High Ridge Ass'n, Inc. v. County Com'rs of Carroll County, Md.

• Decision Date: 01 September 1994
• Docket Number: No. 1388,1388
• Parties: HIGH RIDGE ASSOCIATION, INC. v. COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND. ,
• Court: Court of Special Appeals of Maryland

Page 423

105 Md.App. 423

660 A.2d 951

HIGH RIDGE ASSOCIATION, INC. v. COUNTY COMMISSIONERS OF CARROLL COUNTY, MARYLAND.

No. 1388, Sept. Term, 1994.

Court of Special Appeals of Maryland.

June 29, 1995.

David K. Bowersox (Hoffman, Comfort, Galloway & Offutt, on the brief), Westminster, for appellant.

John T. Maguire, III (Hollman, Hughes, Finch and Maguire, Chartered, on the brief), Westminster, Aaron and Ruth Green.

Argued before CATHELL, DAVIS and HOLLANDER, JJ.

CATHELL, Judge.

Appellant, High Ridge Association, Inc., appeals the judgment of the Circuit Court for Carroll County (Burns, J., presiding), which found in favor of appellee, County Commissioners of Carroll County, ¹ on its petition for condemnation of a portion of appellant's real property. Appellant challenges the public nature of the use to which the condemned land will be put and proffers the following questions for our review:

I. Was the Commissioners' decision to condemn an unconstitutional, unlawful grant of a private remedy for the sole benefit and economic advantage of a single property owner, and not for a public purpose or benefit?

II. Was High Ridge Drive, as originally designed and approved, deliberately designed to terminate within the subdivision's property and not to extend into the subdivision's pedestrian open space area to the boundary of Mr. Green's property?

III. Was the Commissioners' decision to condemn unconstitutional due to lack of any necessity to condemn?

High Ridge Drive runs in an easterly direction through High Ridge Estates and terminates fifteen feet from the common boundary of the subdivision and property now owned by one Aaron Green and his wife, Ruth. The property sought to be condemned is a strip of land fifty feet wide extending from High Ridge Drive fifteen feet to the Greens' property. This strip now serves as a pedestrian right of way. Condemnation proceedings were instituted pursuant to the Greens' recent proposal to develop their property with residential lots which, if condemnation were successful, would be situate along the proposed extension of High Ridge Drive that would then run into their property. Notably, several other access points, which terminate at other boundaries of the Greens' property, are available. Extension of any of these other streets would provide the necessary public road access for the Greens' proposed development. The Greens' desire for access by way of High Ridge Drive is seen as having been motivated by financial considerations; the alternative access routes would have been "more expensive and not as economically practical for ... development of [their] property."

The initiation of condemnation proceedings occurred after, and as a result of, the Greens, through counsel, contacting the County Commissioners by letter on January 25, 1991, suggesting that an "apparent error on the record plat [of High Ridge Estates] ... complicat[ed] the plan to extend High Ridge Drive into the Green property," and that the County might consider exercising its power of eminent domain to resolve the "problem."

The Greens submitted a Concept Plan for development of their property on September 30, 1991, which included the lots proposed to be created on the extension into their property of High Ridge Drive over the parcel suggested to be condemned. A Special Report to the Carroll County Planning and Zoning Commission, prepared by Bruce Waldron, recommended acceptance of the concept Plan, conditioned upon the Greens' ability to "gain in-fee access to High Ridge Drive or demonstrate the ability to build a County road across the fifteen-feet-wide Homeowners Association strip to High Ridge Drive." The Report also stated the following with respect to High Ridge Estates:

The approved Preliminary Plan of High Ridge Estates shows, by the absence of a permanent cul-de-sac, that the roads were intended to provide access for future development into adjacent properties. These temporary cul-de-sacs were meant to be removed as the roads were extended. The approved Preliminary Plan of High Ridge shows a separate parcel over the old road and right-of-way that ran parallel to the common property line between Aaron Green and the subdivision.

In accordance with the practice at that time, the existing old right-of-way was placed on a separate parcel to keep it off the proposed lots. During the Final Plans Review of the subdivision, the right-of-way parcel was included with the open space parcel for use as a pedestrian pathway. The open space areas, as well as the fifteen-feet-wide parcel, are now owned by the High Ridge Homeowners Association.

There was other evidence also presented relating to preexisting rights of ways from which inferences could be made that, in fact, no error (as suggested by the Greens) had occurred. There was apparently a law in effect at the time that the High Ridge plat was recorded that prohibited the platting of a subdivision street over a pre-existing recorded right of way. Because a pre-existing right of way was believed to exist, High Ridge was not permitted to extend High Ridge Drive to the property line. That law apparently was later changed. Thus, appellant contends the termination short of the property line could not have been a mistake because, in the first instance, it was required by statute. At the Planning and Zoning Commission's November 19, 1991 meeting, the Commission made the following decision after considering Waldron's Report and arguments made by the Greens' representative:

Decision:

The Commission ... approves the concept plan as presented and as conditionally recommended.... In taking this action, the Commission on review finds, that the road in question as detailed and approved, on the approved preliminary subdivision plan was clearly laid out to extend to and intersect with the adjoining property line of the Aaron Green property; and further that the final plat prepared for record, deviated from the approved plan and was therefore in error in that it did not reflect what had been intended and approved (the eventual extension of the street into adjoining property).

The County Commissioners met on February, 27, 1992, and voted "to condemn such property as necessary to implement the Planning and Zoning Commission recommendation with respect to the construction of a street to serve the Aaron Green Subdivision which will intersect with an existing culdesac in High Ridge Subdivision." (Emphasis added.) The Commissioners then quoted the Planning and Zoning Commission's recommendation and decision in its entirety. Appellant notes that the County Commissioners addressed only the alleged error to which the Planning and Zoning Commission referred: "It is completely silent as to any statement of public purpose served by condemning [appellant]'s property."

On July 27, 1992, the County Commissioners filed a Complaint for condemnation in respect to appellant's land. On November 17, 1992, the trial court granted appellant's Motion for Separate Trial of Issues of Law. This allowed for the bifurcation of the Commissioners' authority to condemn from the remaining issues. Trial was held on December 2, 1992. On December 16, 1993, the trial court found in favor of the County on its right to exercise eminent domain against the subject property. A hearing regarding appellant's damages was then scheduled. On June 28, 1994, a stipulation of fair market value by the parties was presented to the trial court and judgment in accord therewith was entered. ² Appellant filed this timely appeal therefrom. Ultimately, the County Commissioners chose not to participate in the appeal. The Greens were permitted to intervene.

I.

The Constitutionality of the Condemnation

We answer appellant's first question in the affirmative and shall reverse the judgment of the Circuit Court for Carroll County. In light of this decision, we do not address the remaining issues or propriety vel non of the County Commissioners' Election to Abandon and the Greens' Motion to Intervene.

Maryland Rule U6 states that

A proceeding for condemnation shall be commenced by filing a petition complying with Rules 2-303 through 2-305 as to form and contents and containing:

....

(4) A statement of the purposes for which the property is sought to be condemned.

"The reason for this is plain. Without such a statement courts and litigants would not be able to determine whether a condemnation was proposed for a public purpose." Prince George's County v. Beard, 266 Md. 83, 96, 291 A.2d 636 (1972). In the case sub judice, the County provided the following averment in its Complaint:

4. That the property ... is needed for the proposed future public road....

While this bald assertion may appear to satisfy technically the requirements of Rule U6, it does not provide a basis upon which meaningful judicial review of the constitutionality of the condemnation proceeding may be conducted. See Beard, 266 Md. at 95-96, 291 A.2d 636 ("A legislative body can not make a particular use either public or private merely by so declaring it, for if it could do so the constitutional restraint [imposed by Maryland Constitution, Art. III § 40] would be utterly nugatory." (citation omitted)). A mere recital that a proposed property is needed for a particular public use is insufficient when dealing with the deprivation of private property rights. Indeed, the County provides no explanation other than the aforementioned allegation to substantiate its conclusory and self-serving declaration of the need for a "proposed future public road." One is left to wonder whether the use is buttressed by increased traffic flow, changing traffic patterns, and the like. "For us to hold on such a record that a public use has been established would be to hold, in essence, that a public body may condemn private property for any purpose which suits its convenience...." Id. at 96, 291 A.2d 636. Despite having a "full opportunity to spell out the use it propose[d...