Prince George's County v. Collington Crossroads, Inc.

Eldridge, J., delivered the opinion of the Court. In this case, the right of Prince George’s County to take by eminent domain land belonging to the appellee, Collington Crossroads, Inc., is at issue. The sole question presented to this Court is whether the purpose of the condemnation, namely the development of a multi-industry “employment center,” or “industrial park,” constitutes the requisite “public use” so as to justify the County’s exercise of the eminent domain power. 1 In 1968, the General Assembly authorized the issuance of bonds by Prince George’s County to finance the acquisition of land for and the construction of “public airport facilities and industrial parks.” Ch. 689, Acts of 1968, effective July 1, 1968. Section 1(b) of Ch. 689 provided: “[T]he term ‘industrial parks’ shall mean (i) the acquisition by any legal means, of land or property in Prince George’s County generally in the southwest quadrant of the intersection of Maryland Route 214 and U.S. Route 301 in one contiguous tract as now determined by the County to be suitable as the site or sites for the establishment of one or more industrial parks to encourage and promote the creation of new industry and the growth of existing industry in Prince George’s County and (ii) the grading of such site or sites, the ¹⁷³ construction of access roads, rail service tracks and taxiways, the construction and equipment of buildings, the construction and installation of all utility services and the doing of any and all things necessary in connection with or pertaining to the acquisition and development of such land or property as industrial sites including but not limited to the architectural and engineering services incident thereto.” Section 10 of Ch. 689 contained the following legislative findings: “(b) That a need exists for new and expanded industrial enterprises within said County and that the County Commissioners for Prince George’s County should be enabled to promote industrial development therein; and “(c) That the County Commissioners for Prince George’s County by the acquisition of potential industrial lands may directly solicit industrial users of said land thereby affording the creation of employment opportunities for the residents of Prince George’s County, the diversification and increase of the taxable base available to said County, and the establishment of a healthy economic mix of gainful pursuits within said County so as not to depend in too large a degree upon one segment of the economy, e.g., federal government oriented industry; and “(d) That the acquisition of potential industrial lands and construction of industrial facilities has the single object of preserving and improving the economic well-being of the residents of Prince George’s County, and is found and determined to be in the public interest.” Ch. 689 and the project authorized by it have been considered by this Court on four prior occasions.

In City of Bowie v. County Comm’rs, 258 Md. 454 , 267 A. 2d 172 (1970), ¹⁷⁴ Bowie challenged a trial court ruling that the issuance of $5,250,000 worth of bonds by the County under Ch. 689 was valid. We rejected Bowie’s argument that the County Commissioners did not properly authorize issuance of the bonds and affirmed the trial court’s decision. In City of Bowie v. County Comm’rs, 260 Md. 116 , 271 A. 2d 657 (1970), Bowie appealed the trial court’s dismissal of its bill of complaint to enjoin construction of the airport authorized by Ch. 689. We affirmed the trial court’s decision that an injunction should not issue.

Next, in Prince George’s Co. v. Beard, 266 Md. 83 , 291 A. 2d 636 (1972), the County challenged a trial court ruling that the County Council had abandoned the project authorized under Ch. 689. We held that the Council by itself had no authority to abandon the project if the project had been included in the capital budget. By the time Beard reached us, the County had eliminated the airport feature of the industrial park project. The appellees in Beard raised the issue of whether the industrial park alone constituted a public use.

The record the County had made concerning the specific uses proposed for the industrial park was sparse. Therefore, we remanded the case to allow the County to produce more evidence concerning the exact nature of the proposed industrial park. Judge Smith, speaking for the Court, said (id. at 96-97): “Upon the remand the County will have full opportunity to spell out the use it proposes making of the property and all the details surrounding that use. In upholding condemnation for the purpose of constructing port facilities, a use that seems to be widely permitted, our predecessors in Marchant v. Baltimore, 146 Md. 513, 521 , 126 A. 884 (1924), spoke of the fact that the construction was ‘according to a comprehensive plan, by which the commerce of the port [would] be most advantageously served, and its future growth encouraged.’ In order for a court to perform its judicial function in this type of case the plan should indeed be comprehensive.” ¹⁷⁵ The instant case represents the latest controversy surrounding the proposed industrial park.

This case was initiated when, on August 22, 1968, shortly after the effective date of Ch. 689, a petition was filed in the Circuit Court for Prince George’s County by the County seeking condemnation of 323.5092 acres of land for construction of a “public airport facility.” The tract sought to be condemned is located in the southwest corner of the intersection of Maryland Route 214 and U.S. Route 301. On December 3, 1968, the appellee, Collington Crossroads, Inc., filed a demurrer to the petition. On June 11, 1971, Prince George’s County moved to amend its petition to allow condemnation of the land solely for the purpose of developing an industrial park. On March 3, 1972, the court denied the motion and dismissed the petition for condemnation, and the County took an appeal, Pr.

George’s Co. v. Collington, 268 Md. 69 , 299 A. 2d 792 (1973). 2 There, we rejected Collington’s argument that the County Council had abandoned the industrial park project, on the basis of our holding in Beard that inclusion of the project in the capital budget precluded its cancellation by a County Council bill. Collington conceded that the project had been included in the capital budget. We further pointed out that the Council had, subsequent to its bill attempting to withdraw authority to proceed with the project, passed another bill authorizing the Executive to proceed with plans for an industrial park. Having concluded that the circuit court had improperly dismissed the County’s petition, we turned to the issue of whether the court should have allowed the amendment sought by the County.

We concluded that leave to amend ¹⁷⁶ should have been granted in order best to serve the ends of justice. We further stated ( 268 Md. at 78 ): “We express no opinion as to whether the use of the land of Collington contemplated by the County is or is not one for which an eminent domain proceeding may be maintained since, as indicated in Beard , we do not have sufficient information before us to make such a determination. “Certainly a corollary to leave to amend should be agreement upon the part of the County to proceed to trial within a reasonable time. . . . The County should either perfect its plan and proceed expeditiously or dismiss the proceedings.” Upon remand, the County filed an amended petition for condemnation of the 323.5092 acres for use as an industrial park. The petition alleged: “That a need exists for new and expanded industrial and trade facilities within Prince George’s County in order to attract industry and related enterprise and to diversify and increase the taxable base available in the County, and that need exists also for the establishment of a healthy economic mix of gainful pursuits within the County so as not to depend too heavily on one segment of the economy—e.g., Federal government-oriented industry—and that a need exists also to create employment opportunities for the residents of the County through the promotion and growth of new and existing industries.” The appellee, Collington Crossroads, Inc., filed its answer on September 4,1973.

A fifteen-member Industrial Park Task Force, authorized by the County Council in Bill No. CB-85-1972 and appointed by the County Executive, was assigned to formulate a comprehensive plan of development for the industrial park of which Collington’s tract is proposed to be a part. The task ¹⁷⁷ force submitted its final plan (the “Comprehensive Plan for the Prince George’s County Employment Park”) on November 23, 1973. The plan called for assembling by the County of about 1690 acres, 930 of which were already owned by the County. The plan contained the following statement of its objectives: “Prince George’s County has identified certain critical needs concerning an increasing imbalance between County potential and County realization.

The proposed Employment Park is an opportunity to influence this imbalance by increasing the tax base and providing a balanced employment area with jobs for County residents, reducing their journey-to-work and increasing local control. The Park will provide a choice of prime sites for various businesses, clearly separated from residential neighborhoods. The Site, approximately 1700 acres, is well suited for the proposed use. Its development by the public sector will provide a unified, integrated system, maximizing coordination of the public resources.

Such an endeavor would not be possible by private individuals except at excessive costs.” The unique beneficial effects which were expected to result from development of this employment center were described in the plan as follows: “Development of the Employment Park will have a beneficial effect upon public needs, primarily in the creation of new job opportunities and new tax ratables. With a strong marketing program the County’s economic base would be expanded with up to 632 acres of industrial development. Desirable industries would be attracted to the County, including research and development and other ‘clean’ industrial types. Ultimately, 8200 workers will probably be located on the Site, providing up to 5,800 new job opportunities for County residents. ¹⁷⁸ There will be a real property tax yield at Park completion of nearly $4.8 million annually.

Wage potentials would be favorably affected, especially by research and development employment.” The plan was formally approved by the County Council on March 5, 1974, and by the County Executive on March 29, 1974. On April 7, 1974, a hearing limited to the issue of the County’s right to condemn the 323.5092 acre tract was held before the Circuit Court for Prince George’s County (R. Powers, C. J.). The “Comprehensive Plan for the Prince George’s County Employment Park” as well as other documents were presented as exhibits to the court. In addition, the court heard the testimony of Dr. David Wallace, a planning expert.

Dr. Wallace testified with regard to the County’s purpose in seeking to have the employment center designed: “Essentially, Prince George’s County has found itself increasingly a bedroom community of the Washington metropolitan area and this is a proposal to change that circumstance.” Dr. Wallace described the various commercial, industrial, and recreational uses provided for in the plan. He stated that public facilities would necessarily have to be provided to develop the industrial park. He explained the conclusions set forth in the plan: “We were asked by the County to determine which of a variety of alternative methods of development would be the most appropriate and came to the conclusion that the desirable characteristics of accountability, unified operation, ownership of the site, adequate financing, industrial marketing capability, flexibility in planning and disposition, pricing capability, and staffing and organizational capability, maintenance and security, and industrial financing all lead to the proposal for the creation of a development authority under State legislation which the County could avail itself of. “The recommendations, therefore, were that the ¹⁷⁹ authority should have a non-profit, public-purpose emphasis built into its charter; should have industrial development as its sole purpose . .. .” Dr. Wallace went on to delineate the economic benefits for the County that would result from the implemented plan: “The final considerations... [of the plan] were in terms of public needs and fiscal benefits starting with the expansion of the County’s economic base as essentially a public purpose of the plan, the attraction of desirable industrial employment, increased job opportunities for County residents, the wage potentials, attractive to the County in terms of taxes, the improvement of the tax base itself in terms of property tax, and then a consideration of the fiscal impact. In summary, the effect of the Employment Park under the proposed development program on County revenues and expenditures at completion should produce a net surplus of approximately $4.1 million to be distributed for County-wide needs annually.” On May 23, 1974, the circuit court rendered its opinion, stating that the purpose of the condemnation in this case was for private use, not public use.

The court based its ruling on the fact that the commercial land “will be owned by private entities” when the park is fully developed. The court dismissed the County’s amended petition for condemnation, and the County filed the present appeal. We have concluded, upon consideration of the facts of this case, that the use proposed by the County for the land sought to be condemned is a public use rather than a private use and that, therefore, the condemnation is constitutionally permissible. Two factors relating to the condemnation sought in this case should be emphasized.

First, the County Council for Prince George’s County and the County Executive, in adopting the task force’s comprehensive plan, made the finding that the type of ¹⁸⁰ industrial park which it considered necessary for the economic well-being of the County would be too costly for private developers to carry out. The planned industrial park was meant to attract “research and development and other ‘clean’ industrial types” which the County had had difficulty attracting. Appellee did not present any evidence to dispute the County Council’s and the County Executive’s findings in this case. At oral argument, one of its contentions seemed to be that the County had an unfair advantage because of its exemption from taxes and power of condemnation, and thus should not be allowed to compete with private developers.

Whatever merit this contention might have is lost in this case since the record indicates that the County will not be in direct competition with private entrepreneurs. Here the County plans a type of project which the private developers were apparently unable or unwilling to undertake. Second, the County will maintain significant control over the industrial park after the commercial land therein is sold to private owners. The County will subject land conveyed to private parties to certain “development covenants.” The comprehensive plan provides that “[t]hese covenants will deal with management of natural features, maintenance of health, safety and welfare, control of hazards and nuisances, and guidelines for assuring a high quality physical environment.” The entire industrial park will be placed in a EIA (Comprehensive Design for Employment and Institutional Areas) zoning classification.

As the comprehensive plan states, the classification “will offer Prince George’s County the opportunity to control the detailed development of this 1700 acre area through the use of a three phase process of review and approval of detailed plans.” Finally, the comprehensive plan provides that over 20% of the industrial park site will be preserved as permanent public or private open space. The public open space will include the “Collington Branch floodplain ... [which] will receive open space improvements pursuant to the Maryland-National Capital Park and Planning Commission guidelines for stream valley parks.” Private open space will include a golf course. ¹⁸¹ The above factors, failure of private developers to provide the necessary industrial park facilities and the continuing control the County will exert over the development of this facility, must be kept in mind in applying the cases which have dealt with the issue of what constitutes a public use. In evaluating the use for which a governmental body attempts to exercise the power of eminent domain, the courts have the responsibility of enforcing the constitutional limitation that the use must be “public.” As our predecessors said in Widen v. Phila., B. & W. R. R. Co., 182 Md. 336, 340 , 35 A. 2d 99 (1943): “Of course, the Legislature cannot make a use public merely by declaring it so. Whether a particular use for which private property is sought is in fact public is ultimately a question for the determination of the court.” Prince George’s Co. v. Beard, supra, 266 Md. at 95 ; Perellis v. M. & C. C. of Balto., 190 Md. 86, 93 , 57 A. 2d 341 (1948); Cox v. Revelle, 125 Md. 579, 588 , 94 A. 203 (1915); Pitznogle v. Western Maryland R. R. Co., 119 Md. 673, 678 , 87 A. 917 (1913); Webster v. Pole Line Co., 112 Md. 416, 426 , 76 A. 254 (1910); Amsperger v. Crawford, 101 Md. 247, 252-253 , 61 A. 413 (1905); Van Witsen v. Gutman, 79 Md. 405, 410 , 29 A. 608 (1894); New Central Coal Co. v. George’s Creek Coal & Iron Co., 37 Md. 537, 560 (1873).

However, the courts have had some difficulty in their efforts to define “public use.” No satisfactory single clear-cut rule regarding what is a public use, which can decide all cases, has yet been formulated. Moreover, even if it were possible to formulate such a rule, it would probably not be prudent to do so. As Judge Delaplaine stated for the Court in Riden v. Phila., B. & W. R. R. Co., supra, 182 Md. at 340 -341: “Since the framers of the State Constitutions have seldom, if ever, definitely defined the term ‘public use,’ the courts have striven to formulate a uniform definition, but without success. The Court of ¹⁸² Appeals of New York recently said: ‘Over many years and in a multitude of cases the courts have vainly attempted to define comprehensively the concept of a public use and to formulate a universal test.

They have found here as elsewhere that to formulate anything ultimate, even though it were possible, would, in an inevitably changing world, be unwise if not futile.’ New York City Housing Authority v. Muller, 270 N.Y. 333 , 1 N.E.2d 153, 155 , 105 A.L.R. 905, 910 .” See Nichols, Eminent Domain § 7.2 (1974); 26 Am.Jur.2d Eminent Domain § 27 (1966). This Court has made clear that “public use” does not mean that in all cases the public must literally or physically be permitted to use the property taken by eminent domain. Nor is it necessary that title to the condemned property be in the government. In New Central Coal Co. v. George’s Creek Coal & Iron Co., supra, the issue before the Court was the validity of a condemnation for the construction of a track from an existing railroad line across the appellee’s land.

The condemnation was undertaken by New