(Although few attorneys are likely to get excited over litigating an issue involving “standing,” this is often an important and outcome-determinative hurdle that challengers to a zoning reclassification must overcome. In early 2013, the Court of Appeals of Maryland, in Ray v. Mayor and City Council of Baltimore, re-examined and distilled the caselaw on this issue in the context of a decision by the Baltimore City Council’s approval of a Planned Unit Development (“PUD”) which would bring a Wal-Mart to Baltimore’s Remington and Charles Village neighborhoods. As explained below, Ray is a critically important opinion for zoning and land-use attorneys, because, although purporting to peg standing as an issue “that it is based on a fact-intensive, case-by-case analysis,” the Court of Appeals – intentionally or not – may have created a bright-line test for proximity that challengers to a zoning reclassification must pass.
In Ray, the Baltimore City Council passed an ordinance approving a PUD for an 11.5 acre tract of land that would be known as the “25th Street Station,” and which was to attract twenty national retailers. Ray and Coyne, residents of Baltimore’s Remington and Charles Village neighbor- hoods, respectively, filed a petition for judicial review of the PUD’s approval. Ray, who lives approximately 0.4 miles away from the site, claimed that he could see the site from his second-floor bathroom during the winter months of the year, can hear noise from the site when his windows are open, and believed that the proposed Wal-Mart would change the character of the neighborhood, including increased traffic. Coyne, who also lives approximately 0.4 miles away from the site, also contended that the Wal-Mart would change the character of the neighborhood, as Wal-Mart would force out many local businesses, which, in turn, would result in an increase vacant buildings in the neighborhood and a decrease in property values.
The Circuit Court for Baltimore City dismissed the petition for judicial review, agreeing with the City’s contention that Ray and Coyne lacked the requisite standing to challenge the PUD approval. The Court of Special Appeals affirmed for the same reason. Ultimately, the Court of Appeals granted certiorari to determine whether Ray and Coyne were sufficiently “aggrieved” to have standing to challenge the PUD approval.
The pertinent statute, Md. Code (1957, 2010 Repl. Vol.), Article 66B § 2.09(a)(1)(ii), provides that a person that is “aggrieved” by a decision of the Baltimore Board of Municipal and ZoningAppeals or the Baltimore City Council may file a petition for judicial review in the Circuit Court for Baltimore City. Regarding the requirement that the challenger be “ag- grieved,” it has long been held that the challenger must be “personally and specially affected in a way different from that suffered by the public generally.” Bryniarksi v. Montgomery County Bd. of Appeals, 247 Md. 137, 144 (1967). Before the Court of Appeals, Ray and Coyne made two principal arguments: (1) that the “aggrieved class” should include their entire respective neighborhoods; and (2) that their claims regarding their proximity to and visibility of the site, change in character of the neighborhood, and increased traffic are sufficient to establish standing.
Judge SallyAdkins, for a unanimous Court, began her analy- sis by explaining the importance of a challenger’s proximity to the site of the proposed zoning action, calling proximity “a measuring stick of standing.” The Court reiterated that Maryland courts have accorded standing to challengers of a rezoning action, either through being “prima facie ag- grieved,” or by being “specially aggrieved.” Regarding being prima facie aggrieved – a claim not raised by Ray and Coyne – the Court emphasized that “proximity is the only relevant factor,” and that a challenger is prima facie aggrieved when he or she is “an adjoining, confronting or nearby property owner.”1 Where, however, a challenger does not live in close enough proximity to be considered prima facie aggrieved, that challenger may nevertheless have standing “if they allege specific facts of their injury.” That is, where a challenger is in close proximity to the challenged site – but not close enough to be prima facie aggrieved – and can also show other allegations of harm, including decreasing property values, increased traffic, change in character of the neighborhood, etc., that challenger may be granted standing to pursue its challenge.
With this framework established, the Court then turned to each of arguments raised by Ray and Coyne as to how they were “specially aggrieved” sufficient to give them standing. Regarding their argument that the Remington and Charles Village neighborhoods should constitute the aggrieved class (thus granting them standing as residents thereof), the Court held that “the creation of a class of aggrieved persons is done on an individual scale and not based on delineations of (city neighborhoods.” (Emphasis added). To hold otherwise, the Court explained, would be to deprive the courts of the “chance . . . to examine whether the people inside the neigh- borhood are in fact specially aggrieved.” Thus, Ray clarifies that the focus on a challenge to a zoning reclassification is the harm to the individual, and not the individual’s residence in a particular neighborhood. As such, zoning and land-use attorneys should ensure that the record adequately demon- strates harm to their client individually, and not merely to a neighborhood at large.
Turning to the issue of whether, individually, Ray and Coyne were sufficiently aggrieved to have standing, the Court be- gan by explaining that “there is no bright-line rule for who qualifies” as specially-aggrieved. Yet, in the next breath, the Court stated: “[W]e have found no cases, in which a person living over 2000 feet away [as Ray and Coyne did], has been considered specially aggrieved. Rather, . . . this category has been found applicable only with respect to protestants who lived 200 to 1000 feet away from the subject property.” In the next paragraph, the Court reiterated that “protestants who lived more than 1000 feet from the rezoning site have repeatedly been denied standing.” Thus, in the Court’s view, Ray and Coyne, who lived more than 2000 feet away from the PUD site, lacked sufficient proximity to be granted stand- ing. In so holding, the Court rejected the contention that the calculus is somehow changed by the “urban nature” of the PUD at issue, finding no support “for the proposition that the urban nature of the PUD affects the proximity analysis for special aggrievement purposes.”
Finally, the Court turned to the contention that, notwith- standing that Ray and Coyne could not establish special- aggrievement through proximity, they are nonetheless en- titled to standing due to their claims regarding the change in character of their respective neighborhoods, increased traffic, and visibility of the PUD site. After reviewing the pertinent caselaw, the Court concluded that claims of a change in character of neighborhoods, increased traffic, and visibility, are insufficient to prove special-aggrievement in the absence of close proximity.
Although Ray has the immediate effect of allowing the devel- opment of the 25th Street Station project to move forward, it may have a greater impact on challenges to rezoning classifi- cations moving forward. That is, in my view, courts are more likely to pay attention to the Court’s apparent bright-line rule that “protestants who lived more than 1000 feet from the rezon- ing site have repeatedly been denied standing” than they are to the dicta that “there is no bright-line rule for who qualifies” as specially-aggrieved. Thus, Ray clarifies that proximity is “a measuring stick of standing,” and land-use attorneys would be well-served to ensure that there is adequate evidence in the record to support their clients’proximity to the subject site (i.e., what may become known, after Ray, as the “thousand-foot rule”), or otherwise, to be prepared for opposition from the local government’s attorneys and the bench alike.
This article originally appeared in ADMINISTRATIVE LAW NEWS, Vol. 2, Issue 2 (Maryland State Bar Association, May 2013), and is republished with permission.