Chesapeake Outdoor Enterprises, Inc. v. Mayor and City Council of Baltimore

• Decision Date: 01 September 1990
• Docket Number: No. 1721,1721
• Citation: 597 A.2d 503,89 Md.App. 54
• Parties: CHESAPEAKE OUTDOOR ENTERPRISES, INC., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE. ,
• Court: Court of Special Appeals of Maryland

Page 54

89 Md.App. 54

597 A.2d 503

CHESAPEAKE OUTDOOR ENTERPRISES, INC., et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 1721, Sept. Term, 1990.

Court of Special Appeals of Maryland.

Oct. 30, 1991.

Walter E. Diercks (Eric M. Rubin, Steven J. Stone, Rubin, Winston, Diercks & Harris, Washington, D.C., Emanuel Horn and Horn & Bennett, P.A., Baltimore, on the brief), for appellants.

Sandra R. Gutman (Neal M. Janey, City Sol., Ambrose T. Hartman, Deputy City Sol., on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., and ROSALYN B. BELL and HARRELL, JJ.

HARRELL, Judge.

Appellants, Chesapeake Outdoor Enterprises, Inc. and Boisclair Advertising, Inc. (hereinafter collectively referred to as "Boisclair"), appeal from decisions of the Circuit Court for Baltimore City (Kaplan, J.) dismissing several of their claims against appellee, the Mayor and City Council of Baltimore City (hereinafter "the City"), and then disposing of the rest by summary judgment.

Facts

This case centers in large part on the provisions of Baltimore, Md., Code art. 30 (1990) (hereinafter "the Zoning Ordinance"), which contains the City's zoning regulations. More specifically, it centers on provisions of the Zoning Ordinance pertaining to general advertising signs. General advertising signs are essentially billboards or outdoor advertising signs that advertise something sold, offered, or conducted elsewhere than on the premises upon which the sign is located. See Zoning Ordinance § 13.0-2.79. ¹ Boisclair owns a large number of such signs throughout Baltimore City, ² having purchased them from other outdoor advertising companies in July 1987 and April 1989. The Zoning Ordinance prohibits such signs in residential, office-residential, B-1 and M-1 zoning districts. Id. §§ 10.0-2, 10.0-3. It allows such signs in B-2, B-3, B-4, B-5, M-2 and M-3 zoning districts as conditional uses, that is, subject to the issuance of a conditional use permit by the City Board of Municipal and Zoning Appeals. Id. § 10.0-3c.

Due to several of the issues raised by Boisclair in its appeal, the history of the City's regulation of general advertising signs is also pertinent here. Prior to the City's initial adoption of a zoning ordinance in 1923, building permits had been required for some time for all construction within Baltimore City. See Baltimore, Md., Code, Ordinance 155 (1908). The City's prohibition of general advertising-type signs in residential zoning districts dates at least as far back as 1925. Id., Ordinance 1247 (1925). ³ With respect to such signs in office-residential zoning districts, the prohibition dates back no later than to 1950, and with respect to such signs in B-1 and M-1 districts, to 1971. Id., Ordinance 711 (1953); Ordinance 1051 (1971). In 1950, the City adopted an amortization provision ⁴ directing removal of all nonconforming signs ⁵ in residential and office-residential zoning districts within five years. Id., Ordinance 1101 (1950). In 1971, this provision was recodified and its effect extended to B-1 and M-1 zoning districts of Baltimore City. Id., Ordinance 1051 (1971). Thus, facially, even nonconforming general advertising signs have not been permitted in residential zoning districts since 1955, or in office-residential, B-1 or M-1 zoning districts since 1976.

In September 1989, the City issued to Boisclair several notices informing Boisclair that many of its signs were in violation of the Zoning Ordinance and ordering it to correct the following violations:

1. Numerous General Advertising Signs erected and maintained in various locations in Residence Districts and B-1 Business Districts and M-1 Industrial Districts throughout Baltimore City. REMOVE WITHIN 10 DAYS[;]

2. Numerous General Advertising signs erected and maintained without permits in B-2; B-3; B-4; & B-5 Business Districts and M-2 and M-3 Industrial Districts throughout Baltimore City. REMOVE WITHIN 10 DAYS. OBTAIN PERMITS BEFORE REINSTALLING.

After receiving these notices, Boisclair initiated negotiations with the City's Mayor, the Honorable Kurt L. Schmoke, regarding the fate of its signs. The negotiations ultimately resulted in a written "memorandum of understandings" (hereinafter "Memorandum") being executed by Mayor Schmoke and James A. Eatrides, President of Boisclair, on 24 November 1989. Among other things, the Memorandum provided for immediate removal of alcohol and tobacco advertising copy from Boisclair's signs that were located in close proximity to school and church buildings in Baltimore City, gradual withdrawal of some 400 of Boisclair's signs from residential zoning districts, reduction of the percentage of its advertising copy devoted to alcohol and tobacco products, and the establishment of a task force to study and formulate recommendations for amendments to the Zoning Ordinance to provide for a "coherent and efficient" means of regulating general advertising-type signs. The Memorandum also provided that both parties would refrain from bringing actions against one another so long as both continued to abide by its provisions.

In early 1990, City Council members apparently expressed their dissatisfaction with this state of affairs and with their noninvolvement in the negotiations that led to the execution of the Memorandum. Shortly thereafter, in spite of Boisclair's compliance with the terms of the Memorandum, the City notified Boisclair that it intended to repudiate the agreement. On 8 May 1990, the City initiated a suit against Boisclair in the Circuit Court for Baltimore City, seeking an injunction requiring the removal of the offending signs. Four days later, Boisclair filed a suit against the City, alleging: (1) breach of contract due to the repudiation of the Memorandum (count I); (2) tortious interference with its contracts with third parties (count II); (3) violation of its constitutional due process rights (count IV); ⁶ (4) violation of its constitutional right not to be deprived of its property without just compensation (count V); and (5), violation of its right to just compensation for the deprivation of its property under Md.Code Ann. art. 25, § 122E (1990) (count VI). The cases were consolidated on 30 August 1990.

On 6 September 1990, the City's motion to dismiss Boisclair's complaint was granted by the circuit court as to Counts I, IV and VI. The City subsequently filed a motion for summary judgment on the remaining counts. The circuit court granted this motion at a hearing on 24 October 1990 and immediately ordered the removal of the offending signs. ⁷

We will elaborate on the facts of this case as necessary in our discussion of the individual issues presented.

Boisclair now presents the following issues for our consideration:

I. Whether the circuit court erred in dismissing Count I of Boisclair's complaint on the ground that the Memorandum was not enforceable because it was not endorsed by the City Solicitor;

II. Whether the circuit court erred in dismissing Count VI of Boisclair's complaint on the ground that Md.Code Ann. art. 25, § 122E does not apply to the City;

III. Whether the circuit court erred in granting summary judgment for the City on Count V of Boisclair's complaint on the ground that there was no genuine dispute as to the fact that none of Boisclair's signs were legally erected or maintained; and IV. Whether the circuit court's Order violates Md.Rule BB78 (1991)?

I.

Count I of Boisclair's complaint alleged that the City's repudiation of the Memorandum constituted a breach of contract. The circuit court dismissed this claim on the basis of Baltimore City Charter art. VII, § 27 (1990), which provides as follows:

All deeds, bonds, contracts, releases, and other legal instruments involving the interests of the City or to be executed and approved by the Mayor or other officer of the City before they are executed or accepted, shall be submitted to the City Solicitor and have endorsed upon them his opinion as to their sufficiency and their compliance in terms and conditions with the laws or ordinances under which they are executed.

The circuit court concluded that under this provision the Memorandum was invalid, as it did not contain the endorsement of the City Solicitor. Boisclair contends that the Memorandum is valid without the endorsement of the City Solicitor. We are inclined to disagree with Boisclair. ⁸ We need not consider Boisclair's arguments on this issue, however, since there is a more fundamental problem with Boisclair's breach of contract claim, and since we are not confined to the reasons given by the circuit court in affirming its decision. See Md.Rule 8-131(b); Neville v. State, 290 Md. 364, 430 A.2d 570 (1981).

It is well established that "if a public corporation enters into a contract that barters away or otherwise restricts the exercise of its legislative or police powers, then the contract is ultra vires and void ab initio." Dept. of Public Serv. v. Mass. Mun. Elec., 151 Vt. 73, 558 A.2d 215, 220 (1988). See also Attman v. Mayor of Annapolis, 314 Md. 675, 685, 552 A.2d 1277 (1989) ("a municipality may not contract away the exercise of its zoning powers"). An agreement that purports to contract away the City's ability to enforce its own laws clearly violates this rule.

Contrary to Boisclair's suggestion, the agreement in the case sub judice is distinguishable from the settlement agreements typically used in code violation cases. In the latter there is typically a genuine dispute as to whether the code sought to be applied is applicable to the specific facts involved, and this dispute is recited in the agreement as the basis for compromising the dispute. Here, there is no apparent genuine dispute as to the application of the Zoning Ordinance to Boisclair's signs. Thus, the Memorandum is void, and Boisclair's breach of contract claim must fail.

II.

Boisclair's next argument is that the circuit court erred in granting the City's motion to dismiss Count VI of Boisclair's...