120 W. Fayette St., LLLP v. Mayor & City Council of Balt., 81

• Decision Date: 27 April 2012
• Docket Number: No. 81,Sept. Term, 2011.,81
• Citation: 43 A.3d 355,426 Md. 14
• Parties: 120 WEST FAYETTE STREET, LLLP v. MAYOR and City Council OF BALTIMORE, et al.
• Court: Maryland Court of Appeals

426 Md. 14

43 A.3d 355

120 WEST FAYETTE STREET, LLLP

v.MAYOR and City Council OF BALTIMORE, et al.

No. 81, Sept. Term, 2011.

Court of Appeals of Maryland.

April 27, 2012.

M. Albert Figinski (Law Offices of Peter G. Angelos, P.C., Baltimore, MD), on brief, for Appellant.

George A. Nilson, City Solicitor (David E. Ralph, Deputy City Solicitor, and Steven J. Potter, Chief Solicitor, Baltimore City Department of Law, Baltimore, MD; Charles S. Hirsch of Ballard, Spahr, Andrews & Ingersoll, LLP, Baltimore, MD) on brief, for Appellees.

Matthew J. Fader, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Amanda Staken Conn and Phillip Deters, Asst. Attys. Gen., Baltimore, MD), on brief, for Appellees.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, DALE R. CATHELL, (Retired, Specially Assigned), JAMES A. KENNEY, (Retired, Specially Assigned), JJ.

BARBERA, J.

In 1999, the Baltimore City Council enacted the “Market Center Urban Renewal Plan” (Urban Renewal Plan), to renew a portion of the westside of Baltimore City. A five-block area located in the westside renewal area, known as the “Superblock,” ¹ is part of the plan for redevelopment and has been the subject of protracted litigation between 120 West Fayette, LLLP (120 West Fayette) and the Mayor and City Council of Baltimore (City). This appeal marks the third time we are asked to address a legal issue generated by the ongoing dispute.

We held in 120 West Fayette Street, LLLP v. Mayor of Baltimore, 407 Md. 253, 258, 964 A.2d 662, 664–65 (2009)( Superblock I ), that 120 West Fayette had standing to challenge the legality of the City's entry into a Land Disposition Agreement (LDA) to sell to Lexington Square Partners, LLC (Lexington Square) property in the Superblock. Later, in 120 West Fayette Street, LLLP v. Mayor of Baltimore, 413 Md. 309, 992 A.2d 459 (2010)( Superblock II ), we held that the process for granting the negotiating rights and the resulting LDA were not illegal under the City's Charter and the Urban Renewal Plan, id. at 345, 992 A.2d at 481, and the process did not involve an improper delegation of authority from a municipal corporation to a non-profit corporation, id. at 354, 992 A.2d at 486. We further held, as not “sufficiently ripe to rise to the level of a justiciable controversy,” 120 West Fayette's allegation that in the immediate future the LDA would receive unlawful approval from the Maryland Historical Trust (Trust) because the LDA contained design plans that conflicted with the Urban Renewal Plan's building height restrictions, id. at 359, 992 A.2d at 489.

The current iteration of the litigation focuses on a Memorandum of Agreement (MOA) between the City and the Trust relating to the treatment of historic properties in connection with the Urban Renewal Plan. In brief, the MOA requires the City to submit Superblock redevelopment plans to the Trust for review and approval. The Trust's Director and the State Historic Preservation Officer, J. Rodney Little, rejected the first four sets of redevelopment plans submitted by the City. On December 22, 2010, Mr. Little provided conditional approval of the fifth set of plans. The City, on December 30, 2010, agreed to those conditions.

Four months later, 120 West Fayette, Appellant here, filed a complaint in the Circuit Court for Baltimore City seeking a declaration of rights “interpreting the Memorandum of Agreement in light of the facts of this case, and declaring the 12/22/10 letter from Rodney Little to be ultra vires, ab initio.” The City, the Baltimore Development Corporation (BDC), Lexington Square, and the Trust, hereafter Appellees collectively,moved to dismiss the complaint. The Circuit Court dismissed the complaint on the ground that 120 West Fayette failed to state a claim upon which relief could be granted because it was neither a party to, nor an intended beneficiary of, the MOA.

We granted the petition of the City and the BDC, and issued a writ of certiorari to consider whether 120 West Fayette can maintain an action that seeks a declaration interpreting the terms of the MOA. 120 West Fayette v. Baltimore, 422 Md. 356, 30 A.3d 196 (2011). For the reasons that follow, we affirm the judgment of dismissal.

I.

During its 2000 legislative session, the General Assembly appropriated $11.5 million dollars to the Maryland Stadium Authority to rebuild the Hippodrome Performing Arts Center, an historic theater centrally located within the westside development area. See 2000 Md. Laws, ch. 204 § 1, DA03.60(2) (FY 2001 Budget Appropriation). The appropriation came with the condition that $1 million of the expenditure hinged on “the City of Baltimore and the Maryland Historical Trust ... reach[ing] [an] agreement on how to minimize the demolition of structures which contribute to the Market Center National Register Historic District.” Id.

In addition to the requirements of the FY 2001 Budget Appropriation, Maryland law ² requires the Director of the Trust, and federal law ³ requires the State Historic Preservation Officer (SHPO), to determine whether proposed capital projects would adversely affect any property listed in or eligible to be listed in the Maryland Register of Historic Properties or the National Register of Historic Places. Typically in Maryland, a memorandum of agreement constitutes an agreement between a governmental entity and the Trust that the project may proceed on condition that certain stated steps are taken by the State or local government to avoid, mitigate, or satisfactorily reduce any adverse effects on identified historic properties.

On January 31, 2001, the City and the Trust entered into such an agreement, memorialized in the MOA. Then–Mayor Martin O'Malley signed the MOA on behalf of the City, and Mr. Little, as Director of the Trust and with the authority to enter into such agreements delegated to him by the Board of Directors of the Trust, signed the MOA on behalf of the Trust.⁴

The MOA, characterizing as “the Project” the City's undertaking to redevelop the westside of downtown Baltimore, i.e., the Urban Renewal Plan, states that the Project “will include significant rehabilitation of existing buildings as well as demolition and new construction.” Moreover, “in consultation with the Trust, the City acknowledges that the Project may have adverse effects on properties within the Market Center Historic District, which is listed in the Maryland Register of Historic Properties and the National Register of Historic Places.” The MOA further states that, “in accordance with [the relevant State law provisions], the City and the Trust have consulted to determine means of avoiding, mitigating or satisfactorily reducing the adverse effects of the Project on historic properties.” The City therefore “ anticipates that the Project will require support and actions from various State and Federal agencies which actions will necessitate conformance with the requirements of [State and federal law].”

The MOA includes the agreement of the City and the Trust that “the Project will be implemented in accordance with the following stipulations in order to take into account the effects of the Project on historicproperties.” Among those stipulations is that the City “will prepare a strategic plan for the Project” that designates “those contributing historic buildings which the City and the Trust agree are worthy of preservation and those buildings which may be demolished without further consultation between the City and the Trust.” The MOA further provides that “[t]he strategic plan will be submitted for the review and comment of the [Market Center Project Area Committee], and the review and approval of the Trust, which approval shall not be unreasonably delayed or withheld.” Then, “[u]pon approval by the Trust, the City will pursue amendment of the Urban Renewal Plan to incorporate the approved strategic plan.” The MOA details both the approval process by the Trust as well as the City and the Trust's respective obligations in connection thereto. Finally, the MOA provides: “The execution of the MOA and the implementation of its terms evidences that the City has afforded the Trust an opportunity to comment on the Project and its effects on historic properties, and that the City and the Trust have taken into account the effects of the Project on historic properties.”

The strategic plan contemplated by the MOA was developed in February 2001, within days of the signing of the January 2001 MOA.⁵ Over the years that followed,⁶ Mr. Little, in his capacity as Director of the Trust and as SHPO, and Jay Brodie, President of the BDC, corresponded through a series of letters regarding plans submitted by the City for the proposed Superblock development. On October 29, 2010, Lexington Square, through the City, submitted to the Trust, for its review pursuant to the MOA, a development plan for the Superblock. The development plan called for the complete demolition of nine buildings and partial demolition of five buildings designated for preservation by the strategic plan.

By letter dated December 22, 2010, Mr. Little granted conditional approval of the proposed development plan.⁷ In that letter, Mr. Little, noting that the development plan contained “substantial adverse effects on historic resources,” intimated that the development plan was approved because it was the product of Lexington Square's “non-negotiable business model for redevelopment of the Superblock,” and the proposed plan had consistently enjoyed the City's support as “the preferred retail strategy for [the Superblock].” On December 30, 2010, the City and Lexington Square accepted the conditions stated in the December 22, 2010 approval letter.

Sometime in January 2011, the Trust learned of Mr. Little's conditional approval of Lexington Square's development plan. Disagreeing with Mr. Little's disposition of the matter, the Trust voted to ask Mr. Little to rescind his approval. When Mr. Little declined, the...