GREATER FALLSTON ASSOCIATION, INC.

P.O. Box 71

Fallston, Maryland 21047

(410)-557-2882

 

 

Honorable Brian E. Frosh

Chairman, Judicial Proceedings Committee

2 East Miller Senate Building

Annapolis, Maryland 21401                                                              January 30, 2007

 

Dear Chairman Frosh:

 

The Greater Fallston Association, Inc. is an umbrella community association chartered in accordance with the laws of the State of Maryland1 among whose purposes are to actively participate in contemplated rezoning and promote the general welfare of the Fallston Community.

 

Under current Maryland case law, the right to have “standing” in any judicial, administrative or governmental proceedings relating to land use is based on whether an appellant is aggrieved as follows:2

 

  1. An adjoining, confronting or nearby property owner is deemed, prima facie, to be specifically damaged and, therefore a person aggrieved.
  2. One whose personal or property rights are adversely affected by a decision of a zoning board is a person aggrieved. The decision must not only affect a matter in which the protestant has a specific interest therein but must be such that he is personally and specifically affected in a way different from that suffered by the public generally.
  3. A person whose property is far removed from the subject property ordinarily will not be considered a person aggrieved.  However if a person meets the burden of alleging and proving by competent evidence-either before the board or in the court on appeal if standing is challenged-the fact that personal property rights are specially and adversely affected by the zoning board’s action then the person will be considered aggrieved.

 

There are three critical issues that Senate Bills 65 and 159 address regarding extending the rights of  “standing” to community associations and homeowners associations.

 

1.                  Allowing community associations or homeowners associations without property interest of their own (separate and distinct from that of its individual members) to have common law standing if there is a proposed land use change within its geographic boundary.

2.                  Allowing community associations or homeowners associations without property interest of their own (separate and distinct from that its individual members) acquire standing because one or more of its members has standing.

3.                  Allowing a community association or homeowner association with a specific interest or property right affected by a government decision to assert they are specifically aggrieved in a way different from that suffered by the public generally.

 

 

 

Land use decisions affect all members of a community not only individuals with adjoining or confronting property interests.   In some circumstances, a community can assert that they are aggrieved in a manner equal to if not greater than an adjoining landowner.    For example, in the case of the ExxonMobil MTBE catastrophe in Uppercrossroads/Fallston, Maryland in 2004, homeowners in the surrounding half-mile radius of the ExxonMobil station demonstrated MTBE contamination in their drinking water.  The entire community was aggrieved in a manner different from that suffered by the public generally. In discussions regarding the proposed facility in 1986, there was great concern about the safety of the proposed petroleum station with regard to the underground gasoline storage tanks.  Although the Huntington Community Association (a community association under the umbrella of the Greater Fallston Association, Inc.) sought to appeal variances in the construction of the station, the Circuit Court ruled, “A civic association lacks standing to sue where it has no property interest of its own separate and distinct from that of its individual members”.  Furthermore it ruled “There was no showing of special injury to the Association”.3   In 1987, the Greater Fallston Association, Inc. protested the construction of an Amoco petroleum station approximately one mile south of the ExxonMobil Site.  In a Petition to Appeal to the Circuit Court of Harford County is was noted that “protestant Donald Coll (representing the GFA, Inc. and represented by the People’s Counsel of Harford County.) “was” not an aggrieved party under Maryland law and thus lacked standing to request final argument.”4   Thus, although the GFA, Inc. argued its case in local administrative hearings, the right of standing was denied at higher judicial levels because of precedent Maryland case law.  It should be noted that the Amoco station was later transferred to another petroleum firm and the site sustained a significant underground storage tank leak contaminating an onsite water supply well used by the public.  Hence, it can be argued that the surrounding community and the public were aggrieved in a manner  equal to if not greater than adjacent properties owners.  

 

In some circumstances, communities may be harmed more than property owners with adjacent boundaries if those seeking a land use change compensate adjacent property owners. Compensated or uncompensated, adjacent property owners may transfer property ownership abandoning the adjoining sites and leaving a harmed community to deal with the aftermath such as loss of property value, traffic congestion, school overcrowding, change in tax assessment or a change in community aesthetics without standing to appeal their case.

 

Petitioners seeking a change in land use may purchase adjoining properties to areas where they intend to petition for a change in land use proving a safe unchallenged buffer from any legal standing challenges.  Clearly, petitioners of land use change with large capital can manipulate the playing field unopposed.

 

The inherent inequality is that petitioners of land use who pursue cases to higher appellate levels will inevitably succeed.   Communities, even though they are significantly aggrieved, will ultimately lose.   The opponents of the bill may argues that the opportunity for objection to a proposed land use is still available to adjacent land owners but numerous factors including time, cost, complexities of procedure and fear of legal vulnerability may preclude active and aggressive action by an adjoining landowner.  Likewise, it might be asserted that an affected adjacent land owner could seek recourse through local elected officials. However procedure and standing with regard to planning and zoning varies from jurisdiction to jurisdiction.  In Harford County, for example, the elected county Council is the appeals board for the local zoning Hearing Examiner and therefore elected officials may not intervene in planning and zoning matters.

 

Clearly, the table is not just tilted toward the land user petitioner.  It is totally controlled by them.  The advantage of affording community associations and homeowners associations comparable standing either as a party of its own standing or in representing one or members in the community with standing is strength in numbers, financial and legal resources, time as well as protection from powerful, assertive financially wealthy land use petitioners

 

The judicial process for allowing standing in land use issues has attracted significant attention throughout the nation.  The American Planning Association in its guidebook for smart growth suggests that standing for judicial review should be granted to any citizen who opposes a project, not just those who can demonstrate specific harm or injury as a result of adjacent property ownership.5  Some have argued that local jurisdictions that have presented comprehensive plans for voter approval have entered into an implicit contract between local government and its citizens, thereby entitling all citizens to standing in land use matters.

 

In concert with the recommendations of the American Planning Association, it is indisputable that good planning for a thriving and healthy community requires the participation of all community members to provide direction, input and feedback.  The impact of planning and zoning and land use is not limited to individuals with adjacent boundaries.  Clearly, Senate Bills 65 and 159 are steps in the right direction in engaging communities and citizen input in what should be considered a shared interest in protecting and promoting growth and development of our communities.  Allowing community associations and homeowners associations standing would encourage a cooperative spirit in the early planning stages of land use change.  Rather than waste valuable time, funds and legal resources in moving toward a higher appellate process, petitioners of land use change might find it more profitable to encourage early compromise and cooperation with communities rather than confrontation.  The Greater Fallston Association endorses Senate Bills 65 and 159.

 

Thank you,

 

 

Yours truly,

 

 

 

 

Roman E. Ratych, M.D.

President, Greater Fallston Association, Inc.

 

Beth Scheir

Vice-President, GFA, Inc

 

Greg Solak

Secretary, GFA, Inc.

 

Colleen Craven

Treasurer, GFA, Inc.

 

Valerie Twanmoh, Esq

Member of the Board. GFA, Inc.

 

 

 

 

 

 

 

1Maryland State Department of Assessment and Taxation (Liber 24 Page 682) with Articles of Revival (Liber 30 Page 666).

 

2Bryniarski v Montgomery Co., 247 MD 137, 144, 230 A 2d 289 (1967)

 

3Harford County Board of Appeals Case No 3144, In the Circuit Court for Harford County Civil Appeal No 1615. January 30, 1986

 

4Petition of Appeal, Harford County Circuit Court, March 13, 1987.

 

5Growing Smart Legislative Guidebook: Model Statutes for Planning and the Management of Change, 2002 Edition (Stuart Meck, FAICP, Gen. Editor).