120 West Fayette Street, LLLP v. Mayor of Baltimore

43 A.3d 355, 426 Md. 14, 2012 WL 1448471, 2012 Md. LEXIS 255

Opinions

BARBERA, J.

In 1999, the Baltimore City Council enacted the “Market Center Urban Renewal Plan” (Urban Renewal Plan), to renew a portion of the westside of Baltimore City. A five-block area located in the westside renewal area, known as the “Super-block,” ¹ is part of the plan for redevelopment and has been the subject of protracted litigation between 120 West Fayette, LLLP (120 West Fayette) and the Mayor and City Council of Baltimore (City). This appeal marks the third time we are asked to address a legal issue generated by the ongoing dispute.

We held in 120 West Fayette Street, LLLP v. Mayor of Baltimore, 407 Md. 253, 258, 964 A.2d 662, 664-65 (2009) (Superblock I), that 120 West Fayette had standing to challenge the legality of the City’s entry into a Land Disposition Agreement (LDA) to sell to Lexington Square Partners, LLC (Lexington Square) property in the Superblock. Later, in 120 West Fayette Street, LLLP v. Mayor of Baltimore, 413 Md. 309, 992 A.2d 459 (2010) (Superblock II), we held that the process for granting the negotiating rights and the resulting LDA were not illegal under the City’s Charter and the Urban Renewal Plan, id. at 345, 992 A.2d at 481, and the process did not involve an improper delegation of authority from a municipal corporation to a non-profit corporation, id. at 354, 992 A.2d at 486. We further held, as not “sufficiently ripe to rise to the level of a justiciable controversy,” 120 West Fayette’s allegation that in the immediate future the LDA would receive unlawful approval from the Maryland Historical Trust (Trust) because the LDA contained design plans that conflicted with the Urban Renewal Plan’s building height restrictions, id. at 359, 992 A.2d at 489.

The current iteration of the litigation focuses on a Memorandum of Agreement (MOA) between the City and the Trust relating to the treatment of historic properties in connection with the Urban Renewal Plan. In brief, the MOA requires the City to submit Superblock redevelopment plans to the Trust for review and approval. The Trust’s Director and the State Historic Preservation Officer, J. Rodney Little, rejected the first four sets of redevelopment plans submitted by the City. On December 22, 2010, Mr. Little provided conditional approval of the fifth set of plans. The City, on December 30, 2010, agreed to those conditions.

Four months later, 120 West Fayette, Appellant here, filed a complaint in the Circuit Court for Baltimore City seeking a declaration of rights “interpreting the Memorandum of Agreement in light of the facts of this case, and declaring the 12/22/10 letter from Rodney Little to be ultra vires, ab initio.” The City, the Baltimore Development Corporation (BDC), Lexington Square, and the Trust, hereafter Appellees collectively, moved to dismiss the complaint. The Circuit Court dismissed the complaint on the ground that 120 West Fayette failed to state a claim upon which relief could be granted because it was neither a party to, nor an intended beneficiary of, the MOA.

We granted the petition of the City and the BDC, and issued a writ of certiorari to consider whether 120 West Fayette can maintain an action that seeks a declaration interpreting the terms of the MOA. 120 West Fayette v. Baltimore, 422 Md. 356, 30 A.3d 196 (2011). For the reasons that follow, we affirm the judgment of dismissal.

I.

During its 2000 legislative session, the General Assembly appropriated $11.5 million dollars to the Maryland Stadium Authority to rebuild the Hippodrome Performing Arts Center, an historic theater centrally located within the westside development area. See 2000 Md. Laws, ch. 204 § 1, DA03.60(2) (FY 2001 Budget Appropriation). The appropriation came with the condition that $1 million of the expenditure hinged on “the City of Baltimore and the Maryland Historical Trust ... reaching] [an] agreement on how to minimize the demolition of structures which contribute to the Market Center National Register Historic District.” Id.

In addition to the requirements of the FY 2001 Budget Appropriation, Maryland law² requires the Director of the Trust, and federal law³ requires the State Historic Preservation Officer (SHPO), to determine whether proposed capital projects would adversely affect any property listed in or eligible to be listed in the Maryland Register of Historic Properties or the National Register of Historic Places. Typically in Maryland, a memorandum of agreement constitutes an agreement between a governmental entity and the Trust that the project may proceed on condition that certain stated steps are taken by the State or local government to avoid, mitigate, or satisfactorily reduce any adverse effects on identified historic properties.

On January 31, 2001, the City and the Trust entered into such an agreement, memorialized in the MOA. Then-Mayor Martin O’Malley signed the MOA on behalf of the City, and Mr. Little, as Director of the Trust and with the authority to enter into such agreements delegated to him by the Board of Directors of the Trust, signed the MOA on behalf of the Trust.⁴

The MOA, characterizing as “the Project” the City’s undertaking to redevelop the westside of downtown Baltimore, i.e., the Urban Renewal Plan, states that the Project “will include significant rehabilitation of existing buildings as well as demolition and new construction.” Moreover, “in consultation with the Trust, the City acknowledges that the Project may have adverse effects on properties within the Market Center Historic District, which is listed in the Maryland Register of Historic Properties and the National Register of Historic Places.” The MOA further states that, “in accordance with [the relevant State law provisions], the City and the Trust have consulted to determine means of avoiding, mitigating or satisfactorily reducing the adverse effects of the Project on historic properties.” The City therefore “anticipates that the Project will require support and actions from various State and Federal agencies which actions will necessitate conformance with the requirements of [State and federal law].”

The MOA includes the agreement of the City and the Trust that “the Project will be implemented in accordance with the following stipulations in order to take into account the effects of the Project on historic properties.” Among those stipulations is that the City “will prepare a strategic plan for the Project” that designates “those contributing historic buildings which the City and the Trust agree are worthy of preservation and those buildings which may be demolished without further consultation between the City and the Trust.” The MOA further provides that “[t]he strategic plan will be submitted for the review and comment of the [Market Center Project Area Committee], and the review and approval of the Trust, which approval shall not be unreasonably delayed or withheld.” Then, “[u]pon approval by the Trust, the City will pursue amendment of the Urban Renewal Plan to incorporate the approved strategic plan.” The MOA details both the approval process by the Trust as well as the City and the Trust’s respective obligations in connection thereto. Finally, the MOA provides: “The execution of the MOA and the implementation of its terms evidences that the City has afforded the Trust an opportunity to comment on the Project and its effects on historic properties, and that the City and the Trust have taken into account the effects of the Project on historic properties.”

The strategic plan contemplated by the MOA was developed in February 2001, within days of the signing of the January 2001 MOA.⁵ Over the years that followed,⁶ Mr. Little, in his capacity as Director of the Trust and as SHPO, and Jay Brodie, President of the BDC, corresponded through a series of letters regarding plans submitted by the City for the proposed Superblock development. On October 29, 2010, Lexington Square, through the City, submitted to the Trust, for its review pursuant to the MOA, a development plan for the Superblock. The development plan called for the complete demolition of nine buildings and partial demolition of five buildings designated for preservation by the strategic plan.

By letter dated December 22, 2010, Mr. Little granted conditional approval of the proposed development plan.⁷ In that letter, Mr. Little, noting that the development plan contained “substantial adverse effects on historic resources,” intimated that the development plan was approved because it was the product of Lexington Square’s “non-negotiable business model for redevelopment of the Superblock,” and the proposed plan had consistently enjoyed the City’s support as “the preferred retail strategy for [the Superblock].” On December 30, 2010, the City and Lexington Square accepted the conditions stated in the December 22, 2010 approval letter.

Sometime in January 2011, the Trust learned of Mr. Little’s conditional approval of Lexington Square’s development plan. Disagreeing with Mr. Little’s disposition of the matter, the Trust voted to ask Mr. Little to rescind his approval. When Mr. Little declined, the Trust transmitted a letter to the Mayor of Baltimore to convey its “serious reservations” about the development plan for the Superblock. The Trust also contacted counsel in the Office of the Attorney General for advice on the legal viability of challenging Mr. Little’s approval. Of relevance here, the Trust took no further action, legal or otherwise, to challenge Mr. Little’s conditional approval.

The Complaint

On April 19, 2011, 120 West Fayette filed a complaint in the Circuit Court for Baltimore City challenging Mr. Little’s actions as ultra vires and illegal under the MOA and requesting declaratory relief. The complaint names as defendants the City, the BDC, Lexington Square, and, as a “necessary party,” the Trust. The complaint alleges that “interpretation of a contract — the MOA between the State and City — ” reveals how the approval process for demolition within the Superblock should have proceeded. The complaint further alleges that the approval process set forth in the MOA was violated when Mr. Little “abdicated] ... the MOA’s contractual preservation mandate” by approving the demolition of nine designated buildings and thereby prohibited the Trust from exercising its proper role under the MOA by unilaterally approving the development plans. The complaint prayed the court to “interpret[ ] the Memorandum of Agreement in light of the facts of this case, and declar[e] the 12/22/10 [acceptance] letter from Rodney Little to be ultra vires, ab initio.”

Each Appellee — the City, the BDC, Lexington Square, and the Trust — filed a motion to dismiss the complaint. All Appellees argued, inter alia,8 that 120 West Fayette’s claim should be dismissed because 120 West Fayette is neither a party to, nor an intended beneficiary of, the private agreement memorialized in the MOA. Appellees pointed out that the MOA explicitly names the City and the Trust as parties to the agreement and does not contain a term or promise for the particular benefit of 120 West Fayette. Therefore, Appellees argued, 120 West Fayette does not possess the requisite standing to file a suit requesting a declaratory judgment that interprets and enforces the MOA’s approval provisions.

120 West Fayette answered, arguing that its standing in the matter was beyond challenge. Citing our opinions in Superblock I and Superblock II, 120 West Fayette asserted that its standing to request declaratory relief for ultra vires acts connected to the Superblock was established in Superblock I and “perpetuated” by Superblock II.

The motions to dismiss came on for a hearing before the Circuit Court, which granted the motions and dismissed the complaint for failure to state a claim upon which relief could be granted. The Circuit Court agreed with Appellees that “[120 West Fayette] ha[s] sued to enforce an agreement, the MOA, which exists between [Appellees], and to which [120 West Fayette is] not a party nor a beneficiary.”⁹ The court ruled that “this status does not establish a cause of action for [120 West Fayette] against [Appellees].” Issuing a declaratory judgment interpreting the MOA, explained the court, would be “issuing nothing more than a purely advisory opinion as to [120 West Fayette] and [the City and the Trust].”

120 West Fayette noted an appeal to the Court of Special Appeals. Before the case could be decided by that court, the City and the BDC filed a petition for writ of certiorari in this Court. The City and the BDC also filed an unopposed motion to expedite appellate review, citing the protracted litigation record between the parties in connection with development of the Superblock and the threat of losing State and private capital investment in the Superblock development project should the litigation continue into the 2012 calendar year. We granted both the petition, 120 West Fayette, 422 Md. at 356, 30 A.3d at 196, and motion and consolidated into the one question below the two questions presented in the petition:¹⁰

Was the Circuit Court correct in dismissing 120 West Fayette’s complaint requesting declaratory relief, which would interpret and enforce the terms of an agreement between the Trust and the City?

II.

120 West Fayette argues that the Circuit Court made a legal error in granting the City’s motion to dismiss for failure to state a claim.¹¹ Specifically, 120 West Fayette argues that the Circuit Court erred in using principles of contract law to analyze its standing, because, in the words of 120 West Fayette, the MOA is “much more than a simple agreement between the City and a State agency.” Instead, 120 West Fayette posits that our holdings in Superblock I and Superblock II support its assertion that it has the requisite standing to request declaratory relief interpreting the MOA, and, thereby, in its words, “give [the Trust] the right to review and rule on demolition plans under the MOA.” In essence, 120 West Fayette argues that our prior opinions grant it the ability to sue the City, on the Trust’s behalf, in order to return to the Trust a decision-making power granted by the MOA. As we have mentioned, the Circuit Court agreed with 120 West Fayette that those cases conferred “standing”; nevertheless, the court ruled that 120 West Fayette failed to state a justiciable claim because it is only an incidental beneficiary of the MOA between the City and the Trust.

120 West Fayette asserts that in Superblock I this Court granted 120 West Fayette taxpayer standing, or alternatively, adjoining property owner standing, “to seek a declaratory judgment” where “[a]ppellant ... claimed unlawful and manipulative actions of the City and BDC.” 120 West Fayette argues that it retains taxpayer standing in the instant case because it pays City and State taxes and, like it did in Superblock I, challenges acts taken by government officials that were illegal and ultra vires. 120 West Fayette further asserts that it maintains its adjoining property owner standing because it remains situated next to the development site and, like in Superblock I, the violation it alleges derives from a quasi-land use decision. In that regard, 120 West Fayette declares the MOA to be a land use decision because it is “a unique land control device” that “provides an administrative body (The Trust) [with] control [of] demolition in an historic area.”

120 West Fayette also is of the view that we confirmed its standing in Superblock II to seek declaratory relief in the form of an interpretation of the MOA. 120 West Fayette alleged in the litigation that prompted our decision in Super-block II that “[defendants named in the Superblock II complaint do] not intend to comply with the standards ... in the MOA.” 413 Md. at 354, 992 A.2d at 487. We held that the allegation did not give rise to a justiciable controversy and therefore was unripe for adjudication. Id. at 359, 992 A.2d at 489. We added the following footnote to that discussion:

We affirm the dismissal of [the unripe claim in] 120 West Fayette’s amended complaint without prejudice to 120 West Fayette’s right to reassert the claim and seek appropriate relief when the alleged facts have developed to the point that a violation is imminent or has occurred. See Boyds [Civic Ass’n v. Montgomery Cnty. Council], 309 Md. [683] 692, 526 A.2d [598] 602 [(1987)] (“The imminence and practical certainty of the act or event in issue, or the intent, capacity, and power to perform, create justiciability as clearly as the completed act or event, and is generally easily distinguishable from remote, contingent, and uncertain events that may never happen and upon which it would be improper to pass as operative facts.” (internal quotation marks and citations omitted)).

Id. at 358 n. 19, 992 A.2d at 489 n. 19.

120 West Fayette maintains that the above-quoted footnote (footnote 19) provides implicit approval of 120 West Fayette’s standing to litigate the claim it raised in Superblock II, once that claim became ripe for consideration. 120 West Fayette asserts, moreover, that the claim it raises in the current declaratory judgment action is identical to the non-justiciable claim raised in Superblock II. As 120 West Fayette sees it, footnote 19 serves as an “invitation” to litigate, on behalf of the Trust, the enforcement of a breached promise that was memorialized in the MOA.

We disagree with both prongs of 120 West Fayette’s standing argument. We consider first the Superblock //-related contention. To begin, the claim 120 West Fayette presents in the current declaratory judgment action (i.e., that Director Little’s actions constituted an illegal and ultra vires “abdication of the MOA’s contractual preservation mandate”) is not the same as the claim at issue in Superblock II (i.e., that a private developer, Lexington Square, does not intend to comply with the building height standards laid out in the MOA and Urban Renewal Plan). But even assuming, solely for the sake of argument, that the claims here and in Superblock II are materially the same, our discussion of the MOA in Super-block II did not address directly, either in footnote 19 or elsewhere in the opinion, whether 120 West Fayette would have standing to litigate such a claim, even if ever it were ripe for judicial review. Much less does the footnote constitute a holding of this Court. At most, footnote 19 notes, by citation and an accompanying parenthetical, when the claim raised in Superblock II might become justiciable.

We similarly reject the contention that our opinion in Superblock I provides 120 West Fayette grounds for legal standing in the instant case. Superblock I is fundamentally distinguishable from the case at bar. In Superblock I, 120 West Fayette alleged that the City and BDC “unlawfully violated ... the City’s Charter and laws, to award the LDA [Land Disposition Agreement] to a favored developer.”¹² 407 Md. at 260, 964 A.2d at 665 (emphasis added). That allegation was necessary to our holding that 120 West Fayette possessed taxpayer standing, or alternatively, adjoining property owner standing, in that litigation. See id. at 268, 964 A.2d at 670 (“In our view, the allegations contained in 120 West Fayette’s complaint are also sufficient to establish taxpayer standing .... 120 West Fayette’s complaint specifically alleges that the LDA agreement is ‘in derogation of the Charter and laws of the City. ’ ”); see also id. at 272, 964 A.2d at 673 (“[W]e conclude that the principles that confer standing upon an adjoining ... property owner to seek judicial review of land use decisions, logically extend to an adjoining ... property owner that is challenging ... illegal avoidance of urban renewal and procurement ordinances.”) (emphasis added).

The complaint we consider in the present appeal does not allege a violation of City law or the City Charter. Instead, the complaint charges Dr. Little and the City with the “abdication of the MOA’s contractual preservation mandate,” and explains that the “interpretation of a contract — the MOA between the State and City — ” controls how approval for development plans should have proceeded. (Emphasis added.) Specifically, 120 West Fayette’s complaint highlights, as the “gravamen” of the complaint, “[t]he illicit circumvention of appropriate approval for demolition plans.” Self-evidently, 120 West Fayette explicitly recognizes the contractual nature of the MOA.

Moreover, the process for “appropriate approval” set forth in the MOA derives from the agreemént that the City and the Trust memorialized in the MOA, not from the City Charter or its laws. In essence, 120 West Fayette claimed a violation of a law in Superblock I, but claims in the instant case the breach of a contractual provision. The distinction renders inapposite the holding of Superblock 7,¹³ extending tax-payer and adjoining landowner standing to a party alleging a violation of an urban renewal ordinance.¹⁴

120 West Fayette also argues that it has standing as an adjoining landowner because the MOA is a “unique land control device” that “provides an administrative body (The Trust) [with] control [of] demolition in an historic area.” The argument fails in its premise. The MOA is not a land control device — or, perhaps better stated, a “land use decision” — with attendant principles extending standing to nearby aggrieved landowners.

Generally defined, a land use decision is a decision (typically an ordinance or regulation) enacted or promulgated by a legislative or administrative body for the purpose of directing the development of real estate. See Black’s Law Dictionary 958 (9th ed. 2009) (defining “land use regulation” as “an ordinance or other legislative enactment governing the development or use of real estate”). Important for present purposes, our research discloses not a single case of this Court approving the grant of tax-payer or adjacent landowner standing to an individual or entity in any context other than a challenge to or pursuant to a land use decision, as that term is generally understood. Indeed, in every case of this Court that we have found, the land use decision a party was seeking to challenge or enforce was either an ordinance, variance, reclassification, or special exception provided by a local zoning body, or a permit or license issued by an administrative agency. See, e.g., Prince George’s Cnty. v. Billings, 420 Md. 84, 97-98, 21 A.3d 1065, 1072-73 (2011) (granting taxpayer and adjoining landowner standing to residents who sought to challenge a departure from design standard and special exception granted by the Prince George’s County Planning Board and Zoning Hearing Examiner, respectively); Superblock I, 407 Md. at 269-70, 964 A.2d at 671 (granting tax-payer and adjoining landowner standing to a private corporation that sought to challenge a violation of a Baltimore City Council urban renewal ordinance); Sugarloaf Citizens’ Assoc. v. Dep’t of Env’t, 344 Md. 271, 298-99, 686 A.2d 605, 619 (1996) (granting farm-owners adjoining landowner standing to challenge issuance of two permits by the Department of the Environment authorizing construction of trash incinerators); Wier v. Witney Land Co., 257 Md. 600, 614, 263 A.2d 833, 840 (1970) (granting landowners adjoining landowner standing to challenge a reclassification and special exception granted by the County Board of Appeals of Baltimore County); Habliston v. City of Salisbury, 258 Md. 350, 355, 265 A.2d 885, 887 (1970) (granting landowner adjoining landowner standing to challenge a City of Salisbury ordinance reclassifying land from industrial to residential); The Chatham Corp. v. Beltram, 252 Md. 578, 584, 251 A.2d 1, 4 (1969) (granting homeowners adjoining landowner standing to challenge a zoning reclassification granted by the County Commissioners of Howard County); Aubinoe v. Lewis, 250 Md. 645, 651-52, 244 A.2d 879, 882-83 (1968) (granting homeowners adjoining landowner standing to challenge a rezoning decision by the Montgomery County District Council); Bryniarski v. Montgomery Cnty. Bd. of Appeals, 247 Md. 137, 146-47, 230 A.2d 289, 295-96 (1967) (granting landowners adjoining landowner standing to challenge a special exception granted by the Montgomery County Board of Appeals); Hertelendy v. Montgomery Cnty. Bd. of Appeals, 245 Md. 554, 564-65, 226 A.2d 672, 678-79 (1967) (reversing Circuit Court’s determination that appellant was not an aggrieved party, for purposes of standing to challenge a variance granted by the Montgomery County Board of Appeals); Windsor Hills Improvement Assoc., Inc. v. Mayor of Baltimore, 195 Md. 383, 394, 73 A.2d 531, 535 (1950) (denying standing to an association seeking to challenge the Baltimore City Board of Municipal Zoning Appeals’s grant of a building permit).

Previous opinions of the Court of Special Appeals generally follow the same pattern. See, e.g., Ray v. Baltimore, 203 Md.App. 15, 40, 36 A.3d 521, 536 (2012) (denying adjoining property owner standing to individuals challenging a Baltimore City Council zoning ordinance that established a planned unit development); Handley v. Ocean Downs, LLC, 151 Md.App. 615, 629, 827 A.2d 961, 969 (2003) (granting homeowners taxpayer standing to challenge the City of Cambridge Board of Zoning Appeals’s grant of a special use permit); Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.App. 479, 507, 822 A.2d 478, 494 (2003) (denying standing to a non-taxpayer who challenged the grant of a zoning variance by the Board of Zoning Appeals of the Town of Willards); Comm. For Responsible Dev. on 25th Street v. Mayor of Baltimore, 137 Md.App. 60, 89, 767 A.2d 906, 921-22 (2001) (denying the adjoining property owner standing to a resident challenging issuance of a demolition and construction permit by Baltimore City Board of Municipal and Zoning Appeals); Holland v. Woodhaven Bldg. & Dev., Inc., 113 Md.App. 274, 281-82, 687 A.2d 699, 703 (1996) (denying residents aggrieved status to challenge approval for a residential subdivision by the Town of Hampstead Planning & Zoning Commission); Cylburn Arboretum Assoc., Inc. v. Mayor of Baltimore, 106 Md.App. 183, 193, 664 A.2d 382, 387 (1995) (denying standing to an association challenging Baltimore City zoning ordinance that permitted planned use development on a lot); Grooms v. LaVale Zoning Bd., 27 Md.App. 266, 270-271, 340 A.2d 385, 389 (1975) (granting residents standing to challenge resolution and order amending the zoning map enacted by the LaVale Zoning Board); cf. Long Green Valley Assoc. v. Bellevale Farms, Inc., 205 Md., 46 A.3d 473, 2012 WL 2055103 (2012) (granting adjoining landowner standing in a challenge brought pursuant to a Maryland Agricultural Land Preservation Foundation easement that aimed to preserve agricultural character of land at issue and restricted land from being used for commercial, industrial or residential purposes).

The MOA at issue in the present case is not an ordinance, variance or permit. Furthermore, the MOA binds only two parties (as opposed to the general public). The MOA was not enacted by a legislative or administrative body. And, most important, the MOA does not direct the use or development of real estate in the Superblock. The MOA, in short, is not a land use decision.

We also reject the argument of 120 West Fayette that the MOA vested the Trust with authority to “control ... demolition in an historic area,” thereby (as we understand the argument) rendering the MOA a land use decision. Title 5A, Subtitle 3 of the Maryland Code (2001, 2009 Repl.Vol.), State Finance and Procurement Article (SFP) establishes the Trust and sets forth its responsibilities. 120 West Fayette does not direct us to a provision within that Subtitle that expressly empowers the Trust to direct the development of real estate, and we can find none.¹⁵ It appears that the closest express connection the Trust has to land use decisions is in SFP § 5A-326.¹⁶ Even there, a State unit that “issues permits or licenses” need only “cooperate” with the Trust by “giving notice to the Trust, on request, of each application for a permit ... [or] license,” and, “where appropriate^ ... consulting] with the Trust before the State unit takes final action on the application.” SFP § 5A-326(d)(l) & (2).

Because the MOA is not a land use decision, 120 West Fayette cannot rely on the principles that extend standing to an adjoining landowner in review of land use decisions. 120 West Fayette therefore is left only with principles of contract law to establish its entitlement to press a claim for declaratory relief.

As we have said, 120 West Fayette recognizes the contractual nature of the MOA. Indeed, by its terms, the MOA is an agreement between the City and the Trust. For the Trust, the MOA establishes a procedure for Trust consultation and approval of development plans with potential adverse effects on historic properties within the Superblock that is in accordance with state and federal law. For the City, the MOA fulfills a condition precedent to receiving the General Assembly’s $1 million appropriation for redevelopment of the Hippodrome Performing Arts Center, a key component of the westside Urban Renewal Plan. Therefore, the Circuit Court properly applied principles of contract law to determine whether 120 West Fayette is entitled to seek the declaratory relief requested in the complaint. Under those principles, 120 West Fayette may only ask for declaratory relief interpreting the MOA if it can show that it was a party to, or an intended beneficiary of, the MOA.

At common law, only a party to a contract could bring suit to enforce the terms of a contract. Marlboro Shirt Co. v. Am. Dist. Tel. Co., 196 Md. 565, 569, 77 A.2d 776, 777 (1951). The common law rule has expanded to permit “third-party beneficiaries” to bring suit in order to enforce the terms of a contract. Dickerson v. Longoria, 414 Md. 419, 452, 995 A.2d 721, 742 (2010). “An individual is a third-party beneficiary to a contract if ‘the contract was intended for his [or her] benefit’ and ‘it ... clearly appear[s] that the parties intended to recognize him [or her] as the primary party in interest and as privy to the promise.’” Id., 995 A.2d at 741 (quoting Shillman v. Hobstetter, 249 Md. 678, 687, 241 A.2d 570, 575 (1968)) (alterations in original). It is not enough that the contract merely operates to an individual’s benefit: “An incidental beneficiary acquires by virtue of the promise no right against the promisor or the promisee.” Lovell Land, Inc. v. State Highway Admin., 408 Md. 242, 261, 969 A.2d 284, 295 (2009) (citation omitted).

120 West Fayette is not a party to the MOA, and, indeed, it does not claim to be. The memorandum states explicitly: “This [agreement] is entered into ... by and between the Mayor and City Council of Baltimore ... and the Maryland Historical Trust.” Additionally, 120 West Fayette is not a third-party beneficiary of the MOA. The promises and benefits set forth in the MOA are directed solely to the City and the Trust. Nowhere in the MOA is it contemplated that 120 West Fayette is to receive a benefit. 120 West Fayette seems to concede as much in its brief before this Court, explaining that it did not file its complaint in order to obtain a favorable administrative decision; instead, “[120 West Fayette] asked the nisi prius court to restore the Board’s opportunity, conferred by the MOA, to the rightful decision maker, i.e., the Board of Trustees of [the Trust].... The prime intent of the suit was to give [the Trust] the right to review and rule on demolition plans under the MOA.” (Emphasis added.)

Neither does 120 West Fayette’s standing to challenge the City’s “allegedly illegal avoidance of urban renewal and procurement ordinances,” Superblock I, 407 Md. at 272, 964 A.2d at 673, make it a donee or creditor beneficiary of the MOA. And 120 West Fayette does not claim a direct right to compensation from the MOA. See Montana v. United States, 124 F.3d 1269, 1273 n. 6 (Fed.Cir.1997) (“When members of the public bring suit against promisors who contract with the government to render a public service,” they “are considered to be incidental beneficiaries unless they can show a direct right to compensation.”). In short, the parties to the MOA did not “intend[ ] to recognize” 120 West Fayette “as the primary party in interest and as privy to the promise.” Dickerson, 414 Md. at 452, 995 A.2d at 741 (quoting Shillman, 249 Md. at 687, 241 A.2d at 575).

The Trust ultimately chose not to take any legal action in connection with this matter. Whether 120 West Fayette is satisfied with the consequences of that decision is immaterial, because 120 West Fayette’s satisfaction was not contemplated by the private agreement memorialized in the MOA.

We hold that 120 West Fayette, at best an incidental beneficiary to the MOA, may not file a suit requesting declaratory judgment that interprets and enforces an agreement to which it has no part. The Circuit Court did not err in dismissing the complaint.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

BELL, C.J., HARRELL and CATHELL, JJ., Dissent.

1

. The five-block area that makes up the Superblock is bounded by Fayette Street, Howard Street, Lexington Street, Clay Street, and Park Avenue.

2

. See Md.Code (2001, 2009 Repl.Vol.), § 5A-325 of the State Finance and Procurement Article (SFP) (requiring, inter alia, that a State unit, "[t]o the extent feasible, ... consult with the Trust to determine whether the project will adversely affect any property listed in or eligible for listing in the Historic Register”; and, "[w]ithin 30 days after a State unit notifies the Director [of the Trust] of a proposed capital project ..., the Director shall determine whether the project would adversely affect any property listed in or eligible to be listed in the Historic Register”); SFP § 5A-326 (mandating, inter alia, that, "[i]f a historic property is to be altered substantially or destroyed by State action or with financial assistance from a State unit, the State unit shall cause timely steps to be taken to: (1) make appropriate investigations and records; (2) salvage appropriate objects and materials; and (3) deposit with the Trust the results of the investigations, the records, and the recovered objects and materials”).

3

. See Sections 106 and 110 of the National Historic Preservation Act, 16 U.S.C. §§ 470f and 470h-2(a) (providing, in part, that the head of a federal agency having jurisdiction over a proposed federal undertaking in a state must take into account the effect of the undertaking on any building eligible for inclusion on the National Register of Historic Places by, among other steps, consulting with the State Historic Preservation Officer on means to consider adverse effects on historic properties).

4

. State law requires the Trust to appoint a Director who is responsible for determining whether proposed state capital projects would adversely affect historical properties. See SFP § 5A-316 & § 5A-325. Federal law likewise requires the designation of a State Historic Preservation Officer (SHPO), who assists federal agencies in determining whether proposed federal capital projects would adversely affect historical properties. See 16 U.S.C. § 470h-2. Because the duties of the two offices are so similar, Mr. Little has served as the State Director of the Trust and federal SHPO, concurrently, for the past 32 years.

5

. We have taken judicial notice that the strategic plan contemplated by the MOA was created in February 2001 and is available for review on the BDC’s website. Urban Renewal Plan: Market Center, http://www. baltimoredevelopment.com/sites/default/files/downloads-resources/ Market_Center_URP.pdf (last visited Apr. 24, 2012).

6

. Because this case is before us from the grant of a motion to dismiss, we assume the truth of all well-pleaded facts and allegations contained in the complaint and “all inferences that may reasonably be drawn from them.” Parks v. Alpharma, Inc., 421 Md. 59, 72, 25 A.3d 200, 207 (2011) (quoting RRC Northeast, LLC v. BAA Maryland, Inc., 413 Md. 638, 643, 994 A.2d 430, 433-34 (2010)). All references herein to historical facts comply with this standard.

7

. 120 West Fayette dedicates a substantial portion of its brief to the allegation that Mr. Little granted the development plan conditional approval “[ujnder intense political pressure.” Specifically, 120 West Fayette asserts that Mr. Little was "muscle[d]” into approving the development plan at a December 16, 2010, meeting between City and State political "heavyweights.” We note the gravity of these allegations but do not delve into their specifics here. Whether such a meeting took place and Mr. Little was so "muscle[d]” does not bear on the disposition of the legal issue before us.

8

. The City, the BDC, and Lexington Square argued a failure by 120 West Fayette to allege a justiciable controversy because: (1) the action is barred by SFP § 5A-325(h); (2) 120 West Fayette is neither a party to nor an intended third-party beneficiary of the MOA that is capable of enforcing its terms; (3) the Trust’s Executive Director, Mr. Little, acted within his authority in approving the proposed Superblock development plan; and (4) the MOA provides that, in the absence of Trust action within 30 days, the proposed development plan is deemed automatically approved, thereby rendering moot any claim asserted by 120 West Fayette.

The Trust’s motion to dismiss included some of the arguments made by the other defendants and further asserted that: (1) the sovereign immunity of the Trust bars the complaint; (2) the complaint presents a non-justiciable political question not amenable to judicial resolution; and (3) judicial action to enforce the MOA is precluded by the dispute resolution clause of the MOA.

It is unnecessary for us to address, and so we do not address, any argument of Appellees other than the argument accepted by the Circuit Court, that is, 120 West Fayette failed to state a justiciable claim because it is, at most, an incidental beneficiary of the agreement between the City and the Trust.

9

. The Circuit Court specifically noted that, "for the purposes of the present arguments, [120 West Fayette has] standing for the same reasons established by the Court of Appeals in its decision in Superblock I.” The court went on to rule that 120 West Fayette, in making its claim as an incidental beneficiary of the MOA, "failed to state a claim upon which relief can be granted.”

As we shall discuss further, infra, we agree with the Circuit Court's reasoning concerning 120 West Fayette’s status and rights as an incidental beneficiary. However, we disagree with the Circuit Court that the principles laid out in Superblock I confer standing upon 120 West Fayette to challenge the MOA.

10

. The City and the BDC presented two questions for review in their joint petition:

1. Whether an incidental third party beneficiary’s challenge to enforce a contract presents a justiciable controversy?

2. Whether [120 West Fayette] has any basis to assert a private cause of action challenging the Trust’s review and approval of the proposed Superblock development under the MOA between the Trust and the City?

11

. We review for legal correctness a circuit court's grant of a motion to dismiss, RRC Northeast, 413 Md. at 644, 994 A.2d at 434, by reference, see supra n. 6, to all well-pleaded facts and allegations and reasonable inferences drawn therefrom.

12

. Specifically, 120 West Fayette asserted that the City illegally engaged in a public works project outside of the bidding process provided in Art. VI § 11 of the City Charter, and used a negotiating instrument (an "Exclusive Negotiating Privilege") that was "a concept foreign to the City Charter [and] City Code.” Superblock I, 407 Md. 253, 268, 964 A.2d 662, 670 (2009).

13

. Our dissenting colleagues dispute this point, asserting that 120 West Fayette's action “is not merely based on the terms of the MOA; it is based on State law.” Op. at 51, 43 A.3d at 377-78. According to the dissent, 120 West Fayette’s complaint alleges a violation of SFP § 5A-326(a)(2), which commands a State unit’s cooperation with the Trust to "ensure that no property listed in or eligible to be listed in the Historic Register is inadvertently transferred, sold, demolished, destroyed, substantially altered, or allowed to deteriorate significantly.” Op. at 40, 43 A.3d at 371.

There are two flaws in the dissent’s analysis. First, and foremost, 120 West Fayette is categorically barred from alleging a violation of § 5A-326(a)(2). Section 5A-326(h) explicitly prohibits private causes of action for a State unit's non-compliance with the Trust’s review, consultation and cooperation on historic preservation projects. Second, 120 West Fayette, seemingly aware of this statutory bar, did not file a complaint in the Circuit Court asking for declaratory judgment defining State law. 120 West Fayette prayed for the relief of an interpretation of the MOA, claiming only that provisions of the MOA had been violated.

14

. None of the arguments advanced by Preservation Maryland, National Trust for Historic Preservation and Baltimore Heritage, Inc. (Amici) in support of 120 West Fayette persuades us to a different conclusion. We already have rejected the argument, which Amici repeat, that Superblock I and II provide the basis for 120 West Fayette’s standing. We also reject the suggestion that the very nature of the MOA at issue here entitles 120 West Fayette to bring a declaratory judgment action in connection with it.

Amici cite to Master Royalties Corp. v. Mayor of Baltimore, 235 Md. 74, 92, 200 A.2d 652, 661 (1964), in making the broad assertion that "the lower court improperly ignored well-established Maryland land-use law that gives expanded standing to property owners confronted with harmful effects of redevelopment projects.” We remain unpersuaded by this assertion because, as we explain infra, the MOA before us is not a land use decision. Unlike the urban renewal ordinance at issue in Master Royalties, which “approvefd] a renewal plan for Project I of the Mount Royal-Fremont Renewal Area,” 235 Md. 74, 82, 200 A.2d 652, 656, or the renewal ordinance at issue in Superblock I, the MOA between the City and the Trust was not promulgated by a legislative or administrative body to bind the general public in the development or use of real estate. We therefore decline to apply "well-established Maryland land-use law” to the question of whether a non-party to the MOA has standing to litigate compliance with its terms.

Second, Amici assert that the MOA at issue is a close relative of MO As entered into pursuant to Section 106 of the National Historic Preservation Act, which effectuate historical preservation goals for federal capital projects. This similarity, according to Amici, gives “added weight” to federal authority interpreting Section 106 MOAs. Consequently, Amici cite to two Section 106 cases, Tyler v. Cuomo, 236 F.3d 1124 (9th Cir.2000) and Waterford Citizens’ Ass’n v. Reilly, 970 F.2d 1287 (4th Cir.1992), which Amici assert stand for the proposition that private citizens possess standing to enforce the terms of an MOA drawn up for historical preservation purposes. Both cases are inapposite to the statutory issue we here decide.

Of the two, only Tyler, the decision of the United States Court of Appeals for the Ninth Circuit, deals squarely with the standing of a non-party, private citizen to enforce the terms of an MOA governing historic preservation of a federal capital project. In that case private homeowners brought suit against the United States Department of Housing and Urban Development and the City of San Francisco, among others, for the breach of an MOA entered into pursuant to Section 106 of the National Historic Preservation Act. 236 F.3d at 1128. The defendant agency and city argued that the plaintiff homeowners could not bring suit to enforce breached terms of the MOA “because they lack[ed] privity of contract and [were] not intended beneficiaries of the MOA.” Id. at 1134. The Tyler court disagreed, holding that the plaintiffs "[had] standing as third-party beneficiaries to the MOA.” Id. at 1135. The court based its holding on the fact that "Stipulation 5 of the MOA specifically provide[d] that if a ‘member of the public’ makes a written complaint, 'the City shall take the objection into account and consult as needed with the objecting party.' ” Id. at 1134. Thus, noted the court, though the plaintiffs were not signatories to the MOA, they were contemplated as beneficiaries of the MOA's terms because they were "specifically referenced in Stipulation 5.” Id. at 1135.

The reasoning of the Tyler court does not apply to the facts of the case at bar. Unlike the MOA in Tyler, the MOA in the present case does not provide for a public right of comment.

15

. Under the enumeration of the Trust’s powers and duties codified at SFP § 5A-318, the Trust may do the following: (1) adopt regulations to carry out Title 5A, Subtitle 3; (2) take legal action to enforce the subtitle; (3) adopt and use an official seal; (4) contract for services; (5) apply for and accept loans; (6) provide financial assistance to a historic preservation project; (7) acquire and hold real and personal property; (8) acquire securities or other evidence of indebtedness; (9) acquire title to a historic property by conveyance or foreclosure; (10) transfer or dispose of property held by the Trust; (11) make agreements and contracts for the performance of Trust duties; (12) preserve, restore, rehabilitate, reconstruct, protect, document, excavate, salvage, exhibit and interpret historic properties; (13) accept and use gifts for any Trust purpose; (14) apply to Trust purposes any thing of value the Trust receives; or (15) delegate any of its powers to the Director, or one of the trustees. SFP § 5A-318(b)(l)-(15).

Likewise, in accordance with its duties, the Trust must: (1) direct a statewide survey of historic properties; (2) maintain an inventory and register of historic properties; (3) research and document the significanee of historic properties; (4) prepare and implement statewide and regional historic preservation plans; (5) help subdivisions develop local historic preservation plans; (6) carry out programs and activities to protect and preserve historic properties; (7) preserve properties held by the Trust; (8) cooperate with various governmental entities to ensure historic properties are considered at all levels of planning and development; (9) review State unit programs that affect historic properties, and recommend ways to improve their effectiveness; (10) administer financial and technical assistance programs for historic preservation; (11) make recommendations on certification of historic properties for tax credits; (12) provide public education and training relating to historic preservation; (13) encourage public interest in historic preservation; (14) assist the State Historic Preservation Officer in his or her responsibilities; (15) advise the Governor and General Assembly on historic preservation; and (16) submit an annual report of its activities to the Governor and General Assembly. SFP § 5A-318(c)(l)-(16).

Based on this enumeration, we fail to see how the Trust may direct a State unit on the development of real estate under that State unit's control. Even more so, we fail to see how the Trust is entitled to direct a citizen of this State on the development of real estate within the citizen’s control. Under SFP § 5A-318(c)(8) & (9), the closest the Trust stands to the locus of a land use decision itself is carrying out its duties of "cooperation],’' "review,” and "recommend[ation].” In short, the Trust does not and cannot on its own direct real estate development.

16

. Entitled "Protection and use of historic properties,” SFP § 5A-326 consists of eight subsections that outline how the Trust may effectuate the protection and preservation of historical properties. Subsection (a) provides that a State unit must cooperate with the Trust to identify historic properties under its control, ensure those historic properties are not inadvertently transferred or destroyed, and use historic buildings to the extent possible before acquiring new property. § 5A-326(a). Subsection (b) requires a State unit that transfers an historic property to ensure that the transfer provides for the preservation of the property, "[i]f it is prudent, practicable, and in the State's best interest to do so.” § 5A-326(b). Subsection (c) requires a State unit whose actions will result in the alteration or destruction of an historic property to investigate the property, salvage appropriate objects and materials, and deposit everything with the Trust. § 5A-326(c). Subsection (d), discussed above, requires a State unit to give notice to and consult with the Trust when issuing a permit or license that will affect an historic property. § 5A-326(d). Subsection (e) permits the State unit, after consultation with the Trust, to put certain preservation conditions on any license it issues. § 5A-326(e). It also provides that the reasonableness of the conditions are appealable in accordance with the Administrative Procedure Act. § 5A-326(e)(3). Subsection (f) requires the Trust to promulgate regulations for standards, guidelines and procedures to preserve historic properties under State unit control, in order to minimize the need for Trust review. § 5A-326(f). Subsection (g) makes the subtitle applicable to any "undertaking” subject to the National Historic Preservation Act. § 5A-326(g). And subsection (h) provides that, "[fjailure by a State unit to comply with this section does not create a private cause of action under State law.” § 5A-326(h).