Court of Appeals to Address Standing to Challenge Legislative Comprehensive Zoning Enactments

By Brad McCullough

Last year, the Court of Appeals addressed standing requirements for challenging zoning and land use decisions, issuing opinions significantly shaping the standards for standing. See Kendall v. Howard Cnty., 431 Md. 590, 66 A.3d 684 (2013); Ray v. Mayor & City Council of Baltimore, 430 Md. 74, 59 A.3d 545 (2013). This year, the Court is poised to do so again. On March 21, 2014, the Court granted certiorari in Anne Arundel Cnty. v. Bell, 437 Md. 422, 86 A.3d 1274 (2014) to consider these three issues:

1) Whether the prima facie aggrievement standard established in Bryniarski v. Montgomery County Bd. of Appeals, 247 Md. 137 (1967), should be expanded beyond challenges to administrative land use decisions to include challenges to legislative comprehensive zoning enactments?

2) Whether the “almost prima facie” standard as established in Ray v. Mayor of Baltimore, 430 Md. 74 (2013), should be expanded beyond challenges to administrative land use decisions to include challenges to legislative comprehensive zoning enactments?

3) Whether noise from a predicted increase in traffic constitutes “special damages”?

The Court’s decision in Bell promises to further mold the contours of Maryland’s standing requirements. Before discussing Bell, however, a little background is in order.

In Bryniarski, the Court held that a party must be “aggrieved” in order to have standing to pursue what is now an action for judicial review from the decision of a local zoning agency acting in a quasi-judicial capacity.[1] The Court recognized two ways to establish aggrievement. First, “[a]n adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.” Bryniarski, 247 Md. at 145, 230 A.2d at 294. A party who wants to challenge the standing of an “adjoining, confronting or nearby property owner” bears the burden of pleading and “coming forward with evidence to establish that the petitioner is not, in fact, aggrieved.” Id. Someone “whose property is further removed from the subject property ordinarily will not be considered a person aggrieved,” but can establish aggrievement by showing that his or her “personal or property rights are specially and adversely affected by the board’s action.” Id. at 145, 230 A.2d at 295.

While those principles governed “appeals under the provisions of a zoning ordinance,” different rules governed “[w]hen the suit is in equity and a declaration nullifying a zoning ordinance nullifying a zoning ordinance for constitutional or other reasons is sought.” Id. at 144, 230 A.2d at 294. In those cases, a plaintiff must allege and prove how he or she is specially damaged. Id. Thus, as the Court of Special Appeals explained in its opinion in Bell, “under Bryniarski, the concept of prima facie aggrievement assists litigants only in judicial reviews of a zoning agency acting in a quasi-judicial capacity,” and does not help plaintiffs in declaratory judgment cases. Bell v. Anne Arundel Cnty., 215 Md. App. 161, 175, 79 A.3d 976, 984 (2013).

Forty-six years after its decision in Bryniarski, the Court of Appeals in Ray re-affirmed the benefit provided by prima facie aggrievement, as well as the high hurdle facing challengers who do not live near the property in dispute. The Court, however, recognized a third category of property owners and forged a middle path to aggrievement and standing. Each of the three categories is based on a challenger’s proximity to the subject property. The first category is a familiar one, comprised of “adjoining, confronting or nearby” property owners, who are considered prima facie specially damaged and aggrieved. Id. at 81, 59 A.3d at 550.

The second category is new and made up of property owners who “do not quite satisfy the ‘adjoining, confronting or nearby’ standard of prima facie aggrievement, but are nudging up against that line.” Id. at 83, 59 A.3d at 550. Persons falling in this category of “almost” prima facie aggrieved have standing “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.” Id. While recognizing that “there is no bright-line rule for who qualifies as ‘almost’ prima facie aggrieved,” the Court explained that “almost” prima facie aggrieved status generally applies to persons who live between 200 and 1,000 feet away from the property at issue. Id. at 91-92, 59 A.3d at 555 (citations omitted). Thus, persons who are between 200 and 1,000 feet away from the subject property – and who have specific claims of harm – can be specially aggrieved. The Court called these specific claims of harm “plus factors.” Id. at 85, 59 A.3d at 551.

The third category consists of persons who are more than 1,000 feet away from the subject property. Previously, such persons were assumed to possess a theoretical opportunity at establishing special aggrievement. The Court in Ray slammed the door on that theoretical opportunity, stating that he Court had “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.’” Id. at 85-86, 59 A.3d at 552 (footnote omitted) (emphasis added).

This background sets the stage for Bell. That case involved comprehensive rezoning of areas in Anne Arundel County. Among the properties affected by the rezoning were Tax Map 36, Parcels 69 and 200 and Parcels 114 and 141. Stephen Bell, William Chapin, and Rosie Shorter filed a complaint for declaratory relief, challenging the rezoning. Bell owns property that is about 80 feet from Parcel 141 and about 500 feet from Parcel 114, Chapin owns property that is about 100 feet from Parcel 141 and 500 feet from Parcel 114, and Shorter owns property abutting Parcels 69 and 200. Relying on Bryniarski, the circuit court concluded that the concept of prima facie aggrievement does not apply to a declaratory judgment action challenging comprehensive rezoning legislation. As the plaintiffs had not established that they were specially aggrieved (i.e., that they would be harmed in a way different than that sustained by the general public), the circuit court dismissed the complaint.

The Court of Special Appeals reversed. Relying on the decision of the Court of Appeals in 120 West Fayette St., LLP v. Mayor and City Council of Baltimore, 407 Md. 253, 964 A.2d 662 (2009), which applied the concept of prima facie aggrievement in a declaratory judgment action challenging the validity of an urban renewal plan and land disposition agreement – as well as the intermediate court’s own decision in Long Green Valley Ass’n v. Bellevale Farms, Inc., 205 Md. App. 636, 46 A.3d 473 (2012), aff’d on other grounds, 432 Md. 292, 8 A.3d 843 (2013), which applied the concept in an action for declaratory relief challenging the approval of a proposed use of land – the Court of Special Appeals held “that the prima facie aggrievement principles articulated in Bryniarski are applicable to the present case.” Bell, 215 Md. App. at 180, 79 A.3d at 987 (footnote omitted).[2]

Having concluded that those principles were applicable, the Court noted that “Shorter owns property abutting Parcels 69 and 200” and was therefore “prima facie aggrieved by the enactment of” the rezoning legislation that affected those two parcels. Id. at 180, 79 A.3d at 987. As a result, the three plaintiffs had standing to challenge the legislation that rezoned those two parcels.[3] Moreover, “Chapin’s property is located approximately 100 feet from” Parcel 141, while “Bell’s property sits only 80 feet away,” and “both Chapin and Bell can see Parcel 141 from various points on their properties, and hear noise originating therefrom.” Id. at 180-81, 79 A.3d at 987-88 (footnote omitted). Thus, they “are near enough to Parcel 141 to be prima facie aggrieved,” and the parties had standing to challenge the rezoning of that parcel. Id. at 180, 181, 79 A.3d at 987, 988.

That left Parcel 114 and a discussion of the concept of “almost prima face” aggrievement. As Chapin and Bell own properties that are about 500 feet from Parcel 114, they were deemed “certainly close enough to be almost prima facie aggrieved.” Id. at 184, 79 A.3d at 990. Thus, whether they had standing depended on whether they had alleged “plus factors” that were “sufficient to show that Chapin and Bell have suffered an injury special to them and not shared by the public generally.” Id.

The Court rejected their argument that a feared increase in traffic was a sufficient plus factor, noting that “more recent decisions have clarified that an increase in traffic, by itself, is insufficient to establish standing.” Id. at 185, 79 A.3d at 990. The Court also rejected change in the character of the neighborhood as a sufficient plus factor. Chapin and Bell had also failed to provide adequate evidentiary support for an alleged decrease in the value of their properties, as they relied on their own lay opinions of value as opposed to expert testimony. “Ray makes clear that the lay opinions of appellants are legally insufficient to establish aggrievement arising out of a future loss in property value. Chapin and Bell were, in the words of the Ray Court, ‘merely speculating’ as to what their properties would be worth post-development.” Id. at 188, 79 A.3d at 992.[4] The Court, however, held that noise was a sufficient plus factor, agreeing with Chapin and Bell “that the substantial amount of noise traveling from nearby roads and/or establishments to Chapin’s and Bell’s properties is a factor tending to show special aggrievement.” Id. at 186, 79 A.3d at 991 (footnote omitted). The Court clarified “that an injury based on noise from an increase in traffic – which affects the appellants’ quiet enjoyment of their properties – is to be distinguished from alleged injury based solely on an increase in traffic generally.” Id.

So the stage is therefore set for the Court of Appeals to determine these important issues. What is the scope of cases that are subject to the concept of prima facie aggrievement? What cases are subject to the principle of almost prima facie aggrievement? Can noise from increased traffic serve as a “special damage” that can confer standing on a challenger to a zoning or land use decision? We should have answers to these questions soon.


[1] Prior to 1993, actions seeking judicial review under Title 7, Chapter 200 of the Maryland Rules were governed by Chapter 1100, Subtitle B and referred to as “administrative appeals.” While that term is still commonly used to refer to those actions, the Court of Appeals has called that phrase an “anachronism,” explaining that the nomenclature and procedure found in the old Subtitle B Rules have been “abandoned.” Colao v. County Council of Prince George’s Cnty., 346 Md. 342, 361, 697 A.2d 96, 105 (1997). Consequently, what was once called an administrative appeal is now more properly called a petition for judicial review.

[2] In that lengthy omitted footnote, the Court also explained that its “conclusion is consistent with the Court of Appeals’ recent summary of Maryland’s standing requirements in Kendall v. Howard County, 431 Md. 590, 04-06, 66 A.3d 84 (2013).” Bell, 215 Md. App. at 180 n. 10, 79 A.3d at 987 n. 10.

[3] The Court noted that where one party has standing, courts ordinarily do not examine whether the other parties on the same side also have standing. Id. at 180, 79 A.3d at 987.

[4] This is also a significant issue. In Ray, the circuit court had ruled that lay opinion testimony about future fluctuations in the value of the witness’s property was inadmissible, and the Court of Appeals affirmed. The Court explained that while a property owner is generally competent to testify as to the value of his or her property, any testimony “about a potential adverse effect caused by a development 0.4 miles away is within the specialized knowledge of an expert.” Ray, 430 Md. At 98, 59 A.3d at 559. The Court of Special Appeals took one more step, seemingly ruling that – even if such evidence or testimony is in the record – it is “legally insufficient to establish aggrievement.” Bell, 215 Md. App. at 188, 79 A.3d at 992.

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