06 August 2008

Explore Howard Editorial Board Should Sit Down on Standing

This weeks editorial on the Explore Howard website focuses on the standing issue associated with the Downtown Columbia Plaza Tower mess. Taken in total, the editorial goes to great lengths to remove large parts of the issue and arrive at its conclusion:

The merits of his argument aside…

However legally sound it might've been…

Leaving aside the notion …

Moreover, the editorial creates a narrative separate from that actual record, and this narrative is (in my opinion) damaging to the future discussion of any development in Howard County.

Let’s start with the 3rd paragraph of the editorial:

However legally sound it might've been, a previous ruling by county Hearing Examiner Thomas Carbo, which the courts have now taken up, defied common sense. It held that the Plaza Residences would not "specially aggrieve" Broida and other Columbia residents seeking to prevent the project's construction, and that therefore the plaintiffs lacked the necessary legal standing to fight it through judicial or quasi-judicial channels.


That first sentence is particularly troubling. In the best of worlds, we would like all decisions rendered to be both legally sound and to make common sense. When the two are not coincident, it is important to review the case specifics. I believe this is where the editors have fallen down.

Referring back to the Hearing Examiner’s decision, it explains in detail the process and evidence presented. As stated in the decision:

Generally, the appellant must provide proof of aggrievement by showing that the impact of the decision on his property is different from the impact upon the general public. It is sufficient if the facts constituting aggrievement appear in the petition for appeal either by express allegation or by necessary implication.4 An exception to this rule applies if the appellant is an adjoining, confronting, or nearby property owner. In this case, the appellant is deemed, primae facie, to be specially damaged and therefore a person aggrieved. Bryniarsky, 230 A.2d at 294. In other words, an appellant is presumed to be aggrieved if he merely shows that he owns property “nearby.” What is “nearby” depends on the circumstances of the case, but it has been held that one who “owns any property located within sight or sound of the subject property is aggrieved.” Maryland-National Capital Park and Planning Commission v. Rockville, 269 Md. 240, 305 A.2d 122, 127 (1973). Intervening topography or roadways, however, may support a finding that a complainant is not aggrieved. DuBay v. Crane, 240 Md. 180, 213 A.2d 487 (1965).

The presumption of standing for adjoining, confronting, or nearby property owners may be rebutted, however, by the opposing party. If the opposing party presents evidence that the appellant is not in fact aggrieved, the burden shifts back to the appellant to present facts to show that he is specially aggrieved by the decision. Bryniarsky, 230 A.2d at 294.

Therefore, standing can, and was, challenged by the opposing party, and then the appellants (Knowles, Stolley, Meskin, Broida) had the opportunity to provide supporting evidence and testimony to refute the rebuttal.

With respect to Mr. Broida:

The Appellants contend that Mr. Broida is specially aggrieved because the proposed building will peculiarly block his view and sunlight, increase noise, increase traffic, reduce parking, and reduce the value of his residence.


Renaissance Centro Columbia (part of WCI Communities) rebutted Mr. Broida’s claim to standing and Mr. Broida presented evidence to challenge the rebuttal.

With respect to traffic and parking, Mr. Broida asserted that the proposed development will exacerbate an already hazardous situation. He claims that traffic is heavy now on Little Patuxent Parkway and Wincopin Circle, and that parking in the town center is hard to find on weekends. He asserted, without supporting evidence, that the proposed building does not provide sufficient parking. Much of the testimony presented by the Appellants on this point amounted only to unsupported opinions and general conclusions that the development will cause traffic and parking problems. Maryland courts instruct that the unsupported conclusions or fears of witnesses to the effect that a proposed use of property will or will not result in harm amount to nothing more than vague and general expressions of opinion which are lacking in probative value. Anderson v. Sawyer, 23 Md. App. 612, 329 A.2d 716 (1974). Because the Appellants’ testimony in this case was unsupported by any evidence that the anticipated harmful effects are likely to occur, I must afford it little weight.

Contrary to Mr. Broida’s assertions, the record indicates that both the proposed building and the Lakeside condominium building provide ample parking for all residents in parking garages within the respective buildings. The plans for the project provide 58 additional parking spaces off-site for patrons of the retail space, and Mr. Gutschick provided a parking analysis that shows that the area will have more than the required parking spaces for all uses (Appellee’s Exhibit 16). The residents’ entrance to the building will be from Little Patuxent Parkway, diverting this traffic away from Mr. Broida’s property. Road improvements and a traffic light are proposed along Wincopin Circle. In short, the preponderance of evidence presented suggests that the proposed development will have minimal adverse impact on traffic and parking for residents of the area.

With respect to noise, Mr. Broida again speculated that the proposed project will create additional noise that will affect him personally. The Appellants provided no basis or support for this assertion. Renaissance, however, presented evidence that deliveries and trash collection will take place within the proposed building, limiting the amount of noise they generate. As previously stated, residents will access the building from the west side, away from the Lakeside building. Indeed, the building itself will act as a noise barrier to traffic on Little Patuxent Parkway, potentially improving the noise conditions for Mr. Broida. Again, the preponderance of the evidence indicates Mr. Broida will not be specially damaged by the project with respect to noise.

Mr. Broida also asserts that the proposed building will block the pleasant view he currently enjoys from his living room and bedroom and will reduce the amount of sunlight coming through his windows in the late afternoons. There is little dispute that the erection of the proposed building will have this effect, and that the impact is peculiar to Mr. Broida and his neighbors on the west side of the Lakeside condominium. The mere loss of view and sunlight is not enough, however, to establish aggrievement.

[N]o such testimony or evidence was presented by the Appellants in this case. In fact, the record indicates that Mr. Broida had no reasonable expectation of preserving his view or light when he originally purchased his condominium unit in 2005. At that time, having been previously aware of two separate proposals to build high-rise building on or near the Property, he (twice) signed a purchase contract containing a provision in which he agreed that his right to a view was not guaranteed and that there may be improvements built on adjacent properties that might interfere with his present vista. Cleary, at the time of his purchase, the view from his unit was not a significant part of the value that Mr. Broida ascribed to his property. It is unlikely, therefore, that he can claim a diminution of value as result of the loss of that view.

My reading of the Maryland cases indicates that the Appellants must additionally show some economic impact resulting from the adverse condition–namely, a diminution of the value of the appellant’s property. See e.g., Committee for Responsible Development on 25th Street v. Mayor and City Council of Baltimore, 137 Md. App. at 87 (“He presented no evidence that the pharmacy and its parking lot would cause his property to devaluate”); DuBay v. Crane, 213 A.2d at 490 (“And, which is more important, none of the appellants were able to show that the value of their respective property would be adversely affected”); Wilkinson v. Atkinson, 242 Md. at 234 (“There was no specific testimony as to any adverse effect upon the value of the Siegelhome.”). In Toomey v. Gomeringer, 235 Md. 456, 460 (1964), the Court found protestants to have standing where they presented evidence “that the value of their residential properties would be depreciated by the proposed reclassification .... There was in addition testimony by an experienced real estate broker and developer that, in his opinion, the reclassification of the property in question, at least if followed by the development and use of the property as planned by the applicants' contract purchaser, would eat into the existing residential community and would depreciate and depress the area.

Moreover, Renaissance provided ample contravening evidence that the proposed development would not devalue the nearby residences. Ronald Lipman, a real estate appraiser and consultant, testified that the building would present a slender and attractive design that would be well separated (170 feet) from the Broida unit (see Appellee’s Exhibit 9). The look and use of the development would be compatible to Lakeside and the other developments in the area. Most importantly, the proposed residential units will be larger and more expensive than the adjacent Lakeside units, which fact tends to cause the less expensive units to appreciate in value. Thus, Mr. Lipman offered, the proposed development could actually have a positive effect on Mr. Broida’s property value.


So to review, the Appellants indicated the Plaza Tower would specially aggrieve Mr. Broida because it would “block his view and sunlight, increase noise, increase traffic, reduce parking, and reduce the value of his residence.” The evidence submitted by each party is as follows:

Block View and Sunlight:

NOTE: View and Sunlight are not considered when determining standing.

Broida – Mr. Broida stated that his view and sunlight would be blocked.

Renaissance – Mr. Broida signed a waiver to views and sunlight (twice) when he purchased his home.

Increased Noise:

Broida – Stated his opinion that there would be increased noise from the Plaza Tower.

Renaissance - Presented evidence that deliveries and trash collection will take place within the proposed building, limiting the amount of noise they generate. Also stated that the Plaza Tower would shield and reduce noise generated from Little Patuxent Parkway.

Increased Traffic:

Broida – Stated his opinion that there would be more traffic that would particularly affect him.

Renaissance – Presented plans for a driveway located away from Mr. Broida’s residence and plans to improve Wincopin Circle to mitigate any other traffic.

Parking:

Broida - Stated his opinion that parking would be problematic.

Renaissance – Presented plans to indicate parking would not be a problem.

Reduce Value of Residence:

Broida – Presented no evidence or testimony.

Renaissance – Presented testimony by a real estate appraiser and consultant.

In short, the Hearing Examiner found that Mr. Broida did not have standing because he presented no evidence of being specially aggrieved to support his claim. He did not come prepared. In the words of the Hearing Examiner:

Mr. Broida lives in the “Lakeside” condominium development located directly across the street to the east side of the Property. His residence is indubitably within “sight and sound” of the proposed development. Renaissance does not contest, however, that Mr. Broida lives within sufficient proximity to the Property to qualify for the presumption of special aggrievement. Nonetheless, I find that Renaissance presented sufficient evidence to rebut the presumption by showing that Mr. Broida is not specially aggrieved. The Appellants failed to meet their countervailing burden.


I suppose now would be a good time to ask the editors, “Would it be common sense to go to a formal hearing without any prepared evidence or testimony to support your case?”

In addition, the editors state:

[o]ne could argue that Broida's partners in the legal fight against the Plaza live too far away from the site to be injured by it.


Well, actually, Renaissance did argue (successfully) that Knowles, Stolley and Meskin did not have standing. Truth be told, Ms. Stolley was found to not have standing because she did not participate in any of the hearings before the appeal to the Hearing Examiner. The large stand of dense woods between Mr. Meskin and the Plaza Tower site were found to mitigate his standing claim. And Mr. Knowles was found to live too far from the site of the Plaza Tower. From the Hearing Examiner decision:

The evidence is undisputed that Mr. Knowles lives 1.8 miles to the west of the Property. Interposed between the Knowles residence and the Property are four major roads and numerous and large residential and commercial developments, including the 1.4 million square foot Columbia Mall. The unrefuted testimony of Carl Gutschick, a professional engineer, established that the proposed building could not be seen from the Knowles property. Clearly, Mr. Knowles’property is within neither sight nor sound of the Property.


However, Mr. Knowles did claim he had standing, siting the following case:

Hikmat v. Howard County, 148 Md. App. 502, 813 A.2d 306 (2002)

The Hearing Examiner addressed the issue of standing under Hikmat:

The Appellants contend, however, that the Bryniarsky standard does not apply in this case; rather, they urge that I apply the lower threshold for standing set forth in the Hikmat case. My examination of that case’s holding indicates, however, that it represents a narrow and unrelated exception to the general “aggrievement” rule. Hikmat involved an appeal by Howard County of a Board of Appeals decision reversing DPZ’s denial of a waiver request. The court first noted that governmental entities like Howard County generally cannot be “specially aggrieved” in the Bryniarsky sense. Based upon a series of cases arising from mandamus or certiorari actions, however, the court found that “the facts necessary to satisfy the aggrieved requirement, when the petitioner is a governmental entity, appear to be that it have an interest in interpreting, administering, and enforcing the laws in question in a given case.” 148 Md. App. at 520 (italics added). The Hikmat court decided to extend this exceptional standard for aggrievement to cases arising under a petition for judicial review. Nonetheless, the standard clearly applies only to governmental entities, and not to private individuals or parties.


I’m not certain (I’m not a lawyer), but if I’m reading this right, Mr. Knowles was arguing he had standing because he is a government entity (Lloydville? Knowlestown?).

In closing, a review of the hearing provides a bit more data, and better picture of the circumstances surrounding this case. Yes common sense is called for, and the best assessment would probably find that better common sense on all sides would have helped move this process immensely.

7 comments:

Tom said...

I love the way you breakout the exact wording so everyone can see this case so they can decide for themselves on the ruling.

Young at Heart said...

Very interesting. Although I've read just about everything printed in the media about this issue, I don't remember ever hearing that Broidas had signed a contract indicating that they understood that their view was not guaranteed.

I have heard that the decision to allow residential development on the tower property also allowed the residential development on the property where the Broidas now live. So, while he is complaining that the decision was illegal in regards to the tower, it was the same decision that allowed his condo to be built. Does anyone know if this is true?

B. Santos said...

Y@H,

I have been doing quite a lot of research on this issue. In addition to the Hearing Examiner's decision, Mr. Broida's view was not guaranteed was also mentioned in 24MAY06 edition of the Baltimore Sun (page 1G).

It is true that the land that the Lakeside condos sits on is part of the same Final Development Plan as the Plaza Tower site. It is important to note that when the Final Development Plan was changed in January 2002, there was no opposition to apartments on the site and the Town Center Village Board wrote a letter in support of the change.

Taking a broader view, there are more than 800 units in Columbia that have a similar zoning designation (that is, apartments, condos, or townhouses sitting on land designated for "Employment" use).

Keep that in mind, it is the basis of the forthcoming argument.

Thanks for the comment!

Anonymous said...

The tower decision was made by a gov't body that is not assigned to those decisions.

I believe this fact is a huge part of the dispute.

B. Santos said...

Anon,

I am intrigued by your assertion. Can you please provide some detail? I would specifically appreciate the name of the government body, the decision that was made, and the document that determines what this particular body can and can't do.

Anonymous said...

Hold the phone- does this mean that if the Tower is illegal, then Broida's own building is also illegal for the same reasons (same zoning)!? Did I understand that right?

B. Santos said...

Anon 23:24,

You are very close to the reality here. What will most likely be said at the hearing is that Mr. Broida's condo, and the more than 800 other condos apartments, and townhouses, built in a similar manner in Columbia were built illegally, however, because they have been built, the property has been "vested," so those are now legal.