State Center, LLC v. Lexington Charles Ltd. Partnership ( 2014 )

State Center, LLC, et al. v. Lexington Charles Limited Partnership, et al., No. 12,
September Term, 2013
JUDICIAL REVIEW—MARYLAND RULE 8-602—MOTION TO DISMISS
APPEAL—LACK OF PRESERVATION AND IMPROPRIETY OF
PRESENTATION TO THIS COURT: This Court’s discretion to dismiss an appeal is
limited to certain statutory grounds by Maryland Rule 8-602(a). Neither lack of
preservation nor impropriety of presentation to this Court are a permissible ground upon
which this Court may grant a dismissal of an appeal. Thus, Appellees’ Motion to
Dismiss the appeal was denied.
ADMINISTRATIVE AGENCY—EXHAUSTION OF ADMINISTRATIVE
REMEDIES: A claimant is not required to exhaust administrative remedies that the
claimant is not eligible to pursue.
REAL PROPERTY—GOVERNMENT REDEVELOPMENT PROJECT—
PROPERTY OWNER STANDING—AGGRIEVED CLASS: When determining
whether a protestant is a “person aggrieved” for purposes of having standing to challenge
a government redevelopment project, the most important factor to consider is proximity,
as measured by the physical location of the protestant’s property to the subject site.
REAL PROPERTY—GOVERNMENT REDEVELOPMENT PROJECT—
PROPERTY OWNER STANDING—SPECIAL AGGRIEVEMENT—ECONOMIC
EFFECTS—TRANSIT ORIENTED DEVELOPMENT SCOPE: When determining
whether a person is “specially aggrieved,” for purposes of having standing to challenge a
government redevelopment project, the economic effects which may result from the
redevelopment project are irrelevant. Similarly, the scope of the transit-oriented
development of the project is not relevant to this determination.
REAL PROPERTY—GOVERNMENT REDEVELOPMENT PROJECT—
STANDING—SPECIAL AGGRIEVEMENT—PROTESTANT LACKS
PROXIMITY: When a protestant lacks proximity to the government redevelopment
project’s site, claims of harm, including a change in the character of the neighborhood,
increase in traffic, and limited visibility, are not sufficient to show special aggrievement.
JUDICIAL REVIEW—TAXPAYER STANDING—LACK OF PRIVATE RIGHT
OF ACTION: Under the common law doctrine of taxpayer standing, a complainant has
standing if he/she/it meets the requirements for the doctrine; no private right of action is
required additionally.
JUDICIAL REVIEW—TAXPAYER STANDING: To establish taxpayer standing in
Maryland, a taxpayer need only allege: (1) that he is a taxpayer; (2) an action by a
municipal corporation or public official that is illegal or ultra vires; and (3) that such
action may result reasonably in a pecuniary loss to the taxpayer or an increase in taxes.
Appellees met these requirements in their Complaint challenging the State’s actions of
entering into the formative contracts for the subject Project as illegal under the
Procurement Code, but failed in their challenge to the TOD designation.
EQUITY—AFFIRMATIVE DEFENSE—DOCTRINE OF LACHES: The equitable
doctrine of laches bars stale claims when there is an unreasonable delay in the assertion
of one’s rights and that delay results in prejudice to the opposing party. Here, the delay
in bringing the lawsuit was unreasonable and caused great prejudice to the State Agencies
and Developers. Thus, the doctrine of laches barred Appellees’ remaining claims.
Circuit Court for Baltimore City
Case No. C10009242V10
Argued: 3 Oct. 2013
IN THE COURT OF APPEALS OF
MARYLAND
No. 12
September Term, 2013
STATE CENTER, LLC, ET AL.
v.
LEXINGTON CHARLES LIMITED
PARTNERSHIP, ET AL.
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
*Eldridge, John C. (Retired,
Specially Assigned),
Rodowsky, Lawrence F. (Retired,
Specially Assigned),
JJ.
Opinion by Harrell, J.
Battaglia, J., joins in judgment only
Filed: March 27, 2014
*Eldridge, J., participated in the hearing and
conference of this case after being recalled
pursuant to the Constitution, Article IV,
Section 3A, but did not participate in the
decision or adoption of this opinion.
Table of Contents*
I. Background Facts .............................................................................................................. 2
II. The Procedural Path of the Present Case ...................................................................... 13
III. Appellees’ Motion to Dismiss the Appeal ....................................................................... 24
IV. Applicable Standards of Appellate Review .................................................................... 27
V. Analysis ............................................................................................................................. 29
A. JUSTICIABILITY ......................................................................................................... 29
1. Procurement Claims Brought By Appellees As Plaintiffs.......................................... 35
2. Are The Statutory Administrative Remedies Really “Available” Here? ................... 40
3. Private Right of Action ............................................................................................... 50
4. Property Owner & Taxpayer Standing Doctrines....................................................... 52
a. Property owner standing ......................................................................................... 54
i. Whether property owner standing doctrine applies here? ................................... 57
ii. Whether Appellees alleged sufficient facts for “special aggrievement” to confer
property owner standing? ........................................................................................... 62
(1) Prima facie aggrieved property owners? ......................................................... 65
(2) Almost prima facie aggrieved property owners? ............................................ 70
(3) Nebulous third category of property owner standing? .................................... 73
b. Taxpayer standing ................................................................................................... 75
i. Taxpayer standing & procurement claims: is a private right of action required for
taxpayer suits? ............................................................................................................ 79
ii. The necessary party plaintiffs for taxpayer standing doctrine. ........................... 85
iii. A governmental action that is illegal or ultra vires. ............................................ 95
iv. Specific injury sufficient. .................................................................................... 96
(1) What types of “harm” amount to a pecuniary loss? ...................................... 100
(2) Nexus ............................................................................................................. 114
(3) Amount of pecuniary harm............................................................................ 123
B. THE FATAL FLAW—THE DOCTRINE OF LACHES. ........................................... 126
1. Propriety of Addressing Laches. .............................................................................. 127
2. Standard of Review. ................................................................................................. 128
3. The Fatal Flaw. ......................................................................................................... 129
a. Whether laches applies to taxpayer suits? ............................................................ 130
b. Delay in filing. ...................................................................................................... 133
i. The starter’s gun sounds. ................................................................................... 134
ii. Whether the delay was unreasonable ................................................................ 149
c. Prejudice from the delay ....................................................................................... 155
* Every novella-length appellate opinion warrants one.
The State Center Project (the “Project”) is a $1.5 billion, multi-phase
redevelopment project intended to replace aged and obsolete State office buildings with
new facilities for State use and to revitalize an approximately 25-acre property owned by
the State of Maryland in midtown Baltimore (“City”), without burdening unduly the
State’s capital budget. To these ends, in 2005, the State issued a public Request for
Qualifications (“RFQ”) to solicit a “Master Developer” who would be granted the
exclusive right to negotiate with the State to execute the entire project, which included
the reconstruction of older deteriorating buildings currently on the site of the project, as
well as the receipt of a 75-90 year leasehold interest. The State Center, LLC, was chosen
as the Master Developer. The Maryland Department of General Services (“DGS”), the
Maryland Department of Transportation (“MDOT”) and the State Center, LLC,
negotiated for the Project, entering into a series of agreements between 2007 and 2010
for the purpose of completing the Project in a timely manner. These agreements, thus far,
are: (1) the Master Development Agreement (“MDA”); (2) the First Amendment to the
MDA (“First Amendment”); (3) two Phase I ground leases; and, (4) four approved Phase
I occupancy leases.
In 2010, fifteen plaintiffs, property owners in downtown Baltimore (many with
available office space for rent) and taxpayers of the State, filed suit in the Circuit Court
for Baltimore City against the DGS, MDOT, and the State Center, LLC, and its
subsidiaries, seeking a declaratory judgment that the formative contracts for the Project
were void and an injunction to halt the Project. The result of the suit in the trial court was
the voiding of the formative contracts of the Project on the grounds that they violated the
State Procurement Law. On appeal, we are asked to address the Circuit Court’s denials
of Defendants’ Motions to Dismiss and the trial court’s partial grant and partial denial of
their Motion for Summary Judgment. Embedded in these questions are justiciability
issues of taxpayer and property owner standing; the requirements for the exhaustion of
administrative remedies and, if necessary to be reached, whether a private right of action
existed; and, lastly, the equitable doctrine of laches. If the resolution of any of these
threshold issues is not dispositive, there waits potentially at the end of the day questions
regarding the interpretation of the State Procurement Law.
I. BACKGROUND FACTS
The State Center complex, as it currently blights the skyline of midtown
Baltimore, consists of five Soviet-block style buildings and approximately 1,300 parking
spaces. It was built in the 1950s and 60s to house a number of State agencies. Today, it
is agreed widely that these buildings are long past their useful lives. Although the State
Center may be deemed fairly a “concrete wasteland,” 1 the property has substantial re-
development potential. The State Center sits next to a passenger rail station that connects
the area to the rest of the city. It serves as a major employment node for the State Center
offices and the Maryland General Hospital. Moreover, the Center borders many of the
City’s major cultural and educational institutions, and enjoys relative proximity to
downtown Baltimore and the waterfront. Despite this potential, the current State Center
1
Governor Martin O’Malley referred once to the complex as a “concrete
wasteland.” See Annie Linskey, O’Malley says State Center under way, The Baltimore
Sun (July 27, 2010), http://articles.baltimoresun.com/2010-07-27/news/bs-md-state-
center-20100727_1_grocery-store-developer-office-and-retail-space.
2
complex, it is said, “does not form a true crossroads [between the neighborhoods] and
more often forms a barrier separating neighborhoods.”
In anticipation of the need for more modern structures and the currently unrealized
potential of the property, the State Center Project was conceived in 2004 during the
administration of Governor Robert L. Ehrlich. In September 2005, the DGS and MDOT
(hereinafter, collectively, “State Agencies”) issued a public RFQ to solicit and select a
“Master Developer” for the purpose of redeveloping comprehensively the State Center
complex. The RFQ envisioned, as its overarching goal, “through new TOD [Transit-
Oriented Development][2] at State Center and nearby properties[,] the existing cultural
and educational institutions of the Cultural Center can be enhanced and the area
diversified so that it becomes one of the City’s most diverse and historically significant
communities and resources.” 3 The RFQ noted also that a “significant goal” of the State
2
The RFQ listed the principles of Transit Oriented Development (“TOD”) as
follows: “development that is physically and functionally integrated with transit; that
reduce auto dependency; increase pedestrian/bicycle trips; foster safer station areas;
enhance walkable connections to transit stations; provide mixed-use development,
including housing and convenience goods and services; other attractive public spaces;
promote and enhance ridership; and encourage revitalization and sound growth. The
Federal Transit Administration’s definition is also available at www.fta.dot.gov/library/
policy/IFT/iftb.html.”
3
The State listed its specific objectives as: “[1] Develop financially viable projects
using private-sector funding sources; [2] Create new revenue sources for the public
sector; [3] Increase Metro and Light Rail ridership; [4] Expand State and local property,
sales and income tax base; [5] Provide a mix of housing for a broad range of incomes,
including working families and others of very low, low and moderate incomes; and [6]
Implement TOD principles.” Additionally, according to the RFQ, “[t]he State sought to
ensure that the resulting development reflects a commitment to the following values: [1]
(Continued…)
3
was “the integration of the State Center development program with other redevelopment
efforts . . . , as well as other nearby properties owned by other institutions and private
owners.”
The RFQ expected “[t]he Master Developer and a team [to] assemble resources
and a team that can entitle, design, finance, construct, and market mixed-use, mixed-
income urban TOD that supports surrounding neighborhood needs and is acceptable to
the various regulatory agencies.” The prospective “Master Developer” was described in
the document as “a development entity or entities with the capacity and demonstrated
experience to acquire the State-owned properties and successfully handle all aspects of
the development process, including planning, community involvement, design,
negotiation of public/private partnerships, structuring of private and public financing
sources, construction, sales and leasing, and ongoing management.” Moreover, the RFQ
required the responding statements to include information on the “Project Team,” defined
as “the lead developer plus any other developers and key team members such as
architects, engineers, economists, contractors, bankers, etc. who are critical for
consideration by the State.”
To implement this wide-range of purposes, the RFQ envisioned “sustained
collaboration between the selected developer, State, City, neighborhood representatives,
(…continued)
Affordable Housing; [2] Green Design; [3] Senior Friendly Design; [4] Historic
Preservation and Appropriate Design; and [5] Support of Creative Arts and Culture.”
4
and other stakeholders in order to formulate a feasible project that can successfully
accomplish a wide range of objectives.” To that end, the RFQ provided:
The State is also interested in a public private partnership with the Master
Developer that results in creative approaches to development to ensure
maximum return to the State and the City while minimizing direct public
financial participation and development risk. To support this [public
private] partnership, the State has committed to retaining the entire State
workforce at the redeveloped State Center. The State will consider creative
options for redevelopment of its existing buildings or occupancy in new
privately owned buildings along with other private tenants.
Ultimately, the State “anticipated that the resulting project will be privately owned and
managed.” The RFQ emphasized that prior experience and background were critical to
the State’s consideration of the responding statements submitted by applicants.
The State explained, in the RFQ, that the envisioned need for sustained
collaboration was also the reason a RFQ process was being used to select a Master
Developer, instead of “the more traditional” Request for Proposals (“RFP”). The RFQ
emphasized that it sought responding statements “only from experienced developers of
large scale urban mixed use, mixed income projects.” The RFQ re-emphasized this point
in stating, “[p]rofessional service providers, building contractors or others should not
respond to this RFQ.”
The RFQ provided that it “[was] not conducted under the provisions of Maryland
Procurement Law (COMAR Title 21).” (Emphasis in the original.) Instead, according to
the State, “[b]ecause the mixed-use real-estate development is to be privately owned and
privately managed, the State’s conveyance of a 75-90 year real estate leasehold interest to
the Developer, with conditions for redevelopment of the site in order to achieve the
5
State’s economic development goals for the community, [fell] under the authority of
§ 10-305 of the State Finance and Procurement Article.” 4 Although professing that it was
not conducted generally under the provisions of the procurement statute, the RFQ
adopted the Procurement Law’s protest policy, requiring that “[p]rotests relating to this
solicitation or the award of a contract must be filed in accordance with Title 15, Subtitle
2, Part III of the State Finance and Procurement Article, Annotated Code of Maryland,
and COMAR Title 21 (State Procurement Regulations), Subtitle 10, Administrative and
Civil Remedies.” The RFQ provided also that the selected Master Developer would be
given the exclusive right to negotiate with the State for the Project, which included the
public-private partnership and the comprehensive redevelopment envisioned in the RFQ.
“Any formal contract becomes final only upon approval by the Maryland Board of Public
Works [“BPW”] and, where applicable, the Federal Transit Administration and the US
Department of Labor.”
4
Section 10-305(a) of the State Finance and Procurement Article provides, in
pertinent part:
[A]ny real or personal property of the State or a unit of the State
government may be sold, leased, transferred, exchanged, granted, or
otherwise disposed of:
(1) to any person, to the United States or any of its units, or to any unit of
the State government, for a consideration the Board decides is adequate; or
(2) to any county or municipal corporation in the State subject to any
conditions the Board imposes.
Md. Code (1985, 2009 Repl. Vol.), State Fin. & Proc. Article (“SFP”), § 10-305(a).
6
Four applicants, including the State Center, LLC, submitted responses to the RFQ.
Pursuant to the selection procedure provided in the RFQ, the Evaluation Committee
reviewed the responses, interviewed the applicants, and provided recommendations to the
State that ranked State Center, LLC, above the other applicants. On 21 March 2006,
Governor Ehrlich announced that the team was selected for the exclusive initial right to
negotiate definitive agreements with the State to develop the Property. After
announcement of the selection of the team, but prior to entering the MDA, the State
Center, LLC, and the State Agencies executed a series of prefatory agreements. On 22
June 2007, the BPW approved a Memorandum of Understanding (“MOU”), which
outlined how the negotiation process between the parties would unfold and the activities
to be undertaken by each during the interim period. On 12 December 2007, the BPW
approved an Interim Development Agreement (“IDA”) between the DGS and State
Center, LLC. The IDA confirmed the continued negotiations of the parties, outlined
interim duties and responsibilities, and, among other things, contemplated that State
Center, LLC, would submit a Preliminary Development Plan (“PDP”), as a preliminary
concept plan for the Project, to the DGS. On 3 March 2008, the DGS acknowledged
receipt of a PDP from the State Center, LLC, and approved the PDP, through the issuance
on 2 September 2008 of a Letter of Intent (“LOI”), as the overall conceptual plan for the
redevelopment of the Property. The LOI stated that it did not create “a binding contract
or agreement of any sort, preliminary, final or otherwise,” and that no binding
development agreement would exist “unless and until a [MDA] was agreed to by the
parties and approved by the BPW.”
7
In March 2009, after the execution of the IDA and prior to entering into the MDA,
the ownership structure of the State Center, LLC, changed. 5 The State Center Executive
Committee, which was given the authority to approve alterations in the ownership
structure on behalf of the State, approved these alterations by letter dated 12 May 2009.
On 15 June 2009, with the BPW’s approval, the State Center, LLC (hereinafter,
“Developer”), 6 and the State, by and through the DGS, entered into the MDA. Generally
speaking, the MDA presented the formal plan of five development phases for the State
Center project and contemplated that the State would lease the State Center property to
the Developer with certain conditions for its development. The MDA provided that the
State would acquire construction services, as well as architectural and engineering design
work.
The MDA “specifically contemplate[d] the disposition of the Property pursuant to
phased Ground Leases (each a ‘Phase Ground Lease’) or fee simple dispositions, and set
forth the procedural and pragmatic requirements for taking down and developing each
Phase, the parties agree[d] that, except as otherwise provided in the[] [MDA], the
economic terms, dimensions, uses, and other elements necessary to accomplish the vision
5
The State Center, LLC, was composed originally of three companies. On 16
January 2009, Doracon Development, LLC, withdrew voluntarily from the team and
project. On 22 March 2009, Struever Bros. Eccles & Rouse, Inc. transferred its interest
to PS Partners, LLC. According to the MDA, these changes in the ownership structure of
State Center, LLC, occurred “to bring greater financial strength to the development team
and to help achieve completion of the Project.”
6
We use the term “Developer” to refer to the State Center, LLC, as well as its
affiliated subsidiaries.
8
of the parties and the Approved Concept Plan[7] shall be determined prior to the initiation
of each Phase upon terms and conditions to be agreed upon between [the] DGS and [the]
Developer. Any such terms and conditions will provide for an economic return to the
State in accordance with th[e] [MDA] which includes a base rent, the fair market value of
the Property, recovery of pre-development costs, and a participation in the profits and the
net proceeds of sale and refinancing.”
The MDA endowed the Developer “with exclusive development rights to the
Property for the duration of while this Agreement is in effect and in order to complete
development of the Project.” The MDA provided that the “Developer anticipates
acquiring portions of the Property by Phases . . . .” Moreover, the MDA conceived that,
“Each Phase Ground Lease will be generally consistent with the terms of the Phase
Ground Lease attached hereto as Exhibit 2.3 and the Approved Concept Plan, except as to
further details such as the description of the property, the uses permitted or required for
that Phase and the economic terms negotiated between the parties. The parties anticipate
that each Phase Ground Lease will be submitted to the BPW for approval . . . .” The
MDA specified also the terms of compensation payable to the State under a Phase
Ground Lease.
7
The MDA defined the “Approved Concept Plan” as a collection of documents,
including, inter alia, the PDP, as confirmed in the LOI.
9
The State committed, in the MDA, “to pursue leasing” for State agencies of office
space on two of the site’s six parcels. 8 The MDA provided also that all spaces leased by
the State will be “in accordance with the Approved Concept Plan, . . . standard State
procurement practices and documented by an Occupancy Lease substantially in the form
attached [to the MDA] . . . .” The economic terms of each Occupancy Lease shall be
negotiated and determined “in part by the formula, calculations and determinations set
forth in the Economic Terms Sheet” attached to the MDA. The MDA prohibited
expressly, though, that “any Lease Proposal for any Occupancy Lease contain financial
terms which are in excess of the then current market rental rates for comparable new
construction of buildings in the Baltimore metropolitan area having comparable services,
features, and elements included in the calculation of the rent.”
Following execution of the MDA, the parties to the agreement commenced
negotiation and preparation of the first phase of redevelopment of the Project (“First
Phase”). The First Phase was the redevelopment of Parcels G and I-2, as identified on the
PDP of the Approved Concept Plan. Furthermore, pursuant to the MDA, the Developer
commenced the architectural and engineering design work necessary to construct the
First Phase.
8
The MDA states specifically that the State “commits to pursue leasing the
anticipated Initial Space as part of the First Phase, and the anticipated Total Space, as part
of the Project, all in accordance with the terms of the Occupancy Leases.” “Initial
Space,” as defined in the MDA, means “[a]pproximately 300,000 leasable square feet in a
single building to be constructed and rehabilitated as part of the First Phase.” “Total
Space” is defined in the MDA as “[a]pproximately 1,000,000 leasable square feet in
several buildings to be constructed or rehabilitated as part of the Project suffices to
accommodate the State’s space needs for approximately 3,500 employees.”
10
In September 2010, with the approval of the BPW, the State, by and through the
DGS, and the Developer entered into the First Amendment to the MDA (“First
Amendment”). The First Amendment made several changes to the MDA, laid out the
process for beginning the first phase of development (“Phase I”), and relieved the
Developer from the responsibilities of developing a parking garage and committed $28.3
million for the MDOT to build the parking garage, subject to certain conditions.
On 28 July 2010, the BPW considered and approved three ground leases, which
were executed on 1 September 2010. One of these leases, the garage ground lease
agreement, the DGS agreed, pursuant to State Finance and Procurement Article of the
Maryland Code, § 10-304, 9 to lease the Garage Site to the MDOT and that the MDOT
9
This section provides:
Scope of section
(a) This section does not apply to:
(1) property that is pledged to secure the payment of principal of or
interest on revenue bonds; or
(2) real property that is owned or controlled by the State Highway
Administration, unless the property is being transferred to the Maryland
Transportation Authority or to another unit in the Department of
Transportation.
Power to transfer property
(b)(1) The Board may transfer any property, and all rights of physical
custody and control over the property, from a unit of the Executive Branch
of the State government to another unit of the Executive Branch of the State
government.
(2) Any property transferred under this subsection is exempt from the
appraisal requirements under § 10-305(b)(2)(i) of this title.
(3) Any property transferred under this subsection is subject to the
continuing general jurisdiction of the Board.
SFP § 10-304.
11
committed to $1.00 rent and “to finance, construct, operate, repair, and maintain the
Garage, or to secure some or all of the foregoing services from one or more third
parties . . . ”, 10 as envisioned in the First Amendment. The other two ground leases,
Parcel G Phase Ground Lease and Parcel I-2 Phase Ground Lease (hereinafter,
collectively, “Phase I Ground Leases”), were between the State, to the use of the DGS,
as Landlord, and affiliates of the Developer, State Center Parcel G Master Tenant, LLC,
and State Center Parcel I-2 Master Tenant, LLC, respectively. These Ground Leases
provided for the use and development of the First Development Phase, as envisioned and
provided in the MDA. On 28 July and 15 December 2010, the BPW approved
additionally four occupancy leases, as amended, in Phase I of the Project (hereinafter,
collectively, “Phase I Occupancy Leases”). 11
The Project was designated as a TOD, pursuant to Transportation Article, § 7-
101(m)(3), by the Maryland Secretary of Transportation on 19 October 2010, and by the
Mayor and City Council of Baltimore on 5 November 2010.
10
The lease agreement recognized that the Secretary of MDOT may contract with
any person to provide these services, supplies, construction, and maintenance for the
Garage because of its transportation related purpose, pursuant to § 2-103(h) of the
Transportation Article of the Maryland Code.
11
The MDA provides that “[t]he parties anticipate that each Phase Ground Lease
and applicable Occupancy Lease(s) for such Phase will be submitted jointly to the BPW
for review and approval (provided that DGS, with the concurrence of the Developer, may
elect to submit the Occupancy Lease for approval prior to the Phase Ground Lease). The
parties agree that a Phase Ground Lease will be conditioned upon DGS agreeing to the
terms of the Occupancy Lease(s) for the applicable Phase.” MDA ¶ 2.5.
12
II. THE PROCEDURAL PATH OF THE PRESENT CASE
On 17 December 2010, fifteen Plaintiffs12 filed a Complaint for Declaratory and
Injunctive Relief (“Original Complaint”) in the Circuit Court for Baltimore City against
the two State Agencies and the Developers. In the Original Complaint, Plaintiffs alleged,
among other things, that they were “excluded . . . from the bidding process” for the
Project that, according to them, was contrary to the State Procurement Law. Specifically,
they alleged that they were harmed by the unlawful awarding of the Project to the
Developers despite that the Plaintiffs were “ready, willing, and able to submit proposals
to lease comparable office, retail, and parking space . . . on terms that are more
favorable” than those provided to and by the Developers.
The State Agencies and the Developers each moved to dismiss the Original
Complaint on numerous grounds. One ground, which both sets of defendants asserted in
their respective motions, was that the Circuit Court lacked jurisdiction because the
Plaintiffs were required to exhaust administrative remedies before a state procurement
officer and the Maryland State Board of Contract Appeals (“Appeals Board”) prior to
12
In the Original Complaint, the fifteen Plaintiffs, each of which were either a
limited liability corporation or a limited partnership, were the following: St. Paul Plaza
Office Tower, LLC; Lexington Charles Limited Partnership; 301 Charles Street, LLC;
Park Charles Apartments Associates, LLC; Park Charles Office Associates, LLC; 501 St.
Paul Street, LLC; St. Paul and Franklin, LLC; Robopark, LLC; Charles Plaza, LLC; 39
W. Lexington, LLC; Baltimore Condo 2-8, LLC; Fayette Garage, LLC; Charles Tower,
LLC; The Marlboro Classic, LP; and Redwood Square Apartments, LP.
The parties listed as Plaintiffs changed on several occasions during the
proceedings in the Circuit Court. The collective term “Plaintiffs,” as used in this opinion,
refers to the moveable feast of Plaintiffs as they changed throughout the proceedings.
13
presenting their claims to the Circuit Court. On 28 January 2011, the Plaintiffs amended
the complaint (“Amended Complaint”), and, among other changes, added a new Plaintiff,
David And Dad’s Inc. 13
The Amended Complaint set forth eight counts. Counts I – VII of the Amended
Complaint sought declaratory judgment for the following propositions:
(I) Invalidity of First Amendment and Incorporated MDA;
(II) Invalidity of the Occupancy Leases and the Commitment to Enter
Occupancy Leases;
(III) Invalidity of Alleged Occupancy Leases as “Agreements to Agree”;
(IV) Agency Failure to Promulgate Mandatory Regulations;
(V) State Lacks Authority to Enter the First Phase Occupancy leases for Parcel
G and Parcel I-2, and Any Amendments Thereto;
(VI) State Center is Not and Could Not Be A TOD and its Designation as such
Long After Execution of the MDA and First Amendment Renders Those
Agreements Null and Void; and,
(VII) The Parking Garage “Procurement” Violates SFP Title 13.
Count VIII of the Amended Complaint sought injunctive relief to enjoin the Defendants
from proceeding under the formative contracts of the Project (including the First
Amendment, the MDA, Phase I Ground Lease, Phase I Occupancy Leases, and “the
architecture, engineering and construction services related to the parking garage”) absent
full compliance with the competitive procurement provisions of Title 13 and Chapter
484, Laws of Maryland, as well as “until after DBM [Department of Budget and
13
Additionally, in a Second Amendment by Interlineation of the Amended
Complaint, filed on 1 April 2011, the following parties were added as Plaintiffs:
DaMimmo’s Italian Restaurant; Sabatino’s, Inc.; Chiapparelli’s, Inc.; Vaccaro’s Italian
Pastry Shop, Inc.; Bonnie’s Peanut Shoppe, Inc.; Davis and Davis, Inc., d/b/a Flowers by
Gina D.; and Caesar’s Den, Inc.
14
Management] and/or DGS promulgate the proper regulations mandated by SFP § 10-
305(h).”
The State Agencies and the Developers moved to dismiss the Amended
Complaint, as they had the Original Complaint. On 6 April 2011, a trial court judge held
a hearing on the Defendants’ Motions to Dismiss. On 19 July 2011, the Circuit Court
entered two orders denying both Motions.
First, the Circuit Court rejected the Defendants’ challenge to the Plaintiffs’
taxpayer standing raised by both Motions to Dismiss:
The Court of Appeals has recognized, however, that “the extent to which a
taxpayer is capable of detailing the damage anticipated from an illegal and
ultra vires act may be rather limited at the time the suit is initially filed.”
[120 W. Fayette Street, LLLP v. Mayor of Baltimore, 407 Md. 253, 266,
964 A.2d 662, 669 (2009)]. Thus, the Court has held that “the taxpayer
plaintiff is not required to allege facts which necessarily lead to the
conclusion that the taxes will be increased; rather, the test is whether the
taxpayer reasonably may sustain a pecuniary loss or a tax increase - -
whether there has been a showing of potential pecuniary damage.” Id.
Plaintiffs have pled that State agencies engaged in illegal and ultra vires
acts that could potentially cause Plaintiffs pecuniary harm or an increase in
taxes. This Court finds that the allegations contained in Plaintiffs’
Amended Complaint are sufficient to establish taxpayer standing.
Second, in ruling on another common challenge in the Motions to Dismiss, the
Circuit Court rejected the Defendants’ exhaustion of administrative remedies defense
because the Plaintiffs’ claim “is not the type of ‘contract claim’ contemplated to be
within the [Appeals Board’s] jurisdiction.”
While it is arguable that Plaintiffs’ complaint may be in the nature of a
‘protest,’ given that Plaintiffs are not prospective bidders or offerors, or
bidders or offerors, they would not be entitled to submit such a protest to
15
the Appeals Board. Further, the absence of a procurement contract
arguably precludes the submission of a contract claim.
Reasoning further, the Circuit Court distinguished State v. State Board of Contract
Appeals & Law Offices of Peter G. Angelos, 364 Md. 446, 773 A.2d 504 (2001), on the
bases that the “Plaintiffs are not a party to the contracts at issue in the case sub judice.
Furthermore, Plaintiffs are neither assignees nor parties in line to benefit from the
contracts at issue.”
Third, in regards to both sets of Defendants’ laches argument, the Circuit Court
rejected their argument that “Plaintiffs adopted a ‘wait and see attitude’ and should have
brought their claims following the issuance of the [RFQ] in 2005.” The judge noted that
“[w]hen considering a motion to dismiss, the court must assume the truth of Plaintiffs’
well-pleaded factual allegations in the complaint.” The trial judge stated that “Plaintiffs
assert[ed] that the [MDA], executed and approved in June 2009, was the first binding
agreement related to the State Center Project and that the operative documents giving rise
to this suit were the September 1, 2010 First Amendment . . . and the Phase I Occupancy
Leases, approved July 28, 2010 and amended on December 15, 2010.” The Circuit Court
concluded that “[a]s Plaintiffs’ initial complaint was filed on December 17, 2010, this
Court finds that Plaintiffs’ claims are not barred by latches [sic].”
Then, the Circuit Court rejected the argument, advanced by the Developers’
Motion to Dismiss only, that Plaintiffs lack standing to seek a declaration that the State’s
commitment to pursue future Occupancy Leases is unenforceable as “agreements to
agree” because they are not parties to the contract. The judge reasoned that, because
16
“Plaintiffs challenge the agreements as being ultra vires acts, which are part of an
‘unlawful procurement conspiracy,’” they “are neither required to be a party to the
contract nor in privity with a party to the contract in order to make such a challenge.”
Lastly, the Circuit Court ruled on arguments raised only in the State Agencies’
Motion to Dismiss. The judge concluded that “the Plaintiffs’ claims, concerning the
interpretation and implementation of State procurement laws, and seeking declaratory
and injunctive relief, are within the province of judicial review” and, thus, rejected the
DGS’s and DOT’s “purely political question” assertion. Then, the Circuit Court found
“that Plaintiffs’ claims for declaratory and equitable relief are not barred by the doctrine
of sovereign immunity” because “[s]overeign immunity is not a bar to Plaintiffs
challenging ‘the legality of State laws and regulations, or the alleged unlawful
implementation of such law and regulations by a State official.’” (Citations omitted.)
Almost two years of discovery followed the trial court’s rejection of the Motions
to Dismiss. Throughout this time, and even prior to the court’s order denying the
Motions to Dismiss, the Defendants sought to expedite the litigation in the hope to
proceed with the development in as timely a manner as possible.
On 2 September 2011, the State Agencies filed a $100,000,000 Counterclaim
against the Plaintiffs/Counter-Defendants for Tortious Interference with Economic
Relationships. The State Agencies averred that the filing and prosecution of Plaintiffs’
suit was “wrongful, illegal, and in bad faith” because the suit’s purpose was to cause the
State Agencies damage and loss, and “to restrain trade and competition and the public
and private benefits thereof.” Moreover, “[Plaintiffs/Counter-Defendants] filed [the suit]
17
after unreasonable and unexcusable delay, having waited six years since the inception of
the Project, until the Project reached a critical juncture in its development, all in order to
maximize the resulting disruption to progress and funding of the Project.” The State
Agencies averred that “DGS and [M]DOT have suffered, and will continue to suffer,
actual and prospective damage and loss as a result of the tortious acts of
Plaintiffs/Counter-Defendants in bringing and maintaining this suit.” 14
On 6 September 2011, the Plaintiffs/Counter-Defendants filed a Motion to
Dismiss Counterclaim on the grounds that the Noerr-Pennington doctrine 15 barred the
14
Specifically, the State Agencies alleged that “Plaintiffs’/Counter-Defendants’
filing and prosecution of this lawsuit is responsible for causing damages and loss to DGS
and [M]DOT in the form[s] of delayed and/or lost base ground rents[;] . . . delayed and/or
lost additional ground rents[;] . . . increased construction and/or financing costs for the
garage associated with the Project[;] . . . delayed and/or lost revenues from the garage
associated with the Project[;] . . . increased State-funded Project predevelopment costs[;] .
. . increased office space rental costs due to increased building construction costs and/or
increased interest rates[;] . . . prolonged and increased costs of maintaining rather than
replacing the obsolete State office buildings on the Project site[;] . . . delayed and/or lost
State tax revenues.”
15
The Court of Special Appeals explained recently the basis of the Noerr-
Pennington doctrine as follows:
[The Noerr-Pennington doctrine] derives from Supreme Court decisions in
E. Railroad Presidents Conference v. Noerr Motor Freight Inc., 365 U.S.
127, 81 S. Ct. 523, 5 L. Ed. 2d 464 (1961) and United Mine Workers of Am.
v. Pennington, 381 U.S. 657, 85 S. Ct. 1585, 14 L. Ed. 2d 626 (1965),
statutory construction cases, where the court considered the right to petition
in interpreting federal anti-trust laws. The immunity conferred by Noerr–
Pennington extends to those who “use ... courts to advocate their causes
and points of view regarding resolution of their business and economic
interests, vis-a-vis their competitors.” California Motor Transp. Co. v.
Trucking Unlimited, 404 U.S. 508, 511, 92 S. Ct. 609, 30 L. Ed. 2d 642
(Continued…)
18
State Defendants’ counterclaim and that the State Agencies cannot establish the elements
of tortious interference with economic relations, as a matter of law. The Circuit Court
agreed that the Noerr-Pennington doctrine barred the Counterclaim and entered an order
granting the Plaintiffs’ Motion to Dismiss Counterclaim on 22 December 2011.
On 7 November 2012, the State Agencies and Developers moved collectively for
summary judgment on several grounds: (1) “Because The [MDA] And First Amendment
Are Not Procurement Contracts, The Defendants Are Entitled To Summary Judgment On
Counts I, II, and V Of The Amended Complaint;” (2) “Plaintiffs’ Claims About Future
Occupancy Leases Are Not Ripe and Will Be Invalid If They Ever Ripen;” (3) “Contrary
(…continued)
(1972). However, such immunity does not apply if a lawsuit is a sham both
objectively and subjectively. Prof. Real Estate Investors, Inc. v. Columbia
Pictures Indus., Inc., 508 U.S. 49, 60–61, 113 S. Ct. 1920, 123 L. Ed. 2d
611 (1993). In BE & K Constr. Co. v. NLRB, 536 U.S. 516, 122 S. Ct.
2390, 153 L. Ed. 2d 499 (2002), the Supreme Court extended the Noerr–
Pennington doctrine—at least as to direct petitions, i.e.[,] lawsuits—to
cases under the National Labor Relations Act, 29 U.S.C. § § 151 et seq.
Although the Supreme Court has not spoken on the issue, lower courts,
including some state courts, have recognized [a] First Amendment right to
petition defenses, similar to Noerr–Pennington, to state common law and
statutory claims. See Annot.: Application of Noerr–Pennington Doctrine by
State Courts, 94 A.L.R. 5th 455 (2001). Federal courts have wrestled with
whether the reach of Noerr–Pennington doctrine in antitrust cases is the
same in suits brought under the common law or other statutes. See, e.g.,
Venetian Casino Resort v. NLRB, 484 F.3d 601, 611–13 (D.C. Cir. 2007),
and Cardtoons, L.C. v. Major League Baseball Players Assoc., 208 F.3d
885, 889–91 (10th Cir. 2000).
Hamot v. Telos Corp., 185 Md. App. 352, 367 n.13, 970 A.2d 942, 951 n.13 (2009).
19
To Count IV, Regulations For The Disposition Of Land Were Properly Promulgated As
A Matter Of Law”; (4) “The [TOD] Designation Is Within The Exclusive Discretion Of
The Secretary Of Transportation: Count VI Is Without Basis In Law”; and (5) “The
Construction of the State Center Parking Garage Is Not Subject To The Maryland
Procurement Code: Count VII Is Invalid.”
On 15 January 2013, the Circuit Court held a hearing on the Motion for Summary
Judgment. Two days later, the judge entered an order granting the motion in part and
denying it in part. She noted that there were no disputes of material fact. Therefore, she
stated, “the parties’ contentions present only issues of law, and the question before the
court is whether either party is entitled to judgment as a matter of law upon the
undisputed facts.”
The judge granted partial summary judgment in favor of the Plaintiffs on Counts I,
II, III, and V. 16 The Circuit Court, relying upon Department of General Services v.
Harmans Associates Ltd. Partnership, 98 Md. App. 535, 633 A.2d 939 (1993), found
that, “[d]espite the purported structure of the transaction, the ‘essence of the transaction’
was not a simple disposition of land governed by [SFP § 10-305], but a complex creative
way to develop State land.” Because the “essence of the transaction” was a “complex
creative way to develop State land,” the judge concluded that the formative documents –
the MDA, the First Amendment, and the Ground Leases – are governed by [SFP § 11-
101, et seq.]. The State Agencies and the Developers conceded, and the Circuit Court
16
Plaintiffs withdrew voluntarily Count IV.
20
found, that they “did not comply with the procedures required in the code” and, therefore,
the four formative contracts – the MDA, the First Amendment, and the Ground Leases –
are void pursuant to SFP § 11-204. Accordingly, the Circuit Court found that the
Plaintiffs were “entitled to judgment and to a declaratory judgment in their favor based
on these counts.”
Then, the judge entered partial summary judgment in favor of the Defendants with
respect to Counts VI, VII, and VIII. With regard to Count VI of the Plaintiffs’ Amended
Complaint, claiming that the projects conceived in the MDA and the First Amendment
cannot be designated as TOD, the Circuit Court stated that Md. Code (1977, 2008 Repl.
Vol.), Transportation Art., § 7-101, et seq. “permit[s] the Maryland Secretary of
Transportation and local governments or multicounty agencies discretion in applying
TOD designation” and, thus, found no merit in the argument. As to Count VII, the
Circuit Court found that the provisions of the MDA and the First Amendment “are
principally funded by the Maryland Economic and Development Corporation, which
carries out its corporate purposes without the consent of any State unit and without being
subjected to General Procurement Law,” pursuant to Md. Code (2008), Economic
Development Art., § 10-111. Lastly, as to Count VIII, the judge found that “the
extraordinary remedy of injunctive relief is not necessary or appropriate because
Defendants have voluntarily refrained from acting under the [MDA] and the First
Amendment . . . , and the legal issue is resolved by the declaratory relief granted herein.”
21
The State Agencies and the Developers (now Appellants) appealed timely to the
Court of Special Appeals, but also petitioned contemporaneously this Court for a writ of
certiorari and sought expedited review of three questions:
(1) Did the [C]ircuit [C]ourt err in concluding that the State Center Project violates
State procurement law on the ground that the project is “a complex, creative way
to develop” land owned by the State?
(2) Does the Circuit Court for Baltimore City lack jurisdiction to address, in the first
instance, the plaintiffs’ claim that the State Center Project violates State
procurement law, because such claims fall within the primary or exclusive
jurisdiction of the Maryland State Board of Contract Appeals?
(3) Do the plaintiffs lack standing, under the taxpayer standing theory they invoked, to
challenge the State Center Project, because they failed to allege facts to support
either their claim of illegal, ultra vires action or their contention that they will
suffer the requisite special damage if the State Center Project proceeds?
Appellees filed an Answer to the Petition for Writ of Certiorari and a Conditional Cross-
Petition for Writ of Certiorari. Appellees did not object to Appellants’ request for a writ
of certiorari on the first issue presented, but requested that the question be reframed, so as
not to “distort[] and truncate[] the lower court’s decision,” as follows:
Did the [C]ircuirt [C]ourt correctly hold that the essence and true nature of
the State Center development agreements was not a simple disposition of
land, but rather a complex financing plan for the State’s acquisition of
construction, construction-related services, and leaseholds, and that the
acquisitions were subject to the requirement of competitive sealed
proposals.
Appellees objected to the second and third questions presented by Appellants on the
grounds that “[they] present ordinary issues that are not certworthy and arise from rulings
on Petitioners’ Motions to Dismiss that were not raised in Petitioners’ Motions for
22
Summary Judgment or addressed by the [C]ircuit [C]ourt’s summary judgment.” As to
Appellees’ Cross-Petition, they sought review of the following question:
Did the [C]ircuit [C]ourt err in declining to review the belated and defective
designation of the State Center Project as a Transit-Oriented Development
that permitted the Project to be unlawfully prioritized, and improperly
receive substantial site-selection and other benefits?
We issued, prior to a decision in the Court of Special Appeals, a Writ of Certiorari
regarding the three questions tendered in Appellants’ Petition for Writ of Certiorari and
the additional question tendered in Appellees’ conditional Cross-Petition. 430 Md. 344,
61 A.3d 344 (2012). Thus, on appeal, we confront the following questions, if necessary
to reach them all in order to decide this case:
1) Did the trial court err in concluding that the State Center Project violates
[the] State Procurement Law on the grounds that the project is not a simple
disposition of land but "a complex, creative way to develop" land owned by
the State that should have been subject to the requirement of competitive
sealed proposals?
2) Does the Circuit Court for Baltimore City lack jurisdiction to address
Appellees’ claim that the project violates [the] State Procurement Law
because such claims fall within the primary or exclusive jurisdiction of the
Maryland State Board of Contract Appeals?
3) Do Appellees lack standing, under the taxpayer standing theory, to
challenge the project because they failed to allege facts to support either
their claim of illegal, ultra vires action or their contention that they will
suffer special damage if the project proceeds?
4) Did the trial court err in declining to review the belated designation of
the project as a Transit-Oriented Development, a designation which
permitted the project to be prioritized and receive substantial site-selection
and other benefits?
23
On 1 February 2013, the State Agencies and the Developer moved for an immediate stay
of enforcement of the judgment of the Circuit Court for Baltimore City entered on 24
January 2013. We denied this Motion on 12 February 2013.
III. APPELLEES’ MOTION TO DISMISS THE APPEAL
Appellees included in their brief a Motion to Dismiss certain arguments mounted
in the State Agencies’ appeal on the basis, provided in Maryland Rule 8-602(a)(1), that
the arguments are not permitted by the Maryland Rules or other law. Appellees moved to
dismiss “portions” of the Appellants’ Brief that are directed to questions that “(a) are not
included in the writ of certiorari; (b) are not certworthy; and (c) were not presented to
and/or decided by the [C]ircuit [C]ourt.” Specifically, Appellees argued that the Court
should not entertain three arguments—(1) laches; (2) lack of a private right of action; and
(3) lack of privity of contract—which the State Agencies raised in their brief, but which
were not contained in their Petition for, or the Writ of, Certiorari. In response, the State
Agencies averred that Appellees failed to assert any ground upon which this Court is
authorized to dismiss an appeal, pursuant to Rule 8-602(a) and, therefore, the Motion
should be denied. We shall deny Appellees’ Motion to Dismiss.
The alleged shortcomings (that certain arguments were unpreserved and/or not
presented properly in the Petition for Writ of Certiorari) are not proper grounds for the
dismissal of an appeal, as provided by Maryland Rule 8-602(a). Instead, the points
advanced in the Motion to Dismiss are addressed by Maryland Rule 8-131, which
provides the proper context for our appellate review and governs the manner in which
this Court deals with alleged arguments that are unpreserved and not presented properly
24
in the grant of the Writ of Certiorari. As will be seen after examining these rules, the
proper scope of our appellate review under Rule 8-131 is not co-extensive with the bases
for granting a motion to dismiss, as provided in Rule 8-602. Thus, although Maryland
Rule 8-131 states explicitly that it limits the Court’s jurisdiction, a motion to dismiss is
not the proper method to ask this Court not to address an assertedly unpreserved or
improperly presented argument.
Maryland Rule 8-602(a) governs the grounds for which this Court may dismiss an
appeal. It provides:
On motion or on its own initiative, the Court may dismiss an appeal for any of the
following reasons:
(1) the appeal is not allowed by these rules or other law;
(2) the appeal was not properly taken pursuant to Rule 8-201;
(3) the notice of appeal was not filed with the lower court within the time
prescribed by Rule 8-202;
(4) the appellant has failed to comply with the requirements of Rule 8-205;
(5) the record was not transmitted within the time prescribed by Rule 8-412,
unless the court finds that the failure to transmit the record was caused by the act
or omission of a judge, a clerk of court, the court reporter, or the appellee;
(6) the contents of the record do not comply with Rule 8-413;
(7) a brief or record extract was not filed by the appellant within the time
prescribed by Rule 8-502;
(8) the style, contents, size, format, legibility, or method of reproduction of a
brief, appendix, or record extract does not comply with Rules 8-112, 8-501,
8-503, or 8-504;
(9) the proper person was not substituted for the appellant pursuant to Rule
8-401; or
(10) the case has become moot.
25
Md. Rule 8-602(a). 17 Neither a lack of preservation nor failure to present an argument in
the petition for writ of certiorari is listed as a permissible ground upon which this Court
may dismiss an appeal. 18
Instead of calling for dismissal of an unpreserved question or argument, the
applicable Maryland Rules and our case law governing consideration of unpreserved
issues and issues not raised in the petition for certiorari grant this Court the discretion to
address the issue in its opinion. Specifically, Md. Rule 8-131(a) provides that, where an
issue or argument was not preserved for appellate review, this Court possesses discretion
whether to reach and resolve the matter. Moreover, Md. Rule 8-131(b) governs whether
this Court will determine an issue or argument not raised in the petition for writ of
certiorari or cross-petition.
Because Appellees failed to allege any grounds that warrant dismissal of an appeal
under Md. Rule 8-602(a), we deny Appellees’ Motion to Dismiss. Instead, we shall
address, pursuant to the applicable Md. Rule 8-131, the State Agencies’ alleged failures
17
Maryland Rule 8-603(c) limits the possible grounds for a motion to dismiss
included in an appellee’s brief to subsections (1), (2), (3), (9), or (10) of Md. Rule
8-602(a).
18
Even if the alleged shortcomings were listed as proper grounds for a motion to
dismiss an appeal in this Court, whether to dismiss the appeal is within the discretion of
the Court. See, e.g., Woods v. Constantine, 337 Md. 487, 489, 654 A.2d 885, 885 (1995)
(recognizing that, because “Maryland Rule 8–602(a)(10) authorizes, rather than mandates
the dismissal of a moot appeal,” the appellate courts “ha[ve] discretion to decide a
question which has become moot” even though it may be subject to dismissal pursuant to
Md. Rule 8-602) (citations omitted); Leavy v. Am. Fed. Sav. Bank, 136 Md. App. 181,
191, 764 A.2d 366, 371 (2000) (“Dismissal of an appeal, however, is a discretionary
matter.”) (citations omitted).
26
(both to preserve all issues in the Circuit Court and to raise them properly in the Petition
for Writ of Certiorari), and the propriety of addressing such issues on the record before
us, at appropriate places in this opinion. 19
IV. APPLICABLE STANDARDS OF APPELLATE REVIEW
This appeal arises from both the Circuit Court’s denial of the State Agencies’ and
the Developers’ Motions to Dismiss and its partial grant and partial denial of their
collective Motion for Summary Judgment (we shall attribute hereafter the Motions to the
State Agencies, with the understanding that the Developers joined them as well). Thus,
the standard of review differs depending on context. We relate briefly the overarching
principles that guide our review of the Circuit Court’s judgment here, but may repeat
later the relevant portions in our discussion of the individual questions presented and
related arguments.
In reviewing whether the Circuit Court denied properly the State Agencies’
Motions to Dismiss, we employ the following principles:
Considering a motion to dismiss a complaint for failure to state a claim
upon which relief may be granted, a court must assume the truth of, and
view in a light most favorable to the non-moving party, all well-pleaded
facts and allegations contained in the complaint, as well as all inferences
that may reasonably be drawn from them, and order dismissal only if the
19
Appellees included the merits of some of their arguments in their Motion to
Dismiss the appeal. In their Brief, they chose not to repeat their arguments, but rather
referenced their arguments stated in their Motion to Dismiss. Although we address these
arguments in this case, we point out that ordinarily we do not permit parties to argue the
merits of issues in a motion to dismiss. Permitting this practice permits improperly (i.e.,
without our prior permission) Appellees to have the final word on the argument (in their
Reply to Appellants’ Response to Motion to Dismiss) and potentially to expand the
number of pages permitted for the merits.
27
allegations and permissible inferences, if true, would not afford relief to the
plaintiff, i.e., the allegations do not state a cause of action for which relief
may be granted. Consideration of the universe of “facts” pertinent to the
court's analysis of the motion are limited generally to the four corners of the
complaint and its incorporated supporting exhibits, if any. The well-pleaded
facts setting forth the cause of action must be pleaded with sufficient
specificity; bald assertions and conclusory statements by the pleader will
not suffice. Upon appellate review, the trial court's decision to grant such a
motion is analyzed to determine whether the court was legally correct.
RRC Ne., LLC v. BAA Maryland, Inc., 413 Md. 638, 643-44, 994 A.2d 430, 433-34
(2010) (internal citations omitted).
With regard to the partial grant and partial denial of the summary judgment
Motion, Barclay v. Briscoe, 427 Md. 270, 47 A.3d 560 (2012), serves as an apt authority
iterating our standard of review:
Under Maryland Rule 2–501, the grant of a motion for summary judgment
is appropriate only “if the motion and response show that there is no
genuine dispute as to any material fact and that the party in whose favor
judgment is entered is entitled to judgment as a matter of law.” Rule
2–501(f). As we recently stated in Muskin v. State Dep't of Assessments &
Taxation, 422 Md. 544, 30 A.3d 962 (2011), “[w]hether a circuit court's
grant of summary judgment is proper in a particular case is a question of
law, subject to a non-deferential review on appeal.” Muskin, 422 Md. at
554, 30 A.3d at 967 (citing Conaway v. Deane, 401 Md. 219, 243, 932
A.2d 571, 584 (2007)). Thus, “[t]he standard of review of a trial court's
grant of a motion for summary judgment on the law is . . . whether the trial
court's legal conclusions were legally correct.” “In reviewing a grant of
summary judgment, we independently review the record to determine
whether the parties generated a dispute of material fact and, if not, whether
the moving party was entitled to a judgment as a matter of law.” In
determining whether a fact is material we have said that “a dispute as to
facts relating to grounds upon which the decision is not rested is not a
dispute with respect to a material fact and such dispute does not prevent the
entry of summary judgment.”
28
We review the record in the light most favorable to the non-moving party
and construe any reasonable inferences that may be drawn from the well-
pled facts against the moving party. Further, an appellate court ordinarily
should limit its review of a grant of a motion for summary judgment to
“only the grounds upon which the trial court relied in granting summary
judgment.”
427 Md. at 281-82, 47 A.3d at 566-67 (some internal citations omitted).
V. ANALYSIS
A. JUSTICIABILITY
“Concepts of justiciability have been developed to identify appropriate occasions
for judicial action.” Charles A. Wright, et al., Federal Practice and Procedure § 3529, at
611 (2008). “Numerous doctrines have evolved under the justiciability umbrella which
are aimed at isolating those circumstances in which courts should withhold decision,
either from deference to the particular authority and competence of another branch of
government, or from recognition of the functional limitations of the adversary system.”
Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1186 (Wyo. 1992).
Among the doctrines under the umbrella of justiciability is standing. The concept
of standing has been described as “one of ‘the most amorphous (concepts) in the entire
domain of public law.’” Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942, 1952, 20 L. Ed.
2d 947 (1968) (quoting Hearings on S. 2097 Before the Subcomm. on Constitutional
Rights of the Senate Judiciary Comm., 89th Cong., 2d Sess. 498 (1966) (statement of
Prof. Paul A. Freund)). The history of the law on standing, described also as “cluttered,
29
confused, and contradictory . . . ,” fairs no better. 20 3 Kenneth C. Davis, Administrative
Law Treatise, § 22.18 (1965 Supp.). Justice William O. Douglas observed on one
occasion that “[g]eneralizations about standing to sue are largely worthless as such.”
Ass’n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 151, 90 S. Ct 827,
829, 25 L. Ed. 2d 184 (1970).
In the present case, the parties throw the textbook on standing at the Court.
Unfortunately, the chapters in that textbook regarding Maryland law are often confusing
and contradictory. One aspect of this confusion stems from the very definition of the
concept of standing and its relation to other justiciability concepts. In particular, “the
concept of the cause of action figures prominently in debates over how courts should
analyze standing issues.” Anthony J. Bellia, Jr., Article III and the Cause of Action, 89
Iowa L. Rev. 777, 779 (2004). Thus, we begin with a general discussion of these
concepts, as presented in this State and comparatively or analogously in the federal
courts.
“Under current [Supreme Court] doctrine, federal courts determine whether a
plaintiff has standing by asking whether the plaintiff has suffered an injury in fact that is
fairly traceable to the defendant’s conduct and that is likely to be redressed by a decision
in the plaintiff’s favor.” Bellia, supra, at 779 n.5 (citing Lujan v. Defenders of Wildlife,
504 U.S. 555, 560-61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992)). Under this
20
While Professors Freund and Davis referred in these quotations to the federal
doctrine of taxpayer standing, these descriptions apply equally as well to the status of
Maryland’s taxpayer standing doctrine.
30
doctrine, the concepts of jurisdiction, standing, cause of action, 21 and remedy were
treated separately. In order for the federal courts to reach a claim properly, the complaint
must meet the requirements for each of these doctrines as a prerequisite to judicial review
of the claim. The Supreme Court of the United States explained the basic concept of
each doctrine (in terms of the federal judicial system) as follows:
[J]urisdiction is a question of whether a federal court has the power, under
the Constitution or laws of the United States, to hear a case; standing is a
question of whether a plaintiff is sufficiently adversary to a defendant to
create an Art. III case or controversy, or at least to overcome prudential
limitations on federal-court jurisdiction; cause of action is a question of
whether a particular plaintiff is a member of the class of litigants that may,
as a matter of law, appropriately invoke the power of the court; and relief is
a question of the various remedies a federal court may make available.
Davis v. Passman, 442 U.S. 228, 239 n.18, 99 S. Ct. 2264, 2274 n.18, 60 L. Ed. 2d 846
(1979) (internal citations omitted). That a plaintiff may satisfy one of these requisites
does not mean necessarily that he can meet the other requirements. For example, the
21
Some scholars criticize the federal courts’ continued use of the concept of the
cause of action. As Professor Bellia explained,
the concept of the cause of action is supposed to be dead. The framers of
the Federal Rules of Civil Procedure omitted the term from the Rules
purposefully, employing instead the concept of “claim.” We were to think
in terms of claims rather than in terms of causes of action because the latter
term was fraught with formal technicalities that served no good functional
purpose. Certain manners of legal discourse, however, die hard. By all
appearances, the concept of the cause of action is thriving. In 2002, federal
courts employed the term cause of action in over 8000 opinions. That same
year, legal commentators employed the term in over 4000 journal and law
review articles. One context in which courts and scholars regularly invoke
the term is in formulating and analyzing doctrines of federal judicial power.
Anthony J. Bellia, Jr., Article III and the Cause of Action, 89 Iowa L. Rev. 777, 778
(2004) (footnotes omitted).
31
Supreme Court explained, “[a] plaintiff may have a cause of action even though he be
entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or
injunctive relief although his case does not fulfill the ‘preconditions’ for such equitable
remedies.” Id. (citing Trainor v. Hernandez, 431 U.S. 434, 440-43, 97 S. Ct. 1911,
1916-17, 52 L. Ed. 2d 486 (1977)).
In Davis v. Passman, the Supreme Court concluded that the petitioner had
standing to bring the suit because, “[i]f the allegations of her complaint are taken to be
true, she has shown that she ‘personally has suffered some actual or threatened injury as a
result of the putatively illegal conduct of the defendant.’” Id. (quoting Gladstone
Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S. Ct. 1601, 1608, 60 L. Ed. 2d 66
(1979)). Despite concluding that the petitioner had standing, the Supreme Court
emphasized that “[w]hether petitioner has asserted a cause of action, however, depends
not on the quality or extent of her injury, but on whether the class of litigants of which
petitioner is a member may use the courts to enforce the right at issue. The focus must
therefore be on the nature of the right petitioner asserts.” Id.
This approach, which analyzes standing and cause of action as separate concepts,
has not been embraced by all courts and has been criticized by many scholars. 22 The
alternative approach, sometimes referred to as “cause of action” standing, simply asks
22
See generally David P. Currie, Misunderstanding Standing, 1981 Sup. Ct. Rev.
41 (1981); Lee A. Albert, Standing to Challenge Administrative Action: An Inadequate
Surrogate for Claim for Relief, 83 Yale L.J. 425 (1975); William A. Fletcher, The
Structure of Standing, 98 Yale L.J. 221 (1988).
32
whether governing law confers on the plaintiff a right to bring the claim to the courts.
Bellia, supra, at 779. Part of the rationale is that standing and cause of action are so
interrelated that it is difficult to analyze one without the other creeping into the analysis. 23
Apparently, the appellate courts in Maryland have adopted the “cause-of-action”
approach, 24 which groups the traditionally distinct concepts of standing and cause of
23
Professor Bellia expanded on this interrelation as follows:
Consider three fundamental questions of the scope of the Article III judicial
power: what kinds of cases Congress may empower federal courts to
adjudicate (jurisdiction), who may initiate a case in federal court (standing),
and when a federal court may afford a plaintiff a private remedy for the
violation of a federal regulatory scheme (implied rights of action). Federal
courts have answered each of these questions, and scholars have evaluated
their answers, based on certain presuppositions regarding when a cause of
action exists and what the properties of a cause of action are. Take first the
question of jurisdiction. To determine whether a case that Congress has
empowered a federal court to hear is one “arising under” federal law for
purposes of Article III, federal courts ask whether a federal question forms
an “ingredient of the original cause” that the plaintiff is asserting. As a
court applies the ingredient test, what it understands a “cause” to be is
crucial to the outcome: the more pliable the court's conception of a cause of
action (and thus the more fluid the ingredients of one), the more likely the
court will be to sustain a congressional grant of jurisdiction. Courts and
scholars appear to share a pliable understanding of the cause of action in
this context, and, accordingly, they have concluded that Congress has a vast
power to confer “arising under” jurisdiction on the federal courts.
Similarly, the concept of the cause of action figures prominently in
debates over how courts should analyze standing issues. In particular,
scholars have argued that federal courts should abandon their current
approach to standing in favor of an approach that simply asks whether the
plaintiff has a cause of action under a federal regulatory scheme.
Bellia, supra, at 778-79 (emphasis added) (footnotes omitted).
33
action into a single analytical construct, labeled as “standing,” to determine whether “the
plaintiff [has] show[n] that he or she ‘is entitled to invoke the judicial process in a
particular instance.’” Kendall v. Howard Cnty., 431 Md. 590, 593, 66 A.3d 684, 685
(2013) (quoting Adams v. Manown, 328 Md. 463, 480, 615 A.2d 611, 619 (1992)); see
also 120 West Fayette St., LLLP v. Mayor of Baltimore, 407 Md. 253, 270, 964 A.2d 662,
671-72 (2009) (“As to standing, the question is ‘whether the interest sought to be
protected by the complainant is arguably within the zone of interests to be protected or
regulated by the statute or constitutional guarantee in question.’”) (quoting News
American v. State, 294 Md. 30, 40, 447 A.2d 1264, 1269 (1982)); Adams, 328 Md. at
480, 615 A.2d at 619 (“One requirement of justiciability is that the plaintiff have standing
in the sense that the person is entitled to invoke the judicial process in a particular
instance.”) (citing Reyes v. Prince George's Cnty., 281 Md. 279, 288, 380 A.2d 12, 17
(1977)); Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md. App. 479, 501, 822
A.2d 478, 491 (2003) (“For an affected interest to furnish a basis for aggrieved person
standing, the interest must be legally protected. Thus, just as an impact on a person’s
property interest affords a basis for standing, an impact on a person’s interest arising out
of contract, protected from tortious invasion, or founded on a statute that confers a
privilege likewise provides a basis for standing.”).
(…continued)
24
We temporize by using the descriptor “apparently” because, upon review of our
case law, it does not appear that this Court adopted this approach purposefully. Rather, it
is simply a convention with which this Court fell into step.
34
As such, we must understand the claims that are brought by a plaintiff prior to
attempting to answer a challenge of standing. Thus, we provide first an overview of the
procurement claims brought by Appellees, prior to analyzing whether they are required to
exhaust administrative remedies or to aver a private right of action, and whether they
have standing under either the taxpayer or property owner standing doctrines. 25
1. Procurement Claims Brought by Appellees as Plaintiffs.
The State Finance and Procurement Article of the Maryland Code, see SFP §§ 11-
101 to 17-402, and its regulations, see Code of Maryland Regulations (COMAR)
21.01.01 to .14.07, govern the solicitation and award of certain state contracts for the
purchase of goods and services. See Univ. of Md. v. MFE Inc., 345 Md. 86, 92, 691 A.2d
676, 679 (1997) (“State procurement is governed by statute and regulation . . . ”). This
set of Procurement statutes and regulations reflects the wide range of interests in the
award of government contracts: “[a] contract with the State implicates the community of
taxpayers and its representatives, procurement officers and their using agencies, and the
MSBCA [Maryland State Board of Contract Appeals] members and the judges who
review MSBCA decisions under the Administrative Procedures Act (APA).” Scott A.
25
Although we granted Appellees’ Cross-Petition to consider potentially whether
the trial court erred in declining to review the belated and defective designation of the
Project as a TOD, Appellees chose not to pursue it on their cross-appeal “[b]ecause it is
not necessary to present the transit-oriented development (‘TOD’) issue in order to
support affirmance,” but summarized their arguments on the issue briefly in a footnote in
their initial brief. The State Agencies, in their Reply Brief, stated that “the plaintiffs have
dropped any appeal from that ruling [referring to that of the TOD designation].”
Similarly, we conclude that, because Appellees stated explicitly that they chose not to
pursue the issue on appeal, we do not address it either.
35
Livingston & Lydia B. Hoover, Principles of Maryland Procurement Law, 29 U. Balt. L.
Rev. 1, 2 (1999).
Where a contract is a “procurement contract,” the Procurement Code sets forth
various methods for procuring goods and services: competitive sealed bidding;
competitive sealed proposals; non-competitive negotiation for human, social or
educational services; sole source procurement; emergency or expedited procurement;
small procurement; intergovernmental cooperative purchasing; auction bids; and
unsolicited proposals. See SFP § 13-102. A “procurement contract” is defined as “an
agreement in any form entered into by a unit for procurement . . . .” 26 SFP § 11-101(n).
Moreover, “procurement” is defined as “the process of (i) leasing real or personal
property as lessee; or (ii) buying or otherwise obtaining supplies, 27 services, 28
26
The statute defining a “procurement contract” excludes “(i) a collective
bargaining agreement with an employee organization; (ii) an agreement with a
contractual employee . . . ; (iii) [certain] reimbursement contract[s] . . . ; or (iv) a
Medicaid contract with a managed care organization . . . .” SFP § 11-101(n)(2).
27
“Supplies” means, among other things, tangible personal property and services
necessarily associated with tangible personal property. SFP § 11-101(w)(1). The term
“supplies” does not include an interest in real property. SFP § 11-101(w)(2).
28
“Services” is defined as follows: “Except as provided in paragraph (3) of this
subsection, “services” means: (i) the labor, time, or effort of a contractor; and (ii) any
product or report necessarily associated with the rendering of a service.” SFP § 11-
101(t)(1). The term “includes services provided by attorneys, accountants, physicians,
consultants, and other professionals who are independent contractors” but “does not
include (i) construction related services; (ii) architectural services; (iii) engineering
services; or (iv) energy performance contract services.” SFP § 11-101(t)(2)-(3).
36
construction, 29 construction related services, 30 architectural services, 31 engineering
services, 32 or services provided under an energy performance contract,” and states that
the term “includes the solicitation and award of procurement contracts and all phases of
29
“Construction” is defined as “the process of building, altering, improving, or
demolishing an improvement to real property.” SFP § 11-101(e)(1). The term “includes
any major work necessary to repair, prevent damage to, or sustain existing components of
an improvement to real property” but “does not include the maintenance or routine
operation of an existing improvement to real property, or activities related to an energy
performance contract.” SFP § 11-101(e)(2)-(3).
30
“Construction related services” is defined as “feasibility studies, surveys,
construction management, construction inspection, and similar efforts associated with
construction or the acquisition of public improvements as defined in § 4-401(d) of this
article.” SFP § 11-101(f)(1). “Construction related services” does not include services
provided in connection with an energy performance contract. SFP § 11-101(f)(2).
31
“Architectural services” is defined as “professional or creative work that: (i) is
performed in connection with the design and supervision of construction or landscaping;
and (ii) requires architectural education, training, and experience.” SFP § 11-101(b)(1).
The term “includes consultation, research, investigation, evaluation, planning,
architectural design and preparation of related documents, and coordination of services
that structural, civil, mechanical, and electrical engineers and other consultants provide,”
but “does not include construction inspection services or services provided in connection
with an energy performance contract for structural, mechanical, plumbing, or electrical
engineering.” SFP § 11-101(b)(2)-(3).
32
“Engineering services” is defined as “professional or creative work that: (i) is
performed in connection with any utility, structure, building, machine, equipment, or
process, including structural, mechanical, plumbing, electrical, geotechnical, and
environmental engineering; and (ii) requires engineering education, training, and
experience in the application of special knowledge of the mathematical, physical, and
engineering sciences.” SFP § 11-101(i)(1). The term “includes consultation,
investigation, evaluation, planning, design, and inspection of construction to interpret and
ensure compliance with specifications and design within the scope of inspection
services.” SFP § 11-101(i)(2).
37
procurement contract administration.” SFP § 11-101(m). Subtitle 2 of Title 15 of the
Procurement Code sets forth the statutory remedies for “dispute resolution” involving
procurements under the Procurement Article.
The Procurement Code’s general requirements are subject to many exceptions.
For example, certain agencies are not subject to the State’s general procurement laws.
See, e.g., Building Materials Corp. of America v. Bd. of Educ. of Baltimore Cnty., 428
Md. 572, 576, 53 A.3d 347, 349 (2012) (noting that local schools boards are not subject
to the State’s general procurements laws). Procurement by those agencies are governed
generally by other State statutes. See, e.g., Md. Code (1978, 2008 Repl. Vol.), Education
Article § 5-112 (requiring local school boards to comply with competitive bidding
procedures in certain circumstances). The Executive Branch is permitted to enter
contracts, which do not fall within the definition of a “procurement contract,” without
compliance with the aforementioned provisions, but which are subject sometimes to other
restrictions. One example, which is relevant for purposes of this appeal, is SFP § 10-305,
which provides that, subject to certain exceptions not pertinent here, “any real or personal
property of the State or a unit of the State government may be sold, leased, transferred,
exchanged, granted, or otherwise disposed of” to “any person . . . for a consideration the
Board [of Public Works] decides is adequate.” SFP § 10-305(a)(1). Additionally, certain
types of transactions (none of which are relevant here) are exempted from the
procurement law altogether. See SFP § 11-203(a).
In the present case, the State issued a RFQ to solicit a “Master Developer” to
carry-out the State Center Project. The State asserts that the Project—and its solicitation
38
and formative contracts—were not subject to the Procurement Law because the
transaction was principally a transfer of an interest in real property. According to the
State Agencies, a RFQ was used as the initiating mechanism in light of the anticipated
need for continued cooperation between the Developers and the State over the course of a
multi-phase development. The MDA, First Amendment, and ground and occupancy
leases were entered into by the parties according to the envisioned plan as described in
the RFQ. Future occupancy leases would be awarded via the “sole source” authority
pursuant to SFP § 13-107.
Appellees counter that the term “RFQ,” a term which does not appear in SFP
Division II, is not a competitive source selection procedure. They argue that this
approach was improper because the “essence” of the transaction was not the transfer of
interests in real property, but the construction of the State Center complex for state
offices. Moreover, according to Appellees, the “swap-out” of the members of the
original Developers’ group, State Center, LLC, in 2009 and 2010, was a material change
that required competitive source selection, under SFP Division II, of new members of the
Developers for the Project. Lastly, Appellees aver that the State “may not manufacture
the conditions that give rise to a sole source and then claim that there is only one vendor
capable of performing the task.”
In challenging these aspects of the Project, Appellees did not challenge in their
Original Complaint the RFQ because “it was not a binding development agreement for
the Project.” Instead, they waited until late 2010 to challenge the “swap-out” of the
members of the Developers’ group, as well as the MDA, the First Amendment, two
39
ground leases, four occupancy leases, and the future occupancy leases—all in a fell
swoop. This approach triggers an additional level of analysis because, for each issue, we
must decide whether we view the issue in light of the “essence” of the entire State Center
Project or as individual challenges to each binding document. As will be seen later in
this opinion, the appropriate approach depends on which challenge we are analyzing.
We address first the claims by the State Agencies that, because the Legislature
established an administrative agency (the Maryland State Board of Contract Appeals) to
review protests relating to procurement contracts, Appellees were required to exhaust the
available statutory administrative remedies. Because the Appellees failed to do so here,
the State Agencies argue, they lacked the ability to prosecute their claims before the
Circuit Court. Next, we shall address the State Agencies’ contention that Appellees lack
the right to bring their claim to the Circuit Court because they have no private right of
action. Based on our disposition of these points, we move to addressing those predicates,
as claimed by Appellees’ complaint, that they have the right to maintain their claims
under the property owner standing and/or taxpayer standing doctrines.
2. Are the statutory administrative remedies really “available” here?
One ground upon which a claimant may seek to redress an alleged wrong is
through an administrative process, if one is provided to the claimant by the Legislature.
“A claimant ordinarily must seek to redress the wrong of which he
complains by using the statutory procedure the legislature has established
for that kind of case, if it is adequate and available, and that if he is
unsuccessful and wishes aid from the courts, he must take judicial appeals
in the manner the legislature has specified rather than by seeking to invoke
the ordinary general jurisdiction of the courts. . . . Consequently, we have
40
consistently held that where a special form of remedy is provided, the
litigant must adopt that form and must not bypass the administrative body
or official, by pursuing other remedies.”
Maryland Comm'n on Human Relations v. Mass Transit Admin., 294 Md. 225, 231, 449
A.2d 385, 388 (1982) (internal brackets omitted) (quoting Prince George’s Cnty. v.
Blumberg, 288 Md. 275, 283-84, 418 A.2d 1155, 1160 (1980)).
In the present case, the State Agencies argue that Appellees’ Procurement Code
claims fall under the exclusive jurisdiction of an administrative agency, the Maryland
State Board of Contract Appeals, or the “Appeals Board” as the Code sometimes refers to
it. See, e.g., SFP § 15-201 (“‘Appeals Board’ means the Maryland State Board of
Contract Appeals”). Section 15-211(a)(1) of the State Finance and Procurement Article
provides that “[t]he Appeals Board shall have jurisdiction to hear and decide all appeals
arising from the final action of a unit . . . on a protest relating to the formation of a
procurement contract . . . .” (Emphasis added.) The State Agencies argue that, because
Appellees’ claims on-their-face “relat[e] to the formation of a procurement contract,” the
General Assembly provided an explicit and exclusive remedy through the administrative
appeal process of the Appeals Board for the violations alleged. Because Appellees failed
to exhaust this exclusive remedy, the State Agencies aver that Appellees lacked the
ability to bring this suit in the Circuit Court.
In response, Appellees plead ineligibility to file a protest with the Appeals Board.
Therefore, the Appeals Board could not entertain their claims. Accordingly, they are not
required to exhaust the administrative remedy alleged by the State Agencies because that
road was closed to them.
41
The Circuit Court found that “[w]hile it is arguable that Plaintiffs’ complaint may
be in the nature of a ‘protest,’ given that Plaintiffs are not prospective bidders or offerors,
or bidders or offerors, they would not be entitled to submit such a protest to the Appeals
Board.” Further, the Circuit Court reasoned that, “the absence of a procurement contract
arguably precludes the submission of a contract claim.” The Court explained,
With regard to a contract claim, the Board clearly has jurisdiction over
disputes arising out of performance, breach, modification or termination of
a procurement contract. Plaintiffs allege that certain contracts and/or
agreements entered into by the State were not made in accordance with
procurement law. Arguably, Plaintiffs take issue with the formation of
these contracts, to which they are not a party. Therefore, it appears that this
is not the type of “contract claim” contemplated to be within the Board’s
jurisdiction.
The Circuit Court concluded that, “[u]pon review of [SFP] §§ 15-215, 217 and COMAR
21.02.02.02, . . . [the] Plaintiffs are not required to bring their claims before the Maryland
State Board of Contract Appeals.”
In reviewing whether the Circuit Court denied properly the State Agencies’
Motion to Dismiss, we “assume the truth of, and view in a light most favorable to the
non-moving party, [Appellees,] all well-pleaded facts and allegations contained in the
complaint, as well as all inferences that may reasonably be drawn from them . . . .” RRC
Ne., LLC, 413 Md. at 643, 994 A.2d at 433 (citations omitted). Dismissal is proper “only
if the allegations and permissible inferences, if true, would not afford relief to the
plaintiff, i.e., the allegations do not state a cause of action for which relief may be
granted.” Id. (citations omitted). Upon appellate review, the trial court's decision to
42
grant or deny such a motion is analyzed to determine whether the court was legally
correct.
We conclude that the Circuit Court’s denial of the Motions to Dismiss was correct
as a matter of law. In deference to the Legislature, we hold consistently that “‘[w]here an
administrative agency has primary or exclusive jurisdiction over a controversy, the
parties to the controversy must ordinarily await a final administrative decision before
resorting to the courts for resolution of the controversy.’” Laurel Racing Ass’n v. Video
Lottery Facility Location Comm’n, 409 Md. 445, 461, 975 A.2d 894, 904 (2009) (quoting
State v. State Bd. of Contract Appeals & Law Offices of Peter G. Angelos, 364 Md. 446,
457, 773 A.2d 504, 510 (2001)). We have held that the Appeals Board, under Title 15 of
the State Finance and Procurement Article, has either primary or exclusive jurisdiction.
Peter G. Angelos, 364 Md. at 457, 773 A.2d at 510-11 (citing Driggs Corp. v. Md.
Aviation, 348 Md. 389, 406-08, 704 A.2d 433, 442-43 (1998)); see also Laurel Racing
Ass’n, 409 Md. at 460-65, 975 A.2d at 903-06 (examining a number of cases in which
this Court has so held). “Consequently, a party must exhaust the administrative remedy
and obtain a final administrative decision by the [Appeals Board] before resorting to the
courts.” Laurel Racing Ass’n, 409 Md. at 460, 975 A.2d at 903.
This requirement for exhaustion of administrative remedy applies, however, only
if the Appeals Board has jurisdiction of the claim under scrutiny. Where there is no
statutory basis for the Appeals Board’s jurisdiction over a claim, the Appeals Board may
not entertain the claim. See, e.g., MFE Inc., 345 Md. at 104-05, 691 A.2d at 685 (holding
that, because the Procurement statutes did not include governmental agencies in the list of
43
those parties who could appeal the final action of a unit, the Appeals Board lacked
subject matter jurisdiction over the governmental agency’s claim relating to a
procurement contract). Where the jurisdiction of the administrative agency is an issue,
the court must determine “whether, under all of the circumstances, the parties are entitled
to a judicial decision concerning the nature of the contract prior to a final decision by the
[Appeals Board].” Peter G. Angelos, 364 Md. at 457, 773 A.2d at 510. We have
required the courts to “await a final decision by the agency before reviewing the matter
unless the administrative agency is palpably without jurisdiction.” MFE Inc., 345 Md. at
104-05, 691 A.2d at 685 (quoting Peter G. Angelos, 364 Md. at 458, 773 A.2d at 511)
(internal quotation marks omitted). Thus, we are tasked here with determining whether,
under the SFP, the Appeals Board was “palpably without jurisdiction” with regard to
Appellees’ claims.
Peter G. Angelos provides instructive guidance for our analysis. In that case, a fee
dispute arose out of a contract between the Office of the Maryland Attorney General and
a private law firm, pursuant to which the firm represented the State in tobacco litigation.
The firm filed three separate contract claims to the Attorney General, who denied all
three claims. The firm appealed administratively the Attorney General’s denials to the
Appeals Board. The Attorney General argued that the contract was not a procurement
contract and, thus, the Appeals Board had no jurisdiction.
Prior to any action by the Board, the State and the Attorney General filed in the
Circuit Court for Baltimore City a complaint seeking an injunction and a declaration that
the Board had no jurisdiction. The firm intervened. Additionally, the State and the
44
Attorney General filed a motion with the Appeals Board to dismiss the Firm’s appeal to
the Board for lack of jurisdiction. The Appeals Board determined that the disputed
contract was subject to the Procurement Code and denied the motion. Thus, at the time
the judicial appeal was heard, the administrative action was pending before the Board.
While the primary question on appeal was “whether the Attorney General’s
authority to hire private legal counsel is subject to Maryland’s general procurement law,”
Peter G. Angelos, 364 Md. at 450, 773 A.2d at 506, this Court noted that “the more
appropriate question is whether, under all of the circumstances, the parties are entitled to
a judicial decision concerning the nature of the contract prior to a final decision by the
Board of Contract Appeals.” Id., 364 Md. at 457, 773 A.2d at 510. We concluded that,
“[r]egardless of how the ‘procurement contract’ issue is ultimately resolved, it is obvious
that the [Appeals Board] is not ‘palpably without jurisdiction.’” Id., 364 Md. at 458, 773
A.2d at 511. We found that “[w]hile [the disputed contract] may or may not technically
be a ‘procurement contract’ within the meaning of the state procurement law, the issue is
obviously a reasonably debatable one.” Id. (emphasis added). Because the parties’
dispute on this point was “reasonably debatable,” we concluded that, “[a]s the agency
charged with making final administrative adjudications under the procurement law, the
[Appeals Board’s] determination of the issue, embodied in a final decision by the Board,
would be helpful prior to a judicial resolution of the issue.” Id.
In the present case, whether the formative enforceable contracts of the Project are
“procurement contracts” is “reasonably debatable.” Thus, if that were the only element
of the Appeals Board’s jurisdiction requiring consideration, then we would resolve that
45
the Appeals Board was not “palpably without jurisdiction” and the Circuit Court was
required to await a final decision of the Appeals Board prior to issuing any judicial
decision. The analysis, however, does not end there.
Section 15-211(a)(1) of the SFP provides, in pertinent part, that “[t]he Appeals
Board shall have jurisdiction to hear and decide all appeals arising from the final
action of a unit . . . on a protest relating to the formation of a procurement contract . .
.” 33 (emphasis added). Under the Procurement Law, however, the ability to obtain a
“final action of a unit” from which to appeal is limited to certain persons. As a
prerequisite to obtaining a “final action of a unit,” a person must file first a protest under
SFP §§ 15-217. Only certain persons may file a protest, however. As SFP § 15-220(a)
provides,
Except for a contract claim related to a lease for real property, a bidder or
offeror, a prospective bidder or offeror, a unit, or a contractor may
appeal the final action of a unit to the Appeals Board.
SFP § 15-220(a) (emphasis added). Therefore, a person who is not “a bidder or offeror, a
prospective bidder or offeror, a unit or a contractor” may not appeal the final action of a
unit to the Appeals Board.
The Circuit Court found that none of the Plaintiffs/Appellees in this case was “a
bidder or offeror, a prospective bidder or offeror, a unit or a contractor” to the challenged
33
Section 15-211(b) of the same article states that a “decision of the Appeals
Board is final, subject to any judicial review.” See also COMAR 20.10.01(a). Under
SFP § 15-223(a), a “decision of the Appeals Board is subject to judicial review in
accordance with Title 10, Subtitle 2 of the State Government Article,” the Maryland
Administrative Procedure Act. See also COMAR 20.10.01(b).
46
contracts and, thus, could not appeal the final action of the relevant unit to the Appeals
Board. Both in the trial court and on appeal, the State Agencies latch onto the fact that
“[i]n [Appellees’] first Complaint, the [Appellees] themselves alleged they were
‘excluded from the bidding process’ for the State Center contract. The [Appellees]
further contended that they were ‘ready, willing, and able to submit proposals to lease [to
the State] comparable office, retail and parking space . . . on terms that are more
favorable’ than those the State agencies allegedly are receiving from the defendant State
Center, LLC.” The State Agencies aver that “[a]fter reviewing the defendants’ first
motion to dismiss—explaining the indisputable legal requirement timely to initiate and
then to exhaust administrative remedies, the plaintiffs attempted to cleanse such
suggestions from their complaint.” The State Agencies, citing MEMC Electronic
Materials, Inc. v. BP Solar International, Inc., 196 Md. App. 318, 9 A.3d 508 (2010), for
the proposition that “a prior complaint is ‘an admission,’” urge that Appellees “cannot
walk away from prior allegations through pleading amendments.” Moreover, the State
Agencies contend that “[Appellees’] disagreement amongst themselves—between their
first complaint and amended complaint—demonstrates that their status as prospective
bidders is ‘reasonably debatable.’” Thus, in the State’s view, because “[i]f a question
determining the Board’s jurisdiction is ‘reasonably debatable,’ it must be submitted to the
Board first,” the Circuit Court “erred by resolving the question itself.”
We disagree with the State Agencies’ interpretation of precedent on the effect of
amended pleadings. In MEMC, the Court of Special Appeals restated the well-
established principle that “[f]or pleading purposes, an amended complaint that does not
47
incorporate or otherwise reference a prior complaint supersedes prior complaints and
becomes the operative complaint.” 196 Md. App. at 348, 9 A.3d at 526 (citing Shapiro v.
Sherwood, 254 Md. 235, 239, 254 A.2d 357, 359 (1969)). The intermediate appellate
court went on to recognize that “[t]his does not necessarily mean, however, that the
contents of a superseded pleading may not be admissible in evidence as an admission or
for purposes of impeachment.” Id. The court explained, “[a]s is true with all questions
of admissibility, . . . the admissibility of complaints has to be determined on a case by
case basis, after due consideration of relevance, potential prejudice, and any rule of
exclusion that might be applicable to specific content.” Id. The court found, in that case,
“the [circuit court’s] ruling [to not admit the contents of a superseded pleading into
evidence] was within the trial court’s discretion.” MEMC, 196 Md. App. at 349, 9 A.3d
at 526.
Applying those principles to the present case, we conclude that the Circuit Court’s
ruling that Appellees were not debatably “bidders or offerors” or “prospective bidders or
offerors,” 34 despite the allegations in the Original Complaint, was correct and made
34
The Circuit Court considered Appellees’ claims as aimed at the “challenged
contracts” generally. We agree to the extent that the “challenged contracts” included the
MDA, the First Amendment, and the Phase I ground leases. With regard to the Phase I
and future occupancy leases, however, we note that there could be “reasonable debate”
whether Appellees, as owners of assertedly competitive commercial office space, parking
facilities, and retail space, were capable of characterization as “prospective bidders.”
Thus, Appellees may qualify as a “prospective bidder” for some aspects of the State
Center Project. The State, however, did not seek bids for the individual aspects of the
State Center Project. Rather, it sought a developer to manage all of the aspects.
Appellees were unqualified as a group or individually for the solicited “Master
(Continued…)
48
properly by the court. The Amended Complaint superseded the Original Complaint.
Moreover, the allegations in the Amended Complaint did not contradict outright those in
the Original Complaint. Both Complaints averred that the Developers were procured
illegally and that the negotiations and modifications since then constituted additional
illegality. 35 Thus, in viewing the facts in a light most favorable to the non-moving party
(Appellees), we view the Complaint as the Circuit Court did and conclude that Appellees
(as a group or individually) were ineligible to submit a response to the RFQ seeking to be
selected as Master Developer.
Because we agree with the Circuit Court that none of the Appellees were “a bidder
or offeror, a prospective bidder or offeror, a unit or contractor,” we conclude that the
Appeals Board lacked jurisdiction over their claims advanced in this litigation. Because
the Appeals Board was “palpably without jurisdiction” over Appellees’ claims, Appellees
were not required to exhaust any administrative remedy in this case and the propriety of
the Circuit Court’s consideration of their claims depended solely upon whether the court
had jurisdiction otherwise. See Schley v. Lee, 106 Md. 390, 403-04, 67 A. 252, 257-58
(1907) (finding that, where the taxpayer could not avail himself of the right of appeal of
an unlawful assessment to the Comptroller and Treasurer, which was given to the
(…continued)
Developer” designation and, thus, ineligible to submit a response. Thus, we conclude
that Appellees were not prospective bidders for the RFQ as issued.
35
For these reasons, we rely on the Amended Complaint throughout the remainder
of this analysis.
49
corporation, but that which would have a serious loss and injury upon the taxpayers of the
country through the consequent reduction of the basis of taxation for county purposes, the
taxpayer had a right to relief in equity by injunction to restrain the proposed unlawful act
of the public official).
3. Private Right of Action
The State Agencies argued that Appellees lacked the right to bring their claims
before the Circuit Court because the Procurement Code that forms the foundation of
Appellees’ complaint did not create a private right of action by which they could avoid
the administrative authority, and that taxpayer standing is not a substitute. We note first
that, as explained further below, whether a private right of action exists for Appellees to
bring any procurement claim to the Circuit Court is a different question than whether
taxpayer standing doctrine permits Appellees to bring their procurement claims to the
Circuit Court.
Preliminarily, we address the propriety of addressing these issues because
Appellees urge this Court, in their Motion to Dismiss, to dismiss that portion of the
State’s brief to this Court devoted to the argument of an asserted absence of a private
cause of act under the Procurement Law because it was not preserved in the Circuit Court
and it was not presented properly to this Court in the Petition for Writ of Certiorari. In
reviewing the lengthy record extract, we find that the State Agencies and Developers
argued extensively that the administrative remedies provided in the Procurement Law are
the sole remedies available for “all disputes arising under a contract with any State
agency . . .” and that, because no other private right of action existed, Appellees could not
50
bring their claims to the Circuit Court. Moreover, the Developers argued, albeit briefly,
in their Reply in Support of their Motion to Dismiss, filed on 9 March 2011, that taxpayer
standing did not provide a substitute path to the Circuit Court. See Reply in Support of
[their] Motion to Dismiss Amended Complaint, at 9 (“The [Appeals Board] thus has
primary jurisdiction over Plaintiffs’ claims, regardless of their status as protestors or
taxpayers.”).
Moreover, the questions presented in the State’s Petition for Writ of Certiorari
focused on whether the Circuit Court lacked jurisdiction because the claims fell within
the primary or exclusive jurisdiction of the Appeals Board and did not address explicitly
the alleged lack of a private right of action. Despite this focus, we find that these issues
are more properly labeled as sub-issues of the questions presented in the Petition for Writ
of Certiorari and, thus, are included properly.
Because the State Agencies and Developers touched upon both of these arguments
before the trial judge in their Motions to Dismiss and we find the private right of action
argument fairly to be a sub-part of the questions presented in the Petition for Writ of
Certiorari, we find that it would be proper for us to address them, but nonetheless we do
not reach the merits ultimately. In this section of the opinion, we address solely the State
Agencies’ argument that a private right of action does not exist for Appellees to bring any
procurement claim to the Circuit Court. Later, as part of our consideration of taxpayer
standing, we address whether that doctrine permits Appellees to bring their procurement
claims to the Circuit Court.
51
A private right of action is a basis upon which a claimant may bring a claim. In
the past, this Court addressed this basis for standing when a plaintiff alleged standing
specifically on this ground. We held repeatedly that, for purposes of standing, the
claimant alone is responsible for raising the grounds for which his right to access to the
judiciary system exists. See, e.g., Kendall, 431 Md. at 607-08, 66 A.3d at 694 (refusing
to address taxpayer standing because petitioners did not assert it). Because Appellees
insist that an implied private right of action is not the basis for their standing, we do not
address further the argument.
4. Property Owner & Taxpayer Standing Doctrines
Two additional doctrines permit a property owner or tax-paying inhabitant to bring
a claim where his, her or its proprietary interests are injured by an alleged ultra vires or
illegal governmental act. These doctrines are unique in that, essentially, where conferred
upon a complainant, the doctrines provide the “cause of action” standing sufficient for
justiciability. In other words, these doctrines, when asserted properly, provide both the
cause of action (or claim) and the right of the individual to assert the claim in the judicial
forum. Moreover, both doctrines provide avenues for a complainant to challenge what
may be termed as a “public wrong,” the allegedly unlawful actions of the government.
As Professor Jaffe explained, the line distinguishing a “public” and “private” right is
fuzzy at best:
Let us denominate the two types of suit broadly as "public" and "private,"
although the line between the two cannot be conceived absolutely. The
plaintiff in asserting a "public right" may be a person who is affected no
differently from any other person. This would be the broadest possible
category of potential plaintiffs. A shade narrower is the category of
52
"citizen"; and the category of "taxpayer" will include some who are and
some who are not "citizens." Yet an action by any of these can properly be
thought of and evaluated as a public action. As the class grows smaller, a
member of it will be more particularly affected; quite apart from the
availability of a public action, he may be able to bring himself within the
class of persons entitled to protest an interference with their "rights" or
"interests." The difficulty involved in drawing a line between the two types
may be one argument against any distinction based on the plaintiff's degree
of involvement.
Louis L. Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev.
1265, 1267 (1961).
In light of the “public” nature of the alleged wrongs under these doctrines, it is
important to remember that the general rule that “‘. . . where the duty about to be violated
by the corporation or its officers is public in its nature, and affects all of the inhabitants
alike, that one not suffering any special injury cannot in his own name or by uniting with
others maintain a bill to enjoin it’” still applies in both of these doctrines. Kelly v. City of
Baltimore, 53 Md. 134, 141 (1880) 36 (quoting 2 Dillon, Municipal Corporations § 736
(1872)). Accordingly, under each of the doctrines, the complainant must have a special
interest in the subject-matter of the suit distinct from that of the general public.
The implication of this requirement is that a major component of each of the
doctrines is the definition of a sufficient “injury” to confer standing upon a complainant.
While these doctrines share such basic similarities, the requisites for a sufficient
“standing” differs, such that each doctrine has a set of its own requisites. Thus, a
36
Kelly was decided upon the basis of taxpayer standing doctrine, but recognized a
similar right to challenge allegedly illegal municipal actions based on property
ownership. 53 Md. at 141.
53
taxpayer who owns property within a municipality or other governmental district (such as
a State) may allege a sufficient injury to bring suit for an illegal or ultra vires municipal
act under the taxpayer standing doctrine, but not under the property owner standing
doctrine, or vice versa.
Despite the differences, complainants who allege property owner standing will
assert, and often successfully establish, taxpayer standing as well. The overlapping
nature of these doctrines has led this Court to issue many opinions addressing both of
these doctrines in a somewhat convoluted, mixed result manner. Such an approach,
which, at times, suggests that the requirements to establish the applicability of each
doctrine blend together, has led to some confusion. As discussed below, however, each
doctrine has separate requirements. When a complainant alleges standing under both
doctrines, the issues related to each doctrine should be analyzed separately, even if this
renders repetitive portions of the discussion of the facts.
a. Property owner standing
The property owner standing doctrine recognizes that owners of real property may
be “specially harmed” by a decision or action (usually related to land use) in a manner
different from the general public. The basis of this type of “standing” is found in the
zoning law concept of “special aggrievement,” which stems, in turn, from the State’s
statutory zoning laws. Recently, in Ray v. Mayor of Baltimore, 430 Md. 74, 59 A.3d 545
(2013), we analyzed who qualifies as a “person aggrieved” for purposes of standing for
judicial review of a planned unit development (“PUD”) ordinance, under Md. Code
(1957, 2010 Repl. Vol.), Article 66B, § 2.09(a)(1)(ii), which provided:
54
(a) Who may appeal; procedure.–(1) An appeal to the Circuit Court of
Baltimore City may be filed jointly or severally by any person, taxpayer, or
officer, department, board, or bureau of the City aggrieved by:
(i) A decision of the Board of Municipal and Zoning Appeals; or
(ii) A zoning action by the City Council.
430 Md. at 80, 59 A.3d at 549 (emphasis added in Ray) (quoting Md. Code (1957, 2010
Repl. Vol.), Art. 66B, § 2.09(a)(1)(ii)). The Ray Court described a “person aggrieved” by
the decision of a board of zoning appeals as:
“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.”
430 Md. at 81, 59 A.3d at 549 (emphasis added in Ray) (quoting Bryniarski v.
Montgomery Cnty. Bd. of Appeals, 247 Md. 137, 144, 230 A.2d 289, 294 (1967)).
Ray continued to summarize a long line of cases analyzing the zoning law concept
of an “aggrieved person.” Guiding this precedent are the roots of the concept which is
found in the laws pertaining to the tort action of public nuisance. 37 Ray, 430 Md. at 82,
37
In Ray, this Court summarized the distinction between a public and a private
nuisance as follows:
A private nuisance is “a nontrespassory invasion of another's interest in the
private use and enjoyment of land.” Rosenblatt v. Exxon Co., U.S.A., 335
Md. 58, 80, 642 A.2d 180, 190 (1994) (internal citation and quotation
marks omitted). A public nuisance is a “nuisance[ ] which ha[s] a common
effect and produce[s] a common damage.” Burley v. Annapolis, 182 Md.
307, 312, 34 A.2d 603, 605 (1943).
430 Md. at 82 n.5, 59 A.3d at 550 n.5.
55
59 A.3d at 549-50 (citing 4 Edward H. Ziegler, Jr., Rathkopf's The Law of Zoning and
Planning § 63:14 (2012)). As we cited in Ray,
The “special damage” rule was an outgrowth of the law of public nuisance.
Inasmuch as a public nuisance was an offense against the state and,
accordingly, was subject to abatement on motion of the proper
governmental agency, an individual could not maintain an action for a
public nuisance unless he suffered some special damage from the
public nuisance.
430 Md. at 82, 59 A.3d at 549 (emphasis added in Ray) (internal brackets and quotation
marks omitted) (quoting Ziegler, supra, § 63:14). “Without the special damage, ‘a
private citizen has no standing to champion the right of the public in abating a public
nuisance.’” Ray, 430 Md. at 82, 59 A.3d at 549-50 (quoting Zeigler, supra, § 63:14 n.1).
Similarly, in the property owner standing doctrine, unless the complainant alleges
sufficient “special aggrievement,” the complainant has no standing to challenge the act,
but rather is merely “generally aggrieved,” in a similar manner as the rest of the public. 38
With this background in mind, a long line of cases in this State developed
principles governing property owner standing in Maryland to be used to analyze who
qualifies as a “person aggrieved” for purposes of standing for judicial review of zoning
ordinances and regulations. See Ray, 430 Md. at 80-87, 59 A.3d at 548-52 (summarizing
the governing principles). Before considering these principles here, however, we must
determine first whether the principles, which were limited traditionally to judicial review
38
When analyzing the distinction between “special aggrievement” and
“generalized aggrievement,” because of these roots, courts “call upon the law of nuisance
for enlightenment.” Ray, 430 Md. at 82, 59 A.3d at 549-50.
56
of the decisions of zoning bodies (and nuisance actions), apply in this case, in which the
Circuit Court exercised jurisdiction over claims involving the Project. Because we
conclude that the present case is a kind of “land-use decision” or action susceptible to
these principles, we analyze the applicable principles governing the concept of “special
aggrievement” further and determine that they do not confer standing upon Appellees in
this case. 39
i. Whether property owner standing doctrine applies
here?
As a preliminary matter, the State Agencies aver (briefly) in their brief that the
property owner standing doctrine is inappropriate altogether to the type of challenge
mounted in this case. According to the State Agencies, property owner standing is
available only to challenges of pure-bred land-use decisions, such as zoning and nuisance
claims. Because this case does not involve such a land-use decision, the State Agencies
39
It is important to remember that
[t]he status of a person to appeal as a ‘person aggrieved’ is to be
distinguished from the result on the merits of the case itself. In determining
status to appeal, the question is whether the property owner may reasonably
be thought to be specially damaged if the application [or other “land-use
decision” or action] is approved. Testimony may be taken on the point by
the trial court. If, on the merits, the board acted properly . . . , the
protesting property owner is not damaged in law, however much he may be
damaged in fact. His damage is then damnum absque injuria. Because the
result on the merits might be adverse, however, does not mean that the
protestant would not have status to challenge the board's [or other
governmental agency’s] action.
Bryniarski, 247 Md. at 145-46, 230 A.2d at 295 (internal citation omitted).
57
aver that this species of standing cannot support a claim grounded on the Procurement
Law. Appellees counter that this argument is meritless because this Court provided
property owner standing to challenge an ultra vires Baltimore City development project
in 120 West Fayette Street, LLLP v. Mayor of Baltimore, 407 Md. 253, 270-72, 964 A.2d
662, 671-73 (2009) (“Superblock I”). 40
As previously mentioned, the principles of property owner standing in Maryland
stem from the State’s statutory zoning laws, which grant an “aggrieved person” the right
to challenge many zoning actions. See Ray, 430 Md. at 80-81, 59 A.3d at 548-90
(analyzing the definition of an “aggrieved person” under the then-current zoning enabling
statute, Md. Code (1957, 2010 Repl. Vol.), Article 66B, § 2.09(a)(1)(ii)); Bryniarski, 247
Md. at 143-44, 230 A.2d at 294 (analyzing the definition of a “person aggrieved” under
the then-current zoning law, Md. Code (1957, 1965 Cum. Supp.), Article 66B, § 7(j)). 41
Although the zoning laws serve as the origin of these principles governing the “special
aggrievement” requirement, we held in Superblock I that these principles permit eligible
plaintiffs to invoke the jurisdiction of the courts to challenge a greater variety of “land
use decisions” and actions than thought to be the case previously. Superblock I, 407 Md.
at 270-73, 964 A.2d at 671-73. In Superblock I, we explained,
40
Appellees urge additionally that this Court should not address this argument
because the State Agencies “do not develop, and therefore waived, the argument.” We
exercise our discretion, as authorized under Maryland Rule 8-131, to address this issue
because the record is adequate to that end.
41
Although the language in the zoning statute has been amended on several
occasions, the phrase a “person aggrieved” “has remained constant throughout the
evolution of the statute.” Ray, 430 Md. at 81 n.4, 59 A.3d at 549 n.4.
58
Because “land use . . . is at least one of the prime considerations with which
an urban renewal plan is reasonably sure to be concerned,” Master
Royalties v. Balto. City, 235 Md. 74, 92, 200 A.2d 652, 661 (1964), we
conclude that the principles that confer standing upon an adjoining,
confronting or neighboring property owner to seek judicial review of land
use decisions, logically extend to an adjoining, confronting or neighboring
property owner that is challenging a municipalities’ [sic] allegedly illegal
avoidance of urban renewal and procurement ordinances.
Id. (citations omitted). We held that “120 West Fayette had standing to challenge the
legality of the City’s entry into a Land Disposition Agreement (LDA) to sell to Lexington
Square Partners, LLC (Lexington Square) property in the Superblock,” an urban
redevelopment area in downtown Baltimore. 120 West Fayette St., LLLP v. Mayor of
Baltimore, 426 Md. 14, 43 A.3d 355 (2012) (“Superblock III”) (citing Superblock I, 407
Md. at 258, 964 A.2d at 664-65).
This holding of Superblock I was limited, however, when we addressed the same
issue in the third iteration of the Superblock project litigation. In round three of the
Superblock project litigation, 120 West Fayette asserted, inter alia, that Superblock I
provided it with the grounds for legal standing under its facts. Superblock III, 426 Md. at
25-26, 43 A.2d at 362. The Court rejected that argument and, first, found Superblock I
“fundamentally distinguishable”:
In essence, 120 West Fayette claimed a violation of a law in Superblock I,
but claims in the instant case the breach of a contractual provision. The
distinction renders inapposite the holding of Superblock I, extending tax-
payer and adjoining landowner standing to a party alleging a violation of an
urban renewal ordinance.
Superblock III, 426 Md. at 27-29, 43 A.3d at 363-64 (emphasis added). Next, the
Superblock III Court explained why the property owner standing principles did not apply
59
in that case to confer standing, namely, the challenged execution of the Memorandum of
Agreement (MOA) was not a land use action. The Court stated that, “[g]enerally defined,
a land use decision is a decision (typically an ordinance or regulation) enacted or
promulgated by a legislative or administrative body for the purpose of directing the
development of real estate.” Id. The majority found, in that case, that the “MOA … is
not an ordinance, variance or permit. Furthermore, the MOA binds only two parties (as
opposed to the general public). The MOA was not enacted by a legislative or
administrative body.” Superblock III, 426 Md. at 33, 43 A.3d at 366. Most importantly,
the Court found that the “the MOA does not direct the use or development of real estate
in the Superblock,” even though the MOA purported to vest the Historic Trust with the
authority to control demolition of regulated structures in a historic area. Id. The statute
which established the Trust and described its responsibilities did not empower the Trust
to direct the development of real estate, but rather required a State unit that issues permits
or licenses for demolition to “cooperate” with the Trust by providing it with notice and
consulting with it before taking any final action to permit demolition. Superblock III, 426
Md. at 33-35, 43 A.3d at 366-68. Thus, the majority concluded that the MOA was not a
land use decision or action and, therefore, “120 West Fayette cannot rely on the
principles that extend standing to an adjoining landowner in review of land use
decisions.” Superblock III, 426 Md. at 35, 43 A.3d at 368.
In the present case, unlike the three Superblock cases, each of which challenged an
individual aspect of the Superblock Project, Appellees challenged the MDA, the First
Amendment, the ground and occupancy leases, as well as the State’s commitment to
60
future leases. Thus, we must divide our analysis to determine whether each of these
contracts is a “land use decision” or action subject to being challenged under the property
owner standing doctrine. In so doing, we conclude, for the purpose of property owner
standing analysis, that the MDA and the First Amendment are “land use decisions” or
actions, but the occupancy and ground leases (present and future) are not.
In regards to the MDA and the First Amendment, although not traditional land use
regulations or ordinances, these formative contracts to the Project govern the
development of real estate at the State Center. See Long Green Valley Ass’n v. Bellevale
Farms, Inc., 205 Md. App. 636, 687-88, 46 A.3d 473, 504 (2012), aff’d on other grounds,
432 Md. 292, 68 A.3d 843 (2013) (concluding that “[a]lthough not a traditional land-use
regulation, the [challenged] program[, which] provides a financial incentive to
landowners to voluntarily restrict their land to agricultural and woodland use rather than
commercial, industrial, or residential use,” is a “land use decision” under Superblock I).
As in Superblock I, land use is patently one of “the prime considerations” in the urban
renewal project at the State Center and its formative documents and agreements intend to
bind the general public to the Project with the Developers. See Superblock I, 407 Md. at
272, 964 A.2d at 673. Moreover, Appellees’ complaint alleges a violation of the
Procurement Law, not of any contractual obligations between two parties. 42 Thus,
42
The Amended Complaint relied on language in the MDA, which suggested that
it could have been within the ambit of Superblock III. See Amended Complaint, at ¶ 166
(“The MDA, at ¶2.4, required that ‘[a]ll space leased by the State will be in accordance
with standard State procurement practices . . . ’ The State failed to do so.”). Despite this
single statement, though, the gravamen of the Amended Complaint lay in the State’s
(Continued…)
61
Superblock I extends to this case for the challenges to those contracts and “the principles
that confer standing upon an adjoining, confronting or neighboring property owner to
seek judicial review of land use decisions, logically extend to an adjoining, confronting
or neighboring property owner that is challenging a [Government’s] allegedly illegal
avoidance of . . . procurement ordinances [or statutes].” Id. (citations omitted). 43
In contrast, however, the ground and occupancy leases do not constitute a “land
use decision” or action for the same reasons set forth in Superblock III, 426 Md. at 27-29,
43 A.3d at 363-64. The ground and occupancy leases do not direct the development of
any real property. Rather, they commit the State (in a similar manner as any lessee who
enters into a lease) to lease the property once the development is accomplished. Thus,
Appellees may allege, if they did, a claim under the property owner standing doctrine to
challenge the MDA and the First Amendment, but not the ground or occupancy leases. 44
ii. Whether Appellees alleged sufficient facts for
“special aggrievement” to confer property owner
standing?
(…continued)
violations of the Procurement Code, not in the State’s violation of the procedures set
forth in the MDA.
43
Appellees suggest that Superblock I may extend the principles of a “person
aggrieved” in zoning cases to challenges of all ultra vires government projects. Such an
extension misconstrues the limited holding of Superblock I, as clarified in Superblock III.
44
Practically speaking, we acknowledge that, if the challenges to the MDA and the
First Amendment were found valid by us and, thus, the voidance of those contracts
affirmed, then the ground and occupancy leases fall as well. We treat these challenges in
this initial analysis of standing separately for analytical purity.
62
Because we conclude that the principles governing property owner standing apply
to Appellees’ challenges to the MDA and the First Amendment, we apply those relevant
principles to scrutinize what Appellees alleged to support such standing. First, we
consider what constitutes “special aggrievement,” as established in precedent interpreting
the zoning version of a “person aggrieved.” Then, we analyze whether Appellees’
allegations in the Amended Complaint confer property owner standing upon them. In
this analysis, Appellees need only allege sufficient facts that at least one of them qualifies
as “specially aggrieved” because “‘[w]here there exists a party having standing to bring
an action or take an appeal, we shall not ordinarily inquire as to whether another party on
the same side also has standing.’” Long Green Valley Ass’n, 205 Md. App. at 652, 46
A.3d at 483 (quoting Bd. of License Comm’rs v. Haberlin, 320 Md. 399, 404, 578 A.2d
215, 217 (1990)).
We begin by reiterating a brief overview of the “special aggrievement”
requirement, found largely in Ray’s recent and thorough discussion of this requirement.
In discussing the “special aggrievement” principles, the Ray Court restated two general
guiding principles:
First, “[a]n adjoining, confronting or nearby property owner is deemed,
prima facie, to be specially damaged and, therefore, a person aggrieved.”
[Bryniarski, 247 Md.] at 145, 230 A.2d at 294. 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., 230 A.2d at 295.
63
430 Md. at 81, 59 A.3d at 549 (some alterations in original). Beyond these general
guiding principles, the standard for “what it means to be ‘specially affected’ or how one
proves that his harm is different from the public harm . . . is flexible in the sense that it is
based on a fact-intensive, case-by-case analysis.” Id.
The Ray Court reviewed comprehensively the facts of prior cases discussing
property owner standing and found that, in sum, “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.” 430 Md. at 85, 59
A.3d at 551. The Court defined the first category of a “prima facie aggrieved” protestant
as one whose “proximity makes him an adjoining, confronting, or nearby property
owner.” Id. Second, “[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.” Id., 430 Md. at 85, 59 A.3d at 551-52. Otherwise, “[o]ther
individuals are generally aggrieved.” Id., 430 Md. at 85, 59 A.3d at 552.
In addition to the two types of protestants accorded standing by this Court
previously, the Ray Court noted that “[d]icta in Maryland cases suggest a third, poorly-
defined category of protestants with standing who, despite being ‘far removed from the
subject property,’” may be able nevertheless “to establish ‘the fact that his personal or
property rights are specially and adversely affected by the board's action.’” Ray, 430 Md.
at 85-86, 59 A.3d at 552 (quoting Bryniarski, 247 Md. at 145, 230 A.2d at 295). Despite
this observation, Ray found no instance in which the Court held that a person who was far
64
removed from the site of rezoning actually qualified as “specially aggrieved.” Id., 430
Md. at 86, 59 A.3d at 552. Now, having established the proper approach to our analysis
of a claim mounted on the back of the property owner standing doctrine, we move on to
the relevant allegations in this case and determine whether Appellees fit within any of the
aforementioned categories of parties with standing.
(1) Prima Facie Aggrieved Property Owners?
First, we consider whether Appellees are “prima facie aggrieved” or, in other
words, whether “[their] proximity makes [them] . . . adjoining, confronting, or nearby
property owner[s].” Ray, 430 Md. at 85, 59 A.3d at 551. Appellees argue that the
allegations in their Complaint that “they own or operate property, not only affected, but
directly targeted, by the Project” were sufficient to qualify them as “prima facie
aggrieved.” Although Appellees acknowledge that, “[i]n prior cases the test for
proximity has been measured by distance,” they contend that “the test ‘is not readily
reduced to a set of rules,’ [Ray, 430 Md. at 77, 59 A.3d at 547,] and in this case it should
be a functional one.” As Appellees see it, this case is unique, and unlike the PUD in Ray,
because “the Project directly and uniquely harms [Appellees] as surely as if they were
located directly across the street from it.”
The “functional” test for proximity that Appellees urge us to adopt in evaluating
whether a property owner is proximate to the project recognizes the “purpose, intent,
scope, size, nature, and consequences of the project.” Illustrating these considerations,
they hypothecate an example of “a property owner 3,000 feet from a nuclear waste dump
or odiferous slaughterhouse is likely ‘proximate,’ while one the same distance from a
65
child’s tot lot likely is not.” Specifically, Appellees argue that the TOD nature of the
Project demands that the area of the State Center, the subject property from which
proximity is analyzed, be expanded to the entire TOD area. Appellees maintain that they
“are in the economic, if not literal, shadow of this Project, [and] abut the TOD district,”
and, thus, are prima facie aggrieved.
The State Agencies counter that Appellees, each of which are located more than
3,000 feet from the outermost boundary of the State Center Project, are not located
proximately enough to enjoy property owner standing. Moreover, according to the State
Agencies, the challengers’ reliance on the “effects” of the project extending into
downtown is misplaced because “this Court has never recognized proximity to the effects
of a land use as a basis for standing.”
We reject Appellees’ invitation to extend the test of proximity in this doctrine.
While “the test to show standing . . . is fact-sensitive and is not readily reduced to a set of
rules,” the test “has been established in Maryland for more than half a century . . . .” Ray,
430 Md. at 77, 59 A.3d at 547. During this time period, this Court has developed a set
analytical framework to determine whether a litigant meets the standing requirements.
Contrary to Appellees’ wishes, this Court is not inclined to redefine the basis of this
framework.
Accordingly, Ray controls this analysis by providing that “[w]hen deciding
whether a protestant is prima facie aggrieved, . . . proximity is the only relevant
factor . . . [and] the sole determinative factor.” 430 Md. at 83 n.6, 59 A.3d at 550 n.6
(emphasis added). The Court clarified that the proximity “inquiry is focused solely on
66
whether the protestant is ‘[a]n adjoining, confronting or nearby property owner.’”
Id. (brackets added in Ray) (emphasis added) (quoting Bryniarski, 247 Md. at 145, 230
A.2d at 294). Thus, the “prima facie aggrievement” analysis is focused solely on
proximity, as measured by physical distance from the subject property. Because prima
facie aggrievement analysis is limited as such, we do not analyze the other factors urged
by Appellees to become part of this analysis here, but rather analyze them as part of the
other categories of potential “specially aggrieved” property owners, where they belong
more properly. 45
Examining the physical location of Appellees’ properties relative to the Project in
this case, we conclude that Appellees’ properties are too far away from the State Center
to be considered as prima facie aggrieved. The physical locations of Appellees’
properties are at a range of distances of 0.57 miles at the closest to 0.84 miles at the
furthest from the State Center. Such a distance cannot be classified as satisfying the
“adjoining, confronting or nearby” test for prima facie aggrievement. See Ray, 430 Md.
at 83, 83 n.6, 59 A.3d at 550, 550 n.6. Compare with Sugarloaf v. Dep’t of Environment,
45
Appellees misunderstand the notion of a “prima facie” showing in their
argument here. That the “prima facie aggrievement” analysis is a straight-forward rule
does not abandon the Bryniarski rule that the facts and circumstances of each case would
govern whether a litigant is “specially aggrieved,” however. The prima facie test is only
intended for those cases which are so clear that a presumption is established that they are,
in fact, “specially aggrieved” for purposes of standing, without any further evidence.
This notion of “prima facie aggrievement” is so straight-forward that, in Ray, the
petitioners conceded that neither of them fell within this category as they both resided
approximately 0.4 miles away from the PUD. Ray, 430 Md. at 91, 59 A.3d at 555.
Similarly, Appellees here should have recognized the clear limitations of settled doctrine
and focused their creative arguments on the other, broader categories of “special
aggrievement.”
67
344 Md. 271, 298-99, 686 A.2d 605, 618-19 (1996) (holding as prima facie aggrieved
protestants who owned property adjacent to the tract containing a solid waste
incinerator) (emphasis added); Wier v. Witney Land Co., 257 Md. 600, 612-13, 263 A.2d
833, 839-40 (1970) (holding as prima facie aggrieved protestants who owned property
“in sight distance of the property forming the subject of the petition” and “located
approximately 1,100 feet from one of the parcels reclassified by Board”) (emphasis
added); Bryniarski, 247 Md. at 148, 230 A.2d at 295-96 (holding as prima facie
aggrieved protestants described as “owners of property immediately contiguous or in
close proximity of the proposed site for the apartment hotel”) (emphasis added); Comm.
for Responsible Development on 25th Street v. Baltimore, 137 Md. App. 60, 86, 767 A.2d
906, 920 (2001) (“[T]o be considered an aggrieved party, the complaining property
owner must be in ‘sight or sound’ range of the property that is the subject of his
complaint.”) (emphasis added).
In an attempt to circumvent this clear precedent, Appellees attempt to extend the
“lebensraum” of the State Center Project through annexation of the TOD area. This
attempt fails, however, to satisfy the “special and adverse[] affect” that is required to
transmute the asserted general injury into a specific one. Using the TOD area to define
the affected area would provide virtually every property owner in the City with standing.
This Court has held multiple times that similarly sweeping definitions of “proximity”
destroy the very concept of “special aggrievement.” For example, in Ray, this Court
rejected the argument that, in analyzing “proximity,” the court should define the
68
aggrieved class as the entire city “neighborhood” in which each protestant lived. 430
Md. at 87-90, 59 A.3d at 552-54. The Ray Court explained,
the creation of a class of aggrieved persons is done on an individual
scale and not based on delineations of city neighborhoods. See Marcus [v.
Montgomery Cnty.], 235 Md. [535,] 538, 541, 201 A.2d [777,] 779, 781
[(1964)] (denying standing to property owner 0.75 miles from site because
“[t]here is no evidence that his home is within sight of the subject
properties nor that the proposed rezoning would have any effect whatever
on it except such effect as all other residential properties in the whole
Wheaton and Glenmont area of Montgomery County might suffer”); see
also DuBay [v. Crane], 240 Md. [180,] 183, 213 A.2d [487,] 489 [(1965)]
(“[I]n addition to showing the proximity of one property to the other,
[standing] requires proof of the adverse effect the changed status of the
rezoned property has, or could have, on the use, enjoyment and value of the
property of the protestant in order to establish the status of the appellant as
an aggrieved person.”). As we sketched out above, 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. We are not aware of any case in which this Court has
deviated from that standard.
Id., 430 Md. at 88-89, 59 A.3d at 553-54 (emphasis added) (footnotes omitted).
Appellees attempt to distinguish this analysis in Ray by explaining that the TOD area
expands the area of the Project, not the class of aggrieved persons. This argument, albeit
framed differently than in Ray, similarly fails, though, to explain how such a definition
would support the notion of a “special aggrievement.” At the core of this argument (and
that rejected in Ray) is the failure to recognize that such a wide sweep is not consistent
with the “roots” of this concept of special aggrievement, as discussed earlier.
In light of the “roots” of the property owner standing doctrine and our precedent,
we reject Appellees’ attempt to expand the proximity test to include the “purpose, intent,
scope, size, nature, and consequences of the project,” specifically by measuring
69
proximity from the entire TOD area. 46 Similar to Ray, Appellees here failed to allege
how the State Center Project “would cause him or her any unique or special kind of
damage other than that suffered by the whole community.” See DuBay, 240 Md. at 185,
213 A.2d at 490.
(2) Almost prima facie aggrieved property owners?
Second, Appellees claim that they are “almost prima facie aggrieved,” defined in
Ray as those who are “farther away than an adjoining, confronting, or nearby property
owner, but still close enough to the site of the rezoning action to be considered almost
prima facie aggrieved, and offers ‘plus factors’ supporting injury.” 430 Md. at 85, 59
A.3d at 551-52. In Ray, we explained this category further, noting nonetheless the
continued importance of proximity as an influencing factor in this category of protestants,
as follows:
There is, however, no bright-line rule for exactly how close a property must
be in order to show special aggrievement. Instead, this Court has
maintained a flexible standard, finding standing in cases that do not quite
satisfy the “adjoining, confronting or nearby” standard of prima facie
aggrievement, but are nudging up against that line. Protestants in such cases
will be considered to pass the standing threshold if they allege specific facts
of their injury. In other words, once sufficient proximity is shown, some
typical allegations of harm acquire legal significance that would otherwise
be discounted. But in the absence of proximity, much more is needed.
46
In this regard, Appellees are not challenging in this appeal the classification or
boundaries of the TOD area. As we determined earlier, Appellees are capable of
challenging only the MDA and the First Amendment on the basis of property owner
standing. Thus, we review these two formative contracts, which affect the State Center
property only. The TOD area is not implemented by these contracts and, thus, is not part
of this analysis.
70
For example, an owner's lay opinion of decreasing property values and
increasing traffic has been considered sufficient for special aggrievement
when combined with proximity that is almost as great as in cases where
properties are “adjoining, confronting or nearby.” . . . Conversely,
without sufficient proximity, similar facts will only support general
aggrievement. For example, when the affected properties are not
sufficiently close to the site to qualify as almost prima facie aggrieved,
claims of increasing traffic, change in the character of the neighborhood,
lay opinion projecting a decrease in property values, and limited visibility
have been held to show only general aggrievement.
430 Md. at 83-84, 59 A.3d at 550-51 (emphasis added) (citations omitted).
Appellees lack sufficient proximity to qualify as “almost prima facie aggrieved.”
The closest Appellee property is over 3,000 feet or 0.57 miles distant. As noted earlier,
“[a]lthough there is no bright-line rule for who qualifies as ‘almost’ prima facie
aggrieved,” this Court recognized in Ray that “we have found no cases, in which a person
living over 2000 feet away, has been considered specially aggrieved.” 430 Md. at 91, 59
A.3d at 555. In fact, this Court stated in Ray that
protestants who lived more than 1000 feet from the rezoning site have
repeatedly been denied standing. See Shore Acres [Imp. Ass’n v. Anne
Arundel Cnty. Bd. of Appeals], 251 Md. [310,] 312, 317–18, 247 A.2d
[402,] 403, 406 [(1968)] (not specially aggrieved when 3760 feet and out of
sight of subject property); White [v. Major Realty, Inc.], 251 Md. [63,] 64,
246 A.2d [249,] 250–51 [(1968)] (not specially aggrieved when 0.5 miles
from site, even though asserting an increase in traffic, increase in use of
water system, and overcrowded schools); DuBay, 240 Md. at 182–84, 185–
86, 213 A.2d at 488–90 (three protestants—1500 feet, 0.4 miles, and 0.9
miles—who were separated by beltway or could not see site, not specially
aggrieved); Marcus [v. Montgomery Cnty. Council], 235 Md. [535,] 537–
38, 541, 201 A.2d [777,] 778–79, 781 [(1964)] (protestant living 0.75 miles
away who could not see subject property denied standing); 25th Street, 137
Md. App. at 86, 89, 767 A.2d at 920, 922 (protestant two blocks west and
three blocks north, without sight of, or sound from, subject property, denied
standing).
71
430 Md. at 92, 59 A.3d at 555. Rather, the category of “‘almost’ prima facie aggrieved”
“has been found applicable only with respect to protestants who lived 200 to 1000 feet
away from the subject property.” Ray, 430 Md. at 91, 59 A.3d at 555 (citing Habliston v.
City of Salisbury, 258 Md. 350, 352, 354-55, 265 A.2d 885, 885-87 (1970); Chatham
Corp. v. Beltram, 252 Md. 578, 579-80, 584, 251 A.2d 1, 2, 4 (1969)).
In recognition of these strict proximity requirements, Appellees urge this Court to
recognize that several other factors unique to this case confer standing upon them in order
to overcome the lack of pure proximity. Appellees allege that the increased traffic, one
business owner’s lay opinion of decreased property values, and the prophecy of lost
customers and tenants due to the competition from the subsidized State Center Project are
sufficient “plus factors” to confer property owner standing. Appellees misunderstand,
however, the gravamen of Ray’s discussion of this second category of protestants
accorded with standing. In Ray, this Court found that, because the “[p]rotestants, who
reside far away from the rezoned site [approximately 0.4 miles] . . . cannot establish
special aggrievement through proximity,” they were limited to “only look[ing] 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.” 430 Md. at 92, 59 A.3d at 556 (citing Bryniarski, 247 Md. at
145, 230 A.2d at 295). Similarly, because all Appellees here are a considerable distance
from the State Center (at least 0.57 miles away), they do not fit within this second
72
category. 47 Despite these alleged “plus factors,” we conclude that Appellees are
ineligible for “‘almost’ prima facie aggrieved” status due to a lack of sufficient
proximity.
(3) Nebulous third category of property owner
standing?
Under this last category, recognized only in dicta, 48 standing may be conferred
upon a litigant based upon “the fact that his personal or property rights are specially and
47
It is well-settled that “[a] person whose sole reason for objecting to the board's
action is to prevent competition with his established business is not a person aggrieved.”
Bryniarski, 247 Md. at 145, 230 A.2d at 295 (citing Kreatchman v. Ramsburg, 224 Md.
209, 167 A.2d 345 (1961)). Whether the increased competition and predicted lost
customers and tenants due to the subsidized Project may serve as an additional “plus
factor” to push this case over the line into this second category is, however, a novel
question for this Court. The State Agencies cite Superior Outdoor Signs, Inc. v. Eller
Media Co., 150 Md. App. 479, 500, 822 A.2d 478, 490-91 (2003), “for the proposition
that a desire to stave off competition cannot support standing.” Appellees counter that
that principle from Superior Outdoor Signs (a zoning dispute between competing
billboard companies) “is applicable to the private zoning dispute present in that
decision,” but “is inapposite to this challenge to ultra vires State action.” The difference,
according to Appellees, is that “[u]nlike the zoning cases, here [Appellees] challenge
unlawful State actions and assert as a special harm the fact that the State intends to use
their taxes to subsidize their competitors and then raise their taxes.”
We conclude that economic harms resulting from the subject land use actions are
not the type of injury to be analyzed in these cases. Thus, the reasoning and result in
Superior Outdoor Signs,150 Md. App. at 490, 822 A.2d at 485, is apt. We conclude that
such allegations do not raise Appellees’ status to “special aggrievement.”
Moreover, to the extent that Appellees assert that the special harm suffered is an
increase in their taxes to subsidize competitors, that type of harm falls more aptly (if
anywhere) within the taxpayer standing doctrine, not the property owner standing
doctrine.
48
This dicta appeared originally in Bryniarski, 247 Md. at 245, 230 A.2d at 295.
Since then, several cases have quoted that exact language and cited this dicta from
Bryniarski; however, no other case applied, even in dicta, this category of standing.
73
adversely affected by the board's action.” Bryniarski, 247 Md. at 245, 230 A.2d at 295.
While we do not venture today to map further this “Higgs boson particle,” or determine
even whether it exists in the material world, we pause now to consider as a threshold
matter whether Appellees’ other allegations might be considered as sufficient to give
substance to this last category. 49 Ultimately, though, we are confident the present case is
not drawn within its theoretical gravitational field under known circumstances.
Appellees urge us to recognize other factors, which may be grouped as (1) the
harm caused by the State relocating its offices and (2) the economic harm caused by the
Project’s competition, as conferring “special aggrievement” upon them. We find none of
them relevant or persuasive here. First, in regards to the relocation of State offices as an
“effect” of the State Center Project, we find this factor irrelevant because Appellees
failed to show how the State offices’ relocation affects them in any manner distinct from
the general public (other than perhaps economic competition, which we reject as a proper
factor below). See Ray, 430 Md. at 94, 59 A.3d at 557 (finding that petitioners’
“complain[t] that 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. . . . failed to show that any of these businesses,
whether open or closed, affect them in a manner distinct from the general public.”).
49
Appellees focused their additional allegations throughout their arguments on
“prima facie aggrievement” and “almost prima facie aggrievement.” As discussed
earlier, however, these additional “factors” are not considered properly in those analyses
without sufficient proximity. Because we found Appellees lacked sufficient proximity,
we did not analyze Appellees’ arguments in those sections, but left our response to this
last category.
74
Moreover, to extend property owner standing’s definition of “aggrieved persons”
to include economic competition and harm is improper. See Bryniarski, 247 Md. at 145,
230 A.2d at 295 (“A person whose sole reason for objecting to the board's action is to
prevent competition with his established business is not a person aggrieved.”) (citing
Kreatchman v. Ramsburg, 224 Md. 209, 167 A.2d 345 (1961)). The property owner
standing doctrine has its roots in nuisance and trespass. Those actions do not permit
claims on the grounds of mere economic harm. Accordingly, Appellees’ allegations that
they will be injured financially in a way that is different from the general public, due to
the State-subsidized Project that may compete with their businesses, is irrelevant.
Competition that results from a land use decision or action is not a factor in either the
prima facie aggrieved or almost prima facie aggrieved analyses.
Accordingly, because Appellees’ standing allegations do not fit within any of the
three categories of property owner standing in our case law, they must look elsewhere for
standing.
b. Taxpayer standing
The common law taxpayer standing doctrine permits taxpayers to seek the aid of
courts, exercising equity powers, to enjoin illegal and ultra vires acts of public officials
where those acts are reasonably likely to result in pecuniary loss to the taxpayer. See,
e.g., Superblock I, 407 Md. at 267, 964 A.2d at 669-70. In the present case, the State
Agencies argued, in their Motions to Dismiss, that Appellees lacked taxpayer standing.
The Circuit Court denied the Motions to Dismiss, finding, among other things, that
Appellees enjoyed standing under the taxpayer standing doctrine. In analyzing each of
75
the State Agencies’ arguments that Appellees lack taxpayer standing, we find all of them
wanting. Therefore, we conclude that denial of the Motions to Dismiss on grounds of
lack of taxpayer standing was proper.
The doctrine of taxpayer standing has existed for quite some time. Judge Dillon,
in his early work on Municipal Corporations, 50 reviewed all of the then-extant decisions
in Great Britain and the United States. He concluded, “there appears to be little
difference of judicial opinion as to the right of the taxable inhabitants, whenever the
threatened illegal corporate act will increase the burden of taxation, to the aid of equity in
proper cases to prevent it.” Kelly v. City of Baltimore, 53 Md. 134, 141 (1880) (citing 2
Dillon, § 736). “The chief difference,” Judge Dillon concluded, “is as to the proper party
plaintiff in a bill of this character.” Id. From his review, he found that three types of
proper party plaintiffs existed:
50
We explore later in this opinion whether a distinction exists between a
complainant’s right to seek to enjoin a municipality’s action and that of the State’s action.
For now, we observe that the early focus of the taxpayer standing doctrine regarding
municipal actions was a reflection of “the panorama of American history.” Note,
Taxpayers’ Suits: A Survey and Summary, 69 Yale L.J. 895, 899 (1960). In this sense,
“[t]he early suits were all brought against municipalities and were few in number,
probably because of the relatively limited municipal expenditures and activities of that
era.” Id. “With the expanding role of local government in economic activity after the
Civil War, taxpayer litigation increased . . . .” Taxpayers’ Suits, 69 Yale L.J. at 899-900
(footnote omitted). “As such litigation gained a firm basis in judicial precedent,
taxpayers were allowed to challenge state as well as municipal actions.” Taxpayers’
Suits, 69 Yale L.J. at 900. But see Comment, Taxpayers’ Actions: Public Invocation of
the Judiciary, 13 Wake Forest L. Rev. 397, 399 (1977) (suggesting that the early suits’
focus on municipalities’ actions was due to courts’ perception “that the relationship of
taxpayers with local government was so much closer than with state and federal
government”).
76
“1st. That the proper parties may resort to equity, against municipal
corporations and their officers when these are acting ultra vires, and where
such illegal acts affect injuriously the property owner or the taxable
inhabitant. But if in these cases the parties injured have adequate remedy at
law, equity will not interfere.
2nd. That in the absence of special legislation, the proper public officer of
the commonwealth may file an information or bill in equity to prevent
misuse of corporate powers, or to set aside or correct illegal corporate acts.
3rd. A bill may be filed in the name of one or more of the taxable
inhabitants for themselves and all others similarly situated, and that the
court should regard it in the nature of a public proceeding to test the
validity of the corporate acts sought to be impeached and deal with and
control it accordingly.”
Kelly, 53 Md. at 141 (quoting 2 Dillon, § 736a).
In our 1869 benchmark case on taxpayer standing, this Court explained the
purpose of this long-standing doctrine:
In this state the Courts have always maintained with jealous vigilance the
restraints and limitations imposed by law upon the exercise of power by
municipal and other corporations; and have not hesitated to exercise their
rightful jurisdiction for the purpose of restraining them within the
limits of their lawful authority, and of protecting the citizen from the
consequence of their unauthorized or illegal acts.
If the right to maintain such a bill as this be denied, citizens and property-
holders residing or holding property within the limits of a municipal
corporation, would be without adequate remedy to prevent the injury and
damage which might result to them from the unauthorized or illegal acts of
the municipal government, and its officers and agents.
Baltimore v. Gill, 31 Md. 375, 395 (1869) (emphasis added).
From this decision [Baltimore v. Gill] and the long line of Maryland cases
following in its wake, the principle has become established that a taxpayer
may invoke the aid of a court of equity to restrain the action of a public
official or an administrative agency when such action is illegal or ultra
vires, and may injuriously affect the taxpayer’s rights and property.
77
Citizens Planning & Housing Ass’n v. Cnty. Exec. of Baltimore Cnty., 273 Md. 333, 339,
329 A.2d 681, 684 (1974) (citing Gill, 31 Md. at 395), superseded by statute on other
grounds as stated in Patuxent Riverkeeper v. Maryland Dep’t of Environment, 422 Md.
294, 29 A.3d 584 (2011).
Most recently, we re-characterized this well-established principle of taxpayer
standing doctrine as having two general requirements:
“[A] party, as a taxpayer, may satisfy the ‘special damage’ standing
requirement by alleging both ‘1) an action by a municipal corporation or
public official that is illegal or ultra vires, and 2) that the action may
injuriously affect the taxpayer’s property, meaning that it reasonably may
result in a pecuniary loss to the taxpayer or an increase in taxes.’”
Kendall v. Howard Cnty., 431 Md. 590, 605, 66 A.3d 684, 693 (2013) (quoting
Superblock I, 407 Md. at 267, 964 A.2d at 669-70). Beyond those two general
requirements, which have been repeated in nearly every taxpayer standing doctrine case,
the doctrine has been disorganized largely and, at times, seemingly contradictory,
particularly in the application of these requirements.
In an attempt to clarify this doctrine, we shall engage here in a general discussion
of the principles and case law on taxpayer standing doctrine in Maryland and answer the
parties’ plethora of arguments concerning the doctrine raised in this case. We begin by
analyzing the State Agencies’ argument that taxpayers may not challenge violations of
the Procurement Code due to the statutory language and history and the case law
governing the State’s procurements. Because we find that taxpayer standing may exist
for such challenges, we analyze next the requisites for eligibility to assert standing under
this doctrine or, in other words, the requisites to establish taxpayer status. Then, we
78
move to the two requirements that provide the taxpayer with a “special interest” distinct
from that of the general public.
i. Taxpayer standing & procurement claims: is a
private right of action required for taxpayer suits?
The authority for taxpayer suits in this State stems from the common law, see Gill,
31 Md. at 395, and is not governed generally by statute. 51 In this sense, the traditional
understanding of the authority for a taxpayer suit is described as follows:
The taxpayer litigant is often likened to a “private attorney general”
because he is essentially performing the function of an attorney general by
suing to enforce the laws. The taxpayer does not assert a private cause
of action but, instead, that of his government. Therefore, a taxpayers’
suit is essentially a “derivative proceeding” akin to a corporate
shareholders’ suit. The public corporation, like its private counterpart, has
the same right of action, but presumably it has neglected to pursue it.
Taxpayers are injured by unlawful acts or omissions of governmental
officials because taxpayers are the constituents of government and they
contribute the tax funds that are misused. Recoveries in taxpayers’ suits
run directly to the government and indirectly to the taxpayers in the form of
tax dollar savings and good government.
A trust theory, as well as a shareholders' derivative analogy, has also been
used to justify the taxpayers' suit. By this rationale, the public officer is the
trustee who cares for the property of the taxpayer, the cestui que trust. As
trustee, the public officer or agency vested with control of public property
has a duty to protect the interest of the equitable owners and to act for their
benefit.
Comment, Taxpayers’ Actions: Public Invocation of the Judiciary, 13 Wake Forest L.
Rev. 397, 397-98 (1977) (emphasis added) (footnotes omitted). Because of this nature of
the suit, courts often require that the complainant not have an adequate remedy at law.
See id., at 398 n.11. Where the complainant does not have an adequate remedy at law,
51
Other states have adopted statutes granting taxpayers standing to sue.
79
however, the common law demands that we permit the suit unless the General Assembly
has pre-empted this common law right.
In this case, the State Agencies and Developers argue that Appellees, even though
taxpayers, cannot bring this suit because the Procurement Code does not provide them a
private right of action (and, as discussed above, Appellees have no right to the statutory
administrative remedies). Much of their argument on this issue focuses on alleging that
the Procurement Code does not authorize or permit private causes of action. Determining
whether the Procurement Code permits private causes of action is irrelevant in this case,
however, because, as discussed above, taxpayer suits do not require private causes of
action. Accordingly, the State Agencies’ arguments regarding whether the Procurement
Code implies a private right of action are irrelevant. 52
Most illustrative of the irrelevancy of much of their argument against taxpayer
standing is the fact that none of the cases cited by the State Agencies involved standing
based on taxpayer suits. Instead, those cases involve private litigants alleging an injury
caused by a violation of a statute and seeking a remedy provided under that statute.
Moreover, the State Agencies cited in their initial brief also Baker v. Montgomery
Cnty., 427 Md. 691, 716, 50 A.3d 1112, 1126-27 (2012), as support for their proposition
that “[l]ast year, this Court left open the question whether a private right of action is
52
This analysis would be different if Appellees’ claims were based in the
Procurement Code and sought a remedy provided in the Procurement Code. Here,
however, because Appellees bring suit based upon taxpayer standing and seek relief as
such, we do not need to entertain arguments regarding whether a private right of action
exists.
80
necessary to seek injunctive or declaratory relief, at least where there is taxpayer
standing;” and cited 1000 Friends of Md. v. Ehrlich, 170 Md. App. 538, 548, cert. denied,
396 Md. 12 (2006) and Sugarloaf Citizens Ass’n, Inc. v. Gudis, 78 Md. App. 550, 554
A.2d 434 (1989), aff'd, 319 Md. 558, 573 A.2d 1325 (1990), for the proposition that
“[t]he Court of Special Appeals already has resolved this question, demanding that
plaintiffs seeking a declaration that a Maryland statute was violated or an injunction
against future violations of the statute have a private right of action under that statute.”
The State Agencies misinterpreted woefully these cases: 1000 Friends of Maryland never
mentioned taxpayer standing, 53 and Baker and Sugarloaf, although discussing the
doctrine, did not lend support to the State Agencies’ assertions.
First, Baker’s analysis of why the petitioners lacked standing supports, albeit not
explicitly, the fact that taxpayer standing is an alternative to possessing a private right of
action. In that case, the litigation focused on whether a private cause of action existed
under the relevant statute. After the Court concluded that the relevant statute did not
provide the petitioners with a private cause of action, and even though petitioners did not
53
In that case, private complainants brought a suit challenging the actions of the
BPW in approving for State funding a proposed expansion of a road. The complainants
“sought mandamus, a declaratory judgment, and injunctive relief based on their
contention that the Board was obligated to issue findings of fact to support its
decision.” 1000 Friends of Md., 170 Md. App. at 547, 907 A.2d at 871 (emphasis
added). The intermediate appellate court found that the relevant statute precluded private
causes of action generally, including declaratory judgment and injunctive relief claims.
Id., 170 Md. App. at 548, 907 A.2d at 871. The court noted, however, that the statutory
preclusion of private causes of action did not preclude appellants from seeking a writ of
mandamus. Id. Ultimately, however, the court concluded that appellants’ mandamus
claim failed otherwise as a matter of law. 1000 Friends of Md., 170 Md. App. at 550-51,
907 A.2d at 873.
81
allege taxpayer standing, the Court discussed taxpayer standing in the final paragraph of
the opinion. The Court pointed out that
Petitioners maintained steadfastly, albeit quixotically, in the Court of
Special Appeals that they were not asserting standing as taxpayers, relying
instead solely on their claimed private cause of action theory. Baker,
201 Md.App. at 679 n. 27, 30 A.3d at 289 n. 27. Petitioners acknowledged
also that some of them are neither Maryland residents nor Maryland
taxpayers.
Baker, 427 Md. at 716, 50 A.3d at 1126 (emphasis added). Immediately thereafter, the
Court repeated the basic rule for taxpayer standing doctrine: “‘A taxpayer may invoke the
aid of a court of equity to restrain the action of a public official or an administrative
agency when such action is illegal or ultra vires, and may injuriously affect the taxpayer’s
rights and property.’” Id. (quoting Citizens Planning, 273 Md. at 339, 329 A.2d at 684).
Then, the Court concluded that “[i]n the face of these concessions and our opinion as to
the private cause of action issue, we conclude that Petitioners have no basis to obtain
equitable or declaratory relief.” Id. Even if Baker’s analysis does not support the
conclusion that taxpayer standing is an alternative to a private cause of action, the Baker
Court made it explicitly clear that it “d[id] not decide whether Petitioners had standing,
on a basis other than an implied private cause of action under Transportation Article §
21–809, to seek a declaration that Respondents' contracts with ACS violate § 21–809(j)
or to an injunction against Respondents' enforcement of their speed monitoring systems.”
Baker, 427 Md. at 716 n.19, 50 A.3d at 1126 n.19.
Next, Sugarloaf, cited extensively by the State Agencies, rather than supporting
the State Agencies’ arguments, demonstrates the importance of the particular basis of the
82
complainant’s alleged standing. In Sugarloaf, the Sugarloaf Citizens Association and
two private individuals (hereinafter referred to collectively as “Sugarloaf”) filed an
amended complaint against the County Council of Montgomery County and Michael
Gudis, an individual County Council member. The amended complaint alleged that a
County Council resolution, promulgated to implement an earlier 4-3 vote of the County
Council members, should be rendered void under section 19A-22(b) of the Montgomery
County Code. According to Sugarloaf, Gudis had a conflict of interest in the vote and,
thus, his vote violated section 19A-7 of the Montgomery County Code. In the amended
complaint, appellants stated that “the plaintiffs herein are acting in the best interests of
the public and the citizens of Montgomery County . . . by seeking the remedy provided
by Section 19A-22(b)” and, according to the Court of Special Appeals, quoted
extensively from the Montgomery County Public Ethics Law. Sugarloaf, 78 Md. App. at
556 n.2, 554 A.2d at 436 n.2. The Circuit Court granted the County Council and Gudis’s
Motion to Dismiss.
On appeal, in its reply brief, Sugarloaf “stated that the basis for their complaint
was their common law right as taxpayers ‘to challenge legislative action that is
procedurally or otherwise defective.’” Id. The intermediate appellate court disagreed.
The court pointed out that “[t]he sole relief requested, other than a general request for
‘such other and further relief as the Court deems just and proper,’ is to void the action
taken by the Council, consistent with the remedy provided by Section 19A-22(b).” Id.
Thus, the court found that it was clear that “[t]he violation complained of and the relief
requested are found within the ethics law provisions.” Id. The court acknowledged that
83
Sugarloaf “may have otherwise possessed standing to invalidate alleged legislative
action,” such as through the common law taxpayer doctrine, “their standing, as evidenced
by their amended complaint, is based upon the Montgomery County Public Ethics Law.”
Id.
As such, the intermediate appellate court went on to analyze whether the
Montgomery County Public Ethics Law, upon which Sugarloaf’s alleged standing was
based, provided either an explicit or implicit private cause of action, and found that it did
not. The court noted, however, that it did not view Sugarloaf’s complaints as based on
taxpayer standing:
At common law a taxpayer had standing to bring a declaratory judgment
action for a judicial declaration that a statute was void due to a conflict of
interest by one voting for its enactment. See Beshore v. Town of Bel Air,
237 Md. 398, 206 A.2d 678 (1965). We need not decide whether the statute
pre-empts any common law remedy that appellants may have possessed to
attack Resolution 11-382. Appellants do not seek declaratory relief; they
rely on the mechanism provided within § 19A-22(b) to render the
resolution void.
Sugarloaf, 78 Md. App. at 560, 554 A.2d at 439.
In the present case, Appellees do not rely on the provisions of the Procurement
Code to confer standing. Rather, they assert standing as taxpayers (as well as separately
property owners) and they seek relief granted traditionally to taxpayers: declaratory relief
that the governmental action is illegal and ultra vires and that the action thus taken
should be voided; and injunctive relief to preclude further illegal and ultra vires
governmental actions that will cause pecuniary harm to their taxes. Because taxpayer
84
suits in this State do not require also a separate private right of action, 54 such an inquiry is
irrelevant in our analysis.
Rather, the proper question (if any) is whether the Procurement Code pre-empted
the common law right for taxpayers to bring such suits. Neither party addressed this
issue, however. Because neither party argued whether the Procurement Code pre-empted
the common law right of taxpayer suits, which has a long history in this State of allowing
challenges of governmental procurements, we do not address this question today and, for
now, assume that the common law right to taxpayer suits remains intact.
ii. The necessary party plaintiffs for taxpayer standing
doctrine.
“The fundamental aspect of standing is that it focuses on the party seeking to get
his complaint before the court . . . .” Pollokoff v. Maryland Nat. Bank, 288 Md. 485, 497,
418 A.2d 1201, 1208 (1980) (citing Flast v. Cohen, 392 U.S. 83, 99, 88 S. Ct. 1942,
1952, 20 L. Ed. 2d 947 (1968)). For purposes of taxpayer standing doctrine, the
conceptual basis of the doctrine is that the action is brought by complainants, as
taxpayers and on behalf of all other similarly situated taxpayers. In other words, under
the taxpayer standing doctrine, a complainant’s standing rests upon the theoretical
54
We acknowledge that dicta in a footnote in 120 West Fayette St., LLLP v. Mayor
of Baltimore, 426 Md. 14, 43 A.3d 355 (2012) (“Superblock III”), could be read
reasonably to suggest that complainants asserting the taxpayer standing doctrine must
also have a cause of action, such as a statutory private right of action. See id., 426 Md. at
28 n.13, 43 A.3d at 365 n.13 (stating that 120 West Fayette is “categorically barred from
alleging a violation of § 5A-326(a)(2)” because that statute “explicitly prohibits private
causes of action for a State unit’s non-compliance with the Trust’s review, consultation
and cooperation on historic preservation projects”). That dicta is contradictory to prior
case law, such as Schley v. Lee, 106 Md. 390, 403-05, 67 A. 252, 257-58 (1907).
85
concept that the action is brought not as an individual action, but rather as a class action
by a taxpayer on behalf of other similarly situated taxpayers.
To establish eligibility to bring a suit under the taxpayer standing doctrine, the
case law establishes that the complainant must allege two things: (1) that the complainant
is a taxpayer and (2) that the suit is brought, either expressly or implicitly, on behalf of all
other taxpayers. See, e.g., Holt v. Moxley, 157 Md. 619, 622-26, 147 A. 596, 597-99
(1929). Where a complainant fails to allege such a basis adequately, this Court has
refused repeatedly to address taxpayer standing as a basis to maintain suit. See, e.g.,
Baker, 427 Md. at 716, 50 A.3d at 1126-27 (declining to address the issue of taxpayer
standing doctrine after the “[p]etitioners maintained steadfastly, albeit quixtocially . . .
that they were not asserting standing as taxpayers, relying instead solely on their claimed
private cause of action theory”); Kendall, 431 Md. at 607-08, 66 A.3d at 694 (refusing to
address taxpayer standing doctrine because petitioners did not assert taxpayer standing
and, instead, asserted that “the ability to enforce the right to referendum in the Charter
should not be restricted to persons with specially affected property rights or taxpayers
who may suffer pecuniary harm.”); Long Green Valley Ass’n v. Bellevale Farms, Inc.,
205 Md. App. 636, 689 n.30, 46 A.3d 473, 505 n.30 (2012) (declining to consider
appellants’ “taxpayer standing” argument which was mentioned on appeal, but not argued
before the circuit court as a basis for conferring standing). Thus, we determine whether
Appellees alleged sufficiently here that they were taxpayers and that they brought the
action pursuant to equitable grounds, under the taxpayer standing doctrine, on behalf of
other taxpayers.
86
First, we address the requirement that, for taxpayer standing to exist, the
complainant must allege sufficient facts to prove that he or she or it is, in fact, a
taxpayer. 55 In this case, the State Agencies argue that Appellees, as “pass-through”
business entities, are not actual taxpayers. In a footnote of their initial brief, the State
Agencies aver that, because “all of the original plaintiffs are either limited liability
companies or limited partnerships, which are ‘pass-through’ tax entities,” Appellees
failed to allege taxpayer status sufficient to be eligible for the application of the taxpayer
doctrine. 56 (Emphasis added). In a footnote of their Reply Brief, they averred again (but
more broadly to include all plaintiffs) that “the plaintiffs are not taxpayers. Each of them
is either a limited liability company or a limited partnership, and those entities do not pay
Maryland income taxes as a matter of law.”
Appellees retort that the State Agencies failed to preserve their argument that
Appellees are not taxpayers because they did not advance that argument in the Circuit
Court. Consequently, we should dismiss the argument because, if the State Agencies had
55
For purposes of clarity, we consider here the status of taxpayers generally. A
later subsection of this opinion discusses the nexus requirement that, unless met, the mere
status as a taxpayer (of any tax) is not sufficient. In order to meet the nexus necessary for
the injury requirement, a plaintiff must prove that the taxpayer pays a tax, which will be
increased most likely by the alleged ultra vires or illegal municipal act.
56
In support of this assertion, the State Agencies rely on Baltimore Street Builders
v. Stewart, 186 Md. App. 684, 690 n.2, 975 A.2d 271, 274 n.2 (2008), as “noting benefits
of pass-through taxation for LLCs and partnerships.” Footnote two in Baltimore Street
Builders relies on the United States Internal Revenue Service web site’s definition of a
Limited Liability Company (which is not specific to Maryland tax law). This definition
stated that LLCs enjoy “the benefit of pass-through taxation.” Id. The footnote did not
explain what these benefits were and did not consider expressly the nature of limited
partnerships.
87
raised properly this issue in the Circuit Court, Appellees would have had an opportunity
to present evidence that they were, in fact, taxpayers. Moreover, according to Appellees,
the State Agencies’ argument lacks any merit because they are taxpayers in Maryland.
As a preliminary matter, we address the non-preservation contention. “Ordinarily,
the appellate court will not decide any other issue unless it plainly appears by the record
to have been raised in or decided by the trial court.” Md. Rule 8-131(a). This general
rule is appropriate, particularly for cases in which both parties were not given the
opportunity to produce relevant evidence in the trial court that might have rebutted the
tardy argument. Appellees believe this case falls into that category. Although we might
agree that this case falls in that category generally, we note also the exception that “the
Court may decide such an [unpreserved] issue if necessary or desirable to guide the trial
court or to avoid the expense and delay of another appeal” is applicable to this case. Id.
The record is adequate to those ends for our conclusion in this case (in which we may
resolve the matter without reaching the merits of the State Agencies’ argument that the
limited liability entities may not claim taxpayer standing). 57 Thus, we exercise our
discretion to resolve the point.
57
Were the only issue whether limited liability entities are able to claim taxpayer
standing, we would agree likely with Appellees that the record was insufficient to address
this issue because Appellees would not have had the opportunity to set forth any evidence
or arguments to the contrary in the trial court. Thus, we use our discretion to resolve the
matter in this case, while saving the substantive issue for another day when we are
provided with a better record.
88
For purposes of taxpayer standing doctrine, “[i]t is a long established rule that
‘where there exists a party having standing to bring an action or take an appeal, we shall
not ordinarily inquire as to whether another party on the same side also has standing.’”
Bd. of Sup'rs of Elections v. Smallwood, 327 Md. 220, 233 n.7, 608 A.2d 1222, 1228 n.7
(1992) (quoting Bd. of License Comm’rs v. Haberlin, 320 Md. 399, 404, 578 A.2d 215,
217 (1990)) (citations omitted) (internal bracket omitted); see also Long Green Valley
Ass’n, 205 Md. App. at 652, 46 A.3d at 483; Garner v. Archers Glen Partners, Inc., 405
Md. 43, 54, 949 A.2d 639, 645-46 (2008); Dorsey v. Bethel A.M.E. Church, 375 Md. 59,
67, 825 A.2d 388, 392 n.1 (2003). Although the Original Complaint listed fifteen
businesses as plaintiffs, all of which were limited partnerships or limited liability
corporations (and, therefore, “pass-through” entities), 58 the Amended Complaint added
58
Companies are subject generally to federal and state income tax on their taxable
income. A “pass-through” entity, however, is not a separate taxable entity. “Instead, its
income, loss, deductions, and credits are passed through to its stockholders.” Charles A.
Borek, Borek’s Maryland Business Planning Guidebook § 2-13 (2009). Thus, “pass
through” refers to a mechanism by which
[i]f certain conditions are satisfied, dividends paid to shareholders of
regulated investment companies and real estate investment trusts are
deductible in computing investment company taxable income . . . .
Through this mechanism, no corporate tax will generally be imposed on
these entities if all of their earnings are properly distributed to shareholders.
Joseph H. Langhirt, Corporate Income Tax, in 1 Maryland Taxes § 4-5 (Robert A.
Rombro et al. eds., 4th ed. 2005 & Supp. 2008) (footnote omitted). In other words, “the
income of a . . . corporation is deemed to ‘pass through’ to the shareholders who are then
directly taxed on that income” in the same manner as other income. Maryland State
Comptroller of Treasury v. Wynne, 431 Md. 147, 154, 64 A.3d 453, 456-67 (2013).
(Continued…)
89
David & Dad’s Inc. and the Second Amendment by Interlineation added DaMimmo’s
Italian Restaurant; 59 Sabatinos, Incorporated; Chiapparelli’s Inc.; Vaccaro’s Italian Pastry
Shop, Inc.; Bonnie’s Peanut Shoppe, Inc.; Davis and Davis, Inc., d/b/a Flowers by Gina
D.; and Caesar’s Den, Inc., to the named Plaintiffs in this suit. These eight companies are
general Maryland corporations. None are a limited partnership or a limited liability
corporation and, therefore, we may assume for purposes of this appeal that they are not
“pass-through” entities. 60 Because “the filing of an amended complaint supercedes the
(…continued)
In Maryland, a “pass-through entity” is defined as “(i) an S corporation; (ii) a
partnership; (iii) a limited liability company that is not taxed as a corporation under this
title; or (iv) a business trust or statutory trust that is not taxed as a corporation under this
title.” Md. Code (1988, 2010 Repl. Vol.), Tax-General Art., § 10-102.1(a)(7).
59
DaMimmo’s Italian Restaurant, although not a party to this appeal, was one of
the listed Plaintiffs to the suit at the time the Circuit Court ruled on the State Agencies’
Motions to Dismiss and, thus, is part of our review whether that ruling was legally
correct. Regardless of DaMimmo’s Italian Restaurant’s inclusion, though, Appellees
satisfy the requirements for eligibility to bring taxpayer suit based solely on the inclusion
of at least one presumed taxpaying corporation.
60
We acknowledge that limited liability corporations and limited partnerships are
not the only business entities that may receive “pass-through” tax treatments in this State.
These eight corporations, if they were sub-chapter S corporations, would be classified as
“pass-through” business entities with the same “pass-through” tax benefits of limited
liability corporations and limited partnerships. We do not entertain, however, the
possibility that these eight corporations may be a “pass-through” entity for purposes of
this analysis. The State Agencies failed to mention that even one Plaintiff was neither a
limited liability corporation nor a limited partnership and, moreover, failed to mention
that sub-chapter S Corporations qualify as “pass-through” business entities as well in
either its initial or reply brief. Although we could search the judicially-noticeable public
records theoretically for this information (because the taxable status of a company is
information available publicly), we find that such over-reaching is not proper for this
Court. The State Agencies had the opportunity to present this evidence, if they so
desired, at the trial court (but they did not) and, again, to this Court (but they did not).
(Continued…)
90
initial complaint, rendering the amended complaint the operative complaint,” Gonzales v.
Boas, 162 Md. App. 344, 355, 874 A.2d 491, 497 (2005), we conclude that the State
Agencies’ argument, relying on the type of “pass-through” business entities listed as
Plaintiffs in the Original Complaint, without recognizing that not all of the parties listed
in the operative Amended Complaint fell within those types, has no merit. 61
Next, we consider whether Appellees alleged taxpayer standing as a basis for
bringing their complaint, either implicitly or explicitly. We do so not in response to any
of the parties’ arguments. Rather, we analyze this requirement to illustrate the
importance of the distinction between an individual’s complaint and a derivative
complaint brought on behalf of all other taxpayers similarly situated. This distinction,
found in the nature of the pleadings’ description of the party plaintiffs, becomes
important in our subsequent analysis of the injury sufficient for the taxpayer standing
doctrine to apply in a given case.
In this case, Appellees did not plead explicitly in either the Original or Amended
Complaint that they brought their claims on behalf of other, unnamed taxpayers similarly
situated. Rather, Appellees’ allegations claimed merely that they are harmed as taxpayers
of the State of Maryland and the City of Baltimore. See Amended Complaint, at ¶ 35.
Where a complainant brings a claim as a taxpayer, but not explicitly as a class
(…continued)
61
We reiterate that we do not reach the merits of the argument that pass-through
entities may not allege taxpayer standing doctrine, but rather save that question for
another day.
91
representative of other taxpayers as well, the question arises whether the suit is private in
nature (and, thus, the doctrine of taxpayer standing would not confer standing). The
importance of the nature of the complaint is revealed by our earliest cases addressing the
taxpayer standing doctrine.
In Kelly v. City of Baltimore, 53 Md. 134 (1880), a disappointed bidder, allegedly
the low bidder which should have been granted the contract, sought an injunction voiding
the municipal contract, awarded allegedly as a result of a fraudulent bid-rigging
conspiracy between the successful bidder and mid-level municipal contracting officers.
53 Md. at 136-39. The Court described the nature of the complaint filed as follows:
The bill is filed by the complainants in their own right as copartners, and
actually engaged in the business of printers and stationers, and as tax-
payers of said city largely interested in the faithful and economical
administration of the affairs of said city. It is not filed in behalf of
themselves and others who may come in and contribute to the expenses of
the suit. They do not make their fellow-citizens parties to the
proceeding. No one except the persons immediately interested in the
contract, and professing to be aggrieved by the award, unites in the
complaint. It is therefore strictly speaking, a private bill.
Kelly, 53 Md. at 136 (emphasis added). The importance of the private nature of the
complaint was described further:
Public wrongs, although involving private injuries, are not to be made the
grounds of personal suits at law, or in equity, unless the complainant has
sustained special damage, and in many instances, the private injury is
merged in the public.
In exceptional cases, where great principles or large public interests are
involved, citizens or corporators may sue in behalf of themselves, and their
fellow-citizens to arrest some projected violation of constitutional law or
abuse of corporate authority.
92
Kelly, 53 Md. at 139; see also Kelly, 53 Md. at 140 (“‘It is certainly well settled that
public wrongs cannot be redressed at the suit of individuals, who have no other interest in
the matter than the rest of the public.’”) (quoting Gill, 31 Md. at 393). The Court
explained that Gill sustained the taxpayers’ suit “only upon the principle that if such a
remedy was denied citizens and property holders, residing within the limits of a
municipality, would be liable to injury and damage from unauthorized and illegal acts of
the corporation.” Id.
Our predecessors emphasized, though, that “th[e] Court has not undertaken to
declare that every abuse of a legal authority by a municipal corporation, to the prejudice
of a tax-payer, is a ground for equitable interference to prevent injury.” Kelly, 53 Md. at
140. Instead, Gill was an “exceptional case” because the Court found that “‘it appears
from the averments of the bill, that these complainants as tax-payers of the city, and
others similarly situated, in whose behalf as well as their own, the bill is filed,
constitute a class specially damaged by the alleged unlawful act of the corporation, in
the alleged increase of the burden of taxation upon their property situated within the
city.’” Id. (quoting Gill, 31 Md. at 394) (emphasis added). On that basis, the Court
concluded that “‘[t]he complainants have, therefore, a special interest in the subject-
matter of the suit distinct from that of the general public.’” Id. (quoting Gill, 31 Md. at
394).
The Kelly Court concluded that, in that case, “[t]he bill . . . presents no such claim
to the exercise of the preventive power of the court.” 53 Md. at 142. Instead, “[r]educed
to its elementary facts, it is a controversy between rival tradesmen for the custom of the
93
Mayor and City Council, in supplying the departments with stationery and printed
matter.” Id. Thus, Kelly concluded that “[t]he public has no interest in this
controversy. . . . To drag them in as complainants, is to make a mountain of a mole
hill, and magnify the alleged injuries of private citizens, into a grave impeachment
of public officers without sufficient foundation.” 53 Md. at 143 (emphasis added).
Although Kelly exemplifies the importance of the nature of the complaint for
purposes of analysis under the taxpayer standing doctrine (i.e., who the plaintiffs are in
the complaint), the Court does not order any technical requirement that the plaintiff(s)
plead explicitly that the suit is brought on behalf of other taxpayers similarly situated.
We held in Holt that the requirement is that “the action must ‘either expressly or by
necessary implication’ be on behalf of the taxpayers or property owners as a class.”
Holt v. Moxley, 157 Md. 619, 625, 147 A. 596, 599 (1929) (quoting 1 Freeman on
Judgments § 437 (5th ed. 1925)) (emphasis added). 62
62
In Holt v. Moxley, 157 Md. 619, 147 A. 596 (1929), the Court addressed a
benefit assessment for street improvements in a municipality. In an earlier challenge to
the assessment, a different taxpayer brought suit, as a taxpayer, but did not allege that he
brought the suit on behalf of any other taxpayers, or anyone else for that matter. In the
earlier case, the validity of the assessment legislation was sustained by the circuit court.
In Holt, a second taxpayer challenged the same legislation in the same circuit court on the
same grounds and sought the same relief denied in the earlier challenge. The dispositive
question was whether Holt was precluded by res judicata from challenging the same
legislation on the same grounds as in the earlier case.
The Court found that the second taxpayer’s challenge was precluded by the first
suit because the first suit was brought under the taxpayer standing doctrine and, thus, on
behalf of all other taxpayers “by necessary implication.” In other words, because the first
challenge was based on the taxpayer standing doctrine, which is an equitable doctrine,
“[the Holt Court] applied the concept, traditional to equity practice, of virtual
(Continued…)
94
Thus, even though Appellees did not allege specifically that they brought the suit
on behalf of other taxpayers similarly situated, the doctrine may apply yet, if the action is,
in fact, on behalf of the taxpayers as a class, by necessary implication from the nature of
the alleged injury pleaded in the Amended Complaint. In other words, the allegations of
the injury must apply to all taxpayers in the assumed class and not merely the plaintiffs as
private complainants, in order for the taxpayer standing doctrine to apply.
iii. A governmental action that is illegal or ultra vires.
An additional requirement for the taxpayer standing doctrine to confer standing
upon a plaintiff is that the complainant must be challenging an action by a public official
that is asserted to be illegal or ultra vires. This requirement has been applied leniently
and seems rather easy to meet, particularly in the context of reviewing a trial court’s
(…continued)
representation . . . .” See Gardner v. Bd. of Cnty. Comm'rs, 320 Md. 63, 79, 576 A.2d
208, 216 (1990) (discussing Holt).
The fact that the earlier case did not state explicitly it was brought on behalf of
other taxpayers was not dispositive. Because “[t]he defendants . . . in the [earlier case]
did not demur to the bill for want of the averment that it was brought on behalf of other
interested taxpayers and property owners,” it was “a formality which we can consider
waived by the only parties who could have objected.” Holt, 157 Md. at 625, 147 A. at
599. The rationale was that, if the defendant had demurred on the grounds that the bill
was defective in this respect, the bill could have been amended. If amended, the “‘only
effect [of such an amendment would be] to make the bill profess to be what in law it was,
and what in point of fact it had been considered to be.’” Id., 157 Md. at 625, 147 A. at
598 (citations omitted).
Under this reasoning, the Holt Court distinguished Kelly by noting that the
plaintiffs in Kelly were disappointed bidders for a city contract and “the wrongs
complained of were personal to the plaintiffs, concerned only with matters of
administration in which the plaintiffs had no interest as taxpayers differing from those of
the general public . . . .” Id. Thus, in that case, there was no “necessary implication” that
the case was brought on behalf of other taxpayers.
95
denial of a motion to dismiss, as is the case here. We assume that the facts well-pleaded
in Appellees’ Amended Complaint are true and, therefore, we must assume further that
the complained-of State officials’ actions were, in fact, ultra vires. See, e.g., RRC Ne.,
LLC, 413 Md. at 643-44, 994 A.2d at 433-34.
That Appellees’ allegations may be unproven at trial or Appellants’ evidence
found more credible or persuasive (i.e., that the State Center Project and its formative
documents were proper under the relevant state laws and regulations) does not figure in
the analysis. See Funk v. Mullan Contracting Co., 197 Md. 192, 196, 78 A.2d 632, 635
(1951) (stating that the taxpayer’s right “to invoke the aid of a court of equity to restrain
the action of an administrative agency of the State, when such action is illegal and may
injuriously affect the taxpayer's rights or his property . . . does not depend upon the result;
that is, he may be wrong in his contention, but nevertheless he has the right to invoke the
aid of the courts to make it”). So long as the plaintiffs allege, in good faith, an ultra vires
or illegal act by the State or one of its officers, as was done here, such allegations are
sufficient to confer taxpayer standing doctrine, so as to entitle the plaintiff to get its foot
in the courthouse door and receive potentially a merits hearing (all other things being
equal) and determination whether the acts were, in fact, illegal or ultra vires. Therefore,
we conclude that Appellees met this requirement through the allegations of their
Amended Complaint.
iv. Specific Injury Sufficient.
It is well-settled that the taxpayer must allege also a special interest distinct from
the general public. See, e.g., Harlan v. Employers' Ass'n of Maryland, 162 Md. 124, 131,
96
159 A. 267, 270 (1932) (citing Gill, 31 Md. at 375). This requirement “has been
interpreted repeatedly to require a showing that the action being challenged results in a
pecuniary loss or an increase in taxes.” Citizens Planning, 273 Md. at 339, 329 A.2d at
684 (citations omitted). 63 As the inaugural case explained:
It is certainly well settled that public wrongs cannot be redressed at the suit
of individuals, who have no other interest in the matter than the rest of the
public. Thus an individual cannot maintain a bill of injunction to prevent a
public nuisance, unless he suffers thereby some special damage; and the
principle governing cases of that kind has been supposed to be applicable to
the present case. But it appears from the averments of the bill, that these
complainants, as taxpayers of the city, and others similarly situated, in
whose behalf as well as their own the bill is filed, constitute a class
specially damaged by the alleged unlawful act of the corporation, in the
alleged increase of the burden of taxation upon their property situated
within the city. The complainants have therefore a special interest in
the subject-matter of the suit, distinct from that of the general public.
Gill, 31 Md. at 394 (emphasis added). In other words, the special interest that is distinct
from the general public is the increased burden of taxation. 64
63
Language in some of our cases contributes to some confusion on this point. See,
e.g., Citizens Comm. of Anne Arundel Cnty., Inc. v. Cnty. Comm'rs, 233 Md. 398, 404,
197 A.2d 108, 112 (1964) (“In any event it is clear that the loss or damage the
complaining taxpayers claim to have sustained has likewise been proportionately suffered
by all other taxpayers in the county.”). Such dicta should not be read to unsettle the well-
settled nature of the principles discussed here and in the other cases mentioned in this
opinion.
64
A common point of apparent confusion arises from prior statements and
suggestions by this Court that the “restrictions on standing [regarding a special interest
distinct from the general public] do not necessarily apply to a taxpayer” because “[t]his
Court has held that a person’s or an organization’s status as a taxpayer entitles it to
standing when the challenged statute, regulation, or government action increases or
threatens to increase the taxpayer’s tax burden.” Med. Waste Assocs. v. Maryland Waste
Coal, Inc., 327 Md. 596, 613 n.10, 612 A.2d 241, 250 n.10 (1992) (citations omitted).
This phrasing is somewhat misleading because the requirements for a special interest
(Continued…)
97
This Court has clarified this special interest requirement many times since Gill.
For example, in Ruark v. International Union of Operating Engineers, Local Union No.
37, 157 Md. 576, 146 A. 797 (1929), we clarified the rule, explaining the requirement as
follows:
The special damage which the taxpayer of the political division sustains in
a public wrong is the prospective pecuniary loss incident to the increase
in the amount of taxes he will be constrained to pay by reason of the
illegal or ultra vires act of the municipality or other political unit.
Hence the taxpayer's interest in the subject matter is not general, but
special only, because of the future individual monetary burden cast
upon him or his property. The subsequent decisions have consistently
maintained the rule, and have sanctioned the relief by injunction whenever
it appeared that the taxpayer complaining would sustain a pecuniary loss,
distinct from that of the general public, by reason of increased taxes,
whether such increase resulted from an ultra vires, illegal, or void order,
contract, ordinance, or statute in reference to an assessment of property, or
to the levy, collection, expenditure, appropriation, or diversion of public
taxes.
Id., 157 Md. at 589-90, 146 A. at 802-03 (emphasis added) (footnotes omitted). See also
Harlan, 162 Md. at 131, 159 A. at 270 (“If it appears that the wrong complained of may
result in imposing an additional burden on the taxpayer, then he, with others similarly
situated, constitute a class entitled to relief, and courts of equity will take cognizance of
their complaint.”) (citing Gill, 31 Md. at 375).
This requirement is the foundation of the taxpayer standing doctrine. As the
Supreme Court of Alabama explained:
(…continued)
distinct from the general public apply still in this doctrine. Thus, the characterization of
the injury is essential to the analysis.
98
[T]he right of a taxpayer to sue is based upon the taxpayer's equitable
ownership of such funds and their liability to replenish the public
treasury for the deficiency which would be caused by the
misappropriation.
Broxton v. Siegelman, 861 So. 2d 376 (Ala. 2003) (emphasis added) (citations and
internal quotation marks omitted).
Taxpayers, like any plaintiffs, may not “‘restrain official acts upon the mere
ground that they are ultra vires.’” Ruark, 157 Md. at 588, 146 A. at 802 (quoting
Bauernschmidt v. Standard Oil Co., 153 Md. 647, 651, 139 A. 531, 533 (1927)). Rather,
the ultra vires or illegal acts must cause a special damage to the taxpayer-complainant
which differs from that impressed on the general public. See, e.g., Ruark, 157 Md. at
592-93, 146 A. at 804 (concluding that “these taxpayers will not sustain any special
damage” because “their interest in the subject matter of the eight contracts is merely that
of every resident of Baltimore”). 65
“[T]he taxpayer plaintiff is not required to allege facts which necessarily lead to
the conclusion that taxes will be increased; rather the test is whether the taxpayer
‘reasonably may sustain a pecuniary loss or a tax increase’—‘whether there has been a
showing of potential pecuniary damage.’” Inlet Assocs. v. Assateague House Condo.
Ass’n, 313 Md. 413, 441, 545 A.2d 1296, 1310 (1988) (emphasis added in Inlet Assocs.)
(quoting Citizens Planning, 273 Md. at 344, 329 A.2d at 687). To confer taxpayer
65
The distinction between resident and taxpayer is significant. Remembering that
distinction may contribute some clarity to the confusion. A party may be a resident of the
State (and, thus, have a “general interest” in the State’s actions), but not be a taxpayer
whose pecuniary interest would be affected by that action (and, thus, not have the
requisite “special interest”).
99
standing upon a plaintiff, this Court requires, however, “a clear showing of [that]
potential pecuniary damage” and of a nexus between that potential damage and the
challenged act, Gordon v. City of Baltimore, 258 Md. 682, 687-88, 267 A.2d 98, 101
(1970); otherwise, the taxpayer would lack any injury upon which to base his, her, or its
claim.
These general requirements are reiterated in almost every taxpayer standing
doctrine case. Beyond these general requirements, though, the cases fail to articulate
further guidance. The cases, while helpful on a fact-specific, individual basis, remain
disorganized as a whole and even appear haphazard, due to the apparent contradictions
between some of the holdings. Thus, before we are able to determine whether Appellees’
allegations met the general requirements, we examine the facts from our prior cases and,
to the extent possible, attempt to tease out general guiding principles that will help us
determine whether the basic requirements for this doctrine are met here. In doing so, we
divide our discussion of the injury into three broad subcategories: type of harm, nexus,
and degree of harm.
(1) What types of “harm” amount to a pecuniary loss?
This Court has recognized repeatedly that taxpayers have the right to bring a
lawsuit in this State to prevent waste or unlawful use of public property and funds. 66 See,
66
While some other states allow taxpayer challenges to virtually any governmental
conduct, see, e.g., Joshua G. Urquhart, Disfavored Constitution, Passive Virtues? Linking
State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines, 81
Fordham L. Rev. 1263, 1282, 1282 n.122 (2012) (citing Barber v. Ritter, 196 P.3d 238,
246-47 (Colo. 2008); Smith v. W. Va. State Bd. of Educ., 295 S.E.2d 680, 683 (W. Va.
(Continued…)
100
e.g., Hammond v. Lancaster, 194 Md. 462, 474-75, 71 A.2d 474, 479 (1950) (concluding
that, because the appellees have an interest, as taxpayer, to prevent waste of public funds,
the questions regarding the constitutionality of the challenged statute was properly before
the Court of Appeals); Matthaei v. Housing Auth., 177 Md. 506, 510, 9 A.2d 835, 836
(1939) (“The proceeding [seeking an injunction against the erection of a housing project
of the Housing Authority of Baltimore which allegedly transgressed statutory limits of
the authority] is one on behalf of taxpayers who would be affected by diversion of state
or city tax funds to wrong uses, or by exemption of properties from paying taxes like
their own; and in this state the taxpayers may sue for an injunction.”); Hanlon v. Levin,
168 Md. 674, 681, 179 A. 286, 289 (1935) (concluding that the appellee had the right to
attack the Board of Park Commissioners’ actions because “[h]e is a resident and taxpayer
of Baltimore City and equity will at his instance enjoin the conveyance or diversion to
unlawful use of municipal property or funds”). The question arises, however, what types
of “harm” are sufficient to constitute “waste” so as to confer taxpayer standing upon a
complainant.
Generally, the Court has exhibited great leniency in its interpretation of “potential
pecuniary loss.” See, e.g., Baltimore Retail Liquor Package Stores Ass’n v. Kerngood,
171 Md. 426, 429, 189 A. 209, 210 (1937) (“The courts of the State will entertain
(…continued)
1982); Greater Harbor 2000 v. City of Seattle, 937 P.2d 1082, 1090-91 (Wash. 1997);
Susan L. Parsons, Comment, Taxpayers’ Suits: Standing Barriers & Pecuniary
Restraints, 59 Temp. L.Q. 951, 951-52 (1986)), this State has adhered steadfastly to the
requirement that the challenge must relate to fiscal conduct.
101
jurisdiction of suits by citizens and taxpayers for the writ of mandamus, or that of
injunction, to correct unlawful action by municipal officers when the action may
injuriously affect rights and property of the parties complaining. And according to past
applications of the rule, the interest or injury which will support such a suit is
broadly comprehensive.”) (emphasis added) (citing Gill, 31 Md. at 395; St. Mary's
Industrial School v. Brown, 45 Md. 310, 326 (1876); Pumphrey v. Mayor of Baltimore,
47 Md. 145, 153, 28 A. 446, 450 (1877); Konig v. Baltimore, 128 Md. 465, 477-78, 97 A.
837, 841 (1916); Levering v. Williams, 134 Md. 48, 59, 106 A. 176, 179-80 (1919);
Thomas v. Field, 143 Md. 128, 141, 122 A. 25, 30 (1923); Sun Cab Co. v. Cloud, 162
Md. 419, 427, 159 A. 922, 925 (1932); Jones v. Gordy, 169 Md. 173, 178, 180 A. 272,
275 (1935)).
“[I]t is no longer an open question in this state that, if [a] statute is invalid and
injurious to him, he has a clear right, as a taxpayer, to maintain this suit.” Dahler v.
Washington Suburban Sanitary Comm’n, 133 Md. 644, 646, 106 A. 10, 11 (1919)) (citing
Painter v. Mattfeldt, 119 Md. 466, 87 A. 413 (1913); Baltimore v. Keyser, 72 Md. 106,
19 A. 706 (1809)); see also id. (holding that the plaintiff enjoyed taxpayer standing
doctrine status because, “[a]s [a] taxpayer [the plaintiff] is liable for the assessments and
taxation for the general purposes of the act,” which created a suburban sanitary district);
Graf v. Hiser, 144 Md. 418, 423, 125 A. 151, 153 (1924) (“The right of taxpayers to
protect their interests by a suit in equity, for an injunction against taxation under an
invalid or ineffective law, is not open to question.”).
102
Invalid statutes are not, however, the only types of harm that may be a foundation
for taxpayer standing. For example, in James v. Anderson, 281 Md. 137, 377 A.2d 865
(1977), the Court held that the plaintiff’s pointing to an alleged “decrease in efficiency
which would result from the alleged ultra vires acts” was “sufficient for a taxpayer of the
county involved to maintain a suit.” 281 Md. at 142, 377 A.2d at 868. In that case, the
plaintiff sought declaratory judgment that the law “preclude[d] the County Executive
from using the bond proceeds for the construction of the new courthouse on a new site.”
James, 281 Md. at 140, 377 A.2d at 867. The defendants countered that the plaintiff
lacked taxpayer standing because “the expenditure planned by the County Executive
would in fact be less than the expenditure required to renovate the old courthouse, and
that, as such, the plaintiff had not alleged any special damages or pecuniary loss which
would entitle him, as a taxpayer, to maintain the action.” Id.
This Court disagreed. It noted that the plaintiff alleged “that it would be more
efficient for the courts and their supporting agencies to operate in close proximity, as is
called for in the renovation project.” James, 281 Md. at 140, 377 A.2d at 867. In other
words, “[t]he plaintiff challenges, as ultra vires, the actions of a County Executive, and
points to a claimed decrease in efficiency which would result from the alleged ultra vires
acts.” James, 281 Md. at 142, 377 A.2d at 868. The Court held that “this is sufficient for
a taxpayer of the county involved to maintain a suit.” Id.
We have gone so far as to hold that a potential need to fend off charges of
illegality may be sufficient to establish taxpayer standing. In Citizens Planning, we noted
that “it is not illogical to expect that the county might incur some expense or loss, to the
103
detriment of taxpayers, including appellants, in an errort to fend off the charges of
illegality.” Citizens Planning, 273 Md. at 343, 329 A.2d at 687. We observed that
“[s]uch potential losses alone may be sufficient to establish standing.” Id. (citing Castle
Farms Dairy Stores v. Lexington Market Auth., 193 Md. 472, 482, 67 A.2d 490, 482
(1949)). 67
Sun Cab Co. v. Cloud, 162 Md. 419, 159 A. 922 (1932), exemplifies one of the
most lenient interpretations of what may constitute a sufficient plea of potential pecuniary
loss. 68 In Sun Cab Co., the Court held that the taxpayers, in a class suit, had sufficient
monetary interest solely on the following grounds:
67
This case was decided on other grounds as well. Whether the potential need to
fend off charges of illegality is sufficient, standing alone, to establish this requirement of
taxpayer standing is left for another day.
68
One could argue that Green v. Garrett, 192 Md. 52, 59, 63 A.2d 326, 328
(1949), and Castle Farms Dairy Stores v. Lexington Market Authority, 193 Md. 472, 67
A.2d 490 (1949), are more lenient in not requiring taxpayers to show pecuniary or special
loss. See, e.g., Gordon v. City of Baltimore, 258 Md. 682, 688, 267 A.2d 98, 101-02
(1970) (referring to Castle Farms Dairy Stores as “[p]erhaps the most liberal application
of the [taxpayer standing doctrine] test”). In Citizens Committee, however, the Court
distinguished these cases in a significant manner when it found that standing in these
cases was not based on taxpayer basis alone, but rather rested heavily upon the bases of
nuisance and property owner standing:
In the Green case, the taxpayers were allowed to attack an ordinance under
which the city made profits, but they were held to have standing because
the contract of renting made under the ordinance created a nuisance which
detrimentally affected the rights and property of the taxpayers. It is doubtful
that the taxpayers would have had standing but for the nuisance. Certainly
the case cannot be interpreted to mean that taxpayers do not have to show
either a pecuniary or special loss, for in fact the taxpayers suffered a special
loss as a result of the nuisance. At p. 59 of 192 Md., at p. 328 of 63 A.2d, it
was said that ‘there is no doubt that as adjacent residents and property
(Continued…)
104
If the subject-matter is at all within the cognizance of a court of equity, as
we conclude it is, if that court may be resorted to for prevention of a
popular vote which would be void because based upon insufficient
petitions, then, according to the settled practice, taxpayers interested in
avoiding the waste of funds derived from taxation which would be involved
in conducting the void referendum may make application to the court for
the remedy.
Sun Cab Co., 162 Md. at 426, 159 A. at 925.
(…continued)
owners, the appellants have an interest in restraining conditions arising out
of the contract, which constitute a special nuisance to them.’ [Emphasis
supplied.] In the Castle Farms case, where the taxpayers' suit questioned
the validity of an ordinance providing for the establishment of a new
Lexington Market, it was said 193 Md. at p. 482, 67 A.2d at p. 493, that
‘[i]f the Act is unconstitutional the project is unlawful, and even though the
City would not be obligated for the project [under the ordinance the City
was not obligated for any expenses], it presumably would incur some
expense or loss in extricating itself and its property. As taxpayers,
therefore, plaintiffs are entitled to sue to enjoin such an unlawful project.
* * * As owners and claimants of rights in the market, they may also, in the
same case, sue to protect their property rights.’ There, it had been argued
that a loss to the city would constitute a pecuniary loss to the taxpayers. It
had also been argued that the plaintiffs were stall holders in the old market
and would be deprived of their property-a theory similar to the nuisance
theory in the Green case. But, in the case at bar, there is no allegation or
proof that the property rights of the taxpayers are adversely affected by the
county gambling statutes. Therefore, both Green and Castle Farms are
distinguishable in that neither a pecuniary nor special loss is shown to have
accrued as the result of deprivation of property rights.
Citizens Comm., 233 Md. at 403-04, 197 A.2d at 111 (alterations and emphasis in the
original). Other cases decided since Citizens Committee have relied upon Green and
Castle Farms Dairy as taxpayer standing doctrine cases. This confusion in whether they
represent taxpayer or property owner standing analyses is yet another example of the
convoluted approach to these doctrines fomenting greater confusion in some of the later
cases.
105
Similarly, in Harlan v. Employers' Ass'n of Maryland, 162 Md. 124, 159 A. 267
(1932), the Court concluded, “the facts alleged on behalf of the taxpayers [are] sufficient
to allow them to maintain this suit.” 162 Md. at 132, 159 A. at 270. The facts in that
case were as follows:
In the bill of complaint here demurred to it is charged “that the enforcement
by the city of payment of the schedule of wages as set out in the above
mentioned report of the committee will naturally increase the cost of
municipal work above its present level, and the inevitable consequence of
such increase will be an additional burden upon the taxpayers and property
owners.” The report of the committee, filed as an exhibit to the bill, shows
that the high and low figures were taken into consideration and a
compromise schedule arranged, all of which is admitted by the demurrer to
be true. Such action on the part of the city with regard to contracts for
public work may also be inconsistent with the provisions of section 15 of
the City Charter, article 4 of the Code of Public Local Laws, which requires
contracts to be awarded to the lowest responsible bidder, subject to the right
to invite alternative bids.
Harlan, 162 Md. at 131-32, 159 A. at 270.
In the present case, the State Agencies argue that Appellees failed to allege any
“harm” sufficient to confer taxpayer standing. According to the State Agencies,
Appellees should have challenged the entire project, in order to allege taxpayer standing
properly, because challenging only the formative contracts and the process by which the
State conducted its search for a developer of the State Center project is improper for
attainment of taxpayer standing. We find no merit in this contention. From our
precedent, we are able to summarize that the issue is not what “type” of harm is sufficient
necessarily, but rather a much more forgiving question of whether the type of harm is one
that may affect the complainant’s taxes. To determine that, Appellees’ claims, framed as
discrete challenges, are the proper focus of our analysis.
106
In analyzing Appellees’ challenges, we begin with those challenges alleging
violations of the Procurement Law. See Amended Complaints’ Counts I, II, III, and VI.
At the heart of all of these challenges are the competitive bidding requirements, which
exist for the benefit of the taxpayers. See 120 W. Fayette St., LLLP v. Mayor of
Baltimore City, 413 Md. 309, 333, 341, 992 A.2d 459, 474, 479 (2010) (“Superblock II”)
(noting that the purpose of the competitive bidding requirements is “‘to prevent
favoritism and collusion’” as well as “to eliminate . . . government overspending” and
thereby ensure that public works projects are procured at the lowest cost to taxpayers)
(quoting Bd. of Educ. v. Allender, 206 Md. 466, 475, 112 A.2d 455, 459 (1955)) (citing
Bennett v. Baltimore, 106 Md. 484, 68 A. 14 (1907)); Hylton v. Mayor of Baltimore, 268
Md. 266, 277, 300 A.2d 656, 661 (1972) (“The general purpose of competitive bid
requirements is ‘to obtain unrestricted competitive bidding for contracts . . . and thereby
to safeguard public funds by preventing favoritism, collusion and extravagance.’”)
(quoting Hanna v. Bd. of Educ., 200 Md. 49, 54, 87 A.2d 846, 848 (1952)). As this Court
stated in Hylton, quoting McQuillin’s summary of the law of competitive bid
requirements for contracts:
“The provisions of statutes, charters and ordinances requiring competitive
bidding in the letting of municipal contracts are for the purpose of inviting
competition, to guard against favoritism, improvidence, extravagance, fraud
and corruption, and to secure the best work or supplies at the lowest price
practicable, and they are enacted for the benefit of property holders and
taxpayers, and not for the benefit or enrichment of bidders, and should be
so construed and administered as to accomplish such purpose fairly and
reasonably with sole reference to the public interest. These provisions are
strictly construed by the courts, and will not be extended beyond their
reasonable purport. Such provisions must be read in the light of the reason
for their enactment, lest they be applied where they were not intended to
107
operate and thus deny municipalities authority to deal with problems in a
sensible, practical way. . . .”
268 Md. at 277-78, 87 A.2d at 661-62 (emphasis added) (quoting 10 McQuillin,
Municipal Corporations 321-22, § 29.29 (3d. Ed. rev. vol. 1966)). See generally
Livingston & Hoover, supra, at 1-12 (discussing, throughout their examination of
Maryland Procurement Law, the underlying driving motivation for the law to benefit the
taxpayers). Accordingly, in the context of taxpayer suits challenging governmental acts
for failing allegedly to abide by competitive bidding requirements, this Court has
conferred a particularly broad interpretation of “potential pecuniary loss.” See, e.g.,
Mayor of Baltimore v. Keyser, 72 Md. 106, 19 A. 706; Bennett v. City of Baltimore, 106
Md. 484 (1907); Hanna, 200 Md. 49. Therefore, where it is alleged that the State or
municipality fails to abide by the requirements for competitive bidding, we presume (at
least for present purposes) that the taxpayers are injured directly in that they are
responsible for the claimed extra expenses attendant to whatever other method was
adopted.
An important distinction exists, however, between a taxpayer’s challenge of a
contract or statute as ultra vires, as discussed above, and that of a contract or statute as
not being administered correctly. We explained this difference in Ruark:
[T]here is a distinction drawn between the prevention of public officials
from doing a primary act, which is ultra vires or unlawful, as the making of
a contract, of an assessment of property, of a levy of taxes, or of an
appropriation of funds; and the occurrence of secondary errors,
irregularities, or criminal conduct in the course of the performance of a
valid contract or of an authorized municipal function. The latter acts fall
into a different category and, generally, do not justify the issuing of an
injunction, since they are not of a fundamental character, and may be
108
controlled or compensated by other remedies, and because equity has no
supervisory power over public corporations and their officers.
Ruark, 157 Md. at 593, 146 A. at 804 (citations omitted). Although the distinction made
in Ruark dealt with the equitable right to injunction, it also appears to apply with equal
force to taxpayer standing to seek the injunction. We clarified this distinction
(somewhat) in our recent decision in Superblock III, which precluded taxpayer standing
where the complainants challenged the administration of a contract and distinguished
Superblock I on the grounds that the complainants in the earlier iteration of the litigation
were maintaining that the government failed to comply with an ordinance or statute. See
Superblock III, 426 Md. at 27-29, 43 A.3d at 363-64.
The rationale is partially that, at a certain point, the requirement that the ultra vires
act result reasonably in a potential pecuniary loss is much more difficult to prove if there
is merely an officer or unit administering a program. The reason this situation is more
difficult is because
where the action of a municipal corporation or administrative agency
is within the scope of its authority, and does not affect the vested rights
of liberty or property, the court will not review its exercise of
discretion, unless such exercise is fraudulent or corrupt or such abuse of
discretion as to amount to breach of trust. The courts assume the fitness of
administrative officials who are familiar with the matter in dispute and
informed by training and experience to pass upon the questions of fact
presented to them. Therefore, the courts feel that they should not substitute
their own judgments for the findings of administrative officials in the
absence of unusual circumstances.
Coddington v. Helbig, 195 Md. 330, 337, 73 A.2d 454, 456-57 (1950) (emphasis added)
(citations omitted). Similarly, in Hanna, we stated:
109
On a suit by a taxpayer, a court of equity will not review the exercise of
discretion of an administrative agency, if it acts within the scope of its
authority, unless its power is fraudulently or corruptly exercised; but the
court will restrain an agency from entering into or performing a void or
ultra vires contract or from acting fraudulently or so arbitrarily as to
constitute a breach of trust . . . .
Hanna, 200 Md. at 50, 87 A.2d at 847 (citations omitted). In that case, we held that the
taxpayers had standing to challenge a contract awarded in violation of a statute requiring
public works contract to be let to the lowest bidder.
In contrast, in Coddington, several taxpayers sought to enjoin the Board of
Commissioners of Garrett County from expending certain borrowed money for the
construction of two high school buildings. The taxpayers argued that the Commissioners
were authorized to borrow the money to build new schools and to improve and/or make
additions to existing schools. The Commissioners planned, however, to use all of the
borrowed money to build two new schools, leaving no money to make improvements to
existing schools. The Court of Appeals found that this was “an administrative function to
be exercised by the officials to whom the Legislature has delegated authority over the
administration of the schools.” Coddington, 73 A.2d at 337, 73 A.2d at 457 (citations
omitted). The Court reasoned, however, that
“if there be an attempt to apply the funds to objects not embraced within the
power granted, or to objects within the power, but in total disregard of
essential conditions prescribed by the statute to make it lawful to
appropriate the funds, a court of equity will interfere to restrain such
action. . . . But so long as such body of public functionaries confine
themselves within the limits of the power delegated, the court will not
interfere with the exercise of their discretionary powers, or undertake to
determine the question whether the act complained of be wise or unwise,
good or bad.”
110
Coddington, 195 Md. at 337-38, 73 A.2d at 457 (quoting Wiley v. Bd. of School
Comm’rs, 51 Md. 401, 404 (1879)). The Court concluded:
In the instant case there is no allegation that the County Commissioners are
acting fraudulently. The only question for decision, therefore, is whether
the bill alleges such gross abuse of discretion as to amount to breach of
trust. There is no doubt that the Commissioners have the authority to erect
high school buildings in places other than the towns mentioned in the Act,
for the Act gives them broad authority, subject only to the State
Superintendent's approval, to build school buildings in any community or
communities that need new buildings.
Coddington, 195 Md. at 338, 73 A.2d at 457. 69 See also Montgomery Cnty. Comm’rs v.
Henderson, 122 Md. 533, 536, 89 A. 858, 860 (1914) (“The question as to whether it
appeared from the petition of the citizens and taxpayers of the district filed in the case
that there was a general public demand for the ‘procurement and improvement’ of the
road as stated by the statute was a matter left by the statute to the judgment and discretion
of the county commissioners, and their action in this respect is not reviewable by this
court.”).
Thus, because challenges of “a secondary error” do not fall necessarily within the
same category of the well-settled doctrine in this State that taxpayers may seek the aid of
69
A correlative principle is that, even where the administrative agency may act
outside of its authority, if the claimant fails to allege how the ultra vires act would create
an increase in taxes, then the claimant has not alleged sufficient facts to confer taxpayer
standing. For example, in Superblock III, 120 West Fayette averred that it had taxpayer
standing because it was a taxpayer and a governmental agent’s action was ultra vires and
illegal allegedly. The alleged illegal action was the loss of a discretionary power to
cooperate in decisions involving the demolition of buildings in a historical area. There
was no alleged explanation, however, for how this would amount to a pecuniary loss for
taxpayers. See generally Superblock III, 426 Md. at 27-29,43 A.3d at 363-64 (discussing
lack of taxpayer standing in that case).
111
a court of equity to “prevent[] [] public officials from doing a primary act, which is ultra
vires or unlawful, [such] as the making of a contract . . . ,” Ruark, 157 Md. at 593, 146 A.
at 804, we must analyze Appellees’ individual challenges with this distinction in mind.
With regard to Appellees’ claims involving violations of the Procurement Law, we
conclude that their Amended Complaint does not fall prey to the same flaws as identified
in Superblock III and other cases. Appellees alleged, throughout their Amended
Complaint, that the State violated the Procurement Law by entering into the formative
contracts for the Project other than through public bidding. This alone was sufficient (for
pleading purposes) to meet this element of the requisite injury component of the taxpayer
standing doctrine as to Appellees for those challenges.
In contrast, Appellees’ challenge of the State Center’s TOD designation is, if error
at all, a “secondary error” that is not subject to our review. 70 While the RFQ, MDA, and
First Amendment envisioned a TOD designation, the State Agencies and the Developers
did not designate the State Center as a TOD. Rather, the Secretary of MDOT and the
Mayor of the City of Baltimore effected this designation. While the designation has
implications on where certain tax incentives and benefits are directed, such tax
implications are within the proper scope of the municipal corporation or administrative
agency’s authority, “and does not affect the vested rights of liberty or property . . . .”
Thus, as we explained in Coddington, the court will not review such an exercise of
70
This issue is not for our review also because Appellees chose not to pursue it on
appeal. We point out this distinction for clarity in application of the law, however.
112
discretion, unless such exercise is fraudulent or corrupt, or such abuse of discretion rises
to the level of a breach of trust. Because Appellees made no direct allegations of fraud or
corruption, 71 if the TOD designation were before us on appeal, we would conclude that
the TOD designation failed to impact taxpayers’ pecuniary interest in a primary way so as
to confer taxpayer standing.
Lastly, Appellees alleged that they were damaged by the presumed competition
that the completed State Center would pose to their businesses. See, e.g., Amended
Complaint, at ¶ 22 (“The relocation of State agencies from the CBD to State Center will
cause the Commercial Property Owners and Retail Merchants [termed “Plaintiffs” in this
opinion] loss of revenues, diminution of asset values and other economic harms, deprive
Baltimore City of property tax revenues at levels now paid by the [Plaintiffs] and further
the flight and blight in the CBD. This constitutes an imminent harm to the [Plaintiffs]
caused by the ultra vires actions of the State agencies.”) While such allegations do not
detract from our finding that other allegations were sufficient to satisfy this element,
these allegations of competition do not fit within the purview of taxpayer standing
injuries and, thus, for our analysis, we disregard them entirely. Those harms are
individual, private harms that do not affect the relevant class of taxpayers. As the
71
Their suggestion that “[t]he Project was designated as a TOD only after the
State was made aware of potential litigation through discussions with property owners
who were attempting to resolve the dispute prior to instituting litigation,” Amended
Complaint, at ¶ 216, is not sufficient to raise genuine concerns of fraud or corruption.
Furthermore, their suggestion that the designation of the State Center as a TOD is
“arbitrary and capricious,” Amended Complaint, at ¶ 220, lacks any support as well.
113
Plaintiffs stated correctly in their Amended Complaint, these allegations of harm arising
from the increased competition “constitutes an imminent harm to the Commercial
Property Owners and Retail Merchants . . . .” Amended Complaint, at ¶ 22 (emphasis
added).
(2) Nexus
Perhaps the most frequent stumbling block for a taxpayer to bring a suit under the
doctrine is that the challenged act must affect potentially a tax that the taxpayer-plaintiff
pays, i.e., this nexus must be alleged sufficiently. A review of the cases reveals that the
taxpayer must be asserting a challenge and seeking a remedy that, if granted, would
alleviate the tax burden on that individual and others; 72 otherwise, standing does not
exist. The corollary to this requirement is also that taxpayers may challenge only certain
72
That the taxpayers may have an ulterior motivation (beyond the altruistic desire
to ensure that government behaves correctly and spends taxpayers’ money legally and
prudently) for bringing the suit does not matter to the analysis. Packard v. Haynes, 94
Md. 233, 243, 51 A. 32, 36 (1902) (holding that, where the plaintiff, as taxpayer, had a
clear legal right to enforce, “the motives that actuated the bringing of the suit were
immaterial” and, thus, “the allegation of the want of good faith in the plaintiff in bringing
the suit . . . was immaterial”); see also Castle Farms Dairy Stores v. Lexington Mkt.
Auth., 193 Md. 472, 482, 67 A.2d 490, 493 (1949) (“As owners and claimants of rights in
the market, they may also, in the same case, sue to protect their property rights. The
conflict between any rights of plaintiffs in the market and their interests as taxpayers
shows the artificial character of this suit, but does not bar it.”) (internal citation omitted).
In fact, scholars recognize that ulterior, non-altruistic motivations underlie most taxpayer
suits and yet serve as the impetus for checking improper governmental actions. See, e.g.,
Note, Taxpayers' Suits: A Survey and Summary, 69 Yale L.J. 895, 914 (1960)
(recognizing that “the theory of taxpayer litigation is employment of private motivations
for public benefit”). Without the ulterior motivations, the potential gain from a taxpayer
suit, which is often very small when divided among all taxpayers, would serve rarely as
an impetus for a taxpayer suit.
114
statutes. In viewing other areas of law, we have not permitted taxpayers to enforce any
statute unless it affects the taxpayers’ individual tax burden. See, e.g., Baltimore Retail
Liquor Package Stores Ass'n v. Kerngood, 171 Md. 426, 429, 189 A. 209, 209-10 (1937)
(discussed more in-depth infra p. 116 and note 74).
Many cases emphasize that standing cannot exist if the remedy sought would not
decrease the taxpayer’s monetary burden. For example, in Citizens Committee of Anne
Arundel County, Inc. v. County Commissioners of Anne Arundel County, 233 Md. 398,
197 A.2d 108 (1964), the Court held that the taxpayer did not prove or show that he had a
sufficient interest to test the constitutionality or validity of the pertinent statute because
the remedy sought, if granted, would not decrease the taxpayer’s burden. 233 Md. at 405,
197 A.2d at 112. In that case, a group of individual county residents, citizens, taxpayers
and an incorporated citizens committee challenged the constitutionality and validity of
local laws authorizing the operation of gambling devices and activities, and sought
injunctive relief. The Court noted that, because the revenues from the licensing program
exceeded the cost of its administration by more than $500,000, “[i]t would seem obvious
therefore that the plaintiffs suffered no pecuniary loss due to the fact that some of the
administration expenses were paid out of general public funds.” Citizens Comm., 233
Md. at 404, 197 A.2d at 111. Moreover, “the taxpayers would be damaged by a
discontinuance of the program rather than a continuance of it.” 73 Id., 233 Md. at 404, 197
73
Murray v. Comptroller of Treasury, 241 Md. 383, 391-92, 216 A.2d 897,
901-02 (1966), summarized infra p. 119, represents the converse.
115
A.2d at 111-12. Thus, the Court concluded, the plaintiffs failed to prove they had
standing. Id., 233 Md. at 405, 197 A.2d at 112.
It is important to note also that, even where a plaintiff may aver he is bringing the
suit as a taxpayer, a court must examine whether he alleges that his tax burden is hurt by
the allegedly illegal act or statute. For example, in Baltimore Retail Liquor Package
Stores Ass'n v. Kerngood, 171 Md. 426, 429, 189 A. 209, 209-10 (1937), the plaintiffs, as
owners of licensed retail liquor stores and as taxpayers of the City, protested the renewal
of a purchased license for a competing store on the grounds that such renewal violated a
statute. Although the plaintiffs brought the suit as taxpayers of the City, the Court
pointed out that, even though the courts in this State have found the “interest or injury
which support [a taxpayer doctrine] suit is broadly comprehensive,” “[i]n this instance,
there is no levy of taxes or outlay of public money to affect the petitioners as taxpayers.”
Id., 171 Md. at 429, 189 A. at 210. 74 See also Carroll Park Manor Cnty. Ass'n v. Bd. of
74
The Court continued by analyzing whether the plaintiffs had an individual
interest sufficient to confer standing. Baltimore Retail Liquor Package Stores Ass’n v.
Kerngood, 171 Md. 426, 429-30, 189 A. 209, 210 (1937). The Court found they did not.
As holders of liquor licenses they have no franchises or exclusive privileges
to be affected; they have only permits to engage in the business of selling
alcoholic liquors. The interest which impels them to sue is only that of
business advantage in keeping down the number of their competitors. They
are not entitled in law to any advantage in a restricted number; it was not
within the purpose of the statute to restrict competition for the benefit of
any licensee; and in the accomplishment of the purpose which was sought,
whatever it may have been, the petitioners are entirely without special
interest.
Id. (internal citations omitted).
116
Cnty. Comm'rs, 50 Md. App. 319, 324, 437 A.2d 689, 692 (1981) (finding that Frederick
County’s failure to honor a charitable trust was an ultra vires act, but concluding that
appellants were not entitled to bring the suit because they failed to show how the failure
to abide the terms of the trust may result in their sustaining an increased tax burden or a
pecuniary loss); Kerpelman, 261 Md. at 442-43, 276 A.2d at 60 (finding that complainant
failed to allege sufficient injury because “the challenged transactions have-or-will-result
in the placing of additional land on the tax rolls which will increase the tax base of the
State so that the State taxes paid by [complainant] will actually be reduced as a result of
those transactions” and because the complainant failed to explain how the “general
allegations that the conveyances will have a damaging effect upon the marine ecology of
the State” might “result in the payment of higher State taxes by [complainant]”).
The requirement that the remedy sought, if granted, must alleviate the taxpayer’s
burden must be viewed also in light of the general principles that require the doctrine to
extend to all similarly-situated taxpayers. In other words, the remedy sought, if granted,
must alleviate all similarly situated taxpayers’ burden, not just the plaintiffs’ personal
burdens. This Court concluded that taxpayer standing did not exist in those cases where
the plaintiffs sued in equity, allegedly as taxpayers, but failed to explain how the injury
would extend to all taxpayers as a class generally. In such cases, “the ground of
complaint is limited to their own injury.” Cook v. Normac Corp., 176 Md. 394, 395, 4
A.2d 747, 748 (1939). Because “[p]rivate individuals cannot redress the mere public
wrong from disregard of the ordinances [or other statutes],” the only injury that the Court
finds in such cases is that of the individual.
117
In Cook, the individual injury alleged was “only that which may result from
competition . . . . But mere competition is not an evil which business men may enjoin as
a wrong to them. Competition without full compliance with the law has been enjoined at
the suit of private individuals, but only under some conditions . . . .” Cook, 176 Md. at
397, 4 A.2d at 749. Similarly, in Fisher & Carozza Bros. Co. v. Mackall, 138 Md. 586,
114 A. 580 (1921), the Court emphasized the importance that the alleged injury must be
alleged to affect potentially all similarly-situated taxpayers:
This suit, however, was not brought by the plaintiff as a taxpayer of the
state, on its own behalf and on behalf of other taxpayers of the state, nor
does it appear from the averments of the bill that it was such a taxpayer.
The bill does not therefore bring the plaintiff within the class of persons
entitled to maintain a suit to restrain the execution on behalf of the state of
an illegal contract, or to enjoin the unlawful expenditure of the funds of the
state.
138 Md. at 597, 114 A. at 584.
When, however, the complainant alleges that he or she will suffer as a taxpayer
due to increased taxpayer burdens and the government alleges that the taxpayers will not
suffer any increased taxpayer burden, but rather the taxes would be diminished likely,
“the court will not weigh potential gains against potential losses and speculate on a net
result” “in determining a taxpayer’s pecuniary injury resulting from a claimed unlawful
governmental act.” 75 Inlet Assocs., 313 Md. at 442, 545 A.2d at 1311 (citing Citizens
Planning, 273 Md. at 343-44, 329 A.2d at 687). Thus, “the taxpayer need not
75
The Court’s refusal to weigh potential gains against potential losses and to
speculate on a net result is different from the Court’s finding that the complainant failed
to allege any potential loss resulting from the alleged harm. See, e.g., Kerpelman, 261
Md. at 443, 276 A.2d at 60.
118
demonstrate that, necessarily, there will be pecuniary loss or increased taxes, but only the
reasonable existence of that potential.” Id., 313 Md. at 442-43, 545 A.2d at 1311.
When the complainant alleges a reasonable potential for increased taxes or
pecuniary loss, this Court has not hesitated to find (repeatedly) that such minimal
allegations are sufficient. See, e.g., Boitnott v. Mayor of Baltimore, 356 Md. 226, 234,
738 A.2d 881, 885 (1999) (finding that “[t]he allegation by the petitioners that the City
has expended Twenty million dollars in developing Inner Harbor East prior to the present
litigation is sufficient allegation of potential pecuniary damage by way of tax increase to
withstand a standing challenge”); Murray v. Comptroller of Treasury, 241 Md. 383, 391-
92, 216 A.2d 897, 901-02 (1966) (finding that the appellants had taxpayer standing to
challenge the tax exemption because “[t]he property owners who pay real estate taxes to
the state, represented by all the appellants, would pay less taxes to the state if the
exempted property were taxed”). Moreover, we have found that it is not dispositive that
the complainant may be incorrect in his/her/its assertion that the taxes will be increased.
See, e.g., McKaig v. Mayor of Cumberland, 208 Md. 95, 102, 116 A.2d 384, 387-88
(1955). The test is merely whether an increase in taxes is reasonably likely to occur.
In the present case, the State Agencies aver that Appellees’ claims of taxpayer
harm lack any “nexus” to the alleged illegal acts of the public officials. This is not
accurate. While it is true that the total cost exposure to the State is difficult to ascertain,
see Amended Complaint, at ¶ 14 (quoting the Department of Legislative Services
(“DLS”), State Center – Transit-oriented Development Briefing (Feb. 2009)), as stating
that “the total cost exposure to the State may never be known”), such a difficulty is the
119
reason that we do not require taxpayers to demonstrate in pleading the exact pecuniary
loss or increase in taxes.
In this case, Appellees alleged in their Amended Complaint that the Project is
expected to cost $1.5 billion. Amended Complaint, at ¶ 2. “By virtue of the First
Amendment, MDOT assumed that obligation [for the design, financing, construction,
operation and maintenance of an underground garage for the Project] and also agreed to
contribute up to $28 million taxpayer dollars toward the cost of the garage design and
construction.” Amended Complaint, at ¶ 10. On 15 December 2010, “the BPW
approved the issuance of $33 million in MEDCO Bonds supported by taxpayer revenues
to build a Phase I parking garage at State Center . . . .” Amended Complaint, at ¶ 17.
More specifically, Appellees allege that they will suffer a property tax increase due to
this Project:
Although the cost of the redevelopment has been represented to be financed
with private funds, it will actually be financed in substantial part at the
expense of existing Commercial Property Owners, Retail Merchants and
others, through, among other ways, the issuance of City property tax
increment financed bonds and other State and City assisted tax incentives.
For example, the Project calls for the establishment of a Tax Incentive
Financing (“TIF”) program of up to $314,254,055.00, allowing the
Project’s self-described “partner,” Baltimore City, irrevocably to redirect
future, increased property tax payments away from important City services
and needs and into the debt service for the Developer’s construction
financing. Plaintiffs will sustain an adverse impact from these
expenditures, and those of the State, of taxpayer funds.
Amended Complaint, at ¶ 19 (emphasis added) (footnote omitted). Additionally,
Appellees assert that, because,
“[t]he projected property assessments for State Center appear unrealistically
high and do not appear to provide a sufficient base for paying the annual
120
debt service on the TIF without providing any additional property tax
revenue in Baltimore City for the first 25 years,’ . . . ‘there is the potential
that the developer could pass on higher costs to the State in the form of
additional rent payments in order to cover annual debt service on the TIF.”
Amended Complaint, at ¶ 20 (quoting DLS, State Center Transit Oriented Development
Briefing (May 2009) (hereinafter “DLS May 2009 Briefing”)). 76 Appellees conclude the
76
Appellees aver in their Amended Complaint that the Project may not be viable
in the long-run or may not be the best course of action for the State. See, e.g., Amended
Complaint, at ¶ 24 (“The Project . . . undermines past public policy decision to revitalize
the CBD, including downtown Baltimore and the Inner Harbor.”); ¶ 25 (“Injecting over
1.5 million square feet of new State and city subsidized commercial office space in the
Baltimore metropolitan area will add an enormous, commercially unsupportable supply
of office space in an already oversaturated and under-leased marketplace . . . It will
directly and proximately cause myriad problems in the core downtown area, including
long-term commercial vacancies, blight and business flight away from the center core of
the City, all at a substantial loss of City property tax revenues. The CBD cannot remain
viable under these circumstances.”); ¶ 26 (“Existing adverse commercial and market
forces will be further exacerbated by the Project.”); ¶ 27 (“The large increase in the
supply of retail space through the Project will lead directly to higher vacancy rates in the
CBD, directly cause further harm to the Commercial Property Owners and lower levels of
property tax collection for the City of Baltimore.”); ¶ 28 (“The Project threatens to
increase vacancy rates by injecting government incentives into a massive State-sponsored
development project that would otherwise be dependent on free market factors. . . .
Increased supply of commercial office and retail space will, in turn, depress rental rates,
which will adversely impact Plaintiffs’ properties and business”); ¶ 30 (“Redirecting the
concentration of commercial office space to areas outside the CBD will lead to pockets of
blight and will threaten the economic viability of the existing commercial and retail
properties, including those in the CBD. Often referred to as ‘leap frog’ development
strategies, the decentralization of commercial development has repeatedly led to the
devaluation of the investments made by private sector entrepreneurs, urban blight, the
flight of retail establishments, and other negative impacts.”). Appellees cite the DLS as
reaching similar findings. See, e.g., Amended Complaint, at ¶ 29 (“According to DLS,
‘[t]he current economic climate raises concerns about the viability of the project given
high inventory levels of vacant office space and housing in Baltimore City . . .’”)
(brackets in original) (quoting DLS May 2009 Briefing); ¶ 31 (“DLS concludes that ‘the
current State Center proposal is not in the best interest of the State.’”) (quoting DLS May
2009 Briefing); ¶ 33 (noting that the DLS stated that the benefits may never materialize)
(citing DLS February 2009 Briefing).
(Continued…)
121
introduction of their Amended Complaint by stating “[f]or these reasons and others, the
Project will have a devastating financial impact on the CBD [Central Business District],
its Commercial Property Owners and Retail Merchants, who are taxpayers and/or
landowners in Baltimore City” and “Plaintiffs will uniquely bear the excessive costs, . . .
as well as increased taxes, among other reasons, from the State’s failure to use open
competition for procurement of design and construction services, thus, not ensuring the
best deal for the State.” 77 Amended Complaint, at ¶ 33. Such allegations are sufficient to
overcome the Motions to Dismiss as to this element of taxpayer standing.
(…continued)
Such arguments are not within the purview of this Court. Taxpayer standing
doctrine is not a method by which litigants may ask this Court to review the feasibility or
wisdom of legislative decisions made properly within the Legislature’s authority—under
the guise of a loss of tax revenues due to the alleged lack of wisdom in the decision. The
taxpayer standing doctrine does not grant standing to every taxpayer who may allege a
general harm. Thus, the Plaintiffs’ allegations of the general harm suffered by taxpayers
of the State are irrelevant as well. See, e.g., Amended Complaint, at ¶ 33 (“[T]he Project
will have a devastating financial impact on the CBD, its Commercial Property Owners
and Retail Merchants, who are taxpayers and/or landowners in Baltimore City. The
Commercial Property Owners and Retail Merchants employ, directly or indirectly,
thousands of people and have invested heavily in their properties, their business, and the
City. The Project allows the Developer to receive City and State subsidized benefits and
opportunities unavailable to the Commercial Property Owners and Retail Merchants, all
without compliance with State procurement laws.”) (emphasis added).
In this case, Appellees wasted a great deal of everyone’s time attempting to
establish the infeasibility and the imprudence of the Project, as well as general harms
unrelated to expenditures from the public coffers.
77
Appellees alleged, in full, that “Plaintiffs will uniquely bear the excessive costs,
lose business opportunities, loss of customers, suffer a diminution in the value of
their assets and other catastrophic financial loss, as well as increased taxes . . .”
Amended Complaint, at ¶ 33 (emphasis added). These additional factors (and other
similar allegations) do not provide a basis for taxpayer standing and, as stated previously,
are disregarded in our analysis.
122
(3) Amount of Pecuniary Harm.
In this case, the State Agencies aver that, even if Appellees alleged a proper type
of “harm,” the amount of pecuniary loss asserted was too speculative to confer taxpayer
standing. The State Agencies suggest that, because the State is the actor in this case, the
amount of increase in Appellees’ taxes is too attenuated or diluted to confer taxpayer
standing. This argument continues that the taxpayers have more of a direct interest in
challenging a municipal action (like one taken by the City only) than the State’s action
because, when the damage is spread across all of the City’s taxpayers, the individual
taxpayer will feel more of an impact than when spreading an alleged injury across all of
the State’s taxpayers.
It is well-settled that the individual’s monetary burden does not need to be
calculable at the time of filing suit. Equally well-settled, however, is the requirement that
there must be a “clear showing” that a monetary burden is alleged. This Court has noted
repeatedly that the taxpayers are not required to prove an exact amount of pecuniary
damage that he or she or they will suffer. In fact, we have gone so far as to state that the
amount of individual loss is largely irrelevant. See, e.g., Citizens Planning, 273 Md. at
344, 329 A.2d at 687 (“The property loss may be small when apportioned among all of
them, especially where . . . the suit is instituted by one or more taxpayers in
representation of all those similarly situated.”). As we said in Citizens Planning,
The courts below attached considerable significance to what they regard as
conclusory language in the bill of complaint. Concededly, the allegations
might have been particularized in greater detail, but this shortcoming may
have been unavoidable in the unique circumstances of this case. The extent
to which a taxpayer is capable of detailing the damage anticipated
123
from an illegal and ultra vires act, such as is alleged here, may be
rather limited at the time the suit is initially filed. Contrary to the
suggestion of the Court of Special Appeals, appellants are not required to
allege ‘. . . facts which necessarily lead to the conclusion that taxes will
be increased.’ [Citizens Planning & Housing Ass’n v. Cnty. Exec. of
Baltimore Cnty.,] 20 Md. App. [430,] 434, 316 A.2d [263,] 266 [(1974)]
(emphasis added). The test is whether appellants reasonably may
sustain a pecuniary loss or a tax increase; see Reed v. McKeldin[, 207
Md. 553, 558, 115 A.2d 281, 284 (1955)]; Masson v Reindollar[, 193 Md.
683, 687-88, 69 A.2d 482, 484 (1949)]; Liquor Stores Assn. v. Commrs[,
171 Md. 426, 429, 189 A. 209, 210 (1937)]. . . .; or, as the Court of Special
Appeals itself noted, whether there has been a showing of potential
pecuniary damage. Gordon v. City of Baltimore, [ ] 258 Md. [682,] 687-
688, 267 A.2d 98[, 101-02 (1970)]; see Thomas v. Howard County, [ ] 261
Md. [422,] 432, 276 A.2d 49[, 54 (1971)].
273 Md. at 344, 329 A.2d at 687 (emphasis added). Moreover, in reviewing a circuit
court’s action on a motion to dismiss, the appellate courts “accept as true the reasonable
inferences which may be drawn from the facts alleged . . . .” Citizens Planning, 273 Md.
at 345, 329 A.2d at 687. Accordingly, it is not “essential that the amount of the loss of
revenue be specifically set forth.” Id., 273 Md. at 344, 329 A.2d at 687. The important
requirement is that the plaintiff allege that, as a taxpayer, he or she “would be pecuniarily
affected.” See Funk, 197 Md. at 196, 78 A.2d at 635 (distinguishing that case from
Phillips v. Ober, 197 Md. 167, 78 A.2d 630 (1951)). As discussed above, Appellees
pleaded sufficiently a loss of revenue from the public funds contributed by them as
taxpayers.
124
We also reject the State Agencies’ contention that the alleged loss is too miniscule
relative to the State action challenged. The relevant line of decisions in this State do not
appear to us to support this assertion. 78 For example, in Sun Cab Co., the Court stated,
Probably the loss to one taxpayer in any such proceeding seldom amounts
to $20, the minimum of the debt or damage which a court of equity may
consider. Code, art. 16, § 109; Kenneweg v. Allegany County Com'rs, 102
Md. 119, [121], 62 A. 249, 250 [(1905)]. But, when a suit is instituted by
one or more taxpayers in representation of all, the case is quite
different. The amount involved and sought to be protected is then the
total amount of loss to taxpayers, or the total amount which may be
wrongfully expended. In Kenneweg v. Allegany County, supra, cited
against the maintenance of the present suit, a single taxpayer was the
complainant, and, as the court observed, he “does not sue in behalf of
78
Dicta in some cases refers to the small amount of damages that each taxpayer
suffers. For example, in 1880, this Court stated, “[t]he public has no interest in this
controversy. The difference between the proposals of the competing contractors is
infinitesimally small, when divided amongst the tax-payers.” Kelly, 53 Md. at 142-43.
As discussed supra, however, that case is distinguishable as a private claim and, thus, this
language should be read as dicta.
Additionally, Kerpelman found that a taxpayer of the State and of Baltimore City
did not have sufficient interest in the subject matter, a piece of property in Worcester
County, because “Mrs. Kerpelman alleges no interest in that property as a local
taxpayer.” Kerpelman, 261 Md. at 442, 276 A.2d at 59-60. That case is distinguishable
also. The Court found there that, when considering the tax implications of the challenged
conveyance of the property,
it appears that the challenged transactions have-or will-result in the placing
of additional land on the tax rolls which will increase the tax base of the
State so that the State taxes paid by Mrs. Kerpelman will actually be
reduced as a result of those transactions. There are general allegations that
the conveyances will have a damaging effect upon the marine ecology of
the State, but there are no allegations of facts which would support these
general allegations and, in any event, there are no allegations which
indicate how this will result in the payment of higher State taxes by Mrs.
Kerpelman.
Id., 261 Md. at 443, 276 A.2d at 60.
125
himself and other taxpayers who may be similarly situated, * * * but he
sues alone, in his own name and his own behalf.” His loss alone was too
small to come within the statutory limitation, the court held. But a bill filed
in the name of one or more of the taxable inhabitants for themselves and all
others similarly situated the court should regard as “in the nature of a public
proceeding to test the validity of the corporate acts sought to be impeached
and deal with and control it accordingly.” 4 Dillon, Municipal Corporations
(5th Ed.) § 1587; Kelly, Piet & Co. v. Mayor, etc., of Baltimore, 53 Md.
134, 141 [(1880)].
Sun Cab Co., 162 Md. at 427, 159 A. at 925 (emphasis added). See also Christmas v.
Warfield, 105 Md. 530, 540-41, 66 A. 491, 492 (1907) (concluding that taxpayer standing
doctrine conferred standing upon the complainant, a taxpayer and resident of the State,
alleging a State’s action as illegal). 79
In sum, we conclude that Appellees pleaded taxpayer standing doctrine
sufficiently and, thus, the Circuit Court denied properly the State Agencies’ Motions to
Dismiss on standing grounds.
B. THE FATAL FLAW—THE DOCTRINE OF LACHES.
After climbing the foothills to this point and with the mountain almost in sight,
Appellees’ surviving claims on the merits shall stumble and fall to a figurative death in
the crevasse that is the equitable doctrine of laches. The State Agencies moved to
dismiss Appellees’ Amended Complaint in the Circuit Court, arguing, inter alia, that the
claims were barred by the doctrine of laches due to an unreasonable delay in bringing
79
Notably, multiple secondary sources classify Maryland as one of the majority of
states which grant taxpayers the right to sue as litigants for state grievances. See, e.g.,
Comment, Taxpayers’ Actions: Public Invocation of the Judiciary, 13 Wake Forest L.
Rev. 397, 402, 402 n.29 (1977) (citing Christmas v. Warfield, 105 Md. 530, 66 A. 491
(1907), as authority for the proposition that Maryland falls into the category of “[a]lmost
every state grants taxpayers the right to sue as litigants for state grievances”).
126
their claims, causing prejudice to the defendants. In dismissing the State Agencies’
Motion on this ground, the Circuit Court stated:
The doctrine of laches applies when there has been an “unreasonable delay
in the assertion of one’s rights” and when “that delay results in prejudice to
the opposing party.” Liddy v. Lamone, 398 Md. 233, 244 (2007).
Defendants argue that Plaintiffs adopted a “wait and see attitude” and
should have brought their claims following the issuance of the Request for
Qualifications in 2005. Conversely, Plaintiffs assert that the Master
Development Agreement, executed and approved in June 2009, was the
first binding agreement related to the State Center Project and that the
operative documents giving rise to this suit were the September 1, 2010
First Amendment to the Master Development Agreement and the Phase I
Occupancy Leases, approved July 28, 2010 and amended on December 15,
2010.
When considering a motion to dismiss, the court must assume the truth of
Plaintiffs’ well-pleaded factual allegations in the complaint. McDaniel v.
Am. Honda Fin. Corp., 400 Md. 75, 83 (2007). As Plaintiffs’ initial
complaint was filed on December 17, 2010, this Court finds that Plaintiffs’
claims are not barred by laches.
In Appellees’ Motion to Dismiss this appeal, they argued that this Court should not
entertain this argument because the State Agencies failed to present properly this
argument in the State Agencies’ Petition for Writ of Certiorari. Thus, we consider first
the propriety of addressing this issue. Because we find such a review proper in this case,
we will move then to analyzing the merits of the laches argument.
1. Propriety of Addressing Laches.
Although this issue was not presented in the Petition for Writ of Certiorari, we
find that addressing it is properly within our discretion. Generally, the affirmative
defense of laches in Maryland “can be invoked by a court on its own initiative,” even if it
was not pleaded. Liddy v. Lamone, 398 Md. 233, 242-43, 919 A.2d 1276, 1282-83
127
(2007) (and see cases cited therein). While other jurisdictions require the defendant to
assert the defense of laches so that the parties have a full opportunity to set forth the facts
in support of their argument regarding whether the delay in bringing the suit was
reasonable, see Liddy, 398 Md. at 243 n.13, 919 A.2d at 1283 n.13 (discussing cases in
other states which require the defense to be pleaded), this Court has adopted a more
generous approach to the doctrine that permits a court to apply it when equity demands.
In this case, both sets of parties had a full opportunity to present evidence on the issue, as
well as to argue their position to the Circuit Court and this Court. Accordingly, we find
that it is proper for us to consider whether equity declines relief here.
2. Standard of Review.
In reviewing whether the doctrine of laches bars Appellees’ claims, we review the
Circuit Court’s determination without deference. See Liddy, 398 Md. at 248-49, 919
A.2d at 1287 (“[W]here the issue is whether a party is precluded by laches from
challenging an action of another party, we shall review the trial court’s ultimate
determination of the issue de novo . . . .”). Although assuming the truth of the well-
pleaded facts (such as the pertinent dates alleged in the Amended Complaint) for
purposes of laches analysis, we review the Circuit Court’s legal determination of whether
any delay was reasonable and whether the State Agencies and/or Developers were
prejudiced, without deference to Appellees’ conclusory characterization of the delay as
reasonable. Thus, we examine well-pleaded facts in the Amended Complaint to
determine whether the delay was unreasonable and the State Agencies and Developers
were prejudiced, so as to preclude this action.
128
3. The Fatal Flaw.
“Laches ‘is a defense in equity against stale claims, and is based upon grounds of
sound public policy by discouraging fusty demands for the peace of society.’” Ross v.
State Bd. of Elections, 387 Md. 649, 668, 876 A.2d 692, 703 (2005) (quoting Parker v.
Bd. of Election Supervisors, 230 Md. 126, 130, 186 A.2d 195, 197 (1962)). “[T]he word
[‘laches’], itself, derives from the old French word for laxness or negligence.” Buxton v.
Buxton, 363 Md. 634, 645, 770 A.2d 152, 158 (2001). In Liddy v. Lamone, 398 Md. 233,
919 A.2d 1276 (2007), this Court summarized recently the “well settled” law in this State
on the doctrine of laches:
It is . . . well settled that laches “applies when there is an unreasonable
delay in the assertion of one's rights and that delay results in prejudice to
the opposing party.” Frederick Road Ltd. Partnership v. Brown & Sturm,
360 Md. 76, 117, 756 A.2d 963, 985 (2000), citing Inlet Assoc. v.
Assateague House Condominium Ass'n, 313 Md. 413, 438–39, 545 A.2d
1296, 1309 (1988); See Ross, 387 Md. at 669, 876 A.2d at 704 (“[L]aches
must include an unjustifiable delay and some amount of prejudice to the
defendant”); Schaeffer v. Anne Arundel County, 338 Md. 75, 83, 656 A.2d
751, 755 (1995) (“[L]aches is an inexcusable delay, without necessary
reference to duration in asserting an equitable claim”) (emphasis in
original); Simpers v. Clark, 239 Md. 395, 403, 211 A.2d 753, 757 (1965)
(“[F]or the doctrine [of laches] to be applicable, there must be a showing
that the delay [in the assertion of a right] worked a disadvantage to
another”); Hungerford v. Hungerford, 223 Md. 316, 320–21, 164 A.2d 518,
521 (1960) (“Only two requisites are necessary in order to invoke the
doctrine of laches. There must have been some lapse of time during which
plaintiff failed to assert his rights, and the lapse must have caused some
prejudice to the defendant”). Prejudice is “generally held to be any thing
that places [the defendant] in a less favorable position.” Ross, 387 Md. at
670, 876 A.2d at 704, quoting Buxton, 363 Md. at 646, 770 A.2d at 159;
Parker, 230 Md. at 130, 186 A.2d at 197; Roberto v. Catino, 140 Md. 38,
43, 116 A. 873, 875 (1922).
129
Liddy, 398 Md. at 244-45, 919 A.2d at 1283-84. Thus, generally, we must analyze
whether, (1) in the context of an equitable claim, (2) there was an unreasonable delay in
the filing and, if so, (3) whether there was any prejudice. Because Appellees’ broadest
standing rested upon the doctrine of taxpayer standing, their claims—both those seeking
declaratory judgment and injunctive relief—sound in equity and, thus, are subject to this
doctrine, we are concerned primarily with the latter two elements. Before we may reach
those elements, however, we analyze briefly whether laches applies in taxpayer suits
generally despite some foreign authority to the contrary.
a. Whether laches applies to taxpayer suits?
While neither party raised the contention that laches may not be applicable in
taxpayer suits, we find it necessary to examine this issue prior to our further analysis of
laches here. Some authority in other jurisdictions does not permit the doctrine of laches
to bar a taxpayer’s right to invoke the powers of a court of equity to prevent the unlawful
dissipation of public funds. For example, the Supreme Court of North Dakota reached
such a conclusion in a Nineteenth Century case, explaining,
In our judgment, no laches on the part of taxpayers or others can operate to
confer authority upon the officials of a corporation in a case where such
officials are wholly without power to act. . . . [L]aches does not ordinarily
prevent the intervention of a taxpayer to enjoin a disbursement of public
funds about to be made without the authority of law or in defiance of law.
Nor (if this action should be dismissed without a decision upon the merits,
and on account of the laches of this plaintiff) are we able to see any reason
why another action for the same relief might not be instituted by some
taxpayer and resident who has not been guilty of laches in the premises. If
this be true, it would certainly not be in furtherance of justice to dismiss the
present action without determining the merits.
130
Storey v. Murphy, 81 N.W. 23, 27 (N.D. 1899) (internal citations omitted); see also Dahl
v. City of Grafton, 286 N.W.2d 774, 777 (N.D. 1979) (restating the court’s refusal to
apply the doctrine of laches in class-action suits, such as taxpayer suits, and citing part of
the language quoted above as the rationale).
Moreover, this Court has stated that limitations is unavailable as a defense against
the state, or its agency or subdivision, asserting public rights on behalf of all the people of
the State. In Goldberg v. Howard Cnty. Welfare Bd., 260 Md. 351, 272 A.2d 397 (1971),
the Court quoted favorably the following quotation from 51 Am. Jur. 2d, Limitation of
Actions, s. 412,
“s 412. Distinction between private or proprietary rights and public or
governmental rights.
‘A distinction has been made in many jurisdictions, with respect to the
application of the statute of limitations in actions by political subdivisions,
between actions based upon ‘private’ or ‘proprietary’ rights and those based
upon ‘public’ or ‘governmental’ rights. Where this distinction is
recognized, the inquiry is whether the state, or its agency or subdivision, is
asserting public rights on behalf of all the people of the state or merely
private rights on behalf of a limited group.
‘The statute of limitations will bar the governmental unit where it is
asserting a private or proprietary right, but will not apply where the right
being asserted is public or governmental in nature. In other words, the
governmental plaintiff, in seeking to enforce a contract right or some right
belonging to it in a proprietary sense, may be defeated by the statute of
limitations, but as to rights belonging to the public and pertaining purely to
governmental affairs, and in respect of which the political subdivision
represents the public at large or the state, the exemption in favor of
sovereignty applies, and the statute of limitations does not operate as a bar.”
260 Md. at 358-59, 272 A.2d at 401. Because a taxpayer suit is analogized to such a
governmental suit based upon public rights, it could be argued that laches, a defense
131
similar to a statute of limitations defense, should not be allowed as a defense in taxpayer
suits.
In Gloyd v. Talbott, 221 Md. 179, 156 A.2d 665 (1959), a taxpayer brought suit in
equity, on behalf of himself and all other taxpayers, seeking a declaratory decree that
certain payments of money from municipal funds to certain individuals were illegal and
ultra vires. Appellants in that case answered contending that the payments were legal
and asserting limitations and laches. Regarding the laches argument, this Court stated,
On the point of laches, it has been said that an equity court will temper the
relief according to the circumstances of the particular case. Cf. Konig v.
Mayor & City Council of City of Baltimore, [128 Md. 465, 97 A. 837
(1916)]. It has also been said that laches should not be applied against a
public body, or in a derivative suit with the same rigor as against an
individual. See Thornton v. Willage of Ridgewood, 17 N.J. 499, 111 A.2d
899. The reasoning seems to be that laches is a special application of the
doctrine of estoppel, which does not generally apply against a public body.
See note 1 A.L.R. 2d 338, 351. We see no reason for applying it in the
instant case, at least as to payments made subsequent to April 1, 1954.
Gloyd, 221 Md. at 186, 156 A.2d at 668-69.
Even considering the foregoing, we conclude that it is inappropriate to adopt a
bright line or per se rule that laches may not be asserted as a defense in a taxpayer suit.
Rather, the application of the doctrine of laches should be determined by what equity
demands in a given case. For example, where a taxpayer seeks an injunction prior to a
state agency entering a contract, courts might be more inclined to finding that laches
should not apply. In this case, however, due to the five-year period between the
beginning of the official process for the development of the State Center Project and
Appellees filing of their lawsuit (and due to the extensive, public communications
132
regarding both the visions and the process for the Project throughout the five-year
period), it would be unequitable to foreclose consideration of the doctrine of laches in
this case.
b. Delay in Filing.
In order for laches to bar a claim, “‘there [must be] an unreasonable delay in the
assertion of one’s rights . . . ’” Liddy, 398 Md. at 244, 919 A.2d at 1283 (quoting
Frederick Rd., 360 Md. at 117, 756 A.2d at 985). “There is no inflexible rule as to what
constitutes, or what does not constitute, laches; hence its existence must be determined by
the facts and circumstances of each case.” Parker, 230 Md. at 130, 186 A.2d at 197
(citing Brashears v. Collison, 207 Md. 339, 352, 115 A.2d 289, 295 (1955)). “The
passage of time, alone, does not constitute laches but is simply ‘one of the many
circumstances from which a determination of what constitutes an unreasonable and
unjustifiable delay may be made.’” Buxton, 363 Md. at 645, 770 A.2d at 158 (quoting
Parker, 230 Md. at 130, 186 A.2d at 197).
In determining whether a delay is unreasonable, we must analyze (i) when, if ever,
the claim became ripe (i.e., the earliest time at which Appellees were able to bring their
claims); and (ii) whether the passage of time between then and when the Appellees filed
the complaint was unreasonable.
133
i. The starter’s gun sounds.
We begin by considering when Appellees’ claims became ripe in this case. In
order for a circuit court to entertain an action, a justiciable controversy must exist. 80 See
80
As the Court explained in more detail in Superblock II,
The Maryland Uniform Declaratory Judgments Act, Maryland Code (2006
Repl.Vol.) § 3–401 et seq. of the Courts & Judicial Proceedings Article
(“C.J.”), provides that “a court of record within its jurisdiction may declare
rights, status, and other legal relations whether or not further relief is or
could be claimed.” C.J. § 3–403(a). Generally, a motion to dismiss “‘is
rarely appropriate in a declaratory judgment action.’” Broadwater v. State,
303 Md. 461, 466, 494 A.2d 934, 936 (1985) (quoting Shapiro v. Bd. of
County Com'rs, 219 Md. 298, 302–03, 149 A.2d 396, 398–99 (1959)).
Where a bill of complaint shows a subject matter that is
within the contemplation of the relief afforded by the
declaratory decree statute, and it states sufficient facts to
show the existence of the subject matter and the dispute with
reference thereto, upon which the court may exercise its
declaratory power, it is immaterial that the ultimate ruling
may be unfavorable to the plaintiff. The test of the sufficiency
of the bill is not whether it shows that the plaintiff is entitled
to the declaration of rights or interest in accordance with his
theory, but whether he is entitled to a declaration at all; so,
even though the plaintiff may be on the losing side of the
dispute, if he states the existence of a controversy which
should be settled, he states a cause of suit for a declaratory
decree.
Id., 494 A.2d at 936 (quoting Shapiro, 219 Md. at 302–03, 149 A.2d at
398–99).
When a complaint fails to allege a justiciable controversy, however, a
motion to dismiss is proper. See C.J. § 3–409(a)(1) (authorizing declaratory
judgments only when the complaint establishes that “[a]n actual
controversy exists between contending parties”) . . . .
Superblock II, 413 Md. at 355-56, 992 A.2d at 487-88.
134
Boyds Civic Ass’n v. Montgomery Cnty. Council, 309 Md. 683, 689, 526 A.2d 598, 601
(1987) (“‘[T]he existence of a justiciable controversy is an absolute prerequisite to the
maintenance of a declaratory judgment action.’ . . . It follows, therefore, that in the
absence of a justiciable controversy a court should not entertain an action for declaratory
judgment.”) (quoting Hatt v. Anderson, 297 Md. 42, 45, 464 A.2d 1076, 1078 (1983))
(citations omitted). “This Court has defined a justiciable controversy as one wherein
‘there are interested parties asserting adverse claims upon a state of facts which must
have accrued wherein a legal decision is sought or demanded.’” Id., 309 Md. at 690,
526 A.2d at 601 (emphasis added in Boyds) (quoting Patuxent Co. v. Comm’rs, 212 Md.
543, 548, 129 A.2d 847, 849 (1957)). The rationale is that “addressing non-justiciable
issues ‘would place courts in the position of rendering purely advisory opinions, a long
forbidden practice in this State.’” Id., 309 Md. at 690, 526 A.2d at 602 (quoting Hatt,
297 Md. at 46, 464 A.2d at 1078).
Justiciability has been described as a “concept embodying ‘numerous hurdles.’”
Boyds, 309 Md. at 690, 526 A.2d at 602 (quoting E. Borchard, Declaratory Judgments
770 (2d ed. 1941)). One of these “hurdles” is that of ripeness. Id. “Generally, an action
for declaratory relief lacks ripeness if it involves a request that the court ‘declare the
rights of parties upon a state of facts which has not yet arisen, [or] upon a matter which is
future, contingent and uncertain.’” Id. (alteration in original) (quoting Brown v. Trustees
of M.E. Church, 181 Md. 80, 87, 28 A.2d 582, 586 (1942)) (some internal quotation
marks omitted). The purpose of ripeness is “to ensure that adjudication will dispose of an
actual controversy in a conclusive and binding manner.” Id., 309 Md. at 691, 526 A.2d at
135
602. Where an issue is not ripe, the issue is not justiciable and, thus, a court will not
entertain the claim. For purposes of the present case, the relevance of this prerequisite to
justiciability is that there could be no “delay” until a claim was ripe such that a court
could entertain it.
One of the first steps in the ripeness analysis is to analyze what interests Appellees
claim have been injured. It is important to remember the limited basis upon which
Appellees stand. Namely, Appellees bring their claims on the grounds of taxpayer
standing; the implications of this is that the only claims that might be before this Court on
the merits properly (and, thus, that could be barred by the doctrine of laches) are those
claims brought under the taxpayer standing doctrine and on appeal in this case. 81 Thus,
81
Thus, even if the TOD designation was before us on appeal generally, it would
not be under review here for purposes of the doctrine of laches. Similarly, those claims
of harm which were rejected in our earlier justiciability analysis, such as Appellees’
allegations of harm to their properties, as property owners, and of general harm to the
CBD and of harm in the form of competition to their business, are not under
consideration here.
Moreover, Counts VII (seeking declaratory judgment that “the selection of the
architect, engineer and/or contractor for the parking garage was required to have been
procured by the State Center Agencies through mandatory methods of source selection
under the General Procurement Law . . . and that the State Center Agencies’ actions
failed to comply with [the Procurement Law], and as such, the parking garage selections
are void and invalid”) and VIII (seeking injunctive relief for alleged violations of the
Procurement Law), on which the Circuit Court granted summary judgment in favor of the
State Agencies, are not before us. Therefore, the State Center actions in 2010 involving
the financing and development of the parking garage do not factor into our laches
analysis.
136
we confront only those claims alleging ultra vires or illegal governmental actions that
may cause a pecuniary loss to taxpayers. 82
82
The asserted claims of ultra vires or illegal governmental conduct that might
cause pecuniary loss to the taxpayers are reiterated as follows: (a) the selection of the
original Master Developer, State Center, LLC, in 2005, for the exclusive right to
negotiate to developer the Project by a RFQ, rather than through the RFP competitive-
bidding process, see Amended Complaint, at ¶ 6, 13; (b) the “allow[ance] [of] substantial
change in ownership structure,” despite the RFQ’s emphasis on the experience and
capabilities of all key members of the Project, see Amended Complaint, at ¶ 7, 61-66, 79-
80; (c) the BPW’s approval of and the State Center Agencies and the Developer’s
execution of the MDA, without using an RFP’s competitive bidding process, see
Amended Complaint, at ¶ 11, (d) the MDA’s commitment to long-term leasing
arrangements for State agency occupancy of the Developer’s buildings without the
issuance of an RFP, as required by the State’s procurement laws, specifically SFP ¶ 13-
105, see Amended Complaint, at ¶ 56, 59, 89, 91-93, 103-04, 106; (e) the State’s
contracting for building construction services without following State Procurement Law,
specifically SFP § 13-103, see, e.g., Amended Complaint, at ¶ 90-91; (f) the DGS’s
control of the development process and the buildings once developed, as set provided in
the MDA, see Amended Complaint, at ¶ 98-102; (g) the BPW’s approval of and the State
Center Agencies and the Developer’s execution of the First Amendment, which
“extensively amended, modified and altered the terms and conditions of the MDA in a
manner that violated the State’s procurement laws and rules,” see Amended Complaint, at
¶ 8, 10, 11, 109; (h) the First Amendment’s relieving the Developers “of the
commercially and financially risky development of a parking garage” and committing
$28.3 million to build the parking garage, see Amended Complaint, at ¶ 68, 109, 111-13;
(i) “unlawfully modifying the terms and conditions of the initial MDA, including
modifications to the construction and financing plan, all without issuance of an RFP,” see
Amended Complaint, at ¶ 7; (j) the First Amendment’s change of the terms of the First
Phase Ground Lease from 50 years, with the right to renew twice for 20 year terms (as set
forth initially in the MDA) to a 75-year initial term with 15-year renewal, without any
procurement for this “material, favorable change to the Developer,” see Amended
Complaint, at ¶ 118; (k) the First Amendment’s approval of a “material change in the
Developer’s Structure, as described above, without any procurement and contrary to the
“RFQ,” see Amended Complaint, at ¶ 119; (l) the BPW’s approval of leases in July 2010,
“under which four State agencies will procure office space from the Developer as tenants
at the Project, without competitive bidding or adherence to State procurement laws and
procedures,” see Amended Complaint, at ¶ 16, 32, 110; (m) the BPW’s approval of
amendments on 15 December 2010 to those four leases originally approved in July 2010,
(Continued…)
137
The State Agencies argue that Appellees’ claims are based almost wholly on
“aspects of the project [which] were apparent on the face of the 2005 public RFQ” and,
as such, for purposes of laches analysis, the claims should be viewed as accruing when
the RFQ was issued publicly and, thus, the delay in filing suit was more than five years.
Appellees counter that this starting point mischaracterizes their claims and the nature of
the events that occurred subsequent to publication of the RFQ. They rely on Superblock
II, 413 Md. at 354, 992 A.2d at 486, and Inlet Associates, 313 Md. at 439, 545 A.2d at
1309, for the proposition that there was no delay in filing their lawsuit because the action
was not ripe until “the execution of the definitive and binding Project development
documents.” They aver that “[t]he Project was merely conceptual prior to the execution
of the MDA in June 2009” because, as the Letter of Intent (“LOI”) stated, “[t]he parties
do not intend to be legally bound [to the Project] unless and until a Master Development
Agreement (‘MDA’) is entered into and approved by the BPW.”
We reject ultimately the parties’ arguments. We begin by addressing Appellees’
assertion that their claims were not ripe until the execution of the binding MDA. The
ripeness analysis depends upon the type of lawsuit, which, in this case, is a taxpayer suit.
A traditional remedy sought in a taxpayer suit is an injunction to preclude the government
(…continued)
see Amended Complaint, at ¶ 16; (n) the Developer’s assignment of development rights
to its affiliates violates the Procurement Laws.
Notably, this second “stage” of the “switch-out” of the Developers, referred to in
(n), is not included in the Amended Complaint, but is raised in Appellees’ briefs.
Regardless of its lack of inclusion in the Amended Complaint, we find that such actions
were envisioned in the MDA and, thus, are felled by the same sword as many of the other
claims, as discussed infra.
138
from acting in an illegal or ultra vires manner. As such, the taxpayer suit is unique and,
although there must be substantial certainty that the government will act in an illegal or
ultra vires manner, taxpayers are not required to wait until the government has acted in
an illegal or ultra vires manner prior to filing suit. Such a holding would be inconsistent
entirely with the nature of the taxpayer suit modality. The question remains, though,
when does the government’s imminent action become substantially certain so that the
claim reaches ripeness?
In answering this question in the context of the present case, we find Boyds most
applicable and very instructive. In Boyds, Montgomery County amended a master plan to
provide that certain described land might be suitable for imposition of a mineral resource
recovery zone, as prerequisite to adoption of that zoning for a specific area. The
complainants sought in their action for declaratory judgment a declaration that the master
plan amendment was illegal and unconstitutional, and of no force or effect, because “[it]
was approved and adopted in contravention of state and county laws requiring notice and
public hearings at certain stages of the amendment process.” Boyds, 309 Md. at 687-88,
526 A.2d at 600. “The circuit court in that case dismissed the claim as not presenting a
justiciable controversy” and the Court of Special Appeals affirmed. Id.
The Court of Special Appeals and the respondents perceived the case to be
governed by Anne Arundel County v. Ebersberger, 62 Md. App. 360, 489 A.2d 96
(1985). As we summarized in Boyds,
In Ebersberger, a group of homeowners . . . challenged as unconstitutional
and ultra vires a county ordinance which authorized their community
association . . . to raise money for swimming pool renovation and
139
maintenance. The Court of Special Appeals held that the action lacked
ripeness. In so doing, it emphasized the fact that the ordinance merely
authorized, but did not require, the renovations and the fact that there was
no certainty the work would ever be done:
“[T]he . . . ordinance does not require the district to renovate the
pool; it merely authorizes such work. Nor does it specify any
particular means of financing the renovation. There is certainly no
assurance, from the record now before us, that a budget containing
an appropriation for the pool will ever be approved or that a special
benefit tax to support such an appropriation will ever be levied.
“At least until the prospect of such an appropriation or such a tax
becomes substantially more certain, the plaintiffs will have suffered
no injury from the challenged ordinance, and its validity or invalidity
is therefore of no practical consequence.” 62 Md. App. at 371, 489
A.2d at 101-02 (emphasis in the original).
309 Md. at 695-96, 526 A.2d at 604-05 (alterations in the original). In Boyds, the
respondents argued that, because
[t]he challenged amendment to the Boyds Master Plan merely authorizes
the District Council to grant an application for Mineral Resource Recovery
zoning; it does not require the District Council to do so. . . . the adoption of
the amendment has not affected any of petitioners' legal rights or caused
them any injury, and the future effect upon petitioners remains “wholly
speculative.”
309 Md. at 696, 526 A.2d at 605.
This Court disagreed, stating:
There is, however, an important distinction between Ebersberger and the
case at bar. The Ebersberger court reasoned that the challenged ordinance
could have no injurious effect upon the plaintiffs until the prospect of its
implementation became “substantially more certain.” 62 Md. App. at 371,
489 A.2d at 102. Here, by contrast, the challenged plan amendment was
initiated, approved, and adopted in furtherance of an actual, pending
application to amend the local zoning map. Moreover, the designation of
an area on the applicable master plan as suitable for a Mineral Resource
Recovery Zone was a condition precedent to the granting of an application
140
for zoning of an area as a Mineral Resource Recovery Zone. In Count I of
the complaint filed in the circuit court petitioners claimed that hearings—
spanning some four days—on the application to amend the local zoning
map would not have gone forward if the master plan had not been amended.
In Count II petitioners alleged that the actions of the Commission and
District Council with respect to the plan amendment forced petitioners to
hire counsel and land consultants in order to participate in the local zoning
map amendment proceedings. The prospect of a controversy, therefore,
lay well beyond the realm of matters “future, contingent and
uncertain.”
Boyds, 309 Md. at 696-97, 526 A.2d at 605 (emphasis added).
Similar to Boyds, in the present case, several earlier steps were initiated, approved,
and executed in furtherance of the envisioned State Center Project. In this sense, the
State Center Project would not have gone forward if certain earlier steps had not taken
place. At several points prior to the actual execution of the formative and binding
documents regarding the Project, “[t]he prospect of a controversy . . . lay well beyond the
realm of matters ‘future, contingent and uncertain.’” Id.
This approach, which recognizes that certain earlier stages in a series of
envisioned overall stages may reach a level of substantial certainty prior to the
government executing a binding document, fits properly within the realm of Procurement
Law. This State’s Procurement Law recognizes that filing and resolving disputes earlier,
rather than later, is best. Taxpayers filing suits based on violations of the Procurement
Law should not be encouraged to delay airing their claims because delay may cost
taxpayers more money where the announced path to the binding contract for a
procurement is set and, as in this case, takes many years to reach fruition. If the
government acted illegally in an early stage that sets the stage for (and serves as a
141
condition precedent to) its later execution of a binding contract, then the alleged illegality
has “occurred” for purposes of laches analysis.
Contrary to Appellees’ assertions, this approach to the ripeness analysis does not
contradict either Inlet Associates or Superblock II. Neither of those cases held that a final
or binding document was a prerequisite to ripeness. Rather, the specific facts of those
cases illustrate when a controversy may be “future, contingent and uncertain” and when
one may become ripe. We consider these cases further.
In Superblock II, 120 West Fayette alleged that a proposed plan for the Superblock
would violate the MOA and the Renewal Plan. The plan was a mere proposal, however;
the City had not yet adopted, approved, or authorized any plans. The Court stated that
“[a] declaratory relief action that requests adjudication based on facts that have yet to
occur or develop lacks ripeness and should be dismissed for failure to allege a justiciable
controversy.” Superblock II, 413 Md. at 356, 992 A.2d at 488 (citing Hickory Point
P’ship v. Anne Arundel Cnty., 316 Md. 118, 130, 557 A.2d 626, 632 (1989)); see also id.
(“In a declaratory judgment proceeding, the court will not decide future rights in
anticipation of an event which may never happen, but will wait until the event actually
takes place.”) (emphasis added) (quoting Boyds, 309 Md. at 690, 526 A.2d at 602)
(internal quotation marks and brackets omitted); id. (“The disagreement over which
declaratory relief is sought must not be nebulous or contingent but must have taken
on fixed and final shape so that a court can see what legal issues it is deciding.”)
(emphasis added) (quoting Hickory Point P’ship, 316 Md. at 131, 557 A.2d at 632)
(internal quotation marks and brackets omitted). In reviewing the record of that case, the
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Court found “nothing that rises to the level of an actual dispute,” id., and “nothing from
which [the Court could] infer that the City would approve plans to the contrary [of what
was stated in the MOA and the Renewal Plan].” Superblock II, 413 Md. at 358, 992 A.2d
at 489 (emphasis added) (citing Boyds, 309 Md. at 691, 526 A.2d at 602). In sum, the
Court found it was “unable to infer from the proposed designs and project plans that
Lexington Square or the City intends to violate the MOA or the Renewal Plan . . . .” Id.
(emphasis in the original). Thus, “[t]he possibility remains that Lexington Square will
propose, and the City will approve, plans that, in accordance with the LDA’s
requirements, conform to the MOA and the Renewal Plan.” Id. Accordingly, the Court
upheld the Circuit Court’s grant of the motion to dismiss Count Two of the amended
complaint “on the grounds that 120 West Fayette failed to alleged [sic] facts ripe for
adjudication and thus failed to establish a justiciable controversy.” Id.
Inlet Associates involved a taxpayer action to enjoin the conveyance of a
municipality’s public right-of-way that was part of a dedicated street, together with
riparian rights purported to accrue as a result of the municipality’s interest in the
dedicated street. In that case, this Court rejected Inlet’s argument that the doctrine of
laches barred the plaintiffs’ action. In so holding, the Court stated,
The trial judge noted that the City Council did not place its final imprimatur
on the Inlet proposal, which as amended included the restaurant in place of
the shops on the pier, until October 6, 1986; and that the present case was
filed approximately one month later. One reason for the opposition of the
unit owners in Assateague House was the late inclusion of the restaurant
and its location in the Inlet proposal. In any event, we think it clear from
our discussion of equitable estoppel that the doctrine of laches, even if
otherwise applicable, does not legalize this patent violation of the Ocean
City Charter. We note parenthetically, however, that until the summer of
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1986, Inlet had not received the necessary permits and authorizations to
permit it to proceed to implement its proposed plan. Plaintiffs' suit in
November of 1986 was hardly a delay befitting a serious claim of laches.
Inlet Assocs., 313 Md. at 439, 545 A.2d at 1309. The analysis, viewed in light of the
facts and the taxpayers’ claims in that case, makes apparent that the material changes in
the amendments approved by the City Council on 6 October 1986 constituted the
violation that the taxpayers challenged. At the time of the action, no “formal
documentation” was extant. Rather, the taxpayers brought suit specifically to enjoin the
City from entering into a binding contract to convey the municipality’s public right-of-
way or riparian rights.
Although no binding written agreement is required necessarily for a claim to
achieve ripeness, some of Appellees’ claims rest on governmental actions which were not
envisioned specifically by earlier stages of the State Center Project and did not occur
until after the MDA and/or First Amendment were executed. Appellees’ suggestion, in
their brief, that these latter-arising claims save all claims (even those which arose at an
earlier date) is without merit. Although the doctrine of laches may not bar a singular
claim arising later in the process, Appellees’ inclusion of latter-arising claims does not
save from a laches bar those claims which accrued earlier. Thus, for our analysis of the
starting of the clock for ripeness, we organize Appellees’ claims together in groups
according to when we deem the point of controversy became substantially certain.
The majority of the claims arose out of events or actions envisioned in (or foretold
by) the RFQ. The public issuance of the RFQ standing alone, however, is not
substantially certain for ripeness purpose. Under the Procurement Law (assuming for
144
argumentative purposes it applies), prior to the issuance of an award, prospective bidders
are permitted generally to file a complaint (until the time the bid is awarded) concerning
the information listed in an RFP. Normally, up until the time of the awarding of a bid,
the State may withdraw an RFP and change some of the provisions. By analogy, the
awarding of a bid under an RFP is similar to the selection of the Master Developer under
the RFQ in the present case. Thus, we must look to some further action by the State
Agencies (other than the public issuance of the RFQ) to determine the time that the
claims accrued as to subsequent actions predicated upon what the RFQ predicted would
follow.
First, the State’s intentions to select a Master Developer in the manner prescribed
in the RFQ is not considered as finalized until the public announcement of the selection
of the Developers on 21 March 2006. The procedures for the original selection of the
Master Developer were set forth explicitly in the publicly issued RFQ in 2005. Although
construction and leasing of the Project was not enforceable between the State and the
Developers merely upon selection of the Developers, the awarding of the exclusive right
to negotiate was the intended first stage in a series of envisioned stages required for the
Project to reach fruition. The claimed illegality that caused Appellees asserted harm
stemmed from this stage and, thus, it is the proper starting point for ripeness as to those
claims related to those actions. In other words, the significance—and the alleged
violation of the Procurement Law—does not occur when the MDA and/or the First
Amendment were executed, but rather when the State Agencies agreed to negotiate only
with the Developers in pursuit of the later stages outlined in the RFQ. After the
145
Developers were selected, these taxpayers could have filed suit seeking an injunction to
preclude the State from expending further resources in the form of negotiations with the
Master Developer chosen in an ultra vires manner, as well as the intended execution of
the MDA with the Master Developer after the period of negotiations. 83 Instead, the
taxpayers bided their time.
Second, those claims regarding the nature of the Project as envisioned in the RFQ
became finite at the very least by the time the BPW authorized the State Agencies to
enter into the MDA. Although the earlier contracts (such as the LOI) were not binding, it
is undisputable that the MDA bound the State and the Developers to the State Center
Project. The taxpayers did not need to abide the date of execution of the MDA, but rather
only until the controversy became substantially certain. The BPW authorized the State
Center Agencies to enter the contract on 3 June 2009. At the very least, taxpayers could
have maintained a suit at that point seeking an injunction to preclude the State from
entering into this contract, which the taxpayers should have known would bind the State
to later actions Appellees allege now as ultra vires and illegal, with the Developer that
was chosen in an ultra vires manner. Instead, the taxpayers bided their time.
83
Even were we to agree with Appellees that the claim was not ripe until the State
Agencies and the Developers executed a binding and enforceable agreement and, thus,
they could not file suit this early, we would still impute the knowledge of the claim of
illegal governmental action to them from that time. In that sense, they had a long lead
time to prepare their suit and should have filed the suit more promptly after the execution
of the MDA.
146
At that time the MDA was executed on 15 June 2009, there is no doubt that an
enforceable, binding contract existed. All claims relating to the envisioned stages set
forth in the RFQ accrued at that point. Particularly in light of the taxpayers’ knowledge
of what the 2005 RFQ envisioned, the selection of the Master Developer in 2006, and the
BPW authorization of the State Agencies to enter the MDA, Appellees could have filed
suit more promptly in an effort to forestall further allegedly illegal pursuit of
unauthorized objectives. Instead, Appellees continued to bide their time.
The third group of claims includes those which related to alleged “material
changes” in the First Amendment (departed from the terms set forth in the MDA).
Appellees allege that these changes were so substantial that they could not have been
envisioned at the time of the MDA and, thus, no claim existed prior to the adoption of
these changes in the First Amendment. We agree that, to the extent that such changes
were not predicted or called for in the MDA, they would accrue generally at the time of
the First Amendment, rather than at the time of the execution of the MDA. Because we
conclude ultimately that the time period between the First Amendment and the filing of
the present lawsuit was unreasonable and prejudicial to the State Agencies and
Developers, however, we do not consider whether these changes were so “material” as to
warrant requiring a new selection of a Master Developer (assuming again,
argumentatively, that the Procurement Law applies). Rather, we find it sufficient to
assume that Appellees are correct that these changes were so material that the First
Amendment represented a new violation upon which Appellees’ related claims ripened.
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Lastly, the fourth group consists of various claims Appellees allege arose after the
execution of the First Amendment. Appellees note that the BPW approved amendments
on 15 December 2010 to four leases approved originally in July 2010. According to
Appellees, the sample leases contained in the MDA and the First Amendment did not
include sufficient details upon which their claims related thereto could be described as
ripe. Perhaps had Appellees’s alleged violations relied upon the specific details set forth
in either the original or amended leases, we might find some merit in their contention. In
this case, however, Appellees’ argument is based on an alleged violation of the
Procurement Code, which, for all practical purposes as regards their claims, was
envisioned clearly in the RFQ and then set forth again—at great length—in the MDA and
First Amendment. Because Appellees did not need to wait until the final binding
document to file suit, these claims accrued, it seems to us, at the same time the State
Agencies were authorized to enter into the MDA (alongside the third group of claims (the
“material changes”) in the First Amendment).
In sum, we group certain claims together that fall under the same umbrella of
accrual. The first group, those claims envisioned by the RFQ that came to pass with the
selection of the Developers, accrued at the very latest on 21 March 2006. The second
group, those envisioned either by the RFQ and included in the executed MDA or
envisioned initially in the MDA, accrued on 3 June 2009, the date that the BPW
authorized the State Agencies to enter the agreement. The third group, those claims of
material changes between the MDA and the First Amendment, accrued in July 2010,
when the BPW authorized the State Agencies to enter the First Amendment. Lastly, the
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other “material changes” which occurred after the First Amendment were not the basis of
the alleged violations and, thus, we conclude that those claims should be grouped as
falling under the same analysis of the “material changes” in the First Amendment
because they were envisioned in the earlier stages.
ii. Whether the delay was unreasonable?
Next, we consider the proper approach for determining what amount of time
constitutes an unreasonable and unjustified delay. Although there is no bright-line rule,
the doctrine of laches and statutes of limitations have an intertwined relationship that we
must consider as a first step in this portion of the analysis. This Court has recognized
that, where appropriate, we should look to the General Assembly for guidance in
determining what amount of time is reasonable. Schaeffer v. Anne Arundel Cnty., 338
Md. 75, 81, 656 A.2d 751, 754 (1995); see also Frederick Rd., 360 Md. at 117, 756 A.2d
at 985 (“When a case involves concurrent legal and equitable remedies, ‘the applicable
statute of limitations for the legal remedy is equally applicable to the equitable one.’”)
(quoting Schaeffer, 338 Md. at 81, 656 A.2d at 754). We analyzed the principles for
analogizing statutes of limitations to the equitable defense of laches in Schaeffer v. Anne
Arundel County, 338 Md. 75, 656 A.2d 751 (1995). There, we stated:
Choosing the applicable measure of impermissible delay for cases where an
equitable remedy is sought is most straightforward in cases when there are
concurrent legal and equitable remedies and the applicable statute of
limitations for the legal remedy is equally applicable to the equitable one.
Schaeffer, 338 Md. at 81, 656 A.2d at 754 (citing Rettaliata v. Sullivan, 208 Md. 617,
621, 119 A.2d 420, 422 (1956); Dugan v. Gittings, 3 Gill 138, 161-62 (1845)). Thus,
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“[i]n most cases involving an exclusively equitable remedy, we refer to the limitations
period for the cause of action at law most analogous to the one in equity.” Id.
“The authorities indicate that even when the remedy for a claimed right is
only in equity, the period of limitations most nearly apposite at law will be
invoked by an equity court, provided there is not present a more compelling
equitable reason-such as fraud or other inequitable conduct which would
cause injustice if the bar were interposed-why the action should not be
barred.”
Id. (quoting Stevens v. Bennett, 234 Md. 348, 351, 199 A.2d 221, 223-24 (1964)).
“Generally, if there is no action at law directly analogous to the action in equity,
the three-year statute of limitations found in Maryland Code (1974, 1989 Repl. Vol.,
1994 Cum. Supp.), § 5-101 of the Courts and Judicial Proceedings Article[84] will be used
as a guideline.” Schaeffer, 338 Md. at 82, 656 A.2d at 754 (citing Washington Suburban
Sanitary Comm’n v. C.I. Mitchell & Best Co., 303 Md. 544, 562, 495 A.2d 30, 39
(1985)). For example, in Washington Suburban, a case in which developers brought an
action seeking declaratory and injunctive relief against the collection of a “System
Expansion Offset Charge” (“SEOC”) imposed by the Washington Suburban Sanitary
Commission (“WSSC”), we held that the proposed analogy was inappropriate. 303 Md.
at 563, 495 A.2d at 39. In that case, the developer argued that the WSSC lacked the
84
Section 5-101 provides,
A civil action at law shall be filed within three years from the date it
accrues unless another provision of the Code provides a different period of
time within which an action shall be commenced.
Md. Code (1973, 2013 Repl. Vol.), Courts & Judicial Proceedings Art., § 5-101
(emphasis added).
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authority to impose this new charge and, in the alternative, that even if the WSSC had
such authority, the charge was unreasonable and void. The WSSC responded by
asserting laches, and proposed “that the analogy be drawn [ ] to the 30 days provided by
[Md. Code (1957, 1983 Repl. Vol., 1984 Cum. Supp.), Art. 29,] § 6-110(b),” 85 which
provided a process for appealing certain actions of the WSSC to the Maryland Public
Service Commission (“PSC”). Id. The Court rejected this proposal:
That statute, however, applies to the special statutory remedy before the
PSC while the issue now under consideration, WSSC's authority to adopt
SEOC, is not subject to that special statutory remedy. Where, as here, the
claim under consideration properly invokes the original jurisdiction of the
circuit court, the analogy for laches should not be to a time limit for
initiating a special statutory administrative remedy applicable to a different
theory of the case.
Id., 303 Md. at 563, 495 A.2d at 39.
In this case, the State Agencies urge an analogy to the timeliness requirements in
the Procurement Law’s Regulations. Title 21 of the Code of Maryland Regulations
promulgates the State Procurement Regulations. COMAR 21.10.02.03B requires protests
relating to the formation of a contract to be filed “no[] later than 7 days after the basis for
protest is known or should have been known, whichever is earlier.” COMAR
21.10.02.03B.
Before we confront the proffered analogy to the Procurement Law vel non, we
conclude that, under the more generous analogy to the three-year statute of limitations,
many of Appellees’ claims succumb to laches on that basis. The challenges to the
85
This statute was repealed by Acts 2010, c. 37, § 1, eff. Oct. 1, 2010.
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selection of the Developers were justiciable by no later than 21 March 2006. Laches bars
those claims because Appellees did not file their Original Complaint until 17 December
2010. The State was open and transparent with the entire “unique” procurement process.
The local newspapers covered the matter extensively. If the announced process was
illegal, Appellees could have—and should have—brought their complaints on that score
to court sooner than they did.
In regards to the second group (those claims arising from events or actions
envisioned in either the RFQ or MDA and made actual in the MDA) and third group
(those claims arising from events or actions that represented allegedly “material changes”
from the MDA to the First Amendment), we consider whether the less generous analogy
to COMAR 21.10.02.03B makes sense in the context of this case. We note first that a
strict timeliness requirement is reasonable generally for protests of alleged procurement
infractions, as the COMAR section makes evident. Procurements are issued for services
or goods that the government needs. Once a submission is awarded for the project or the
order for goods, both the awardee and the government proceed (presumably promptly) to
expend time and resources on the completion of the procurement’s goal. Allowing an
extended period for protests to be brought forth would hinder the government’s ability to
obtain the needed item or service (and would increase costs for developers and
contractors interested in government contracts). The question in this case, though, is
whether the seven day statutory limit, which is appropriate for bid protests to the Appeals
Board, is appropriate for importation by analogy here where the complainants are not
entitled to protest the action in any administrative avenue.
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In light of Washington Suburban, which held that the statutory limitation for an
administrative remedy was not appropriate for a claim for which a circuit court had
original jurisdiction, we decline here to adopt the direct analogy to the COMAR
provision. Rather, adhering to the flexible nature of the laches doctrine, we conclude
nonetheless that, at least in this case involving time-sensitive procurement issues, 86 the
delay until 17 December 2010 to file suit was unreasonable and unjustified for both of the
latter groups of claims.
Such a conclusion fits comfortably within our taxpayer standing doctrine
jurisprudence. Although the motive of a taxpayer bringing suit is immaterial to whether
the complainant has standing, the motive is not immaterial as to the relief sought in
taxpayer standing suits. As the Court stated in Konig v. City of Baltimore, 128 Md. 465,
97 A. 837 (1916):
While under the decisions a Court of Equity may grant relief to a taxpayer
even if it is not satisfied that he is acting in good faith, or is influenced by
proper motives, yet when it is called upon to determine what relief it will
grant the plaintiff, there is no reason why the court should be
compelled to shut its eyes and not see what the real facts are. This court
refused to grant to Kelly, Piet & Co. any relief, although they were
taxpayers as well as bidders, because it was really a controversy between
86
We recognize that some federal courts have adopted a per se rule with respect to
the application of laches to claims arising out of time-sensitive issues involving elections,
for example. See Ross v. State Bd. of Elections, 387 Md. 649, 671, 876 A.2d 692, 705
(2005) (citing Fulani v. Hogsett, 917 F.2d 1028, 1031 (7th Cir. 1990); Kay v. Austin, 621
F.2d 809, 813 (6th Cir. 1980); MacGovern v. Connolly, 637 F. Supp. 111, 115 (D. Mass.
1986); Barthelmes v. Morris, 342 F. Supp. 153, 160–61 (D. Md. 1972)). Similar to our
conclusion in Ross, however, we need not decide here whether any per se rule should
apply because the doctrine of laches is a flexible doctrine and, moreover, “[t]here may be
situations in which such a rule would be inappropriate.” Id.
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rival tradesmen for the custom of the city. [Kelly v. Mayor of Baltimore, 53
Md. 134 (1880).] Notwithstanding what we have said, the appellant claims
to appear in this court for the purpose of protecting himself and other
taxpayers from loss, but no other taxpayer has within the two years since
the bill was filed asked to be made a party. The board of awards cannot be
censured for endeavoring to save the city money in awarding the contract, if
they believed they were complying with the charter. No other motive is
suggested, and, when we remember of whom the board is composed, no
improper motive will be presumed. Every principle of justice would
prohibit an individual or a private corporation from profiting by such a
mistake affecting an honest contractor, by keeping the fruits of the mistake
without paying for them, and, while the rules of law applicable to officers
of municipal corporations are different from those governing private
corporations, it would not be regarded by the public, for whose benefit
such rules have been adopted, as just to deprive a contractor of all
compensation for work done and accepted by the city under such
circumstances as exist in this case.
128 Md. at 478, 97 A. at 841 (emphasis added).
Similarly, in this case, when analyzing what constitutes an unreasonable delay, we
note that significant motivations of Appellees appear to be a “desire to stave off
competition.” Their initial objections to the Project stemmed from the selection of the
Master Developer, which was announced publicly by Governor Ehrlich on 21 March
2006, more than three years prior to Appellees’ filing of the Original Complaint. That
they alleged additional violations should not save their complaint for equitable relief
based on taxpayer standing. If the First Amendment’s “material” changes, which were
approved and executed in September 2010, were the first stage of the alleged violations,
we might be more likely to find reasonable the short time period between September
2010 and December 2010. Equity is not limited, however, to such a tunneled vision of
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the circumstances. Instead, we are permitted to weigh all the facts. In doing so, the
motivations of the parties matter and indicate that Appellees’ delay in bringing their
claims was unreasonable and unjustified.
c. Prejudice from the delay
The State Agencies assert on appeal that “[the Plaintiffs] waited to file while the
State of Maryland and the Developer spent millions executing a contract the plaintiffs
believe is void.” Appellees retort that there was no prejudice to the State Agencies and
that State Agencies made merely a “conclusory assertion of prejudice . . . , claiming to
have spent ‘millions,’ without any citation to the record to support such assertion.”
Moreover, Appellees argue that “[a]mong the reasons the State Parties may have been
unable to so demonstrate prejudice was that the State-funded parking garage that literally
forms the foundation of the Project was not even authorized by BPW until December 15,
2010. The Project could not be constructed without the authorization and subsequent
issuance of State bonds for the garage.”
We find that the State Agencies in this case were prejudiced by Appellees’
unreasonable delay in bringing the suit. 87 To allow the taxpayers to bring the claim at the
stage in the development when they did caused the State and Developers to waste
87
Although the time frame in which we analyze prejudice for purposes of laches is
narrower than that for taxpayer standing’s harm analysis, we find that prejudice—in the
form of the almost certainty of the expenditure of substantial money and resources—
occurred in both the narrower and broader time frames in such a way that to find
otherwise could be considered inconsistent with our prior analysis of the harm alleged for
purposes of taxpayer standing. See supra pp. 116-23.
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substantial public funds, if there were any merit in Appellees’ substantive claims.
Although we recognize a taxpayer’s interest in the State complying with the competitive
bidding and other requirements set forth in the Procurement Law, when obliged to do so,
the taxpayer cannot delay bringing suit in such a way that would cost the taxpayers even
more money if the complaining taxpayer was right. Such a situation, although not
directly parallel, is reminiscent of those taxpayer standing cases in which this Court
found the taxpayer did not have an interest because declaring the act unconstitutional
would cost the taxpayers actually more money, rather than a savings for the taxpayers. In
such cases, we have found always that the complaining taxpayer lacked standing. See,
e.g., Citizens Comm. of Anne Arundel Cnty., Inc. v. Cnty. Comm’rs, 233 Md. 398, 404,
197 A.2d 108, 111-12 (1964) (concluding that taxpayer standing could not exist if “the
taxpayers would be damaged by a discontinuance of the program rather than a
continuance of it”).
As this Court stated many years ago:
In equity, laches and neglect are discountenanced. Stale demands without
any effort to enforce them, cannot meet the aid of a tribunal which only
lends its power to reasonable diligence. . . . [T]he indolence of those who
are dilatory in recovering their property, and claiming what is due them,
should be punished, and they should impute to themselves the punishment.
Hall v. Clagett, 48 Md. 223, 243-44 (1878). “‘Under the equitable doctrine of laches, a
lack of diligence on the part of a party who fails to assert his rights may result in his
being equitably precluded from later asserting these same rights if the opposing party has
incurred prejudice or injury.’” Allied Inv. Corp. v. Jasen, 123 Md. App. 88, 111, 716
A.2d 1085, 1096 (1998), rev'd on other grounds, 354 Md. 547, 731 A.2d 957 (1999)
156
(quoting Shah v. HealthPlus, Inc., 116 Md. App. 327, 336, 696 A.2d 473 (1997)). The
record in this case convinces us that, regardless of how we group Appellees’ claims, they
slumbered unreasonably in asserting their claims.
Therefore, the present claims were improperly before the Circuit Court. We
decline to address the merits of the procurement issue (Question #1, see supra at 23).
JUDGMENT OF THE CIRCUIT
COURT FOR BALTIMORE CITY
VACATED. CASE REMANDED TO
THE CIRCUIT COURT, WITH
DIRECTIONS TO DISMISS
APPELLEES’ AMENDED
COMPLAINT, WITH PREJUDICE.
COSTS TO BE PAID BY
APPELLEES.
Judge Battaglia joins the judgment only.
157