Baltimore County v. Smith

Lowe, J., delivered the opinion of the Court. ²³⁸ When a building permit is applied for in Baltimore County, § 22-17 of the Baltimore County Code 1 establishes a procedure whereby the county planning board may stay any improvement upon the property for as long as 18 months. When the application is made for such permit, within 15 days the director of planning shall report to the planning board any conflict with the county’s master plan. The board then may promptly refer the question to the agency most affected by the proposed improvement, which agency must report back within 30 days whether, in the public interest, the land involved in the application should be "reserved” and include an estimate of time (not to exceed 14 months) required to complete acquisition of the land. If the planning board agrees at its next meeting, it may declare the public reservation, "... the period of which shall in no event exceed eighteen months from the date of the original application for a building permit ....”§ 22-17 (c).

If at the end of the reservation period, the reserved land is not acquired for public use, or if condemnation proceedings have not been commenced, "the reservation shall be void” and the board shall record a release within 15 days. § 22-17 (g). Because no building or other structure shall be erected on the land so reserved during the reservation period proclaimed, in order to avoid the unconstitutionality of an uncompensated taking (see Md.-Nat’l Cap. P. & P. Comm’n v. Chadwick, 286 Md. 1 (1979)), taxes, etc., are waived, § 22-17 (f), and the property owner and applicant shall be entitled to bring a cause of action for "actual damages sustained ... by reason of the public reservation....” § 22-17 (h). To determine such damages (as well as attorney’s fees and expert witness fees), the ordinance creates a new cause of action; however, such cause of action is predicated upon ²³⁹ there having been no condemnation proceedings or acquisition before the expiration of the reservation period.

"If at the end of the reservation period, the land so reserved is not acquired for public use or if condemnation proceedings have not been instituted in the appropriate court, any person aggrieved shall have a right of action at law against the county for actual damages sustained by him by reason of the public reservation together with reasonable attorney’s fees and expert witness fees as may be approved by the court.” § 22-17 (h). The parties to this case, Baltimore County, Maryland, appellant, and Barrett F. Smith, Jr. and Frances M. Smith, his wife, trading as Boyd Construction, appellees, have agreed to a statement of facts which we have condensed to a short, pertinent, chronological recitation. 1. On January 6, 1976, 2 plaintiff filed for four building permits. A "hold” was placed upon them by the county the following month. 2.

Although two permits were subsequently obtained, the "hold” remained in effect on the other two applications until March 24,1977,14 months after the application. 3. The Agreed Statement of Facts then recites that: "The Appellants, by a Resolution dated March 24, 1977, of the Baltimore County Planning Board, declared a public reservation of the land covered by the denied Building Permit Applications No. 76818 and 76819, pursuant to Section 22-17, entitled Effect of Proposals in Master Plan on Applications for Building Permits or for Approval of Preliminary Subdivision Plans, Baltimore ²⁴⁰ County Code (1968) [now recodified as Baltimore County Code, 1978, Section 22-18]. Pursuant to that Code provision, the eighteen (18) month reservation period commenced on January 6, 1976, the date Appellees submitted their permit applications. Since the property was neither acquired nor were condemnation proceedings instituted during the eighteen-month reservation period mandated by Section 22-17, the Planning Board declared the reservation to be void by a Resolution dated November 17, 1977.” (Emphasis partially added). 4.

On June 15, 1978, appellees again filed for building permits having been unable to obtain them despite the terminated reservation. 5. Condemnation proceedings were brought on July 18,1978, but the result of that proceeding is not a part of the record. The issues raised deal with the damages allowed by the Circuit Court for Baltimore County as the result of a proceeding brought pursuant to § 22-17 (h) on August 25, 1977. For reasons unexplained — even after inquiry — the condemnation proceeding and the statutory proceeding were not consolidated.

Based upon the profits made upon sale of the two houses built (when two of the applications were issued from the four first sought), the trial judge found that the "actual damages sustained by ... reason of the public reservation” on the two reserved building sites were commensurate with profits made in the development of