Donohoe Const. Co., Inc. v. Montgomery County Council
| Decision Date | 20 December 1977 |
| Docket Number | MARYLAND-NATIONAL,Nos. 76-1850 and 76-1851,s. 76-1850 and 76-1851 |
| Citation | 567 F.2d 603 |
| Parties | DONOHOE CONSTRUCTION COMPANY, INC., Appellee, v. MONTGOMERY COUNTY COUNCIL and Montgomery County, Maryland, Appellants, and The Maryland-National Capital Park and Planning Commission, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, Defendants. DONOHOE CONSTRUCTION COMPANY, INC., Appellee, v. TheCAPITAL PARK AND PLANNING COMMISSION, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, Appellants, and Montgomery County Council and Montgomery County, Maryland, Defendants. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Charles S. Rand, Asst. County Atty., Rockville, Md. (Richard S. McKernon, County Atty., Robert G. Tobin, Jr., Deputy County Atty., Rockville, Md., on brief), for appellants in 76-1850.
Gus B. Bauman, Silver Springs, Md. (Barbara A. Sears, Sanford E. Wool and Durvasula S. Sastri, Silver Springs, Md., on brief), for appellants in 76-1851.
Roy Niedermayer, Washington, D.C. (Warren K. Kaplan, Washington, D.C., on brief), for appellee in 76-1850 and 76-1851.
Before HAYNSWORTH, Chief Judge, and WINTER and BUTZNER, Circuit Judges.
These appeals are from a decision of the district court holding that Montgomery County, Maryland (County) took the private property of Donohoe Construction Company, Inc. (Donohoe) without just compensation in violation of the fifth and fourteenth amendments to the Constitution, and entering judgment against County, Maryland-National Capital Park and Planning Commission, Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission and Montgomery County Council, all of which were defendants in the action instituted in the district court. The district court, finding that certain actions undertaken by defendants with regard to Donohoe's property constituted an implied or de facto taking, ordered County to pay Donohoe the sum of $461,042.14 in exchange for an unencumbered fee simple title to the property. Because we agree with defendants that the facts as found by the district court are not sufficient to support a finding that a taking occurred, we reverse and direct entry of judgment for them.
Since March 1973, Donohoe has been the record owner of a parcel of land, located in the Friendship Heights section of Montgomery County, Maryland. Prior to Donohoe's purchase of this property, the Montgomery County Council and the Maryland-National Capital Park and Planning Commission (Commission) 1 had approved and adopted a Master Plan for the Bethesda-Chevy Chase planning area of which the town of Friendship Heights is a part. In December 1972, before Donohoe's purchase was completed but during its negotiations for the property, the Montgomery County Planning Board (Board) 2 adopted a preliminary Sector Plan for the Central Business District of Friendship Heights as an amendment to the Bethesda-Chevy Chase Master Plan. The preliminary plan recommended that a portion of Friendship Heights, including the parcel subsequently purchased by Donohoe, be downzoned so as to limit commercial development.
At the time of Donohoe's purchase of the Friendship Heights property, the property consisted of two lots, upon which were located single-family residences, and an abandoned portion of a public roadway. Donohoe's intent was to demolish the existing structures and construct in their place a fourteen-story office building. Such a building was permitted by the zoning regulations then in effect but would not be permitted if the property was downzoned in accordance with the Board's preliminary recommendation. On March 19, 1973, Donohoe filed a building permit application with the appropriate county agency. As required by law, copies of the application were forwarded to the Commission, the County Public Works Department and the Washington Suburban Sanitary Commission (WSSC) 3 for review and comment. The Commission promptly informed the County, which in turn informed Donohoe, that Donohoe's application could not be acted upon until it filed with the Commission a preliminary subdivision plan as required by the Montgomery County Code. 4 Donohoe complied with this requirement on April 13, 1973. In May 1973, WSSC advised both the Commission and Donohoe that WSSC would be unable to provide sewer service to Donohoe's proposed office building on account of the sewer moratorium then in effect in Friendship Heights. 5 On August 2, 1973, the Board, acting upon the Commission's recommendation, disapproved Donohoe's subdivision plan. Chief among the reasons given was the unavailability of adequate sewer service. With the disapproval of the subdivision plan, Donohoe was unable to pursue further the permit for construction of the planned office building. 6
In October 1973, following public hearings, the Board adopted a Final Sector Plan for Friendship Heights. Included in this plan was a recommendation that Donohoe's property be acquired by the local taxing district for a community recreation center. In the alternative, the plan recommended that the property be downzoned as originally proposed. This plan, including the recommendation to acquire Donohoe's property, was approved by the Montgomery County Council in May 1974. At the same time, $229,000 was budgeted in the County's Capital Improvements Program (CIP) for the purchase of Donohoe's property in fiscal year 1975.
In the meantime, in April 1974, Donohoe was informed that its building permit application was being rejected pending Council action on the zoning recommendations contained in the Final Sector Plan. 7 In July 1974, Donohoe's property was downzoned, thereby prohibiting construction of the building proposed by Donohoe. 8 Less than four months later, on November 4, 1974, Donohoe filed suit in the United States District Court, alleging that the above-recited actions on the part of the County Council, the Commission and the Board constituted a taking without just compensation in violation of the fifth and fourteenth amendments to the Constitution. 9 The district court, exercising jurisdiction pursuant to 28 U.S.C. § 1331, agreed with the plaintiff and ordered the relief sought. 10
Before we reach the merits of this case, we must address two preliminary points raised by defendants, both of which go to the jurisdiction of the district court to hear this case.
First, defendants contend that the district court lacked federal question jurisdiction under 28 U.S.C. § 1331. Their argument is that, since the facts alleged in appellee's complaint fall short of constituting a taking within the meaning of the fifth and fourteenth amendments, there is no federal question on which to ground jurisdiction. This argument was answered thirty years ago in Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). There the court held that, where a complainant raises allegations which may or may not state federal claim, a district court should take jurisdiction to decide the merits of the controversy so long as the questions raised are not frivolous on their face. Here, Donohoe's complaint raises a substantial question as to the limitations placed on the state condemnation and zoning powers by the fourteenth amendment. Consequently, under the doctrine of Bell v. Hood, the district court acted properly in assuming jurisdiction under 28 U.S.C. § 1331. 11
Second, defendants contend that, even if 28 U.S.C. § 1331 authorizes federal jurisdiction, the doctrine of Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), requires that the district court abstain from exercising that jurisdiction. Fatal to defendants' argument, however, is the fact that there exist in the present case no potentially dispositive questions of state law. See 312 U.S. at 498-500, 61 S.Ct. 643. None of the parties has suggested that any interpretation of those Maryland statutes which purportedly authorized the actions of the County or the Commission would be dispositive of the litigation, nor was the district court asked to find a taking within the meaning of the Maryland state constitution. The only issue raised was one of federal due process. It is obvious that, where no issue of state law exists, the federal constitutional issue cannot be avoided by "a definitive ruling on the state issue . . . ." 312 U.S. at 498, 61 S.Ct. at 644. Hence, the Pullman doctrine is inapposite, 12 and the district court's decision not to abstain was clearly the correct one. See Ballard Fish & Oyster Co. v. Glaser Construction Co., 424 F.2d 473 (4 Cir. 1970).
On the merits of the present controversy, the district court found that:
When the facts of this case are scrutinized, it becomes apparent that only a finding of de facto taking can preserve the guarantees of the Fifth and Fourteenth Amendments. When all the actions of the defendants are viewed together, it is apparent that Donohoe has been denied any reasonable economic use of its property at the expense of a public benefit, the proposed acquisition of the land for a community/recreation center.
In so finding, the district court was particularly troubled by five separate actions on the part of the defendants:
1. The August 1973 denial of Donohoe's subdivision plan.
2. The October 1973 amendment to the Master Plan wherein it was recommended that Donohoe's parcel be either acquired or downzoned.
3. The April 1974 rejection of Donohoe's building permit application.
4. The May 1974 decision to acquire Donohoe's property at a future time together with the budgeting of the necessary funds.
5. The July 1974 zoning amendment downzoning Donohoe's property.
The district court was not prepared to say that any one of the above actions in itself constituted a taking. Indeed, it was of the opinion that, viewed singly, most did not constitute a taking....
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