Prince George's County v. Beard

• Decision Date: 13 June 1972
• Docket Number: No. 380,380
• Citation: 266 Md. 83,291 A.2d 636
• Parties: PRINCE GEORGE'S COUNTY, Maryland v. Lillian M. BEARD et al.
• Court: Maryland Court of Appeals

Page 83

266 Md. 83

291 A.2d 636

PRINCE GEORGE'S COUNTY, Maryland v. Lillian M. BEARD et al.

No. 380.

Court of Appeals of Maryland.

June 13, 1972.

Carl Harrison Lehmann, Upper Marlboro (Walter H. Maloney, Jr., County Atty., and Glenn B. Harten, Asst. County Atty., Upper Marlboro, on the brief), for appellant.

Charles J. Steele, Bethesda (Jo V. Morgan, Jr., Bethesda, and Harry L. Ryan, Jr., Washington, D. C., on the brief), for appellees.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES and DULANY FOSTER (specially assigned), JJ.

SMITH, Judge.

In City of Bowie v. Board of County Comm'rs, 260 Md. 116, 117, 271 A.2d 657, 658 (1970), Judge McWilliams said for the Court:

'We shall be concerned here with another skirmish, perhaps the last, in the revolt of the appellants (Bowie) against the proposed Prince George's County airport.'

He may have been unduly optimistic. The parties have changed somewhat and a central part of this opinion will deal with a possible change in the use to be made, but the skirmishing in the area goes on, seemingly without end.

Appellant, Prince George's County, Maryland (the County), filed a petition to condemn land owned by the appellees. Paragraph eight of the original petition recited '(t)hat the (County) ha(d) determined that the property (was) needed and (would) be used for the construction and/or reconstruction of a public Airpark, and that such Airpark is a public purpose.' The condemnation action was instituted pursuant to a directive of the County Commissioners of Prince George's County, but after the effective date of the Prince George's County Charter (the Charter).

Chapter 689 of the Acts of 1968 authorized the County to borrow $8,300,000 after first 'adopt(ing) a resolution describing the public airport facilities and industrial parks for which said borrowing or indebtedness (was) intended.' Section 1(b) of the Act stated:

'(b) the term 'industrial parks' shall mean (i) the acquisition, by any legal means, of land or property in Prince George's County generally in the southwest quadrant of the intersection of Maryland Route 214 and U.S. Route 301 in one contiguous tract as now determined by the County to be suitable as the site or sites for the establishment of one or more industrial parks to encourage and promote the creation of new industry and the growth of existing industry in Prince George's County and (ii) the grading of such site or sites, the construction of access roads, rail service tracks and taxiways, the construction and equipment of buildings the construction and installation of all utility services and the doing of any and all things necessary in connection with or pertaining to the acquisition and development of such land or property as industrial sites including but not limited to the architectural and engineering services incident thereto.'

The bond issue was the subject of an earlier skirmish in City of Bowie v. County Comm'rs, 258 Md. 454, 267 A.2d 172 (1970).

The battle continued and the General Assembly by Chapter 6 of the Acts of 1971, adopted as an emergency law and signed by the Governor on March 30, 1971. repealed and re-enacted § 1(a) of Chapter 689. It provided that the location of the proposed airport rather than being 'generally in the southwest quadrant of the intersection of Maryland Route 214 and U.S. Route 301 or relating thereto,' should 'be located at any other site within Prince George's County provided adequate safeguards ha(d) been provided to limit the noise, safety and nuisance hazards imposed on the residents of the immediate area by such a facility or relating thereto and the impact of the project on the local environment.'

The trial judge in this case stated in his opinion that he sat in the case of Prince George's County v. Caulfield, Law No. 47,351, in the Circuit Court for Prince George's County, where '(t)he validity of Chapter 6 was questioned * * * and it was held to be a nullity for the reason that the Charter had previously been adopted in Prince George's County and local legislation was then entirely within the province of the County Council rather than the General Assembly of Maryland.' No appeal was taken from that decision.

On June 17, 1971, the County Executive issued executive order 'No. 72-1971' addressed to the county attorney in which he recited that the County Commissioners of Prince George's County on November 27, 1970, ordered that subject property be condemned, that they appropriated funds for the acquisition of the property 'by General Resolution No. 1-1971, dated January 26, 1971,' that they 'determined that (subject) property (was) necessary for the construction, reconstruction and/or maintenance of a public airpark facility and/or industrial park,' that the County had been unable to negotiate purchase of said property, that 'it (was) determined to be necessary that said property be condemned for said public purpose and necessity in order that said public airpark facility and/or industrial park be constructed, reconstructed or maintained,' and directed the county attorney 'to institute proceedings and/or amend any pending proceedings to acquire the (subject) property by condemnation.' Pursuant to that order and an order of court granting leave, the condemnation petition was amended. Paragraph 8 of the amended petition stated:

'That the Petitioner has determined that the property is needed and will be used for the construction and/or reconstruction of a public airport facility and/or industrial park, and that such public airport facility and/or industrial park is a public purpose.'

Skirmishing continued. The County Council passed Bill 19-1971 in September which became effective November 7, 1971, the County Executive having neither signed nor vetoed the bill within 10 days after its presentation. That bill revoked the authority to proceed under the provisions of Chapter 689 of the Acts of 1968, declared land acquired for the purposes set forth in that act to be surplus property, directed the County Executive 'to sell the land at public or private sale as expeditiously as is feasible,' and specified the disposition to be made of the funds thus acquired.

Yet another executive order was issued on September 21, 1971, after passage of Bill 19-1971. It directed the county attorney 'to proceed with the pending condemnation cases brought pursuant to the authority conferred upon the County in Chapter 689, Acts, 1968, exclusively for the industrial park purpose permitted in that Act,' and to '(a)mend, where necessary, any pleadings in any pending cases to reflect (that) instruction.' It stated that '(a) plan for the utilization of the property in question exclusively for an industrial park, without the airpark feature, (would) be prepared and forwarded to the Office of Law for use in the pending cases, if it (became) necessary to present such a plan to the Court.' Upon the strength of that order the county attorney moved 'to amend paragraphs 2 and 9 of its Petition to conform to said Executive Order,' paragraph 2 being where the authority for condemnation was recited.

Appellees moved to dismiss the condemnation proceedings on the ground that authority no longer existed for condemnation and also because the proposed amended petition was 'unconstitutionally impermissible on its face as an attempt to acquire private property for a purely private purpose in violation of the constitution and laws of the United States and the State of Maryland.'

The matter ultimately came on for hearing before Chief Judge Powers. The concluding paragraph of his opinion read:

'It is not necessary to decide whether land for this project may be purchased by the County but only the question posed in this case: whether the County has the power to condemn. Whatever the fiscal consequences and the interpretation of the effect of Sections 818 and 824 may be under other circumstances, I must conclude that the clear intent of the Council to abandon the public airport and industrial park project by the enactment of Bill No. 19-1971 cannot be circumvented by any interpretation of these sections or an Executive Order. The original legislation declared this project to be for public purposes. Subsequent legislation declared the project abandoned and the land acquired surplus property. There is no legal authority by which the acquisition of additional land by condemnation can meet the requirement that it be for public use. The motion to dismiss will be granted.'

There are two questions posed to us by the County: (1) whether the enabling legislation was effectively repealed and the project effectively abandoned by the County Council Bill 19-1971, and (2) whether the County has 'the power to condemn private property for a publicly owned and operated industrial park leased, in major part, to private industrial and commercial interests.' The appellees see the second point as the all important one which will dispose of the entire matter, they hope so they addressed themselves first to that point. We shall remand the case without affirmance or reversal under Maryland Rule 871(a) for further proceedings since on the record before us we are unable to effectively answer either question.

I

The County in its brief states:

'While this capital project did not originally stem from inclusion in a capital budget, its continuation and present operativeness is recognized and contained in the Capital Budget enacted by the Council under the Charter on June 15, 1971.'

This point is not disputed by the appellees in their brief, but no confirmation for it is found in the record extract.

The County points out that § 818 of the Charter provides in pertinent part:

'Interproject transfers of appropriations between capital projects in the capital budget mat be authorized by legislative act of the Council upon request of the County Executive, but no new project shall be created nor any abandoned except in accordance with section 824 of this...