Armstrong v. Baltimore

976 A.2d 349

409 Md. 648

Douglas M. ARMSTRONG, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 107, September Term, 2008.

Court of Appeals of Maryland.

July 23, 2009.

J. Carroll Holzer (Holzer & Lee, Towson), on brief, for petitioners/cross-respondents.

Adam S. Levine, Asst. City Solicitor, and Sandra R. Gutman, Chief Solicitor (George A. Nilson, City Solicitor, Baltimore City Dept. of Law, Baltimore), on brief, for respondents/cross-petitioners.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, BARBERA,^* JOHN C. ELDRIDGE, (Retired, specially assigned) and IRMA S. RAKER, (Retired, specially assigned), JJ.

HARRELL, Judge.

This case is one of several legal challenges brought by a group of residents of Baltimore City's Remington/Charles Village neighborhood against a developer and the Mayor and City Council of Baltimore ("the City") regarding the governmental approval processes for a seven-story residential apartment building (Cresmont Loft) on Cresmont Avenue. Here we are concerned with the residents' petition for judicial review challenging the City's Ordinance 04-659 (approving a parking lot for Cresmont Loft), on the basis that the process by which it was enacted violated the Maryland Open Meetings Act. For reasons we shall explain, we conclude that the Open Meetings Act challenge, insofar as the challenge seeks to undo the approval of the parking lot, is moot by virtue of the enactment of subsequent legislation by the City rendering Ordinance 04-659 unnecessary as a matter of law. Although, as a result of this holding, we are not compelled to address the parties' dispute over the award of attorney's fees under the Open Meetings Act, we choose to comment (albeit as dicta) on this dispute for the guidance of the parties and the trial court when the latter considers the matter.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Preceding the Instant Case

Cresmont Properties Ltd. ("Cresmont") owns a 28,132 square-foot parcel of land (the "Property") located at 2807-35 Cresmont Avenue in Baltimore City. Petitioners, a group of local residents opposed to Cresmont's development of the Property,¹ challenged in various administrative and judicial fora three construction permits, as well as an occupancy permit, issued by the City to Cresmont for construction and operation of an apartment building known as Cresmont Loft. A more fulsome history of the issuance of these permits and challenges, than is necessary for the present litigation, is supplied in our opinion in the companion case of Armstrong v. Mayor and City Council of Baltimore, ___ Md. ___, ___ A.2d ___, 2009 WL 2178672 (2009), filed today immediately prior to this opinion. The present case derives from one of the Petitioners' legal challenges to the third construction permit and pertains specifically to the on-site parking lot.

1. First Construction Permit

On 15 November 2002, the Zoning Administrator for the Baltimore City Department of Housing and Community Development ("DHCD") issued to Cresmont a permit to construct a seven-story residential apartment complex consisting of twenty-six apartments and a parking lot with thirty-three parking spaces. At the time, the Property was a vacant lot. Petitioners filed a negative appeal² to the Board of Municipal and Zoning Appeals (the "Board"). They alleged, among other things, that the project violated § 10-504(a)³ of the Zoning Code of Baltimore City ("the Code" or "the Zoning Code"), which, at the relevant time, required passage of an ordinance by the City to authorize the use of land as a parking lot. The Board ruled against Petitioners, reasoning that § 10-504(a) did not apply to accessory off-street parking for newly-erected structures. Construction of the building and parking lot began in August 2003.

On 4 November 2003, however, the Circuit Court for Baltimore City, on Petitioners' petition for judicial review, reversed the Board, concluding that the Code did not exempt accessory uses from the requirements of § 10-504(a). Shortly thereafter, the Director of Permits for the DHCD revoked Cresmont's construction permit. The City, which sided with Cresmont in the litigation, appealed to the Court of Special Appeals. The intermediate appellate court dismissed the appeal on the ground that the provision of the Code authorizing judicial review was not in effect when the City filed its appeal. Mayor of Balt. v. Armstrong, No. 02096, September Term 2003, 163 Md.App. 704 (filed 10 Aug. 2005).

2. Second Construction Permit

The circumstances surrounding the second construction permit may be found in Armstrong v. Mayor and City Council of Baltimore, ___ Md. ___, ___, ___ A.2d ___, ___, 2009 WL 2178672 (2009). Suffice it to say, for present purposes, that as a result of administrative and judicial litigation over its issuance, a third construction permit was issued.

B. Ordinance 04-659 and the Third Construction Permit: The Present Litigation

The Property is located in the City's Parking Lot District II, a special district created by § 10-503 of the Zoning Code.⁴ At the times relevant to these proceedings prior to the City's amendment of § 10-501's definition of "parking lot," discussed infra, § 10-504 of the Zoning Code prohibited land in Parking Lot District II from being used as a parking lot "unless authorized by an ordinance of the Mayor and City Council."⁵

Because of this requirement, on 27 October 2003, Bill 03-1228 ("the Bill") was introduced in the City Council. The purpose of the Bill was to authorize, as a conditional use, a parking lot on the Property. After introduction, the Bill was assigned to the Council's Land Use and Planning Committee ("Committee"), after consideration by the Baltimore City Planning Commission. Following its consideration, in a staff report dated 4 December 2003, the Commission stated:

The applicants are requesting this conditional use [B]ill because several community residents have taken this project to court regarding the use of an alley, and because they are concerned about this same group challenging them regarding the Parking Lot District provisions in the Zoning Code. The City would not normally require this conditional use ordinance because the parking to be provided is accessory to the apartment building. The applicants simply wish to ensure that they may proceed with their project and are willing to provide the higher level of scrutiny afforded the community in the ordinance process, if that would speed the project's implementation.

The staff report recommended that, before passage by the City Council, the Bill be amended to provide that "the plans and landscaping plans [provided by Cresmont be] attached to, and made part of the [B]ill."

Sections 16-401 and 16-402 of the Zoning Code required, prior to action by the full Council on the Bill, the Committee to consider the proposed conditional use at a public hearing.⁶ Rules 10-9 and 10-10 of the Rules of the City Council required the Committee to report the Bill to the City Council after acting on it.⁷ If the Committee proposed to amend substantively the Bill after the first hearing, it was required to hold another hearing.⁸

The Bill was the subject of a Committee public hearing on 4 February 2004. Although notice of the hearing had been duly posted at the Property and on the City's website, only the Chair of the Committee and one other Committee member were present at the hearing on behalf of the Committee.⁹ That hearing lasted nearly three hours and was attended by about forty-five other individuals, including some of the Petitioners. During the hearing, the Committee did not adduce or discuss site plans for the proposed parking lot. According to an affidavit in the record filed by Joan L. Floyd, one of the Petitioners, "[a]t the hearing, the chair of the Committee made a statement to the effect that the [opponents] of Bill 03-1228 could not expect there to be any further public meetings or hearings on Bill 03-1228."

No further public Committee hearing or work session was held in fact. Rather, on 4 March 2004, in a report submitted to the City Council, the Committee recommended that the Bill be enacted as amended.¹⁰ One of the amendments included a detailed site plan of the parking area, a plan to which no reference was made at the 4 February hearing. The site plan had been obtained by the Committee subsequent to the public hearing, as had a follow-up City agency report addressing the issue of accessibility to the neighbors' garages impacted potentially by the proposed development of the Property. The report, conducted by a Transportation Department employee, was intended to "advise the [Committee] regarding existing and proposed rights-of-way between adjacent properties and the proposed development site." It concluded that "the proposed development [will] not harm[]" access to adjacent garages. Petitioners contended that the measurements relied on in the report to form the basis of its conclusion were erroneous.

The Committee's method of amending and approving the Bill, after the 4 February session, was through the collection of signatures of a quorum of mostly Committee members who had not attended the hearing. According to an affidavit of the Bill's co-sponsor:

[] As is common practice in the City Council, a vote was not taken at the Committee hearing with regard to the adoption of a Committee Report on this [B]ill. Instead, the method by which the Committee adopted its March 4, 2004 Report of "favorable as amended" with regard to Council Bill 03-1228 was through the collection of the written assent of at least a majority of the Committee's members-in this case the signature of four Committee members, of which I was one.

[] As is common practice in the City Council, one of the clerks circulated the [B]ill among the Committee's members to collect these four signatures. There was never a second meeting of the Committee after the public hearing held on February 4, 2004 with regard to this...