Sapero v. Mayor of Baltimore

CATHELL, J. We are presented in this case, yet again, with litigation stemming from the City of Baltimore’s use of quick-take condemnation. Specifically, this case arises out of an attempt by the Mayor and City Council of Baltimore (“the City”), appellee, to condemn several private properties via quick-take. 1 The properties in question, owned by Robert A. Sape ³²⁰ ro, 2 appellant, are located at 1701-1709 North Charles Street (commonly referred to as the “Chesapeake Restaurant”) and 22-24 East Lanvale Street, both located in Baltimore City, Maryland (collectively referred to as “the Properties”). On December 8, 2005, the City filed with the Circuit Court for Baltimore City an action for regular condemnation and, within it, a petition for immediate possession of and title to the Properties. Thirteen days later, on December 21, 2005, the Circuit Court granted the City’s petitions, divesting Mr. Sapero of his property by ordering that the City “be vested with possession of the fee simple interests in those properties known as 1701-1709 N. Charles Street and 22-24[E.] Lanvale Street ... as of the 21st day of DECEMBER, 2005....” Pursuant to the court’s order, title to the Properties ultimately would vest in the City ten days after personal service of the petitions and relevant order, upon all defendants who had an interest in the Properties, unless such interested parties 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. Sapero timely filed an answer.

On January 20, 2006, the City filed an amended, petition to correct typographical errors in the street directional designations. On that same date, Mr. Sapero filed a motion to vacate. On March 10, 2006, the City filed a second amended petition to include a contract purchasér of the property located at 1701-1709 N. Charles Street, Victor Cheswick, Jr. After several postponements, 3 the ³²¹ Circuit Court finally held a hearing on March 20, 2006, where it heard arguments concerning the City’s petitions and Mr. Sapero’s motion to vacate. The Circuit Court granted the City’s petitions and denied Mr. Sapero’s motion to vacate.

On March 30, 2006, Mr. Sapero filed a motion to alter or amend judgment. The Circuit Court denied that motion. This appeal followed. 4 Mr. Sapero presents several questions for our review: “1. Whether the Circuit Court could condemn Appellant’s real property where the known contract purchase[r] was not timely made a party to the proceeding? 2.

Whether the quick-take statute denies due process where the Appellant was not permitted to conduct and complete discovery? 3. Whether Appellee proved an immediate need for possession by merely testifying that it was necessary for ‘business expansion?’ 4. Whether Appellee acted in good faith in the condemnation proceeding by valuing Appellant’s property at $770,000 when it had actual knowledge of an existing arm’s length purchase contract priced at $2,000,000 for only a portion of the property? ³²² 5. Whether Appellee can constitutionally condemn Appellant’s property for economic development without proving a carefully considered or significantly controlled development plan? 6.

Whether the Circuit Court could issue an order under the quick-take statute thirteen days after the filing of the petition when the statute requires the order to be entered within seven days?” As noted, the Circuit Court entered its judgment in this case prior to our decision in Mayor and City Council of Baltimore v. Valsamaki, 397 Md. 222 , 916 A.2d 324 (2007). Therefore, the trial court did not have the benefit of our recent decision discussing the requirement of a showing of immediate necessity by the City for condemnations via quick-take under the Code of Public Local Laws of Baltimore City, § 21-16. We reiterate that 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.” Valsamaki, 397 Md. at 228 , 916 A.2d at 327 . As we discuss below, the factual circumstances of the case sub judice do not demonstrate that there was a sufficient showing by the City that immediate possession of the Properties was necessary.

Therefore, quick-take condemnation was not the proper method for the City’s acquisition of the Properties. We shall vacate the judgment of the Circuit Court for Baltimore City with respect to the petition for immediate possession. Additionally, we shall address Mr. Sapero’s due process concerns in regard to the limited discovery allowable under quick-take condemnation pursuant to § 21-16. With our disposition of the case in addressing questions two and three, we need not resolve Mr. Sapero’s other concerns. 5 ³²³ I. Facts This case arises from circumstances very similar to those in Mayor and City Council of Baltimore v. Valsamaki, 397 Md. 222 , 916 A.2d 324 (2007), supra, our recent decision concerning quick-take condemnation in Baltimore City.

As in Valsamaki , we are presented with the City’s attempt to obtain possession of private property in furtherance of its urban renewal efforts, specifically in the Charles North Revitalization Area. We described that plan in Valsamaki : “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.[ 6 ] Ordinance No. 82-799 sets ³²⁴ forth the goals 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; ³²⁵ 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 [in the case sub judice, 1701-1709 North Charles Street and 22-24 East Lanvale Street] is located within the boundaries of the Charles North Revitalization Area. In June 2004, the Mayor and City 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— ’” Valsamaki, 397 Md. at 230 , 916 A.2d at 328 .

The Charles North Urban Renewal Plan has been in existence since October 1982 and, from June 2004 onward, the City has been specifically authorized by Ordinance No. 04-695 to acquire the subject Properties. Nonetheless, as in Valsamaki , the City did not act on its authority for well over a year. Apparently the City attempted to negotiate the purchase of the Properties and when it could not reach an agreeable purchase price with Mr. Sapero, it moved forward with quick-take condemnation. ³²⁶ Had the City filed an action for regular condemnation when first authorized to do so, there would have been more than 19 months prior to the decision of the trial court during which Mr. Sapero would have had a more complete opportunity to litigate (utilizing discovery) and thus properly present defenses—which a property owner is entitled to do. Throughout a period of time that general condemnation litigation is going forward, governmental entities may continue to negotiate with property owners.

The primary result of the practice in the instant case (as in Valsamaki)—whereby the City waits almost a year and a half, then attempts to acquire property via the quick-take procedure—is that the City effectively forecloses the ability of private property owners to fully litigate. In the absence of a true exigency, or an emergency such as an immediate need to alleviate dangerous or unhealthy conditions, the use of quick-take should always be subject to close scrutiny as to the purpose for its use. It should not be used solely as a litigation tactic. It must not be forgotten that private property rights are fundamental constitutional rights under both the Federal and State Constitutions.

On December 8, 2005, the City filed in the Circuit Court for Baltimore City a petition for condemnation and then a petition for immediate possession of and title to the Properties. The City’s petition for condemnation stated that: “It is necessary for the [City] to acquire the fee simple interest in and to the property known as 1701-1709[N.] Charles Street and 22-24[EJ Lanvale Street, in Baltimore City, State of Maryland ... together with improvements thereupon, and all the rights, ways, waters, easements, privileges, advantages and appurtenances thereto belonging or in anywise appertaining.” The petition for condemnation further provided that “[t]his property will be used for redevelopment purposes; namely in the North Chárles Project area.” The City’s subsequent petition for immediate possession and title stated: “That it is necessary for Petitioner to acquire immediate possession and title to the said property interests ³²⁷ 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.” The attached affidavit of William N. Burgee stated, in relevant part, only that “[t]hese properties ... 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.” Again, as in Valsamaki , there was no attempt in the affidavit to specify the immediacy of the necessity other than the general statement that the Properties were needed “at the earliest possible time in order to assist in a business expansion in the area.” [Emphasis added]. The City, in the affidavit, provided no reason “why” any such business expansion necessitated the immediate acquisition of the Properties. After the Circuit Court granted the City’s petitions on December 21, 2005, Mr. Sapero timely filed an answer in which he, among asserting other defenses, (1) denied that the City had the right or power to condemn the title to, and take possession of, the Properties and (2) attacked the constitutionality of the City’s petition for condemnation.

On February 24, 2006, Mr. Sapero served discovery on the City consisting of interrogatories, a request for production of documents, and a request for admissions. 7 Thereafter, on March 10, 2006, the City filed an amended petition, adding Victor Cheswick, Jr., contract purchaser for 1701-1709 North Charles Street, as an additional defendant. After several postponements, at least one of which was requested by the City, and more than three months after the City filed its quick-take petition, and almost two years after it had authority to condemn the Properties, a quick-take hearing 8 was held on March 20, 2006, in the Circuit Court for ³²⁸ Baltimore City. This was 20-21 months after the City could have initiated condemnation but only three months and several days after it actually did. The trial court first addressed Mr. Sapero’s request for a continuance based upon the fact that the contract purchaser (Mr. Cheswick)—a named party from the second amended complaint—was not present at the hearing.

After hearing arguments from the parties’ respective counsel, the trial court, that had granted a continuance to the City on the basis that one of its witnesses was not available, found that a continuance was not necessary in respect to the property owner’s request and also denied Mr. Sapero’s oral motion to vacate. Specifically, the trial court stated: “The court does not believe it’s appropriate to continue this proceeding, or to vacate that order simply because of the addition of Victor Cheswick to these proceedings that occurred sometime last week. “That is this issue of the timing of these proceedings is a delicate one. Now, clearly Mr. Sapero as the legal owner of the property, there is no dispute as to that. He has filed this motion, he asked this court for a hearing.

That has been addressed, and quite frankly, there has been more than ample time to address the procedural and substantive issues that are subject to this court’s review. “So for those reasons, the court is going to deny the motion for continuance at this time, deny the oral motion to vacate the court’s order of December 21, 2005, and go forward with a hearing on both the procedural and substantive issues raised in the motion to vacate, as well as any other proceedings that counsel wish this court to entertain.” After further argument by the parties as to how the hearing should proceed, the trial court stated: ³²⁹ “Before the court is a preliminary matter that defendant’s counsel raises with regard to the scope of this proceeding today. “It is argued by the defendant that the court should not go forward with a hearing on the fundamental issue of the due process and constitutional challenges to the city’s authority to take by quick take the property of the defendant. “It is argued that the defendant should have the opportunity to conduct reasonable discovery on the critical issues that are raised in this proceeding. “The city maintains that the defendants have had more than ample time, more time than typically afforded under the critical statute, Section 21-16C of the Code of Public Local Laws of Baltimore City. The city further argues that the whole purpose in a quick take proceeding is to provide title [to] the condemning authority so that it can go forward with a project. “The court must start and end the analysis with Section 21-16C, which according to the defendant’s argument, the court should not apply the time frame, because they are discretionary and not mandatory. “While I am empathetic to the reasonable concerns voiced by the defendant in terms of the time frame, that time frame is mandatory as established by the Code of Public Local Laws under Section 21-16. It provides [that] the court shall, not should, [ ] schedule a hearing within 15 days of the filing of an answer, which hearing shall be only for the purpose of contesting the right and power of the city to condemn the title to the property. “That in this court’s view is controlling, and therefore in light of the fact that in this case an answer and motion to vacate was filed on January 5 and an appropriate response in opposition was filed on February 15, we sit here today on March 20th really more than two months after the motion to vacate and the answer was filed by the defendant. ³³⁰ “That is significantly more time than even allowed by 21-16. So because of the plain meaning of 21-16, which I do understand and will say it’s very constricting in terms of time, the court must apply the time frame under that section of the Code of Public Local Laws. “So at this point, the court will go forward with the hearing on the defendant’s motion to vacate, and as well on the issue of the constitutional issue as to the propriety of the taking itself.” [Emphasis added.] The trial court then denied Mr. Sapero’s motion to vacate, stating: “In short, [although] it does seem in part unfair that the time frame is so stringent and so rigorous.

I do not find on the arguments presented that that time frame established by the Code of Public Law is unconstitutional. “Nevertheless, there is this substantive issue included in the motion to vacate. The court will address by way of a hearing in the context of whether or not the city can demonstrate that the public interest requires that the city have immediate possession of the property. “So for those reasons, the court will deny the motion to vacate, and I’ll pass the written order this evening reflecting denial of the motion on,procedural grounds only, not on the substantive issue created in the third argument.” [Emphasis added.] 9 The City called two witnesses in support of its arguments: Mr. Paul Dombrowski (the Director of Planning and Design for the Baltimore Development Corporation and also the ³³¹ Project Manager for the Charles North area) and M.J. “Jay” Brodie (President of the Baltimore Development Corporation). The City first questioned Mr. Dombrowski in regard to the amount tendered by the City for the property known as the Chesapeake Restaurant. Mr. Dombrowski only testified on the subject of valuation—he provided no testimony as to the existence of any exigency or emergency, or any other reason why the acquisition of the Properties was immediately necessary.

The City next called Mr. Brodie. Mr. Sapero initially objected, asking that a continuing objection be placed in the record due to the lack of discovery in the proceedings and his resulting inability to depose Mr. Brodie prior to the hearing. The trial court overruled his objection, but acquiesced in his request that it be continuing. On direct examination, the City asked Mr. Brodie whether it was necessary to enact Ordinance No. 82-799 and Ordinance No. 04-695 in the Charles North area.

Specifically, the question was phrased, “... was it necessary to enact an urban renewal ordinance in this geographic area?” After an objection was made by Mr. Sapero, and overruled, Mr. Brodie responded: “Well, the basic reasons are the area has had some structures that were vacant for many years. The Chesapeake is a case in point. That is they were not contributing to business activities. “In some cases, but not all, the buildings were not maintained well. There have been empty buildings for a long time, some are deteriorated, the buildings — “The northwest corner of North and Charles might be indicative of some of the deteriorating conditions.

So it is a mixed bag of buildings, some maintained better on the outside than others. “We do in this area, in the Charles North area as we always do, have considered in consultation with residence groups and community associations.... ³³² “... So in our view as the Baltimore Development Corporation, we proposed to the City Council amendment five [Ordinance No. 04-695] in the last several years, which would call for the city’s acquisition of certain properties so that they could be assembled, and go back to the area I quoted, number H [see Ordinance No. 82-799A.2.h, supra,] creating development lots for commercial uses. That was part of our intention.” The City then asked Mr. Brodie: “[W]hy is the subject property at 1701-9 North Charles Street necessary for the urban renewal of the subject area?” After the trial court overruled another objection by Mr. Sapero, Mr. Brodie responded: “Well, I quoted from the ordinance so as not to be spontaneous about it. The assemblage of properties for new commercial uses, particularly the Chesapeake Restaurant, the parking lot behind it, which is not owned by Mr. Sapero, but by others, and that we as part of the plan approved by the Planning Commission and the City Council. “It was one of several properties, you see them here, a series of properties behind the Chesapeake and its groupings on the southwest corner of the intersection of North and Charles, and the northeast corner.

The proposal in the plan was for the city to acquire those properties, to run a competitive process to select a developer to either renovate or a combination of renovate and new construction.” After describing the process which the City goes through when soliciting developers for projects such as the Charles North area, the City asked Mr. Brodie whether any developers had been selected for this particular project. Again, Mr. Sapero’s objection was overruled, and Mr. Brodie responded: “The city received three proposals.” Further response was stricken from the record upon the sustaining of Mr. Sapero’s additional objection. 10 The City then concluded its question ³³³ ing of Mr. Brodie. Mr. Sapero declined to cross-examine Mr. Brodie due to Ms inaMlity to conduct discovery. At no point in the questioning did Mr. Brodie testify to the existence of any exigency or emergency or otherwise state why it was necessary for the City to obtain immediate possession of the Properties.

On March 30, 2006, Mr. Sapero filed a motion to alter or amend judgment. On May 2, 2006, the Circuit Court demed that motion. Thereafter, Mr. Sapero noted a direct appeal to this Court.

II

Standard of Review This case was tried in the Circuit Court without a jury; therefore, we review it on both the law and the evidence. Md. Rule 8-131(c); Banks v. Pusey, 393 Md. 688, 697 , 904 A.2d 448, 453 (2006). We will not set aside the judgment of the trial court on the evidence unless “clearly erroneous,” and in our review “will give due regard to the opportunity of the trial ³³⁴ court to judge the credibility of the witnesses.” Md. Rule 8-131(c); Banks, 393 Md. at 697 , 904 A.2d at 453 . The trial court’s conclusions of law, however, are not entitled to such deference. “When the trial court’s order ‘involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the lower court’s conclusions are legally correct under a de novo standard of review.’ ” Nesbit v. GEICO, 382 Md. 65, 72 , 854 A.2d 879, 883 (2004) (quoting Walter v. Gunter, 367 Md. 386, 392 , 788 A.2d 609, 612 (2002)).

III

Discussion We shall address the issues in reverse order, first turning to Mr. Sapero’s contention that the City did not provide sufficient evidence of immediate necessity for quick-take condemnation. Then, we shall address Mr. Sapero’s due process concerns. A. Immediate Necessity—Quickr-Take The Code of Public Local Laws of Baltimore City, § 21-16, is titled “ ‘Quick-take’ condemnation—in general,” and states in subsection (a), titled “Petition for Immediate Taking,” that: “Whenever any proceedings are instituted under Title 12 of the Real Property Article of Public General Laws of the State of Maryland or by the Mayor and City Council of Baltimore for the acquisition of any property for any public purpose whatsoever, the Mayor and City Council of Baltimore, simultaneously with the filing of said proceedings or at any time thereafter, may file 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). Section 21-16(c) requires that the City, in a petition for immediate possession of and title to property, state under oath the reasons why it is necessary for the City to have immediate possession of the property.

A property owner is entitled to challenge the validity and sufficiency of those reasons or the requirement would be no ³³⁵ requirement at all. Moreover, the statute places the issue before the courts. If the trial court is satisfied that there is an immediate need, it may then grant immediate possession if it feels it is required in the public’s interest: “If it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn testimony, that the public interest requires the City to have immediate possession of said property.... ” § 21-16(d) (emphasis added). In Valsamaki , we distinguished such quick-take condemnation actions from regular condemnation actions: “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.” Valsamaki, 397 Md. at 254 , 916 A.2d at 343 . Concerning the immediate necessity for quick-take condemnation, Mr. Sapero asserts that § 21-16 “specifically require[s] that some justifiable, readily apparent and irrefutable evidence [must] exist that a taking is necessary, not just a bald assertion that a necessary reason exists.” And furthermore, that “[t]he quick-take law’s plain language initially places the burden of proof upon the Petitioner requesting immediate possession, that is, [the City], to provide reasons for the necessity for immediate possession, not just some general assertions that a reason exists.” We agree with the gist of ³³⁶ Mr. Sapero’s contentions. They are in accord with our decision in Valsamaki, 397 Md. 222 , 916 A.2d 324 .

The City, however, while acknowledging that it has the burden to prove immediate necessity in order to proceed with quick-take condemnation, argues that the case sub judice is distinguishable from Valsamaki . Specifically, the City states: “In the Valsamaki case the court found that the City had not demonstrated the reason or reason(s) why it was necessary for it to have immediate possession and immediate title to a particular property via the exercise of quick take condemnation. “In this case not only did the City provide an affidavit stating the need for the property as ‘business expansion’, but both Mr. Paul Dombrowski, Planner and Mr. M. Jay Brodie, President of Baltimore Development Corporation (‘BDC’) testified at the hearing before Judge Berger on March 20,2006.” We do not find the City’s arguments to be persuasive. The affidavit in the case sub judice stated only that the Properties “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]. That language is identical to the affidavit language in Valsamaki , which we found to be inadequate in demonstrating necessity for an immediate taking. 397 Md. at 231 , 916 A.2d at 329 .

Discussing the relevant petitions in Valsamaki , which, we reiterate—with the exception of the property addresses— utilized language virtually identical to the petitions in the case sub judice, we stated: “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 ³³⁷ purposes; namely in the Charles North Project area.’[ 11 ] 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 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 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.

Cf. Free State,[ 12 ] supra (where affidavit showed necessity for public safety).” Valsamaki, 397 Md. at 256 , 916 A.2d at 344 . The City stresses that the testimony of Mr. Dombrowski and Mr. Brodie, supra, provides further indication of the necessity for the immediate acquisition of the Properties. In particular, the City points out that, unlike the situation in Valsamaki , in the case sub judice, Mr. Brodie testified that three proposals for the redevelopment of the Properties had already been received by the City.

As indicated supra, however, Mr. Dombrowski did not testify at all as to the necessity for the City’s immediate possession of the Properties. And Mr. Brodie did not testify to anything other than what Ordinance No. 82-799 and Ordinance No. 04-695 outlined, “[w]ell, I quoted from the ordinance so as not to be spontaneous about ³³⁸ it[,]” and to the fact that three proposals had been received, “[t]he city received three proposals.” As stated swpra, further response was stricken from the record upon the sustaining of Mr. Sapero’s additional objection. The admitted testimony is insufficient to show the reason or reasons why it is necessary for the City to have immediate possession of the Properties in the case sub judice. The City argues that Mr. Sapero’s objections kept “specific information about the RFP [Requests for Proposals] and the plan the City contemplated out of the record” 13 and that Mr. Sapero, by declining to cross-examine Mr. Brodie, curtailed evidence that Mr. Brodie would have given in support of the necessity for the immediate taking.

The City states that “[i]t is specious of [Mr. Sapero] to assert now that there was no immediate necessity for the City’s taking.” We do not believe that his argument is specious. The City has the burden under § 21-16 to show the necessity for the immediate possession of property via quick-take condemnation. There is a reason for this. Quick-take condemnation results in a deprivation of the constitutionally protected right to property without the more complete due process protections available in a regular condemnation action. ³³⁹ In the case of such limited proceedings, it is the City’s responsibility to provide evidence of the actual exigency or emergency for such an immediate taking.

The City is arguing that its inability to effectively elicit testimony from its own witnesses—testimony necessary to support its case—-justifies a finding of immediate necessity. This argument is unavailing. It is the responsibility of a particular party to establish evidence in support of its own argument. The City failed to do that here.

The fact that Mr. Sapero objected to questions posed by the City and to the testimony of the City’s "witnesses and that such objections were sustained, is part and parcel of litigation. Moreover, because of the time constraints of quick-take actions, discovery was effectively curtailed for Mr. Sapero. His objections were based on the fact that the type of process chosen by the City deprived him of an opportunity to fully litigate the issues upon which the City’s witnesses were about to testify. The City’s choice of procedures created the problem, not Mr. Sapero’s objections.

Furthermore, there is no requirement that a party must cross-examine a witness. It was Mr. Sapero’s right to decline to question the "witnesses, especially in light of the effective denial of