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Hold the jackhammers, MoCo judge tells SHA

The State Highway Administration’s effort to build a sound barrier in Rockville has hit a barrier of its own.

A Montgomery County judge has denied the SHA’s attempt to perform preliminary tests at the Woodley Gardens Shopping Center in what the property owner’s lawyer said is the first challenge of its kind to a frequently used provision of the state’s eminent domain laws.

“We wanted to go to court on this because we thought it was a highly intrusive statute,” said Sean T. Morris. “And the court agreed.”

At issue was whether the state’s right to take soil samples includes the right to jackhammer through the shopping center’s parking lot. The work would be part of the engineering and design phase of a planned 2,500 foot-long noise barrier adjacent to northbound I-270, just north of state Route 28.

An analysis by the SHA shows 34 homes and Woodley Gardens Park would benefit from the sound barrier, according to David Buck, an SHA spokesman. The agency has already begun gathering ground data in areas where it has the right-of-way, Buck said.

In December, an SHA official asked the shopping center’s ownership for permission to access the Nelson Street property to gather more data.

When the owners did not consent, SHA filed a petition in May in Montgomery County Circuit Court seeking entry onto the property.

The SHA, in its petition, stated it was seeking access under an eminent domain law allowing it on private property to “conduct environmental and engineering studies, including soil boring and excavation.” The law also applies to the Maryland Transit Administration, and a similar law governs soil testing in Anne Arundel and Montgomery counties as well as Baltimore city.

But Morris, a Bethesda solo practitioner, said he thought his client had a valid defense based on the language of the statute.

In opposing the petition, Morris argued the SHA was not going to do soil boring and excavation but rather “drill or jackhammer through the shopping center’s asphalt parking lot in five different locations.”

“The activities planned by SHA exceed those permitted by this statute,” he wrote.

The statute also requires the government, after excavating, to replace the soil and “reimburse the landowner or lessee who is farming the property for agricultural products destroyed.” This means, according to Morris, the law only deals with work performed on unimproved land.

“Thus, for the SHA to prevail on this petition,” Morris wrote, “this court must accept that drilling and jackhammering through an asphalt parking lot at a commercial establishment is of the ‘same kind and character’ as doing soil boring through unimproved property such that only soil or topsoil is disturbed. Clearly, it is not.”

Judge Ronald B. Rubin agreed last week, denying the SHA’s petition and declaring the statute “clearly unconstitutional” in making his ruling from the bench, according to Morris.

Buck, the SHA spokesman, said the agency has not made a decision about whether to appeal the July 17 ruling.

But Dino C. La Fiandra, a land use lawyer not involved in the case, said the agency “can’t live with this ruling.”

“As a practical matter, they need to have broad authority to go on properties to do the work they do,” said La Fiandra, a partner with Whiteford Taylor Preston LLP in Towson.

Should other judges take a similar “critical view and narrow reading” of the statute, the SHA and MTA would be forced to develop a different method of gathering its data, La Fiandra added.

“They’re going to have to figure out a way to do their engineering and environmental studies on a property without damaging the physical improvements to the property,” he said.

The case is State Highway Administration of the Maryland Department of Transportation v. Woodley Gardens Shopping Center General Partnership, et al., 29939M.