Anne Arundel County v. Harwood Civic Ass'n

Anne Arundel County, Maryland v. Harwood Civic Association, No. 39, September
Term, 2014

Zoning—Comprehensive Zoning—Legislative Action—Litigation—Standing

Plaintiffs wishing to challenge in Maryland courts the legislative action adopting a
comprehensive zoning ordinance are required to demonstrate taxpayer standing—a
standing doctrine required for challenges to legislation. The doctrine of property owner
standing (i.e., a proximity-driven standing doctrine) is not the appropriate basis upon
which a judicial challenge to a comprehensive zoning legislative action may be
maintained.
Circuit Court for Anne Arundel County
Case No.: 02-C-11-164569
Argued: 13 January 2015

IN THE COURT OF APPEALS OF
MARYLAND

No. 39

September Term, 2014

ANNE ARUNDEL COUNTY,
MARYLAND, et al.

HARWOOD CIVIC ASSOCIATION,
INC., et al.

Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,

JJ.

Opinion by Harrell, J.
Battaglia, Adkins, and McDonald, JJ.,
dissent.

Filed: April 21, 2015
In Anne Arundel County, Maryland v. Steve Bell, ___ Md. ___, ___ A.3d ___

(2015) (No. 29, September Term, 2014), filed immediately prior to the opinion in the

present case, we concluded that the doctrine of property owner standing is not the

appropriate test for a judicial challenge to a comprehensive zoning action. See id., Slip

Op. at 1. Rather, plaintiffs wishing to challenge in Maryland courts the legislative

process and final action adopting a comprehensive zoning are required to demonstrate

taxpayer standing—the standing doctrine applicable to judicial challenges to legislative

actions. Id. Accordingly, Bell answers the first two questions presented to us in this

appeal.1 With that as a given, we proceed here to determine whether the Protestants in

this matter alleged sufficiently a basis for their standing to challenge the adoption by the

1
We issued a writ of certiorari in the present matter to consider the following questions,
along with three others:

1. Whether the prima facie presumption of aggrievement for
nearby property owners established by Bryniarski v.
Montgomery County Board of Appeals, 247 Md. 137, 230
A.2d 289 (1967) should be extended to cases in which a
private citizen challenges the validity of legislatively enacted
comprehensive zoning?

2. Whether the considerations established as relevant to
special aggrievement in Ray v. Mayor & City Council of
Baltimore, 430 Md. 74, 59 A.3d 545 (2013) apply equally to
cases in which a private citizen challenges the validity of
legislatively enacted comprehensive zoning?

These questions are nearly identical to those posed in Anne Arundel County, Maryland v.
Steve Bell, ___ Md. ___, ___ A.3d ___ (2015) (No. 29, September Term, 2014), differing
in phraseology only. Id., Slip Op. at 6.
County Council for Anne Arundel County in 2011 of a comprehensive zoning ordinance

for a large, different portion of Anne Arundel County than was involved in Bell.

I. FACTS AND PROCEDURAL HISTORY

Anne Arundel County (the “County”), a charter county, adopted in 2009 a

comprehensive land use master plan, called a “General Development Plan” (“GDP”), for

the entire County. During the run-up to that action, between 2007 and 2009, the County

engaged in the process of preparing the GDP. The County’s Office of Planning and

Zoning (the “OPZ”) prepared a draft of the GDP and submitted it to the County Council

(the “Council”) in July 2009. After hearings on the draft (including several

amendments), the Council approved the final GDP by Bill 64-09.

Thereafter, beginning in late 2009, the County initiated a county-wide, systematic,

and comprehensive review of zoning with a mind to implementing, as appropriate, the

recommendations of the GDP through a series of comprehensive zoning bills. The

County is comprised of seven Councilmanic Districts, which the OPZ combined into

three groups for the purpose of its zoning review and the comprehensive zoning

initiatives. One of these groups consisted of properties located in Councilmanic Districts

VI and VII, which are together referred to colloquially as “South County.”

Property owners desiring rezoning were given an opportunity to submit

applications to the County. After posting online the received property owner

applications, the OPZ evaluated the applications in light of the recommendations of the

GDP, made a recommendation as to each application, and incorporated its various other

2
recommendations in a draft of what became Bill 44-11.2 The County Planning Advisory

Board reviewed the OPZ’s recommendations and, after holding public hearings and

receiving testimony and written statements from the public, made its recommendations to

the County Executive.

In August 2011, the Council adopted Bill 44-11, with 40 amendments to the draft

bill submitted by the OPZ. The County Executive signed Bill 44-11, but vetoed 16 of the

amendments.3 The Council voted successfully to override ten of those vetoes.4 Bill 44-

11 became “final” and effective on 21 October 2011.

On 6 October 2011, several non-profit community associations and individual

property owners (collectively, the “Protestants” or, later in this opinion, “Respondents”)

filed in the Circuit Court for Anne Arundel County a Complaint for Declaratory

Judgment and Equitable Relief, in which they sought specifically a declaration that

certain provisions of Bill 44-11 were void because assertedly they granted illegal spot

zoning and were inconsistent with the recommendations of the GDP. In the Complaint,

the individual property owners each alleged that they owned property and resided “near”

2
All of the properties relevant to this appeal are located in Councilmanic Districts VI and
VII.
3
Specifically, the County Executive vetoed Amendments 9, 18, 22, 25, 26, 27, 28, 30,
34, 36, 37, 41, 43, 44, 45, and 46.
4
Specifically, the Council voted to override the vetoes to Amendments 9, 22, 25, 26, 27,
30, 34, 37, 43, and 46.

3
or “adjacent to” one of the properties rezoned by Bill 44-115 and that “the value of [their]

property and [] enjoyment thereof will be substantially reduced as a result of this

rezoning.” Owners of some of the properties rezoned by Bill 44-11 (collectively, the

“Defendants”) filed motions to intervene, all of which were granted.

The County and several Defendants filed motions to dismiss the Complaint,

arguing that the Protestants (1) failed to exhaust required administrative remedies;

(2) failed to state a claim for a declaratory judgment; and (3) did not have standing.

Protestants filed a memorandum in opposition, but, before the Circuit Court ruled on the

motions to dismiss, the Protestants filed on 27 January 2012 an Amended Complaint in

which they added additional plaintiffs and defendants. The other allegations of the

Protestants, however, remained the same. Most of the Defendants and the County

responded with another wave of motions to dismiss, reiterating their previous arguments.

One of the intervening Defendants (Alva Reta Trahan, hereinafter “Ms. Trahan”), in her

motion to dismiss, argued, inter alia, that the Protestants “do not allege facts sufficient to

establish taxpayer standing, and should dismiss [most of the counts of the complaint]

because [Protestants] do not allege facts sufficient to establish common law standing.”6

Ms. Trahan argued that, as the Protestants had not alleged that Bill 44-11 would result in

an increase in their taxes (and in fact alleged that Bill 44-11 would result in decreased

5
See infra note 8.
6
Based on the cases she relied on in support of her argument as to “common law
standing,” it appears that Ms. Trahan was referring in this assertion to property owner
standing.

4
property values), they could not satisfy the requirements of taxpayer standing. The rest

of Ms. Trahan’s arguments echoed those of the other Defendants.

Protestants submitted a memorandum in opposition to Ms. Trahan’s motion to

dismiss (hereinafter “May 2013 Memorandum”), in which they argued, among other

things, that their allegations satisfied the requirements of Bryniarski v. Montgomery

County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967). Furthermore, in a

footnote, Protestants noted that they “do not claim to have standing as taxpayers or that

any of the plaintiff organizations have standing except as derivatively through their

members.” (emphasis added).

Following a hearing, the Circuit Court issued an Opinion and Order on 27 March

2012, dismissing the Protestants’ Amended Complaint, but granting leave to amend

within 30 days. The trial judge noted, in a section entitled “Disputed Legal Issues”:

“Defendants claim that Plaintiffs lack both taxpayer and common-law standing. The

Plaintiffs argue[] in response that their Complaint alleges harm to several individual

plaintiffs sufficient to give them standing to bring this action. . . .” In a later footnote, the

trial judge recognized that Protestants conceded in the May 2013 Memorandum that they

did not claim to have taxpayer standing, and proceeded to consider whether they satisfied

property owner standing. Relying on Bryniarski for the proposition that a plaintiff

seeking a declaratory judgment that a zoning ordinance is unlawful must allege special

harm with “definite” allegations and “competent evidence,” see Bryniarski, 247 Md. at

144, 230 A.2d at 294, the Circuit Court concluded that all Protestants lacked standing.

The Circuit Court reasoned that “[t]he mere fact that several [Protestants] own property

5
adjacent to property rezoned by Bill 44-11 does not by itself meet the burden of proving

special damage by competent evidence required in cases seeking a declaratory

judgment.” The court’s reasoning continued that the Protestants’ allegations of reduced

property values and enjoyment of the properties were “indistinguishable from those

found insufficient in [Ray v. Mayor & City Council of Baltimore, 203 Md. App. 15, 36

A.3d 521 (2012), aff’d on other grounds, 430 Md. 74, 59 A.3d 545 (2013)].” Finally, the

Circuit Court concluded that Protestants failed to state a claim for spot zoning.7

On 26 April 2012, the Protestants filed a Second Amended Complaint, adding

additional plaintiffs and defendants yet again and seeking a declaration that seven of the

7
Spot zoning is

the arbitrary and unreasonable devotion of a small area within
a zoning district to a use which is inconsistent with the use to
which the rest of the district is redistricted . . . . It is . . .
universally held that a “spot zoning” ordinance, which singles
out a parcel of land within the limits of a use district and
marks it off into a separate district for the benefit of the
owner, thereby permitting a use of that parcel inconsistent
with the use permitted in the rest of the district, is invalid if it
is not in accordance with the comprehensive zoning plan and
is merely for private gain.

Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 546, 814 A.2d
469, 488 (2002) (emphasis removed) (quoting Cassel v. Mayor and City Council of
Baltimore, 195 Md. 348, 355, 73 A.2d 486, 488–89 (1950)). Spot zoning is not invalid
per se, but rather its validity “depends on the facts of each individual case.” Id. (quoting
Tennison v. Shomette, 38 Md. App. 1, 8, 379 A.2d 187, 192 (1977)).

6
amendments to Bill 44-11 and the rezoning of one additional property8 were void because

they were inconsistent with the recommendations of the GDP, constituted illegal spot

8
Protestants challenged Amendments 9, 22, 26, 34, 37, 43, and 46. Each of these
Amendments were vetoed by the County Executive, but the vetoes were overridden
ultimately by the County Council.
Protestants challenged also the rezoning of the property located at 1625 Old
Generals Highway, Crownsville, Maryland (the “Wedding Chapel Property”). In his
Veto Statement, the County Executive wrote that he would have exercised a line item
veto of this rezoning, but declined to because it would have left this property without a
classification, which was “neither desirable nor legal.”
The following list contains each challenged rezoning its corresponding
challenger(s):

1. Amendment 9 (rezoning 11.5 acres at 1308 Defense
Highway) was challenged by Ronald Haritan.
2. Amendment 22 (rezoning properties on the northeast
and northwest corners of the intersection of Riva Road and
West Central Avenue) was challenged by Elizabeth Caney
and David Gray.
3. Amendment 26 (rezoning properties at 1027, 1081,
1085, 1125, 1131, and 1133 Mt. Zion-Marlboro Road) was
challenged by Shirley Harrison.
4. Amendment 34 (rezoning various properties on Cox
Road and Polly Place) was challenged by Richard M.
Paukstitus and Elizabeth Novotny and Curtis and Karen
Pendleton.
5. Amendment 37 (rezoning 1300 Defense Highway) was
challenged by Ronald Haritan.
6. Amendment 43 (rezoning 1541 Defense Highway) was
challenged by Duane and Rosie Delaney.
7. Amendment 46 (rezoning 2972 Solomons Island
Road) was challenged from Greg Traintifillides and August
and Betty Kruelle.
8. The rezoning of 1625 Old Generals Highway was
challenged by Roman and Kimberly Ferrer, Robert E.
Lamothe, Dwayne Harman, Jan Orazem, Judith Anderson
Harris, and Brian Johnson and Erica Zippel.

(Continued…)
7
zoning, and exceeded the County’s zoning authority. The Protestants reiterated generally

the proximity of their properties to the rezoned properties, and alleged further various

discrete injuries, including reduced property values, reduced enjoyment of the properties,

increased traffic, increased noise and light pollution, fear of damage to trees and

mailboxes on their properties as a result of increased traffic, damage to the rural nature of

the properties, increased run-off from storm water, and the pressure to permit additional

and more intense commercial uses in the future. One Protestant, Shirley Harrison

(“Ms. Harrison”), who owns and resides on a property “adjacent to” a property rezoned in

Bill 44-11, reiterated her allegations that enjoyment of her property would be reduced

substantially and that the rezoning would cause an increase in traffic. She alleged further

in the Second Amended Complaint that she “also fears that her property taxes will

increase due to the R5 zoning on the adjacent rezoned property.”9

In response to the Second Amended Complaint, some of the Defendants, including

the County, filed new motions to dismiss, asserting that the Protestants lacked standing

still, failed to state a judiciable controversy ripe for adjudication, failed to join all

necessary parties, and failed to state a claim for which relief could be granted.

The Protestants, in their opposition to the motion to dismiss the second amended

complaint filed by the County, reiterated, among other things, their argument that their

(…continued)
The Protestants challenged previously Amendments 25, 27, and 30 to Bill 44-11, but no
longer challenged those Amendments in their Second Amended Complaint.
9
This appears to be the first and only horseshoe in the record thrown by any Protestant in
the direction of taxpayer standing.

8
“allegations of special aggrievement are sufficient” to establish their standing. The

Protestants analyzed in this portion of their opposition Bryniarski and Ray, as well as 120

W. Fayette St., LLLP v. Mayor and City Council of Baltimore, 407 Md. 253, 964 A.2d

662 (2009) [hereinafter “Superblock I”]. In their discussion of Superblock I, the

Protestants appear to have conflated our jurisprudence regarding property owner standing

with that directed to taxpayer standing, when referring to the allegedly ultra vires action

of the Mayor and City Council of Baltimore. Furthermore, ignoring apparently certain of

the limited revisions made in the allegations of their Second Amended Complaint, the

Protestants suggested, in a footnote, that “[a]ll of the individual Plaintiffs allege that they

anticipate a reduction in the value of their property and their enjoyment of it.”

One of the Defendants (Boone’s Estates, Inc., hereinafter “Boone’s Estates”),

focused pointedly in its motion to dismiss on the allegations of Ms. Harrison. Boone’s

Estates argued that Ms. Harrison’s allegations failed to satisfy the “special damage”

requirements of Bryniarski and that she failed to allege that she would be “specially

affected . . . in a way different from that suffered by the public generally.” (emphasis

removed). Specifically, Boone’s Estates contended that Ms. Harrison’s new allegations

of an increase in traffic and an increase in property taxes did not constitute special harm

because both harms would be regional in scope. Finally, Boone’s Estates maintained

that, “if it is argued that [Ms. Harrison] should have standing to challenge Amendment 26

as a taxpayer, the argument must fail because [she] has not alleged that she will suffer

pecuniary losses from the change in zoning.”

9
The Protestants filed an opposition to the motion to dismiss filed by Boone’s

Estates as well. In this opposition the Protestants noted that Ms. Harrison’s revised

allegations were sufficient to give her property owner standing, relying on Cassel v.

Mayor and City Council of Baltimore, 195 Md. 348, 353, 73 A.2d 486, 488 (1950)

(concluding, with minimal analysis, that property owners residing less than 100 feet from

property rezoned by a piecemeal rezoning ordinance had standing to attack the validity of

the amending ordinance), and Habliston v. City of Salisbury, 258 Md. 350, 355, 265 A.2d

885, 887 (1970) (granting property owner standing in a challenge to a piecemeal

rezoning). The Protestants did not address in any way Boone’s Estates arguments

regarding taxpayer standing, nor did they disavow explicitly their earlier disavowal of

taxpayer standing.

Boone’s Estates replied to Protestants’ opposition and, after addressing what it

called Ms. Harrison’s argument “that Bryniarski does not require a plaintiff in zoning

cases at equity to make definite allegations of special damage,” Boone’s Estates turned to

what it called Ms. Harrison’s “alternat[e]” argument that she had alleged sufficiently

nonetheless “special damage.” Boone’s Estates argued that the potential increase in

property taxes was neither “definite” nor “special,” as the same effects would be felt by

all owners of property located in the area of parcels rezoned.

Finally, the Protestants also opposed a motion to dismiss filed by Defendant 1625

Limited. In this opposition, the Protestants maintained again that they enjoyed standing

10
as “adjoining property owners,” relying indiscriminately on cases discussing both

property owner standing and taxpayer standing.10

Following a hearing, the Circuit Court issued on 11 October 2012 an Opinion and

Order dismissing the Second Amended Complaint. The trial judge noted again, in a

section entitled “Disputed Legal Issues,” that “Defendants claim that Plaintiffs lack both

taxpayer and common-law standing. The Plaintiffs argue[] in response that their

Complaint alleges harm to several individual plaintiffs sufficient to give them standing to

bring this action.” After discussing Superblock I and Long Green Valley Association v.

Bellevale Farms, Inc., 205 Md. App. 636, 46 A.3d 473, aff’d on other grounds, 432 Md.

292, 68 A.3d 843 (2013), the trial judge concluded rightly that these two cases were

distinguishable from the matter at hand by virtue of the fact that the protestants in those

cases were challenging a land disposition agreement and an agricultural easement,

respectively, not a comprehensive zoning ordinance.

The trial judge grouped the plaintiffs by virtue of their respective allegations and

addressed each group in turn to evaluate whether they enjoyed standing. Regarding

Ms. Harrison, the trial judge noted, in a footnote, that “an increase in property value by

10
Specifically, refuting 1625 Limited’s argument that the Protestants’ allegations were
too “speculative,” the Protestants asserted: “[i]t is the potential for harm, not the
existence of actual harm, that gives a plaintiff the right to sue.” In support thereof, the
Plaintiffs directed the court’s attention to 120 W. Fayette St., LLLP v. Mayor and City
Council of Baltimore, 407 Md. 253, 964 A.2d 662 (2009) [Superblock I] (discussing both
property owner and taxpayer standing), Habliston v. City of Salisbury, 258 Md. 350, 265
A.2d 885 (1970) (discussing property owner standing), Crozier v. County Comr’s of
Prince George’s County, 202 Md. 501, 97 A.2d 296 (1953) (discussing property owner
standing), and Citizens Planning & Housing Ass’n v. County Executive of Baltimore
County, 273 Md. 333, 344, 329 A.2d 681, 687 (1974) (discussing taxpayer standing).

11
definition is not ‘harm’ and that a tax increase for more valuable property does not

constitute a viable zoning complaint.” The Circuit Court went on to conclude that

Ms. Harrison’s allegations were too generalized to satisfy the requirement of “special

harm.” The trial judge concluded that all, save two, of the Protestants lacked standing to

challenge Bill 44-11. As to the two, he concluded that Richard M. Paukstitus and

Elizabeth Novotny (hereinafter the “Wildlife Complainants”) enjoyed property owner

standing because of their allegation that the rezoning of a nearby parcel “will result in a

loss of or a deterioration of the wildlife habitat and will destroy or drive off the currently

abundant wildlife there.” This assertion was deemed sufficient to “satisf[y] the standard

of special harm distinct from the general public as required in Habliston and Bryniarski.”

Regarding whether the Protestants (including Ms. Harrison and the Wildlife

Complainants) failed to state a claim, the Circuit Court, relying on the Preamble to

Chapter 181 of the Acts of 2009 (House Bill 297),11 concluded that the rezoning actions

11
Chapter 181 of the Acts of 2009 revised portions of then-Article 66B of the Maryland
Code in direct response to our opinion in Trail v. Terrapin Run, LLC, 403 Md. 523, 943
A.2d 1192 (2008), where we interpreted the meaning of the word “conform” as it
appeared in Maryland Code (1957, 2003 Repl. Vol.), Article 66B, § 1.00(k). Chapter 181
was designed expressly to abrogate our holding in Terrapin Run. The Circuit Court in
the present case referred to this portion of the Preamble to Chapter 181:

While the holding of the Terrapin Run decision could be
narrow and confined to the granting of special exceptions, the
General Assembly is concerned that a broader interpretation
of the decision could undermine the importance of making
land use decisions that are consistent with the comprehensive
plan;

***

(Continued…)
12
that Protestants challenged were “not ‘rare’ in the context of the huge number of

properties contained in southern Anne Arundel County and otherwise impacted by the

comprehensive rezoning process.” The trial judge rejected further Protestants’ argument,

citing Cassel, 195 Md. at 354, 73 A.2d at 488, that “[t]he test of invalidity of a zoning

ordinance [in a piece rezoning context] is whether it is arbitrary, unreasonable and

discriminatory, and has no substantial relation to the public health, safety, morals, or

general welfare.” Relying on County Council of Prince George’s County v. Offen, 334

Md. 499, 639 A.2d 1070 (1994) (challenging a comprehensive zoning action), the Circuit

Court determined the appropriate standard to apply was whether Protestants alleged the

County was acting “within its legal boundaries.” The court concluded that it “must find

that the County Council acted ‘within its legal boundaries’ [because] it is required by

statute to enact a GDP and comprehensive zoning.” Accordingly, the Circuit Court

concluded that all Protestants failed to state a claim on which relief could be granted and

dismissed the Second Amended Complaint.

(…continued)
The people of Maryland are best served if land use decisions
are consistent with locally adopted comprehensive plans;

***

[And i]t is the intent of the General Assembly, as evidenced
in Article 66B, §§ 1.03(e) and 4.09, that comprehensive plans
should be followed as closely as possible while not being
elevated to the status of an ordinance and that deviations from
the plan should be rare[.]

Chapter 181 of the Acts of 2009, at 981.

13
The Protestants appealed to the Court of Special Appeals, where they argued again

that they enjoyed property owner standing by virtue of their proximity to various rezoned

parcels. The Protestants noted first, without apparent exception, that “[i]n each case, the

Second Amended Complaint also alleges that [the Protestants] believe that the challenged

rezoning will substantially reduce the value of their property and their enjoyment of

it . . . .” Although noting Ms. Harrison’s allegations of increased property taxes later in

their brief, at no point did the Protestants discuss or advance anything that could be

construed as an argument or authorities justifying taxpayer standing. The County, in its

responsive brief, reiterated its arguments that the Protestants failed to satisfy Bryniarski’s

standing requirements, and similarly did not discuss taxpayer standing further.

The Court of Special Appeals, in an unreported opinion, relying on its opinion in

Bell v. Anne Arundel County, Md., 215 Md. App. 161, 79 A.3d 976 (2013)12, concluded

that the doctrine of property owner standing applies to declaratory judgment actions

challenging comprehensive zoning legislation. Applying those standards to the present

case, the intermediate appellate court concluded that “the circuit court erred in

concluding that [Protestants] lacked standing with respect to their challenges of

Amendments 9, 22, 26, 37, and 46 and the portion of Bill 44-11 rezoning 1625 Generals

Highway.” As for Amendment 43, the appellate court concluded that two of the

Protestants lived close enough to the rezoned property to be almost prima facie

aggrieved. See Ray v. Mayor & City Council of Baltimore, 430 Md. 74, 91, 59 A.3d 545,

12
As noted at the outset, in Bell, ___ Md. ___, ___ A.3d ___, filed today, we reversed the
holding of the Court of Special Appeals in Bell.

14
555 (2013). The panel of the court did not determine whether the Protestants alleged

sufficiently “plus factors” supporting special damage, and instead remanded the case to

permit the Protestants to amend their Complaint in light of the court’s discussion of “plus

factors” in Bell. The panel did not discuss taxpayer standing, save for a vague and brief

comment discussing the holding in Superblock I.13

The intermediate appellate court concluded also that the trial judge erred when he

applied the “legal boundaries test” because he should have reviewed the spot zoning

allegations for “arbitrary, unreasonable, and discriminatory action.” After observing that

one purpose of Chapter 674 of the Acts of 201314 was to “clarify[] a certain requirement

13
Specifically, the intermediate appellate court stated, “[The proximity principles
articulated in Ray v. Mayor & City Council of Baltimore, 430 Md. 74, 59 A.3d 545
(2013)] apply to judicial review of a board of zoning appeals decision, [Bryniarski v.
Montgomery County Board of Appeals, 247 Md. 137, 230 A.2d 289 (1967)]; a challenge
to a municipality’s ‘allegedly illegal avoidance of urban renewal and procurement
ordinances,’ [Superblock I, 407 Md. at 272, 964 A.2d at 673]; and a challenge ‘as an
illegal or ultra vires action the approval of a proposed use of land subject to a [Maryland
Agricultural Land Preservation Foundation] easement,’ [Long Green Valley Association
v. Bellevale Farms, Inc., 205 Md. App. 636, 688, 46 A.3d 473, 504, aff’d on other
grounds, 432 Md. 292, 68 A.3d 843 (2013)].” None of these cases involved a challenge
to a comprehensive zoning action.
14
Chapter 674 of the Acts of 2013 was conceived as a “clean-up amendment” following
the recodification project that resulted in 2012 in adoption of the Land Use Article.
During the process of the code revision project (designed to “revise, restate, and recodify
the laws of the State relating to zoning, planning, subdivision, and other land use
mechanisms, . . . and generally relating to the laws of the State concerning land use,”
Chapter 426 of the Acts of 2012, at 2198–99), the Land Use Code Revision Committee
(“the Committee”) took pains to note carefully any and all substantive revisions brought
about during the revision project, of which there were few. In the process of drafting the
Land Use Article in 2012, the Committee identified a number of “significant issues” it
confronted in the code revision process and deemed to be outside the purview of the
Committee’s scope of work. Revisor’s Note, Maryland Code (2012), Land Use Article,
(Continued…)
15
of consistency with the plan for certain zoning laws and other local law,” the court also

concluded that “[b]ecause the circuit court did not have the opportunity to consider this

legislative change and because [it was] already remanding the case, [the court would]

remand on the plan consistency question, too.” Accordingly, the Court of Special

Appeals reversed the judgment of the Circuit Court and remanded the case for further

proceedings.

The County and several Defendants (collectively, the “Petitioners”) petitioned us

for a writ of certiorari, which we granted on 18 June 2014, to consider the following

questions:

3. Whether Maryland law required Bill 44-11 to be consistent
with the County GDP?[15]

(…continued)
§ 1-417. A number of the issues identified by the Committee were taken up and
addressed the following year, during the 2013 Session of the Maryland General
Assembly, by House Bill 1257, which was codified as Chapter 674 of the Acts of 2013.
15
The writ identified five Questions. We consolidate Questions 3–5 into the question
framed above because it represents the “essence” of each of those Questions. Questions
3–5 were originally expressed as follows:
(Continued…)
16
Anne Arundel County v. Harwood Civic Association, 438 Md. 739, 93 A.3d 288 (2014).

Of all the Petitioners, the County and Boone’s Estates filed discrete and separate

briefs.16 The County advanced initially several arguments for why the Protestants did not

enjoy property owner standing. The County proceeded then to discuss the Protestants’

“alternative” argument that they were specially harmed “in a way different and distinct

from the public at large.” Boone’s Estates’ arguments echoed largely those of the

County, with one notable exception17: Boone’s Estates reiterated the arguments made to

the Circuit Court regarding Ms. Harrison’s allegations. It also referenced in a footnote

(…continued)

3. Whether Land Use Article § 1-417 (enacted in 2012)
required that comprehensive zoning enacted by Anne Arundel
County in 2011 to be consistent with the Anne Arundel
County General Development Plan?

4. Whether the title to Chapter 674, Laws of Maryland 2013
retroactively required comprehensive zoning enacted by Anne
Arundel County in 2011 to be consistent with the Anne
Arundel County General Development Plan?

5. Whether Md. Code Ann., Art. 66B, § 1.04(f) required
comprehensive zoning enacted by Anne Arundel County in
2011 to be consistent with the Anne Arundel County General
Development Plan?
16
The remaining Petitioners—Alva A. Trahan, Julie A. Hill, Michael D. Hill, Robert A.
Rawlings, Millie J. Rawlings, Barbara Messenger, Elizabeth Rommel, and John
Rommel—adopted by reference the briefs filed by the County and Boone’s Estates.
Because both briefs advance similar arguments, we refer to the arguments of both the
County and Boone’s Estates collectively as those of the Petitioners.
17
Boone’s Estates appears also to have conceded that the Wildlife Complainants alleged
sufficiently special damages, such as demonstrating sufficiently property owner standing,
to challenge Amendment 34 of Bill 44-11.

17
the Protestants’ (pre-Second Amended Complaint) May 2013 Memorandum (wherein the

Protestants disclaimed taxpayer standing), concluding with the following statement:

“Boone’s Estates here notes that [Ms. Harrison’s] allegations are insufficient to give rise

to taxpayer standing.”18

The Protestants, in their responsive brief, argued that they enjoyed property owner

standing, but did not argue that they enjoyed taxpayer standing, although they did refer

tangentially to the latter doctrine several times in general discourse. Ironically, the

Protestants discussed the public policy underpinnings of taxpayer standing and the

necessity for standing doctrines that enable citizens to protect themselves from

“legislative overreach” and the “ultra vires act of a legislature.” The Protestants

concluded their discussion of the policies behind taxpayer standing with a quotation from

the taxpayer standing section of Superblock I, see Superblock I, 407 Md. at 266, 964 A.2d

at 669, which they contextualized by saying: “The passage relates to the difficulties of

pleading special aggrievement in a taxpayer standing case, but the difficulties faced by

nearby landowners in a zoning case are no different.” Later, they suggested that their

Second Amended Complaint “alleges specific reasons why the value of their property and

their enjoyment of [it] will suffer from the ultra vires act of the County Council.”

So ends our excruciatingly exact recital of the procedural history of this case,

which we set out at length as prelude to determining whether Respondents preserved their

18
Boone’s Estates reiterated this observation and argument in a footnote in its reply to
the Respondents’ brief.

18
ability to assert that they satisfied the requirements of taxpayer standing to maintain their

suit.

II. TAXPAYER STANDING:
HOW THE RESPONDENTS’ SUIT FARES HERE

As we discussed in Bell, in order to establish eligibility to maintain a suit under the

taxpayer standing doctrine, a plaintiff must allege “(1) that the complainant is a taxpayer;

and (2) that the suit is brought, either expressly or implicitly, on behalf of all other

taxpayers.” State Center, LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 547, 92

A.3d 400, 457 (2014). “Once a complainant establishes eligibility to bring a suit, he, she,

or it must allege . . . both a governmental action that is illegal or ultra vires and that the

action may affect injuriously the taxpayer’s property (meaning that it reasonably may

result in a pecuniary loss to the taxpayer or an increase in taxes).” Bell, Slip Op. at 38;

see State Center, 438 Md. at 540, 92 A.3d at 453 (quoting Kendall v. Howard County,

431 Md. 590, 605, 66 A.3d 684, 693 (2013) (quoting Superblock I, 407 Md. at 267, 964

A.2d at 669–70))). Finally, “there must be a ‘nexus’ between the showing of potential

pecuniary damage and the challenged act . . . which is true not only for the complainant,

but also all similarly situated taxpayers.” Id., Slip Op. at 39.

Respondents here did not satisfy the requirements of the taxpayer standing

doctrine on this record, or waived any arguments they may have had to that effect. As

noted above, Ms. Harrison—the only Respondent to make any arguable effort at

19
demonstrating taxpayer standing19—alleged the following in the Second Amended

Complaint:

Plaintiff Shirley Harrison owns and resides at 1037 Marlboro
Road, Lothian, Maryland, adjacent to the property rezoned by
Amendment 26 to Bill 44-11, as described below. She
believes that her enjoyment of her property will be
substantially reduced by the new intense residential
development that would be made possible by this rezoning.
She believes that development activity enabled by the
rezoning would cause an increase in traffic, both during and
after construction, causing driving to and from her residence
to become more difficult. She also fears that her property
taxes will increase due to the R5 zoning on the adjacent
rezoned property.

Unlike the complainants in Bell, see Slip Op. at 46–48, Ms. Harrison alleged that her

taxes would be increased, satisfying the requirement that she allege pecuniary loss. We

shall assume for purposes of our analysis that she is, in fact, a taxpayer by virtue of her

ownership of real property located at 1037 Marlboro Road, Lothian, Maryland.20 We

shall assume further that Ms. Harrison’s allegations of “impermissible” spot zoning

19
“Where one party has standing, we do not inquire typically as to whether another party
on the same side also has standing.” Bell, Slip Op. at 45; see State Center, LLC v.
Lexington Charles Ltd. P’ship, 438 Md. 451, 550, 92 A.3d 400, 458 (quoting Board of
Supervisors of Elections v. Smallwood, 327 Md. 220, 233 n.7, 608 A.2d 1222, 1228 n.7
(1992) (quoting Board of License Commissioners v. Haberlin, 320 Md. 399, 404, 578
A.2d 215, 217 (1990))).
20
In State Center, 438 Md. at 550–52, 92 A.3d at 458–60, we considered whether the
plaintiffs in that case were taxpayers. There, the plaintiffs were comprised of limited
partnerships, limited liability corporations, and eight general Maryland corporations.
State Center, 438 Md. at 550–51, 92 A.3d at 459. We “presumed” that the general
Maryland corporations were taxpayers, although they did not allege specifically in their
amended complaints that they paid taxes. Id. n.59, 92 A.3d at 459 n.59.

20
satisfy the requirement of alleging a governmental action that is illegal or ultra vires,21 in

light of the “lenien[cy]” with which that requirement has been applied in the past. See

State Center, 438 Md. at 555–56, 92 A.3d at 462 (“This requirement has been applied

leniently and seems rather easy to meet . . . .”). The added allegations in the Second

Amended Complaint, however, even buttressed by our assumptions, do not bestow

taxpayer standing on Ms. Harrison, as such an argument has been waived.22 As noted

above, after disclaiming standing as taxpayers in their May 2013 Memorandum,

Respondents alleged nonetheless additional facts that, generally construed, could be a

nod presumably in the direction of taxpayer standing. At no point before the Court of

Special Appeals or before us, however, did any Respondent assert that he, she, or it

enjoyed taxpayer standing or satisfied the requirements thereof. See Maryland Rules 8-

131(b) and 8-504(a)(6). “[A]rguments not presented in a brief or not presented with

particularity will not be considered on appeal.” Klauenberg v. State, 355 Md. 528, 552,

735 A.2d 1061, 1074 (1999) (refusing to consider an argument when one statement to

that effect was “lumped in” with another argument); see Comptroller of Treas. v. Aerial

21
Respondents alleged that Amendment 26 (the amendment challenged specifically by
Ms. Harrison) was “inconsistent with the GDP and is therefore in violation of Maryland
Code Article 66B,” that, in adopting Amendment 26, the County “acted arbitrarily and
capriciously, in violation of Maryland law,” that Amendment 26 “constitute[s]
impermissible spot zoning,” and that the zoning changes effected by Amendment 26
“[were] not guided by the GDP, and [are] therefore in violation of § 18-2-102 of the
Anne Arundel County Code.”
22
Because Respondents waived the taxpayer standing argument, we need not consider
whether Ms. Harrison alleged sufficiently that Respondents’ suit was brought on behalf
of all other taxpayers situated similarly, or if she alleged sufficiently a nexus between the
challenged illegal or ultra vires act and pecuniary loss suffered by her.

21
Prods., Inc., 210 Md. 627, 644–45, 124 A.2d 805, 814 (1956); see also Mathis v.

Hargrove, 166 Md. App. 286, 318, 888 A.2d 377, 396 (2005); Pool v. State, 207 Md.

App. 614, 633, 53 A.3d 479, 491 (2012). As the analysis in Bell demonstrates, it can

come as no surprise to Respondents that the longstanding requirements of taxpayer

standing apply to judicial challenges to comprehensive zoning actions. Their failure to

grapple with that requirement dooms them in this case.

III. CONCLUSION

The judgment of the trial court to dismiss Respondents’ Second Amended

Complaint was correct. Complainants must satisfy the requirements of taxpayer standing

to challenge comprehensive zoning legislation. Bell, Slip Op. at 48. Because

Respondents waived any argument they may have had that they enjoyed taxpayer

standing, they cannot sustain their suit, which must be dismissed.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS REVERSED;
CASE REMANDED TO THAT
COURT WITH DIRECTIONS TO
AFFIRM THE JUDGMENT OF THE
CIRCUIT COURT FOR ANNE
ARUNDEL COUNTY; COSTS IN
THIS COURT AND THE COURT OF
SPECIAL APPEALS TO BE PAID
BY THE RESPONDENTS.

22
Circuit Court for Anne Arundel County
Case No.: 02-C-11-164569
Argued: January 13, 2015

IN THE COURT OF APPEALS

OF MARYLAND

No. 39

September Term, 2014

ANNE ARUNDEL COUNTY, MARYLAND, et al.

HARWOOD CIVIC ASSOCIATION, INC., et al.

Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,

JJ.

Dissenting Opinion by Adkins, J., which
Battaglia and McDonald, JJ., join.

Filed: April 21, 2015
I respectfully dissent for the reasons stated in my dissenting opinion in Anne Arundel

County, Maryland v. Bell, ___ Md. ___, ___ A.3d ___ (2015) (No. 29, September Term,

2014, filed April 21, 2015).

Judge Battaglia and Judge McDonald authorize me to state that they join in the

views expressed in this opinion.