Congressional School of Aeronautics, Inc. v. State Roads Commission

• Decision Date: 20 November 1958
• Docket Number: No. 20,20
• Parties: CONGRESSIONAL SCHOOL OF AERONAUTICS, Inc., et al. v. STATE ROADS COMMISSION.
• Court: Maryland Court of Appeals

Page 236

218 Md. 236

146 A.2d 558

CONGRESSIONAL SCHOOL OF AERONAUTICS, Inc., et al. v. STATE ROADS COMMISSION.

No. 20.

Court of Appeals of Maryland.

Nov. 20, 1958.

Arthur G. Lambert, Rockville (Edward S. Northrop and Walter S. Furlow, Jr., Washington, D. C., on the brief), for appellants.

Alfred H. Carter and Rourke J. Sheehan, Rockville, on the brief for Montgomery County, amicus curiae.

Joseph D. Buscher, Sp. Asst. Atty. Gen. (C. Ferdinand Sybert, Atty. Gen., and William B. Wheeler, Sp. Atty., Silver Spring, on the brief), for appellee.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

BRUNE, Chief Judge.

A property owner, Congressional School of Aeronautics, Inc., (the School) appeals from the award made in condemnation proceedings instituted by the State Roads Commission (the Commission) in the Circuit Court for Montgomery County. The purpose of the proceedings was to acquire land for the widening of a highway, Route No. 240, in the City of Rockville. The original plats filed on July 13, 1956, showed a proposed taking of 64,722 square feet of the School's land. At the trial the Commission filed amended plats increasing the area to be taken to 89,343 square feet.

After the filing of the original plats negotiations between the Commission and the School for the purchase and sale of the land were unsuccessful, and the matter was referred to the Board of Property Review of Montgomery County. The Board determined the fair market value of the property to be $1.25 a square foot, or $80,902.50 for 64,722 square feet. This same rate, if applied to 89,343 square feet, would have produced a valuation of $111,688.75. The Commission appealed from the Board's findings and award and instituted condemnation proceedings in the Circuit Court, pursuant to Code (1957), Art. 89B, Sec. 18. The trial resulted in a judgment in favor of the School, based upon the jury's verdict, in the amount of $49,000, with interest from the date of the verdict which was January 10, 1958. This valuation works out at approximately 55cents a square foot.

All of the land to be taken was zoned as residential. This classification had been retained for a strip 100 feet wide measured from the center line of the existing road. Next to this strip was another strip 200 feet wide which was zoned as commercial, and beyond that the balance of the School's property was zoned as light industrial. One of the Commission's witnesses testified that the strip zoned as residential 'was reserved for road widening,' and another witness for the Commission gave similar, but less positive, testimony as to the reason for the reservation.

The Commission's experts valued the land in question at $1.08 to $1.10 per square foot, if zoned commercially. Two of them reduced their valuations by 50% because of the residential zoning. The other, Mr. Dieudonne, who also took into consideration the prospect that the property might soon be taken for highway use, valued the land at approximately 40% of the $1.10 figure which he placed on it if zoned as commercial. Their respective valuations were 55cents, 54cents, and about 45cents per square foot.

The School's real estate experts valued the land at prices ranging from $1.25 to $1.50 per square foot. One made no distinction between property zoned commercially and property zoned residentially. He did this partly on the basis of comparable sales involving tracts zoned partly as residential and partly as commercial and in part because he believed that special permits could be obtained to allow the property zoned as residential to be used for parking purposes in conjunction with adjacent land zoned as commercial. (Somewhat similar testimony with regard to obtaining special permits was also given by one or more other witnesses.) Another of the School's experts discounted the value of the property from $1.50 per square foot for commercially zoned property to $1.42 per square foot for property zoned as residential. The School's third expert does not appear to have made any differentiation between the land zoned as residential and that zoned as commercial. He arrived at a valuation of $1.25 per square foot.

The School sought to offer evidence of the valuation fixed by the Board of Property Review, but this evidence was excluded. The Commission sought to introduce evidence of an attempt by the School to obtain a reduction in the amount of its property assessment, but this, too, was excluded.

The questions which we are asked to determine are six in number. First, was the zoning of the strip in question as residential invalid as amounting to a taking of property without payment of just compensation? Second, if so, was the zoning of that property open to attack in this proceeding? Third, should the testimony, as to value, of one of the Commission's witnesses have been stricken because he took into account the limited period for which the property might be available for use on account of the prospective taking for the purpose of widening the highway? Fourth, was the award of the Board of Property Review properly excluded from evidence? Fifth, should the jury's verdict have been set aside as inadequate and a new trial granted? Sixth, was evidence of the School's effort to have its property assessment reduced properly excluded?

Section 40 of Article III of the Maryland Constitution forbids the enactment of any law authorizing private property to be taken for public use without just compensation, and Sections 40A and 40B carry like prohibitions, coupled with provisions permitting takings to be effected in some circumstances and under certain safeguards before the amount of compensation is finally determined. There seems to be general agreement among the authorities which have considered the question that zoning cannot be used as a substitute for eminent domain proceedings so as to defeat the constitutional requirement for the payment of just compensation in the case of a taking of private property for public use by depressing values and so reducing the amount of damages to be paid. See 1 Metzenbaum, Zoning (2nd Ed.), pp. 74-79; 1 Orgel, Valuation under Eminent Domain (2nd Ed.), § 1, p. 10; 1 Yokley, Zoning (2nd Ed.), § 163; Robyns v. City of Dearborn, 341 Mich. 495, 67 N.W.2d 718; Grand Trunk Western R. Co. v. City of Detroit, 326 Mich. 387, 40 N.W.2d 195; State ex rel. Tingley v. Gurda, 209 Wis. 63, 243 N.W. 317; Henle v. City of Euclid, 97 Ohio App. 258, 125 N.E.2d 355, appeal dismissed 162 Ohio St. 280, 122 N.E.2d 792. Cf. Scholl v. Borough of Yeadon, 148 Pa. Super. 601, 26 A.2d 135 (ordinance requiring set-backs, where the purpose was to effect a street widening more cheaply). See also In re Gibson, 28 Ont.L.R. 20, 11 D.L.R. 529 (1913), in which a city by-law classified certain property as residential and imposed a set-back restriction. The court there said that if the sole purpose of these restrictions was to prevent any building on the property pending its condemnation for use as a street, then the by-law should be treated as a part of the expropriation proceeding. The court went on to say that there were certain difficulties in so treating the restrictive by-law, but did not elaborate as to what they were.

The School relies as to this matter very heavily upon Moale v. Mayor, etc., of Baltimore, 5 Md. 314, decided in 1854. That was, of course, long before zoning came into existence. One of the principal questions involved in the Moale case was the validity of a proviso contained in Ch. 148 of the Acts of 1817 which undertook to deny damages upon condemnation for any improvement built in the bed of any projected street shown on a certain plat of the City of Baltimore, unless such improvement had been built before the laying out or locating of such street. When, and indeed whether, the streets shown on the plat would be opened was left entirely to the discretion of the municipality. This proviso was held to deny to the proprietor the use of his land and to amount to confiscation in violation of the constitutional provision requiring the payment of just compensation for private property taken for public use.

It has been held by this court that a zoning ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes beyond permissible regulation and must be regarded as a taking of property without compensation. City of Baltimore v. Cohn, 204 Md. 523, 530, 105 A.2d 482; Northwest Merchants Terminal, Inc. v. O'Rourke, 191 Md. 171, 60 A.2d 743; Hoffman v. Mayor and City Council of Baltimore, 197 Md. 294, 79 A.2d 367. See also Nectow v. City of Cambridge, 277 U.S. 183, 48 S.Ct. 447, 72 L.Ed. 842; Arverne Bay Construction Co. v. Thatcher, 278 N.Y. 222, 15 N.E.2d 587, 117 A.L.R. 1110. Cf. Walker v. Board of County Com'rs of Talbot County, 208 Md. 72, 116 A.2d 393, certiorari denied 350 U.S. 902, 76 S.Ct. 180, 100 L.Ed. 792.

This court has not previously been called upon to decide the question here raised as to the validity of a zoning classification which is claimed to have been made or retained in order to hold down the cost of the subsequent acquisition of a tract through condemnation proceedings for highway use or other public purposes. In the instant case we think that the question is not so presented as to require its determination.

The Commission asserts that the action of Montgomery County in retaining the hundred-foot strip of the School's property in a residential classification was proper. It also asserts that the School is not entitled to challenge that classification in this proceeding. Montgomery County, as amicus curiae, takes the same position on both of these questions, and states that it has no interest in the other issues.

We understand that the residential strip reservation was made by Montgomery County several years prior to the taking here involved, and that this occurred before the School's property was annexed to the City of...