Greenberg v. State

• Decision Date: 01 September 1985
• Docket Number: No. 381,381
• Citation: 66 Md.App. 24,502 A.2d 522
• Parties: Erwin L. GREENBERG, et al. v. The STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 24

66 Md.App. 24

502 A.2d 522

Erwin L. GREENBERG, et al. v. The STATE of Maryland.

No. 381, Sept. Term, 1985.

Court of Special Appeals of Maryland.

Jan. 10, 1986.

Warren K. Rich (Richard E. Rich, Lester O. Brown, and Niles, Barton & Wilmer on brief), Annapolis, for appellants.

Andrew H. Baida, Sp. Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Diana G. Motz, Peter E. Keith, Janis Ashman and Peter W. Taliaferro, Asst. Attys. Gen. on brief), Baltimore, for appellee.

Argued Before WILNER, WEANT, and KARWACKI, JJ.

KARWACKI, Judge.

This appeal is from a summary declaratory judgment entered by the Circuit Court for Anne Arundel County in favor of the State of Maryland and the State Aviation Administration of the Department of Transportation (hereinafter "the State" or "the appellees"). Erwin L. Greenberg, Alvin M. Lapidus, Lois Lapidus, Tevis Margolis, and Sylvia Margolis (hereinafter "the landowners" or "the appellants") filed this action against the State seeking declaratory and equitable relief. They alleged that their undeveloped property, located within the Baltimore-Washington International Airport (BWI) noise zone, had been "taken" by the State for public use without just compensation as a result of the application of the State airport noise zone regulations and the refusal by the Board of Airport Zoning Appeals to grant a variance permitting the use of the property for residential purposes. The appellants requested the court to declare that the "taking" of their property without just compensation is unconstitutional under the Fifth and Fourteenth Amendments of the United States Constitution and under Article III, Section 40 of the Maryland Constitution.

The 14.496 acre parcel of land which is the subject of this dispute is located near Crain Highway in Glen Burnie, Anne Arundel County, approximately one mile south of the North Arundel General Hospital and southeast of BWI. It lies within a 65-70 Ldn ¹ noise zone. Maryland Code (1977, 1985 Supp.), § 5-801 through 5-823 of the Transportation Article ² authorize the State Aviation Administrator to adopt noise zones in areas surrounding airports licensed by the Administration and to promulgage regulations governing land use therein. The regulation applicable to properties lying within a 65-70 Ldn noise zone, COMAR § 11.03.03.03, stipulates that residential development is prohibited. The same regulation, however, permits use of such property for hotels, motels, sports arenas, outdoor spectator sports, playgrounds, neighborhood parks, golf courses, riding stables, water recreation, cemeteries, office buildings (personal, business, and professional), commercial (retail or wholesale, movie theatres, restaurants, industry), manufacturing utilities, manufacturing, communications, livestock farming, agricultural purposes, mining, fishing, and aviation-related purposes.

In addition to the State noise zone regulations, the landowners' property is also subject to use restrictions imposed by the Anne Arundel County zoning ordinance. Anne Arundel County Code § 13-309. Under that zoning, the property is located in an R-22 Medium Density Multi-Family District, which permits use for apartments, apartment hotels, golf courses, libraries, museums and similar institutions of a noncommercial nature, private educational institutions, professional offices, certain restaurants, taverns and lounges, rooming houses, and certain swimming pools. Thus, as affected by both the State noise zone regulations and the Anne Arundel County zoning, the landowners' property is restricted to use for apartment hotels, golf courses, professional offices, restaurants, taverns and lounges, rooming houses, and swimming pools.

In October of 1982, the appellants entered a contract to sell the subject property to Harkins Associates, Inc. (hereinafter "Harkins") contingent upon Harkins's ability to build apartments thereon. Harkins's October 19, 1982 application for a building permit required by § 5-821 was denied by the State Aviation Administration because the property was located in a 65-70 Ldn zone. Thereafter, Harkins applied to the Board of Airport Zoning Appeals, established under § 5-506, for a variance from the noise zone regulations pursuant to § 5-822 which was denied on January 14, 1983. The Circuit Court for Anne Arundel County affirmed the Board's decision on August 31, 1983, finding that reasonable uses were available for the property under the regulation applicable to its noise zone. ³

On June 20, 1984, the appellants filed a Petition for Declaratory Judgment and Ancillary Equitable Relief followed by two amended petitions. The appellants asserted that the Airport Noise Program effectuated a "taking" of their property for public use without just compensation in violation of the Fifth Amendment of the United States Constitution (as applied to the states via the Fourteenth Amendment) and Article III, §§ 40-40D of the Maryland Constitution. Following a hearing on December 17, 1984, the State's motion to dismiss based on res judicata and failure to exhaust administrative remedies was denied.

A third amended petition was filed by the appellants containing two counts:

(1) alleging that the Airport Noise Control Program "took" their property for public use without just compensation in violation of the Fifth Amendment of the United States Constitution and Article III, §§ 40-40D of the Constitution of Maryland; and

(2) charging that since the airport noise zone regulations diminished the value of the property, and since the program was enacted by the State pursuant to and in the exercise of its eminent domain powers, the State was required to compensate the landowners for the "taking."

Again, the State moved to dismiss or, alternatively, to be granted summary declaratory judgment. Following a hearing on February 7, 1985, Judge Lerner granted the Summary Declaratory Judgment from which this appeal was taken.

The appellants raise three issues for our determination. They argue that:

(1) the circuit court's action granting summary judgment in favor of the State based upon the pleadings was improper;

(2) the appellants were inappropriately precluded from showing the relationship between the airport noise zone regulations and the governmental enterprise; and

(3) the airport noise zone regulations as applied have resulted in an unconstitutional taking of the appellant's property for public use without just compensation.

In addition to taking issue with these arguments, the State urges that the appellant's action was barred by res judicata. It will not be necessary to resolve this assertion because, as a matter of law, we find from the pleadings that there was not an unconstitutional taking.

1.

As a preliminary matter, we are satisfied that the court's disposition of this case upon a motion to dismiss was appropriate under Rule 2-322, dealing with motions to dismiss for failure to state a claim. Where the contentions of parties to a declaratory judgment proceeding reveal no dispute as to any material fact rendering the issue drawn by the pleadings one of law, summary judgment is appropriate. Carroll County Educational Association v. Board of Education, 294 Md. 144, 448 A.2d 345 (1982); Baltimore Import Car Service and Storage, Inc. v. Port Authority, 258 Md. 335, 265 A.2d 866 (1970); Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968). In such a case the court may treat the motion to dismiss as one for summary judgment pursuant to Rule 2-501. In the case sub judice the issue drawn by the pleadings, when read in a light most favorable to the appellants, raised no issue of fact material to the resolution of the dispositive legal issue. The appellants alleged that the combined effect of the State's airport noise zone regulations and the Anne Arundel County zoning ordinance was to "severely diminish" the value of their property. Based upon that premise, they argued that their property has been unconstitutionally taken without compensation even though they have not been deprived of all beneficial use of their land. In the trial court and here, the State conceded the factual premise for the appellants' assertion.

Persuasive on this question are decisions of the U.S. District Court for Maryland dismissing under Rule 12(b)(6) of the Federal Rules of Civil Procedure claims of unconstitutional "taking" of property. Niemeyer and Richards, Maryland Rules Commentary 146-151 (1984). One such case involved a developer who sought to develop a residential subdivision on his property in Queen Anne's County. Kent Island Joint Venture v. Smith, 452 F.Supp. 455 (D.Md.1978). The developer asserted that his federal constitutional rights had been violated because state and local officials interfered with his plans. He claimed that governmental actions with regard to a subdivision moratorium, percolation standards, and water and sewage requirements had led to an unconstitutional "taking" of his property because he was unable to complete his residential subdivision. The court dismissed the "taking" claims pursuant to a 12(b)(6) motion. It held:

Although governmental interference by regulation of the use of private property can constitute a de facto or constructive taking, there is no taking in the constitutional sense unless the interference is so substantial as to render the property worthless or useless. It is not enough that the regulation deprives the property owner of the most profitable use of the property, or that the regulation causes a severe decline in the property's value. In Hadacheck v. Sebastian, 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348 (1915), a decline in value from $800,000 to $60,000 was found by the Supreme Court to be insufficient to constitute a taking. Before a court can conclude that there has been an unconstitutional taking of property the government regulation must deprive the landowner of all reasonable uses of his land. Plaintiff has done no more than allege...