Seminary Galleria, LLC v. Dulaney Valley Improvement Ass'n

MEREDITH, Judge. Appellant, Seminary Galleria, LLC (“Seminary”), owns a commercial property used for retail and offices. The property is located in Baltimore County, and is split-zoned, with most of the property located in the “Business Local” zone and the rest in a “Density Residential” zone. In 2003, without seeking prior approval from the County, Seminary reconfigured four of the existing parallel parking spaces that were located in the residentially zoned portion of the property, and created 14 new parking spaces in their place.

The net effect was that Seminary gained ten additional spaces upon the portion of the property that was zoned Density Residential. After a complaint to the County was lodged by, among others, Dulaney Valley Improvement Association, Inc. (“DVIA”), one of the appellees, Seminary attempted to obtain retroactive approval of the parking spots, but its first application for a special hearing or a variance was denied by the Zoning Commissioner. Following de novo review by the Board of Appeals of Baltimore County (“the Board”), the Board issued an order denying Seminary’s requests for retroactive approval of the new parking spots on September 19, 2005. ⁷²² Just five months later, on February 28, 2006, Seminary again filed petitions for approval of the ten new parking spaces, arguing this time that the additional spaces were needed to help it meet the County’s parking requirements as amended in 1986. By the time the 2006 petitions came before the Board, the Board was composed of new members, and the Board approved Seminary’s request to keep the new parking configuration on the property in the Density Residential zone.

DVIA and the People’s Counsel for Baltimore County, the second appellee, petitioned for judicial review in the Circuit Court for Baltimore County. The Circuit Court for Baltimore County agreed with the appellees’ contention that approval of Seminary’s second petition was precluded by res judicata. The circuit court reversed the Board. In its appeal to this Court, Seminary challenges the circuit court’s determination.

QUESTIONS PRESENTED Seminary presents four questions: 1. Whether an administrative agency’s determination of the applicability of the doctrine of res judicata should be assessed pursuant to the substantial evidence standard of review when such determination constitutes a mixed question of law and fact[.] 2. Whether an assessment of the causes of action in the current and prior proceedings pursuant to a same evidence analysis establishes that the doctrine of res judicata does not preclude the relief granted by the Board[.] 3. Whether the substantial change of circumstances in this case establishes that the doctrine of res judicata does not preclude the relief granted by the Board[.] 4.

Should the lower court have remanded the case to the Board for consideration of the alternative, Variance [sic] relief requested[.] We answer “no” to questions 2, 3 and 4. With respect to question 1, we reject the appellant’s implied assertion that the agency was required to resolve any disputed factual issue in ⁷²³ this case in order to determine whether the doctrine of res judicata was applicable. Consequently, the appropriate standard of review in this appeal is de novo. We affirm the judgment of the Circuit Court for Baltimore County.

FACTS AND PROCEDURAL HISTORY Seminary owns the subject property, the “Galleria” building complex, comprised of 211,685 square feet of space leased primarily for offices, with retail stores on the ground level. The complex is located at the intersection of York Road (a major four-lane arterial road) and Seminary Avenue (a smaller two-lane road). The majority of the property is zoned as “Business Local” or “BL” and the balance of the property is “Density Residential” or “DR.” The DR zone functions as a transition or buffer zone between the commercial buildings and the residences (mostly single-family) located across the street and in the nearby area. Pursuant to a use permit granted in 1955, parking for the Galleria complex is located in both the BL and DR zones.

In 1983, the County Review Group (“CRG”) approved the layout of the parking for the complex as meeting the requirements of Baltimore County Zoning Regulation (“BCZR”) § 409.6, which required, based on the complex’s planned uses, 728 parking spaces. The Galleria parking lots provided 734 parking spaces. There are certain parts of the parking lots which are available to, but not close to, the busiest areas of the complex. Consequently, the prime parking area is crowded, while certain less-convenient areas of the Galleria parking lots often remain empty.

In 2003, over a holiday weekend, Seminary’s parking lot contractor reconfigured four parallel parking spaces into 10 head-in parking spaces, and then added four new parking spaces and a low retaining wall. The additional spaces were created in a location where there had previously been grassy space that was zoned DR. Seminary did not obtain a permit or seek to amend the 1983 CRG-approved plan before making ⁷²⁴ these additions and modifications. Nevertheless, Seminary-sought retroactive approval and attempted to legitimize the 14 newly created spaces.

A. Seminary Galleria I. On July 31, 2003, Seminary submitted a redlined version of the 1983 plan, and petitioned for both a special hearing and a variance to allow commercial parking adjacent to existing commercial parking in a residential zone. 1 See BCZR § 409.8.B. A hearing was held before the Deputy Zoning Commissioner for Baltimore County, who denied both petitions on October 2,2003. On July 1, 2004, Seminary filed an appeal to the Board, which heard the matter de novo, and denied Seminary’s requested relief. The Board found that the additional spaces were being proposed for convenience only, and that the additional parking “might be ‘detrimental to the health, safety, or general welfare of the public.’ ” Seminary sought judicial review in the circuit court. On April 21, 2005, the circuit court issued an order stating that substantial evidence supported the Board’s decision.

But, because the Board’s explanation of its analysis was not sufficiently detailed, the circuit court remanded the matter to the Board for more specific factual and legal analysis. On September 19, 2005, the Board issued a Supplemental Opinion, denying Seminary’s request to keep the 14 spaces it had constructed without a permit in 2003. The Board noted that Bruce Doak, a surveyor testifying as an expert -witness for Seminary, had testified that 728 spaces were required by the BCZR and that 734 had been approved. Approval of the additional spaces would result in 748 parking spaces.

The Board held that, “based upon the testimony of the Petitioner’s ⁷²⁵ own witnesses, the special hearing for commercial parking in a residential zone must be denied.” Noting that “Petitioner’s witness admitted that it satisfied the zoning regulations regarding parking on the site,” the Board found “there is no ‘undue hardship’ and the modified parking plan is not available.” There was therefore no need for a modification under BCZR § 409.8.B in order to satisfy legal requirements, nor was there “undue hardship” to justify a modification under BCZR § 409.12.B. Moreover, the Board held that the petition did not satisfy the special exception criteria under BCZR § 502.1, which sets out nine conjunctive conditions for a special use permit. One of these conditions requires that “the use for which the special exception is granted will not ... [b]e detrimental to the health, safety, or general welfare of the locality involved.” BCZR § 502.1.A. The Board stated in its Opinion: In describing special exception uses, the BCZR states that “certain types of uses ... might cause unsatisfactory results of one kind or another ... and under certain conditions they could be detrimental to the health, safety, or general welfare of the public.... ” The citizens testifying before the Board explained the detrimental effects of [Seminary’s] request under the criteria set forth in § 502.1. It is basically offensive to the neighbors because (1) they are located in the D.R. 5.5 zone; (2) they extend the commercial use into the buffer area, closing in on a settled residential neighborhood; and (3) they interfere[ ] with a designated fire lane. Mr. Flesher, a neighbor living across the street, stated that [Seminary] dumps plowed snow onto his property when it runs out of space on its site.

He felt that this situation would be exacerbated if the present open spaces were converted to parking spaces. He has experienced car alarms, noise and trash from parked vehicles on the site and such disturbing activity will actually be closer to his home if the 14 additional spaces are allowed. In addition, he stated that tenants from the site have picnicked on his yard and that the hours of operation for these tenants have been extended over the years, some of them open 24 hours a day, ⁷²⁶ such as the subway [sic] operation and health club. The HMO is open Saturdays and Sundays broadening the commercial aspect of the residential uses.

Richard Hurd, another neighbor across the street, also testified that the illegal parking spaces are occupied at 7:30 a.m. by tenants even when the rest of the lot is empty. Mr. Hurd disputes the need for additional parking since he has never seen all of the parking spaces occupied. Mr. Hurd explained that [Seminary] also dumped snow on his side of the street and on his property when there was no room in the open spaces. He fears that the problem will be exacerbated if the open spaces are further lost to parking spaces.

While it is true that the Fire Marshall’s Office had no comment with respect to the additional 14 parking spaces which were constructed in the fire lane, the Board is of the opinion that the use of the fire lane for additional parking is detrimental to the health, safety, and welfare of the general public. The 14 spaces displace the original grass and planting area in the D.R. 5.5 zone. The neighbors have testified as to the adverse effects of the unauthorized parking spaces. The Board finds that the construction of these spaces without the proper authorization is detrimental to the health, safety, and welfare of the neighborhood.

Therefore, it does not satisfy the requirements of § 502.1 of the BCZR and the plan should be denied. (Emphasis added.) No appeal or request for judicial review followed. Therefore, the Board’s order dated September 19, 2005, became final. We shall follow the lead of appellee People’s Counsel for Baltimore County and refer to this first case as Seminary Galleria I. B. Seminary Galleria II.

On February 23, 2006, the present case, which we shall refer to as Seminary Galleria II, began with similar petitions requesting a special hearing for business parking in a residen ⁷²⁷ tial zone, a modified parking plan, and an alternative petition for variance. Seminary differentiated the 2006 petitions from the previously-denied 2003 petitions by limiting the requests to just the 14 spaces which it had constructed without a permit in 2003. Seminary also reframed its classification of the Galleria complex under the zoning regulations, contending that the complex was a “shopping center” based on its tenant mix. Under BCZR § 409.6.A.2, a “shopping center” with 100,000 feet or more of gross leasable area is required to provide 5 spaces per 1,000 feet.

Seminary introduced a letter from a Zoning Supervisor at the Baltimore County Department of Permits and Development Management (“BCDPDM”) stating that “it is the determination of this Office that the Seminary Galleria is a ‘shopping center’ as defined by the Baltimore County Zoning Regulations.” Seminary argued that, under this “shopping center” classification, Seminary was required to provide more parking spaces than existed on the site. Seminary sought approval of its as-built plan, including the 14 parking spaces constructed without a permit, “to meet to the extent possible the minimum parking requirements of BCZR § 409.6 utilizing all existing parking spaces shown,” in lieu of complying with the minimum requirements of the BCZR for shopping centers. The petition for variance sought, in the alternative, “a variance from[ ] BCZR § § 409.6.A to permit a total of 746 parking spaces in lieu of: i) the 1059 spaces required [w/o shopping center provision] or ii) the 1084 spaces required for a shopping center with more than 100,000 square feet of GLA.” 2 Seminary now represented that the Galleria’s existing parking capacity was deficient by approximately 300 spaces, as a consequence of which Seminary requested approval of the 14 spaces to partially offset that deficit. DVIA filed a motion to dismiss the 2006 petitions, contending that Seminary’s claims for relief were barred by res ⁷²⁸ judicata.

On July 14, 2006, the Zoning Commissioner denied the motion to dismiss, stating: “The first case involved 14 additional parking spaces in the adjacent residential zone. This case makes that issue insignificant. In this case the Petitioner admits to being short 300 spaces. Therefore I will deny the Motion.” Even so, the Commissioner noted in his Findings of Fact and Conclusions of Law: “I see nothing different in request for [sic] the 14 highlighted spaces on [Seminary’s] exhibit 1 from that which was denied in Case No. 04-052-A [Seminary Galleria I].” The Commissioner further found that the Galleria did not come under the zoning definition of a shopping center because “[t]he buildings are not connected, the walkways are not intended to facilitate customer interchange between uses, and the site does not give the appearance of a continuous commercial area.” The Commissioner recognized that the present actual tenant mix required 1084 parking spaces even though the approved site plan was based on a projected tenant mix requiring much less parking.

Nevertheless, the Commissioner found that the parking deficit problem was “wholly self imposed” by the management of the Galleria because “the mix of tenants is completely determined by management who undoubtedly wants to maximize return on investment” but did so by willfully entering into leases that required parking capacity that exceeded the total number of spaces available under the site plan. According to the Commissioner, Seminary (as of 2006) is “presently required to have 643[sic] spaces and more importantly to have a mix of tenants that corresponds to this parking.” “The Petitioner created every bit of this problem by not controlling tenant mix.” Finding that Seminary’s willful creation of the excess burden on the parking lot did not fall into any exception warranting approval, the Commissioner denied the variance requests. Nevertheless, the Commissioner approved the special hearing and modified parking plan (minus the 14 spots) with the additional condition that Seminary not lease vacant space in the building until the tenant mix adjusted and required no more than 1049 spaces. After commenting that Seminary “incredibly asks [the County] to approve a parking plan with ⁷²⁹ the 14 spaces previously denied in Case 04-052-SPH,” the Commissioner ordered: “The Petitioner shall eliminate the 14 parking spaces shown in Petitioner’s exhibit 1 highlighted in yellow....” Both Seminary and the appellees appealed to the Board of Appeals.

On March 20 and 21, 2007, the Board — now composed of totally different members than those who heard the Seminary Galleria I appeal — held a de novo hearing. The same survey- or who testified for Seminary in support of the 2003 application stated that the new calculations were made in response to updated tenant information; he offered his professional opinion that the complex was a shopping center and the petitions should be approved. Nevertheless, the surveyor admitted that neither he nor his firm performed any analysis of the tenant mix and square footage of the Galleria in connection with his 2003 testimony, nor had he verified the tenancy information he was given in 2003. Seminary also introduced a letter from the BCDPDM requiring the Galleria to comply with a newly enacted law that required surveillance cameras for shopping centers; Seminary argued that this letter demonstrated the County’s acknowledgment that the Galleria was a shopping center.

A witness called by DVIA testified that removal of the 14 spaces and restoration of the original plan was preferable, even if it resulted in the loss of the ten new parking spaces. DVIA’s main concern was minimizing or removing the disturbance of the DR-zoned area. A resident of a nearby home also testified about lights of tenants shining into his windows, and expressed his concerns about the decrease in value of his home, both as a result of the removal of vegetation and the addition of parking spaces on the Galleria site. On February 11, 2008, the Board issued an order in which it approved both the classification of the Galleria as a shopping center and the amended parking plan.

With respect to the appellees’ assertion that Seminary’s claim was barred by res judicata, the Board simply stated: ⁷³⁰ This Board feels that the matter of res judicata does not apply due to the specific nature of the 14 parking spaces and the matter of parking in the D.R. zone, which this Board feels is permitted. We find this case not to be another attempt to repeat prior cases. After a review of the facts, the testimony and evidence submitted, and the law, this Board finds that the issue of res judicata does not apply in this case.... Both DVIA and the People’s Counsel for Baltimore County filed petitions for judicial review in the Circuit Court for Baltimore County.

Because both petitions involved the same record and Board opinion, on the motion of the People’s Counsel, the circuit court consolidated the cases. On September 4, 2008, the circuit court heard oral arguments. Appellees again argued res judicata* and Seminary again claimed that a newly-discovered parking deficiency justified approval of the additional parking spaces. On December 17, 2008, the circuit court issued its opinion and order reversing the Board’s 2008 decision.

The circuit court stated: “The real question presented in this appeal is whether this ‘short fall’ was known, or knowable by Seminary Galleria before the first case was decided.” The court ruled as follows: It is well settled that the principle of res judicata applies to administrative proceedings. [Citations omitted.] Accordingly, if the issues sought to be litigated in Seminary Galleria II either were litigated in Seminary Galleria I, or “with propriety could have been litigated” in Seminary [Galleria] I, prosecution of relief in Seminary Galleria II is barred. The parties were identical in each matter. The property involved was identical in each matter. Approval of the identical ten (10) [net additional] parking spaces was the issue in each matter.

Substantially the same witnesses testified for the same parties in each matter. And importantly, there was absolutely no change in the facts be ⁷³¹ tween the date of the Board’s decision in Seminary Galleria I and the hearing in Seminary Galleria II relating to the Board’s finding in the first matter that construction of additional spaces “is detrimental to the health, safety and welfare of the neighborhood.” Presumptively, therefore, the doctrine of res judicata would seem to preclude the second litigation between these parties over these same ten (10) parking spaces. Seminary Galleria’s argument, however, is that the “facts and circumstances have changed since the prior cases” [citation omitted], and that, therefore, the second litigation over these parking spaces was permitted. It argues that, at some point (exactly when or under what circumstances is not made clear in the record) Baltimore County required it to “file for review and approval a current as-built parking plan” [citation omitted] and that, after it did so, it discovered that it was actually required by zoning regulations to furnish over 1,000 parking spaces, as opposed to the 728 spaces which it had argued it was required to furnish by the County’s zoning regulations in Seminary Galleria I. In effect, Seminary Galleria argues that it was compelled to file Seminary Galleria II as a defensive measure against a claim that it was not in compliance with minimum parking requirements which are calculated when the retail-office property is considered a “shopping center.” The short, and final answer to Seminary Galleria’s argument is that all facts necessary to make the parking deficiency argument that it made in Seminary Galleria II were available to Seminary Galleria when it filed, litigated and lost Seminary Galleria I. There is no evidence in the record that either the tenant mix at the property or its character as a “shopping center” substantially changed between September [19], 2005 [the date the Board issued its final ruling in Seminary Galleria I] and February 23, 2006 [the date Seminary filed the current petitions] to justify the filing of new litigation.

Rather, it is clear that, had Seminary Galleria’s witnesses been asked in the earlier case to perform the calculations and do the other ⁷³² work which they ultimately did in the latter case, the theory of minimum parking requirements based on a new tenant mix and/or characterization of the property as a “shopping center” could have been advanced in the first case. Mr. Doak testified in the second case as follows: Q. Did