Floyd v. Mayor & Council of Baltimore , 463 Md. 226 ( 2019 )

Joan Floyd, et al. v. Mayor and City Council of Baltimore, No. 35, September Term, 2018
COMPREHENSIVE REZONING – TAXPAYER STANDING – SPECIAL
INTEREST REQUIREMENT – NEXUS – Court of Appeals held that trial court
properly granted motion to dismiss because plaintiffs, Baltimore City taxpayers, failed to
allege facts sufficient to establish taxpayer standing to maintain challenge to
comprehensive rezoning and zoning map. Court held that plaintiffs failed to show special
interest in subject matter of case distinct from that of general public by failing to show that
allegedly illegal or ultra vires acts may reasonably result in pecuniary loss or increase in
taxes. Court determined that plaintiffs failed to demonstrate nexus between any alleged
potential pecuniary loss and challenged act, i.e., connection between allegedly illegal or
ultra vires act and harm caused to taxpayer. Court also determined plaintiffs failed to seek
remedy that, if granted, would alleviate any alleged tax burden or pecuniary loss that would
result if zoning map remains in place.
Circuit Court for Baltimore City
Case No. 24-C-17-003021
Argued: November 30, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 35
September Term, 2018
______________________________________
JOAN FLOYD, ET AL.
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE
______________________________________
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty
Adkins, Sally D. (Senior Judge,
Specially Assigned),
JJ.
______________________________________
Opinion by Watts, J.
Barbera, C.J., McDonald and Adkins, JJ.,
concur.
______________________________________
Filed: April 1, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-04-01 14:32-04:00
Suzanne C. Johnson, Clerk
This case concerns taxpayer standing, and, specifically, whether certain individuals
satisfied the requirements of taxpayer standing to maintain a challenge against
comprehensive rezoning ordinances and a new zoning map enacted in Baltimore City.
Recently, in Anne Arundel Cty. v. Bell, 442 Md. 539, 576-77, 113 A.3d 639, 661-62
(2015), we explained that taxpayer standing is a “common law standing doctrine [that]
permits taxpayers to seek the aid of courts, exercising equity powers, to enjoin illegal and
ultra vires[1] acts of public officials where those acts are reasonably likely to result in
pecuniary loss to the taxpayer” or an increase in taxes. (Cleaned up). Under the taxpayer
standing doctrine, among other things, a “complainant must have a special interest in the
subject[ ]matter of the suit distinct from that of the general public.” Id. at 576, 113 A.3d
at 661 (cleaned up). The “special interest” requirement is satisfied where a complainant
alleges “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.”
Id. at 577, 113 A.3d at 662 (cleaned up). Importantly, “there must be a ‘nexus’ between
the showing of potential pecuniary damage and the challenged act.” Id. at 579, 113 A.3d
at 663 (citation omitted). Indeed, “[t]here must be [] a connection between the alleged[ly]
illegal or ultra vires act, the harm caused to the taxpayer, and the potential for the remedy
to alleviate the harm incurred.” Id. at 579, 113 A.3d at 663 (citation omitted). And, “th[e]
“Ultra vires” means “[u]nauthorized; beyond the scope of power allowed or
1
granted by a corporate charter or by law[.]” Ultra vires, Black’s Law Dictionary (10th ed.
2014).
nexus must be true not only for the complainant, but also [for] all similarly situated
taxpayers.” Id. at 579, 113 A.3d at 663 (citation omitted).
Here, Joan Floyd, Paul Robinson, and Deborah Tempera (together, “Petitioners”),
Baltimore City taxpayers, filed in the Circuit Court for Baltimore City a complaint for
declaratory judgment against the Mayor and City Council of Baltimore (“Respondent”),
challenging a new comprehensive rezoning and a new zoning map, as enacted through two
ordinances. Respondent filed a motion to dismiss and/or for summary judgment, alleging
that Petitioners lacked the requisite taxpayer standing to maintain their case. Following a
hearing, the circuit court granted the motion to dismiss, ruling that Petitioners failed to
allege a specific harm unique to them or their property and that Petitioners lacked taxpayer
standing. Petitioners filed a notice of appeal, and while this case was pending in the Court
of Special Appeals, they filed in this Court a petition for a writ of certiorari. Before the
Court of Special Appeals heard oral argument or issued an opinion, we granted the petition.
See Floyd v. Mayor & City Council of Balt., 460 Md. 494, 190 A.3d 1037 (2018).
Against this backdrop, we decide whether the circuit court properly determined that
Petitioners failed to establish the requisite taxpayer standing to proceed with this case, and,
in turn, whether the circuit court erred in granting the motion to dismiss. We hold that the
circuit court correctly granted the motion to dismiss because Petitioners failed to allege
facts sufficient to establish taxpayer standing to maintain a challenge to the comprehensive
rezoning and zoning map. We conclude that Petitioners failed to show a special interest in
the subject matter of this case distinct from that of the general public by failing to
sufficiently allege illegal or ultra vires acts by Respondent that may result in a pecuniary
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loss or an increase in taxes. Moreover, we determine that Petitioners failed to demonstrate
a nexus between any alleged potential pecuniary harm and the challenged act, i.e., a
connection between the allegedly illegal or ultra vires act and the harm caused to the
taxpayer. Petitioners also failed to seek a remedy that, if granted, would alleviate any
alleged tax burden or pecuniary loss. Accordingly, we affirm the circuit court’s judgment.
BACKGROUND
On October 22, 2012, City Council Bill 12-0152, also known as “TransForm
Baltimore,” was introduced, and assigned to the Council’s Land Use and Transportation
Committee (“the Committee”). Bill 12-0152 involved comprehensive rezoning in
Baltimore City.2 Over the next several years, the Committee held a public hearing on Bill
12-0152 that was recessed and reconvened numerous times. On October 20, 2016, the
Committee voted on a Committee Report, in which the Committee recommended that the
Council consider Bill 12-0152 favorably with amendments. On October 24, 2016, the
Council held a meeting and voted favorably on Bill 12-0152 with amendments. On
December 5, 2016, the Council voted to pass Bill 12-0152, the Mayor signed it, and it was
enacted as Ordinance 16-581. The Mayor and the Council President also signed the
accompanying Zoning Map, which was dated October 24, 2016. Ordinance 16-581 was to
take effect on June 5, 2017. As of the date it was enacted, Ordinance 16-581 stated, in
relevant part, that it was “ORDAINED[ t]hat the Zoning Map dated October 22, 2012[,]
and accompanying this Ordinance is enacted as a part of new City Code Article 32 –
2
According to Respondent, Baltimore City had not enacted a new, modernized
zoning code and zoning map since 1971.
-3-
Zoning.”
After Ordinance 16-581 was enacted, typographical errors in the Ordinance were
noticed, and, on February 27, 2017, City Council Bill 17-0021 was introduced. Bill 17-
0021 was entitled “Baltimore City Zoning Code – Legalization – Corrections[,]” and
included the following purpose paragraph:
FOR the purpose of legalizing new City Code Article 32 . . . as enacted by
Ordinance 16-581 . . . and edited, codified, and published by the Baltimore
City Department of Legislative Reference; further amending new Article 32
to correct various technical errors, omissions, and inconsistencies and to
correct, clarify, and conform various references and language; providing for
a special effective date; and generally relating to the zoning and development
laws of the City of Baltimore.
On April 5, 2017, the Committee held a public hearing on Bill 17-0021, and voted
favorably on the bill with amendments. On April 24, 2017, the Council held a meeting,
and approved amendments to Bill 17-0021. One of the amendments that was adopted was
the inclusion of the following language (with additions shown by capitalization, and
deletions shown by brackets):
That the Zoning Map dated [October 22, 2012] OCTOBER 24, 2016, and
accompanying this Ordinance, AS THAT MAP WAS SIGNED AND
APPROVED BY THE MAYOR AND CO-SIGNED BY THE PRESIDENT
OF THE CITY COUNCIL, BOTH UNDER DATE OF DECEMBER 5,
2016, is enacted as part of new City Code Article 32 – Zoning.
In other words, from the amended language, it appeared that reference to the October 22,
2012 Zoning Map, as opposed to the October 24, 2016 Zoning Map, was a typographical
error or inadvertent discrepancy. On May 8, 2017, the Council voted to pass Bill 17-0021.
On May 16, 2017, the Mayor signed Bill 17-0021, which was enacted as Ordinance 17-
015. Ordinance 17-015’s effective date was the same as Ordinance 16-581’s, i.e., June 5,
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2017.
Ten days later, on May 26, 2017, Petitioners filed in the circuit court a complaint
for declaratory judgment against Respondent, challenging the comprehensive rezoning,
adopted and enacted through Bill 12-0152/Ordinance 16-581 and Bill 17-0021/Ordinance
17-015, as ultra vires or illegal. In the complaint, Petitioners alleged that they were
Baltimore City taxpayers who were bringing the “action on behalf of all Baltimore City
taxpayers pursuant to the principle of taxpayer standing as set forth in” Bell, 442 Md. 539,
113 A.3d 639. And, according to Petitioners, the comprehensive rezoning would
“injuriously affect the property of Baltimore City taxpayers, who [would] suffer pecuniary
losses or increased taxes as a result.” In the complaint, among other things, Petitioners
alleged that various required notices were not mailed or published.
In the complaint, Petitioners also alleged the following in paragraphs thirty-six
through fifty:
36. The approval and enactment of the “October 22, 2012” Zoning Map
as part of Bill 12-0152/Ordinance 16-581 was ultra vires and illegal.
37. The “October 24, 2016” Zoning Map signed by the Mayor and City
Council President on December 5, 2016 had not been adopted by the []
Council.
38. The notice, hearing, and other due process requirements of the Land
Use Article and Baltimore City Zoning Ordinance were violated, both in
letter and in spirit, in the processing, approval[,] and enactment of new
Baltimore City Zoning Maps as part of Bill 12-0152/Ordinance 16-581 and
Bill 17-0021/Ordinance 17-015.
39. The ultra vires or illegal imposition of a new Zoning Map on
Baltimore City will cause Baltimore City taxpayers to suffer pecuniary losses
or tax increases.
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40. A Zoning Map adopted by ultra vires or illegal means lacks the
presumption of validity afforded in Maryland to lawful comprehensive
rezonings.
41. With no statute of limitations for claiming error in a comprehensive
rezoning, an unlawfully adopted Zoning Map will bring prolonged instability
to Baltimore City.
42. The presumption of validity will effectively be replaced by the
presumption of error, and rezoning applications based on allegations of
mistake in the comprehensive rezoning will be the norm rather than the
exception.
43. A Zoning Map adopted by ultra vires or illegal means will be
challengeable whenever a permit or zoning authorization is applied for or
issued.
44. A Zoning Map adopted by ultra vires or illegal means may
overburden the taxpayer-funded resources of City agencies, boards[,] and
commissions that review and issue permits and zoning authorizations.
45. A Zoning Map adopted by ultra vires or illegal means will place extra
burdens on the taxpayer-funded resources of the City Law Department,
which routinely defends decisions made by City agencies, boards[,] and
commissions.
46. The efforts by private entities and [Respondent] to respond to or
correct errors and allegations of mistake will be costly to Baltimore City
taxpayers.
47. Baltimore City real property will be plagued by uncertainty over
regulations as to the potential construction and use of buildings and
properties.
48. A Zoning Map adopted by ultra vires or illegal means may cause the
assessed value or market value of real property to erroneously increase or
decrease.
49. Property tax credits for the improvement of property may be
erroneously granted or denied.
50. Bonds may be issued to support the development of unlawfully
rezoned property.
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In the complaint, Petitioners sought declaratory judgment that Respondent had
failed to mail and publish certain notices; that Bill 17-0021/Ordinance 17-015 was “null
and void as to its adoption and enactment of a Baltimore City Zoning Map”; that the
adoption and enactment of the “Zoning Maps was ultra vires or illegal, and [thus] null and
void”; and that the Zoning Maps were “of no effect.”
On May 26, 2017, the same day that the complaint was filed, Petitioners filed a
motion for summary judgment and accompanying memorandum in support,3 in which they
argued:
The procedures by which [Respondent] adopted and enacted new
Baltimore City Zoning Maps, first in December of 2016 and later in May of
2017, are not found in the Land Use Article and Baltimore City Zoning
Ordinance. There were multiple[] egregious failures: failure to provide
Baltimore City property owners with notice of changes proposed to the
zoning or their properties; failure to conduct all required hearings; failure to
provide required hearing notice, both mailed and advertised; and[,] in the
case of the most recent action, failure to hold Bill 17-0021 over for one
regular City Council meeting before giving final approval to the new Zoning
Map. That Zoning Map, scheduled to become effective on June 5, 2017, was
adopted and enacted by ultra vires and illegal means and must not become
the new Baltimore City Zoning Map.
A few days later, on May 31, 2017, Petitioners filed a motion for a temporary
restraining order, seeking to block the Zoning Map from going into effect on June 5, 2017.
On June 2, 2017, Respondent filed an opposition to the motion. On the same date, the
circuit court conducted a hearing on the motion for a temporary restraining order. During
3
Petitioners also filed a motion for interlocutory injunctive relief. Respondent filed
an opposition to the motion. Because the circuit court later granted Respondent’s motion
to dismiss, it did not rule on the motion for interlocutory injunctive relief.
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the hearing, Petitioners’ counsel argued that Petitioners were bringing this case “as a
taxpayer suit, . . . [b]ased on the fact that the taxpayers of the City of Baltimore will be
taxed to the limit for challenges that will occur” to the Zoning Map. Petitioners’ counsel
contended that “irreparable harm” would occur to all Baltimore City taxpayers, in “that
permits will be issued under the new illegal zoning map . . . [t]hat will then cause
challenges[.]” When asked to clarify what the irreparable harm would be, Petitioners’
counsel asserted: “Irreparable harm is the City will be forced to defend [] multiple
violations of issuing a permit based on an illegal map.” Petitioners’ counsel contended that
the harm to Baltimore City taxpayers would be “higher [cost]s, more money spent[,]” and
that, “[b]ecause it’s a taxpayer’s suit in which monies will be expended by the City[,] that
will ultimately be bo[]rne by the taxpayer.”
The circuit court heard argument from Respondent’s counsel and brief rebuttal
argument from Petitioners’ counsel. At the conclusion of the hearing, ruling orally from
the bench, the circuit court denied the motion for a temporary restraining order. On the
same day, the circuit court issued an order denying the motion for a temporary restraining
order, stating, in relevant part:
[Petitioner]s have not shown by any “specific facts” in their motion, affidavit,
and memorandum that any harm will result. They assert that taxpayers
“may” suffer a pecuniary loss. This is insufficient for a motion for such
extraordinary relief. The list of potential burdens and uncertainty does not
bolster [Petitioner]s’ position. Without a defined harm, [Petitioner]s cannot
show a likelihood of success on the merits.
On June 5, 2017, the new Zoning Code and Map became effective.
On June 29, 2017, Respondent filed a motion to dismiss and/or for summary
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judgment and opposition to Petitioners’ motion for summary judgment, and an
accompanying memorandum of law. Respondent argued that Petitioners failed to establish
taxpayer standing for three reasons: (1) Petitioners failed to “allege a special interest in the
subject[ ]matter of the suit distinct from that of the general public”; (2) the allegedly illegal
and ultra vires acts had “no reasonable relationship to the likelihood of a potential tax
increase”; and (3) Petitioners failed to establish a nexus between the potential pecuniary
damage and the challenged act. (Cleaned up). As to the failure to allege a special interest,
Respondent asserted that Petitioners alleged a harm that was applicable to the general
public, and was not specific to them. Respondent maintained that taxes in Baltimore City
were not being raised as a result of the comprehensive rezoning, and zoning classifications
in the ordinances and accompanying Zoning Map had no relationship to taxes, as a
“property taxpayer’s tax rate is not based or premised upon his or her zoning
classification[.]” And, as to the nexus requirement, Respondent contended that Petitioners
were not seeking a remedy that, if granted, would alleviate an impact on taxes as alleged.
On July 19, 2017, Petitioners filed an opposition to the motion to dismiss and/or for
summary judgment. In pertinent part, Petitioners contended that they had taxpayer
standing, and that the relief they requested—voiding of the Zoning Maps—was an
available remedy. Petitioners argued that they had established taxpayer standing under
Bell, 442 Md. 539, 113 A.3d 639, and that “[a]dministration of an unlawfully updated
Zoning Map [would] be costly to the taxpayers.” Petitioners asserted that, in the complaint,
they had alleged “numerous negative impacts on the taxpayers if” the “unlawfully adopted
Zoning Map” were utilized, and that the allegations of the complaint demonstrated the
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necessary “nexus between the taxpayers and an unlawfully adopted Zoning Map[.]”
(Cleaned up).
On August 7, 2017, the circuit court conducted a hearing on the motion to dismiss.
During the hearing, Petitioners’ counsel contended that Petitioners had taxpayer standing,
and argued that the allegations of the complaint demonstrated the effects on taxpayers.
And, Petitioners’ counsel reiterated that, if the Zoning Map and ordinances stood as is,
there would “be substantial litigation against the City or about the City’s action, and that
is where the taxpayers will end up paying more taxes to support . . . an expanding law
department[.]” At the conclusion of the hearing, the circuit court held the matter sub curia.
One week later, on August 14, 2017, the circuit court issued an order granting the
motion to dismiss, stating, in relevant part:
FOUND that [Petitioner]s’ suit is a challenge to a purely legislative
action of the [] Council, and it is further
FOUND that [Petitioner]s do not allege a specific harm [that] is
unique to them or their property as described in [] Bell, 442 Md. 539[, 113
A.3d 639], and it is further
ORDERED that the Motion to Dismiss is GRANTED, as
[Petitioner]s lack standing to maintain this taxpayer’s challenge[.]
(Bolding and capitalization in original).
Petitioners filed a notice of appeal. On June 15, 2018, while this case was pending
in the Court of Special Appeals, Petitioners filed in this Court a petition for a writ of
certiorari, raising the following issue:
Did Petitioners sufficiently plead taxpayer standing to allow their challenge
to the enactment of new comprehensive zoning maps to be adjudicated, and
did the [c]ircuit [c]ourt err when it granted the Motion to Dismiss for lack of
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taxpayer standing?
On August 30, 2018, before the Court of Special Appeals heard oral argument or issued an
opinion, this Court granted the petition. See Floyd, 460 Md. 494, 190 A.3d 1037.
DISCUSSION
The Parties’ Contentions
Petitioners contend that they sufficiently pled taxpayer standing to permit a
challenge to the enactment of the new Zoning Maps to go forward on the merits, and that,
as such, the circuit court erred in granting the motion to dismiss on the ground of lack of
taxpayer standing. Petitioners argue that the circuit court’s grant of the motion to dismiss
essentially constituted a determination that there could never be taxpayer standing
sufficient to challenge comprehensive rezoning in Baltimore City. Petitioners assert that,
in the complaint, they alleged numerous potential effects that unlawful comprehensive
rezoning could have on Baltimore City taxpayers. Petitioners maintain that, in the
complaint, as to potential harm, they alleged, among other things, that “[t]he ultra vires or
illegal imposition of a new Zoning Map . . . will cause Baltimore City taxpayers to suffer
pecuniary losses or tax increases[,]” and that “[t]he efforts by private entities and
[Respondent] to respond to or correct errors and allegations of mistake will be costly to
Baltimore City taxpayers.”
Respondent counters that the circuit court properly granted the motion to dismiss on
the ground that Petitioners had failed to establish taxpayer standing. Respondent contends
that Petitioners failed to adequately demonstrate a special interest distinct from that of the
general public, and that the alleged harm, i.e., the allegedly illegal or ultra vires act, has no
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reasonable relationship to taxes in Baltimore City. Respondent argues that taxpayer
standing is usually satisfied in cases where taxpayers challenge a government action in the
form of “a large[-]scale public expenditure, capital investment, or transaction for which the
government could reasonably be expected to raise taxes to effectuate.” Respondent asserts
that, by contrast, in this case, the bills at issue were not spending or tax bills, taxes are not
being raised as a result of the enactment of the ordinances, and zoning classifications and
the Zoning Map have no relationship to taxes. Respondent maintains that Petitioners did
not clearly show potential pecuniary loss or a reasonable relationship to government
expenditure or taxation. Respondent contends that Petitioners failed to show the required
nexus for taxpayer standing and argues that there is no meaningful connection between the
specific allegedly illegal or ultra vires acts and the harms claimed.
Respondent argues that Petitioners fail to seek a remedy that, if granted, would
alleviate the tax burden they allege will result if the Zoning Map is allowed to remain in
place. Respondent asserts that Petitioners, in actuality, allege that Baltimore City will be
forced to expend funds to correct errors allegedly made under the Zoning Map and to enact
new legislation to replace the Zoning Map. Respondent maintains that the remedy
sought—nullification of the new Zoning Map, but not of the new Zoning Code—would
create chaos because Baltimore City would be governed by a Zoning Code that is designed
for a Zoning Map that would no longer be valid, and the remedy does not alleviate any
alleged pecuniary loss or increase in taxes.
As a final matter, Respondent contends that concluding that taxpayer standing exists
in this case would run counter to public policy as recognized in Bell, 442 Md. 539, 113
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A.3d 639, in which this Court eliminated property owner standing as a basis to maintain a
challenge to comprehensive rezoning. According to Respondent, permitting Petitioners to
proceed under their “theory of taxpayer standing would be no different than allowing
property owner standing to exist in the comprehensive rezoning context because every
taxpayer, like every property owner, could bring such a challenge.” (Emphasis omitted).
In a reply brief, Petitioners contend that applying taxpayer standing to a
comprehensive rezoning challenge as in this case does not conflict with or undermine the
doctrine of taxpayer standing.
Standard of Review
In State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 496-97, 92 A.3d
400, 426-27 (2014), this Court explained that we review without deference a trial court’s
grant of a motion to dismiss, stating:
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 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.
(Citation omitted). Similarly, where, in considering a motion to dismiss, a trial court
considers materials, such as affidavits, outside of the complaint (i.e., the complaint and
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documents attached thereto), we treat the trial court’s grant of a motion to dismiss as a
grant of summary judgment, and we review the matter without deference for legal
correctness. See Bell, 442 Md. at 552, 113 A.3d at 647.
Taxpayer Standing
In Maryland, “[c]hallengers to comprehensive zoning ordinances . . . are required
to satisfy the requirements of taxpayer standing, rather than property owner standing[,]” to
maintain their actions. Bell, 442 Md. at 575, 113 A.3d at 661.4 As we have stated:
“[P]laintiffs wishing to challenge in Maryland courts the legislative process and final action
adopting a comprehensive zoning are required to demonstrate taxpayer standing—the
standing doctrine applicable to judicial challenges to legislative actions.” Anne Arundel
Cty. v. Harwood Civic Ass’n, Inc., 442 Md. 595, 598, 113 A.3d 672, 674 (2015) (citation
omitted). Taxpayer standing is a “common law standing doctrine [that] 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.” Bell, 442 Md. at 576, 113 A.3d at 661 (cleaned up). Under the doctrine of
taxpayer standing, “[t]he taxpayer does not assert a private cause of action but, instead, that
4
In Bell, 442 Md. at 558, 113 A.3d at 650, we explained that property owner
standing generally exists where “an adjoining, confronting[,] or nearby property owner is
deemed, prima facie, to be specially damaged and, therefore, a person aggrieved[,]” or
where “a person whose property is far removed from the subject property . . . meets the
burden of alleging and proving that his [or her] personal or property rights are specially
and adversely affected.” (Cleaned up). And, in Bell, id. at 574-75, 113 A.3d at 660, we
concluded that “[e]xtending the doctrine of property owner standing to challenges to the
legislative process of adopting comprehensive zoning ordinances [would be] inconsistent
with our prior cases[.]”
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of his [or her] government. Therefore, a taxpayers’ suit is essentially a derivative
proceeding akin to a corporate shareholders’ suit.” State Ctr., 438 Md. at 541, 92 A.3d at
543 (cleaned up). The doctrine of taxpayer standing “exists to ensure that government acts
within the bounds of the law[,]” and to “protect [] citizen[s] from the consequence of []
unauthorized or illegal acts.” Bell, 442 Md. at 576, 113 A.3d at 661 (cleaned up).
Importantly, however, the doctrine of taxpayer standing does not “provide unfettered
access to the courts to citizens unhappy with all actions taken by [S]tate or local governing
bodies[.]” Id. at 576, 113 A.3d at 661.
As an initial matter, a complainant must demonstrate that he, she, or it is eligible
under the taxpayer standing doctrine; specifically, “[t]o establish eligibility to maintain a
suit under the taxpayer standing doctrine, a 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.” Id. at 577, 113 A.3d at 662 (cleaned up).5
After a complainant establishes eligibility to bring a suit, the complainant must, among
other things, show “a special interest in the subject[ ]matter of the suit distinct from that of
the general public.” Bell, 442 Md. at 578, 576, 113 A.3d at 662, 661 (cleaned up). The
“special interest” requirement is satisfied where a complainant alleges “both 1) an action
5
In State Ctr., 438 Md. at 547, 92 A.3d at 457, we explained that, “[f]or purposes of
[the] 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.” (Emphasis omitted). Stated otherwise, under the doctrine of taxpayer standing,
“a complainant’s standing rests upon the theoretical 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.” Id. at 547, 92 A.3d at 457.
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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.” Id. at 577, 113 A.3d at 662
(cleaned up).
As to the first requirement—that the government’s action is “illegal or ultra
vires”—we have observed that the requirement is “applied leniently and seems rather easy
to meet[ as] the taxpayer need not be right ultimately in his, her, or its contention, so long
as the allegation is advanced in good faith.” Id. at 578, 113 A.3d at 662 (cleaned up). The
second requirement—that the taxpayer has suffered a “specific injury”—“has been
interpreted repeatedly to require a showing that the action being challenged results in a
pecuniary loss or an increase in taxes.” Id. at 578, 113 A.3d at 662 (cleaned up). “The
harm alleged must be particularized and pecuniary, as opposed to harms to the general
public (e.g., changes to the neighborhood, increased traffic, or increased noise), and caused
potentially by the comprehensive rezoning.” Cty. Council of Prince George’s Cty. v.
Zimmer Dev. Co., 444 Md. 490, 509 n.10, 120 A.3d 677, 688 n.10 (2015) (citing Bell, 442
Md. at 578-79, 585, 113 A.3d at 662-63, 667). That said, “[t]he facts alleged need not lead
necessarily to the conclusion that taxes will increase; rather, the taxpayer must allege that
he, she, or it will suffer pecuniary damage potentially.” Bell, 442 Md. at 578, 113 A.3d at
663 (citation omitted).
Significantly, “there must be a ‘nexus’ between the showing of potential pecuniary
damage and the challenged act.” Id. at 579, 113 A.3d at 663 (citation omitted). The
“nexus” requirement has been “perhaps the most frequent stumbling block for
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complainants claiming taxpayer standing.” Id. at 579, 113 A.3d at 663 (cleaned up).
Indeed, to demonstrate a nexus, “the taxpayer must be asserting a challenge and seeking a
remedy that, if granted, would alleviate the tax burden on that individual and others;
otherwise, standing does not exist.” Id. at 579, 113 A.3d at 663 (citation omitted). “There
must be[,] therefore[,] a connection between the alleged[ly] illegal or ultra vires act, the
harm caused to the taxpayer, and the potential for the remedy to alleviate the harm
incurred.” Id. at 579, 113 A.3d at 663 (citation omitted). And, “th[e] nexus must be true
not only for the complainant, but also [for] all similarly situated taxpayers.” Id. at 579, 113
A.3d at 663 (citation omitted).
In Bell, id. at 579-80, 113 A.3d at 663-64, we observed that “taxpayer standing has
been pled successfully in a number of cases pertaining to executive, administrative, or
quasi-land use actions[,]” and “in cases challenging legislation generally.” (Citations
omitted). We noted that “[c]hallenges to comprehensive rezoning ordinances are brought
often by parties whose properties were rezoned, usually to categories less desirable by the
owner or contract purchaser than enjoyed previously.” Id. at 580, 113 A.3d at 664
(citations omitted).
In Boitnott v. Mayor and City Council of Balt., 356 Md. 226, 228, 234, 738 A.2d
881, 882 (1999), a case involving a challenge to the validity of a Baltimore City ordinance
amending an urban renewal plan, this Court observed that the plaintiffs had successfully
alleged taxpayer standing. In that case, several taxpayers filed a complaint for declaratory
relief and a motion for an interlocutory injunction against Respondent, seeking to invalidate
the ordinance. See id. at 232, 738 A.2d at 884. The trial court determined that the
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ordinance was valid, and the Court of Special Appeals affirmed. See id. at 233-34, 738
A.2d at 885. The plaintiffs petitioned for a writ of certiorari, arguing that the ordinance
was invalid for several reasons, including that property could not be changed from private
to public ownership after the adoption of an urban renewal plan, and that a zoning
ordinance could not be incorporated by reference into an urban renewal plan. See id. at
234-35, 738 A.2d at 885-86. In this Court, before addressing the merits of the case, we
briefly addressed the standing of the plaintiffs, and observed that the plaintiffs had
sufficiently alleged taxpayer standing in the complaint. See id. at 234, 738 A.2d at 885.
Although standing was not at issue before this Court because the trial court had not
dismissed Boitnott for lack of standing, see id. at 233 n.7, 738 A.2d at 885 n.7, we stated:
“The allegation by the [plaintiff]s that the City has expended [t]wenty million dollars in
developing Inner Harbor East prior to the present litigation is [a] sufficient allegation of
potential pecuniary damage by way of [a] tax increase to withstand a standing challenge.”
Id. at 234, 738 A.2d at 885.
In Inlet Assocs. v. Assateague House Condo. Ass’n, 313 Md. 413, 417, 441, 545
A.2d 1296, 1298, 1310 (1988)—“a taxpayers’ action to enjoin, and conversely a real estate
developer’s suit to compel, the conveyance of a municipality’s public right-of-way in part
of a dedicated street, together with riparian rights[6] purported to accrue as a result of the
municipality’s interest in the dedicated street”—this Court agreed with the trial court that
6
A “riparian right” is “[t]he right of a landowner whose property borders on a body
of water or watercourse. [] Such a landowner traditionally has the right to make reasonable
use of the water.” Riparian right, Black’s Law Dictionary (10th ed. 2014).
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the plaintiffs had taxpayer standing. In that case, various taxpayers and property owners
sued Ocean City, its Mayor, and the City Council President, alleging that public property
was being given to private persons without adequate consideration. See Inlet Assocs., 313
Md. at 422, 545 A.2d at 1300. The real estate developer intervened as a defendant and
contended that the plaintiffs lacked standing. See id. at 423, 545 A.2d at 1301. In relevant
part, among other things, the trial court determined that the plaintiffs had standing. See id.
at 424, 545 A.2d at 1301. The trial court “found that [the plaintiffs] were taxpayers and
property owners in Ocean City, all but one of whom lived in close proximity to the project
proposed by” the developer. Id. at 440, 545 A.2d at 1310. The trial court determined that
the plaintiffs had sufficiently alleged that they suffered “a special pecuniary injury” that
“flowed from the ultra vires action of the municipality, i.e., that the value of their properties
may be adversely impacted by the [] proposal and that they had also suffered damage,
having shown that their taxes might be increased as a result of the project.” Id. at 440, 545
A.2d at 1310.
In this Court, the developer contended that the plaintiffs lacked standing because
they failed to establish “that the proposed conveyances of municipal property caused them
any special damage distinct in character from any injury sustained by members of the
general public.” Id. at 440, 545 A.2d at 1310. And, the developer argued that the plaintiffs
had failed to “show that the challenged action would increase their taxes or otherwise cause
them any pecuniary loss.” Id. at 440, 545 A.2d at 1310. We observed that a “taxpayer
plaintiff is not required to allege facts [that] necessarily lead to the conclusion that taxes
will be increased; rather, the test is whether the taxpayer reasonably may sustain a
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pecuniary loss or a tax increase—whether there has been a showing of potential pecuniary
damage.” Id. at 441, 545 A.2d at 1310 (cleaned up). We “agree[d] with the trial [court]
that the plaintiffs had standing[,]” explaining:
It was alleged[,] and sufficient proof [was] adduced[,] that the [] unit owners
looked directly upon [the developer]’s proposed project, including [a]
restaurant. There was some evidence that the municipality’s property
interests were valued in excess of one million dollars[,] and[,] if it received
fair value for it[, Ocean] City might reduce taxes or forego a tax increase in
the future; and that there would be a loss of substantial revenue from the
metered parking spaces on that part of [the s]treet[,] which was to be closed[,]
and that this would have an adverse impact on [the] plaintiffs’ taxes. There
was also evidence that guests and invitees of the property owners now use
that part of [the s]treet to be conveyed to [the developer] for parking[,] and
that this usage enhances the value of their respective properties. It was also
alleged and shown that[,] as a 75-foot wide street, [the s]treet was of extreme
value in itself; that, in particular, it provided public access to the [Sinepuxent
B]ay, the loss of which would adversely affect the value and use of the
plaintiffs’ properties; that the restaurant in particular would obstruct the view
of the bay and lessen the value of the plaintiffs’ properties. In these ways,
the plaintiffs claimed that they would be specially harmed in a manner
distinct from the general public[,] in that their properties would [] decrease[]
in value, as found by the trial [court]. And, finally, the plaintiffs alleged
that[,] as taxpayers[,] they would sustain a loss from the expenditure of City
funds [that] would be necessary for the City to defend the legality of the
proposed conveyances.
Id. at 441-42, 545 A.2d at 1310-11. We rejected the developer’s contention that the
plaintiffs’ taxes would likely decrease, rather than increase, if the project were to proceed,
stating that, “in determining a taxpayer’s pecuniary interest resulting from a[n allegedly]
unlawful governmental act, the court will not weigh potential gains against potential losses
and speculate on a net result.” Id. at 442, 545 A.2d at 1311 (citation omitted). We
concluded that, based on the record, we could not say that the trial court had “erred in
finding [] standing[.]” Id. at 443, 545 A.2d at 1311.
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In State Ctr., 438 Md. at 583, 92 A.3d at 479, this Court concluded that the plaintiffs
had taxpayer standing. State Ctr. concerned “a $1.5 billion, multi-phase redevelopment
projected 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 [], without burdening unduly the State’s capital budget.”
Id. at 473, 92 A.3d at 413. To that end, the State solicited and selected a master developer,
and the master developer and State agencies executed various agreements concerning the
project. See id. at 473-74, 92 A.3d at 413. Fifteen plaintiffs, all of whom were taxpayers
of the State and owners of property in downtown Baltimore—“many with available office
space for rent”—filed suit seeking an injunction to halt the project, and a declaratory
judgment that the formative contracts for the project were void. See id. at 474, 92 A.3d at
413. We considered whether the plaintiffs had either property owner standing or taxpayer
standing. See id. at 474, 92 A.3d at 413.7
As to taxpayer standing, we stated, in relevant part, that the plaintiffs’ allegation
that the State had violated applicable procurement laws by entering into formative contracts
for the project through means other than a public competitive bidding process was “alone
[] sufficient (for pleading purposes) to meet th[e] element of the requisite injury component
of the taxpayer standing doctrine as to [the plaintiff]s for those challenges.” State Ctr., 438
Md. at 570, 92 A.3d at 471. We also concluded that there was a nexus between the
plaintiffs’ allegations of taxpayer harm and the allegedly illegal acts of public officials.
7
This Court concluded that the plaintiffs did not have property owner standing. See
State Ctr., 438 Md. at 538, 92 A.3d at 451.
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See id. at 577, 92 A.3d at 475. We noted that the plaintiffs had alleged that: the project
was expected to cost $1.5 billion; a State agency had assumed the obligation to design,
finance, construct, operate, and maintain an underground garage for the project, and agreed
to contribute up to $28 million in taxpayer funds toward the cost of the garage design and
construction; and issuance of $33 million in bonds supported by taxpayer revenues to build
the parking garage had been approved. See id. at 577, 92 A.3d at 475. Moreover, the
plaintiffs had alleged that they would “uniquely bear the excessive costs” and increased
taxes as a result of the State’s failure to use a competitive bidding process. Id. at 579, 92
A.2d at 476-77. We determined that these “allegations [were] sufficient” to establish a
nexus. Id. at 580, 92 A.3d at 477. Finally, we stated that, although a plaintiff must make
“a clear showing that a monetary burden is alleged[,]” a taxpayer is “not required to prove
an exact amount of pecuniary damage that he[,] she[, or it] will suffer.” Id. at 580, 92 A.3d
at 477. As such, we determined that the plaintiffs had “pleaded sufficiently a loss of
revenue from the public funds as contributed by them as taxpayers.” Id. at 581, 92 A.3d at
478. This Court ultimately “conclude[d] that [the plaintiff]s pleaded [the] taxpayer
standing doctrine sufficiently[.]” Id. at 583, 92 A.3d at 479.
In Citizens Planning and Housing Ass’n v. Cty. Exec. of Balt. Cty., 273 Md. 333,
345, 329 A.2d 681, 687 (1974), this Court determined that plaintiffs had taxpayer standing.
In that case, the plaintiffs—“a metropolitan-area civic organization, a group of
neighborhood and area civic improvement associations, and several individuals alleging
[that] they [were] residents, citizens, taxpayers[,] and property owners of Baltimore
County”—alleged that the Baltimore County Executive and Baltimore County
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Administrative Officer “initiated a reorganization of the Office of Planning and Zoning in
violation of . . . the Baltimore County Charter, which confer[red]” such responsibility upon
the Baltimore County Council. Id. at 334-35, 329 A.2d at 682. The plaintiffs alleged
“special damages” in two ways: (1) the actions of the defendants would make the Office
less efficient, resulting in an impairment of the property tax base, “therefore causing a
prospective pecuniary loss incident to the increase in the amount of taxes the [p]laintiffs
and other [] taxpayers [would] be constrained to pay”; and (2) “a charter[-]created
mechanism to assure proper planning and zoning practices and processes within
[Baltimore] County had been made less efficient and more costly[,] and [the plaintiffs’]
property [stood] to depreciate in value[.]” Id. at 335-36, 329 A.2d at 682-83. In other
words, the plaintiffs anticipated pecuniary loss and higher taxes as a result of the allegedly
ultra vires and illegal actions of the defendants. See id. at 337, 329 A.2d at 683. We
observed that “[t]here [was] considerable force in the argument . . . that[,] if the
reorganization [was] unlawful, the expenditure of public funds to finance that program may
thereby be open to question.” Id. at 343, 329 A.2d at 686. We further stated that “the
waste of tax-derived monies that will have resulted from funding positions declared to be
illegally created [w]as sufficient to confer standing.” Id. at 343, 329 A.2d at 686.
Moreover, we noted that it was “not illogical to expect that the county might incur some
expense or loss, to the detriment of the taxpayers, including [plaintiff]s, in an effort to fend
off the charges of illegality. Such potential losses alone may be sufficient to establish
standing.” Id. at 343, 329 A.2d at 687 (citation omitted).
Similarly, in other cases, this Court has concluded that taxpayer standing existed
- 23 -
where a local government had expended public funds or levied taxes. For example, in
James v. Anderson, 281 Md. 137, 139-40, 142, 377 A.2d 865, 866-67, 868 (1977), where
an individual challenged a county executive’s expenditure of $5 million in bond proceeds
for the construction of a new courthouse, this Court concluded that taxpayer standing
existed, explaining: “The plaintiff challenges, as ultra vires, the actions of a County
Executive, and points to a claimed decrease in efficiency [that] would result from the
alleged ultra vires acts. . . . [T]his is sufficient for a taxpayer of the county involved to
maintain a suit.” (Cleaned up). And, in McKaig v. Mayor and City Council of
Cumberland, 208 Md. 95, 103, 116 A.2d 384, 388 (1955), this Court concluded that the
plaintiff had sufficiently alleged that he would be “pecuniarily affected[,]” and thus, had
standing. In that case, the plaintiff challenged “an agreement between the City [of
Cumberland] and the State Roads Commission for the construction of a crosstown
expressway or viaduct and other highways in the [c]ity[.]” Id. at 99, 116 A.2d at 386. In
concluding that there was standing, we noted that the plaintiff had alleged that “$70,000 a
year [was] to be diverted for seven years from moneys [that] would otherwise be available
to the [c]ity for highway maintenance and like purposes and [was] to be used to help [] pay
the cost of construction of the expressway[,]” and the circumstance that the city’s budget
“provide[d] more than $127,000 for streets and alleys [made clear] that these funds will
have to be replaced by moneys derived through increased taxes, of which the [plaintiff
would] have to pay his share.” Id. at 102, 116 A.2d at 388.
By contrast, in Bell, 442 Md. at 546, 583, 113 A.3d at 643, 665, where the plaintiffs
challenged the County Council for Anne Arundel County’s “adoption of a comprehensive
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zoning ordinance for a large portion of Anne Arundel County[,]” this Court held that the
plaintiffs lacked taxpayer standing. We observed that, in the complaint, the plaintiffs had
alleged that “the actions taken by [Anne Arundel] County in adopting the [ordinance]
constituted ‘illegal spot zoning.’” Id. at 583-84, 113 A.3d at 666. Nevertheless, the
plaintiffs were also required to show “that the [allegedly] illegal action [would] result in a
pecuniary loss or an increase in taxes.” Id. at 584, 113 A.3d at 666. As to that requirement,
we observed that, in the complaint, the plaintiffs had alleged an increase in traffic, the
destruction of a forest buffer, and increased noise, and had alleged that their “right to
participat[e] in zoning changes and in the enforcement of the orderly planning procedures
specified in the County Code ha[d] been harmed.” Id. at 584, 113 A.3d at 666 (footnote
omitted). Significantly, however, the plaintiffs had “not allege[d] that their taxes would be
increased[,] or that the [allegedly] illegal action would result in any other form of pecuniary
loss.” Id. at 584, 113 A.3d at 666 (footnote omitted). As such, we concluded that the
plaintiffs “did not satisfy the requirements of taxpayer standing[,]” explaining:
Frustration with increased traffic, annoyance with increased noise, and
violations of a right (if any) to participate in zoning changes are not the sort
of harms with which taxpayer standing is concerned. Even if these harms
were within the purview of taxpayer standing, they are not unique to the
[plaintiff]s, as opposed to the general public.
Id. at 585, 113 A.2d at 667 (footnote omitted).
And, in Citizens Comm. of Anne Arundel Cty., Inc. v. Cty. Comm’rs of Anne
Arundel Cty., 233 Md. 398, 399-400, 197 A.2d 108, 108-09 (1964), where “an incorporated
citizens committee and a group of individual county residents, citizens[,] and taxpayers”
challenged the constitutionality and validity of local laws authorizing the operation of
- 25 -
gambling devices and activities, this Court held that the plaintiffs had failed to establish
taxpayer standing. This Court observed that it was undisputed that the incorporated
citizens committee lacked standing to sue. See id. at 400, 197 A.2d at 109. We stated that,
although the individual plaintiffs had alleged that “carrying out the provisions of the
alleged[ly] unconstitutional and invalid laws . . . ha[d] resulted in loss and damage to them
and all other taxpayers in the county, they have failed to prove or show any special damage
or loss [] peculiar to themselves as taxpayers or otherwise.” Id. at 400, 197 A.2d at 109.
We rejected the plaintiffs’ arguments that they suffered, or would potentially suffer,
pecuniary loss and damage in two ways. See id. at 404, 197 A.2d at 111-12. First, the
plaintiffs had argued pecuniary loss due to “the cost of administering [an] amusement
licensing program” that came from general funds. Id. at 404, 197 A.2d at 111. We noted
that this fact was undisputed, but we observed that “it was also shown that this situation
was not restricted to the [plaintiff]s[,] and that the revenue from the licensing program
exceeded the cost of administration by more than $500,000.” Id. at 404, 197 A.2d at 111.
Thus, we concluded that it appeared “obvious” that the plaintiffs had “suffered no
pecuniary loss due to the fact that some of the administration expenses were paid out of
general public funds.” Id. at 404, 197 A.2d at 111.
As to the plaintiffs’ second argument, we explained:
Their second argument[—]to the effect that[,] should the statutes and
ordinances be declared void in a fiscal year prior to the time that the bulk of
the revenue is received from the licensing program, the taxpayers would be
burdened to meet all expenditures and obligations incurred thereunder[—
]seems to be an effort to attain standing by raising themselves to that position
by their own ‘bootstraps’ in that they seek to show damage to themselves,
not by what has occurred or is likely to occur, of which there is no proof, but
- 26 -
by what might occur should they be successful in having the statutes and
ordinances declared unconstitutional or invalid. Even if there were evidence
that the county had expended general public funds in anticipation of revenues
from the amusement licensing program, it is evident that the taxpayers would
be damaged by a discontinuance of the program rather than a continuance of
it. In any event[,] it is clear that the loss or damage the [plaintiff]s claim to
have sustained has likewise been proportionately suffered by all other
taxpayers in the county.
Id. at 404, 197 A.2d at 111-12. And, we determined that the plaintiffs had failed to prove
that they had a sufficient interest to test the constitutionality or validity of the statutes at
issue. See id. at 405, 197 A.2d at 112. See also State Ctr., 438 Md. at 573, 92 A.3d at 472-
73 (We described the holding in Citizens Committee, 233 Md. at 405, 197 A.2d at 112, as
follows: “[T]he Court held that the taxpayer[s] did not prove or show that [they] had a
sufficient interest to test the constitutionality or validity of the pertinent statute[s] because
the remedy sought, if granted, would not decrease the taxpayer’s burden.”).
Analysis
Here, we hold that Petitioners failed to allege facts sufficient to establish taxpayer
standing to maintain a challenge to the comprehensive rezoning ordinances and the Zoning
Map. We conclude that Petitioners failed to show a special interest in the subject matter
of this case distinct from that of the general public by failing to show that the allegedly
illegal or ultra vires acts by Respondent may reasonably result in a pecuniary loss or an
increase in taxes. Moreover, we determine that Petitioners failed to demonstrate a nexus
between any alleged potential pecuniary harm and the challenged act, i.e., a connection
between the allegedly illegal or ultra vires act and the harm caused to the taxpayer.
Petitioners also failed to seek a remedy that, if granted, would alleviate any alleged tax
- 27 -
burden or pecuniary loss that would result if the Zoning Map remains in place. As such,
we hold that the circuit court was correct in granting the motion to dismiss.
To maintain a challenge to the comprehensive rezoning ordinances at issue,
Petitioners must satisfy the requirements of taxpayer standing. See Bell, 442 Md. at 575,
113 A.3d at 661. As an initial matter, Petitioners have sufficiently demonstrated eligibility
to maintain the action under the taxpayer standing doctrine by alleging in the complaint
that they are Baltimore City taxpayers and that the suit was brought on behalf of all other
Baltimore City taxpayers. See id. at 577, 113 A.3d at 662 (“To establish eligibility to
maintain a suit under the taxpayer standing doctrine, a 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.” (Cleaned up)). Indeed, in the complaint,
Petitioners specifically alleged that each of them is a “Baltimore City taxpayer” and that
they were bringing the “action on behalf of all Baltimore City taxpayers pursuant to the
principle of taxpayer standing as set forth in” Bell.
Establishing eligibility to maintain a suit under the taxpayer standing doctrine,
however, is but the first part of satisfying the requirements of taxpayer standing.
Petitioners must also show “a special interest in the subject[ ]matter of the suit distinct from
that of the general public.” Id. at 576, 113 A.3d at 661 (cleaned up). Based on the
allegations in this case, Petitioners fail to satisfy the special interest requirement. With
respect to the first part of the special interest requirement—i.e., the illegal or ultra vires
requirement—a plaintiff must allege an action by a municipal corporation or public official
that is illegal or ultra vires, and we apply the requirement “leniently” and do not require
- 28 -
that a plaintiff be ultimately correct in his or her contention, “so long as the allegation is
advanced in good faith.” Id. at 578, 113 A.3d at 662 (citation omitted). To be sure, in this
case, in light of the leniency with which the illegal or ultra vires requirement is to be
applied, we have no difficulty in concluding that Petitioners sufficiently alleged illegal or
ultra vires acts by Respondent. Indeed, in the complaint, Petitioners alleged numerous
illegal or ultra vires acts by Respondent related to the adoption and enactment of the
ordinances and Zoning Map. For example, Petitioners alleged that Respondent violated
applicable notice, hearing, and other due process requirements. Thus, viewed leniently,
the allegations of the complaint satisfy the requirement that a plaintiff allege governmental
action that is illegal or ultra vires.
Petitioners do not fare so well with respect to the second part of the special interest
requirement, also known as the specific injury requirement. In Bell, id. at 577, 113 A.3d
at 662, we explained that a plaintiff must show that the allegedly illegal or ultra vires
“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.” (Cleaned up). This
means that a plaintiff must show “that the action being challenged results in a pecuniary
loss or an increase in taxes[,]” id. at 578, 113 A.3d at 662 (cleaned up), and that “[t]he harm
alleged must be particularized and pecuniary, as opposed to harms to the general public . .
. , and caused potentially by the comprehensive zoning[,]” Zimmer Dev., 444 Md. at 509
n.10, 120 A.3d at 688 n.10 (citation omitted).
In this case, Petitioners have failed to show a special interest in the subject matter
of this case distinct from that of the general public by failing to sufficiently allege pecuniary
- 29 -
loss or an increase in taxes. Put plainly, Petitioners simply have not shown that the
allegedly illegal or ultra vires acts by Respondent may result in a pecuniary loss or an
increase in taxes. Rather, the allegations of the complaint demonstrate that Petitioners’
theory of pecuniary loss or increase in taxes is vague and not easily understandable. At
oral argument, Petitioners’ counsel argued that Petitioners had sufficiently alleged
pecuniary loss and an increase in taxes, and drew this Court’s attention to paragraphs 39
through 50 of the complaint, set forth above. A review of the complaint, however,
demonstrates otherwise. In the complaint, at paragraph 39, Petitioners baldly alleged that
“[t]he ultra vires or illegal imposition of a new Zoning Map on Baltimore City will cause
Baltimore City taxpayers to suffer pecuniary losses or tax increases.” Petitioners did not
allege, with any explanation or particularity, the pecuniary losses or tax increases expected
or how the new Zoning Map potentially would result in such harm. Petitioners simply
stated that pecuniary loss and tax increases would occur. This is a bare allegation that, in
and of itself, is insufficient to establish taxpayer standing. Were we to conclude otherwise,
anyone could establish taxpayer standing by merely using the magic words “pecuniary loss
and an increase in taxes.”
Similarly, in paragraphs 44 and 45, Petitioners alleged that adoption of the Zoning
Map by ultra vires or illegal means could “overburden the taxpayer-funded resources of
City agencies, boards[,] and commissions that review and issue permits and zoning
authorizations[,]” and would “place extra burdens on the taxpayer-funded resources of the
City Law Department[.]” The meaning of these allegations is difficult to discern. More
importantly, the allegations fall far short of alleging any pecuniary loss or increase in taxes
- 30 -
potentially caused by the comprehensive rezoning, and instead appear to refer to potential
costs caused by defending challenges to the comprehensive rezoning and Zoning Map. In
addition, in paragraph 50 of the complaint, Petitioners alleged that “[b]onds may be issued
to support the development of unlawfully rezoned property.” Again, this allegation lacks
any explanation or specificity. Overall, the complaint fails to allege any injury resulting in
a pecuniary loss or an increase in taxes due to the comprehensive rezoning.
In the complaint, Petitioners alleged harm that has no connection whatsoever to a
pecuniary loss or tax increase. For example, in paragraph 40 of the complaint, Petitioners
alleged that “[a] Zoning Map adopted by ultra vires or illegal means lacks the presumption
of validity afforded in Maryland to lawful comprehensive rezonings.” And, in paragraph
41, Petitioners alleged that “an unlawfully adopted Zoning Map w[ould] bring prolonged
instability to Baltimore City” because there is “no statute of limitations for claiming error
in a comprehensive rezoning[.]” The alleged harms—lack of presumption of validity and
instability—are not the types of injury on which taxpayer standing is predicated. These
types of alleged harms have no relationship to the expenditure of public funds or taxation
in Baltimore City. The comprehensive rezoning ordinances are not spending or tax bills,
and there was no well-pled allegation that taxes were, or would be, raised as a result of the
enactment of the ordinances, or that the enactment of the ordinances would result in
pecuniary loss.
Moreover, we determine that, even had Petitioners satisfied the specific injury part
of the special interest requirement, Petitioners failed to establish taxpayer standing because
they failed to show a nexus between the potential pecuniary damage and the challenged
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act. See Bell, 442 Md. at 579, 113 A.3d at 663. As we explained in Bell, id. at 579, 113
A.3d at 663, the nexus requirement “is perhaps the most frequent stumbling block for
complainants claiming taxpayer standing” because, to demonstrate a nexus, “the taxpayer
must be asserting a challenge and seeking a remedy that, if granted, would alleviate the tax
burden on that individual and others; otherwise, standing does not exist.” (Cleaned up).
Stated otherwise, “[t]here must be . . . a connection between the alleged[ly] illegal or ultra
vires act, the harm caused to the taxpayer, and the potential for the remedy to alleviate the
harm incurred.” Id. at 579, 113 A.3d at 663 (citation omitted). Here, there is no meaningful
connection between the allegedly illegal or ultra vires acts and the harms claimed; i.e.,
there is no connection between the comprehensive rezoning and any alleged pecuniary loss
or tax increase. Put simply, a sufficient nexus was not alleged.
In the complaint, Petitioners alleged that Respondent engaged in illegal or ultra
vires acts by enacting the Zoning Map without the required notices, publication, and public
hearings. Significantly, however, the harms alleged are not related to those allegedly
illegal or ultra vires acts. As explained above, Petitioners alleged vague, unspecified harm;
and any alleged potential pecuniary loss or tax increase is simply not related to lack of
notice, publication, and public hearings. Rather, the potential pecuniary loss or tax
increase, as alleged in the complaint, appears to hinge on the increase in taxes that
Petitioners posit will occur as a result of challenges to zoning under the new Zoning Map
to, among other things, “respond to or correct errors and allegations of mistake[.]” As best
as we can glean, Petitioners’ main claim of increased tax burden appears to be based on
the allegation that an invalidly enacted Zoning Map will result in Baltimore City having to
- 32 -
raise taxes to pay for the legal defense to litigation that Petitioners predict will arise from
an allegedly unlawful Zoning Map. Petitioners’ reasoning is circular, and depends on the
Zoning Map being, in fact, invalid, and on taxpayers challenging the Zoning Map. In other
words, the harms alleged are unrelated to Respondent’s allegedly illegal or ultra vires
actions.
Additionally, Petitioners failed to seek a remedy that, if granted, would alleviate any
alleged tax burden or pecuniary loss that would result if the Zoning Map remains in place.
In the complaint, as to the remedy, Petitioners sought declarations that Respondent failed
to comply with applicable notice, publication, and public hearing requirements in adopting
and enacting the Zoning Map, and that the Zoning Map was null and void. However, it is
difficult to comprehend how nullifying the Zoning Map would alleviate an alleged tax
burden, which depends on challenges being made to the Zoning Map. In short, we fail to
discern not only a nexus between the allegedly illegal or ultra vires acts and the harms
allegedly caused to taxpayers, but also any nexus between the requested remedy and its
ability to alleviate the alleged harms.
As a final matter, we note that this case’s circumstances are readily distinguishable
from cases in which this Court has concluded or observed that plaintiffs had established
taxpayer standing to maintain their actions. Significantly, Petitioners failed to allege with
any particularity or specificity the expenditure of public funds or an increase in taxes
potentially resulting from the allegedly illegal or ultra vires acts. By contrast, in several
cases in which this Court concluded or observed that taxpayer standing had been
established, the plaintiffs had specifically alleged pecuniary loss or increased taxes. For
- 33 -
example, in Boitnott, 356 Md. at 234, 738 A.2d at 885, the plaintiffs alleged that Baltimore
City had expended $20 million in development costs prior to the litigation, and we observed
that such an allegation was sufficient to show “potential pecuniary damage by way of [a]
tax increase[.]” In State Ctr., 438 Md. at 577, 92 A.3d at 475, the plaintiffs alleged that the
project at issue was expected to cost $1.5 billion, that a State agency had agreed to
contribute up to $28 million in taxpayer funds toward the cost of designing and
constructing an underground garage for the project, and that issuance of $33 million in
bonds supported by taxpayer revenues to build the garage had been approved. In that case,
we determined that the plaintiffs “pleaded sufficiently a loss of revenue from the public
funds as contributed by them as taxpayers.” Id. at 581, 92 A.3d at 478. Similarly, in James,
281 Md. at 139, 377 A.2d at 866, the plaintiff alleged that the county executive had
expended $5 million in bond proceeds for the construction of a new courthouse. And, in
McKaig, 208 Md. at 102, 116 A.2d at 388, the plaintiff had alleged that $70,000 per year
for seven years was to be diverted from a city’s highway maintenance funds to help pay
for the cost of construction of an expressway, and that the city’s budget provided for more
than $127,000 for streets and alleys that would have to be replaced by funds derived from
increased taxes.
In this case, however, Petitioners failed to make any allegation of the kind like those
made by plaintiffs in Boitnott, State Ctr., James, or McKaig. Indeed, Petitioners did not
allege that Baltimore City has expended funds or that taxes have been increased as a result
- 34 -
of the enactment of the comprehensive rezoning ordinances and Zoning Map.8 We reiterate
that Petitioners’ allegations of harm are imprecise and, for the most part, undefined, and
do not pertain to a type of loss caused by the comprehensive zoning, but rather a type of
loss caused by the cost of defending against challenges like the one brought by Petitioners.
We observe that this case is similar to Bell, 442 Md. at 584-85, 113 A.3d at 666-67, in
which this Court determined that the plaintiffs had failed to establish taxpayer standing
because they failed to allege with any particularity “that their taxes would be increased or
that the illegal action would result in any other form of pecuniary loss.” (Footnote omitted).
Accordingly, for all the reasons set forth above, we hold that Petitioners did not
satisfy the requirements of taxpayer standing, and that the circuit court properly granted
the motion to dismiss.
JUDGMENT OF THE CIRCUIT COURT FOR
BALTIMORE CITY AFFIRMED. PETITIONERS
TO PAY COSTS.
8
We note that we do not hold that a complainant must allege a specific monetary
amount to establish taxpayer standing; rather, that happened to be the circumstance in each
Boitnott, State Ctr., James, and McKaig. Nothing in our opinion should be read as creating
a requirement that a complainant allege, in the form of a specific monetary amount, the
harms that were caused by the allegedly illegal or ultra vires act. Rather, as we have stated,
to satisfy the “special interest” requirement, a complainant must allege that the illegal or
ultra vires act “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.” Bell, 442 Md. at
577, 113 A.3d at 662 (cleaned up). And, Petitioners have failed to do so here.
- 35 -
Circuit Court for Baltimore City
Case No.: 24-C-17-003021
Argued: November 30, 2018
IN THE COURT OF APPEALS
OF MARYLAND
No. 35
September Term, 2018
JOAN FLOYD, et al.
v.
MAYOR AND CITY COUNCIL OF
BALTIMORE
Barbera, C.J.
Greene
McDonald
Watts
Hotten
Getty,
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Concurring Opinion by Adkins, J., which
Barbera, C.J., and McDonald, J., join.
Filed: April 1, 2019
I fully agree with the Majority opinion that Floyd has failed to allege sufficient facts
to establish taxpayer standing. Most respectfully, I write this concurring opinion in
recognition that the history of what constitutes “special interest” for taxpayer standing in
Maryland is, as we have recently said, “disorganized,” as a whole, and “at times, seemingly
contradictory . . . .” State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 540–
41 (2014). Judge Harrell, authoring State Center, undertook a close examination of that
history in an effort to clarify the doctrine and, in my estimation, succeeded in untangling
the web of earlier cases. For this reason, when examining a taxpayer standing issue, I tether
my analysis to State Center, eschewing any earlier law that is ambiguous or inconsistent
therewith.
State Center explained that to establish eligibility to bring a taxpayer suit, the
plaintiff must demonstrate that: (a) “the complainant is a taxpayer,” and (b) “the suit is
brought, either expressly or implicitly, on behalf of all other taxpayers.” Id. at 547. The
second broad requirement is that parties must assert a “special interest,” alternatively
referred to as the “special damage” requirement. Special interest requires a taxpayer to
allege: (i) an action by a municipal corporation or public official that is illegal or ultra
vires; and (ii) that the action may injuriously affect the taxpayer’s property, meaning that
it reasonably may cause an increased burden relating to taxation. See id. at 540. These are
known as the (1) “illegal or ultra vires act” prong, and (2) the “specific injury” prong. See
id. at 555–56.
In State Center, we examined three discrete topics as part of the “specific injury”
prong: the type of harm alleged, the nexus between the alleged harm and the illegal or ultra
vires act, and the requisite degree of harm. See id. at 560. To demonstrate the type of harm
necessary for specific injury, the plaintiff must show, first, that the harm is sufficiently
likely to affect their taxes or result in a pecuniary loss, and, then, that the plaintiff has a
“special interest distinct from the general public,” id. at 556.
As to the first showing, only a reasonable possibility of either pecuniary loss, or a
tax increase, must be shown. See id. at 559. In assessing standing, we have never asked
for more than a “potential” showing of such harms, id., and have “exhibited great leniency
in [our] interpretation of ‘potential pecuniary loss,’” id. at 561 (citations omitted).
As to the second showing, Judge Harrell wrote that, “[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’).” Id. at 559 n.65. Surely the “taxpayer” to whom we referred means any
individual who may be liable to replenish the fisc. Conversely, the “general public”
comprises all residents, including those not subject to such liability. Hence, “taxpayer”
means those in the relevant jurisdiction subject to the taxation which is alleged to have
been increased or wasted, while the “general public” amounts to those who are not subject
to such taxation.
I agree with the Majority that Appellants’ allegation of potential tax increase or
pecuniary loss is “vague and not easily understandable.” Maj. Slip Op. at 30. Appellants
do not sufficiently allege “how the new Zoning Map potentially would result” in pecuniary
losses or tax increases. Maj. Slip Op. at 30. Merely alleging that there will be potential
costs caused by defending challenges to the comprehensive rezoning is insufficient. This
2
is tantamount to saying that a plaintiff may self-create the type of harm required just by
being litigious—a classic bootstrap theory, unworthy of recognition.1 In my mind, the
Majority need not reach anything past this point.
Finally, it is also unnecessary for the Majority to distinguish the plaintiffs here from
more successful plaintiffs in its closing paragraphs: “By contrast, in several cases in which
this Court concluded or observed that taxpayer standing had been established, the plaintiffs
had specifically alleged pecuniary loss or increased taxes.” Maj. Slip Op. at 33. Although
the Majority, in a footnote, acknowledges that no specific monetary amount is necessary
to prevail, the discussion in its closing paragraphs leaves the impression that these specific
dollar allegations are somehow important. See State Center, 438 Md. at 577 ($1.5 billion
project); Boitnott v. Mayor & City Council of Balt., 356 Md. 226, 234 (1999) ($20 million
in development costs); James v. Anderson, 281 Md. 137, 139 (1977) ($5 million bond for
construction of new courthouse); McKaig v. Mayor & City Council of Cumberland, 208
Md. 95, 102 (1955) ($70,000 per year for seven years for construction of expressway). In
so doing, it may suggest some narrowing of the cases that will qualify for taxpayer
standing.
Indeed, in evaluating the “degree of harm” necessary for specific injury, we have
never asked for more than a “potential” showing of such harms, State Center, 438 Md. at
1
To the extent our past decisions, see Inlet Associates v. Assateague House
Condominium Association, 313 Md. 413, 442 (1988); Citizen’s Planning & Hous. Ass’n v.
Cty. Executive of Balt. Cty., 273 Md. 333, 343 (1974), suggest that taxpayer injury can
result from the expenditure of funds necessary for the city to defend the legality of the
challenged act, I believe the Court has now specifically rejected such a conclusion. I agree
with this result.
3
559, and have “exhibited great leniency in [our] interpretation of ‘potential pecuniary
loss,’” id. at 561 (citations omitted). Certainly, there are, and will be, cases in which we
conclude that the alleged injury is de minimis—not worthy of recognition. But this
conclusion should be reached from an assessment of all the circumstances, without undue
emphasis on the presence or absence of specific dollar harms and it is not necessary here.
For the reasons set forth above, I join in the judgment only, in this case.
Chief Judge Barbera and Judge McDonald have authorized me to state that they
concur with the views expressed in this opinion.
4