Agenda - Planning Commission - 08/06/2015

Home

July 10, 2015 1 Volume 9 1 Issue 13 Zoning Bulletin DECISION: Judgment of circuit court affirmed. The Court of Special Appeals of Maryland held that Moe's did not have standing to file the petition challenging the Board's decision granting Chipotle's special exception because, whether or not Moe's was a "taxpayer" or a "person aggrieved," Moe's petition was void ab initio (i.e., invalid from the outset) since, at the time it was filed, Moe's had lost its right to do business in Maryland and was nonetheless continuing to do so. The court explained that while a foreign LLC may have standing as a "taxpayer" or a "person ag- grieved" under L.U. § 4-401(a) to petition the circuit court for judicial review of a zoning decision, the foreign LLC loses that standing if it continues to do business in Maryland after its right to do business here has been forfeited. The court reached that conclusion based upon the plain language of Mar- yland's Corporations and Associations Article ("C.A") (C.A. § 4A -1002(a), C.A. § 4A-1013, and C.A. § 4A -1007(a)). C.A. § 4A -1002(a) states that "[b]efore doing any interstate, intrastate, or foreign business in this State, a foreign limited liability company shall register with the [State Depaitment of Assessment and Taxation (`SDAT') ]." C.A. § 4A-1013 then warns that the SDAT may "forfeit the right of any foreign limited liability company to do business in this State" if that company "fails to file any report" with the SDAT or "fails to pay any late fee" within the statutorily prescribed period for doing so. Then, of particular significance to the issue before the court, C.A. § 4A - 1007(a) provides that "[i]f a foreign limited liability company is doing or has done any intrastate, interstate, or foreign business in this State without comply- ing with the requirements of this sub -title, the foreign limited liability company . . . may not maintain suit in any court of this State" unless it "shows to the satisfaction of the court" "that it has satisfied certain obligations or that it is no longer doing business in Maryland." The court disagreed with Moe's contention that once a foreign LLC had satisfied the court of its right to maintain suit, it could then rely on a petition it had filed with the court when it had no right to do so. In other words, the court determined that Moe's could not revive its petition, though timely filed, since the petition was initiated after Moe's had lost the right to do business in Mary- land and yet persisted to do business in Maryland during that 30 -day period for filing a judicial review petition. The court also briefly addressed Moe's contention that it was a "person ag- grieved," entitled to challenge the Board's decision on Chipotle's special exception. The court said that even if Moe's was a "person aggrieved" under L.U. § 4-401(a)(1) and therefore had standing to petition the court for review as such, Moe's petition nonetheless had to be dismissed because it did not meet Rule 7-203(a)'s 30 -day deadline. Moe's had no right to "maintain suit" under C.A. § 4A -1007(a) during the entire 30 -day period and, when it re - attained that right, the 30 -day period had long since lapsed. Moreover, the court noted that the circuit court, in effect, appeared to make a finding as to whether Moe's qualified as "a person aggrieved" when it opined that Moe's action against Chipotle was brought simply as a "matter of competition." The court explained that "a person is not `aggrieved' for standing purposes when his sole interest in challenging a zoning decision is to stave off competition with his established business." 8 © 2015 Thomson Reuters