Judge looks askance on phone call by Royal Farms’ attorney
Witnesses testify on why – after a call from company lawyers – the city issued a “corrected” version of a decision approving controversial Hamilton gas station and convenience store.
Above: Opponents outside the courthouse yesterday after their lawyer presented their appeal of the city’s approval of the Hamilton Royal Farms project
The battle over a proposed Royal Farms store and gas station in Hamilton moved to the courtroom yesterday, where the focus was a phone call made by one of Royal Farms’ attorneys to the office of the Board of Municipal Zoning Appeals (BMZA).
Did the call – made by lawyer Caroline L. Hecker at the suggestion of her colleague, Stanley S. Fine, according to testimony – result in a substantive change in the way the city ruled on the case after an April 2 hearing?
After listening to John C. Murphy, the attorney for the residents, and Sandra R. Gutman, the lawyer representing the city, Circuit Court Judge Charles J. Peters said it flatly:
“There was a difference between the first resolution and the second resolution. That’s irrefutable.”
Peters didn’t rule on the citizens’ appeal of the BMZA’s decision to grant conditional use approval of the controversial Northeast Baltimore project, but he sent strong signals that he found the defense by the city and Royal Farms hard to fathom and the operating procedures of the BMZA “odd.”
Lawyer “Asked That it be Changed”
The 24-hour, 12-gas pump convenience store proposed for the intersection of Harford Road and Glenmore Avenue has sparked months of protest by residents who say adding such a business at the already complex intersection will cause traffic accidents and endanger pedestrians. The project (undertaken, technically, by the convenience chain’s corporate entity “Two Farms, Inc.”) is opposed by five neighborhood associations in the immediate area.
In his appeal of the BMZA’s decision, Murphy made other arguments as well, including that the zoning board used an improper standard in judging how serious the traffic impacts needed to be in order to justify a denial.
But his most dramatic charge involved Hecker’s call to the BMZA and what happened afterwards.
According to her affidavit, Hecker had spoken to a BMZA staffer at Fine’s suggestion to “express confusion” about the last sentence in the resolution of the case, received by the parties weeks after the hearing.
The sentence attached a condition to the BMZA’s May 7 resolution. It said that the conditional use was “subject to the condition that the realignment of Glenmore Avenue, as indicated in the drawings, occurs.”
After receiving that phone call, BMZA executive secretary David Tanner “issued a corrected resolution in the matter,” he explained in his affidavit.
“I made the change after the applicant called my office to express confusion with regard to the last sentence and asked that it be changed to accurately reflect what the board had actually decided on April 2,” Tanner wrote.
Once “corrected” by Tanner, the new June 3 resolution said only that the strip of city-owned land needed for the realignment would be be donated by Royal Farms. It deleted language specifying that the intersection upgrade – which city transportation officials have priced at $400,000 – had to happen.
(In the months before the hearing, City Councilman Robert Curran, vilified by community groups for backing the unpopular project, had offered the intersection upgrade as a way to mitigate its worst effects.)
Correcting a Mistake?
In their affidavits, Hecker and Fine said that they sought the change because the resolution mailed to them by the BMZA was “inconsistent with the testimony and evidence provided at the hearing.”
Murphy, taking issue with that interpretation, said the phone call and subsequent editing of the resolution were a violation of Maryland Open Meetings law and “grossly improper.”
“This was done totally in secret,” Murphy said. “They could have called me and said, ‘Come on down, let’s discuss it.’ I would have.”
The call from the Rosenberg Martin Greenberg lawyer inherently put inappropriate pressure on Tanner, Murphy said.
“When the leading zoning attorney in the city of Baltimore, representing one of the largest landowners in the city, calls to ‘express confusion’ about a decision, that’s like somebody calling you or one of your law clerks and saying, ‘How could you make that wrong decision?’”
Gutman, the city’s attorney, reiterated that “there was no violation of the Open Meetings law” because “there was no second decision,” merely a clarification of the initial decision.
So, Judge Peters pressed the attorneys, was there evidence to suggest what the board really intended?
Murphy pointed to the detailed description of the intersection upgrade in both versions of the resolution and the conclusion about it on page 3:
“This board finds, based on the record, that while vehicular traffic will increase at this location as a result of this gas station, the realignment of Glenmore Avenue and the incidental relocation of the traffic lights, as well as the DOT plans for Mary Avenue, will significantly increase predictability and control traffic more effectively. The board finds that the increased predictability sufficiently mitigates the traffic concerns at this location.”
Andrew H. Baida, representing Royal Farms, stressed the company’s commitment to donating the land and said the company “has been consistent. It wants to be a good neighbor.”
Judge Peters, meanwhile, said he was unclear on the procedures of the BMZA. “Tell me, as a practical matter, how do they go from that vote to that resolution?” he asked.
Murphy called the process a form of “mass justice,” with dozens of cases heard in an afternoon, followed by a “deliberation session” in which the board takes votes. Then the decisions are “memorialized” (put in writing) by staff and resolutions are “issued” by Tanner and received by the parties weeks later.
“This process is odd,” Peters said. Baida agreed: “It’s very odd – there are no written guidelines … it’s a process that’s been going on for decades”
(“It’s just like the Liquor Board!” said Glenham-Belhar Community Association president Sheila Ebelein, speaking outside the courtroom afterwards, picking up on that point. She was one of more than a dozen opponents of the project who packed the small courtroom.) Tanner, who was present in the courtroom, did not testify.
What Opponents Seek
Peters also asked for clarification from Murphy on his clients’ desired outcome. “Given that the board was being conscientious saying [essentially] ‘We want to make sure this actually happens,’ do you want me to find the first resolution is in effect?”
Murphy said he didn’t think that was possible, “since they’ve screwed it up.” (Both the BMZA’s May 7 resolution, which he appealed on May 22, and the subsequent June 3 “corrected” resolution should be thrown out, he also argues in legal fillings.)
Asked by Peters “do you just not want the project to go forward at all” Murphy answered “Yes.”