A Mississippi-based developer may move ahead with its plans to build a $25 million senior living facility in North Roland Park, according to a ruling from the Appellate Court of Maryland.
The court ruled this month that Baltimore’s zoning board acted properly in 2022 when it permitted Claiborne Senior Living of Hattiesburg, Mississippi, to construct a three-story building on a 12-acre wooded parcel near the intersection of Falls Road and Northern Parkway.
The ruling is a victory for Claiborne, which negotiated a contract in early 2021 to purchase the land and has been working since then to obtain the permits necessary to begin construction.
The project is The Claiborne at Roland Park, a 110-unit residential care facility for about 120 people, with a mix of assisted living and memory care apartments. The sloping construction site is just east of The Falls, a 10-story apartment building at 1190 West Northern Parkway.
The land sale to Claiborne is contingent on the developer’s ability to obtain approval for its project from the city’s Board of Municipal and Zoning Appeals. The zoning board has ruled in favor of the developer, but its ruling has been appealed in court by owners of neighboring property, Hunter and Margaret Cochrane. The developers have been waiting for the ruling from the appellate court and to find out whether the neighbors will file another appeal.
The portion of the 12-acre parcel that’s targeted for construction, about six acres, is zoned R-6, a category that permits residential construction up to 35 feet. The other six acres under contract are zoned R-1A, and Claiborne has agreed to leave them undeveloped.
According to the city’s zoning code, assisted living is considered a conditional use for an R-6 property and that requires additional approval from the zoning board, following a public hearing. The project that Claiborne wants to build cannot be constructed as of right in an R-6 zone.
Claiborne also sought approval to construct a building slightly taller than 35 feet, the maximum height allowed for the property. The height limit issue was subsequently rendered moot, Claiborne’s attorneys have argued, when Baltimore’s City Council passed an ordinance that changed the way the city measures a building’s height, but the appellate court still considered it.
The zoning board held a six-hour hearing on the case on Aug. 24, 2022 and a follow-up meeting for deliberations but no public testimony on Oct. 11, 2022. After deliberating, the board approved Claiborne’s application to build its facility as a conditional use for the property, and it agreed to waive the height limit.
The zoning board’s decision was initially appealed in the Circuit Court for Baltimore City by the Cochranes, the neighboring property owners. Their attorney, J. Carroll Holzer, argued that the board’s ruling was flawed and should not stand. Circuit Court Judge Gregory Sampson held a 90-minute hearing in June of 2023 and upheld the zoning board’s decision.
The Cochranes then filed an appeal with the Appellate Court, which held a hearing in Annapolis on March 5 and issued its ruling this month. Holzer and the Cochranes did not respond to requests for comment about the appellate court’s ruling.
Three issues
The Appellate Court of Maryland, formerly known as the Court of Special Appeals, is Maryland’s intermediate appellate court. It considers appeals of cases that originate in a circuit court or an orphan’s court in Maryland. The state’s highest appellate court is the Supreme Court of Maryland.
The three judges who heard the Claiborne case were Kathryn Grill Graeff, Stuart Berger and Anne Albright, and Berger wrote the 32-page opinion. Gregory Wells is the Chief Judge.
In their appeal, the Cochranes and Holzer raised three issues: Whether the zoning board erred in approving Claiborne’s application because it was not filed by the title owner of the property or an authorized agent of the owner; whether the board erred in approving the proposed conditional use, and whether the board erred in approving a height variance for the proposed project. In each issue, the court upheld the zoning board’s decision.
With regard to the question about who signed the application, the court found that the original application was signed by Alfred W. Barry, III, a representative of the current property owner, Blue Ocean. The judges determined that Barry was an authorized agent of the owner and met the zoning board’s criteria. The board “was entitled to rely on Mr. Barry’s representation that he was acting with the approval of the owner,” the opinion states.
With regard to the question about whether the board erred in approving the proposed conditional use, Holzer listed a number of reasons why he contends the board should not have approved the project. Among them: that signage giving notice of the August 2023 hearing did not include the words “conditional use” and that an adjacent property, The Falls, was not included in the application. He also raised questions about the extent of “urban forest removal’ proposed to make way for the facility; provisions for site drainage and access by emergency vehicles, and compliance with the Americans with Disabilities Act (ADA). The judges said they were not persuaded by his arguments, based on the evidence presented at the six-hour hearing.
“[O]ur review of the record leads us to conclude that the Board’s approval of the conditional use was supported by substantial evidence,” the opinion reads in part. The zoning board “specifically found: [T]he requested residential-care facility conditional use is not detrimental to, nor does it endanger the public health, safety or welfare. There is ‘no urban renewal plan that affects this property.’ The requested residential-care facility conditional use is not contrary to the public interest and serves a vital need for senior housing in Baltimore City. The requested conditional use is in harmony with the purpose and intent of the Code by expanding housing choices for seniors.”
As a result, “We disagree with the Appellants’ assertion that the Board’s findings are unsupported or merely boilerplate recitations,” the opinion states. “The Board’s findings were made after careful consideration of the evidence presented and substantial evidence supports each finding…Our review of the [zoning board’s] Resolution and hearing transcript leads us to conclude that the Board considered the applicable factors prior to determining that the proposed residential-care facility was appropriate for the location for which it was proposed.”
‘Tremendous amount of open space’
Addressing the Cochranes’ concerns about loss of trees and other vegetation and wildlife if the project is built, the judges pointed to testimony that half of the site will remain undeveloped.
In its ruling, the zoning board “found that a residential-care facility use is appropriate considering the nature of the surrounding residential area,” the opinion states. “Neighbors may continue to enjoy the dense vegetation north, east, and south of the proposed structure, and the establishment of a residential-care facility will have no impact on the existing commercial uses in the area. As Mr. Barry testified, the Proposed Development ‘preserves a tremendous amount of open space on the property.’ No future or current development will be impaired by the conditional use.”
Addressing questions about parking and emergency access, the judges noted that the zoning board heard testimony that the “proposed development will provide 48 off-street parking spaces, which is sufficient to meet the zoning requirements and to provide adequate parking for the ‘30 employees on the peak shift[.]’ “ In addition, the zoning board “found that there is adequate access for emergency vehicles,” as confirmed by the city’s Site Plan Review Committee.
With respect to ADA accessibility, “the Appellants emphasize that pedestrian access to the Property itself is not ADA accessible because the Property is located at the top of a hill and the sidewalk along Northern Parkway is steep,” the opinion stated. “They assert that the absence of accessible pedestrian access to the site of the proposed residential-care facility indicates that the Project is detrimental to and/or endangers public health, safety, and welfare…We reject the Appellants’ assertion that the fact that the Property itself is not ADA accessible or easily accessible by pedestrians renders the Project detrimental to public health, safety, and welfare.”
While they reject the appellants’ assertion that the zoning board’s findings were “merely boilerplate recitations,” the judges said, “we note that the Board could have included more detail or explained its reasoning more fully, although it was not specifically required to do so.”
Height variance
With regard to the question about whether the board erred in approving the height variance, Claiborne argued that the issue was moot because the city has changed its methodology for calculating building height and as a result, a height variance in this case is no longer necessary.
The change, enacted after the zoning application was submitted, is that heights from now on will be measured from the ground to the top of the building, instead of from the closest public street or sidewalk to the top of the building. The closest sidewalk to Claiborne’s site is along Northern Parkway, more than 10 feet below the land targeted for construction, and the previous method of calculation put the height figure over the 35-foot limit.
The judges addressed the issue anyway and affirmed the zoning board’s decision.
According to the city’s zoning code, their opinion stated, “A variance will be permitted if the uniqueness of the property would cause unnecessary hardship or practical difficulty if held to a strict application of the Zoning Code as written.”
The zoning board “determined that the height variance should be granted for several reasons, including that ‘physical surroundings and topographical conditions of the land…make any development on the proposed site difficult to carry out in strict compliance with the Code’ due to the sharp rise in elevation,” the judges noted.
In addition, the judges said, “The Board noted ‘that the hardship in developing the proposed site is not due to any desire to increase the value of the property or the value of the development in that the increase in height of the building would be a ‘benign’ increase in total residential units overall. The Board further ‘found that the variance will have negligible impact on the use and enjoyment of other property in the immediate vicinity, as the proposed structure is located at a significantly lower elevation than…nearly all other nearby homes, and, as a result, can barely be seen from most adjacent properties.”
A Claiborne representative said in an email message on Tuesday that the company is eager to move ahead with the Roland Park project, which would be its first in Maryland.
“We are very pleased with the decision of the Appellate Court of Maryland,” said Matt Grenfell, General Counsel for VH Companies, the parent of Claiborne Senior Living.
“Mr. Holzer and the Cochranes still have the opportunity to appeal to the Supreme Court after the mandate is issued so we have not yet reached the end. We are eager to re-engage with the City to get final approvals and with our construction partners on final pricing. Construction will commence as soon as we are able. This is a much-needed project for the City of Baltimore and we are excited about the prospects of moving forward.”
Editor’s note: This article has been updated with a statement from a Claiborne representative.
