Rollins Outdoor Advertising Inc. v. State Roads Commission of State Highway Administration

GETTY, Judge. This case is an appeal by Rollins Outdoor Advertising, Inc. and Rollins, Inc. (hereinafter referred to jointly as “Rollins”) from several rulings of the Circuit Court for Frederick County, and from a jury determination of just compensation due Rollins for the removal of three outdoor advertising signs. The land on which the signs were located was acquired by the State Roads Commission of the State Highway Administration (hereinafter, “State”) and a condemnation proceeding was subsequently filed by the State seeking the removal of the signs. Rollins raises seven issues which we shall combine into four, namely: 1.

Did the court err in ruling that the State acted in good faith and established a public necessity for condemning the signs? 2. Did the court err in permitting testimony regarding the reasons for condemning the signs at the compensation trial? 3. Was the jury verdict supported by the evidence? 4. Did the court err in ruling that Rollins was not entitled to relocation assistance? ²⁰⁰ Background On July 11, 1979, the State acquired 6.38 acres of the Telum property in Frederick County for the purpose of upgrading the existing interchange at Route 85 and 1-70.

Rollins owned three outdoor advertising panels on the site on a year to year lease. Following the purchase by the State, Rollins paid rent to the State until the lease expired on June 1, 1980. The lease was not renewed by the Board of Public Works. Prior to the expiration of the lease, Rollins and the State engaged in negotiations for an extension of the lease or acquisition of the signs as required by law.

Md.Real Prop. Code Ann. § 12-208(a) (1981). The State wanted Rollins to remove two other advertising panels on a tract unrelated to this case and Rollins refused, because the State’s offer of reimbursement for the signs was allegedly too low. Consequently, the lease pertaining to the three signs involved herein was not renewed and on July 9, 1980, the State filed a condemnation petition.

The stated purpose for acquiring the signs was ‘for the construction, reconstruction, improvement, maintenance and completion of the State System of Roads and Budgets, and designated as 1-70 Southwest Quadrant of Maryland Route 355 Interchange-Safety Project in Frederick County, Maryland.” Thereafter, by motion for summary judgment, Rollins alleged: 1. That the State had not acted in good faith in proceeding with the condemnation; 2. That the State had not demonstrated adequate public necessity for the taking; 3. That Rollins was entitled to relocation assistance.

The Circuit Court (Wenner, J.) granted Rollins a bifurcated trial on the issues of good faith and necessity pursuant to Md.Rule 502 (now Rule 2-502), but denied Rollins’ motion on the issue of relocation assistance. Thereafter, on May 13, 1982, the Circuit Court (Barrick, J.) ruled that the State did not act in bad faith and, further, that adequate public ²⁰¹ necessity had been shown justifying acquisition of the signs. On September 13, 1982, a jury determined that just compensation for the taking was the sum of $12,250.00. Rollins’ motion for new trial, relating to relocation assistance, was denied and a subsequent appeal to this Court was dismissed as premature.

A second motion for new trial, directed to “necessity” and “just compensation,” was also denied by the trial court. Issue 1 Md. Transportation Article § 8-313 authorizes the State to acquire any land along or near any State highway “to protect the highway or any scenery along or near it” where the land is needed for immediate or proposed construction. Rollins argues that the signs do not interfere with the now completed intersection. Necessity for the taking, however, must be judged as of the time the action to condemn was undertaken, not by the result after construction.

The question of the necessity for the taking can only be successfully challenged in the courts when the action of the agency in determining the necessity for the taking was so oppressive, arbitrary, or unreasonable as to suggest bad faith, or its exercise of its discretionary power was fraudulent or such abuse of discretion as to amount to a breach of trust. Davis v. Montgomery County, 267 Md. 456 , 298 A.2d 178 (1972). In exercising its power of eminent domain, the State must act reasonably, in good faith, and only where public necessity for the taking exists. A reviewing court, the Circuit Court herein, shall determine whether adequate public necessity exists, and whether the decision is “so oppressive, arbitrary or unreasonable as to suggest bad faith.” Washington Suburban Sanitary Commission v. Santorios, 234 Md. 342 , 199 A.2d 206 (1964); Masson v. Reindollar, 193 Md. 683 , 69 A.2d 482 (1949). ²⁰² Rollins, admitting that it has no direct evidence of bad faith, contends that the motive for condemning was retribution for Rollins’ refusal to accept the State’s offer for the removal of two signs in an adjacent area along 1-70.

Pointing to Real Property Article § 12-208(a), which requires a public agency acquiring an interest in land to acquire at least an equal interest in other structures thereon, Rollins asserts that the State made no attempt to acquire the signs until a year after it acquired the site and after Rollins refused the State’s offer for the 1-70 signs. Additionally, Rollins contends that it had an agreement with the State that the 1-70 signs were to be removed before the lease for the subject signs could be renewed. The State countered this testimony through Edison Beachy, Right of Way Agent for the State Highway Administration. Beachy testified that the signs are behind the right of way line of a through highway where neither vehicular or pedestrian traffic is permitted and access to the signs is not available other than by crossing the right of way line of the through highway.

He added that the signs are within 660 feet of 1-70 which is in violation of the Highway Beautification Act. 1 For these reasons, according to Beachy, acquisition by the State was a necessity. The “gentleman’s agreement” concerning extension of the lease was between William Watts on Rollins’ behalf and H. Thomas Summers, acting for the State. Summers acknowledged that he was willing to extend the lease in 1980, because the proposed upgrading of the intersection at Route 85 and 1-70 was not going to be constructed for five years. When Summers learned that Rollins would not remove the 1-70 signs, he considered the proposed agreement to be no longer a viable alternative to condemnation.

Whether the failure of the agreement between the parties triggered a retaliatory action by the State was a matter to be resolved by the trial judge, not by this court. ²⁰³ Judge Barrick determined that the State had demonstrated a public necessity for acquiring the signs and that the State acted in good faith in dealing with Rollins. The evidence was sufficient to warrant the conclusions reached by the court and, therefore, the judgment reached was not clearly erroneous. Md.Rule 1086; Md. Dept. of Natural Resources v. Hirsch, 42 Md.App. 457 , 401 A.2d 491 (1979), (rev’d on other grounds, 288 Md. 95 , 416 A.2d 10 (1980)). Issue 2 We find no error in the court’s ruling allowing the State to explain to the jury the reasons for the condemnation of the signs.

The court charged the jury that the necessity for the taking had already been determined and that the jury’s only function was to determine the amount of just compensation. Rollins suggests that this testimony diverted the jury from its limited role of assessing just compensation, resulting in a lower amount than it otherwise may have found. We see no merit in this argument. Issue 3 The range of values presented to the jury varied from $12,250.00 to $20,000.00.

The jury adopted the State’s value of the signs and awarded Rollins the sum of $12,-250.00. Expert testimony was presented as to each figure, accompanied by the method of calculation. Each expert was subjected to cross-examination. The weight of the evidence is a matter for the jury to determine.

Bergeman v. State Roads Commission, 218 Md. 137 , 146 A.2d 48 (1958). We perceive no error. Issue 4 Article III, Section 40 of the Constitution of Maryland 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 ²⁰⁴ awarded by a jury, being first paid or tendered to the party entitled to such compensation____” The Federal Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, codified as 42 U.S.C.A., § 4601 , et seq., became effective January 2, 1971. Subchapter II, entitled Uniform Relocation Assistance, has as its stated purpose the adoption of a uniform policy for the fair and equitable treatment of persons displaced as a result of federal and federally assisted programs, in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.

Real Property Article, Title 12, Subtitle II, Relocation and Assistance, is the present Maryland counterpart of Subchapter II of the Federal Act. By Chapter 628 of the Laws of Maryland, 1971, the Legislature, in order to acquire maximum federal funds for federally aided public projects, enacted a new subtitle governing Relocation Assistance Policies and Payments. The new Act became effective July 1, 1971, with the payment provisions retroactive to January 2, 1971. The language of the federal and state statutes is markedly similar and in the absence of Maryland case law discussing relocation assistance, we may refer to the federal cases for guidance.

Rollins contends that it is entitled to relocation assistance under Real Property Article § 12-205 which provides: § 12-205. Moving and relocation expenses. (a) Generally. — If the acquisition of land for a program or project undertaken by a public or private agency will result in the displacement of any person, the public or private agency shall make a payment to the displaced person, on proper application as approved by the public or private agency, for: (1) Actual reasonable expenses in moving himself, his family, business, farm operation, or other personal property; ²⁰⁵ (2) Actual direct loss of tangible personal property as a result of moving or discontinuing a business or farm operation, but not exceeding an amount equal to the reasonable expenses that would have been required