STEVE BELL ET AL.
ANNE ARUNDEL COUNTY, MARYLAND ET AL
Zarnoch, Graeff, Kehoe, JJ.
This is an appeal from a judgment of the Circuit Court for Anne Arundel County dismissing with prejudice a challenge to a 2011 comprehensive rezoning ordinance. The appellants are property owners and community associations asserting that the rezoning ordinance is invalid as to certain properties. The appellees are the County and some of the affected property owners. In granting appellees' motions for summary judgment, the circuit court concluded that appellants did not have standing to bring a challenge and that appellants had failed to join all necessary parties to the litigation.
We see the case differently. We conclude that, in light of recent decisions by this Court and the Court of Appeals,  some of the appellants were presumptively aggrieved by the rezoning ordinance, and that these presumptions were unrebutted on the record before the circuit court. We agree with the circuit court that appellants failed to join all necessary parties but, under the circumstances, the proper step was to give appellants an opportunity to join all necessary parties. We will vacate the court's judgment and remand this case for further proceedings.
As a charter county, Anne Arundel County is required to review and revise its comprehensive plan and its zoning ordinance on a periodic basis. See Md. Code (2012) Land Use Article ("LU") §§ 1-416 and 1-417. Section 18-2-106(b)(1) of the Anne Arundel County Code (the "Code") authorizes the County Council to amend its zoning map—called the Digital Zoning Layer—by comprehensive zoning legislation.
On February 22, 2011, Bill No 12-11 was introduced before the Anne Arundel County Council. The bill proposed a comprehensive rezoning of Councilmanic Districts I and IV in Anne Arundel County. During the public hearing process, the County Council considered numerous proposed amendments and eventually adopted Bill 12-11 as amended. Bill No. 12-11 repealed and reenacted the zoning classifications for 59, 045 individual parcels of land located in the two Districts and changed the zoning classifications of 264 of those parcels.
Bill No. 12-11 included Amendment 25, which, among other changes, reclassified Tax Map 36 Parcels 69 and 200 from open space and low density residential uses to a more intensive residential classification. Appellants take issue with this rezoning. Appellee BBSS is the owner of Parcels 69 and 200. Appellants also challenge two proposals contained in the original bill which changed the zoning classifications of Tax Map 36, Parcels 114 and 141. Parcel 114 was reclassified from a lower density residential zone to one allowing commercial offices and similar uses. This parcel is owned by Baldwin Enterprises, Inc., who is not a party to this action. Likewise, Parcel 141 was reclassified from a residential zone to a commercial office district. Parcel 141 is owned by appellee Southern Shores Development Company.
Of the appellants, only Stephen Bell, William Chapin, and Rosie Shorter own land in reasonable proximity to any of these parcels. Shorter owns residential property that abuts Parcels 69 and 200. Chapin owns residential property located approximately 100 feet from Parcel 141 and 500 feet from Parcel 114. Bell owns residential property situated approximately 80 feet from Parcel 141 and 500 feet from Parcel 114.
The Proceedings Before the Circuit Court
Appellants first filed a petition for judicial review, or, in the alternative, for a writ of mandamus, in the Circuit Court for Anne Arundel County, challenging the legality of the County's enactment of Bill No. 12-11. After a round of dismissal motions and a hearing, the circuit court dismissed the petition for lack of jurisdiction.
Appellants then filed a complaint for declaratory relief against the County, alleging that it had "failed to provide the public with the required notice of the proposed zoning changes, " and, further, that the rezoning of Parcels 114, 141, 69 and 200 constituted illegal spot zoning and illegal contract zoning.
In response, appellees BBSS, Wach, Towser Developers, and South Shores Development Company—the owners of Parcels 69, 200, and 141—as well as BWI Technology Park Phase III, L.L.C., United Properties, L.L.P., Sincaltom Associates, and David Callahan all moved to intervene in the suit. The circuit court granted the motion.
On September 26, 2011, the County moved to dismiss the complaint, contending that there was no justiciable controversy before the court, that appellants lacked standing to bring an action for declaratory relief challenging Bill No. 12-11, and that, alternatively, appellants had failed to exhaust the administrative remedies available to them under the County Code. The remaining appellees filed motions to dismiss asserting that appellants lacked standing and had failed to join all necessary parties.
On March 5, 2012, a hearing was held on the motions to dismiss. At the hearing, although appellants contested most of the appellees' contentions, they agreed to drop their allegation that Bill No. 12-11 had been enacted without the requisite public notice. As a result, interveners BWI Technology Park Phase III, L.L.C., United Properties, L.L.P., Sincaltom Associates, and David Callahan withdrew from the case, leaving only the appellees as defendants.
On March 27, 2012, the circuit court issued a memorandum opinion and order granting the motions to dismiss. In its opinion, the court first determined that appellants had failed to join all necessary parties, stating, in pertinent part, (emphasis in original):
It is clear from the proceedings in this case that Plaintiffs have failed to join all parties who may be affected by Bill No. 12-11. As stipulated between the parties at the March 5, 2012 hearing, over two-hundred and sixty (260) distinct parcels of land are affected through the implementation of Bill No. 12-11. The status of these properties clearly may be affected by the rezoning scheme of the bill. . . . In the initial complaint, Plaintiffs failed to name all owners of the over two-hundred sixty (260) parcels that may potentially be affected by Bill No. 12-11. As such Plaintiffs have failed to join necessary and indispensable parties in violation of Md. Rule 2-211 and Md. Code Ann. Cts. & Jud. Proc. § 3-405 (a)(2).
The court additionally concluded that appellants lacked standing to pursue the declaratory relief sought. The court divided its standings analysis into two sub-parts: 1) whether appellants had prima facie standing, and 2) whether appellants had standing based on affected personal or property rights—i.e., whether they had been specially aggrieved. As to the first question, the circuit court reasoned (footnote omitted):
One means of establishing a prima facie case of aggrievement in Maryland is to be an adjoining, confronting or nearby property owner. [120 West Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 271 (2009).] Property owners that are precisely abutting the subject property and within sight and sound of the property at issue have standing as an aggrieved party on judicial review. Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 147, 230 A.2d 289 (1967).
There is not a single reported case in Maryland where a party in a declaratory judgment action has been found to have prima facie aggrievement or standing to challenge comprehensive rezoning legislation based on ownership of property nearby or in proximity to property that was rezoned. The only potential allegation made by Plaintiffs to claim standing based on proximity is that "noise is a primary concern for Plaintiffs who live in close proximity to the land subject to Proposal 4-4 and 4-12." The mere rezoning of the property located near Plaintiffs' property will not immediately cause additional noise. Before development may occur on any of the property affected by Bill No. 12-11, numerous permits and approvals must be obtained from the County and the State. Plaintiffs will have the opportunity to challenge any future development at the required development review proceedings. Because Plaintiffs have failed to show that they are prima facie aggrieved by the rezoning itself and because there will be additional opportunities for Plaintiffs to voice their concerns over noise should development occur on the land affected by Bill No. 12-11, Plaintiffs do not have prima facie standing to challenge the comprehensive rezoning scheme through a declaratory judgment action.
On the question of whether appellants had been specially aggrieved, the court concluded that:
An aggrieved party may establish standing if it can be shown that 1) the aggrieved person's personal or property rights are specially and adversely affected by the land use decision and 2) that the aggrieved person is personally and specifically affected in a way that is different from what is suffered by the general public. Bryniarski, 247 Md. at 144-145. In their complaints, Plaintiffs cite increased traffic, potential property value decrease and change in character to the surrounding neighborhood as means to achieve standing through special aggrievement.
With regard to increased traffic, Maryland Courts have held that a potential increase in traffic flow does not qualify a person for special aggrievement. "Even if increased traffic would turn out to be a problem, it would be a general problem and not a problem special to appellant." Benn Ray et al. v. Mayor & City Council of Baltimore, et al. [203 Md.App. 15, 42 (2012), aff'd 430 Md. 741 (2013)]. The law is clear that expected increased traffic does not give the requisite standing needed as the inconvenience feared is one likely to be suffered by any member of the public. Wilkinson v. Atkinson, 242 Md. [231, 234 (1966].
In their affidavits, Plaintiffs Rosie Shorter, William Chapin and Stephen Bell all claim that that Bill No. 12-11's reclassification of the subject properties will negatively affect their respective property values. Plaintiffs argue that the presupposition of a decrease in property value is sufficient to give them standing in seeking declaratory judgment. . . . The potential impact of the construction on property values is not "personally and specifically different from that suffered by the public generally." Bryniarski, 247 Md. at 144. Therefore, Plaintiffs do not qualify as aggrieved parties by claiming that property values may diminish as a result of future hypothetical construction. The aggrievement is not specific enough to the individuals. Benn Ray et al. v. Mayor & City Council of Baltimore, et al., [203 Md.App. 15 (2012), aff'd, 430 Md. 74 (2013)].
Finally, Plaintiffs argue that they have standing because the character of the neighborhood may be changed as a result of the comprehensive rezoning scheme. . . . In White v. Major Realty, 251 Md. 63, 64 (1968)], the Plaintiff claimed, inter alia, that the zoning changes under consideration would "change the entire character of our community." The Court of Appeals rejected the claim and stated that the appellants did not establish the necessary special damage to their property (an adverse effect different from that suffered by the public generally) to make them aggrieved. In this case it is apparent that a potential change in community is not sufficient to show personal and specific aggrievement. Therefore, the Court fails to find that Plaintiffs' interests in the matter are any different than the interests of a member of the general public. Plaintiffs do not have standing to bring a claim based on potential change in the character of the neighborhood.
Accordingly, the circuit court dismissed the complaint with prejudice and this appeal followed.
The motions to dismiss filed in this case included matters outside the four corners of the complaint and its exhibits. We will therefore treat the motions as motions for summary judgment. Md. Rule 2-322(c). As the Court of Appeals explained in D'Aoust v. Diamond, 424 Md. 549 (2012):
We have interpreted this Rule to mean that "[w]hen a party presents factual matters outside the pleadings, and the [trial judge] does not exclude them from consideration in the course of acting on a facial motion to dismiss, the [trial judge] must treat the motion as a motion for summary judgment." If a trial judge has been presented with facts or allegations outside of those in the complaint and has not specifically excluded them from consideration, we have acted on the presumption that the additional information was considered by the trial judge.
Id. at 573 (quoting Dual, Inc. v. Lockheed Martin Corp., 383 Md. 151, 161 (2004)).
Where, as here, there are no factual disputes at issue, an appellate court reviews a circuit court's grant of summary judgment de novo to determine whether the circuit court was legally correct. Harford County v. Saks Fifth Ave. Distrib. Co., 399 Md. 73, 82 (2007); Lombardi v. Montgomery County, 108 Md.App. 695, 710 (1996); Md. Rule 2-501.
I. Prima Facie Aggrievement
Appellants first assert that they "have standing because [Shorter, Chapin, and Bell] are all prima facie aggrieved based on their proximity to [Parcels 69, 200, 114, and 141]"—specifically, because Shorter's property abuts Parcels 69 and 200, and because Chapin's and Bell's properties are located in close proximity to Parcels 114 and 141. In support of this proposition, appellants cite to three Maryland appellate decisions: Bryniarski v. Montgomery County, 247 Md. 137 (1967); 120 West Fayette St., LLP v. Mayor and City Council of Baltimore, 407 Md. 253 (2009); and Long Green Valley Ass'n v. Bellevale Farms, Inc., 205 Md.App. 636, 688 (2012), aff'd on other grounds, 432 Md. 292, 324 (2013).
Appellants rely on the following passage in Bryniarski, wherein the Court of Appeals explained the concept of prima facie aggrievement as follows: "An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved . . . ." Bryniarski, 247 Md. at 145 (internal citations omitted). In appellants' view, because Shorter, Chapin, and Bell are either "adjoining, confronting, or nearby property owner[s]" to land rezoned by Bill No. 12-11, they are prima facie aggrieved and, thus, have standing to challenge the bill. Although we agree with appellants' ultimate conclusion, the path to this result is more arduous than they suggest.
The above-quoted passage is contained within the Bryniarski Court's discussion of aggrievement in the context of an appeal of a decision of a local administrative agency acting in a quasi-judicial capacity, specifically, whether to grant an application for a special exception. Id. at 141-42. In such circumstances, the Bryniarski Court articulated the following test:
In cases involving appeals under the provisions of a zoning ordinance:
(a) It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication.
(b) An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved. 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.
(c) 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 ...