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Patrick Murphy, Esq.
Baltimore, Maryland
The Urban Renewal process and the use of eminent domain power in
Maryland has had a slow evolving history. That said, the future
demands continuing redevelopment of blighted areas utilizing the
condemnation as well as faster and more modern mediation
processes.
Any observant commuter driving from Towson to Mount Vernon in the
past decade noticed the prevalence of unrealized development
possibilities, resulting from under-utilized or deteriorated
quality brick and stone structures. The miasma of dejection,
listlessness and lack of opportunity seeps from sidewalk to
sidewalk between littered streets and forgotten homes. So it
might surprise the observer to learn that quasi-intellectual
plans for revamping the mid-town district have existed in a
nominal legal and statutory form for almost 25 years.
The Urban Renewal process of land re-development in previous
moderate to high-density land use areas, began an intense phase
in the late 1940s and continued at least through the 1980s. Often
manifested in part by exerting the eminent domain power, it had a
major impact on the landscape of many cities. This process is
expected to continue well into the 21st century. It has played an
important role in wordlwide metropolitcan history and demography.
City planners like Georges-Eugène Haussmann of Paris and New York
City’s Robert Moses conceived such controversial revisions (often
by condemnation) of real property arrangements as a step towards
remedying the post-Industrial Revolution crises of deficient slum
housing and blighted or underutilized commercial manufacturing
areas.
During the mid-to-late 1900s, Baltimore City invoked the Fifth
Amendment’s Takings Clause (as reflected in Md. Code Annotated,
Real Property Title 12, Article XI-B) to achieve high-profile
schemes like the Inner Harbor and the Charles Street
redevelopment not to mention less celebrated undertakings like
high-rise public housing. The Maryland General Assembly attempted
to promote healthy community regeneration through Baltimore
Public Local Laws §§ 21-16 and 17, authorizing “Quick-take”
condemnations, i.e. immediate taking and possession for a public
use. Two Maryland Court of Appeals decisions— Baltimore City v.
George Valsamaki et al, 397 Md. 222, 916 A.2d 324 (2007), and
Sapero v. Mayor & City Council 398 Md. 317, 920 A.2d 1061 (2007)—
recently examined Charm City’s compliance with constitutional Due
Process requirements including the providing of notice and the
conducting of expedited hearings. The Court concluded Baltimore’s
process fell short.
In effect, the Valsamaki and Sapero opinions (both written by
Judge Dale Cathell) held that before evicting the rightful owners
from their homes and businesses, the City had to prove the
existence of some exigency, requiring such prompt action. As
used, “Quick-take” violated the owners’ due process rights,
because it denied them the opportunity to conduct discovery
necessary for the preparation of their hearing if they wanted to
challenge the taking.
Since the 1970s, owners of condemned property have sometimes
demanded jury trials on the issue of Just Compensation. In order
for compensation to be just, fair value must be paid as
determined by the higher of the two independent appraisal
affidavits. Such affidavits are required by § 21-16, which the
City must submit with its Petition for Immediate Possession.
Attorneys who litigate the issue of just compensation can usually
persuade a jury to increase the amount due, by presenting
comparable sales and their own professional appraisals. In its
amicus brief to the Supreme Court in Kelo v. City of New London,
545 U.S. 469 (2005), the American Planning Association recognized
the potential for an “extreme holdout problem” and that
condemnation is a necessary remedy.
Baltimore’s planning for the Charles North Revitalization Area
began in 1982, when the Mayor and City Council approved Ordinance
No. 82-799, establishing the Charles North Urban Renewal Plan,
the situs of the properties at issue in Valsamaki and Sapero.
Given the delay perception, stemming from the quarter-century
duration of the process in the case, the Court did not accept the
appellant’s attempt to place the burden of showing the
non-necessity of a “Quick-take” acquisition suit on the objector.
Instead the burden was placed on the municipality. Additionally,
the Court distinguished the cases involving so-called regular
condemnation pursuant to the Maryland Constitution, Article III §
40 from those utilizing quick-take. The Court (in Valsamaki)
deplored the possibility that the municipality could use the
“Quick-take” procedure “purely in order to gain litigation
advantage.”
On a positive note, the Baltimore City Law Department has
recently consented to non-binding mediation for condemnations in
Charles North and the Superblock in West Baltimore’s retail
district. With the consensus-building skills of such mediators
like retired affiliates of the Maryland Judiciary, the
optimistic and professional designs of City agencies such as the
Department of Planning and the Baltimore Development Corporation
re-development will proceed more efficiently by eliminating
litigation. Re-development should continue to progress.
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