Green v. HIGH RIDGE ASS'N, INC.

ELDRIDGE, Judge. These two cases concern the propriety of Carroll County’s and Baltimore County’s exercise of eminent domain over two parcels of private property. The specific questions presented to this Court in both cases are whether each condemnation serves a “public use” in accordance with Article III, § 40, of the Maryland Constitution, 1 and whether each condemnation is “needed” or “required” for such public use in accordance with Maryland Code (1957, 1996 Repl.Vol.), Art. 25, § 11A(a)(1)(i), and Art. 25A, § 5(B). 2 ⁶⁸ I. As this opinion encompasses two separate cases, we shall discuss the facts of each case in turn. A. No. 125, Green v. High Ridge Association, Inc. The petitioners Aaron and Ruth Green own a 135 acre farm in Carroll County, a portion of which they plan to develop into thirteen residential lots.

This portion of the Greens’ property is adjacent to the High Ridge subdivision and is separated from the end of High Ridge Drive by an unimproved 750 square foot strip of land owned by the respondent High Ridge Association, Inc. Presently, this strip of land is used as a pedestrian pathway by homeowners, including the Greens, residing near and within the High Ridge subdivision. High Ridge Drive, which ends at this pedestrian pathway, is a public road owned and maintained by Carroll County. The Greens sought to extend the end of High Ridge Drive to their property line for ingress to, and egress from, their proposed residential development. The Greens contacted the County Commissioners of Carroll County, who directed the Carroll County Planning and Zoning Commission to study the possibility of condemning the 750 square foot strip of land.

In a report to the Planning and Zoning Commission, Commission staff members recommended acceptance of the Greens’ plan to develop their property and to extend High Ridge Drive to their property line. The recommendation was conditioned, however, upon the Greens “gain[ing] in-fee access to High Ridge Drive or demonstrating] the ability to build a County road across the fiffceen-foot-wide Homeowners Association strip to High Ridge Drive.” The Planning and Zoning Commission adopted its staffs conditional recommendation, determining that the “road in question was clearly laid out to extend to and intersect with the adjoining property line of the Aaron Green property.” The Commission further determined that any deviation from this original plan resulted from an “error” on the final recorded plat which “did not reflect what had been intended and approved.” After reviewing the findings of the Planning and Zoning Commission, the Carroll ⁶⁹ County Commissioners voted to condemn the 750 square foot strip of land in order to extend the public road. 3 The County Commissioners filed a complaint in the Circuit Court for Carroll County to condemn the 750 square foot strip of land. After a trial on the issue of the County’s right to condemn, the circuit court filed a memorandum and order concluding that the condemnation was authorized. Relying upon Anne Arundel County v. Burnopp, 300 Md. 343 , 478 A.2d 315 (1984), the circuit court held that because “the newly extended High Ridge Drive will be open to the public for use,” the condemnation of the strip was for a “public use.” Moreover, the court found “nothing in the decision [to condemn the property] itself or in the decision-making process which is so oppressive, arbitrary or unreasonable as to suggest bad faith.” Thereafter, the parties stipulated in the circuit court to the fair market value of the condemned property, and a judgment of condemnation was entered in favor of the County.

Two days later, the County paid the amount of the judgment into court. The Association filed a timely notice of appeal to the Court of Special Appeals. After the record and a joint record extract were filed with the intermediate appellate court, but before the submission of the County’s brief, the County filed in the Court of Special Appeals an “Election to Abandon” the condemnation. 4 The Court of Special Appeals rejected the ⁷⁰ election on the ground that a taking had already occurred. 5 As a result, the County elected not to participate further in the appeal, and the Greens were permitted to intervene. The Court of Special Appeals reversed, holding that the condemnation was not for a “public use” and was not “necessary.” High Ridge v. County Comm., 105 Md.App. 423 , 660 A.2d 951 (1995).

The intermediate appellate court explained ( 105 Md.App. at 436 , 660 A.2d at 957 ): “In neither the legislative proceedings authorizing the filing of the Complaint for Condemnation nor the Complaint itself does the County, other than by a bald claim of public purpose, proffer any public purpose objectives or necessity or proffer any evidence of any such purpose or necessity to justify condemnation of the private pedestrian path located in High Ridge Estates.” (Emphasis in original). The court continued as follows ( 105 Md.App. at 437-438 , 660 A.2d at 958 ): “The Commissioners’ decision to initiate condemnation in the case at bar was clearly and solely made to enhance the private interests of the Greens. In essence, the County was using its powers of eminent domain to give [the] Green[s] access to and through appellant’s private property. That is an inappropriate use of the condemnation power.

The County’s action was thus oppressive, arbitrary and unreasonable. The trial court erred in upholding the condemnation. On the basis of the record in the case sub judice, no rational inferences of a genuine public purpose are possible.” The Greens filed a petition for a writ of certiorari, challenging the holdings that the condemnation was not for a public use and that there was no necessity for the taking. The High Ridge Association filed a cross-petition for a writ of certiorari, arguing that the Court of Special Appeals erred in permitting ⁷¹ the Greens to intervene.

This Court granted the Greens’ petition and denied the Association’s cross-petition. Green v. High Ridge Association, 341 Md. 30 , 668 A.2d 422 (1995). B. No. 126, Baltimore County v. Godlewski The subject parcel of land, 30 foot wide and 144 foot deep, is located in the community of Miller’s Island in southeast Baltimore County. 6 The parcel is one of 12 road ends terminating at the waters of Hawk Cove at the mouth of Back River. This strip of land is at the end of 4th Street and is adjacent to property owned by Allan and Sharon Godlewski.

On March 21, 1991, Rose Sapperstein and the White Eagle Polish-American Building & Loan Association of Baltimore City, Inc., deeded the 4th Street road end to the Godlewskis. Baltimore County also maintains an easement in this parcel “to lay, construct and maintain sewers, drains, water pipes and other municipal utilities and services,” granted to it by Sapperstein on November 16,1984. Fearing the termination of their access to Hawk Cove after the sale of the 4th Street road end, local homeowners petitioned county officials for the condemnation of all 12 road ends “to preserve access to Hawk Cove by residents for emergency purposes, for flood control and for recreational use.” Thereafter, the County agreed to the condemnation of the road ends between 1st and 12th Streets. The County then filed in the Circuit Court for Baltimore County a petition for condemnation of the 4th Street road ⁷² end. 7 At the trial, the Director of Recreation and Parks for Baltimore County testified that the property was being condemned (1) to insure that residents of Miller’s Island had access to Hawk Cove, (2) to insure that County emergency equipment could access the water through the road end, and (3) to insure the free flow of storm water to the Cove.

Other testimony showed that residents frequently accessed Hawk Cove over the 4th Street road end. Following the trial, the circuit court deified the petition, holding that the condemnation was not necessary and was not for a public purpose. The court rejected all three public purposes asserted by the County to justify the condemnation. The court reasoned that alternative access routes existed throughout Miller’s Island for emergency relief and that the County maintained an easement across the road end for flood and drainage control.

Furthermore, the court relied on the fact that there were existing public recreational areas near the community of Miller’s Island, stating: “[We] don’t live in a perfect world where you can walk out your door and do whatever you want---- We have to drive to go to a ball field or to a basketball court or to go fishing.” Baltimore County filed a timely notice of appeal, and, prior to argument in the Court of Special Appeals, this Court issued a writ of certiorari.

II

The right of a Maryland governmental body to exercise eminent domain is limited by Article III, § 40, of the Maryland Constitution, which requires that the taking of private property be “for public use” and that “just compensation be paid.” In addition, the statutory provisions applicable to these cases expressly provide that the property be “needed” or “required.” ⁷³ A. This Court has pointed out that “[n]o satisfactory single clear-cut rule regarding what is a public use, which can decide all cases, has yet been formulated.” Pr. George’s Co. v. Collington Crossroads, Inc., 275 Md. 171, 181 , 339 A.2d 278, 284 (1975). While the decision of whether a particular use is “public” is ultimately for the judiciary, a court will give weight to the determinations of the legislative and executive branches of government. City Council of Baltimore v. Chertkof, 293 Md. 32, 42-43 , 441 A.2d 1044, 1051 (1982); Pr.

George’s Co. v. Collington Crossroads, Inc., supra, 275 Md. at 190-191 , 339 A.2d at 288-289 ; Boswell v. Prince George’s Co., 273 Md. 522, 529 , 330 A.2d 663, 667-668 (1975); Herzinger v. City Council of Baltimore, 203 Md. 49, 62-63 , 98 A.2d 87 , 93 (1953); Riden v. Phila., B. & W.R.R. Co., 182 Md. 336, 342-343 , 35 A.2d 99, 102 (1943). Moreover, we have held that “public use” is not limited to circumstances where “the public ... literally or-physically [is] permitted to use the property taken by eminent domain.” Pr. George’s Co. v. Collington Crossroads, Inc., supra, 275 Md. at 182 , 339 A.2d at 284 . See, e.g., Williams v. Anne Arundel County, 334 Md. 109, 120-121 , 638 A.2d 74, 79 (1994) (“The decisions of this Court furnish multiple illustrations of ... public purposes despite the fact that there was also a benefit to privately owned property from which the public at large could rightfully be excluded”); City of Baltimore v. Chertkof, supra, 293 Md. at 42 , 441 A.2d at 1050 (“condemnation ... for urban renewal purposes ... embodies a broad concept of public use, not limited to actual use by the public, but rather to use benefitting the public”); Herzinger v. City of Baltimore, supra, 203 Md. at 60-61 , 98 A.2d at 92; Flaccomio v. City Council of Baltimore, 194 Md. 275, 278-280 , 71 A.2d 12, 13-14 (1950); Marchant v. Baltimore, 146 Md. 513, 521 , 126 A. 884, 887 (1924) (“The public character of the use to which the [properties] are devoted is not affected by the fact that they may not all be made available for the indiscriminate use of the public”); Pitznogle v. Western Md. R.R. Co., 119 Md. 673 , 87 A. 917 (1913); M. & C.C. of Baltimore v. Brengle, 116 Md. 342 , ⁷⁴ 348-349, 81 A. 677, 680 (1911); N.Y. Mining Co. v. Midland Co., 99 Md. 506, 514-516 , 58 A. 217, 221 (1904); New Central Coal Co. v. George’s Creek Coal & Iron Co., 37 Md. 537, 561 (1873) (condemnation of land for a privately owned railroad spur for the benefit of a private mining business constituted a public use, as “[i]t has ... been the settled policy of the State, for many years past, to stimulate [private mining] enterprise ... for the purpose of developing the large mineral resources in the western portion of the State”).

Although the meaning of “public use” under Article III, § 40, of the Constitution is broader than literal use by the members of the public, and while actual use of the condemned property by the general public is not necessary, nonetheless, when the general public is entitled to physically use the condemned property, the use is “public” for purposes of the constitutional provision. Thus, in Riden v. Phila., B. & W.R.R. Co., supra, 182 Md. at 342 , 35 A.2d at 102 , in holding that the condemnation of private property to construct a branch railroad line designed to serve only the Bowie Race Track constituted a “public use,” this Court emphasized: “In this State we have held that the words ‘public use,’ as written in our Constitution, mean use by the public.” Later the court reiterated ( 182 Md. at 345 , 35 A.2d at 103 ): “Since the branch line to Bowie Race Track will presumably be open to the general public, we hold that it is for public use, and that condemnation of land for that purpose does not violate the Declaration of Rights and the Constitution of Maryland or the Fourteenth Amendment of the Federal Constitution.” The Court in Riden also made it clear that the critical factor is the general public’s entitlement to use the property, and not whether a large segment of the general public would likely use the property ( 182 Md. at 344 , 35 A.2d at 103 ), saying: “If the branch line ... is open to the public ..., the number of people who will actually use it is immaterial.” See also, e.g., Webster v. Susquehanna Pole Line Co., 112 Md. 416, 426 , 76 A. 254 , ⁷⁵ 257 (1910) (“ ‘the test whether a use is public or not, is whether a public trust is imposed on the property; whether the public has a legal right to the use, which cannot be gainsaid or denied, or withdrawn’ ”); Arnsperger v. Crawford, 101 Md. 247, 253 , 61 A. 413, 415 (1905); N.Y. Mining Co. v. Midland Co., supra, 99 Md. at 514 , 58 A. at 221 . Consequently, the condemnation of private property for a public highway, street, or road constitutes a “public use” within the meaning of Article III, § 40. Since the members of the general public are entitled to use a public highway, street, or road, this Court has, without