Director v. Oliver Beach Improvement Ass'n

¹⁸⁴ Smith, J., delivered the opinion of the Court. In this case the trial court dismissed a petition for condemnation, saying: “I think this is a perfect example of the capriciousness and unreasonableness and arbitrariness of our bureaucracy. And I find as a fact that it is not necessary for the Department of Forests and Parks to condemn this property.” We shall reverse this action. The proceeding in question was brought pursuant to the grant of authority for eminent domain contained in Code (1957), Art. 66C, § 372 as amended by Chapter 36 of the Acts of 1962 and resolution of the Commission of Forests and Parks passed May 26, 1964. 1 Although the petition for condemnation was filed on March 17, 1965, it did not come on for hearing until November 20, 1969.

It is obvious that there was substantial sparring between the parties in the interim. The 5.79 acre tract sought to be condemned is owned by appellee Oliver Beach Improvement Association, Inc. It is located in Baltimore County near the end of Eastern Avenue extended, just off the Gunpowder River, abutting on what is intended to be a part of the eastern boundary of Gunpowder River Valley State Park (the Park), for which park it is desired. The General Assembly as far back as Chapter 804 of the Acts of 1959 appropriated $1,000,000.-00 for land acquisition for the Park. Subject land is but a small part of the total acreage of the Park.

It is de ¹⁸⁵ scribed as “largely wooded” and having “a small amount of marsh land on it”. It is a part of what is designated as a bird sanctuary on the Park master plan. Mr. William A. Parr, Deputy Director of the Department of Forests and Parks (the Department), testified in part as follows: “Well, the area to be acquired is part of an area, part of an overall area being acquired by the department as part of the Gunpowder Park, and is an area in which several streams head up. It will be used by the Gunpowder Park primarily, or for two factors; a buffer strip, and as a general recreational area for hiking, similar purposes, trails. “Well, this was part of an overall study of the entire area; and actually it was laid out through study on the ground through use of aerial photographs, through use of topographic maps of the area, and was laid out for acquisition. * * *” Examination of the plat filed reveals that the deletion of the subject parcel from the Park would cause a break in an otherwise straight boundary.

The northern line of the land sought to be condemned is an existing street or road and an extension of such street. The plans of the Department for the Park collided with the desires of the local community which had plans for the development for recreational purposes of subject land and the 3.4 acres which will remain in the tract after the condemnation. It is apparent that after the condemnation proceeding was filed substantial pressure was brought to bear in an effort to influence the Department into withdrawing the condemnation proceeding. Certain correspondence to this effect was introduced into evidence over objection.

The Director of the Department (the Director) was questioned as to a meeting which he attended on March 6, 1966, and a letter to him from Senator James A. Pine ¹⁸⁶ of Baltimore County, in which it was stated, “ [Y] ou promised that this suit would not be necessary as long as the property in question was used for recreational facilities.” The Director did not deny the statement but said he did .not recall it. There was introduced into evidence a letter from the Director to Senator Pine dated August 22, 1966, ’which read as follows: “DEPARTMENT OF FORESTS AND PARKS August 22,1966 Honorable James A. Pine Senator, Senate of Maryland 24 West Pennsylvania Avenue Towson, Maryland 21013 Dear Senator Pine: Thank you for your letters of August 1 and August 18, 1966, concerning the condemnation suit now pending to acquire a portion of the property owned by the Oliver Beach Improvement Association, Inc. Following our discussions during the last session of the General Assembly, no action has been taken to resolve this purchase or to drop the suit, pending the completion of other cases on adjacent property now before the courts. After the completion of these cases, hopefully by early fall, the Department of Forests and Parks can then determine the final disposition of this case. Until then, I believe the best course of action is to continue the present status of the case, and to leave the suit pending.

This position was pointed out to the Oliver .Beach Association in my letter dated April 13, 1966.1 thought my reasons for requesting a postponement of the suit, in lieu of requesting a dismissal, were clear and were understood by the Association. However, I will again advise the .Association of this Department’s position and ¹⁸⁷ that the continuation is not only in the best interest of the State, but of the Association as well. Sincerely, SPENCER P. ELLIS, Director. SPE: jh” Pursuant to the provisions of Code (1957), Art. 35, § '9, the Director was called as a witness by the property owner.

At one point the record on cross-examination of him is as follows: “Q. Did you at any time, after you obtained the authority by law to institute condemnation cases, revoke that resolution ? A. I have no power to revoke a resolution of the Commission, so I did not. “Q. By whom were you invited to attend this meeting ? A. By Senator Pine, I believe, possibly by letter from the association; I don’t recall exactly. “Q. Bid you have the authority at that time to terminate the condemnation proceeding? A. Yes. “Q. Did you tell this group that you were?

A. I don’t recall exactly what 1 told them, I cannot swear to my words that day. “Q. But, in any event, it is the position of the Department of Forests and Parks, at least today, to continue this condemnation case? A. It is, sir.” No other correspondence from the Director is before us nor did any other person testify relative to the meeting in Question. Over objection the corresponding secretary of the property owner was asked: “Since the meeting of March 6th, 1966, and relying on the understanding that you received from Mr. Ellis, his verbal statement, what, if ¹⁸⁸ anything, has the Oliver Beach Improvement Association done in respect to the development of the property that is sought to be acquired by the State?” She replied: “We have affiliated with the Department of Recreation and Parks of Baltimore County; we at present have a fund [sic] center every Friday night in the building; we have a majorette group; we have an arts and crafts class, which was discontinued for the present; we had a summer playground; the [Baltimore County] Department of Recreation and Parks has put in a picnic area; * * *. We have surveyed the property in question, and have marked trees that we would like to cut down.

We have talked to the Baltimore County Recreation and Parks, and they said if possibly we could clear some of this land they could help put in a ball diamond, that they don’t have the funds to clear it and fill it. We have some fill dirt on the premises. And we have tried on several occasions to have someone knock these trees down, but we don’t have a lot of money, and we’re trying to get it done at a low cost, or gratis, and it’s a pretty hard job.” She testified that there were approximately 680 school children in the Oliver Beach area in addition to “the preschool children”. It is not at all unusual for the