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Md. appeals court hands victory to Clipper Mill residents who opposed development

A resident’s car parked outside the Millrace condos adorned with a bumper sticker opposing a proposal by Clipper Mill’s owner to repeal the area’s zoning overlay, called a Planned Unit Development. (The Daily Record/File Photo)

Maryland’s Court of Special Appeals has ruled that a proposed development at Clipper Mill must undergo a review to ensure the preservation of the historic Tractor Building — a decision that likely means the change will have to go before Baltimore City Council, a lawyer for Clipper Mill residents said.

A unanimous three-judge panel found that skipping a review by the Maryland Historical Trust is a “major change” to the Clipper Mill Planned Unit Development that would require a special ordinance.

In June 2020, the Baltimore City Planning Commission approved the proposed development, which included adding 98 residential units above two levels of parking in the historic Tractor Building and building a two-story parking garage on an adjacent lot.

The planning commission may approve “minor changes” to existing Planned Unit Developments, but “major changes” must go through the more complicated process of getting an ordinance passed through City Council.

Residents at Clipper Mill objected to the proposed development, arguing that the addition of the residential units and the parking garage were major changes that could not be approved by the planning commission.

The planning commission, and later a Baltimore City circuit judge, disagreed, finding that the changes were minor and fell within the commission’s purview.

The Court of Special Appeals also found that those changes are minor, but ruled that the commission’s approval of the project without a review by the Maryland Historical Trust was a major change.

The Maryland Historical Trust requirement in the original PUD is believed to have been linked to the possibility that some buildings in the development might have been eligible for federal tax credits, according to the Court of Special Appeals opinion.

The Planning Commission argued that because the tax credits were not sought in this case, the historical review requirement did not apply.

The Court of Special Appeals found that even if a historic review ultimately isn’t necessary, City Council must remove the requirement through an ordinance.

“Perhaps this ordinance requirement is no longer necessary because its intended purpose, whatever that may have been, has been satisfied or a different compatibility standard should be substituted,” Senior Judge James A. Kenney III wrote in the 22-page unreported opinion.

“But excising the requirement or modifying it by way of interpretation is not a decision for the (Planning) Commission to make. It is a decision for the City Council.”

John C. Murphy, the lawyer for the condo and homeowners who opposed the changes, said the ruling likely means the developer will need to ask City Council for permission in order to proceed. The Maryland Historical Trust, he said, probably does not have jurisdiction to consider the changes to the Tractor Building because the project does not involve tax credits.

“The residents all cherish the historic character of Clipper Mill and they’re very delighted there cannot be an alteration of this building without the approval of the Maryland Historical Trust,” Murphy said.

“We think this means the building will be preserved,” he said. “We would certainly ask the City Council not to remove that (requirement).”

The 17-acre Clipper Mill campus is made up of several historic former industrial buildings just north of Druid Hill Park.

The dispute over the proposed changes began under Clipper Mill’s previous owner, VS Clipper Mill, LLC, and continued under the new owner, MCB Woodberry Developer, LLC.

A spokesperson for the city did not return an email requesting comment on the decision Tuesday. David Applefeld, a lawyer for the developer, declined to comment.

The project previously sparked controversy when the former owner filed a $25 million lawsuit against Clipper Mill homeowners who spoke out against the proposed development. A Baltimore City circuit judge dismissed the lawsuit on the grounds that it violated Maryland’s Anti-SLAPP statute, which protects against Strategic Lawsuits Against Public Participation.

The Court of Special Appeals affirmed the dismissal in December, finding that the lawsuit was “expressly aimed at quashing (residents’) continued opposition to the project.”