Hudson v. Mayor of Baltimmore

KATHY HUDSON, ET AL. v. MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL.

No. 2346-2019

Court of Special Appeals of Maryland

September 16, 2021

Circuit Court for Baltimore City Case No. 24-C-17-004307

Berger, Nazarian, Friedman, JJ.

OPINION ^[*]

Nazarian, J.

A group of residents in the Roland Park neighborhood of Baltimore objects to the prospect of an eighty-foot tall apartment building on a parcel of undeveloped, wooded land located near the intersection of Falls Road and Northern Parkway. In practical terms, they complain the building would block the view from some of the residents' homes and would create an unacceptable level of additional traffic and safety problems in the area.

The dispute itself, though, involves more complicated legal questions. The eighty-foot building would have been permitted under the applicable height restrictions of Baltimore's former zoning scheme. But that scheme was replaced on June 5 2017 by a new zoning scheme known as TransForm Baltimore, and TransForm Baltimore would forbid it-its height limitation for a multi-family dwelling such as this is thirty-five feet. And the zoning application and decision at issue here straddle TransForm Baltimore's effective date.

TransForm Baltimore includes transition rules for resolving whether the old or the new zoning code applies to "applications" pending at the time of the new code's adoption. Section 2-203(k)(1) provides that an application filed before June 5, 2017 is governed by the provisions of the old zoning code. So on April 3, 2017, in an attempt to "vest" its "right" under the old code to build an eighty-foot building, a Developer-the appellant^[1]-filed an application for a planned unit development ("PUD")^[2] for the proposed apartment building.^[3]The Developer understood-and the City's Planning Department agreed-that filing the PUD application before June 5, 2017 was sufficient under TransForm Baltimore's transition rules to ensure that the new zoning code's thirty-five foot height limitation would not apply. The PUD application made its way through the City's administrative process and culminated in the City Council's enactment of City Ordinance 17-037 (the "PUD Ordinance"), the effect of which was to allow the proposed eighty-foot structure to be built.

Several groups of residents sought judicial review of the PUD Ordinance in the Circuit Court for Baltimore City. After briefing and a hearing, the circuit court, in a 117-page opinion, vacated the PUD Ordinance and remanded the case for further consideration. As an initial matter, the court found that the "Findings of Fact" adopted by the Council- a two-page form that tracks the statutory language but lacks any actual factual findings- were insufficient to provide a basis for judicial review. The circuit court further held that, contrary to the Developer and City's view, the Developer's PUD application did not "vest" its "right" to build an eighty-foot building. Instead, the filing had the following consequences: (1) under the applicable transition provision (the new code's section 203(k)(1)), the City Council must evaluate the PUD application according to the PUD evaluation criteria set forth in the old code (§§ 9-112, 14-204, 14-205); and (2) those criteria required the City Council to engage in an analysis that included comparing the proposed building to what TransForm Baltimore allowed, i.e., a thirty-five foot building. Two groups of residents appealed the circuit court's ruling and the Developer and the City cross-appealed.

We affirm. We agree with the circuit court that even though it filed its PUD application before June 5, 2017, the Developer does not currently have the "right" to build an eighty-foot building. As the circuit court observed, the outcome might have been different had the Developer filed a building permit application before that date. But it didn't. The administrative process and standards associated with PUD applications applied to this application, and they required the City Council to compare what the PUD application proposes (an eighty-foot building) to what the new code allows (a thirty-five foot building or buildings). The practical result is that the City Council may yet approve the eighty-foot building the PUD application proposes, but it must apply the old code's criteria and make the necessary findings of fact first.

I. BACKGROUND

The circuit court detailed the course of events well and comprehensively over almost fifty pages of its memorandum opinion, and we will not attempt to replicate its excellent work. Instead, we include the background necessary for the limited questions of law before us, and what follows is undisputed unless we indicate otherwise. What follows, though, should not be construed as findings-the role of finding facts lies with the City Council in the first instance. And as we explain below, we agree with the circuit court that the Findings of Fact on which the Council relied when it adopted the PUD Ordinance were insufficient for that purpose, and the case ultimately must be remanded so that the Council can fulfill that role.

A. TransForm Baltimore

At the center of this case is Baltimore's comprehensive new zoning ordinance, "TransForm Baltimore," which the City Council adopted on December 5, 2016 and which became effective on June 5, 2017. Before then, Baltimore followed a separate zoning code; we will follow the circuit court and refer to it as the "old" or "former" zoning law. TransForm Baltimore is now codified as Article 32 of the Baltimore City Code, with the short title "Zoning Code of Baltimore City." Again, like the circuit court, we will call it the "new" or "current" zoning code or "TransForm Baltimore."

TransForm Baltimore contains a section-§ 2-203, titled "Transition Rules"-that in subsections (b) through (j) sets forth the rules for resolving questions about whether the old or the new zoning code applies to things such as preexisting structures, previously issued building permits, and previously established PUDs. The last subsection, (k), contains the transition rules for pending applications, and it is the interpretation of that provision on which the outcome of this appeal depends:

(k) Pending Applications.

(1) An application that has been submitted and considered complete before June 5, 2017, or before the effective date of any relevant amendment of this Code is governed by the Code provisions in effect when the application was submitted.

(2) A new application submitted after June 5, 2017, or after the effective date of any relevant amendment to this Code is governed by the Code provisions in effect when the application was submitted.

(3) If a pending application is modified after its submittal, the Zoning Administrator must review the application to determine if the proposed modifications constitute a new application. If the Zoning Administrator determines that the modifications constitute a new application, the application must be resubmitted under the Code provisions then in effect at the time of resubmittal.

But although subsections (b) through (j) each deal with a separate category of structure, use, or permit, subsection (k) refers only to "application[s]," with no limitation to particular application(s). As we explain below, the circuit court found, and we agree, that at least subsections (k)(1) and (k)(2) apply to PUD applications.^[4]

B. The Proposed Development: The Overlook

The site at issue is an approximately twelve-acre parcel of land (the "Property") in north Baltimore near the northeast corner of the intersection of Northern Parkway and Falls Road. In 1962, a large apartment building then known as Belvedere Towers, and now known as the Falls at Roland Park (the "Falls") was built on an adjacent six-acre property. That property is now owned by another entity associated with the Developer entities in this case, and all of those entities are affiliated with Blue Ocean Realty LLC ("Blue Ocean," the entity that submitted the PUD application) and Jonathan Ehrenfeld (the owner of Blue Ocean). Neither Blue Ocean nor Mr. Ehrenfeld is a party to this case.^[5]

Under the old zoning code, the Property was split-zoned as two zones of approximately six acres each. The western portion of the Property, which abuts the Falls property, was designated R-6 and the eastern portion was designated R-1. The proposed apartment building, which would be called The Overlook at Roland Park (the "Overlook"), would stand entirely on the R-6 portion, approximately 150 feet from the Falls building. The PUD application as originally filed included the R-1 portion of the Property, but was later revised to include only the R-6 portion, apparently at the request of some of the opposing residents. The R-1 portion was to remain undeveloped, although there is some dispute over whether and how the prohibition against development was to be guaranteed.

The parties do not dispute that the proposed eighty-foot height of the Overlook would be permitted under the old code.^[6] And the Overlook would be located uphill from the Falls, which would significantly affect the Overlook's perceived height: although the Falls would be the taller building, the Overlook's roof would stand about twenty-seven feet higher than the Falls's roof. And, as observed by the circuit court, that would be "a significant detraction to [the Residents], some of whom live on St. George's Road at the top of the hill above the [P]roperty." For example, the Overlook's roof would be about twenty-five to thirty feet higher than the property of appellants Hunter and Margaret Cochrane. Under the new zoning code, the Property is designated R-6 and R-1-A. The parties don't dispute that under the new zoning code, the building would be subject to a thirty-five foot...