Murphy v. Montgomery County

Barnes, J., delivered the opinion of the Court. The appellants, Walter J. Murphy, Jr. and Joan W. Murphy, his wife, owners of the property, 6012 Tilden Lane, Rockville, Montgomery County, in the Luxmanor Subdivision, challenge the validity of a special benefit front-foot assessment levied against their property by the appellee, Montgomery County, assessing a portion of the cost of the reconstruction of Tilden Lane. Their principal contention is that they have been denied due process of law. We have concluded that the order of the Circuit Court for Montgomery County, dated March 20 and filed on April 6, 1972 (Moorman, J.), dismissing the appeal of the appellants and affirming the action of the Montgomery County Council in its adoption of Ordinance No. 6-228, was properly passed and the order will be affirmed by us.

The County Council, on May 4, 1965, adopted Resolution No. 5-1828 in accordance with Section 24-31 of the Montgomery County Code (1960) [which was identical to the present Section 24-32 of the Montgomery County Code (1965)]. It provided: “Before enacting any ordinance for assessment of road construction benefits, the council shall propose the particular construction by adopting a resolution which shall specify the location, extent and kind of construction proposed, the type of materials to be used, the estimated cost, and a description of the real property that there is reason to believe will be specially benefited thereby. “Such resolution shall provide for a public hearing on the proposal and shall state the time and place where such hearing will be held.” Resolution No. 5-1828 set the date of June 15, 1965, for ²²⁶ a public hearing to consider a proposal to improve Tilden Lane from Old Georgetown Road to Old Stage. Road by constructing a bituminous roadway to a paved width of 36 feet, together with concrete curbs, gutters, sidewalks and sod, necessary storm drainage facilities and, where requested by the property owners, driveway and walkway entrances. The Resolution fixed the time and place of the public hearing and outlined the public hearing procedure and the order of appearance, indicating that, at the conclusion of the hearing of both the proponents and opponents, the President of the County Council would announce the amount of time the record would remain open to submit written statements explaining their respective views.

The Resolution also set out in detail the estimated cost of construction of the proposed work and the proposed distribution of that estimated cost. Six separate items of estimated costs were stated in detail, with a resulting total estimate (excluding right-of-way) of $335,500.00. The item of proposed cost applicable to the subject property resulted in an estimated front-foot assessment of $10.00 per front foot. It was then stated: “5.

That the properties which there is reason to believe will be specially benefited by the proposed improvements and which will be liable for assessment are as follows: “ESTIMATED ASSESSMENT INCLUDING ENTRANCES LOT BLK. ASSESSABLE FEET ACCOUNT NO. NAME AND ADDRESS (Here follow 51 separate listings of lots) 1100.00 16 A 110.00 76110 James W. & C. Osberg 6012 Tilden Lane Bethesda, Maryland" The appellants Murphy took title to the subject property, 6012 Tilden Lane, in June 1967 from James W. Osberg and wife, the property owners listed in Resolution No. 5-1828. ²²⁷ The public hearing provided for in Resolution No. 5-1828 was held on June 15, 1965, at the time and place mentioned in the Resolution. Richard J. Lynch, then Deputy Director (now Acting Director) of the Department of Public Works of Montgomery County, explained the project in some detail.

He stated that the County Council had held a public hearing on July 16, 1963, in regard to improving the portion of Tilden Lane from Cushman Road to Old Stage Road. As a result of questions raised at that hearing in regard to the adequacy of Tilden Lane to carry additional traffic, the Council included funds in the 1964-1965 capital project for the reconstruction of Tilden Lane from Old Georgetown Road to Cushman Road, treating both projects as one project. He further stated that the project was initiated to provide (1) improved vehicular and pedestrian access as requested by residents, (2) access to schools and (3) sidewalks for students going to and from school. Tilden Lane, he said, was classified as a primary residential street on the Cabin John Master Plan adopted June 5, 1957; and that the proposed construction was in accordance with that Master Plan.

Tilden Lane has been maintained by the County and is 12 to 14 feet wide and in some places even more narrow. Farther west it was a dirt road. Mr. Lynch further testified that the formula in the County Road Code is that when a County-maintained road is reconstructed, the abutting properties will be assessed for no more than the cost of a secondary residential street 26 feet wide — the narrowest street constructed in a subdivision. The County would pay approximately two-thirds of the total construction cost of the project.

The developer of the Tilden Lane subdivision presented testimony of an engineer and land planner to the effect that Tilden Lane was a substandard road that needed improvement to accommodate traffic. Representatives of the Luxmanor Citizens Association and representatives of various residents on Parkedge Drive and Tilden Lane indicated that, although Tilden Lane needed improve ²²⁸ ment, they favored a 24-foot road and a footbridge and some wanted cycle and walking paths as well. James W. Osberg and his wife, the predecessors in title of the Murphys, although they received notice of the hearing of June 15, 1965, did not appear and testify either in person or through counsel. The County Council, on September 14, 1965, adopted Resolution No. 5-2127 which authorized the improvement of Tilden Lane from Old Georgetown Road through the intersection of Parkedge Drive with a pedestrian footbridge over the stream between Parkedge Drive and Old Stage Road.

The validity of this Resolution was challenged by A. Burks Summers, William H. Pattison and other residents in the area in a suit in the Circuit Court for Montgomery County (Equity No. 30679) for a declaration of nullity and for an injunction. On April 5, 1966, after a hearing on the merits, the circuit court (Joseph Mathias, J.) dismissed the bill of complaint, stating inter alia, in the court’s opinion that: “Plaintiffs’ issues 3 and 4 allege the action of the Council was arbitrary, capricious and unreasonable and was in violation of the constitutional rights of abutting property owners. The Court cannot reach such a conclusion. It appears that the Council complied with the provisions of the County Code and the evidence that was adduced at the hearing was at least fairly debatable. “The determination of the necessity of a public improvement calls for the exercise of discretion by the County Council.

The Court will not interfere with the exercise of that discretion except in cases which amount to fraud, bad faith or question of property rights. Kennedy Chamberlin Co. v. Snure, 212 Md. 369 ; Mayor and City Council of Baltimore v. Williams, 129 Md. 290 .” Mr. and Mrs. Osberg, then owners of the subject prop ²²⁹ erty, by a letter to the County Council, dated July 27, 1966, requested the County Council to relocate the sidewalk so that it would be next to the curb and shortly thereafter executed a document, received by the County Department of Public Works on August 8, 1966, consenting to the modification of Resolution No. 5-2127 in order to relocate the sidewalks next to the curb, reserving, however, their right to object to or to oppose the levy of any assessment arising from any improvement to or reconstruction of Tilden Lane. On August 9, 1966, the County Council adopted Resolution No. 5-2944 amending Resolution No. 5-2127 to provide that sidewalks should be installed immediately adjacent to the curb. As we have indicated, the appellants Murphy bought the subject property from the Osbergs in June 1967.

The Murphys, on October 18, 1968, executed an authorization and instruction to the County Director of Public Works to install driveway aprons and transitions at the subject property, estimated to cost a total of $458.67, and which stated: “It is understood that the actual cost of this work will be assessed against my property as a special benefit. Remarks: Approx. 455.00 to 465.00.” On November 10, 1970, the County Council adopted Ordinance No. 6-228 in accordance with the County Code, Section 24-36, levying a special assessment in the amount of $92,277.58 for bituminous roadway, curb, gutter, sidewalk and incidental work against adjacent properties and owners of record as of September 22, 1970, based upon linear footage. In ordinance No. 6-228, the County Council found and declared the work “to be of special benefit to the properties” listed, the appellants Murphy being assessed $1,295.24. The total cost of the project was $301,507.42, the County paying $209,229.84 of the total cost or approximately 70% of the total cost.

The Murphys do not dispute the calculation and the amount of the assessment, but, as indicated, challenge its validity. This challenge was presented in a bill of complaint for a declaratory decree and an injunction filed in the circuit ²³⁰ court on January 8, 1971. The lower court sustained a demurrer to the bill of complaint filed by the County but permitted the Murphys to file a petition on appeal pursuant to subtitle B of the Maryland Rules, thereby converting their equity suit into an administrative appeal. As a result of the County’s request for admission of facts and genuineness of documents, the Murphys admitted that they were aware of the construction and reconstruction of Tilden Lane and of the proposed assessment for the improvement when they purchased the subject property in June 1967 and that the driveway authorization of October 18, 1968, was executed by them.

The County, in answer to an interrogatory propounded by the Murphys, filed a preliminary appraisal report of John J. Shank, MAI, SRA, indicating that, in his opinion, the subject property was increased in value by $3,000.00 (from $57,000 to $60,000) by the improvement of Tilden Lane and hence the subject property was benefited at least in the amount of $1,295.24. He also found that sales of properties after the reconstruction of Tilden Lane indicated a substantial increase in value. At the hearing on the petition for appeal on December 29, 1971, the appellants Murphy presented legal arguments that they were not specially benefited as well as certain procedural arguments. They indicated that they had originally intended to introduce the testimony of two members of the County Council but, upon further consideration, had decided not to present any evidence at the hearing.

The appellees moved to dismiss the appeal because the appellants had not overcome the presumption of validity of the legislative action of the County Council. The appellees also moved to introduce some 14 exhibits (including the Shank appraisal report) and other evidence indicating that the type of appeal was a hybrid one and that it was appropriate that the lower court have appraisal, engineering and other testimony, as the circuit court in prior street assessment cases had done. The lower court reserved ruling on the motion to introduce evidence and testimony until it decided the motion to dismiss. ²³¹ Judge Moorman, on April 6, 1972, filed his opinion in the circuit court affirming the action of the County Council in adopting Ordinance No. 6-228 and dismissed the Murphys’ appeal. After a careful review of the facts, Judge Moorman concluded: “It is the Court’s view that there is no merit to the appellants’ contention that they were not afforded an opportunity to be heard because their predecessors were given the opportunity on June 15, 1965.

Appellants rely upon Londoner v. Denver, 210 U. S. 373 (1908) in which there was complete absence of notice or hearing.