EASTREN ADVERTISING COMPANY v. Baltimore

• Decision Date: 29 September 1999
• Docket Number: No. 1646,1646
• Citation: 128 Md. App. 494,739 A.2d 854
• Parties: EASTERN OUTDOOR ADVERTISING COMPANY v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al.
• Court: Court of Special Appeals of Maryland

739 A.2d 854

128 Md. App. 494

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

No. 1646, Sept. Term, 1998.

Court of Special Appeals of Maryland.

September 29, 1999.

Reconsideration Denied November 30, 1999.

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

Sandra R. Gutman, Assoc. Solicitor (Frank C. Derr, Deputy City Solicitor, on the brief), Baltimore, for appellees.

Argued before SALMON, EYLER and HARRELL¹, JJ.

HARRELL, Judge.

This appeal from a judgment of the Circuit Court for Baltimore City concerns the denial by the City of Baltimore's Board of Municipal and Zoning Appeals (the Board) of a conditional use application for a general advertising sign (billboard) within a designated urban renewal district. The applicant for the conditional use permit, Eastern Outdoor Advertising Company (Eastern), sought judicial review of the Board's decision in the circuit court. The Mayor and City Council noted its intention to participate in the proceedings.² The circuit court affirmed the Board's denial and Eastern noted this appeal.

ISSUES

Appellant frames three questions for our consideration, which we have rephrased slightly:

I. Did the circuit court apply an incorrect standard of review in reaching its affirmance of the decision of the Board?

II. Did the Board err as a matter of law in concluding that the proposed general advertising sign is not permitted, as a conditional use, within the Mt. Vernon Urban Renewal Area?

III. Was the evidence before the Board sufficient to render it fairly debatable that the square footage of the proposed double-sided sign exceeded the maximum 900 square feet allowed by the zoning ordinance?

For the reasons explained in this opinion, we reverse.

FACTS

On or about 24 October 1996, Eastern filed with the Board a combined permit application/appeal (No. 97-97X)³ seeking permission to erect a new double-faced, illuminated general advertising sign on property, described as 808 Guilford Avenue, owned by 828 Guilford LLC and to be leased by Eastern. Each face of the sign was to be fourteen feet high by forty-eight feet wide. The height of the proposed sign was to be ninety feet.

808 Guilford Avenue was zoned in the B-5-1 Business District. The property was improved with strip commercial buildings housing a laundromat, bail bondsman, two food carry-outs, and a video store. The proposed sign was to be located in the parking lot of the strip center. The sign was intended to be visible to traffic traveling on the adjacent Jones Fall Expressway (I-83).

The lot that contained the existing uses and structures, and was to be the site of the proposed sign, had frontage of approximately 320 feet on the west side of Guilford Avenue (which runs parallel and adjacent to the west side of I-83), covering the entire block between Read Street and Madison Street. The lot also had approximately 162 feet of frontage on Read Street along the lot's northerly boundary and 166 feet of frontage along its southerly boundary on Madison Street. Across I-83 from the subject property was the City Jail and Maryland Penitentiary.

General advertising signs are permitted as conditional uses in the B-5-1 District, provided approval is obtained from the Board and certain criteria are met. Baltimore City Code, Art. 30 (Zoning Ordinance), § 10.3.1(c). A specific criterion applicable to such signs proposed in the B-5-1 District (and which was pertinent to this case) was that the total area of the sign shall not exceed 900 square feet.⁴ Moreover, the Zoning Ordinance, at § 11.0-5(a), provides, in pertinent part, generally as to any conditional use approval:

11.0-5 Standards

a. Standards for Conditional Uses. No conditional use shall be authorized unless the Board finds in each specific case that the establishment, maintenance, or operation of the conditional use will not be detrimental to or endanger the public health, security, general welfare, or morals, and, as a further guide to their decision upon the facts of each case, they shall give consideration to the following, where appropriate:

1. the nature of the proposed site, including its size and shape and the proposed size, shape, and arrangement of structures;

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3. the nature of the surrounding area and the extent to which the proposed use might impair its present and future development;

4. the proximity of dwellings, churches, schools, public structures, and other places of public gathering;

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8. the preservation of cultural and historic landmarks;

9. any Urban Renewal Plan approved by the Mayor and City Council or the Master Plan approved by the Planning Commission;

10. all standards and requirements contained in this ordinance;

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12. any other matters considered to be in the interest of the general welfare.

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The subject property was located within the boundaries of the Mount Vernon Urban Renewal Area. This area, originally recognized in a Renewal Plan for Mount Vernon by the Mayor and City Council in 1964,⁵ included the subject property in the far northeastern corner of the area. Included as part of this Renewal Plan (the Plan) was a Land Use Map, referred to in the Plan text (§ C) as Exhibit No. 2. The text of the Plan, at § C(b), purported generally to describe, by reference to the Land Use Map, what "uses ... will be permitted within the project area [the described Mount Vernon area]." The subject property was depicted on the Land Use Map as "commercial." § C(b), "Permitted Uses," of the Plan text does not mention as such any conditional uses among the uses there addressed (and appearing on the Land Use Map).⁶ Likewise, signage as a principal use is not mentioned in the Plan's "Permitted Uses" section. The text of § C(2)(Land Use Plan) of the Plan text otherwise mentions signs as follows:

c. Regulations, Controls, and Restrictions on Land to be Acquired[⁷]

The following regulations, controls, and restrictions will be implemented where applicable by covenants or other provisions in agreements for land disposition and instruments of conveyance...

(a) General Provisions ...

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xi. Signs

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(b) No signs other than those identifying the structure upon which they are installed or identifying the uses conducted therein shall be permitted.

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d. Duration of Provisions and Requirements

The land use provisions and building requirements specified in Paragraphs C.2.a., C.2.b., and C.2.c. above shall be in effect for a period of not less than 40 years following the date of the approval of this Plan by the Mayor and City Council of Baltimore.

e. Applicability of Provisions and Requirements to Property Not to Be Acquired

The provisions of Paragraph C.2.b (Permitted Uses) above shall apply to all properties not to be acquired within the project area. The provisions of Section C.2.c. shall apply as appropriate to properties not currently proposed to be acquired by this Plan when the owners thereof acquire adjacent project land made available by the Department of Housing and Community Development under the provisions of this Plan.

f. Signs

Except as hereinafter provided, beginning at the time of the approval of this Plan by the Mayor and City Council of Baltimore, June 22, 1964, no minor privileges for new signs over the public right-of-way shall be issued within the project area. Except as herein provided no minor privileges for signs over the public right-of-way shall be renewed after three (3) years from the above-mentioned time, except that signs on existing marquees will be permitted to continue.

Minor privilege permits may be issued for signs which do not exceed or project more than twelve inches beyond the building wall proper or for signs existing on April 1, 1967, which are within the limits of show windows or cornices or which do not extend more than three inches from show windows or cornices into the public right-ofway. Minor privilege permits for signs designed solely to designate a public parking facility may be issued provided such signs do not extend more than five feet from the property line and are not more than four feet in height or width nor more than twelve inches thick. No minor privileges shall be issued for any sign which projects above the top of the vertical wall of the building or for any sign which is flashing, animated, or rotating in any manner.

The frontage along Howard Street from Monument to Madison Streets and the project area south of the north right-of-way line of Centre Street shall be excluded from the provisions of this Section.

Nothing in this Plan shall be construed to permit any sign otherwise prohibited by the laws, ordinances and regulations of the City of Baltimore.

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The Plan text gave special treatment for signs in a portion of the area called the Antique Row Commercial Area.⁸ Concerning "Exterior Rehabilitation Standards" for that area, the text provided in pertinent part as to signage:

D.2.c.4(g) No new general advertising signs (billboards and posterboards) shall be allowed within the Antique Row area. Existing general advertising signs shall be terminated within five years.

Finally, the Plan text provides, under § E ("Other Provisions Necessary To Meet State and Local Requirements"), as follows:

2. Zoning

All appropriate provisions of the Zoning Ordinance of Baltimore City shall apply to properties in the Mount Vernon Project Area as shown on the Zoning Districts Map, Exhibit No. 5. No zoning changes are proposed as part of this Plan.

3. Reasons for the Various Provisions of this Plan

a. Planning for Mount Vernon has sought to utilize its many existing diverse strengths. In this area of Baltimore, centering on Mount Vernon Place, a unique concentration of nationally known cultural institutions, fine houses, churches and monuments provides a nucleus around which an attractive and desirable residential neighborhood could grow. Consequently, the Plan emphasizes the retention of existing

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