Armstrong v. Baltimore
| Decision Date | 01 September 2006 |
| Docket Number | No. 1704, September Term, 2004.,1704, September Term, 2004. |
| Citation | 169 Md. App. 655,906 A.2d 415 |
| Parties | Douglas M. ARMSTRONG et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE. |
| Court | Court of Special Appeals of Maryland |
J. Carroll Holzer, Towson, for Appellants.
Sandra R. Gutman (Ralph S. Taylor, City Sol., on the brief), Baltimore, for Appellee.
Panel: JAMES R. KENNEY, LAWRENCE F. RODOWSKY (Ret., specially assigned), JJ.
We are asked to determine the meaning of "zoning action," as used in Maryland Code (1957, 2003 Repl.Vol.), Article 66B, § 2.09(a)(1), which provides for judicial review of "zoning action" by the City Council of Baltimore. We will use this as an opportunity to clarify our prior decision, interpreting the same language, in MBC Realty v. Mayor and City Council of Baltimore, 160 Md.App. 376, 864 A.2d 218 (2004).
Douglas M. Armstrong, an appellant, and several other owners of residential properties in Baltimore City,1 filed in the Circuit Court for Baltimore City a petition for judicial review of an ordinance (hereinafter Ordinance 04-659), enacted by the Mayor and City Council, appellee. The petition was filed pursuant to Maryland Code, Article 66B, section 2.09, and Title 7, chapter 200 of the Maryland Rules. Ordinance 04-659 granted permission for the establishment, maintenance, and operation of a parking lot to be used in connection with a proposed apartment building at 2807 Cresmont Avenue.
Appellants challenged Ordinance 04-659 on the grounds that (1) the City Council violated various provisions in the zoning code and in the subdivision regulations, and (2) Ordinance 04-659 constituted an unlawful taking of appellants' property. Appellee filed a motion to dismiss, asserting there was no statutory right of judicial review in circuit court. The circuit court granted the motion. Appellants filed a motion to alter or amend judgment, which the circuit court denied.
Appellants appealed to this Court. Appellee moved to dismiss the appeal, contending that there was no statutory right of judicial review, and as a result, we had no jurisdiction to consider the appeal. In a prior unreported opinion, we granted appellee's motion to dismiss the appeal, and appellants petitioned for certiorari to the Court of Appeals. The Court of Appeals reversed and remanded the case to us to determine whether the circuit court had jurisdiction to consider the petition for judicial review. See Armstrong v. Baltimore City, 390 Md. 469, 475, 889 A.2d 399 (2006). We conclude that there was a right of judicial review in the circuit court and, thus, shall reverse and remand the case to the circuit court for further proceedings.
On November 12, 2002, the Department of Housing and Community Development issued a permit to Cresmont Properties, LLC (Cresmont),2 the developer of a 26-unit apartment building at 2807 Cresmont Avenue, to construct the apartment building with 33 off-street parking spaces. Appellants appealed the issuance of this permit to the Board of Municipal and Zoning Appeals (the Board), contending that the project violated section 10-504(a)3 of the Baltimore City Zoning Code (the Zoning Code). Appellants based their argument on the fact that the property was in the Charles Village/Remington parking lot district,4 governed by Title 10, subtitle 5, and there was no parking lot ordinance authorizing the construction of the parking lot. The Board determined that because section 10-201 of the Zoning Code required "accessory"5 off-street parking for all newly-erected structures,6 Title 10, subtitle 5 did not apply, and a separate parking lot ordinance was not necessary.
Appellants filed a petition for judicial review in circuit court, alleging that the Board erred in approving the issuance of the permit without requiring the enactment of a separate parking lot ordinance. On November 4, 2003, the circuit court ruled in favor of appellants, basing its determination on the fact that the Zoning Code did not expressly except accessory uses from the requirements of section 10-504(a). Therefore, the circuit court ruled that a parking lot ordinance was required before a City agency could issue a permit and ordered that the construction permit be revoked.7
Appellee noted an appeal to this Court, but this Court dismissed the appeal on jurisdictional grounds. See Mayor and City Council of Baltimore v. Armstrong, No. 2096, Sept. Term 2003, 163 Md.App. 704, filed August 10, 2005.
Subsequently, Cresmont requested the City Council to approve a parking lot ordinance permitting 33 off-street parking spaces at the Cresmont Avenue property. Bill 03-1228, which provided for such accessory parking, was introduced in the City Council, and the Council approved it. On March 25, 2004, the Mayor signed the bill as Ordinance 04-659, effective 30 days later. Pursuant to the Ordinance, a new construction permit was issued to Cresmont. Ordinance 04-659 is the subject of this appeal.
On December 2, 2004, in order to conform the City Code to prior practice,8 the City Council approved Ordinance 04-855, amending the definition of "parking lot" in § 10-5019 of the Zoning Code to exclude accessory parking. As a result of the amendment, appellee asserts that it is no longer necessary, under section 10-504(a), that a parking lot ordinance be enacted to approve the construction of off-street accessory parking mandated by section 10-201.10
On April 19, 2004, appellants filed a petition for judicial review of Ordinance 04-659 in circuit court, asserting that Maryland Code, Article 66B, section 2.09(a)(1) provided a statutory right of appeal because approval of Ordinance 04-659 constituted "zoning action" within the meaning of that section. Appellee filed a motion to dismiss, arguing that the appeal was erroneously brought under section 2.09 and Title 7, Chapter 200 of the Maryland Rules; there was no statutory authority for bringing the appeal; and the circuit court lacked subject matter jurisdiction to decide the appeal. After a hearing on the motion, by order dated August 13, 2004, the circuit court dismissed the petition. By order dated August 18, 2004, the circuit court also denied appellants' subsequent motion to alter or amend judgment.
On August 13, 2004, appellants appealed to this Court, and appellee filed a motion to dismiss the appeal, asserting that we too lacked subject matter jurisdiction. By order dated March 14, 2005, we dismissed the appeal.
On June 16, 2005, the Court of Appeals granted appellants' petition for certiorari, and on January 6, 2006, reversed and remanded the case to us for further proceedings. The Court of Appeals noted that section 2.09(e) of Article 66B of the Maryland Code provides for a right of appeal to this Court from any decision of the circuit court. Armstrong, 390 Md. at 475, 889 A.2d 399. The Court further explained,
It does not matter whether the Circuit Court did or did not have jurisdiction to entertain the judicial review action, whether it was right or wrong in its ruling. That is what the appeal is to resolve. So long as the Circuit Court entered a final or otherwise appealable judgment, which it did, an appeal will lie.
In this Court, appellants contend that Ordinance 04-659 was a conditional use authorization by the City Council, which constituted a "zoning action" subject to judicial review. Appellants argue that the conditional use authorization was an administrative, as distinguished from a legislative, act and the administrative grant of a conditional use is a "zoning action."
In response, appellee contends that, because of the subsequent enactment of Ordinance 04-855, this case is moot and should be dismissed. Relying heavily on MBC Realty, LLC, supra, appellee also contends that Ordinance 04-659 was not a conditional use authorization, and even if it were, conditional use authorizations are not subject to judicial review under section 2.09.
We conclude that the case is not moot and § 2.09 did provide a right of judicial review.
Appellee argues that, because of the enactment of Ordinance 04-855, an ordinance approving a parking lot that is an accessory use is no longer required, and therefore, the issue of whether appellants are entitled to judicial review of Ordinance 04-659 is moot.
Appellee relies on Lake Falls Ass'n v. Bd. of Zoning Appeals of Baltimore County, 209 Md. 561, 121 A.2d 809 (1956), and Grau v. Bd. of Zoning Appeals of Baltimore County, 210 Md. 19, 122 A.2d 824 (1956). In both cases, the challenge was to a change in zoning classification with respect to a specific property. In both instances, the zoning classification under attack was again changed prior to a decision on appeal. In each case, the Court of Appeals concluded that the issue was moot.
In Lake Falls and Grau, mootness was apparent because the zoning classifications were under attack, not an action taken pursuant to the classification, and the classification was changed prior to a decision on appeal. By the time the case was heard, the properties in question were no longer subject to that classification. In the case before us, the question of whether a parking lot ordinance is required for the Cresmont property may well be moot, but the effect of Ordinance 04-855 on the building permit process is not before us, and the record is insufficient for us to make that determination. That determination may be made on remand. Additionally, appellants filed a separate action attacking the validity of Ordinance 04-855. The circuit court upheld its validity, and that case is now pending in this Court. See Armstrong v. Mayor and City Council of Baltimore, No. 2210, Sept. Term 2005.
Regardless of the above, the issue before us is a matter of public importance which we can address even if the issue is moot. See J.L. Matthews, Inc. v. Maryland-Nat'l Capital Park & Planning Comm'n, 368 Md. 71, 96-97, 792 A.2d 288 (2002). The...
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