Cohen v. Baltimore County
| Decision Date | 22 October 1962 |
| Docket Number | No. 30,30 |
| Citation | 229 Md. 519,185 A.2d 185 |
| Parties | Lee M. COHEN et al. v. BALTIMORE COUNTY, Maryland. |
| Court | Maryland Court of Appeals |
Richard C. Murray, Towson (Smith & Harrison, Towson, on the brief), for appellants.
Walter R. Haile, Asst. County Sol., Towson (Johnson Bowie, County Sol., Towson, on the brief), for appellee.
Before BRUNE, C. J., and HENDERSON, HAMMOND, HORNEY and SYBERT, JJ.
This is an action in equity to enforce the specific performance of an agreement to construct a road through the site of a shopping center. A decree ( the bill) was entered in favor of the respondent, Baltimore County (County), and the complainants, Lee M. Cohen, et al., co-partners, trading as Court Plaza Realty Company (Court Plaza), have appealed. Court Plaza is the owner of a tract of commercially zoned property lying between and binding in part on Liberty Road and Church Lane in Baltimore County on which the shopping center is to be erected. On this appeal, the basic question is whether the agreement by the County to construct what is known as Hendon Road was executed with such formality as is required to bind the County.
The County admits that it negotiated with Court Plaza 1 to acquire a right of way for the construction by the County of a new road through the property mentioned and adjacent property. And although it was denied in the answer, the chancellor found that as a result of the negotiations an oral agreement was made whereby Court Plaza would convey the required right of way to the County without compensation for such severance damages as would ensue as a result of the taking, and the County did not seriously challenge that an agreement had been made.
In furtherance of the agreement, the director of public works in October of 1958 proposed by way of a letter that the County would pave the road and construct curbs and gutters thereon at county expense if Court Plaza would accept the construction of the roadway as compensation for severance damages resulting from the taking. At the same time, the director advised the county executive in writing of the proposal and recommended since the estimated damages exceeded the cost of construction, that the County pay the cost thereof in lieu of damages. Approval of the proposal by the county executive was given by way of an endorsement to that effect on the inter-office communication from the director to the county executive. The County does not deny the authenticity of the correspondence between the director and county executive, but claims that the subsequently executed deed 2 conveying the right of way constitutes the final agreement between the parties.
Court Plaza accepted the officially approved proposal and, in reliance on the agreement, conveyed the right of way in fee, together with the slope easement areas, shown on the plat attached to and incorporated in the deed. After the deed had been executed in June of 1959, Court Plaza proceeded with the planning and preliminary development of the remainder of the tract as a shopping center and designed it as if the road were in existence. And, in applying for building permits, Court Plaza filed proposed subdivision plans showing the road.
In April of 1961, Court Plaza was advised by the bureau of public services that its preliminary plans for the shopping center had been processed and that the bureau had received certain comments from the office of planning and the bureau of engineering concerning the proposed development of the tract. The comments of the bureau of engineering with regard to highways mentions only three roads or streets. As to Church Lane, referred to as an 'existing road which shall ultimately be improved,' it was provided that the developer should be responsible for the cost of such improvements as are made. As to Hendon Road, described as 'a major road in this area,' it was provided that the work of improving it should 'be accomplished by the County at County cost, in accordance with a previous agreement.' The record shows that the proposed road is to be used as a major collector road or street to provide for the movement of traffic throughout the area as well as other parts of the county and into Baltimore City. Lastly, it was noted that Liberty Road, which is a state road, was subject to State Roads Commission requirements.
Court Plaza was further advised that the attached printed form referred to as the public works agreement 'to cover the financial responsibilities indicated by the above comments,' should be properly executed and returned to the bureau for execution by the County. Court Plaza had made no application for assistance to improve any roads or streets within the development, and there is no mention, either in the comments or the public works agreement, of any 'developer' roads or streets. There is, however, a standard provision in the works agreement requiring the developer to assume the full cost of 'street paving, curbs and gutters' within the development and the 'cost of one-half of a standard street section on all existing roads abutting the property.'
In due course the County advertised for and received bids for the construction of Hendon Road. However, in August of 1961, the then county executive refused to allot county funds for the road and construction contracts have never been awarded.
The chancellor denied the relief sought (i) because he was of the opinion that the agreement was not executed with such formality as is required to bind the County; (ii) because the roads engineer had not approved the agreement pursuant to the requirements of Title 28, § 28-1(11) of the County Code (1958); and (iii) because the agreement violated the statutory limitations stipulated in § 28-1(13) concerning the assistance the County may give developers in the construction of private or internal roads within a development.
Neither of the statutory provisions, cited by the chancellor as additional reasons for denying the relief sought, were pleaded as a defense to specific performance and neither appears to have been an issue in the case. The County did not below, nor does it now on appeal, claim that it was beyond the power of the County to acquire real property needed for a public road. The only matters asserted in the lower court by way of defense were to the effect that no one in authority had obligated the County to construct the road at county expense and that the deed was the final binding agreement between the parties, or, in the words expressed by counsel at the trial, the agreement had 'merged' or had been 'abolished' by the execution of the deed. The...
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