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E-Alert Case Updates

Plaintiffs Lack Standing to Challenge Howard County’s Land Use Actions

Paul F. Kendall, et al. v. Howard County
Case No.: 235 (Court of Special Appeals of Maryland)

by Eric M. Leppo, Associate
Semmes, Bowen & Semmes (

In this recently issued Opinion from Maryland’s Court of Special Appeals, the Court upheld the trial court’s dismissal of Plaintiffs’ action on the basis that they lacked standing to challenge certain actions of the Howard County Council.

In 1994, by charter initiative, citizens of Howard County placed on the ballot and won voter approval of a County charter amendment. The amendment required that any change to Howard County’s General Plan, Zoning Regulations, or Zoning Maps, be accomplished by legislative act requiring an original bill and passage by legislative procedure. Under the legislative procedure, these actions are subject to executive veto and may be petitioned to referendum by the County residents.

The Plaintiffs, a group of Howard County residents including Paul Kendall, argued that over the course of many years, the County Council circumvented the legislative procedure in order to avoid the people’s right of referendum. They argued that the Council made “legislative” decisions in the areas of land use by resolution instead of bills and/or delegating the action to administrative agencies instead of taking legislative action.

These Plaintiffs first filed a Federal Court action in the U.S. District Court for the District of Maryland alleging violations on federal constitutional grounds; however, the County’s Motion to Dismiss the matter from Federal Court was granted, and Plaintiffs were directed to bring their claims in State court.

Thereafter, the Plaintiffs filed a declaratory judgment action in Howard County Circuit Court seeking a declaration that all of the land use actions referenced in their Complaint should be declared null and void. The County moved to dismiss the action, and the trial court granted the Motion to Dismiss on three bases: (1) failure to exhaust administrative remedies; (2) failure to join necessary parties; and (3) lack of standing.

The Appellate Court first addressed the issues of failure to exhaust administrative remedies and failure to join necessary parties. The County argued that many people and companies would be affected if land use and zoning decisions made over many years were now declared void. The Court agreed that there would be a great number of persons not party to the lawsuit who would be affected by an adverse outcome. The Court held, however, that dismissal was not the appropriate remedy. “Ordinarily dismissal is undesirable and that a preferable procedure is to permit an amendment joining the necessary parties.” Kendall at *7 (quoting Bender v. Secretary, Maryland Department of Personnel, 290 Md. 345, 350 (1981)).

Likewise, the Court found that the “failure to exhaust” argument was not a basis for dismissal. The Court noted that while some of the land use actions taken might raise administrative exhaustion concerns, it is unlikely—and not shown by the County—that all of them would. As such, this was not a basis for dismissal of the action.

The Court of Special Appeals then reached the issue of standing, and affirmed the trial court’s dismissal of the case on this basis. The Appellants argued that they had standing to challenge the County Council’s actions as voters contending that they were deprived a right to a referendum. The Court disagreed stating, “Kendall’s challenge is several steps removed from an electoral/voting rights setting.” Kendall at *10.

The Court noted that the referendum process was never initiated in regard to any of the challenged land use actions, and the same would have required a petition with between 1500 and 5000 signatures. Without more, there was no basis to indicate a referendum would have been obtained, and the Court held there was no concrete injury fundamental to voting rights. As such, the Plaintiffs lacked standing as voters/taxpayers to bring the suit.