Daily Development for Monday, February 19, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EMINENT DOMAIN; "QUICK TAKE;" PUBLIC PURPOSE: Maryland high court, in an opinion laden with "anti-Kelo" sentiment, holds that City may not "quick take" property for urban renewal purposes when no specific development plan can be shown, even where Citys practice has been to issue RFPs after it has "locked in" property so that developers can efficiently design their proposals.

Mayor and City Council of Baltimore City v. Valsamaki, 2007 Westlaw 415356 (Md. 2/08/07)

It appears, based upon testimony quoted in the opinion, that Baltimore had been using a redevelopment scheme for certain blighted areas that involved securing parcels within the area for redevelopment based upon a rather generally stated "mixed use" description and then inviting redevelopment proposals for those parcels. The city would use "quick take" eminent domain proceedings to acquire the properties so that the developers submitting proposals would be confident that the property was indeed available and that there would be no long delays in relocating the former owners.

The area in which the parcel in question was located, according to testimony of city officials, had seen no new investment in over 40 years, was inadequately developed, and ripe for redevelopment. In fact, it does not appear that these facts were seriously in question in this opinion.

The opinion, rather, focused upon whether the City had demonstrated that the quick take" process was necessary in order to meet the admitted public purpose goal of urban renewal. The court held, unanimously, that the City had not met its burden. Narrowly stated, the opinion was simply an interpretation of a local code provision relating to the condemnation authority of the City of Baltimore and applied only to "quick take" authority. Nevertheless, the court takes pains to analyze a huge body of Maryland precedent on the whole question of urban renewal powers. By the end of the opinion, one is left with the distinct impression that the court has alerted Maryland urban renewal enthusiasts that in the future a stronger showing will be necessary to support public takings for purposes of facilitating private development. Two members of the court felt it necessary to comment that they merely concurred in the result reached on "quick take" and that they did not concur in the discussion o

f "public purpose" takings.

The landowner here had questioned the legitimacy of the use of "quick take" authority in this case where the City had not identified a particular purpose or even a particular project for his parcel. Rather, the City Redevelopment officials readily admitted, they were securing the parcel before going out for redevelopment proposals specifically to make things easier for developers by providing assurances that the property would be ready when they were for a redevelopment project. The City had abundant statutory authority for redevelopment plans in general, and with respect to quick take authority, the City code provided that to institute quick take condemnation proceedings the City was required to file "a Petition under oath stating that it is necessary for the City to take immediate possession of, or obtain immediate title to, the property in question, and the reasons therefore. . . ." The court, in concluding whether to authorize the taking, could grant such authority "if it appe

ars from a Petition for Immediate Possession, with or without supporting affidavits and sworn testimony, that the public interest requires the City to have immediate possession of said property . . . ." The affidavit in this case stated that the property was needed immediately "for business expansion."

In cross examination quoted extensively in the opinion, counsel for the landowner was able to show that the City in fact had no concrete plans for the parcel in question other than to include it in a mixed use development that would involve new investment and otherwise would meet the redevelopment criteria of the City. The precise nature of the development would be decided after competing development proposals were received and evaluated. But the City officials insisted that it was necessary to reassure developers that the property would be there for them, and that therefore "quick take" was a useful device here.

The trial court concluded that the City had not met its burden of proof to justify the quick take, and, on appeal, the Maryland Court of Appeals agreed.

In a separate part of the opinion, however, the court stated that, notwithstanding the broad latitude given to public agencies in Kelo to evaluate the public interest in urban renewal takings, the inadequate description of the public benefit to be derived from the renewal process in this case did not meet federal Constitutional standards, even if quick take were not at issue. This is pure dicta, of course, but it is a statement that will shake up City Attorney offices throughout the state, and perhaps in other states. It does seem that the "fishing expedition" type of redevelopment does not impress the court as adequate.

Comment 1: The holding, of course, required an interpretation of the statute to establish that it in fact imposed a burden of proof on the City to show that a "quick take" was necessary. This was made more difficult by the existence of decades of Maryland decisions concluding that in general there was a presumption of legitimacy in City takings, including takings for redevelopment purposes. The court indicated that these cases did not involve "quick take," and there distinguished them, while also relying upon the precise language of the statute. But a reading of the 60 pages of analysis here gives the reader a distinct feeling that the court is in fact saying something here that a simple revision of an administrative statute regarding affidavit requirements wont cure.

Comment 2: The court, for instance, appears to be saying that the right to be free of unjustified "quick take" processes arises to Constitutional stature, even in circumstances in which the ultimate purpose of the taking is shown to be acceptable. The editor, frankly, is uncertain whether there is any U.S. Supreme Court authority clearly standing for that proposition. It appears to be a question of first impression for Maryland.

Comment 3: Will it be sufficient for the City to hold hearings to explain why "quick take" in general is a useful tool in redevelopment activities? It struck the editor that the City redevelopment officials did a pretty good job of explaining that to the trial court below. But the court seemed concerned that the "quick take" process severely truncates the ability of the landowner to conduct discovery concerning the legitimacy of the public taking here, both the speed and the fact of it.

Comment 4: Note that there was no question really discussed here as to the adequacy of the showing that the property was blighted and in need of the redevelopment process. Why arent those facts enough? Why cant the City, rather than the court, be the arbiter of the best way to carry out an admittedly necessary redevelopment. Heres what the court said:

"Thus, while economic development may be a public purpose, it must be carried out pursuant to a comprehensive plan. In a specific case, simply providing that a property is be be condemned "for urban renewal purposes," without more, is not enough. This is particularly true where "quick take condemnation proceedings are concerned . . . "

This language clearly is not limited to "quick take" situations. The court is reserving the right to review the adequacy of all redevelopment plans. The editor submits this is precisely what Kelo declined to do.

"When, and if, a governmental entity attempts to unnecessarily utilize a form of condemnation that procedurally abridges te right of the property owner to contest the taking of his or her property, it is the function of the court to assure to the property owner that his or her procedural rights are protected. . . ."

The court further emphasizes that if the landowner is in fact ultimately successful in contesting the purpose of the taking, the landowner may have suffered irremediable harm because by then, for instance, his house may have been torn down during the Citys possession of the property.

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