Greenspring Racquet Club, Inc. v. Baltimore County

• Citation: 70 F.Supp.2d 598
• Decision Date: 27 September 1999
• Docket Number: No. CIV. NO. AMD 99-469.,CIV. NO. AMD 99-469.
• Parties: GREENSPRING RACQUET CLUB, INC., et al., Plaintiffs, v. BALTIMORE COUNTY, MARYLAND, Defendant.
• Court: U.S. District Court — District of Maryland

Page 598

70 F.Supp.2d 598

GREENSPRING RACQUET CLUB, INC., et al., Plaintiffs, v. BALTIMORE COUNTY, MARYLAND, Defendant.

No. CIV. NO. AMD 99-469.

United States District Court, D. Maryland.

September 27, 1999.

COPYRIGHT MATERIAL OMITTED

H. Russell Smouse, Julius W. Lichter, Towson, Robert H. Freilich, Freilich, Leitner & Carlisle, Kansas City, MO, for plaintiffs.

Virginia W. Barnhart, John E. Beverungen, Jeffrey Grant Cook, Towson, MD, for defendant.

MEMORANDUM

DAVIS, District Judge.

This is a poorly disguised zoning case masquerading as a collection of constitutional claims. Plaintiffs, Greenspring Racquet Club, Inc., William Hirshfeld, and Loretta Hirshfeld (collectively "Greenspring"), own the property which is the subject of this litigation: a parcel consisting of approximately 5.5 acres located on the east side of Falls Road, north of Joppa Road in Baltimore County, Maryland. Plaintiffs currently operate a tennis club on the property but they would rather raze the tennis club and construct one or more office buildings and a parking garage.

Plaintiffs have filed a seven count second amended complaint seeking equitable relief and damages in respect to the County's application to their property of County Council Bill No. 111-98 ("the Ordinance"). To date, the County has not approved Greenspring's site plans, thus delaying construction; a prolonged challenge in state court is in the offing, with the effect, perhaps, of permanently depriving Greenspring of the opportunity to redevelop its property in an economically advantageous environment. Pending before the court is the County's Motion to Dismiss. The issues have been fully briefed and no hearing is necessary. For the reasons stated below, I shall grant the County's motion.¹

(i)

A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); accord Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Motions to dismiss for failure to state a claim are "granted sparingly and with caution in order to make certain that plaintiff is not improperly denied a right to have his claim adjudicated on the merits." 5A Charles A. Wright & Arthur R. Miller, FEDERAL PRACTICE & PROCEDURE, CIVIL 2D § 1349 at 192-93 (1990).

Rule 8(a)(2) requires only that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). A claimant is not required to "set out in detail the facts upon which he bases his claim" so long as the claim "will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47, 78 S.Ct. 99. Moreover, all well-pleaded factual allegations are assumed to be true and are viewed in the light most favorable to the plaintiff. Jenkins v. McKeithen, 395 U.S. 411, 421-22, 89 S.Ct. 1843, 23 L.Ed.2d 404 (1969). Only when the factual allegations in support of a claim are not well-pleaded (e.g., when they are "functionally illegible" or "baldly conclusory," Shuster v. Oppelman, 962 F.Supp. 394, 395 (S.D.N.Y.1997)), should they not be accepted as true and the claim dismissed.

Application of the above principles to the instant case compels the conclusion that the motion should be granted.

(ii)

Accepting Greenspring's account of the facts as true, the following constitutes the course of events leading to this litigation. Greenspring developed plans to raze the tennis club currently occupying its site and to construct two adjoining office towers, one five stories and one six stories, with a structured parking garage. On June 10, 1998, Greenspring submitted a letter to the County Development Review Committee ("DRC"), requesting that it be exempted from portions of the process for plan approval delineated in Division 2 of the County Development Regulations. Balt. County Code §§ 26-201 to 26-217.² In this letter, Greenspring explained that it was entitled to be exempted from this process pursuant to Baltimore County Code § 26-171(b)(9) because its proposed development qualified as a "minor development" under the Code. Attached to this letter request was a site plan for the proposed demolition and construction. The DRC indicated by letter dated June 17, 1998, that it would not allow the requested exemption from portions of the review process, and it held an open meeting on June 22, 1998, to further consider Greenspring's request. Greenspring's request was never granted.

Meanwhile, on October 5, 1998, the County Council enacted the Ordinance, which imposes a height limit of 35 feet and a floor area ratio limit of 0.5 for certain new construction on Greenspring's site and one other site in Baltimore County.³ Greenspring promptly requested that the Baltimore County Planning Board rezone its property from a "Business Major" zone to an "Office/Residential-2" zone. This request was denied on March 18, 1999.

On April 27, 1999, Greenspring submitted a second request to the DRC asking again that it be exempted from the specified procedural requirements of Division 2. In addition, Greenspring attached a revised site plan describing construction of one eight story office tower with garage, and it requested that it be exempted from the limitations of the Ordinance. According to Greenspring, this letter explained that under Section 2 of the Ordinance, the revised development plan qualified for exemption from the height and floor ratio requirements because the new construction is confined to the same footprint as the preexisting improvements on the site, the square footage per story of the proposed building is less than the preexisting one, and no public works agreement is required.

The DRC held an open meeting to consider Greenspring's request for exemptions from both portions of the review process and the height/floor area ratio restrictions of the Ordinance. It denied the request for exemption from the review process, indicating that Greenspring should speak with Arnold Jablon, the Director of Permits and Development Management, who could direct the DRC to later approve the request. The request for exemption from the height and floor area ratio requirements of the Ordinance was not discussed. See County's Motion to Strike, Ex. 1 (Transcript of the Meeting of the DRC on May 10, 1999).

(iii)

The amended complaint contains seven counts: two claims alleging unconstitutional takings without just compensation (one facial, one as applied); two claims alleging equal protection violations (one facial, one as applied); one claim alleging a violation of procedural due process; and two claims alleging substantive due process violations (one facial, one as applied). I shall address these in turn.

Takings Claims

Greenspring alleges that the County has effectively taken its property without just compensation in violation of the Fifth and Fourteenth Amendments to the United States Constitution.⁴ The facial and most of the variations of the "as applied" takings claims fail, among other reasons, because Greenspring does not have any constitutionally protected property interest that was affected by the County's enactment and application of the zoning laws and regulations at issue. Furthermore, while I shall assume, for the purposes of the pending motion, that Greenspring does have a constitutionally protected property interest insofar as it claims an entitlement to a nondiscretionary exemption from the Ordinance (as provided in Section 2 thereof), this "as applied" claim also fails because Greenspring does not sufficiently allege that it has been deprived of substantially all of the economic value of its property in consequence of its failure to obtain the desired exemption.

Facial Taking

Greenspring contends that the enactment of the height and floor area ratio restrictions of the Ordinance on their face effectively deprived it of "all or substantially all of the economic use and/or value" of its property.⁵ Second Amended Complaint at ¶¶ 45, 47, and 60. However, Greenspring has no constitutionally protected property right in the airspace or anything else which was affected by the Ordinance, so it fails to state a claim that the County took something from it by enacting the Ordinance.

Since 1909, the Supreme Court has upheld height restrictions on buildings which a state or local legislative body reasonably concluded promoted "the health, safety, morals, or general welfare." Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923 (1909). Even in the absence of height restrictions, the Supreme Court in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 130, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), made it clear that no "taking" is established "simply by showing that [plaintiffs] have been denied the ability to exploit a property interest [in air space] that they heretofore had believed was available for development ...."⁶ As in Penn Central, Greenspring continues to be able to use its building as it has in the past, and the Ordinance does not prohibit all air development, just development higher than 35 feet.

Moreover, the rationales cited by the County to support its enactment of the Ordinance clearly fall within those recognized by the courts as reasonable bases for zoning laws. See Sylvia Dev. Corp. v. Calvert County, 48 F.3d 810, 828-29 (4th Cir.1995)(holding that proper bases for zoning determinations include concern about further growth in rural areas, residential density, community aesthetics, traffic congestion, and water supplies). In urging passage of the Ordinance, County Councilman T. Bryan McIntire explained that the height and floor area ratio restrictions would have esthetic benefits, would decrease...