660 A.2d 951 | Md. Ct. Spec. App. | 1995
Appellant, High Ridge Association, Inc., appeals the judgment of the Circuit Court for Carroll County (Burns, J., presiding), which found in favor of appellee, County Commissioners of Carroll County,
I. Was the Commissioners’ decision to condemn an unconstitutional, unlawful grant of a private remedy for the sole benefit and economic advantage of a single property owner, and not for a public purpose or benefit?
II. Was High Ridge Drive, as originally designed and approved, deliberately designed to terminate within the subdivision’s property and not to extend into the subdivision’s pedestrian-open space area to the boundary of Mr. Green’s property?
III. Was the Commissioners’ decision to condemn unconstitutional due to lack of any necessity to condemn?
High Ridge Drive runs in an easterly direction through High Ridge Estates and terminates fifteen feet from the common boundary of the subdivision and property now owned by one Aaron Green and his wife, Ruth. The property sought to be condemned is a strip of land fifty feet wide extending from High Ridge Drive fifteen feet to the Greens’ property. This strip now serves as a pedestrian right of way. Condemnation proceedings were instituted pursuant to the Greens’ recent proposal to develop their property with residential lots,
The initiation of condemnation proceedings occurred after, and as a result of, the Greens, through counsel, contacting the County Commissioners by letter on January 25, 1991, suggesting that an “apparent error on the record plat [of High Ridge Estates] ... complicated] the plan to extend High Ridge Drive into the Green property,” and that the County might consider exercising its power of eminent domain to resolve the “problem.”
The Greens submitted a Concept Plan for development of their property on September 30, 1991, which included the lots proposed to be created on the extension into their property of High Ridge Drive over the parcel suggested to be condemned. A Special Report to the Carroll County Planning and Zoning Commission, prepared by Brace Waldron, recommended acceptance of the concept Plan, conditioned upon the Greens’ ability to “gain in-fee access to High Ridge Drive or demonstrate the ability to build a County road across the fifteen-feet-wide Homeowners Association strip to High Ridge Drive.” The Report also stated the following with respect to High Ridge Estates:
The approved Preliminary Plan of High Ridge Estates shows, by the absence of a permanent cul-de-sac, that the roads were intended to provide access for future development into adjacent properties. These temporary cul-desacs were meant to be removed as the roads were extended. The approved Preliminary Plan of High Ridge shows a separate parcel over the old road and right-of-way that ran*428 parallel to the common property line between Aaron Green and the subdivision.
In accordance with the practice at that time, the existing old right-of-way was placed on a separate parcel to keep it off the proposed lots. During the Final Plans Review of the subdivision, the right-of-way parcel was included with the open space parcel for use as a pedestrian pathway. The open space areas, as well as the fifteen-feet-wide parcel, are now owned by the High Ridge Homeowners Association.
There was other evidence also presented relating to preexisting rights of ways from which inferences could be made that, in fact, no error (as suggested by the Greens) had occurred. There was apparently a law in effect at the time that the High Ridge plat was recorded that prohibited the platting of a subdivision street over a pre-existing recorded right of way. Because a pre-existing right of way was believed to exist, High Ridge was not permitted to extend High Ridge Drive to the property line. That law apparently was later changed. Thus, appellant contends the termination short of the property line could not have been a mistake because, in the first instance, it was required by statute. At the Planning and Zoning Commission’s November 19, 1991 meeting, the Commission made the following decision after considering Waldron’s Report and arguments made by the Greens’ representative:
Decision:
The Commission .'.. approves the concept plan as presented and as conditionally recommended.... In taking this action, the Commission on review finds, that the road in question as detailed and approved, on the approved preliminary subdivision plan was clearly laid out to extend to ánd intersect with the adjoining property line of the Aaron Green property; and further that the final plat prepared for record, deviated from the approved plan and was therefore in error in that it did not reflect what had been intended and approved (the eventual extension of the street into adjoining property).
On July 27, 1992, the County Commissioners filed a Complaint for condemnation in respect to appellant’s land. On November 17, 1992, the trial court granted appellant’s Motion for Separate Trial of Issues of Law. This allowed for the bifurcation of the Commissioners’ authority to condemn from the remaining issues. Trial was held on December 2, 1992. On December 16, 1993, the trial court found in favor of the County on its right to exercise eminent domain against the subject property. A hearing regarding appellant’s damages was then scheduled. On June 28, 1994, a stipulation of fair market value by the parties was presented to the trial court and judgment in accord therewith was entered.
I.
The Constitutionality of the Condemnation
We answer appellant’s first question in the affirmative and shall reverse the judgment of the Circuit Court for Carroll County. In light of this decision, we do not address the
Maryland Rule U6 states that
A proceeding for condemnation shall be commenced by filing a petition complying with Rules 2-303 through 2-305 as to form and contents and containing:
(4) "A statement of the purposes for which the property is sought to be condemned.
“The reason for this is plain. Without such a statement courts and litigants would not be able to determine whether a condemnation was proposed for a public purpose.” Prince George’s County v. Beard, 266 Md. 83, 96, 291 A.2d 636 (1972). In the case sub judice, the County provided the following averment in its Complaint:
4. That the property ... is needed for the proposed future public road....
While this bald assertion may appear to satisfy technically the requirements of Rule U6, it does not provide a basis upon which meaningful judicial review of the constitutionality of the condemnation proceeding may be conducted. See Beard, 266 Md. at 95-96, 291 A.2d 636 (“A legislative body can not make a particular use either public or private merely by so declaring it, for if it could do so the constitutional restraint [imposed by Maryland Constitution, Art. Ill § 40] would be utterly nugatory.” (citation omitted)). A mere recital that a proposed property is needed for a particular public use is insufficient when dealing with the deprivation of private property rights. Indeed, the County provides no explanation other than the aforementioned allegation to substantiate its conclusory and self-serving declaration of the need for a “proposed future public road.” One is left to wonder whether the use is buttressed by increased traffic flow, changing traffic patterns, and the like. “For us to hold on such a record that a public use has been established would be to hold, in essence, that a public body may condemn private property for any purpose
The power to exercise eminent domain is indeed an awesome one that must be adequately bridled lest “the rights of property [be] ... solely dependant upon the will of a legislative body, without restraint.” New Central Coal Co. v. George’s Creek Coal & Iron Co., 37 Md. 537, 559 (1873), appeal dismissed, 40 Md. 425 (1874). The exercise of eminent domain is predicated upon due process of law. A taking for a use that is not imbued with a public interest “is such a violation of the basic and essential features of constitutional government that it amounts to a taking without due process of law....” 2A Nichols, The Law of Eminent Domain § 7.01[3] (3d ed. rev. 1990) (footnote omitted).
In the nascent stages of our nation’s development, uncompensated takings for any use to which the government saw fit to put the property were sanctioned. “[T]he constitutional framers of post-colonial days perceived uncompensated takings as feudal redistributions of private property back to the government, i.e., the king.” Offen v. County Council, 96 Md.App. 526, 548 n. 7, 625 A.2d 424 (1993), aff'd in part, rev’d in part, 334 Md. 499, 639 A.2d 1070 (1994). Indeed, “[i]t was not until the introduction of improved methods of transportation operated by private corporations and the general extension of the activities of municipal governments ... that the limits of the power of eminent domain with respect to the purposes for which it could lawfully be exercised” arose.
After it became ... accepted ... that the courts could not set aside an act of the legislature unless it violated some specific provision of the constitution, ... [t]he theory ... put forward [to justify a refusal to permit a taking for private use] was that the ... “eminent domain” clause[ ], by [negative] implication prohibited the taking of property for uses not public with or without compensation.
Id. § 7.01[2].
The “Takings” Clause first appeared in the Federal Constitution upon the ratification of the Fifth Amendment on December 15, 1791. That clause only permits, provided that due process is afforded, “private property [to] be taken for public use.... ” (Emphasis added.) U.S. Const, amend V. It is thus a long standing constitutional principle that private property may not be taken for other than a public use, U.S. Const, amend. V and XIV; Md. Const., Art. Ill § 40; Md. Declaration of Rights Art. 23; Mayor of Baltimore v. Chertkof 293 Md. 32, 42, 441 A.2d 1044 (1982); Shreve v. Mayor of Baltimore, 243 Md. 613, 618, 222 A.2d 59 (1966); Webster v. Susquehanna Pole Line Co., 112 Md. 416, 426, 76 A. 254 (1910); Van Witsen v. Gutman, 79 Md. 405, 410, 29 A. 608 (1894); 26 Am.Jur.2d Eminent Domain § 25 (1966); 29A C.J.S. Eminent Domain § 29a (1965), and may not be done without providing compensation therefor. Authorities differ, however, as to the precise meaning of “public use.” “However ‘public use’ may be defined, for a use to be public it is not necessary that the entire community or any considerable portion of it should enjoy it---- [I]t is enough if the people of a particular locality receive the benefit.” Nichols, supra
The exercise of eminent domain must also be grounded upon public necessity. 26 Am.Jur.2d Eminent Domain § 2 (1966). It should only be exercised to the extent actually found necessary, Webster, 112 Md. at 431-32, 76 A. 254, although absolute necessity is not required;
The legislature, however, is not held to a strict public use, public necessity standard so long as the public use and necessity is legitimate. “[T]he words ‘public use,’ as written in our Constitution, mean use by the public.” Riden v. Philadelphia, Baltimore & Washington R.R. Co., 182 Md. 336, 342, 35 A.2d 99 (1943). “ ‘[T]he test whether a use is public or not, is whether a public trust is imposed upon the property, whether the public has a legal right to the use, which cannot be gainsaid, or denied, or withdrawn at the
Moreover, whether the use contemplated by the condemnation is public or private is a matter for the courts to determine. Chertkof, 293 Md. at 43, 441 A.2d 1044; Beard, 266 Md. at 95, 291 A.2d 636; Perellis v. Mayor of Baltimore, 190 Md. 86, 93, 57 A.2d 341 (1948); Riden, 182 Md. at 340, 35 A.2d 99; Pitznogle v. Western Maryland RR Co., 119 Md. 673, 678, 87 A. 917 (1913), aff'd, 123 Md. 667, 91 A. 831 (1914); Van Witsen, 79 Md. at 410, 29 A. 608; New Central Coal, 37 Md. at 560; 29A C.J.S. Eminent Domain § 30 (1965). A use cannot
When the condemnation centers around the use of a street or road, the extension of which is sought by a private individual or entity, the inquiry remains the same—public interest must permeate the taking or it will fail for want of validity. While “[t]he act of opening, widening and closing streets, is an exercise of the right of eminent domain, ” State ex rel. McClellan v. Graves, 19 Md. 351, 369 (1863), it must be done in conjunction with public purpose and necessity. With these considerations in mind, we turn to the case sub judice.
In so deciding, we are cognizant of several cases that, though they appear factually close, are inapposite. In Prince George’s County v. Beard, supra, 266 Md. 83, 291 A.2d 636, the Court of Appeals was faced with a similar set of circumstances. At issue was a quantity of real property sought to be condemned for use as an airport facility. Following enactment by the Maryland General Assembly of enabling legislation properly condemning the land, a County ordinance declared the effort abandoned; later efforts to reacquire the land through eminent domain were found to be lacking in the requisite public nexus to support the taking. The appellee challenged the validity of the condemnation petition on constitutional grounds, alleging that its sole purpose was private in nature. Following its decision to remand for further proceed
In the case sub judice, we perceive a conspicuous deficiency in the record. There is no evidence in the record supporting the County’s declaration of public purpose. The evidence is not weak; it is simply not there. The record is replete with support for the fact that condemnation in the instant case inures solely to the benefit of the Greens and was so intended.
We find Anne Arundel County v. Burnopp, supra, 300 Md. 343, 478 A.2d 315, to be equally unavailing as well as factually distinguishable. There, the Court of Appeals stated that the fact that a piece of land sought to be condemned is a dead end or a cul de sac does not prevent it from being for a public use. Quoting Nichols, supra § 7.22[1], the Court said: “ ‘[IJt is no legal objection that a proposed highway will be a cul de sac, or that it will lead to the residence or place of business of but one individual, for the public may desire to visit or do business with him....’” 300 Md. at 352, 478 A.2d 315. Be that as it may, the public use in Burnopp, unlike the case sub judice, was clearly established by legislative enactment, was described in the petition, and a public purpose could, at least, be inferred from the evidence.
The Commissioners’ decision to initiate condemnation in the case at bar was clearly and solely made to enhance the private interests of the Greens. In essence, the County was using its powers of eminent domain to give Green access to and through appellant’s private property. That is an inappropri
We conclude and acknowledge that the Commissioners’ attempt to abandon the proceeding was a belated good faith attempt to rectify that which should not have been commenced in the first instance. Thus, no costs shall be assessed against the County Commissioners of Carroll County, Maryland. All costs shall be assessed against the Greens.
JUDGMENT REVERSED; COSTS TO BE PAID BY THE INTERVENORS/APPELLEES (GREENS).
. We shall sometimes hereafter refer to the County Commissioners as the County.
. Said judgment was paid to the court on June 30, 1994, resulting in the County's acquisition of title to the property in question. The taking was, thus, technically complete.
. "Maryland was one of only three states that had a Takings Clause in its first constitution.” Offen v. County Council, 96 Md.App. at 526, 548 n. 7, 625 A.2d 424 (1993), aff'd in part, rev’d in part, 334 Md. 499, 639 A.2d 1070 (1994).
. Indeed, ‘The decision ... as to the public necessity for taking particular property is not subject to judicial review unless [the] decision is so oppressive, arbitrary or unreasonable as to suggest bad faith.” Murphy v. State Roads Comm’n, 159 Md. 7, 15, 149 A. 566 (1930).
. The necessity that serves as the basis for the taking must be judged as of the time the action to condemn was undertaken, not by a later result. Rollins Outdoor Advertising, Inc. v. State Roads Comm’n, 60 Md.App. 195, 201, 481 A.2d 1149 (1984).
. See also Mayor of Baltimore v. Chertkof, 293 Md. 32, 43, 441 A.2d 1044 (1982); Perellis v. Mayor of Baltimore, 190 Md. 86, 93, 57 A.2d 341 (1948); New Central Coal Co. v. George’s Creek Coal & Iron Co., 37 Md. 537, 560 (1873).