Mayor of Baltimore City v. Valsamaki

²²⁶ CATHELL, J. This case arises from a “quick-take” condemnation 1 by the Mayor and City Council of Baltimore (“the City”), appellant, of a property located at 1924 N. Charles Street (“the Property”) in Baltimore, Maryland. The Property consists of a three story building which houses a bar and package goods store known as the Magnet. 2 On March 9, 2006, the City filed a petition for condemnation and a petition for immediate possession and title with the Circuit Court for Baltimore City. On March 15, 2006, prior to the property owner being served with any papers, the Circuit Court granted the City’s petitions, ordering that the City “be vested with possession of the fee simple interest in that property known as 1924 N. Charles Street ... as of the 15th day of March, 2006.... ” Pursuant to the court’s order, title in the Property would vest in the City ten days after personal service of the relevant order on the owner of the Property, George Valsamaki, et al., appellee, unless he filed an answer to the City’s petitions 'within the ten day period “alleging that the City does not have the right or power to condemn title to the property____” Mr. Valsamaki filed an answer within the requisite time period and a hearing was scheduled and held on April 18, 2006. On May 19, 2006, the Circuit Court issued a memorandum opinion denying the City’s petitions for condemnation and ²²⁷ immediate possession and title to the Property.

On August 8, 2006, after a motion to reconsider had been denied, the City noted a direct appeal to this Court. 3 The City presents one question for our review: “Does the City have the burden to prove ‘necessity’ to proceed with a quick take condemnation?” We answer this question in the affirmative, holding that under the Code of Public Local Laws of Baltimore City, § 21-16(a), 4 ²²⁸ the City must demonstrate the reason or reasons why it is necessary for it to have immediate possession and immediate title to a particular property via the exercise of a quick-take condemnation. I. Facts This case has its genesis in Baltimore City’s urban renewal efforts. On October 25, 1982, the Mayor and City Council of Baltimore adopted Ordinance No. 82-799, which established the Charles North Urban Renewal Plan for the Charles North Revitalization Area. 5 Ordinance No. 82-799 sets forth the goals ²²⁹ and objectives of the Charles North Urban Renewal Plan as follows: “The basic goal of this Urban Renewal Plan is the revitalization of the Charles/North area in order to create a unique mixed-use neighborhood with enhanced viability, stability, attractiveness, and convenience for residents of the surrounding area and of the City as a whole. The objectives of this Plan include: a. protecting existing residential neighborhoods; b. establishing a positive and identifiable image for the Charles/North Area compatible with the surrounding residential areas; c. accommodating the expansion of existing retail small business; d. promoting new retail business activity in the area; e. establishing and enforcing uniform comprehensive design and rehabilitation standards that will enhance the physical environment of the business area through private investment; f. bringing about a general physical improvement of the area through coordinated public improvements; g. providing a pleasant environment for the staging of year-round promotional activities and events; and h. removing blighting influences and creating development lots for commercial uses.” The Property is located within the boundaries of the Charles North Revitalization Area.

In June 2004, the Mayor and City ²³⁰ Council of Baltimore amended the Charles North Urban Renewal Plan by Baltimore City Ordinance No. 04-695, which specifically authorized the acquisition of the subject Property “by purchase or by condemnation, for urban renewal purposes .... ” The issue before us arose on March 9, 2006, when the City acted on Ordinance No. 04-695 and filed a petition for condemnation and a petition for immediate possession of and title to the Property in the Circuit Court for Baltimore City. The petition for condemnation stated in pertinent part: “[The City] is duly authorized to acquire the Property Interest hereinafter described [the Property] for public purposes by the following Ordinance(s) of the Mayor and City Council of Baltimore, viz: Article 13 § 2—7(h)[ 6 ] of the Baltimore City Code (2000 edition), approved November 11, 1999 and Ordinance No. 04-695, approved June 23, 2004.” “This property will be used for redevelopment purposes; namely in the Charles North Project area.” ²³¹ The petition for immediate possession and title stated in pertinent part: “That it is necessary for [the City] to acquire immediate possession and title to the said property interest as appears from the affidavit of William N. Burgee, Director of Property Acquisition and Relocation, Department of Housing and Community Development, attached hereto and prayed to be taken as a part hereof.” Relevantly, the attached affidavit read: “The property known as 1924 N. Charles Street, Block 3602, Lot 04[,] must be in possession of the Mayor and City Council of Baltimore at the earliest possible time in order to assist in a business expansion in the area.” [Emphasis added]. There was no attempt in the affidavit to specify the immediacy of the necessity other than a general statement that it was needed “at the earliest possible time” “to assist in a business expansion.” There was no discussion of “why.” 7 On March 15, 2006, the Circuit Court granted the City’s petitions, as discussed supra. Mr. Valsamaki, the owner of the Property, timely filed an answer challenging the City’s power to condemn title to the Property and a hearing was set for April 18, 2006.

Prior to the April 18, 2006, hearing, Mr. Valsamaki attempted to obtain discovery by serving interrogatories and notices of depositions on various city officials involved with the Charles North Urban Renewal Plan, namely, Mr. Burgee and Paul J.M. Dombrowski (an official at the Baltimore Development Corporation responsible for the Charles North Project). Due to the abbreviated time period in which quick-take condemnation proceedings generally take place, the City would not have to respond under the normal discovery time line before the April 18, 2006, hearing. 8 Therefore, Mr. Valsamaki ²³² moved to shorten the time for discovery in order to ensure a response before the hearing. On April 4, 2006, the Circuit Court for Baltimore City denied that motion and, consequently, the City did not comply with the discovery requests prior to the April 18, 2006, hearing, and Mr. Valsamaki was forced to litigate without the aid of discovery practices, practices that would have been available in a regular condemnation action. On April 18, 2006, the hearing took place.

The Charles North Urban Renewal Plan, illustrated by Ordinance No. 82-799, was introduced into evidence by the City, along with Ordinance No. 04-695, a map of the renewal area, and a photograph of the Property. The City called two witnesses at the hearing. The first witness was Mr. Dombrowski, the Director of Planning and Design for the Baltimore Development Corporation and also the Project Manager for the Charles North area. On cross examination by Mr. Valsamaki’s counsel, the following colloquy occurred: “Q Were you aware of the Affidavit by Mr. Burgee stating the necessity for, the reason for, necessity for the taking?

A I was aware that an Affidavit had been presented to the Law Department.[ 9 ] ²³³ Q And are you aware of the contents of that Affidavit? AI had not reviewed it before it was sent. Q Do you know what is meant by a business expansion in the area? A I think so.

It means, to us, at least, the opportunity to provide for additional business expansion opportunities. Q Is there any plan for the development of this property? A The specific property? Q Yes.

A Not as yet became the procedure we follow is through a request for proposal procedure as you well know. Q So— A When we assemble the site, we put it out for public offering for redevelopment. Q So when the Amendment was adopted in '04, the City really didn’t have any idea what it was going to use the property for? A We wanted mixed use development, but we had no specific plans because they follow on with the proposals.

They come in as part of a proposal. Q But you really, at this point in time, and at the time you adopted the amendment, you really didn’t have any plan for this property; did you? A Did not have a specific plan for the property. We are seeking mixed use development for that assemblage of properties. ²³⁴ Q That onset of seeking mixed use development, is that set forth in Exhibit 1 at all?

AI believe so. I believe the— Q Could you point that out, then? THE COURT: I’m sorry. Mr. Clerk, could you hand this back, please, to Counsel while he’s—thank you.

A I’m referring ... to page 1 of the Urban Renewal Plan, the very bottom of the page, ‘Item 2, Plan Objectives.[ 10 ] The basic goal of this Urban Renewal Plan is the revitalization of the Charles North area in order to create a unique mixed-use neighborhood with enhanced viability, stability, attractiveness and convenience for residents, et cetera. So, I think this is— Q I’m trying to understand this. This mixed-use concept then is just a conglomeration of different uses; is that right? A It’s exactly as it says, ‘a mixed use,’ mixed uses, yes.

Q So then there’s no—I’m trying to relate this to the Affidavit where it says the expansion of a business in the area—‘a business.’ Was there any particular business that was referred to, you had in mind? A No. Q So you wouldn’t be able to say that there was any particular type of business that you had in mind for this property or this block? A Again, I would say that the overriding goal is to create additional retail business opportunities as well as housing opportunities, job opportunities, office opportunities, whatever. Q I just see in the plan the various permitted uses, include office, residential, community business, community commercial, central commercial, industrial.

All those are basically permitted. Is that not right? ²³⁵ A As appropriately zoned, yes. Q Excuse me? A If they are appropriately zoned, yes.

Q But they are allowed by the plan, the bottom of page 2, the top of page 3. All these uses are allowed. Is that not right? A In the plan area, yes.

In the overall plan area. Q So as I understand what you’re saying then, you really didn’t have any specific plan for this property or for the plan when you adopted the Urban Renewal areas? A Not a specific plan. We would choose that when proposals came in. ” [Emphasis added.] 11 Mr. Valsamaki’s counsel continued, asking Mr. Dombrowski specifically about the City’s need for immediate possession of the Property: “Q Is there any reason that it’s necessary to have immediate possession?

A Well, immediate possession to us means getting something going after 20-some years of non investment in the area or 30 years. It’s a matter of trying to assemble the site, given the fact that we know it takes time to go through this kind of procedure with appraisals, et cetera, and relocation assistance in Mr. Valsamaki’s case. So we ²³⁶ are looking for the most expeditious way to get development going and we deferred to the Law Department to tell us how to do that. Q I don’t understand.

If you haven’t even started the RFP process, why it’s necessary to have immediate possession, why you could [not] go the normal route and just have an ordinary condemnation in say six, nine months, something like that. I’m missing— A We will have an RFP done in a matter of weeks if we know that we can move ahead on the property. Q You don’t really know whether anybody’s going to respond to the RFP, do you? A No, we never know that in advance.” The City next called M.J. “Jay” Brodie, President of the Baltimore Development Corporation, as a witness.

The City first asked Mr. Brodie why the subject Property was being acquired: “Q There are several specific questions that I would like to have you elaborate upon now since you’ve given us sort of an overall view of the Urban Renewal process. What is the reason for—can you elaborate upon the specific reason for acquiring this property, if you could just elaborate upon that for the Court? A Sure. Well, this property is part of a larger assemblage and it’s our judgment in this case, put in front of the City Council and approved by them that the parcels of this size are necessary for the renewal of the area----” On cross examination, Mr. Valsamaki’s counsel asked Mr. Brodie to elaborate on whether there was a specific redevelopment plan for the Property: “Q And you would agree with Mr. Dombrowski that at this point in time there is no specific plan, either for this property or for that lot in which this property [is] located; is that correct?

A Actually, I would not agree with Mr. Dombrowski. I believe on the contrary that the plan in front of the City ²³⁷ Council was as specific as most urban renewal plans are at that point in time. It calls for specific land uses. It delineates disposition lots.

It proposes—in most cases, not in this case—changes of zoning. So it is not atypical in any sense.... It is the classic one step at a head [time] moving toward a future redevelopment of a particular site. Q Tell me what specific land uses are called for in the plan for this property?

A The ones that are in the plan. I don’t have the plan in front of me. Q Well, let me get that. [THE CITY]: I think [we] need the exhibit— THE COURT: It’s 1. A So there are obviously a spectrum of uses that are permitted.

That [is] as specific as most urban renewal plans are. The reason is—and there’s a reason. The reason is, in planning of, let’s say 30 or 40 years ago, there was an attempt to pinpoint a specific use for each property such as business or residential or industrial. The organic view of cities that most of us have adopted, is that’s really nearsighted.

My nearsightedness has been corrected to 20/20 vision, so in planning terms, we think mixed use is much more sensitive and appropriate for City redevelopment and therefore, the old-fashioned idea of pinpointing a use on a specific property versus allowing a mixture of uses, that’s where we are today. That’s why the plan, as Mr. Dombrowski quoted, calls for a mixed use redevelopment. Q You don’t really know what specific use this property will be devoted to under the plan? A ...

I’ve just told you. You may not like the answer, but that’s the answer. Q That you don’t know? A No, sir.

That it’s as specific as the description of mixed uses in the Urban Renewal Plan are. ²³⁸ Q And you would confirm Mr. Dombrowski’s testimony that at this point no RFP has been prepared? A That’s correct. Q No RFP has been issued. A That’s correct.

Q There have been no developers identified for this property. A That’s correct. Q And the specific plan that will eventually come into existence for this property will be that proposed by a developer and approved by [the] Baltimore Development Corporation; is that correct? A I would say that is not correct____The specific plan as Fve just described in the Urban Renewal Plan, the specific design for redevelopment will come out of a proposal by a private sector developer. ” [Emphasis added.] On May 19, 2006, the Honorable John Philip Miller issued a memorandum opinion and order for the Circuit Court.

In so doing, the court analyzed whether the City’s petition for condemnation and petition for immediate possession and title outlined a “public interest of sufficient necessity to award [the City] with immediate possession as called for under the language of § 21-16.” The trial court utilized the affidavit of Mr. Burgee, the testimony of the City’s witnesses presented at the hearing, and the exhibits introduced at the hearing by the City as evidence in reaching its determination. After a review of the applicable law and the evidence at hand, the trial court denied the City’s petitions. Judge Miller, writing for that court, stated: “In considering the arguments and the evidence presented by the parties, this Court finds that [the City] fails to demonstrate sufficient grounds which warrant the findings of necessity requisite for the immediate taking. The [City] impassively asserts that the Charles North Project will ²³⁹ likely come to a temporary halt unless [the City] is awarded the Property in Interest immediately.

The Court, based on all [the] evidence, is not satisfied that the [City] has met its burden. The [City] has failed to submit to the Court either a contract, a focused development plan as it pertains to the Property in Interest, or even a Request for Proposal ... supporting its contentions and establishing necessity required under § 21-16.” In support of its conclusion, the trial court cited to the recent controversial United States Supreme Court decision in Kelo v. City of New London, Connecticut, 545 U.S. 469 , 125 S.Ct. 2655 , 162 L.Ed.2d 439 (2005). The trial court acknowledged that under Kelo , “not only will economic development qualify as ‘public use’ for the purposes of eminent domain, but that also given ‘a carefully considered development plan,’ a plan that is comprehensive in nature and one that was preceded by thorough deliberation, a city’s taking of private property will comport with the demands of the Fifth Amendment.” After applying the Kelo holding to the matter at hand, however, the trial court found that it was “not satisfied that the [City] ha[d] demonstrated the necessity of the taking pursuant to any specifically outlined plan or contract, or as called for by § 21-16 of the Public Local Laws of Baltimore City.” On May 26, 2006, the City filed a motion for reconsideration to alter or amend judgment. On July 11, 2006, the Circuit Court denied the City’s motion.

Thereafter, on August 8, 2006, the City noted a direct appeal to this Court.

II

Discussion We initially note that the issue of an “immediacy requirement” in quick-take condemnations appears to be an issue of first impression for this Court and has not been the subject of much discussion elsewhere. In a jurisdiction in which the issue has been discussed, the courts have, albeit sometimes as dicta, recognized such a requirement. 12 ²⁴⁰ The City argued in the Circuit Court, and argues now on appeal, that it does not have the burden to prove necessity in order to proceed with a quick-take condemnation proceeding for immediate possession and title to a property. In ²⁴¹ opposition, Mr. Valsamaki argues that § 21-16 of the Public Local Laws of Baltimore City statutorily establishes a requirement that the City show why it is necessary for it to take immediate possession and title to property, and that in so doing the City must also show that any taking is for a public use consistent with Article XI-B of the Maryland Constitution and the Fifth and Fourteenth Amendments of the United States Constitution. Condemnation is a function of the State’s power of eminent domain.

Eminent domain is defined as “[t]he inherent power of a governmental entity to take privately owned property, esp. land, and convert it to public use, subject to reasonable compensation for the taking.” Black’s Law Dictionary 562 (8th ed.2004). “[T]he power of eminent domain adheres to sovereignty and requires no constitutional authority for its existence.” Lore v. Board of Public Works, 277 Md. 356, 358 , 354 A.2d 812, 814 (1976) (citing Riden v. Phila., B. & W.R.R. Co., 182 Md. 336, 339 , 35 A.2d 99, 100 (1943)). The power of eminent domain, however, is limited by both the Constitution of Maryland and the United States Constitution. The right to private property, and the protection of that right, is a bedrock principle of our constitutional republic. This is explicit in the federal constitution.

The Fifth Amendment of the United States Constitution, made applicable to the States through the Fourteenth Amendment, 13 states that, “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Const. amend. V (emphasis added); Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 , 17 S.Ct. 581, 585 , 41 L.Ed. 979 (1897); King v. State Roads Comm’n, 298 Md. 80, 83 , 467 A.2d 1032, 1033-34 (1983). Alexander Hamilton described “the security of Property” as one of the “great obj[ects] of Government].” 1 Records of the Federal Convention of 1787, p. 302 (M. Farrand ed.1934); ²⁴² Kelo, 545 U.S. at 497-98 , 125 S.Ct. at 2673 (O’Connor, J., dissenting). As Justice Chase wrote for the Supreme Court in Colder v. Bull, 3 Dali. 386, 1 L.Ed. 648 (1798): “An ACT of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. ...

A few instances will suffice to explain what I mean____[A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with SUCH powers; and, therefore, it cannot be presumed that they have done it. The genius, the nature, and the spirit, of our State Government, amount to a prohibition of such acts of legislation; and the general principles of law and reason forbid them. The Legislature ... cannot ... violate ... the right of private property. To maintain that our Federal, or State, Legislature possesses such powers, if they had not been expressly restrained; would, in my opinion, be a political heresy, altogether inadmissible in our free republican governments.” 3 Dali, at 388-89 (emphasis deleted).

Justice Story further expounded upon the importance of property rights in Wilkinson v. Leland, 2 Pet. 627 , 7 L.Ed. 542 (1829), stating: “That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming, that the power to violate and disregard them; a power so repugnant to the common principles of justice and civil liberty lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital ²⁴³ to their security and well being, without very strong and direct expressions of such an intention.” 2 Pet. at 657 .

Thus, it is evident that government, through its federal and various state legislatures, does not have the authority to take a private individual’s property and convey it to another private individual for a purely private purpose. Kelo, 545 U.S. at 477-78 , 125 S.Ct. at 2661 (“[I]t has long been accepted that the sovereign may not take the property of A for the sole purpose of transferring it to another private party B, even though A is paid just compensation.”). The Supreme Court elaborated upon this in Hawaii Housing Authority v. Midkiff, 467 U.S. 229 , 104 S.Ct. 2321 , 81 L.Ed.2d 186 (1984), stating: “[T]he Court’s cases have repeatedly stated that ‘one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.’ ” 467 U.S. at 241 , 104 S.Ct. at 2329 (citing Thompson v. Consolidated Gas Utilities Corp., 300 U.S. 55, 80 , 57 S.Ct. 364, 376 , 81 L.Ed. 510 (1937)). See, e.g., Cincinnati v. Vester, 281 U.S. 439, 447 , 50 S.Ct. 360, 362 , 74 L.Ed. 950 (1930); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 251-52 , 25 S.Ct. 251 , 255-56, 49 L.Ed. 462 (1905); Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 159 , 17 S.Ct. 56, 63 , 41 L.Ed. 369 (1896). “A purely private taking could not withstand the scrutiny of the public use requirement; it would serve no legitimate purpose of government and would thus be void.” Midkiff, 467 U.S. at 245 , 104 S.Ct. at 2331 .

The State of Maryland’s jurisprudence in this instance is very similar to that of the federal government. The Maryland Constitution provides that: “The General Assembly shall enact no Law authorizing private property, to be taken for public use, without just compensation, as agreed upon between the parties, or awarded by a Jury, being first paid or tendered to the party entitled to such compensation.” Md. Const. art. III, § 40; see also Prince George’s County v. Collington Crossroads, Inc., 275 Md. 171, 188 , 339 A.2d 278, 287 (1975) ²⁴⁴ (“[W]here the predominant purpose or effect of a particular condemnation action has been to benefit private interests, this Court has held that the taking is not for a ‘public use’ within the meaning of Art. Ill, § 40, of the Maryland Constitution.”). The Maryland Constitution, Article XI-B, § 1, does, however, constitutionally provide specific authority for condemnation actions in Baltimore City: “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, but not 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 public use.” 14 Chapter 162 of the Acts of 1947.

Furthermore, Article III, § § 40A-40C of the Maryland Constitution gives the General Assembly authority to enact legislation providing powers to certain local (and state) entities for immediate takings, or quick-take condemnation actions, for different pur ²⁴⁵ poses. Bern-Shaw, 377 Md. at 281-82 n. 1, 833 A.2d at 504 n. 1; J.L. Matthews, Inc. v. Maryland-National Capital Park and Planning Comm’n, 368 Md. 71, 90 , 792 A.2d 288, 299 (2002); King, 298 Md. at 86 , 467 A.2d at 1035 (“ ‘Quick-take’ condemnation proceedings are authorized in limited circumstances by § § 40A through 40C of Art. Ill of the Constitution of Maryland.”). These entities are Baltimore City, Baltimore County, Montgomery County, Cecil County, the State Roads Commission, and the Washington Suburban Sanitary Commission. Article III, § 40A, relevant to Baltimore City, states: “The General Assembly shall enact no law authorizing private property to be taken for public use without just compensation, to be agreed upon between the parties, or awarded by a jury, being first paid or tendered to the party entitled to such compensation, but where such property is situated in Baltimore City and is desired by this State or 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 State or by the Mayor and City Council of Baltimore, or into court, such amount as the State or the Mayor and City Council of Baltimore, as the case may be, shall estimate to be the fair value of said property, provided such legislation also requires the payment of any further sum that may subsequently be added by a jury____” Md. Const, art.

Ill, § 40A. The constitutional provisions in regard to quick-take condemnation actions in Baltimore City are effectuated, in a limited manner, by Code of Public Local Laws of Baltimore City, § 21-16. Chapter 420 of the Acts of 1972. Section 21-16 provides the Mayor and City Council of Baltimore with the authority to institute quick-take condemnation actions by filing “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 therefore. ” § 21-16(a) (emphasis added).

The court may then grant immediate possession “[i]f it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn ²⁴⁶ testimony, that the public interest requires the City to have immediate possession of said property____” § 21-16(d) (emphasis added). 15 By requiring the City to establish under oath the immediacy of the need for quick-take condemnation (as opposed to regular condemnation), the Legislature has imposed the burden of proof upon the City to establish that immediate need—not imposed a burden on the property owner to prove the contrary. Quick-take condemnation, as established by § 21-16, is to be utilized by the City only when the public interest demands that it is necessary for property to be immediately taken. See also Nicole Stelle Garnett, The Public-Use Question as a Takings Problem, 71 Geo. Wash.

L.Rev. 934, 974 n. 257 (2003) (“See, e.g., Steven Elrod, THE POWER OF EMINENT DOMAIN—INTRODUCTION AND OVERVIEW § 1.35 (Supp.1998) (observing that ‘quick-take is intended to be used only when the immediate use of the property is necessary and the project cannot wait until the procedural safeguards of traditional condemnation have been satisfied’).”). It is not a power to be utilized for regular condemnation purposes. 16 ²⁴⁷ This statutory scheme provided by § 21-16 is essential to our determination of the issues in the case sub judice. As Judge Harrell, writing for the Court in J.L. Matthews, instructed: “[I]t is important to note that we have ‘underscore^] the principle that condemnation actions are exclusive special statutory actions for the exercise of the eminent domain power.’ Utilities, Inc. [of Md. v. Wash. Suburban Sanitary Comm’n], 362 Md. [37, 49-50], 763 A.2d [129,] 135 [(2000)] (citing Sollins v. Baltimore County, 253 Md. 407 , 252 A.2d 819 (1969)).

Thus, the statutory scheme delineating [a party’s] condemnation authority informs our consideration of the issues before us.” J.L. Matthews, 368 Md. at 91 , 792 A.2d at 300 (emphasis added). See also Gregory G. Schwab, The Maryland Survey: 2001-2002 Recent Decisions: The Court of Appeals of Maryland, 62 Md. L.Rev. 840, 845-46 (2003) (“Maryland has an extensive statutory framework to guide governmental entities in the exercise of their eminent domain powers, set forth both in the Maryland Constitution an d in the Maryland Code. Political subdivisions and public entities have no condemnation powers other than those conferred upon them by the State. Therefore, where the State has conferred condemnation authority, these governmental entities must strictly follow the statutory procedures.” (Emphasis added) (Footnotes omitted)).

An “Immediate” Necessity The City asserts that “[t]his Court has held that the burden of proving lack of necessity in a quick take condemnation suit rests upon the party who objects to the proceeding....” In support of this contention, the City cites to Free State Realty Co., Inc. v. City of Baltimore, 279 Md. 550 , 369 A.2d 1030 (1977) and County Commissioners of Frederick County v. ²⁴⁸ Schrodel, 320 Md. 202 , 577 A.2d 39 (1990). This argument, however, does not acknowledge the plain language of § 21-16 of the Public Local Laws of Baltimore City, which imposes the requirement that the City first show “the reasons,” i.e., the necessity for immediate possession by quick-take condemnation. Furthermore, the City misconstrues the language in Free State, and the cases cited therein, to impose a burden upon Mr. Valsamaki which does not exist in the present instance. The threshold issue in this case is whether the City provided sufficient reasons to show a necessity for it to have immediate possession of and title to the Property under § 21-16, not whether there was a sufficient showing of “public use.” As discussed infra, the City has failed to demonstrate such immediate necessity.

As indicated above, there is a distinction to be made between the two types of condemnation addressed in our case history: regular condemnation and quick-take condemnation. The majority of our cases deal with instances of regular condemnation, rather than quick-take condemnation. There is some confusion extant because the courts have a tendency to mix the interpretation of the two. In the case sub judice we are only concerned with quick-take condemnation in Baltimore City.

The quick-take power is statutorily provided by § 21-16 of the Public Local Laws of Baltimore City and, as such, our determination as to the City’s use of quick-take condemnation is governed by that statute. Judge Eldridge, writing for the Court in Green v. High Ridge Association, Inc., 346 Md. 65 , 695 A.2d 125 (1997), in the context of traditional condemnation proceedings, discussed the question of whether there is a “necessity” for a condemnation: “The Court has held ... that the question of whether there is a ‘necessity’ for a particular condemnation is primarily for the legislative and/or executive branches of government. See, e.g., County Comm’rs v. Schrodel, 320 Md. 202, 216-217 , 577 A.2d 39, 46 (1990); Anne Arundel County v. Burnopp, 300 Md. [343,] 348-349, 478 A.2d [315,] 318-319 [(1984)]; Wash. Suburban Sanitary Comm. v. Santorios, ²⁴⁹ 234 Md. 342, 346 , 199 A.2d 206, 208 (1964) (‘ “The necessity is for the condemnor and not for the courts to decide,” ’ quoting with approval 1A Nichols On Eminent Domain, § 4.11[3] (3d ed.))____ “The determination by a condemning authority that a particular taking is ‘necessary’ will not be set aside by the courts unless the condemnor’s decision ‘is so oppressive, arbitrary or unreasonable as to suggest bad faith,’ Anne Arundel County v. Burnopp, supra, 300 Md. at 349, 478 A.2d at 318.

Moreover, the burden is upon those challenging the condemnation to establish such bad faith, County Comm’rs v. Schrodel, supra, 320 Md. at 217 , 577 A.2d at 46 .” Green, 346 Md. at 79-80 , 695 A.2d at 132 . Thus, our statement in Green is that the burden lies with the property owners who allege bad faith having the burden of proving that bad faith. It, alone, does not relieve condemning authorities of any burden they may have of establishing a prima facie case of inherent public use. The City relies on a line of cases derived from Washington Suburban Sanitary Commission v. Santorios, 234 Md. 342 , 199 A.2d 206 (1964).

These cases, however, are distinguishable from the § 21-16 quick-take condemnation proceedings at issue in the case sub judice where there is both a statutory requirement that the City show necessity for, i.e., give the reasons for, immediate possession and title to a property, and the requirement that the City satisfy the “public use” standard. The City primarily relies on Free State, a case that also involved the condemnation of a property for urban renewal purposes. In Free State it was argued that the Mayor and City Council of Baltimore “improperly or unlawfully exercised its ‘quick take’ powers of eminent domain.” 279 Md. at 551 , 369 A.2d at 1030 . There, as in the case sub judice, the City filed a petition to condemn and a petition for immediate possession.

An affidavit was attached to the petition for ²⁵⁰ immediate possession stating why immediate possession was necessary: “The affidavit ... said that the dwelling ... ‘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____’ ” Id. at 552 , 369 A.2d at 1031 . The “trial court considered the right to condemn and the right to immediate possession as a preliminary matter.” Id. at 553 , 369 A.2d at 1031 . Testimony was introduced from a building inspector who testified “that when he visited the subject property ... he observed that ‘[windows and doors were broken,’ there “was rubbish and debris inside,’ ‘the house was vacant’ and ‘the grounds were unsanitary.’ ” Id. at 553 , 369 A.2d at 1031-32 . Furthermore, another city employee testified that the property had been boarded and cleaned up on September 25, 1974, “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.” Id. at 553 , 369 A.2d at 1032 .

The Court conducted a review of Maryland’s constitutional and statutory authority, as explicated supra, and concluded that the City, in that case, had authority to acquire the subject land. There, the evidence of immediate need and necessity was much stronger that the sparse evidence in the present case where the City, in essence, failed to expand upon the minimal affidavit it had filed. Discussing the sufficiency of evidence, the Free State Court looked to Nichols, Law of Eminent Domain, § 26.1315, at 26-169 (3d rev. ed.1976), quoting and discussing the treatise: “ ‘The burden of proving lack of necessity rests upon the person who objects to the proceeding on this ground.’ The ²⁵¹ same work in § 26.3 in discussing adjudication of the right to condemn states at pages 26-237 to 238 that the condemning authority must prove certain things and then adds ‘and, in such jurisdictions as treat the necessity of the use as a judicial question, that the land sought to be taken is necessary for the public use, to the extent, at least, of making out a prima facie case.’ Maryland is a jurisdiction treating the necessity of use as a judicial question. See Prince George’s Co. v. Beard, 266 Md. 83, 95 , 291 A.2d 636 (1972), and cases there cited.” Free State, 279 Md. at 558 , 369 A.2d at 1034 .

The necessity of immediacy is also a judicial question. The City, in the case sub judice, utilizes the first statement—that the burden rests upon the person objecting to the proceeding—without placing it into context with the requirement that the condemning authority must prove certain things relevant to the extent of necessity in order to first make out a prima facie case under the statute here controlling. 17 Additionally, the City argues that “while the decision of an agency as to the public necessity for taking a particular property is subject to judicial review, that review is narrow and limited to determining that the agency’s decision is not so oppressive, arbitrary or unreasonable as to suggest bad faith.” That argument is, in part, correct. It does not, however, tell the whole story concerning judicial review under the cireum ²⁵² stances of a § 21-16 quick-take condemnation proceeding, nor for that matter of a regular condemnation. In the present case we are primarily concerned with quick-take actions.

The continuing applicability of the City’s position on the limitations on the courts in respect to regular condemnation actions, generally, will be left to future cases. Much of the City’s argument is derived from language quoted in Free State, that the City has parsed out from the Court’s opinion in Santorios . The Court in Santorios stated: “When the legislature authorizes a commission or other agency to take and acquire land in fee or as an easement for a public purpose by purchase or condemnation, the selection of the land to be condemned is a matter for the commission to decide. When the taking is challenged, the questions for the court to decide are limited to (i) whether there is any necessity whatever to justify the taking, or (ii) whether the decision of the commission is so oppressive, arbitrary or unreasonable as to suggest bad faith.

State Roads Comm. v. Franklin, 201 Md. 549 , 95 A.2d 99 (1953); Johnson v. Consolidated Gas, Electric Light & Power Co., 187 Md. 454 , 50 A.2d 918 (1947); Murphy v. State Roads Comm., 159 Md. 7 , 149 A. 566 (1930). In 1 Nichols on Eminent Domain (3rd ed.) § 4.11[3], it is said: ‘The necessity is for the condemnor and not for the courts to decide, and the decision of such condemnor is final so long as it acts reasonably and in good faith. If the land is of some use to it in carrying out its public object, the degree of necessity is its own affair. Whether there is any necessity whatever to justify the taking is, however, a judicial question.’ Furthermore, it has been said that the necessity for the taking does not have to be absolute: all that is required is that it be reasonable under the circumstances.

Johnson v. Consolidated Gas. Electric Light & Power Co., supra, at p. 462, 50 A.2d 918 (of 187 Md.).” Santorios, 234 Md. at 345-46 , 199 A.2d at 208 ; Free State, 279 Md. at 559 , 369 A.2d at 1034-35 . ²⁵³ The City also relies on certain language contained in Schrodel , a regular condemnation case, where the Court summarized a somewhat limited role in reviewing regular condemnation actions under the second question in Santorios : “ ‘Ordinarily the question of whether a proposed [location] is required by public necessity is legislative rather than judicial____ [T]he decision ... as to the public necessity for taking particular property is not subject to judicial review unless [the] decision is so oppressive, arbitrary or unreasonable as to suggest badfaith. ’ (Emphasis added).” Schrodel, 320 Md. at 216 , 577 A.2d at 46 (quoting Murphy v. State Roads Comm’n, 159 Md. 7, 15 , 149 A. 566, 570 (1930)). See, e.g. Wash.

Suburban Sanitary Comm’n v. Utilities, Inc., 365 Md. 1, 16 , 775 A.2d 1178, 1186 (2001); Green, 346 Md. at 79-80 , 695 A.2d at 132 ; Anne Arundel County v. Burnopp, 300 Md. 343, 348-49 , 478 A.2d 315, 318 (1984); Bouton v. Potomac Edison Co., 282 Md. 142, 151 , 383 A.2d 669, 674 (1978); Free State, 279 Md. at 558 , 369 A.2d at 1034 ; Director v. Oliver Beach Imp. Ass’n, 259 Md. 183, 188-89 , 269 A.2d 615 (1970); Santorios, 234 Md. at 346 , 199 A.2d at 208 , Ligon v. Potomac Elec. Power Co., 219 Md. 438, 439 , 149 A.2d 376 (1959). In Schrodel , the Court did not discuss the first question in Santorios, i.e., whether there was any necessity whatever to justify the taking.

The City also points to Herzinger v. Mayor and City Council of Baltimore, another regular condemnation case, where the Court stated: “Ordinarily, and for most purposes such as order of proof, it is true that the burden is upon the condemning body to establish its right and power to condemn and the necessity therefor. Davis v. Board of Education, 168 Md. 74, 77 , 176 A. 878 [(1935)]; Kenly v. Washington Co. R.R. Co., 129 Md. 1 , 98 A. 232 [(1916)]. But where the authority is based upon an ordinance or other legislative enactment, it would seem that reliance thereon would make a prima facie case and shift the burden to the person attacking it to show that it is arbitrary or unreasonable.” ²⁵⁴ Herzinger, 203 Md. 49, 62-63 , 98 A.2d 87 , 93 (1953). The Court’s statement in Herzinger, was prefaced by the use of the word “ordinarily.” Nothing in Herzinger obviates the City’s responsibility to show a minimal level of immediacy, i.e., a prima facie showing in a quick-take situation.

In the case of regular condemnation, once the City establishes at least a minimal level of public use or purpose, judicial review may be thereafter limited to determining that the agency’s decision is not so oppressive, arbitrary or unreasonable as to suggest bad faith; that, however, is not the case in assessing immediacy in a quick-take condemnation action in Baltimore City under § 21-16. Rather, the court must also determine whether there is a necessity to justify an immediate taking and, in that determination, must be able to assess the reasons for the immediacy. Section 21-16 expressly requires the City to state reasons relating to immediacy, thus the City has the burden not only to present a prima facie case of public use, but, additionally, in a quick-take action, the burden to establish the necessity for an immediate taking. The Court in Free State determined that the property in that case, based upon the affidavit attached to the petition for immediate possession, constituted an immediately serious and growing menace to public health, safety and welfare.

Free State, 279 Md. at 552 , 369 A.2d at 1031 . In Free State, the evidence was sufficient. Therefore, there was necessity for “quick-take,” i.e., immediate, condemnation. In Santorios , a case apparently based not upon quick-take condemnation, but upon traditional condemnation, the Court stated that “[t]he question of law concerning the necessity for the taking was heard separately ... and resulted in a dismissal of the petition for condemnation.” 234 Md. at 343 , 199 A.2d at 207 .

As such, the question of necessity was not even a direct issue in Santorios : “In the case at bar [Santorios], where the right to condemn was conceded and the public necessity for the extension of the sewerage system was not questioned, there was no evidence to show, nor was it ever contended, that it was not necessary for the Commission to acquire an ease ²⁵⁵ ment in at least some part of the property of the landowners in order to construct the extension of the sewer line.” 234 Md. at 346 , 199 A.2d at 208 . In the case sub judice, the City did not satisfy the basic statutory mandate of § 21-16(a) of the Public Local Laws of Baltimore City. As stated supra, “ ‘condemnation actions are exclusive special statutory actions for the exercise of the eminent domain power’ ” and “[t]hus, the statutory scheme delineating [the City’s] condemnation authority informs our consideration of the issues before us.” J.L. Matthews, 368 Md. at 91 , 792 A.2d at 300 quoting Utilities, Inc. of Md. v. Wash. Suburban Sanitary Comm’n, 362 Md. 37, 49 , 763 A.2d 129, 135 (2000); Schwab, The Maryland Survey: 2001-2002 Recent Decisions: The Court of Appeals of Maryland, 62 Md. L.Rev. at 845-46.

Section 21-16(a) specifically provides that the City must show the necessity for an immediate taking. The City’s petitions evince a dearth of any specific evidence showing a necessity for the immediate possession of the Property via quick-take condemnation as opposed to a regular condemnation. In the petition for condemnation, the City simply stated that: “This property will be used for redevelopment purposes; namely in the Charles North Project area.” The petition for immediate possession and title referenced an attached affidavit which provided only a conclusory and general statement that: “The property ... must be in possession of the [City] at the earliest time possible in order to assist in a business expansion in the area.” [Emphasis added]. The trial court found, based upon these petitions, as well as from the testimony and exhibits introduced at the April 18, 2006, hearing, that the City failed “to demonstrate sufficient grounds which warrant the findings of necessity requisite for the immediate taking” of the Property.

We agree with Judge Miller. The record does not demonstrate sufficient evidence to support a finding that the City is entitled to immediate possession of the Property. As stated supra, the affidavit attached to the petition for immediate possession and title only ²⁵⁶ provides that immediate possession is necessary “in order to assist in a business expansion in the area.” This statement, in and of itself, while perhaps sufficient to justify regular condemnation, does not justify a quick-take condemnation. Cfi Free State, supra (where affidavit showed necessity for public safety).

Furthermore, the testimony of the BDC officials at the hearing did not serve to substantiate the City’s claim of immediate need. Mr. Dombrowski testified as to what a business expansion in the area meant, stating: “It means to us, at least, the opportunity to provide for additional business expansion opportunities.” When asked whether there was a specific plan for the development of the Property, he replied: “Not as yet because the procedure we follow is through a request for proposal procedure as you well know.” Mr. Brodie disagreed with Mr. Dombrowski’s statements to the effect that there was no specific plan for development of the property. However, when asked about what specific uses were called for in the plan for the Property, he declined to, or could not, provide a specific answer. He replied, “[s]o there are obviously a spectrum of uses that are permitted.

That [is] as specific as most urban renewal plans are.” Furthermore, he stated that “the specific design for redevelopment will come out of a proposal by a private sector developer.” While the existence of a general urban renewal plan might, under some circumstances, justify the use of regular condemnation, it, alone, under the statute applicable in the instant case, does not suffice to provide the immediacy that needs to exist to justify quick-take condemnation with its lesser procedural due process standards. The vague explanation of “business expansion,” subject to non-existent amorphous future proposals, does not justify the City’s use of quick-take condemnation. The City needs a more concrete, immediate necessity for an exercise of such power that the “public interest” requires. § 21-16(d). See e.g., Free State, 279 Md. at 552 , 369 A.2d at 1031 (the Court found that, based upon an affidavit, the property constituted an immediate serious and growing menace to public health, safety and welfare); Segall v. City of Baltimore, 273 Md. 647, 648 , 331 A.2d 298, 298-99 (1975) ²⁵⁷ (affidavit showed that all other properties in the development area had been acquired and sale of the entire site could not completed until the subject property had been acquired). 18 But see Mayor and City Council of Baltimore v. Kelso Corp., 281 Md. 514, 518 , 380 A.2d 216, 218-19 (1977) (property owner never challenged the City’s compliance with the formal requirements of § 21-16 or lack of power to condemn, and therefore had no basis to attack the City’s quick-take condemnation action); Kelso Corp. v. Mayor and City Council of Baltimore, 45 Md.App. 120, 129 , 411 A.2d 691, 696 (1980) (Discussing quick-take proceeding in Baltimore City, the Court of Appeals found that “appellant has failed to show that the City lacked the power or right to condemn its property.”). 19 It is important to note that the opportunities to challenge a condemnation are shortened and truncated when quick-take condemnation is used as opposed to regular condemnation.

The court processes available to an owner under the quick-take are severely curtailed, as is well exhibited in the present case. The property owner was ordered out of possession of ²⁵⁸ his property just six days from the time of the filing of the action and only learned that he was dispossessed when the order was served upon him. Then the time for him to respond was so short that he was not afforded time to conduct—or really to begin—discovery procedures in order to be able to address the issues of public use, necessity, or immediacy. Yet, the City did not at that time have present plans for the utilization of the Property and would only know what was to be done with the Property when private developers submitted proposals to it—which might be in an indeterminant future. 20 The desire for the general assemblage of properties for urban renewal might be sufficient to justify the use of regular condemnation proceedings, but absent more specific and compelling evidence than was presented here, does not satisfy the immediacy and necessity requirements under quick-take condemnation. 21 As quick-take is used in this instance by the City, it lends itself to the view that quick-take may be used primarily for the purpose of severely limiting the ability of property owners to resist condemnation.

Such a use would violate the rights of property owners, fundamental rights that are protected by the Federal and State Constitutions. The framers of the Federal Bill of Rights did not place the property rights clause in some obscure part of these documents. It was placed in an amendment considered by many to be among the most important sections of that foundation ²⁵⁹ stone of our form of democracy. It is found in the Fifth Amendment, included with the double jeopardy clause and the privilege against coerced self-incrimination in criminal cases clause.

U.S. Const, amend. V. Immediately alongside those cornerstones of our democracy lies the property rights clause: “No person shall ... be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” U.S. Con st. amend. V (emphasis added). Reverence is due the property rights clause just as is due the other great provisions of the Fifth Amendment.

It is a fundamental right. It is in that context that we closely scrutinize issues relating to the abridgment of property rights and are careful in an appropriate case, not only to consider the use, or “purpose,” proposed for the forced governmental acquisition of private property, but also to examine the procedural methods used to deprive an owner of his property. It is our function to determine what process is due in a given case. When, and if, a governmental entity attempts to unnecessarily utilize a form of condemnation that procedurally abridges the right of the property owner to contest the taking of his or her property, it is the function of the court to assure to the property owner that his or her procedural rights are protected.

Judge Miller fully recognized what was occurring and with his judgment rectified the abridgment of Mr. Valsamaki’s right to full due process under the facts of this case. Under the circumstances of this case, the factually unjustified exercise of quick-take condemnation rather than regular condemnation is an improper procedural abridgment of these rights. Quick-take condemnation should only be conducted when the need for the possession of the property is immediate (i.e., at the time of filing the petition, immediately necessary) and in the public interest. Otherwise, the City should utilize the regular condemnation power which permits a property owner the full exercise of his or her procedural due process rights.

Under circumstances where there is no immediacy, the use of quick-take condemnation deprives a property ²⁶⁰ owner of a significant part of the process to which he or she is due, without any corresponding necessity on the part of the City to justify that deprivation. When the stockpiling of property is the goal, except perhaps under some circumstances relating to a final acquisition, the regular condemnation power is more appropriate, in that it affords greater procedural due process protections to the property owner. Nor is the use of quick-take proper purely in order to gain a litigation advantage. It is useful to understand some other important differences and effects between quick-take condemnation and regular condemnation, especially as they relate to the exercise of eminent domain in respect to the taking of commercial or business properties.

In regular condemnation, a taking authority files suit in court to condemn the property and, while the months (or years) long process goes on, the property owner maintains possession of his residence or business, operates it in the case of a business (albeit that the pendency of condemnation proceedings can adversely affect that business, i.e., the ability to obtain financing, the ability to have credit extended to the business, and the like), or resides in it if a residence and, if ultimately, the property owner prevails on h is or her lack of public u se (or purpose) argument, his or her