Prince George's County v. Silverman

BELL, Judge. Marc Silverman (Silverman), Appellee, sought a Declaratory Judgment and a Writ of Mandamus to have Prince George’s County (County), Appellant, convey the “Marton Tract” to him as the highest qualified bidder. The Circuit Court for Prince George’s County ordered that the sale be ratified and that a Writ of Mandamus issue commanding the County Executive of Prince George’s County to execute a deed of conveyance to Silverman. On appeal.the County raises three issues for our consideration: I. Whether the court erred in holding that the County Council’s action regarding Resolution CR-120-1981, which pertained to the “Marton Tract”, was illegal and improper.

II

Whether the court erred in holding that a contract for the sale of the “Marton Tract” existed between the County and Silverman.

III

Whether the County Executive has the capacity to contract to convey the “Marton Tract” in the absence of approval by the County Council. FACTS In 1980, the Board of Education conveyed the Marton Tract to Prince George’s County. The Board of Education had acquired the tract in 1958 from the Marton family. The ⁴⁷ tract consists of approximately four acres of land and is part of Lot 7 in the Richard S. Hills Subdivision.

The property lies north of Maryland Route 198 near the intersection of Route 198 and Interstate 95. Since March of 1977, the County has disposed of some 40 to 50 “major surplus properties” (property containing improvements or property valued in excess of $25,000). Although Section 2-111.1 of the Prince George’s County Code requires the County Executive to inventory surplus property for approval by the County Council before he disposes of it, in all of the 40 to 50 surplus property dispositions, the County Executive first secured a bona fide transíeree/purchaser and thereafter submitted the matter to the council for approval. In all cases except the Marton Tract, the council approved the sale of the surplus property.

The Marton Tract was advertised for sale in January of 1981 as surplus property of the County. Silverman contacted Raymond Austin of the County’s Bureau of Property Management in response to the advertisement. He received a “bid package” from that office. Silverman submitted a sealed bid, on a form entitled “Bid and Option to Acquire Real Property”, in the amount of $50,000 with a cashier’s check for $5,000 payable to the County.

The sealed bids were opened on February 27, 1981, and Silverman qualified to participate in the oral auction. At the auction, Silverman was declared the successful bidder at $71,605. Silverman certified his bid on that same day. The only other competing bidders were Eileen and Wayne Updike, daughter and son-in-law of Clara Marton, at $70,000.

On March 11, 1981, the County cashed Silverman’s check for $5,000. During April of 1981, the County Executive prepared the proposed list of surplus property dispositions, designated as Resolution CR-63-1981, and submitted the list to the County Council for approval. The Marton Tract was “deleted” from the list with no explanation. On August 11, 1981, Austin informed Silverman that his bid for the Marton Tract had been accepted but that because ⁴⁸ the period for notification of acceptance of the option by the County had expired, the option was null and void.

A tender of a check in return of the deposit accompanied that notification. In response to the letter from Austin, Silverman met with County officials in an attempt to ascertain the problem. On August 28, 1981, the County informed Silverman that the County Executive intended to resubmit the Marton Tract for approval as surplus property as Resolution CR-120-1981. When the council first considered CR-120-1981 on October 13, 1981, it voted 6 to 5 in favor of approval; then one councilman changed his vote to defeat the resolution 6 to 5.

Following that action the council approved, by a vote of 6 to 5, a motion to table consideration of the resolution indefinitely. At no point during their consideration did the council make any reference to whether the subject property was needed for a public purpose. The transcript of the council proceedings indicated that some council members felt the prior owners, the Martons, had been unfairly forced to sell their land. At the time CR-120-1981 was under consideration by the County Council, legislation was pending which would have amended the provision in the Code regarding the prior owners rights to reacquire surplus property.

On October 13,. 1981, when the council considered the sale of the Marton Tract, the Code provided: Notwithstanding the foregoing provisions of this subsection (d), a person from whom property was acquired by the County, or the person’s successor in interest, shall have first right over municipality, any government entity or agency other than Prince George’s County, or any other person to reacquire the property (or such portion of it which is declared surplus) if all the following conditions are met: (3) The determination of the County Executive that the property is surplus occurs within ten (10) years after County acquisition. (Emphasis added). ⁴⁹ Prince George’s County Code Section 2-111.1(d). The pending legislation would have changed the period during which the prior owners had a right to reacquire the property from 10 to 15, 25, or 40 years. (Note — Section 2-111.1 was in fact amended on June 23, 1982 to extend the period to 25 years.) When Silverman filed the instant action to enforce his option to purchase the Marton Tract, Clara Marton intervened.

The court found Clara Marton would be entitled to reacquire the property only if the following two conditions were met: (1) The Council’s action on CR-120-1981 was legal and proper, and (2) Amended Section 2-111.1 applied to this case. After a thorough and well reasoned discussion, the court found: the County Executive’s determination that the Marton Tract is no longer needed for a public purpose was correct, there being no evidence to the contrary; that the Council’s failure to approve — the “Marton Tract” as surplus was motivated by legally unauthorized considerations, i.e., prolonging a sale of county property until a Code Amendment could be enacted that would enure to the benefit of a special interest; that the purchaser [Silverman] met all the procedural requirements made known to him by the County; and that Petitioner, Marc Silverman, should be granted the relief he seeks in these proceedings for the reasons herein set forth. The court further found that under the law in effect at the time the matter was before the County Council, Clara Mar-ton had no right of reacquisition because the 10 year period had expired. I. Whether the Council’s action regarding the Marton Tract was illegal and improper.

The lower court found that the council’s sole function in considering CR-120-1981 was to determine whether the ⁵⁰ Marton Tract was needed for a public purpose. Since the council indefinitely tabled the resolution to allow .Section 2-111.1 to be amended so that a prior owner could reacquire the property, the court held the council acted improperly and arbitrarily. The County contends that based on the applicable statutory provisions, which require the council to approve the Executive’s determinations, the trial court invaded the province of the County Council in determining that it considered impermissible factors. The County cites County Council for Montgomery County v. District Land Corp., 274 Md. 691 , 337 A.2d 712 (1975) in support, which holds that the motives, wisdom or propriety of a municipal governing body in passing an ordinance are not subject to judicial inquiry.

Our discussion of this issue is addressed in two parts: (A) whether the court had authority to address the matter; (B) whether the court erred in finding the council’s action improper. A. The standard of review by the circuit court when the County Council or another administrative body is acting in a quasi-judicial or administrative capacity is whether the action was arbitrary, capricious, or discriminatory. County Council v. Carl M. Freeman Assoc., 281 Md. 70, 74 , 376 A.2d 860 (1977); See also; Montgomery County v. Woodward and Lothrop, 280 Md. 686, 706 , 376 A.2d 483 (1977); Stratakis v. Beauchamp, 268 Md. 643, 652 , 304 A.2d 244 (1973). The test to determine whether action is legislative or administrative is whether the action is one making new law, i.e.'an enactment of general application prescribing a new plan or policy, or is one which merely looks to or facilitates the administration, execution or implementation of a law already in force.

City of Bowie v. County Comm’r for Prince George's County, 258 Md. 454, 463 , 267 A.2d 172 (1970). In considering CR-120-1981 on October 13, 1981, the council was not functioning in a purely legislative capacity. ⁵¹ Rather, it operated in a quasi-judicial or administrative capacity. The council dealt with the disposition of one isolated parcel of property. The effect of its decision was restricted to the individuals who had an interest in the property and had no effect on the general safety or welfare.

The council essentially adjudicated Silverman’s rights in the property. Thus the trial court did not invade the province of the council because it did not attack the validity of a legislative enactment; rather it simply determined whether the council’s action on Resolution CR-120-1981, pursuant to a prior legislative enactment (Section 2-111.1 of P.G.Co. Code), was arbitrary and discriminatory. The County’s reliance on District Land Corp., supra, for the proposition that the court invaded the legislative province of the council is misplaced. The Court of Appeals held in that case that a comprehensive rezoning plan bearing a substantial relationship to the public health and welfare enjoys a strong presumption of validity, and that the motives, wisdom, or propriety of a municipal body in passing the ordinance effectuating the comprehensive rezoning are not subject to judicial inquiry.

The adoption of a sectional zoning map in that case, was deemed a “legislative” act because it concerned legislative facts, e.g. zoning of a large area and impact on general welfare of the county. In the case at bar, however, the consideration of the Marton Tract involved the council in a quasi-judicial capacity. B. The trial court did not err in holding that the council’s failure to approve CR-120-1981 was improper and arbitrary. The initial question we must address, for purposes of the instant case, is within which branch of the government does the power to dispose of surplus property lie.

Executive Branch Article XI-A of the Maryland Constitution (Home Rule Amendment) sets forth the steps to be taken at the local level to establish a charter local government. Section 1 of ⁵² Article XI-A the Home Rule Amendment authorizes the counties to choose a charter form of government, which if adopted by the voters of the county, becomes the law or “constitution” of the county. Section 2 mandates the adoption by the Maryland General Assembly of a grant of express powers for those counties choosing a charter form of government. Pursuant to the mandate, the General Assembly enacted the “Express Powers Act”, codified in Article 25A of the Annotated Code of Maryland.

Article 25A, Section 5(B) of the Maryland Code permits the disposition by the County of “any real or leasehold property belonging to the County, provided the same is no longer needed for public use.” The Prince George’s County Charter, Article IV, Section 402 enumerates the specific powers of the executive branch of the county government. It provides that all those specific powers vested in Prince George’s County by the Constitution shall be vested in the County Executive. Among the enumerated powers is the power to “sign or cause to be signed on the county’s behalf all deeds, contracts, and other instruments ...” Prince George’s County Charter, Article IV, Section 402(8). Prince George’s County Code, Subtitle Two, Division 2, Section 2-111.1 sets forth a framework for the declaration of county owned property as surplus and the disposal of the property.

It provides in pertinent part: The County Executive shall be authorized to sell, lease or otherwise dispose of any County owned real property, no longer needed for public use or in furtherance of the public purpose, in accordance with the following provisions: (a) The County Executive shall establish an inventory of all real property and. improvements titled in the name of Prince George’s County .. . (b) The County Executive, at least once annually, shall review the inventory of all real property and improvements held in fee by Prince George’s County and shall ⁵³ transmit, for the approval by resolution of the County Council, a list of all properties to be leased, offered for sale, or otherwise disposed of. . . . Pursuant to the above, we agree with the trial court that the County Executive was empowered to dispose of county owned surplus property in accordance with the requirements of Section 2-111.1. Legislative Branch Subsection (S) of the Express Powers Act, Article 25A, of the Maryland Code provides: The foregoing or other enumeration of powers in this article shall not be held to limit the power of the county council, in addition thereto, to pass all ordinances, resolutions, or by-laws, not inconsistent with the provisions of this article or the laws of the State, as may be proper in executing and enforcing any of the powers enumerated in this section ... as may be deemed expedient in maintaining the peace, good government, health and welfare of the county.

This section contains a general grant of power to pass laws for the peace, good government, health and welfare of the County. Pursuant to this grant of power, measures may be passed which are necessary and beneficial, and will be adjudged valid by the courts, provided they are reasonable and consistent with the laws and policy of the State. Montgomery Citizens League v. Greenhalgh, 253 Md. 151, 161 , 252 A.2d 242 (1969). Thus where council legislation bears a reasonable relationship to the implementation of an enumerated power, the legislation will be upheld.

Applying the above analysis to the County Code we agree with the trial court that: (1) The requirement that the County Executive annually inventory all County owned property no longer needed for a public purpose is necessary for the Council to be apprised of the County’s surplus land holdings and proper to return to the tax rolls or other governmental agencies; and ⁵⁴ (2) The provision requiring Council approval that properties are in fact surplus is likewise a necessary and proper exercise of legislative checks and balances on the executive determination to dispose of County property: To hold otherwise could result in the County Executive’s declaration that all the county-owned property is surplus. The problem in this case, however, is not whether Section 2-111.1 is valid, but whether Section 2-111.1 was properly followed. Section 2-111.1 sets forth the procedure for disposing of surplus property. It is designed to insure fairness