State Center, LLC v. Lexington Charles Ltd. Partnership

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

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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

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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 aggrievem

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