Salganik v. Mayor and City Council of Baltimore

• Decision Date: 24 March 1961
• Docket Number: Civ. No. 9997.
• Parties: Isidor SALGANIK and Anna Salganik, his wife, surviving Directors and Trustees of The Consolidated Beef and Provision Company and The Consolidated Beef and Provision Company, a body corporate v. MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation, and Housing Authority of Baltimore City.
• Court: U.S. District Court — District of Maryland

192 F. Supp. 897

Isidor SALGANIK and Anna Salganik, his wife, surviving Directors and Trustees of The Consolidated Beef and Provision Company and The Consolidated Beef and Provision Company, a body corporate v. MAYOR AND CITY COUNCIL OF BALTIMORE, a Municipal Corporation, and Housing Authority of Baltimore City.

Civ. No. 9997.

United States District Court D. Maryland.

March 24, 1961.

Albert L. Sklar, Theodore S. Miller, William J. Pittler, and Sklar & Sullivan, Baltimore, Md., for plaintiffs.

Harrison L. Winter, City Solicitor, and W. Thomas Gisriel, Asst. City Solicitor, Baltimore, Md., for City of Baltimore.

Evan A. Chriss and Eugene M. Feinblatt, Baltimore, Md., for Housing Authority of Baltimore City.

THOMSEN, Chief Judge.

Plaintiffs, citizens of Maryland¹, former owners of land and a building in Baltimore City adjacent to the public housing development known as Flag House Courts, have sued Mayor & City Council of Baltimore (the City) and Housing Authority of Baltimore City (the Authority), also citizens of Maryland² for damages. They allege in separate counts of their third amended complaint (1) that defendants took plaintiffs' property without due process of law in violation of the Fourteenth Amendment to the Federal Constitution by closing certain streets and alleys, (2) that defendants trespassed on plaintiffs' property during the demolition and construction work incident to the Flag House Courts housing project, and (3) that said trespasses, together with the digging of a ditch in an alley adjacent to plaintiffs' receiving platform during the course of the work, amounted to a taking of plaintiffs' property in violation of the Fourteenth Amendment. Plaintiffs claim jurisdiction under 28 U.S.C.A § 1331. Defendants have moved to dismiss the third amended complaint and the several causes of action alleged therein (a) for failure to state a claim on which relief can be granted, or (b) for lack of federal jurisdiction, or both. The parties have agreed that in passing on the motions the court may consider certain additional facts which have been either stipulated by the parties or stated by counsel for plaintiffs to clarify their claims.

The property in question is located on the southwest corner of Lombard and Exeter Streets in Baltimore City, fronting 40 feet on Lombard Street, which runs east and west, and 159 feet on Exeter Street, which runs north and south. The southern half of the property has a greater depth, 80 feet, running back to a T-shaped alley. Before the acts complained of, the upright portion of the T ran south from the cross-bar past the west side of plaintiffs' property and past three small properties (known as 114, 116 and 116½ S. Exeter Street, adjacent to plaintiffs' property on the south) to Granby Street, the next east-west street south of Lombard Street. The T-shaped alley did not connect with any street except Granby Street. The building on plaintiffs' property covered the entire lot except the extreme southern portion which was used for parking. This parking lot fronted about 10 feet on Exeter Street but was somewhat wider in the rear along the alley. A receiving platform was located on the western end of the southern portion of the building, abutting on the T-shaped alley; another platform was located on the Lombard Street side of the building. However, all deliveries to plaintiffs' plant were made to the platform which abutted on the alley, and the physical layout of the plant was so arranged that the primary processing area was next to that platform.

The Flag House Courts housing project was constructed by the Authority, pursuant to an ordinance of the City.³ For our purposes, the area of the project may be conceived of as a very thick L, with plaintiffs' property in the crotch. The Authority originally planned to include plaintiffs' property in the area of the project, but for reasons not important to our present problem, it was not included.

The corporate plaintiff ceased business in December 1954, before the completion of the project, but after the demolition work had been in progress for some months.

First Cause of Action.

By Ordinance No. 773, approved June 26, 1953, in aid of the Flag House Courts project, the City authorized and directed its Department of Assessments to condemn and close certain streets and alleys, including: (1) Granby Street, as it crossed Exeter Street and for two blocks each side of Exeter Street; (2) Exeter Street, south of Granby Street; and (3) the southernmost 43 feet of the T-shaped alley, immediately north of Granby Street, leaving open the cross-bar of the T and that portion of the upright behind plaintiffs' receiving platform and parking lot; the portion of the alley not closed did not connect with any open street or alley.

Lombard Street was left open, so the access to plaintiffs' other platform was not disturbed. Exeter Street was also left open north of Granby Street, but Exeter Street had been designated a one-way street southbound. Some time later the cul-de-sac of Exeter Street from Lombard Street south past plaintiffs' property to what had been the north side of Granby Street was designated a two-way street, so that it is possible not only to enter the parking lot on the southernmost part of plaintiffs' property by way of Exeter Street, but also to leave it by way of Exeter Street, turning off at Lombard Street.

Ordinance No. 773 further provided. "That the proceedings of said Department of Assessments, with reference to the condemnation and closing of the portions of said Streets and Alleys and the proceedings and rights of all parties interested or affected thereby, shall be regulated by, and be in accordance with, any and all applicable provisions of Article 4 of the Code of Public Local Laws of Maryland and the Charter of Baltimore City (1949 Edition) and any and all amendments thereto, and any and all other Acts of the General Assembly of Maryland, and any and all Ordinances of the Mayor and City Council of Baltimore, and any and all rules and regulations in effect which have been adopted by the Director of Assessments and filed with the Department of Legislative Reference."

Article 35 of the Baltimore City Code (1950 ed.) contains the applicable ordinances material to a consideration of this case. The various sections of that Article provide that when an ordinance is passed directing that any street in Baltimore City be closed, the Department of Assessments "shall ascertain whether any and what amount of value in damage will thereby be caused to the owner of any right or interest in any ground or improvements within the City of Baltimore, for which, taking into consideration all advantages and disadvantages, such owner ought to be compensated". The Department must then give public notice of its determination, and thereafter "any person claiming to be interested" may ask the Department to review its initial determination, and to that end may present by testimony and otherwise his objections to the initial determination. After a final decision by the Department and by the Board of Municipal and Zoning Appeals, an appeal may be taken to the Baltimore City Court, where the owner may have a trial by jury.

In their First Cause of Action plaintiffs allege that the closing of the streets and alleys aforesaid amounted to a "taking" of their property which violated the due process clause of the Fourteenth Amendment to the Federal Constitution. Plaintiffs do not allege that the City denied them the remedies provided by Article 35 of the City Code, outlined above, but plaintiffs contend that those provisions violate Article III, Section 40 of the Maryland Constitution, which provides: "The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation."

The first question is whether the closing of Granby Street, of the southern end of the T-shaped alley, and of Exeter Street south of Granby Street, amounted to a "taking" of plaintiffs' property.

The access to the property from Lombard Street and from Exeter Street was not disturbed; it was and is still possible to reach the unclosed portion of the T-shaped alley adjoining the receiving platform by driving south on Exeter Street and turning across the unimproved southern portion of plaintiffs' property, which was used by plaintiffs as a parking lot. The convenient use of the alley and receiving platform was diminished because it is no longer possible to enter the alley from Granby Street. However, it is quite doubtful whether this amounts to a taking under the Fourteenth Amendment. Meyer v. City of Richmond, 172 U.S. 82, 19 S.Ct. 106, 43 L.Ed. 374; Langley Shopping Center v. State Roads Commission, 213 Md. 230, 131 A.2d 690; German Evangelical Lutheran Saint Lucas Congregation of Baltimore v. City of Baltimore, 123 Md. 142, 90 A. 983, 52 L.R.A.,N.S., 889. Cf. City of Rock Hill v. Cothran, 209 S.C. 357, 40 S.E.2d 239; Oler v. Pittsburgh, C., C. & St. L. Ry. Co., 184 Ind. 431, 111 N.E. 619; Central Trust Co. of New York v. Hennen, 6 Cir., 90 F. 593. See also United States v. Causby, 328 U.S. 256, 66 S.Ct. 1062, 90 L.Ed. 1206; Nunnally v. United States, 4 Cir., 239 F.2d 521.

But assuming without deciding that there was a taking by the City as a result of the closing, the remedy provided by Article 35 of the Baltimore City Code afforded plaintiffs due process of law, within the meaning of the Fourteenth Amendment. Bailey v. Anderson, 326 U.S. 203, 66 S.Ct. 66, 90 L.Ed. 3, and cases cited.

To avoid these authorities plaintiffs contend that Article 35 of the City Code violates Article III, Section 40 of the Maryland Constitution, quoted above, because it does not provide for "prior" payment. That contention is ineffective for a number of reasons.

Article III, Section 40 deals with laws...