was not a proper party to the action for judicial review.

He asserted that Gregory had standing to bring the action, however, because he is a taxpayer living in Worcester County and working in Salisbury who “drives by there,” that is, the Subject Property. When the court made known that it was unimpressed by those proffered bases for standing, the appellants’ lawyer further proffered that Gregory owns DSC, which in turn owns the land next to and west of the Subject Property. The appellees’ lawyer objected to the proffer, saying, “I think John Howard Burbage is the owner of Delaware Sign Company.” 6 The appellants’ lawyer then moved on to the merits of the appeal. When counsel for the appellees addressed the court, he discussed the issue of standing as follows: An aggrieved party is someone who has suffered ... a special damage to a property right or a personal right is the way the language in the cases read.

And the record is devoid of any testimony from Mr. Gregory that he is aggrieved, in any way, shape, or form. I think his testimony is he had a hard time getting his variances on all the string of signs to the west of [the Subject Property], but as far as him being aggrieved in any way, shape or form, there is no evidence in this record at all. He is not a tax payer in the Town of Willards and nor is Superior Signs a tax payer in the Town of Willards to the best of our information. That being the case, there is no standing for. either Mr. Gregory or Superior Signs to maintain this appeal.

In that ⁴⁹³ Bryniarski [v. Montgomery County Bd. of Appeals, 247 Md. 137 , 230 A.2d 289 (1967),] case that we have cited in our memo, a statement there is a person whose sole reason for objecting to the Board’s action is to prevent competition with his established business is not a person aggrieved. Even though he didn’t make any statement about how he was aggrieved, if you wanted to infer how he thinks he was aggrieved, I think Eller Media would be regarded as his competitor. He has the signs to the west of Bent Pine Road. Eller has the signs to the east of Bent Pine Road.

He then repeated his request to the court to dismiss the case for lack of standing. After counsel for the appellees had concluded his argument on the merits, counsel for the appellants on rebuttal pointed to a reference in the Board’s hearing transcript in which Richardson, responding to Gregory’s brief remarks, called him a “neighbor.” The court did not make an express ruling on the motion to dismiss. After remarking, “I think there is a real issue as to the standing,” the judge went on to conclude that there was substantial evidence to support the Board’s decision to grant the variances, and affirmed the decision on that basis. In this Court, in support of their motion to dismiss, the appellees have filed an affidavit by Gloria Smith, the Secretary of the Town of Willards, attesting that she maintains the town’s real property tax records, that she has reviewed them, and that neither Superior nor Gregory owns real property within the town.

In their reply brief, the appellants have submitted an affidavit by Gregory in which he attests, inter alia, that he is a 50% owner of DSC; that DSC’s property in the Town of Willards is adjacent to the Subject Property, and the Subject Property and the billboards on it are visible from the DSC property; that he manages the DSC property and “derive[s] a substantial portion of [his] livelihood from income generated by that property”; and that, because he either is present next to the Subject Property or drives past it on a daily basis, additional ⁴⁹⁴ billboards on the Subject Property will have an' effect on him personally and on DSC different than their effect on members of the public at large. Gregory acknowledges in his affidavit that he lives and pays real property taxes in Bishopville, in Worcester County. B. Standing of Superior The appellants concede that Superior did not have standing to bring the circuit court action for judicial review of the Board’s decision and therefore lacks standing to bring this appeal. There are no facts in the record to show that Superior has “aggrieved person” or “any taxpayer” status.

In their reply brief in this Court, in which they respond to the motion to dismiss, the appellants do not argue that Superior has standing. Finally, at oral argument, counsel for the appellants candidly acknowledged to this Court that Superior does not have standing. 7 C. Standing of Gregory Whether this appeal is properly before us, then, depends upon whether Gregory has standing. A party’s standing to appeal either to this Court or to a circuit court from the decision of a zoning board is a question of law, which we decide de novo. See generally Lucas v. People’s Counsel, 147 Md.App. 209, 224-25 , 807 A.2d 1176 (2002); Eller Media Co. v. Mayor of Baltimore, 141 Md.App. 76, 83 , 784 A.2d 614 (2001); E. Outdoor Adver.

Co. v. Mayor & City Council, 128 Md.App. 494, 514 , 739 A.2d 854 (1999). ⁴⁹⁵ Gregory contends he had standing to bring the circuit court action, either as an “aggrieved person” or as “any taxpayer,” under art. 66B, section 4.08(a), and hence he has standing to appeal to this Court. As a preliminary matter, Gregory asserts that, because the issue of standing was not decided by the circuit court, we should not address it; and that the issue was waived by the appellees because they did not file a cross-appeal. (i) Preservation of the Standing Issue Maryland Rule 8-131(a) provides that, ordinarily, this Court will not address an issue that was not raised in or decided by the circuit court. As the chronology of proceedings we have set forth makes plain, the appellees raised the issue of standing in the circuit court.

Their having done so preserved the issue for appellate review, notwithstanding that the court did not expressly rule on it. Moreover, it was not necessary for the appellees to note a cross-appeal on the issue of standing for this Court to address the question of standing that was raised below. We so held in Sipes v. Board of Municipal Zoning Appeals, 99 Md.App. 78 , 635 A.2d 86 (1994), a case having a similar procedural posture to this one. In Sipes , certain community associations and public interest groups (“organizations”) and an intervenor taxpayer sought appellate review of a circuit court decision affirming a decision by a Baltimore City zoning board granting an application to change an existing conditional use.

The applicant moved to dismiss the circuit court action on the ground that the plaintiffs lacked standing. The court did not rule on the motion. Instead, it permitted the intervenor to join the case as a party, even though the motion to intervene was untimely. On appeal, the applicant and the zoning board challenged the organizations’ standing to bring the circuit court action, but did not file a cross-appeal.

We explained that it was not necessary for them to take a cross-appeal to raise that issue: ⁴⁹⁶ Although the issue of standing may not be jurisdictional in nature, it does go to the very heart of whether the controversy before the court is justiciable. If the controversy is nonjusticiable, it should not be before the court, and therefore must be dismissed. 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 the appellees raised the issue in the circuit court.

Id. at 87-88 , 635 A.2d 86 (citations omitted). With that, we shall turn to the merits- of the standing argument. (ii) “Aggrieved Person” Standing In Maryland-National Capital Park & Planning Commission v. Smith, 333 Md. 3 , 633 A.2d 855 (1993), the Court of Appeals explained the meaning of “aggrieved person” standing: The rule for determining who is aggrieved in administrative appeals is well settled. In DuBay v. Crane, [ 240 Md. 180, 185 , 213 A.2d 487 (1965)], we said: In zoning cases, the rule in this State is that for a person to be aggrieved by an adverse decision of the administrative agency, and thus entitled to appeal to the courts, 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 specifically affected in a way different from that suffered by the public generally. 333 Md. at 3 , 633 A.2d 855 (emphasis in original; footnote omitted).

See also Bryniarski v. Montgomery County Bd. of Appeals, supra, 247 Md. 137 , 230 A.2d 289 (same, addressing standing to appeal to circuit court from a decision of the board of appeals of a chartered county, under art. 25A, section 5U). ⁴⁹⁷ Thus, the “aggrieved person” standard is a two-part test in which the plaintiff first must show that he has a personal or property interest that will be adversely affected by the zoning decision and then must show that the harm to that interest from the zoning decision is distinct from the harm to the general public from the zoning decision. Cylburn Arboretum Ass’n v. Mayor & City Council, 106 Md.App. 183, 188-89 , 664 A.2d 382 (1995) (same, addressing standing to appeal to circuit court from a decision of the Baltimore City Board of Municipal and Zoning Appeals, under art. 66B, section 2.09(a)). Gregory rests his claim of “aggrieved person” status on one property interest and two personal interests. His claimed property interest is in DSC’s real property, which, as noted, is adjacent to the Subject Property.

Gregory maintains that he is a 50% owner of DSC and therefore is a 50% owner of DSC’s real property. He asserts that Richardson’s having called him a “neighbor” during the agency hearing lends support for his having a property interest in DSC’s land. Gregory’s claimed personal interests are in maintaining the income he derives from the DSC property (apparently from leasing the billboards on it) and in maintaining a daily visual exposure to less, rather than more, billboards when he is on DSC’s grounds and the billboards on the Subject Property are in view and when he is driving by the Subject Property. Gregory’s Claimed Property Interest It is well established that the owner of property adjacent to property that is the subject of a zoning decision is prima facie an “aggrieved person,” within the meaning of those statutes conferring standing to appeal, such as art. 66B, section 4.08(a).

In Bryniarski v. Montgomery County Bd. of Appeals, supra, 247 Md. 137 , 230 A.2d 289 , the Court summarized the general principles governing “aggrieved person” standing in appeals under provisions of zoning ordinances, stating, inter alia, that [a]n adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. The person challenging the fact ⁴⁹⁸ 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. at 145, 230