MBC REALTY, LLC v. Baltimore

993 A.2d 1190

192 Md. App. 218

MBC REALTY, LLC, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 2601 September Term, 2008.

Court of Special Appeals of Maryland.

May 5, 2010.

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M. Albert Figinski (Jeffrey J. Utermohle and Joshua L. Caplan, on the brief), Baltimore, MD, for Appellants.

Herbert Better (P. Andrew Torrez, George A. Nilson, City Sol., Sandra R. Gutman, City Sol., and Adam S. Levine, Asst. City Sol., on the brief), Baltimore, MD, for Appellees.

DEBORAH S. EYLER, KEHOE and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.

DEBORAH S. EYLER, Judge.

In 2000, the Mayor and City Council of Baltimore ("the City") enacted an ordinance imposing a moratorium on new billboards ("the Billboard Moratorium"). This appeal concerns three ordinances subsequently enacted that together 1) created an exception to the Billboard Moratorium, as a conditional use, for publicly-owned stadia and arenas in the B-5 zoning district; and 2) approved as a conditional use the erection of 14 billboards on the First Mariner Arena ("the Arena"), which is located in that district.¹

The Arena is owned by the City. Its primary tenant is First Mariner Bancorp, whose Chief Executive Officer, Edwin F. Hale, Sr., owns the Baltimore Blast, a professional indoor soccer team. The Blast plays its home games at the Arena.

The three ordinances were challenged in the Circuit Court for Baltimore City by various opponents who own or have interests in properties in the vicinity of the Arena. The better part of the next five years was spent in court proceedings, including an appeal in this Court and then in the Court of Appeals, over the proper procedural means to challenge the ordinances. See MBC Realty, LLC v. Mayor & City Council of Baltimore, 403 Md. 216, 941 A.2d 1052 (2008), aff'ing in part and rev'ing in part, 160 Md.App. 376, 864 A.2d 218 (2004).

Ultimately, the Court of Appeals held that a declaratory judgment action, under Md.Code (2006 Repl.Vol.), sections 3-401 through 3-415 of the Courts and Judicial Proceedings Article, was the proper legal vehicle to challenge the ordinance that created the conditional use as an exception to the Billboard Moratorium; and an administrative appeal, under Md.Code (2003 Repl.Vol.), article 66B, section 2.09(a)(ii), by way of an action for judicial review, under title 7, chapter 200 of the Maryland Rules, was the proper legal vehicle to challenge the ordinance that granted the conditional use to the City, for the Arena. The case was remanded to the circuit court, which, after further proceedings, issued two judgments: one declaring the ordinance creating the conditional use exception valid and one upholding the City Council's grant of the conditional use to the City, for the Arena.

This appeal is taken from those judgments. The appellants before this Court are the parties who challenged the ordinances below.² The appellees are the City and the private companies that manage the arena by contract with the City, Arena Ventures, LLC, and SMG, Inc. We have reworded and separated the questions presented by the appellants as follows:

I. Did the circuit court err by declaring legal the ordinance that created a conditional use for publicly-owned stadia and arenas in the B-5 zoning district?

II. Was there substantial evidence to support the City Council's decision to grant the conditional use in question to the City, as owner of the Arena, and was that decision in accordance with the law?

III. On remand, did the circuit court err "in challenging the appellants' standing to challenge" the ordinance granting the conditional use to the City as the owner of the Arena?³

For the reasons that follow, we shall affirm the judgments of the circuit court.

FACTS AND PROCEEDINGS

On March 27, 2000, the City enacted Ordinance 00-0001, a text amendment to several sections of the Baltimore City Zoning Code ("Zoning Code" or "Zg"), which had the effect of prohibiting all new billboards in the City.⁴

Before the Billboard Moratorium was enacted, new billboards had been allowed as conditional uses in some zoning districts, including the B-5 district. The B-5 district is the "Central Commercial District," which is covered by Title 6, Subtitle 6 of the Zoning Code.

A year after the Billboard Moratorium was enacted, the City Council passed and the Mayor approved Ordinance 01-230, which carved out an exception for general advertising signs at bus shelters. That ordinance amended the definition of "general advertising sign" in the Zoning Code to exclude "a sign that: (I) is attached to a bus passenger shelter; and (II) complies fully with the requirements of § 11-424 of this title." Section 11-424 of the Zoning Code imposed specific limitations on the design, size, and content of advertising signs on bus shelters and specified the procedure for obtaining approval to erect signs of that sort.

Almost three years after the Billboard Moratorium was enacted, on September 23, 2002, three bills were introduced before the City Council that, if enacted, together would allow a second exception to the moratorium. The bills would create a conditional use for new billboards on publicly owned stadia and arenas in the B-5 zoning district and grant such a conditional use to the City, as owner of the Arena. The bills proposed the following Ordinances: 1) 03-513, amending the text of the Urban Renewal Plan for the Market Center Area of Baltimore City (in which the Arena is located) to allow new billboards approved by ordinance as a conditional use on publicly owned stadia and arenas; 2) 03-514, amending the text of the Zoning Code to create for the B-5 district a conditional use for new billboards on publicly owned stadia and arenas; and 3) 03-515, granting such a conditional use to the City for 14 new billboards on the exterior of the Arena.

The applicant for the bills was listed as the "Administration (Baltimore Development Corporation)."⁵ At the time, the only publicly owned stadia and arenas in the B-5 zone were the Arena, Oriole Park at Camden Yards, and the M & T Bank Stadium. "The latter two are owned by the State of Maryland and thus are not subject to zoning regulations by Baltimore City. See Mayor & City Council of Balt. v. State, 281 Md. 217, 223-24, 378 A.2d 1326, 1329-30 (1977)." MBC, 403 Md. at 223 n. 7, 941 A.2d 1052. Thus, when the legislation was proposed, the Arena was the only property that not only was eligible for such a conditional use but also would have any need to apply for it.

The bills were referred to the City Planning Commission, Department of Planning ("Commission"). Its staff prepared a report ("Staff Report") describing the bills and recommending their approval. The Staff Report identified Hale as a petitioner for the bills and as an applicant for the conditional use. The report further recommended, at the suggestion of the Citizens Planning and Housing Association ("CPHA"), an established grass roots advocacy group that had championed enactment of the Billboard Moratorium, that, if the conditional use were granted so that the new signs would be allowed on the exterior of the Arena, the City also would require that an equal number of existing billboards in the City be removed.

On January 9, 2003, the Commission considered the bills and, with certain amendments not relevant here, recommended that the City Council pass them. On February 19, 2003, hearings on the bills were held before the Land Use and Planning Committee of the City Council. The bills were amended to require, as lobbied by CPHA, that for each new billboard the Arena would be permitted to erect, one billboard elsewhere in Baltimore City would be removed.

On March 24, 2003, the City Council passed Ordinance 03-513, which took effect immediately, and Ordinance 03-514, which took effect 30 days later. Then, on April 7, 2003, it passed Ordinance 03-515, which took effect 30 days after that. The Mayor signed the three ordinances into law on April 9, 2003.⁶

As mentioned above, there followed actions for judicial review in the Circuit Court for Baltimore City and appeals, all of which concerned, as the Court of Appeals put it, the "modalities of legal process that may be available to obtain judicial scrutiny of these enactments by the Mayor and City Council." MBC, 403 Md. at 219, 941 A.2d 1052. Those thorny procedural issues were put to rest when the Court held that

the appellants must pursue via their declaratory/injunctive action their grievances with regard to Ordinance 03-514, the zoning ordinance text amendment to the Baltimore City Zoning Article, but should be allowed to amend that action to frame in a petition for judicial review their claims as to Ordinance 03-515 granting the specific conditional use to the Arena.

Id. at 242, 941 A.2d 1052. The Court referenced only Ordinances 03-514 and 03-515 because, as it had noted elsewhere in its opinion, by then, the appellants were not seeking declaratory and injunctive relief respecting Ordinance 03-513, the text amendment to the Urban Renewal Plan, given that that ordinance would be ineffective or inconsequential if Ordinance 03-514 were found illegal. That remains the case, and therefore, for ease of discussion, in this opinion we shall focus only on Ordinances 03-514 and 03-515.

On remand, the appellants filed a second amended complaint refashioning their claims to comport with the holding of the Court of Appeals, i.e., by including counts for declaratory and injunctive relief respecting Ordinance 03-514 and counts for judicial review respecting Ordinance 03-515.

The parties filed motions for summary judgment and oppositions on the declaratory judgment counts and submitted memoranda of law under Rule 7-207 with respect to the judicial review counts. The court held a hearing on all motions, and held the matter sub curia.

The court issued a declaratory judgment ruling legal the City's creation, by enactment of Ordinance...