MOYLAN, J.
This is one of three closely related appeals, all challenging in one way or another the same basic decision by the City of Baltimore. That decision was to create a Planned Unit Development ("PUD")
Our special concern on this appeal, therefore, is with the threshold requirement of standing to obtain judicial review of a zoning decision by the City Council.
See Committee for Responsible Development on 25th Street v. Mayor and City Council of Baltimore, 137 Md.App. 60, 74-78, 767 A.2d 906 (2001).
The proposed PUD will occupy an 11.5 acre parcel of land, bounded by 25th Street and Huntingdon Avenue on the north, by Maryland Avenue on the east, by 24th Street and Sisson Street on the south, and by the CSX railroad tracks on the west. The north-south axis of Howard Street essentially bisects the parcel, just as it separates the Charles Village neighborhood to the east of Howard Street from the Remington neighborhood to its west.
The Subject Property Owners have used the land for over half a century as a car dealership. Most recently, General Motors and Honda dealerships have operated from the location. As the representative of the Baltimore Department of Planning informed the Baltimore City Council at a public hearing, the General Motors dealership would be closing and the Honda dealership would be moving to Baltimore County.
On April 19, 2010, Councilwoman Belinda K. Conaway introduced Council Bill 10-0488 to the City Council. The Bill was for the purpose of approving the application of the Developers to designate the 11.518 acres as a Business and Industrial PUD. The PUD contemplates the development of a mixed-use, residential and commercial development project. The plans for the proposed development include approximately 70 to 80 apartment units; 337, 568 square feet of rented floor space; and 1,027 parking places. "Big-box" retailer Wal-Mart plans to occupy approximately 100,000 square feet of retail space where it plans to build a full-scale grocery. At the time the City approved the PUD, another "big-box" retailer, Lowes Home Center, planned to occupy approximately 150,000 square feet of retail space. The City Council assigned Bill 10-0488 to the Land Use and Transportation Committee, which conducted public hearings on September 15 and September 22, 2010. At the September 15 hearing, Councilwoman Conaway, the Bill's sponsor, spoke to its purpose:
On December 21, 2010, the appellants in this case, Benn Ray and Brendan Coyne, petitioned to the Circuit Court for Baltimore City for judicial review of the City Council's decision to adopt the 25th Street Station PUD. Filing responses in opposition to the petition for judicial review were not only the City, the Subject Property Owners, and the Developers, but also the Greater Remington Improvement Association and the Charles Village Civic Association. On February 11, 2011, the Developers and the Subject Property Owners filed separate Motions to Dismiss the Petition for Judicial Review. The City filed its own Motion to Dismiss on February 14, 2011. A hearing on the Motion to Dismiss was held before Judge Pamela J. White on March 7, 2011. In a four-page Memorandum Opinion and Order filed on March 20, 2011, Judge White granted the Motions to Dismiss, ruling that the appellants lacked standing to petition for judicial review. The appellants have appealed from that dismissal.
The contentions before us are threefold. The appellants claim
As we prepare to address the standing of the two appellants, there is an elephant in the room that, bizarrely, almost everyone is totally ignoring. At least tentatively, we will acknowledge its presence. The appellant Benn Ray resides at 279 W. 31st Street. Ray, however, is not the owner of the property. He rents it. In terms of standing, that may not, ipso facto, be disqualifying. But it may. It is at the very least highly unusual. Despite its being an extraordinary feature, however, it is nowhere mentioned in the appellants' primary brief. The brief recites simply that Ray lives at such and such a place and then goes on nonchalantly to make his various standing arguments just as if he were the owner of the property.
The appellants, also without citing any legal authority, made brief reply to the raising of the issue by the Developers:
The court, in its turn, made no ruling on this issue. It may have deemed it unnecessary to do so because Ray, in any event, lacked standing for other reasons. Our chagrin is that this highly unusual circumstance is at the least worthy of notice and comment and is not some run-of-the-mill commonplace to be taken casually for granted.
For standing purposes in zoning challenges, the opinion of Judge Wilson K. Barnes for the Court of Appeals in Bryniarski v. Montgomery County, 247 Md. 137, 230 A.2d 289 (1967), is the authoritative tap root. As Judge Kehoe stated in Chesapeake Bay Foundation v. Clickner, 192 Md.App. 172, 185, 993 A.2d 1163 (2010), "Bryniarski is the landmark case in Maryland on `aggrievement' as a requirement for standing in land use appeals." The Bryniarski opinion, 247 Md. at 143, 230 A.2d 289, sets out the two basic preconditions:
(Emphasis supplied).
Our concern in this case is with the second threshold requirement of being an "aggrieved" party. Judge Barnes's opinion lays out the basic requirements for such qualifying aggrievement:
(Emphasis supplied).
As a benefit of fortuitous geography, however, some aspiring protestants enjoy a procedural shortcut to aggrieved status:
247 Md. at 145, 230 A.2d 289. See also 120 West Fayette Street v. Mayor & City Council of Baltimore, 407 Md. 253, 271-72, 964 A.2d 662 (2009) ("Such property owners are granted prima facie aggrieved status due to the sheer proximity of their property to the area that is the subject of the complaint."); Sugarloaf v. Department of Environment, 344 Md. 271, 297, 686 A.2d 605 (1996); Wier v. Witney Land Company, 257 Md. 600, 608-13, 263 A.2d 833(970);
It is this procedural shortcut to aggrievement that brings to the forefront the appellant Ray's status as a non-property-owner. The basic requirement for standing remains aggrievement. Conceivably, one could establish that without being a property owner. There is, however, a gaping procedural and evidentiary chasm between special aggrievement and prima facie aggrievement. It is the latter variety of aggrievement that Ray, as a non-property-owner, is denied. He is, of course, free to try to establish special aggrievement with its attendant allocation of a stern burden of proof. What he lacks as a non-property owner is the easy prima facie comfort of presumptive aggrievement and standing. What non-ownership may deny Ray is not a chance ultimately to establish aggrieved status, but the benefit of the short and easy route to such status.
Even the prima facie shortcut, albeit conferring generous procedural benefits, is not completely hazard-free. Bryniarski, 247 Md. at 145, 230 A.2d 289, makes clear:
Id. (emphasis supplied).
Thus, the presumption of aggrievement may be rebutted, and a "nearby" or even an abutting property owner may ultimately be shown to be unaggrieved and thereby denied standing. The converse is also true. Even one who does not enjoy presumptive standing by virtue of property ownership and proximity to the situs in dispute may nonetheless establish actual aggrievement. Judge Barnes went on:
247 Md. at 145, 230 A.2d 289 (emphasis supplied).
In Holland v. Woodhaven Building and Development, Inc., 113 Md.App. at 281, 687 A.2d 699, we entertained an argument by one who was not "a nearby property owner" that he had, for standing purposes, nonetheless established his aggrieved status:
(Emphasis supplied).
Thus, both prima facie aggrievement and demonstrated special aggrievement simply give rise to rebuttable presumptions. They satisfy burdens of
Judge Kehoe's opinion for this Court first affirmed the correctness of the decision of the Board of Appeals that the Chesapeake Bay Foundation and the Magothy River Association, because they were not nearby property owners, were not prima facie aggrieved:
192 Md.App. at 187, 993 A.2d 1163.
It was when our analysis then turned to the very different question of whether the CBF and the MRA might nonetheless establish special aggrievement that we pointed out that "contrary to the Board's analysis, property ownership is not a prerequisite to aggrievement." 192 Md.App. at 189, 993 A.2d 1163. Property ownership is not an absolute prerequisite to being specially aggrieved and is not even an important factor in the relatively rarer cases where the complainant is a governmental agency rather than a private citizen. There is a critical difference between the classes of protestants.
Our opinion did not finally decide whether the CBF and the MRA were actually specially aggrieved or not. It remanded the case to the Board of Appeals for that determination, using the proper definition of aggrievement. The opinion pointed out, however, the type of thing that a would-be protestant must sometimes show in order to be entitled to special aggrievement:
192 Md.App. at 190, 993 A.2d 1163. A showing of special aggrievement is never automatic.
Protestants such as the Chesapeake Bay Foundation and the Magothy River Association are clearly special cases. Ordinarily, if not universally, an individual citizen as protestant will, almost of necessity, be a property owner. The Bryniarski opinion pointed out that all three challengers in that case were "property owners." In discussing standing, the phrase "property owner" was used no less than twelve times, and no alternative status was referred to. On the critical presumptive state of being prima facie aggrieved, being a "property owner" is the express sine qua non:
247 Md. at 145, 230 A.2d 289 (Emphasis supplied).
The pre-Bryniarski opinions all dealt expressly with property owners. Marcus
Although the caselaw may never have expressly stated that a non-property-owner is automatically disqualified from establishing prima facie aggrievement and standing, an extrapolation from everything the caselaw affirmatively has said would seem to support such a conclusion. Indeed, in Holland v. Woodhaven Building and Development, Inc., 113 Md.App. 274, 280, 687 A.2d 699 (1996), Judge James Eyler came very close to stating just such a conclusion for this Court:
(Emphasis in original).
Practical logic supports such a position. Once the boundary line of prima facie aggrievement is extended beyond property ownership, it becomes exceedingly hard to pinpoint where that extension should stop. If one renting a nearby house on a year-to-year basis should be afforded standing to be aggrieved, why should that entitlement not be extended to one renting an abutting or nearby house on a month-to-month basis? How about a week-to-week basis? Would the same entitlement to qualify as an aggrieved protestant extend to a lessee of an apartment as well as to the lessee of a home? What about the long-term renter of a room in a nearby house or even a short-term room-and-boarder? What about the long-term (or even short-term) renter of a room in a nearby hotel or motel? How about a live-in relative (or friend) who pays no rent? Tempting as it might be to move the line in the case of Benn Ray, there is the practical problem of where should the line then be drawn?
In law, of course, it is prudent never to say never. Even if, theoretically, one might in some rare situation establish special aggrievement even as a non-owner, a non-owner will still not be entitled to the presumption of prima facie aggrievement. If there are extraordinary circumstances in Ray's case, it was up to Ray to establish them and not take them for granted. That he did not do. His non-ownership of the property would seem to deny him the standing to seek judicial review.
Does he qualify then for prima facie aggrievement? The wild card in the Bryniarski deck of "adjoining, confronting, or nearby property owner[s]" is the tetherless adjective "nearby." In terms of entitlement to "prima facie" aggrievement, notions like "touching," "contiguous," "adjoining," "bounding," "confronting," and "abutting" are warm and comforting geometric certainties. The status of being "nearby," by unnerving contrast, is a will o' the wisp. Nearbyness, like beauty, is in the eye of the beholder. It frustratingly eludes the butterfly net of rectilinear thinking. By zoning developers, it is something conceded only grudgingly by inches. By would-be protestants, it is something dispensed bounteously by furlongs.
The word "nearby," if not abused, serves a salutary purpose in zoning challenge law. It recognizes the proximate impact on the second tier of surrounding property owners even when they are not literally contiguous to or abutting on the source of their concern. The quality of being "nearby" may embrace even a third tier. It is when misapplied to the fifth and the sixth tiers, however, that "nearby" is being exploited beyond its reasonable limit. Being "nearby" is a notion that shares the basic concerns of proximity with the "contiguous," the "confronting," the "bounding," and the "abutting." It cannot be reduced to mathematical measurement, but it is a "close-in" thing and not a "distant" thing. It is a neighborly thing and not a mere technical qualification. One can sense it even when one cannot define it. In this case, one does not sense that either Coyne or Ray are truly "nearby."
The appellant Coyne lives at 2738 Guilford Avenue. That is 0.4 miles from the proposed 25th Street Station, as the
In Cassel v. City of Baltimore, 195 Md. 348, 353, 73 A.2d 486 (1950), "less than 100 feet from the property in dispute" was considered appropriately nearby. In Marcus v. Montgomery County, 235 Md. at 538, 201 A.2d 777, there were three would-be protestants. One who lived a block away from the proposed project was deemed to be prima facie aggrieved. The two who were, respectively, 3/4 of a mile away and 1/4 of a mile away were not prima facie aggrieved and their challenges were dismissed. The property owners who were not sufficiently nearby in DuBay v. Crane, 240 Md. at 183-84, 213 A.2d 487, were 1) 1,500 feet away (the appellants in the present case are between 2,112 feet and 3,326 feet away) and 2) 0.4 miles away (precisely the same as the best figure for the two appellants here). In Wilkinson v. Atkinson, 242 Md. at 233, 218 A.2d 503, the landowner who was beyond the pale of nearness was 750 feet away (between one-third and one-fourth of the remoteness of Ray and Coyne in this case). In White v. Major Realty, 251 Md. at 64, 246 A.2d 249, a distance of ½ a mile was too far for prima facie aggrievement. In Committee for Responsible Development on 25th Street v. Baltimore, 137 Md.App. at 86, 767 A.2d 906, five blocks (compared to seven blocks for each appellant in this case) was considered too far to enjoy "nearby" status:
(Emphasis supplied).
In her Memorandum Opinion and Order of March 10, 2011, Judge White ruled as follows:
(Emphasis supplied). We agree.
Superimposed upon linear distance, however, there is also visibility, as a
Both appellants in this case are pushing the visibility factor hard. They are, indeed, stretching their prima facie aggrievement claims to the limits of their logic. Charitably, it might be said that their arguments based on being within sight of the PUD are so attenuated as to be at (if not beyond) the breaking point. The harsher reality may be that their arguments are being reduced to parodies of themselves.
The question "Is one nearer to what is in view than to what is not in view?" inevitably provokes the Clintonesque response, "It all depends on what `in view' means." By invoking the visibility factor to support their nearness to the 25th Street Station, the appellants, perhaps unwittingly, have given us an excellent teaching vehicle to illustrate, by negative example, what being "in view," for standing purposes, does not mean. Gertrude Stein to the contrary notwithstanding, it is not necessarily true that a view is a view is a view. The difference between a ringside seat and the last row in the bleachers becomes, at a certain point, not merely a quantitative difference but an actual qualitative difference.
Quantitatively, a number of appellate opinions have at least brushed up against the subject. Qualitatively, they have little more than scratched the surface. When a protestant is not an abutting property owner but only an ostensibly nearby property owner, being close enough to have a good view of the proposed rezoning site is one of the characteristics of being nearby. In Marcus v. Montgomery County Council, 235 Md. at 538, 201 A.2d 777, the Court of Appeals noted, with respect to one of the property owners who was deemed to be without standing, "There is no evidence that his home is within sight of the subject properties." With regard to one of the property owners who lacked standing in DuBay v. Crane, 240 Md. at 185-85, 213 A.2d 487, the Court noted that even if the owner could see the rezoning site from 1500 feet away, the intervening presence of the Baltimore Beltway provided an adequate shield:
In Wilkinson v. Atkinson, 242 Md. at 234, 218 A.2d 503, the would-be protestant unquestionably had a good view:
(Emphasis supplied). The opinion of Judge Oppenheimer for the Court of Appeals held not that Mrs. Siegel lost on the
242 Md. at 235, 218 A.2d 503 (emphasis supplied).
In White v. Major Realty, Inc., 251 Md. at 63, 246 A.2d 249, "There was no evidence that ... the protestants could even see the subject property from their Central Avenue property." In Maryland-National Capital Park and Planning Commission v. Rockville, 269 Md. 240, 248, 305 A.2d 122 (1973), Judge Barnes wrote for the Court of Appeals:
(Emphasis supplied). In Committee for Responsible Development on 25th Street v. Baltimore, 137 Md.App. at 86, 767 A.2d 906, Judge Kenney described why a would be protestant lacked standing:
The appellant Coyne raises a visibility issue so basic that it has always heretofore been taken for granted. He acknowledges that from his home at 2738 Guilford Avenue, he cannot see the PUD site. He nonetheless contends:
The line of sight factor, as an indicium of nearness to a zoning project, has universally been measured from the property of a would-be protestant. The appellant Coyne cites no law for the proposition that it might be measured, instead, from a place of employment. He does not undertake an argument in that regard. He goes on blithely to describe his visual grievances as if the lack of a valid vantage point were utterly immaterial. It is not.
We hold that, as a factor in the nearness equation, the ability to view the site of the zoning project must be measured from one's property. It is not measured from one's place of employment. It is not measured from the route one regularly travels to work. It is not measured from the evening itinerary in walking the dog. It is not measured from the restaurant
The appellant Ray raises a different and problematic visibility issue. The scene one daily looks out upon from the living room window or from the rocking chairs on the front porch is a significant factor in one's quality of life. It is infinitely more pleasant to gaze upon a setting for Norman Rockwell than to confront the Dickensian smokestacks of Birmingham or Leeds. Whether bane or boon, they are a big part of living nearby. For those respective vistas to be pertinent, however, it is necessary that one actually be able to see them. White v. Major Realty, Inc., 251 Md. 63, 64, 246 A.2d 249 (1968) ("There was no evidence ... that the protestants could even see the subject property from their Central Avenue property.").
Having a good view of something, pleasant or unpleasant, is a worthy consideration, but the concept of visibility can easily be abused by overly zealous advocacy. Ray acknowledges that, from his home at 279 West 31st Street, he cannot see the 25th Street Station site when leaves are on the trees or from his first floor level even when foliage is not cloaking his view. He desperately grasps at nearness, however, with the plaint that, in winter at least, he can catch a glimpse of the project site through his second-story bathroom window. That passes the breaking point! If that is a view, it is a view through a periscope. One might as readily invoke the view from the roof. Posit such a glimpse of a corner of a distant rooftop from twice as far away, perhaps from a bathroom window on the fourth floor. Posit such a glimpse from several miles away, perhaps from the heights of Television Hill. Are they still nearby?
As a factor in the nearness equation, visibility means nothing less than a bona fide view that a casual observer might enjoy or deplore, not a hypertechnical touch by a laser beam. Some forlorn finial, on the distant horizon and devoid of all context, does not produce a sense of nearness. It is not a characteristic of the nearby. It is redolent of the faraway. We do not establish nearness with a sighting through a sniperscope.
The bottom line is that neither as a matter of linear geometry alone nor as linear geometry modified by visual considerations do the appellants Ray and Coyne qualify for prima facie aggrievement. To be eligible for standing, therefore, they were required to rebut their presumptive non-aggrievement by "alleging and proving by competent evidence ... the fact that his personal or property rights are specially and adversely affected by the [ongoing] actions." Bryniarski v. Montgomery County, 247 Md. at 145, 230 A.2d 289.
Ray claims that the development of the 25th Street Station will severely increase the traffic flow in the neighborhood to his special detriment. Coyne claims that the development of the project will likely lead to a depreciation in the value of his home to his special detriment. They both claim that the 25th Street Station will adversely change the character of their neighborhoods. All three claims, to be viable, must, however, surmount the hurdle of being very special rather than merely general
(Emphasis supplied). See also DuBay v. Crane, 240 Md. at 185, 213 A.2d 487; Wilkinson v. Atkinson, 242 Md. at 233, 218 A.2d 503; Wier v. Witney Land Company, 257 Md. at 610, 263 A.2d 833; Committee for Responsible Development on 25th Street v. Baltimore, 137 Md.App. at 85, 767 A.2d 906.
Ray's fear of an increase in the traffic flow fails that "special detriment versus general detriment" test. Judge Oppenheimer said of just such a complaint in Wilkinson v. Atkinson, 242 Md. at 234, 218 A.2d 503:
(Emphasis supplied).
Marcus v. Montgomery County Council, 235 Md. at 541, 201 A.2d 777, spoke to the same generality of a traffic problem:
(Emphasis supplied).
The traffic argument simply does not go anywhere. Even if increased traffic would turn out to be a problem, it would be a general problem and not a problem special to the appellant Ray.
The appellant Coyne submitted an affidavit in which he offered his opinion that the 25th Street Station project would lead to a loss in value for his home. Three paragraphs deal with his prediction that property values in the neighborhood will drop.
(Emphasis supplied).
Quite aside from the fact that Coyne's fears are based on his unsupported and non-expert speculation is the fact that his dire predictions are for the neighborhood generally and not for his own property specifically. He speaks of "the effect that Wal-Mart and the 25th Street Station project will have on the local economy." (Emphasis supplied). He fears that the "project will tip the scales of my neighborhood's health in a negative way." (Emphasis supplied). His express fear is that "my neighborhood's local economy will be inoperably damaged." (Emphasis supplied). The impact of closed businesses and the loss of jobs will be "a blight on the community, making Charles Village a less desirable place to live." (Emphasis supplied). Coyne's own predicted plight is based upon his prediction of a general plight for everyone. "[T]he character and desirability of living in the neighborhood will diminish, which will adversely affect the property value of my home." (Emphasis supplied). Every adverse impact is a general one affecting the entire neighborhood: "Closing business and overall lower wages in the neighborhood"; "fewer people employed living in my neighborhood"; "fewer employed people living in Charles Village"; and "a higher number of residents failing to properly maintain their property." (Emphasis supplied). From start to finish, that is quintessential general aggrievement and not special aggrievement.
No predicted adverse impact is directed specially at Coyne. The only adverse impact predicted for him will be as a result of his being a member of the larger community or neighborhood generally. He does not, therefore, qualify as aggrieved because he is not "personally and specially affected in a way different from that suffered by the public generally." Bryniarski v. Montgomery County, 247 Md. at 144, 230 A.2d 289. See also Wilkinson v. Atkinson, 242 Md. at 234, 218 A.2d 503.
Our resolution of this subcontention renders Coyne's final contention moot. The contention is that Judge White erroneously refused to receive in evidence his affidavit
Both appellants allege that the 25th Street Station project will have an adverse effect on the Charles Village and Remington neighborhoods. Once again, however, the appellants allege what is unquestionably a general aggrievement and not something that is a special aggrievement focused particularly on them as individual residents or homeowners.
In White v. Major Realty, 251 Md. at 64, 246 A.2d 249, the would-be protestant claimed, inter alia, that the zoning change under consideration would "change the entire character of our community." In rejecting the claim, the Court of Appeals held:
(Emphasis supplied).
In Committee for Responsible Development on 25th Street v. Baltimore, 137 Md. App. at 89, 767 A.2d 906, a similar allegation was made that the presence of a CVS drugstore would have a deleterious effect on the character of the neighborhood generally. Judge Kenney's opinion for this Court, affirming the trial court's ruling that the protestant lacked standing, concluded:
(Emphasis supplied). See also 120 West Fayette Street v. Baltimore, 407 Md. at 270, 964 A.2d 662. A general aggrievement does not confer standing.
With respect to the effort of Ray and Coyne to establish their standing by a showing of special aggrievement, Judge White's ruling of March 20, 2011, was clear:
(Emphasis supplied).
Judge White's Memorandum Opinion elaborated:
(Emphasis supplied).
Judge White's Memorandum Opinion concluded:
(Emphasis supplied).
We completely agree with Judge White's decision, which we hereby affirm.
(Emphasis supplied). In that case, we concluded that the county Office of Planning and Zoning had failed to establish that it was specially aggrieved. 47 Md.App. at 403, 424 A.2d 384.
In Maryland-National Capital Park & Planning Commission v. Smith, 333 Md. 3, 633 A.2d 855 (1993), the Planning Commission sought to establish its entitlement to appeal from a decision by the Board of Appeals: (Emphasis supplied). 333 Md. at 12, 633 A.2d 855. (citation omitted). Judge McAuliffe wrote for the Court of Appeals in holding that the Planning Commission had failed to establish that it was specially aggrieved:
333 Md. at 14, 633 A.2d 855. (Emphasis supplied).
By contrast, this Court held in Hikmat v. Howard County, 148 Md.App. 502, 813 A.2d 306 (2002), that Howard County, representing its Department of Planning and Zoning, did demonstrate sufficient aggrievement to enjoy standing. Judge James Eyler, 148 Md.App. at 520, 813 A.2d 306, wrote for this Court:
For a governmental agency, property ownership is not required, but special aggrievement very definitely is.
(Emphasis supplied).
