25th STREET v. Baltimore

• Decision Date: 01 March 2001
• Docket Number: No. 2927,2927
• Citation: 137 Md. App. 60,767 A.2d 906
• Parties: COMMITTEE FOR RESPONSIBLE DEVELOPMENT ON 25TH STREET et al., v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.
• Court: Court of Special Appeals of Maryland

767 A.2d 906

137 Md. App. 60

COMMITTEE FOR RESPONSIBLE DEVELOPMENT ON 25TH STREET et al., v. MAYOR AND CITY COUNCIL OF BALTIMORE et al.

No. 2927, Sept. Term, 1999.

Court of Special Appeals of Maryland.

March 1, 2001.

J. Carroll Holzer (Holzer & Lee, on the brief), Towson, for appellants.

Sandra R. Gutman, Chief Solicitor (Frank C. Derr, Deputy City Solicitor, on the brief), Baltimore, for Mayor & City Council.

Stephen H. Kaufman (Howard Alderman, Jr., and Levin & Gann, P.A., on the brief), Towson, for CVS, Inc.

Stanley Fine (Rosenberg, Proutt, Funk & Greenberg, on the brief), Baltimore, for Wexler.

Argued before KENNEY, ADKINS and WILLIAM W. WENNER (Ret'd, specially assigned), JJ. KENNEY, Judge.

This case arises out of a judgment of the Circuit Court for Baltimore City ("the City") dismissing a request for judicial review made by appellant, Douglas M. Armstrong ("Armstrong"), and the Committee for Responsible Development on 25th Street (the "Committee"), based on lack of standing.¹ Armstrong and the Committee had petitioned for judicial review of a decision of the Board of Municipal and Zoning Appeals (the "Board") denying their appeal of the issuance of a permit to appellees Robert Wexler ("Wexler") and Charles Street Baltimore CVS, Inc. ("CVS").

Appellant presents three questions on appeal, which we have reworded and reordered as follows:

1. Is the interpretation of Council Ordinance Number 967, creating a Parking Lot District, as it relates to accessory parking lots, a matter of great public importance and likely to reoccur and therefore not moot?

2. Does an unaggrieved taxpayer in Baltimore City have standing to petition for judicial review of a decision of the Board of Municipal and Zoning Appeals?

3. Is the appellant aggrieved and thus has standing to petition for judicial review of a decision of the Board of Municipal and Zoning Appeals?

Finding no error, we affirm.

FACTS AND PROCEEDINGS

On July 9, 1999, the City issued a permit to Wexler and his lessee, CVS, that allowed them to consolidate lots and erect a drugstore/pharmacy on property located at 2500-2506 North Charles Street (the "Property"). The permit contemplated the demolition of ten vacant buildings in order to accommodate the pharmacy and the adjacent parking lot containing sixteen parking spaces.

The Property is zoned B-2-3 business; a pharmacy is a permitted use within that zoning area. The Property is also within the Charles Village parking lot district. Section 9.0-1 of the Baltimore City Zoning Ordinance ("BCZO") requires accessory off-street parking to support the permitted use.²

Armstrong resides at 2828 North Howard Street, which is approximately two blocks west and three blocks north of the Property. Armstrong, along with the Committee,³ appealed the grant of the permit. Both argued that the BCZO required plans for a parking lot like the sixteen space lot contemplated by CVS "to be reviewed by the Civic Design Commission and ultimately authorized `by an ordinance approved by the Mayor and City Council of Baltimore.'"

The Board held a hearing on August 31, 1999. At the hearing, Armstrong argued, on behalf of himself and the Committee, that the capacity of the CVS parking lot was more than double what was needed in a B-2-3 district. He also expressed concern about the need to raze ten row houses to make way for a retail structure that did not blend in with the historical character of the neighborhood. He also argued that the exterior design of the CVS did not meet the requirements under the zoning ordinances. Armstrong and other citizens appearing at the hearing argued that CVS needed to obtain an ordinance to build the sixteen space parking lot because of its location in a parking lot district.

At the hearing, the attorney for the Mayor and City Council of Baltimore (the "City") argued as follows:

I can say that the standard practice and procedure of the zoning office has been to approve accessory parking for all uses in the parking lot districts without requiring an ordinance. The language, and I do agree that the language isn't the best wherein they talked about parking lots versus as a permitted use without saying anything about accessory. It's silent on the accessory aspect of it. The—I mean that, I think, is something that's poorly written in the ordinance. However, the standard practice and procedure ever since 1971 when the ordinance was implemented has been to allow accessory parking without applying the requirements of parking lots.

The City acknowledged that if the parking lot were the principal use of the property, an ordinance would be necessary. A parking lot is defined by the BCZO as "the land used for the off-street parking of three or more motor vehicles together with the adjoining and perimeter areas required under this section or elsewhere under the laws and ordinances of Baltimore City." BCZO § 9.0-3(b). The City noted that the principal use of the property in this case was for a pharmacy and that, consequently, the proposed parking lot was an accessory use. The City, moreover, contended that the zoning ordinance does not prohibit developers from providing more parking spaces than required in an accessory lot, even when the development is in a parking lot district.

The City, CVS, and Wexler all adduced evidence that other retail establishments in the neighborhood, specifically Hollywood Video and a Safeway supermarket, had accessory parking with spaces in excess of the minimum requirements. These businesses had not been required to receive ordinance approval because the City believed an ordinance was unnecessary for accessory use parking lots.

The Board handed down its decision sustaining the grant of the permit on September 9, 1999. Appellants filed a request for judicial review to the Circuit Court for Baltimore City. Appellees Wexler and the City moved to dismiss the appeal, arguing that both Armstrong and the Committee lacked standing. In their response to the motion to dismiss, "Appellants concede[d] that the Committee lacks standing, [but argued that] it is without question that Douglas Armstrong possesses such standing to bring this appeal." Along with his response to the motion to dismiss, Armstrong filed an affidavit stating that all of the information in the motion was true and correct and attaching documents concerning both his own property as well as affected property on Charles Street.

The circuit court held a hearing on January 7, 2000, and granted the motion to dismiss, stating:

In this particular case, the Court has been reaching for that which needs to be done. The question before this Court, and this Court's finding is whether or not it's a showing of Mr. Armstrong being an aggrieved party. The Court does not have before it that which is clearly a contact to him. Arguably, that his house from his steps, the front or back, he cannot see the location.

Someone would argue, well he doesn't have to walk past it, but that's why he's there. He would like to walk down the street and see and feel Charles Village as being what it was when he decided to move there and that his kids will know what Charles Village is, and his grandkids will know why he moved there. And hopefully he sticks around.

In this particular case before the Court, the Court does not have what it needs to have in accordance to that which has been found and decided not only by Brynaiarski, but several other cases, reported, I might add, that deals with the issue. The McCormick Spice case dealt with the issue raised here, specifically as to what it looks like in its impact and why we feel that it should not be torn down....

What is very clear to this Court is that you have to be more specific in the battle to be able to make your argument....

They stand that which is before me in applicable law, the Court grants the motion to dismiss. As to the Committee, the Court further finds, based on the applicable law and the cases and its interpretation, the Court is required to grant the motion to dismiss as to Mr. Armstrong, with its apologies.

Armstrong's motion to reconsider was denied by the court on February 25, 2000. This appeal followed.

DISCUSSION

I. Mootness

Appellant argues that this case is not moot even though appellees had already razed the buildings in order to commence construction of the pharmacy and parking lot. He asks us to decide how the particular provisions of the zoning ordinances should be applied in this case.

"A case is moot when there is no longer an existing controversy between the parties at the time it is before the court so that the court cannot provide an effective remedy." Coburn v. Coburn, 342 Md. 244, 250, 674 A.2d 951 (1996). Moot cases are generally dismissed without a decision on the merits. Coburn, 342 Md. at 250, 674 A.2d 951. In rare instances, however, we can address a moot case if it "presents `unresolved issues in matters of important public concern that, if decided, will establish a rule for future conduct,' or the issue presented is `capable of repetition, yet evading review.'" Stevenson v. Lanham, 127 Md.App. 597, 612, 736 A.2d 363 (1999) (citations omitted).

In the instant case, Armstrong was attempting to prevent the destruction of designed buildings along Charles Street. These buildings have been destroyed, so we cannot provide an effective remedy, as the buildings cannot be put back.⁴ Armstrong argues that this Court could still provide him with an effective remedy by requiring aesthetic changes or a reduction in the number of parking spaces. Armstrong appears to us to be requesting that we order appellees to abide by the requirements of BCZO § 9.0-3, but any failure by the appellees to abide by the requirements of the ordinance is not at issue in this case.⁵

Rather, we must decide whether our interpretation of the ordinance would fall into one of the two categories that would allow us to address the substance of appellant's arguments despite the fact that his...