Arnold v. Prince George's County

• Decision Date: 09 November 1973
• Docket Number: No. 44,44
• Citation: 311 A.2d 223,270 Md. 285
• Parties: Jessie C. ARNOLD et ux. v. PRINCE GEORGE'S COUNTY, Marylnad, et al.
• Court: Maryland Court of Appeals

Page 285

270 Md. 285

311 A.2d 223

Jessie C. ARNOLD et ux. v. PRINCE GEORGE'S COUNTY, Marylnad, et al.

No. 44.

Court of Appeals of Maryland.

Nov. 9, 1973.

Carl Harrison Lehmann, Upper Marlboro (Charles Duvall Smith, Upper Marlboro, on the brief), for appellants.

Michael O. Connaughton, Assoc. County Atty. (Joseph S. Casula, County, Atty., Upper Marlboro, on the brief), for Prince George's County, part of appellees.

Robert H. Levan, Gen. Counsel, Silver Spring (David D. Freishtat, Silver Spring, on the brief), for Maryland-National Capital Park and Planning Commission, other appellee.

Argued before MURPHY, C. J., and BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and LEVINE, JJ.

BARNES, Judge.

The appellants, Jesse C. Arnold and Carol S. Arnold, his wife, who were plaintiffs below, own as tenants by the entireties Lot No. 15 in the Oaklawn Subdivision in Prince George's County. This lot contains 9.1 acres of land, has a frontage of about 335 feet on Allentown Road with a depth of approximately 1,300 feet, and is improved by a residence known as 8400 Allentown Road, S.E., Oxon Hill, Maryland (the subject property). They filed an action at law, a claim for injunction, and a request for a jury trial, on July 29, 1971, in the Circuit Court for Prince George's County against the appellees, Prince George's County (the County) and Maryland-National Capital Park and Planning Commission (the Commission).

The declaration consisted of four counts. Count I, after describing the parties and the subject property, as erred that the Commission in 1959 designated upon a master plan a proposed road, designated as Allentown Road, relocated in such a fashion as to roughly bisect the rectangular shaped subject property so as to sever it into two irregularly shaped parcels; that the County has since developed road plans 'utterly inconsistent with and repugnant' to the Commission's designated 'Allentown Road relocated'; that neither the County nor the Commission has done anything toward the consummation of the plans for the relocated Allentown Road; that all of this constitutes a cloud on the subject property and prevents the Arnolds from conveying a merchantable title; that the purpose of designating the relocated road on the Master Plan was to depress values and to delay and frustrate development and rezoning of the subject property to its highest and best use; that the delay of 12 years amounts to negligence on the part of both the Commission and the County; and, that the subject property has been devalued as a result of this negligence. The Arnolds claimed damages in the amount of $50,000.

Count II incorporated by reference all of the facts averred in Court I and then stated that the admitted purpose of the County in concert with the Commission was to 'freeze' and depress property values and to prevent the economic development of the subject property, which purpose has succeeded and amounts to a taking of the subject property by the County acting in concert with the Commission without due process of law contrary to the Fifth Amendment of the Federal Constitution made applicable to the States by the Fourteenth Amendment of that Constitution and to Article 19 of the Declaration of Rights and Article III, Section 40 of the Maryland Constitution as well as Section 201 of the County Charter. The claim for the alleged devaluation was $50,000.

Count III incorporated by reference all of the facts averred in Counts I and II and averred that the actions of the County and the Commission constitute an 'unwarrantable interference' with the subject property and 'a gross and willful abuse of the power of eminent domain.' $50,000 damages were claimed.

In Count IV the Arnolds incorporated prior allegations and prayed for a mandatory injunction requiring the County and the Commission 'to forthwith publicly renounce their present intention to take any part of the Plaintiffs' lands for public use.'

The Commission, on September 17, 1971, filed a motion raising preliminary objections, pursuant to Maryland Rule 323 b, asserting that it is a public corporation created by the General Assembly of Maryland to administer planning and zoning powers within the Maryland-Washington Regional District; and, in the course of administering the Regional District Act in relation to the matters averred in the declaration, it was discharging its governmental function mandated by that Act and, therefore, as a public corporation, was immune from any claim for damages or for equitable relief arising out of that governmental function. The Commission also stated that it does not exercise any power of zoning or rezoning.

On September 21, 1971, the County also filed a motion raising preliminary objections alleging that as a municipal corporation of the State of Maryland it has governmental immunity against liability in an action which is 'for an alleged tort committed in the exercise of a governmental function.'

The circuit court (McCullough, J.) on January 21, 1972, after hearing argument and considering memoranda of counsel, filed a written opinion and an order of court denying the County's motion raising a preliminary objection, but granting that of the Commission. The court was of the opinion that the Commission was in an analogous legal position to that of the Washington Suburban Sanitary Commission so far as beng a municipal corporation was concerned; that our opinion in Neuenschwander v. Washington Suburban Sanitary Commission, 187 Md. 67, 48 A.2d 593 (1946) was controlling on this point; that the Commission was acting in a governmental capacity in promulgating the Master Plan, relying on our decision in Fowler v. Board of County Commissioners of Prince George's County 230 Md. 504, 187 A.2d 856 (1963); and, that the Commission's action, being governmental in nature, rendered it immune from suit, relying upon our decision in Irvine v. Montgomery County, 239 Md. 113, 210 A.2d 359 (1965).

Thereafter, on April 17, 1972, the County filed the general issue plea in tort and a special plea of limitations, i. e., that the cause of action did not accrue within three years of the filing of the action.

The case came on for trial on January 10, 1973, before Judge Taylor and a jury. The Arnolds produced evidence which established the location, size and their ownership of the subject property, as well as that the location of their residence is near the frontage on Allentown Road, and that the subject property is ideally located for single-family development in harmony with the surrounding properties. Mr. Arnold testified that in 1964 the Arnolds attempted to sell the subject property exclusive of the improvements and homesite. The prospective purchaser apparently refused to consummate the sale when he discovered that 'Allentown Road relocated' (a dual highway with a 150-foot right-of-way to be built by the State Highway Authority) on the Master Plan promulgated by the Commission for the Henson Creek Watershed in 1963 would run through the subject property. The Arnolds later sought to mortgage the subject property and to sell it, but to no avail because of the designation of 'Allentown Road relocated' on the Master Plan.

Mr. Arnold also stated that he had never made application for a building permit for the building of single-family residences on the subject property and had never filed a subdivision plat. He was permitted to state that the reason he had not filed for a building permit under § 12.6 of the Zoning Ordinance for the Regional District in Prince George's County (Vol. 1 of the Code of Public Local Laws of Prince George's County, Appendix B, § 12.6, at 360) was:

'I have personal knowledge where others who are involved in this similar situation have attempted to subdivide and that has been rejected, disapproved by the Park & Planning Commission, and I am not in a financial position where I feel that I can invest that sort of money in a venture that I know will not be approved before I attempt it.'

George C. Martin, Jr., Chief of the Bureau of Engineering of the County's Department of Public Works was called as an adverse witness by the Arnolds. He testified that the Commission's Master Plan had not been adopted by the County and that, although the county officials sought to follow the Master Plan 'as near as reasonably possible,' the County might decide to change the alignment or grade of the road if this would result in more economical construction or do a smaller amount of property damage. Thus, he concluded that the County does not adhere to the Master Plan 'one hundred per cent.' He further testified that 'Allentown Road relocated' was not in the County's program at the time of trial and he would 'not anticipate it being put in the program within the foreseeable future. The program is six years.' The Commission published a master plan for highways in 1969 which also indicated the relocation of Allentown Road, but the County did not approve of this plan nor is the County bound by it.

Richard N. Pierce, a real estate appraiser whose qualifications were not challenged, testified that in his opinion the subject property had been devalued by $32,100 as a result of the designation of 'Allentown Road relocated' on the Commission's Master Plans, the damage principally accruing to the five acres to the rear of the subject property.

Judge Taylor, at the end of the Plaintiffs' case, granted the County's motion for a directed verdict, being of the opinion that the proof indicated that the County had never adopted the Master Plans in question or participated in their preparation or contributed in any way to any damage to the Arnolds. Final judgment for the County for costs was duly entered on January 17, 1973.

The Arnolds perfected timely appeals to this Court from the order of January 21, 1972, and from the judgment of January 17, 1973. They contend that (1) the inclusion by the Commission of part of the subject property in the 1963 Master Plan and in...