What in the world is wrong with Baltimore Councilman Isaac “Yitzy” Schleifer?

Last week, he wrongfully accused the executive director of the Board of Municipal and Zoning Appeals (BMZA), Rebecca Witt, of being personally responsible for the decision by the BMZA to eliminate its “consent docket” and thereby costing the city “tens of millions of dollars’ worth of development.”

For good measure, he threw in the allegation that she also “caused constituents of mine to put their house on the market.”

This week, during the introduction of Bill 23-0402 he co-sponsored with Councilman Eric Costello, Schleifer doubled down on his inappropriate and unjustified attacks on Witt, adding an exaggeration that bordered on the bizarre.

“It’s quite concerning that one person’s legal opinion is taking over what the entire city’s future looks like,” Schleifer stated.

The future of Baltimore now rests on Witt’s legal opinion? If stretching the truth to try to justify his behavior is his objective, he is succeeding only in his own mind.

Lousy Legislation

Schleifer’s bill is almost as bad as his behavior.

It would institutionalize the consent docket and prohibit the BMZA from denying a request for a variance from zoning performance standards such as rear- and side-yard setbacks and building height limitations unless there was “community opposition” to the request, whatever that means.

Requests for variances for which there is no “community opposition” would be approved even if they did not satisfy the legal standard for obtaining variances.

I am anxious to see the city law office attempt to find a way to sign off on the legality of the bill. If they try it, it will require, shall we say, some real creativity.

• Councilman blasts Zoning Board after it ends blanket approvals of variances (6/6/23)

• Schleifer bill would legalize consent docket deemed illegal by the Zoning Board and its director (6/13/23)

Zoning performance standards are an attempt to strike a balance between a property owner’s right to develop property as he or she sees fit and the public’s interest in enhancing the quality of life, promoting sustainable growth, and preserving and protecting the environment.

Put another way, property rights are important, but few people would want to live in a neighborhood where all the houses were built right up to the property line.

Even if the process proposed by the bill was lawful, bestowing that kind of power on neighbors would be an open invitation to corruption.

Selective enforcement of zoning laws by a local government potentially violates the constitutional rights of property owners.

Unlawful selective enforcement is hard to prove, however, because an owner must show that it was “deliberately based upon an unjustifiable standard or arbitrary classification.”

That is, it is hard to prove unless the unjustifiable standard or arbitrary classification is baked into the zoning ordinance itself, like it is in Bill 23-0402.

The Schleifer-Costello bill would make enforcement of the legal standard for obtaining a variance contingent on the most arbitrary of events – whether a neighbor, for whatever reason, chooses to speak up in opposition to a variance request.

Applicants for variances – denied because opposition from neighbors triggered enforcement of the variance standard – would have excellent arguments that they were victims of unlawful selective enforcement. That would entitle them to have the variance denials set aside by the courts.

I doubt that is the intent of the bill, but it is likely to be its effect.

Pay to Play

Giving neighbors the power to decide whether the standard for granting variances is applied to a project would, in many cases, give them life-or-death power over the project.

Even if the process proposed by Bill 23-0402 was lawful, bestowing that kind of power on neighbors would be an open invitation to corruption, albeit legalized corruption.

Maybe Schleifer and Costello would like to add a fee schedule to the bill: $500 for not opposing a variance to a side-yard setback, $1,000 for not opposing a variance to a building height limitation, etc.

It would be perfectly legal under the bill to buy and sell “community opposition.” So why not at least regulate the practice?

If Mayor Brandon Scott or Council President Nick Mosby have any sense of decency and decorum, they’ll tell Schleifer to stop his personal attacks on Witt. Failure by Baltimore’s leaders to do so will send an unacceptable message to other administrative officials who simply are trying to do their jobs according to the law.

If the City Council has any sense at all, it will let Bill 23-0402 die a quiet death.

And if Schleifer and Costello believe that zoning variances should be easier to obtain, they should work to change city regulations, rather than bully the BMZA to ignore the law.
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• David A. Plymyer retired as Anne Arundel County Attorney after 31 years in the county law office. To reach him: dplymyer@comcast.net and Twitter @dplymyer.