Gardner v. City of Baltimore Mayor and City Council

• Decision Date: 06 July 1992
• Docket Number: No. 91-1817,91-1817
• Citation: 969 F.2d 63
• Parties: Rodney D. GARDNER, Individually and as Custodian for the children of Ruth M. Gardner, Deceased; RMG and Associates, Incorporated, by Rodney D. Gardner, President; Vance D. Israel; Denise Israel; Shirley Avin, Plaintiffs-Appellants, v. CITY OF BALTIMORE MAYOR AND CITY COUNCIL; Larry Reich, Individually and as Director of Planning; Alfred E. Barry, III, Individually and as Chief of Current Planning; Stanley S. Fine, Individually and in his former official capacity as a member of the Planning Commission of Baltimore City; George G. Balog, Individually and as Director; Benjamin L. Brown, Individually and as City Solicitor; Ambrose T. Hartman, Individually and as Deputy City Solicitor; W. Hayes Brown, III, Individually and as Assistant City Solicitor; Mark A. Faber, Individually and as Solicitor; Frank C. Derr, Individually and as Solicitor; Ortho M. Thompson, Individually and as Solicitor, Defendants-Appellees, and Planning Commission of Baltimore City; Department of Law, Defendants.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 63

969 F.2d 63

Rodney D. GARDNER, Individually and as Custodian for the children of Ruth M. Gardner, Deceased; RMG and Associates Incorporated, by Rodney D. Gardner, President; Vance D Israel; Denise Israel; Shirley Avin, Plaintiffs-Appellants, v. CITY OF BALTIMORE MAYOR AND CITY COUNCIL; Larry Reich Individually and as Director of Planning; Alfred E. Barry III, Individually and as Chief of Current Planning; Stanley S. Fine, Individually and in his former official capacity as a member of the Planning Commission of Baltimore City; George G. Balog, Individually and as Director; Benjamin L. Brown, Individually and as City Solicitor; Ambrose T. Hartman, Individually and as Deputy City Solicitor; W. Hayes Brown, III, Individually and as Assistant City Solicitor; Mark A. Faber, Individually and as Solicitor; Frank C. Derr, Individually and as Solicitor; Ortho M. Thompson, Individually and as Solicitor, Defendants-Appellees, and Planning Commission of Baltimore City; Department of Law, Defendants.

No. 91-1817.

United States Court of Appeals, Fourth Circuit.

Argued May 4, 1992.

Decided July 6, 1992.

Edward Lee Blanton, Jr., Blanton & McCleary, Towson, Md., argued, for plaintiffs-appellants.

Cyril Vincent Smith, Zuckerman, Spaeder, Goldstein, Taylor & Better, Baltimore, Md., argued (Herbert Better, on brief), for defendants-appellees.

Before WILKINSON, Circuit Judge, CHAPMAN, Senior Circuit Judge, and WILLIAMS, Senior District Judge for the Western District of Virginia, sitting by designation.

OPINION

WILKINSON, Circuit Judge:

This case involves another local land-use dispute that has landed in federal court through 42 U.S.C. § 1983. The issue presented by this litigation is strikingly familiar: appellants claim that they were denied substantive due process by the failure of various Baltimore city officials to approve proposals for residential development of particular property. We reject this claim. Because Baltimore's land-use regulations granted discretion to city officials with regard to approval of the proposed development, appellants possessed no property interest protected by the Fourteenth Amendment. We therefore affirm the summary judgment for appellees.

I.

A.

As this case involves a challenge to the implementation of subdivision regulations governing development in the city of Baltimore, we shall briefly describe that regulatory process. Authority over subdivision regulation in Baltimore rests with the Planning Commission, see Charter of Baltimore City art. VII, § 78 (1964 revision), which is composed of nine members including the mayor and the director of public works, see id. § 65. The Commission has promulgated detailed regulations governing the development process. See Planning Comm'n, City of Baltimore, Rules and Regulations for Land Subdivision (1978) [hereinafter Subdivision Regulations].

Under the regulations, a developer must first submit a preapplication sketch plan and attend an informational pre-application conference with staff of the Planning Commission and the Site Plan Review Committee. See id. § 2.0-1. Based on these discussions, the developer then prepares a "preliminary plan," which is drawn to scale and indicates virtually all details of the proposed development. See id. § 2.0-2c. If satisfactory, the Commission tentatively approves the preliminary plan. See id. § 2.0-2b2.

After approval of the preliminary plan, the developer must submit two final plans, a "final subdivision plan" and a "final development plan." The final subdivision plan shows, inter alia, the relationship of the proposed subdivision to neighborhood facilities, the boundary lines of the property, all dimensions, and all lands to be dedicated to the city. See id. § 2.0-4a. The final development plan shows, inter alia, streets, lanes, alleys, rights-of-way, easements, sewers, dwelling units, building elevations, and lands to be dedicated to the city. See id. § 2.0-5a. Various city agencies review the final plans, see id. § 2.0-3b, and the Commission's approval, if forthcoming, is binding, see id. § 2.0-3a3. The Commission will not approve the final plans, however, unless all dedications of land to the city are deemed acceptable to the Commission. See id. § 2.0-6. Finally, once the final plans are approved by the Commission, the developer must receive the Board of Estimates' approval of a "public works agreement" for all streets and public utilities in the subdivision, which must be constructed by the developer. See id. § 3.0-3. Upon approval of the utility and street installations, the city then accepts the rights of-way and public works facilities for public ownership. See id. § 3.0-3.

B.

The facts relevant to this appeal are not in dispute. In 1958, the Ludgate Building Corp. owned property known as "Fairway Hills, Section III," which is located in northwest Baltimore. Desiring to develop the property, Ludgate submitted to the city a "final subdivision plat" for its approval and recordation. The plat indicated that the subdivision would contain a horseshoe-shaped street, which both began and ended at Northcliff Drive. The city approved the subdivision plan in 1958 "as to [the] street and subdivision plan only as noted and subject to the requirements of the Department of Public Works and the Planning Commission," and the plat was recorded in the city's land records. After approval, Ludgate completed twelve of the twenty-two lots on the property, all on the northern side of the street known as Sareva Drive. The southern side, Ivydene Terrace, remained undeveloped and unsold until 1979, when appellant Rodney Gardner obtained an option to purchase the remaining ten lots for $50,000. He exercised that option and took title to the property in 1984 in the name of his assignee, appellant RMG and Associates, Inc.

Gardner sought to develop the Ivydene Terrace portion of the subdivision and, from 1979 to 1985, sought approval from the Planning Commission for various proposals regarding that development. Between 1979 and mid-1982, Gardner sought to alter the 1958 subdivision plan by ending Ivydene Terrace short of Northcliff Drive in a cul-de-sac. He devised the cul-de-sac plan because the steep slope of the property where Ivydene Terrace would intersect Northcliff Drive meant that extension of the road in accordance with the 1958 plan would be expensive. The cul-de-sac proposal ran into trouble almost immediately. The Department of Public Works (DPW) informed Gardner both in April 1980 and in May 1981 that, if he intended to deviate from the 1958 plan, he was required to submit new final plans for city review. The Commission also notified Gardner that property owners on Sareva Drive would have to consent to the cul-de-sac plan because they purchased their lots in reliance on the 1958 plan and therefore had a vested interest in the development of Ivydene Terrace in accordance with that plan. Gardner never submitted revised final subdivision or final development plans, but in June 1981 nevertheless demanded that DPW issue a public works agreement for the cul-de-sac plan. However, in September 1981 the city's Department of Law indicated to DPW that the size of the proposed cul-de-sac violated the subdivision regulations. Finally, the Sareva Drive residents not only did not consent to Gardner's cul-de-sac plan, but they also formed a committee to oppose any development of Ivydene Terrace.

Facing local opposition and the necessity of seeking approval of revised final plans, Gardner abandoned his cul-de-sac proposal in June 1982 and submitted a preliminary development plan that, consistent with the 1958 plan, extended Ivydene Terrace to Northcliff Drive. In response to this latest proposal, DPW requested a pre-approval determination as to whether the Ivydene Terrace road was publicly or privately owned. Although Gardner insisted that the road was owned by the city, city officials concluded that it was privately owned because the offer of dedication in 1958 was never accepted by the city. Moreover, in March 1983, the Department of Law, responding to an inquiry from the Commission, opined that the 1958 plan--upon which Gardner's then-current plans were based--was no longer valid because construction on the Ivydene Terrace portion of the subdivision had not begun within twenty-four months of the approval of the final plans. See Subdivision Regulations, supra, § 2.0-3a4. Thus, the Commission determined that Gardner was required to obtain approval of a new final development plan before he could be issued a public works agreement.

Gardner submitted such a plan in June 1983. In March 1984, however, the Planning Commission suggested an alternative: that the development of Ivydene Terrace consist of fewer lots (eight instead of ten) and that the street terminate in a cul-de-sac that was smaller than that Gardner had previously proposed. Although Gardner strongly resisted this suggestion--at one point he demanded that the mayor remove two members of the Commission for misconduct--he eventually relented and in March 1985 submitted a new final development plan that was consistent with the Commission's suggestion. That plan was approved with minor conditions, including the submission of a title report on the roadbed, in April 1985.

Objecting to the Planning Commission's imminent approval of development on Ivydene Terrace, several Sareva Drive residents in February 1985 filed a state action in the circuit court for Baltimore City seeking a declaration that Gardner's development plans were illegal. In October 1985, the circuit court held that the Commission had acted lawfully in its April 1985 approval of Gardner's latest final development plan, and it indicated that he could commence development provided that he "secure any permits required by law." Weinberger v. Gardner, No. 85-036-039/CE30445, slip op. at 2 (Baltimore City Cir. Ct. Oct. 16, 1985). The Commission still required Gardner to submit a title report on the...