Kelso Corp. v. Mayor of Baltimore

Melvin, J., delivered the opinion of the Court. On March 14, 1978, the Mayor and City Council of ¹²¹ Baltimore (City) filed in the Court of Common Pleas a condemnation petition for property owned by Kelso Corporation (Kelso), the appellant. The property consisted of five unimproved lots known as 609, 611, 613, 615 and 617 W. Saratoga Street in Baltimore. The petition alleged, inter alia, that the property was “to be acquired for Urban Renewal Purposes, namely, CDBG-I, Orchard-Biddle Site” and cited Ordinance No. 32, approved April 10, 1972, as the City’s authority to acquire the property.

The City also filed on March 14,1978, a second petition for immediate possession and title, purporting to act pursuant to the City’s “quick take” condemnation procedures provided by Section 12-16 of the Code of Public Laws of Baltimore City (1969 ed., 1977 cum. supp.). On the same day the two petitions were filed, March 14, 1978, the court passed an order that 1. ) Ordered that the City be vested with possession of Kelso's property; and 2. ) Ordered that title to the property “shall vest” in the City “ten (10) days after personal service” upon Kelso of the quick take petition and “this Order.” The order further provided that the “vesting of such possession or title and possession in the ... [City] shall in nowise act as a bar to trial of this matter to determine the fair value ... [of the property] in accordance with the applicable provisions of law applicable thereto.” The record shows that copies of the two petitions and the March 14th order were served on Kelso on April 17,1978 and that on April 24,1978, Kelso filed an “Answer to Petition for Immediate Possession and Title and Motion to Vacate Order.” The answer alleged, for various reasons, that the City “lacks the power and/or right to condemn title to the properties in question.” The answer prayed that the quick take petition be dismissed and that the March 14th order be vacated. The answer also alleged that it was “not necessary for the ... [City] to acquire possession and/or title to the properties____” There is an indication in the record that a hearing on the ¹²² petition and answer was scheduled for June 20,1978, but was postponed for reasons unrevealed by the record. The hearing was finally held on January 19, 1979, after which the court passed an order, filed February 2, 1979, denying the relief requested.

In a shotgun like attack, the appellant contends here that the court below erred. As we point out, infra, we agree that the order of February 2,1979 needs to be modified, but as modified we shall affirm it; otherwise, the various reasons urged for reversal and our reasons for finding them to be without merit follow. I Appellant contends that various alleged procedural defects “renders the petition for immediate possession and title invalid.” (1) Appellant first contends that it was not given an opportunity to accompany the City’s appraisers during their inspection of the property. Real Property Article, Title 12, Eminent Domain, of the Md. Code, § 12-207, provides that “[i]f a public agency acquires land, it shall be guided to the greatest extent feasible by the policies set forth in this section.” Among the policies set forth are that the agency “shall make every reasonable effort to acquire expeditiously land by negotiation” (§ 12-207 (b)), and that “[l]and shall be appraised before the initiation of negotiations, and the owner ... shall be given an opportunity to accompany the appraiser during his inspection of the property.” (§ 12-207 (c)).

In the instant case, the two managing officers of the appellant both testified, without contradiction, that no one contacted them “for the purpose of appraising this property” and that neither of them “accompanped] any appraiser when he appraised the property.” Appellant argues that the City’s failure to give it “an opportunity to accompany the' appraiser” voids the entire proceedings. We disagree. The provisions of Real Property Article, § 12-207 (c), are not contained in ¹²³ Baltimore City’s quick take statute. Assuming without deciding that they are, nevertheless, applicable to the City’s quick take proceedings, 1 we hold that § 12-207 (c) is directory only and that failure to comply with the particular “policy” set forth therein does not vitiate the entire proceedings — at least where, as in the instant case, no prejudice resulting from such failure has been shown.

(2) Appellant next contends that the appraisals filed with the quick take petition supporting the amount of money deposited into court as the City’s estimate of the fair value of the property were “stale”. The quick take statute requires that the amount deposited in court as the City’s “estimate” of the fair value of the property to be acquired “be substantiated by the Affidavits of two qualified appraisers, attached to said Petition.” In this case, the affidavits of one appraiser, stating his opinion of value, were dated September 13,1977, as to all five lots. The affidavits of a second appraiser, stating his opinion, were dated August 26, 1977, as to four of the lots, and February 2,1978, as to one of the lots. As already noted, the quick take petition was filed March 14, 1978.

Appellant argues that because the amount deposited did not represent the value of the property “at the time of the taking”, the court had no right to vest title in the City by its order of March 14,1978. 2 The argument is without merit. In Dunne v. State, 162 Md. 274, 284 , 159 A. 751, 755 (1932), the Court of Appeals said: “... Neither the State nor any agency thereof can exercise the right of eminent domain except by ¹²⁴ condemnation proceedings wherein compensation is determined, and that compensation paid, tendered, or secured to the property owner; and title to such property sought to be taken does not pass from the owner until such payment be made or secured." (Emphasis added). The City’s quick take statute does secure to the property owner just compensation.

The payment into court of the City’s estimate of fair value is specifically provided by the statute to be “without prejudice to either party and shall not be construed to prevent either party from requiring a subsequent trial to determine the value of the property.” See subsection (g) of the quick take statute. As already noted, the March 14th order vesting title in the City specifically so provided. Moreover, although it would have been better to have more current appraisals, we think the appraisals used here, on their face, were not so old as to require a holding invalidating the March 14th order. (3) The appellant next contends that the City’s quick take petition was not filed “under oath” as required by the statute.

Subsection (a) of the statute requires the petition to be “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 therefore [sic].” In this case, paragraph 2 of the quick take petition alleged that “it is necessary for Petitioner to acquire immediate possession of and title to said property ... as appears from the affidavit of Jerome M. Katz, Land Acquisition Officer, Department of Housing and Community Development, attached hereto and prayed to be taken as a part hereof.” (Emphasis added). Two forms of paper writing were attached to the petition, both of them signed by Mr. Katz and a Notary Public. The first paper was indeed in the form of an “affidavit” rather than an “oath”, for in it Mr. Katz “made oath that the matters and facts set forth in the ... [Petition] ¹²⁵ are true to the best of his information, knowledge and belief.” See Md. Rule 5 (c). In the second form attached to the petition, however, Mr. Katz “made oath in due form of law that it is necessary for the ... [City] to have immediate possession and title ... of the property ... to expedite the development of highway expansion under Urban Renewal in the Community Development Block Grant — CDBG-I Orchard-Biddle Site” and that “[i]n order to make the Urban Renewal Plan feasible, the within property must be in possession of the ... [City] at the earliest possible time to allow for the commencement of highway expansion.” The appellant does not attack this second attachment to the petition — indeed does not mention it in its brief in connection with his “no oath” argument.

Under the circumstances, we reject the argument as devoid of merit. The fact that the first “affidavit” was not technically within the definition of an “oath” does not require a holding that the petition, together with the second attachment, does not comply with the statute. See Segall v. City of Baltimore, 273 Md. 647 , 331 A.2d 298 (1975). II In addition to the