Skeptical Md. high court reviews Calvert County zoning ethics case

Local residents may challenge in court a Calvert County commission’s zoning decision they allege was unlawfully reached based on the vote of a commissioner with a personal stake in the outcome, their attorney told a skeptical Maryland high court Monday.

During oral arguments, many of the Court of Appeals judges appeared ready to accept G. Macy Nelson’s argument that the residents have “taxpayer standing” to challenge Commissioner Kelly D. McConkey’s controversial vote.

But the judges said the lawsuit, even if successful, would apparently be meaningless because courts cannot strike down legislative acts due to a commissioner’s conflict of interest.

Courts take a “narrow view” regarding what constitutes an illegal, or ultra vires, act of a commission or other legislative body, Judge Brynja M. Booth said. Specifically, courts review only measures passed by the body to determine whether they are constitutional and in compliance with the body’s statutory authority, Booth added.

“We don’t nullify councilmanic actions based on conflict of interest,” Booth said. “A conflict of interest does not constitute ultra vires action.”

Chief Judge Matthew J. Fader said courts may strike down a zoning decision when it is “truly ultra vires” in that the commission lacked legal authority to adopt it, a view echoed by Judges Steven B. Gould and Shirley M. Watts.

Amid the judicial barrage, Nelson said McConkey’s alleged conflict of interest cannot be divorced from the commission’s 3-2 approval of the zoning plan because his vote was decisive.

“The whole point of taxpayer standing (to sue) is to allow citizens to take action” when a commissioner violates conflict of interest standards by casting a deciding, self-interested vote, said Nelson, of the Law Office of G. Macy Nelson LLC in Towson. “That vote was ultra vires. Everybody knows it.”

Nelson and the four residents allege McConkey should have been barred from voting in 2019 on the county’s comprehensive zoning plan because he owned two parcels that would be affected by proposals under consideration. McConkey abstained from the first vote but not the second, which essentially broke a 2-2 tie.

The four residents sued, seeking a court order invalidating the zoning decision as having been reached on a vote cast by a commissioner otherwise required to recuse himself under the county’s conflict-of-interest law. But the Calvert County Circuit Court and the intermediate Court of Special Appeals said the residents’ lawsuit was barred because the county ordinance provided no cause of action for claims against a duly elected commissioner acting in his legislative capacity.

The residents sought review by the seven-member high court.

Calvert County Attorney John Mattingly urged the Court of Appeals to uphold the zoning decision, saying the constitutional separation of powers bars courts from striking down such decisions based on the motives of commissioners. Judges may only review an approved zoning plan to determine if it is constitutionally and statutorily valid and not question the commissioners’ motives, Mattingly said.

“Invalidation (of a zoning decision) goes to the sausage, not how the sausage was made,” Mattingly said. To hold otherwise would be “placing the court in the shoes of the legislative process” and “allowing one branch of government to invade the legislative branch,” he added.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Susan Dzurec et al. v. Board of County Commissioners of Calvert County, Md., et al., No. 1 September Term 2022.

In addition to Dzurec, the residents suing the county are Myra Gowans, Michael King and Phyllis Sherkus.

In a separate proceeding, the Calvert County Ethics Commission found in December 2020 that McConkey had violated the county’s ethics ordinance and issued him a letter of censure.

The Calvert County Circuit Court reversed the commission’s ruling in August 2021, but the Court of Special Appeals reinstated it last month in an unreported opinion. The case was docketed at the Court of Special Appeals as In the Matter of Kelly D. McConkey, No. 954, September Term 2021.