BARNES, J., delivered the opinion of the Court.
The appellants, property owners of residential property
We have concluded that the chancellor properly entered the order of April 27, 1972; and we will affirm that order.
The affidavit of William C. Strasser, President of the Board of Trustees of Montgomery Community College, sets out most of the relevant facts. It is an elaborate and detailed affidavit, consisting of some 20 pages in the
The Maryland-National Capital Park & Planning Commission (Planning Commission) stated in regard to Planning Area X in its Master Plan adopted by Resolution of September 4, 1963, after duly advertised public hearings on March 6 and 7, 1963:
The area mentioned for possible expansion is Block 69 in Takoma Park bounded by Philadelphia Avenue, Takoma Avenue, New York Avenue and Chicago Avenue and is adjacent to the property of Montgomery College. The appellants own residential properties in Block 69.
In April 1967, a study and recommendation was made by a Professor of Industrial and Technical Education of North Carolina State University in regard to Montgomery College. He recommended the retention of the Takoma Park campus and the acquisition of an additional down-county site. The Trustees, on July 17, 1967, authorized the formation of a Community Advisory Committee for a long-range Master Plan for the college. On January 25, 1968, they adopted a capital budget for the college for the fiscal year 1969 and included in that budget funds to initiate the educational planning for expanded and improved facilities at the Takoma Park campus, as well as funds for site acquisition.
The Community Advisory Committee, at a public session
A committee, authorized by the Trustees to study educational planning for lower county facilities of the college, presented its detailed recommendations to the Trustees in a public session in March 1969 in regard to the Takoma Park campus and its expansion. The Trustees held a public hearing on these recommendations in May 1969 when at least one of the residents of Block 69 attended but did not oppose at that time the expansion of the Takoma Park campus.
On July 21, 1969, the Trustees petitioned the Montgomery County Council for state aid for the acquisition of land adjoining the existing Takoma Park campus. This petition was referred by the County Council to the State Board for Community Colleges, which, on December 3, 1969, recommended to the Board of Public Works the approval of the request of the Trustees for state assistance for the acquisition of additional land for the Takoma Park campus. The Board, on May 1, 1970, approved an allocation of $325,000 toward the acquisition of 7.9 acres of land for the Takoma Park campus, the Trustees receiving official notice of this authorization on July 13, 1970.
Thereafter, the Trustees approved the appointment of an architectural firm for the Takoma Park project. On May 4, 1971, the Trustees held a public hearing on a feasibility study made by the architects. All residents of Block 69 had been sent personal invitations to appear and present their views. Later in May 1971, the architects were instructed to re-evaluate their proposal to determine if it would be possible to take less of Block 69. The Trustees, on June 14, 1971, in a public session, accepted
The Trustees, on November 1, 1971, approved a Resolution confirming a fixed policy of acquiring no properties beyond Block 69 for the proposed campus expansion, with the possible exception of nearby industrial properties and some land across the railroad tracks. On the same day, the Trustees approved an option to purchase the property 715 New York Avenue (Lot 6-C in Block 69) from The United Church for the Deaf of Washington, D.C., a District of Columbia Corporation, for $117, 500. Thereafter, the Trustees and the Board of Public Works approved various options to purchase land for the Takoma Park campus expansion, including the option to purchase 715 New York Avenue from the Church for the Deaf on February 3, 1972.
The affidavit of President Strasser then sets forth several reasons why the project should not be further delayed, e.g., the inadequacy of the present facilities at the Takoma Park campus, the serious overcrowding, the number of chairs in existing classrooms in many areas of the campus exceeding the state guidelines by 30%, the necessity for compliance with certain regulations in regard to air pollution, the need for the continuation of the college at the Takoma Park location to act as a stabilizing influence in the community, the prevention of deterioration of nearby residential areas by acting as a buffer between commercial and residential areas, to supply educational advantages to the increasing number of students in the Takoma Park area who find the Takoma Park location
The affidavit of Etta Mae Davis and Dolores Stowell, filed by the appellants in opposition to the summary judgment sought by the appellees, after reciting other matters, attached copies of the options of the Trustees to acquire various properties in Block 69. Then follow Paragraphs 11, 12, 13 and 14:
The appellants first contend that Art. 77A, §§ 1-10, and particularly § 1 (d), are invalid as involving an unconstitutional delegation of legislative power. Art. 77A in regard to "Higher Education" has a number of subheadings, i.e., "Community Colleges," "State Colleges," "University of Maryland," "Maryland Council for Higher Education" and "Scholarships." As indicated, the appellants only challenge §§ 1-10 which are the sections under the subheading "Community Colleges."
Art. 77A, § 1 (a) provides for the creation of boards of trustees to establish and maintain community colleges. The board of education of any county and the Board of School Commissioners of Baltimore City until June 30, 1969, with the approval of the State Superintendent of Schools and after July 1, 1969, with the approval of the State Board for Community Colleges (created by § 8), for the purposes of administration over these community colleges "shall constitute a board of trustees and governmental corporation." The board of education, however,
The definition in § 4 in regard to "Community college" is as follows:
Section 9 (as amended by Chap. 303 of the Laws of 1970 and Chap. 223 of the Laws of 1971) provides for the appointment of boards of trustees by the Governor, with the advice and consent of the Senate, upon the request
The appellants contend that Art. 77A, §§ 1-10, and particularly § 1 (d), are unconstitutional as an attempted delegation of legislative power without proper guides and standards.
We have serious doubts in regard to whether the appellants have standing in this case to raise this issue in view of the fact that their property is not the subject of any condemnation proceedings and, indeed, the properties which have been acquired by the Trustees have been purchased pursuant to Art. 77A, § 1 (k) by making contracts of sale with the property owners involved. The option contract with the Church for the Deaf — 715 New York Avenue — was negotiated pursuant to § 1 (k), and not by the exercise of the power of eminent domain. The appellants apparently proceed, however, on the theory of "constructive condemnation," i.e., that the appellant property owners are unwillingly coerced by the threat of condemnation to sell their properties to the Trustees. As we have indicated, the affidavit of President Strasser, filed by the Trustees in support of their motion for summary judgment, does state that on June 14, 1971, the Trustees accepted the revision of the architects, indicated that they were most desirous of reaching agreements to purchase the properties in Block 69, but that if no agreements were reached prior to July 19, 1971, "more direct, specific action to acquire the properties" would be considered by the Trustees. It can well be doubted that this rather mild and inconclusive statement by the Trustees can amount to a threat of condemnation sufficient to make applicable the doctrine of "constructive condemnation"; but in view of the posture of the
We also doubt that any guide or standard is constitutionally required when the State, through an act of the General Assembly, delegates the sovereign power of eminent domain to one of its agencies. It is well settled that a school district or board of education is a proper recipient of the power of eminent domain from the State. 1 Nichols on Eminent Domain (3rd ed. Sachman, 1971) § 3.22 , at 382. See Davis v. Board of Education of Anne Arundel County, 166 Md. 118, 170 A. 590 (1934), infra.
Generally speaking, the agency to which the power of eminent domain is delegated stands in the same position of the Legislature, itself. 1 Nichols, supra, § 2.31 , at 329; and it would appear, therefore, that no guides or standards need be given when the power of eminent domain is delegated. We do not reach this question, however, in that, assuming arguendo that the provision for guides and standards is constitutionally necessary in legislation making the delegation (and also that the appellants have standing to raise the question), we are of the opinion that the guides and standards in the legislation here involved are sufficient.
The appellants rely on the decision of the Supreme Court of the United States in Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570 (1935); but the full vigor of Schechter has been rather reduced by later decisions of the Supreme Court of the United States on this subject. The present federal law in this regard appears to be the test enunciated by Mr. Chief Justice Stone in Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834 (1944). Ruling on the constitutionality of the Emergency Price Control Act of 1942, the Chief Justice said the delegation of powers to the Price Administrator would be unlawful, "[o]nly if we could say that there is an absence of standards for
The delegation of the power of eminent domain to the Trustees is limited by the language of § 1 (d) to land "deemed necessary by the board of trustees for the operation of the community college." (Emphasis supplied.) A similar limitation appears in § 1 (k) in regard to the making of contracts, i.e., those contracts "deemed by the board of trustees to be necessary or advisable to the establishment, maintenance, and operation of the community college." (Emphasis supplied.) It is thus seen that the exercise of the power of eminent domain must be for the operation of the educational institution involved — a public use. There is little question that boards of education and, a fortiori, their successor boards of trustees to operate a community college pursuant to § 9, are a proper recipient of the power of eminent domain. See Davis v. Board of Education of Anne Arundel County, supra, 166 Md. 118, 170 A. 590 (1934). Involved in Davis was the exercise of the power of eminent domain by the Board of Education of Anne Arundel County granted to that Board by Chap. 157 of the Acts of 1931. The statute provided that, "When land shall be required for the site of a school-house, or for enlarging a school-house lot, or for playgrounds or other school purposes," the Board, after being unable to contract with the owners for the acquisition of the land, "may institute proceedings for the acquisition of such lands...." The same provision, without the 10-acre limitation contained in Chap. 157 of the Acts of 1931, is contained in Code (1957, 1969 Repl. Vol.) Art. 77, § 51.
It was not suggested in the opinion in Davis that the
We, and our predecessors, however, have sustained delegations of legislative power to administrative officials, boards and commissions involving comparable guides and standards or even those less restrictive. See, e.g., McBriety v. Baltimore City, 219 Md. 223, 238, 148 A.2d 408, 418 (1959) [rules and regulations "proper and necessary" to enforce multiple-family dwelling ordinance for protection of the public interest]; Givner v. Commissioner of Health of Baltimore City, 207 Md. 184, 191-92, 113 A.2d 899, 902 (1955) [rules and regulations "necessary and proper" for the enforcement of the health ordinance], citing with approval Petrushansky v. State, 182 Md. 164, 32 A.2d 696 (1943) ["maintain the premises in clean condition"]; Schneider v. Pullen, 198 Md. 64, 81 A.2d 226 (1951) [Private trade schools must obtain certificates of approval by the State Superintendent of Schools where the conditions of entrance, scholarship, educational qualifications, standards and facilities "were adequate and appropriate" for the purposes, program, training and courses to be taught.].
In Givner, we said in regard to our prior decisions:
See also the provisions of Code (1957, 1972 Cum. Supp.) Art. 89B, § 7 (b) granting the State Highway Administration the same basic power in regard to eminent domain as previously granted to the State Roads Commission with the limitation "acquire ... by... condemnation proceedings ... land ... that may be, in its judgment desirable or necessary to perform the duties imposed by this article...." (Emphasis supplied.) The exercise of this power by the State Roads Commission was sustained by us in State Roads Commission v. Franklin, 201 Md. 549, 95 A.2d 99 (1953), holding that the question of the necessity for the taking was a legislative one and could only be successfully challenged in the courts when action of the commission in determining the necessity for the taking was "so oppressive, arbitrary or unreasonable as to suggest bad faith" or its exercise of its discretionary power was "`fraudulent or such abuse of discretion as to amount to a breach of trust.'" 201 Md. at 561, 95 A.2d at 105.
As we will consider more fully later in this opinion, there was no sufficient allegation of fact in the counter-affidavit
We conclude that the delegation of the power of eminent domain to the Trustees in the present case was not unconstitutional because of a lack of sufficient guides and standards, assuming, for the argument, that such are constitutionally required in delegations of the power of eminent domain.
We now turn to the question of the sufficiency of the allegations of the counter-affidavit to raise a genuine question of a material fact in regard to (a) the supposed denial of due process of law resulting from arbitrary and unreasonable actions of the Trustees and (b) the supposed unconstitutional use of public funds for an option to purchase property owned by a religious organization.
The law in regard to the sufficiency of allegations in a counter-affidavit in summary judgment cases is well settled. As Judge Singley, for the Court, in Shaffer v. Lohr, 264 Md. 397, 404, 287 A.2d 42, 46 (1972), after reviewing the Maryland Law in regard to the limitations upon the summary judgment procedure, aptly stated:
In the instant case, the affidavits in support of the motion for summary judgment for the appellees set forth in substantial detail the various hearings, conferences and efforts on the part of the Trustees to give the appellants every opportunity to be heard and to have their positions considered. Indeed, the architects modified their original plan as a result of hearing the views of the appellants. These affidavits established, prima facie, an ample affording of due process of law to the appellants. In Paragraphs 13 and 14 of the counter-affidavit — already quoted in full — only the most general statements are made, i.e., "that in reaching the decision to expand into Block 69 the Trustees have acted arbitrarily and without just reason" and "[t]here is no procedure by which the Trustees have proceeded and in attempting to hold `public' hearings, they have failed to provide proper notice or any other semblance of due process" without giving a single fact, admissible in evidence or otherwise, to support those broad general statements. The counter-affidavit is clearly insufficient to raise a genuine issue of material fact in regard to a supposed denial of due process of law.
The counter-affidavit is also insufficient to raise a genuine issue of material fact in regard to the supposed unconstitutional use of public funds for an option to purchase property owned by the Church for the Deaf.
In Paragraphs 11 and 12 of the counter-affidavit — already quoted in full — it is stated that "[t]he experts of Complainants will testify that the option price on the church property is far above the market value of the
We sustained the constitutionality of Code (1957, 1971 Repl. Vol.) Art. 33A, § 5 (d) in regard to damages to be paid to churches in eminent domain proceedings, as interpreted by us, in Mayor & City Council of Baltimore v. The Concord Baptist Church, Inc., 257 Md. 132, 262 A.2d 755 (1970). Judge Singley, for the Court, stated that the proper interpretation of this statute was:
A fortiori, a payment for church property acquired by a state agency for a public use based upon the same formula as required by Art. 33A, § 5 (d) to be used in condemnation cases, would not violate any provisions of the federal or state constitutions in regard to the establishment of religion, equal protection or due process of law.
It is clear to us that nothing in this situation, prima facie, indicates any fostering of excessive "governmental entanglement of religion." See Tilton v. Richardson, 403 U.S. 672, 687-88, 91 S.Ct. 2091, 2100, 29 L.Ed.2d 790, 804 (1971).
The supporting affidavit of Robert C. Harrison, already mentioned, established that the two appraisals for the church property located at 715 New York Avenue in Block 69 on which the college relied in making the purchase "arrive at the fair market value of this property by using the reasonable replacement cost of the improvements
The statement in Paragraph 12 that "The considerations given the church property amount to an active discrimination in favor of a religious organization ..." is also conclusory. No facts are stated to indicate any supposed "discrimination."
The appellants indicated in their brief and in the argument before us that the chancellor refused their request to require the appellees to produce the two appraisal reports used by the college in connection with the purchase of the church property and that this refusal presented them with "problems." There is, however, nothing in the counter-affidavit setting forth that they "cannot for reasons stated present by affidavit facts essential to justify ... [their] opposition," seeking to avail themselves of the relief provided for in Rule 610 d 2. Having failed to raise this question below as provided for in Rule 610 d 2, it cannot be raised now for the first time on appeal. Rule 885.
The appellees, in addition to the question of the standing
Order of April 27, 1972, affirmed, the appellants to pay the costs.