The state's highest court has upheld Baltimore County's 2013 approval of preliminary plans for a Catonsville medical office building near Kenwood Gardens Condominiums.
In a complex case that has been winding through courts for nearly three years, Kenwood Gardens Condominiums Inc. challenged whether the county legally approved a zoning change that would allow Whalen Properties LLC to build a seven story, 89,000-square-foot medical service building off Wilkens Avenue.
Some residents of the 84-unit condominium community have said they were unaware of plans for the building and believe it would be too large for an adjacent parcel.
In its lawsuit, the condominium group claimed donations made in 2011 by developer Stephen Whalen Jr. to the campaign of First District County Councilman Thomas Quirk created "the appearance of impropriety" that should have invalidated the approvals process.
Baltimore County Council members shepherd rezoning requests in their districts during the quadrennial comprehensive zoning map update process and in separate planned unit development, or PUD, rezonings. Whalen's application was for a PUD.
Whalen pleaded guilty to violating Maryland campaign finance laws for donations that were channeled through others to the committee Friends of Thomas Quirk in 2011. Quirk, whose district includes Catonsville, was never charged with a crime and there was no evidence that he knew that the so-called straw donations originated with Whalen.
The developer, reached Wednesday, said he is moving forward with the $25 million project, named Southwest Physicians Pavilion.
"We think this is a great site for a regional medical practice," Whalen said. During the protracted court battle, Whalen said the company lost one prospective tenant but "we have another tenant who has been extremely patient."
Whalen said it could take six or seven months to get permits and that construction would take about 21 months.
A legal question addressed by the appeals court in the zoning case was how deeply courts could review the county council's approval of any zoning change, since the council was acting in a legislative capacity. The zoning case also was heard by an administrative law judge sitting as a hearing officer and by the county Board of Appeals, which gave the project a green light.
The Maryland Court of Appeals decision, published Friday, focused in part on whether the county council's zoning approval was considered a legislative action. Courts don't usually look at the motives of a legislative body, the 30-page opinion said, concluding the approval of a planned unit development classification for Whalen's land "was not contrary to the law."
"[T]he process by which the PUD was actually approved was an independent process that did not involve Councilman Quirk or even the County Council," wrote Clayton Greene Jr., one of seven judges on the Court of Appeals. After the council approves a PUD, the project goes through a number of planning and zoning agency reviews.
"We won," said G. Scott Barhight, a Towson attorney representing Whalen. "This case shows … there's legislative prerogative that the courts aren't allowed to invade."
An attorney for Kenwood Gardens did not respond to messages seeking comment and the condominium's officers could not be located. Quirk could not be reached.
While the condominium group could appeal the case to the U.S. Supreme Court, Barhight said he believes such a move is unlikely.