Standing for Comp Rezoning Debated at #MACoCon

Attendees to the A Leg to Stand On – Who Can Challenge Local Zoning? panel at the 2016 MACo Winter Conference on December 8 heard about proposed legislation that would alter who has 2016-maco-winter-conference-a-leg-to-stand-on-local-zoning-photo-1standing to challenge comprehensive rezonings. The legislation was introduced during the 2016 Session as HB 243/SB 166 and will likely return in an amended form for the 2017 Session. The legislation was in response to a recent Maryland Court of Appeals holding (Anne Arundel County v. Bell). During the 2016 Session, MACo opposed the legislation and supported the Bell decision.

Anne Arundel County Supervising County Attorney Gregory Swain outlined the history of the Bell case and the associated Harwood case. Swain argued in support of the Court’s ruling that taxpayer standing was the appropriate standard for comprehensive rezoning while property owner standing was the appropriate standard for piecemeal zoning. (Plaintiffs and the legislation would have applied the property owner standard to comprehensive rezoning).

Chesapeake Bay Foundation Maryland Staff Attorney Elaine Lutz opposed the Bell decision and told a hypothetical story about someone buying a dream home in area zoned residential area but a subsequent comprehensive rezoning allows someone to put a used car lot next door. Lutz argued that the homeowner would not be able to show taxpayer standing and thus not be able to challenge the decision. Lutz also argued that the standing tests are not well defined and that the legislation would create a reliable and consistent review process.

1000 Friends of Maryland Local Policy Director Kimberly Golden Brandt described how zoning must be consistent with a local government’s comprehensive plan. Golden Brandt argued that in the Bell case, the Anne Arundel County rezoning decisions were not consistent with the comprehensive plan and that all parties spent 4 years arguing over standing without getting to the actual merits of the case. Golden Brandt stated that the legislation would not change the deference accorded to local government decisions, but would allow people “to have their day in court.”

2016-maco-winter-conference-a-leg-to-stand-on-local-zoning-photo-2NAIOP Maryland Vice President for Policy and Government Relations Tom Ballentine concluded the panel, arguing that the bill language threatened the certainty of the existing process from a commercial development perspective. Ballentine raised concerns about the legislation’s scope , noting that even if you could sever out challenged parcels in a comprehensive rezoning, it could still jeopardize an entire development plan. As an example, Ballentine illustrated what could happen if just the density receiving areas or affordable housing components of the Bethesda Plan were allowed to be challenged through property owner standing. Ballentine also argued that the Bell court clearly defined the standing tests and that the homeowner in Lutz’s example could likely show taxpayer standing.

Maryland Delegate Stephen Lafferty moderated the panel.