A Proposed Maryland General Assembly Bill

Re: Land Use Standing for Taxpayers & Community Associations

            The Falls Road Community Association of Baltimore County (“FRCA”) submits this Draft Community Association Standing Bill in response to the July 13, 2005 decision of the Court of Special Appeals dismissing its appeal in Falls Road Community Association v. Custom Builders Syndicate.

            Between 2002 and today, with the enthusiastic support of its approximately 500 members, the FRCA invested many hours of volunteer time and thousands of contributed dollars to contest a zoning variance granted to a developer.  Until last spring, several FRCA members were individual co-appellants.  But with the ancient weapons of land-owners from England to El Salvador, i.e., some “carrot” (such as special landscaping concessions) and some “stick” (threats of counter-suit as per the attached Affidavit), the developer “persuaded” the individual appellants to dismiss their appeals.  Whereupon the Court of Special Appeals dismissed the FRCA’s appeal, ruling that the variance “does not personally and specifically affect [the FRCA] in a way that is different from the way the ruling affects the public generally.”

            Accordingly, the FRCA respectfully asks the General Assembly to provide by statute for broad community association standing to assert claims in circuit court regarding local land use/zoning decisions as well as the right to appeal adverse circuit court decisions.

Common Law and Associational Standing

            The Court of Appeals has long held that “[under Maryland common law principles, for an organization to have standing to bring a judicial action, it must ordinarily have a ‘property interest of its own – separate and distinct from that of its individual members.’”  Medical Waste Assoc. v. Maryland Waste Coalition, 327 Md. 596, 612 (1992).  Moreover, the Court has held that under our Maryland common law, an organization cannot acquire standing to appeal simply because one or more of its members has standing. Citizens Planning & Housing Ass'n v. County Executive, 273 Md. 333, 345 (1974).

Trend of Courts to Broaden Associational Standing in Federal Courts and Many States

            Under the traditional common law view, civic and property owners' associations, with no direct proprietary interest in the land, have no standing to challenge the violation of a covenant, a zoning violation, a zoning decision, etc.  The willingness of courts, including the Maryland Court of Appeals, to refuse to rule on the merits of land use disputes because an appellant lacks standing is inconsistent with broader rules of standing in related areas and increasingly out of step with pragmatic considerations of modern land use.  In some states, however, there has been a gradual movement away from such technical standing requirements.

            In New York, for example, the movement toward broader associational standing commenced in the 1938 case of Neponsit Prop. Owners' Assn. v Emigrant Indus. Sav. Bank, 278 NY 248, 254, 255 (1938) (reh’g denied, 278 N.Y. 704) and matured in the 1974 case of Douglaston Civic Association v. Galvin, 36 N.Y.2d 1, 324 N.E.2d 317, 321, 364 N.Y.S.2d 830 (1974), in which the Court established the “New York Rule” that the following factors should be considered in determining whether an organization has standing:

            (1)  the capacity of the organization to assume an adversary position;

            (2)  the size and composition of the organization as reflecting a position fairly representative of the community or interests which it seeks to protect;

            (3)  the adverse effect of the decision sought to be reviewed on the group represented by the organization as within the zone of interests sought to be protected; and,

            (4)  whether full participating membership in the representative organization is open to all residents and property owners in the relevant neighborhood.

            During this same period, federal courts also broadened associational standing, culminating in Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977), in which the Supreme Court upheld the right of the Washington State Apple Advertising Commission to challenge a North Carolina statute imposing labeling restrictions on Washington state growers and established the federal rule, a three pronged test for associational standing before federal courts:

            Thus we have recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Advantages of Broader Associational Standing

            Many reasons have been offered by courts and commentators to expand associational standing, including:

            1.  The judicial process should conform to the reality of contemporary life where associations are formed to advance what a few people think is in their own or the public’s interest.  Texas Indus. Traffic League v. Railroad Commn. Of Texas, 1981 Tex. App. LEXIS 4405 n. 9 (1981).

            2.  The adjudication of the claims of many individuals simultaneously avoids repetitious litigation, thus saving the courts time, bother, and expense and reducing the likelihood of conflicting decrees.  Texas Indus. Traffic League v. Railroad Commn. Of Texas, 1981 Tex. App. LEXIS 4405 n. 9 (1981).

            3.  A court is enabled to make a judgment based on a more complete appraisal of the interests involved, which lessens the probability of inaccurate fact finding.  Texas Indus. Traffic League v. Railroad Commn. Of Texas, 1981 Tex. App. LEXIS 4405 n. 9 (1981).

            4.  “[T]he financial strength of the organization practically assures better representation than does reliance on the isolated individual's funds or his hope that a class action will be a fund-raising mechanism for support of his suit.”  Gronemeier, From Net to Sword: Organizational Representatives Litigating Their Members' Claims, 1974 U. Ill. L.F. 663, 669.

            5. “Besides financial resources, organizations often have specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiff's lack.” Id.

            6.  “[A]n organization is not subject to the diversions which often affect individual interests.  An individual's interest in the environment, in employment matters, in housing, or in any other sphere of his existence competes with other interests.  When delegated to an organization, however, the individual interest is isolated from competing interests, and a purification is accomplished. ...  Consequently, organizational suits may provide better representation than class actions and courts that allow class actions should allow organization suits."  Id.

            7.   A “broader rule of standing is entirely consistent with the underlying purposes of our zoning laws.  Our municipalities enact zoning ordinances in order to protect the public's health, welfare and safety.  A challenge to a zoning variance focuses the court's attention on this public interest.”  Douglaston Civic Assoc. v. Galvin, 36 N.Y.2d 1, 7 (1974).

            In sum, as the New York Court of Appeals explained in Douglaston, 36 N.Y.2d at 7, all these rationales must be considered in light of the reality of modern land use disputes,:

            It should be readily apparent that a person desiring relaxation of zoning restrictions __ such as a change from residential to business __ has little to lose and much to gain if he can prevail.  He is not reluctant to spend money in retaining special counsel and real estate appraisers if it will bring him the desired result.  The individual owner of developed land in the neighborhood, on the other hand, may not, at the time, realize the impact the proposed change of zoning will have on his property, or, realizing the effect, may not have the financial resources to effectively oppose the proposed change.  Thus, the neighboring property owners rarely fight as hard for zoning protection as the developer or speculator does for relaxation of zoning restrictions.  Against this background of economic disparity, an individual property owner, who stands only to gain (or prevent the loss of) the maintenance of the status quo as regards the value of his homestead and his peace and quiet, cannot be expected, nor should he be required, to assume by himself the burden and expense of challenging the zoning change.  Even if successful, the aggrieved individual will not be able to recoup his expenditures.  By granting neighborhood and civic associations standing in such situations, the expense can be spread out over a number of property owners, putting them on an economic parity with the developer.

            Because some state courts do not believe that changing the common law of standing to include associations is part of their constitutional role, state legislatures have taken the initiative and enacted legislation broadening standing to include associations.  For example, Alabama, Arkansas, Colorado, Delaware, Hawaii, Idaho, Texas, West Virginia, Wisconsin, and Wyoming are among the states that have enacted the Uniform Unincorporated Nonprofit Association Act which codifies the federal rule on associational standing.

Need for Action by Maryland’s General Assembly

            The Maryland Court of Appeals is among those state courts which have declined to adopt the federal position on associative standing.   Maryland Waste Coalition, Inc. v. Maryland Dep't of Environment, 84 Md. App. 544, 557 (1990), aff’d Medical Waste Assoc. v. Maryland Waste Coalition, 327 Md. 596, 614 (1992).  In fact, the Maryland Court of Appeals has explicitly rejected any expansion of common law standing in areas, such as the environment and land use, where the General Assembly has statutorily created standing requirements.  See, e.g., Medical Waste Assoc., 327 Md. at 623;  Article 66B § 4.08 (expansion of standing to “any taxpayer).

            In Sum, the FRCA respectfully petitions the Baltimore County delegation to the General Assembly to introduce and support legislation to remedy the inability of community associations to represent their members’ interest by appealing local land use decisions because they lack common law standing in Maryland courts.

            The FRCA was founded in 1947 to serve the interests of the citizens of the Falls Road Community.  The Officers and Directors of the FRCA unanimously recommend the attached Proposed Community Association Standing Bill to Baltimore County’s elected delegates and senators for consideration during the upcoming session of the Maryland General Assembly.

Respectfully,

_____________________________

Robert D. Moore

President, Falls Road Community Association

12310 Michaelsford Road

Hunt Valley, MD 21030

410-628-7047, fax -1158

Cell: 410-967-2506

INITIAL DRAFT  11/04/05 Offered For the 2006 Regular Session by the Falls Road Community Association

___________________________________________________________________

By: Delegates or Senators..............

Introduced and read first time: ______________, 2006

Assigned to:

__________________________________________________________

Committee Report: 

House action:

Read second time:

__________________________________________________________

CHAPTER ____

   1  AN ACT concerning

   2  Land Use Regulations & Zoning Appeal Proceedings -

   3  Taxpayers & Community Associations - Standing to Appeal

   4  FOR the purpose of allowing taxpayers and certain community associations to appeal decisions of the board

   5  of appeals or a zoning action of a local legislative body to the appropriate circuit court

   6  of the county or municipality as well as to the Court of Special Appeals; defining the

   7  term “community association”; and generally providing for a broad right of

   8  taxpayers and community associations to appeal local land use and zoning decisions.

   9  BY amending

  10                             Article 66B – Land Use

  11                             Section 1.00 – Definitions

  12                             Annotated Code of Maryland

  13                             and

  14                             Article 66B – Land Use

  15                             Section 1.02.  Charter counties – Limited application of article

  16                             Annotated Code of Maryland

  17                             and

  18                             Article 66B – Land Use

  19                             Section 2.09.  Appeals to courts (Baltimore City)

  20                             Annotated Code of Maryland

  21                             and

  22                             Article 66B – Land Use

  23                             Section 4.08. Appeals to courts

  24                             Annotated Code of Maryland

  25                             SECTION 1. BE IT ENACTED BY THE GENERAL ASSEMBLY OF

  26  MARYLAND, That the Laws of Maryland read as follows:

   1                        Article 66B - Land Use

   2                        Section 1.00. Definitions

   3  (a) In general. __ In this article the following words have the meanings indicated, except where the context clearly

   4  indicates otherwise.

   5  (b) Adaptive reuse. __ "Adaptive reuse" means a change granted by a local legislative body, under § 4.05 of this

   6  article, to the use restrictions in a zoning classification, as those restrictions are applied to a particular improved

   7  property.

   8  (C) COMMUNITY ASSOCIATION –   "COMMUNITY ASSOCIATION" MEANS A MARYLAND

   9  NONPROFIT ASSOCIATION, CORPORATION, OR OTHER ORGANIZATION THAT:

   10                            (I) REQUIRES, AS A CONDITION OF MEMBERSHIP, THE PAYMENT OF

   11  MONETARY DUES AT LEAST ANNUALLY;

   12                            (II) OPENS ITS FULL PARTICIPATING  MEMBERSHIP TO ALL RESIDENTS AND

   13  PROPERTY OWNERS IN THE NEIGHBORHOOD SERVED BY THE COMMUNITY ASSOCIATION;

   14                            (III) IS OPERATED PRIMARILY FOR THE PROMOTION OF SOCIAL WELFARE

   15  AND GENERAL NEIGHBORHOOD IMPROVEMENT AND ENHANCEMENT; AND,

   16                            (IV) HAS ONE OR MORE MEMBERS WITH STANDING TO ASSERT A CLAIM

   17  IN THEIR OWN RIGHT AND NEITHER THE CLAIM ASSERTED NOR THE RELIEF REQUESTED

   18  REQUIRES THE PARTICIPATION OF A MEMBER.

   19  (c) (D) Development. __ "Development" means any activity, other than normal agricultural activity, which

   20   materially affects the existing condition or use of any land or structure.

   21  (d) (E) Development rights and responsibilities agreement. __ "Development rights and responsibilities

   22   agreement" means an agreement made between a governmental body of a jurisdiction and a person having a

   23   legal or equitable interest in real property for the purpose of establishing conditions under which development

   24   may proceed for a specified time.

   25  (e) (F) Local executive. __

   26     (1) "Local executive" means the chief executive of a political subdivision.

   27     (2) "Local executive" includes:

   28           (i) A county executive;

   29           (ii) A board of county commissioners;

   30           (iii) An executive head; or

   31           (iv) A mayor.

   32   (f) (G) Local legislative body. __

   33       (1) "Local legislative body" means the elected body of a political subdivision.

   34       (2) "Local legislative body" includes:

   35              (i) A board of county commissioners;

    1                        Section 1.00. Definitions (Cont.)                

    2              (ii) A county council; or

    3              (iii) A governing body of a municipal corporation.

    4   (g) (H) Local jurisdiction. __ "Local jurisdiction" means a county or municipal corporation and the territory

    5         within which its powers may be exercised. 

    6   (h) (I) Plan. __

    7       (1) "Plan" means the policies, statements, goals, and interrelated plans for private and public land use,

    8             transportation, and community facilities documented in texts and maps which constitute the guide for the

    9           area's future development.

   10       (2) "Plan" includes a general plan, master plan, comprehensive plan, or community plan adopted in

   11             accordance with §§ 3.01 through 3.09 of this article.

   12   (I) (J) Regulation. __ "Regulation" means any rule of general applicability and future effect, including any map or

   13        plan.

   14   (j) (K) Sensitive areas. __ "Sensitive areas" includes:

   15       (1) Streams and their buffers;

   16       (2) 100_year flood plains;

   17       (3) Habitats of threatened and endangered species;

   18       (4) Steep slopes; and

   19       (5) Other areas in need of special protection, as determined in the plan.

   20   (k) (L) Special exception. __ "Special exception" means a grant of a specific use that would not be appropriate

   21        generally or without restriction and shall be based upon a finding that certain conditions governing special

   22        exceptions as detailed in the zoning ordinance exist, that the use conforms to the plan and is compatible with

   23        the existing neighborhood.

   24   (l) (M) Subdivision. __

   25      (1) "Subdivision" means the division of a lot, tract, or parcel of land into two or more lots, plats, sites, or other

   26           divisions of land for the immediate or future purposes of selling the land or of building development.

   27      (2) (i) "Subdivision" includes resubdivision.

   28           (ii) As appropriate to the context, "subdivision" may include either the process of resubdividing or the land

   29                or territory resubdivided.

   30   (m) (N) Variance. __ "Variance" means a modification only of density, bulk, or area requirements in the zoning ordinance that is:

   31       (1) Not contrary to the public interest; and 

   32       (2) Specified by the local governing body in a zoning ordinance to avoid a literal enforcement of the

   33          ordinance that, because of conditions peculiar to the property and not any action taken by the applicant,

   34          would result in unnecessary hardship or practical difficulty.

   1                        Article 66B - Land Use

   2                        Section 1.02.  Charter counties __ Limited application of article 

   3  (a) General limited application. __ Except as provided in this section, this article does not apply to charter counties.

   4  (b) Applicable sections enumerated. __ The following sections of this article apply to a charter county: 

   5    (1) § 1.00 (C) (DEFINITION OF “COMMUNITY ASSOCIATION");

   6    (1) (2) § 1.00 (j) (Definition of "sensitive areas"); 

   7    (2) (3) § 1.01 (Visions);

   8    (3) (4) § 1.03 (Charter county __ Comprehensive plans); 

   9    (4) (5) § 4.01 (b) (2) (Regulation of bicycle parking);

  10    (6) § 4.08 (APPEALS TO COURTS); 

  11    (5) (7) § 5.03 (d) (Easements for burial sites);

  12    (6) (8) § 7.02 (Civil penalty for zoning violation); 

  13    (7) (9) § 10.01 (Adequate Public Facilities Ordinances);

  14    (8) (10) § 11.01 (Transfer of Development Rights); 

  15    (9) (11) § 12.01 (Inclusionary Zoning);

  16    (10) (12) Except in Montgomery County or Prince George's County, § 13.01 (Development rights and

  17                   responsibilities agreements); and 

  18    (11) (13) For Baltimore County only, § 14.02.

  19  (c) Section supersedes inconsistent Article 28 provisions. __ This section supersedes any inconsistent provision

  20       of Article 28 of the Code.

   1                        Article 66B - Land Use

   2                        Section 2.09.  Appeals to courts (Baltimore City) 

   3   (a) Who may appeal; procedure. – ART. 66B § 4.08 ¶¶ A, F, G, & H  APPLY TO BALTIMORE CITY.

   4   (1) An appeal to the Circuit Court of Baltimore City may be filed jointly or severally by any person, taxpayer, or

   5   officer, department, board, or bureau of the City aggrieved by: 

   6      (i) A decision of the Board of Municipal and Zoning Appeals; or

   7      (ii) A zoning action by the City Council. 

   8   (2) A person filing an appeal shall comply with Title 7, Chapter 200 of the Maryland Rules.

   9   (3) This subsection does not change the existing standards for review of any zoning action. 

  10  (b) Hearing; additional testimony. __ The court may hear the appeal on the record or, if the court believes that

  11   additional testimony is required for the proper disposition of the appeal, the court may allow either or both sides

  12   to present additional testimony.

  13  (c) Case heard without jury. __ The court shall hear the appeal without a jury. 

  14  (d) Decision of court; cost of testimony. __

  15        (1) In reviewing a decision of the Board of Municipal and Zoning Appeals, the court may: 

  16               (i) Reverse in whole or part;

  17              (ii) Affirm in whole or part; 

  18              (iii) Modify; or

  19              (iv) Remand for further consideration. 

  20        (2) If an appeal is remanded for further consideration, any testimony taken in court shall be made available to

  21              the Board of Municipal and Zoning Appeals.

  22        (3) The costs of preparing the testimony shall be made a part of the costs of the appeal. 

  23  (e) Appeal to Court of Special Appeals. __ Any decision of the Circuit Court of Baltimore City may be appealed

  24        to the Court of Special Appeals.

  25  (f) Appeal to Baltimore City Court. __ 

  26        (1) In addition to the appeal provided in this section, the Mayor and City Council of Baltimore may allow an

  27             appeal to the Circuit Court for Baltimore City of any matter arising under the planning and zoning laws

  28             of the City of Baltimore.

  29        (2) A decision of the Circuit Court for Baltimore City under this subsection may be appealed to the Court

  30              of Special Appeals. 

  31   (F) (3) This subsection does not restrict any charter power or other power of the Mayor and City Council of

  32               Baltimore.

    1                        Article 66B - Land Use

    2                        Section 4.08. Appeals to courts

[1] 

    3  (a) Who may appeal; procedure. __ 

    4    (1) IN ADDITION TO ANY OTHER STANDING GRANTED BY LAW, Aany of the following persons may,

    5    jointly or severally, appeal a decision of a board of appeals OR ITS EQUIVALENT or a zoning action of a local

    6    legislative body OR ANY MATTER ARISING UNDER THE PLANNING AND ZONING LAWS OF THE

    7   LOCAL JURISDICTION to the circuit court of the county LOCAL JURISDICTION: 

    8      (i) A person aggrieved by the decision or action;

    9      (ii) Any taxpayer; or

   10     (III) ANY COMMUNITY ASSOCIATION; OR 

   11      (iii)(IV) Any officer, department, board, or bureau of the local jurisdiction.

   12    (2) The appeal TO THE CIRCUIT COURT shall be taken in accordance with Title 7, Chapter 200 of the Maryland Rules.

   13    (3) This subsection does not change the existing standards for the review of a zoning action. 

   14  (b) Hearing; additional testimony. __

   15    (1) Except as provided in paragraph (2) of this subsection, an appeal to a circuit court from the decision of a

   16     board of appeals or a hearing examiner under this section shall be decided by the circuit court on the record

   17     transmitted by the board of appeals or hearing examiner, and may not be heard de novo.

   18    (2) If, after a hearing, the court determines that testimony is necessary for the proper disposition of the matter,

   19    the court may take evidence or appoint a referee to take the required evidence and report the evidence to the

   20    court with the referee's findings of fact and conclusions of law. 

   21    (3) The referee's evidence, findings, and conclusions shall constitute a part of the proceedings on which the

   22    determination of the court shall be made.

   23  (c) Costs not allowed against board; exception. __ The circuit court may not allow costs against the board unless

   24   it appears to the court that the board, in making the decision that is the subject of the appeal, acted: 

   25    (1) With gross negligence;

   26    (2) In bad faith; or 

   27    (3) With malice.

   28  (d) Issues under section have preference. __ All issues in any proceeding under this section shall be scheduled

   29  and heard before all other civil actions and proceedings. 

   30  (e) Decision of circuit court; appeal to Court of Special Appeals; costs. __

   31    (1) After deciding an appeal under this section, the circuit court shall file a formal order embodying its final

   32    decision. 

   33    (2) (i) A party may file an appeal from a decision of the circuit court with the Court of Special Appeals, during

   34    the period and in the manner prescribed by the Maryland Rules.

   1      (ii) The Court of Special Appeals may award costs in any appeal to that court under this paragraph. 

   2  (f) Appeal to circuit court. __

   3    (1) In addition to the appeal provided in this section, a local legislative body may allow an appeal to the circuit

   4    court of any matter arising under the planning and zoning laws of the local jurisdiction. 

   5    (2) A decision of the circuit court under this subsection may be appealed to the Court of Special Appeals.

   6  (F) ARTICLE 66B SHALL BE LIBERALLY CONSTRUED TO PROVIDE BROAD ACCESS TO THE

   7  COURTS FOR TAXPAYERS AND COMMUNITY ASSOCIATIONS IN MATTERS INVOLVING LAND

   8  USE OR ZONING. 

    9   (G) THE STANDING GRANTED BY THIS SUBSECTION MAY NOT BE ABRIDGED BY A POLITICAL

   10  SUBDIVISION.

   11  (H) THIS SUBSECTION MAY NOT BE CONSTRUED AS TO GRANT STANDING FOR AN ACTION

   12  LIMITED TO MATTERS IN WHICH A CERTIFICATE, LICENSE,  PERMIT, OR REGISTRATION IS

   13  REQUIRED OR ALLOWED UNDER THE ENVIRONMENT ARTICLE.

    1  SECTION 2. AND BE IT FURTHER ENACTED, That this Act shall be construed

    2  to apply retrospectively and shall be applied to and interpreted to affect any active or pending land use or

    3  zoning proceeding originating in Baltimore County.

    4  SECTION 3. AND BE IT FURTHER ENACTED, That this Act shall take effect

    5  October 1, 2006. 

    6  [ALTERNATIVE EFFECTIVE DATE PROVISION—note the 3/5's requirement for emergency legislation]

    7  SECTION 3. AND BE IT FURTHER ENACTED, That this Act is an

    8  emergency measure, is necessary for the immediate preservation of the public health or safety,

    9  has been passed by a yea and nay vote supported by three-fifths of all the members elected to

   10  each of the two Houses of the General Assembly, and shall take effect from the date it is enacted.

Drafter’s Notes – 11/04/05

            The original version of the Draft Community Association Standing Bill was designed to provide standing only for Baltimore County taxpayers and community associations.  When the original Draft Bill was presented at the October 24, 2005, meeting of the Falls Road Community Association (“FRCA”), however, concerns were raised about equal protection issues if Baltimore County community associations were treated differently than those in other counties.  Accordingly, the following revised Draft represents a significant departure from the original, narrowly drafted legislation by proposing to uniformly extend community association land use standing statewide.  In addition, the Draft Community Association Standing Bill addresses the question that has been raised in case law regarding whether “any taxpayer” has standing to contest land use decisions in charter counties and provides a cleanly bounded definition of “community association” derived primarily from recent U.S. Supreme Court opinions and the Uniform Unincorporated Nonprofit Association Act.

1.  Maryland Code Sections Affected.

      Currently, land use standing provisions are scattered throughout the Maryland Code and local legislation.  The dispersion of standing provisions results from the three different types of local governments available in Maryland.  There are three forms of county government (county commissioners, charter, & code home rule) as well as municipal governments (such as Baltimore City).  Baltimore County adopted the charter county form of local government in 1956.

      Md. Ann. Code Article 25A, § 5 (“Express Powers Act”) governs the establishment of the county boards of appeals and standing requirements for charter counties while Md. Ann. Code Article 66B governs the establishment of boards of appeal and standing requirements for non-charter counties.  In the past, the courts have questioned whether the differences in standing requirements among the local subdivisions might present an equal protection problem since Article 66B expressly provides standing to “any taxpayer.”  No case, however, has rendered a decision on that particular point.  The Draft Bill, in response to possible equal protection issues, provides basic, statewide standing requirements for taxpayers and community associations.  The approach taken in the Draft Bill is also meant to be compatible with the court’s discussion of state preemption with regard to access to the state appellate courts.  Holland v. Woodhaven Bldg. & Dev., 113 Md. App. 274, 288 (1996)(state preemption in area of land use standing is an open question).

      The vehicle chosen for specifying statewide land use standing requirements is the “Limited Application” provision found in Md. Ann. Code Article 66B § 1.02.  The “except as provided in this section” clause of § 1.02(a) opens the door for application of some Article 66B provisions to some or all charter counties.  The proposed language that actually defines community association is proposed for Article 66B § 1.00 and the language extending standing to all taxpayers and community associations is proposed for inclusion in Article 66B § 4.08 and made applicable to charter counties via Article 66B § 1.002.  The Draft also proposes, for equal protection reasons, to conform the Baltimore City standing provision of Article 66B § 2.09 with § 4.08 but, should any objections arise, the proposed changes to § 2.09 could be dropped.

2.  Definition of “Community Association.” [§ 1.00(c): page 2, lines 8–18]

      The Draft Community Association Standing Act incorporates the three pronged federal rule on associational standing but it also draws from the New York rule (in particular the requirement for open membership) and the definition of “Community Association” in the Baltimore County Community Rights Act, Real Property § 14-125 (which is based on the definition from the original community rights act from Baltimore City, Real Property § 14-123).  The alternative definition of “Community Association” found in Baltimore County Code § 32_4_281 was not used as a source because it is unduly restrictive in that it uses the common law notion of  “impact...different from that suffered by the members of any other associations or ... the public.”

      The proposed definition of community association does not require all members to have individual standing primarily since “i[]n reality, whether a person has individual standing to challenge a zoning action is a subjective inquiry and can be a difficult determination for attorneys and judges, let alone lay people, to make.”  Northeast Concerned Citizens, Inc. v. City of Hickory, 143 N.C. App. 272, 281 (N.C. Ct. App. 2001).  Further, to have trial courts engaging in full_scale inquiries regarding the individual standing of every member of an association seeking to challenge a zoning decision would be a tremendous waste of judicial resources.  Id.

3.  Charter Counties and “Any Taxpayer” [§ 1.02(b)(6): Page 4, Line 10].

      Although the Appellee’s Motion to Dismiss in the Smyth case seemed to accept that “any taxpayer” would have standing under Article 66B § 4.08, there are some questions that could arise from the fact that Baltimore County is a charter county and, therefore, standing is normally determined by Article 25A.  Regardless, the inclusion of “taxpayer standing” in the Draft Community Association Standing Bill via  Article 66B § 1.02(b)(6) eliminates the question.

      The Maryland Court of Special Appeals has narrowly interpreted “any taxpayer” to mean, for Article 66B standing purposes, “a property taxpayer within [the local board of appeals’] jurisdiction.”  Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md. App. 479, 506–7 (2003).  In addition, the “all taxpayers” standing language in § 4.08 has been interpreted by the Court of Appeals as not requiring aggrievement, Boulden v. Mayor & Comm'rs, 311 Md. 411, 417 (1988).

4.  Additional Standing [§ 4.08(a)(1): Page 6, Line 4].

      The “In addition to” portion of the express grant of standing is intended to prevent the court from ruling that the existence of a more restrictive grant of standing somewhere in the law will trump the association standing granted by this Draft.  This also works to minimize the Express Powers Act argument since “association standing” is an additional grant of court access, not a limitation of an express power.

5.  “Any Community Association” [§ 4.08(a)(1)(iii): Page 6, Line 10].

      “Any Community Association” must be interpreted in light of § 1.00(c)(iv) which requires at least one member of the “community association” to have “standing to assert a claim in their own right.”  Thus, an association whose members are outside the local jurisdiction where a matter arises is not included in the term “any community association” as used in § 4.08(a)(1)(iii).

6.  Liberal Construction [§ 4.08(f): Page 7, Lines 6–8].

      The “Liberal Construction” clause is intended to reduce the likelihood that the standing of a community association will be seriously contested and, if contested, the court is directed to give “close calls” to the community association.  Community associations need to avoid unnecessary legal battles over the threshold issue of standing in order to conserve limited budgetary funds for the legal fees which are incurred during the appeals of the contested land use decision.

7.  Precedence Over Local Legislation [§ 4.08(g): Page 7, Lines 9–10].

      The Draft’s express prohibition on local repeal of expanded standing is in keeping with the Rossberg rule giving priority to public general law over a local ordinance.  Rossberg v. State, 111 Md. 394, 416 (1909)  As for possible conflict with  the Express Powers Act, discussed supra in ¶¶ 1 & 4, see Boulden v. Mayor & Comm'rs, 311 Md. 411, 417 (1988).

8.  No Change in Environmental Standing [§ 4.08(h): page 7, lines 11–13].

      The Draft Community Association Standing Bill retains the same “hands off” language with respect to Environment Article proceeding standing as the Baltimore County Community Rights Act, Real Property § 14-125.  The motivation for this Draft Bill is an adverse standing decision in a land use case, not an environmental contested hearing.  Thus, politically, avoidance of the environmental standing issue should make the draft legislation easier to move through the General Assembly.  Efforts to revise environmental standing are reserved for another day.

9.  Section 2: Retrospective Effect of Legislation [page 8, lines 1–3].]

      The Court of Appeals has repeatedly recognized the right of the General Assembly to expressly determine whether or not legislation is to be applied retrospectively. Washington Suburban Sanitary Com. v. Riverdale Heights Volunteer Fire Co., 308 Md. 556, 568 (1987) (“when the General Assembly intends a statute to have a retrospective application, it knows how to express that intent”); Purifoy v. Mercantile__Safe Deposit & Trust Co., 273 Md. 58, 67 (1974) (statute retrospectively affecting wills executed prior to June 1, 1947 held valid).  Thus, the Retroactivity Clause in Section 2 would exercise that right and render moot the difficult question of whether the courts would classify the proposed expansion of community association standing as a procedural matter to be applied retrospectively or a substantive matter to be applied prospectively.  See: Holland v. Woodhaven Bldg. & Dev., 113 Md. App. 274, 284 (1996) (“While standing could be characterized as a procedural question only, [cite omitted], it also could be characterized as a substantive matter”).

Drafted by:

Allen R. Dyer, Esq.

aldyer@lawlab.com   410-531-3965