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Opinions – 1/31/13: Maryland Court of Appeals

Civil Procedure

Res judicata 

BOTTOM LINE: Where plaintiff filed a medical malpractice claim while appealing the grant of summary judgment on an identical claim, his second action was barred by res judicata, and the fact that the summary judgment ruling was later reversed does not change that analysis; in addition, appellant failed to preserve his claims by requesting appropriate stays, and there was no clear and convincing evidence of fraud, irregularity, or mistake in the lower court proceedings.

CASE: Powell v. Breslin, No. 11, Sept. Term, 2012 (filed Jan. 18, 2013) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & McDonald). RecordFax No. 13-0118-20, 23 pages.

FACTS: In July 2004, Ronald Powell filed a Statement of Claim with the Maryland Health Care Alternative Dispute Resolution Office (HCADRO), together with a Certificate of Qualified Expert and Report (Certificate), alleging medical malpractice, which resulted in the death of his father, against Dr. Wolf, Hunt Valley Anesthesia Associates, P.A., Good Samaritan Hospital, Jeffrey Breslin, M.D. and his professional association, Drs. Kremen, Breslin & Fraiman, P.A. (Dr. Breslin and the P.A. are referred to collectively as Breslin). Powell served notice of intent to waive arbitration and the case was transferred to the circuit court.

A deposition of Powell’s expert revealed that he was unable to attest to the applicable standard of care for vascular surgeons. Consequently, the circuit court granted summary judgment to Breslin. After the claims against Dr. Wolf and Hunt Valley Anesthesia Associates, P.A., were resolved through settlement and they were dismissed from the case, Powell appealed the grant of summary judgment. The intermediate appellate court held that, when a Certificate is insufficient as a matter of law under CJ §3-2A-04(b), the appropriate remedy is to dismiss the suit, without prejudice. The Court of Appeals affirmed that judgment in Breslin v. Powell, 421 Md. 266 (2011) (Powell I), and directed ultimately the vacation of the trial judge’s grant of summary judgment. On remand in Powell I, the complaint was dismissed without prejudice. By that time, however, the statute of limitations had expired on the underlying merits of the substantive claims.

In February 2007, Powell filed a second, identical Statement of Claim as had been filed initially with the HCADRO in Powell I, along with a Certificate and waived arbitration. (Powell II). The claim was transferred to the circuit court. Breslin filed a motion for summary judgment on the ground that the doctrine of res judicata, relying on the adjudication of Powell I (which, at that time, was on appeal), barred the relitigation in Powell II. The circuit court granted the motion. The clerk of the circuit court, however, failed to mail copies to the parties of the order granting summary judgment in Powell II. Therefore, pursuant to the court’s revisory power over a judgment under Rule 2-535(b), the circuit court vacated the grant of summary judgment and granted summary judgment anew.

Powell appealed the final judgment in Powell II, which resulted in concurrent appeals pending before the Court of Special Appeals: Powell v. Breslin, 195 Md. App. 340 (2010) (Powell I), and Powell v. Breslin, No. 2316, September Term, 2008 (Powell II). Powell later dismissed his appeal in Powell II.

Almost three years after the entry of final judgment in Powell II, and more than two years after Powell dismissed his appeal in that case, Powell filed a motion to reopen case and vacate judgment. The motion was denied.

Powell appealed to the Court of Special Appeals. While the matter was pending in the intermediate appellate court, Powell filed a petition for writ of certiorari with the Court of Appeals, which was granted.

The Court of Appeals affirmed.

LAW: Res judicata is an affirmative defense that precludes the same parties from relitigating any suit based upon the same cause of action because the second suit involves a judgment that “is conclusive, not only as to all matters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.” See Alvey v. Alvey, 225 Md. 386, 390 (1961).

In Maryland, the doctrine of res judicata precludes the relitigation of a suit if (1) the parties in the present litigation are the same or in privity with the parties to the earlier action; (2) the claim in the current action is identical to the one determined in the prior adjudication; and (3) there was a final judgment on the merits in the previous action. Colandrea v. Wilde Lake Cmty. Ass’n, Inc., 361 Md. 371, 389 (2000).

The same parties and the same claims were raised in Powell I and Powell II. Id. at 389. The grant of summary judgment in Powell I was a final judgment on the merits at the time that it was entered and, therefore, was conclusive as to the matters decided in that case, as well as to “all matters which with propriety could have been litigated in the first suit.” See Alvey, 225 Md. at 390. Hence, Breslin was entitled to summary judgment as a matter of law in Powell II because the claims raised in that case were disposed of by the circuit court’s then-valid adjudication of Powell I. See Fledderman v. Fledderman, 112 Md. 226, 239 (1910).

Even if a ruling in an original suit was found later to be in error, “[t]he mere fact that the prior ruling is wrong does not deprive it of res judicata effect.” See Garrett Park v. Montgomery Cty. Council, 257 Md. 250, 256-58 (1970).

Furthermore, at the time that the hearing on Breslin’s motion for summary judgment in Powell II had been conducted, Powell was continuing to litigate concurrently an identical claim in Powell I, as he had filed a motion to alter or amend judgment nunc pro tunc in Powell I, which yet had to be decided. Powell had filed also a motion for reconsideration of the grant of summary judgment in Powell I, which had been denied also. Such a multiplicity of litigation epitomizes the very hazards that the doctrine of res judicata seeks to avoid: the costs of time, the waste of judicial resources, and the increased possibility of inconsistent judicial decisions and action. See Colandrea, 361 Md. at 389.

Therefore, the circuit court properly granted Breslin’s motion for summary judgment in Powell II.

COMMENTARY: Rule 2-535(b) requires a showing, by clear and convincing evidence, that a proceeding was infected with fraud, mistake, or an irregularity. Tandra S. v. Tyrone W., 336 Md. 303, 314 (1994). See also CJ §6-408. The overarching aim of Rule 2-525(b), therefore, is the preservation of the finality of judgments, unless specific conditions are met.

Under Rule 2-535(b), fraud is defined as an event that is “collateral to the issues tried in the case where the judgment is rendered[,]” such as “whether the fraud prevented the actual dispute from being submitted to the fact finder at all.” Hresko v. Hresko, 83 Md. App. 228, 232 (1990). No form of extrinsic fraud was found here.

“Mistake” narrowly includes jurisdictional error, such as when judgment “has been entered in the absence of valid service of process; hence, the court never obtains personal jurisdiction over a party.” Tandra S., 336 Md. at 317. The lower courts had jurisdiction patently over the parties and the subject matter of this action. There was no mistake.

Third, there was no relevant evidence of procedural uncured irregularity. The Court of Appeals has defined “irregularity,” for the purposes of Rule 2-525(b), as a failure to follow required procedure or process. Early v. Early, 338 Md. 639, 653 (1995). The summary judgment entered in Powell I, despite being afforded preclusive effect before being found erroneous, is not an “irregularity” within the meaning of the Rule. Rather, the only example of procedural irregularity was in the circuit court clerk’s failure to mail to all parties copies of the order granting summary judgment in Powell II. As a result of this irregularity, Powell was not able to file an appeal until the irregularity was cured, pursuant to Rule 2-535.

Powell failed to allege or demonstrate by clear and convincing evidence that Rule 2-535(b) applied to his benefit. Therefore, the trial judge did not abuse her discretion in denying Powell’s motion to reopen case and vacate judgment.

PRACTICE TIPS: When parallel related cases are pending judicial action simultaneously, a proper tactical decision may be to file a motion to stay one proceeding while the other proceeding is prosecuted to exhaustion, in order to preserve the opportunity to pursue the stayed suit’s claim, if necessary. See Md. Reclamation Assocs. v. Harford Cnty, 382 Md. 348, 367 (2004).

Labor & Employment

Line-of-duty disability benefits 

BOTTOM LINE: Respondent was entitled to line-of-duty disability benefits because the hearing examiner found that he met the statutory requirements independent of any preexisting physical conditions.

CASE: Employees’ Retirement System of the City of Baltimore v. Dorsey, No. 29, Sept. Term, 2012 (filed Jan. 23, 2013) (Judges Bell, Battaglia, Greene, Adkins, BARBERA & McDonald). RecordFax No. 13-0123-21, 21 pages.

FACTS: Sylvester Dorsey began his employment with the City of Baltimore as a school police officer in August 2005. While on-duty on August 31, 2007, Dorsey was involved in an altercation with a student’s parent. During that incident, Dorsey injured his lower back. Dorsey was unable ever to return to full work duty.

On January 17, 2009, the City of Baltimore terminated Dorsey’s employment. Dorsey subsequently filed an application for line-of-duty disability retirement. At a hearing on the claim, Dorsey testified that following the August 2007 incident he developed sharp constant pain down the back of the right leg into the foot. Dorsey had weakness in the leg causing his knee to buckle. He also had difficulty walking up and down stairs. On one occasion, Dorsey fell down the stairs after his legs “gave out.” Dorsey separated his right shoulder as the result of that fall. He testified that as the result of the shoulder injury he suffered pain and had difficulty lifting, pushing and pulling. He also experienced constant pain in his back.

Dorsey’s treatment records disclosed that prior to the hearing five MRIs were taken of his back; he received a series of steroid injections; and a nerve conduction study and decompression surgery were performed. Several evaluating and treating physicians noted asymptomatic degenerative disc disease pre-dating the August 2007 injury. At least two of them opined about the degree to which that preexisting back condition affected Dorsey’s then-current level of disability.

The hearing examiner found that Dorsey had a 25% impairment to his right arm and a 25% impairment to his back as a result of the work injury, and an additional 15% impairment to his back due to degenerative disc disease that was asymptomatic prior to the injury but became symptomatic following the injury. The hearing examiner denied the application for line-of-duty disability retirement, finding that Dorsey did not satisfy the statutory requirements because the impairment to his back was not independent of all other causes. The circuit court reversed. The Court of Special Appeals affirmed

Baltimore appealed to the Court of Appeals, which affirmed.

LAW: Article 22, §9(j) requires a claimant seeking line-of-duty disability retirement benefits to prove that he or she sustained at least a “50% anatomical loss of the use of any 1 or at least a 25% or more anatomical loss of each of 2 or more” enumerated body parts. §9(j)(5)(ii), (iii). The loss of use must be “the direct result of bodily injury through an accident independent of all other causes and independent of any preexisting physical or medical conditions.” §9(j)(1)(ii).

Under §9(p)(11)(iv), the hearing examiner, in order to find that the claimant has met that burden of proof, must determine specifically “whether the [claimant’s] disability is, independent of any preexisting physical or medical condition,…the direct result of a bodily injury arising through an accident that occurred” within the requisite time frame, while the claimant was acting in the line of duty and without willful negligence.

“The cardinal rule of statutory interpretation is to ascertain and effectuate the real and actual intent of the Legislature. A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.” Gardner v. State, 420 Md. 1, 8 (2011). “[W]here the statutory language is plain and free from ambiguity, and expresses a definite and simple meaning, courts do not normally look beyond the words of the statute itself to determine legislative intent.” Dep’t of Human Resources v. Hayward, 426 Md. 638, 650 (2012). “[T]he plain language must be viewed within the context of the statutory scheme to which it belongs, considering the purpose, aim, or policy of the Legislature in enacting the statute.” Gardner, 420 Md. at 9. The retirement system is remedial legislation and, as such, “must be construed liberally in favor of injured employees in order to effectuate the legislation’s remedial purpose.” Marsheck v. Board of Trustees of the Fire & Police Employees’ Ret. Sys., 358 Md. 393, 402 (2000).

The language of subsections 9(j)(1)(ii) and (p)(11)(iv) plainly means the claimant must prove at least a 50% loss of a single scheduled “impairment,” or a 25% loss of each of two scheduled impairments, is directly attributable to the line-of-duty injury, and no part of either version of the minimum 50% loss threshold can be attributable to an independent, preexisting condition. Further, those subsections, plainly read, do not bar an otherwise eligible claimant from receiving line-of-duty disability retirement simply because the claimant has a preexisting condition that inflates the disability to a higher percentage than the required threshold of 50% under either alternative.

To read the language as the ERS does would lead to a nonsensical result, one which we cannot assume the Baltimore City Council intended. Furthermore, even the pertinent language of §9(j)(1)(ii) and its counterpart language in §9(p)(11)(iv) is susceptible to two equally reasonable but contrary constructions, the result would be the same. In that instance the remedial nature of the line-of-duty disability retirement scheme would necessitate resolving the resulting ambiguity in favor of Dorsey. See Marsheck, 358 Md. at 403.

Here, the hearing examiner found that Dorsey has 25% impairment to his back and 25% impairment to his right arm due to the assault which occurred in the line of duty on August 31, 2007. That factual finding satisfied the requirements for obtaining line-of-duty disability retirement under the statute. That the hearing examiner continued beyond those findings to determine there was 15% impairment to Dorsey’s back due to the preexisting degenerative disc disease was mere surplusage immaterial to the requirements of the ordinance. That degree of incident-based impairment is “independent of all other causes and independent of any preexisting physical or medical conditions.”

In light of the undisputed finding by the hearing examiner that Dorsey sustained 25% impairment of his right arm attributable to the August 2007 incident, the ordinance merely requires that he have at least an additional 25% impairment of his back directly attributable to the accident, which the hearing examiner found Dorsey did. Consequently, the hearing examiner, having made those findings, committed a legal error in denying Dorsey’s application for line-of-duty disability retirement.

COMMENTARY: The Court of Special Appeals vacated the portion of the circuit court’s order in which that court granted Dorsey’s application for line of duty disability retirement benefits, because the circuit court had exceeded its authority by ordering that relief. Employees’ Ret. Sys. v. Dorsey, 203 Md. App. 304, 321 (2012). The Court of Special Appeals remanded the case to the circuit court, to remand the case to the administrative agency to order that Dorsey was entitled to line-of-duty disability retirement benefits. Id.

PRACTICE TIPS: Under Maryland’s workers’ compensation scheme, a preexisting condition that is worsened by an accidental injury does not automatically disqualify an employee from receiving workers’ compensation benefits, provided there is some causal relationship between the compensable accident and the injury sustained. See, e.g., Reeves Motor Co. v. Reeves, 204 Md. 576, 582 (1954).


Property tax exemption for convent 

BOTTOM LINE: An apartment complex owned by a church and used to house workers who perform religious ceremonies constitutes a convent and, therefore, the church is entitled to a property tax exemption.

CASE: B. Marie Green, Supervisor Assessments of Montgomery County v. Church of Jesus Christ of Latter-Day Saints, No. 35, Sept. Term, 2012 (filed Jan. 23, 2013) (Judges Bell, Harrell, Greene, Adkins, BARBERA, McDonald & Wilner (retired, specially assigned)). RecordFax No. 13-0123-20, 25 pages.

FACTS: The Church of Jesus Christ of Latter-day Saints (the “Church”) sought an exemption from paying property tax on an apartment complex in Montgomery County, Maryland. The Church owns and uses the complex to house a revolving group of workers who perform religious ceremonies full-time for a two-year period at the Church’s Washington, D.C. Temple. Between 50 to 60 workers live in the complex, the majority of whom are retired, married couples. The workers worship together as a ward each Sunday at a chapel located on the Temple grounds.

In 1979, the Church was granted an exemption pursuant to Article 81, §9(c), the then-applicable provision of the Maryland Code. The Church received the exemption until 2008, when the Supervisor of Assessments of Montgomery County determined that the apartment complex should not receive a tax exemption. The Property Tax Assessment Appeals Board for Montgomery County affirmed the decision of the Supervisor of Assessments.

The Maryland Tax Court affirmed the decision of the Property Tax Assessment Appeals Board denying an exemption to the apartment complex. The Tax Court decided that the complex does not qualify as a parsonage or a convent under the “ordinary and usual meaning of the words in the statute.”

The Church filed a petition for judicial review by the circuit court. The circuit court reversed the decision of the Tax Court and ruled that the apartment complex qualified both as a parsonage and a convent and should be granted a tax exemption. The Court of Appeals, on its own motion, granted a writ of certiorari in the case and affirmed.

LAW: TP §7-204 provides that property owned by a religious group or organization is exempt from property tax if the property is actually used exclusively for: “(1) public religious worship; (2) a parsonage or convent; or (3) educational purposes.”

The meaning of the words parsonage and convent is a matter of statutory construction and thus purely a legal question. See Marsheck v. Bd. of Trs. of the Fire & Police Employees’ Ret. Sys. of the City of Baltimore, 358 Md. 393, 402 (2000). Factors to be considered in determining the weight to be given to the Tax Court’s interpretation include “the duration and consistency of the administrative practice, the degree to which the agency’s construction was made known to the public…[and] the extent to which the agency engaged in a process of reasoned elaboration in formulating its interpretation and the nature of the process through which the agency arrived at its interpretation.” Stachowski v. Sysco Food Servs. of Baltimore, Inc., 402 Md. 506, 517 (2007). When, however, the record does not reveal much, if anything, about the administrative practice of an agency, then this principle is not applicable. See Montgomery County v. Deibler, 423 Md. 54, 62-63 n.2 (2011).

As to the interpretation of the word convent, there does not appear to be a record of a long-standing practice in the Tax Court of construing the term. Furthermore, the record does not suggest that the Tax Court, in construing convent as it did, relied on a long-standing practice of that court to employ such a construction. Instead, the Tax Court appeared to rely on case law and dictionary definitions of the word in order to ascertain the meaning of it and, only then, applied that meaning to decide, ultimately, that the Church’s property at issue was not a convent. Under these circumstances, no deference was owed to the Tax Court’s construction of this term. Instead, the Court made an independent determination of the meaning of the statutory language at issue.

“A court’s primary goal in interpreting statutory language is to discern the legislative purpose, the ends to be accomplished, or the evils to be remedied by the statutory provision under scrutiny.” Gardner v. State, 420 Md. 1, 8 (2011). When the words of a statute are ambiguous, the Court attempts to resolve that ambiguity “by searching for legislative intent in other indicia, including the history of the legislation or other relevant sources intrinsic and extrinsic to the legislative process.” Id. at 9. “If any real doubt exists as to the propriety of [a tax] exemption that doubt must be resolved in favor of the State.” Supervisor of Assessments v. Keeler, 362 Md. 198, 208 (2001).

The word convent is not defined in either §7-204 or elsewhere in the statute. All that is apparent from the statute is that a property asserted to be a convent must be affiliated with a “religious group or organization” and not be used exclusively for public religious worship or educational purposes, because those uses are listed separately as reasons for granting an exemption. This narrows the meaning of the term but offers little by way of affirmative guidance.

The 1970 report of the Maryland Legislative Council Committee on Taxation and Fiscal Matters sheds some light on the thinking of lawmakers at the time the exemption was created. The report notes that the exemption is designed to benefit “religious orders,” including atheistic organizations. The report views the Court of Appeals as holding in Morning Cheer, Inc. v. Board of County Comm’rs, 194 Md. 441 (1950), that “[a]ny property actually used for religious purposes is exempt.” Additionally, the report summarizes the holding in Murray v. Comptroller of the Treasury, 241 Md. 383 (1966), as being that the property of an atheistic group is entitled to a tax exemption.

Although the Court strictly construes the language of property tax exemptions, it has generally taken a common-sense approach when it comes to religious exemptions, in order to achieve a fair construction of the statute. See Keeler, 362 Md. at 222; Morning Cheer, 194 Md. at 444.

The Tax Court stated that the definitions of convent and monastery do not include married men and women and single persons living separate lives in separate households. Additionally, the Tax Court required “vows of poverty, chastity and obedience to a superior” in the vein of “a typical monk or nun.” Furthermore, the Tax Court ruled that convent members must “make lifetime commitments like nuns and monks” and “keep a common purse or share things in common.”

Reviewing the definitions offered by the parties, the Tax Court’s definition of what constitutes a convent is too narrow and should not be the exclusive interpretation of that term. There are two main qualities shared by most of the definitions: a convent is (1) a community of people who are (2) bound by strict religious vows. The general secondary meaning of convent is the building where a community of people bound by these vows lives together. Marital status is not a part of these definitions. Nor are specific vows of poverty, chastity, and obedience. The words monk and nun are frequently used in describing convents and monasteries, but there is no indication of what qualities a “typical” monk or nun must possess. The definitions also do not mention lifetime commitments, common purses, or paying rent to a church.

Distilling the various definitions offered, there are several basic qualities a convent must contain in order to be eligible for a tax exemption: A convent consists of a community of people who live together, follow strict religious vows, and devote themselves full-time to religious work. This definition does not expand impermissibly the scope of the property tax exemption, and it avoids an unduly narrow reading of the statute.

Accordingly, the Tax Court applied an incorrect legal standard in determining whether the apartment complex qualified as a convent for purposes of §7-204. The facts were not in dispute, and, based on the record as developed by the parties, the apartment complex qualified as a convent. The workers qualify as a “community of people who live together.” Although the workers inhabit separate units within the apartment complex, they live together at one location, socialize, and worship together as a group every Sunday. In addition, the workers “follow strict religious vows” and are removed from their positions working in the Temple if they forsake them. Finally, the workers “devote themselves full-time to religious work,” as they spend their days each week during their two-year commitment performing religious ceremonies within the Temple, and they hold no outside employment.

Therefore, the Church was entitled to a property tax exemption for the apartment complex.

COMMENTARY: Parsonage is “a house supplied to a parish minister by the parish congregation or church.” East Coast Conference of the Evangelical Covenant Church of America, Inc. v. Supervisor of Assessments, 40 Md. App. 213, 215-16 (1978).

The circuit court found that the Tax Court erred in interpreting East Coast as requiring that a minister living in a parsonage have a “local” congregation, noting that East Coast Conference dealt with a minister who had no congregation in the area at all. However, because the apartment complex is a convent, it was unnecessary to decide in this case whether the Tax Court erred in its interpretation of the word parsonage.

PRACTICE TIPS: Courts “are not at liberty to broaden the application of tax exemptions to include property not specifically enumerated in a tax exemption statute.” Supervisor of Assessments v. Trustees of Bosley Methodist Church Graveyard, 293 Md. 208, 218 (1982).


Standing to challenge PUD approval 

BOTTOM LINE: Petitioners lacked standing to seek judicial review of the decision of the Baltimore City Council where Petitioners failed to establish that they have been specially aggrieved in a manner different than the public generally.

CASE: Ray v. Mayor and City Council of Baltimore, No. 21, Sept. Term, 2012 (filed Jan. 22, 2013) (Judges Bell, Harrell, Battaglia, Greene, ADKINS, Barbera & McDonald). RecordFax 13-0122-20, 29 pages.

FACTS: In November 2010, the Baltimore City Council passed Ordinance 10-397, which approved a Planned Unit Development (“PUD”) for an 11.5-acre tract of land known as the “25th Street Station.” The PUD authorizes a mixed-use development located in the Remington and Charles Village neighborhoods of Baltimore City.

Benn Ray and Brendan Coyne filed a petition for judicial review of the PUD’s approval. Ray resides in the Remington neighborhood. His residence is 2,212.39 feet, or approximately 0.4 miles, away from the PUD. Ray claimed that he can see the PUD site from his second-floor bathroom during the winter months of the year, and that he can hear noise from the PUD site when his second-floor bathroom window is open. He believes that the PUD will increase traffic in front of his home. Ray also believes that the Wal-Mart planned to be part of the project will change the character of his neighborhood.

Coyne resides in the Charles Village neighborhood. His residence is 2,002.18 feet, or approximately 0.4 miles, away from the PUD. Coyne’s main contention is that the PUD, and specifically the planned Wal-Mart store, will adversely change the character of his neighborhood because the Wal-Mart store will force out many local businesses that he frequents, resulting in vacant buildings in his neighborhood. Coyne claims that he is familiar with property values in the neighborhood and believes that these adverse effects will make “Charles Village a less desirable place to live,” thereby decreasing the value of his home.

The Mayor and City Council of Baltimore City, the owners of the subject property, and the developers of the PUD, all filed motions to dismiss the petition for judicial review, alleging that Petitioners lacked standing to challenge the PUD. The circuit court granted the motions. The Court of Special Appeals affirmed.

Ray and Coyne appealed to the Court of Appeals, which affirmed.

LAW: Article 66B, §2.09(a)(1)(ii) provides that an appeal to the circuit court may be filed by any person aggrieved by a decision of the Board of Municipal and Zoning Appeals or by a zoning action by the City Council. A “person aggrieved” is “one whose personal or property rights are adversely affected by the decision of the board. The decision must not only affect a matter in which the protestant has a specific interest or property right but his interest therein must be such that he is personally and specially affected in a way different from that suffered by the public generally.” Bryniarski v. Montgomery County Board of Appeals, 247 Md. 137, 144 (1967).

“An adjoining, confronting or nearby property owner is deemed, prima facie, to be specially damaged and, therefore, a person aggrieved.” Id. at 145. Second, “[a] person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved…[unless] he meets the burden of alleging and proving…that his personal or property rights are specially and adversely affected.” Id.

Maryland courts have accorded standing to challenge a rezoning action to two types of protestants: those who are prima facie aggrieved and those who are almost prima facie aggrieved. A protestant is prima facie aggrieved when his proximity makes him an adjoining, confronting, or nearby property owner. A protestant is specially aggrieved when she is farther away than an adjoining, confronting, or nearby property owner, but is still close enough to the site of the rezoning action to be considered almost prima facie aggrieved, and offers “plus factors” supporting injury. Here, Ray and Coyne conceded that they were not prima facie aggrieved as they both reside approximately 0.4 miles from the PUD.

Although there is no bright-line rule for who qualifies as “almost” prima facie aggrieved, there are no cases, in which a person living over 2000 feet away, has been considered specially aggrieved. Rather, this category has been found applicable only with respect to protestants who lived 200 to 1000 feet away from the subject property. See Habliston v. Salisbury, 258 Md. 350 (1970); Chatham Corp. v. Beltram, 252 Md. 578 (1969). Protestants who lived more than 1000 feet from the rezoning site have repeatedly been denied standing. See Shore Acres Improvement Ass’n, Inc. v. Anne Arundel Cnty. Bd. of Appeals, 251 Md. 310 (1968); White v. Major Realty, Inc., 251 Md. 63 (1968).

Protestants who reside far away from the rezoned site and cannot establish special aggrievement through proximity can only look to the theoretically recognized, but never before found in fact, third category of standing that requires a showing that the reclassification produces a harm directly and specifically impacting their property. See Bryniarski, 247 Md. at 145.

Ray and Coyne found harm in the change in the character of the neighborhood they say will result from the PUD, specifically the planned Wal-Mart. To support this proposition, they cited Bryniarski, 247 Md. 137, and Wier v. Witney Land Co., 257 Md. 600 (1970). However, Bryniarski and Wier are distinguishable because those cases dealt with prima facie aggrievement. See Bryniarski, 247 Md. at 146-47; Wier, 257 Md. at 613. Although both cases mentioned a change in the character of the neighborhood, the primary basis for their holdings was the protestants’ proximity, a circumstance not present in the current case.

Ray’s and Coyne’s allegations of change in the neighborhood were not sufficient to show special aggrievement because they failed to identify a harm that directly impacts their properties. They complained that the commercial establishments now existing in their neighborhood will close because of competition from Wal-Mart, and that they will become vacant buildings, which are detrimental to a community. Yet, they failed to show that any of these businesses, whether open or closed, affect them in a manner distinct from the general public.

Ray argued that he had standing to sue based on his belief that the PUD would increase traffic, making it more dangerous for him to drive because of the narrow streets in the area. There are no cases where a protestant who was 0.4 miles from the rezoned property was granted standing based on a claim of increased traffic. On the contrary, there is an overwhelming weight of authority that claims of increased traffic, by protestants who lack close proximity, are insufficient to prove special aggrievement. See, e.g., Shore Acres, 251 Md. at 318; Wilkinson v. Atkinson, 242 Md. 231 (1966). Thus, Ray’s claim of increased traffic was not sufficient to show special aggrievement.

Ray also argued that he had standing because he can see the PUD from his second-floor bathroom window during the winter months. Such claims have been rejected as insufficient to show special aggrievement. See Wilkinson, 242 Md. at 235.

Finally, Coyne makes an evidentiary argument. He maintained that he had standing because the development of the PUD will adversely affect the value of his property, but the circuit court ruled such testimony inadmissible. Because the circuit court did not consider Coyne’s testimony, this claim of aggrievement requires a different analysis than the others. Review was focused not on whether the evidence was sufficient to show special aggrievement, but whether the circuit court was legally correct in ruling that an owner’s lay opinion testimony about future fluctuations in the value of his property is inadmissible.

In Brannon v. State Roads Commission of the State Highway Administration, 305 Md. 793 (1986), the Court of Appeals held that an owner of property in a condemnation case was permitted to express her lay opinion as to the before-and-after-taking value of the property. Id. at 800-01. The owner of the property is “presumed to have sufficient knowledge of the price paid, the rents or other income received, and the possibilities of the land for use.” Id. at 801-02.

Testimony about whether the value of a property will increase or decrease because of a future development 0.4 miles away requires expert testimony. In Brannon, the owner was permitted to testify about the before-and-after-taking value of her property because she was personally familiar with her property both before and after the taking. Id. at 799-802. But in this case, Coyne sought to testify about what he believed would be the value of his home sometime into the future, after the PUD is developed. This is a crucial difference.

Accordingly, Ray and Coyne lacked standing because they failed to show by specific facts that they have been specially aggrieved in a manner different than the public generally.

COMMENTARY: Ray and Coyne maintained that an analysis of standing requires a comparison of their aggrievement to any aggrievement of a person outside of Charles Village and Remington, not within it.

In Alvey v. Hedin, 243 Md. 334 (1966), the two protestants lived 250 feet across from the proposed marina and had beer cans, toilet paper, and other refuse float onto their property. The Court of Appeals reasoned that the protestants were specially aggrieved “because their closeness to the marina property, their special problems with lights and noise as well as with the refuse emanating from the operation of the marina, make the effect of this commercialization on them different from its effect upon members of the public generally.” Id.

The creation of a class of aggrieved persons is done on an individual scale and not based on delineations of city neighborhoods. See Marcus, 235 Md. at 538. With the exception of those protestants who are prima facie aggrieved, the requirement that an individual prove special aggrievement has been well-established for more than half a century.

Even Alvey supports this holding. There, in referring to the “aggrieved class,” the Court was using the word “class” to mean a category of individuals who showed special aggrievement different from the general public. It was not referring to the whole neighborhood or even numerous people. Instead, the aggrieved class consisted of the two individuals who were able to show that they were specially aggrieved by virtue of the detritus deposited on their shores.

To further support their thesis that the scope of the aggrieved class entitled to standing should have been these neighborhoods, Ray and Coyne analogized this case to special exception or conditional use cases. See Md. Overpak Corp. v. Mayor of Balt., 395 Md. 16 (2006); Balt. City Rev. Code, Zoning §9-112(b)(2) (2010).

However, neither the Code nor the cases apply to the issue of standing to support judicial review. Rather they apply to the merits at issue — whether a rezoning action was properly granted or denied. Certiorari was sought and granted here not on the question of whether the PUD should have been approved, but whether Ray and Coyne had standing to seek judicial review of the decision of the City Council. These diverse issues call for different legal standards.

Creating a bright-line rule, under which each person in the entire neighborhood qualifies as a member of the specially aggrieved class in every PUD case, would be tantamount to abandoning the Bryniarski rule that the facts and circumstances of each case would govern.