Sapero v. Baltimore

Citation398 Md. 317,920 A.2d 1061
Decision Date12 April 2007
Docket NumberNo. 72, Sept. Term, 2006.,72, Sept. Term, 2006.
PartiesRobert A. SAPERO v. MAYOR AND CITY COUNCIL OF BALTIMORE.
CourtCourt of Special Appeals of Maryland

Alan R. Engel, Glen Burnie (Kathleen M. O'Connell, Robert Allen Sapero, Sapero & Sapero, Baltimore, on brief), for appellant.

Elva E. Tillman, Principal Counsel (George A. Nilson, City Solicitor, Sandra R. Gutman, Chief Solicitor), on brief, for appellee.

Argued before RAKER, CATHELL, HARRELL, BATTAGLIA, GREENE, and JOHN C. ELDRIDGE and ALAN M. WILNER (Retired, Specially assigned), JJ.

CATHELL, J.

We are presented in this case, yet again, with litigation stemming from the City of Baltimore's use of quick-take condemnation. Specifically, this case arises out of an attempt by the Mayor and City Council of Baltimore ("the City"), appellee, to condemn several private properties via quick-take.1 The properties in question, owned by Robert A. Sapero,2 appellant, are located at 1701-1709 North Charles Street (commonly referred to as the "Chesapeake Restaurant") and 22-24 East Lanvale Street, both located in Baltimore City, Maryland (collectively referred to as "the Properties"). On December 8, 2005, the City filed with the Circuit Court for Baltimore City an action for regular condemnation and, within it, a petition for immediate possession of and title to the Properties. Thirteen days later, on December 21, 2005, the Circuit Court granted the City's petitions, divesting Mr. Sapero of his property by ordering that the City "be vested with possession of the fee simple interests in those properties known as 1701-1709 N. Charles Street and 22-24[E.] Lanvale Street ... as of the 21st day of DECEMBER, 2005 . . . ." Pursuant to the court's order, title to the Properties ultimately would vest in the City ten days after personal service of the petitions and relevant order upon all defendants who had an interest in the Properties, unless such interested parties filed an answer to the City's petitions within the ten day period "alleging that the City does not have the right or power to condemn title to the property...."

Mr. Sapero timely filed an answer. On January 20, 2006, the City filed an amended petition to correct typographical errors in the street directional designations. On that same date, Mr. Sapero filed a motion to vacate. On March 10, 2006, the City filed a second amended petition to include a contract purchaser of the property located at 1701-1709 N. Charles Street, Victor Cheswick, Jr. After several postponements,3 the Circuit Court finally held a hearing on March 20, 2006, where it heard arguments concerning the City's petitions and Mr. Sapero's motion to vacate. The Circuit Court granted the City's petitions and denied Mr. Sapero's motion to vacate. On March 30, 2006, Mr. Sapero filed a motion to alter or amend judgment. The Circuit Court denied that motion. This appeal followed.4

Mr. Sapero presents several questions for our review:

"1. Whether the Circuit Court could condemn Appellant's real property where the known contract purchase[r] was not timely made a party to the proceeding?

2. Whether the quick-take statute denies due process where the Appellant was not permitted to conduct and complete discovery?

3. Whether Appellee proved an immediate need for possession by merely testifying that it was necessary for `business expansion?'

4. Whether Appellee acted in good faith in the condemnation proceeding by valuing Appellant's property at $770,000 when it had actual knowledge of an existing arm's length purchase contract priced at $2,000,000 for only a portion of the property?

5. Whether Appellee can constitutionally condemn Appellant's property for economic development without proving a carefully considered or significantly controlled development plan?

6. Whether the Circuit Court could issue an order under the quick-take statute thirteen days after the filing of the petition when the statute requires the order to be entered within seven days?"

As noted, the Circuit Court entered its judgment in this case prior to our decision in Mayor and City Council of Baltimore v. Valsamaki, 397 Md. 222, 916 A.2d 324 (2007). Therefore, the trial court did not have the benefit of our recent decision discussing the requirement of a showing of immediate necessity by the City for condemnations via quick-take under the Code of Public Local Laws of Baltimore City, § 21-16. We reiterate that the City "must demonstrate the reason or reasons why it is necessary for it to have immediate possession and immediate title to a particular property via the exercise of a quick-take condemnation." Valsamaki, 397 Md. at 228, 916 A.2d at 327 (2007). As we discuss below, the factual circumstances of the case sub judice do not demonstrate that there was a sufficient showing by the City that immediate possession of the Properties was necessary. Therefore, quick-take condemnation was not the proper method for the City's acquisition of the Properties. We shall vacate the judgment of the Circuit Court for Baltimore City with respect to the petition for immediate possession. Additionally, we shall address Mr. Sapero's due process concerns in regard to the limited discovery allowable under quick-take condemnation pursuant to § 21-16. With our disposition of the case in addressing questions two and three, we need not resolve Mr. Sapero's other concerns.5

I. Facts

This case arises from circumstances very similar to those in Mayor and City Council of Baltimore v. Valsamaki, 397 Md. 222, 916 A.2d 324 (2007), supra, our recent decision concerning quick-take condemnation in Baltimore City. As in Valsamaki, we are presented with the City's attempt to obtain possession of private property in furtherance of its urban renewal efforts, specifically in the Charles North Revitalization Area. We described that plan in Valsamaki:

"On October 25, 1982, the Mayor and City Council of Baltimore adopted Ordinance No. 82-799, which established the Charles North Urban Renewal Plan for the Charles North Revitalization Area.[6] Ordinance No. 82-799 sets forth the goals and objectives of the Charles North Urban Renewal Plan as follows:

`The basic goal of this Urban Renewal Plan is the revitalization of the Charles/North area in order to create a unique mixed-use neighborhood with enhanced viability, stability, attractiveness, and convenience for residents of the surrounding area and of the City as a whole. The objectives of this Plan include:

a. protecting existing residential neighborhoods;

b. establishing a positive and identifiable image for the Charles/North Area compatible with the surrounding residential areas;

c. accommodating the expansion of existing retail small business;

d. promoting new retail business activity in the area;

e. establishing and enforcing uniform comprehensive design and rehabilitation standards that will enhance the physical environment of the business area through private investment;

f. bringing about a general physical improvement of the area through coordinated public improvements;

g. providing a pleasant environment for the staging of year-round promotional activities and events; and

h. removing blighting influences and creating development lots for commercial uses.'

The Property [in the case sub judice, 1701-1709 North Charles Street and 22-24 East Lanvale Street] is located within the boundaries of the Charles North Revitalization Area. In June 2004, the Mayor and City Council of Baltimore amended the Charles North Urban Renewal Plan by Baltimore City Ordinance No. 04-695, which specifically authorized the acquisition of the subject Property `by purchase or by condemnation, for urban renewal purposes....'"

Valsamaki, 397 Md. at 230, 916 A.2d at 328 (2007).

The Charles North Urban Renewal Plan has been in existence since October 1982 and, from June 2004 onward, the City has been specifically authorized by Ordinance No. 04-695 to acquire the subject Properties. Nonetheless, as in Valsamaki, the City did not act on its authority for well over a year. Apparently the City attempted to negotiate the purchase of the Properties and when it could not reach an agreeable purchase price with Mr. Sapero, it moved forward with quick-take condemnation.

Had the City filed an action for regular condemnation when first authorized to do so, there would have been more than 19 months prior to the decision of the trial court during which Mr. Sapero would have had a more complete opportunity to litigate (utilizing discovery) and thus properly present defenses — which a property owner is entitled to do. Throughout a period of time that general condemnation litigation is going forward, governmental entities may continue to negotiate with property owners. The primary result of the practice in the instant case (as in Valsamaki) — whereby the City waits almost a year and a half, then attempts to acquire property via the quick-take procedure — is that the City effectively forecloses the ability of private property owners to fully litigate. In the absence of a true exigency, or an emergency such as an immediate need to alleviate dangerous or unhealthy conditions, the use of quick-take should always be subject to close scrutiny as to the purpose for its use. It should not be used solely as a litigation tactic. It must not be forgotten that private property rights are fundamental constitutional rights under both the Federal and State Constitutions.

On December 8, 2005, the City filed in the Circuit Court for Baltimore City a petition for condemnation and then a petition for immediate possession of and title to the Properties. The City's petition for condemnation stated that:

"It is necessary for the [City] to acquire the fee simple interest in and to the property known as 1701-1709[N.] Charles Street and 22-24[E.] Lanvale Street, in Baltimore City, State of Maryland . . . together with improvements thereupon, and all the rights, ways, waters, easements, privileges, advantages and...

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