Appendix — WJM Realty, Inc. v. State Roads Commission of the Maryland Highway Administration

No.

961460 MAR 1 1 1997

dn Chess OF THE CLERK |

Supreme Court Of Che United States

OCTOBER TERM, 1996

WJM REALTY, INC.,

Petitioner,

V.

STATE ROADS COMMISSION OF THE

STATE HIGHWAY ADMINISTRATION,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF SPECIAL APPEALS OF MARYLAND

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

James S. Bubar*

*Counsel of Record

James F. Bromley

1050 17th Street, NW

Suite 830

Washington, DC 20036

(202) 223-2060

Counsel for Petitioner

LAWYERS PRINTING COMPANY 7th & Franklin Bidg. Richmond. Virginia 23219 (804) 648-3664 \ v

App.(i)

LIST OF APPENDICES

Order (Maryland Court of Appeals)............ Appendix A

Per Curiam Opinion (Maryland Court

of Special Appegie)icii. iii 5. :.........:.......... Appendix B

Memorandum Opinion and Order

(Montgomery County Circuit Court)

and relevant portions of the hearing

transcripts referenced in the

oe. ___, Sen RGN aineds CDi ASN a AOD Appendix C

Constitutional and Statutory Provisions

ete ci ARETE SOR OES Appendix D

App. |

APPENDIX A

WJM REALTY, INC. °

ET AL. = In the |

° Court of Appeals |

v. ” of Maryland |

. Petition Docket No. 444

STATE ROADS °

COMMISSION OF THE *

STATE HIGHWAY 4 September Term, 1996

ADMINISTRATION ° (No. 1620,

September Term, 1995,

Court of Special Appeals)

ORDER

Upon consideration of the petition for a writ of certiorari to

the Court of Special Appeals, and the answer filed thereto, in

the above entitled case, it is

ORDERED, by the Court of Appeals of Maryland that

the petition be, and it is hereby, denied as there has been no

showing that review by certiorari is desirable and in the

public interest.

/s/ Robert M. Bell

Chief Judge

Date: Dec 11, 1996

App.2

APPENDIX B

UNREPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1620

SEPTEMBER TERM, 1995

STATE ROADS COMMISSION OF THE

STATE HIGHWAY ADMINISTRATION

v.

WJM REALTY, INC., ET AL.

Moylan,

Hollander,

Eyler,

JJ.

PER CURIAM

Filed: August 9, 1996

#93313

App.3

This appeal concerns the condemnation of a portion of

a 32.5 acre parcel of land owned by WJM Realty, Inc.,

appellee, by the State Roads Commission (the "SRC") of the

Maryland State Highway Administration ("MSHA"),

appellant. On July 16, 1992, the SRC filed a condemnation

petition in the Circuit Court for Montgomery County to

quick-take 1.074 acres of appellee's land, in fee simple, and

to obtain another .036 acres for a revertible easement, in

order to construct a stormwater management pond ("SMP")

in connection with a joint State and Montgomery County

highway project in Damascus.

In a memorandum opinion and order dated August 29,

1995, the court granted appellee's motion to dismiss. On

appeal, the SRC presented the following questions for our

review:

1. Did the circuit court err in holding that

the condemnation of appellee's property for an

SMP was not for a highway purpose under

[Tr.] S 8-313, when the SMP was construction

to replace an existing SMP destroyed by the

highway project and to manage additional

runoff generated by the project?

2. Did the circuit court err in holding that

the construction of the SMP was outside the

scope of the highway project, thereby

potentially permitting appellee to recover

enhanced value for its property, when the SMP

App.4

was an integral part of the highway project

and appellee likely knew that his property

would be taken for the SMP, at the time [the

SRC] committed to the project?

for the reasons discussed below, we conclude that the

SRC legally used its quick-take powers to condemn appellee's

property. Therefore, we answer the first question in the

affirmative. Nevertheless, we are of the view that the circuit

court's factual findings were clearly erroneous with respect to

whether the SMP was within the scope of the highway project

for purposes of valuation. Accordingly, we shall reverse and

remand the case for further

(1)

proceedings consistent with this opinion.

Factual Background

A joint County and State project ("the Project") began

in the mid 1980s to revitalize Damascus and improve traffic

flow and safety near Damascus Centre, a shopping center in

the business district of Damascus. The Project included

modifications to the intersection of Routes 108 and 124, the

widening of Route 108 between Routes 27 and 124, and the

extension of Route 124 by 1100 feet.

Route 108 runs in an east-west direction through the

Damascus business district. Route 108, westbound, is

intersected by Route 27, which runs in the north-south

App.5

direction. Prior to construction, Route 108, eastbound, was

intersected from the south by Route 124, which terminated at

its intersection with Route 108. Appellee's parcel is located

northeast of the Routes 124 and 108 intersection. The

southern end of Damascus Centre traverses Route 108, and its

eastern edge is located near the intersection of Routes i24

and 108.

Prior to the construction, the only access to the

shopping center was on Route 108. Additionally, stormwater

runoff from the shopping center and commercial buildings

along Routes 27 and 108 drained into the shopping center

parking lot and flowed through a pipe into a manmade SMP

that was located adjacent to appellee's parcel, 600 feet north

of the Routes 108 and 124 intersection, on property owned by

Dr. Richard Schoeb. When the water in the SMP reached a

certain height, it was automatically discharged out of

[2]

the SMP through an "outfall" pipe. The water then naturally

flowed downhill onto appellee's property, where it formed the

source of a stream.

Plans for the Project were based, in part, on the

Maryland-National Capital park and Planning Commission's

Master Plan for Damascus. In 1966, the Master Plan proposed

the extension of Route 124 northward from its terminus at

App.6

Route 108 and its eventual connection to Route 27. The plan

| provided, in part:

THE PLAN SERVES AS A GUIDE

... The plan serves as a guide to aid

public officials which are responsible for

guiding development and providing public

facilities. The plan also enables private

developers to design their individual projects

to fit into a rational plan of development for

the entire Damascus community.

(Boldface and capitalization in original; italics added).

The "Damascus Master Plan as Amended to May 5,

1971" also mentioned the Route 124 extension and its

connection to Route 27. It provided, in part:

Although reservations of land for rights

of way and public facilities are necessary to

insure that the land will be available when

needed, it is essential for economy that

building of these facilities await such time that

their construction can be justified by need.

The construction of the entire highway

network shown on the plan could not be

justified by today's needs nor those of the

immediate future. However, anticipated growth

of the region will create a need for these

highways in the future.

In 1978, appellee purchased his 32.5 acre parcel and

was granted the following easement for access to the

proposed extension of Route 124:

App.7

Together with a perpetual right of easement as

a means of unlimited access for vehicular and

pedestrian traffic from the [32.5 acre plot] unto

Maryland Route 124 and

[3]

proposed A-5, over that parcel of land to be

conveyed by said James C. Dulin [unto]

Richard J. Schoeb, et al., containing 4.94622

acres and to be recorded among the land

records of Montgomery County."

In 1985, Montgomery County and the SRC entered

into the first of three Memoranda of Understanding ("“MOU")’

concerning plans for road construction in downtown

Damascus. The 1985 MOU provided that Routes 108 and 27

would be widened near their intersection and that the

construction would be funded by private developers and the

MSHA. The MOU also provided for an extension of Route

124 and its terminus with Route 108, which would "follow

the Master Plan Route A-12 alignment for approximately 600

to 700 feet to provide an alternative access to Damascus

Center.” Preliminary cost estimates were to be prepared by

the Montgomery County Department of Transportation

("“MCDOT").

The August 1987 amendment to the MOU provided

that the Project would proceed in four phases: Phase I

Be eee ea

App.8

involved the widening of Route 108 westbound between

Routes 124 and 27; Phase Il involved improvements to the

Routes 108 and 124 intersection; Phase III involved an

extension northward of Route 124 for 500 to 600 feet; and

Phase IV involved the further extension of Route 124

northward to connect with Route 27. The August 1987

Amendment further provided that the State would design,

construct, and fund

' “Proposed A-5" referred to the parcel that was

conveyed to Dr. Schoeb and later formed the roadbed for the

Route 124 extension. "A-5" was ‘ater redesignated as "A-12."

2 The Montgomery County Department of Housing

and Community Development and the Montgomery County

Department of Transportation both participated in the MOU.

[4]

Phases I and II. On the other hand, the SRC was to design

and construction Phase III, with reimbursement by the County

for all expenses. The Amendment provided that "[dJesign is

funded for FY 88 and construction is scheduled for FY 92."

Neither the 1985 MOU nor the 1987 Amendment mentioned

the necessity for storm water management.

In 1988, the SRC held a public meeting at which it

presented drawings and a tentative design plan for the

App.9

proposed 600 foot extension of Route 124. By March 1989,

the SRC had located two proposed sites for stormwater

facilities te accommodate runoff from the improvements to

Route 108 and the Route 124 extension. A March 1989

memorandum from a senior planning specialist at the

Department of Housing & Community Development

("DHCD") to the Director of the Upper Montgomery County

Service Center noted that one of the proposed sites was on

the southeast corner of the Routes 108 and 124 intersection

and the other was on the Damascus Shopping Centre property

"near its Main Street frontage." The memorandum siated,

however, that neither site was acceptable. It provided, in part:

An objective of the Damascus Revitalization

Program is infill commercial development on

the shopping center's Main Street frontage or,

at the very least, parking to serve Main Street.

The owner of the center, Cynwyd Investments,

is in accord with the objective of infill

development and has retained an architect to

develop a retail design proposal.

DHCD has indicated to MSHA that the

proposed [stormwater management] facility

locations are not optimal. MSHA has stated it

has directed its consultants to see if there are

other suitable locations.

In the meantime, DHCD is also seeking

recommendations for [stormwater manage-

App.10

ment] facility locations which do not conflict

with revitalization aims.

[5]

Time is of the essence in order not to delay

MSHA's design schedule. DHCD requests that

under the auspices of the Upper Montgomery

County Service Center, a meeting of other

agencies and parties with an interest in

[stormwater management] in the area, be

convened to explore alternative locations.

Possibilities are that [stormwater

management] plans prepared by Dewberry and

Davis for Cynwyd* and/or plans that DOT

will be designing for the remainder of MD

Route 124 could incorporate MSHA needs.

° Approximately two years ago, plans

were prepared for Cynwyd for an off-site

facility to the east of their site on a parcel

owned by WJM Realty, Inc. The County was

interested in participating in this facility to

provide retention serving a larger area.

Cynwyd submitted drawings and calculations

to DEP. However, the owner of the proposed

site, William J. Miller, ultimately refused the

use of his parcel. Should this site be suitable

for MSHA needs, we need to know what tools

can be used realistically to acquire the site,

over the objections of the land owner.

(Emphasis added).

App.11

Thereafter, Dr. Schoeb offered to donate a right of

way to the County to build the proposed extension on his

land, if the SRC would agree to an additional 400 to 500 feet

to the extension. He wanted to obtain access to Route 124 for

the northern portion of his property.

In October 1989, based on the County's

recommendation, the State directed its engineering consultant

to assess the possibility of locating a stormwater management

facility on "the Library Center Property" that was located

northeast of the Routes 108 and 124 intersection. The State's

engineering consultant submitted a Preliminary Stormwater

Management Report in November 1989 to the Maryland

Department of the Environment ("MDE"). It proposed a SMP

[6]

designed to accommodate a drainage area of 7.70 acres.’

In January 1990, as a result of Dr. Schoeb's offer, the

SRC, at the County's bequest, began to design plans to

lengthen the proposed Route 124 extension. But because the

extension of Route 124 to that location would destroy the

shopping center's existing SMP on Dr. Schoeb's property, the

SRC determined that appellee's property was the most

appropriate site for a new SMP. The State sought to

accommodate the approximately eight acres of drainage area

from the highway improvements. In a letter to the SRC dated

ee =

App.i2

February 7, 1990, the County stated that it planned to acquire

the necessary land for the new SMP by obtaining an easement

from appellee. The letter provided, in part:

The County does not acquire stormwater

management areas on undeveloped property in

fee simple. It is our experience that, when

these properties are developed, the then

inplace stormwater management pond requires

modification and/or relocation to satisfy the

proposed site plan. The County will obtain a

perpetual easement from William K. Miller

Realty, Inc. for the purpose of construction

and maintaining the proposed stormwater

management pond.

In a June 1990 memorandum, the Manager of the

Stormwater Management Division of the Montgomery County

Department of Environmental Protection informed another

County employee that, if the shopping center's SMP on Dr.

Schoeb's property were destroyed, "stormwater management

must be provided in an alternative structure.” In July 1990,

the State's engineering consultant

3 The drainage area included: 1.76 acres from Route

108, 0.72 acres from the proposed 600 foot Route 124

extension, 1.56 acres from “other impervious area," and 3.66

acres from meadow, woods and grass.

|

[7]

submitted its Final Stormwater Management Report to

App.13

MDEP, which increased the size of the SMP to accommodate

a drainage area of 9.87 acres.‘ The proposed SMP was not

designed to receive water that flowed into the shopping

center's existing SMP on Dr. Schoeb's property.

In August 1990, the County and the SRC began

negotiations with appellee concerning the construction of a

SMP on appellee's property. On August 3, 1990, William J.

Miller, Jr. wrote to the SRC, on behalf of WJM Realty,

submitting an outline of a proposed agreement concerning the

location of the SMP. The letter provided, in part:

1. The State and County's timeframe [sic]

for construction of A-12 should remain

on course.

2. It is desirable for both environmental

reasons and town center development

that the storm water management

facility be construction in conjunction

with the extension of [Route 124] and

handle as much of the storm water

runoff from the thirty five (35) acre

drainage areas as possible.

3. The movement of the storm water

management facility further

downstream and above all wetland

areas, as proposed by consultants . . .

is desirable because the relocated

fe- 4 would significantly improve

s 9° water management in the region

App.14

by handling ali storm water runoff

generated from the thirty five (35)

acres within the drainage area versus

the seven (7) to eight (8) acres of

storm water runoff which would be

managed by the facility as currently

: planned.

4. ... . The property owner ("owner")

will provide a temporary easement so

as to enable MCDOT and [the SRC] to

achieve the required permit [to build a

“ The drainage area included: 1.93 acres from Route

108, 1.34 acres from the extension of Route 124

approximately 1100 feet, 1.52 acres from "other impervious

areas," and 5.08 acres from meadow, woods and grass.

[8]

temporary SMP] with the

understanding, however, that MCDOT

and SHA will cooperate fully and

assist in expediting all required permits

for the relocation of the storm water

management facility downstream.

Additionally, MCDOT and SHA will

assist the owner in obtaining funding

through sources of State and County

[sic] for the necessary engineering,

design work and construction required

t

;

:

»

3

8

3

-

a

>

‘a

*

App.15

for the relocation of the storm water

management facility.

*e*

6. MCDOT and [the SRC] shall provide

the owner with a reasonable and

ample, at grade, point of ingress and

egress to the owner's property, in such

a location which avoids any wetland

impact.

On August 23, 1990, after further negotiations, the

SRC wrote appellee, proposing new terms for an agreement

between the parties. The letter provided, in part:

2. WJM Realty will convey to the

[MSHA] a revertible easement over the

1.118 acres where the pond is presently

planned to be located. The easement

will authorize the [MSHA] to construct

sediment control facilities in this area

during the initial stages of construction

and maintain these as needed. It also

will authorize the Administration to

construct a permanent pond at this

location during the ending months of

our construction project, in the event

you are not successful in your effort to

obtain the permits and/or construct the

alternate pond within a time period yet

to be specified, but at least several

months prior to the end of our

construction project.

se Ras ins

aad

RIA aie wha ats LIS

App.16

TSN Aah

3. If you are successful in getting the alternate

pond construction, WJM Realty, Inc. will

waive all compensation from the [MSHA] for

this project

Dad seRSOOE Maca

4. If you are not successful in constructing the

aliernate pond, the [MSHA] will offer to pay

you the appraised fair market value for the

; land and resultant damages, if any.

Sa Nt ASAE tee amectbb tes Kaye

4A. If agreement cannot be reached on a selling

price, the [MSHA] will file a condemnation

suit to acquire fee title or a permanent

easement over the area.

_* *

5. W.J.M. Realty, Inc., its successors and assigns, will

agree to prepetually [sic] receive the storm

[9]

phi age da th sa SIE ND

water from Routes 108 and 124, and maintain

the alternative pond in accordance with all

applicable State and County standards and

specifications.

inh nda Sad BLN Pa BAC yal EO AR NP hea We TN Lt

oe Te

App.17

In response, on September 11, 1990, Miller wrote to

the MSHA, stating that appellee would not "agree to maintain

the alternate pond" as requested by the SRC. Appellees stated

that "this responsibility should rest solely with the [MSHA]

and/or Montgomery County."

During a public meeting in the Fall of 1990, while

negotiations between the SRC and appellee were ongoing, the

final design plan for the 1100 foot extension of Route 124

was presented. The drawings included the location of a SMP

on appellee's property that was 1.118 acres in size.

On February 15, 1991, Dr. Schoeb and the County

entered into a Right-of-Entry Agreement that provided that,

upon completion of the 1100 foot extension to Route 124, Dr.

Schoeb was to convey to the County the necessary right-of-

way in fee simple. Then, on March 15, 1991, the State's

engineering consultant submitted a revised Stormwater

Management Report to MDEP, proposing a SMP designed to

accommodate a 32.40 acre drainage area that included the

shopping center.* The engineering consultant submitted the

following letter along with the report:

Due to the proposed roadway improvements to

MD 124, an existing pond, to which runoff

from an existing shopping center outfalls, wil!

be filled in. Jn accordance with an agreement

with Montgomery County, MSHA directed [us]

ee

App.18

> The drainage area included: 2.06 acres from Route

108, 1.34 acres from the proposed 1100 foot extension of

Route 124, 15.90 acres from “other impervious areas," and

13.10 acres from meadow, woods and grass.

[10]

to redesign our pond te incorporate the

existing shopping center area, along with the

108 and 124 project.

** * &

[T]he pond had to be relocated further north

and enlarged to accommodate the existing

shopping center.

(Italics added.)

Thereafter, on August 1, 1991, although negotiations

continued between appellee and the SRC, the SRC filed an

"informal" petition in the circuit court to quick-take 1.118

acres of appellee's land for the purpose of building an SMP

located along the Route 124 extension. On September 10,

1991, the State and County drafted a second amendment to

reflect that the length of the Route 124 extension would be

approximately 1100 feet. The Water Resources Administration

of the Maryland Department of Natural Resources

subsequently approved the State's stormwater management

plan® in connection with the Route 124 extension.

App.19

On April 14, 1992, the State entered into a contract

for construction of the SMP and issued a notice to proceed

with construction on April 28, 1992. On May 14, 1992, the

SRC amended its petition to move the SMP further north, to

include a .036 acre revertible easement, and to reduce the size

of the pond to 1.074 acres.’ Thereafter, in the sunmer of

1992, negotiations broke down

* COMAR 26.09.02.03(19) defines "stormwater

management plan” as,

a set of drawings or other documents

submitted by a person as a prerequisite to

obtaining a stormwater management approval,

which contain all the information and

specifications required by an approving

agency.

’ The State later explained that the design plan for the

SMP was changed in order to allow appellee more frontage

along the Route 124 extension.

[11]

between the parties concerning the SMP, primarily because

they could not agree upon a location for it.

Appellant's formal condemnation petition, dated July

16, 1992, provided, in part:

4, That the purpose for which the said

land and property above described is sought to

Se Oe

App.20

be condemned is for the construction,

reconstruction, improvement, maintenance and

completion of the State System of Roads and

Bridges, and designated as Maryland Route

108 from Maryland Route 27 to Maryland

: Route 124, in Montgomery County.

5. That [the MSHA] is unable to make an

agreement with [appellee] to purchase the

above property, notwithstanding the fact that

[the MSHA] has made a reasonable and bona

fide effort to do so, and it is, therefore,

necessary that the property described, together

with any buildings or improvements thereon,

if any, and the interests of [appellee] therein

be required by condemnation.

Chet 9 ele al crete Takei: Oot

6... . That [the MSHA] states that it is in the

public interest and necessary to take

possession of the land and improvements as

soon as practicable... .

(Emphasis added).

By August 1993, construction of the Route 124

RAMA SA NORE RN AEE

extension and the new SMP was completed. The SMP was

built to manage stormwater run off from 32.4 acres, including

approximately three acres generated by the road

improvements along Route 108, as well as the water that

previously flowed into the shopping center's former SMP.

App.21

During the legal proceedings, the SRC filed a motion

in limine, seeking to prevent appellee from introducing

evidence that the value of its property should be enhanced by

the anticipated

[12]

effect of the Route 124 extension. Pursuant to Md. rule 2-

502°, the SRC also filed a motion for separation and decision

of a question of law concerning whether a public necessity

existed for the taking of appellee's land.

For its part, appellee moved to dismiss the SRC's

condemnation petition, claiming that the quick-take

proceeding was “an illegal, unauthorized proceeding,” because

it did not serve a "State highway construction purpose” within

the meaning of Md. Code. Trans. Art. ("Tr."), § 8-313.

Appellee also filed a "Cross Motion for Ruling on a Separate

Question of Law," seeking a ruling that (1) the SMP was a

separate project from the Route 124 extension; (2) appraisers

could consider the property's proximity to the Route 124

extension in valuing appellee's property; and (3) appraisers

could consider the SRC's "denial and limitation of access and

road frontage on Route 124 extended” in assessing damages

to appellee's remaining

+ A Stas

App.22

® Md. Rule 2-502 provides:

If at any stage of an action a

: question arises that is within the sole

: province of the court to decide,

; whether or not the action is triable by

a jury, and if it would be convenient to

have the question decided before

proceeding further, the court, on its

{

own motion or on its own initiative,

may order that the question be

presented for decision in the manner

the court deems expedient. In resolving

the question, the court may accept facts

stipulated by the parties, may find facts

after receiving evidence, and may

drawn inferences from these facts. The

| proceedings and decisions of the court

; shall be on record, and the decisions

shall be reviewable upon appeal after

entry of an appealable order or

judgment.

| [13]

| property.”

A. The Proceedings Below

1. January 1995 Evidentiary Hearing

During a two day consolidated motions hearing in

January 1995, the SRC argued that it acted properly in quick-

taking appellee's property for construction of the SMP. The

SRC acknowledged that the Route 124 extension is a County

road. Nevertheless, it maintained that it has broad statutory

App.23

power to improve roads in Maryland and often works together

with local jurisdictions on highway projects, in order to

accomplish its mission. The SRC explained that State and

county roads comprise an interconnected network of roads in

Maryland and that ownership and responsibility for the

maintenance of State and county roads routinely transfers

back and forth between the entities. In particular, the SRC

asserted that when the extension of Route 124 to connect with

Route 27 is completed, responsibility for its maintenance will

transfer to the State.

The SRC claimed that a “public need” existed for the

taking of appellee's land, in that construction of the Route

124 extension served the public because it improved traffic

flow along Route 108 and provided a safer entrance into the

shopping center and County buildings. The SRC essentially

contended that, because there was a public purpose for

building the Route 124 extension, the

* On January 11, 1995, appellee filed a third party

complaint against Montgomery County. The court

subsequently granted the County's motion to dismiss. This

ruling is not the subject of this appeal.

(14)

App.24

construction of the SMP also served a public purpose, in light

of Maryland law requiring it to effectuate storm water

management'® whenever it builds roads. The SRC added that

it was required to replace the SMP that was destroyed by the

construction of the Route 124 extension and to accommodate

the water from the highway construction. The SRC also

averred that its decision as to the necessity for the SMP is not

subject to judicial review because it was not "so oppressive,

arbitrary and unreasonable as to suggest bad faith.”

Additionally, the SRC argued that the value of

appellee's property should not be enhanced by the prospect of

the Route 124 extension, because the taking of appellee's

Property was within the scope of the SRC's project to build

the extension. The SRC claimed that the taking of appellee's

property for a SMP was foreseeable in light of the Master

Plan and State law requiring stormwater management. The

SRC acknowledged, however, that while the Route 124

extension appeared in the 1966 Master Plan and its 197]

amendment, stormwater management was not mentioned.

Nevertheless, the SRC contended that these dates did not

constitute the date of commitment to the project, because

master plans are only general guides for development and

often change over time. Rather,

App.25

10 COMAR 26.02.02B(18) defines “stormwater

management” as

(a) Quantitative control, a

system of vegetative and structural

measures that control the increased

volume and rate of surface runoff

caused by man-made changes to the

land; and

(b) Qualitative control, a system

of vegetative, structural, and other

measures that reduce or eliminate

pollutants that might otherwise be

carried by surface runoff.

[15]

according to the SRC, the State did not commit to the project

until either August 1991, when it filed its original informal

petition to condemn appellee's land, or April 14, 1992, when

it accepted a bid on a contract for construction of the road

and the SMP.

In contrast, appellee argued that the State lacked

authority to condemn appellee's land for a stormwater

management facility related to the construction of a County

road. Moreover, appellee contended that construction of the

SMP was not necessary, because the SMP traversed most of

the parcel's frontage along Route 124 primarily served private

interests and was much larger in size than was needed to

App.26

accommodate runoff from the highway improvements.

Further, appellee claimed that construction of the SMP

was a separate project from the highway construction, because

more than twenty years had passed between the time when

the road first appeared in the Damascus Master Plan and

1990, when appellee's land was identified for the SMP. Thus,

appellee contended that appraisers should value its property

based on its proximity to the Route 124 extension.

Additionally, appellee contended that the construction of the

SMP destroyed its ability to develop its land for commercial

use, because the SMP and a guardrail and embankment with

a 15 to 20 foot slope separated the pond and the road.

Randy Paul, the SRC's Engineering Systems Team

Manager, testified that the County reimbursed the State for

the cost of construction and designing the Route 124

extension. Nonetheless, Mr. Paul testified that construction of

the Route 124 stub was a

[16]

State project, because "we designed it and we advertised it

and we built it" without any participation from the County.

Mr. Paul also stated that Route 124 was primarily built for

safety purposes. He explained:

App 27

One of the safety issues that the

County and State worked on was a high

accident count at the intersection of the

Damascus Shopping Center and the Citizens

Bank on the corner of [Route] 124.

In order to resolve those accidents or to

provide an alternate access and deny left turn

movements off of Route 108 into those

businesses .. . the [Route 124] stub was the

best answer.

Mr. Paul also stated that the SRC investigated

appellee's alternative proposed site for the SMP, but “never

received any computations to show that it would work there."

He added that, even if the Route 124 extension had not been

built, the SRC would have needed to build a SMP to

accommodate runoff from the State's improvements to Route

108. He conceded, however, that the size of that SMP would

have only needed to be "about half as big as the one we

built.”

Martin Covington, the SRC’S expert in water resources

engineering, testified that, before construction of the Route

124 extension, the shopping center's SMP had accommodated

29.6 acres, which included water from the shopping center

and commercial buildings along Routes 27 and 108, which

drained naturally into the shopping center's parking lot. Mr.

Covington explained that the new SMP accommodates 32.4

acres, including all the water that had drained into the old

2

3

q

3

%

:

i

i

.

q

3

App.28

SMP, as well as water from an additional three acres near the

intersection of Routes 108 and 124.

Mr. Covington explained that several factors must be

[17]

considered in selecting the best placement for a SMP. He

said:

Well, a lot of factors go into play. You

want to located the pond on undeveloped

property. You have to get enough volume to

be able to manage the two and ten year storm

at least in Montgomery County... .

You need to provide some water

quality improvements which is a separate

issue. And you need to have access to it.

You need to stay out of wetlands areas

And it's always best to locate [an SMP]

the lowest place you can find because

obviously water runs downhill and it's easiest

to put the facilities in a place where you can

get the water to go to.

Mr. Covington added that, based on the above criteria,

the SRC determined that the site selected for the new SMP

was the best place for a stormwater management facility. He

noted that appellee's property is the site of the most natural

drainage in the area and that it would have been very difficult

too move the SMP further north, because it would impact

wetlands. Mr. Covington acknowledged, however, that the

App.29

SMP is designed to handle a one hundred year flood, and he

did not know why it was designed for such a large volume of

water. Mr. Covington also maintained that, while the SMP

collects water from various developed properties, it does not

constitute a “regional facility,” because regional facilities

generally accommodate enough water to sustain a flowing

stream. Mr. Covington explained that the SMP held enough

water to begin a stream, but its volume was insufficient to

maintain a constant flow.

Richard Ravenscroft, a "Right-of-Way Agent” for the

SRC, testified that the State and County commonly

collaborate on construction projects. He said that the SRC

decided to condemn appellee's property, because it was

unable to reach an agreement

[18]

with appellee concerning the location of the SMP. Mr.

Ravenscroft also said that, before the additional footage was

added to the Route 124 extension, the SRC had initially

planned to build a half acre SMP on appellee's property to

accommodate storm water run-off from the highway

improvements in downtown Damascus.

Mr. Ravenscroft said that the Millers attended the

public hearing in 1988, at which the SRC presented its

preliminary designs to extend Route 124 approximately 600

eve pili endainae besoin tender acl ~P

App.30

foot. He testified that, during initial hearings like the one in

1988, the State ordinarily

shows the conceptual stage of the project with

this is what the road would look like if we

continued the design, it would show the

number of lanes, curbs, sidewalks, landscape

areas -- those types of improvements.

He also stated that, during this type of conceptual meeting,

the location of stormwater management projects is generally

depicted on the drawings. Nevertheless, he said that in 1988,

the SRC was aware of the need for stormwater management

related to the extension of Route 124, but added, "I can't tell

you whether that was on those original drawings [presented

during the 1988 meeting] or not."

Kenneth O'Connell, a civil engineering and expert

witness for appellee, testified that, based on his review of the

State's construction plans and design calculations for the

‘SMP, the SMP constituted a regional stormwater facility,

because it has “quantity and quality contro!s," and serves

private off-site properties. Mr. O'connell said that stormwater

management facilities are usually built downstream, instead

of at the source of the stream. Mr. O'Connell also opined that

the SRC did not need

[19]

App.31

to build a SMP in order to accommodate water from

construction along Routes 108 and 124. He explained that,

instead, the SRC could have obtained a waiver for quantity

controls and could have used an existing “infiltration

structure" along Route 108 to accomplish quality controls.

Appellee also offered the deposition testimony of

Robert C. Merryman, the Deputy Director of MCDOT, who

had attended early negotiations between the SRC and appellee

concerning the SMP. Mr. Merryman opined that the SMP, as

constructed, constitutes a regional stormwater management

facility. He acknowledged, however, that while the State was

responsible for designing and constructing the SMP, the

County helped to determine the location for the SMP, because

the County had several interest in the SMP's construction,

including,

community concerns regarding storm water

management, the [County's project to improve

downtown Damascus], the extension of [Route

124], and facilitating the streets, construction

of the state project. We were very interested in

seeing that project moved forward in a timely

fashion... .

ss *& &

There are some requirements of the

county government, .. . . borne out through the

state legislature requiring that the county

provide or require when development occurs

that there be mitigation of the run-off to

App.32

protect the waters of the State of Maryland.

Additionally, appellee submitted the March 1989

memorandum between the County employees. At the

conclusion of the hearing, the court took all matters under

advisement.

r B March 1995 hearing

The motions hearing continued on march 14, 1995.

The court then granted, in part, the SRC's Motion for

Separation and

[20]

Decision, ruling that the Route 124 stub was built for a public

purpose. The court said:

[The Route 124] is in every sense of

the word, without exception, a county road.

The county has paid for it, the county alone

owns the right to construct it along that

pathway, and the county will maintain it.

The question that is raised here is, what

in the world is the state doing building a

county road. And that is one of the major

issues. And that issue is resolved that the state

is within its rights and it is a public use that

serves the public sufficiently for the state and

county to cooperate in this endeavor and that

there are two major benefits that the state and

all the citizenry of the state get from the state

proceeding as it has proceeded which are

sufficient to justify the state using the power

of imminent [sic] domain, if it needs to do so,

App.33

to build the road, even though its number one

purpose is to serve a private purpose.

The ruling of the Court is that the 600

feet that links up . . . is sufficient for state

purposes for two-and-a-half reasons.

The first and primary reason is there is

master planned a state road and a State

roadway system. And the state has an

opportunity without cost to build a segment of

the road and to get it built without cost to the

state. That is a monumental benefit to the

State, and the state grabs it and appropriately

sO.

Secondly there is the 108 left turn

situation which is a benefit to the state

because it enables the state to eliminate the

left turn at 108... .

ee * &

{With respect to the second 500 feet,

w]e don't have the 108 situation, but we still

have the number one and major consideration

what was true with regard to the first 600 feet

and which is also true of the other 500 feet .

The state has farmed out its expertise

and its building people for which it is

compensated. And ultimately at no cost to the

state it also has in place another 500 feet of

this state road that is ultimately going to

connect up and the state hasn't had to pay for

it, which in the scope of things makes it more

likely that the remainder of the road can be

accelerated since a portion is there and there

is more driving force just by virtue of what is

App.34

there so that the state probably has a very

strong argument, and so does everyone else,

for moving up the timetable for [the building!

of the remainder of the road.

That is enough. And this Court holds

that... it is a little bit suspect when private

interests drive

(21]

state action for the benefit of private interests.

j (Emphasis added).

But the court withheld ruling on whether the taking of

appellee's land for a SMP served a public purpose or

constituted a public necessity.'' The court took special notice,

however, of the contents of the 1989 memorandum between

two County employees, which he termed a “smoking gun."

The court believed that this memorandum provided that, at

the request of Cynwood Investments, the County tricked the

State into improperly using the State's power of eminent

domain to benefit private interests. The court said:

The state was an innocent party, interested in

getting a road for nothing. The county and the

department was [sic] carrying water for

Sinwood [sic]. And largely on behalf of

Sinwood, because Sinwood couldn't get it

privately over the bargaining table. . . .

ee ©

App.35

[W]e aren't talking condemnation now,

we are talking constitutional rights and

damages for invading basic constitutional

protections and corrupting the process to use

the power of eminent domain for a private

purpose wholly wrong when that private entity

could not get what they were seeking at the

bargaining table.

The court also noted that the size of the SMP was

much larger than necessary to accommodate runoff from the

State roads project. The court said:

First, the storm drainage area is more

than four times as great as that was needed for

the State Roads project... . And that is true

even after you figure that the extra 500 feet is

going to require you to eliminate what has

been serving in the meantime as a sort of

natural pond, small natural pond, for the

accumulation of drainage.

'' At various times, the court used the term "public

necessity” when it was actually referring to "public purpose."

As we discuss, infra, these terms are not synonymous.

[22]

And when you eliminate that in the

construction of the extra 500 feet you are

going to have to do something about that. But

it doesn't mean that you set up what is

appropriately called .. . a regional facility."

eee eee ae

ir esa date tae i

App.36

In ruling on appellee's motion for separation of law,

the court determined that construction of the Route 1254

extension and the SMP must be considered as separate

projects for the purpose of valuation, and that appraisal of

appellee's land must take into account its proximity to the

Route 124 extension. In so ruling, the court pointed out that

the Route 124 extension had been in the Master Plan for

more than twenty years and that the need for stormwater

management was not mentioned until at least twenty years

after the road extension appeared in the Master Plan. The

court noted that land developers generally rely on master

plans in deciding whether to purchase a parcel of land and

that the existence of appellee's easement in its 1978 deed

demonstrated that it purchased the property based on the

expectation that Route 124 would eventually be extended

northward to connect to Route 27. The court said:

The road is mentioned in that easement

which weil precedes 1985, and that establishes

that project was being relied upon by

intelligent business people who were buying

land then. .. . [A]nd there is nothing, nothing

that refers to any storm drainage. It is clear to

me that the storm drainage came as an

afterthought.

** ¢ ©

There are two reasons . . . for why this

easement iegally is important. It fixes a time

App.37

other than the Master Plan when reliance was

being placed on this road and actions were

being taken on the land records. .. .

see &

The easement is also important because

it is clear that the Millers would never have

purchased this property without the easement.

The court also based its ruling with respect to the

scope of

[23]

the highway project on its earlier determinations that the SMP

was unnecessary to accommodate runoff from the State's road

construction and that the State had been coopted by the

County to build, unknowingly, the SMP for private interests.

The court declined to decide whether appraisers could

take into account damages to appellee's remaining land. It

commented, however, that

severance damage is appropriate including

diminution of the loss of value, or the

difference between the value before that

drainage facility was built and the value after

it was built of the land that was condemned to

build it.

And since it has effectively -- from a

developer's standpoint it has not only taken

most of the frontage, which indeed it has, but

from a development standpoint it has left the

developer with nothing in terms of frontage

because it has created a major eyesore. .

which presumably would be in the view of

App.38

anyone who would purchase what ultimately 1s

developed there.

Further, the court "held in abeyance" its consideration

of appellee's motion to dismiss."*

c. May 1995 hearing

At the conclusion of the May 25, 1995 hearing on

appellee's motion to dismiss, the court took the matter under

advisement.'? The court indicated, however, its inclination

toward dismissing the

'2 The court also ruled that appellee is entitled to

damages for the loss of his easement and that appellant's

petition should be amended to include the easement. There is

nothing in the record indicating that the SRC ever amended

its petition as requested by the court, and the parties have not

raised this issue on appeal.

13 The court apparently sought to give appellee an

opportunity to withdraw its motion to dismiss, because the

court was concerned that granting appellee's motion would

serve to prevent appellee from receiving compensation from

the State.

[24]

State's petition, based on its determination that the SRC

lacked the authority to quick-take appellee's land for the

SMP, because appellee's land was sought for the County and

Cynwood Investments. Therefore, it did not constitute a

App.39

"State highway purpose” within the meaning of Subtitle 8 of

the Transportation Article. The court told the SRC,

[YJour authority, . . . [to exercise the

power of eminent domain] is for State highway

purposes, and I am suggesting to you that you

did not do this for State highway purposes,

you did it to serve a private stormwater

purpose of Sinwood [sic] and you also did it

to serve a greater interest of Montgomery

County.

If there is a right of condemnation for

a stormwater drainage facility to serve a

regional need, including Sinwood, that power

does not lie with you. It lies with someone

else. It was wrong for you to exercise this

power in this way.

(Emphasis added).

The court also suggested that the SMP did not serve

a public purpose or constitute a public necessity. It said:

I remain of the view, based upon the evidence

that we heard, that this project undertaken by

the State so exceeded the State's authority to

condemn for drainage required by its road

project. . . that it was not used for a purpose

of public necessity within the purview of the

State Highway Administration's authority to

condemn -- it may have been within the

authority of others, but the Highway

Administration may not lend out its eminent

domain powers to be exercised by others who

have eminent domain powers.

~—m = a eee we

App.40

This is not a power to be kicked

around or to be traded back and forth. If you

have the power, you exercise it. The State has

the power in connection with roads. . . [T]his

stormwater drainage facility was a facility to

serve much, much more than the roads

themselves.

(Emphasis added).

4. The court's August 1995

memorandum decision

On August 29, 1995, the court issued its memorandum

opinion.

[25]

It provided:

Plaintiff State Roads Commission of the

State Highway Administration seeks to

condemn land of one private owner to serve

developmental purposes of another private

owner. This is an impermissible use of the

public power of eminent domain. Moreover,

land taking (quick take) for regional storm

drainage is beyond commission authority.

Evidence, including testimony,

topographical maps and other exhibits, -

discloses serious traffic and drainage problems

assumed by Cynwyd Investments in building

its Damascus Shopping Center (Centre).

Plaintiff solves Cynwyd's traffic problem by its

long planned design and subsequent

construction of road improvements to

Maryland Route 108 and the intersection of

App.41

Maryland Routes 108 and 124 and by a stub

extension of Route 124.

To solve its drainage problems,

Cynwyd, with assistance from Montgomery

County, Maryland, sought a regional storm

drainage facility on land owned by Defendant

WIM Realty, Inc. (William J. Miller). Because

the facility would have _ disastrous

consequences to developmental usage of

defendant's frontage on the newly constructed

stub, defendant "refused the use of his parcel."

As designed and contemplated by

plaintiff, the road improvements would utilize

land taken from Cynwyd and one other source

for two storm water management facilities to

satisfy drainage requirements of the road

project. prompted by Cynwyd, Montgomery

County proposed to plaintiff that Cynwyd's

land not be taken but that defendant's site be

acquired “over objection of the owner" "to

provide retention serving a larger area"

including Cynwyd's shopping center. Plaintiff

seeks here to do so.

Defendant presses the pending motion

to dismiss these condemnation proceedings.

For the reasons stated in open court [in March

1995] and on May 25, 1995, this court

concludes the motion should be granted

because the acquisition here constitutes an

illegal and unauthorized usage of the public

power of eminent domain.

(Emphasis added).

App.42

On September 8, 1995, the court granted the SRC

continued possession of appellee's land pending its appeal.

Discussion

I.

[26]

As we have observed, the court determined that,

although the construction of the Route 124 stub served a

public purpose, the taking of appellee's land for a SMP lacked

a public purpose, because it was built to serve the private

interests of Cynwood Investments and the County. the court

also believed that the SMP was not necessary in view of its

size. Thus, the trial court dismissed the SRC's condemnation

petition based on its conclusion that the taking of appellee's

land for the SMP was an impermissible use of the SRC's

power of eminent domain. He reasoned that the SRC lacked

the authority to condemn property, on behalf of the County,

for a regional SMP. But we agree with the SRC that the trial

court erred in dismissing its condemnation petition, because

the taking of appellee's land for the SMP was a proper

exercise of its power of eminent domain.

A. The SRC was authorized by statute to condemn

appellee's land

Appellee argues that the SRC lacked authority to

quick-take appellee's land for a SMP that served County and

App.43

private interests, because the SRC's quick-take authority 1s

limited to property that is taken for State highway purposes.

Conversely, the SRC

'* Appellee also claims that the quick-take of

appellee's land was beyond the County's quick-take authority,

because the Maryland Constitution and Title 8 of the

Transportation Article do not grant the County that power.

Based on our determination that the State possessed the

power to quick-take appellee's land for the SMP, we shall not

address the bounds of the County's quick-take authority. We

note, however, that Tr. § 8-218(b) provides,

(b) "“Quick-take" condemnation exclusive in

Commission. -- Only the Commission may

exercise the condemnation powers and duties

vested in it by Article III, § 40B [the quick-

take provision] of the State Constitution.

[27]

contends that it possessed statutory authority to quick-take

appellee's land because, pursuant to the Maryland Constitution

and the Annotated Code of Maryland, the SRC may quick-

take property for "any highway purpose."

The power of eminent domain is the authority of a

governmental body to take property for a public purpose

without the consent of the owner so long as just

compensation is paid. 1A Nichols on Eminent Domain, § 3.01

(3d. 1996). Section 40 of Article III of the Maryland

App.44

Constitution provides:

The General Assembly shall enact no Law

authorizing property, to be taken for public

use, without just compensation, as agreed upon

between the parties, or awarded by a Jury,

being first paid or tendered to the part entitled

to such compensation.

Moreover, the Fifth Amendment to the U.S. Constitution, as

applied to the states through the Fourteenth Amendment,

forbids the taking of private property for a public purpose

without just compensation. King v. State Roads Comm'n of

State Highway Admin., 298 Md. 80, 83 (1983); Lore v. Board

of Public Works, 277 Md. 356, 358 (1976).

In “conventional condemnation cases,” the condemnor

may not take possession of the property until the issue of

damages has been adjudicated and the condemnor “pays the

full amount of the condemnation judgment, plus costs." King,

298 Md. at 84-85. On the other hand, in "quick-take

condemnation” cases, the condemnor acquires possession of

the property before trial upon payment to the court of the

estimated value of the subject property.'” King,

App.45

| '* In King, the Court explained that,

| [t]he condemnee may

immediately withdraw _ the

(continued)

[28]

298 Md. at 85-86.

State governments possess an inherent right to

condemn property. "This authority ‘springs from ... a

necessity of government,’ and is considered to be an essential

attribute of sovereignty.” Nichols, supra, § 3.01[1] (citations

and quotations omitted.) See also Shreve v. City of Baltimore,

243 Md. 613 (1966); Heubschmann v. Grand Co., 166 Md.

615 (1934); 29A C.J.S. Eminent Domain, § 21, at 132 (1992).

The power to exercise eminent domain is exclusively reserved

for the legislature. 29A C.J.S., supra, § 21 At 132. The

legislature's power of eminent domain lays “dormant,”

however, until it enacts a statute setting forth the instances

and procedures for its exercise. /d. The legislature may

decide to use its power directly or to delegate its power to

public offers or entities, or to a political subdivision and

agencies within the state. Jd., §23 at 134.

When a state legislature confers the power of eminent

domain by statue, it is the role of the courts to determine

App.46

whether the use of that authority is consistent with the

statutory grant. 26 Am. Jur.2d, Eminent Domain, § 20 at 465-

662. Statutes conferring the authority to condemn property are

generally constructed strictly in favor of the condemnee.

David v. Bd. of Education of Anne Arundel County, 166 Md.

118, 120 (1933); 26 Am. Jur.2d. supra,

'S (.. continued)

amount of the quick-take

deposit and may also recover

the amount of any deficiency

where the value of the property

is later determined at trial to be

greater than the amount initially

deposited by the condemnor.

[29]

§ 20, at 465-66; 29A C.J.S., supra, § 23 at 134. Nonetheless,

the rule of strict construction does not prevent courts from

construing statues reasonable with regard to their legislative

intent. Davis, 166 Md. at 120; 26 Am. Jur.2d, supra, § 19 at

464: 29A C.JS., supra, § 23 at 135. In Davis, the Court of

Appeais explained that,

[w]hile [e]minent domain statutes should be

strictly construed, the purpose and intention of

the legislature, when clearly manifested in the

statue should not be defeated by any narrow,

strained, forced or artificial construction of its

language. Nor should the rule which requires

App.47

strict construction in certain cases be confused

with the definition of the term [at issue].

Id., 166 Md. at 121 (citations omitted; emphasis added).

The SRC's power of eminent domain is derived from

the Maryland Constitution and Title 8 of the Transportation

Article. Article ITI, § 40B of the Maryland Constitution

provides:

The General Assembly shall enact no

law authorizing private property to be taken

for public use without just compensation, to be

agreed upon between the parties or awarded by

a jury, being first paid or tendered to the party

entitled to such compensation, except where

such property in the judgment of the State

Roads Commission is needed by the State for

highway purposes, the General Assembly may

provide that such property may be taken

immediately upon payment therefor to the

owner or owners thereof by said State Roads

Commission, or into Court, such amount as

said State Roads Commission shall estimate to

be of the fair value of said property, provided

such legislation also requires payment of any

further sum that may subsequently be awarded.

(Italics added).

Subtitle 8, Section 3 of the Transportation Article,

which ‘governs the "“[a]cquisition and [d]isposition of

Property,” authorizes the SRC to institute condemnation

App.48

proceedings. Part I, "Definitions; General Provisions,” and

Part Il, “Purposes for Which

[30]

Property May be Acquired,” are of particular relevance to this

appeal. Tr. § 8-302 provides, in pertinent part:

General power to acquire private property

** * &

(b) Condemnation by the Commission. -- On

behalf of and at the request of the [MSHA],

the State Roads Commission may exercise the

authority vested in it by Article III, § 40B of

the State Constitution and acquire for this

State, by condemnation under Part III or Part

IV of this subtitle, for any highway purpose.

(lialics and boldface added).

Tr. § 8-101(p) defines "State highway” as "any public

highway owned by the State." The definition of highway, as

defined by Tr. §8-101(i), expressly includes "related

stormwater management facilities." Tr. § 8-101(i) (Supp.

1995) provides that a

"(hjighway” includes:

(1) Rights of way, roadway surfaces,

roadway subgrades, shoulders, median

dividers, drainage facilities and structures,

related stormwater management facilities and

structures roadway cuts, roadway fills,

guardrails, bridges, highway grade separation

structures, railroad grade separations, tunnels,

overpasses, underpasses, interchanges, entrance

App.49

plazas, approaches and other structures

forming an integral part of a street, road or

highway including bicycle and walking paths.

(2) Any other property acquired for the

construction, operation, or use of the highway.

(Italics added).

Additionally, Tr. § 8-303(b) allows local governments

to transfer publicly owned property to the State for highway

construction, and Tr. § 8-304 allows counties and the State to

transfer between each other “title to, jurisdiction over, or

responsibility for maintenance" of roads in Maryland.

Two other provisions are also of significance. Tr. § 8-

312 provides,

(31)

§8-312. Scope of Part

(a) Purposes not exclusive. -- The

purposes of acquisition specified in this part

are in addition to any others specified by law.

(b) Manner of Acquisition. -- Uniess

otherwise expressly provided in this part,

property acquired for any purpose specified in

this part may be acquired by any of the means

authorized by § 8-302 of this subtitle.

(Boldface in original; italics added).

Tr. § 8-313(a) provides,

§ 8-313. Acquisition of land to protect

highways.

App.50

(a) Purposes of Acquisition. -- (1) Any

land may be acquired under this subtitle for

any State highway construction purpose.

(2) Any land along or near any State

highway may be acquired under this subtitle:

(i) To protect the highway or any

scenery e’ong or near it,

(ii) For landscaping the highway,

(iii) To provide parking and service

areas along the highway, or

(iv) For any similar purpose.

(Boldface in original, italics added).

Appellee relies on the language of Art III, § 40B of

the Maryland Constitution and Tr. §8-313(a) to support its

contention that the SRC lacked authority to quick-take

appellee's land for the SMP, because it was necessitated by

the construction of a County road, not a State highway, and

primarily served private and County interests. In our view,

these provisions do not limit the SRC's quick-take authority

to highway projects that serve only State interests, or that are

exclusively State-owned.

As we noted, Article III, § 40B allows the SRC to

quick-take private property that is "needed by the State for

eny highway purposes." (Italics added). In our view, the

App.51

language, "needed by the State," does not mean that only the

State may need the property

[32]

or that the State must own or fund the highway project in

order to quick-take property necessitated by the highway

construction. Rather, it is conceivable that, as in this case, the

State and a county would work together on a highway

project, with the State designing and constructing the highway

and the County providing funding for the project. Indeed, a

restrictive interpretation of the SRC's quick-take power would

unduly limit the State's ability to work jointly with counties

on highway projects. As the SRC maintains, "the joint nature

of a project makes it difficult and undesirable to attempt to

divide it into parts which are attributable to one jurisdiction

or the other... . " Similarly, limiting the SRC's quick-take

power to State-owned highway projects is inconsistent with

Tr. §§ 8-303(b) and 8-303(a), which facilitate joint county-

State highways projects.

Moreover, the use of the word "any" evidences an

intent not to limit the SRC's power exclusively to projects

that benefit solely the State. As we have stated, "'[a]bsent a

clear indication to the contrary, a statute, if reasonably

possible, is to be read so that no word, clause, sentence or

it

App.52

Phrase is rendered Surplusage, Superfluous, meaningless, or

nugatory " Nationwide Mutual Insur. Co. v. Seitz, 110 Md.

App. 355, 365 (1996) (citin & Management Personne] Services,

Inc. vy. Sandefur, 300 Md. 332, 34] (1984); See also Debusk

v. Johns Hopkins, 342 Md. 432, 445 (1996).

Furthermore, Tr. § 8-313(a) does not constitute an

exclusive limitation on the SRC's quick-take authority.

Rather, Tr. § 8-302(b) governs the SRC's "Igleneral power

to acquire private

[33]

Property.” (Bold in Original). Moreover, Tr. § 8-313(a)

applies to general condemnation actions, as well as quick-take

actions, and Tr. § 312(b) provides that, "unless otherwise

expressly provided" in Subpart II, the Provisions in Subpart

II do not limit the SRC's quick-take authority, pursuant to Tr.

§ 8-302.

In sum, we conclude that the SRC Possessed statutory

authority to quick-take appellee's Property for the SMP,

because the Maryland Constitution and Title 8 of the

Transportation Article afford the SRC the Power to quick-take

Property for “any highway Purpose."

B. The quick-take of appellee's Property complied

with the requirements of the U.S. and Maryland

App.53

Constitutions.

Having concluded that the SRC possessed statutory

authority to quick-take appellee's property for the SMP, we

shall now consider whether the SRC exceeded the bounds of

its statutory power, in contravention of the requirements of

the U.S. Constitution. In order to meet the constitutional

requirements of condemnation proceedings, the taking of

appellee's property must be for a “public use" or purpose and

constitute a "public necessity." See High Ridge Assoc. Inc. v.

County Comm'rs of Carroll County, 105 Md. App. 423, 432-

33, cert. granted, 341 Md. 30 (1995). We hold that the SRC's

taking of appellee's property was constitutional. We shall

explain.

1. The quick-take of appellee's property was

for a public purpose.

Appellee argues that condemning its land for the SMP

did not constitute a public purpose, because approximately

eighty percent of the SMP accommodated runoff from private

commercial interests.

[34]

In contrast, the SRC contends that the taking of appellee's

property was for a public purpose because, pursuant to

Subtitle 4 of the Environmental Article and State regulations,

App.54

the SRC was required to manage all of the stormwater runoff

that previously flowed into the shopping center's SMP, as

well as runoff from the highway construction project along

Routes 108 and 124. The SRC also contends that the SMP

was for a public use, because it was made necessary by the

construction of Route 124, which served a public purpose.

We agree with appellant's contentions.

As we stated earlier, Pursuant to the U.S. and

Maryland Constitutions, private Property may only be

condemned for a public purpose or use. See Prince George's

County v. Collington Crossroads, Inc., 275 Md. 171, 181

(1975). Therefore, governmental entities are prohibited from

using their power of eminent domain to benefit solely private

interests. City of Baltimore y Chertkof, 293 Md. 32, 42

(1982).

A precise definition of public use has eluded courts

for many years. Collington Crossroads, 275 Md. at 181; High

Ridge Assoc. 105 Md. App. at 432. Commentators explain

that,

[n]o general definition of what degree

of public good will meet the requirement of a

‘public use’ for the exercise of the power of

eminent domain can be framed, since in every

case if is a question of public policy, the

determination of which is dependent upon the

App.55

facts and circumstances. The meaning of the

term is flexible and is not confined to what

may constitute a public use at any given lime;

the term must be applied in light of what the

legislature seeks to accomplish and what it

may properly consider to be a public use at

the present time.

29A C.J.S. supra, § 29 at 147 (emphasis added). See also

Collington, 275 Md. at 185 (noting that the concept of public

use

[35]

is not static). Nevertheless, guiding principles regarding

public use have emerged.

Generally, a public use is one that benefits public as

opposed to only private interests. But public use does not

require that there be actual physical use by the public.

Chertkof, 293 Md. at 32; Collington Crossroads, 275 Md. at

182; 29A. C.J.S., supra, § 29 at 147-48. Nor is it required

that the government obtain title to the property that is taken.

Collington, 275 Md. at 182. Rather, it is sufficient if the use

"concerns the whole community or promotes the general

interest in its relation to any legitimate object of government."

29A C.J.S., supra, § 29 at 148. "[T]hat is, public use means

public advantage, convenience, or benefit, and uses that

App.56

contribute to the general welfare and the prosperity of the

whole community, or a portion of it, constitute public use.”

26 Am. Jur.2d, supra, § 50 at 494. Moreover, the goals of

public health and safety and the management of natural

resources within the State are generally legitimate to justify

condemnation. Chertkof, 293 Md. at 43 (citing Collington

Crossroads, 275 Md. 171; Perellis v. City of Baltimore, 190

Md. 86 (1948); 26 Am. Jur.2d, supra, § 52 at 497).'¢

In Collington Crossroads, the Court considered

whether the construction of an “industrial park" or

“employment center to

'® While legislative determinations concerning public

use are subject to judicial review, Chertkof, 293 Md. at 43:

Prince George's County v. Beard, 266 Md. 83, 95-96 (1972),

when a legislature proclaims a use to be public, there is a

presumption that the use is, in fact, public. Anne Arundel

County v. Burnopp, 300 Md. 343, 348 (1984).

[36]

encourage the establishment of private business in Prince

George's County constituted a public use. Jd, 275 Md. at 172.

The development of the industrial park was expected to

strengthen the economic base of the region by providing

employment opportunities and by increasing revenues from

property taxes. Jd, 275 Md. at 177. The Court upheld the

App.57

condemnation of land for the industrial park, stating that

“projects reasonably designed to benefit the general public, by

significantly enhancing the economic growth of the State or

its subdivisions are public uses... ." Jd., 275 Md. at 191.

Certainly, when the primary objective of a taking is to

promote private interests, the taking does not serve a public

purpose. Chertkof, 293 Md. at 43 (citing Collington

Cressroads, 275 Md. 171; Perellis v. City of Baltimore, 190

Md. 86 (1948)). "Conversely, where private use or private

benefit resulting from the exercise of eminent domain is

merely incidental or secondary to the primary public purpose

underlying the taking, the condemnation action is not

unlawful." Jd. (citing Dobler v. City of Baltimore, 151 Md.

154 (1926); City of Baltimore v. Brengle, 116 Md. 342

(1911)). Furthermore, even if the condemnation is "of especial

convenience or advantage to certain individuals . . .," it may

still be for a public use. 4mne Arundel County v. Burnopp,

300 Md. 343, 352 (1984). The public nature of a

condemnation is not destroyed solely because private persons

will benefit or will own the condemned property. Chertkof,

293 Md. at 43.

Moreover, pursuant to “the incident-to-the-taking"”

doctrine,

App.58

[37]

the public purpose of a condemnation is not negated if the

land that is condemned is taken to compensate private parties

whose land was previously taken by the government for a

public purpose. See Burnopp, 300 Md. at 351-53; Chertkof,

293 Md. at 48-52; Collingion 275 Md. at 182-88; Pitznogle

v. Western Maryland Railroad Company, 119 Md. 673, 679

(1913); Substitute Condemnation: Power to Condemn

Property or Interest Therein or to Replace other Property

Taken for Public Use, 20 A.L.R.3d 862, 867 (1968). Based

on "the incident-to-the-taking" doctrine,

the second taking is justified as being incident

to the first taking as the best, although not

necessarily the only, means of satisfying the

constitutional requirement of just

compensation, regardless of whether the

subsequent use of the third person's land

benefits the public.

20 A.L.R, supra, § 2[a] at 866. Commentators explain that,

the constitutionality of substitute condemnation

as being for a public use has been upheld

where the activity on the third person's land,

which is taken to compensate the owner of the

land required for the public use, is either itself

a public use... , or where the second taking

is justified as being incident to the first taking

as the best, although not necessarily the only,

means of satisfying the constitutional

App.59

requirement of just compensation, regardless of

whether the subsequent use of the third

person's land benefits the public, including the

relocation of power lines necessary to the

relocation of roads, utilities, or housing, and

for the purpose of furnishing a means of

access to and egress from parcels of private

property cut off by a limited access highway.

26 Am. Jur.2d, supra, § 95 at 528-29.

For example, in Pitznogle, a railroad company that

was authorized by statute to condemn land for "railroad

purposes” petitioned to condemn Pitznogle's property, in part

for the expansion of a railroad line and, in part, to relocate a

private

[38]

road that was needed for railroad operations. In challenging

the petition, Pitznogle argued, inter alia, that the railroad had

exceeded its statutory authority, because the substitute road

would only serve to benefit private property owners. /d., 119

Md. at 677. The Court, however, rejected Pitznogle's

contention, stating:

The condemnation of a part of his land,

here sought to be condemned, for a substitute

private road or way is incident to and results

from the taking, by reason of public necessity,

of the existing private road for public use, and

the use of it for such purposes should, we

think, be regarded as a public use within the

App.60

meaning of the Constitution.

Id., 119 Md. at 679.

It is the exclusive province of the courts to determine

whether a specified use is public or private. Chertkof, 293

Md. at 43; Beard, supra, 266 Md. at 95; High Ridge Assoc.,

105 Md. App. at 434. In High Ridge Assoc., we explained

that, "'[t]he question whether a use . . . ts really public is

ultimately a judicial one.” Jd., 105 Md. App. at 435 (quoting

Nichols, supra, § 7.16).

In view of the foregoing, we conclude that a public

purpose existed for the condemnation of appellee's property.

The taking of land to construct ditches or drainage areas to

advance the public's health, well-being, and comfort is a

legitimate use of the power of eminent domain. 29A C.J.S.,

supra, § 44, at 163. Furthermore, in our view, it is self-

evident, based on examination of the Maryland Code and

COMAR provisions, that stormwater management serves a

public purpose and benefits the public at large. Md. Code

Ann. Environ. Art ("Env."), §4-201 provides:

The General Assembly finds that the

management of stormwater runoff is necessary

to reduce stream channel

[39]

App.61

erosion, pollution, siltation and sedimentation,

and local flooding, all of which have adverse

impacts on the water and land resources in

Maryland. The General Assembly intends, by

enactment of this subtitle, to reduce as nearly

as possible the adverse effects of stormwater

runoff and to safeguard life, limb, property

and public welfare.

(Emphasis added).

Additionally, COMAR 26.09.02.01A provides:

The primary goal of the State and local

stormwater management programs is {fo

maintain after development, as nearly as

possible, the pre-development runoff

characteristics, and to reduce stream channel

erosion, pollution, siltation and sedimentation

and local flooding.

(Emphasis added).

Moreover, based on the “incident-to-the-taking"

doctrine, the taking of appellee's land for the SMP was for a

public use, because construction along Routes 108 and 124

served a public purpose; this triggered the State's obligation

to manage stormwater caused by its road construction. In

Maryland, "“[t]here can be no dispute of the fact that

condemnation of private property for a public highway or

road is a proper public use." Burnopp, 300 Md. at 350 (citing

Bond v. M. & C. C. of Baltimore, 116 Md. 693 (1911)). See

App.62

also 26 Am. Jur.2d, supra, § 72 at 510. Additionally, as we

noted, pursuant to Titie 8 of the Transportation Article, the

SRC is empowered to quick-take land for "stormwater

management facilities and structures" related to highway

construction. See Tr. §§ 8-101(i)(i) and 8-313. And, pursuant

to Tr. § 4-205, since July 1, 1984,

a State or federal agency may not undertake

any land clearing, soil movement, or

construction activity involving soil movement

unless the agency has submitted

[40]

and obtained approval of a stormwater

management plan from the Department [of] the

Environment.

Additionally, COMAR 26.09.02.05 provides,

.06 When Stormwater Management is Required

A. After July 1, 1984, unless the particular

activity is exempted by this regulation, a

person'’ may not develop any land without an

approved stormwater management plan from

the approving agency. A grading or building

permit may not be used for a property unless

a stormwater management plan has been

approved. ...

Although we agree with appellee that Cynwood

Investments and other commercial properties in downtown

Damascus will likely benefit from, and use, the SMP, th:

public character of the quick-take of appellee's property did

App.63

not disappear merely because private entities will benefit from

and use the SMP. To hold otherwise, we would need to find

that the primary purpose of the SMP was to benefit Cynwood

or other private landowners. See Chertkof, 293 Md. at 43. We

decline to make such a determination. We cannot ignore the

State's policy of safeguarding the environment and protecting

the public, or that Maryland Code and COMAR provisions

require stormwater management. Moreover, as we have stated,

the law of eminent domain does not require that there be

actual physical use by the public. Co/lington Crossroads, 275

Md. at 182. It is sufficient that the condemnation helps to

preserve

'7 COMAR 26.09.02.02 defines person as,

the federal government, the State, any

county, municipal corporation or other

political subdivision of the State, or

any of their units, or an individual,

receiver, trustee, guardian, executor,

administrator, fiduciary, or

representative of any kind, or any

partnership, firm, association, public or

private corporation, or any other entity.

[41]

“water and resources in Maryland" and "to safeguard life,

limb, property and public welfare." See Env. § 4-201.

App.64

2. The SRC's determination as to the

public necessity for the SMP must be

upheld.

The SRC argues that its decision as to the public

necessity of building the SMP on appellee's property is not

subject to judicial review, because there is no evidence that

the State acted with ill intent in deciding that it was necessary

to build the SMP on appellee's property. We agree with the

SRC that appellee did not satisfy its burden of establishing

bad faith on the part of the State in connection with the

SRC's decision as to the public necessity of condemning

appellee's property.

After determining whether a public purpose exists for

a taking, a court must also resolve whether the governmental

authority properly determined that a "public necessity"

justified the taking. High Ridge Community Assoc, 105 Md.

App. at 433; Rollins Outdoor Advertising, Inc. v. State Roads

Comm'n, 60 Md. App. 195, 20i (1984). Nevertheless,

"absolute necessity is not required." High Ridge Assoc., 105

Md. App. at 433. Rather, the use need only be reasonably

necessary under the circumstances. Burnopp, 300 Md. at 349.

Governmental bodies that are authorized by statute to

exercise the power of eminent domain possess broad

App.65

discretion to determine the location and amount of land that

will be condemned. 26 Am. Jur.2d, supra, §§ 30 to 31, at

476-78. Therefore, judicial review of the issue of public

necessity is very limited. A governmental determination

concerning public necessity is determinative unless

[42]

"the decision is so oppressive, arbitrary, or unreasonable as

to suggest bad faith." Schrode/l, 320 Md. at 216 (quoting

Murphy v. State Roads Comm'n, 159 Md. 7, 15 (1930)). The

landowner has the burden of establishing that the decision

was SO oppressive, arbitrary, or unreasonable as to indicate

the existence of fraud or an abuse of power. Jd., 320 Md. at

217.

Based on the 1989 County memorandum, the trial

court believed that the County and Cynwood Investments

conspired to acquire appellee's property through the State's

power of eminent domain. Nevertheless, the court also found

that the SRC was not involved in a conspiracy with the

County and Cynwood Investments.

In any event, a public use need not be absolutely

necessary, but only "reasonably necessary," based on the

circumstances. Burnopp, 300 Md. App. at 349. Mr. Covington

testified that the SRC chose the present site for the SMP,

App.66

after careful consideration of several factors, including the

location of wetlands and the area of natural drainage.

Although only twenty percent of the SMP serves runoff from

the Route 108 extension, the SRC was obligated to replace

the shopping center's SMP in order to "maintain as nearly as

possible, the pre-development runoff characteristics." See

COMAR 26.09.02.01A. Therefore, even if the County and

Cynwood "conspired," their conduct or motivation does not

vitiate the public necessity that justified the State's actions.

Il.

Based on the scope of the project rule set forth in

Baylin v. Siate Roads Comm'n, 300 Md. 1 (1984), the trial

court concluded

[43]

that the construction of the Route 124 extension and the road

project must be considered as separate projects for the

purpose of valuation and that the value of the Route 124

extension should be considered in determining the fair market

value of the taking. The SRC contends, however, that the

SMP was an integral part of the construction of Route 124

and, therefore, appraisers may not take into account appellee's

proximity to the Route 124 extension in valuing appellee's

property.

As we have stated, private property may only be taken

App.67

upon payment of just compensation to the property owner.

King v. State Roads Comm'n of the State Highway

Administration, supra, 298 Md. at 83. “Just compensation”

means the value of the subject property when it is taken.

Nichols, supra, § 12.01, at 12-2. In King, the Court of

Appeals explained that,

‘just compensation’ for the taking of property

means the full monetary equivalent of the

property taken; the property owner is to be put

in the same position monetarily as he would

have occupied if his property had not been

taken.

Id., 289 Md. at 84. the value of the property is generally

determined to be its "fair market value.” See Dodson v. Anne

Arundel County, 294 Md. 490 (1982); Bonaparte v. Baltimore

City, 131 Md. 80 (1931); Md. Code Ann., Real Prop. Art.

("R.P."0, §§ 12-104 and 12-105 (Supp. 1995); Nichols, supra,

§ 12.01, at 12-8. The value of the property shall be

determined on the date of the taking, or if the property had

not yet been taken, the date of the trial. R.P. § 12-103.

R.P. § 12-105 defines fair market value as follows:

[44]

The fair market value of property in a

condemnation proceeding is the price as of the

valuation date for the highest and best use of

the property which a vendor, willing but not

App.68

obligated to sell, would accept for the

property, and which a purchaser, willing but

not obligated to buy, would pay, excluding any

increment in value proximately caused by the

public project for which the property

condemned is needed. In addition, fair market

value includes any amount by which the price

{ reflects a diminution in value occurring

between the effective date of legislative

authority for acquisition of the property and

the date of actual taking if the trier of fact

finds that the diminution in value was

proximately caused by the public project for

which the property condemned is needed, or

by announcements or acts of the plaintiff or its

officials concerning the public project, and

was beyond the reasonable control of the

property owner.

When, as in this case, only a portion of the property

owner's land is condemned, R.P. § 12-104(b) provides that

the damages shall be awarded as follows:

The damages to be awarded where

land, or any part of it, is taken is the fair

market value of the part taken, but not less

than the actual value of the part taken plus any

severance or resulting damages to the

remaining land by reason of the taking and of

future use by the plaintiff of the part taken.

The severance or resulting damages shall be

diminished to the extent of value of the special

(particular) benefits to the remainder arising

from the plaintiff's future use of the part taken.

App.69

Maryland courts have construed the measure of damages

under R.P. § 12-104(b) as "the difference between the fair

market value of the whole property immediately before the

taking and the fair market value as to what is left

immediately after the taking." Oxon Hill Recreation Club v.

Prince George's County, 281 Md. 105, 107-08 (1977). See

also Perkins v. State Roads Comm'n, 55 Md. App. 639, 645

(1983).

The fair market value of the condemned property

before the taking occurs “cannot include or take into account

any increment in

[45]

value which may be proximately caused by the public project

for which the property is being taken." Baylin, 300 Md. at 9

(citing Dodson v. Anne Arundel County, 294 Md. 490, 495

(1982); State Roads Comm'n v. Parker, 275 Md. 651, 683

(1975); King v. Mayor of Rockville, 249 Md. 243, 251

(1968)). Nevertheless, "if, after the government became

committed to [a] project, the government . . . decided to take

[the condemnee's] land as part of a subsequent enlargement,

then the condemnee would be due the enhancement value” of

the project." See Baylin, 300 Md. at 10 (citing United States

v. Miller, 317 U.S. 369, 377 (1943)). In other words, "if the

, a a

App.70

land [that is condemned] is expected to be outside the

boundaries of the proposed improvement and is in fact

outside, then the increase in value of th[e] land taken for

another project must be recognized." Jd., 300 Md. at 20.

In United States v. Miller, 317 U.S. 369, reh'g denied,

318 U.S. 798 (1943), the U.S. Supreme Court set forth the

"scope of the project" rule, which is used to determine

whether a property's proximity to a public project should be

a factor in assessing the fair market value of the land. The

Court said:

If a distinct tract is condemned, in

whole or in part, other lands in the

neighborhood may increase in market value

due to the proximity of the public

improvement erected on the land taken. Should

the Government, at a later date, determine to

take other lands, it must pay their market

value as enhanced by this factor of proximity.

If, however, the public project from the

beginning included the taking of certain tracts

but only one of them is taken in the first

instance, the owner of the other tracts should

not be allowed an increased value for his lands

which are ultimately to be taken anymore than

the owner of the first tract condemned is

entitled to be allowed an increased market

value because adjacent lands not immediately

taken increased in

[46]

App.71

value due to the projected improvement.

The question then is whether the

respondents’ lands were probably within the

scope of the project from the time the

Government was committed to it. If they were

not, but were merely adjacent lands, the

subsequent enlargement of the project to

include them ought not to deprive the

respondents of the value added in the

meantime by the proximity of the improvement.

If, on the other hand, they were, the

Government ought not to pay any increase in

value arising from the known facts that the

lands probably would be condemned.

Id., 317 U.S. at 376-77 (emphasis added).

In United States v. Reynolds, 397 U.S. 14 (1970), the

United States asked the Supreme Court to "clarify" the scope

of the project rule, but the Court stated that the test “was

stated with admirable clarity by [the] Court in Miller.” Id.,

397 U.S. at 21. The Court added, however, that,

[a]s with any test that deals in probabilities, its

application to any particular set of facts

requires discriminating judgment. The rule

does not require a showing that the land

ultimately taken was actually specified in the

original plans for the project. It need only be

shown that during the course of the planning

or original construction it became evident that

land so situated would probably be needed for

public use.

App.72

Id. Additionally, the Court noted that, although it is the role

of the jury to determine “just compensation" in a

condemnation case, the question of whether the taking of land

in issue was within the scope of the original project is a legal

question to be decided by the trial court. Reynolds, 397 U.S.

at 20 n.14.

Based on the "Miller rule," courts have constructed a

three-part test to determine whether the owner of the property

that is condemned is entitled to enhanced value: (1) the

foreseeability that the project would include condemnee's

property on date of commitment; (2) the length of time

between the date of commitment and condemnation of the

property; and (3) government representations regarding the

finality of the project as announced on the date of

commitment. Baylin, 300 Md. at 16-19.

The three part test is premised upon equitable

principles and the reasonable expectations of the property

owner at the date of commitment to the project. See Baylin,

300 Md. App. at 19-20. In Baylin, the Court explained that,

‘[w]hether or not the increment in value

is attributable more to the Government's

special demand for the property or more to a

private market demand for benefits conferred

App. 73

upon the property by its proximity to the

Government project is largely a function of

reasonable expectations. The crucial inquiry is

whether, after commencement of project A but

piror to the condemnation of property x, the

owner or a private purchaser contemplated

acquisition and development of property x

could reasonably anticipate that he would be

able to devote that property to its highest

economic use, enjoying the advantages

inherent in its proximity to the nearby

Government project, without serious

apprehension that the property x would soon

be condemned.

Id., 300 Md. at 19-20 (quoting 320 Acres, 605 F.2d 762, 793

(Sth Cir. 1979) (emphasis added). Moreover, in 320 Acres of

Land, the court stated:

Regardless of how the inquiry is framed, .. .

the object of [the scope of the project test] is

the same: to distinguish value attributable to

Government demand from true fair market

value of Government conferred benefits, and to

ensure that the landowner is not awarded a

premium for the former but, at the same time,

is justly compensated for the latter.

App.74

Id., 605 F.2d at 793.

The Court of Appeal's application of the scope of the

project test in Baylin, supra, is particularly instructive. There,

in 1948, at Baltimore County's request, the SRC created a

plan for the building of a “limitéd access highway" in the

area between Liberty

-48-

Road and Reisterstown Road. In 1952, the project, which was

later renamed the Northwest Expressway, was budgeted as of

July 1, 1954 in the SRC's twelve year road construction and

reconstruction program. In 1957, the SRC approved design

plans for the highway, including the location of the centerline

and the median. Additionally, during the 1950's and 1960's,

construction drawings, ground surveys, and right-of-way plats

were created. The construction drawings showed that the

highway would run through the property owner's future plot

of land ("the Owners"), thereby requiring a taking of 19.32

acres from the entire tract. In 1960, the SRC approved the

location of the expressway. In 1963, Baylin's predecessor in

title received a plat showing the proposed right of way, but

indicating that the plans were "TENTATIVE AND SUBJECT

TO REVISION." Jd., 300 Md. at 5.

App.75

In 1965, the federal government completed a study

concerning construction of the Northwest Rapid Transit Line,

which proposed that a transit line be located in the median of

the proposed Northwest Expressway. Studies published in

1968 and 1970 echoed approval for that suggestion.

The Owners purchased the property in issue in 1965.

In 1967, an engineer hired by the Owners obtained copies of

the State's preliminary construction plans for the Northwest

Expressway, which showed the same project location through

the Owners’ property. At the time, the State told the engineers

that the plans were “very tentative” and that the Northwest

Expressway was "‘under restudy and subject to change based

on traffic needs, [and] latest design

-49-

criteria... ." Id, 300 Md. at 5.

Subsequentiy, because funds for the highway were

transferred to another highway project, construction of the

Northwest Expressway was delayed. Before funds were

reallocated toward the project, many occurrences affected its

construction. In 1969, the National Environmental Policy Act

went into effect, and new safety standards for highways were

also enacted. In addition, the Mass Transit Authority was

established and tentative plans began for a project involving

the joint construction of the Expressway and a "Mass transit

Sey ee

App.76

facility," that was proposed for placement in the median of

the Northwest Expressway. In 1972, the rapid transit project

was shown in the Consolidated Transportation Program. At a

public hearing in 1973, the original plan for the Northwest

Expressway, as well as an alternate route, which would have

required about 60 acres of Baylin's property, were presented.

The final plan, as adopted by the State in 1976 and as

accepted by the federal government in 1977, proposed that a

new road, Owings Mills Boulevard, be built through the

Owners' property and that a large rapid transit facility and

parking lot be located on the property.

As a result, in 1981, the State filed a condemnation

proceeding against approximately 137 acres of the Owners’

land, in order to build the Northwest Expressway and the

Mass Transit Facilities. The Owners argued that all of the

land, except 19 acres, should be enhanced in value by the

land's proximity to the Northwest Expressway, because only

19 acres of the property were included in the project when

the State originally committed to

-50-

building the Northwest Expressway. Nonetheless, the trial

court determined that, since the State committed to building

the project in 1954, there was "one ongoing project.” The trial

court thus ruled that expert testimony could not take into

App.77

account any enhancement to the property value due to its

proximity to the Northwest Expressway. /d., 300 Md. at 8.

The Court reversed, however, finding that the Expressway

and the Mass Transit Facility were distinct projects for the

purpose of valuation and determining damages from the

taking. Jd., 300 Md. at 8.

In applying the scope of the project test, the Court

noted that the date of commitment to the Northwest Project

was in 1954, when the project was announced and funds were

allocated for it. What the Court said is pertinent here:

The record in this case indicates that

the Northwest Expressway was initially

considered in 1948. The project was

announced to the public and funds were

budgeted for it in 1954. Construction plans

and right-of-way plats were initiated and some

property was acquired for the Expressway. In

1957 the centerline of the highway was

established. From the time the project was

announced people were aware of the general

path of the highway; there was a reasonable

expectation that part of appellants’ land would

be taken for the Expressway. At this time

landowners and prospective purchasers could

not expect to devote part of these properties to

their highest and best use. However, this

announcement did create a new market for the

remaining and neighboring land... .

In view of the above, we cannot say

that the finding of the trial judge that the state

App.78

was committed to the project in 1954 was

clearly erroneous.

Baylin, 300 Md. at 14.

The Court concluded that it was not foreseeable in

1954 that the “original proposed dimensions” of the project

might need to be changed to include the condemned property.

The Court reasoned

it.

that,

[a]t the time and for at least the next 11 years

[after commitment to the project], no one

contemplated building a Mass Transit Project.

Even the most ‘astute and informed’

landowner, could not have foreseen that

property surrounding the Northwest

Expressway ‘would probably be incorporated’

for the Transit facility.

Id., 300 Md. at 17 (citations omitted).

The Court then pointed out that the length of time

between commitment and the "possibility" of the Mass

Transit System was 27 years. Jd., 300 Md. at 17. The Court

remarked that this period left ample time for the market value

of the property to increase in light of the property's location

next to the Expressway. /d., 300 Md. at 18. The Court noted,

however, that landowners have been allowed to recover

enhanced value "where the lapse of time is much shorter." Jd.

App.79

In considering government representations concerning

the plans for the project as originally announced, the Court

determined that even though the government indicated that

the Expressway plans were tentative, a reasonable landowner

or purchaser of property could not have foreseen that a rapid

transit facility would be added to the plan and built on the

Owners's land. Jd, 300 Md. at 18-19. The Court further

remarked that equitable considerations favored allowing the

Owners to recover enhanced value. It said:

[The Owners] bought the property in

expectation that the Expressway wouid be

built. They paid an increased price for this

property because its value was based on

proximity to the proposed Expressway; they

wanted to develop the property to its highest

and best use. But, did they gamble that the

State would then take this property. for a

project no one was aware of, and pay for its

pre-Northwest Expressway value. Appellant

would have made a bad business decision if

the state decided not to

-52-

build the original road -- as we see it -- that

was the extent of this gamble.

Id., 300 Md. at 21.

Applying these principles here, we are of the view that

the trial court erred in holding that the date of commitment

App.80

was in May 1971, when Montgomery County amended its

Master Plan. Master plans serve as general guides that

"recommen|[d] area development and propos[e] future land use

and zoning.” Boyds Civic Ass'n Vv. Montgomery County

Council, 67 Md. App. 131 (1986), affd in part, rev'd in part

on other grounds, 306 Md. 683 (1987). See also People's

Counsel for Baltimore County v. Webster, 65 Md. App. 694,

cert. denied, 306 Md. 70 (1986). We have said that "a Master

Plan is at best a ‘flexible guide,’ or an ‘intellectual prophecy’

of future development. Kanfer v. Montgomery County

Council, 35 Md. App. 715, 733 (1977). Advisory in nature,

master plans "are continually subject to modification in light

of actual land use development and serve as a guide rather

than a straightjacket." Boyds, 67 Md. App. at 143. As the

SRC contents, "[a]bstract, long range planning of the sort

done in the master plan cannot qualify as the practical,

detailed design necessary to constitute a commitment to a

project under the scope of the project rule.”

Furthermore, as we observed earlier, the Court in

Baylin held that, although the Northwest Expressway first

appeared in the SRC's 1948 plan, the date of commitment

was not until July 1, 1954, when Baltimore County

announced the project and allocated funds for it.

App.81

See Baylin, 300 Md. at 17. The Court explained that,

[i]n some instances the commitment date may

be the date

-53-

the government announced the project.

However, if there is a considerable length of

time between the announcement and the taking

this may mitigate against using such a date.

Under those circumstances the date of

commitment [is] defined as,

the date as of which the

landowners or _ prospective

purchasers no longer could

reasonably anticipate being able

to devote these properties to

their highest and best use in the

context of the surrounding

governmental project, without

serious apprehension that the

property would soon be

condemned. In other words, it

is the date as of which the

prospect of imminent

condemnation becomes

sufficiently definite that it

should be a major factor in the

decision of any reasonable

person to buy or develop

property.

Id., 300 Md. at 13 (citing United States v. 320 Acres of Land,

605 F.2d 762, 805 (Sth Cir. 1979)) (emphasis added). See

site

eo. ae

App.82

also Washington Metropolitan Area Transit Authority v. Five

Parcels of Land in Prince George's County, 473 F.Supp.

1232, 1234, 1237 (D.Md. 1979) (although the project had

been planned since the 1960's, the date of commitment for the

project was in 1971 when maps and drawings of the project

were presented at a public hearing).

In view of the foregoing, it appears that, in this case,

the date of commitment may have been in 1987, when the

funds were allocated for the project through amendment to

the MOU, or in 1988, when the State presented its

preliminary plans and drawings to extend Route 124 some

$00 feet during the public hearing, or in 1990, when the State

presented its final plans of the Route 124 extension. On

remand, the trial court should determine, based on Baylin, the

date upon which “landowners and prospective purchasers no

longer could reasonably anticipate being able to devote [their]

properties to their highest and best use in the context of the

-54-

surrounding governmental project." Baylin, 300 Md. at 14

(quoting 320 Acres of Land, 605 F.2d at 807). After the court

determines the date of commitment, the court should then

apply the scope of the project test as enunciated in Baylin. If

the court finds that it was not reasonably foreseeable that

App.83

appellee's land would be condemned for an SMP on the

commitment date, the value of appellee's property may be

enhanced as a result of its proximity to the Route 124

extension.

JUDGMENT OF THE CIRCUIT COURT FOR

MONTGOMERY COUNTY REVERSED; CASE

REMANDED FOR FURTHER PROCEEDINGS

CONSISTENT WITH THIS OPINION.

COSTS TO BE PAID TWO-THIRDS BY

APPELLEE AND ONE-THIRD BY APPELLANT.

i.

— a

a te Ne ee ee eT ee ee eg ee ee, ee, ee Oe UEP eee ee ee Pee Te

App.84

APPENDIX C

IN THE CIRCUIT COURT

FOR MONTGOMERY COUNTY

STATE ROADS COMMISSION

OF THE STATE HIGHWAY

ADMINISTRATION

Acting for and on behalf of the

STATE OF MARYLAND

Plaintiff

Vv. Civil No. 93,313

WJM REALTY, INC., et al.

Defendants

MEMORANDUM OPINION AND ORDER OF COURT

Memorandum Opinion

Plaintiff State Roads Commission of the State

Highway Administration seeks to condemn land of one

private owner to serve developmental purposes of another

private owner. This is an impermissible use of the public

power of eminent domain. Moreover, land taking (quick take)

for regional storm drainage is beyond commission authority.

Evidence, including testimony, topographical maps and

other exhibits, discloses serious traffic and drainage problems

assumed by Cynwyd Investments in building its Damascus

Shopping Center (Centre). Plaintiff solved Cynwyd's traffic

App.85

problem by its long planned design and subsequent

construction of road improvements to Maryland Route 108

and the intersection of Maryland Routes 108 and 124 and by

a stub extension of Route 124.

a

To solve its drainage problems, Cynwyd, with assistance from

Montgomery County, Maryland, sought a regional storm

drainage facility on land owned by Defendant WJM Realty,

Inc. (William J. Miller). Because the facility would have

disastrous consequences to developmental usage of

defendant's frontage on the newly constructed stub, defendant

"refused the use of his parcel”.

As designed and contemplated by plaintiff, the road

improvements would utilize land taken from Cynwyd and one

other source for two storm water management facilities to

satisfy drainage requirements of the road project. Prompted by

Cynwyd, Montgomery County proposed to plaintiff that

Cynwyd's land not be taken but that defendant's site be

acquired "over objection of the owner" "to provide retention

serving a larger area" including Cynwyd's shopping center.’

Plaintiff seeks here to do so.

Defendant presses the pending motion to dismiss these

condemnation proceedings. For the reasons stated in open

court on March 24 [14], 1995, and on May 25, 1995, this

Dr ok

App.86

court concludes the motion should be granted because the

acquisition here constitutes an illegal and unauthorized usage

of the public power of eminent domain.

'Defendant's Exhibit #5, memorandum dated March

21, 1989 of Marian Hershenson, is one piece of evidence in

a voluminous record. As it shows the Factual scenario here

presented, it is footnoted and attached hereto. Particular

attention is directed to its footnote. .

AR

Order of Court

For the reasons stated, it is this 29th day of August,

1995, by the Circuit Court for Montgomery County,

Maryland,

ORDERED that:

1. Defendant's Motion to Dismiss is GRANTED;

and

3 Proceedings herein are DISMISSED; and

3. FINAL JUDGMENT is entered for Defendant

WJM Realty, Inc., costs to be determined.

/s/__ James S. McAuliffe, Jr.

James S. McAuliffe, Jr.

Specially Assigned Judge

of the Circuit Court

for Montgomery County, Maryland

SN POSTE a Rare he Sea RR eR

App.87

MEMORANDUM

March 21, 1989

TO: Steven Poteat

Director, Upper Montgomery County

Service Center

FROM: Marian Hershenson

Senior Planning Specialist

Division of Commercial Revitalization

Department of Housing & Community

Development

SUBJECT: Need for alternative locations for storm

water management facilities for the

Maryland State Highway

Administration (MHSA) design for

improvements to MD Route 108

between MD Route 27 and 124, the

intersection of MD Route 108/124, and

the 600 foot stub of MD Route 124

Extended.

DHCD has learned that MSHA proposes two storm

water management (SWM) facilities to serve the above-

referenced road improvements in the Damascus Commercial

Area. One would be located on parcel P788, the "old library

site,” southeast corner of MD Route 108/124. The other

would be on parcels N683/N575, the Damascus Shopping

Centre property near its Main Street frontage. An objective of

the Damascus Revitalization Program is infill commercial

development on the shopping center's Main Street frontage or,

at the very least, parking to serve Main Street. The owner of

App.88

the center, Cynwyd Investments, is in accord with the

objective of infill development and has retained an architect

to develop a retail design proposal.

DHCD has indicated to MSHA that the proposed

SWM facility locations are not optimal. MSHA has stated it

has directed its consultant to see if there are other suitable

locations.

In the meantime, DHCD is_ also _ seeking

recommendations for SWM facility locations which do not

conflict with revitalization aims. Time is of the essence in

order not to delay MSHA's design schedule. DHCD requests

that under the auspices of the Upper Montgomery County

Service Center, a meeting of other agencies and parties with

an interest in SWM in the area, be convened to explore

alternative locations.

ae

Possibilities are that SWM _ plans prepared by

Dewberry and Davis for Cynwyd” and/or plans that DOT will

be designing for the remainder of MD Route 124 Extended

could incorporate MSHA needs.

cc: Richard J. Ferrara

David Chikvashvili

Robert C. Merryman

Greg Leck

Jean Chait

Gloria Kratz

Richard Brush

Larry White

John Hench

Marilyn Clemens

Michael Snyder

App.89

Randy Paugh

MH/anm

SPOTEETM

“Approximately two years ago, plans were prepared for

Cynwyd for an off-site SWM facility to the east of their site

on a parcel owned by WJM Realty Inc. The County was

interested in participating in this facility to provide retention

serving a larger area. Cynwyd submitted drawings and

calculations to DEP. However, the owner of the proposed site,

William J. Miller, ultimately refused the use of his parcel.

Should this site be suitable for MSHA needs, we need to

know what tools can be used realistically to acquire the site,

over the objections of the owner.

App.90

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

STATE ROADS COMMISSION

AKAS: MARYLAND STATE,

Plaintiff,

V. Civil No. 933t3

WJM REALTY, INC.,

GRANT S. HESTON,

JEAN DULIN HESTON,

LAWRENCE A. SHULMAN,

DAVID A. PORDY,

WASHINGTON SUBURBAN

SANITARY COMM.,

MONTGOMERY COUNTY,

MARYLAND

Defendants.

HEARING

Rockville, Maryland March 14, 1995

App.91

IN THE CIRCUIT COURT

FOR MONTGOMERY COUNTY, MARYLAND

STATE ROADS COMMISSION

AKAS: MARYLAND STATE,

Piaintiff

Vv. : Civil No.

: 93313

WJM REALTY, INC.,

GRANT S. HESTON,

JEAN DULIN HESTON,

LAWRENCE A. SHULMAN,

DAVID A. PORDY,

WASHINGTON SUBURBAN

SANITARY COMM

MONTGOMERY COUNTY

MARYLAND

Defendants.

Rockville, Maryland

March 14, 1995

WHEREUPON, proceedings in the above-entitled

matter commenced

BEFORE: THE HONORABLE JAMES _ 5S.

McAULIFFE, Judge

App.92

APPEARANCES:

FOR THE PLAINTIFF:

FRANK W. WILSON, ESQ.

MVA Building

15 Metropolitan Grove Road

Gaithersburg, Maryland 20878

FOR THE DEFENDANTS:

R. EDWIN BROWN, ESQ.

260 East Jefferson Street

Rockville, Maryland 20850

FOR MONTGOMERY COUNTY:

CHRISTOPHER E. HITCHENS, ESQ.

A. KATHERINE HART, ESQ.

101 Monroe Street

Third Floor

Rockville, Maryland 20850

_* * *

Montgomery County's motion to dismiss the third-

party claim at tab number 99 is granted without leave to

amend. There are several reasons given by Montgomery

County for their argument.

I have concluded, however, that the reason I wish to

give for the decision in this case is that in a condemnation

App.93

case it is not appropriate to have third-party claims of this

nature.

If one perceives that one has a claim that grows out of

the condemnation proceeding, the proceeding itself and the

rules governing condemnation matters do not envision

bringing third-party claims. If there are grievances against a

third party, they obviously must be the subject of a separate

action.

Montgomery County has gone into the merits of the

matter and has sought to have some decision on that. For

reasons which I will probably make obvious to you later in

the day, I am not going to rule on that at this time one way

or the other. Besides which, judges soon learn not to rule on

anything more than they have to.

With that, the motion is granted without leave to

amend on the procedural ground.

All right. Thank you very much.

. %

sees

The property owners in Damascus, the largest property

owner by far affected here is Sinwood, have had a problem

with drainage control. You have furnished me topography

App.94

maps. I have studied them. I am personally familiar, and have

been all my life, with the Damascus area.

13.

sees

Amendment Number One says absolutely nothing

about storm water management. We are committed in ‘85, we

are definitely committed in '87, we are going forward. These

are public records that are being exchanged, available to the

public if they want to pursue their rights, because these are

public agencies doing the public's work. So they are

available. There are no personnel items here, and the public

may review them and check them and so forth. And they are

there.

And much of it is made to document what is

happening so that the public and all other interested parties

may know. And again in '87 there is no mention of any storm

water management.

In '91 there is Amendment Number Two. And ‘91 is

shortly before construction begins, which I believe was

around ‘92. Because at ‘91 the parties with copies to the

whole world that is involved in this in Amendment Number

Two, we see what has happened between ‘87 and ‘91. While

it has not been spelled out in ‘85 and '87, we are learning

App.95

from those documents and other collateral documents that are

in evidence the nature of this roadway that is to be built.

-28-

eee

First, the storm drainage area served is more than four

times as great as that that was needed for the State Roads

project, more than four times as great. And that is true even

after you figure that the extra 500 feet is going to require you

to eliminate what has been serving in the meantime as a sort

of a natural pond, small natural pond, for the accumulation of

drainage.

And when you eliminate that !n the construction of the

ex./a 500 feet you are going to have to do something about

that. But it doesn't mean that you set up what is appropriately

called in the deposition of Mr. Merriman -- in this part of the

case about the only refreshing thing about what was done

here from the Court's

-5]-

standpoint was to see the refreshing way in which Mr.

Merriman testified.

He has no difficulty, no matter what you want to call

it, he has no difficulty in calling it a regional facility. Now,

it doesn't matter, ladies and gentlemen, what you call it. We

do not deal in nomenclature. We are not concerned with

App.96

whether you call it a storm water management pond or a

regional drainage facility. We are concerned with how big it

is, what does it serve and what does it do and who does it

serve. That is what we are concerned with. The nomenclature

is not the issue.

But the county's Mr. Merriman says, when presented

with the facts and over objection: it sure looks like a regional

facility to me. And that was refreshing. And I have to tell

you, it sure looks like a regional facility to this judge.

Without reference to the memorandum which bears

more on whether we are going to dismiss this condemnation

case or not, or at least the whole part of it which relates to

the storm drainage as being impermissible, apart from that the

project itself, and perhaps that part of the memorandum which

is consistent by the testimony given by the State Roads

Commission and some of the questions I asked in the

testimony.

The Department of Housing and Commercial

Development has

-52-

learned that Maryland State Highway Administration proposes

two storm water management facilities to serve the above-

referenced road improvements in the Damascus commercial

area. In 1989 the plans of the State Roads Commission was

App.97

to provide for storm drainage as for a period now of 12 years

or more the state has been required to provide whenever it

does a project. That also is in evidence. And they have

provided that as they must.

Did they provide for what we see here? Absolutely

not. What was on their plans, what is sometimes referred to

in a number of documents as preliminary investigative plans

and the like, for two storm water drainage facilities; one in

the old library that I have referenced, on the old library

property just down 124.

Down is important because the drainage there would

be pretty easy, and to borrow Mr. Brown's nomenclature,

you're not going to buck the grade when you're going down

to a pond.

The others would be on parcels N-683 and N-575.

Don't both to look at your parcels, I'll tell you where it is.

Roughly in either this area or this area going up to Main

Street, that is the first parcel mentioned. The other parcel is

the large parcel upon which the whole shopping center is

built. A small part of that is linked on. That is where the

other storm drain was to be, on Sinwood's

-53-

property. And it was going to use some of the otherwise

usable developable property for which Sinwood had plans.

App.98

When you read the last sentence of that paragraph,

you have to ask yourself: who is this planning specialist

carrying water for. Or the last couple of sentences. In

speakese the word “infill” is used. Translated it means: we

want to develop that property and use it commercially, an

objective of the Damascus Revitalization Program. And I ask

you, do you think the objective was greater in the Damascus

Revitalization Program or greater in Sinwood.

Is infill commercial development on the shopping

center's Main Street frontage, or at the very least parking to

serve Main Street? The owner of the center, Sinwood

Investments, is in accord with the objectives of infill

development. Apparently not so much interested in parking to

serve Main Street, but definitely interested in infili

development. And has retained an architect to develop a retail

design proposal.

In short, ladies and gentlemen, the state had its facility

ready and had the preliminary plans, and we know where the

two storm water ponds were to go. And we are now learning

in ‘89 what caused the switch. And we are now learning that

the state's argument that what was done here was to serve the

drainage area involved in the state's project -- I can't help it,

Mr. Wilson, it

-54-

App.99

won't hold water. That is what we are talking about, water,

and it won't hold water. That is not what it was all about; not

at all, not for a second.

Without the remainder of the memorandum but

confirming that fact which is confirmable on all the

preliminary plans and other documents as to what the state

had projected at that point, this was the turning point and it

had absolutely nothing to do with the state's project. And to

the slight extent that interfering with that small pond might

require some additional consideration, in no way, in no way

whatsoever could it even begin to approach what was built

there. Not even worth mentioning.

Therefore if we stop there, we reach an answer to an

issue that you have posed for me, and it is not a close issue

but it requires description and to tell you how you got where

you are and what happened.

The so-called storm water drainage project is at the

very least a separate project totally and completely from the

state project. The overwhelming evidence is that whatever

interest it served for the state were incidental to the greater

interest being served, and it was an alternate plan that served

the state as well or better.

For purposes of valuation and condemnation,

therefore, that enormous structure is a separate project totally.

App.100

The condemnation for that project must be based upon

valuing it as though the road

-55-

were there, and severance damage is appropriate including

diminution of the loss of value, or the difference between the

value before that drainage facility was built and the value

after it was built of the land that was condemned to build it.

And since it has effectively -- from a developer's

standpoint it has not only taken most of the frontage, which

indeed it has, but from a development standpoint it has left

the developer with less than nothing in terms of frontage

because it has created a major eyesore from a development

standpoint which presumably would be in the view of anyone

who would purchase what ultimately is developed there.

So it is from their standpoint a monstrosity as to size,

as to frontage and as to the ultimate view should they try to

develop it. That adds up to damage, lots of damage.

It is the rule of this Court henceforth that all

appraisers, all appraisers appraising this property shall view

this as two projects and shall take into consideration in

appraising the condemnation of the so-called storm water

drainage facility, more appropriately a reasonable [regional]

storm management facility, they will take into consideration

and treat it as two separate projects and will treat the damage

App.101

historically as though the road were there when the

condemnation took place, which is the appropriate way.

The road has been programmed for over 20 years. The

storm

-56-

water drainage facility, or reasonable [regional] facility, was

a facility that was not the creation of -- it was the physical

creation of the State Highway Administration, it was not --

Highway Administration was not the driving force behind

this.

Plaintiff's motion in limine at tab 63 is granted and the

valuation is stated for the property but not as requested. What

this requested was to take up preliminarily as was appropriate

what the valuation is and to fix it as a matter of law. I have

just done that. I have fixed the standard that will be applied.

And the taking will be as though the road were there

and the consequential damage to the remaining property will

be as though the road were there since it had been in the

Master Plan for 20 years and since the parties here had relied

upon it as it shows on the land records for many years and it

contracted on that basis, all as shown by the easement.

Likewise, the defendant's cross-motion for ruling on separate

question of law. I believe -- that very issue.

App.102

Well, I have declined to rule on two and three. I do

rule on one, and I do rule that the storm water management

pond so-called condemnation is a separate project from the

State Roads Commission's Route 108 reconstruction project

and the County's Route 124 extension. I do so rule.

This material all relates to what the Supreme Court of

the

mS

United States has done in the last five years, and particularly

the last six months, in the area of imminent domain. And it

is very clear that the Supreme Court and the justices there are

concerned about the use of imminent domain in improper

ways, including the threat to secure land without paying for

it on the one hand as well as actually utilizing the power. The

power is there but it is constitutionally protected.

My problem with a motion to dismiss is I don't know

what you do to put the cat back in the hat after the cat is out.

Do you understand me? Now, if you ever looked for a

smoking gun, and I missed it the first time through, you look

at the footnote. And if you ever want to see a smoking gun

in a case, you have found it.

And this tells you why the veer, why the tum, the

change and what drove it. And it does not take a -- I think

the common lexicon is a rocket scientist, but it does not take

App.103

a brilliant intellectual to understand that something was

driving the county division here and department.

Now, when you get through with the speakese, I'll

translate what it says so there will be no mistake about it. But

I think you know what it says. So listen to it because if this

case goes on and you can't resolve it, you are going to hear

this perhaps even in the Supreme Court of the United States,

because this is just the

-58-

sort of thing that they are on track to handle today. Therefore,

it is likely to get their nod.

So listen. You will hear it again. Quote, approximately

two years ago plans were prepared for Sinwood -- Sinwood.

I doubt that Sinwood could write this any clearer or more

self-serving than this representative of the county has done it

for them. For them.

Approximately two years ago plans were prepared for

Sinwood for an offsite storm water management facility to the

east of their site on a parcel owned by WJM Realty, Inc. The

county was interested in participating in this facility to

provide retention serving a larger area. Sinwood submitting

drawings and calculations to -- and I assume that this is

Department of Environmental Protection, DEP -- however, the

App.104

owner of the proposed site, William J. Miller, ultimately

refused the use of his parcel.

Parenthetically I say imagine a private owner who

didn't want to see his parcel used for this purpose. He didn't

want to contract with them. He didn't want to sell this

property. It was his property, he had uses for it. He had

contracts, he had commitments. He didn't want to dispose of

it to them. He wasn't interested. He heard them out, he wasn't

interested.

That is what landowning is all about. That is what the

-59-

Constitutional protection is all about. Let's not forget the

Constitution. It appears in both Constitutions for which these

two flags behind me stand, you know, and it is called power

of imminent domain and limitations thereon. And that is why

the Supreme Court is so interested at this point.

And here is the kicker. Should this site be suitable for

Maryland State Highway Administration needs, we need to

know what tools can be used realistically to acquire the site

over the objections of the owner.

All right. Let's take it out of the speakese. Can we

somehow link this up with the State Roads Commission

project, hinge it on so we can use ihe only quick take power

of imminent domain that is available anywhere around for the

App.105

purpose of extracting from the Millers their property over

their vehement objection and taking it by force to use for the

benefit of Sinwood. And that is what was done.

And this tells us everything we need to know. There

are other documents, but this tells us and it tells us

dramatically. The state was an innocent party, interested in

getting a road for nothing. The county and the department

was carrying water for Sinwood. And largely on behalf of

Sinwood, because Sinwood couldn't get it privately over the

bargaining table, undertook to get it from them so that the

enormous problem that I previously referred

-60-

to on storm drainage which Sinwood has, or had, until this

project so conveniently solved it for them, the plans which

they drew up privately two years earlier but couldn't sell to

the Millers any part of, and the Millers turned them down flat

on the bargaining table, which was their absolute right.

So Sinwood -- I don't know whether any of the names

on here are Sinwood. But I'll bet you this, I'll bet you

Sinwood got copies of this, whether they are copied or not.

You know how I am going to rule if I have to rule on

the motion to dismiss, and then I am going to let you take it

up and argue it to all the Courts that see fit to let you argue.

And I don't think your chances of establishing that this is a

App. 106

Constitutional use of the power of imminent domain are very

good.

I think this is one of the worst travesties. The

difference is that the travesty is so well documented. The

lawyers can assess their chances. But the problem is the thing

is built.

I am not going to rule today because I am afraid that

once I do rule the cat will be even harder to handle. But I

think you know what I am going to rule. You know, I am

here for a reason. I told you before, the judges that sit in

these cases are the only protection the landowner has against

this very powerful right of

-61-

imminent domain. And these flags are behind here to remind

not just you but me about why we are here and why I am

here.

And I doubt very much when I issue my ruling, if I

have to, that I am going to let the power of imminent domain

be used to get what couldn't be gotten -- to get for a private

party what could not be gotten across the bargaining table.

And in the lexicon of Constitutional law, that is a no-

no. It is one of the few major restrictions, but it is there.

Thou shall not do that. With respect to the state, since I

believe the state got a copy of this, the state was innocent

App.107

party and it was getting something largely for nothing. The

state is largely innocent for that reason. But its representatives

should have looked more closely at what was happening.

And I hope that in the future when the state is asked

to go into something like this, they will. And if they find

anything that smells as bad as this does, they will say: our

power is not to be used for that purpose. It is spelled out, and

it is not to be used for that purpose. And you will not call

upon us to carry your water for a private individual who can’!

get it over the bargaining table after trying for two years on

plans they drew up.

For the county it is much worse. Much, much worse.

And I don't

-62-

know where these people are now, but if I have to make a

ruling, I think it is going to hurt a lot of people. We have a

new County Executive and a new County Attorney, and if I

have to publicly say and document what is right here, what

is clear and what happened, it is going to hurt a lot of people

and it isn't going to benefit the Miller interest at all. It just

isn't. They are not in it for the hurt they can do to people,

they are in it to get well. And they deserve to get well.

Now, I don't care what your schedules are, you will

either be here at 10:00 o'clock on the 30th of March or you

:

|

App.108

will send a representative at 10:00 a.m. If you have not -- I

will not sit on this case, but the 30th of March will tell you

whether you and the Miller interest can come to an agreement

that will right a serious Constitutional wrong.

Therefore, the issue of the motion to dismiss is held

in abeyance and the decision thereon is held in abeyance until

the 30th of March.

Does that turn out to be a Thursday according to your

calendars? I think so, but it doesn't matter. Ninety-five

percent of what I do now is contested custody. And I just had

a case settle, so I have that lone opening. And I am putting

it in there for you.

If you come back and tell me that you cannot resolve

this

-63-

matter, 1 am going to do what I have to do, what these flags

say I shall do, and then I am going to let you try to put the

cat back in the bag.

-64-

eee 8

We aren't talking condemnation now, we are talking

Constitutional right and damages for invading basic

Constitutional protections and corrupting the process to use

the power of imminent domain for a private purpose wholly

App.109

wrong when that private entity could not get what they were

seeking at the bargaining table. It was doné. They got it.

This should not ever be the subject of further suits.

This should simply be a resolution of a matter through

settlement and payment of just compensation, not only for

land but for a serious Constitutional harm.

-68-

App.110

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

STATE ROADS COMMISSION

AKAS: MARYLAND STATE,

Plaintiff,

Vv - Civil No. 93313

WJM REALTY, INC., ET AL

Defendant

HEARING

Rockville, Maryland May 25, 1995

App.111

IN THE CIRCUIT COURT FOR

MONTGOMERY COUNTY, MARYLAND

STATE ROADS COMMISSION

AKAS: MARYLAND STATE,

Plaintiff,

Vv. : Civil No.

: 93313

WJM REALTY, INC., ET AL

Defendant

Rockville, Maryland

May 25, 1995

WHEREUPON, proceedings in the above-entitled

matter commenced

BEFORE: THE HONORABLE JAMES 5S.

McAULIFFE, Judge

App.112

APPEARANCES:

FOR THE PLAINTIFF:

FRANK W. WILSON, ESQ.

MVA Building

15 Metropolitan Grove Road

Gaithersburg, Maryland 20878

FOR THE DEFENDANTS:

R. EDWIN BROWN, ESQ.

260 East Jefferson Street

Rockville, Maryland 20850

THE COURT: Gentlemen, I adhere to the ruling that

the scope of the project rule requires that these projects be

considered as two separate projects; the road being first in

time and the stormwater maintenance facility be considered

as a second project, coming second in time to the roadway,

with all of the consequences that will flow therefrom. I so

rule.

-56-

oe

THE COURT: All right. The second issue, of course,

is the basic motion to dismiss. I remain of the view, based

upon the evidence that we heard, that this project undertaken

by the State so exceeded the State's authority to condemn for

App.113

drainage required by its road project, and only that required

by its road project, that the power was exceeded to such an

extent that it cannot be said that it was appropriately used or

legally used, and I conclude that the motion to dismiss on the

grounds that it was not used for a purpose of public necessity

within the purview of the State Highway Administration's

authority to condemn -- it may have been -- within the

authority of others, but the Highway Administration may not

lend out its eminent domain powers to be exercised by others

who have eminent domain powers --

This is not a power to be kicked around or to be

traded back and forth. If you have the power, you exercise it.

The State has the power in connection with roads, the State

Highway Administration; this stormwater drainage facility

was a facility to serve much, much more than the roads

themselves and was ultimately built, 1 am convinced, exactly

as it was suggested in the footnote to the memorandum which

appeared in the original record as defendant's number 5.

-58-

ss *¢ @

App.114

APPENDIX D

PERTINENT UNITED STATES

CONSTITUTION ARTICLES

Amendment V. "[N]or shall private property be taken

for public use, without just compensation."

Amendment V. “No person shall ... be deprived of

life, liberty, or property, without due process of law."

Amendment XIV. Section 1. "[NJor shall any State

deprive any person of life, liberty, or property, without

due process of law.”

PERTINENT MARYLAND

CONSTITUTION ARTICLES

Maryland Constitution Article III], § 40. Eminent

Domain. “The General Assembly shall enact no Law

authorizing private property, to be taken for public

use, without just compensation, as agreed upon

between the parties, or awarded by a Jury, being first

paid or tendered to the party ‘entitled to such

compensation."

Maryland Constitution Article Ill, § 40A.

Montgomery County. "The General Assembly shall

enact no law authorizing property to be taken for

public use without just compensation, to be agreed

upon between the parties, or awarded by a jury, being

App.115

first paid or tendered to the party entitled to such

compensation ... ; and where such property is situated

in Montgomery County and in the judgment of and

upon a finding by the County Council of said County

that there is immediate need therefor for right of way

for County roads or streets, the County Council may

provide that such property may be taken immediately

upon payment therefor to the owner or owners thereof,

or into court, such amount as a licensed real estate

broker appointed by the County Council shall estimate

to be the fair market value of such property, provided

that the Council shall secure the payment of any

further sum that may subsequently be awarded by a

jury ..." (Emphasis added.)

) Maryland Constitution Article ITI, § 40B. Quick Take.

"The General Assembly shal! enact no law authorizing

private property to be taken for public use without just

compensation, to be agreed upon between the parties

or awarded by a jury, being first paid or tendered to

the party entitled to such compensation, except that

where such property in the judgment of the State

Roads Commission is needed by the State for

highway purposes, the General Assembly may

provide that such property may be taken immediately

App.116

upon payment therefor to the owner or owners thereof

by said State Roads Commission, or into Court, such

amount as said State Roads Commission shall

estimate to be of the fair value of said property,

provided such legislation also requires the payment of

any further sum that may subsequently be awarded by

a jury." (Emphasis added.)

PERTINENT MARYLAND STATUTES

0 Transportation Article § 8-101. Definitions.

"(a) In general. - In this title the following words

have the meanings indicated...

(f) County Road. - "County road" means any public

highway:

(1) The title to which or the easement for the use of

which, is vested in a public body or governmental

agency; and

(2) That is not a State highway or located in

Baltimore City...

(h) Highway. - "Highway" includes:

(1) Rights-of-way, roadway surfaces, roadway

upgrades, shoulders, median dividers, drainage

facilities and _ structures, related stormwater

management facilities and structures, roadway cuts,

roadway fills, guardrails, bridges, highway grade

EE ———o

App.117

separation structures, railroad grade separations,

tunnels, overpasses, underpasses, interchanges,

entrance plazas, approaches, and other structures

forming an integral part of a street, road, or

highway, including bicycle and walking paths; and

(2) Any other property acquired for the construction,

operation, or use of the highway...

(n) Road. - "Road" means a highway...

(p) State highway. - "State highway" means any

public highway owned by this State...

(r) Street. - "Street" means a highway." (Emphasis

added.)

) Transportation Article. § 8-302. General power to

acquire private property.

"(a) Acquisition by Administration. - The

Administration may acquire for this State, by

condemnation under Title 12 of the Rea! Property

Article or by lease, agreement, gift, grant, purchase, or

otherwise, any private property for any public purpose

that it considers necessary or desirable to perform the

duties imposed by this title or for any other purpose

authorized under this title.

(b) Condemnation by Commission.- On behalf of and

at the request of the Administration, the State Roads

App.118

Commission may exercise the authority vested in it by

Article III, § 40B of the State Constitution and

acquire for this State, by condemnation under Part III

or Part IV of this subtitle, any private property for

any highway purpose." (Emphasis added.)

Transportation Article. § 8-303. Transfers between

State and political subdivision. "(a) Power of

Administration in general. - As provided in this

section, the Administration may acquire any publicly

owned property or jurisdiction over it, for any purpose

authorized by this subtitle.

(b) Transfers by governmental units. - (1)

Notwithstanding any other provision of law, any

political subdivision or agency of State or local

government may transfer to this State, for use by the

Administration in a highway project, any publicly

owned property or jurisdiction over it, as necessary or

desirable for that project.”

Transportation Article. § 8-304. Change of Status of

State Highways and County Roads. "(a) Power to

change status. - The Administration and any political

subdivision may agree to transfer title to, jurisdiction

over, or responsibility for maintenance of: (1) A

county road to this State; or (2) A State highway to

App.119

the political subdivision."

Transportation Article. § 8-313. Acquistion of land to

protect highways. "(a) Purposes of acquisition. - (1)

Any land may be acquired under this subtitle for any

State highway construction purpose." (Emphasis

added.)

Transportation Article. §8-318. Quick Take.

"(a) Available procedures. - If property is to be

condemned under this subtitle for a highway purpose,

the Administration shall request the Commission to

condemn the necessary property under this part.

However, if the Commission considers the procedures

of this part inappropriate, the property may be

condemned by the Commission under Part IV of this

subtitle or by the Administration under Title 12 of the

Real Property Article.

(b) Applicability of general condemnation law.-

Except as provided in this part, condemnation

proceedings under this part shall follow the procedures

set forth in Title 12 of the Real Property Article and

the Maryland Rules."

PTET ALS LPL ROM EDR TDS EES TILT BE LEE SMES PSSA LEED RTI ROREM