One month after a Baltimore Circuit Court judge ruled the City Council erred in approving legislation to permit construction of the $40 million Overlook at Roland Park apartment project, the developer has appealed the decision to Maryland’s Court of Special Appeals.
An appeal also was filed by attorneys representing community residents who oppose the six-level, 148-unit development, proposed for a 12-acre site near Northern Parkway and Falls Road, and took the case to court in 2017. One of the attorneys said residents hope the higher court will address parts of the lawsuit the circuit court judge did not rule on.
Both appeals follow a Dec. 20 ruling from Circuit Court Judge Lawrence Fletcher-Hill ordering that the 2017 council vote to approve the project under the city’s Planned Unit Development (PUD) zoning process be vacated and sent back for reconsideration. The judge ruled that the applicable city code states that any buildings constructed on the North Roland Park parcel can be no taller than 35 feet, not the 89-foot height of the proposed Overlook building
“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 wrote in a 117-page ruling.
Neither party has to give reasons for filing an appeal in order to trigger the appeal process; their arguments will come later. For now, the appeals mean that no development on the site is likely to occur until the case is heard by the higher court, a process that could take nine months or more.
News of the developer’s appeal came this week in a message to community leaders from Jonathan Ehrenfeld, president and CEO of Blue Ocean Realty LLC, the company behind the Overlook at Roland Park project.
“On behalf of the ownership, we are taking several steps to protect and further the interests of the property,” Ehrenfeld wrote. “On Tuesday, January 22, my attorneys filed an appeal of the Court’s decision to the Court of Special Appeals. We have also filed an Appeal to the Board of Municipal and Zoning Appeals for a variance to the underlying R6 zoning, to increase the height limit under the new Zoning Code.”
Tuesday was Jan. 21, not Jan. 22. The deadline for appeals in the case was Jan. 21. According to Al Barry, a consultant working with the developer, Blue Ocean’s appeal was filed on the correct date.
In its appeal to the zoning board, Ehrenfeld wrote, Blue Ocean is seeking a variance that would allow a building to rise up to 89 feet, a height that he says “had been previously approved in the PUD” legislation sanctioned by the City Council.
The zoning board has not announced a hearing date for that appeal. Barry, of AB Associates, said in an email message that the zoning board variance, if approved, would allow the 89-foot height independent of the latest appeal, “since it is under the new Zoning Code.” He added that the development team will be meeting with community groups before any public hearing. “We just reached out to the neighborhood groups to begin a discussion.”
The Overlook at Roland Park was planned for construction directly east of The Falls at Roland Park, formerly known as Belvedere Towers, a 10-story building near Northern Parkway and Falls Road.
An affiliate of Blue Ocean acquired the Falls property in 2016 and later negotiated a contract to purchase the land east of it for additional development.
Ehrenfeld said in his message that he is available to meet with community leaders to discuss his recent actions as well the status of “previously agreed upon Restrictive Covenants” that were drafted to control what can be built on the property Blue Ocean wants to develop.
“We will be contacting you personally to follow up and discuss next steps,” he wrote.
While the Overlook project was in the community review phase, Blue Ocean entered into restrictive covenants with two neighborhood associations in which it agreed there would be no access to the proposed development from Cliffhurst Road and St. Georges Road, and that there would be no construction on half of the 12-acre development parcel.
The covenants were written to expire if work was not undertaken within a certain amount of time. Ehrenfeld stated in his message this week that the covenants “are now expired and no longer in effect” due to “the delay caused by the legal action brought against the PUD.”
Lawsuits challenging the Overlook project were originally filed by three separate parties and were later consolidated into one suit. The parties that brought the initial suits included the Lehr Stream Neighborhood Association, the Roland Park Civic League and property owners Hunter and Margaret Cochrane, Kathy Hudson and Phil Spevak. The case was heard in Circuit Court on Jan. 29, 2018 and Fletcher-Hill issued his ruling 23 months later.
Attorneys John Murphy and Shale Stiller are representing the community residents who filed the appeal. Murphy said one of the issues residents want addressed is the practice of “councilmanic courtesy,” in which council members from other districts in the city defer to the wishes of the one council member representing the district where a proposed development is to be located.
The community’s lawyers argued that the council is a quasi-judicial body whose members should make their own decisions after hearing testimony about the merits of a project, not simply defer to the wishes of a colleague, especially if the colleague received campaign contributions from the project’s developer. Fletcher-Hill brought up their arguments in his opinion but ultimately declined to rule on them.
Murphy said the residents are also seeking clarity about the way the City Council assessed the North Roland Park property during the TransForm Baltimore rezoning process, which produced a new zoning code that was adopted in 2017. He said he is particularly concerned about what the city allowed during the transition period from the old zoning code to the new one, the period when The Overlook was working its way through the review process.
Under the pre-2017 zoning for the property, Murphy said, buildings could rise up to 80 feet on part of the 12-acre site, but the new zoning code stipulates that buildings on the entire site can be no taller than 35 feet. Murphy said the City Council approved the Overlook project as if the old height limit were still in effect, while he believes the city shouldn’t have approved any buildings exceeding the 35-foot limit established in the newer TransForm Baltimore legislation.
“It’s in the hands of the Court of Special Appeals now,” he said.