Attman/Glazer P.B. Co. v. Mayor and Aldermen of Annapolis

• Citation: 552 A.2d 1277,314 Md. 675
• Decision Date: 01 September 1986
• Docket Number: No. 115,115
• Parties: ATTMAN/GLAZER P.B. COMPANY v. MAYOR AND ALDERMEN OF ANNAPOLIS. ,
• Court: Maryland Court of Appeals

Page 675

314 Md. 675

552 A.2d 1277

ATTMAN/GLAZER P.B. COMPANY v. MAYOR AND ALDERMEN OF ANNAPOLIS.

No. 115, Sept. Term, 1986.

Court of Appeals of Maryland.

Feb. 8, 1989.

Motion for Reconsideration Denied March 28, 1989.

Steven R. Migdal (Manis, Wilkinson, Snider & Goldsborough, Chartered, on the brief) Annapolis, for appellant.

Gary M. Elson, Asst. City Atty. (Jonathan A. Hodgson, City Atty., on the brief), Annapolis, for appellee.

Argued before MURPHY, C.J., ELDRIDGE, COLE, RODOWSKY, COUCH ^* and McAULIFFE, JJ., CHARLES E. ORTH, Jr., Associate Judge of the Court of Appeals (retired, Specially Assigned).

McAULIFFE, Judge.

We are here concerned with the extent to which a municipality may "settle" the appeal of a zoning or similar land use case. We conclude that although a municipality may enter into a binding agreement concerning certain aspects of a land use case on appeal, it may not contract away the exercise of its zoning power.

The property in question is bounded by Northwest, Calvert, and Clay Streets in the City of Annapolis, and is currently improved by a four-story office building. The property has had a rather difficult development history, involving the urban renewal efforts of the city, litigation between the city and the developer, and a cloudy zoning classification picture. The property consists of two parcels, 7D and 17, which were acquired and assembled by the city as a part of an urban renewal project. When originally placed in the city's Urban Renewal Plan, ¹ parcel 7D was designated for neighborhood commercial and business use, and parcel 17 for residential use. Attman/Glazer P.B. Company (hereinafter "AG") successfully bid for the right to develop the land, and in 1977 filed an application for a change in the Urban Renewal Plan. Proposing construction of a commercial office building, AG asked that the two parcels be designated for commercial use and that approval be given for construction.

AG's 1977 application is not in this record. We infer from the records which are before us that AG originally sought two things: a change in the classification of the property in the Urban Renewal Plan, and approval of a conditional use. Precisely what effect a change in classification in the Urban Renewal Plan was intended to have on the underlying zoning classification of the property is not clear. It does not appear that the various use designations approved in the Urban Renewal Plan ever found their way onto the city's zoning map by means of a comprehensive (or other) map amendment. Rather, it appears that at the time, all parties considered the changes made in the Urban Renewal Plan to be fully effective for purposes of development, without the necessity of corresponding changes to the zoning map, and apparently without the necessity of resubdividing the property before construction.

We note that the procedures followed in the amendment of the Urban Renewal Plan were virtually the same as those prescribed for a zoning map amendment. These procedures involved consideration and recommendation by the Annapolis Planning and Zoning Commission, notice to the public, and a public hearing before the ultimate zoning authority, the mayor and aldermen sitting as the city council. ² For purposes of this case, we need not decide the current zoning classification of this property, or the effect of any inconsistency that may currently exist between the requirements of the city's urban renewal code and its zoning code. ³ Nor need we decide whether the conditional use mechanism was properly or necessarily utilized in this case. ⁴ The parties proceeded on the assumption that reclassification of the property in the Urban Renewal Plan was sufficient in lieu of formal rezoning, and that conditional use approval was required. Indulging those same assumptions in this case allows us to reach the question of a municipality's right to "settle" a zoning appeal, and we therefore proceed on that basis.

AG's initial request was granted, and by Resolution 58-77 the mayor and aldermen amended the Urban Renewal Plan to change the designation of Parcels 7D and 17 to commercial use. The resolution also permitted the erection of a professional office building, on the condition that the owner of the building provide 252 parking spaces. Those spaces could be located on-site, or on other property within 500 feet of the building. By Resolution 66-77, a conditional use for the proposed office building was approved. That conditional use authorization expired when AG was unable to undertake construction within a prescribed time. A new application for conditional use was filed, and by Resolution 1-81 the mayor and aldermen granted a new conditional use, requiring 18 on-site parking spaces and 238 additional parking spaces within 600 feet of the property. The resolution further provided that in lieu of providing some or all of the 238 additional spaces, the owner could make available to the building's tenants or their employees a comparable number of passes for use on the city's shuttle bus system.

Construction of the building commenced, albeit only after AG obtained a writ of mandamus from the Circuit Court for Anne Arundel County directing the city to issue a building permit. ⁵ Shortly thereafter, AG sought an amendment to the conditional use to permit active use of a portion of a basement which had theretofore been approved only for housing of mechanical equipment. The mayor and aldermen approved the active use of 15,480 square feet of the basement, on condition that AG provide 51 new off-street parking spaces and comply with the parking requirements set forth in Resolution 1-81. One week later, the mayor and aldermen filed a modified resolution, declaring that the new conditions and those remaining from Resolution 1-81 were interdependent and, if any condition of either resolution were declared invalid or modified by any court, the entire conditional use would stand rescinded. AG appealed, contending that the requirement of creating new parking spaces was arbitrary, capricious, and impossible to fulfill, and challenging the attempt of the modified resolution to insulate the actions of the mayor and aldermen from judicial review. ⁶

The mayor and aldermen, in their capacity as the municipal corporation, were granted leave to intervene, and filed a demurrer and answer. From a memorandum of law filed by AG, we learn that it did not argue that the requirement of providing 51 additional parking spaces was arbitrary. Indeed, such an argument would likely have been futile, because the requirement followed § 22-122(21) of the city zoning code, which required one off-street parking space for each 300 square feet of gross floor area of business and professional office buildings. Rather, AG argued that the requirement of providing 51 new spaces within 500 feet of the building was unreasonable and virtually impossible to perform, due to the lack of land in that area which might be purchased and converted to off-street parking. AG argued that it had produced testimony demonstrating the reasonableness and feasibility of developing 51 additional but existing off-street parking spaces. It pointed out that its tenant, the Department of Economic and Community Development, a state agency, required the additional active space in the basement, and that the State could probably be persuaded to release 51 of the 300 spaces it controlled in the county-owned parking garage directly across the street from AG's building. AG claimed the evidence also showed that the average occupancy of the parking garage was 80 percent of capacity, and therefore the allocation of 51 spaces for its building would not adversely impact the public parking in the area. In response, the city pointed to testimony that demonstrated a critical need for off-street parking in the immediate area of AG's building. The city argued that the reasonableness of imposing the condition of 51 new spaces was at least fairly debatable.

Shortly before the appeal was to be heard in the circuit court, AG and the city reached an agreement that was designed to avoid further court proceedings. The parties cannot now agree concerning the precise terms of that agreement. Both parties concur that they agreed to seek a continuance of the court hearing, and that they agreed AG would file a new application for a conditional use. They also agree that they discussed the feasibility of substituting the following conditions for the requirement of 51 new spaces:

1. AG would procure a release from the State of 25 spaces of the State's 300 space allocation in the county parking garage across the street from the building.

2. AG would pay $75,000 to the city, to be credited to the off-street parking capital improvement budget as a contribution toward eventual parking improvements in the area.

AG contends that the city flatly agreed to approve the application on those conditions, and that the requirement for the filing of a new application was intended to be a mere matter of form. AG finds some succor for this argument in the language employed by the mayor in his memorandum to the aldermen proposing the settlement:

I recommend immediate acceptance of this offer. If accepted, developer will expeditiously apply for a formal amendment of its conditional use to reflect the settlement. In addition, the trial would be postponed until the conditional use is approved at which time developer would dismiss the case, paying the costs.

The city, on the other hand, contends that it agreed only to a postponement of the circuit court hearing to allow AG to attempt to secure an amended conditional use upon the conditions discussed by the parties. It says the mayor and aldermen, acting solely in their capacity as the municipal corporation, thereby signified that they felt the proposed conditions were fair and would likely be approved, but that the mayor and aldermen did not, and in fact could not, enter into a binding...