Keeler v. Mayor & City Council of Cumberland

• Decision Date: 15 October 1996
• Docket Number: Civil Action No. S-96-167.
• Citation: 940 F.Supp. 879
• Parties: Cardinal William H. KEELER, et al., Plaintiffs, v. MAYOR & CITY COUNCIL OF CUMBERLAND, et al., Defendants.
• Court: U.S. District Court — District of Maryland

Page 879

940 F.Supp. 879

Cardinal William H. KEELER, et al., Plaintiffs, v. MAYOR & CITY COUNCIL OF CUMBERLAND, et al., Defendants.

Civil Action No. S-96-167.

United States District Court, D. Maryland.

October 15, 1996.

Peter E. Keith, Thomas N. Biddison, Jr., and David W. Kinkopf, Gallagher, Evelius & Jones, Baltimore, MD, for plaintiffs.

H. Jack Price, Jr., Cumberland, MD, for Mayor & City Council.

Joyce Kestenbaum, U.S. Department of Justice, Civil Division, Federal Programs, Washington, DC, for Historic Preservation.

Lynn A. Battaglia, U.S. Attorney and Kaye A. Allison, Assistant U.S. Attorney, Baltimore, MD, for Intervenor, the U.S.

MEMORANDUM OPINION

SMALKIN, District Judge.

This action is before the Court on the plaintiffs' motion for summary judgment on Counts II, III, VI, VII and IX of their amended complaint. The defendants have opposed the motion. The issues having been fully briefed, no oral hearing is necessary. Local Rule 105.6 (D.Md.).

Factual and Procedural Background

The plaintiffs in this action, Cardinal William H. Keeler, Roman Catholic Archbishop of Baltimore, and Sts. Peter and Paul's Roman Catholic Congregation, Inc. (collectively "the Church"), sue the City of Cumberland for permission to demolish a monastery and a chapel which the plaintiffs deem to be "a draining financial liability." (Cmplt., ¶ 1.) The Church seeks to replace the old monastery and chapel, both of which are in disrepair, with smaller, modern facilities, and to add gardens and a parking lot. Because the church buildings are part of Cumberland's Washington Street Historic District, however, the Church cannot demolish them without first securing a Certificate of Appropriateness from the Cumberland Historic Preservation Commission. The Church applied to the Commission for such a certificate but its application was denied. This litigation followed.

In a ten-count complaint filed on January 18, 1996, the Church alleged that the City's refusal to issue the Certificate of Appropriateness violated its rights under the First, Fifth and Fourteenth Amendments to the United States Constitution and under corresponding provisions of the Maryland Declaration of Rights. In Count I of the complaint, the Church also alleged a cause of action arising under the Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb (RFRA). The City moved to dismiss the complaint in its entirety. On June 10, 1996, this Court granted the City's motion with respect to Count I because RFRA, which forms the basis of the Church's cause of action in that Count, violates the constitutional principle of separation of powers. Keeler v. Mayor & City Council of Cumberland, 928 F.Supp. 591 (D.Md.1996). The Court denied the City's motion with respect to the remaining counts.¹

The Church now seeks summary judgment on the following counts of the complaint: Counts II and III, which allege violations of Free Exercise Rights protected by the Constitution of the United States and by the Maryland Declaration of Rights; Counts VI and VII, which allege that the City took the Church's property without just compensation, in violation of the state and federal constitutions; and Count IX, which alleges that the Historic Preservation Committee's actions violated state statutory law. In addition to the entry of summary judgment on these counts, the Church seeks an order directing the City to issue a Certificate of Appropriateness for the demolition of the monastery, a declaratory judgment, money damages, its attorney's fees, and other proper relief.

Summary Judgment Standards

Summary judgment may be entered in a civil case if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits ... show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). This Court must consider the facts and draw its inferences in the light most favorable to the party opposing the motion. See Tuck v. Henkel Corp., 973 F.2d 371, 374 (4th Cir.1992), cert. denied, 507 U.S. 918, 113 S.Ct. 1276, 122 L.Ed.2d 671 (1993). In the present case, almost all of the material facts are uncontroverted. Indeed, the "List of Facts in Dispute" submitted by the City contains only four items, none of which, for reasons that follow, constitutes a material factual dispute for summary judgment purposes. Consequently, the material issues for decision are issues of law, and the case is an appropriate one for summary disposition.

Count IX — Violations of the Enabling Statute

The Church contends that Cumberland's historic zoning ordinances violate Maryland law because they grant to the City of Cumberland authority which exceeds that contemplated by the enabling statute, Md.Ann. Code art. 66B, §§ 8.01 et seq.² Because "[a] fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them," Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 (1988), and because a decision favorable to the Church on the statutory issue would render consideration of the constitutional claims unnecessary, this Court must first address the Church's arguments under Count IX.

According to the Church, "the very part of the [Cumberland] Ordinance relied on by Defendants to reject Plaintiffs' application was different than [sic]³ and contrary to the relevant state enabling statute." (Church's Reply at 17.) The Church refers to section 7.c. of Ordinance No. 2970, which addresses those situations in which, because a building is deemed to be of particular historical importance, the Historic Preservation Commission is authorized to negotiate with the owners to formulate an economically feasible use for the property. See Ordinance No. 2970, § 7.b. Section 7.c. provides, in part, as follows:

In the event that the commission and the owner are unable to reach either an economically feasible plan for preservation or any other means of preserving the building, and unless in these circumstances the commission is satisfied that the proposed ... alteration ... will not materially impair the historic value of the structure, the commission shall reject the application. Applying § 7.c. in the present case, the Commission denied the Church's application for permission to demolish the Monastery after the Commission had "concluded that the structures at issue are of unusual importance and no economically feasible plan can be formulated for their preservation." (Parties' Stipulation and Agreement, Exh. 8 to City's Opp.)

The Church argues that the enabling statute, Md.Ann.Code art. 66B, §§ 8.01 et seq, does not authorize the City to adopt the rejection procedure set forth in § 7.c. of Ordinance No. 2970. Specifically, the Church argues that Article 66B, § 8.09 of the Maryland Code, which pertains to buildings deemed to be of unusual importance, precludes the City from rejecting applications for demolition where there is no economically feasible plan to preserve the property. The statute provides, in pertinent part, as follows:

(a) If an application is submitted for reconstruction or alterations affecting the exterior appearance of a structure ... the preservation of which the commission deems of unusual importance ..., the commission shall attempt with the owner of the structure to formulate an economically feasible plan for the preservation of the structure. Unless in these circumstances the commission is satisfied that the proposed [alteration] will not materially impair the historic value of the structure, the commission shall reject the application....

(b) If an application is submitted for reconstruction, alteration, or for moving or demolition of a structure that the commission deems of unusual importance and no economically feasible plan can be formulated, the commission shall have ninety days ... to negotiate with the owner and other parties in an effort to find a means of preserving the building.

Md.Ann.Code art. 66B, § 8.09. According to the Church, § 8.09 treats buildings for which there is no economically feasible means of preservation quite differently from buildings which can feasibly be preserved. The Church argues that the statute must be read to grant local commissions the authority to reject applications only if there is an economically feasible way to preserve the property. According to the Church, § 8.09 requires local commissions to grant such applications if there is no economically feasible preservation plan. See Church's Reply at 16-20. The enabling statute, however, does not so provide, whether expressly or by necessary implication.

In subsection (a), § 8.09 provides that the city and property owners should attempt to formulate an economically feasible plan for the preservation of particularly important structures. The subsection further provides that, "under these circumstances," applications to modify important historic structures must be denied unless the commission is satisfied that the historic value of the structure will not be "materially impaired" by the proposed changes. § 8.09(a). In subsection (b), the statute authorizes local governments to provide an additional ninety days of negotiations between the owner and the city in those cases in which no economically feasible plan can be formulated.

Contrary to the Church's contentions, the statute simply does not provide that applications must be granted at the end of the ninety-day period if no plan is formulated. Neither is such a gloss on the statute "the only reasonable interpretation of the law," as the Church suggests. (Church's Reply at 19.) In sharp contrast to the General Assembly's explicit command that applications to make alterations must be denied if an economically feasible means of preserving the building can be found, the legislature is silent with regard to a...