Maryland-National Capital Park & Planning Commission v. Chadwick

Murphy, C. J., delivered the opinion of the Court. The central issue in this case is whether the appellant, Maryland-National Capital Park and Planning Commission (the Commission), by placing the appellees’ land in public “reservation” without their consent for a period not to exceed three years, as authorized by § 50-31 (a) of the Montgomery County Code (1972, 1977 Repl. Vol.), unconstitutionally deprived the landowners of the use of their property without payment of just compensation. (1) The Commission is a state agency authorized by Maryland Code (1957, 1978 Repl.

Vol.), Art. 66D, § 5-101 (a) and (b) to acquire, by purchase or condemnation, land or other property within the Maryland-Washington Metropolitan District, comprising Montgomery and Prince George’s Counties, for “parks, parkways, forests, streets,... [for] the purposes of public recreation or the construction of public recreation centers....” The Commission is empowered by § 7-108 to prepare general and master plans for the development of the regional district, and it is responsible for coordinating planning, zoning and recreational activities within Prince George’s and Montgomery Counties. See generally O & B, Inc. v. Md.-Nat’l Cap. P. & P., 279 Md. 459 , 369 A.2d 553 (1977). The Commission is required by § 2-118 (a) to submit to the county executives of the two counties an annual capital and operating budget containing, among other items, proposed expenditures for property acquisitions.

In addition, it is required to prepare a Capital Improvement Program (CIP), which is an annually updated plan of “all programmed parkland acquisition, all major parkland improvement, development and major acquisition of equipment” to be completed over a six-year period. § 2-118 (b). The CIP is submitted to the governing bodies of the two counties which may adopt, amend or modify it after conducting a public hearing. Although the CIP identifies all lands scheduled for acquisition within the six-year period, no allocation of funds for such acquisitions is included in the Commission’s annual ⁴ capital budget beyond those scheduled for the first of the six-year program. Under § 7-115 (a), the Commission’s approval is required before any subdivision plat within the regional district may be recorded in the land records of Montgomery or Prince George’s Counties.

The Commission is empowered under § 7-116 (a) (4) to prepare subdivision regulations which may provide for “the reservation of lands for schools and other public buildings and for parks, playgrounds, and other public purposes, provided no reservation of land for traffic, recreation or any other public purposes as herein provided shall continue for longer than three years without the written approval of all persons holding or otherwise owning any legal or equitable interest in the property; and provided further that the properties reserved for public use shall be exempt from all State, county, and local taxes during the period.” Pursuant to the state enabling legislation, Montgomery County adopted an ordinance authorizing the placement of land in public reservation. Under the provisions of the ordinance — § 50-31 (a) of the County Code — the Commission’s Planning Board for Montgomery County, which is authorized to administer subdivision regulations in that jurisdiction, is required to “refer all preliminary subdivision plans to the general plan or parts thereof, adopted or proposed or studies related thereto, or shall otherwise determine the need for reserving for public use any of the land included in the preliminary subdivision plan.” The ordinance specifies that reservations “for a period of three years may be required for road or street rights of way, public school and building sites, parks, playgrounds or other recreational areas or other public purposes.” The ordinance also provides that placement of land in public reservation shall be by resolution of the Commission, which shall state the time, not over three years, that the reservation will be effective. ⁵ Under the provisions of the ordinance, property in reservation is exempt from all state, county and local taxes, § 50-31 (a) (3). It is also subject to restrictions on its use, as detailed in § 50-31 (a) (5): “(5) PRESERVATION. During the reservation period, no building or structure shall be erected upon the land so reserved.

No trees, topsoil or cover shall be removed or destroyed; no grading shall be done; no storm drainage structure shall be so built as to discharge water on the reservation except for storm drainage construction in accordance with a storm drainage plan approved by the department of public works or the Washington Suburban Sanitary Commission; nor shall any land so reserved be put to any use whatsoever, except upon written approval of the board. Nothing in this section shall be construed as prohibiting the owner from removing weeds or trash from property so reserved, nor from selling when approved by the board such parts of the land as may be necessary for water, sewer or road right of way for public agencies.” (Emphasis added.) Nothing in the state enabling act, or in Montgomery County’s implementing ordinance, obligates the Commission to acquire property placed by it in reservation, either during or at the expiration of the reservation period. No provision is made for payment of compensation to the property owner, for the time that his property is held in reservation, whether or not it is ultimately acquired by the Commission. (2) Appellees George Chadwick, Jr. and members of his family (the Chadwicks) own a 105-acre tract of land located on the south side of Old Baltimore Road and on the west side of Ten Mile Creek, north of Boyds, Maryland.

The property is zoned R-200, which permits one-half acre lots, and has road access by Ten Mile Creek Road. The Chadwicks purchased the property in 1965 as part of a tract containing 159.71 acres. When it was determined, as part of the Clarksburg Master ⁶ Plan, that approximately 55 acres of the Chadwick tract were within the Commission’s park take line for the expansion of Seneca Regional Park and proposed Lake Site No. 3, the Commission placed this acreage in reservation in 1973 with the consent of the Chadwicks. After the expiration of the three-year reservation of the 55-acre tract, the Chadwicks filed a preliminary plan of subdivision for the entire 159-acre tract.

The Commission thereupon purchased the 55 acres previously held in reservation. The Chadwicks thereafter renewed their request for subdivision approval of the preliminary plan for the remainder of the tract; it complied fully with all requirements of law at the time it was presented to the Board on January 26, 1978. The Board’s staff recommended that the property be placed in reservation because it was within the Commission’s park take line for Little Seneca Regional Park and within the limits of Lake Site No. 3, as shown on the Final Draft Boyds Master Plan. On April 6, 1978, the Chadwicks’ plan of subdivision was denied and the Commission placed the property in reservation for a period not to exceed three years, as authorized by § 50-31 of the County Code.

The Commission’s action was taken in accordance with the Board’s Staff recommendation, and because construction of the dam site at Lake Site No. 3 would flood a portion of Ten Mile Creek Road, in effect denying access to the road serving the proposed subdivision. By the Boyds Master Plan, adopted by the Montgomery County Council on May 9, 1978, the Chadwicks’ property was shown to lie within the Commission’s park take line and within the limits of Lake Site No. 3. On May 15, 1978, the Montgomery County Council adopted the Commission’s CIP, which recommended total acquisition of all lands, including the Chadwicks’ property, within the park take line for Little Seneca Regional Park during the succeeding three-year period (Fiscal Years ’79, ’80, and ’81). On April 25, 1978, the Chadwicks filed suit in the Circuit Court for Montgomery County, seeking the issuance of a writ of mandamus directing the Commission to approve their preliminary subdivision plan, and requesting a declaratory ⁷ judgment that the reservation of their property and any statute requiring such reservation were unconstitutional as a taking of property without payment of just compensation.

The court (McAuliffe, J.) held that the Commission’s resolution placing the Chadwicks’ property in public reservation under § 50-31 of the County Code was unconstitutional and it ordered the Commission to approve the preliminary subdivision plan. In so concluding, the court noted that the State “may not indefinitely withhold permission for the otherwise permitted development of the land simply because long-range plans provide for different use.” It analyzed the Commission’s action in terms of its reasonableness as an exercise of police power, and weighed the landowners’ deprivation of use of their property against the public interest sought to be served by the restriction. The court found it “crystal clear that [the Chadwicks] have been deprived of all reasonable use of their property during the period of the reservation.” It recognized, however, that a total deprivation of use may be reasonable “if for a very limited period of time.” It therefore focused upon the period of the reservation, concluding that “a complete deprivation of all use of the property for a period of up to three years constitutes a taking which must be compensated.” Because the ordinance did not provide for compensation, the court said that it was unconstitutional “as applied in this case.” It specifically refrained from declaring that the ordinance was “wholly unconstitutional” because it believed that it could be employed to authorize a reservation for a time sufficiently short as not to constitute a “taking” in the constitutional sense. We granted certiorari prior to determination by the Court of Special Appeals of the Commission’s appeal to consider the important constitutional issue involved in the case.

(3) The Commission argues that the placement of private property in a tax-free reservation for up to three years, where the property is located within a master plan’s lines for future acquisition as a public park is a legitimate and necessary ⁸ regulation on private property, and a valid exercise of the police power, which may be imposed without payment of compensation. The Commission suggests that all use of the Chadwicks’ property has not been destroyed by placing it in reservation, since under the ordinance the landowners may apply to the Board to use the property for any purpose not inconsistent with the future public use of the land. The Chadwicks claim that the Commission’s action constitutes a taking of all reasonable use of the property for a public benefit without payment of just compensation, in violation of Maryland Constitution, Art. Ill, § 40, which provides: “The General Assembly shall enact no law authorizing private property, to be taken for public use, without just compensation.....” 1 The Chadwicks acknowledge that there may be limited and reasonable applications of the reservation ordinance — reasonableness being determined by the period of time estimated for the completion of acquisition. They maintain that a three-year reservation is an unreasonable period and constitutes a taking of the property since, in their view of the ordinance, the only “right” remaining to them to use their property is to remove weeds and trash from the land.

(4) The power of the state over private property extends from the regulation of its use and enjoyment under the police power, to its actual appropriation under the eminent domain power upon payment of just compensation. The distinction between the two governmental powers is an important one because a taking for public use without compensation can be corrected by payment, while a governmental action that violates due process requirements may be invalidated, without regard to whether compensation is provided. Our cases have recognized and applied the distinction between a compensable taking under the eminent domain power and a noncompensable regulation under the police power. See, e.g., ⁹ Governor v. Exxon Corp., 279 Md. 410, 423-38 , 370 A.2d 1102 (1977), aff’d, 437 U.S. 117 (1978); Bureau of Mines v. George’s Creek, 272 Md. 143, 165-66 , 321 A.2d 748 (1974); Rockville Fuel v. Gaithersburg, 266 Md. 117, 127-28 , 291 A.2d 672 (1972); Stevens v. City of Salisbury, 240 Md. 556, 563-66 , 214 A.2d 775 (1965).

We have consistently upheld regulations which may have, as an incidental effect, the diminution of value of property, so long as those regulations have been shown to be fair exercises of the police power. See, e.g., State Dep’t of A. & Tax. v. Clark, 281 Md. 385 , 380 A.2d 28 (1977); Mont. Co. v. Woodward & Lothrop, 280 Md. 686 , 376 A.2d 483 (1977), cert. denied sub nom. Funger v. Montgomery County, 434 U.S. 1067 (1978); Bureau of Mines v. George’s Creek, supra; City of Annapolis v. Anne Arundel Co., 271 Md. 265 , 316 A.2d 807 (1974); Arnold v. Prince George’s Co., 270 Md. 285 , 311 A.2d 223 (1973); Potomac Sand & Gravel v. Governor, 266 Md. 358 , 293 A.2d 241 , cert. denied, 409 U.S. 1040 (1972); Baltimore City v. Borinsky, 239 Md. 611 , 212 A.2d 508 (1965).

A regulation which prohibits a beneficial use of private property constitutes a fair exercise of the police power if the public interest generally requires it and the regulation is reasonably necessary to achieve the public goal without being unduly oppressive upon individuals. Potomac Sand & Gravel v. Governor, supra. See also Edgewood Nursing Home v. Maxwell, 282 Md. 422, 426 , 384 A.2d 748 (1978) (a fair exercise of police power requires a proper public purpose and means which bear a real and substantial relation to the end sought to be achieved without being arbitrary or capricious); Governor v. Exxon Corp., supra; Bruce v. Director, Dep’t of Chesapeake Bay Affairs, 261 Md. 585 , 276 A.2d 200 (1971). When the State, pursuant to a proper exercise of its police power, regulates the uses to which private property may be put, no compensation need be paid for any diminution in value of property caused by the regulation.

Penn Central Transp. Co. v. City of New York, 438 U.S. 104 , 98 S. Ct. 2646 , 57 L. Ed. 2d 631 (1978); Bureau of Mines v. George’s Creek, supra; Arnold v. Prince George’s Co., 270 Md. 285 , 311 A.2d 223 (1973); Krieger v. Planning Commission, 224 Md. 320 , 167 A.2d 885 (1961). However, we have recognized that a ¹⁰ governmental action, while not rising to the status of a compensable “taking” of property, may amount to an invalid deprivation of property rights without due process of law, either because the purpose of the action was improper, see, e.g., Hoyert v. Bd. of County Comm’rs, 262 Md. 667 , 278 A.2d 588 (1971) (attempt to depress value of property in anticipation of subsequent condemnation); Carl M. Freeman, Inc. v. St. Rds. Comm’n, 252 Md. 319 , 250 A.2d 250 (1969) (sole purpose of ordinance is to freeze land values) or because the means chosen were too burdensome on the individual property owner.

See, e.g., Spaid v. Board of Co. Comm’rs, 259 Md. 369 , 269 A.2d 797 (1970) (“buffer zoning” to establish a border of vacant property around a residential neighborhood). See also Morris County Land I. Co. v. Parsippany-Troy Hills Tp., 40 N.J. 539 , 193 A.2d 232 (1963) (valid public purpose cannot be achieved by excessive zoning restriction on use of private property); Jensen v. City of New York, 42 N.Y.2d 1079 , 399 N.Y.S.2d 645 , 369 N.E.2d 1179 (1977) (plotting all of property owner’s land on official street map deprives him of use of property for an indefinite period in violation of due process of law); Fred F. French Inv. Co. v. City of New York, 39 N.Y.2d 587 , 385 N.Y.S.2d 5 , 350 N.E.2d 381 , appeal dismissed, 429 U.S. 990 (1976) (rezoning which deprives owner of reasonable income productive or other private use of property violates due process requirement); Miller v. Beaver Falls, 368 Pa. 189 , 82 A.2d 34 (1951) (plotting property for parkland without payment of compensation). We have also recognized that the State “cannot under the guise of the police power take private property for public use without compensation.” Capital Transit Co. v. Bosley, 191 Md. 502, 514 , 62 A.2d 267 (1948).

In zoning cases, in determining whether the challenged zoning regulation amounts to a taking of private property, we have said that no compensable taking occurs so long as the zoning regulation does not deprive the owner of “all beneficial use of the property.” Baltimore City v. Borinsky, supra at 622. Accord, Cabin John Limited Partnership v. Montgomery County Council, 259 Md. 661 , 271 A.2d 174 (1970); Montgomery County Council v. Kacur, 253 Md. 220 , 252 A.2d 832 (1969). But see Frankel v. ¹¹ City of Baltimore, 223 Md. 97 , 162 A.2d 447 (1960) (successful challenge to residential zoning, which was shown to have deprived owner of all reasonable use of his property). Likewise, where a zoning ordinance would force a property owner to destroy or reduce