BALT. ST. PARKING v. Mayor & City Council of Baltimore

EYLER, JAMES R., J. This Court has before it two consolidated matters — a petition for judicial review and a declaratory judgment action. On March 11, 2008, the Baltimore City Commission for Historical and Architectural Preservation (CHAP), appellee in both matters, held a hearing to consider whether the structure known as the Pennsylvania Railroad Building, located at 200 East Baltimore Street (“the structure”), should be placed on the Landmark List and/or the Special List of structures having historical or architectural significance. The structure is owned by Baltimore Street Parking Company, LLC, 1 appellant. At the March 11, 2008 hearing, CHAP voted to place the structure on the Special List and the Landmark List.

Appellant filed a petition for judicial review of CHAP’s determination in the Circuit Court for Baltimore City. Subsequently, appellant withdrew its request for review of the Landmark List determination on the ground that such review was premature. Appellant continued to seek review of the Special List determination, and on February 20, 2009, the circuit court affirmed CHAP’s decision to place the structure on the Special List. Appellant appealed to this Court.

On September 18, 2008, appellant filed a complaint for declaratory judgment in the Circuit Court for Baltimore City in which it named CHAP and the Mayor and City Council of Baltimore (“the City”), appellees, 2 as parties. On May 18, 2009, the court dismissed appellant’s complaint for declaratory judgment, and appellant appealed to this Court. Perceiving no error, we affirm. ⁵⁷⁴ Questions Presented On appeal, appellant presents two issues for our review, as phrased by us: I. Whether CHAP violated appellant’s due process rights by denying appellant notice and a meaningful opportunity to be heard before placing the structure on the Special List.

II

Whether appellant was properly afforded judicial review by way of administrative mandamus or, if not, whether appellant must be afforded judicial review pursuant to Maryland Code (2006 RepLVol.), § 3-^401, et. seq. of the Courts & Judicial Proceedings Article (“CJP”), the Declaratory Judgment Act. Procedural and Factual Background In the late 1990’s, appellant began acquiring properties in the area in which the structure is located and entered into discussions with City agencies with respect to development of the area. Several buildings were demolished with appropriate approvals and a surface parking lot was built. The structure in question was not demolished.

In a letter dated October 9, 2002, Laurie Schwartz, then Deputy Mayor of the City, wrote to appellant stating that, among other things, the City did not support demolition of the property, but “would be more inclined to support demolition of [the property] when the request is made within the context of a significant redevelopment project and it can be shown that preserving the building is neither feasible nor desirable.” The next events relevant to this appeal occurred in 2008, but before reviewing them, we pause to briefly outline the applicable legislative enactments. The General Assembly, to “preserve structures and landmarks of historic and architectural value,” authorized the City to “enact laws for historic and landmark zoning and preservation.” Maryland Code (2003 RepLVol.), Article 66B, § 2.12. Pursuant to that authority, Article 6, subtitle 3 of the Baltimore City Code sets forth the process for designating Preservation Districts, Landmark Lists, and Special Lists. On the recommendation of the City ⁵⁷⁵ Planning Commission, CHAP may propose the designation of a Preservation District or designate a structure for the Landmark List, but both require City Council approval.

Art. 6, §§ 3-1 and 3-2. CHAP may place a structure on the Special List without further approvals. Art. 6, § 3-3. A structure in a Preservation District or on the Landmark List may not be substantially altered without approval of CHAP, after conducting a public hearing on the request to alter.

Art. 6, § 4-1 to 4-6. In contrast, with respect to a request to alter a structure on the Special List, CHAP may cause the issuance of a permit to perform the alteration to be delayed for up to six months. Art. 6, § 4-7. By notice dated December 26, 2007, CHAP advised appellant that it would hold a public hearing on January 8, 2008, to consider placing the structure on the Landmark List and Special List.

At the January 8, 2008 hearing, appellant requested that it be postponed. Fred Shoken, 3 CHAP’s staff presenter, related facts relevant to the structure’s historical, architectural and cultural significance. Alfred Barry III, an employee of AB Associates and a representative of appellant, stated that appellant was given late notice and had insufficient time to prepare for the hearing. Appellant stated that it had “no plans to demolish this building.

We haven’t applied for any permits.” CHAP granted the continuance and stated that it would “have public testimony at the future consideration.” On February 6, 2008, 4 5 counsel for appellant sent a letter to the Baltimore City Planning Department (“the Planning Department”) and to Baltimore Development Corporation (“BDC”), referencing a meeting held on February 5 or 6 ⁵⁷⁶ regarding the structure and “summarizing the history of [their] existing agreement” in order to “better formalize that agreement and obviate any reason for CHAP designation of [the property].” The letter outlined the history of appellant’s acquisition of the property, which included that appellant acquired the property “in July of 1998 following an earlier purchase that year of the Tower Building parking lot.... Both acquisitions were part of a planned long-term acquisition of the entire block for future redevelopment.” The letter noted that the Urban Renewal Plan (“URP”), approved in May of 2001, included acquisition authority for three Baltimore properties for demolition, but “notably”, the structure was not included on the URP’s Notable Properties List. 5 The author of the letter expressed the view that the URP and the design review process should control the redevelopment of the area and that “CHAP designation of the building would create a bifurcated authority, with different bodies having jurisdiction over portions of the larger site that would potentially be conflicting and would significantly impede the redevelopment process for the site.” The letter proposed to “draft and enter into a formal agreement with your Departments that would ensure that this analysis relating to the building be accomplished as part of the City’s review of the development plans for the site ..., with the understanding that the proposed CHAP designation be withdrawn in connection with the execution of such more formal agreement.” Appellant noted that it “hopes to reach an agreement in principal [sic] before the next scheduled CHAP hearing on March 11th.” Based on our review of the transcript of the March 11, 2008 hearing, it appears that Kathleen Kotarba, CHAP’s executive director, Mr. Shoken, and representatives of BDC, the Planning Department, and Downtown Partnership of Baltimore attended the meeting held on February 5 or 6. ⁵⁷⁷ On February 22, 2008, Mr. Barry, on behalf of appellant, wrote a letter to the Planning Department enclosing an “initial draft agreement [they] discussed” relating to the structure. The letter reflected copies to BDC, CHAP, and Downtown Partnership. The draft agreement provided, among other things, that appellant would not demolish the structure, and the Special List and Landmark List designations by CHAP would be withdrawn.

The draft agreement contained signature lines for the Planning Department, BDC, the City, and CHAP. The author stated that he would “appreciate confirmation that [appellant] does not have to prepare for the March 11th CHAP hearing” and that the hearing would be continued “pending resolution of this alternative.” The requested confirmation did not occur. On February 28, 2008, CHAP sent a formal notice to appellant, advising that it would hold a public hearing on March 11, 2008, “to consider Baltimore City Landmark and Special List designation of [the property].” At the March 11, 2008 hearing, Mr. Shoken made a presentation as to the location of the structure, the designation of other buildings in the area, and the history of the structure. Mr. Shoken advised that the structure was built after the Baltimore Fire and showed a photograph from a newspaper in 1905, showing the ground floor of the structure.

Mr. Shoken advised that the property was included in a 2001 “HABS survey” 6 entitled, “Ten Enduring Landmarks of Baltimore’s Central Business District.” Mr. Shoken stated that “one of the things that [is] unique about this building ... is [that it is] only one of two buildings surviving on this block” and that “by retaining these buildings, you retain that history and the historical remembrance of what’s there.... ” Mr. Shoken concluded that “in applying the [CHAP] criteria, the building meets those standards of number one, four and five.” After Mr. Shoken presented the facts supporting the designation of the property, the chairman and presiding commis ⁵⁷⁸ sioner stated they were “moving on to representatives from [appellant].” Appellant had four representatives at the hearing, namely, Albert Figinski, appellant’s counsel, Victoria Morrison, appellant’s executive vice president and general counsel, Mr. Barry, and Mark Gellman, an employee of Edison Properties, LLC. The following ensued at the hearing, in pertinent part. APPELLANT’S COUNSEL: I’m here because we have asked for a postponement of this hearing. What you are going to do today to this property amounts to a temporary or permanent injunction.

I[n] the law, those attempting to get a temporary or permanent injunction need to show some irreparable harm or some balance of convenience. And I suggest to you that the record demonstrated by the documents which I have asked to be placed in the record do not demonstrate either irreparable harm or a balance of convenience for the designation. * * * On February 13th, Mr. Barry wrote to the Commission thanking them for their postponement of the January hearing. In January you postponed the hearing because of insufficient notice given to us in December. We stated in that letter what we would do would be to meet with members of this group, as well as other representatives of the City and come up with some kind of agreement that would protect any conceivable City interest, at the same time not placing what I consider to be a temporary or permanent injunction upon this property.

On February 22nd, Mr. Barry wrote to [the Planning Department], telling [it] that here’s an initial draft of an agreement. * * * ⁵⁷⁹ On February 6th, there was a meeting, I believe you had representatives there, representatives from BDC were there, the Director of the Planning Commission was there, and other members of the City superstructure were there. And a draft agreement was produced. That draft agreement I suspect is part of your record. It is at least four pages in length.

Now, this is draft. This is not a flaming arrow. This is a beginning of discussion. But what I am suspecting by the motions that may follow, is that you wish to cut off those discussions.

That would be a tragedy. It would be a tragedy for the process, and it would be a tragedy for the future. It would be a tragedy because the agreement suggests that we will work with this group, as well as other groups, to come up with an appropriate plan for the entire site. This is not done in a vacuum.

MR. BARRY: [I]t really speaks to the heart of whether or not the City of Baltimore wants to enter into transparent and good faith negotiations with the developer, a substantial developer, and have those agreements undermined by actions by this body. And I think we left that meeting on February 6 with members of your staff, Mr. Shoken was there, feeling that we were going to submit an agreement, it was going to be reviewed by the City. And if ... anybody had issues with it, we would have the opportunity to respond.

And your action today is premature, and it’s unnecessary and you ought to postpone it. But to speak to the agreement and [appellant’s history of this going back to the [T]ower [B]uilding demolition, the adjacent building demolition, the creation by City Council of a parking lot, the acquisition ultimately in 1998 by [appellant] of that parking lot, and the beginnings of discussions with the City over that entire block. That began in 1998, ten years ago. And during that time, we went back to the City Council, we went back and got ⁵⁸⁰ approval to tear the other buildings down.

And you’ll hear from Mr. Gellman [regarding the] specific agreement with the City relating to this building. Now, I think it is notable, and I use that term deliberately, that at that same time the City was redoing its [URP] for the central business district. And it was a two year process by the [Planning [Department and BDC. CHAP was very much involved in that, Preservation Maryland was very much involved in that....

This building ... was never included on the notable list. CHAP gave a list to the City. It was never part of the draft ordinances. It was never approved by the City Council.

And I think that’s important in that [appellant] goes into buying these properties saying ... it can’t be that important, if it’s not part of the overall process that took two years to complete, number one. Secondly, BDC and [the] Planning [Department] proposed buying this building along with the three adjacent buddings on Baltimore Street that Mr. Shoken talked about and showed you some pictures of, and proposed to tear those down for ... open space, as part of the [URP]. They wanted to buy those buildings and designate it for open space. When [appellant] was approached about that, we owned the building, we said, if you’re going to buy those buildings for open space, you obviously want to do it as part of an overall development plan for the whole block.

We are in the process of negotiating for all of those. You don’t need to buy our building. Whatever you do for the other buildings, we have and we began, as you’ll hear from Mr. Gellman, a discussion with the City that we were going to buy the whole block. We had every intention of buying it.

And ... we had every approval from the City to tear those buildings down, with one exception, and the one exception was the corner building before you today. ⁵⁸¹ This building, if it’s designated, is the tail wagging the dog. Because you should not have a bifurcated process that says this building has designation, the rest of the block has another design approval under the renewal plan. [I]f you don’t postpone it ... [it] is a bad faith effort in terms of how to treat a substantial developer for the site. MR. GELLMAN: First came across the property in 1997, when the original — configuration of the parking lot was for sale.

When we went under contract for the parking lot ... I did my due diligence for the property. I met with City officials, I met with the Mayor’s office, [BDC], the Downtown Partnership. And what I learned ... was that it was the City’s interest to demolish all of the buildings right up to Calvert Street.

So we purchased the parking lot — we actually closed on the parking lot in March of 1998. We closed on [the structure] in July of 1998. I immediately began negotiating for the other properties. But we got full encouragement and support from the City, from the Mayor’s Office, by BDC, from Downtown Partnership, to try to acquire all of the properties so there could be an integrated development on this site.

We began negotiations with the other owners, and it took several years until we acquired the other three properties. And the City which supported us to buy all of the properties, and were talking about demolition, now asked us, could we leave [the structure] up.... The answer we got was that they didn’t want the parking all the way out to Calvert Street, because the parking was going to be a temporary use, which is what parking is. ⁵⁸² I agreed with the Mayor’s office, that we would not seek any demolition plans or permits for [the structure]. That we would only demolish the other three buildings.

We would expand the parking lot, and it didn’t seem like an unreasonable thing for us to agree to, considering that the reason was that they didn’t want this parking lot all the way up to Calvert Street. We agreed to that, after discussions. We had a written agreement to that. * * * [M]aybe I should have had a more formal agreement than just between us and the Mayor’s office, but it was an agreement, until recently when we were approached by this organization to want to designate this building. MS.

MORRISON: [W]e have submitted a draft agreement to the City to make more formal our long standing agreement with the city regarding the site. * * * Let me walk you through the draft agreement.... It says any time that we are prepared to pursue a specific redevelopment plan, an architectural and economic feasibility analysis of incorporating this property into the overall development for the entire site will be prepared by us for the City’s review. The City, through [the Planning Department] and BDC will review the plans, under all of the applicable criteria. CHAP and its staff will have full access to the submitted material for their review, and prepare recommendations to [the Planning Department] on the redevelopment plans and the alternatives.

Under the terms of the 2003 City Council approval, [the Planning Department’s] design approval shall be required for the redevelopment plans. We will not apply for any ⁵⁸³ demolition or alteration permit until such time as final design approval has been obtained from [the] Planning [Department], We’ll maintain it in a clean and secure condition to prevent further deterioration. And that the special list and landmark designations by CHAP will be withdrawn and this procedure used in place. We voluntarily agreed with the City a number of years ago not to demolish this building....

Yet placing us on the special list abrogates that agreement with the City, and would impose an entire overlay of vague burdens that would disturb the integrated process that we have already begun. The special list and landmark designations ... would separate this little piece from the entire site, and it would represent an ad hoc attempt at achieving protection against midnight demolition that’s already in place. CHAIRMAN: [W]e have two actions before us, special list and landmark designation ... [0]ur focus charge is whether or not this meets the criteria and we should consider these documents. [Appellant’s draft agreement was distributed to the parties and representatives.] APPELLANT’S COUNSEL: What this document does ... [is] demonstrates a pattern of negotiation. [CHAP is] an independent agency. No one is trying to ram anything down your throat.

However, I would suggest to you that our initial request is that this be postponed. ⁵⁸⁴ [I]f you don’t postpone it ... I want you to know that we object to that, because we haven’t really had an opportunity to adequately prepare an assault on this designation. * * * [T]he Pennsylvania Railroad and the Baltimore & Ohio Railroad at the time of the Baltimore City fire were in conspiracy to come up with a monopolistic control of the railroads. They plotted to have the B & 0 build a big building and the Pennsylvania interest, although it would be dominant, to be a little building. * * * Now, I suggest to you it’s not something you want to historically designate. CHAIRMAN: Obviously we need to consider what they’re presenting and the legal aspects of it, but our true role today is applying the criteria for special list and landmark designation. [Appellant], I’m going to give you one more opportunity to speak and we need to move on.

APPELLANT’S COUNSEL: My summary is as follows: There’s no impending need for this designation. The draft agreement is not final. It is a draft. [T]his company has worked with the City to try to come up with a plan for an integrated site. We believe that you should postpone this vote.

And I urge you to do that. * * * CHAP COMMISSIONER: What period of time are you requesting for a postponement? $ }{? tfc APPELLANT’S COUNSEL: ... [A]t least 60 days. John McClay from Baltimore Heritage testified that the structure “was placed on the Baltimore Heritage Preservation ⁵⁸⁵ watch list in 2003, one of the original buildings on that list.” Mr. McClay spoke about how the property had been publicized in Style Magazine, the Daily Record, the Baltimore Sun, and was featured in the Baltimore Heritage’s newsletter, “Historic Buildings We Should Save.” Mr. McClay testified that “[w]e believe that corner buildings are very important in providing historical context.” Kirby Fowler from the Downtown Partnership of Baltimore testified that “[t]his historic building should be part of the texture of a more modern block.” Mr. Fowler also stated the following. [Appellant] ... came in and met with the City. I was there, [Ms.] Kotarba, [Mr.] Shoken and others, to discuss what next steps to take. And we thought it was a very positive discussion.

And as a result of that, the agreement was that [appellant] would go back and produce an agreement that might actually result in the preservation of the building for now. [Appellant] did so, February 29th ... is when the draft agreement was sent to everyone. No one from the City got back to [appellant] about it____ I think there ought to be a good faith approach to something like this. It’s incumbent on all of us to try to negotiate an agreement. I think in the end of it we can’t reach some agreement with [appellant], I say let’s landmark this property, let’s do it.

But I think it’s not — we have not been acting in good faith if we never even responded to the draft agreement. * * * Following that testimony, the following occurred. CHAIRMAN: We have two considerations in front of us. One is for special list designation, the other is for Baltimore City landmark designation. ⁵⁸⁶ We’ve heard the testimony from the owners, and others. We have two agreements that have been referred to.

You’ve been given a copy of the letter agreement from October 9th, 2002 between [appellant] and Laurie Schwartz. And I think each of you have been given a copy of the proposed agreement ... referenced throughout this testimony. We’re not here to debate the terms of those agreements. Our charge is to consider it for special list and landmark designation.

Is there any further — are there any further questions or comments from the Commission? CHAP Commissioners raised issues regarding appellant’s analogy to an injunction, as well as the effect of the Special List designation, after which Mr. Barry stated the following. [W]e left that meeting with [the] Planning [Department], BDC and CHAP thinking that this was not going to be an adversarial hearing, if a hearing at all. So nothing can happen between now and then, because it’s already notified on the special list. If we had time following that [January] hearing, we would have prepared to come in with an argument perhaps as to why this does not meet your criteria.

CHAP voted six to five to deny appellant’s request for a postponement. CHAP then voted unanimously to place the structure on the Special List and the Landmark List. On March 31, 2008, CHAP mailed appellant a letter, stating that at the March 11, 2008 hearing, “the Commissioners considered the staff report and all testimony presented” and “approved the Special List designation and Baltimore City Landmark.” The letter listed the ways in which the property met the CHAP designation standards. ⁵⁸⁷ On April 10, 2008, pursuant to Maryland Rule 7-202, appellant filed a petition for judicial review in circuit court. On May 16, 2008, CHAP filed a response to appellant’s petition for judicial review and a motion to dismiss.

CHAP argued that judicial review of a decision to place a property on the Landmark and Special Lists was not authorized by statute, that the Landmark designation of the property was not ripe for review, and that the court did not have jurisdiction. On June 3, 2008, appellant filed a response to CHAP’s motion to dismiss, with a memorandum of points and authorities and a request for a hearing. Appellant argued that there was “inherent judicial power to support judicial review, as well as capacity for review by administrative mandamus,” pursuant to [Reese v. Dep’t of Health & Mental Hygiene, 177 Md.App. 102 , 144 n. 21, 934 A.2d 1009 (2007) ] and Maryland Rules 7-401, et seq. Appellant also stated that “[t]he City correctly states that the process for Landmark List designation needed further City action and is not renewable now on ripeness grounds.” On June 19, 2008, appellant filed a memorandum in support of its petition for judicial review.

In appellant’s memorandum, the questions presented were: 1) whether CHAP’s Special List designation on March 11, 2008 was impervious to judicial review and 2) whether appellant was provided sufficient notice and opportunity to be heard at the March 11, 2008 hearing to satisfy due process. Among other things, appellant argued that the “Special List designation is not just for a ‘six month period.... ’ Rather, its six month injunction activates when a demolition or alteration permit is requested.” Appellant argued that “[t]he “brand” of the Special List is ... timeless and limitless and enjoins planning for redevelopment.” Appellant maintained that Article 66B of the Baltimore City Code (“Art. 66B”) authorizes landmark zoning, but does not authorize “a ‘Special List’ which brands a property and controls it upon ‘posting.’” Also on June 19, 2008, appellant filed an amended petition for judicial review, noting that it was requesting review of the Special List designation only. ⁵⁸⁸ On July 11, 2008, the circuit court denied CHAP’s motion to dismiss appellant’s petition for judicial review, without prejudice. On September 18, 2008, CHAP filed a renewed motion to dismiss appellant’s petition for judicial review, pursuant to Maryland Rule 7-204(b). In addition to what CHAP argued in its May 16, 2008 motion, it argued that administrative mandamus did not apply to this case because appellants did not timely file their appeal, pursuant to Maryland Rule 7-402.

On October 10, 2008, appellant filed a response to CHAP’s renewed motion to dismiss. Appellant argued, among other things, that administrative mandamus is applicable to this case because appellant “complied with the substance of [Maryland] Rule 7-401, et seq.” and that CHAP received timely notice of appellant’s request for judicial review. On November 5, 2008, the circuit court held a hearing on appellant’s petition for judicial review and CHAP’s renewed motion to dismiss