Free State Realty Co. v. Mayor of Baltimore

Smith, J., delivered the opinion of the Court. We shall here reject the contentions of Free State Realty Company, Inc. (Free State), that appellee, Mayor and City Council of Baltimore (the City), improperly or unlawfully exercised its “quick take” powers of eminent domain. Thus, we shall affirm the decision of the Court of Special Appeals in Free State Realty v. City of Balto., 32 Md. App. 11 , 359 A. 2d 94 (1976). Stripped of their excess verbiage, the contentions of Free State may be summarized as: (1) the City was without authority to acquire the property in question; (2) a corollary or subsidiary portion of the argument on the previous question, that the ordinance of the City, to which we shall later make reference, “does not set forth proper standards, controls or guidelines, nor has the administrative agency ⁵⁵² been given the authority or taken the initiative to issue regulations setting forth standards, controls or guidelines for the improvisation of the Ordinance”; (3) that the taking was not for a public use; and (4) that the City failed to establish its right to proceed under the “quick take” provisions of the statutes relative to eminent domain.

The action began with the filing of a petition by the City to condemn the leasehold property at 2526 West Franklin Street “for urban renewal purposes, namely, 26-H Project,” reciting the authority of Ordinance No. 152, approved June 28, 1968. On the same day it filed- a petition for immediate possession paying into court an amount equal to the estimated fair market value of the property/in question. It said immediate possession was necessary “as appears from the affidavit of Jerome M. Katz, Land Acquisition Officer, Department of Housing and Community Development, attached [t]hereto and prayed to be taken as a part [t]hereof.” The relief sought was said to be “subject to the provisions of Article 4 of the Code of Public Local Laws of Baltimore City (1969 Edition), Subtitle 21-16 as amended by Chapter 420 of the Laws of Maryland approved May 26, 1972.” The affidavit of Mr. Katz said that the dwelling at 2526 West Franklin Street “ha[d] deteriorated to such extent as to constitute a serious and growing menace to the public health, safety and welfare,” which was “likely to continue to deteriorate unless corrected, and [that] such continued deterioration m[ight] contribute to the blighting or deterioration of the immediately surrounding area thereto.” It further recited that the owner had “failed to correct the deterioration thereof as evidenced by the violation notice(s) attached ....” Free State’s answer denied “the legal right of the Mayor and City Council to take this property under eminent domain and particularly ... [the] immediate possession and title because it has not at any time alleged a public purpose by law, statute or ordinance”; that “it was inappropriate and illegal for the City of Baltimore to attempt to seize this property under its Exhibit A, a violation notice which the ⁵⁵³ City employees [sic] in other Courts and matters regularly”; that the particular notice “was barred at the time of its use by the City under Article 53, Section 44, of the General Laws of Maryland,” (which provides that the District Court shall have civil jurisdiction “in all cases of violations of the Building and Electrical Code” of Baltimore City); that “[t]here is no ordinance or statute .. . which enables the City of Baltimore to buy this property under eminent domain for a public purpose”; and that “Chapter 420 ... is unconstitutional in that it violates the Maryland Constitution under the Sections relating to local legislation.” Had Free State not denied the right to condemn and the right of immediate possession in its answer, this would have have been deemed admitted. Maryland Rule U 9 b.

Utilizing the authority of Rule 502 and the procedure mentioned in Director v. Oliver Beach Imp. Ass’n, 259 Md. 183, 190 , 269 A. 2d 615 (1970), and approved by this Court in Potomac Power Co. v. Birkett, 217 Md. 476, 482 , 143 A. 2d 485 (1958), the trial court considered the right to condemn and the right to immediate possession as a preliminary matter. At that time a building inspector testified that when he visited the subject property on September 3, 1974, he observed that “[w]indows and doors were broken,” there “was rubbish and debris inside,” “the house was vacant” and “the grounds were unsanitary.” Another employee of the City’s Department of Housing and Community Development said that under date of September 25, 1974, the City had boarded up and cleaned up the property, but that when he last visited the property on July 13, 1975, three days before the hearing on the petition, there had been no effort made to rehabilitate the dwelling. The author of the affidavit attached to the petition for immediate possession testified that the City sought to acquire the property “because it was reported as a poor condition, blighted property,” invoking the authority of Ordinance No. 152, § 26 (h) approved June 28, 1968.

He stated that the Housing Commissioner sought approval of the Board of Estimates of Baltimore City to condemn this property for the reasons stated under the provisions of the previously mentioned ordinance. A copy of ⁵⁵⁴ the letter to the Board of Estimates was filed as an exhibit in the proceeding. The letter said that the Housing Commissioner “ha[d], along with members of [his] staff, inspected the properties listed above, and ... certified] that said properties [did] meet the ... requirements” of Ordinance No. 152, § 26 (h). A certified copy of the resolution of the Board of Estimates authorizing the acquisition was filed as an exhibit in the proceeding.

The trial judge (Murphy, J.) passed an order in which he found “that it [was] necessary for the [City] to acquire immediate possession and title to said property interest. . . .” He “specifically f[ound] that the necessity for the taking of such immediate possession of and title to said property is not due to any substantial fault or neglect on the part of the [City].” Free State appealed to the Court of Special Appeals, which affirmed. We granted the writ of certiorari in order that we might consider the questions raised by Free State’s petition. 1. Constitutional and statutory authority Maryland Constitution art. XI-B, § 1 authorizes the General Assembly “by public local law” to “authorize and empower the Mayor and City Council of Baltimore” under the power of eminent domain to acquire land “for development or redevelopment, including, but not limited to, the comprehensive renovation or rehabilitation thereof....” As Chief Judge Brune pointed out for the Court in Master Royalties v. Balto.

City, 235 Md. 74, 80-81 , 200 A. 2d 652 (1964), the General Assembly by Chapter 217 of the Acts of 1949 implemented the provisions of Constitution art. XI-B, § 1. Constitution art. Ill, § 40A provides that “where ... property is situated in Baltimore City and is desired ... by the Mayor and City Council of Baltimore, the General Assembly may provide that such property may be taken immediately upon payment therefor to the owner or owners thereof ... by the Mayor and City Council of Baltimore, or into court, such amount as... the Mayor and City Council of Baltimore ... shall estimate to be the fair value of said property....” Code of Public Local Laws of Baltimore City ⁵⁵⁵ (1969 ed., art. 4 of Code of Public Local Laws of Maryland) § 21-16, as amended by Chapter 420 of the Acts of 1972, authorizes the City in filing a petition for acquisition of land by way of condemnation to obtain immediate possession upon complying with procedures with which the City here complied, all of which was set forth at length by Judge Menchine for the Court of Special Appeals in Free State Realty, 32 Md. App. at 15-18 .

The Court of Special Appeals’ opinion further referred to Ordinance No. 152 of the City. Its legislative findings in § 20 (a) stated, among other things, that there existed within the City “slum, blighted, deteriorated, or deteriorating areas, which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and general welfare of the residents of the City of Baltimore. ...” The Court of Special Appeals emphasized that portion of the section stating: “(4) that the rehabilitation or elimination, in whole or in part, of slum, blighted, deteriorated, and deteriorating areas and the prevention of the spread or development of blight in, and the deterioration of, areas which are free of blight are public uses and purposes requiring the exercise of the governmental powers of the City of Baltimore in the public interest.” Subsection b referred to the fact “that some slum or blighted or deteriorated areas, or portions thereof, may require comprehensive acquisition, clearance, and disposition with or without prior development or redevelopment, since the prevailing conditions of decay may make impracticable the reclamation of the area by conservation or rehabilitation . ...” It then emphasized the following language: “that some such areas or portions thereof and some deteriorating areas