MBC Realty, LLC v. Mayor & City Council

EYLER, JAMES R, J. MBC Realty, LLC, an appellant, and various other landowners in Baltimore City, 1 filed in the Circuit Court for Baltimore City a petition for judicial review of certain ordinances enacted by the Mayor and City Council of Baltimore, an appellee. The effect of the ordinances in question was to permit general ³⁸⁰ advertising signs to be placed on the 1st Mariner Arena as a conditional use under the City’s zoning laws. Appellants challenged the validity of the ordinances on the ground that they constituted illegal spot, piecemeal, contract, and conditional zoning and on the ground that they violated the equal protection clause of the Fourteenth Amendment to the United States Constitution. Arena Ventures, L.L.C., pursuant to a contract with the entity that manages the Arena, has the right to sell advertising and signage for the Arena.

Clear Channel Outdoor, Inc., pursuant to a contract with Arena Ventures, L.L.C., has the right to construct and maintain outdoor advertising signage on the Arena. Arena Ventures, L.L.C. and Clear Channel Outdoor, Inc. intervened as respondents and are additional appellees. Appellants filed their petition pursuant to Md.Code (1957, 2003 Repl.Vol.), Art. 66B, § 2.09 (hereinafter “ § 2.09”) and Title 7, Chapter 200 of the Maryland Rules. The circuit court .granted a motion to dismiss filed by appellees on the ground that Section 2.09 does not provide for an administrative appeal under the circumstances of this case.

We agree with the circuit court and shall affirm the judgment. Factual Background Prior to March 24, 2000, general advertising signs (commonly referred to as billboards), were permitted as conditional ■uses, subject to express limitations, in certain business and industrial districts in Baltimore City. On March 27, 2000, the City enacted an ordinance, which repealed and reenacted, with amendments, several sections of the zoning code, and also added new sections. The ordinance prohibited the placement of new advertising signs and permitted existing signs as nonconforming uses.

The prohibition is commonly referred to as a “moratorium” on the construction of new billboards. The ordinance recited, in part, that: (1) general advertising signs “constitute a separate and distinct use of the land on which they are placed and affect the use of adjacent streets, sidewalks” and other places open to the public; (2) the “unregulated construction, placement, and display of signs constitute ³⁸¹ a public nuisance!;]” (3) general advertising signs “endanger the public safety by distracting the attention of drivers from the roadway and may endanger the public health, safety, and welfare!;]” and (4) general advertising signs “might also result in harm to the welfare of the City by creating visible clutter and blight and by promoting a negative aesthetic impact!.]” The result of the enactment of this ordinance was that general advertising signs ceased to be a conditional use and became a prohibited use. On April 9, 2003, the City enacted the three ordinances in question. Ordinance 03-513 amended the 1977 Urban Renewal Plan for Market Center to provide that “[g]eneral advertising signs erected or placed on publicly-owned stadiums and arenas are allowed if approved by ordinance as a conditional usef.]” Ordinance 03-514 amended the zoning code to authorize, in the B-5 district, as a conditional use that required approval by ordinance, general advertising signs on publicly owned stadiums and arenas.

The ordinance further provided that all bills seeking approval of such a conditional use had to be accompanied by a plan for the removal of at least one existing general advertising sign for each proposed sign. Ordinance 03-515 permitted the construction of general advertising signs on the 1st Mariner Arena, subject to express conditions, including the removal of certain signs at other locations in the City. Ordinance 03-513 became effective upon enactment, and the other two ordinances became effective 30 days after enactment. On April 14, 2003, appellants filed a petition for judicial review of the enactment of ordinances 03-513, 03-514, and 03-515. 2 The petition sought review pursuant to the provisions in section 2.09 and title 7, chapter 200 of the Maryland Rules.

Appellants filed a motion to stay the effect of the ordinances in question and to receive additional evidence. See Rules 7-205 ³⁸² and 7-208. The court denied the motion. On July 1, 2003, appellees filed a joint motion to dismiss the petition on the ground that enactment of the ordinances was not a “zoning action” within the meaning of section 2.09(a)(l)(ii).

By order dated August 15, 2003, the court granted the motion to dismiss. Provisions applicable to an administrative appeal Section 2.09 (a)(l)provides: An appeal to the Circuit Court of Baltimore City may be filed jointly or severally by any person, taxpayer, or officer, department, board, or bureau of the City aggrieved by: (i) A decision of the Board of Municipal and Zoning Appeals; or (ii) A zoning action by the City Council. Title 7, chapter 200 of the Maryland Rules govern actions for judicial review of an order or action by an administrative agency when judicial review is authorized by statute. See Rule 7-201.

History of Section 2.09 Article 66B is the zoning enabling act for Baltimore City and non charter counties. 3 Sections 2.01 to 2.13 set forth zoning powers for Baltimore, and sections 4.01 to 4.09 set forth zoning powers for non charter counties. Sections 2.09 and 4.08 (hereinafter “ § 4.08”) provide for an “administrative appeal” 4 pursuant to title 7, chapter 200 of the Maryland Rules from a decision of the Board of Municipal and Zoning Appeals in Baltimore and the Boards of Appeal in non charter ³⁸³ counties (hereinafter sometimes collectively referred to as “Board”), and from a “zoning action” by the local legislative body. In Baltimore, the local legislative body is the City Council. Article 66B was enacted in 1933.

Board of County Commissioners v. Gaster, 285 Md. 233, 239 , 401 A.2d 666 (1979). The statute provided for judicial review only from decisions by a Board and then only on writ of certiorari. Board of County Commissioners of Carroll County v. Stephans, 286 Md. 384, 391 , 408 A.2d 1017 (1979). In 1962, the statute was amended to provide for judicial review of a decision by a Board, without the certiorari requirement.

Id. at 392 , 408 A.2d 1017 . Consequently, after the 1962 amendment, there was a statutory right of judicial review, as an administrative appeal, from a decision by a Board. There was no such right with respect to a decision by the local legislative body. With respect to decisions by a legislative body, a party had to file an action invoking the general jurisdiction of a court, arguing whatever theories were available under separation of powers principles, essentially that the legislation was unconstitutional or ultra vires. “The test of invalidity of a zoning ordinance is whether it is arbitrary, unreasonable and discriminatory, and has no substantial relation to the public health, safety, morals, or general welfare.” Cassel v. Mayor and City Council of Baltimore, 195 Md. 348, 354 , 73 A.2d 486 (1950).

In 1970, §§ 2.09 and 4.08 were amended to permit an administrative appeal from “a reclassification by the local legislative body,” in addition to an administrative appeal from a decision by a Board. Stephans, 286 Md. at 392 , 408 A.2d 1017 . The right of review was pursuant to chapter 1100, subtitle B of the Maryland Rules. Id.

(forerunner to title 7, chapter 200). The amendment was recommended by the Maryland Planning and Zoning Law Study Commission. The Commission explained, This section is unchanged except for the inclusion of an appeal process from reclassification decisions of the local legislative body. It can be argued that under the present ³⁸⁴ system appeals from reclassification decisions may be launched in equity at any time.

This has proven to be a detrimental factor to most persons concerned with such an action. The appeal process to be used, Chapter 1100, Subtitle B, Maryland Rules, requires noting of an appeal within thirty days and filing of the appeal within another ten days. This is ample time to bring an appeal for review (i.e. if a person is aggrieved by a decision it is incumbent upon him to react within a reasonable period of time). Id. at 393 , 408 A.2d 1017 .

In 1975, the statute was amended and, in relevant part, in sections 2.09 and 4.08, substituted “zoning action” for “reclassification by the local legislative body.” Id. The Court of Appeals, after reviewing the legislative history of the judicial review provisions in section 4.08 and relying specifically on language in the title to the amendment, concluded that the change to “zoning action” was stylistic and not substantive. Id. at 397 , 408 A.2d 1017 . In Stephans , the County Commissioners of Carroll County approved the following matters as recommended by the Carroll County Planning and Zoning Commission: (1) adopted a comprehensive “mini” plan for the Freedom area of Carroll County; (2) added a new section to the county zoning ordinance providing for a “R-40,000 Residence District[;]” (3) changed the standards for approval of subdivisions; (4) provided for schools and colleges as a principal permitted use in a conservation zone; (5) specified that department stores be a permitted use in a local business district; and (6) comprehensively rezoned the Freedom area.

Stephans, 286 Md. at 386 , 408 A.2d 1017 . Landowners objected to the actions and sought judicial review pursuant to the provisions of section 4.08. The Court held that neither the adoption of the plan nor the amendment of the zoning text was a “zoning action.” The Court stated that “zoning action” in section 4.08 meant “ ‘a reclassification by the local legislative body,’ referring to piecemeal or ‘spot’ zoning, not to comprehensive zoning or rezoning.” Id. The ³⁸⁵ Court further explained that “[cjhallenges in the courts to the adoption of comprehensive plans, zoning texts, and zoning text amendments must come in proceedings other than administrative appeals.” Id.

As we have observed previously, to the extent relevant here, sections 2.09 and 4.08 are the same. Consequently, the holding in Stephans applies to section 2.09, as well as section 4.08. Contentions of the Parties Appellants contend the enactment of the ordinances in question are subject to an administrative appeal because the enactment constituted “zoning action.” Appellants acknowledge that comprehensive zoning or rezoning by a legislative body is not subject to an administrative appeal. Appellants recognize that the City Council did not engage in comprehensive rezoning but argue that it could not create a valid conditional use without engaging in comprehensive rezoning.

Ordinance 03-514 was an invalid attempt to create a conditional use. According to appellants, we should look to the essence of the action taken by the City Council and the particular facts in this case. When we do so, they contend, we will conclude that the Council’s action constituted illegal spot or piecemeal