Davis v. Montgomery County

Barnes, J., delivered the opinion of the Court. The appellants, property owners of residential prop ⁴⁵⁸ erty in Takoma Park, Montgomery County, near the Takoma Park campus of Montgomery College, filed a bill of complaint in the Circuit Court for Montgomery County on December 7, 1971, against the appellees, Montgomery County, the Board of Trustees of Montgomery County (Trustees) and the Board of Public Works of the State of Maryland (Board of Public Works), praying for an injunction against the expenditure of certain state and county funds for the expansion of the Takoma Park campus. After an amended bill of complaint was filed on February 7, 1972, with leave of the chancellor, and answers duly filed, the appellees filed motions for summary judgment with supporting affidavits and the appellants filed an opposing affidavit. The principal questions presented to us involve (1) the alleged unconstitutionality of Maryland Code (1957, 1969 Repl.

Vol.) Art. 77A, §§ 1-10, and particularly § 1 (d), giving the Trustees power to purchase, lease, condemn or in any other manner acquire real and personal property deemed necessary by them for the operation of the community college, because of an unconstitutional delegation of legislative power; (2) the sufficiency of the counter-affidavit of the appellants to raise genuine issues of material fact in regard to (a) the alleged denial of due process of law resulting from the alleged arbitrary and unreasonable actions of the Trustees and (b) the alleged unconstitutional use of public funds for an option to purchase property owned by a religious organization. The chancellor (Joseph Mathias, J.) granted summary judgments in favor of the defendants below on April 27, 1972; and the plaintiffs below — appellants here — entered a timely appeal from that order. We have concluded that the chancellor properly entered the order of April 27, 1972; and we will affirm that order. The affidavit of William C. Strasser, President of the Board of Trustees of Montgomery Community College, sets out most of the relevant facts.

It is an elaborate and detailed affidavit, consisting of some 20 pages in the ⁴⁵⁹ record extract. The affidavit indicates, in part, the following. The Maryland-National Capital Park & Planning Commission (Planning Commission) stated in regard to Planning Area X in its Master Plan adopted by Resolution of September 4, 1963, after duly advertised public hearings on March 6 and 7, 1963: “Montgomery Junior College occupies only one block in the westernmost corner of the planning area. There is a possibility that the campus will be expanded in the future, in spite of the second junior college under construction north of Rockville.

Its down-county location makes it convenient for many — especially part time working students. A logical direction for expansion would be the block northeast of New York Avenue. This would make possible the closing of New York Avenue. Off-street parking is badly needed here.” The area mentioned for possible expansion is Block 69 in Takoma Park bounded by Philadelphia Avenue, Takoma Avenue, New York Avenue and Chicago Avenue and is adjacent to the property of Montgomery College.

The appellants own residential properties in Block 69. In April 1967, a study and recommendation was made by a Professor of Industrial and Technical Education of North Carolina State University in regard to Montgomery College. He recommended the retention of the Takoma Park campus and the acquisition of an additional down-county site. The Trustees, on July 17, 1967, authorized the formation of a Community Advisory Committee for a long-range Master Plan for the college.

On January 25, 1968, they adopted a capital budget for the college for the fiscal year 1969 and included in that budget funds to initiate the educational planning for expanded and improved facilities at the Takoma Park campus, as well as funds for site acquisition. The Community Advisory Committee, at a public ses ⁴⁶⁰ sion (after prior concurrent conferences), recommended on September 19, 1968, that the Rockville campus, due to be completed and to reach capacity enrollment by 1972, be considered as well as an up-county campus along the 70 S corridor beyond Gaithersburg. The Trustees, on November 18, 1968, determined that the Takoma Park campus should be retained and developed and authorized the purchase of the property at 7000 Takoma Park. A committee, authorized by the Trustees to study educational planning for lower county facilities of the college, presented its detailed recommendations to the Trustees in a public session in March 1969 in regard to the Takoma Park campus and its expansion.

The Trustees held a public hearing on these recommendations in May 1969 when at least one of the residents of Block 69 attended but did not oppose at that time the expansion of the Takoma Park campus. On July 21, 1969, the Trustees petitioned the Montgomery County Council for state aid for the acquisition of land adjoining the existing Takoma Park campus. This petition was referred by the County Council to the State Board for Community Colleges, which, on December 3, 1969, recommended to the Board of Public Works the approval of the request of the Trustees for state assistance for the acquisition of additional land for the Takoma Park campus. The Board, on May 1, 1970, approved an allocation of $325,000 toward the acquisition of 7.9 acres of land for the Takoma Park campus, the Trustees receiving official notice of this authorization on July 13, 1970.

Thereafter, the Trustees approved the appointment of an architectural firm for the Takoma Park project. On May 4, 1971, the Trustees held a public hearing on a feasibility study made by the architects. All residents of Block 69 had been sent personal invitations to appear and present their views. Later in May 1971, the architects were instructed to re-evaluate their proposal to determine if it would be possible to take less of Block 69.

The Trustees, on June 14, 1971, in a public session, accepted ⁴⁶¹ the revision of the architects and the construction table proposed by them. Notice was given by the Trustees to the owners of the eight properties immediately affected by the plans for redevelopment of the Takoma Park campus and indicated that the Trustees were “most desirous of obtaining a mutually acceptable and appropriate agreement to purchase their properties.” It was also indicated that if no agreement were reached prior to the July 19, 1971, meeting of the Trustees, “more direct, specific action to acquire the properties” would be considered by the Trustees. The Trustees, on November 1, 1971, approved a Resolution confirming a fixed policy of acquiring no properties beyond Block 69 for the proposed campus expansion, with the possible exception of nearby industrial properties and some land across the railroad tracks. On the same day, the Trustees approved an option to purchase the property 715 New York Avenue (Lot 6-C in Block 69) from The United Church for the Deaf of Washington, D. C., a District of Columbia Corporation, for $117, 500.

Thereafter, the Trustees and the Board of Public Works approved various options to purchase land for the Takoma Park campus expansion, including the option to purchase 715 New York Avenue from the Church for the Deaf on February 3, 1972. The affidavit of President Strasser then sets forth several reasons why the project should not be further delayed, e.g., the inadequacy of the present facilities at the Takoma Park campus, the serious overcrowding, the number of chairs in existing classrooms in many areas of the campus exceeding the state guidelines by 30%, the necessity for compliance with certain regulations in regard to air pollution, the need for the continuation of the college at the Takoma Park location to act as a stabilizing influence in the community, the prevention of deterioration of nearby residential areas by acting as a buffer between commercial and residential areas, to supply educational advantages to the increasing number of students in the Takoma Park area who find the Takoma Park lo ⁴⁶² cation convenient and readily available because, in part, of the availability of public transportation, and to prevent the further increase in the costs of completing the project resulting from the delay. Other affidavits in support of the motion by the appellees for summary judgment verified copies of relevant minutes of various state agencies. The affidavit of Robert C. Harrison, Chief of the Land Acquisition Division of the State Department of General Services, and whose duty it was to review all appraisals of land to be acquired in Block 69 by the college for the expansion of the Takoma Park campus, stated: “I have examined the two appraisals submitted by the College for the property located at 715 New York Avenue, Takoma Park, Maryland.

This property is a church and is in Block 69. Both appraisals arrive at the fair market value of this property by using the reasonable replacement cost of the improvements reduced by the physical and functional depreciation thereof, together with the fair market value of the land. “I was present at the meeting of the Board of Public Works on February 3, 1972, when the said Board approved the acquisition of this church property for a price less than the lower of these appraisals.” The affidavit of Etta Mae Davis and Dolores Stowell, filed by the appellants in opposition to the summary judgment sought by the appellees, after reciting other matters, attached copies of the options of the Trustees to acquire various properties in Block 69. Then follow Paragraphs 11, 12, 13 and 14: “11. The experts of Complainants will testify that the option price on the church property is far above the market value of the property and the price reflects considerations that were not considered in evaluating the residential properties on Block 69. ⁴⁶³ “12.

The considerations given the church property amount to an active discrimination in favor of a religious organization resulting in public funds being spent to favor a religious institution with benefits not available to lay entities ; “13. The Trustees are acting pursuant to authority of the legislature and that authority is granted without any guidelines or standards for the exercise of the authority or discretion granted and that in reaching the decision to expand into Block 69 the Trustees have acted arbitrarily and without just reason; “14. There is no procedure by which the Trustees have proceeded and in attempting to hold ‘public’ hearings, they have failed to provide proper notice or any other semblance of due process;” 1. The appellants first contend that Art. 77A, §§ 1-10, and particularly § 1 (d), are invalid as involving an unconstitutional delegation of legislative power.

Art. 77A in regard to “Higher Education” has a number of subheadings, i.e., “Community Colleges,” “State Colleges,” “University of Maryland,” “Maryland Council for Higher Education” and “Scholarships.” As indicated, the appellants only challenge §§ 1-10 which are the sections under the subheading “Community Colleges.” Art. 77A, § 1 (a) provides for the creation of boards of trustees to establish and maintain community colleges. The board of education of any county and the Board of School Commissioners of Baltimore City until June 30, 1969, with the approval of the State Superintendent of Schools and after July 1, 1969, with the approval of the State Board for Community Colleges (created by § 8), for the purposes of administration over these community colleges “shall constitute a board of trustees and governmental corporation.” The board of education, however, ⁴⁶⁴ may, pursuant to § 9, transfer its authority and rights under § 1 (a) to boards of trustees established by § 9. The boards of trustees are granted the following powers: (b) To maintain and exercise general control over the community college, to keep separate records and minutes, and to adopt reasonable rules, bylaws or regulations to effectuate and carry out the provisions of the subtitle. (c) To appoint a president of the community college, fix his salary and tenure as well as of the faculty and other employees.

The president recommends to the trustees the hiring and firing of faculty and other employees, providing that those with tenure have reasonable notice of the grounds of their dismissal and an opportunity to be heard. The president shall be responsible for the conduct of the college and for the administration and subdivision of its departments. (d) “To purchase, lease, condemn, or in any other manner acquire real and personal property deemed necessary by the board of trustees for the operation of the community college.” (e) To sell, lease, or in any other manner dispose of community college assets at public or private sale, the president of the college and the chairman of the board of trustees being given authority to execute legal conveyances and other documents pursuant to an appropriate resolution of the board of trustees. (f) To utilize, if permission is duly granted, any land, buildings, personal assets, or other facilities of the board of education.

(g) “To receive local, State, and federal funds to defray the cost of the college program authorized by this subtitle and to accept both conditional and unconditional gifts, as the case may be, from private persons.” (h) To determine entrance requirements and approve curricula, subject to certain limitations. ⁴⁶⁵ (i) To charge reasonable fees to students with a view to making college education available at low cost to all qualified persons. # * * (k) To enter into agreements or contracts with any person, firm, or corporation, or with any county, State, federal or governmental agencies “which are deemed by the board of trustees to be necessary or advisable to the establishment, maintenance, and operation of the community college. * * *” (l) To permit a board of education to use the college lands, buildings and other facilities “in connection with any program of secondary or vocational education administered by said board of education, subject, however, until June 30, 1969, to the prior approval of the State Superintendent of Schools, and thereafter of the State Board of Community Colleges.” The definition in § 4 in regard to “Community college” is as follows: “For the purposes of this subtitle: “(a) Community college. — A community college is defined as an institution of higher education, offering the equivalent of freshman and sophomore years of college work and at least one two-year program of post high school education and performing one or both of the following functions: “(1) Offering terminal, vocational, technical and semiprofessional programs; or “(2) Offering terminal nontechnical programs.” Section 9 (as amended by Chap. 303 of the Laws of 1970 and Chap. 223 of the Laws of 1971) provides for the appointment of boards of trustees by the Governor, with the advice and consent of the Senate, upon the re ⁴⁶⁶ quest of the board of education wishing to divest itself of the responsibility for the management and control of the community college or colleges in the political subdivision. As we have observed, when this occurs — as was done in Montgomery County — the new and separate board of trustees has all of the powers and duties of the original board of trustees consisting of the members of the board of education. The appellants contend that Art. 77A, §§ 1-10, and particularly § 1 (d), are unconstitutional as an attempted delegation of legislative power without proper guides and standards. We have serious doubts in regard to whether the appellants have standing in this case to raise this issue in view of the fact that their property is not the subject of any condemnation proceedings and, indeed, the properties which have been acquired by the Trustees have been purchased pursuant to Art. 77A, § 1 (k) by making contracts of sale with the property owners involved.

The option contract with the Church for the Deaf — 715 New York Avenue — was negotiated pursuant to § 1 (k), and not by the exercise of the power of eminent domain. The appellants apparently proceed, however, on the theory of “constructive condemnation,” i.e., that the appellant property owners are unwillingly coerced by the threat of condemnation to sell their properties to the Trustees. As we have indicated, the affidavit of President Strasser, filed by the Trustees in support of their motion for summary judgment, does state that on June 14, 1971, the Trustees accepted the revision of the architects, indicated that they were most desirous of reaching agreements to purchase the properties in Block 69, but that if no agreements were reached prior to July 19, 1971, “more direct, specific action to acquire the properties” would be considered by the Trustees. It can well be doubted that this rather mild and inconclusive statement by the Trustees can amount to a threat of condemnation sufficient to make applicable the doctrine of “constructive condemnation”; but in view of the posture of the ⁴⁶⁷ present case challenging the granting of a summary judgment, we prefer not to pass upon the question of standing and to consider the delegation of legislative power on its merits.

We also doubt that any guide or standard is constitutionally required when the State, through an act of the General Assembly, delegates the sovereign power of eminent domain to one of