The Selling of the City

by Alice Cherbonnier

City officials, hungry for additional tax revenue and for construction-related jobs, may tend to overlook regulations that stand in the way development. Developers, beset by surrounding counties' growth limitations, are now initiating projects in Baltimore City after decades of staying away. Residents of City neighborhoods are finding themselves in the difficult-and expensive-position of having to demand that planning and zoning officials and their City Council members adhere to the law.
MARCH 23, 2004--Baltimore is set to embark on a comprehensive rezoning plan-and not a moment too soon, according to neighborhood activists, developers, and city planning and zoning officials.

Not only is the current zoning code obsolete-last fully revised in 1971 and updated piecemeal ever since-but it still contains anomalies, including incompatible zoning uses side by side. In some residential communities, for example, adjacent property is zoned industrial, inviting unwanted development.

Despite its deficiencies, however, the zoning code is still the law, and developers and property owners who fail to follow the law are subject to legal challenge.

Who Enforces Zoning Laws?
Community activists are complaining that it is they, not the city zoning officials, who find themselves calling for the enforcement of zoning code provisions. City officials, they charge, have developed a sort of "case law" of "interpretations" that conflict with provisions of the zoning code, but which officials-and developers and their lobbyists-believe should be done in light of current circumstances.
The Case of 2807 Cresmont Avenue
Such is the case with an apartment building currently under construction at 2807 Cresmont Avenue, just behind Howard Street near The Johns Hopkins University. The project is called "Cresmont Lofts" by the developer but is referred to as "Cresmont Student Housing" on the website of the builder hired for the project, Struever Brothers Eccles and Rouse (SBER).

When completed, the seven-story project will contain 26 apartments, each with four bedrooms and two baths.

The apartment building, designed by the architecture firm of Hord Copland and Macht, is the second proposed use for the site. The first would have been a lounge/nightclub called The Inferno, but neighbors fought it [Ref. July 2000 Chronicle article: ‘Inferno’ of Controversy Heats Up in Remington] and the property was sold to the Ellicott-City based Orchard Development Corporation, which established a separate entity called Cresmont Properties, LLC, to develop the project.

The B-3-2-zoned project site is bounded on two sides by properties that are zoned residential, while the other two sides are zoned for commercial use. A rendering of the project shown on the SBER website does not show the rowhomes adjacent to two sides of the site.

Neighbors Alarmed
Then-Planning Director Charles Graves made the decision not to submit the plans for 2807 Cresmont Avenue to the Design Advisory Panel (DAP), though the department calls for such a review of "all major new projects downtown and in the neighborhoods from a design perspective."
Neighborhood activists were well aware of the long list of permitted uses that could be built adjacent to their back yards, and were keeping tabs on building permit applications for the site.

Once aware of the Cresmont building's size and potential use as student housing, several adjacent residential neighbors on the west side of the 2600 block of Howard Street feared that the building could take on a "fraternity house" atmosphere. Further, its height would block their homes' sunlight from the west.

"The building's scale is completely out of character for our community," charged Joan Floyd, whose Howard Street home backs up to the site.

No Design Advisory Panel Review
The project's design is also a concern for the activists. The City's Design Advisory Panel (DAP), a division of the Department of Planning's Urban Design division, is charged with evaluating construction plans for design suitability. According to the Department's website, DAP "brings together architects, planners, landscape architects, and architectural historians to review all major new projects downtown and in the neighborhoods from a design perspective."

The Cresmont project was not submitted for DAP review. The Remington activists, noting the word "all," and the inclusion of new projects "in the neighborhoods" as well as downtown, wonder why DAP was not automatically required by the Department of Planning to review the plans in the first place.

The decision not to submit the Cresmont Avenue plans to DAP was made by then-Planning Director Charles Graves. Laurie Feinberg, Urban Design division director, referred questions to the current Planning Director, Otis Roley III.

"It was an internal decision not to submit [the plans] to DAP," confirmed Robert Quilter, an architect with the Department of Planning who was delegated by Roley to discuss this matter. He said the Department of Planning automatically sends plans to DAP for review when a project is in an urban renewal area, is part of a Planned Unit Development (PUD), is in "a highly significant location, as in downtown Baltimore," or is sponsored by the City. Otherwise, he said, the Director of the Department of Planning decides if a plan will be sent to DAP for review.

"I tend to like modern architecture," said Quilter. "This project has colored panels-a neo-modern look. I thought it would be a shot in the arm for the community." Asked if he thought the seven-story building was out of keeping with the surrounding homes on Howard Street and West 29th Street, he pointed out that some tall apartment buildings in nearby Charles Village also co-exist with rowhomes.

The Need for Notice
When Jeff Groden-Thomas and his wife, Wendy, moved into their new home on the west side of the 2600 block of North Howard Street on December, they were new to the neighborhood.

"The real estate agent thought it [the building for which construction had then just begun behind the house they bought] would be four to six stories, and that it would be luxury apartments," he said. The couple saw an ad for the building at the nearby Paper Moon Diner that appeared to confirm this.

Despite such initial reassurance, Groden-Thomas, an employee of the nearby Johns Hopkins University, did additional research. "I saw a lot of court and City Council action on it," he said. The couple learned that the plan, instead of being luxury apartments, now called for four-bedroom apartments that offered separate leases for each bedroom. "It was clearly being marketed to a student population," he said.

They might have backed away from the purchase at that time, but they also learned that two different Baltimore City Circuit Court judges had ruled that the project was being built in violation of City zoning law.

They felt it was safe to purchase the house, as construction had stopped by the time settlement arrived, "There wasn't even a first story in place when we moved in," he said. "And we knew the judge [Matricciani] said they would be building at their own risk" if construction continued, so the couple thought something they felt would be more suitable would eventually be built on the site.

When construction on the building resumed after the first of the year, he and his pregnant wife found their peace disturbed six mornings a week by construction trucks arriving as early as 6:30 a.m. "There's noise all the time," he said. "We would not have bought the house if we'd known [the project would go forward despite the judges' orders]," he said.

He pointed out that once the building has occupants, parking will be inadequate not only for area residents, but for the Paper Moon Diner. He noted that parking along Howard Street is forbidden at certain hours of the day.

"This isn't about nitpicking," said Jeff Groden-Thomas, whose family recently moved to a home in the 2600 block of North Howard Street, right behind a seven-story building containing 26 four-bedroom apartments that is now under construction. "This isn't about little inconsistencies. It's about the big things. I'd like to know why the City has let this project continue."

Asked if he thought the construction should stop and the partially-built structure torn down, he said, "Absolutely. I certainly don't want an empty shell of a building sitting there. The homeless could move in, or kids could start fires there."

Groden-Thomas has become one of the neighbors seeking redress from the City Council and City officials. "This isn't about nitpicking," he said. "This isn't about little inconsistencies. It's about the big things. I'd like to know why the City has let this project continue."

Community Seeks Enforcement of Existing Law
Remington and several other communities in North Baltimore are located in a specially designated "Parking Lot District" (Sect. 10-501-505 of the Baltimore City Code) requiring that the City Council pass an ordinance to authorize "accessory" parking lots on a project's lot, or within 300 feet of the lot.

Doug Armstrong, Floyd's husband, said, "The developers of the apartment building were well aware of the need for a parking lot ordinance, but failed to seek one."

The Committee of Near Neighbors-a core group of property owners whose homes are adjacent to the project, and who thus have legal standing in this matter-sought to halt the project by filing suit in the Circuit Court for Baltimore City, claiming the building permit for 2807 Cresmont had been unlawfully issued because the developer failed to obtain the passage of a City Council parking lot ordinance.

The plaintiffs, in researching their case, found that, although a number of parking lots had been built over the past 15 years in the Parking Lot District, the City Council had not enacted any ordinances permitting them since the late 1980s. Instead, the city's zoning and planning officials had, according to Armstrong, "condoned ignoring the law by developing its own set of precedents to follow. The phrase officials use for this is 'long-standing administrative practice'."

Judge Backs Plaintiffs
On November 4, 2003, Circuit Court Judge Albert J. Matricciani, Jr. issued a decision in the case of Douglas M. Armstrong, et al., v. Baltimore City Board of Municipal and Zoning Appeals and Cresmont Properties, Inc., finding that "the Zoning Code contains no accessory use exception. As long as the project includes 'land used for the off-street parking of 3 or more motor vehicles,' the Zoning Code requires an authorizing ordinance from the Mayor and City Council."

Judge Matricciani's order revoked the permit and remanded the case to City officials.

The judge cited language from another case considered as a precedent in making the Cresmont decision, Powell v. Calvert County, The judge in that case said defendants continuing construction despite a revoked permit "are proceeding upon a legally unstable foundation" and, as such, "are commencing 'at their own risk' so that they will be required to undo what they have done if they ultimately fail in the litigation process."

Amended Permit is Issued
The developer meanwhile obtained an amended building permit for the site on November 6, and construction continued.

Asked why the developer was not required to stop construction following the judge's order, City zoning official Mike Savino said the amended permit for the project "supervened the judge's order." He maintained that this is so even though the complete records on a building permit, including the original plans and all amendments, are maintained together as one entity.

The amended permit included additional work plans that, according to Savino, showed a changed parking layout due to a change in the access road, and changes in fencing and landscaping.

The Cresmont construction continued until the end of the day on November 26, when it was stopped by order of DHCD and the Board of Municipal Zoning Appeals, in accordance with the judge's order.

A Second Amended Permit
A second amended permit for the project was issued on January 6, 2004, based on the first amended permit issued on November 6. Once again, the project's parking configuration was changed. This time the number of spaces was reduced to 13.

The plaintiffs had been checking regularly with the department of zoning's permit desk to monitor what was happening with the project, but they did not learn about this second amended permit until construction resumed at the site on January 16-10 days after the amended permit was issued-after having been dormant since November 26.

Unaware that the latest amended permit had been issued, neighbors contacted police, believing the law was being violated. Police officers investigated and provided the amended permit's number to neighbors. Later that afternoon, they observed that the amended permit was posted in the window of the Struever Brothers Eccles and Rouse construction trailer on the site.

January 16 marked the end of the zoning law's 10-day deadline for appeals from adjacent property owners. Opponents were able to file objections to the issuance of the later permit, and a zoning appeals hearing was scheduled for Tuesday, March 30. Meanwhile, construction continues.

Savino said the public is usually not given notice of when a permit is amended; instead, he said, the public must call the Permit Desk (410-396-3360 or 396-4126) to check on the status of permit requests.

Dorreya R. "Didi" Elmenshawy, director of the Department of Housing and Community Development's Permits and Codes Enforcement and Construction and Buildings Inspection divisions, said the latest amended permit did not require a full set of new drawings because the change only regarded parking. It was signed off by Savino on January 6, following review by John Emmart, a plans examiner.

Although the Cresmont project did not undergo a design review process, Ms. Elmenshawy said the planning department did review the plans in regard to "electric, sediment, conduits, water and waste water," and all these were approved.

Acknowledging that 13 parking spaces for a project of this magnitude seemed too low, Savino said, "Other parking may be possible under an ordinance they [the developers] are seeking from the City Council, and it would be on-site." The Planning Department, he added, is also seeking "to make it possible to allow an adjacent lot [to be used] for a parking lot."

Asked why the second amended permit reduced the number of parking spaces to 13, he said the City Solicitor's Office reviewed the case when asked how the project could best comply with the law. The response was that the developer should request only the minimum number of parking spaces.

Elmenshawy said she was informed by the city attorneys that "thirteen off-street [parking] spaces are all that's required, according to Section 10-405" of the City's zoning code.

Plaintiffs insist this conclusion is in error, asserting that no City departments can authorize parking in their district; by law this can be done only through a City Council ordinance, and they point to rulings to that effect by Circuit Court Judge I. Robert Hammerman (in 2001, in litigation regarding the Inferno) as well as Judge Matricciani.

Savino does not deny that judges have issued these decisions, but says, "This is different from decisions on every other case like this."

Floyd, said, "We don't care that what they've always done is different. What they're doing is in violation of the law, we've proven it in court, and the construction should stop."

Final Outcome Uncertain
Having spent thousands of dollars in legal fees, those who are backing this effort to force the City to obey its own laws have not lost their determination to see justice done.

"In the current state of affairs on the nineteenth of February, it is clear to me that the City of Baltimore has no intention of obeying the law-local or state," said Armstrong. "The developer reigns king over the rights of citizens and adjacent property owners all over the city. We won't let go of this. We are determined to see the law obeyed."

As to the question of whether the apartment building wouldn't be a better thing to have behind their homes than a vacant lot or the derelict garages that once were on the site, Armstrong said, "This [apartment building] is going to be far more damaging to our community than a bunch of poorly maintained garages are, in that this kind of predatory development that destroys a neighborhood will further drive taxpaying residents from Baltimore. There's no reason to see your rights trampled this badly and still stay in town."

Armstrong further charged, "Our taxes are being used to pay a law department-the City Solicitor's Office-to take away our rights."

What do these activists hope for? "A really positive development for Remington," said Armstrong, "one that is in keeping with its neighbors."

Toward that end, the Remington Neighborhood Alliance has sent several letters to Otis Roley, head the Department of Planning, seeking a formal design review of the Cresmont project. To date, they have received no reply. They believe their community has a right to such a review, regardless of current practices of the Department of Planning.

The efforts of the tenacious Remington plaintiffs appear to be nudging city officials to work toward conforming their practices to the City Code, or changing the City Code to conform to their practices. They are gathering confirmations from various City officials that the law is on the side of the plaintiffs.

In a March 5 letter to the builder that was circulated to the press, Remington Neighborhood Alliance president S. Ward Eisinger wrote, "The whole development project (building and parking lot) requires that the Parking Lot Ordinance be enacted before any building permit could be lawfully issued. This is the opinion of Housing Commissioner Graciano in his memo to the City Council. So even the Commissioner of DHCD apparently acknowledges that his agency has issued the most recent permit illegally."

Bill Submitted After the Fact
On October 27, Second District City Council members Paula Johnson Branch and Bernard C. "Jack" Young introduced Bill No. 03-1228, "an ordinance permitting, subject to certain conditions, the establishment, maintenance, and operation of an open off-street parking area on the property known as 2807 Cresmont Avenue."

The bill was referred to various city agencies for review and comment, as well as to the Council's own Land Use and Planning Committee, chaired by First District Councilmember Lois Garey.

The committee held a public hearing, gathered testimony, and investigated. "We wanted our questions answered," said Garey. "We were concerned about whether the project was encroaching the alley [between the projects and homes]." In the end, she said, these concerns were not validated in a report by Mike Doyle of the City's Transportation Department. Doyle's report, now part of the City Council's file on Bill 1228, was made public to Remington activists, who found a number of points of disagreement.

In papers filed on March 15 with Sheila Dixon, Baltimore City Council President, J. Carroll Holzer, representing several Remington neighbors, asserted that the Council's Land Use and Planning Committee "acted on Bill 1228 precipitously and unlawfully' on March 4 when it rejected amendments to the bill that had been subject to a prior public hearing, while approving amendments to it that were not subject to a public hearing.

In addition, the attorney wrote Dixon, the committee "approved development plans that did not meet minimum statutory requirements to be eligible for City Council consideration, violated statutory design requirements for the requested conditional use, and had not been the subject of a public hearing."

The attorney also cited the committee for having "approved development plans that constituted an unlawful taking of the property of adjacent owners, and did so on the basis of a grossly inaccurate and misleading agency report" [referring to the Doyle report on measurements] and "acted on all of the above without a public open meeting of the Committee as required by the State Open Meetings Act."

Bill 1228 will be up for a third reading at the Baltimore City Council meeting on Monday, March 22, and-if no meritorious objections are raised-it will become law.

Ms. Garey remarked that problems such as those related to the Cresmont project can be expected to occur in other neighborhoods as Baltimore City continues to attract developers who are finding it difficult to obtain sites for projects in the surrounding counties, which are seeking to limit growth.

City officials, hungry for additional tax revenue and for construction-related jobs, may tend to overlook regulations that stand in the way of such development. Last spring, only at the last minute, a City Council bill was foiled that would have permitted the City to exercise eminent domain to force the sale of private property for the use of private developers.

"Eminent domain is a big problem all over the country," said Garey. She predicted that the City Council might even pass legislation, at the behest of pro-development officials and lobbyists, that would limit or eliminate some of the current requirements for public hearings.

"It's going to get ugly," predicted Garey.

The 34 residents who filed an appeal of Zoning Administrator Donald Small's February 11 decision to permit Cresmont construction to continue would differ with Garey. The hearing is scheduled for March 30. "To us," said Armstrong, "Baltimore City's way of doing business with developers is already ugly."

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This story was published on March 23, 2004.