SPAW, LLC v. City of Annapolis

452 Md. 314

156 A.3d 906

SPAW, LLC

v.CITY OF ANNAPOLIS

No. 2, Sept. Term, 2016

Court of Appeals of Maryland.

Filed: March 27, 2017

Michael J. Marinello (Jonathan P. Kagan, Meagan O. Cooper, Kagan Law Group, LLC of Annapolis, MD; Rex S. Caldwell, III, Rex S. Caldwell, III, P.A. of Annapolis, MD), on brief, for petitioner.

Gary M. Elson, Acting City Attorney, City of Annapolis Office of Law of Annapolis, MD), on brief, for respondent.

Barbera, C.J. Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Getty, J.

In this case we examine the enforcement powers available to a municipality under its historic preservation zoning ordinance and whether the City of Annapolis ("Annapolis" or the "City"), Respondent, exceeded those enforcement powers when a recalcitrant property owner failed to file the required application for a Certificate of Approval prior to commencing and completing a building rehabilitation project. Spaw, LLC ("Spaw"), Petitioner, a Delaware limited liability company, owns and manages an apartment building located at 2 Maryland Avenue in Annapolis, Maryland, which is within the designated historic district under the zoning ordinance of the City.

Ms. Lisa Craig, the Chief of the Annapolis Historic Preservation Commission

("Commission"), issued two historic preservation municipal infraction citations to Spaw alleging that Spaw replaced historic wood windows with vinyl windows without a Certificate of Approval from the Commission. Spaw requested a trial, and the first trial took place at the District Court of Maryland, sitting in Anne Arundel County. After the district court found in favor of the City, Spaw appealed the decision of the district court to the Circuit Court of Maryland for Anne Arundel County. In the de novo appeal, Spaw admitted to replacing historic wood windows with vinyl windows without prior approval by the Commission, as required by law. Based upon this admission, the court granted summary judgment to the City.

Spaw filed a timely petition for a writ of certiorari with this Court, which we granted. In summary, Spaw argues: (1) the circuit court trial for a historic preservation municipal citation should have been conducted as a criminal proceeding, not a civil proceeding; (2) the two historic preservation municipal citations should have been dismissed for generality and a lack of specificity; (3) the statute of limitations precluded the City's enforcement of the historic preservation zoning violations; (4) the relief awarded was overly broad; and (5) the circuit court should have granted Spaw a new trial or amended the judgment in light of recent amendments to Maryland Rule 2–501.

We hold that historic preservation municipal citations are civil and in this case were not barred by the statute of limitations. In addition, the citations were sufficiently specific and the relief was proper. We are also unpersuaded by Spaw's contention that the circuit court abused its discretion by not granting Spaw's motion for a new trial or in the alternative to amend the judgment. Thus we affirm the judgment of the circuit court.

IBackground

A. Maryland's Statutory Framework for Historic Preservation Zoning

In 1963, the General Assembly enacted Maryland's first statute for historic preservation zoning. See 1963 Md. Laws, Ch. 874. The Historic Area Zoning Act was originally codified as Maryland Code, Art. 66B § 8.01 et seq. Currently codified at Maryland Code, Land Use Article ("LU") § 8–101 et seq. , the law enables local governments to regulate the preservation of historically significant sites and structures within their jurisdiction. LU § 8–104.

It is important to note that the authority for historic preservation zoning derives from this enabling act of the General Assembly and not from the general police power, so a jurisdiction's authority is limited to the powers provided in the Historic Area Zoning Act. See generally Mayor & Aldermen of Annapolis v. Anne Arundel Cty. , 271 Md. 265, 316 A.2d 807 (1974) (examining the legislative history of the Historic Area Zoning Act); see also 74 Md. Op. Atty. Gen. 176, 1989 WL 503614, at *1 (Mar. 15, 1989) (stating municipal authority is limited to powers in the Historic Area Zoning Act); 73 Md. Op. Atty. Gen. 238, 1988 WL 481988, at *4 (Mar. 23, 1988) ("[T]he municipal zoning power may be exercised only to the extent of the General Assembly's grant."). Thus the statutory framework is separate and distinct from the other zoning provisions in the Land Use Article.

Traditional zoning laws focus on the use of the land, while historic preservation zoning laws are designed to preserve the external architectural features and historical character of properties. The concept of historic area zoning is summarized as follows:

In brief, the zoning of historic areas requires that whenever an application is made for a permit for the erection of any new building or for the alteration of or additions to any existing building within the historic district, the plans therefor so far as they relate to appearance, color, texture or materials, and architectural design of the exterior thereof must be submitted to a commission for review and approval, and in this manner to prevent the intrusion of any building which would be destructive of the nature of the district.

Faulkner v. Town of Chestertown , 290 Md. 214, 224, 428 A.2d 879 (1981) (quoting 1 A. Rathkopf, The Law of Zoning and Planning § 15.01 (4th ed. 1975)). Historic area zoning does not displace traditional zoning. 62 Md. Op. Atty. Gen. 490, 1977 WL 35808 at *3 (Sept. 6, 1977). The historic area zoning is an overlay zone on the traditional zoning laws, which creates additional regulations for property owners within that area. Id.

Under the Maryland statute, local jurisdictions are authorized to enact ordinances to "regulate the construction, reconstruction, alteration, moving, and demolition of sites or structures of historical, archaeological, or architectural significance ... [and] sites or structures within districts [.]" LU § 8–104(a). The purpose of such ordinances are to:

(1) safeguard the heritage of the local jurisdiction by preserving sites, structures, or districts that reflect elements of cultural, social, economic, political, archaeological, or architectural history;

(2) stabilize and improve the property values of those sites, structures, or districts;

(3) foster civic beauty;

(4) strengthen the local economy; and

(5) promote the preservation and appreciation of those sites, structures, and districts for the education and welfare of the residents of each local jurisdiction.

LU § 8–104(b). Thus, to accomplish these purposes, local jurisdictions are permitted to "designate boundaries for sites, structures, and districts that are considered to be of historic, archaeological, or architectural significance [.]" LU § 8–105. Furthermore, local jurisdictions are authorized to "create a historic district commission or historic preservation commission" consisting of at least five members, a majority of which are residents of the local jurisdiction creating the commission. LU §§ 8–201, 8–202(a). The members are required to have "a demonstrated special interest, special knowledge, or professional or academic training in" areas such as history, architecture, architectural history, or historic preservation. LU § 8–202(b)(1). Local jurisdictions can establish and adopt additional qualifications for its commission members. LU § 8–202(b)(2). The members are appointed by the local jurisdiction's appointing authority to serve three–year staggered terms and can be reappointed. LU § 8–202(c).

A commission is required to "adopt rules and regulations necessary for the conduct of its business." LU § 8–203(a). An interested person, or his or her representative, has the right to "appear and be heard at a public hearing that a commission conducts." LU § 8–203(b). A commission's powers and duties are outlined in LU §§ 8–203 through 8–501.

At issue in this case is a commission's authority to review and approve applications for changes to sites and structures. See LU § 8–302. Pursuant to LU 8–302(a), a person is required to submit an application with the commission prior to "constructing, reconstructing, altering, moving, or demolishing a site or structure located within a locally designated district if any exterior changes are involved that would affect the historic, archaeological, or architectural significance of the site or structure" and any of the changes are "visible or intended to be visible from a public way." The commission is then required to review the application in conformance with LU § 8–303, which requires the commission to consider the application in light of its own guidelines, adopted under LU § 8–301, and the four additional considerations outlined in the statute while limiting its review to the exterior features of the property.¹ The commission can then approve or reject the application. LU § 8–302(b). The commission's decision is required to be filed with the local jurisdiction's building inspector—in the form of a "certificate of the commission's approval, approval with conditions, or modification, or written notice of rejection of an application or plan submitted to the commission for review." LU § 8–306(a). If the commission does not act within 45 days after the date the completed application was filed, then the application is deemed approved unless the application is withdrawn or an extension is agreed upon by the applicant and the commission. LU § 8–307. If the applicant is not satisfied by the commission's decision then it may appeal the decision. LU § 8–308. However, an applicant cannot begin work on a project nor can a building inspector issue a permit until the commission submits its certificate of approval, approval with conditions, or modifications. LU § 8–306(a).

If there is a historic preservation zoning violation, then a commission can request the enforcement authority of the jurisdiction to seek any of the remedies and...