Mayor of Baltimore v. Neighborhood Rentals, Inc.

KRAUSER, Judge. To obtain a permit to use the premises at 5525-5527 Harford Road 1 in Baltimore City for a “rent-to-own” store, specializing in “the sale, service and rental of electronics, appliances, and furniture,” appellee Ed Knox filed an application for such a permit with the City’s Department of Housing and Community Development (“DHCD”). Knox was then and presumably still is the managing member of appellee CMS Property, LLC, which owns the Harford Road property, and the vice president of appellee Neighborhood Rentals, Inc., which leases it. Although initially approved, the application was ultimately denied by the DHCD, when it learned from the Baltimore Development Corporation that such stores, though permitted under applicable zoning regulations, 2 were prohibited at that location by the City’s Hamilton Business Area Urban Renewal Plan (“Hamilton Plan” or “Plan”).

The City’s Board of Municipal and Zoning Appeals (“Zoning Board” or “Board”) subsequently disapproved the application for the same reason. Undeterred, appellees sought judicial review of the Board’s decision in the Circuit Court for Baltimore City, claiming that ⁶⁷⁶ the Hamilton Plan had expired under its own terms. The circuit court agreed. Interpreting the Plan’s specification that “it shall be in effect for a period of not less than twenty (20) years following” the date of its approval, as a “temporal limitation,” the lower court ruled that the Hamilton Plan had expired in 1999 and, with it, so had the prohibition against rent-to-own stores.

Accordingly, it reversed the Zoning Board’s decision disapproving the permit application and directed the Board to order the City “to issue Neighborhood Rentals, Inc. a permit to use and occupy the premises at 5525-5527 Harford Road for the sale, service, and rental, including rent-to-own, of electronics, appliances, and furniture.” That decision, seemingly at odds with the plain meaning of the Plan’s duration provision, prompted the Zoning Board to file a “Motion to Alter or Amend Judgment,” and a “Motion for Stay Pending Determination of Respondent’s Motion to Alter or Amend.” When both of those motions were denied, the Mayor and City Council of Baltimore (“the City”) noted this appeal, presenting one question for our review: Did the lower court err when it ruled that the language of the 1979 Hamilton Business Area Urban Renewal Plan, stating that the plan was in effect for “not less than twenty years,” constituted a temporal limitation under which the plan expired in 1999 and was no longer in effect? In response, appellees moved to dismiss this appeal, claiming that the City has no standing to bring this appeal because it did not, they claim, “participate” in the proceedings below. In the alternative, appellees request that we affirm the judgment of the circuit court. For the reasons that follow, we shall deny appellees’ motion to dismiss, vacate the judgment of the circuit court, and direct that court to affirm the decision of the Zoning Board.

THE HAMILTON BUSINESS AREA URBAN RENEWAL PLAN (“HAMILTON PLAN”) On November 30,1979, the City enacted Ordinance 79-1207, designating, as an urban renewal area, a section of northeast ⁶⁷⁷ Baltimore known as the “Hamilton Business Area,” and approving the implementation of the Hamilton Business Area Urban Renewal Plan (“Hamilton Plan” or “Plan”). The goal of the Plan was and — if the City is correct as to its present vitality — continues to be the “revitalization of the Hamilton Business Area in order to create a unique neighborhood retail business district with enhanced viability, attractiveness, and convenience for residents of the surrounding community and of the City as a whole.” To achieve this revitalization, the Plan, among other things, designated “permitted uses” within residential and business sections of the Hamilton Business Area. Rent-to-own stores were permitted under the original Plan. However, on June 13, 1995, the plan was amended, with the enactment of Ordinance 95-564, to prohibit certain types of uses, including “rent-to-own stores ... not in existence on the date of the enactment of the ordinance.” (Emphasis added).

Central to this appeal is one of the Plan’s concluding paragraphs, entitled “Duration of Provisions and Requirements.” Either it imposes a twenty-year “temporal limitation” on the Plan, as appellees contend and the circuit court held, or it does not, as the City claims and the Zoning Board found. It states: The provisions and requirements of this plan, as it may be amended from time to time, shall be in effect for a period of not less than twenty (20) years following the date of the approval of this plan by the Mayor and City Council of Baltimore. (Emphasis added). ZONING ADMINISTRATOR’S DECISION On November 5, 2004, appellee Knox filed a permit application with DHCD to allow “Sales/Rental/Service of electronics, appliances and furniture,” or what is known as a “rent-to-own” store, at 5525 Harford Road.

The premises 3 lie within the ⁶⁷⁸ Hamilton Business Area and a B-2-2 Community Business District. It contains a vacant store and, as noted earlier, is owned by appellee CMS Property, LLC, and leased by appellee Neighborhood Rentals, Inc. The Zoning Administrator initially approved the application, because the premises was located in a B-2-2 Community Business District, which permits the use requested by appellees. He then forwarded it, however, to other agencies for their approval, because the property was also located within an urban renewal area. Under § l-206(b) of the Baltimore City Zoning Code, when a requirement of the Code conflicts with a requirement of any other law or regulation, including an urban renewal plan, the more restrictive regulation controls — in this case, that would be the Plan.

Upon receipt of the application, Roseanne Walsh, an employee of the Baltimore Development Corporation (“BDC”), reviewed it to ensure that such a permit would comply with the applicable urban renewal plan. Noting that the Hamilton Plan prohibited rent-to-own stores at the appellees’ site, she recommended that the application be denied. Thereafter, when the Zoning Administrator failed, within fifteen days of receiving the application, to either issue a permit or notify appellees in writing why it would not, 4 appellees noted an appeal to the Zoning Board. ZONING BOARD’S DECISION After a hearing, the Zoning Board adopted a resolution disapproving the permit application.

In that resolution, it made the following findings of fact: 1. The previous use of the property was for business and office machines, sales, rental, and service. The proposed ⁶⁷⁹ use for sales, rental and service of electronic appliances (household) and furniture is listed as a separate use in the list of permitted use in the B-2-2 Community Business District and therefore cannot be considered as a continuation of a non-conforming use under the Urban Renewal Plan. 2. The proposed use of the premises is a rent to own facility as listed in the Hamilton Business Area Urban Renewal Plan, as amended per Ordinance No. 564 and approved June 13,1995; 3.

The Hamilton Business Area Urban Renewal Plan is still in effect; 4. Section l-206(b) of the Zoning Code applies in this case. Section l-206(b) states that if any condition or requirement imposed by a provision of this article is either more or less restrictive than a comparable condition or requirement imposed by any other provisions of this article or of any other law or regulation or any kind, including the applicable Urban Renewal Plan, the condition or requirement that is more restrictive governs. In a B-2-2 Community Business District furniture stores and electrical and household appliance stores are listed as permitted uses.

Rent to own stores, however are prohibited under the Land Use Provisions and Standards in the Community Business Area Urban Renewal Plan. In sum, the Zoning Board found that “the proposed use d[id] not comply with the permitted uses listed” in the Hamilton Plan, that the Hamilton Plan was “still in effect”, and that appellees’ application must therefore be disapproved, in accordance with the Plan. CIRCUIT COURT’S DECISION After hearing argument on the question of whether the Hamilton Plan was still in effect, the circuit court issued its ruling from the bench. The court observed that, when the City Council amended the Plan in 1995, the Council did not think the Plan “was expiring in 1999.” As evidence of that, ⁶⁸⁰ the court cited the “substantial additions” that were made to the Plan by that amendment.

But the court declined to adopt that view of the 1995 Council, because it felt it had no “direct evidence” as to what the language in the duration provision meant. Nor did it believe that the plain meaning of the words resolved the issue. After noting that “the normal meaning of not less than” is “at least” and ordinarily expresses a “minimal period of duration”, the court asserted that the phrase was nonetheless “ambiguous.” The “ordinary meaning” of these words, the court explained, could not be the “final answer on what they mean” because, if given their ordinary meaning, they would “have no functional effect.” If they did not impose a “temporal limitation,” then the Plan, the court reasoned, would have “perpetual existence,” rendering the entire phrase “meaningless.” Given that the Zoning Code creates “a number of restrictions” and “pre-conditions” for urban renewal plans and that “such plans are valid based upon the fact that they do have certain limitations on them,” the court found that the duration provision in the Hamilton Plan was a “temporal limitation” of twenty years that ran from its 1975 enactment and thus, it was “no longer in effect.” The next day, the circuit court issued an order reversing the Zoning Board’s decision and directing the Zoning Board to order the DHCD to issue appellees the permit they had requested. MOTION TO DISMISS Appellees contend that this appeal should be dismissed because the City “failed to participate in the circuit court” and thus has no standing to bring this appeal.

But, contrary to the appellee’s claim, the City did in fact participate in the proceedings below. There is no dispute, for example, that the City Solicitor, who represented both the City and the Zoning Board, filed a response to appellees’ petition for judicial review in the name of the City. Nor is it disputed that all circuit court docket entries refer to the City ⁶⁸¹ as an “interested party” and that the City never withdrew, nor was it ever dismissed, from the case. That all subsequent documents were filed in the circuit court, under the name of the Zoning Board, the City attributes to a “titling mistake.” We have no reason to believe it was attributable to anything else.

Indeed, given the close relationship between the Board and the City, as the former is an institutional agent of the latter, and that they were represented by the same counsel, the error was understandable, and once committed would quite naturally escape early detection by both sides, as it did. In fact, as the City notes, the misdesignation first occurred in a joint stipulation filed by both parties that neither side, it appears, was aware of. And, thereafter, the “titling mistake” went unnoticed by both sides for some time. Indeed, it was not until after post-judgment motions were filed that this matter was first commented upon by appellees.

Consequently, we conclude that the City did participate in the circuit court proceedings, at first under its own name, when the City Solicitor filed his initial pleading, and then, later, though misnomered. In any event, the Baltimore City Zoning Code provides that a “party to the judicial review [of a Zoning Board decision] may appeal the court’s final judgment to the Court of Special Appeals in accordance with the Maryland Rules.” Balt. City Zoning Code § 17-305 (2004). As the City was in fact a party to the circuit court proceeding, it has a right, under that section of the Zoning Code, to bring this appeal.

Moreover, as this Court has stated with respect to who may appeal from the judicial review of a local government decision: “Logically, all those parties properly in the case at the circuit court level ... may take an appeal to this Court if the circuit court’s decision adversely affects them.” Jabine v. Priola, 45 Md.App. 218, 225 , 412 A.2d 1277 (1980). Since the City was “properly in the case at the circuit court level” and was adversely affected by the circuit court’s decision, which, in effect, terminates one of its urban renewal plans, the City has a right to pursue an appeal in this Court. ⁶⁸² DISCUSSION I. Plain Meaning “ ‘[T]he cardinal rule ... is to ascertain and effectuate legislative intent.’ ” County Council of Prince George’s County v. Dutcher, 365 Md. 399, 416 , 780 A.2d 1137 (2001) (quoting Chesapeake & Potomac Tel. Co. of Md. v. Dir. of Fin., 343 Md. 567, 578-79 , 683 A.2d 512 (1996)). To ascertain that intent, we begin with the words of the statute — “the primary source of legislative intent” — giving them their ordinary meaning.

O’Connor v. Baltimore County, 382 Md. 102, 113 , 854 A.2d 1191 (2004). And, “when the words of the statute are clear and unambiguous, according to their commonly understood meaning,” we need not go any further. Dutcher, 365 Md. at 416 , 780 A.2d 1137 (internal quotation omitted). There is no dispute, either between the parties or adjudicatory bodies that have reviewed this case, that the phrase “not less than” means “at least”.

It signifies, in the words of Black’s Law Dictionary 1063 (6th ed. 1990), “the smallest or lowest degree.” Not even the circuit court, which declined to read this phrase as such, contends otherwise. Indeed, that court stated that “the normal meaning of not less than” is “at least” and that it ordinarily expresses a “minimal period of duration.” And that, moreover, is precisely how the Court of Appeals has interpreted that phrase whenever it has been called upon to do so. 5 ⁶⁸³ Still, appellees urge us to reject the plain meaning of the duration provision’s “not less than” language. To interpret the duration provision, in accordance with the plain and ordinary meaning of its words, would prohibit the Council, they claim, from ending the Plan before its twenty-year minimum had expired. Since a legislature “cannot by statute ‘preclude’ the repeal of any statute by a subsequent legislature,” Montgomery County v. Bigelow, 196 Md. 413, 423 , 77 A.2d 164 (1950), that interpretation, appellees insist, cannot withstand scrutiny.

But appellees’ concern is unwarranted. The duration provision contains no language that prohibits, either expressly or impliedly, a future city council from lengthening or shortening the life of the Plan or terminating it altogether. Assuming, as we must, that the “not less than” language was fashioned with full knowledge that no council may prevent a future council from repealing an ordinance it has previously passed, id., it becomes readily apparent that the language in question was intended to be exhortative and aspirational and not definitive and irreversible. Invoking the circuit court’s opinion, appellees further claim that, under the plain meaning interpretation urged by the City, the Plan would have no maximum duration and would therefore “continue in effect indefinitely after 1999.” Such an interpretation, they claim, would reduce the “not less than” language of the duration provision to “surplusage,” which the Council could not have intended.

Instead, the language at issue should be read, they maintain, as a “temporal limitation” on the Hamilton Plan’s duration. In other words, they urge us to read “not less than twenty [ ] years” to mean “not more than twenty years” — an impressive inversion of the English language, but an inversion nonetheless. ⁶⁸⁴ While we agree with appellees that the plain meaning of the duration provision permits the Hamilton Plan to continue indefinitely (or at least until the City amends or repeals the Plan), we do not agree that the provision should therefore be construed to terminate the Plan after twenty years. Appellees would have us interpret the “not less than” language of the duration provision so that it flatly contradicts its plain meaning or, in the alternative, ignore it altogether. We can do neither, without violating at least one of two basic rules of statutory construction: that the language of a statute determines its meaning if the language is “plain and unambiguous” and that a statute should be interpreted so that no word or phrase is rendered superfluous.

Dutcher, 365 Md. at 416-17 , 780 A.2d 1137 . In the final analysis, the solution appellees present, in effect, renders the phrase “not less than” surplus-age, the very evil their interpretation of this provision was meant to avoid.

II

Public Policy The duration provision does not contain a termination date, but that omission does not necessarily contravene public policy, as appellees contend. As noted, the “not less than” language in the duration provision is intended to be exhortative and aspirational, not mandatory and definitive. By suggesting that the City is committed to the Plan for a minimum of twenty years, it publicly affirms the City’s long-range commitment to urban renewal in the area covered by the Hamilton Plan and that commitment will not come to a precipitous end. Indeed, as the City notes, it assures businesses and families, which are attracted to an area because it is subject to an urban renewal plan, that it is the City’s intention to remain active in that area for as long it may take to achieve the plan’s goals.

And such assurances are necessary if renewal is to occur. As the City reminds us, urban renewal efforts are frequently prompted by the private sector’s unwillingness to invest in an area. Hence, plans, which do not have arbitrary cut-off dates and do not require legisla ⁶⁸⁵ tive action for their continuation, are more likely to attract the necessary investment than plans that do. Moreover, the omission of a termination date is consistent with the stated purpose of such plans.

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