Baltimore City Councilman Eric Costello has lashed out at Anne Arundel County Circuit Court Judge Cathleen Vitale for invalidating the ballot measure that would have amended the City Charter to allow the plan by MCB Real Estate to redevelop Harborplace to proceed.

He described her decision as “voter suppression at its worst” and “an outrage and affront to the sovereignty of Baltimore City.”

It was neither. It was consistent with the body of law decided by the Maryland Supreme Court on what constitutes proper “charter material.”

And ironically, it was a choice made by Costello that caused Vitale to reach the conclusions upon which her decision was based.

Although the proposed amendment will remain on the November 5 ballot as Question F, Vitale ruled that it cannot take effect even if approved by city voters because it violates the Maryland Constitution.

Specifically, Question F is not the proper subject of a charter amendment because it is not limited to the “form and function” of city government and constitutes “ordinary legislation” within the sole province of the City Council.

The proposed amendment violates the principle that the City Council has a duty to exercise the legislative powers conferred by state law on the city, including the responsibility to determine where various types of land uses are allowed in the city through exercise of its zoning powers, and that the Council’s legislative powers may not be delegated to or exercised by city voters.

Vitale also held that the language of the ballot measure is not sufficiently clear to fairly apprise voters of its effect.

A Bridge Too Far

The amendment proposed by Question F continues a practice that began in 1978, when a charter amendment intended to allow James Rouse to construct the Harborplace pavilions was approved. It dedicated Inner Harbor Park to permanent public use, but permitted 3.2 acres of the park to be used for “eating places and other commercial uses.”

The practice was repeated in 2016 when an amendment was approved that allowed up to one-half acre of the park to be used for “outdoor eating places” at West Shore Park and Rash Field.

The 1978 and 2016 amendments were minor intrusions on the exclusive power of the City Council to approve the uses of land through regulations on land use and development. The amendment that appears on Question F is different both in degree and in kind.

We no longer are talking about eating and shopping venues open to the public intended to increase the attractiveness of the park to residents and visitors. We are talking about two high-rise apartment buildings and a 175,000-square-foot office building not open to the public.

It is the difference between enhancing a public amenity and building a large mixed-use development on public parkland for the private benefit of the developer and future occupants.

I believe that Vitale correctly decided that, regardless of what happened in the past, Question F goes much too far and is unconstitutional.

Dedicating parkland to permanent public use may be proper charter material. Decisions on what types of private development are allowed on that parkland and where they can be located are not.

Improper Drafting

Costello was the lead sponsor of Bill 23-0444, which proposed the charter amendment invalidated by Vitale.

The legally safe choice for Costello would have been to propose an amendment that simply removed the site of the development proposed by MCB Realty from the area of the city that the charter defines as “Inner Harbor Park.”

That would have made the site available for private ownership and development without purporting to “zone” the site for mixed-use and multi-family residential development, which is the fatal flaw in the amendment.

Approval of such an amendment would have allowed the Council to do what it has the exclusive power under city and state law to do:

Enact zoning regulations to control the use and development of the area removed from the park.

A straightforward amendment removing land from the park would have been easy for voters to understand – and would likely have gone down to defeat. Maybe it was a risk Costello was unwilling to take.

Displays of Arrogance

Costello complained that Vitale’s decision called into question the ability of Council members “to govern ourselves as duly elected members of this city’s legislative body.”

That’s nonsense. The decision compels the Council to do its job rather than try to delegate a non-delegable duty to the voters in the form of a charter amendment that few voters can understand.

It may come as a shock to Costello that in Maryland, as at the federal level, we have a representative form of democracy, not direct democracy. He is free to support an amendment to the Maryland Constitution if he wants to change that.

Mayor Brandon Scott joined Costello in personally criticizing Vitale. Scott went a step further, blaming opposition to MCB Real Estate’s development plan on the fact that MCB’s managing partner, David Bramble, is Black.

One early and eloquent critic of MCB’s proposal: Leon Bridges, the first registered Black architect in Maryland.

For one thing, an early and eloquent critic of MCB’s proposal was the venerable Leon Bridges, the first registered Black architect in Maryland and a member of the faculty of Morgan State University since 2006.

Bridges is the winner of innumerable awards, including the 1998 Whitney Young, Jr. Award bestowed by the American Institute of Architecture for “unselfish service to the betterment of the profession, to the health of the community and to the encouragement of future architects.”

For another, it takes a lot of nerve for Scott and Costello, who have taken every shortcut to railroad MCB’s plan through city government, to attack the many smart, serious people – white and Black – who believe that MCB’s plan may be good for MCB, but would be bad for the Inner Harbor and the city in general.

• 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.