Judge rules the controversial Overlook at Roland Park apartment project can’t be built

A controversial apartment project planned for North Roland Park will not be able to move to the construction phase, after a Baltimore Circuit Court judge ruled that Mayor Catherine Pugh and the Baltimore City Council improperly approved the project in 2017.

The Overlook at Roland Park, a $40 million, 148-unit apartment building planned for a 12-acre site near Falls Road and Northern Parkway, is the development that can’t be built as planned by developer Jonathan Ehrenfeld of Blue Ocean Realty LLC.

On Friday, Judge Lawrence Fletcher-Hill issued an opinion that calls for the City Council legislation that authorized the project to be “vacated” and sent back to the City Council for consideration “in the correct comparative context.”

“The Court…concludes that the City Council erred as a matter of law, based on the erroneous recommendations of the City Law Department and the Planning Department, in assessing the [Planned Unit Development] application,” Fletcher-Hill stated in a 117-page ruling.

“Because of this error of law fundamentally affecting the nature of the City Council’s action, the [Planned Unit Development] approval must be vacated.”

The ruling is a victory for three citizens’ groups that each filed suit to block construction of the project after the City Council passed legislation to permit it as a Planned Unit Development (PUD). The three lawsuits were later consolidated into one case that was heard on January 29, 2018.

Hunter Cochrane, a Baltimore businessman and neighboring homeowner who brought the first suit along with his wife Margaret, said he was pleased and surprised by the judge’s decision.

“Amazing outcome and wonderful Christmas present,” he said in an email.

Cochrane, whose residence abuts the proposed development site, said Sunday that he had not had a chance to talk to his lawyer about the ramifications of the judge’s decision.

“It seems to be a positive step for the neighborhood” and “we feel good about that,” he said.

Cochrane said that he didn’t think the judge would block the project, given that Baltimore’s government has a history of being pro-development in allowing new construction over the objections of neighborhood residents and the courts typically side with the city.

“I think we were all surprised with the outcome,” he said. “I think the legal thinking around town is that it was unlikely that we would prevail against the city on something like this.”

Cochrane said he felt his community never got a fair hearing from the City Council under then-Council President Bernard C. “Jack” Young, who is now the mayor. “We were very frustrated about not being able to get an audience” with the city.

“The irony is that the whole Northern Parkway exposure borders on the Roland Park neighborhood, and the city never even got input from the Roland Park Civic League. They weren’t aware of it until I brought it up. It clearly affected them a great deal.”

He said he sees the ruling as a sign that citizens’ groups can sometimes beat City Hall, if they work together and make a strong enough legal case.

“I think ultimately it’s going to be very good for the neighborhoods to bond together on additional issues that will come up over time and to realize that we can have a say and not feel steamrolled,” he said. “They are our neighborhoods, and these representatives are there to represent us.”

Ehrenfeld could not be reached for comment.

The project in question is a six-story apartment building that would have been about 80 feet high. It would have been constructed west of The Falls at Roland Park, formerly known as Belvedere Towers, a 10-story apartment building near Northern Parkway and Falls Road.

An affiliate of Blue Ocean acquired The Falls property in 2016 and subsequently negotiated a contract to purchase a wooded, 12-acre site east of The Falls for development.

Blue Ocean initially sought approval of PUD legislation allowing it to build a 132-unit apartment building on six acres of the 12-acre parcel, leaving the other six acres undeveloped.

Blue Ocean later revised its plans to build 148 apartments and 264 parking spaces under the PUD process, and received approval from the City Council in late 2017, after following the city planning department’s design review procedures.

The plans drew opposition from Cochrane and other property owners who lived near the development parcel. They formed a campaign called Stop the PUD and at one point rented space at The Village of Cross Keys for a community meeting where neighbors could voice opinions about the project, pro and con.

Opponents said the six-story building would be an eyesore that would add to traffic congestion at the intersection of Falls Road and Northern Parkway, displace woodlands, block views and cause property values to fall. They argued that its height should be no more than 35 feet, not 80 feet.

Advocates for the project said it would fill a need for large upscale apartments in North Roland Park, for empty nesters and professionals who wanted to live in the area. They said the completed project would add to the city’s tax base and would bring new residents to the city. City planners argued that the project was consistent with the city’s master plan, including its goal of “returning vacant properties to productive use.”

In addition to Hunter and Margaret Cochrane, other parties that petitioned the court to block the City Council’s approval of a PUD for the Overlook project were a group that included the Lehr Stream Neighborhood Association and the Roland Park Civic League, and a group that included property owners Kathy Hudson and Phil Spevak.

A key to the opponents’ arguments was the city’s TransForm Baltimore rezoning legislation, a revised citywide zoning code that was written to control development in the city and went into effect on June 5, 2017.

Under the old code, part of the 12-acre site was zoned R-6, a category that would have permitted an 80-foot-high building, while the other six acres were zoned R-1, a category that permitted less density and lower heights. Under the TransForm code, construction of the entire parcel was limited to 35 feet in height.

The developer argued that it submitted its PUD application before the new code was adopted and should be allowed to build up to 80 feet on half the site. The opponents argued that the developers weren’t far enough in the application process and the TransForm code should dictate the height of any new buildings on the site.

The judge ruled that the PUD application was not the determining factor. He acknowledged the Blue Ocean applied for the PUD before TransForm took effect and he noted that the PUD application was approved after the June 5 transition period.

But he said the application that mattered in this case was a more-detailed building permit application, not a PUD application, and he found that the developer did not submit a complete building permit application before the TransForm code took effect.

As a result, he said, the City Council should have been evaluating the project based on the TransForm requirement for a 35-foot height limit on the entire site, not the old code that permitted a building to rise 80 feet on part of the site.

“A PUD application is not a building permit application,” he wrote. “The Court concludes that the developer’s right to erect a structure based on the former zoning code parameters expired on June 5, 2017 because the developer did not have a complete building permit for the property pending on that critical date.”

This “extinguished the Developer’s right to build an eighty-foot structure,” he wrote.

In his ruling, the judge also questioned several actions by the council’s Land Use and Transportation Committee, in terms of giving community residents a fair hearing. He said the committee’s “findings of fact” statement was incomplete because it contained mostly “boiler plate” language that applies to all PUD applications, and did not contain specifics pertaining to Blue Ocean’s application.

He also questioned the council’s practice of “councilmanic courtesy,” in which council members representing other districts defer to the wishes of the council member representing the district where the proposed PUD would be located.

That sort of deference is contrary to the notion of the council serving as a “quasi-judicial” body that makes decisions based on hearing testimony about the merits of a project, he said, not just following the wishes of a colleague. He noted that opponents of the project had pointed out that the developer had contributed to the election campaign of the councilman whose district included the project site, Isaac “Yitzy” Schleifer.

Fletcher-Hill also questioned the planning department’s argument that allowing construction of a 148-unit building is consistent with the city’s master plan.

Pointing to the planning department’s argument that the proposed building would be an example of “returning vacant properties to productive use,” the judge wrote that goal generally applies to vacant housing, not “raw land” that has never been developed.

Despite the judge’s ruling, Cochrane said he still has questions about what happens next.

“Where does it all fall now within TransForm Baltimore?” he asked. “I don’t know what it means relative to that. What zoning rules now apply?”

Cochrane said he had been negotiating to buy the 12-acre parcel before Blue Ocean negotiated a contract to buy it, and he is still interested in buying it. Asked what he would do with the land, he had a one-word answer: “Nothing.”