Free State Realty Co. v. Mayor of Baltimore

Menchine, J., delivered the opinion of the Court. Purporting to act pursuant to the provisions of Article 21 of the Annotated Code of Maryland, Title “Real Property,” Subtitle XII 1 “Eminent Domain,” the Mayor and City Council of Baltimore (Condemnor or City) filed a condemnation petition for the property known as 2526 W. Franklin Street, in the City of Baltimore, against Free State Realty Company, a body corporate (property owner). The petition alleged, inter alia, that the subject property was “to be acquired for urban renewal purposes, namely, 26-H Project.” 2 Attached to the basic condemnation petition was a second petition for immediate possession and title under Article 4 of the Code of Public Local Laws, Subtitle 21-16, as amended by Chapter 420 of the Laws of Maryland, 1972. Property owner filed an answer resisting condemnor’s claim ¹³ of entitlement to immediate possession and title, serving to bring the cause on for hearing in the Court of Common Pleas upon the issue in accordance with the statute.

On July 23, 1975 the following order was passed: “The Court finds that it is necessary for the Petitioner, Mayor and City Council, to acquire immediate possession and title to said property interest as alleged in Paragraph Two of said Petition. “The Court specifically finds 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 Petitioner. “Relief prayed by Petitioner is hereby granted.” On appeal, property owner broadly attacks as unconstitutional the power of the Mayor and City Council of Baltimore to condemn in the circumstances of the subject case, as well as the form and sufficiency of the action itself. We see no constitutional, statutory or procedural deficit. Constitutional and Statutory Authority The constitutional base supporting the subject action is to be found in Article XI-B of the Maryland Constitution. In appropriate part it reads as follows: “SECTION 1.

AUTHORITY TO BALTIMORE CITY TO ACQUIRE AND DISPOSE OF PROPERTY. The General Assembly of Maryland, by public local law, may authorize and empower the Mayor and City Council of Baltimore: (a) To acquire, within the boundary lines of Baltimore City, land and property of every kind, and any right, interest, franchise, easement or privilege therein, by purchase, lease, gift, condemnation or any other legal means, for development or redevelopment, including, hut not ¹⁴ limited to, the comprehensive renovation or rehabilitation thereof; and “All land or property needed, or taken by the exercise of the power of eminent domain, by the Mayor and City Council of Baltimore for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the Mayor and City Council of Baltimore pursuant to this Article is hereby declared to be needed or taken for a public use. “SECTION 2. ADDITIONAL POWERS AND RESTRICTIONS. The General Assembly of Maryland may grant to the Mayor and City Council of Baltimore any and all additional power and authority necessary or proper to carry into full force and effect any and all of the specific powers which the General Assembly is authorized to grant to the Mayor and City Council of Baltimore pursuant to this Article and to fully accomplish any and all of the purposes and objects contemplated by the provisions of this Article, provided such additional power or authority is not inconsistent with the terms and provisions of this Article or with any other provision or provisions of the Constitution of Maryland.

The General Assembly may place such other and further restrictions or limitations on the exercise of any of the powers which it may grant to the Mayor and City Council of Baltimore under the provisions of this Article as it may deem proper and expedient.” (Emphasis supplied.) The breadth of scope of Maryland Constitution Article XI-B, in its present form was commented upon in Master Royalties v. Baltimore City, 235 Md. 74 , 200 A. 2d 652 (1964), the Court declaring that it embodies “a broader concept of public use, and it is clear that under the express language ¹⁵ ... the powers of eminent domain may be exercised by the City (if authorized by the General Assembly) to acquire property for redevelopment----” (at 84 [657]) The Court added, at the same page: “Such provisions of the State Constitution could not be unconstitutional unless they were in conflict in some way with the Federal Constitution The Court in Master Royalties, supra, after discussing Federal due process and equal protection aspects of condemnations for area development or redevelopment found no constitutional deficit in the proceedings there under consideration. The holding in Master Royalties , there dealing with a particular urban renewal plan designed for rehabilitation of a “slum blighted or deteriorated area,” was that the táking was for a public purpose and that it was unnecessary to “condemn all at once.” The Legislature, in the exercise of the power and authority conferred upon it, granted certain powers of condemnation to the Mayor and City Council of Baltimore by statutes now codified as Article II, § 15 Charter of Baltimore City (1964 Revision). Section 21-16 of the Code of Public Local Laws of Baltimore City (1969) (as amended by Ch. 420 (Acts of 1972)) provided the authority to utilize “quick take” procedures. These statutes, in parts here pertinent, read as follows: Article II, § 15 “The Mayor and City Council of Baltimore shall have full power and authority ...

(a) To acquire, within the boundary lines of Baltimore City, land and property of every kind, and any right, interest, franchise, easement or privilege therein, including land or property and any right or interest therein already devoted to public use, by purchase, lease, gift, condemnation or any other legal means, for development or redevelopment, including but not limited to, the comprehensive renovation or rehabilitation ¹⁶ thereof; provided, however that any land or property owned by the State of Maryland or the Housing Authority of Baltimore City shall not be acquired by the Mayor and City Council of Baltimore without the prior consent of the State or the Housing Authority of Baltimore City, as the case may be; (b) To develop or redevelop, including but not limited to, the comprehensive renovation or rehabilitation of, any and all land or property acquired by any of the methods hereinbefore mentioned. (g) To vest jurisdiction or authority to exercise or perform all or any part of the aforegoing powers in any suitable board, commission, department, bureau or other agency of the Mayor and City Council of Baltimore now in being or in any new board, commission, department, bureau or agency of the Mayor and City Council of Baltimore, which it is hereby empowered to create and establish for such purposes;. . . .” Section 21-16, As Amended “21-16. Condemnation; immediate taking. (a) Petition for immediate possession.

Whenever any proceedings are instituted under Article 33A [now 21] of the Code of Public General Laws of the State of Maryland by the Mayor and City Council of Baltimore for the acquisition of any property for any public purpose whatsoever, the Mayor and City Council of Baltimore, simultaneously with the filing of said proceedings or at any time thereafter, may file a Petition under oath stating that it is necessary for the City to have immediate possession of or immediate title to, and possession of said property, and the reasons ¹⁷ therefore, and that the necessity for immediate taking is not because of any substantial fault or neglect of the City. The City shall also set forth in said Petition for Immediate Taking of possession or immediate taking of title the amount it estimates to be the fair value of the said property and/or title to be acquired, and of the respective interests of each of the owners thereof if more than one, which shall be substantiated by the Affidavits of two qualified appraisers, attached to said Petition. The City shall deposit into Court simultaneously with the filing of said Petition the amount of said estimate of the fair value of the property to be acquired. (b) Upon the filing of any such Petition for Immediate Taking of possession, the Court may direct the City to give such notice to the Defendants as the Court may deem proper.

The Court may set the matter for hearing on the Petition, but any such hearing shall be held within seven days from the date of the filing of such Petition; otherwise, the Court shall act on said Petition exparte within said seven day period. (c) In cases where the City files a Petition for immediate taking of title and