North Baltimore residents will have to wait a little longer to find out if the proposed Claiborne at Roland Park senior housing project can get built.
Baltimore’s zoning board, which was expected to make a key ruling on the project at a public hearing this week, instead put off making any decisions at its meeting, with acting executive director Kathleen Byrne announcing that members asked for more time to deliberate.
The hearing was scheduled because the City of Baltimore was sued last year for approving plans for a three-story residential care facility for about 120 residents on 12 acres near the intersection of Falls Road and Northern Parkway, with a mix of assisted living and memory care apartments. That approval came after area residents challenged a different developer’s plans to build an even larger project, a $40 million, 148-unit, six-level apartment building called The Overlook at Roland Park, on the site.
The most recent suit was filed in the Circuit Court for Baltimore City by two homeowners, Margaret and Hunter Cochrane, who live near the proposed development site. They argued that the zoning board acted improperly in approving the $25 million assisted living project proposed by Claiborne Senior Living of Hattiesburg, Mississippi.
Claiborne had negotiated a contract to purchase the land from Blue Ocean after its Overlook project drew opposition. The sloping site is directly east of the Falls at Roland Park apartment building at 1190 West Northern Parkway. The assisted living project would be Claiborne’ s first in Maryland. A purchase price has not been disclosed.
When Claiborne emerged as a developer for the 12-acre parcel in early 2021, its timetable called for construction to begin in early 2022 and be complete in the second quarter of 2023. But in order to proceed with its project, Claiborne needed two approvals from the zoning board: a height variance that would allow its building to rise to 44 feet, and a conditional use variance, allowing a residential care facility with assisted living units.
At a meeting on July 13, 2021, the zoning board voted 4 to 0 to approve both the height variance and the proposed use, seemingly clearing the way for Claiborne’s project to proceed. Without a variance, any building on the site would be limited to a height of 35 feet, under existing zoning regulations.
But the Cochranes appealed the zoning board’s decision in the Circuit Court for Baltimore City, putting Claiborne’s project on hold until a judge ruled. After a hearing on April 13, 2022, Judge Anthony Vittoria sided with the Cochranes and their attorney, J. Carroll Holzer, saying he agreed that the city’s Board of Municipal and Zoning Appeals (BMZA) failed to follow its own procedures in arriving at its decision.
“Clearly there are some issues going on with the BMZA and the procedures that it employs,” Vittoria said at the hearing. “The BMZA needs to do this correctly, and the court has serious concerns about how the BMZA is conducting its procedures.”
In court filings and a 90-minute hearing on April 13, Holzer had argued that the zoning board had previously acted improperly by: allowing an advocate for the project, planning consultant Al Barry, to also testify in its hearing and give opinions as an expert witness; not applying the correct methodology for measuring the proposed building’s height; ruling on an application with “no evidence of deliberation”; and not supporting its ruling with a statement of findings of fact and conclusions of law, among other actions.
Holzer also argued that the zoning board lacks jurisdiction to approve a height variance, partly because a residential care facility is “expressly ineligible” for a height variance under the city’s zoning code, and partly because other legislation is pending before the City Council – a Planned Unit Development ordinance — that could affect the height of any building on the proposed development site.
The city’s attorney, Assistant City Solicitor Adam Levine, conceded that the zoning board allowed Barry to appear “in two capacities,” as a moderator organizing the developer’s presentation and as an expert witness giving his opinions about how the proposed residential care facility would fit in with the character of the neighborhood.
Levine also acknowledged that the developers did not submit certain information required to process their application but the zoning board held a hearing and took action anyway. The missing document at issue was a “statement of justification” explaining how the developer satisfied the city’s standards for a variance.
The developer’s submission “does not include an explanation as to how the developer satisfies the standards for variance,” Levine said. “If that is indeed a requirement, then it was not there. You are correct.”
“It is a requirement, isn’t it?” the judge asked.
Levine suggested the requirement could be met during a public meeting with the board.
“That’s what the hearing is for,” he said.
“That’s probably where you and I disagree,” Vittoria said. “I don’t understand what the point of rules are, if they’re not to be followed.”
Vittoria said materials requested from applicants in order to schedule a hearing are not just for the zoning board but also the general public.
“It is for the benefit of the BMZA, but it’s also for the benefit of the public,” he said. “This is a situation where the public needs to be informed. It needs to know what’s going on. It needs to know what the issues are and how the developer plans to handle them.”
‘The BMZA erred’
Ultimately, Vittoria ruled in favor of the Cochranes and remanded the case to the zoning board for a new hearing. It was at least the fourth time in two years that a Circuit Court judge has sided with community residents who appealed a pro-developer decision by a city panel.
It also meant that Claiborne officials still didn’t know if they could move ahead with their project, more than a year after they first stepped up to buy the land from Blue Ocean. Because the land sale was contingent on Claiborne’s ability to get approval to build its project, Blue Ocean has retained ownership of the land during the court proceedings.
During the hearing, Vittoria voiced criticism of the zoning board and the way it does business.
“The procedures and the techniques and what the BMZA is doing is highly troubling to this judge of the Circuit Court,” he said. “These are not things that should be happening…. The BMZA must follow its own rules”
Vittoria focused on the city attorney’s admission that the board held a hearing even though the applicant didn’t submit all the materials required to schedule a hearing, he said.
“The more information that is required in an application, the better informed the public is or would be,” he said. “Indeed, if the public saw a buttoned-up application that addresses all of the possible issues, it would be less likely that there would be controversy such as what we have here today.
“Accordingly, the court finds that the BMZA erred as a matter of law in not requiring a statement that its own rules state is required…. I am going to order a new hearing because there needs to be a new application…. Whatever resolution that the BMZA comes to needs to have express findings of facts and conclusions of law.”
Back to the zoning board
Tuesday was the first time the project appeared on the zoning board’s docket since the judge’s ruling in April. According to its agenda, the case was put on the “preliminary motion docket” because the zoning board was asked to address three preliminary motions filed by Holzer before setting a date for a full hearing as ordered by the judge.
For half an hour on Tuesday, the zoning board members heard arguments from two lawyers, Holzer representing the Cochranes and Elliott Engel representing CR Properties LLC, the Claiborne affiliate that wants to move ahead with development.
In his appearance before the zoning board, Holzer argued that the developers did not provide sufficient evidence or drawings to support their application for a height waiver and that the zoning board did not have jurisdiction to grant a height variance for a residential care facility.
Without sufficient information to consider, Holzer said in his preliminary motion, the developer’s application cannot be processed. “Under the circumstances,” he argued in his filing, “the application is not ripe for consideration and may not be scheduled for a hearing.”
Holzer also contended that the zoning board violated the Open Meetings Act on May 10, 2022, when it closed a meeting to discuss “legal advice from Adam Levine regarding a recent remand from Circuit Court,” which he took to mean the Claiborne case.
Engel asked the zoning board to disregard Holzer’s motions. He contended that Vittoria did not accept many of the arguments that Holzer said he did, and he said his clients have satisfied the court by submitting a “seven-page, single-spaced Statement of Justification, very detailed and backed up with specific site plans and all the relevant information” needed to support its application for variances.
Engel disputed Holzer’s contention that the zoning board has no jurisdiction to allow a 44-foot-tall building and he argued that the zoning board fully complied with the Open Meetings Act. “But even if there’s any argument that it didn’t,” he said, “we fail to understand what that’s got to do with the applicant. It provides absolutely no basis not to go forward with the hearing.”
Engel also argued there is no other legislation before City Council that could affect the height of any building on the proposed development site.
“We heard again about a PUD,” he said, referring to a Planned Unit Development ordinance drafted to dictate what could be built on the 12-acre site several years ago, before Claiborne emerged as a possible developer. The PUD would have allowed the Overlook project that Blue Ocean proposed before negotiating to sell the land to Claiborne.
“To be very clear, there is no PUD,” Engel said. “The PUD has been vacated. It has been vacated by the Circuit Court. It has been affirmed by the Court of Special Appeals…. There is no PUD.”
Holzer contends the PUD application drafted for Blue Ocean’s Overlook project was never dropped or withdrawn and his clients fear it could resurface if Claiborne backs out and doesn’t purchase the land. “The application for the PUD is still there,” he told Vittoria. He maintains that Blue Ocean could address his clients’ concerns by asking for the PUD application to be withdrawn from any future City Council consideration.
The back and forth set up a choice for the zoning board: If it rules in favor of Holzer’s motion to deny the building height variance request, the project couldn’t be built as designed and there would be no need for a full hearing. If it accepts Engel’s arguments to dismiss Holzer’s motions, the board would set a date for a hearing on the developer’s application.
Potentially complicating matters is the pending departure of Byrne, whose last day as acting executive director is July 29. A replacement has not been named. Rebecca Witt, assistant counsel to the board, will lead its next meeting.
Instead of deliberating right away and ruling on the arguments they heard on Tuesday, as they earlier indicated they would do, the board members took no action. Byrne said at the end of the lawyers’ arguments that they wanted to take more time to review documents and deliberate in a separate session. They set Aug. 2 as the date for those deliberations.
If the board members decide on Aug. 2 to dismiss Holzer’s motions, the case will be heard on Aug. 24, Byrne said. If they accept Holzer’s preliminary motion to deny the height variance request, no hearing would be scheduled.
In his remarks on Tuesday, Holzer urged the zoning board members to read the Circuit Court judge’s ruling and a transcript of what he said at the hearing in April.
“Sit down and read what the judge said about how this board failed to do its job the last time,” Holzer said. “This board needs to take what the judge said seriously.”
Holzer asked the zoning board members to base their decision on the “facts and evidence” of the case, not lawyers’ arguments or interpretations. He hinted that he is prepared to file another appeal with the Circuit Court if he feels such action is warranted.
Ultimately, “the Circuit Court will review who is correct in this argument, as it did the last time when it remanded the case,” he said. “I do not want to see this case get remanded again by your failure to comply with the law and do the things that you as sworn members of this board are supposed to do, and that is to inform yourself about what you see, what you believe and also to then apply it, instead of just simply affirming or approving something.”