Developers aiming to build a $25 million senior living facility in North Roland Park won a key legal victory this week when a Baltimore Circuit Court judge ruled that the city’s zoning board acted properly in approving the project last year.
But two neighboring property owners who oppose the project and disagree with the zoning board’s 2022 action, Hunter and Margaret Cochrane, have filed a notice of appeal with the Appellate Court of Maryland, an action that promises to hold up construction while the case is heard in the higher court, and could derail it entirely.
The project is The Claiborne at Roland Park, a three-story, 110-unit residential care facility for about 120 people proposed for a 12-acre site near the intersection of Northern Parkway and Falls Road, with a mix of assisted living and memory care apartments. The developer, Claiborne Senior Living of Hattiesburg, Mississippi, proposes to build it just east of The Falls at Roland Park, a 10-story apartment building at 1190 West Northern Parkway.
The turn of events is reminiscent of a scenario that played out last year, when the city’s Board of Municipal and Zoning Appeals approved Claiborne’s project in October 2022 and the Cochranes appealed the board’s decision at the Circuit Court level. Claiborne held off on starting construction, and it took more than seven months for that appeal to work its way through the court system.
“While we are pleased with the decision of the Circuit Court for Baltimore City on Tuesday, we received notice this afternoon that Mr. Cochrane and his attorney have filed a notice of appeal to the Appellate Court of Maryland,” said Matthew Grenfell, vice president and general counsel of CR Properties LLC, the parent of Claiborne Senior Living, in an email message on Thursday.
“This appeal with a minimal likelihood of success will further delay the development and construction of our project,” Grenfell said. “We hope to commence construction quickly after Mr. Cochrane and his attorney step aside and allow this necessary project to continue that will serve the needs of senior adults living in Roland Park and Greater Baltimore.”
The Appellate Court of Maryland, formerly known as the Court of Special Appeals, is Maryland’s intermediate appellate court. It considers appeals from almost any case that originates in a circuit court or an orphan’s court in Maryland.
Adam Levine, chief solicitor for the city’s Law Department, said Friday the city also received a notice of appeal. He said the law department does not have a comment on the case.
Contract purchaser
Claiborne Senior Living has a contract to purchase the 12-acre site from another developer, Blue Ocean, but the sale is contingent on obtaining approval from the zoning board to construct its project. Blue Ocean still owns the land, a heavily-wooded, steeply-sloping parcel that has never been developed. A sale price has not been disclosed.
Gregory Sampson was the Circuit Court judge who dismissed the Cochrane’s appeal, following a 90-minute hearing that was held virtually on Tuesday.
In a written order on Tuesday, Sampson said he “affirms the ruling of the Baltimore City Board of Municipal and Zoning Appeals” that the Claiborne project can move ahead.
The Cochranes and their attorney, J. Carroll Holzer, filed a notice to appeal Sampson’s order on Wednesday. Cochrane referred questions to Holzer. Holzer did not respond to phone and email requests for comment about the appeal.
Officials say an appeal doesn’t automatically halt construction as long as the zoning board is on record as approving a project and construction permits are issued, but a court case can last for months and make it difficult for a developer to obtain financing. In Claiborne’s case, the Circuit Court hearing was originally scheduled for early May but was delayed at the last minute because the judge hadn’t received all the pre-hearing paperwork filed by the litigants.
An appeal can also cloud a project’s status by creating uncertainty as to whether a developer actually obtained zoning approval, since a governmental agency’s decision can be ‘vacated’ by a court ruling. In local cases where an appeal is filed, developers tend to hold off on construction until they know how the court rules.
More than two years of work
Claiborne, which specializes in building and managing housing for seniors, negotiated a contract to purchase the land from Blue Ocean in early 2021 and has been working since then to line up community support and obtain the city approvals and permits needed to move ahead with its project.
Blue Ocean sought buyers after a larger project that it proposed for the site, a six-level, 148-unit, $40 million apartment building called The Overlook at Roland Park, drew strong opposition from surrounding community groups.
Community groups that had opposed Blue Ocean’s project were initially also wary of Claiborne’s proposal. Claiborne representatives have worked with leaders of neighborhood organizations around the development site to address their members’ concerns. Part of Claiborne’s pitch to concerned neighbors is that its project won’t be as large as the development Blue Ocean proposed and won’t contribute to traffic congestion to the same degree. Claiborne also modified the building’s design in response to residents’ critiques.
In its negotiations with north Baltimore communities, Claiborne had to address several zoning issues specific to the design and nature of the senior care facility it wants to build.
The portion of the 12-acre parcel targeted for construction, about six acres, is zoned R-6, a category that permits residential construction up to 35 feet tall. 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 in an R-6 property and that requires additional approval from Baltimore’s zoning board, following a public hearing. An assisted living facility cannot be constructed as of right in an R-6 zone.
The developers 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, an attorney for Claiborne argued this week, when Baltimore’s City Council last December passed an ordinance that changed the way the city measures a building’s height.
Two-part review
The zoning board considered Claiborne’s application in two sessions last year, a six-hour public hearing on August 24, 2022, and a follow-up meeting for deliberations but no public testimony on October 11, 2022.
Community groups that expressed support for Claiborne’s project at the August meeting included the Lehr Stream Neighborhood Association; the Sabrina-Mattfeldt Community Improvement Association; the North Roland Park Improvement Association and the Poplar Hill Association.
The Cochranes have consistently opposed Claiborne’s development. Hunter Cochrane told the zoning board in a 2021 hearing that he would not object to any project that didn’t require a variance or waiver from the city’s zoning code, but he would not support any project that did.
“Very simple, I want the developer to comply with the current zoning,” he told the zoning board. “I’m not opposed to ‘a’ development. I’m opposed to a variant to facilitate what I would consider to be overdevelopment…That’s basically my position and it has never varied.”
Also testifying in opposition to Claiborne’s project at the August 2022 hearing was Betsy Boykin, a landscape architect who lives on Cliffhurst Road, close to the proposed construction site. Boykin said she was primarily concerned about the loss of trees and wildlife if the parcel is developed.
In its current state, the area is “a beautiful place to live,” she told the zoning board. “We have owls, blue herons, foxes. Every kind of creature and vegetation you can imagine that is possible in the city, is in this site.”
Despite the opposition, the zoning board approved Claiborne’s application to build its proposed facility as a conditional use for the property, and it agreed to waive the height limit. The Cochranes filed their appeal with the Circuit Court in response, and that’s what held up construction and led to this week’s hearing.
Decision challenged
In arguments before Judge Sampson on Tuesday, the Cochranes’ attorney, Holzer, said he believed the zoning board’s decision last fall was flawed in a number of ways.
He argued that the zoning board didn’t give enough weight to the loss of trees that Claiborne planned to cut down to make way for the senior living facility. He questioned whether Claiborne’s designs provided sufficient access to the building by fire trucks and other emergency vehicles. He questioned the legality of the city planning department’s Site Plan Review Committee, whose meetings aren’t open to the public.
Holzer also questioned how much the four-member zoning board actually deliberated before arriving at its decision, during the Oct. 11 meeting at which chair James Fields mostly led the discussion and other members followed the chair’s lead. He brought up a previous council bill that was introduced to designate the Northern Parkway property a Planned Unit Development (PUD), saying that legislation was never withdrawn. He questioned the process by which the City Council changed the way the city measures building heights.
In his verbal ruling prior to issuing a written order, Sampson addressed each of Holzer’s points. The judge said he was satisfied that the zoning board deliberated sufficiently with respect to approving Claiborne’s project as a conditional use for the land and that its members adequately documented the findings of fact and conclusions of law supporting their decision.
Sampson said he wasn’t persuaded by Holzer’s arguments about tree loss and its impact on urban forestry in the city. He said concerns about emergency access to the site and the turning radius of new roads are matters that can be addressed during the permitting process, not at the zoning board level. He said the status of the PUD legislation was not a factor that he needed to consider, after Claiborne attorney Elliot Engel said it was introduced for Blue Ocean’s project and was not being pursued by Claiborne.
New way to measure height
Sampson acknowledged that Holzer may have a point about the City Council legislation that was passed last year to change the way the city measures a proposed building’s height.
Under the previous process, the city measured from the nearest street to the top of a building, even if the building is on a hill that rises high above the street. Under the new process, the city measures from the building’s base to its top, leaving out any change in grade between the building’s base and the nearest street.
Leaving out the steep hill along Northern Parkway favored Claiborne, because it put the height of its proposed building below 35 feet, based on the new method for measurement, rather than more than 40 feet under the previous method.
Holzer argued that the City Council acted improperly in passing the bill that implemented the new measuring method, because the council was supposed to have a public hearing before voting on the pending legislation and never did. Sampson said that is an issue to take up with the council, not the zoning board. For the purposes of his ruling, he said, Claiborne’s building falls within the height limit for an R-6 property and does not need a waiver.
Family-owned company
A family-owned company, Claiborne Senior Living manages a network of 10 senior living facilities in the southern United States, including Mississippi; Louisiana; Georgia and South Carolina. It offers up to three living options in its various communities — Assisted Living, Memory Care and Independent Living — but The Claiborne at Roland Park design does not include Independent Living units.
When Claiborne first announced plans for its Baltimore project, officials said it was the company’s first venture in the mid-Atlantic. Its website now indicates it also has plans to expand to Fairfax, Virginia.
Company representatives told the zoning board last year that they’re eager to get underway in Baltimore and have been working with various city agencies so they can obtain permits and start construction as soon as possible. Once work begins, they say, construction is expected to take 15 to 18 months to complete.
My mother-in-law lived at Broadmede, which is a very level property. The steep slope of the hill in North Roland Park gives me not very funny visions of assisted living and memory care patients rolling down hill.
I also wouldn’t want to be the gas station or Falls Apts downhill of all that non-water-absorbing parking space.