232 F.3d 887 (4th Cir. 2000), 99-2444, Greenspring Racquet Club, Inc. v. Baltimore County, Maryland

Docket Nº:99-2444, 00-1012.
Citation:232 F.3d 887
Party Name:GREENSPRING RACQUET CLUB, INCORPORATED; William Hirshfeld; Loretta Hirshfeld, Plaintiffs-Appellants, v. BALTIMORE COUNTY, MARYLAND, a body corporate and Politic, Defendant-Appellee,and Baltimore County Department of Permits and Development Management; Arnold M. Jablon, Director, Department of Permits and Development Management; Baltimore County Cou
Case Date:October 31, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 887

232 F.3d 887 (4th Cir. 2000)

GREENSPRING RACQUET CLUB, INCORPORATED; William Hirshfeld; Loretta Hirshfeld, Plaintiffs-Appellants,

v.

BALTIMORE COUNTY, MARYLAND, a body corporate and Politic, Defendant-Appellee,and

Baltimore County Department of Permits and Development Management; Arnold M. Jablon, Director, Department of Permits and Development Management; Baltimore County Council; S.G. Samuel Moxley; Kevin Kamenetz; T. Brian McIntire; Vincent J. Gardina; Joseph Bartenfeld, Baltimore County Council Members, Defendants.

GREENSPRING RACQUET CLUB, INCORPORATED; William Hirshfeld; Loretta Hirshfeld, Plaintiffs-Appellants,

v.

BALTIMORE COUNTY, MARYLAND, a body corporate and Politic, Defendant-Appellee,and

Baltimore County Department of Permits and Development Management; Arnold M. Jablon, Director, Department of Permits and Development Management; Baltimore County Council; S.G. Samuel Moxley; Kevin Kamenetz; T. Brian McIntire; Vincent J. Gardina; Joseph Bartenfeld, Baltimore County Council Members, Defendants.

Nos. 99-2444, 00-1012.

United States Court of Appeals, Fourth Circuit

October 31, 2000

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA4 Rule 36 regarding use of unpublished opinions)

Argued June 8, 2000.

Appeals from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (CA-99-469-AMD).

Robert Henry Freilich, Freilich, Leitner & Carlisle, Kansas City, MO, for appellants.

Jeffrey Grant Cook, Office of Law, Towson, MD, for appellee.

ON BRIEF: Virginia W. Barnhart, County Attorney, John E. Beverungen, Office of Law, Towson, MD, for appellee.

Before MURNAGHAN, [*] WILLIAMS, and MICHAEL, Circuit Judges.

OPINION

PER CURIAM.

Greenspring Racquet Club, Inc., William Hirshfeld, and Loretta Hirshfeld (collectively "Greenspring") claim that application of Baltimore County Council Bill 111-98 to property located on Falls Road in Baltimore County violates their Fifth and Fourteenth Amendment rights under the federal Constitution. The United States District Court for the District of Maryland granted the County's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted and shortly thereafter granted the County's motion for attorney's fees under 42 U.S.C.A. § 1988 (West 1994 & Supp.2000). This appeal followed. We affirm the dismissal under Rule 12(b)(6) of all claims but the as-applied takings claim. We hold that the as-applied takings claim is not ripe and therefore should have been dismissed pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction. Because the district court's award of attorney's fees was based in part upon a finding that the unripe as-applied takings claim is frivolous, we vacate the award of attorney's fees and remand the attorney's fee issue to the district court for reconsideration in light of this opinion.

I.

William and Loretta Hirshfeld own the property at issue in this case--a 5.5 acre parcel on the east side of Falls Road in Baltimore County, Maryland--which they lease to Greenspring Racquet Club, Inc. Greenspring currently operates a tennis club on the property; however, Greenspring wants to tear down the tennis club and build one or more office buildings and a parking garage in the club's place.

To this end, Greenspring developed plans to raze the tennis club and to construct two adjoining office towers, one five stories and one six stories, with an attached parking garage. In June 1998, Greenspring submitted a letter to the Baltimore County Development Review Committee ("DRC") requesting that Greenspring be exempt from portions of the process for public approval of the building plan pursuant to Baltimore County Code, County Development Regulations, § 26-171(b)(9). Greenspring maintains that it is legally entitled to a(b)(9) exemption because the proposed development qualifies as a "minor development" under the Code. The DRC responded to Greenspring by letter, and denied the requested (b)(9) exemption from portions of the public review process. An open hearing was held on June 22, 1998 to further consider the matter, but Greenspring's request for a(b)(9) exemption was never granted.

On June 26, 1998, Greenspring filed suit in state court seeking mandamus, declaratory, and injunctive relief from the denial of the (b)(9) exemption. Greenspring argued that it is entitled to the exemption and that denial by the DRC was unlawful.

Meanwhile, on October 5, 1998, the County Council enacted a new zoning ordinance, Bill 111-98, which imposed more restrictive limits on building improvements in areas with certain zoning designations located near rural conservation zones. Specifically, Bill 111-98 imposed a height limit of 35 feet and a floor area ratio ("FAR") of .5 in areas zoned "Business Light," "Business Major," or "Business Rural" when the exterior wall of any proposed building is within 750 feet of a rural conservation zone. The County asserts that Bill 111-98 affects 150 sites in Baltimore County. Greenspring asserts that the new restrictions only apply to its site and one other within the county.

In January 1999, Greenspring amended its state court complaint by adding counts seeking damages and compensation under the state and federal constitutions. Greenspring reserved its federal claims, calling the action a "Jennings-Fields reservation." In February 1999, the County removed the case to federal court and filed a motion to dismiss.

In the meantime, Greenspring was still doing battle directly with the Baltimore County zoning authorities. After Bill 111-98 was enacted, Greenspring asked the Baltimore County Planning Board ("the Board") to rezone Greenspring's Falls Road property from a "Business Major" zone to an "Office/Residential-2" zone, in order to avoid the more restrictive limitations contained in Bill 111-98. In March of 1999, the Board denied Greenspring's request.

In April 1999, Greenspring submitted another request to the DRC asking, again, for a(b)(9) exemption from certain public approval procedures. Along with this second request, Greenspring included a revised site plan describing construction of one eight-story office tower with a garage. The proposed building in the revised plan was confined to the same "footprint" as the pre existing improvements on the property (the tennis club), had a per-story square footage less than that of the pre-existing building, and required, according to Greenspring, no public works agreement. For these reasons, Greenspring explained to the DRC, the revised plan should be exempt from the new limitations imposed by Bill 111-98, under section 2 of that ordinance.

The DRC held an open meeting in May of 1999 to consider Greenspring's request for both a(b)(9) exemption from the public review process and a section 2 exemption from the new limits contained in Bill 111-98. The DRC denied the request for the (b)(9) exemption, again, but did not discuss the section 2 exemption.

After a hearing in the district court, Greenspring filed a Second Amended Complaint seeking declaratory, injunctive, and monetary relief under § 1983 for violations of the Fifth and Fourteenth Amendments. Greenspring included seven counts in the Second Amended Complaint, alleging state action which amounted to (1) a denial of procedural due process; (2) facial and as-applied takings; (3) facial and as-applied violations of the Equal Protection Clause; and (4) facial and as-applied violations of substantive due process. At the core of Greenspring's elaborate complaint is the contention that Bill 111-98 was adopted in bad faith, with an intent to discriminate against Greenspring, and that the Bill fails to advance a legitimate state interest.

On June 7, 1999, the County filed a Rule 12(b)(6) motion to dismiss. Greenspring opposed this motion, and urged the district court to abstain from consideration of the motion because of ripeness requirements relating specifically to the as-applied takings claim. In September 1999, the district court issued an order granting the County's motion and dismissing the case with prejudice. See Greenspring Racquet Club v. Baltimore County, 70 F.Supp.2d 598, 607 (D.Md.1999).

In October of 1999, the County filed a motion seeking attorney's fees under § 1988, which the district court awarded. See Greenspring Racquet Club v. Baltimore County, 77 F.Supp.2d 699, 705 (D.Md.1999). Greenspring now appeals the order granting the 12(b)(6) motion, the district court's refusal to abstain from consideration of the 12(b)(6) motion, and the...

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