Zografos v. Mayor and City Council of Baltimore

• Citation: 884 A.2d 770,165 Md. App. 80
• Decision Date: 07 October 2005
• Docket Number: No. 1048,1048
• Parties: Fotis ZOGRAFOS, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

884 A.2d 770

165 Md. App. 80

Fotis ZOGRAFOS, et al. v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. 1048, September Term, 2004.

Court of Special Appeals of Maryland.

October 7, 2005.

Douglas N. Silber (Kelly Bollinger Burke, on the brief), Towson, for Appellants.

Andrew G. Bailey, Elva E. Tillman (Ralph S. Tyler, City Sol., on the brief), Baltimore, for Appellee.

Panel: DEBORAH S. EYLER, BARBERA and WILLIAM W. WENNER, (Retired, specially assigned), JJ.

BARBERA, Judge.

This appeal arises from the filing of a "quick-take" condemnation petition in the Circuit Court for Baltimore City by appellee, the Mayor and City Council of Baltimore (the "City"), pursuant to § 21-16 of the Code of Public Local Laws of Baltimore City ("CPLBC").¹ In the petition, the City condemned a portion of waterfront property located in the "Fells Point" section of Baltimore City, also known as Miller's Pier and Jackson's Wharf ("the Property"). The Property had been owned by appellants, Fotis Zografos, et al.²

The City paid into the registry of the court the sum of $260,000.00, representing the higher of two appraisals of fair market value the City had obtained. The case proceeded to trial. A jury found the fair market value of the Property to be $300,000.00, and returned an inquisition in that amount.

Appellants noted this timely appeal and present the following questions for our review, which we have reordered:

1. Whether the circuit court erred as a matter of law when it ignored the express language of Maryland Code (1974, 2003 Repl. Vol.), § 12-105(b) and (c) of the Real Property Article ("RP"), and refused to admit evidence of the State tax assessments issued December, 1987 (effective July 1, 1988), and January, 2003 (effective July 1, 2003), even though each assessed value was substantially greater than the appraised value placed on the [P]roperty by the City.

2. Whether the circuit court erred as a matter of law when it admitted testimony of a City witness, and refused to strike the opinions of the City's two appraisers after each testified that the highest and best use of the [P]roperty was affected by the public project, thereby allowing the jury to consider evidence of value based upon the effect of the taking involved.

3. Whether the circuit court erred as a matter of law when it refused to instruct the jury that, in determining the highest and best use of the [P]roperty, and in settling upon the fair market value of that property, they were to assume that [] Ordinance [89-412] had not been enacted, and to ignore the associated restrictions precluding any development but a public park.

We conclude that the circuit court committed prejudicial error when it refused to permit appellants to introduce the 1988 tax assessment as evidence of a diminution in the value of the Property caused by the 1989 ordinance authorizing the taking of it. We therefore shall vacate the judgment on that basis and remand for a new trial. We shall address the remaining issues, as they may arise on retrial.

FACTS AND PROCEEDINGS

Appellants owned three waterfront parcels of property located at 910 South Bond Street, which together comprise the Property. The Property is approximately half an acre in size and is zoned M-3.³

On October 14, 1975, by Ordinance No. 999, the City approved an "Urban Renewal Plan" for Fells Point (the "Plan").⁴ The Plan has been amended several times over the years. Of importance to this case, on November 17, 1989, the City approved Ordinance No. 412, amending the Plan by authorizing the City to acquire the Property in fee simple "by purchase or by condemnation, for urban renewal purposes. . . ." Ordinance 412 designated the Property "for public park use" only.

On November 21, 2002, thirteen years after Ordinance 412 was approved, the City instituted condemnation proceedings in the Circuit Court for Baltimore City pursuant to its quick-take authority. On that date, the City deposited into the registry of the court the sum of $260,000.00, representing the higher of two fair market value appraisals of the Property. Also on that date, the City petitioned for immediate possession and fee simple title of the Property. By order entered on November 27, 2002, the court granted the City's petition for possession of the property.

The City and appellants could not agree on the fair market value of the Property. Therefore, on June 9, 2004, the case came on for what would be a four-day jury trial to determine the fair market value of the Property.⁵ After opening statements, the jury visited and viewed the Property, which by that time the City had converted into a public park.

The City then began its case-in-chief. Kimberly Clark, the Baltimore Development Corporation's East Team Director for Economic Development, testified to the location of the Property and areas surrounding it. She also described some improvements that were made to the Property after the institution of condemnation proceedings.

C. Gordon Gilbert, Jr. testified as an expert in commercial real estate appraisals. He testified that he inspected the Property in May 2002 and saw that its southeastern edge looked as if it had been "unprotected by any coherent bulkhead" and that the water had eroded some of that edge. He testified that he compared the sales of eight properties similar to the Property to determine its fair market value. His June 12, 2002 appraisal report was received in evidence. Mr. Gilbert opined, consistently with his report, that the Property had a fair market value of $260,000.00 in 2002.

Mr. Gilbert agreed that the Property is situated in an area that is "one of the hottest locations in" Baltimore. He testified that, as of the date of taking, other properties around the Property were zoned for certain commercial uses and that there was "a very high probability of th[e] [P]roperty being rezoned to" such commercial uses.

During Mr. Gilbert's testimony, the parties stipulated that, as of the date of taking, November 21, 2002, the Property had "frontage" on South Bond Street.

After Mr. Gilbert's testimony was concluded, appellants moved to strike all of it. Appellants argued, inter alia, that Mr. Gilbert's appraisal should have ignored the public park project, as required by RP § 12-105. The court denied the motion.

Calvin Thomas also testified for the City as an expert commercial real estate appraiser. Mr. Thomas testified that he visited the Property, which he described as "unimproved" and "eroding away into the water." Mr. Thomas's January 2002 appraisal report was received into evidence. Mr. Thomas testified, consistently with his report, that the fair market value of the Property was zero. Mr. Thomas also testified that, when he conducted his appraisal report, he assumed that the Property was landlocked.

At the conclusion of Mr. Thomas's testimony, appellants moved to strike Mr. Thomas's opinion of the fair market value of the Property. Appellants argued that it should be stricken because, inter alia, it was not given to a reasonable degree of certainty; he improperly considered the public park project; and he assumed that the Property was landlocked. The court denied the motion.

Laurie Feinberg, an employee in the Baltimore City Department of Planning, testified that one of the goals of the Plan is to ensure public access to the waterfront. Ms. Feinberg testified that, under the Plan, as amended in 1989, the Property could not be used to develop condominiums. She explained that, before development of condominiums on the Property could begin, the City would have to pass an ordinance authorizing such development.

Ms. Feinberg also testified that the 900 block of South Bond Street was a "paper street." She explained that a "paper street" "doesn't function as a street in that cars [do not drive on it,] but it's never been legally closed." She stated that, as far as she knew, the 900 block had "not been open to traffic." Ms. Feinberg testified that an approximately twelve-foot frontage on the 900 block of South Bond Street would not comply with fire department requirements that a right of way be at least twenty feet in width to allow for fire truck traffic. Nor would the frontage comply with City requirements that a road handling vehicular traffic be at least forty feet in width. Road improvements allowing for any vehicular traffic, according to Ms. Feinberg, would have to be borne by the property owner. Ms. Feinberg also testified that the Plan mandated a twenty-foot waterfront promenade, meaning that anything done with the Property would have to account for twenty feet of open space for a public promenade.

The court accepted Ms. Feinberg as an expert in municipal planning. She opined, to a reasonable degree of certainty, that road improvements needed to comply with access requirements in this case could cost between $800,000.00 and $2,000,000.00.

Ms. Clark was then recalled to testify on behalf of the City. Over appellants' objection, she testified that the City spent approximately $2,600,000.00 to build the public park on the Property. The court received in evidence a document prepared by the Department of Transportation reflecting that cost.

After Ms. Clark's testimony, the City rested its case, and appellants began their case.

Alfred W. Barry, III testified as an expert in land planning. Mr. Barry testified that he had been employed in the City's Planning Department from 1972 until 1995, the last eight years of which he served as Assistant Planning Director. Mr. Barry was familiar with the Plan and the Property. He testified that the highest and best use of the Property was to build up to eighteen townhouses and eighteen marina slips. He opined, to a reasonable degree of certainty as an expert land planner, that, "had the City not . . . designated th[e] [P]roperty to be acquired for a park, [] a development scheme for 18 houses . . . would have been rezoned by the City and approved by the City." He further opined that it would...