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Baltimore’s efforts to get Makowski’s property at 900-902 N. Chester St. began in April 2011 with the city sending him a “Notice of Intent to Acquire.” (The Daily Record/Maximilian Franz)

EBDI holdout loses quick-take battle

City can condemn last property on block in development area, determine owner’s compensation later

Maryland’s top court has cleared the way for Baltimore to condemn the property of Edward J. Makowski, the last holdout on his block, which happens to sit in the 88-acre footprint of the East Baltimore Development Inc. initiative.

The Court of Appeals unanimously found the city can take Makowski’s property first and determine the amount of “just compensation” for it later, a procedure known as a quick-take condemnation.

The city plans to raze the store-front property at the intersection of North Chester Street and Ashland Avenue to enable construction of a biotechnology and life sciences facility as part of its EBDI project, a $1.8 billion public-private partnership to redevelop the Middle East neighborhood.

As the sole holdout, Makowski has “held a hammer over the city in order to gain financial advantage over the city” — precisely the situation the city’s quick-take condemnation ordinance is designed to prevent, Judge Lynne A. Battaglia wrote for the high court.

Kevin R. Harris, a spokesman for Baltimore Mayor Stephanie Rawlings-Blake, praised Tuesday’s decision.

“The city has only used quick take powers carefully and in circumstances where the facts warrant,” Harris stated in an email. “Dealing with ‘holdouts’ is one of those circumstances and we are pleased that the Court of Appeals upheld our use of it here.”

Makowski, an attorney who argued his own case in court, contended that Baltimore’s effort to condemn his property was illegal because the city wants it for a private development rather than for a public use.

He also argued Baltimore does not need the land immediately, as would be required for the city to invoke its statutory authority to perform a “quick take” condemnation of the property.

Makowski said he is “going to have to think about” appealing the decision to the Supreme Court.

He said he believes the city is violating the Takings Clause of the U.S. Constitution’s Fifth Amendment, which permits the taking of property for just compensation and a public use, not a private one.

“I feel they are abusing the law, abusing citizens,” Makowski said of the city.

He also continues to dispute Baltimore’s contention that it needs his property right away, another basis for the quick-take condemnation.

“They still haven’t torn down the buildings in the rest of the square,” said Makowski, a solo practitioner in Baltimore.

Last one

The EBDI project, which began in 2001 under then-mayor, now Gov. Martin O’Malley, has been hobbled in the past by more than one stubborn property owner. The delays in the project were chronicled by The Daily Record in a 2011 series.

It was first promoted as a massive redevelopment that would result in new housing, jobs for residents and a world-class biotech park, with five life sciences buildings for lease. The expected completion date was February 2008.

As of December 2013, though, only one biotech building had opened and plans for a biotech park had been abandoned. Instead, the vision for redevelopment had shifted to include a new charter school, a $12 million public park and a $60 million lab for the state Department of Health and Mental Hygiene.

And, although the city had moved more than 600 residents out of the area years earlier, demolition on the homes they left behind started only about six months ago.

Meanwhile, Baltimore’s efforts to get Makowski’s property at 900-902 N. Chester St. began in April 2011 with the city sending him a “Notice of Intent to Acquire.”

When Makowski’s tenant, The Answer Inc., moved out about nine months later, he and the city reached an agreement under which Baltimore would pay him $2,000 per month in lost rent in return for a right of entry. Under that right, city agents could enter the building and board it up for purpose of demolition, according to the Court of Appeals’ opinion.

However, Makowski and the city were unable to agree on a price for the property. In April 2012, the city filed a Petition for Condemnation in the circuit court.

While that petition was pending, the city reached agreements with the other property owners on that block, leaving Makowski as the sole holdout. Baltimore then amended its court action to a Petition for Immediate Possession and Title under the quick-take ordinance, according to the high court’s opinion.

After a hearing in Baltimore City Circuit Court, Judge Audrey J.S. Carrion ruled for the city last June.

Following the U.S. Supreme Court’s 2005 decision in Kelo v. City of New London, Conn., Carrion found the city-approved economic development plan can qualify as a public use under the federal constitution.

“The purpose of the massive EBDI project at issue is the redevelopment and renewal, through a master plan years in the making and a colossal influx of investment, of an East Baltimore neighborhood that has suffered from urban decay for decades,” Carrion ruled. “By endeavoring to improve Middle East and dramatically reduce blight through a massive redevelopment and revitalization project of an 88-acre sector, Baltimore City is condemning the subject property for a public purpose.”

Makowski filed for direct review by the Court of Appeals, which affirmed Carrion’s conclusion that developing an urban area that has suffered from decay for decades was a sufficient public use.

The case will now return to circuit court for a determination of how much Makowski is owed.

Last June, Carrion also ordered the city to deposit $92,000 with the court pending final resolution of the just-compensation issue.

“It’s not so much the money,” Makowski said Tuesday, after the Court of Appeals affirmed Carrion’s ruling. “I wanted to keep the property.”

BATTAGLIA

WHAT THE COURT HELD

Case:

Edward J. Makowski v. Mayor and City Council of Baltimore, CA No. 81, Sept. Term 2013. Reported. Opinion by Battaglia, J. Argued April 29, 2014. Filed June 24, 2014.

Issue:

Did the circuit court err in granting the city’s Petition for Immediate Possession and Title of property within the planned East Baltimore Development Initiative?

Holding:

No; Baltimore has immediate need for the property, which the city wants to convert to a use consistent with its goal of eradicating urban decay.

Counsel:

Edward J. Makowski for petitioner; Andrew G. Bailey and Elva E. Tillman for respondent.

RecordFax #14-0624-20 (35 pages)