BATTAGLIA, J.
This case involves a "quick-take" condemnation
We shall answer no, affirm, and explain.
We derive the following facts from the memorandum opinion issued by Judge Audrey J.S. Carrion of the Circuit Court for Baltimore City: beginning in the 1950s, Baltimore City, and particularly, the East Baltimore neighborhood, began losing manufacturing jobs. The City continued to hemorrhage jobs through the 1990s, causing significant urban decay marked by high crime, high unemployment, population loss, and a general deterioration in the Middle East neighborhood.
The City, then, turned to more comprehensive redevelopment and revitalization efforts, including a "non-profit partnership between government, philanthropists, institutions, and the community"
Mr. Makowski's property, 900-902 N. Chester Street ("the Property"), located on Block 1587
The City attempted initially to acquire the Property in April of 2011, when it sent Mr. Makowski a "Notice of Interest to Acquire." Approximately nine months later, the City provided Mr. Makowski with an "Offer of Just Compensation." After receiving the City's offer, Mr. Makowski's then-tenant, The Answer Inc., moved out of the building; to compensate Mr. Makowski for any loss he suffered as a result of the lost rent, EBDI and the City offered to give Mr. Makowski $2,000 monthly, in exchange for which Mr. Makowski would provide the City a "Right-of-Entry", permitting the City's agents to enter the property for purposes of boarding up the building in preparation for demolition.
(emphasis in original). The Right-of-Entry agreement, likewise, stated:
At the time the Circuit Court issued its decision, Mr. Makowski continued to be compensated at a rate of $2,000 per month.
While the rental agreement was in force and after the City was "unable to negotiate with and/or agree with" Mr. Makowski "upon a price to be paid for" the Property, the City, in April of 2012, filed a Petition for Condemnation in the Circuit Court pursuant to Baltimore City Ordinance Nos. 1202 and 11-453, which stated in pertinent part:
Mr. Makowski challenged the City's authority to condemn the property, in his response to the Petition, contending, inter alia, that the City had failed to demonstrate why the acquisition of the Property was necessary, because, he asserted, the City failed to allege what it intended to do with the Property. Mr. Makowski also later filed a Motion to Dismiss Petition for Condemnation, stating in its entirety:
After holding a hearing on the motion, the Circuit Court denied the Motion to Dismiss Petition for Condemnation; the condemnation case was then scheduled for trial.
Prior to trial, Mr. Makowski became the sole owner on Block 1587 who had not yet conveyed or agreed to convey his property on Block 1587 to the City. The City filed a "Petition for Immediate Possession and Title", pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City (2012)
Mr. William Burgee, Director of the Office of Property Acquisition and Relocation, did file an affidavit in which he asserted that immediate possession of the Property was necessary because the City had effectively acquired title to all other properties on Block 1587. He also stated that there was a school scheduled to open in August of 2013 to the east of the Property, prior to which all demolition on Block 1587, including that of the Property, needed to be completed to "safeguard" the health and safety of the children, guests, and staff of the school:
Mr. Makowski filed a "Response to Petition for Immediate Possession and Title", contesting the City's right to obtain immediate possession of the Property, asserting, once again, that the City had failed to demonstrate why acquisition of the Property was necessary. Mr. Makowski also challenged the City's contention that there was an immediate need to condemn the property, attaching his own affidavit in which he asserted, inter alia, that the Property was not the only property that the City had not acquired on Block 1587:
Mr. Makowski later filed a "Defendant's Points and Authorities in Opposition to Plaintiff's Petition for Immediate Possession", in which he also asserted, because the City intended to convey title to his property to Forest City Enterprises, a private entity, as part of the EBDI development, that the City was taking private property "to be transferred to another party", which, he alleged did not serve a public purpose, thereby violating the strictures of the Fifth Amendment to the United States Constitution.
Judge Carrion held a hearing on the City's right to take the Property. Mr. Burgee was the City's only witness, testifying, consistent with his affidavit, that the City had an immediate need for the Property, because the structures on Block 1587 had to be demolished prior to the opening of the school in August "to mitigate the possible effects of dust and other elements that would result from having to do the demolition if the school were, in fact, in session." He also testified that there were only two properties that had not yet been acquired on Block 1587 within two weeks of the hearing — the Property and a church located at 2028-2030 Ashland Avenue, which the City had acquired in the intervening
Mr. Burgee then explained on cross-examination that, at the time the City filed its quick-take petition, the owners of the church at 2028-2030 Ashland Avenue had agreed to convey their property to the City, but title insurance issues delayed its formal conveyance:
After Mr. Burgee concluded his testimony, Mr. Makowski testified on his own behalf and offered into evidence photographs of the school construction site, purporting to show that construction would not be completed by the August 2013 date. Mr. Makowski, additionally, sought to offer into evidence a map that he proffered would show that the Property was located within a historical district
Judge Carrion, thereafter, issued a memorandum opinion and order, in which she ordered that the City "be vested with possession of and title in the fee simple interest in that property known as 900-902 N. Chester Street, Baltimore, Maryland... together with the buildings thereupon, and the rights, alleys, ways, waters, privileges, appurtenances, and advantages thereupon...." She found, with respect to the City's authority to take the property, that:
She opined, then, that, "[t]he Court of Appeals has long held that municipalities possess power under the Maryland Constitution to condemn property for redevelopment purposes", and concluded, therefore, that "there is no question that Plaintiff has the lawful power to condemn the subject property."
With respect to the "quick-take", Judge Carrion credited the City's evidence that Mr. Makowski was the lone "hold-out", thereby inhibiting further development of the EBDI project:
Applying our decisions in Valsamaki, 397 Md. 222, 916 A.2d 324 and Sapero v. Mayor and City Council of Baltimore, 398 Md. 317, 920 A.2d 1061 (2007), she concluded that the City had met the "high threshold for situations to qualify as `necessary' for Baltimore City to have `immediate' possession and/or title to real property", because Mr. Makowski was a "hold-out":
Because Judge Carrion concluded that Mr. Makowski being a "hold-out" was sufficient to justify a quick-take condemnation, she expressly declined to address the City's contention that "safety concerns over the future demolition of Block 1587 occurring directly across from the new school provide[d] the necessity, immediacy, or exigency needed for a quick-take condemnation of the subject property."
Mr. Makowski, thereafter, filed a "Motion for Reconsideration Order Granting City's Petition for Immediate Possession and Title to Vacate, Alter or Amend Order Dated June 28, 2013", in which he challenged the Circuit Court's finding that he was the "sole hold-out":
He also asserted that the condemnation violated Constitutional principles, because the City failed to demonstrate why acquiring the Property was necessary for the development. His motion was denied.
Mr. Makowski then noted an appeal to the Court of Special Appeals from "the Circuit Court's determinations in a QUICK TAKE PROCEEDING"; because quick-take proceedings proceed directly to this Court, his appeal was transferred to this Court. We confront, then, essentially the same issue faced by Judge Carrion — whether the facts as found justify a "quicktake" condemnation action.
The State's power of eminent domain or "[t]he inherent power of a governmental entity to take privately owned property, esp[ecially] land, and convert it to public use, subject to reasonable compensation", Valsamaki, 397 Md. at 241, 916 A.2d at 335, quoting Black's Law Dictionary 562 (8th ed. 2004), is a power inherent in sovereign authority. Riden v. Phila., Balt. & Wash. R.R. Co., 182 Md. 336, 339, 35 A.2d 99, 100 (1943). It is also a power limited by the Federal and Maryland Constitutions,
Maryland Constitution Article XI-B, Section 1. The Maryland Constitution also authorizes certain local and state entities, including Baltimore City, to engage in "immediate" takings, under which "the General Assembly may provide that ... property may be taken immediately upon payment therefor to the owner or owners thereof by the State or by the Mayor and City Council of Baltimore, or into court, such amount as the State or the Mayor and City Council of Baltimore, as the case may be, shall estimate to be the fair value of said property." Maryland Constitution Article III, Section 40A. When the sovereign engages in "immediate" takings or "quick-takes", "the condemning authority takes possession of the property prior to trial upon payment into court of its estimate of the value of the property taken." King v. State Roads Comm'n of the State Highway Admin., 298 Md. 80, 85-86, 467 A.2d 1032, 1035 (1983). The parties litigate the issue of compensation only after the sovereign has acquired title and possession of the property.
Baltimore City's quick-take authority is governed by Section 21-16 of the Code of Public Local Laws, which provides in relevant part:
In Valsamaki, 397 Md. 222, 916 A.2d 324, we had occasion to interpret Section 21-16. The City had filed a "quick-take" petition, seeking to condemn Valsamaki's property, asserting, only, that immediate possession was necessary to "assist in business expansion." The Circuit Court, after a hearing, denied the City's petition and we affirmed. In so doing, we reasoned that, in enacting Section 21-16, the City Council had required "the City to establish under oath the immediacy of the need for quick-take condemnation", and therefore, imposed a "burden of proof on the City to establish that immediate need." Id. at 246, 916 A.2d at 338. We concluded, then, that to prevail in a quick-take condemnation, the City must prove that the property is being condemned for a public use and that it has an immediate need to acquire the property, which it had not done.
Less than two months after issuing our decision in Valsamaki, we decided Sapero, 398 Md. 317, 920 A.2d 1061, in which we reversed the Circuit Court's decision to grant Baltimore City's quick-take petition after the City had, again, asserted only that acquisition of the subject property was necessary at "the earliest possible time in order to assist in business expansion." Id. at 327, 920 A.2d at 1066-67 (quotations omitted). We concluded that the City had failed to meet its burden of proving an immediate need for the property, emphasizing that the City must provide specific evidence of an immediate need, not merely a bald assertion that one exists. We did acknowledge, however, in both Valsamaki and Sapero, that there were cases in which the immediacy requirement had been satisfied under Section 21-16 — when the subject property posed a health risk to the public, Free State Realty Co., Inc. v. Mayor and City Council of Baltimore, 279 Md. 550, 369 A.2d 1030 (1977), and in "hold out situations". Segall v. Mayor and City Council of Baltimore, 273 Md. 647, 331 A.2d 298 (1975).
A "hold-out" occurs in projects involving property assemblages, i.e., when multiple properties are assembled for a single project, where "one or more property owners resist selling, wanting to be the last owner of a parcel or among the last, in order to be able to demand higher prices for their property because they are holding
Hold-outs pose a significant problem in public projects; when the government seeks to address a problem such as community blight on a comprehensive basis, it, necessarily, needs to acquire multiple properties. Because of the democratic process and "the nature of public scrutiny", the need to acquire properties within a given area becomes public knowledge. Daniel B. Kelly, The "Public Use" Requirement in Eminent Domain Law: A Rationale Based on Secret Purchases and Private Influence, 92 Cornell L.Rev. 1, 5 (2006). Because the public, and particularly, the owners of the properties the government seeks to acquire, have knowledge of the government's plans, the sovereign is placed at a "severe disadvantage" when it attempts to negotiate for the property's acquisition. Steve P. Calandrillo, Eminent Domain Economics: Should "Just Compensation" Be Abolished, and Would "Takings Insurance" Work Instead?, 64 Ohio St. L.J. 451, 468-69 (2003). The problem is exacerbated when the government acquires a significant portion of the needed properties and the remaining owners are unwilling to sell. These owners, or "hold-outs", become "monopoly suppliers of the assembled land", and thus, obtain a significant bargaining advantage, as they may seek to sell the property to the government for an inflated price, because they know about the government's need. Michael Heller & Rick Hills, Land Assembly Districts, 121 Harv. L.Rev. 1465, 1472-75 (2008). Accordingly, "quick-take actions... are available to address the situation." Valsamaki, 397 Md. at 257 n. 18, 916 A.2d at 345 n. 18; cf. also Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F.Supp.2d 1203, 1231 (C.D.Cal.2002) ("Eminent domain can even be an effective tool against free-riders who hold-out for exorbitant prices when private developers are attempting to assemble parcels for public places....").
(emphasis added). Segall answered, alleging that the City did not have an immediate need to acquire the property. The Circuit Court granted the Petition for Immediate Possession and Segall moved to set aside the order, which was denied; we affirmed.
As in Segall, the City's inability in the present case to acquire the Property prevented it from engaging in demolition in furtherance of an urban renewal plan. Indeed, Mr. Makowski's property, one of almost 150 other properties in totality, inhibited further development to a greater degree than did any one of the Segall properties, because his was the only property on Block 1587 that was left. Mr. Makowksi, thus, retained leverage to hold a hammer over the City in order to gain financial advantage, and accordingly, was a "hold-out" within the meaning of Segall.
Mr. Makowski's attempt to distinguish Segall is unavailing. He asserts that, unlike Segall, the City, in the present case, had not acquired all of the properties on Block 1587, based, primarily, on Mr. Burgee's testimony that, at the time of filing the Petition, the City had not acquired the church property.
Mr. Makowski responded that he had received the map from the City:
Judge Carrion sustained the objection.
Authentication of a document is governed by Rule 5-901, which states, "[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." The Rule further elucidates a myriad of ways to authenticate evidence; the most pertinent to the instant matter is Rule 5-901(b)(1), which provides that evidence may be authenticated through "[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be." Mr. Burgee, however, testified that he had never seen the document before nor recognized it. Accordingly, Mr. Makowski failed to authenticate the document.
Mr. Makowski argues, next, that the Circuit Court erred in denying his "Motion for Leave to Perpetuate Evidence and Motion for Order to Compel Plaintiff to Produce Documents that were Subpoenaed" pursuant to Rule 2-404,
Mr. Makowski, finally, argues that the City provided him with "eleventh hour cursory, superficial evasive and incomplete discovery responses", contending, generally, that "[d]ocuments requested were not produced", the City did not "provide any specific response as to each of the document requests", and that "the [i]nterrogatory [a]nswers were deficient, evasive and non responsive". Mr. Makowski did not file a motion to compel discovery pursuant to Rule 2-432(b), which permits "[a] discovering party, upon reasonable notice to other parties and all persons affected" to "move for an order compelling discovery if", inter alia, "a party fails to answer an interrogatory submitted under Rule 2-421" or "a party fails to comply with a request for production or inspection under Rule 2-422," Rule 2-432(b),
We have explained that the purpose of Rule 8-131 is to allow "trial courts to explicate, to some degree, just what they are deciding or finding so that we may perform our tasks." Wilkerson v. State, 420 Md. 573, 597, 24 A.3d 703, 717 (2011). Rule 8-131, likewise, serves the "interests of fairness ... by `requir[ing] counsel to bring the position of their client to the attention of the lower court at the trial so that the trial court can pass upon, and possibly correct any errors in the proceedings.'" Conyers v. State, 354 Md. 132, 149, 729 A.2d 910, 918-19 (1999) (alterations in original). In this case, the trial court never had an opportunity to address the alleged omissions; we do not, therefore, address the adequacy of the City's discovery responses.
For all of the foregoing reasons, we affirm the decision of the Circuit Court.
(alterations in original). Pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City (2012), the parties involved in a quick-take proceeding have a direct right of appeal to this Court. Section 21-16 provides in relevant part:
(emphasis added); see also Maryland Rule 8-301(a) ("Appellate review by the Court of Appeals may be obtained only: (1) by direct appeal or application for leave to appeal, where allowed by law....").
The City, in its Brief, has consolidated Mr. Makowski's ten questions into a single issue, phrased as follows:
East Baltimore Development Inc., Forest City, http://www.ebdi.org/ about_forest_city (last visited June 23, 2014).
U.S. Const. Amend. V (emphasis added).
Id. at 254, 916 A.2d at 343.
Steve P. Calandrillo, Eminent Domain Economics: Should "Just Compensation" Be Abolished, and Would "Takings Insurance" Work Instead?, 64 Ohio St. L.J. 451, 469 n. 78 (2003).
Aside from this one reference there was no evidence adduced with respect to an alleged "outlier" that inhibited development.
Sapero v. Mayor and City Council of Baltimore, 398 Md. 317, 335-36, 920 A.2d 1061, 1072 (2007). The language quoted above from Sapero merely iterates that the City must offer evidence of an immediate need, rather than a bald assertion that one exists. In the instant case, as we have explained, the City provided undisputed testimony that Mr. Makowski was the only property owner on Block 1587 who had not yet agreed to convey his property to the City, thereby satisfying the dictates of Sapero.
Nothing from Valsamaki or Sapero, however, requires that the City bear a burden higher than what is traditionally required in civil cases — a preponderance of the evidence. See generally Coleman v. Anne Arundel Cnty. Police Dep't, 369 Md. 108, 134, 797 A.2d 770, 786 (2002) ("The most widely applied measure of the ultimate burden of persuasion in civil cases is by a preponderance of the evidence...."). As one oft-quoted commentator on the Maryland Rules of Evidence has observed, the clear and convincing standard "is applied when a particular claim or defense is disfavored for policy reasons, or the act alleged is one of moral turpitude or that would otherwise have stigmatic impact." Lynn McLain, Maryland Evidence State and Federal § 300:4 (Vol. 5, 2013 Supp.), neither of which is applicable to quick-take condemnations.