MCB Woodberry Developer, LLC v. Council of Owners of the Millrace Condo., Inc.

• Decision Date: 16 December 2021
• Docket Number: No. 1187, Sept. Term, 2020,1187, Sept. Term, 2020
• Citation: 265 A.3d 1140,253 Md.App. 279
• Parties: MCB WOODBERRY DEVELOPER, LLC v. The COUNCIL OF OWNERS OF the MILLRACE CONDOMINIUM, INC.
• Court: Court of Special Appeals of Maryland

253 Md.App. 279

265 A.3d 1140

MCB WOODBERRY DEVELOPER, LLC

v.The COUNCIL OF OWNERS OF the MILLRACE CONDOMINIUM, INC.

No. 1187, Sept. Term, 2020

Court of Special Appeals of Maryland.

December 16, 2021

Argued by: Richard M. Goldberg (David B. Applefeld, Anastasia L. McCusker (Shapiro Sher Guinot & Sandler, Baltimore, MD), all on the brief, for Appellant.

Argued by: Louis C. Long, Pittsburg, PA (Michael H. Burgoyne, Thomas, Thomas & Hefer LLP, Owings Mills, MD) Thomas J. Minton (Kathleen T. Minton, Goldman & Minton, PC, Baltimore, MD), all on the briefs, for Appellee.

Panel: Shaw Geter, Zic, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.^*

Harrell, J.

A near-mass extinction event, involving a large impact with the Earth by an asteroid, occurred some 65 million years ago (the Cretaceous-Paleogene extinction event). The effects of the impact resulted in the loss of three-quarters of all animal and plant life on our planet at the time.

The figurative litigation "asteroid" at the heart of the present case requires us to interpret and apply Maryland's Strategic Lawsuits Against Public Participation statute (sometimes referred to as the "Anti-SLAPP" statute), Md. Code, Cts. & Jud. Proc. ("CJP"), § 5-807. In sum, the Anti-SLAPP statute aims to remedy the fall-out from the unwarranted maintenance of litigation launched to deter, punish or intimidate efforts at critical public comment and participation in governmental proceedings involving the suit-bringer's interests. Thus, metaphorically, the wrongfully-brought litigation, within the scope of the statute, is akin to a "killer asteroid" intended to make extinct the complaints and complainants opposing the plaintiff's initiatives that require governmental approval.

VS Clipper Mill, LLC ("VS"), a real property development business in Baltimore City was the developer of a project known as the Clipper Mill Planned Unit Development ("the PUD").¹ VS sought approval from the Baltimore City Planning Commission ("the Planning Commission") for proposed changes to the previously approved PUD plan in order to allow it to construct additional townhomes on land committed previously to surface vehicular parking and to redevelop an existing building for office and retail use. Residents from two existing residential communities within the PUD opposed those efforts, individually and through their homeowners' associations. VS responded by filing the instant lawsuit in the Circuit Court for Baltimore City against the Council of Unit Owners of the Millrace Condominium, Inc. ("Millrace Council") and three of its board members,² and The Homes at Clipper Mill Homeowners' Association, Inc. ("Clipper Mill HOA") and two of its board members³ (collectively "the HOA parties"), alleging that their opposition to the proposed changes to the PUD plan contravened the Clipper Mill Community Declaration and interfered tortiously with VS's business and economic relations, entitling VS to compensatory damages, $25 million in punitive damages, and declaratory relief.

The HOA parties moved to dismiss the lawsuit, arguing that they were immune civilly for their protected communications with government bodies under the Anti-SLAPP statute. Following a hearing, the circuit court granted the HOA parties' motions to dismiss, ruling that the lawsuit was a prohibited SLAPP suit. VS appeals, asking solely:

I. Did the circuit court err by dismissing with prejudice VS's complaint under the Anti-SLAPP statute?

"No" is our answer to that question and, accordingly, we shall affirm the judgment of the circuit court.

FACTS AND PROCEEDINGS

In 2003, the Baltimore City Council approved the PUD,⁴ authorizing the redevelopment of a 17.3 acre abandoned industrial site along the Jones Falls for a mixed-use community comprising residential, retail, and office space. The Millrace, a residential condominium, and The Homes at Clipper Mill, a residential community of townhomes and duplex dwelling units, were developed in the early stages of the PUD. The Millrace Condominium Declaration, recorded among the Land Records of Baltimore City ("Land Records") on 18 November 2005, created the Millrace Council, which governs the affairs of the Millrace. The Homes at Clipper Mill Declaration of Covenants, Conditions and Restrictions, recorded in the Land Records on the same date, created the Clipper Mill HOA, which governs the affairs of The Homes at Clipper Mill.

Five years after those declarations were recorded, the Clipper Mill Community Declaration ("Community Declaration") was recorded in the Land Records. It incorporated joinder agreements executed by the Millrace Council and the Clipper Mill HOA, agreeing that any "right, title, and interest" in real property within the Clipper Mill development would be held subject to the declaration and subordinating the earlier declarations to the Community Declaration. The Community Declaration established easements, covenants, and community assessments, and defined the common areas of the development.

Section 4 of the Community Declaration created the Clipper Mill Association, a nonstock corporation, to levy, collect, and apply community assessments, maintain common areas, improvements, and facilities, and administer and enforce covenants and easements. Voting rights within that association were allocated to the residential communities and to the developer, based upon the percentage of ownership. Consequently, VS, which owned most of the real property within the PUD, controlled 71% of the votes at the time this litigation was commenced.

Subsection 4.9 of the Community Declaration provides:

Litigation. Anything in this Community Declaration or the other Clipper Mill Documents to the contrary notwithstanding, neither Clipper Mill Association nor any Person acting or purporting to act on its behalf shall (a) file any (i) civil, criminal or administrative proceeding in or with any court or administrative body or officer, or (ii) appeal of or objection to any decision or other action made or taken by any court, administrative body or officer, in any judicial or administrative proceeding, or (b) testify or submit evidence (unless required by Applicable Law, subpoena or formal order of the court, administrative body or officer), or otherwise take a formal position on any issue under consideration, in any such proceeding or appeal, in all cases until the action is approved in writing by, or by the Votes of Voters holding at least 75 percent of the Total Qualified Votes held by all Voting Members. Nothing in this subsection shall apply to a civil or administrative proceeding which Clipper Mill Association files to collect a Community Assessment or Assessment Installment, or enforce or foreclose an Assessment Lien or Clipper Mill Association's rights or another Person's obligations under the Clipper Mill Documents, due to a Default or otherwise as more fully set forth in this Community Declaration.

Section 5 of the Community Declaration governs "Property Rights" and provides, at subsection 5.3.2, which falls under a subsection governing "Control of Community Common Areas[,]":

Interference with development. Clipper Mill Association shall not, in its management and control of a Community Common Area or otherwise, take any action which prohibits, impairs, delays, or makes more expensive Developer's (a) subdivision or development of any of Clipper Mill or other real property in accordance with a preliminary subdivision plan, site development plan or other plan approved by the City, or (b) performance of its obligations under any public works or other agreement with an Authority, the Subdivision or Zoning Laws, other Applicable Law or otherwise, arising in connection with that subdivision or development.

In 2017, VS purchased the PUD. It "began the process of applying for a minor amendment ... to the PUD" to allow it to construct thirty townhomes "on a vacant lot located within the development" ("the Townhome Project"). VS proposed also a so-called "minor amendment" to the PUD to allow it to convert the existing "Tractor Building" to a mixed-use project to include 98 residences, 19,000 square feet of office space, 106 parking spaces on two levels, and a separate 75-space parking garage ("the Tractor Building Project") (collectively "the Projects"). Under Baltimore's zoning ordinance, codified at Article 32 of the Baltimore City Code (hereinafter "BCZO"),⁵ a "Minor Change" to a PUD may be approved by the Planning Commission, but a "Major Change"⁶ "requires introduction and enactment of an ordinance [by the City Council] to approve an amendment to the [PUD] and PUD master plan." BCZO §§ 13-402-13-403.

The HOA parties organized to oppose the Projects, taking the position that the proposed changes amounted to major changes to the PUD that required approval by the Baltimore City Council, not just the Planning Commission. They opposed the Projects at meetings of the Planning Commission on 14 November 2019 and 18 June 2020, respectively, submitting letters, testifying, and making a presentation on behalf of the two HOAs. After the Planning Commission voted unanimously to approve the minor amendment relative to the Townhouse Project, the HOA parties filed a petition for administrative mandamus in the circuit court. See In re The Petition of the Council of Unit Owners of the Millrace Condominium, et al. , No. 24-C-19-006602.

On 25 June 2020, the circuit court held a hearing on the petition for administrative mandamus, declined to reach the merits, and issued a limited remand to the Planning Commission for it to make findings of fact and conclusions of law in support of its decision.⁷

Four days later, on 29 June 2020, VS filed the lawsuit that commenced the present case, asserting claims for breach of contract, tortious interference with economic relations, civil conspiracy to interfere tortiously, and for declaratory relief. It alleged that the HOA parties were "legally precluded from taking any action to obstruct or delay"...