EASTERN OUTDOOR ADVERTISING CO. v. Mayor and City Council of Baltimore

• Citation: 807 A.2d 49,146 Md. App. 283
• Decision Date: 06 September 2002
• Docket Number: No. 755,755
• Parties: EASTERN OUTDOOR ADVERTISING COMPANY, v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
• Court: Court of Special Appeals of Maryland

807 A.2d 49

146 Md. App. 283

EASTERN OUTDOOR ADVERTISING COMPANY, v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 755, September Term, 2001.

Court of Special Appeals of Maryland.

September 6, 2002.

Jonathan A. Azrael (Azrael, Gann & Franz, LLP, on the brief), Baltimore, for appellant.

Sandra R. Gutman, Chief Solicitor (Frank C. Derr, Deputy City Solicitor, on the brief, for Mayor and City Council of Baltimore), Baltimore, Michael A. Pretl, Severna Park, for Ruth Wolf Rehfeld, appellees.

Argued before DAVIS, HOLLANDER, and BARBERA JJ.

HOLLANDER, Judge.

This zoning matter is before us for the second time. The appeal concerns an application submitted by Eastern Outdoor Advertising Company ("Eastern"), appellant and cross-appellee, for a conditional use permit to erect a double-faced, illuminated general advertising billboard in the Mt. Vernon area of Baltimore City, a designated urban renewal district. Ruth Wolf Rehfeld, appellee and cross-appellant, a resident of Mt. Vernon and a member of the Mt. Vernon Belvedere Association, was permitted to intervene at the agency level to protest the erection of the billboard. Following a hearing on December 5, 2000, the Baltimore City Board of Municipal and Zoning Appeals ("BMZA" or the "Board"), appellee and cross-appellant, denied appellant's application for the second time.

Thereafter, appellant sought judicial review in the Circuit Court for Baltimore City. That court (Cannon, J.) reversed and remanded. Although the court was satisfied that the Board was entitled to hear new evidence following an earlier remand, it concluded that the Board's decision was not supported by adequate factual findings. Accordingly, the circuit court again remanded to the Board.

From that ruling, Eastern noted this appeal, presenting the following issue for our review:

In view of the Mandate of the Court of Special Appeals and the Order of Remand by the Circuit Court of Baltimore City, directing further consideration of the record, did the Board err in accepting, considering and basing its disapproval on additional testimony and evidence?

Appellees have submitted separate briefs, in which they present similar questions. In addition to asking a question akin to the one posed by appellant, they ask, in essence:

Did the circuit court err in remanding the matter to the Board for a second time, when the Board's findings of fact were sufficient to warrant denial of the application for conditional use?

For the reasons that follow, we shall affirm.

FACTUAL SUMMARY

In late 1996, Eastern filed an application with the Board to obtain approval to erect a double-faced illuminated, general advertising sign, 14 feet by 48 feet, with a height of 90 feet, at 808 Guilford Avenue, located in the Mt. Vernon Urban Renewal Area, a B-5-1 zoning district. The site is improved by a mini-shopping center and a parking lot. The proposed billboard was to be located in the parking lot of the strip center, in space leased by Eastern. The lot fronts on the west side of Guilford Avenue, which runs parallel to a highway known as the Jones Falls Expressway or I-83. One side of the proposed advertising sign would face the Jones Falls Expressway, and be visible to traffic proceeding on the highway, while the other side would face the expanse of the Mt. Vernon neighborhood.

General advertising signs or billboards are permitted as conditional uses in a B-5-1 District, upon compliance with certain criteria set forth in the Baltimore City Zoning Code, and subject to approval by the Board. See Baltimore City Zoning Code 2000 (the "Ordinance"). After the Board held a hearing on Eastern's application on November 18, 1997, it rejected Eastern's application on the grounds that: 1) the billboard failed to meet the conditional use standards set forth in the Zoning Code; 2) the sign was prohibited by the Mt. Vernon Urban Renewal Plan (the "Plan"), and therefore it would have had a greater adverse impact at the proposed location than it would have if placed elsewhere in the B-5 zoning district; 3)the total square footage of the billboard, which measured 1,344 square feet, exceeded the allowed maximum of 900 square feet.

By Order dated July 27, 1998, the circuit court (Quarles, J.) affirmed. Appellant then lodged an appeal to this Court. In a comprehensive opinion authored by Judge Harrell, we reversed and remanded. See Eastern Outdoor Advertising Company v. Mayor and City Council of Baltimore, 128 Md.App. 494, 739 A.2d 854 (1999)

("EasternI"), cert. denied, 358 Md. 163, 747 A.2d 644 (2000). In Eastern I, we reiterated that "a proposed conditional use is prima facie valid absent any fact or circumstance negating that presumption." Eastern I, 128 Md.App. at 525,

739 A.2d 854. The Court also noted that an urban renewal plan "is merely a guiding factor, not a dispositive factor, to consider in deciding whether to grant a conditional use permit," but was not binding on the BMZA. Id. at 524, 739 A.2d 854 (citing Richmarr Holly Hills, Inc. v. American PCS, L.P., 117 Md.App. 607, 640, 701 A.2d 879 (1997)). Thus, we ruled that the Board incorrectly determined that the restrictions in the Plan, which prohibited billboards in that area, amended the provisions of the Ordinance, which otherwise allowed billboards as a conditional use in the zoning district. Id. at 519, 739 A.2d 854. The Court found no "mandate" in the Plan that prohibited the Board from granting a conditional use permit. Id. at 524, 739 A.2d 854.

Further, the Court determined that the Board's factual findings were insufficient with respect to the matter of adverse impact. Id. at 517, 739 A.2d 854. In the Court's view, the absence of adequate factual findings denied Eastern "its fundamental right to know the reasons for the denial of the conditional use permit." Id. at 516, 739 A.2d 854. Mere conclusions, "`without pointing to the facts ... that form the basis for its ... conclusion,'" were not enough. Id. at 530 (citations omitted). In addition, the Court concluded that the circuit court improperly affirmed the Board on grounds other than the ones relied on by the Board. Therefore, the Court remanded to the Board "for further consideration of the record not inconsistent with [the Court's] opinion." Id. at 532, 739 A.2d 854.

Frank Legambi, Executive Director of the Board, subsequently wrote a letter to Eastern on February 1, 2001, stating, in part:

[T]he Court's ruling merely requires that the Board consider the record and make appropriate findings. It does not require that another hearing be held.

While the City's Petition for Certiorari was pending, it filed a motion in circuit court to stay our remand to the Board. In that motion, the City said:

Pursuant to this Court's Order and the Judgment of the Court of Special Appeals, the Board must now consider the record and set forth findings of fact based on that record.

Nevertheless, the Board subsequently scheduled a hearing for November 14, 2000, at which it planned to receive additional evidence. Through counsel, appellant responded:

This is a new record which the Board is now attempting to make. It is improper under the law and we would object to any testimony. We would object to anything other than what you've been directed to do from the Court of Special Appeals.

When the Board convened a second hearing, appellant objected to the Board's decision to reopen the record. Eastern claimed that the new factual findings should be made on the basis of the original record. Nevertheless, the Board determined to receive additional evidence, which included letters and testimony from City officials and community associations protesting Eastern's application.

The evidence adduced at the first hearing is summarized in Eastern I and need not be repeated here at length. In reaching its decision, the Board also considered the additional evidence adduced at the second hearing, which we will summarize below.

Susan Williams, Chief of Current Planning for the Baltimore City Planning Department, testified that the proposed billboard would have a negative impact in the area. In addition to presenting slides and photographs, Williams said:

First of all, the urban renewal amendment for the Mount Vernon urban renewal plan as last amended by the Mayor and City Council in 1993, does not list general advertising signs as a permitted use. The urban renewal plans, just like our zoning code, if the use is not listed, it is not allowed.

Secondly, we'd like to outline that this shopping center is a very unique case in a B-5.1 district. It is highly unusual to have a shopping center with parking in front of the stores in B-5.1, and the Planning Department staff cannot think of any other case in the B-5.1 district other than a service station or an automobile related facility that has this particular type of design with the parking essentially in the front of the building.

For the record we'd also like to note in the B-5.1 district that most of the general advertising signs are affixed to the side of buildings and they are not freestanding signs that rise way above the buildings, and that is case is [sic] a majority of downtown.

We also think it's important for this Board to note that this particular shopping center was created as a quaint village-style shopping area. It is primarily one-story with only one section being two-story, and I have photos of the center that ... show its unique characteristic for a downtown or urban area.

Ms. Williams also expressed concern as to the precise location of the billboard, but acknowledged that there were "problems" with all locations. Further, she said that the "lights from this particular sign ... would be on all night," disturbing a residential courtyard in the vicinity.

The Board also received a letter of October 26, 2000, from Kathleen Kotarba, Executive Director of the Baltimore City Commission for Historical and Architectural Preservation ("CHAP"). Characterizing the Washington...