Table of Contents **
I. Background Facts..................................474
II. The Procedural Path of the Present Case ............483
III. Appellees’ Motion to Dismiss the Appeal.............493
IV. Applicable Standards of Appellate Review............496
V. Analysis...........................................498
A. JUSTICIABILITY..............................498
1. Procurement Claims Brought By Appellees As Plaintiffs ..............................503
2. Are The Statutory Administrative Remedies Really “Available” Here?...............507
3. Private Right of Action.......................516
4. Property Owner & Taxpayer Standing Doctrines ....................................517
a. Property owner standing .................519
i. Whether property owner standing doctrine applies here?.........522
(1) Prima facie aggrieved property owners?.................528
(2) Almost prima facie aggrieved property owners?.....533
(3) Nebulous third category of property owner standing? ...................536
b. Taxpayer standing.......................538
i. Taxpayer standing & procurement claims: is a private right of action required for taxpayer suits?..................541
ii. The necessary party plaintiffs for taxpayer standing doctrine.....547
iii. A governmental action that is illegal or ultra vires..............555
iv. Specific injury sufficient............556
(1) What types of “harm” amount to a pecuniary loss?........................560
(2) Nexus........................572
(3) Amount of pecuniary harm .....580
B. THE FATAL FLAW — THE DOCTRINE OF LACHES....................................583
1. Propriety of Addressing Laches...............584
2. Standard of Review..........................585
3. The Fatal Flaw..............................585
a. Whether laches applies to taxpayer suits? ................................587
b. Delay in filing...........................589
i. The starter’s gun sounds...........590
ii. Whether the delay was unreasonable .........................603
c. Prejudice from the delay..................608
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
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
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 en
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, and other stakeholders in order to formulate a feasible project that can successfully accomplish a wide range of objectives.” To that
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, “[professional 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 State’s economic development goals for the community, [fell] under the authority of § 10-305 of the State Finance and Procurement Article.”
4
Although profess
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
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
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 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.
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 1-2, 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.
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
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 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 1-2 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
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.
II. THE PROCEDURAL PATH OF THE PRESENT CASE
On 17 December 2010, fifteen Plaintiffs
12
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, accord
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 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 1-2, 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 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 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,
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
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 “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 “[sovereign 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
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 State Defen
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 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
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,
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
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 [CJircuit [Cjourt 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[ J and truncate[ ] the lower court’s decision,” as follows:
Did the [CJircuirt [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 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]ireuit [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.
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?
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)(Z), 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 [Cjircuit [Cjourt.” 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
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.
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’
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 allegations and permissible inferences, if true, would not afford relief to the plaintiff, ie., 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.,
With regard to the partial grant and partial denial of the summary judgment Motion,
Barclay v. Briscoe,
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 2501(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 ease 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. Deans,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 isnot a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” 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.”
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,
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,
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 plaintiffs favor.” Bellia,
supra,
at 779 n. 5 (citing
Lujan v. Defenders of Wildlife,
[Jurisdiction 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. Ill 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,
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,
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 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
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.,
Where a contract is a “procurement contract,” the Procurement Code sets forth various methods for procuring goods and
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.,
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 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
In challenging these aspects of the Project, Appellees did not challenge in their Original Complaint the EFQ 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 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 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.,
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)(l) 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
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,
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.,
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 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,
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 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)(l) 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
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 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.,
We disagree with the State Agencies’ interpretation of precedent on the effect of amended pleadings. In
MEMO,
the Court of Special Appeals restated the well-established principle that “[f]or pleading purposes, an amended complaint that does not incorporate or otherwise reference a prior complaint supersedes prior complaints and becomes the operative complaint.”
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
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,
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 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
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.
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,
4. Property Owner & Taxpayer Standing Doctrines
Two additional doctrines permit a property owner or taxpaying 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
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 “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 plaintiffs 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,
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 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,
(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.
“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.”
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,
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.
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,
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 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,
As previously mentioned, the principles of property owner standing in Maryland stem from the State’s statuto
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,
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 taxpayer and adjoining landowner standing to a party alleging a violation of an urban renewal ordinance.
Superblock III,
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 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.,
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,
ii Whether Appellees alleged sufficient facts for “special aggrievement” to confer property owner standing?
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
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 .
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
In addition to the two types of protestants accorded standing by this Court previously, the
Ray
Court noted that “[djicta 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,
(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,
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 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,
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.”
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
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 aggrieved class as the entire city “neighborhood” in which each protestant lived.
the creation of a class of aggrieved persons is done on an individual scale and not based on delineations of cityneighborhoods. 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.,
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 proximity from the entire TOD area.
46
(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.”
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.
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.
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, “[although 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.”
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) ] (protestan! 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 (protestad; two blocks west and three blocks north, without sight of, or sound from, subject property, denied standing).
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.”
(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 adversely affected by the board’s action.”
Bryniarski,
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,
Moreover, to extend property owner standing’s definition of “aggrieved persons” to include economic competition and harm is improper.
See Bryniarski,
b. Taxpayer standing
The common law taxpayer standing doctrine permits taxpayers to seek the aid of courts, exercising equity powers, to enjoin illegal and
ultra vires
acts of public officials where those acts are reasonably likely to result in pecuniary loss to the taxpayer.
See, e.g., Superblock I,
The doctrine of taxpayer standing has existed for quite some time. Judge Dillon, in his early work on
Municipal
Corporations,
50
reviewed all of the then-extant decisions in
“1st. That the proper parties may resort to equity, against municipal corporations and their officers when these are acting ultra vires, and where such illegal acts affect injuriously the property owner or the taxable inhabitant. But if in these cases the parties injured have adequate remedy at law, equity will not interfere.
2nd. That in the absence of special legislation, the proper public officer of the commonwealth may file an information or bill in equity to prevent misuse of corporate powers, or to set aside or correct illegal corporate acts.
3rd. A bill may be filed in the name of one or more of the taxable inhabitants for themselves and all others similarly situated, and that the court should regard it in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached and deal with and control it accordingly.”
Kelly,
In our 1869 benchmark case on taxpayer standing, this Court explained the purpose of this long-standing doctrine:
In this state the Courts have always maintained with jealous vigilance the restraints and limitations imposed by law upon the exercise of power by municipal and other corporations; and have not hesitated to exercise their rightful jurisdiction for the purpose of restraining themwithin the limits of their lawful authority, and of protecting the citizen from the consequence of their unauthorized or illegal acts.
If the right to maintain such a bill as this be denied, citizens and property-holders residing or holding property within the limits of a municipal corporation, would be without adequate remedy to prevent the injury and damage which might result to them from the unauthorized or illegal acts of the municipal government, and its officers and agents.
Baltimore v. Gill,
From this decision [.Baltimore v. Gill ] and the long line of Maryland cases following in its wake, the principle has become established that ,a taxpayer may invoke the aid of a court of equity to restrain the action of a public official or an administrative agency when such action is illegal or ultra vires, and may injuriously affect the taxpayer’s rights and property.
Citizens Planning & Housing Ass’n v. Cnty. Exec. of Baltimore Cnty.,
Most recently, we re-characterized this well-established principle of taxpayer standing doctrine as having two general requirements:
“[A] party, as a taxpayer, may satisfy the ‘special damage’ standing requirement by alleging both ‘1) an action by a municipal corporation or public official that is illegal or ultra vires, and 2) that the action may injuriously affect the taxpayer’s property, meaning that it reasonably may result in a pecuniary loss to the taxpayer or an increase in taxes.’ ”
Kendall v. Howard Cnty.,
In an attempt to clarify this doctrine, we shall engage here in a general discussion of the principles and case law on taxpayer standing doctrine in Maryland and answer the parties’ plethora of arguments concerning the doctrine raised in this case. We begin by analyzing the State Agencies’ argument that taxpayers may not challenge violations of the Procurement Code due to the statutory language and history and the case law governing the State’s procurements. Because we find that taxpayer standing may exist for such challenges, we analyze next the requisites for eligibility to assert standing under this doctrine or, in other words, the requisites to establish taxpayer status. Then, we move to the two requirements that provide the taxpayer with a “special interest” distinct from that of the general public.
i. Taxpayer standing & procurement claims: is a private right of action required for taxpayer suits?
The authority for taxpayer suits in this State stems from the common law,
see Gill,
The taxpayer litigant is often likened to a “private attorney general” because he is essentially performing the function of an attorney general by suing to enforce the laws. The taxpayer does not assert a private cause of action but, instead, that of his government. Therefore, a taxpayers’ suit is essentially a “derivative proceeding” akin to a corporate shareholders’ suit. The public corporation, like its private counterpart, has the same right of action, but presumably it has neglected to pursue it. Taxpayers are injured by unlawful acts or omissions of governmental officials because taxpayers are the constituents of government and they contribute the tax funds that are misused. Recovenes in taxpayers’ suits run directly to the government and indirectly to the taxpayers in the form of tax dollar savings and good government.
A trust theory, as well as a shareholders’ derivative analogy, has also been used to justify the taxpayers’ suit. By this rationale, the public officer is the trustee who cares for the property of the taxpayer, the cestui que trust. As trustee, the public officer or agency vested with control of public property has a duty to protect the interest of the equitable owners and to act for their benefit.
Comment, Taxpayers’ Actions: Public Invocation of the Judiciary, 13 Wake Forest L.Rev. 397, 397-98 (1977) (emphasis added) (footnotes omitted). Because of this nature of the suit, courts often require that the complainant not have an adequate remedy at law. See id., at 398 n. 11. Where the complainant does not have an adequate remedy at law, however, the common law demands that we permit the suit unless the General Assembly has pre-empted this common law right.
In this case, the State Agencies and Developers argue that Appellees, even though taxpayers, cannot bring this suit because the Procurement Code does not provide them a private right of action (and, as discussed above, Appellees have no right to the statutory administrative remedies). Much of their argument on this issue focuses on alleging that the Procurement Code does not authorize or permit private causes of action. Determining whether the Procurement Code permits private causes of action is irrelevant in this case, however, because, as discussed above, taxpayer suits do not require private causes of action. Accordingly, the State Agencies’ arguments regarding whether the Procurement Code implies a private right of action are irrelevant. 52
Most illustrative of the irrelevancy of much of their argument against taxpayer standing is the fact that none of the
Moreover, the State Agencies cited in their initial brief also
Baker v. Montgomery Cnty.,
First,
Baker’s
analysis of why the petitioners lacked standing supports, albeit not explicitly, the fact that taxpayer
Petitioners maintained steadfastly, albeit quixotically, in the Court of Special Appeals that they were not asserting standing as taxpayers, relying instead solely on their claimed private cause of action theory. Baker,201 Md. App. at 679 n. 27,80 A.3d at 289 n. 27. Petitioners acknowledged also that some of them are neither Maryland residents nor Maryland taxpayers.
Baker,
Next,
Sugarloaf,
cited extensively by the State Agencies, rather than supporting the State Agencies’ arguments, demon
On appeal, in its reply brief, Sugarloaf “stated that the basis for their complaint was their common law right as taxpayers ‘to challenge legislative action that is procedurally or otherwise defective.’ ” Id. The intermediate appellate court disagreed. The court pointed out that “[t]he sole relief requested, other than a general request for ‘such other and further relief as the Court deems just and proper,’ is to void the action taken by the Council, consistent with the remedy provided by Section 19A~22(b).” Id. Thus, the court found that it was clear that “[t]he violation complained of and the relief requested are found within the ethics law provisions.” Id. The court acknowledged that Sugarloaf “may have otherwise possessed standing to invalidate alleged legislative action,” such as through the common law taxpayer doctrine, “their standing, as evidenced by their amended complaint, is based upon the Montgomery County Public Ethics Law.” Id.
As such, the intermediate appellate court went on to analyze whether the Montgomery County Public Ethics Law, upon
At common law a taxpayer had standing to bring a declaratory judgment action for a judicial declaration that a statute was void due to a conflict of interest by one voting for its enactment. See Beshore v. Town of Bel Air,237 Md. 398 ,206 A.2d 678 (1965). We need not decide whether the statute pre-empts any common law remedy that appellants may have possessed to attack Resolution 11-382. Appellants do not seek declaratory relief; they rely on the mechanism provided within § 19A-22(b) to render the resolution void.
Sugarloaf,
In the present case, Appellees do not rely on the provisions of the Procurement Code to confer standing. Rather, they assert standing as taxpayers (as well as separately property owners) and they seek relief granted traditionally to taxpayers: declaratory relief that the governmental action is illegal and ultra vires and that the action thus taken should be voided; and injunctive relief to preclude further illegal and ultra vires governmental actions that will cause pecuniary harm to their taxes. Because taxpayer suits in this State do not require also a separate private right of action, 54 such an inquiry is irrelevant in our analysis.
Rather, the proper question (if any) is whether the Procurement Code pre-empted the common law right for taxpayers to
ii The necessary party plaintiffs for taxpayer standing doctrine.
“The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before the court.... ”
Pollokoff v. Maryland Nat. Bank,
To establish eligibility to bring a suit under the taxpayer standing doctrine, the case law establishes that the complainant must allege two things: (1) that the complainant is a taxpayer and (2) that the suit is brought, either expressly or implicitly, on behalf of all other taxpayers.
See, e.g., Holt v. Moxley,
First, we address the requirement that, for taxpayer standing to exist, the complainant must allege sufficient facts to prove that he or she or it is, in fact, a taxpayer.
55
In this case, the State Agencies argue that Appellees, as “pass-through” business entities, are not actual taxpayers. In a footnote of their initial brief, the State Agencies aver that, because “all of the
original
plaintiffs are either limited liability companies or limited partnerships, which are ‘pass-through’ tax entities,” Appellees failed to allege taxpayer status sufficient to be eligible for the application of the taxpayer doctrine.
56
(Emphasis added). In a footnote of their Reply Brief, they averred again (but more broadly to include all plaintiffs) that “the plaintiffs are not taxpayers. Each of them is either
Appellees retort that the State Agencies failed to preserve their argument that Appellees are not taxpayers because they did not advance that argument in the Circuit Court. Consequently, we should dismiss the argument because, if the State Agencies had raised properly this issue in the Circuit Court, Appellees would have had an opportunity to present evidence that they were, in fact, taxpayers. Moreover, according to Appellees, the State Agencies’ argument lacks any merit because they are taxpayers in Maryland.
As a preliminary matter, we address the non-preservation contention. “Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court.” Md. Rule 8-181(a). This general rule is appropriate, particularly for cases in which both parties were not given the opportunity to produce relevant evidence in the trial court that might have rebutted the tardy argument. Appellees believe this case falls into that category. Although we might agree that this case falls in that category generally, we note also the exception that “the Court may decide such an [unpreserved] issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal” is applicable to this case. Id. The record is adequate to those ends for our conclusion in this case (in which we may resolve the matter without reaching the merits of the State Agencies’ argument that the limited liability entities may not claim taxpayer standing). 57 Thus, we exercise our discretion to resolve the point.
Next, we consider whether Appellees alleged taxpayer standing as a basis for bringing their complaint, either implicitly or explicitly. We do so not in response to any of the parties’ arguments. Rather, we analyze this requirement to illustrate the importance of the distinction between an individual’s complaint and a derivative complaint brought on behalf of all other taxpayers similarly situated. This distinction, found in the nature of the pleadings’ description of the party plaintiffs, becomes important in our subsequent analysis of the injury sufficient for the taxpayer standing doctrine to apply in a given case.
In this case, Appellees did not plead explicitly in either the Original or Amended Complaint that they brought their claims on behalf of other, unnamed taxpayers similarly situated. Rather, Appellees’ allegations claimed merely that they are harmed as taxpayers of the State of Maryland and the City of Baltimore. See Amended Complaint, at ¶ 35. Where a complainant brings a claim as a taxpayer, but not explicitly as a class representative of other taxpayers as well, the question arises whether the suit is private in nature (and, thus, the doctrine of taxpayer standing would not confer standing). The importance of the nature of the complaint is revealed by our earliest cases addressing the taxpayer standing doctrine.
In
Kelly v. City of Baltimore,
The bill is filed by the complainants in their own right as copartners, and actually engaged in the business of printers and stationers, and as tax payers of said city largely interested in the faithful and economical administration of the affairs of said city. It is not filed in behalf of themselves and others who may come in and contribute to the expenses of the suit. They do not make their fellow-citizens parties to the proceeding. No one except the persons immediately interested in the contract, and professing to be aggrieved by the award, unites in the complaint. It is therefore strictly speaking, a private bill.
Kelly,
Public wrongs, although involving private injuries, are not to be made the grounds of personal suits at law, or in equity, unless the complainant has sustained special damage, and in many instances, the private injury is merged in the public. In exceptional cases, where great principles or large public interests are involved, citizens or corporators may sue in behalf of themselves, and their fellow-citizens to arrest some projected violation of constitutional law or abuse of corporate authority.
Kelly,
Our predecessors emphasized, though, that “th[e] Court has not undertaken to declare that every abuse of a legal authority by a municipal corporation, to the prejudice of a tax-payer, is a ground for equitable interference to prevent injury.”
Kelly,
The
Kelly
Court concluded that, in that case, “[t]he bill ... presents no such claim to the exercise of the preventive power of the court.”
Although
Kelly
exemplifies the importance of the nature of the complaint for purposes of analysis under the taxpayer standing doctrine
(i.e.,
who the plaintiffs are in the complaint), the Court does not order any technical requirement that the plaintiffis) plead explicitly that the suit is brought on behalf of other taxpayers similarly situated. We held in
Holt
that the requirement is that “the action must ‘either expressly or by necessary implication’ be on behalf of the taxpayers or property owners as a class.”
Holt v. Moxley,
Thus, even though Appellees did not allege specifically that they brought the suit on behalf of other taxpayers
Hi A governmental action that is illegal or ultra vires.
An additional requirement for the taxpayer standing doctrine to confer standing upon a plaintiff is that the com
That Appellees’ allegations may be unproven at trial or Appellants’ evidence found more credible or persuasive
(i.e.,
that the State Center Project and its formative documents were proper under the relevant state laws and regulations) does not figure in the analysis.
See Funk v. Mullan Contracting Co.,
iv. Specific Injury Sufficient.
It is well-settled that the taxpayer must allege also a special interest distinct from the general public.
See, e.g., Harlan v. Employers’ Ass’n of Maryland,
It is certainly well settled that public wrongs cannot be redressed at the suit of individuals, who have no other interest in the matter than the rest of the public. Thus an individual cannot maintain a bill of injunction to prevent a public nuisance, unless he suffers thereby some special damage; and the principle governing cases of that kind has been supposed to be applicable to the present case. But it appears from the averments of the bill, that these complainants, as taxpayers of the city, and others similarly situated, in whose behalf as well as their own the bill is filed, constitute a class specially damaged by the alleged unlawful act of the corporation, in the alleged increase of the burden of taxation upon their property situated within the city. The complainants have therefore a special interest in the subject-matter of the suit, distinct from that of the general public.
Gill,
The special damage which the taxpayer of the political division sustains in a public wrong is the prospective pecuniary loss incident to the increase in the amount of taxes he will be constrained to pay by reason of the illegal or ultra vires act of the municipality or other political unit. Hence the taxpayer’s interest in the subject matter is not general, but special only, because of the future individual monetary burden cast upon him or his property. The subsequent decisions have consistently maintained the rule, and have sanctioned the relief by injunction whenever it appeared that the taxpayer complaining would sustain a pecuniary loss, distinct from that of the general public, by reason of increased taxes, whether such increase resulted from an ultra vires, illegal, or void order, contract, ordinance, or statute in reference to an assessment of property, or to the levy, collection, expenditure, appropriation, or diversion of public taxes.
Id.,
This requirement is the foundation of the taxpayer standing doctrine. As the Supreme Court of Alabama explained:
[T]he right of a taxpayer to sue is based upon the taxpayer’s equitable ownership of such funds and their liabilityto replenish the public treasury for the deficiency which would be caused by the misappropriation.
Broxton v. Siegelman,
Taxpayers, like any plaintiffs, may not “ ‘restrain official acts upon the mere ground that they are
ultra vires.’
”
Ruark,
“[T]he taxpayer plaintiff is not required to allege facts which necessarily lead to the conclusion that 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.’ ”
Inlet Assocs. v. Assateague House Condo. Ass’n,
(1) What types of “harm” amount to a pecuniary loss?
This Court has recognized repeatedly that taxpayers have the right to bring a lawsuit in this State to
prevent
waste or unlawful use of public property and funds.
66
See, e.g., Hammond v. Lancaster,
Generally, the Court has exhibited great leniency in its interpretation of “potential pecuniary loss.”
See, e.g., Baltimore Retail Liquor Package Stores Ass’n v. Kerngood,
“[IJt is no longer an open question in this state that, if [a] statute is invalid and injurious to him, he has a clear right, as a taxpayer, to maintain this suit.”
Dahler v. Washington Suburban Sanitary Comm’n,
Invalid statutes are not, however, the only types of harm that may be a foundation for taxpayer standing. For example, in
James v. Anderson,
This Court disagreed. It noted that the plaintiff alleged “that it would be more efficient for the courts and their supporting agencies to operate in close proximity, as is called for in the renovation project.”
James,
We have gone so far as to hold that a potential need to fend off charges of illegality
may
be sufficient to establish taxpayer standing. In
Citizens Planning,
we noted that “it is not
Sun Cab Co. v. Cloud,
If the subject-matter is at all within the cognizance of a court of equity, as we conclude it is, if that court may be resorted to for prevention of a popular vote which would be void because based upon insufficient petitions, then, according to the settled practice, taxpayers interested in avoiding the waste of funds derived from taxation which would be involved in conducting the void referendum may make application to the court for the remedy.
Sun Cab Co.,
Similarly, in
Harlan v. Employers’ Ass’n of Maryland,
In the bill of complaint here demurred to it is charged “that the enforcement by the city of payment of the schedule of wages as set out in the above mentioned report of the committee will naturally increase the cost of municipal work above its present level, and the inevitable consequence ofsuch increase will be an additional burden upon the taxpayers and property owners.” The report of the committee, filed as an exhibit to the bill, shows that the high and low figures were taken into consideration and a compromise schedule arranged, all of which is admitted by the demurrer to be true. Such action on the part of the city with regard to contracts for public work may also be inconsistent with the provisions of section 15 of the City Charter, article 4 of the Code of Public Local Laws, which requires contracts to be awarded to the lowest responsible bidder, subject to the right to invite alternative bids.
Harlan,
In the present case, the State Agencies argue that Appellees failed to allege any “harm” sufficient to confer taxpayer standing. According to the State Agencies, Appellees should have challenged the entire project, in order to allege taxpayer standing properly, because challenging only the formative contracts and the process by which the State conducted its search for a developer of the State Center project is improper for attainment of taxpayer standing. We find no merit in this contention. From our precedent, we are able to summarize that the issue is not what “type” of harm is sufficient necessarily, but rather a much more forgiving question of whether the type of harm is one that may affect the complainant’s taxes. To determine that, Appellees’ claims, framed as discrete challenges, are the proper focus of our analysis.
In analyzing Appellees’ challenges, we begin with those challenges alleging violations of the Procurement Law.
See
Amended Complaints’ Counts I, II, III, and VI. At the heart of all of these challenges are the competitive bidding requirements, which exist for the benefit of the taxpayers.
See 120 W. Fayette St., LLLP v. Mayor of Baltimore City,
“The provisions of statutes, charters and ordinances requiring competitive bidding in the letting of municipal contracts are for the purpose of inviting competition, to guard against favoritism, improvidence, extravagance, fraud and corruption, and to secure the best work or supplies at the lowest price practicable, and they are enacted for the benefit of property holders and taxpayers, and not for the benefit or enrichment of bidders, and should be so construed and administered as to accomplish such purpose fairly and reasonably with sole reference to the public interest. These provisions are strictly construed by the courts, and will not be extended beyond their reasonable purport. Such provisions must be read in the light of the reason for their enactment, lest they be applied where they were not intended to operate and thus deny municipalities authority to deal with problems in a sensible, practical way.... ”
An important distinction exists, however, between a taxpayer’s challenge of a contract or statute as ultra vires, as discussed above, and that of a contract or statute as not being administered correctly. We explained this difference in Ruark:
[Tjhere is a distinction drawn between the prevention of public officials from doing a primary act, which is ultra vires or unlawful, as the making of a contract, of an assessment of property, of a levy of taxes, or of an appropriation of funds; and the occurrence of secondary errors, irregularities, or criminal conduct in the course of the performance of a valid contract or of an authorized municipal function. The latter acts fall into a different category and, generally, do not justify the issuing of an injunction, since they are not of a fundamental character, and may be controlled or compensated by other remedies, and because equity has no supervisory power over public corporations and their officers.
Ruark,
where the action of a municipal corporation or administrative agency is within the scope of its authority, and does not affect the vested rights of liberty or property, the court will not review its exercise of discretion, unless such exercise is fraudulent or corrupt or such abuse of discretion as to amount to breach of trust. The courts assume the fitness of administrative officials who are familiar with the matter in dispute and informed by training and experience to pass upon the questions of fact presented to them. Therefore, the courts feel that they should not substitute their own judgments for the findings of administrative officials in the absence of unusual circumstances.
Coddington v. Helbig,
On a suit by a taxpayer, a court of equity will not review the exercise of discretion of an administrative agency, if it acts within the scope of its authority, unless its power is fraudulently or corruptly exercised; but the court will restrain an agency from entering into or performing a void or ultra vires contract or from acting fraudulently or so arbitrarily as to constitute a breach of trust....
Hanna,
In contrast, in
Coddington,
several taxpayers sought to enjoin the Board of Commissioners of Garrett County from expending certain borrowed money for the construction of two high school buildings. The taxpayers argued that the Commissioners were authorized to borrow the money to build new schools
and to improve and/or make additions to existing
“if there be an attempt to apply the funds to objects not embraced within the power granted, or to objects within the power, but in total disregard of essential conditions prescribed by the statute to make it lawful to appropriate the funds, a court of equity will interfere to restrain such action.... But so long as such body of public functionaries confine themselves within the limits of the power delegated, the court will not interfere with the exercise of their discretionary powers, or undertake to determine the question whether the act complained of be wise or unwise, good or bad.”
Coddington,
In the instant case there is no allegation that the County Commissioners are acting fraudulently. The only question for decision, therefore, is whether the bill alleges such gross abuse of discretion as to amount to breach of trust. There is no doubt that the Commissioners have the authority to erect high school buildings in places other than the towns mentioned in the Act, for the Act gives them broad authority, subject only to the State Superintendent’s approval, to build school buildings in any community or communities that need new buildings.
Coddington,
Thus, because challenges of “a
secondary
error” do not fall necessarily within the same category of the well-settled doctrine in this State that taxpayers may seek the aid of a court of equity to “prevent[ ] [ ] public officials from doing a primary act, which is ultra vires or unlawful, [such] as the making of a contract ...,”
Ruark,
In contrast, Appellees’ challenge of the State Center’s TOD designation is, if error at all, a “secondary error” that is not subject to our review.
70
While the RFQ, MDA, and First
Lastly, Appellees alleged that they were damaged by the presumed competition that the completed State Center would pose to their businesses.
See, e.g.,
Amended Complaint, at ¶ 22 (“The relocation of State agencies from the CBD to State Center will cause the Commercial Property Owners and Retail Merchants [termed “Plaintiffs” in this opinion] loss of revenues, diminution of asset values and other economic harms, deprive Baltimore City of property tax revenues at levels now paid by the [Plaintiffs] and further the flight and blight in the CBD. This constitutes an imminent harm to the [Plaintiffs] caused by the
ultra vires
actions of the State agencies.”) While such allegations do not detract from our finding that other allegations were sufficient to satisfy this
(2) Nexus
Perhaps the most frequent stumbling block for a taxpayer to bring a suit under the doctrine is that the challenged act must affect potentially a tax that the taxpayer-plaintiff pays,
i.e.,
this nexus must be alleged sufficiently. A review of the cases reveals that the taxpayer must be asserting a challenge and seeking a remedy that, if granted, would alleviate the tax burden on that individual and others;
72
otherwise, standing does not exist. The corollary to this requirement is also that taxpayers may challenge only certain
Many cases emphasize that standing cannot exist if the remedy sought would not decrease the taxpayer’s monetary burden. For example, in
Citizens Committee of Anne Arundel County, Inc. v. County Commissioners of Anne Arundel County,
It is important to note also that, even where a plaintiff may aver he is bringing the suit as a taxpayer, a court must examine whether he alleges that his tax burden is hurt
The requirement that the remedy sought, if granted, must alleviate the taxpayer’s burden must be viewed also in light of the general principles that require the doctrine to extend to
all
similarly-situated taxpayers. In other words, the remedy sought, if granted, must alleviate
all
similarly situated taxpayers’ burden, not just the plaintiffs’ personal burdens. This Court concluded that taxpayer standing did not exist in those cases where the plaintiffs sued in equity, allegedly as taxpayers, but failed to explain how the injury would extend to all taxpayers as a class generally. In such cases, “the ground of complaint is limited to their own injury.”
Cook v. Nomac Corp.,
In
Cook,
the individual injury alleged was “only that which may result from competition.... But mere competition is not an evil which business men may enjoin as a wrong to them. Competition without full compliance with the law has been enjoined at the suit of private individuals, but only under some conditions----”
Cook,
This suit, however, was not brought by the plaintiff as a taxpayer of the state, on its own behalf and on behalf of other taxpayers of the state, nor does it appear from the averments of the bill that it was such a taxpayer. The bill does not therefore bring the plaintiff within the class of persons entitled to maintain a suit to restrain the executionon behalf of the state of an illegal contract, or to enjoin the unlawful expenditure of the funds of the state.
When, however, the complainant alleges that he or she will suffer as a taxpayer due to increased taxpayer burdens and the government alleges that the taxpayers will not suffer any increased taxpayer burden, but rather the taxes would be diminished likely, “the court will not weigh potential gains against potential losses and speculate on a net result” “in determining a taxpayer’s pecuniary injury resulting from a claimed unlawful governmental act.”
75
Inlet Assocs.,
When the complainant alleges a reasonable potential for increased taxes or pecuniary loss, this Court has not hesitated to find (repeatedly) that such minimal allegations are sufficient.
See, e.g., Boitnott v. Mayor of Baltimore,
In the present case, the State Agencies aver that Appellees’ claims of taxpayer harm lack any “nexus” to the alleged illegal acts of the public officials. This is not accurate. While it is true that the total cost exposure to the State is difficult to ascertain, see Amended Complaint, at ¶ 14 (quoting the Department of Legislative Services (“DLS”), State Center — Transit-oriented Development Bñefing (Feb.2009), as stating that “the total cost exposure to the State may never be known”), such a difficulty is the reason that we do not require taxpayers to demonstrate in pleading the exact pecuniary loss or increase in taxes.
In this case, Appellees alleged in their Amended Complaint that the Project is expected to cost $1.5 billion. Amended Complaint, at ¶ 2. “By virtue of the First Amendment, MDOT assumed that obligation [for the design, financing, construction, operation and maintenance of an underground garage for the Project] and also agreed to contribute up to $28 million taxpayer dollars toward the cost of the garage design and construction.” Amended Complaint, at ¶ 10. On 15 December 2010, “the BPW approved the issuance of $33 million in MEDCO Bonds supported by taxpayer revenues to build a Phase I parking garage at State Center----” Amended Complaint, at ¶ 17. More specifically, Appellees allege that they will suffer a property tax increase due to this Project:
Although the cost of the redevelopment has been represented to be financed with private funds, it will actually be financed in substantial part at the expense of existing Commercial Property Owners, Retail Merchants and others, through, among other ways, the issuance of City property tax increment financed bonds and other State and City assisted tax incentives. For example, the Project calls for the establishment of a Tax Incentive Financing (“TIF”)program of up to $814,254,055.00, allowing the Project’s self-described “partner,” Baltimore City, irrevocably to redirect future, increased property tax payments away from important City services and needs and into the debt service for the Developer’s construction financing. Plaintiffs will sustain an adverse impact from these expenditures, and those of the State, of taxpayer funds.
Amended Complaint, at ¶ 19 (emphasis added) (footnote omitted). Additionally, Appellees assert that, because,
“[t]he projected property assessments for State Center appear unrealistically high and do not appear to provide a sufficient base for paying the annual debt service on the TIF without providing any additional property tax revenue in Baltimore City for the first 25 years,’ ... ‘there is the potential that the developer could pass on higher costs to the State in the form of additional rent payments in order to cover annual debt service on the TIF.”
Amended Complaint, at ¶ 20 (quoting DLS,
State Center Transit Oriented Development Briefing
(May 2009) (hereinafter “DLS May 2009 Briefing”)).
76
Appellees conclude the intro
(3) Amount of Pecuniary Harm.
In this case, the State Agencies aver that, even if Appellees alleged a proper type of “harm,” the amount of pecuniary loss asserted was too speculative to confer taxpayer standing. The State Agencies suggest that, because the State is the actor in this case, the amount of increase in Appellees’ taxes is too attenuated or diluted to confer taxpayer standing. This argument continues that the taxpayers have more of a direct interest in challenging a municipal action (like one taken by the City only) than the State’s action because, when the damage is spread across all of the City’s taxpayers, the individual taxpayer will feel more of an impact than when spreading an alleged injury across all of the State’s taxpayers.
It is well-settled that the individual’s monetary burden does not need to be calculable at the time of filing suit. Equally well-settled, however, is the requirement that there must be a “clear showing” that a monetary burden is alleged. This Court has noted repeatedly that the taxpayers are not required to prove an exact amount of pecuniary damage that he or she or they will suffer. In fact, we have gone so far as to state that the amount of individual loss is largely irrelevant.
See, e.g., Citizens Planning,
The courts below attached considerable significance to what they regard as conclusory language in the bill of complaint. Concededly, the allegations might have been particularized in greater detail, but this shortcoming may have been unavoidable in the unique circumstances of this case. The extent to which a taxpayer is capable of detailing the damage anticipated from an illegal and ultra vires act, such as is alleged here, may be rather limited at the time the suit is initially filed. Contrary to the suggestion of the Court of Special Appeals, appellants are not required to allege ‘... facts which necessarily lead to the conclusion that taxes will be increased.’ [Citizens Planning & Housing Ass’n v. Cnty. Exec. of Baltimore Cnty.,] 20 Md.App. [430,] 434, 316 A.2d [263,] 266 [ (1974) ] (emphasis added). The test is whether appellants reasonably may sustain a pecuniary loss or a tax increase; see Reed v. McKeldin [, 207 Md. 553 , 558,115 A.2d 281 , 284 (1955) ]; Masson v. Reindollar [,193 Md. 683 , 687-88,69 A.2d 482 , 484 (1949) ]; Liquor Stores Assn. v. Commrs [,171 Md. 426 , 429,189 A. 209 , 210 (1937) ] ....; or, as the Court of Special Appeals itself noted, whether there has been a showing of potential pecuniary damage. Gordon v. City of Baltimore, [ ] 258 Md. [682,] 687-688,267 A.2d 98 [, 101-02 (1970) ]; see Thomas v. Howard County, [ ] 261 Md. [422,] 432,276 A.2d 49 [, 54 (1971) ].
Probably the loss to one taxpayer in any such proceeding seldom amounts to $20, the minimum of the debt or damage which a court of equity may consider. Code, art. 16, § 109; Kenneweg v. Allegany County Com’rs,102 Md. 119 , [121],62 A. 249 , 250 [ (1905) ]. But, when a suit is instituted by one or more taxpayers in representation of all, the case is quite different. The amount involved and sought to be protected is then the total amount of loss to taxpayers, or the total amount which may be wrongfully expended. In Kenneweg v. Allegany County, supra, cited against the maintenance of the present suit, a single taxpayer was the complainant, and, as the court observed, he “does not sue in behalf of himself and other taxpayers who may be similarly situated, * * * but he sues alone, in his own nameand his own behalf.” His loss alone was too small to come within the statutory limitation, the court held. But a bill filed in the name of one or more of the taxable inhabitants for themselves and all others similarly situated the court should regard as “in the nature of a public proceeding to test the validity of the corporate acts sought to be impeached and deal with and control it accordingly.” 4 Dillon, Municipal Corporations (5th Ed.) § 1587; Kelly, Piet & Co. v. Mayor, etc., of Baltimore, 53 Md. 134 , 141 [ (1880) ].
Sun Cab Co.,
In sum, we conclude that Appellees pleaded taxpayer standing doctrine sufficiently and, thus, the Circuit Court denied properly the State Agencies’ Motions to Dismiss on standing grounds.
B. THE FATAL FLAW — THE DOCTRINE OF LACHES.
After climbing the foothills to this point and with the mountain almost in sight, Appellees’ surviving claims on the merits shall stumble and fall to a figurative death in the crevasse that is the equitable doctrine of laches. The State Agencies moved to dismiss Appellees’ Amended Complaint in the Circuit Court, arguing,
inter alia,
that the claims were barred by the doctrine of laches due to an unreasonable delay in bringing their claims, causing prejudice to the defendants.
The doctrine of laches applies when there has been an “unreasonable delay in the assertion of one’s rights” and when “that delay results in prejudice to the opposing party.” Liddy v. Lamone,398 Md. 233 , 244 [919 A.2d 1276 ] (2007). Defendants argue that Plaintiffs adopted a “wait and see attitude” and should have brought their claims following the issuance of the Request for Qualifications in 2005. Conversely, Plaintiffs assert that the Master Development Agreement, 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 to the Master Development Agreement and the Phase I Occupancy Leases, approved July 28, 2010 and amended on December 15, 2010.
When considering a motion to dismiss, the court must assume the truth of Plaintiffs’ well-pleaded factual allegations in the complaint. McDaniel v. Am. Honda Fin. Corp.,400 Md. 75 , 83 [926 A.2d 757 ] (2007). As Plaintiffs’ initial complaint was filed on December 17, 2010, this Court finds that Plaintiffs’ claims are not barred by laches.
In Appellees’ Motion to Dismiss this appeal, they argued that this Court should not entertain this argument because the State Agencies failed to present properly this argument in the State Agencies’ Petition for Writ of Certiorari. Thus, we consider first the propriety of addressing this issue. Because we find such a review proper in this case, we will move then to analyzing the merits of the laches argument.
1. Propriety of Addressing Laches.
Although this issue was not presented in the Petition for Writ of Certiorari, we find that addressing it is properly within our discretion. Generally, the affirmative defense of laches in Maryland “can be invoked by a court on its own initiative,” even if it was not pleaded.
Liddy v. Lamone,
2. Standard of Review.
In reviewing whether the doctrine of laches bars Appellees’ claims, we review the Circuit Court’s determination without deference.
See Liddy,
3. The Fatal Flaw.
“Laches ‘is a defense in equity against stale claims, and is based upon grounds of sound public policy by discouraging fusty demands for the peace of society.’ ”
Ross v. State Bd. of Elections,
It is ... well settled that laches “applies when there is an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to the opposing party.” Frederick Road Ltd. Partnership v. Brown & Sturm,360 Md. 76 , 117,756 A.2d 963 , 985 (2000), citing Inlet Assoc. v. Assateague House Condominium Ass’n,313 Md. 413 , 438-39,545 A.2d 1296 , 1309 (1988); See Ross,387 Md. at 669 ,876 A.2d at 704 (“[L]aches must include an unjustifiable delay and some amount of prejudice to the defendant”); Schaeffer v. Anne Arundel County,338 Md. 75 , 83,656 A.2d 751 , 755 (1995) (“[L]aches is an inexcusable delay, without necessary reference to duration in asserting an equitable claim”) (emphasis in original); Simpers v. Clark,239 Md. 395 , 403,211 A.2d 753 , 757 (1965) (“[F]or the doctrine [of laches] to be applicable, there must be a showing that the delay [in the assertion of a right] worked a disadvantage to another”); Hungerford v. Hungerford,223 Md. 316 , 320-21,164 A.2d 518 , 521 (1960) (“Only two requisites are necessary in order to invoke the doctrine of laches. There must have been some lapse of time during which plaintiff failed to assert his rights, and the lapse must have caused some prejudice to the defendant”). Prejudice is “generally held to be any thing that places [the defendant] in a less favorable position.” Ross,387 Md. at 670 ,876 A.2d at 704 , quoting Buxton,363 Md. at 646 ,770 A.2d at 159 ; Parker,230 Md. at 130 ,186 A.2d at 197 ; Roberto v. Catino,140 Md. 38 , 43,116 A. 873 , 875 (1922).
Liddy,
a. Whether laches applies to taxpayer suits?
While neither party raised the contention that laches may not be applicable in taxpayer suits, we find it necessary to examine this issue prior to our further analysis of laches here. Some authority in other jurisdictions does not permit the doctrine of laches to bar a taxpayer’s right to invoke the powers of a court of equity to prevent the unlawful dissipation of public funds. For example, the Supreme Court of North Dakota reached such a conclusion in a Nineteenth Century case, explaining,
In our judgment, no laches on the part of taxpayers or others can operate to confer authority upon the officials of a corporation in a case where such officials are wholly without power to act.... [LJaches does not ordinarily prevent the intervention of a taxpayer to enjoin a disbursement of public funds about to be made without the authority of law or in defiance of law. Nor (if this action should be dismissed without a decision upon the merits, and on account of the laches of this plaintiff) are we able to see any reason why another action for the same relief might not be instituted by some taxpayer and resident who has not been guilty of laches in the premises. If this be true, it would certainly not be in furtherance of justice to dismiss the present action without determining the merits.
Storey v. Murphy,
“s 412. Distinction between private or proprietary rights and public or governmental rights.
‘A distinction has been made in many jurisdictions, with respect to the application of the statute of limitations in actions by political subdivisions, between actions based upon ‘private’ or ‘proprietary’ rights and those based upon ‘public’ or ‘governmental’ rights. Where this distinction is recognized, the inquiry is whether the state, or its agency or subdivision, is asserting public rights on behalf of all the people of the state or merely private rights on behalf of a limited group.
“The statute of limitations will bar the governmental unit where it is asserting a private or proprietary right, but will not apply where the right being asserted is public or governmental in nature. In other words, the governmental plaintiff, in seeking to enforce a contract right or some right belonging to it in a proprietary sense, may be defeated by the statute of limitations, but as to rights belonging to the public and pertaining purely to governmental affairs, and in respect of which the political subdivision represents the public at large or the state, the exemption in favor of sovereignty applies, and the statute of limitations does not operate as a bar.”
In
Gloyd v. Talbott,
On the point of laches, it has been said that an equity court will temper the relief according to the circumstances of the particular case. Cf. Konig v. Mayor & City Council of City of Baltimore, [128 Md. 465 ,97 A. 837 (1916) ]. It has also been said that laches should not be applied against a public body, or in a derivative suit with the same rigor as against an individual. See Thornton v. Willage [Village ] of Ridge-wood,17 N.J. 499 ,111 A.2d 899 [ (1955) ]. The reasoning seems to be that laches is a special application of the doctrine of estoppel, which does not generally apply against a public body. See note1 A.L.R.2d 338 , 351. We see no reason for applying it in the instant case, at least as to payments made subsequent to April 1,1954.
Gloyd,
Even considering the foregoing, we conclude that it is inappropriate to adopt a bright line or per se rule that laches may not be asserted as a defense in a taxpayer suit. Rather, the application of the doctrine of laches should be determined by what equity demands in a given case. For example, where a taxpayer seeks an injunction prior to a state agency entering a contract, courts might be more inclined to finding that laches should not apply. In this case, however, due to the five-year period between the beginning of the official process for the development of the State Center Project and Appellees filing of their lawsuit (and due to the extensive, public communications regarding both the visions and the process for the Project throughout the five-year period), it would be unequitable to foreclose consideration of the doctrine of laches in this case.
b. Delay in Filing.
In order for laches to bar a claim, “ ‘there [must be] an unreasonable delay in the assertion of one’s rights
In determining whether a delay is unreasonable, we must analyze (i) when, if ever, the claim became ripe (ie., the earliest time at which Appellees were able to bring their claims); and (ii) whether the passage of time between then and when the Appellees filed the complaint was unreasonable.
i The starter’s gun sounds.
We begin by considering when Appellees’ claims became ripe in this case. In order for a circuit court to entertain an action, a justiciable controversy must exist.
80
See
Justiciability has been described as a “concept embodying ‘numerous hurdles.’ ”
Boyds,
One of the first steps in the ripeness analysis is to analyze what interests Appellees claim have been injured. It is important to remember the limited basis upon which Appellees stand. Namely, Appellees bring their claims on the grounds of taxpayer standing; the implications of this is that the only claims that might be before this Court on the merits properly (and, thus, that could be barred by the doctrine of laches) are those claims brought under the taxpayer standing doctrine and on appeal in this case. 81 Thus, we confront only those claims alleging ultra, vires or illegal governmental actions that may cause a pecuniary loss to taxpayers. 82
We reject ultimately the parties’ arguments. We begin by addressing Appellees’ assertion that their claims were not ripe until the execution of the binding MDA. The ripeness analysis depends upon the type of lawsuit, which, in this case, is a taxpayer suit. A traditional remedy sought in a taxpayer suit is an injunction to preclude the government from acting in an illegal or ultra vires manner. As such, the taxpayer suit is unique and, although there must be substantial certainty that the government will act in an illegal or ultra vires manner, taxpayers are not required to wait until the government has acted in an illegal or ultra vires manner prior to filing suit. Such a holding would be inconsistent entirely with the nature of the taxpayer suit modality. The question remains, though, when does the government’s imminent action become substantially certain so that the claim reaches ripeness?
In answering this question in the context of the present case, we find
Boyds
most applicable and very instructive. In
Boyds,
Montgomery County amended a master plan to provide that certain described land might be suitable for imposi
The Court of Special Appeals and the respondents perceived the case to be governed by
Anne Arundel County v. Ebersberger,
In Ebersberger, a group of homeowners ... challenged as unconstitutional and ultra vires a county ordinance which authorized their community association ... to raise money for swimming pool renovation and maintenance. The Court of Special Appeals held that the action lacked ripeness. In so doing, it emphasized the fact that the ordinance merely authorized, but did not require, the renovations and the fact that there was no certainty the work would ever be done:
“[T]he ... ordinance does not require the district to renovate the pool; it merely authorizes such work. Nor does it specify any particular means of financing the renovation. There is certainly no assurance, from the record now before us, that a budget containing an appropriation for the pool will ever be approved or that a special benefit tax to support such an appropriation will ever be levied.
“At least until the prospect of such an appropriation or such a tax becomes substantially more certain, the plaintiffs will have suffered no injury from the challenged ordinance, and its validity or invalidity is therefore of no practical consequence.”62 Md.App. at 371 ,489 A.2d at 101-02 (emphasis in the original).
[t]he challenged amendment to the Boyds Master Plan merely authorizes the District Council to grant an application for Mineral Resource Recovery zoning; it does not require the District Council to do so .... the adoption of the amendment has not affected any of petitioners’ legal rights or caused them any injury, and the future effect upon petitioners remains “wholly speculative.”
This Court disagreed, stating:
There is, however, an important distinction between Ebersberger and the ease at bar. The Ebersberger court reasoned that the challenged ordinance could have no injurious effect upon the plaintiffs until the prospect of its implementation became “substantially more certain.”62 Md.App. at 371 ,489 A.2d at 102 . Here, by contrast, the challenged plan amendment was initiated, approved, and adopted in furtherance of an actual, pending application to amend the local zoning map. Moreover, the designation of an area on the applicable master plan as suitable for a Mineral Resource Recovery Zone was a condition precedent to the granting of an application for zoning of an area as a Mineral Resource Recovery Zone. In Count I of the complaint filed in the circuit court petitioners claimed that hearings— spanning some four days — on the application to amend the local zoning map would not have gone forward if the master plan had not been amended. In Count II petitioners alleged that the actions of the Commission and District Council with respect to the plan amendment forced petitioners to hire counsel and land consultants in order to participate in the local zoning map amendment proceedings. The prospect of a controversy, therefore, lay well beyond the realm of matters “future, contingent and uncertain.”
Boyds,
Similar to
Boyds,
in the present case, several earlier steps were initiated, approved, and executed in furtherance of the
This approach, which recognizes that certain earlier stages in a series of envisioned overall stages may reach a level of substantial certainty prior to the government executing a binding document, fits properly within the realm of Procurement Law. This State’s Procurement Law recognizes that filing and resolving disputes earlier, rather than later, is best. Taxpayers filing suits based on violations of the Procurement Law should not be encouraged to delay airing their claims because delay may cost taxpayers more money where the announced path to the binding contract for a procurement is set and, as in this case, takes many years to reach fruition. If the government acted illegally in an early stage that sets the stage for (and selves as a condition precedent to) its later execution of a binding contract, then the alleged illegality has “occurred” for purposes of laches analysis.
Contrary to Appellees’ assertions, this approach to the ripeness analysis does not contradict either Inlet Associates or Superblock II. Neither of those cases held that a final or binding document was a prerequisite to ripeness. Rather, the specific facts of those cases illustrate when a controversy may be “future, contingent and uncertain” and when one may become ripe. We consider these cases further.
In
Superblock II,
120 West Fayette alleged that a
proposed
plan for the Superblock would violate the MOA and the Renewal Plan. The plan was a mere proposal, however; the City had not yet adopted, approved, or authorized any plans. The Court stated that “[a] declaratory relief action that requests adjudication based on facts that have yet to occur or develop lacks ripeness and should be dismissed for failure to allege a justiciable controversy.”
Superblock II,
413 Md. at
Inlet Associates involved a taxpayer action to enjoin the conveyance of a municipality’s public right-of-way that was part of a dedicated street, together with riparian rights purported to accrue as a result of the municipality’s interest in the dedicated street. In that case, this Court rejected Inlet’s argument that the doctrine of laches barred the plaintiffs’ action. In so holding, the Court stated,
The trial judge noted that the City Council did not place its final imprimatur on the Inlet proposal, which as amended included the restaurant in place of the shops on the pier, until October 6, 1986; and that the present case was filed approximately one month later. One reason for the opposition of the unit owners in Assateague House was the late inclusion of the restaurant and its location in the Inlet proposal. In any event, we think it clear from our discussion of equitable estoppel that the doctrine of laches, even if otherwise applicable, does not legalize this patent violation of the Ocean City Charter. We note parenthetically, however, that until the summer of 1986, Inlet had not received the necessary permits and authorizations to permit it to proceed to implement its proposed plan. Plaintiffs’ suit in November of 1986 was hardly a delay befitting a serious claim of laches.
Inlet Assocs.,
Although no binding written agreement is required necessarily for a claim to achieve ripeness, some of Appellees’ claims rest on governmental actions which were not envisioned specifically by earlier stages of the State Center Project and did not occur until after the MDA and/or First Amendment were executed. Appellees’ suggestion, in their brief, that these latter-arising claims save all claims (even those which arose at an earlier date) is without merit. Although the doctrine of laches may not bar a singular claim arising later in the process, Appellees’ inclusion of latter-arising claims does not save from a laches bar those claims which accrued earlier. Thus, for our analysis of the starting of the clock for ripeness, we organize Appellees’ claims together in groups according to
The majority of the claims arose out of events or actions envisioned in (or foretold by) the RFQ. The public issuance of the RFQ standing alone, however, is not substantially certain for ripeness purpose. Under the Procurement Law (assuming for argumentative purposes it applies), prior to the issuance of an award, prospective bidders are permitted generally to file a complaint (until the time the bid is awarded) concerning the information listed in an RFP. Normally, up until the time of the awarding of a bid, the State may withdraw an RFP and change some of the provisions. By analogy, the awarding of a bid under an RFP is similar to the selection of the Master Developer under the RFQ in the present case. Thus, we must look to some further action by the State Agencies (other than the public issuance of the RFQ) to determine the time that the claims accrued as to subsequent actions predicated upon what the RFQ predicted would follow.
First, the State’s intentions to select a Master Developer in the manner prescribed in the RFQ is not considered as finalized until the public announcement of the selection of the Developers on 21 March 2006. The procedures for the original selection of the Master Developer were set forth explicitly in the publicly issued RFQ in 2005. Although construction and leasing of the Project was not enforceable between the State and the Developers merely upon selection of the Developers, the awarding of the exclusive right to negotiate was the intended first stage in a series of envisioned stages required for the Project to reach fruition. The claimed illegality that caused Appellees asserted harm stemmed from this stage and, thus, it is the proper starting point for ripeness as to those claims related to those actions. In other words, the significance — and the alleged violation of the Procurement Law— does not occur when the MDA and/or the First Amendment were executed, but rather when the State Agencies agreed to negotiate only with the Developers in pursuit of the later
Second, those claims regarding the nature of the Project as envisioned in the RFQ became finite at the very least by the time the BPW authorized the State Agencies to enter into the MDA. Although the earlier contracts (such as the LOI) were not binding, it is undisputable that the MDA bound the State and the Developers to the State Center Project. The taxpayers did not need to abide the date of execution of the MDA, but rather only until the controversy became substantially certain. The BPW authorized the State Center Agencies to enter the contract on 3 June 2009. At the very least, taxpayers could have maintained a suit at that point seeking an injunction to preclude the State from entering into this contract, which the taxpayers should have known would bind the State to later actions Appellees allege now as ultra vires and illegal, with the Developer that was chosen in an ultra, vires manner. Instead, the taxpayers bided their time.
At that time the MDA was executed on 15 June 2009, there is no doubt that an enforceable, binding contract existed. All claims relating to the envisioned stages set forth in the RFQ accrued at that point. Particularly in light of the taxpayers’ knowledge of what the 2005 RFQ envisioned, the selection of the Master Developer in 2006, and the BPW authorization of the State Agencies to enter the MDA, Appellees could have filed suit more promptly in an effort to forestall further
The third group of claims includes those which related to alleged “material changes” in the First Amendment (departed from the terms set forth in the MDA). Appellees allege that these changes were so substantial that they could not have been envisioned at the time of the MDA and, thus, no claim existed prior to the adoption of these changes in the First Amendment. We agree that, to the extent that such changes were not predicted or called for in the MDA, they would accrue generally at the time of the First Amendment, rather than at the time of the execution of the MDA. Because we conclude ultimately that the time period between the First Amendment and the filing of the present lawsuit was unreasonable and prejudicial to the State Agencies and Developers, however, we do not consider whether these changes were so “material” as to warrant requiring a new selection of a Master Developer (assuming again, argumentatively, that the Procurement Law applies). Rather, we find it sufficient to assume that Appellees are correct that these changes were so material that the First Amendment represented a new violation upon which Appellees’ related claims ripened.
Lastly, the fourth group consists of various claims Appellees allege arose after the execution of the First Amendment. Appellees note that the BPW approved amendments on 15 December 2010 to four leases approved originally in July 2010. According to Appellees, the sample leases contained in the MDA and the First Amendment did not include sufficient details upon which their claims related thereto could be described as ripe. Perhaps had Appellees’s alleged violations relied upon the specific details set forth in either the original or amended leases, we might find some merit in their contention. In this case, however, Appellees’ argument is based on an alleged violation of the Procurement Code, which, for all practical purposes as regards their claims, was envisioned clearly in the RFQ and then set forth again — at great length — in the MDA and First Amendment. Because Appellees did not need to wait until the final binding document to
In sum, we group certain claims together that fall under the same umbrella of accrual. The first group, those claims envisioned by the RFQ that came to pass with the selection of the Developers, accrued at the very latest on 21 March 2006. The second group, those envisioned either by the RFQ and included in the executed MDA or envisioned initially in the MDA, accrued on 3 June 2009, the date that the BPW authorized the State Agencies to enter the agreement. The third group, those claims of material changes between the MDA and the First Amendment, accrued in July 2010, when the BPW authorized the State Agencies to enter the First Amendment. Lastly, the other “material changes” which occurred after the First Amendment were not the basis of the alleged violations and, thus, we conclude that those claims should be grouped as falling under the same analysis of the “material changes” in the First Amendment because they were envisioned in the earlier stages.
ii Whether the delay was unreasonable?
Next, we consider the proper approach for determining what amount of time constitutes an unreasonable and unjustified delay. Although there is no bright-line rule, the doctrine of laches and statutes of limitations have an intertwined relationship that we must consider as a first step in this portion of the analysis. This Court has recognized that, where appropriate, we should look to the General Assembly for guidance in determining what amount of time is reasonable.
Schaeffer v. Anne Arundel Cnty.,
Choosing the applicable measure of impermissible delay for cases where an equitable remedy is sought is most straightforward in cases when there are concurrent legal and equitable remedies and the applicable statute of limitations for the legal remedy is equally applicable to the equitable one.
Schaeffer,
“The authorities indicate that even when the remedy for a claimed right is only in equity, the period of limitations most nearly apposite at law will be invoked by an equity court, provided there is not present a more compelling equitable reason — such as fraud or other inequitable conduct which would cause injustice if the bar were interposed — why the action should not be barred.”
Id.
(quoting
Stevens v. Bennett,
“Generally, if there is no action at law directly analogous to the action in equity, the three-year statute of limitations found in Maryland Code (1974,1989 Repl.Vol., 1994 Cum.Supp.), § 5-101 of the Courts and Judicial Proceedings Article[
84
] will be used as a guideline.”
Schaeffer,
That statute, however, applies to the special statutory remedy before the PSC while the issue now under consideration, WSSC’s authority to adopt SEOC, is not subject to that special statutory remedy. Where, as here, the claim under consideration properly invokes the original jurisdiction of the circuit court, the analogy for laches should not be to a time limit for initiating a special statutory administrative remedy applicable to a different theory of the case.
Id.,
In this case, the State Agencies urge an analogy to the timeliness requirements in the Procurement Law’s Regulations. Title 21 of the Code of Maryland Regulations promulgates the State Procurement Regulations. COMAR 21.10.02.03B requires protests relating to the formation of a contract to be filed “no[ ] later than 7 days after the basis for protest is known or should have been known, whichever is earlier.” COMAR 21.10.02.03B.
Before we confront the proffered analogy to the Procurement Law
vet non,
we conclude that, under the more generous
In regards to the second group (those claims arising from events or actions envisioned in either the RFQ or MDA and made actual in the MDA) and third group (those claims arising from events or actions that represented allegedly “material changes” from the MDA to the First Amendment), we consider whether the less generous analogy to COMAR 21.10.02.03B makes sense in the context of this case. We note first that a strict timeliness requirement is reasonable generally for protests of alleged procurement infractions, as the COMAR section makes evident. Procurements are issued for services or goods that the government needs. Once a submission is awarded for the project or the order for goods, both the awardee and the government proceed (presumably promptly) to expend time and resources on the completion of the procurement’s goal. Allowing an extended period for protests to be brought forth would hinder the government’s ability to obtain the needed item or service (and would increase costs for developers and contractors interested in government contracts). The question in this case, though, is whether the seven day statutory limit, which is appropriate for bid protests to the Appeals Board, is appropriate for importation by analogy here where the complainants are not entitled to protest the action in any administrative avenue.
In light of
Washington Suburban,
which held that the statutory limitation for an administrative remedy was not appropriate for a claim for which a circuit court had original
Such a conclusion fits comfortably within our taxpayer standing doctrine jurisprudence. Although the motive of a taxpayer bringing suit is immaterial to whether the complainant has standing, the motive is not immaterial as to the relief sought in taxpayer standing suits. As the Court stated in
Konig v. City of Baltimore,
While Tinder the decisions a Court of Equity may grant relief to a taxpayer even if it is not satisfied that he is acting in good faith, or is influenced by proper motives, yet when it is called upon to determine what relief it will grant the plaintiff, there is no reason why the court should be compelled to shut its eyes and not see what the real facts are. This court refused to grant to Kelly, Piet & Co. any relief, although they were taxpayers as well as bidders, because it was really a controversy between rival tradesmen for the custom of the city. [Kelly v. Mayor of Baltimore,53 Md. 134 (1880).] Notwithstanding what we have said, the appellant claims to appear in this court for the purpose of protecting himself and other taxpayers from loss, but no other taxpayer has within the two years since the bill was filed asked to be made a party. The board of awards cannot be censured for endeavoring to save the city moneyin awarding the contract, if they believed they were complying with the charter. No other motive is suggested, and, when we remember of whom the board is composed, no improper motive will be presumed. Every principle of justice would prohibit an individual or a private corporation from profiting by such a mistake affecting an honest contractor, by keeping the fruits of the mistake without paying for them, and, while the rules of law applicable to officers of municipal corporations are different from those governing private corporations, it would not be regarded by the public, for whose benefit such rules have been adopted, as just to deprive a contractor of all compensation for work done and accepted by the city under such circumstances as exist in this case.
Similarly, in this case, when analyzing what constitutes an unreasonable delay, we note that significant motivations of Appellees appear to be a “desire to stave off competition.” Their initial objections to the Project stemmed from the selection of the Master Developer, which was announced publicly by Governor Ehrlich on 21 March 2006, more than three years prior to Appellees’ filing of the Original Complaint. That they alleged additional violations should not save their complaint for equitable relief based on taxpayer standing. If the First Amendment’s “material” changes, which were approved and executed in September 2010, were the first stage of the alleged violations, we might be more likely to find reasonable the short time period between September 2010 and December 2010. Equity is not limited, however, to such a tunneled vision of the circumstances. Instead, we are permitted to weigh all the facts. In doing so, the motivations of the parties matter and indicate that Appellees’ delay in bringing their claims was unreasonable and unjustified.
c. Prejudice from the delay
The State Agencies assert on appeal that “[the Plaintiffs] waited to file while the State of Maryland and the Developer spent millions executing a contract the plaintiffs believe is
We find that the State Agencies in this case were prejudiced by Appellees’ unreasonable delay in bringing the suit.
87
To allow the taxpayers to bring the claim at the stage in the development when they did caused the State and Developers to waste substantial public funds, if there were any merit in Appellees’ substantive claims. Although we recognize a taxpayer’s interest in the State complying with the competitive bidding and other requirements set forth in the Procurement Law, when obliged to do so, the taxpayer cannot delay bringing suit in such a way that would cost the taxpayers even more money if the complaining taxpayer was right. Such a situation, although not directly parallel, is reminiscent of those taxpayer standing cases in which this Court found the taxpayer did not have an interest because declaring the act unconstitutional would cost the taxpayers actually more money, rather than a savings for the taxpayers. In such cases, we have found always that the complaining taxpayer lacked standing.
See, e.g., Citizens Comm. of Anne Arundel Cnty., Inc. v. Cnty. Comm’rs,
As this Court stated many years ago:
In equity, laches and neglect are discountenanced. Stale demands without any effort to enforce them, cannot meet the aid of a tribunal which only lends its power to reasonable diligence____[T]he indolence of those who are dilatory in recovering their property, and claiming what is due them, should be punished, and they should impute to themselves the punishment.
Hall v. Clagett,
Therefore, the present claims were improperly before the Circuit Court. We decline to address the merits of the procurement issue (Question # 1,
see supra
at 492,
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY VACATED. CASE REMANDED TO THE CIRCUIT COURT, WITH DIRECTIONS TO DISMISS APPELLEES’ AMENDED COMPLAINT, WITH PREJUDICE. COSTS TO BE PAID BY APPELLEES.
BATTAGLIA, J., joins in judgment only.
Notes
Every novella-length appellate opinion warrants one.
. 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-center20100727_1 _grocery-storedeveloper-office-and-ret ail-space.
. 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.”
. 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] Affordable Housing; [2] Green Design; [3] Senior Friendly Design; [4] Historic Preservation and Appropriate Design; and [5] Support of Creative Arts and Culture.”
. 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).
. The State Center, LLC, was composed originally of three companies. On 16 Januaiy 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.”
. We use the term "Developer” to refer to the State Center, LLC, as well as its affiliated subsidiaries.
. The MDA defined the "Approved Concept Plan” as a collection of documents, including, inter alia, the PDP, as confirmed in the LOI.
. 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 "[ajpproximately 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 "[ajpproximately 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.”
. 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.
. 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.
. The MDA provides that “[t]he parties anticipate that each Phase Ground Lease and applicable Occupancy Lease(s) lor 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.
. 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.
. 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.
. 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 ProjectQ] ... delayed and/or lost revenues from the garage associated with the Projectf;] ... 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[;j ... delayed and/or lost State tax revenues.”
. 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 (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.,
. Plaintiffs withdrew voluntarily Count IV.
. 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).
. 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,
. 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.
. 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.
. 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 scholarsregularly 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).
. 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).
. 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 evalúa! ed their answers, based on certain presuppositions regarding when a cause of action exists and what the properties of a cause of action arc. 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).
. 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.
. 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 "[bjecause 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.
. 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 contracts] ...; or (iv) a Medicaid contract with a managed care organization....” SFP § 1 l-101(n)(2).
. "Supplies” means, among other things, tangible personal property and services necessarily associated with tangible personal property. SFP § 1 l-101(w)(l). The term "supplies” does not include an interest in real property. SFP § ll-101(w)(2).
. “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)(l). 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 § ll-101(t)(2)-(3).
. "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).
. "Construction related services” is defined as "feasibility studies, surveys, construction management, construction inspection, and similar
. "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 § ll-101(b)(l). 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).
. "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)(l). 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).
. 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).
. 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
. For these reasons, we rely on the Amended Complaint throughout the remainder of this analysis.
.
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.
. In Ray, this Court summarized the distinction between a public and a private nuisance as follows:
A private nuisance is "a nontrespassoiy 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).
. When analyzing the distinction between "special aggrievement” and "generalized aggrievement,” because of these roots, courts "call upon the law of nuisance for enlightenment.”
Ray,
. 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,
. 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.
. 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 stalute.”
Ray,
. The Amended Complaint relied on language in the MDA, which suggested that it could have been within the ambit of
Superblock III. See
. 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.
. 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.
. 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,
. In this regard, Appellees are not challenging in this appeal the
. 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,
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,
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.
. This dicta appeared originally in
Bryniarski,
. Appellees focused their additional allegations throughout their arguments on "prima facie aggrievement” and "almost prima facie aggrievement.” As discussed earlier, however, these additional "factors” are not considered properly in those analyses without sufficient proximity. Because we found Appellees lacked sufficient proximity, we did not analyze Appellees’ arguments in those sections, but left our response to this last category.
. We explore later in this opinion whether a distinction exists between a complainant’s right to seek to enjoin a municipality’s action and that of the State’s action. For now, we observe that the early focus of the taxpayer standing doctrine regarding municipal actions was a reflection of "the panorama of American history.” Note,
Taxpayers’ Suits: A Survey and Summary,
69 Yale L.J. 895, 899 (1960). In this sense, "[t]he early suits were all brought against municipalities and were few in number, probably because of the relatively limited municipal expenditures and activities of that era.”
Id.
"With the expanding role of local government in economic activity after the Civil War, taxpayer litigation increased----"
Taxpayers’ Suits,
. Other states have adopted statutes granting taxpayers standing to stie.
. This analysis would be different if Appellees' claims were based in the Procurement Code and sought a remedy provided in the Procurement Code. Here, however, because Appellees bring suit based upon taxpayer standing and seek relief as such, we do not need to entertain arguments regarding whether a private right of action exists.
. In that case, private complainants brought a suit challenging the actions of the BPW in approving for State funding a proposed expansion of a road. The complainants "sought mandamus, a declaratory judgment, and injunctive relief based on their contention that the Board was obligated to issue findings of fact to support its decision.”
1000 Friends of Md.,
. We acknowledge that dicta in a footnote in
120 West Fayette St., LLLP v. Mayor of Baltimore,
. For purposes of clarity, we consider here the status of taxpayers generally. A later subsection of this opinion discusses the nexus requirement that, unless met, the mere status as a taxpayer (of any tax) is not sufficient. In order to meet the nexus necessary for the injury requirement, a plaintiff must prove that the taxpayer pays a tax, which will be increased most likely by the alleged ultra vires or illegal municipal act.
. In support of this assertion, the State Agencies rely on
Baltimore Street Builders v. Stewart,
. Were the only issue whether limited liability entities are able to claim taxpayer standing, we would agree likely with Appellees that the
. Companies are subject generally to federal and state income tax on their taxable income. A "pass-through” entity, however, is not a separate taxable entity. "Instead, its income, loss, deductions, and credits are passed through to its stockholders.” Charles A. Borek, Borek's Maryland Business Planning Guidebook § 2-13 (2009). Thus, "pass through” refers to a mechanism by which
[i]f certain conditions are satisfied, dividends paid to shareholders of regulated investment companies and real estate investment trusts are deductible in computing investment company taxable income.... Through this mechanism, no corporate tax will generally be imposed on these entities if all of their earnings are properly distributed to shareholders.
Joseph H. Langhirt,
Corporate Income Tax, in
1
Maryland Taxes
§ 4-5 (Robert A. Rombro et al. eds., 4th ed. 2005 & Supp.2008) (footnote omitted). In other words, “the income of a ... corporation is deemed to 'pass through’ to the shareholders who are then directly taxed on that income” in the same manner as other income.
Maryland State Comptroller of Treasury v. Wynne,
In Maryland, a “pass-through entity” is defined as "(i) an S corporation; (ii) a partnership; (iii) a limited liability company that is not taxed as a corporation under this title; or (iv) a business trust or statutory
. DaMimmo’s Italian Restaurant, although not a party to this appeal, was one of the listed Plaintiffs to the suit at the time the Circuit Court ruled on the State Agencies’ Motions to Dismiss and, thus, is part of our review whether that ruling was legally correct. Regardless of DaMimmo’s Italian Restaurant’s inclusion, though, Appellees satisfy the requirements for eligibility to bring taxpayer suit based solely on the inclusion of at least one presumed taxpaying corporation.
. We acknowledge that limited liability corporations and limited partnerships are not the only business entities that may receive “pass-through” tax treatments in this State. These eight corporations, if they were sub-chapter S corporations, would be classified as "pass-through” business entities with the same "pass-through” tax benefits of limited liability corporations and limited partnerships. We do not entertain, however, the possibility that these eight corporations may be a "pass-through” entity for purposes of this analysis. The State Agencies failed to mention that even one Plaintiff was neither a limited liability corporation nor a limited partnership and, moreover, failed to mention that sub-chapter S Corporations qualify as "pass-through” business entities as well in either its initial or reply brief. Although we could search the judicially-noticeable public records theoretically for this information (because the taxable status of a company is information available publicly), we find that such over-reaching is not proper for this Court. The State Agencies had the opportunity to present this evidence, if they so desired, a1 the trial court (but they did not) and, again, to this Court (but they did not).
. We reiterate that we do not reach the merits of the argument that pass-through entities may not allege taxpayer standing doctrine, but rather save that question for another day.
. In
Holt v. Moxley,
The Court found that the second taxpayer’s challenge was precluded by the first suit because the first suit was brought under the taxpayer standing doctrine and, thus, on behalf of all other taxpayers “by necessary implication.” In other words, because the first challenge was based on the taxpayer standing doctrine, which is an equitable doctrine, “[the
Holt
Court] applied the concept, traditional to equity practice, of virtual representation....”
See Gardner v. Bd. of Cnty. Comm’rs,
The fact that the earlier case did not state explicitly it was brought on behalf of other taxpayers was not dispositive. Because "[t]he defendants ... in the [earlier case] did not demur to the bill for want of the averment that it was brought on behalf of other interested taxpayers and property owners,” it was "a formality which we can consider waived by the only parties who could have objected.”
Holt,
Under this reasoning, the Holt Court distinguished Kelly by noting that the plaintiffs in Kelly were disappointed bidders for a city contract and "the wrongs complained of were personal to the plaintiffs, concerned only with matters of administration in which the plaintiffs had no interest as taxpayers differing from those of the general public....” Id. Thus, in that case, there was no “necessary implication” that the case was brought on behalf of other taxpayers.
. Language in some oí our cases contributes to some confusion on this point.
See,
c.g.,
Citizens Comm. of Anne Arundel Cnty., Inc. v. Cnty. Comm’rs,
. A common point of apparent confusion arises from prior statements and suggestions by this Court that the “restrictions on standing [regarding a special interest distinct from the general public] do not necessarily apply to a taxpayer” because “[t]his Court has held that a person’s or an organization’s status as a taxpayer entitles it to standing when the challenged statute, regulation, or government action increases or threatens to increase the taxpayer's tax burden.”
Med. Waste Assocs. v. Maryland Waste Coal., Inc.,
. The distinction between resident and taxpayer is significant. Remembering that distinction may contribute some clarity to the confusion. A party may be a resident of the State (and, thus, have a "general interest” in the State’s actions), but not be a taxpayer whose pecuniary interest would be affected by that action (and, thus, not have the requisite "special interest”).
. While some other states allow taxpayer challenges to virtually any governmental conduct,
see, e.g.,
Joshua G. Urquhart,
Disfavored. Constitution, Passive Virtues? Linking State Constitutional Fiscal Limitations and Permissive Taxpayer Standing Doctrines,
81 Fordham L.Rev. 1263, 1282, 1282 n. 122 (2012) (citing
Barber v. Ritter,
. This case was decided on other grounds as well. Whether the potential need to lend off charges of illegality is sufficient, standing alone, to establish this requirement of taxpayer standing is left for another day.
. One could argue that
Green v. Garrett,
In the Green case, the taxpayers were allowed to attack an ordinance under which the city made profits, but they were held to have standing because the contract of renting made under the ordinance created a nuisance which detrimentally affected the rights and property of the taxpayers. It is doubtful that the taxpayers would have had standing but for the nuisance. Certainly the case cannot be interpreted to mean that taxpayers do not have to show either a pecuniary or special loss, for in fact the taxpayers suffered a special loss as a result of the nuisance. At p. 59 of192 Md., at p. 328 of 63 A.2d, it was said that ‘there is no doubt that as adjacent residents and property owners, the appellants have an interest in restraining conditions arising out of the contract, which constitute a special nuisance to them.' [Emphasis supplied.] In the Castle Farms case, where the taxpayers’ suit questioned the validity of an ordinance providing for the establishment of a new Lexington Market, it was said193 Md. at p. 482 ,67 A.2d at p. 493 , that '[i]f the Act is unconstitutional the project is unlawful, and even though the City would not be obligated for the project [under the ordinance the City was not obligated for any expenses], it presumably would incur some expense or loss in extricating itself and its properly. As taxpayers, therefore, plaintiffsare entitled to sue to enjoin such an unlawful project. * * * As owners and claimants of rights in the market, they may also, in the same case, sue to protect their property rights.’ There, it had been argued that a loss to the city would constitute a pecuniary loss to the taxpayers. It had also been argued that the plaintiffs were stall holders in the old market and would be deprived of their property — a theory similar to the nuisance theory in the Green case. But, in the case at bar, there is no allegation or proof that the property rights of the taxpayers are adversely affected by the county gambling statutes. Therefore, both Green and Castle Farms are distinguishable in that neither a pecuniary nor special loss is shown to have accrued as the result of deprivation of property rights.
Citizens Comm.,
. A correlative principle is that, even where the administrative agency may act outside ol' its authority, if the claimant fails to allege how the
ultra vires
act would create an increase in taxes, then the claimant has
. This issue is not for our review also because Appellees chose not to pursue it on appeal. We' point out this distinction for clarity in application of the law, however.
. Their suggestion that "[t]he Project was designated as a TOD only alter the State was made aware of potential litigation through discussions with property owners who were attempting to resolve the dispute prior to instituting litigation,” Amended Complaint, at 11216, is not sufficient to raise genuine concerns of fraud or corruption. Furthermore, their suggestion that the designation of the State Center as a TOD is "arbitrary and capricious,” Amended Complaint, at II220, lacks any support as well.
. That the taxpayers may have an ulterior motivation (beyond the altruistic desire to ensure that government behaves correctly and spends taxpayers' money legally and prudently) for bringing the suit does not matter to the analysis.
Packard v. Hayes,
.
Murray v. Comptroller of Treasury,
. The Court continued by analyzing whether the plaintiffs had an individual interest sufficient to confer standing.
Baltimore Retail Liquor Package Stores Ass'n v. Kemgood,
As holders of liquor licenses they have no franchises or exclusive privileges to be affected; they have only permits to engage in the business of selling alcoholic liquors. The interest which impels them to sue is only that of business advantage in keeping down the number of their competitors. They are not entitled in law to any advantage in a restricted number; it was not within the purpose of the statute to restrict competition for the benefit of any licensee; and in the accomplishment of the purpose which was sought, whatever it may have been, the petitioners are entirely without special interest.
Id. (internal citations omitted).
. The Court’s refusal to weigh potential gains against potential losses and to speculate on a net result is different from the Court’s finding that the complainant failed to allege
any
potential loss resulting from the alleged harm.
See, e.g., Kerpelman,
. Appellees aver in their Amended Complaint that the Project may not be viable in the long-run or may not be the best course of action for the State.
See, e.g.,
Amended Complaint, at ¶ 24 ("The Project ... undermines past public policy decision to revitalize the CBD, including downtown Baltimore and the Inner Harbor.”); ¶ 25 ("Injecting over 1.5 million square feet of new State and city subsidized commercial office space in the Baltimore metropolitan area will add an enormous, commercially unsupportable supply of office space in an already over-saturated and under-leased marketplace ... It will directly and proximately cause myriad problems in the core downtown area, including long-term commercial vacancies, blight and business flight away from the center core of the City, all at a substantial loss of City property tax revenues. The CBD cannot remain viable under these circumstances.”); ¶ 26 ("Existing adverse commercial and market forces will be further exacerbated by the Project.”); ¶ 27 ("The large increase in the supply of retail space through the Project will lead directly to higher vacancy rates in the CBD, directly cause further harm to the Commercial Property Owners and lower levels of property tax collection for the City of Baltimore.”); ¶ 28 ("The Project threatens to increase vacancy rates by injecting government incentives into a massive State-sponsored development project that would otherwise be dependent on free market factors____Increased supply of commercial office and retail space will,
Such arguments are not within the purview of this Court. Taxpayer standing doctrine is not a method by which litigants may ask this Court to review the feasibility or wisdom of legislative decisions made properly within the Legislature’s authority — under the guise of a loss of tax revenues due to the alleged lack of wisdom in the decision. The taxpayer standing doctrine does not grant standing to every taxpayer who may allege a general harm. Thus, the Plaintiffs' allegations of the general harm suffered by taxpayers of the State are irrelevant as well. See, e.g., Amended Complaint, at ¶ 33 (“CTjhe Project will have a devastating financial impact on the CBD, its Commercial Property Owners and Retail Merchants, who are taxpayers and/or landowners in Baltimore City. The Commercial Property Owners and Retail Merchants employ, directly or indirectly, thousands of people and have invested heavily in their properties, their business, and the City. The Project allows the Developer to receive City and State subsidized benefits and opportunities unavailable to the Commercial Property Owners and Retail Merchants, all without compliance with State procurement laws.”) (emphasis added).
In this case, Appellees wasted a great deal of everyone’s time attempting to establish the infeasibility and the imprudence of the Project, as well as general harms unrelated to expenditures from the public coffers.
. Appellees alleged, in full, that "Plaintiffs will uniquely bear the excessive costs, lose business opportunities, loss of customers, suffer a diminution in the value of their assets and other catastrophic financial loss, as well as increased taxes ...” Amended Complaint, at ¶ 33 (emphasis added). These additional factors (and other similar allegations) do not provide a basis for taxpayer standing and, as stated previously, are disregarded in our analysis.
. Dicta in some cases refers to the small amount of damages that
each
taxpayer suffers. For example, in 1880, this Court stated, "[t]he public has no interest in this controversy. The difference between the proposals of the competing contractors is infinitesimally small, when divided amongst the tax-payers."
Kelly,
Additionally,
Kerpelman
found that a taxpayer of the State and of Baltimore City did not have sufficient interest in the subject matter, a piece of property in Worcester County, because "Mrs. Kerpelman alleges no interest in that property as a local taxpayer.”
Kerpelman,
it appears that the challenged transactions have-or will-result in the placing of additional land on the tax rolls which will increase the tax base of the State so that the State taxes paid by Mrs. Kerpelman will actually be reduced as a result of those transactions. There are general allegations that the conveyances will have a damaging effect upon the marine ecology of the State, but there are no allegations of facts which would support these general allegations and, in any event, there are no allegations which indicate how this will result in the payment of higher State taxes by Mrs. Kerpelman.
Id., 261
Md. at 443,
. Notably, multiple secondary sources classify Maryland as one of the majority of states which grant taxpayers the right to sue as litigants for state grievances.
See, e.g.,
Comment,
Taxpayers’ Actions: Public Invocation of the Judiciary,
13 Wake Forest L.Rev. 397, 402, 402 n. 29 (1977) (citing
Christmas v. Warfield,
. As the Court explained in more detail in Superblock II,
The Maryland Uniform Declaratory Judgments Act, Maryland Code (2006 Repl.VoI.) § 3-401 et seq. of the Courts & Judicial Proceedings Article ("C.J."), provides that "a court of record within its jurisdiction may declare rights, status, and other legal relations whether or not further relief is or could be claimed.” C.J. § 3-403(a). Generally, a motion to dismiss " 'is rarely appropriate in a declaratory judgment action.’ ” Broadwater v. State,303 Md. 461 , 466,494 A.2d 934 , 936 (1985) (quoting Shapiro v. Bd. of County Com’rs,219 Md. 298 , 302-03,149 A.2d 396 , 398-99 (1959)).
Where a bill of complaint shows a subject matter that is within the contemplation of the relief afforded by the declaratory decree statute, and it states sufficient facts to show the existence of the subject matter and the dispute with reference thereto, upon which the court may exercise its declaratory power, it is immaterial that the ultimate ruling may be unfavorable to the plaintiff. The test of the sufficiency of the bill is not whether it shows that the plaintiff is entitled to the declaration of rights or interest in accordance with his theory, but whether he is entitled to a declaration at all; so,even though the plaintiff may be on the losing side of the dispute, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory decree.
Id.,494 A.2d at 936 (quoting Shapiro,219 Md. at 302-03 ,149 A.2d at 398-99 ).
When a complaint fails to allege a justiciable controversy, however, a motion to dismiss is proper. See C.J. § 3-409(a)(l) (authorizing declaratory judgments only when the complaint establishes that "[a]n actual controversy exists between contending parties”)
Superblock II,
. Thus, even if the TOD designation was before us on appeal generally, it would not be under review here for purposes of the doctrine of laches. Similarly, those claims of harm which were rejected in our earlier justiciability analysis, such as Appellees’ allegations of harm to their properties, as property owners, and of general harm to the CBD and of harm in the form of competition to their business, are not under consideration here.
Moreover, Counts VII (seeking declaratory judgment that "the selection of the architect, engineer and/or contractor for the parking garage was required to have been procured by the State Center Agencies through mandatory methods of source selection under the General Procurement Law ... and that the State Center Agencies’ actions failed to comply with [the Procurement Law], and as such, the parking garage selections are void and invalid”) and VIII (seeking injunctive relief for alleged violations of the Procurement Law), on which the Circuit Court granted summary judgment in favor of the State Agencies, are not before us. Therefore, the State Center actions in 2010 involving the financing and development of the parking garage do not factor into our laches analysis.
. The asserted claims of
ultra vires
or illegal governmental conduct that might cause pecuniary loss to the taxpayers are reiterated as follows: (a) the selection of the original Master Developer, State Center, LLC, in 2005, for the exclusive right to negotiate to develop the Project by a RFQ, rather than through the RFP competitive-bidding process,
see
Notably, this second “stage” of the "switch-out” of the Developers, referred to in (n), is not included in the Amended Complaint, but is raised in Appellees’ briefs. Regardless of its lack of inclusion in the Amended Complaint, we find that such actions were envisioned in the MDA and, thus, are felled by the same sword as many of the other claims, as discussed infra.
. Even were we to agree with Appellees that the claim was not ripe until the State Agencies and the Developers executed a binding and enforceable agreement and, thus, they could not file suit this early, we would still impute the knowledge of the claim of illegal governmental action to them from that time. In that sense, they had a long lead time to prepare their suit and should have filed the suit more promptly after the execution of the MDA.
. Section 5-101 provides,
A civil action at law shall be filed within three years from the date it accrues unless another provision of the Code provides a different period of time within which an action shall be commenced.
Md.Code (1973, 2013 Repl.Vol.), Courts & Judicial Proceedings Art., § 5-101 (emphasis added).
. This statute was repealed by Acts 2010, c. 37, § 1, ell. Oct. 1, 2010.
. We recognize that some federal courts have adopted a
per se
rule with respect 1o the application of laches to claims arising out of time-sensitive issues involving elections, for example.
See Ross v. State Bd. of Elections,
. Although the time frame in which we analyze prejudice for purposes of laches is narrower than that for taxpayer standing’s harm analysis, we find that prejudice — in the form of the almost certainty of the expenditure of substantial money and resources — occurred in both the narrower and broader time frames in such a way that to find otherwise could be considered inconsistent with our prior analysis of the harm alleged for purposes of taxpayer standing.
See supra
pp. 573-80,