Property Rights in the State of Maryland
Maryland’s property right protections are comparable in many ways to those found in other states and in other state constitutions. But one area where they fall short concerns takings for economic development projects. While 2006 saw many states enacting eminent domain reform legislation to restrict such takings following the U.S. Supreme Court’s decision in Kelo, Maryland was not one of them. The state legislature did, however, pass Senate Bill 3 in 2007 requiring condemning authorities to file a condemnation action within four years of the date of specific authorization to acquire the property. In situations where a condemnation action is not filed within four years, the condemning authority may not proceed with the acquisition until it first obtains a new authorization. Finally, unlike several other states, Maryland does not provide for the recovery of a landowner’s attorneys’ fees, expert witness fees and costs in defending the condemnation action and in advocating for full just compensation. The fact that landowners must pay for these expenses themselves often results in less than full compensation being paid for the taking of property.
Meet OCA's Maryland Attorney
Joseph P. Suntum
Joseph P. Suntum is a principal in the firm of Miller, Miller & Canby and the leader of the firm’s Eminent Domain Practice Group. Decades of trial experience and an in-depth knowledge of real property valuation and the law of eminent domain has made him a strong advocate in the protection of landowner property rights and in the ability to maximize just compensation when properties are targeted for acquisition. Mr. Suntum routinely appears before the Maryland courts of appeal and has successfully argued many appellate cases. Mr. Suntum served as Managing Partner of the firm from 1997 to 2008. Mr. Suntum currently serves on the Board of Directors for OCA.
A Summary of Maryland’s
Eminent Domain Laws
The following responses are intended to provide general information about eminent domain laws in the featured state. Such information does not constitute legal advice. Anyone interested in learning more about eminent domain law and the impact it may have on a given set of facts should consult with an OCA attorney or another attorney experienced in handling eminent domain cases.
- Who Can Exercise Eminent Domain Powers?
Md. Real Property Code Ann. § 12-101 provides that the State, or any of its instrumentalities or political subdivisions, acting under statute or ordinance passed pursuant to Article III of the Maryland Constitution, may take private property for public use. However, in situations where counties, municipalities, utilities and others seek to exercise the power of eminent domain, they may only do so if the State has delegated condemnation authority to such entities. Consequently, it is important to confirm at the outset of any case whether the entity seeking to exercise the power of eminent domain has received a lawful delegation from the State to do so.
- What Are the Legal Requirements for Exercising the Power?
Under Maryland law, property can only be condemned for a lawful public use or purpose. Additionally, condemning authorities must possess the proper delegation of eminent domain authority from the State to condemn property. In all situations, if the right to condemn exists, just compensation must be paid for the property being taking. Finally, Maryland law also requires the condemning authority to make every reasonable effort to acquire the property expeditiously by negotiation before filing an eminent domain action.
To learn more about the procedural aspects of eminent domain cases in Maryland look to Title 12, Rules 12-201 et. seq. and Real Property Article, §§ 12-101 et. seq. of the Maryland Code. Additional procedural requirements are imposed on the State Department of Transportation in Title 8 of the Transportation Article.
- What Limitations or Defenses Exist?
Once the decision to proceed with a public project is made and the acquisition of property necessary for the project is determined by an authorized governmental entity, the grounds to challenge the condemnation are limited under Maryland law. Defenses can, however, be raised as to whether a proper public use exists for the condemnation or whether the prerequisite legal authority to condemn is present. In such situations the Court will review the submitted evidence and rule on the defenses. But in other matters deference is generally given to the condemning authority in its decision to condemn. For instance, the court will not review and substitute its opinion as to whether there is a need to take the property or whether the public project is feasible, unless it can be shown that the decision is so oppressive, arbitrary or unreasonable as to suggest bad faith.
- What Constitutes a Public Purpose?
Like the U.S. Constitution, Maryland’s Constitution limits the use of eminent domain to “public use,” a term which over time has come to include public purpose as well. Typical uses that satisfy a public use or purpose can include roads, parks, schools, other public buildings, or other projects or undertakings that serve a public good or need. Unfortunately, unlike other states that embraced eminent domain reform following the Kelo decision, Maryland still recognizes economic development as a proper public purpose for which the eminent domain power may be utilized. The one restraint on this power is that the economic development must be carried out pursuant to a comprehensive plan. It should be noted that in at least one case, simply asserting that property would be condemned “for urban renewal purposes” was insufficient to meet the comprehensive plan requirement.
- How is Just Compensation Determined?
The definition of just compensation under Maryland law includes the fair market value of the property being taken from the landowner, any diminution in value to the landowner’s remaining property, and all demonstrable damages occurring as the result of the condemning authority’s conduct during the pre-condemnation period. This last damage element is somewhat unusual as many states do not formally recognize the right of landowners to claim pre-condemnation losses.
In Maryland, just compensation in cases brought by the State Roads Commission can be determined by a Board of Property Review (“BPR”). Each county has a BPR, which consists of three members appointed by the circuit court judges. The BPR will hear the condemning authority’s case and the owner’s case and render an award. If either party is dissatisfied with the findings or award, the case may be appealed to the circuit court to be heard by a jury. On appeal, the court will hear and determine the case de novo, meaning from the beginning. The award of the BPR will not be considered by the court or disclosed to the jury. The BPR process has proven to work well in resolving small cases. The State Roads Commission may elect to bypass the BPR procedure and file a condemnation action directly in the circuit court. This generally occurs in larger cases where the contested amount of just compensation between the parties is substantial.
- How is Fair Market Value Defined?
Maryland law defines “fair market value” in a condemnation case as the “the price as of the valuation date of the highest and best use of the property which a seller, willing but not obligated to sell, would accept for the property, and which a purchaser, willing but not obligated to buy, would pay,” excluding any impact on value caused by the project for which the property is being taken. See Md. Real Property Code Ann. § 12-105. Because fair market value is often driven by both the “valuation date” to be applied and the “highest and best” use of the property to be considered, both elements are important in the value determination. Generally, the property’s fair market value is the subject of opinion testimony by expert real estate appraisers, although an owner of property is also presumed competent to testify to the value of the property owned and being taken. Appraisers will often use different valuation approaches to determine the value of the property, the most common being the comparable sales, income and cost approaches.
- What About Recovering Damages to Remaining Property?
Under Maryland law just compensation does include any diminution in value (i.e. damages) to an owner’s remaining property. Thus, when a condemning authority takes a portion of a landowner's property, it is obligated to pay compensation not only for the part taken, but also for any loss in value to the property not being taken. Unfortunately, in Maryland a landowner is not entitled to claim damages for business loss caused by the public project on the theory that the business itself can be relocated.
- Is the Landowner Entitled to Recover Reasonable Attorney Fees? Expert Fees? Litigation Costs?
Unlike the law in many other states, attorney’s fees, expert witness fees, and other litigation expenses and costs incurred by an owner in defending a condemnation action are generally not recoverable. There are two exceptions to this rule, however. Attorney's fees may be recoverable if it is determined that the state does not have the right to condemn the property (Md. Code Ann., Real Prop. § 12-106) or if the condemning authority abandons the proceeding (Md. Code Ann., Real Prop. § 12-109(e)).
- When and under what circumstances can the government take possession of property prior to final just compensation being paid?
When a condemning authority seeks to take possession of property prior to a final determination of just compensation it is called a “quick-take” under Maryland law. A quick take involves '[t]he immediate taking of possession of private property for public use, whereby the estimated compensation is deposited in court or paid to the condemnee until the actual amount of compensation can be established.' Mayor & City Council of Baltimore City v. Valsamaki, 397 Md. 222, 226 (2007).
There are several notable differences between quick-take and a regular condemnation. First, a quick-take only entitles a condemning authority to take possession, not title, to the property once the estimated just compensation is deposited. Second, the right of quick-take is coupled with a prohibition against abandonment of the condemnation action after a taking has occurred without the owner’s consent. Third, the quick-take procedures permit the property owner to withdraw the estimated condemnation paid into court without prejudice to the owner’s rights to seek additional and full just compensation. And finally, because the property may be taken long before trial causing physical changes to the property from its original condition, when the jury goes to view the property prior to rendering a verdict, the view may be deemed irrelevant or non-consequential.
Maryland is somewhat unique in that it has granted only a handful of government jurisdictions and entities quick-take powers, e.g. Baltimore City, Baltimore County, Montgomery County, the municipal corporations within Cecil County, the State Roads Commission, the Washington Suburban Sanitary Commission (in Prince George’s County only), and WMATA. Numerous proposed amendments to the Maryland constitution seeking to expand quick-take authority to other entities have been defeated.
Joseph P. Suntum
- University of Maryland, Juris Doctorate, 1982
- University of Maryland, Bachelor of Arts, Government and Politics, 1979
- Maryland U.S. District Court of Maryland
Before joining Miller, Miller & Canby, Joseph Suntum served as a law clerk to the Honorable Elsbeth Levy Bothe in Circuit Court for Baltimore City. He also served as an Assistant Public Defender for Montgomery County for four years, where he first earned his reputation as an outstanding trial advocate. While Mr. Suntum’s current practice focuses on representing landowners in condemnation actions, he is a rare trial lawyer who has successfully tried both murder cases and multi-million dollar civil actions.
Mr. Suntum works closely with his clients to identify and fully understand their goals. He uses all available tools in pursuit of a successful result for his clients as efficiently and economically as the case permits, including use of the latest in courtroom technology to most persuasively present his clients' cases.
- Embracing New Technology: The Ipad at Trial. Eighth Annual CLE International Virginia Eminent Domain Seminar, 2014
- Numerous presentations at the annual ALI-ABA and ALI-CLE Eminent Domain and Land Valuation Litigation Conference 2005 - present
- Eminent Domain in Maryland, Lorman Education Services, Baltimore, Maryland 2006
- Maryland Property Tax, Lorman Education Services, Rockville, Maryland 2008
- Maryland Property Tax, Lorman Education Services, Bethesda, Maryland 1999
- Practical Law Institute: Litigation, Montgomery County, MD Bar Foundation 1995
- Deposition Training, Montgomery County MD Bar Foundation, 1994
PUBLICATIONSOverview and Preliminary Matters:
- Owner's Handbook
- Pre-Condemnation Planning
- Stages of Eminent Domain
- Addressing Your Clients' Concerns in Eminent Domain Proceedings
- Preparing Your Condemnation Case: How to Obtain More Than the Condemnor's Offer
- Taking Your Condemnation Case to the Next Level: Winning Ideas and Best Practices
- Drafting Pleadings That Make a Difference and Affect the Outcome
- Discovery and Procedure Techniques that Work in Condemnation Cases
- How to Successfully Settle a Condemnation Case
Compensation and Legal Issues:
- Compensation for Loss of Visibility To and View From the Owner's Property
- Condemnation of Easements
- Condemnation of the Whole: Why a Full Taking Involves Unique Considerations
- Trial Issues in a Condemnation Case
- Effective Voir Dire, Opening and Closing Argument from a Property Owner's and Condemnor's Perspective
- Giving the Judge and Jury the Big Picture in a Condemnation Case
- Opening Statements in Eminent Domain Cases
- Demonstrative Evidence in Eminent Domain: The Essential Exhibits
- Direct Examination of a Valuation Witness
Post Trial Matters:
- Named by Super Lawyers magazine as top 5% of Litigation Attorneys in the Maryland
- Member, Character Committee of The Court of Appeals of Maryland (1992-1997)
- Bar Association of Montgomery County (Secretary, 1995-1996; Executive Committee, 1997-1999; Member, Federal Practice Section)
- Maryland State Bar Association
- American Bar Association (Member, Litigation Section)
- Board of Directors of Montgomery General Hospital, 2003 - 2009
- Board of Directors of the Montgomery County Bar Foundation, 2005 - 2009
Regional Shopping Center – Partial Take
Initial Offer $ 3,750,000
Final Award $12,500,000
Taking of 1.18 acres of a 7.83 acre shopping center in the NW quadrant of New Hampshire Avenue and University Boulevard for the construction of a bus transit facility. The loss of parking would substantially damage the value and operation of the shopping center.
Condominium – Partial take of condominium open space
Initial Offer $425,000
Final Award $3,500,000
The State condemned the entrance to the condominium property and relocated the entrance to a new and less convenient location. Miller, Miller & Canby demonstrated that the taking would reduce the value of each of the individual condominium units and that the value of the common area was greater than estimated by the State.
Landlocked Remnant – Complete Take
Initial Offer $73,800
Final Award $1,568,000
The State left this landlocked remnant of approximately 1.5 acres in the wake of its adjacent takings for the ICC. MM&C proved the property could have been developed in conjunction with adjacent property, which had also been taken for the same project and had originally been part of a larger parcel with common ownership.
12.7 Acre Residentially Zoned - Unimproved Agriculturally Assessed Land
Initial Offer $ 2,650,000
Final Award $4,142,500
Complete take of 12.7 acres of residentially zoned property under contract with developer. MM&C proved that compensation should be paid based on land plan preliminarily vetted by MNCPPC before condemnation was filed. Issues involved public development policies concerning MPDU's, forest conservation and TDRs
9.85 Acres Vacant Land Zoned R-20/C-O Residential & Commercial
Initial Offer $ 4,819,000
Final Award $9,669,000
Partial Taking (approx. 246, 260 sq. ft.) of undeveloped residential and commercial property for the purpose of constructing the Montrose Parkway.