Chesapeake Outdoor Enterprises, Inc. v. Mayor of Baltimore

HARRELL, Judge. Appellants, Chesapeake Outdoor Enterprises, Inc. and Boisclair Advertising, Inc. (hereinafter collectively referred to as “Boisclair”), appeal from decisions of the Circuit Court ⁵⁸ for Baltimore City (Kaplan, J.) dismissing several of their claims against appellee, the Mayor and City Council of Baltimore City (hereinafter “the City”), and then disposing of the rest by summary judgment. Facts This case centers in large part on the provisions of Baltimore, Md., Code art. 30 (1990) (hereinafter “the Zoning Ordinance”), which contains the City’s zoning regulations. More specifically, it centers on provisions of the Zoning Ordinance pertaining to general advertising signs.

General advertising signs are essentially billboards or outdoor advertising signs that advertise something sold, offered, or conducted elsewhere than on the premises upon which the sign is located. See Zoning Ordinance § 13.0-2.79. 1 Boisclair owns a large number of such signs throughout Baltimore City, 2 having purchased them from other outdoor advertising companies in July 1987 and April 1989. The Zoning Ordinance prohibits such signs in residential, office-residential, B-l and M-l zoning districts. Id. §§ 10.0-2, 10.0-3.

It allows such signs in B-2, B-3, B-4, B-5, M-2 and M-3 zoning districts as conditional uses, that is, subject to the issuance of a conditional use permit by the City Board of Municipal and Zoning Appeals. Id. § 10.0-3c. Due to several of the issues raised by Boisclair in its appeal, the history of the City’s regulation of general advertising signs is also pertinent here. Prior to the City’s initial adoption of a zoning ordinance in 1923, building permits had been required for some time for all construction within Baltimore City.

See Baltimore, Md., Code, Ordinance 155 ⁵⁹ (1908). The City’s prohibition of general advertising-type signs in residential zoning districts dates at least as far back as 1925. Id., Ordinance 1247 (1925). 3 With respect to such signs in office-residential zoning districts, the prohibition dates back no later than to 1950, and with respect to such signs in B-l and M-l districts, to 1971. Id., Ordinance 711 (1953); Ordinance 1051 (1971).

In 1950, the City adopted an amortization provision 4 directing removal of all nonconforming signs 5 in residential and office-residential zoning districts within five years. Id., Ordinance 1101 (1950). In 1971, this provision was recodified and its effect extended to B-l and M-l zoning districts of Baltimore City. Id., Ordinance 1051 (1971).

Thus, facially, even nonconforming general advertising signs have not been permitted in residential zoning districts since 1955, or in office-residential, B-l or M-l zoning districts since 1976. In September 1989, the City issued to Boisclair several notices informing Boisclair that many of its signs were in violation of the Zoning Ordinance and ordering it to correct the following violations: 1. Numerous General Advertising Signs erected and maintained in various locations in Residence Districts and B-l Business Districts and M-l Industrial Districts ⁶⁰ throughout Baltimore City. REMOVE WITHIN 10 DAYS[;] 2.

Numerous General Advertising signs erected and maintained without permits in B-2; B-3; B-4; & B-5 Business Districts and M-2 and M-3 Industrial Districts throughout Baltimore City. REMOVE WITHIN 10 DAYS. OBTAIN PERMITS BEFORE REINSTALLING. After receiving these notices, Boisclair initiated negotiations with the City’s Mayor, the Honorable Kurt L. Schmoke, regarding the fate of its signs.

The negotiations ultimately resulted in a written “memorandum of understandings” (hereinafter “Memorandum”) being executed by Mayor Schmoke and James A. Eatrides, President of Boisclair, on 24 November 1989. Among other things, the Memorandum provided for immediate removal of alcohol and tobacco advertising copy from Boisclair’s signs that were located in close proximity to school and church buildings in Baltimore City, gradual withdrawal of some 400 of Boisclair’s signs from residential zoning districts, reduction of the percentage of its advertising copy devoted to alcohol and tobacco products, and the establishment of a task force to study and formulate recommendations for amendments to the Zoning Ordinance to provide for a “coherent and efficient” means of regulating general advertising-type signs. The Memorandum also provided that both parties would refrain from bringing actions against one another so long as both continued to abide by its provisions. In early 1990, City Council members apparently expressed their dissatisfaction with this state of affairs and with their noninvolvement in the negotiations that led to the execution of the Memorandum.

Shortly thereafter, in spite of Boisclair’s compliance with the terms of the Memorandum, the City notified Boisclair that it intended to repudiate the agreement. On 8 May 1990, the City initiated a suit against Boisclair in the Circuit Court for Baltimore City, seeking an injunction requiring the removal of the offending signs. Four days later, Boisclair filed a suit against the City, alleging: (1) breach of contract due to the repudiation ⁶¹ of the Memorandum (count I); (2) tortious interference with its contracts with third parties (count II); (3) violation of its constitutional due process rights (count IV); 6 (4) violation of its constitutional right not to be deprived of its property without just compensation (count V); and (5), violation of its right to just compensation for the deprivation of its property under Md.Code Ann. art. 25, § 122E (1990) (count VI). The cases were consolidated on 30 August 1990.

On 6 September 1990, the City’s motion to dismiss Boisclair’s complaint was granted by the circuit court as to Counts I, IV and VI. The City subsequently filed a motion for summary judgment on the remaining counts. The circuit court granted this motion at a hearing on 24 October 1990 and immediately ordered the removal of the offending signs. 7 We will elaborate on the facts of this case as necessary in our discussion of the individual issues presented. Boisclair now presents the following issues for our consideration: I. Whether the circuit court erred in dismissing Count I of Boisclair’s complaint on the ground that the Memorandum was not enforceable because it was not endorsed by the City Solicitor; II.

Whether the circuit court erred in dismissing Count VI of Boisclair’s complaint on the ground that Md.Code Ann. art. 25, § 122E does not apply to the City; III. Whether the circuit court erred in granting summary judgment for the City on Count V of Boisclair’s complaint on the ground that there was no genuine dispute as to the fact that none of Boisclair’s signs were legally erected or maintained; and, ⁶² IV. Whether the circuit court’s Order violates Md.Rule BB78 (1991)? I. Count I of Boisclair’s complaint alleged that the City’s repudiation of the Memorandum constituted a breach of contract.

The circuit court dismissed this claim on the basis of Baltimore City Charter art. VII, § 27 (1990), which provides as follows: All deeds, bonds, contracts, releases, and other legal instruments involving the interests of the City or to be executed and approved by the Mayor or other officer of the City before they are executed or accepted, shall be submitted to the City Solicitor and have endorsed upon them his opinion as to their sufficiency and their compliance in terms and conditions with the laws or ordinances under which they are executed. The circuit court concluded that under this provision the Memorandum was invalid, as it did not contain the endorsement of the City Solicitor. Boisclair contends that the Memorandum is valid without the endorsement of the City Solicitor.

We are inclined to disagree with Boisclair. 8 We ⁶³ need not consider Boisclair’s arguments on this issue, however, since there is a more fundamental problem with Boisclair’s breach of contract claim, and since we are not confined to the reasons given by the circuit court in affirming its decision. See Md.Rule 8—131(b); Neville v. State, 290 Md. 364 , 430 A.2d 570 (1981). It is well established that “if a public corporation enters into a contract that barters away or otherwise restricts the exercise of its legislative or police powers, then the contract is ultra vires and void ab initio.” Dept. of Public Serv. v. Mass. Mun.

Elec., 151 Vt. 73 , 558 A.2d 215, 220 (1988). See also Attman v. Mayor of Annapolis, 314 Md. 675, 685 , 552 A.2d 1277 (1989) (“a municipality may not contract away the exercise of its zoning powers”). An agreement that purports to contract away the City’s ability to enforce its own laws clearly violates this rule. Contrary to Boisclair’s suggestion, the agreement in the case sub judice is distinguishable from the settlement agreements typically used in code violation cases.

In the latter there is typically a genuine dispute as to whether the code sought to be applied is applicable to the specific facts involved, and this dispute is recited in the agreement as the basis for compromising the dispute. Here, there is no apparent genuine dispute as to the application of the Zoning ⁶⁴ Ordinance to Boisclair’s signs. Thus, the Memorandum is void, and Boisclair’s breach of contract claim must fail.

II

Boisclair’s next argument is that the circuit court erred in granting the City’s motion to dismiss Count YI of Boisclair’s complaint on the ground that Md.Code Ann. art. 25, § 122E (1990) does not apply to the City. Section 122E provides, in pertinent part, as follows: (b) A county or municipality shall pay the fair market value of an outdoor advertising sign, removed or required to be removed by the county or municipality, that was lawfully erected and maintained under any State, county, or municipal law or ordinance. The circuit court did not further expound upon the reasons for its ruling. In support of the circuit court’s decision, however, the City points out that article 25 is entitled “County Commissioners,” and that it generally sets forth the powers delegated by the General Assembly to counties governed by county commissioners.

The City asserts that § 122E, which is contained within article 25, should accordingly be construed to apply only to counties governed by county commissioners, and not to the City, which has adopted a charter form of government. City of Baltimore v. Sitnick & Firey, 254 Md. 303 , 255 A.2d 376 (1969). 9 We disagree, for reasons we will explain. We are faced here with an issue of statutory construction. The fundamental task, in such a case, is to discern the objective, goal or purpose of the legislation.

In our ‘efforts to discover purpose, aim, or policy we look at the words of the statute ... because what the legislature has ⁶⁵ written in an effort to achieve a goal is a natural ingredient of analysis to determine that goal.’ We also may consider ‘other material that fairly bears on the fundamental issue of legislative purpose or goal’ so that we may read the language of the legislation in the context within which it was written. City of College Park v. Cotter, 309 Md. 573, 587-88 , 525 A.2d 1059 (1987), quoting Kaczorowski v. Mayor and City Council of Baltimore, 309 Md. 505 , 525 A.2d 628 (1987). By its terms, § 122E applies generically to any “county or municipality.” As Baltimore City is a municipality (and is sometimes treated as county, n. 9, supra), § 122E would clearly seem to be applicable. The meaning of the words used in § 122E is, however, controlled to some degree by the context in which the words appear.

Kaczorowski, 309 Md. at 514 , 525 A.2d 628 . Section 122E is codified in article 25, which, as the City points out, is largely concerned with the political subdivisions of the State governed by county commissioners: hence the title, “County Commissioners.” But nothing in article 25, other than perhaps the title, suggests that its application is limited to counties governed by county commissioners. On the contrary, many of its provisions, including § 122E, refer generically to any county or municipality, and a number refer explicitly to the City. See, e.g., §§ 26A, 227, 228, 51A, 169, 229.

Nor is there any suggestion elsewhere in the Code that the application of the provisions of article 25 is limited to counties governed by county commissioners. Article 25A, § 4 of the Maryland Annotated Code provides that counties with charter forms of government (including the City, see supra n. 3) shall exercise the powers set forth in that article as a substitute for the powers codified in article 25. Article 25, however, imposes duties as well as grants powers. See City of Bowie v. County Commissioners, 258 Md. 454 , 267 A.2d 172 (1970).

Article 25A does not state that its provisions should be deemed to substitute for the duties imposed by Article 25. ⁶⁶ Aspects of the legislative history of § 122E also suggest that the General Assembly intended it to apply to the City. In 1982, Attorney General Stephen H. Sachs wrote to Governor Harry Hughes regarding § 122E’s precursor in the General Assembly, Senate Bill 702, that: [Although] this bill places new law in [Article] 25, County Commissioners, the evident intent is that the bill apply to all the subdivisions of the State. In the absence of the reference to ‘municipalities,’ it might be argued that the term ‘county’ refers only to counties without home rule. However, the fact that the bill expressly applies to the State’s municipalities and the title refers to ‘any’ county, clearly suggests an intent that the bill apply to all counties, including the City of Baltimore. 10 In vetoing Senate Bill 702, Governor Hughes noted that by requiring compensation for removal of outdoor signs, it would prohibit the use of amortization ordinances, and that the City had urged him to veto the Bill.

The following year Senate Bill 712, which was ultimately enacted into law and codified as § 122E, was adopted by the State legislature. A fiscal note on the legislation stated that the City had estimated that its passage would increase city expenditures in the following year in the form of payments to sign owners by $150,000. On 15 March 1983, the City presented a statement opposing the legislation to the Senate Constitutional and Public Law Committee. In the statement, John Hicks, the City’s Program Manager of the Department of Housing and Community Affairs, asserted that “[the legislation] would require the City to pay fair ⁶⁷ market value for the removal of billboards, placing an unnecessary burden on taxpayers.” Plainly, these remarks indicate that those involved in the legislative process surrounding the enactment of § 122E into law believed that it would indeed apply to Baltimore City.

From the foregoing evidence, it is clear that § 122E was intended to apply to all counties as well as to all municipalities, including Baltimore City, notwithstanding the fact that it is codified in article 25. The circuit court’s ruling that § 122E was inapplicable to Baltimore City was, therefore, erroneous. Boisclair was not prejudiced by the circuit court’s error, however, since it failed to present any evidence that its signs were “lawfully erected and maintained under any State, county or municipal law or ordinance,” as required by § 122E. 11 Accordingly, we need not reverse the circuit court’s dismissal of Count VI of Boisclair’s complaint. Harris v. David S. Harris, P.A., 310 Md. 310 , 529 A.2d 356 (1987).

III

Boisclair next challenges the propriety of the circuit court’s grant of summary judgment against it on Count IV of Boisclair’s complaint. 12 Count IV alleged that the City’s removal of Boisclair’s signs without payment of just compensation would constitute an unconstitutional taking. 13 In ⁶⁸ granting the City’s motion for summary judgment, the circuit court ruled that there was no real dispute as to the fact that none of Boisclair’s signs were lawfully erected or maintained. Accordingly, the removal of the signs could not constitute an unconstitutional taking, and the City was entitled to judgment as a matter of law. A. We begin our analysis with a brief discussion of summary judgment procedure, which allows the disposition of a case without trial when there is no real or genuine factual controversy between the parties. Harris v. Stefanowicz Corp., 26 Md.App. 213, 218 , 337 A.2d 455 (1975).

When ruling on a motion for summary judgment, a trial court must address two separate issues: whether there is a genuine dispute as to a material fact, and whether the moving party is entitled to judgment as a matter of law. Castiglione v. Johns Hopkins Hospital, 69 Md.App. 325, 332 , 517 A.2d 786 (1986). One who moves for summary judgment has the burden of demonstrating the absence of any genuine dispute as to a material fact. Id.

Any doubts must be resolved against the moving party. Id. See also Washington Homes v. Int’l Land Dev., 281 Md. 712, 716 , 382 A.2d 555 (1978). In discussing the materials a trial court may properly consider in ruling on a summary judgment motion, we have stated as follows: The party moving for summary judgment may place before the trial court the facts necessary to a determina ⁶⁹ tion for summary judgment (1) by affidavit, (2) by deposition, (3) by answers to interrogatories, (4) by admissions of facts, (5) by stipulation or concession, or (6) by pleadings.

Pleadings alone may serve as the basis for providing the necessary factual prerequisites only where the ‘[ajllegations and the response, or lack of response ... establish facts as admitted or deemed to be admitted, for the purpose of the case.’ Castiglione, 69 Md.App. at 333 , 517 A.2d 786 , quoting Vanhook v. Merchants Mutual Ins. Co., 22 Md.App. 22, 26-7 , 321 A.2d 540 (1974). See also Castiglione, 69 Md. App. at 334-35 , 517 A.2d 786 (facts alleged in pleadings are before court as facts for purposes of summary judgment where “one party in its pleadings concedes the existence of the only facts material to a resolution of the summary judgment motion” by either admitting or not contesting them). If the moving party is able to set forth sufficient facts to demonstrate clearly the absence of a genuine dispute as to a material fact, the non-moving party must counter or oppose the motion by demonstrating that there is indeed a genuine dispute as to a material fact.

Lowman v. Consolidated Rail Corp., 68 Md.App. 64, 71 , 509 A.2d 1239 (1986). B. It is unnecessary to explore in depth the law of taking within the context of zoning, or the concept of amortization, as this Court did so recently in Lone v. Montgomery County, 85 Md.App. 477, 494-99 , 584 A.2d 142 (1991). Before turning to the circuit court’s grant of summary judgment in this case, however, we note one important principle that was implicit in the Lone decision, though it was discussed only indirectly. In order for a governmental restriction on use of private property to give rise to a taking, the use in question must have been previously legal.

See id. at 496 , 584 A.2d 142 (“An owner of land may establish a ‘lawful nonconforming use’ if the evidence conclusively establishes that before and at the time of the ⁷⁰ adoption of the original zoning ordinance, he was using substantially all of his tract of land in a then-lawful manner for a use which by a later legislative action became nonpermitted.”). (Emphasis added.) 14 In other words, a property owner cannot obtain compensation from the government for the deprivation of a use which was illegal from its inception. The application of this principle to the instant case is clear. If the circuit court correctly determined that there was no real dispute as to the fact that none of Boisclair’s signs were lawfully erected or maintained, then it properly granted the City’s summary judgment motion.

Cf Joy v. Anne Arundel County, 52 Md.App. 653, 659 , 451 A.2d 1237 (1982) (where county code imposed, as condition precedent to use of land, issuance of certificate of use, lack of certificate held to provide sufficient factual and legal predicate for grant of summary judgment). In support of its motion for summary judgment, the City submitted the affidavit of David Tanner, General Superintendent of Zoning Administration and Enforcement for the City, who averred that: (1) Boisclair owned signs located in “Residence, Office Residence, B-l Business and M-l Industrial Districts;” (2) Boisclair owned signs located in “B-2, B-3, B-4, B-5 and M-2 and M-3 districts” that were without permits; and (3) the presence of all these signs violated the City’s Zoning Ordinance. Also, the City submitted a violation notice issued to Boisclair on 8 September 1989 containing the same factual assertions. ⁷¹ In opposition to the City’s motion, Boisclair submitted a letter from Neal M. Janey, the City Solicitor, to Claude E. Hitchcock, the former Chairman of the Mayor’s Task Force on Outdoor Advertising, and the affidavit of James A. Eatrides, President of Boisclair. Neither Eatrides’ affidavit nor Janey’s letter contested the fact that Boisclair owned signs located in B-2, B-3, B-4, B-5, M-2 and M-3 zoning districts that were in violation of the Zoning Ordinance because they lacked permits.

Indeed, Eatrides explicitly admitted this fact, stating that if Boisclair was required to remove all of its signs in those districts “and to obtain permits prior to reinstallization of such signs in such districts,” its business in the City would be ruined. Nor did Boisclair effectively and specifically contest the fact that Boisclair’s signs located in residential, office-residential, B-l and M-l zoning districts were in violation of the Zoning Ordinance. Janey’s letter appears to assume that the latter signs are illegal. Eatrides’ affidavit states only that “these signs have been in existence for a number of years prior to their acquisition by [Boisclair].” If this statement was meant to contend that these signs predated the City’s 1908 permit requirement, 1925,1950 and 1971 zoning prohibitions, or the 1950 and 1971 amortization ordinances and were therefore nonconforming uses, it was clearly insufficient to demonstrate that a genuine controversy as to that fact existed.

See Shaffer v. Lohr, 264 Md. 397, 404 , 287 A.2d 42 (1972) (facts proffered in opposition to granting of summary judgment motion must be “detailed and precise”). 15 Instead of contravening the facts proffered by the City, Boisclair’s opposition to the City’s motion for summary judgment focused on the constitutional reasonableness of the City’s actions by describing the economic effects of ⁷² application of the Zoning Ordinance’s mandates to Boisclair. See Lone, 85 Md.App. at 501 , 584 A.2d 142 (constitutionality of governmental deprivation of property use without just compensation depends on constitutional reasonableness of government’s actions). Only a genuine dispute as to a material fact, however, will preclude a grant of summary judgment. Md.Rule 2-501(a) (1991).

A “material fact” is one that affects the resolution of the case. King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). As we have stated, no taking claim is raised by governmental termination or restriction of a use of property that was illegal from its inception. And, if no constitutional claim is raised, then the constitutional reasonableness of the City’s actions can have no impact on the case.

Boisclair contends that to require it to produce evidence that its signs are now or have ever been legally in existence would “tur[n] the standards for summary judgment upside down and, in effect, shif[t] the burden of proof for summary judgment from the moving party to the non-moving party.” To reprise our discussion of summary judgment procedure, the non-moving party has the burden of coming forward with evidence of a genuine dispute as to a material fact, if the moving party has set forth facts sufficient to demonstrate clearly the absence of such a dispute. Low-man, 68 Md.App. at 71 , 509 A.2d 1239 . The burden of proof, however, remains always with the moving party. See Castiglione, 69 Md.App. at 332 , 517 A.2d 786 .

Boisclair never came forward with any evidence as to the legality of its signs. We therefore do not see how the circuit court’s grant of summary judgment here “turn[ed] the standards for summary judgment upside down[.]” Boisclair also contends that summary disposition of this case was inconsistent with recent decisions of the United States Court of Appeals for the Fourth