State Roads Commission of State Highway Administration v. Kamins

ROSALYN B. BELL, Judge. This is an appeal from a decision of the Circuit Court for Prince George’s County. On January 28, 1986, the State Roads Commission of the State Highway Administration (the State) filed a Petition for Condemnation against Jeffrey H. and Marlene A. Kamins (appellees), among others, 1 to acquire their property which was needed for the State’s 1-68 Highway Improvement Project in Prince George’s County. The case was tried before a jury on June 29, 1989 which returned an inquisition setting the damages at $500,-000.

The State timely appealed, contending: —the trial court erred by ruling that appellees met their burden of showing probability of rezoning; and ⁵⁵⁶ —the trial court committed reversible error when it failed to give requested instructions which correctly stated the law and were supported by the evidence. We disagree with the State and affirm the judgment. FACTS Appellees own 6.539 2 acres of land located in the northeast quadrant created by the intersection of U.S. Route 50, which runs east-west, and Maryland Route 3, which runs north-south in Prince George’s County. They purchased the property zoned Rural-Agricultural (R-A) 3 in March of 1983.

Appellees’ parcel was completely surrounded to the north, northeast and east by a 466-acre parcel of land used by the University of Maryland Science and Technology Center (Tech Center), a public and private technology office park, zoned Employment and Institutional Use Area (EIA). The Tech Center parcel also borders on both Route 50 and Route 3, but is separated from the intersection by appellees’ parcel. In addition to Routes 50 and 3, there are other roads and ramps, existing and proposed, relevant for access to both the Tech Center and appellees’ parcels. Roughly one-half mile north of the Route 50/Route 3 interchange is Belair Drive, running east and west of Route 3.

Between Route 50 and Belair Drive there is an access road running east and west into the old Melford Farm known as the Melford Entrance. ⁵⁵⁷ The State sought to acquire appellees’ parcel for the construction of the 1-68 Highway Improvements Project. The 1-68 Project at this particular intersection includes several ramps and a cloverleaf interchange which necessitates the taking of the entire 6.5-acre parcel. The ramps, referred to as the “intervening ramps,” will run along the northeastern border of appellees’ parcel. The cloverleaf interchange is slated for construction through the heart of appellees’ parcel.

In 1981, the developer of the Tech Center applied for a rezoning of its parcel from the R-A classification to an EIA zoning in order to develop a 7.7-million-square-foot commercial and research facility. An EIA zone is a floating zone, 4 not a Euclidean zone, which has three stages of approval. In the first phase, the Prince George’s County Council, sitting as District Council, must approve a Basic Plan, which is a rough outline for the proposed development. The second phase requires District Council approval of a Comprehensive Design Plan which shows the general amounts and locations of the proposed land uses and traffic circulation systems, addresses environmental matters and sets out a general schedule of development.

The third phase consists of the District Council ratification of specific design plans which show specific building locations, land ⁵⁵⁸ scaping, grading and other necessities to obtain building permits. The first stage of the Tech Center application approved the development of 400,000 square feet of office space, contingent on the construction of an “upgraded at-grade intersection at Maryland 3/existing Melwood [Belair Drive] entrance.” According to appellees, this intersection improvement was not part of the 1-68 Project and did not require any public acquisition of appejlees’ land. On July 7, 1986, the District Council approved the Tech Center’s application for the second phase, the Comprehensive Design Plan, subject to 27 conditions which divided the development into three stages which were each dependent on specific road improvements. 5 All of the conditions had to be met in order for final zoning to be approved. At this juncture, the parties’ characterization of events diverge: the State contends that approval of EIA zoning for the northeast quadrant was dependent upon the project for which appellees’ parcel was condemned.

Further, the State argues that the adopted and approved Master Plan for Bowie-Collington and Vicinity (October 1970) which was approved as part of the Tech Center’s Comprehensive Design Plan showed the intervening ramps which were necessary for the 1-68 Project. This is simply not true. The Land Use and Highway Plan map clearly identifies appellees’ tract as a “Major Interchange Area,” but it does not indicate where the new ramps will be situated. The “Existing Situation” map does show that there are cloverleaf interchanges between Routes 3/301 and 50, but again there is no mention of any existing ramps.

Moreover, the Basic Plan for the Tech Center does not mention appellees’ land. We agree with appellees that completion of the Tech Center did not require the condemnation of their property. ⁵⁵⁹ Appellees prepared a site plan and a development plan for their land based on the EIA zoning of the Tech Center. These plans illustrated the manner in which their parcel could have been developed in a manner consistent with the Tech Center if the 1-68 Project did not require its acquisition. The proposed site plan showed that an 88,300-square-foot building could be built with the .3 floor area ratio (FAR) applicable on the EIA-zoned Tech Center.

The development plan showed a proposed connector street which would provide access to the appellees’ property from the Tech Center. The State disputed the viability of this connector street at trial. Both the State and appellees had expert witnesses who testified to the fair market value of appellees’ parcel as of the stipulated valuation date, February 9, 1987. The State called Melville Peters, a qualified real estate appraisal expert.

Peters actually made three appraisals of the property. The first two estimates done in 1984 and 1987 were, however, based on 6.03 acres and the last one done in 1989 was based on the correct number of 6.5 acres. The first valuation was higher because, as Peters explained, he had given the owner “the benefit of the doubt” and considered the lot zoned EIA, whereas in 1989 he appraised the land as zoned R-A. Peters’ 1989 value was $136,400 based on information he had which indicated that it was unlikely that the land would be reclassified EIA within a reasonable time. Appellees countered with their experts.

Donald Urquahart, a certified real estate appraiser, testified that the land had a fair market value of $900,000 based on the assumption that rezoning of appellees’ land would be “highly probable” if it was compatible with the Tech Center and there was adequate access to the property. Appellees also produced testimony of one of the property owners, Joel Fernebok, who valued the land at $1,250,000 based on its “prominent” location and his assumption that the land would be developed as an office building site. The State moved for judgment on the issue of probability of rezoning at the close of appellees’ case and again at the ⁵⁶⁰ close of the entire case. The trial judge denied both motions.

The State appeals the inquisition of $500,000. REASONABLE PROBABILITY OF REZONING The crux of the State’s argument on appeal is that the trial court erred in ruling that appellees met their burden of showing a “reasonable probability” of rezoning. Consequently, the State argues that the jury should have been excluded from considering that issue in its determination of fair market value. There are three subparts to the State’s argument.

Namely, the trial court erred by: (1) allowing hypothetical and abstract questions concerning the probability of rezoning appellees’ land in 1982; (2) not requiring appellees to prove both conformity with the master and general plans, and compatibility with the existing and proposed roads; and (3) permitting and failing to strike testimony by appellees’ real estate appraisal expert regarding the probability of rezoning. We disagree with the State on all of its points. We explain. Preliminarily, we need to set forth the legal principles which apply to the instant case.

The landowner clearly has the burden of proving the reasonable probability of a rezoning which will increase the value of the land. State Roads Comm'n v. Warriner, 211 Md. 480, 491 , 128 A.2d 248 (1957); 4 Ziegler, Rathkopt’s The Law of Zoning and Planning § 52.04 (Release # 13; 6/83); 4 Nichols on Eminent Domain § 12C.03[2] (3d ed. 1989). The proving of the existence of a reasonable probability of an imminent change in zoning is a question of fact. Larry’s Enterprises, Ltd. v. Mayor of Baltimore, 54 Md.App. 367, 373 , 458 A.2d 87 , cert. denied 296 Md. 653 (1983); 4 Nichols on Eminent Domain § 12C.03[3].

The trial judge must determine whether the evidence presented sufficiently establishes a reasonable probability of rezoning within a reasonable time after the date of taking. 4 Nichols on Eminent Domain § 12C.03[3]. ⁵⁶¹ There must, of course, be evidentiary support for the trial judge’s decision. But once the judge has determined that there is sufficient evidence of a reasonable probability of rezoning, it is the province of the jury to consider the weight to be given to that testimony. Larry’s Enterprises, 54 Md.App. at 373 , 458 A.2d 87 . The trial court should instruct the jury “that no element or enhancement of market value could be based upon the mere possibility that at some time in the future a reclassification might occur.” Warriner, 211 Md. at 486 , 128 A.2d 248 .

The owners of the tract of land at issue in Warriner had attempted to have their residentially-zoned property reclassified as commercial. Two requests for such a change, made nine and five years before the taking respectively, were denied. The Court of Appeals held, “[W]e do not think the evidence as to the possible rezoning was so insubstantial as to require the trial court to instruct the jury to disregard it. Its weight was for the jury.” Warriner, 211 Md. at 487 , 128 A.2d 248 .

The evidence presented in that case consisted of testimony demonstrating that the area in which the land was located was experiencing “marked expansions” of its commercial area. According to appellees’ brief, the evidence supporting their position that there was a reasonable probability of rezoning included the testimony of Mr. Hirsch, one of the State’s witnesses, who was a planning supervisor with the Maryland-National Capital Park and Planning Commission. Mr. Hirsch stated that had the Kamins’ property “come in” on the same application with the Tech Center as part of a “total development,” it would have been zoned EIA and would have office buildings on their land. Additionally, on cross-examination of appellees’ witness, Mr. Yoder, the State asked what would have happened if appellees had submitted an application after the approval of the comprehensive design plan for the Tech Center.

Yoder responded that the plan for the Tech Center would simply have needed to be amended. We hold that this testimony, while far from ⁵⁶² overwhelming, was not so insubstantial that the trial judge erred in its admission or in allowing the jury to consider it. Further, the trial court’s instruction to the jury on the probability of the rezoning issue was proper. 6 —Hypothetical and Abstract Questions— The State contends that the trial court erred by permitting hypothetical and abstract questions about the probability of rezoning appellees’ land in 1982. The State argues that, since appellees did not own the subject property in 1982 and their predecessors in interest made no attempt to either apply for rezoning or to be included in the Tech Center’s 1981 application, the questions were impermissible hypothetical questions. 7 Hypothetical questions are generally allowed and their admission is within the discretion of the trial court.

Williams v. Dawidowicz, 209 Md. 77, 87 , 120 A.2d 399 (1956). These questions must be reasonably thought to help the jury. In addition, the State observes that the Court of Appeals has held: “ ‘[A] hypothetical question must embrace every material element of the hypothesis founded upon the evidence, and it must not import .into the question any element not founded upon the evidence in the case. If it offends in either respect it is defective and it is error to permit such a question to be answered, and if inadvertently admitted ⁵⁶³ over an objection, it is error to refuse a motion to strike out the answer.’ ” Slacum v. Jolley, 158 Md. 343, 346 , 138 A. 244 (1927), quoting Northern Central Ry. v. Green, 112 Md. 487, 505 , 76 A. 90 (1910).

According to the State, appellees’ hypothetical questions did not meet this standard. Green involved a railroad accident where the plaintiff’s expert was asked about the possibility of stopping a train, like the one involved in the accident, within 250 yards. The Court observed that the question omitted “any reference to the speed at which it was shown the train was moving when the signal of danger was first seen by the engineer.” Green, 112 Md. at 505 , 76 A. 90 . The speed of the train, according to the Court, was the “most material factor in the inquiry within what space it can be stopped.” Green, 112 Md. at 505 , 76 A. 90 .

We do not question the established principle that a “hypothetical question must contain all material facts in evidence essential to the formation of a rational opinion.” Mullan v. Hacker, 187 Md. 261, 271 , 49 A.2d 640 (1946). We do, however, question the State’s argument that the questions asked here violated this tenet. We also believe that Slacum’s instruction admonishing against the use of “any element not founded upon the evidence” is too stringent, and if taken literally would rob hypothetical questions of a great deal of their value. The hypothetical questions appellees asked of their witness, Mr. Yoder, regarding the probability of rezoning in 1982 were as follows: “Q When you filed the application for EIA zoning on the science and technology center, had the owners of the Kamins property come to you as the planners and said I want to file for the same zoning, would you have taken that case and applied for it? “[STATE]: Objection.

Hypothetical. “THE COURT: Overruled. ⁵⁶⁴ “THE WITNESS: Yes. Assuming it was agreeable to my then existing client. I have to make that qualification. “BY [APPELLEES’ ATTORNEY]: “Q So you could have planned them both together, could you? “A Yes. “Q Now, had you planned them both together would you have provided access to the Kamins property through the Capital Carly property? “A Yes. “Q In other words, you would have a road system that made that access possible? “A Yes. That would certainly make sense, in the overall layout of the Maryland Science and Technology Center, it seems to me that this particular area of the property, the owner of the property could best be served internally from the internal street system serving the science center. “Q Is there anything unusual about two owners working out their roadways so they all run together? “A No, it is quite common.” On this same point, appellees’ attorney cross-examined one of the State’s witnesses, Mr. Hirsch: “Q My point is, if you were going to develop this whole quadrant of this intersection, 466 acres is already developed EIA zone, you wouldn’t leave a six and a half acres out here in no man’s land, would you?

You would develop it all together? “A If you would consider it as one development proposal, it is possible, yes. “Q Now, if Kamins is coming in at the same time the University of Maryland came in for zoning, again, using the mythical assumption that there was no road going to be taking their property, wouldn’t it be logical for both applications to be handled the same way at the same time[?] ⁵⁶⁵ “[STATE]: Objection. “THE COURT: He is asking a hypothetical question whether you have an opinion. Whether if one got the zoning, the other one would, is that right? “[APPELLEES’ ATTORNEY]: Yes. “THE COURT: If you can answer that. “THE WITNESS: I guess the problem I have in that whole scenario is separating the reality from the myth. “To the extent that if the Kamins property came in with this original application at that time the area where that subject property was anticipated for roadway improvement, if it had come in, it is my opinion, and included with the subject application, it would have possibly received the same consideration as this property, but would have also been as part of this property solely for highway improvement necessary to support it.” The hypothetical questions at issue in this case are of a very different nature than those in Slacum and Jolley. There were no omissions of material elements in the questions asked. We do not dispute the fact that these hypothetical questions involved speculation.

But some speculation is inevitably involved in all hypothetical questions, and the jury is well aware of this. Our opinion in Larry’s Enterprises , is instructive on this issue. In that case, appellant had purchased land which the City later down-zoned from commercial to residential use. Coincidentally, this property was “spot” rezoned in “close proximity to the time the city was preparing to condemn the land.” Larry’s Enterprises, 54 Md.App. at 368 , 458 A.2d 87 .

The land was surrounded by commercial properties and was practically valueless as a residential tract. Judge Lowe, speaking for this Court, analogized the testimony proffered in Larry’s Enterprises to the testimony presented in Warriner and determined that the testimony was “clearly sufficient to have permitted a question of fact for the jury whether there was a reasonable probability of the reclassification.” Larry’s Enterprises, 54 Md.App. at 372, 458 A.2d 87 . The testimony in Larry’s Enterprises was ⁵⁶⁶ that there had been a mistake, and that based on the witness’s experience he thought there was a reasonable probability, despite the fact that the landowner did not apply for rezoning, that the land would have been rezoned commercial at any time such an application was made. No distinction was made between time before the taking and time after the taking.

The testimony produced in the instant case regarding the reasonable probability of rezoning in 1982 was hypothetical inasmuch as appellees’ predecessors in interest had not then applied to have their land rezoned. We disagree with the State that these questions were beyond the bounds of permitted hypothetical questions. We think the questions asked here which included time prior to the actual taking as well as time after the taking were not unlike those at issue in Larry’s Enterprises . Moreover, it is the function of the jury to weigh the significance of the answers to these hypothetical questions. —Conformity with Master Plan— The second prong of the State’s first assignment of error is that the trial court erred by not requiring appellees to prove both conformity with the master and general plans, and compatibility with the existing and proposed roads.

The State contends that appellees’ proposed connector road to the EIA-zoned Tech Center, which was essential to appellees’ being able to obtain EIA zoning, was not shown to have met these requirements. Appellees, however, respond that under the State's theory their land could never be rezoned because it was targeted for highway use in the Master Plan. The parties play off one Maryland zoning case against another. In its reply brief, the State claims “[t]here is no question but that a threshold requirement for approval of a proposed use under the comprehensive design zone is compatibility.” See Floyd v. County Council of Prince George’s County, 55 Md.App. 246, 259 , 461 A.2d 76 , cert. denied, 297 Md. 312 (1983) (where rezoning of the adjacent ⁵⁶⁷ Tech Center property was at issue).

According to appellees, however, Floyd does not apply to this case because it does not take into account the rule evinced in Carl M. Freeman Associates v. State Roads Commission, 252 Md. 319, 329 , 250 A.2d 250 (1969), that express ordinance standards be set aside to the extent they affect the valuation of property in a condemnation case. We agree with appellees. We explain. The ordinance at issue here is § 27-499 of the Prince George’s County Code (1987 ed.).

Section 27-499(a)(l)(B) requires that EIA zones be in accordance with the adopted and approved Master Plan. The State claims that the applicable part of this zoning ordinance is § 27-499(3) which states in pertinent part that it is designed to: “(3) Assure the compatibility of proposed land uses with existing and proposed surrounding land uses; and existing and proposed public facilities and services----” This subsection bears on the possible incompatibility of the connector road, given the existence of the ramps which the State maintains are public facilities. Appellees argue the trial court acted in accordance with the principles laid out in Freeman. In Freeman, the Court of Appeals determined that the sole purpose of § 111-48f of the Montgomery County Code was to freeze the value of land to be acquired for public purpose.

The Court observed: “If section 111-48Í had other legitimate purposes, we might solve the matter on a purely evidentiary