Sulzer v. Montgomery County

ALPERT, Judge. Before us is a multi-issue case surrounding the levying of a special assessment against appellants’ property which abuts Twinbrook Parkway in Montgomery County. Twin-brook Parkway was constructed by the County and those properties contiguous to the new parkway were specially assessed a portion of the construction costs. Additionally, part of the appellants’ tract was condemned to build the parkway.

Appellants’ contentions on appeal concern both the validity and amount of the special assessment. Their initial judicial appeal in this matter was to the Circuit Court for Montgomery County (Miller, J., presiding). Judge Miller’s Memorandum and Opinion contained the following factual and procedural history of the case: It was the year 1962. John Fitzgerald Kennedy was President of the United States.

The Supreme Court in Baker v. Carr paved the way for the reapportionment of state legislatures. Stan Musial was paid the outrageous salary of $65,000 a year just because he could hit a baseball better than about anyone who ever picked up a bat. Roger Maris hit 61 home runs for the New York Yankees, but teammate Mickey Mantle beat him out for Most Valuable Player in the American League. The Green Bay Packers beat the New York Giants in the AFL Championship Game.

Lawrence of Arabia won the Academy Award for best picture. Tony Bennett walked away with two Grammy Awards for best song “I Left My Heart in San Francisco” and best male singer. Colonel John Glenn put the U.S. back in the space race and got an ⁶⁴¹ old fashioned ticker tape parade. 1962 was also the year that Twinbrook Parkway Project 1166 was authorized by the County Council for the construction of Twinbrook Parkway thus beginning this saga. Appellants’ predecessor opposed the construction of Twinbrook Parkway, which was to run from Rockville Pike to Viers Mill Road, on the ground that it would substantially damage the property and the property would not benefit from the proposed road.

The property in question was then unimproved and contained 12.845 acres, and fronted on Viers Mill Road and Halpine Road. The new road was to run through the middle of the subject property, bisecting it into two almost equal parts. In October of 1962, the County, in connection with its acquisition of land for the Twinbrook Parkway, obtained an appraisal from W.E. Beers that compensation for that portion of the subject property taken should be $9700.00. Mr. Beers also estimated the special benefits accruing to the remaining property to be $24,000.00.

In 1963 John E. Gogarty, on behalf of the appellants, appraised the just compensation for land taken at $25,000.00, but made no appraisal of benefit to the remaining property. In 1964 Mr. Beers revised his assessment of just compensation for the taking of 1.58 acres of the subject property to $20,300.00. On June 29, 1971, following completion of the project, Resolution No. 7-293 was adopted by the Montgomery County Council setting the final assessments for the project. Since the road bisected the subject property, each side wound up with a frontage on it and each side was assessed front foot benefit charges based upon a predetermined formula.

The total amount assessed against abutting property owners was $412,499.01 or 34% of the $1,230,337.68 actual cost of the project. The assessment of front foot benefits was made against the abutting property owners in accordance with the following formula: ⁶⁴² ‘A. Commercial or industrial properties abutting existing paved and maintained portion of the road— $20.00 per assessable foot. B. Residential properties abutting on existing paved and maintained portion of the road — $10.00 per assessable foot. C. Properties abutting the realigned portion of Rawlings Avenue — $25.00 per assessable foot.

D. All other properties where the road was to be constructed for the first time — $60.00 per assessable foot.’ The assessment of the front foot benefits against the subject property, based upon paragraph D of the formula, was in the total amount of $92,285.06, $44,539.63 being assessed against Parcel A with a front footage of 729.10 feet and $47,745.43 against Parcel B with a front footage of 906 feet. Appellants appealed this assessment to the Circuit Court (Law No. 34,591). While this appeal was pending both parties employed appraisers to assess the benefit, if any, that accrued to the property because of the construction of the road. Mr. E.L. Dieudonne, employed on behalf of the appellee, submitted a report on July 28, 1974, stating that the benefit to the property was $37,900.00 and in August he increased the benefit to $45,500.00.

Mr. Adolph E. Rohland, employed by the appellants, was of the opinion that the property did not receive any benefit from the road. On the basis of the Dieudonne appraisal, and upon the joint motion of the parties, the Circuit Court in Law No. 34,591 by order dated December 22, 1978, remanded the case back to the Montgomery County Council for further proceedings to determine what benefit, if any, may have accrued to the subject property by virtue of the construction of Twinbrook Parkway. Upon remand the County Executive, Charles W. Gilchrist, recommended that the Council assess the subject property in accordance with the appraisal of Mr. Dieudonne of the benefit in the ⁶⁴³ amount of $45,500.00. Appellants were afforded an opportunity to appear before the Council and to submit certain documents for inclusion in the record.

The Council accepted the recommendation of the County Executive and, based upon the Dieudonne appraisal, on March 22, 1983, by Resolution No. 10-111 assessed the subject property in the amount of $45,500.00. It is from this assessment that the appellants have taken this appeal. Judge Miller deferred to the opinion of the County Coun- cil, and the expert witness testimony it relied upon, in affirming the special assessment. It is not for the Court to substitute its opinion for Mr. Dieudonne’s when it has basis in law and fact nor is it for the Court to substitute its judgment for that of the Council in using Mr. Dieudonne’s Report as a basis for the assessment in question.

It is not for the Court to second guess the Council as to which expert it should have relied upon. Appellants now appeal Judge Miller’s decision to affirm the County Council. The first set of issues raised by the appellants concerns the factual validity of Mr. Dieudonne’s report. Appellants’ contentions are threefold, to wit: (1) failing to deduct costs incurred to regrade property to the level of the parkway was error; (2) concluding that the rezoning of the property was attributable to the new parkway was error; and (3) the method employed to calculate appellants’ total acreage was erroneous. 1.

Cost of Regrading Appellants’ first contention relates to Mr. Dieudonne’s failure to consider the cost of regrading the property to enable ingress and egress onto Twinbrook Parkway in his appraisal of the special assessment. Appellants contend that the construction of Twinbrook Parkway adversely changed the grade differential between their property and the new road, thereby increasing the cost of providing ⁶⁴⁴ access to the property. Mr. Dieudonne stated he did not consider this cost because he assumed they had been an element of damages in the condemnation proceeding. Mr. Dieudonne’s assumption does have some legal basis: Where part of tract taken. — The damages to be awarded where land, or any part of it, is taken is the fair market value of the part taken, but not less than the actual value of the part taken plus any severance or resulting damages to the remaining land by reason of the taking and of future use by the plaintiff of the part taken.

The severance or resulting damages shall be diminished to the extent of the value of the special (particular) benefits to the remainder arising from the plaintiff’s future use of the part taken. Md.Real Prop.Code Ann. § 12-104(b) (1981 Replacement Volume) (emphasis added). The constitutional purpose of this statute is to provide just compensation for any damage to the remainder. State Roads Commission of the State Highway Administration v. Brannon, 58 Md.App. 357, 367 , 473 A.2d 484 (1984) (citation omitted). “The measure of damages used to achieve this goal in a partial taking is the difference between fair market value of the whole property immediately before the taking and what is left immediately after the taking.” Id.

(citations omitted). Hence, the consequential or resulting damage may reduce the value of the remaining land. Id. at 368 , 473 A.2d 484 . In Big Pool Holstein Farms, Inc. v. State Roads Commission, 245 Md. 108 , 225 A.2d 283 (1967), the Court of Appeals discussed a condemnation award for a partial taking wherein access to the remaining property was affected.

There, a newly constructed roadway bisected the owner’s remaining lands and rendered it partially landlocked. The Court observed that “when the partial taking affects the access to the remaining property, evidence as to the cost of subsequently securing adequate access has a direct bearing on the measure of damages and, under our decisions, is admissible in the condemnation proceedings.” 245 Md. at 113 , 225 A.2d 283 . Thus, the jury properly considered the State ⁶⁴⁵ Roads Commission’s cost in acquiring a right-of-way to the landlocked farmland. It made no difference that evidence of this cost arose after the actual taking, but a few days prior to the trial.

The evidence as to the availability and cost of the access strip was not rendered inadmissible because the Commission secured the option only a few days before the trial. Evidence of the damage caused by a taking in terms of actual cost may not be available until after the date of the taking. 245 Md. at 116 , 225 A.2d 283 . Although damages from the partial taking are arguably within the purview of the condemnation statute, the instant facts seem to indicate that such damages could not be calculated at the time of the taking or before the eminent domain proceeding. Once the road was completed, the cost of gaining access could be determined with precision.

This appeal, and its relevant facts, now span a period of time exceeding two decades. The condemnation proceedings occurred during the early-to-mid 1960’s. Resolution No. 17-293, the first attempt to levy a special assessment against abutting property owners, was introduced and adopted by the Montgomery County Council on June 29, 1971. Disagreements ensued as to its accuracy, leading to its revision in March of 1983.

Apparently, the completed roadway was not accessible to the appellant herein because of a difference between the grade of his property and the new road. The County’s expert openly admitted that these access costs were not considered in the special assessment because he assumed the costs had been included in the condemnation award. We have reviewed the record, including the various expert reports, and found no evidence of any attempt to calculate the cost of ingress and egress prior to the actual