State Roads Commission of State Highway Administration v. Parker

• Decision Date: 29 August 1975
• Docket Number: No. 178,178
• Citation: 344 A.2d 109,275 Md. 651
• Parties: STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION v. Roscoe H. PARKER et ux.
• Court: Maryland Court of Appeals

Page 651

275 Md. 651

344 A.2d 109

STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION v. Roscoe H. PARKER et ux.

No. 178.

Court of Appeals of Maryland.

Aug. 29, 1975.

Carl Harrison Lehmann, Jr., Upper Marlboro (Francis B. Burch, Atty. Gen., Nolan H. Rogers, Sp. Asst. Atty. Gen., Baltimore, and Richard T. Brice, IV, Sp. Atty., Annapolis, on the brief), for appellant.

Carlyle J. Lancaster, Hyattsville (Lancaster, Bland, Eisele & Herring, Hyattsville, and Theodore L. Miazga, Riverdale, on the brief), for appellees.

Argued before SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

O'DONNELL, Judge.

On August 7, 1968, the appellant, State Roads Commission, pursuant to the provisions of Maryland Code (1957, 1964 Repl.Vol.), Art. 89B, § 9, ¹ filed a petition in the Circuit Court for Prince George's County to 'quick take' a parcel of 1.83 acres, running a distance of 732 feet along the eastern boundary of a tract totalling 10 acres owned by Roscoe H. Parker and his wife, the appellees, in Largo, for the relocation of Landover Road (Maryland Rt. 202). In accordance with the provisions of the statute, the Commission deposited with the clerk of the court $65,308.94, its estimate of the 'fair market value' of the portion taken by it for the highway construction.

The appellees requested that the case be referred to the Board of Property Review for a determination of the value of the property, without prejudice to their right to have the matter considered by a jury. See Code (1957, 1964 Repl.Vol.), Art. 89B, §§ 17-20 ² and Maryland Rule U27. Dissatisfied with the award determined by the Board, the Commission on May 1, 1969, requested the reinstatement of the condemnation proceedings. After the matter had laid dormant for more than four years, the Commission, with leave of the court, filed an amended petition to include within the scope of the condemnation, the entire rectangular 10-acre tract of the appellees so that an interchange could be constructed thereon between Central Avenue (Maryland Rt. 214) and the reconstructed and relocated Landover Road.

Described as rolling and wooded land, the acreage 'fronts' along its northern boundary for a distance of 530 feet on Central Avenue. It had no frontage along the relocated Landover Road since access thereto was denied upon the 'quick taking.' Situate upon the land were several delapidated farm buildings conceded to have no significance in the valuation of the acreage. Zoned as 'C-2' (general commercial), ³ the property is located approximately one mile east of the intersection of Central Avenue and the Capital Beltway. Three miles to the north is located the Landover Mall, a large shopping center; one mile to the northwest, the new Capital Centre Sports Arena conducts sports contests and entertainment events almost nightly. A small shopping center, Hampton Mall, is located one mile westward; Prince George's Community College campus is one and one-half miles to the south and a garden apartment development is located immediately southwestward. Within the general geographical area there are 4,000 acres described as being in the 'early stages of intensive residential development' together with related commercial service facilities. Just to the east and southeast of the subject property-off Central Avenue-is a prestigious single family residential development named 'Kettering,' which is served by a small shopping center on that avenue. A gasoline filling station, a fruit stand and a dry cleaning establishment were described as being operated at the intersection of Routes 214 and old Route 202.

During the proceedings before the jury leading to the inquisition, the appellant produced testimony from two expert witnesses-Messrs. Roy K. Davis and Paul J. Gilroy. Davis placed a fair market value upon the 10 acres of $501,200.00; Gilroy's appraisal was $450,000.00. Two expert witnesses who testified on behalf of the appellee-owners, Messrs. John L. Richards and Adelbert W. Lee were of the opinion that the property being taken had a value of $3 per square foot, or a total fair market value of $1,306,800.00.

The jury, apparently finding the opinion testimony of Messrs. Richards and Lee to be the more persuasive, on July 1, 1974, by their inquisition awarded the condemnees $1,306,800.00.

The appellant, aggrieved at the valuation placed upon the tract by the jury, contends in its appeal here that the trial court (Judge George Sachse ⁴) I. Abused its discretion by admitting evidence of comparable sales: (a) sales of lots grossly disparate in size from the subject property, (b) sales of lots incompatibly zoned in that they were zoned industrial and (c) sales proximately remote from the subject property;

II. Committed prejudicial error by remarks made in the presence of the jury tending to buttress the appellees' valuation testimony;

III. Erred by sustaining objections to questions upon cross-examination of appellees' appraisers when it 'sought to ascertain if the latter understood a relevant principle implicit in the statutory definition of 'fair market value"; and

IV. Erred in not granting appellant's instruction that comparable sales 'can be viewed as primary or independent evidence of value.'

I

It must be observed at the outset that there is a conflict concerning the existence of utilities to service the subject acreage; although appellant authoritatively states that no utilities serve the property and a four-year-old sewer moratorium was in effect upon the stipulated date of valuation, it points to no such evidence in the record. Contrariwise, both the expert witnesses on behalf of the appellees gave testimony in connection with the existence of water and sewer; John L. Richards, acknowledging the existence of a 'sewer moratorium,' testified that a public water system served the property, that a ten-inch sewer line and terminal was within 60 feet of the property line and that such service would be available 'in the very near future' since the capacity of Western Branch was being increased. The witness Lee testified that the property 'had water across the front' and that 'sewer was in very close proximity in the rear.'

In testifying concerning his opinion on the 'fair market value' of the tract being condemned, the witness Lee listed as comparable sales six transactions, occurring between 1970 and 1972, five of which such properties were zoned 'C-2' and the sixth of which was zoned 'C-O.' ⁵ The property so sold ranged in area from 33,706 sq. ft. to 199,421 sq. ft. and ranged in price between $2.28 per sq. ft. and $4.03 per sq. ft., or from $99,317.00 per acre to $175,547.00 per acre. The appellant objected to the inclusion of three of these transactions as not being 'comparable sales.' It objected to the property zoned 'C-O,' which contained 199,421 sq. ft.-and which had sold at $2.28 per sq. ft.-involving the largest area and the lowest price per sq. ft. of all the properties described by the witness Lee, solely on the ground of the incompatibility of the zoning classification. There was no evidence concerning the proximity of that acreage to the subject property. A property consisting of 33,706 sq. ft. (.77 acres) which had been sold at $4.03 per sq. ft. was objected to as being dissimilar in size. The third such sale objected to pertained to a parcel of land containing 53,316 sq. ft., which had been sold at $2.57 per sq. ft. which was objected to solely on the basis of its distance from the subject property. Although the appellant alleges in its brief that that sale involved property located '12 miles' distant and argues that it was '15 miles' removed from the subject property, the testimony disclosed that it was described as being located '7 to 8 miles' from the Parkers' land. Each of these objections was overruled by the trial court.

The appellant made no objection to the other three sales considered by the witness Lee; these were described as containing, respectively, 33,956 sq. ft. (.78 acres), 34,512 sq. ft. (.79 acres) and 48,358 sq. ft. (1.13 acres) with sale prices, respectively, of $2.72, $2.50 and $3.55 per sq. ft. Each of the unobjected-to sales pertain to property located between seven and ten-and-one-quarter miles from the property being condemned.

The witness described each one of said sales as each having been made by 'well informed buyers,' each involved property zoned 'commercial' and all were described as having a comparable traffic flow and type of development within their areas. It was further the opinion of the witness that although property zoned 'C-O' was limited to office use, property zoned 'C-2' authorized generally commercial enterprises-including office use. The witness was never cross-examined by the appellant concerning the property zoned 'C-O,' although the asserted differences in zoning were the sole basis for its objection.

Fifteen sales made between 1969 and 1973 located from within 800 feet of the subject property to a maximum of two miles distant were submitted by the witness Richards. Challenging their comparability the appellant objected to all but four of such transactions. ⁶ The trial court sustained its objections to four of the sales which involved tracts of less than one-half acre in size and property zoned for high-density apartments; its objections to the remainder of the sales were overruled.

Six of the property sales considered comparable by Richards were of land zoned 'I-1' (Industrial-light); five were zoned, as was the subject property, as 'C-2.' Objection was made solely on the grounds of incomparability as to five of the six sales of land zoned 'light industrial.' Objection to the sixth such sale (of 42,112 sq. ft.), also on the ground of incomparability was not limited to its zoning classification but included as well its size. Objection was made to only one of the sales of property zoned 'C-2' and this was predicated upon asserted differences in a number of the features of the sale. The...