Zone of Contention
Couple's Fight Against Remington Apartment Building Raises Questions About Whether Zoning Board Knows What It's Doing
"I think we might as well go forward," says David Tanner, executive director of the Baltimore City Board of Municipal and Zoning Appeals at its Sept. 25 meeting. "I may stumble around a little bit."
And with that Tanner, a Baltimore zoning official for nearly three decades and the city's acknowledged expert on the zoning code, launches into a halting, groping summary of a case that his board has already ruled on--improperly, according to several judges--at least four separate times.
At issue is the third and final building permit for the Cresmont Loft Apartments, a seven-story, 26-unit private student apartment building towering over the 2800 block of Cresmont Avenue, behind the PaperMoon Diner in Remington. In November 2005, Baltimore Circuit Court Judge Joseph H.H. Kaplan ordered the zoning board to deliberate the permit properly and render a new decision, including "findings of fact and conclusions of law" that were not included in its previous decision--and seldom are in any decisions by this board.
But the board does not obey Judge Kaplan's directive. Instead, for more than 20 minutes the five-member mayor-appointed board haltingly discusses issues of parking, screening of "some sort of big box" attached to the apartment building, and the "closing of an alley of long public use." Some of the members mumble at times, and some sigh. Tanner gets up, then sits back down heavily during the discussion, which operates in slow motion, like a young person taking out the trash after a long bit of parental nagging.
Sitting in the front row during this meeting are Joan Floyd and Doug Armstrong, neighbors of Cresmont Loft, who for more than five years have challenged construction on that site by every legal means. The pair claim the building should never have been built--and that now it should be torn down--because it was erected under a series of illegal permits. "From the beginning, this thing has been put on a track--nothing is to derail this project," Armstrong says. "We still haven't been able to figure out why."
Armstrong and Floyd, sometimes with a group of other neighbors, have filed at least three lawsuits and various appeals to stop Cresmont Loft, but at the bottom of this tangled legal mess is a broader question: Do Baltimore zoning officials have to follow the law, or can they just rule however they want?
Armstrong and Floyd insist that the city's system is arbitrary, that powerful developers skirt the law because the zoning board is incompetent and beholden to the mayor, who favors development.
Tanner sees it differently. As full-time administrator of the board since 2001, and a city official since 1971, he aims to expedite its burgeoning caseload in a fair, practical way. A recent meeting broke up after 9 p.m., more than eight hours after it was convened. "In the past year we've come up with the consent docket," Tanner says. "That's helped a great deal."
The consent docket allows the board to approve, without discussion, dozens of projects that neighbors don't protest. The problem with that, Floyd and other critics say, is that the convenient process lets the board overlook violations of the zoning code.
"They don't know what they're doing," says Stephen Strohl, president of the Canton Community Association. "They just take the word of the person standing in front of them--they assume silence [from the neighbors] is acceptance."
J. Carroll Holzer, the lawyer who argued several of Floyd and Armstrong's cases in court, says he's represented citizens groups before zoning boards across the state, and every county he's been in is more thorough than Baltimore City. In Baltimore County "we cross examine," Holzer says, adding that a single appeal there might take more than a day. "We come down to the [zoning board] and there's no comparison. We're lucky to get 15 minutes. It's like a meat shop down there, with people running through."
Alfred Barry III, a former city planning official who now works for developers, agrees that the difference is stark. "Baltimore City, and their zoning practice, frankly evolved well before the state superimposed guidelines on all jurisdictions--charter jurisdictions," Barry says. "So in some cases the [zoning board] procedures, to an observer, would be seen as more casual than those in, say, Baltimore County."
But that's often a good thing, Barry says, because those counties' more formal process requires lawyers, time, and money--something community groups seldom have.
The Cresmont case was unusual from the beginning. Cresmont Properties LLC (a joint venture of Orchard Development Corp. and Marenberg Enterprises Inc.) optioned the land about a block from Johns Hopkins University's Homewood campus in 2001 and proposed zoning changes along with a four-story apartment building. As a consultant to the developer, Barry handled negotiations with the neighbors. He says the original, smaller building was a fair deal all around, especially because the existing zoning allowed for a building more than twice as tall. "Zoning for that property was very liberal," he says.
The neighbors rejected the zoning change, so the developer proposed the larger structure.
Neighbors opposed this proposal vehemently, saying it was too big and far out of character with the residential neighborhood. But zoning officials said the building was perfectly legal under the city's existing code and issued permits.
Barry suggests that Floyd and Armstrong, who were involved in the protest, hurt their own cause by trying to stop the project at all costs.
"We could have changed [plans] at a number of points during the process, but we really had no one to negotiate with," Barry says. "Floyd and [Armstrong] excluded anybody related to the development of the property [from their neighborhood group's meetings], so we just went ahead.
"That started a series of appeals, some of which were substantive, but most were procedural."
As Struever Bros. Eccles and Rouse workers swarmed the site in late summer of 2003, the neighbors challenged the project under the city's parking regulations. An old ordinance required permission from the City Council for parking lots; Cresmont didn't have that. In the fall of 2003, when a judge ordered the zoning board to rescind the first building permit because of the parking problem, the board refused to do so while the developer appealed. Construction continued for an additional month, and the judge, Albert Matricciani Jr., wrote a testy decision saying that, while the appeal barred him from holding the city officials in contempt of court, "the continuing construction . . . is proceeding upon a legally unstable foundation."
Armstrong and Floyd cite that language as evidence that the building may eventually have to be demolished.
Barry concedes the point, but only "in the abstract." "As a practical matter," he says, "they were not so much saying that the building was bad, but [that] `you've got to follow the procedures.'"
The battle became a war of procedures, each side trying to trip the other with technicalities.
After a meeting between city officials and developers on the last day of 2003, the city issued a second building permit. Armstrong and Floyd appealed again, asking the city's zoning administrator to stop work on the project, citing state law and the city charter, which require a "stay" of "all proceedings" while appeals are pending.
The city refused. The couple sued again and overturned the second permit.
They also asked the judge to rule that city officials violated the law by not stopping construction, and they eventually won that case as well--although it is unclear whether their legal victory will change the way Baltimore's zoning board does business.
On Aug. 25, 2006, the Maryland Court of Special Appeals filed a two-to-one decision saying that Baltimore officials must stop work on any project after receiving a "negative appeal." If the law had been followed in the Cresmont case, there would be no seven-story apartment building there today.
Rulings by the Court of Special Appeals are mostly "unreported," meaning that they are not often used to set precedent--by its own rules, the court is to report only cases of "substantial interest." In the court documents, the judges repeatedly note the fact that this case did have substantial public interest, writing, for instance, that it "is worthy of our consideration because of its public importance and the issue is one that could [otherwise] evade judicial review." But the decision was not reported and published by the court--thus, it cannot be used in future cases.
Armstrong and Floyd, with lawyers, are trying to convince the court to report its decision, which would force Baltimore City officials to follow the law. "It's a situation that is capable of being repeated--again and again," says Holzer.
David Fishman, a lawyer with Gordon, Feinblatt, Rothman, Hoffberger, and Hollander, has sent a letter to the court urging it to leave the ruling unreported. He argues that, because it was a split decision, and because the developer did not argue the case on his own behalf, it should be laid to rest. Fishman says that the court decision, if made precedent, would turn the Baltimore City permitting process upside down. If work must stop because of the protest of a neighbor, "it means the permit is presumed no good, which is really the opposite of the way things normally work," he says. "It's never been the way things work."
Tanner agrees with Fishman, and says it's "self-evident" that following the law would be bad. But, he says, "even though we may not agree with the court's ruling in that case, we're going to have to follow it."
The case involving Cresmont's final building permit itself appears to be another story.
On April 26, 2004, the city issued its third permit for Cresmont Loft. Floyd and Armstrong appealed again to the zoning board. Construction continued on the building.
Tanner waited more than six months--until Nov. 23, 2004--to hear the appeal. Cresmont Loft was by then completed and marketing apartments to Hopkins students for $675 per month, per bedroom. Tanner issued his written ruling upholding the permit in February 2005. Floyd and Armstrong went back to court, complaining that Tanner's decision--reached in secret--contained no facts or legal conclusions.
The judge ordered the zoning board to deliberate in public. On March 7 the board did that, and Tanner issued another written ruling on the permit in late June, but Armstrong threatened to go back to court again, and so the board rescinded its decision and agreed to re-deliberate.
"What's at issue is a citizen's right to challenge," says Armstrong, "to have a say in what happens in their neighborhood."
The zoning board's deliberation of its long-ago permit for the big building that's been completed for more than a year comes in late September 2006, after its regular meeting. As is custom, the board goes "off the record" to decide the day's cases and deliberates informally, only going back "on the record" to address the matter of Cresmont Loft.
After 20 minutes of hemming and hawing, the board votes unanimously--with Chairwoman LaTina Burse Greene having recused herself--to reaffirm its decision. Later, Tanner will tell a reporter that, despite Judge Kaplan's order, no findings of facts or law are needed.
"It is not a request for variance and conditional use that requires the board to make proper findings," he says. "The only thing at issue is the zoning administrator's decision."
But Tanner doesn't say that at the meeting. He just announces that the board is "upholding the decision of the zoning administrator."
"Oops, oops, oops!" says Floyd as she turns to leave the high-ceilinged room on the second floor of City Hall. The appeal back to court, she says, "has already been briefed."
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