In re The Council of Unit Owners of Millrace Condo.

1

IN THE MATTER OF THE PETITION OF THE COUNCIL OF UNIT OWNERS OF THE MILLRACE CONDOMINIUM, ET AL.

No. 959-2021

Court of Special Appeals of Maryland

August 15, 2022

Circuit Court for Baltimore City Case No. 24C20002910

Beachley, Ripken, Kenney, James A., III (Senior Judge Specially Assigned) JJ.

OPINION ^[*]

Kenney, J.

This appeal involves MCB Woodberry Developer, LLC's (the "Developer") request for approval of a minor amendment (the "Amendment") to the Clipper Mill Planned Unit Development #121-2001 Druid Park Drive (the "PUD") by the Baltimore City Planning Commission (the "Commission"). Appellants include owners and residents living in the PUD, Jessica Meyer, Jeffrey Pietrzak, Mark Saldtich, and Christopher Whipps, in addition to the Council of Unit Owners of the Millrace Condominium, and the Homes at Clipper Mill Homeowners Association, Inc. After the Commission's approval, appellants filed a petition for judicial review by administrative mandamus in the Circuit Court for Baltimore City. The circuit court affirmed the Commission and appellants noted this timely appeal.

Appellants present one question for our review, and the Developer challenges appellants' standing to appeal. We have framed the standing challenge as a separate question that we will address first. The questions are:

I. Do appellants have standing to challenge the unanimous decision of the Commission to approve the minor amendment to the PUD?

II. Did the Planning Commission correctly determine that the construction of the two new buildings was a minor change to the approved final development plan?

FACTUAL AND PROCEDURAL BACKGROUND

The property is a 17.4-acre, mixed-use community in North Baltimore on the site of the former Poole and Hunt foundry. In 2003, a previous developer acquired the land and proceeded to develop it as an "office-residential Planned Unit Development" that involved renovating historic buildings on the site and building new residential and commercial space. The PUD was approved by City Council ordinance that same year.

On June 18, 2020, the Commission approved the Amendment at issue for the construction of 98 residential units above two levels of parking in what is referred to as the Tractor Building, along with a 2.5 story parking garage on an adjacent lot referred to as the Stables lot or area. At the hearing on the Amendment, the Commission heard extensive testimony from one of its staff, Eric Tiso, who had prepared the staff report on the Amendment. It also heard from various individuals who either supported, were neutral to, or opposed the Amendment. After hearing the testimony, and without making findings of fact, the Commission concluded that the changes in the Amendment were minor and voted unanimously to approve it.

Exchanges between Mr. Tiso and two Commissioners during that hearing are particularly relevant to the major-minor amendment question. First, Commissioner Sean Davis asked for an explanation as to why, if at all, the lack of Maryland Historical Trust ("MHT") approval for the Amendment mattered. In response, Mr. Tiso stated:

Certainly. We went over this in November during the last hearing, and the simple version of that is there were a lot of older and historic buildings that were here. And in 2003 when this PUD was originally created, there was a desire to preserve some of that historic character. And, again, just looking at the drafting habits of counsel at the time, they were perhaps a little less formal than they are today. And in consultation with Eric Holcomb, who's executive director of our CHAP^[1] division, we believe that what they were talking about is they were simply calling to mind that some of the projects that were being considered in that day may have been going for tax credits. And if that was the case, then the Maryland Historical Trust, MHT, with the National Park Service, NPS, as you may see them abbreviated, would have had a hand in that review.

Some of those early designs did not go forward. None of them have used tax credits to my knowledge, so those really don't apply here. So we keep having that question raised by concerned residents. Several of them mentioned that specifically. John Murphy, who's an attorney representing some of them, you'll see a lengthy letter from him in the file, and that is one of the points he raises as well. In their November hearing, the applicants said okay, you know, we don't think that this really applies here and it's kind of common sense, but we'll go ahead and we'll ask MHT for their opinion, and they declined to review. They said we have no interest here, thank you. So in my view, it sort of doesn't make sense to attempt to force a process that doesn't exist, that isn't needed, that hasn't been, you know, considered as a legitimate part of this development review since that 2003 era, but yet we do keep hearing from it.

Councilman Leon Pinkett "challenge[d] whether the construction of the parking garage on a lot adjacent to the Tractor Building can really be considered a minor change," because its construction was "not consistent with the original PUD," and seemed to him "to be a different form of land use, which [he thought] would trigger a major change:"

[Mr. Tiso]: In my view, it would not be [a major change]. Again, older PUDs had a long list of uses that could be approved. Parking is and was approved, and in fact, you know, the underlying zoning is now a TOD.^[2] If the PUD were not here, they would actually have much more right to build than is there. So, unfortunately, you know, land use is land use. Parking is parking. So I don't see that as a change in land use.

[Councilman Pinkett]: I mean, we're going to just have to disagree. I mean, I can understand what Eric is saying as it relates to parking, but the creation of a structured parking structure, to me is a definite change in land use over a vacant lot. I don't see how you don't see that as a different land use. [Chairman Davis]: Eric, was the PUD, was that particular parcel always going to be a parking lot? I mean, what was identified in the original PUD documents regarding that?

[Mr. Tiso]: So in the original PUD, it was a blank space, and that's why I had mentioned that, you know, it was shown in other development reviews around it as having a couple of things done with it, one of which was a pocket park, one had like a little fountain in it. But that particular Stables lot area was never actually formally approved for anything. And in that earlier hearing, yeah, I said I think what has happened here is nobody wants to leave a blank square, so they kind of filled it with something, but it's sort of on the margins, as it were. It wasn't until a surface lot was actually designated in 2005, and then revised in 2008, that the parking lot was the first formal thing that was approved there. Again, the earlier PUD, they kind of were taking it as it came phase by phase. There wasn't you know, like we see in a lot of newer PUDs where there's a grand plan and then you build according to that as it goes.

On July 1, 2020, appellants sought judicial review by way of administrative mandamus. Before a hearing was held, the City and the Developer filed separate motions to remand the case for the Commission to make proper findings of fact and conclusions of law. The appellants objected, but on November 13, 2020, the circuit court remanded the case to the Commission to make proper findings of fact and conclusions of law.

On December 17, 2020, the Commission held a second hearing on the proposed Amendment. At that hearing, the Commission did not take further testimony. It explained that all testimony relevant to the Amendment had been taken in June, and that, prior to the meeting, the Chairman had prepared findings of fact that were to be shared with the entire Commission at the meeting. And, after noting previously received testimony from Mr. Tiso and other individuals at the June 18, 2020 hearing, the Chairman proceeded to present his prepared findings:

[Chairman Davis]: On June 18^th, 2020, the Baltimore City Planning Commission heard testimony on the [Amendment]. The purpose of this document is to outline the findings of fact and conclusions of law that led to the Commission's decision to approve the application.

During the public hearing on the 18^th, [Mr. Tiso] had presented a 26-slide PowerPoint presentation which summarized the site conditions, proposed development standards of review, et cetera, and culminated in the Department of Planning's recommendations for approval with a minor change in file and design approval for Clipper Mill Planning (indiscernible) at 2039, Clipper Park Road, the Tractor Building.

As outlined in Mr. Tiso's presentation, Slide 68, Title 13, Subtitle 4 spells out the factors to be considered in determining a change and whether it will be minor or major. These are outlined below along with the findings of facts which include a 10 percent increase or 25 percent decrease in the approved number of dwellings. The total number of dwellings as permitted for this PUD is determined by dividing the total site by 1,500 square feet. This yields 513 homes, and so 513 units.

Total number of units developed in the PUD including the Tractor Building was 297. There are remaining sections to be developed. The current proposal does not exceed a maximum density of 10 percent. . . . There was no height limitation proposed in the original PUD so there was no increase or decrease.

A change in the type, location, or arrangement of land use within the development as shown on the previously approved final development plan. The original approved planning and development plans [were] very general in nature and did not go into specific uses and specific portions of the property, as we've

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