Makowski v. Mayor

• Decision Date: 24 June 2014
• Docket Number: No. 81,Sept. Term, 2013.,81
• Citation: 94 A.3d 91,439 Md. 169
• Parties: Edward J. MAKOWSKI v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

439 Md. 169

94 A.3d 91

Edward J. MAKOWSKI

v.MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 81, Sept. Term, 2013.

Court of Appeals of Maryland.

June 24, 2014.

Edward J. Makowski (Baltimore, MD), on brief, for appellant.

Andrew G. Bailey, Special Chief Solicitor and Elva E. Tillman, Principal Counsel (George A. Nilson, City Solicitor, Baltimore, MD), on brief, for appellee.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and JOHN F. McAULIFFE (Retired, Specially Assigned), JJ.

BATTAGLIA, J.

This case involves a “quick-take” condemnation ¹ of a property located at 900–902 N. Chester Street, comprised of a building that had formerly housed a church and contained various offices. The Appellant, Edward Makowski, raises ten issues for our review,² some of which are not properly before us, and the rest of which can be addressed as a single question:

Did the Circuit Court for Baltimore City err in granting the City's “ Petition for Immediate Possession and Title” to 900–902 N. Chester Street?

We shall answer no, affirm, and explain.

We derive the following facts from the memorandum opinion issued by Judge Audrey J.S. Carrion of the Circuit Court for Baltimore City: beginning in the 1950s, Baltimore City, and particularly, the East Baltimore neighborhood, began losing manufacturing jobs. The City continued to hemorrhage jobs through the 1990s, causing significant urban decay marked by high crime, high unemployment, population loss, and a general deterioration in the Middle East neighborhood.³ Consequently, property values were in steep decline and the neighborhood became a proverbial ghost town. In an early attempt to combat these problems, the City attempted “piecemeal” revitalization efforts, involving the rehabilitation of individual buildings one by one. The piecemeal efforts, however,had proven to be futile, ⁴ and the continued struggle with urban decay was readily apparent; Judge Carrion described the neighborhood as depicted in various photographs that had been admitted into evidence as a “scene more akin to the deserted, urban setting of a post-disaster film than a thriving, livable community.”

The City, then, turned to more comprehensive redevelopment and revitalization efforts, including a “non-profit partnership between government, philanthropists, institutions, and the community” ⁵ to undertake a massive revitalization of property in the East Baltimore community, called the Eastern Baltimore Development Initiative (“EBDI”). EBDI was intended to “address, for the first time, on a comprehensive basis the blight and disinvestment in the neighborhood” through the redevelopment of an area encompassing 88 acres in proximity to the Johns Hopkins University Medical Campus ⁶; specifically, it would involve the construction of “biotechnology, research, and life sciences buildings, a new community school ... senior housing ..., mixed income residential homes and rental units, commercial and retail property, green/open spaces, a new park, and fresh food stores.” To acquire the properties necessary for the EBDI project, the City was authorized, pursuant to the Baltimore City Ordinance No. 11–453 entitled the “Middle East Urban Renewal Plan”, to acquire, via voluntary conveyance or condemnation, properties in the project area.⁷

Mr. Makowski's property, 900–902 N. Chester Street (“the Property”), located on Block 1587 ⁸ at the intersection of Chester Street and Ashland Avenue, lies within the heart of EBDI's planned development.⁹ The Property is located within the footprint of a planned biotechnology and life sciences facility in the EBDI project, which will “ ‘house laboratories and offices, ... employ hundreds of scientists and support personnel, and ... provide a range of public health services” and will be developed by the Forest City Science and Technology Group.¹⁰ Due east of the Property, or directly across the street, is a site where EBDI is currently constructing a new school.¹¹

The City attempted initially to acquire the Property in April of 2011, when it sent Mr. Makowski a “Notice of Interest to Acquire.” Approximately nine months later, the City provided Mr. Makowski with an “Offer of Just Compensation.” After receiving the City's offer, Mr. Makowski's then-tenant, The Answer Inc., moved out of the building; to compensate Mr. Makowski for any loss he suffered as a result of the lost rent, EBDI and the City offered to give Mr. Makowski $2,000 monthly, in exchange for which Mr. Makowski would provide the City a “Right–of–Entry”, permitting the City's agents to enter the property for purposes of boarding up the building in preparation for demolition.¹² Mr. Makowski accepted the offer and executed a rental agreement and a Right–of–Entry agreement, both of which contemplated that the City would ultimately acquire the Property in terms such as that contained in the rental agreement that stated:

EBDI offers to fairly compensate you for the loss of rental income that you will experience for 900–902 N. Chester Street. This will be accomplished by paying The Answer Inc.'s rent obligation of $2,000.00 per month to you beginning April 1, 2012 and continue until the City's Condemnation Action with you is resolved.

(emphasis in original). The Right–of–Entry agreement, likewise, stated:

WHEREAS, It is the City's Intention to acquire title to the Property at the earliest possible time as part of the Urban Renewal Plan provided for under Ordinance No. 1202.

At the time the Circuit Court issued its decision, Mr. Makowski continued to be compensated at a rate of $2,000 per month.

While the rental agreement was in force and after the City was “unable to negotiate with and/or agree with” Mr. Makowski “upon a price to be paid for” the Property, the City, in April of 2012, filed a Petition for Condemnation in the Circuit Court pursuant to Baltimore City Ordinance Nos. 1202 and 11–453, which stated in pertinent part:

2. It is necessary for the Petitioner to acquire the Fee Simple interest in and to the property known as 900–902 N. CHESTER STREET in Baltimore City, State of Maryland (hereinafter called the “property”), Ward 07, Section 03, Block 1587, Lot 081, and more particularly described and attached hereto in Schedule A, together with improvementsthereupon, and all the rights, ways, waters, easements, privileges, advantages and appurtenances thereto belonging or in anywise appertaining. The two properties 900 N. Chester Street and 902 N. Chester Street, having been consolidated on the tax sale records are now known on the City tax rolls as the single unit, 900–902 N. Chester Street.

3. This property will be used for redevelopment purposes; namely it is one of the properties in the East Baltimore Development Initiative, Phase II.

Mr. Makowski challenged the City's authority to condemn the property, in his response to the Petition, contending, inter alia, that the City had failed to demonstrate why the acquisition of the Property was necessary, because, he asserted, the City failed to allege what it intended to do with the Property. Mr. Makowski also later filed a Motion to Dismiss Petition for Condemnation, stating in its entirety:

The Petition as filed by Mayor and City Council fails to allege facts sufficient to support the Petition.

The Petition fails to state sufficient specific facts to support it.

That as filed the Petition does not satisfy the requirements of the U.S. Constitution and Amendments thereto. [sic] to justify the taking of private property.

After holding a hearing on the motion, the Circuit Court denied the Motion to Dismiss Petition for Condemnation; the condemnation case was then scheduled for trial.

Prior to trial, Mr. Makowski became the sole owner on Block 1587 who had not yet conveyed or agreed to convey his property on Block 1587 to the City. The City filed a “Petition for Immediate Possession and Title”, pursuant to Section 21–16 of the Code of Public Local Laws of Baltimore City (2012) ¹³ (“the quick-take action”), which alleged that immediate possession of the subject property was necessary: ¹⁴

1. That previously hereto your Petitioner filed a Petition for Condemnation as against the fee simple interests in that lot of ground and premises known as 900–902 N. Chester Street in Baltimore, Maryland.

2. That it is necessary for Petitioner to acquire immediate possession and title to the said property interest as appears from the affidavit of William N. Burgee, Director of the Office of Property Acquisition and Relocation, Department of Housing and Community Development, attached hereto and prayed to be taken as a part hereof.

3. That the necessity for the taking of such immediate possession of and title to said property is not due to any substantial fault or neglect on the part of the Petitioner.

Mr. William Burgee, Director of the Office of Property Acquisition and Relocation, did file an affidavit in which he asserted that immediate possession of the Property was necessary because the City had effectively acquired title to all other properties on Block 1587. He also stated that there was a school scheduled to open in August of 2013 to the east of the Property, prior to which all demolition on Block 1587, including that of the Property, needed to be completed to “safeguard” the health and safety of the children, guests, and staff of the school:

4. There is an immediate necessity for the Mayor and City Council to acquire title to the subject property because it is the lone hold-out among nearly 150 individual properties in Block 1587, which is bounded on the north by Eager Street, on the east by Chester Street, on the south by Ashland Avenue and on the west by Washington Street. The City plans to close Castle Street in this block and all interior alleys in furtherance of the development plan. The City has effectively acquired title to all other properties in the block, and demolition must proceed as soon as possible. To the east of the subject property, on Block 1588,...