Overpak v. Baltimore

• Decision Date: 16 October 2006
• Docket Number: No. 76, September Term, 2005.,76, September Term, 2005.
• Citation: 395 Md. 16,909 A.2d 235
• Parties: MARYLAND OVERPAK CORPORATION v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

909 A.2d 235

395 Md. 16

MARYLAND OVERPAK CORPORATION v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 76, September Term, 2005.

Court of Appeals of Maryland.

October 16, 2006.

COPYRIGHT MATERIAL OMITTED

John C. Murphy, Baltimore, MD, for appellant.

Sandra R. Gutman, Chief Sol. (Ralph S. Tyler, III, City Sol., and Adam Levine, Asst. City Sol., Baltimore City Dept. of Law, Baltimore, MD); Herbert Better (P. Andrew Torrez of Zuckerman Spaeder, L.L.P., Baltimore, MD), all on same brief, for appellee.

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE (retired, specially assigned), JJ.

HARRELL, Judge.

This case requires us to explore once again what constitutes a "zoning action," as that term is used in Md.Code (1951, 2003 Repl.Vol., 2005 Suppl.), Art. 66B, § 2.09(a)(1)(ii),¹ taken by the Mayor and City Council of Baltimore. A "zoning action" is subject to judicial review by the Circuit Court for Baltimore City and, if further review is sought in timely fashion, by the Court of Special Appeals of Maryland.² Judicial review proceeds as directed by Title 7, Chapter 200 of the Maryland Rules.³ If the action taken in the present case is determined not to be a "zoning action," we alternatively are asked to consider whether other modalities of legal process are available for judicial scrutiny of the action taken in this case.

Engaging in this inquiry, we do not write on an entirely clean appellate slate. See, e.g., Armstrong v. Baltimore City, 390 Md. 469, 889 A.2d 399 (2006) (Armstrong II) (holding that the Court of Special Appeals possessed jurisdiction to consider an appeal from the Circuit Court's dismissal of a petition for judicial review, filed under Art. 66B, § 2.09, complaining about an ordinance permitting an accessory parking lot in Baltimore); Wesley Chapel Bluemount Ass'n v. Baltimore County, 347 Md. 125, 699 A.2d 434 (1997) (reviewing the holding of Stephans II, infra, in determining the scope of "any other zoning matter" under Md.Code (1974, 1995 Repl.Vol.), State Gov't Art. § 10-503(b)); Bd. of County Comm'rs of Carroll County v. Stephans, 286 Md. 384, 408 A.2d 1017 (1979) (Stephans II) (holding that the legislative history of § 2.09 contemplates that a "zoning action" means "zoning reclassification" and not legislative-type actions), rev'g, 41 Md.App. 494, 397 A.2d 289 (Stephans I); Armstrong v. Mayor & City Council of Baltimore, 169 Md.App. 655, 906 A.2d 415 (2006) (Armstrong III) (2006) (holding that a parking lot ordinance qualified as a conditional use or its equivalent such that its issuance was a quasi-judicial act subject to judicial review under § 2.09 and disapproving contrary language in MBC Realty, infra); Cremins v. County Comm'rs of Washington County, 164 Md.App. 426, 883 A.2d 966 (2005) (holding that a planned unit development granted in Washington County under its zoning regulations amounts to a "zoning reclassification" for purposes of judicial review under Art. 66B, § 4.08, the companion section to § 2.09 for non-charter counties); MBC Realty, LLC v. Mayor & City Council of Baltimore, 160 Md.App. 376, 864 A.2d 218 (2004) (holding that local ordinance permitting specific conditional uses and making text amendments to zoning ordinance were not "zoning actions" under § 2.09); Gregory v. Bd. of County Comm'rs of Frederick County, 89 Md.App. 635, 599 A.2d 469 (1991) (holding that a piecemeal zoning action is appealable under § 4.08, but adoption of an amendment to county's comprehensive water and sewage plan was not a "zoning action"). These decisions are instructive in that they delineate general analytical contours for determining whether a governmental action concerning a type of land use decision amounts to a "zoning action" and thus is eligible for judicial review in accordance with Title 7, Chapter 200 of the Maryland Rules. These precedents, however, leave some portion of tabula rasa open on the narrow question presented by this case, given the somewhat unique character of zoning processes in Baltimore City and the particular facts of the controversy before us. We must decide here whether an amendment of a previously approved planned unit development ("PUD")⁴ granted to Canton Crossing, LLC, by the Mayor and City Council, via City Ordinance 04-873, amounted to a "zoning action" under Md.Code, Art. 66B, § 2.09(a)(1)(ii), thus bestowing upon the Circuit Court for Baltimore City jurisdiction to consider on their merits neighboring landowners' petitions for judicial review of that amendment approval.

I.

The operative facts in this case are largely undisputed. On 21 June 2001, the City Council passed, and the Mayor signed into law, Ordinance 01-192 granting Appellee, Canton Crossing, LLC, inter alia, an industrial PUD and approving a development plan for a 67 and one-half acre⁵ parcel of land in the Canton area of Baltimore City. The property previously was placed solely within a Euclidian⁶ — 3 Industrial District, which is "designed for industrial, manufacturing, and related activities generally known and described as `heavy industry.'" Baltimore, Md., Zoning Code § 7-401. A PUD was necessary to accommodate the various residential and commercial uses, not permitted ordinarily in the M-3 zone, proposed in Canton Crossing's development plan.⁷

The PUD, thereafter, was amended by City ordinances on three subsequent occasions as a result of changes in the development plan initiated by Canton Crossing. The first amendment occurred on 1 July 2002, via Ordinance 02-369, permitting Canton Crossing to "increase parking and square footage use on each parcel [designated for development within the 67 acres encompassed by the development plan], to increase the size of the proposed hotel, and to change the location of certain proposed structures." The second amendment, approved on 22 December 2003 by Ordinance 03-641, allowed an "increase [in] the number of hotel rooms permitted, to change the location of certain proposed structures, and to modify the uses permitted and off-street parking requirements." The last amendment, the one at issue in this case, approved by Ordinance 04-873 on 2 December 2004, authorized an "increase [in] the number of residential dwelling units permitted and [a] modif[ication] [of] the uses and buildings permitted and their locations and size."⁸

It was upon the approval of this last amendment that Appellant here, Maryland Overpak Corporation, filed on 28 December 2004 in the Circuit Court for Baltimore City its petition for judicial review. The petition alleged that Maryland Overpak was aggrieved by the PUD amendment approval because it interfered with Appellant's leasehold interest in and use of Danville Avenue as a staging area for its operations.⁹ Within two weeks of Maryland Overpak filing its petition, two other landowners adjoining the PUD, South Highland Avenue LLC and Canton Railroad Company, joined Appellant in praying for judicial review of Ordinance 04-873. Neither of these latter entities, however, are parties to the present appeal.

Maryland Overpak and the other abutting land owners believed that the City's action in approving the amendment to the PUD encroached on their interest in the roadway. Specifically, Maryland Overpak and South Highland Avenue LLC each pled in their one paragraph petitions that they maintain a leasehold interest in Danville Avenue as well as in property abutting the PUD which would be adversely affected by the approved PUD. Canton Railroad Company, for its part, averred in its petition that it "owns and operates" Danville Avenue and that the ordinance constituted a violation of the Railroad's procedural and substantive due process rights, as well as interstate commerce clause principles.

The City Council filed a Motion to Dismiss Appeal and Request for Hearing, which was joined by Canton Crossing, LLC. Both argued that judicial review of the latest amendment to the PUD, under Art. 66B, § 2.09, was not proper and that the Circuit Court lacked jurisdiction over the case. After a hearing on the motion, the Circuit Court dismissed the petitions on 16 March 2005. The motions judge relied on MBC Realty in reasoning that the PUD granted to Canton Crossing did not qualify as a "zoning action" under Art. 66B, § 2.09(a)(1)(ii) because it did not amount to a reclassification of the zoning district of the subject property. Maryland Overpak filed a timely appeal in the Court of Special Appeals. We, acting on our initiative, issued a writ of certiorari before the intermediate appellate court could consider the matter. 389 Md. 398, 885 A.2d 823 (2005).

II.

Baltimore City is governed by a unique procedure and body of law in many respects regarding its zoning procedures. The potential for uniqueness is facilitated not merely because of the statutory grant under Art. 66B, Boitnott v. Mayor & City Council of Baltimore, 356 Md. 226, 238-39, 738 A.2d 881, 888 (1999) ("[A]rt. 66B, § 2.01(a) provides the general authority for the Mayor and City Council of Baltimore to adopt zoning regulations as necessary . . . ."), but also because of the general principle that zoning is an exercise of governmental authority that generally falls squarely within the province of the political subdivisions of the State. Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.App. 479, 494, 822 A.2d 478, 506 (2003) (citing Art. 23A, § 2(b)(36)(ii)) ("It is fundamental that zoning concerns the regulation of land use; and it is the policy of this State that such regulation will occur at the local level."); see also Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514, 542, 814 A.2d 469, 486 (2002).¹⁰

Each jurisdiction in the State owes its zoning authority to delegations found in various provisions of the Maryland Code. We observed in Rylyns that

[t]racing the entire panoply of related enabling statutes in Maryland is a tad complex. The provisions empowering municipal corporations in Maryland are contained in ...