Appeal from the Superior Court of Baltimore City (FOSTER, J.).
The cause was argued before Brune, C.J., and Henderson, Prescott, Horney and Sybert, JJ.
BRUNE, C.J., delivered the opinion of the Court.
The appellee, the City of Baltimore (the City) instituted condemnation proceedings in furtherance of an urban renewal plan to acquire the leasehold interests owned by the appellants in the land and improvements at 208-210 McMechen Street, Baltimore. The trial court entered a judgment of condemnation in favor of the City, which awarded damages of $38,250 to the owners of these leaseholds for the taking thereof. The owners appeal.
The appellants' contentions cover a wide range, including: alleged invalidity of the taking and of the ordinance under which the City purported to act (Ordinance No. 912, approved July 3, 1961) by reason of asserted violations of provisions of the State or Federal Constitutions, or both; alleged conflict with State statutes; alleged conflict with provisions of the Baltimore City Charter; questions as to waiver of jury trial and as to issues which should have been submitted to the jury if there were not such a waiver; and a procedural objection because the City Department of Assessments did not join in these condemnation proceedings.
The present specific provisions of the State Constitution relating to urban renewal in and by City are contained in Article XI-B, as proposed as a constitutional amendment by Ch. 162 of the Acts of 1947. Under this Act, the amendment, if adopted, was "to supersede and stand in the place and stead of the [then] title to, and Sections 1 and 2 of, Article XIB of [the] Constitution." It was ratified at the election of November 2, 1948, and was certified by the Secretary of State as having been so ratified on January 4, 1949, and is therefore sometimes referred to as the 1949 Amendment.
Under Section 1 of Article XI-B the General Assembly of Maryland may authorize and empower the City to acquire land and property of every kind within its limits by purchase, condemnation, or other lawful means "for development or redevelopment,
including, but not limited to, the comprehensive renovation or rehabilitation thereof"; and to sell, lease, convey, transfer, etc., any of such land or property, whether or not developed or redeveloped. No property may be taken by the City through the power of eminent domain for any of these purposes or in connection with the exercise of any of the powers which may be granted to the City under Article XI-B, without just compensation as agreed upon between the parties or awarded by a jury being first paid or tendered. This section further provides that "All land or property needed, or taken by the exercise of the power of eminent domain, by the [City] for any of the aforementioned purposes or in connection with the exercise of any of the powers which may be granted to the [City] pursuant to this Article is hereby declared to be needed or taken for a public use."
Section 2 of Article XI-B authorizes the General Assembly to grant to the City "any and all additional power and authority necessary or proper to carry into full force and effect any and all of the specific powers which the General Assembly is authorized to grant to the [City] pursuant to this Article and to fully accomplish any and all of the purposes and objects contemplated by the provisions of this Article, provided such additional power or authority is not inconsistent with the terms and provisions of this Article or with any other provision or provisions of the Constitution of Maryland." The General Assembly is also authorized to place restrictions or limitations on the exercise of powers which it may grant to the City under this Article.
Section 3 provided for continuing in existence the previously established Baltimore Redevelopment Commission and for its continued exercise of power and authority which might then or thereafter be vested in it "until such time as such power and authority * * * is validly repealed by an Act of the General Assembly * * * or by an ordinance or resolution of the [City] and a new agency of the [City] is created to carry out the objects and purposes for which the Baltimore Redevelopment Commission was originally created; and nothing contained in this Article shall be taken or construed to the contrary."
Ch. 217 of the Acts of 1949 of the General Assembly in general
implements Article XI-B, and in large measure grants powers of urban renewal to the City in the terms of that Article. It does this (by Sec. 1 of the Act) by adding a new Paragraph designated as 14(A) to Sec. 6 of the Baltimore City Charter (1946 Ed.). It also contains some specific provisions not spelled out in Article XI-B, but evidently regarded as within the additional powers and further restrictions provisions of Sec. 2 of that Article. Among these are provisions (sub-par. (f)) authorizing the insertion of appropriate provisions in any legal instrument pertaining to the sale, lease, conveyance, transfer or other disposition of property for any of the purposes contemplated by Paragraph 14(A), to the effect that standards of population density, property maintenance, types of land use and other standards established for the particular parcel of land or porperty shall be maintained, and that all covenants and restrictions contained in any such legal instrument shall be binding upon subsequent purchasers, lessees, transferees or successors.
Bub-paragraph (g) of Par. 14(A) authorizes the City to vest jurisdiction or authority "to exercise or perform" all or any of the powers granted under Par. 14(A) in any suitable board or commission, etc. then existing or thereafter created, and authorizes the City to create a board or commission, etc., for such purposes.
Sec. 2 of Ch. 217 repeals the former Paragraph (25) of the City Charter, entitled "Redevelopment Commission," and all amendments thereof (specifically including Ch. 504 of the Acts of 1947), and Sec. 3 implements Sec. 3 of Art. XI-B by providing in substance that the Redevelopment Commission shall continue in existence and may exercise its powers until it is dissolved by an ordinance of the City and the power and authority granted to the City under Ch. 217 are vested in whole or in part in a new board, commission, department, bureau or other agency of the City. It closes with the provision that "nothing contained in this Act shall be taken or construed to the contrary."
City Ordinance No. 692, approved December 31, 1956, which amended Article 14 of the Baltimore City Code, among other things, abolished the Baltimore Redevelopment Commission and
established the Baltimore Urban Renewal and Housing Agency (BURHA). It also contained a finding that there existed in the City slum, blighted, deteriorated, or deteriorating areas, which constitute a serious and growing menace, injurious and inimical to the public health, safety, morals and general welfare of the residents of the City; and it defined the meaning of a slum, blighted or deteriorated area and the meaning of a deteriorating area. In general, it authorizes BURHA to exercise the powers conferred upon the City by Article XI-B and by Ch. 217 of the Acts of 1949, subject in some respects to approval by the Planning Commission, and subject to the approval of renewal plans by City Ordinance to be adopted only after a public hearing. A renewal plan is defined as meaning "a plan, as it exists from time to time, for the elimination, correction, or the prevention of the development or the spread of slums, blight, or deterioration in an entire Renewal Area or a portion thereof." Such a plan must contain a land use map showing the proposed use of all land in the area and must set forth other matters, including any zoning changes and the effective date thereof, and the nature of any restrictions, conditions or covenants to be incorporated in deeds or contracts for the sale, lease, use or redevelopment of property within the area affected. (City Code, Art. 14, sec. 9-D(b).) Zoning changes require approval by an ordinance in conformity with the procedural requirements of Article 66B of the Code, the State Zoning Enabling Act, and approval by ordinance of a renewal plan constitutes authorization to BURHA to acquire by condemnation, if necessary, land and improvements and interests therein designated for acquisition in the plan. (See City Code, Art. 14, sec. 9E(d) and (e).)
Ordinance 912, among other things, approves a renewal plan for Project I of the Mount Royal-Fremont Renewal Area, this being the plan here involved, and specifically authorizes the condemnation of the fee simple interest in numerous properties, including 208 and 210 McMechen Street, in which the appellants have leasehold interests. The plan contemplates the immediate acquisition of roughly 40% of the area covered by Project I, and makes provision for the subsequent acquisition of other properties if necessary to bring them up to standards
required by other City ordinances or regulations or the additional housing standards contained in sec. 4 of Ordinance 912 or to eliminate incompatible or nonconforming uses. Other matters pertaining to this ordinance and relevant to contentions here raised will be referred to in considering particular contentions.
Sections 28 and 53 of the City Charter relate, respectively, to the title and form of ordinances and to participation by the Bureau of Assessments in condemnation cases and will be further considered in connection with the contentions to which they are directly related.
We shall first take up the appellants' contention that this condemnation proceeding is invalid because of alleged non-compliance with the provisions of Sec. 53 of the City Charter that "[c]onsistent with the provisions of the Charter * * *, the Department [of Assessments], pursuant to the provisions of applicable ordinances as now or hereafter enacted, shall: * * * (5) in conjunction with the Department of Law, institute and carry on all condemnation proceedings on behalf of the City."*fn1 It is clear that the Department did not initiate or carry on the present proceeding, but we do not find this a fatal objection to the validity thereof. In the first place, it is at least doubtful that this provision, according to its own terms, has any application to the present case where, under Sec. 14(A)(g) of the City Charter, as enacted by Ch. 217 of Acts of 1949, the City may vest jurisdiction or authority in any suitable board, * * * department * * * or other agency to exercise the powers conferred by section 14(A), which include the power of condemnation, and the City ...