Makowski v. Mayor and City Council of Baltimore, No. 81, Sept. Term 2013, Opinion by 

Battaglia, J. 

PROPERTY – CONDEMNATION – “QUICK-TAKE” CONDEMNATION – 

IMMEDIATE NECESSITY – “HOLD-OUT” 

Pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City, the City 

may condemn property via “quick-take” proceedings to address a “hold-out” situation, 

wherein the City seeks to acquire multiple properties for a single project and one or more 

property owners are unyielding, wanting to be the last owner of a parcel or among the last, 

in order to be able to demand higher prices for their property because they are holding up a 

large project. 

EVIDENCE – AUTHENTICATION – AUTHENTICATION BY WITNESS 

TESTIMONY 

Trial court did not err in excluding map purporting to show areas of Baltimore City 

designated as historic when the only attempt to authenticate the document was through a 

witness who testified he was not familiar with the document. 

CIVIL PROCEDURE – APPEALS – SCOPE OF APPELLATE REVIEW – ISSUES 

RAISED AFTER NOTICE OF APPEAL IS FILED 

Ordinarily, an appellate court will not consider issues decided by the trial court after a 

notice of appeal is filed. 

CIVIL PROCEDURE – APPEALS – SCOPE OF APPELLATE REVIEW - 

PRESERVATION OF ISSUES – ADEQUACY OF DISCOVERY RESPONSES 

A party who fails to file a motion to compel discovery pursuant to Rule 2-432 may not 

challenge, on appeal, the adequacy of the responses it received to its discovery requests. 
Circuit Court for Baltimore City 

Civil No. 24-C-12-002245 

Argued: April 29, 2014 IN THE COURT OF APPEALS OF 

MARYLAND 

No. 81 

September Term, 2013 

EDWARD J. MAKOWSKI 

v. 

MAYOR AND CITY COUNCIL OF 

BALTIMORE 

Barbera, C.J. 

Harrell 

Battaglia 

Greene 

Adkins 

McDonald 

McAuliffe, John F. 

(Retired, Specially 

Assigned), 

JJ. 

Opinion by Battaglia, J. 

Filed: June 24, 2014 
This case involves a “quick-take” condemnation1

 of a property located at 900-902 

 

1

 In Mayor and City Council of Baltimore City v. Valsamaki, 397 Md. 222, 226 n.1, 916 

A.2d 324, 326 n.1 (2007), we described a “quick-take” condemnation: 

A quick-take condemnation 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.” Black’s Law Dictionary 310 

(8th ed.2004). See Bern-Shaw Ltd. P’ship v. Mayor and City Council of 

Baltimore, 377 Md. 277, 281 n. 1, 833 A.2d 502, 504 n. 1 (2003); King v. 

State Roads Comm'n, 298 Md. 80, 85-86, 467 A.2d 1032, 1035 (1983)

(Quick-take condemnation occurs where “the condemning authority takes 

possession of the property prior to trial upon payment into court of its 

estimate of the value of the property taken.”). 

(alterations in original). Pursuant to Section 21-16 of the Code of Public Local Laws of 

Baltimore City (2012), the parties involved in a quick-take proceeding have a direct right 

of appeal to this Court. Section 21-16 provides in relevant part:

In cases where the City files a Petition for Immediate Taking of title and 

possession to the said property in fee simple absolute or such lesser estate or 

interest as is specified in the Petition, title thereto shall irrevocably vest in the 

Mayor and City Council of Baltimore ten days after personal service of the 

Petition upon each and every Defendant or, if the Defendants or any of them 

shall file an answer to the Petition within the said ten day period alleging that 

the City does not have the right or power to condemn title to the property, 

then on the date of the trial court’s decision or on the date of decision in any 

appeal from the trial court. 

In the event the Defendants or any of them should file an answer, the court 

shall schedule a hearing within fifteen days of the date of the filing of an 

answer, which hearing shall be only for the purpose of contesting the right or 

power of the City to condemn title to the property. The trial court shall render 

its decision within fifteen days from the final day of said hearing. The City or 

the Defendants or any of them shall have an immediate right of appeal to the 

Court of Appeals of Maryland from the decision of the trial court.
N. Chester Street, comprised of a building that had formerly housed a church and contained 

various offices. The Appellant, Edward Makowski, raises ten issues for our review, 2

 

(emphasis added); see also Maryland Rule 8–301(a) (“Appellate review by the Court of 

Appeals may be obtained only: (1) by direct appeal or application for leave to appeal, 

where allowed by law . . . .”). 

2

 Mr. Makowski presents the following questions for our review: 

1. Would it be useful to provide some guidance to the courts below as to 

what constitutes a “hold out”? 

2. Should the trial court have considered or allowed consideration of 

whether development in accordance with the urban renewal ordinance 

could have occurred without acquiring the subject property? 

3. What burden of proof should be required of the Petitioner when taking 

property via quick take? Preponderance of the Evidence?, Clear and 

Convincing Evidence?, Undisputed Evidence?, or readily apparent and 

irrefutable evidence? 

4. Did Appellee prove an immediate need for the property, when the 

testimony was contradicted by the only witness, who stated his 

information was based solely on what he reads in the newspaper and who 

conceded that the time frame he asserted in his affidavit may not be 

correct? 

5. Whether the appellee acted in good faith in the valuing of the property, 

when it was aware that smaller commercial properties in the immediate 

vicinity were sold for more than double the amount the appellee was 

offering for the subject property? 

6. Can a Defendant be labeled a hold out for the purpose of a quick take

when the Condemning authority has not negotiated in good faith or made 

good faith offers of Fair Market Value and when there is no clear 

immediate need to obtain the property because other property in the same 

acquisition area had not been acquired on the date of filing for Quick 

Take? 

7. Were the eleventh hour cursory, superficial evasive and incomplete 

discovery responses provided by the Appellee sufficient to provide 

defendant with information that could be used in defending the 

condemnation case or in preparation to defend the quick take action? 

8. Can an assertion, without supporting authority, that discovery has been 

provided form a sufficient basis for Plaintiff/Appellee to disregard 

subpoenas or to instruct City employees to disregard subpoenas? 

2
some of which are not properly before us, and the rest of which can be addressed as a single 

question: 

Did the Circuit Court for Baltimore City err in granting the City’s 

“Petition for Immediate Possession and Title” to 900-902 N. Chester Street? 

We shall answer no, affirm, and explain. 

We derive the following facts from the memorandum opinion issued by Judge 

Audrey J.S. Carrion of the Circuit Court for Baltimore City: beginning in the 1950s, 

Baltimore City, and particularly, the East Baltimore neighborhood, began losing 

manufacturing jobs. The City continued to hemorrhage jobs through the 1990s, causing 

significant urban decay marked by high crime, high unemployment, population loss, and a 

general deterioration in the Middle East neighborhood.3

 Consequently, property values 

 

9. Did the court below continue to have jurisdiction under Md. Rule 2-404 

with regard to subpoenaed information after the appeal was filed. ? 

10.Was the opinion of the court below, which was based on belief that the 

facts of this case were identical to facts in “Segall” contrary to the 

evidence? 

The City, in its Brief, has consolidated Mr. Makowski’s ten questions into a single issue, 

phrased as follows: 

 

Should the Circuit Court of Baltimore City’s Order of Possession and Title to 

900-902 N. Chester Street be sustained? 

3 According to Baltimore City Ordinance Number 11-453, which authorized the 

revitalization efforts leading to the condemnation in this case, the “Middle East” 

neighborhood of Baltimore City targeted for redevelopment is identified specifically, by: 

 

Beginning for the same at the intersection of the north side of Gay Street with 

the north side of Biddle Street; thence binding on the north side of Biddle 

Street easterly to intersect the east side of Patterson Park Avenue; thence 

binding on the east side of Patterson Park Avenue southerly to intersect the 

3
were in steep decline and the neighborhood became a proverbial ghost town. In an early 

attempt to combat these problems, the City attempted “piecemeal” revitalization efforts, 

involving the rehabilitation of individual buildings one by one. The piecemeal efforts, 

 

division line between Lots 48 and 49, Ward 7, Section 2, Block 1623; thence 

binding on the division line between said Lots 48 and 49 easterly to intersect 

the west side of the first 10-foot alley; thence binding on said alley notherly 

to intersect the division line between Lots 42 and 43, Ward 7, Section 2, 

Block 1623; thence binding on the division line between said Lots 42 and 43 

easterly to intersect the north side of the second 10-foot alley; thence binding 

on the north side of said alley easterly to intersect the east side of N. Bradford 

Street; thence binding on the east side of N. Bradford Street southerly to 

intersect the north side of the third 10-foot alley; thence binding on the north 

side of said alley easterly to intersect the west side of Milton Avenue; thence 

binding on the west side of Milton Avenue southerly to intersect the south 

side of a 6’-9” alley south of East Monument Street; thence binding on the 

south side of said alley westerly to intersect the west side of a 4’-4” alley; 

thence binding on the west side of said alley northerly to intersect the south 

side of a 10-foot alley; thence binding on the south side of said alley westerly 

to intersect the west side of N. Port Street; thence binding on the west side of 

N. Port Street northerly to intersect the south side of a 3-foot alley; thence 

binding on the south side of said alley westerly to intersect the east side of N. 

Montford Ave; thence binding on the east side of N. Montford Avenue

southerly to intersect the south side of Fayette Street; thence binding on the 

south side of Fayette Street westerly to intersect the west side of Collington 

Avenue; thence binding on the west side of Collington Avenue northerly to 

intersect the north side of Orleans Street; thence binding on the north side of 

Orleans Street westerly to intersect the east side of Wolfe Street; thence 

binding on the east side of Wolfe Street northerly to intersect the north side 

of Jefferson Street; thence binding on the north side of Jefferson Street 

easterly to intersect the west side of Washington Street; thence binding on 

the west side of Washington Street northerly to intersect the north side of 

Monument Street; thence binding on the north side of Monument Street 

easterly to intersect the west side of Castle Street; thence binding on the west 

side of Castle Street northerly to intersect the south side of Madison Street; 

thence binding on the south side of Madison Street westerly to intersect the 

east side of Broadway; thence binding on the East side of Broadway 

northerly to the point of beginning. 

 

4
however, had proven to be futile,4 and the continued struggle with urban decay was readily 

apparent; Judge Carrion described the neighborhood as depicted in various photographs 

that had been admitted into evidence as a “scene more akin to the deserted, urban setting of 

a post-disaster film than a thriving, livable community.” 

The City, then, turned to more comprehensive redevelopment and revitalization 

efforts, including a “non-profit partnership between government, philanthropists, 

institutions, and the community”5 to undertake a massive revitalization of property in the 

East Baltimore community, called the Eastern Baltimore Development Initiative 

(“EBDI”). EBDI was intended to “address, for the first time, on a comprehensive basis 

the blight and disinvestment in the neighborhood” through the redevelopment of an area 

 

4

 Judge Carrion described an example of the failed piecemeal revitalization efforts: 

 

For example, the Historic East Baltimore Community Action 

Coalition (HEBCAC) program previously made efforts to “arrest the decay 

[in East Baltimore] through heterogeneous, and ultimately desultory, 

rehabilitation of existing structures.” . . . Sadly, once one building was 

rehabilitated and transformed into a functioning, presentable property, 

nearby properties frequently became vacant, encouraging further decline. 

With dim prospects for financial success, private investors had little to no 

incentive to put money into businesses, residences, institutions, or other 

amenities in Middle East, or much of East Baltimore in general. 

5 According to the Eastern Baltimore Development Initiative’s website, EBDI is 

“supported by public and private partners, including the U.S. Government, the State of 

Maryland, the City of Baltimore, the Annie E. Casey Foundation, Johns Hopkins 

Institutions, The Harry and Jeanette Weinberg Foundation, the Atlantic Philanthropies and 

others.” East Baltimore Development Inc., Financial Information, 

http://www.ebdi.org/financial_information (last visited June 23, 2014). 

5
6 

encompassing 88 acres in proximity to the Johns Hopkins University Medical Campus6;

specifically, it would involve the construction of “biotechnology, research, and life 

sciences buildings, a new community school . . . senior housing . . . , mixed income 

residential homes and rental units, commercial and retail property, green/open spaces, a 

new park, and fresh food stores.” To acquire the properties necessary for the EBDI 

project, the City was authorized, pursuant to the Baltimore City Ordinance No. 11-453 

entitled the “Middle East Urban Renewal Plan”, to acquire, via voluntary conveyance or 

condemnation, properties in the project area.7

Mr. Makowski’s property, 900-902 N. Chester Street (“the Property”), located on 

Block 15878 at the intersection of Chester Street and Ashland Avenue, lies within the heart 

of EBDI’s planned development. 9

 The Property is located within the footprint of a 

planned biotechnology and life sciences facility in the EBDI project, which will “‘house 

laboratories and offices, . . . employ hundreds of scientists and support personnel, and . . . 

 

6 The area, specifically, stretches “from N. Patterson Park Avenue in the east, to S. 

Broadway in the west, to E. Madison Street in the south, and is bounded on the north by the 

Penn Central (AMTRAK/MARC) Railroad line, which curves diagonally in a 

southeasterly direction.”

7 The Middle East Urban Renewal Plan was originally enacted in 1979 under Baltimore 

City Ordinance No. 79-1202. The ordinance was most recently amended by Ordinance 

No. 11-453 in 2011 to, inter alia, reauthorize the City to acquire properties within the 

project area, including Mr. Makowski’s property, until December 31, 2014. 

8 The Block number refers to the designation provided by the Maryland Department of 

Assessments and Taxation. 

9

 The Property, specifically, is located in Ward 07, Section 03, Block 1587, Lot 081. 
7 

provide a range of public health services” and will be developed by the Forest City Science 

and Technology Group.10 Due east of the Property, or directly across the street, is a site 

where EBDI is currently constructing a new school.11 

The City attempted initially to acquire the Property in April of 2011, when it sent 

Mr. Makowski a “Notice of Interest to Acquire.” Approximately nine months later, the 

City provided Mr. Makowski with an “Offer of Just Compensation.” After receiving the 

City’s offer, Mr. Makowski’s then-tenant, The Answer Inc., moved out of the building; to 

compensate Mr. Makowski for any loss he suffered as a result of the lost rent, EBDI and 

the City offered to give Mr. Makowski $2,000 monthly, in exchange for which Mr. 

Makowski would provide the City a “Right-of-Entry”, permitting the City’s agents to enter 

 

10 According to EBDI’s website: 

For over 20 years, Forest City Science + Technology Group has successfully 

delivered real estate solutions for science. 

Forest City Science + Technology Group is recognized as one of the 

country’s leading developers & owners of life science campuses working 

with the nation’s leading universities, corporations and research institutions. 

Forest City’s research parks bring the worlds of technology & real estate 

together serving as a catalyst through which scientific commercialization can 

grow & thrive. 

East Baltimore Development Inc., Forest City, http://www.ebdi.org/ about_forest_city

(last visited June 23, 2014). 

11 Because the new school was under construction at the time the Petition for 

Condemnation was filed, the record is unclear as to what had existed on the property 

before. 
8 

the property for purposes of boarding up the building in preparation for demolition.12 Mr. 

Makowski accepted the offer and executed a rental agreement and a Right-of-Entry 

agreement, both of which contemplated that the City would ultimately acquire the Property 

in terms such as that contained in the rental agreement that stated: 

EBDI offers to fairly compensate you for the loss of rental income that you 

will experience for 900-902 N. Chester Street. This will be accomplished 

by paying The Answer Inc.’s rent obligation of $2,000.00 per month to you 

beginning April 1, 2012 and continue until the City’s Condemnation Action 

with you is resolved.

(emphasis in original). The Right-of-Entry agreement, likewise, stated: 

 

WHEREAS, It is the City’s Intention to acquire title to the Property at the 

earliest possible time as part of the Urban Renewal Plan provided for under 

Ordinance No. 1202. 

At the time the Circuit Court issued its decision, Mr. Makowski continued to be 

compensated at a rate of $2,000 per month.

While the rental agreement was in force and after the City was “unable to negotiate 

with and/or agree with” Mr. Makowski “upon a price to be paid for” the Property, the City, 

in April of 2012, filed a Petition for Condemnation in the Circuit Court pursuant to 

Baltimore City Ordinance Nos. 1202 and 11-453, which stated in pertinent part: 

2. It is necessary for the Petitioner to acquire the Fee Simple interest 

in and to the property known as 900-902 N. CHESTER STREET in 

Baltimore City, State of Maryland (hereinafter called the “property”), Ward 

07, Section 03, Block 1587, Lot 081, and more particularly described and 

attached hereto in Schedule A, together with improvements thereupon, and 

 

12 The agreement also required Mr. Makowski to release his tenant, The Answer Inc., 

from any existing obligation under the lease agreement. 
9 

all the rights, ways, waters, easements, privileges, advantages and 

appurtenances thereto belonging or in anywise appertaining. The two 

properties 900 N. Chester Street and 902 N. Chester Street, having been 

consolidated on the tax sale records are now known on the City tax rolls as 

the single unit, 900-902 N. Chester Street. 

3.This property will be used for redevelopment purposes; namely it is 

one of the properties in the East Baltimore Development Initiative, Phase II. 

Mr. Makowski challenged the City’s authority to condemn the property, in his response to 

the Petition, contending, inter alia, that the City had failed to demonstrate why the 

acquisition of the Property was necessary, because, he asserted, the City failed to allege 

what it intended to do with the Property. Mr. Makowski also later filed a Motion to 

Dismiss Petition for Condemnation, stating in its entirety: 

The Petition as filed by Mayor and City Council fails to allege facts 

sufficient to support the Petition. 

The Petition fails to state sufficient specific facts to support it. 

That as filed the Petition does not satisfy the requirements of the U.S. 

Constitution and Amendments thereto. [sic] to justify the taking of private 

property. 

After holding a hearing on the motion, the Circuit Court denied the Motion to Dismiss 

Petition for Condemnation; the condemnation case was then scheduled for trial. 

Prior to trial, Mr. Makowski became the sole owner on Block 1587 who had not yet 

conveyed or agreed to convey his property on Block 1587 to the City. The City filed a 

“Petition for Immediate Possession and Title”, pursuant to Section 21-16 of the Code of 

Public Local Laws of Baltimore City (2012)13 (“the quick-take action”), which alleged 

 

13 Section 21-16 of the Code of Public Local Laws of Baltimore City (2012) provides, in 

relevant part: 
10 

that immediate possession of the subject property was necessary::14 

1. That previously hereto your Petitioner filed a Petition for 

Condemnation as against the fee simple interests in that lot of ground and 

premises known as 900-902 N. Chester Street in Baltimore, Maryland. 

2. That it is necessary for Petitioner to acquire immediate possession and 

title to the said property interest as appears from the affidavit of William N. 

Burgee, Director of the Office of Property Acquisition and Relocation, 

Department of Housing and Community Development, attached hereto and 

prayed to be taken as a part hereof. 

 

(a) Petition for Immediate Taking.

Whenever any proceedings are instituted under Title 12 of the Real 

Property Article of Public General Laws of the State of Maryland by 

the Mayor and City Council of Baltimore for the acquisition of any 

property for any public purpose whatsoever, the Mayor and City 

Council of Baltimore, simultaneously with the filing of said 

proceedings or at any time thereafter, may file a Petition under oath 

stating that it is necessary for the City to have immediate possession 

of, or immediate title to and possession of, said property, and the 

reasons therefore. 

The City shall also set forth in said Petition for Immediate Taking of 

possession or immediate taking of title the amount it estimates to be 

the fair value of the said property and/or title to be acquired, and of the 

respective interest of each of the owners thereof if more than one, 

which shall be substantiated by the affidavits of two qualified 

appraisers, attached to said Petition. The City shall deposit into Court 

simultaneously with the filing of said Petition the amount of said 

estimate of the fair value of the property to be acquired. 

14 Pursuant to Section 21-16 of the Code of Public Local Laws of Baltimore City (2012), 

“[t]he City shall also set forth in said Petition for Immediate Taking of possession or 

immediate taking of title the amount it estimates to be the fair value of the said property 

and/or title to be acquired” and “deposit into Court simultaneously with the filing of said 

Petition the amount of said estimate of the fair value of the property to be acquired.” The 

City estimated the fair market value of the property to be $92,000 and deposited that 

amount into the Court. 
11 

3. That the necessity for the taking of such immediate possession of and 

title to said property is not due to any substantial fault or neglect on the part 

of the Petitioner. 

Mr. William Burgee, Director of the Office of Property Acquisition and Relocation, did 

file an affidavit in which he asserted that immediate possession of the Property was 

necessary because the City had effectively acquired title to all other properties on Block 

1587. He also stated that there was a school scheduled to open in August of 2013 to the 

east of the Property, prior to which all demolition on Block 1587, including that of the 

Property, needed to be completed to “safeguard” the health and safety of the children, 

guests, and staff of the school: 

4. There is an immediate necessity for the Mayor and City Council to 

acquire title to the subject property because it is the lone hold-out among 

nearly 150 individual properties in Block 1587, which is bounded on the 

north by Eager Street, on the east by Chester Street, on the south by Ashland 

Avenue and on the west by Washington Street. The City plans to close 

Castle Street in this block and all interior alleys in furtherance of the 

development plan. The City has effectively acquired title to all other 

properties in the block, and demolition must proceed as soon as possible. 

To the east of the subject property, on Block 1588, lies the footprint of a new 

school, currently under construction, and to be opened to students in August, 

2013. All demolition in Block 1587 must be completed before the school 

opens, in order to safeguard the health and safety of the children, faculty and 

staff of the new school. All structures in Block 1587 are currently vacant. 

The vast majority of them are abandoned, dilapidated boarded structures. 

The existence of such structures opposite a new community school for 

children as young as five is untenable. These buildings, with their attendant 

risk of vagrancy, vermin, disease and criminal activity, cannot be allowed to 

menace the school children’s health and well-being. Such buildings are also 

fire hazards and structural time-bombs, and as such represent a serious and 

growing menace to the public health, safety and welfare. 

Likewise, the demolition cannot occur after the school has opened 

because of the noise, odor, rat displacement and toxic dust that such 

demolition will generate. 
12 

Mr. Makowski filed a “Response to Petition for Immediate Possession and Title”, 

contesting the City’s right to obtain immediate possession of the Property, asserting, once 

again, that the City had failed to demonstrate why acquisition of the Property was 

necessary. Mr. Makowski also challenged the City’s contention that there was an 

immediate need to condemn the property, attaching his own affidavit in which he asserted, 

inter alia, that the Property was not the only property that the City had not acquired on 

Block 1587: 

A check of the location on corner of Chester St and Ashland Ave. 

immediately across the street from 900-902 N. Chester St., revealed a 

massive incomplete construction site. 

The internet information about the school states that the main 

entrance is on Chase St., and the school has a Wolfe St. address. 

Paragraph 4 of William N. Burgee’s Affidavit incorrectly states that 

900-902 is the sole “hold out” in block 1587 and that the City has 

“effectively” acquired title to all other properties in the block. It further 

mistakenly states that all structures are currently vacant. 

On Sunday, June 9, 2013, I went to the area check progress of the 

construction site and noted that 2030 Ashland Ave., which is within block 

1587 was occupied and still functioning as a church. Services were being 

held at the time I was there. 

I was informed by one of the Pastors of the Church that they had not 

yet found a new location and they seemed to be unaware of any pending 

demolition of the block. 

The Burgee Affidavit also states that the existence of abandoned, 

dilapidated boarded structures cannot continue opposite a new community 

school. However properties on Ashland Ave. across the school and streets 

intersecting Ashland Ave across from school also fit that description and no 

efforts to demolish any of those [] buildings is apparent as of this time. 

Likewise the odd side of the 2000 blk of Ashland Ave., and the even side of 

the 800 Blk of N. Chester St which are all in view and close proximity to the 

school [] do not appear to be in any stage of demolition or preparation for 

demolition.
13 

Mr. Makowski later filed a “Defendant’s Points and Authorities in Opposition to 

Plaintiff’s Petition for Immediate Possession”, in which he also asserted, because the City 

intended to convey title to his property to Forest City Enterprises, a private entity, as part of

the EBDI development, that the City was taking private property “to be transferred to 

another party”, which, he alleged did not serve a public purpose, thereby violating the 

strictures of the Fifth Amendment to the United States Constitution.15 He also argued, 

pursuant to our decision in Mayor and City Council of Baltimore City v. Valsamaki, 397 

Md. 222, 916 A.2d 324 (2007), that the City had failed to meet its burden of proving an 

immediate need for the Property. 

Judge Carrion held a hearing on the City’s right to take the Property. Mr. Burgee 

was the City’s only witness, testifying, consistent with his affidavit, that the City had an 

immediate need for the Property, because the structures on Block 1587 had to be 

demolished prior to the opening of the school in August “to mitigate the possible effects of 

dust and other elements that would result from having to do the demolition if the school

 

15 The Fifth Amendment to the United States Constitution provides: 

No person shall be held to answer for a capital, or otherwise infamous 

crime, unless on a presentment or indictment of a Grand Jury, except in cases 

arising in the land or naval forces, or in the militia, when in actual service in 

time of War or public danger; nor shall any person be subject for the same 

offense to be twice put in jeopardy of life or limb; nor shall be compelled in 

any criminal case to be a witness against himself, nor be deprived of life, 

liberty, or property, without due process of law; nor shall private property 

be taken for public use, without just compensation. 

U.S. Const. Amend. V (emphasis added). 
14 

were, in fact, in session.” He also testified that there were only two properties that had not 

yet been acquired on Block 1587 within two weeks of the hearing—the Property and a 

church located at 2028-2030 Ashland Avenue, which the City had acquired in the 

intervening period of time between filing of the quick-take petition and the hearing date: 

[MR. BURGEE]: Acquisition-wise specifically until two weeks ago there 

were two properties that are not owned, one of which is improved and is 

necessary to have been acquired and was, in fact, acquired two weeks ago. 

. . . That was the church. That’s in addition, of course, to the subject 

property. 

 * * * 

[COUNSEL FOR THE CITY]: Okay, but in the City’s, as it were, quiver of 

properties to be assembled for this project are there anymore, save the 

subject we’re here for today, to be acquired? 

* * * 

[MR. BURGEE]: No. 

Mr. Burgee then explained on cross-examination that, at the time the City filed its 

quick-take petition, the owners of the church at 2028-2030 Ashland Avenue had agreed to 

convey their property to the City, but title insurance issues delayed its formal conveyance:

[MR. MAKOWSKI]: And at the time when you filed your affidavit saying 

you had acquired all the other parties in block 1587, that was not correct, was 

it? 

[MR. BURGEE]: The affidavit was in support of the acquisition of this 

property in which we had under contract and established equitable interest. 

* * * 

[MR. MAKOWSKI]: Within [Block 1587], is the property 2028-2030. 

Ashland Avenue located? 

[MR. BURGEE]: Yes. 

[MR. MAKOWSKI]: Is it still occupied to this date? 

[MR. BURGEE]: Yes. 

[MR. MAKOWSKI]: So when you say that you had acquired all - - that I was 

the lone holdout; that was not correct? 

[MR. BURGEE]: We had acquired it. 
15 

[MR. MAKOWSKI]: But you didn’t have it at the time you filed the - - 

[MR. BURGEE]: We had an auction contract, which the title insurance 

company said was insufficient to go forward. . . . A defect in the title at the 

level of underwriting the title to go to settlement emerged and the title 

insurance company requested to have the vestry of the church or the 

appropriate body that governs the business decisions of the church to meet 

and to perform what they needed to do to satisfy a title insurance company. 

They did that and it went to settlement. 

 

After Mr. Burgee concluded his testimony, Mr. Makowski testified on his own 

behalf and offered into evidence photographs of the school construction site, purporting to 

show that construction would not be completed by the August 2013 date. Mr. Makowski, 

additionally, sought to offer into evidence a map that he proffered would show that the 

Property was located within a historical district16 and that the planned development plan 

would, therefore, be in contravention of the Urban Renewal Ordinance (“Ordinance”), 

which he testified, “speaks of the historic character of the properties and maintaining the 

historic character of the properties.” 17 Counsel for the City objected, however, asserting 

that the map was not admissible because it had not been authenticated; Judge Carrion 

 

16 A Baltimore City Historic District is “an area in Baltimore City wherein, there are 

located buildings and structures which have demonstrated special architectural, historical, 

cultural, economic, social, or community significance. This program is overseen by the 

Commission for Historical and Architectural Preservation.” City of Baltimore, Historical 

and Architectural Preservation, http://www.baltimorecity.gov/Government/Boardsand 

Commissions/HistoricalArchitecturalPreservation/HistoricDistricts.aspx (last visited June 

23, 2014). 

17 The Ordinance makes a number of references to preserving the historic character of the 

East Baltimore neighborhood. For example, the Ordinance provides, with respect to 

rehabilitation, that “[c]leaning of masonry facades by means of sandblasting shall not be 

permitted, except where sandblasting is determined by the Commissioner of the 

Department of Housing and Community Development . . . not [to] cause damage to historic 

building materials.” 
16 

sustained the objection. 

Judge Carrion, thereafter, issued a memorandum opinion and order, in which she 

ordered that the City “be vested with possession of and title in the fee simple interest in that 

property known as 900-902 N. Chester Street, Baltimore, Maryland . . . together with the 

buildings thereupon, and the rights, alleys, ways, waters, privileges, appurtenances, and 

advantages thereupon . . . .” She found, with respect to the City’s authority to take the 

property, that: 

[A] long-standing Urban Renew Plan for the Middle East 

neighborhood expressly permits the acquisition of properties within the 

project area, “by purchase or by condemnation either for clearance and 

redevelopment, for rehabilitation, or for public facilities.” . . . Appendix D of 

the Urban Renewal Plan for the Middle East neighborhood lists the subject 

property as one of the properties “being acquired and disposed of for 

rehabilitation or redevelopment.” . . . 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. 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. 

She opined, then, that, “[t]he Court of Appeals has long held that municipalities possess 

power under the Maryland Constitution to condemn property for redevelopment 

purposes”, and concluded, therefore, that “there is no question that Plaintiff has the lawful 

power to condemn the subject property.” 

With respect to the “quick-take”, Judge Carrion credited the City’s evidence that 

Mr. Makowski was the lone “hold-out”, thereby inhibiting further development of the 

EBDI project: 
17 

Currently, the subject property is the only hold-out – in other words, the only 

property out of nearly 150 individual properties found in Block 1587 to 

which Baltimore City had not acquired title. . . . Demolition and the 

corresponding redevelopment/renewal for the EBDI project’s Phase II on 

Block 1587 and the surrounding area cannot proceed until the City 

consolidates title to all properties located there, including the subject 

property. 

Applying our decisions in Valsamaki, 397 Md. 222, 916 A.2d 324 and Sapero v. Mayor 

and City Council of Baltimore, 398 Md. 317, 920 A.2d 1061 (2007), she concluded that the 

City had met the “high threshold for situations to qualify as ‘necessary’ for Baltimore City 

to have ‘immediate’ possession and/or title to real property”, because Mr. Makowski was a 

“hold-out”: 

A hold out occurs where, “[d]uring property assemblages, whether private or 

public, one or more property owners resist selling, wanting to be the last 

owner of a parcel or among the last, in order to be able to demand higher 

prices for their property because they are holding up a larger project.” 

Valsamaki, 397 Md. at 257 n.18. To counter such action, the Court of 

Appeals explained, “[i]n public acquisitions, the condemnation process – 

even quick-take actions – are available.” 

* * * 

In the case at bar, this Court is presented with facts identical to those 

in Segall. The hold-out occurring here, to be sure, is a perfect example of 

the circumstances Valsamaki and Sapero highlighted as potentially offering 

sufficient immediacy and necessity to validate the use of quick-take 

condemnation. 

Because Judge Carrion concluded that Mr. Makowski being a “hold-out” was sufficient to 

justify a quick-take condemnation, she expressly declined to address the City’s contention 

that “safety concerns over the future demolition of Block 1587 occurring directly across 

from the new school provide[d] the necessity, immediacy, or exigency needed for a 

quick-take condemnation of the subject property.” 
18 

Mr. Makowski, thereafter, filed a “Motion for Reconsideration Order Granting 

City’s Petition for Immediate Possession and Title to Vacate, Alter or Amend Order Dated 

June 28, 2013”, in which he challenged the Circuit Court’s finding that he was the “sole 

hold-out”: 

The hold out assertion was simply not true at the time the City filed Petition 

for Quick Take. The property located at 2028-2030 Ashland Ave. did not

belong to the City at the time it filed for Quick Take of Defendant’s property. 

The City at that time had not reached any agreement with owners of 2028 

Ashland Ave. and that property was still actively being used after City served 

Defendant with Quick Take Petition. 

He also asserted that the condemnation violated Constitutional principles, because the City 

failed to demonstrate why acquiring the Property was necessary for the development. His 

motion was denied. 

Mr. Makowski then noted an appeal to the Court of Special Appeals from “the 

Circuit Court’s determinations in a QUICK TAKE PROCEEDING”; because quick-take 

proceedings proceed directly to this Court, his appeal was transferred to this Court. We 

confront, then, essentially the same issue faced by Judge Carrion—whether the facts as 

found justify a “quick-take” condemnation action. 

The State’s power of eminent domain or “[t]he inherent power of a governmental 

entity to take privately owned property, esp[ecially] land, and convert it to public use, 

subject to reasonable compensation”, Valsamaki, 397 Md. at 241, 916 A.2d at 335, 

quoting Black’s Law Dictionary 562 (8th ed. 2004), is a power inherent in sovereign 

authority. Riden v. Phila., Balt. &Wash. R.R. Co., 182 Md. 336, 339, 35 A.2d 99, 100 
19 

(1943). It is also a power limited by the Federal and Maryland Constitutions,18 both of 

which require that private property only be taken for “public use” and that the property 

owner receive “just compensation” for any taking. See Kelo v. City of New London, 

Connecticut, 545 U.S. 469, 125 S.Ct. 2655, 162 L.Ed.2d 439 (2005); Prince George’s 

County v. Collington Crossroads, Inc., 275 Md. 171, 188, 339 A.2d 278, 287 (1975). The 

Maryland Constitution specifically authorizes condemnation actions by Baltimore City for 

the purposes of “comprehensive renovation or rehabilitation” and declares such use to be a 

“public use”: 

The General Assembly of Maryland, by public local law, may authorize and 

empower the Mayor and City Council of Baltimore: 

(a) To acquire, within the boundary lines of Baltimore City, land and 

property of every kind, and any right, interest, franchise, easement or 

privilege therein, by purchase, lease, gift, condemnation or any other legal 

means, for development or redevelopment, including, but not limited to, the 

comprehensive renovation or rehabilitation Thereof and; 

* * * 

All land or property needed, or taken by the exercise of the power of eminent 

domain, by the Mayor and City Council of Baltimore for any of the 

aforementioned purposes or in connection with the exercise of any of the 

powers which may be granted to the Mayor and City Council of Baltimore 

pursuant to this Article is hereby declared to be needed or taken for a public 

use. 

 

18 Specifically, the Fifth Amendment to the United States Constitution, made applicable to 

the states through the Fourteenth Amendment, provides, “No person shall . . . be deprived 

of life, liberty, or property, without due process of law; nor shall private property be taken 

for public use, without just compensation.” U.S. Const. Amend. V. Likewise, Article 

III, Section 40 of the Maryland Constitution provides, “The General Assembly shall enact 

no Law authorizing private property, to be taken for public use, without just compensation, 

as agreed upon by the parties, or awarded by a Jury, being first paid or tendered to the party 

entitled to such compensation.” 
20 

Maryland Constitution Article XI-B, Section 1. The Maryland Constitution also 

authorizes certain local and state entities, including Baltimore City, to engage in 

“immediate” takings, under which “the General Assembly may provide that . . . property 

may be taken immediately upon payment therefor to the owner or owners thereof by the 

State or by the Mayor and City Council of Baltimore, or into court, such amount as the 

State or the Mayor and City Council of Baltimore, as the case may be, shall estimate to be 

the fair value of said property.” Maryland Constitution Article III, Section 40A. When 

the sovereign engages in “immediate” takings or “quick-takes”, “the condemning authority 

takes possession of the property prior to trial upon payment into court of its estimate of the 

value of the property taken.” King v. State Roads Comm’n of the State Highway 

Admin., 298 Md. 80, 85-86, 467 A.2d 1032, 1035 (1983). The parties litigate the issue of 

compensation only after the sovereign has acquired title and possession of the property.19

Baltimore City’s quick-take authority is governed by Section 21-16 of the Code of 

Public Local Laws, which provides in relevant part: 

(a) Petition for Immediate Taking.

Whenever any proceedings are instituted under Title 12 of the Real Property 

Article[20] of Public General Laws of the State of Maryland by the Mayor and 

City Council of Baltimore for the acquisition of any property for any public 

purpose whatsoever, the Mayor and City Council of Baltimore, 

simultaneously with the filing of said proceedings or at any time thereafter, 

 

19 Quick-take actions are distinct from traditional condemnation proceedings, in which the 

sovereign does not take possession of the property until after the issue of just compensation 

is fully litigated. See Rule 12-210. 

20 Title 12 of the Real Property Article applies to “Eminent Domain.” 
21 

may file a Petition under oath stating that it is necessary for the City to have 

immediate possession of, or immediate title to and possession of, said 

property, and the reasons therefore. 

The City shall also set forth in said Petition for Immediate Taking of 

possession or immediate taking of title the amount it estimates to be the fair 

value of the said property and/or title to be acquired, and of the respective 

interest of each of the owners thereof if more than one, which shall be 

substantiated by the affidavits of two qualified appraisers, attached to said 

Petition. The City shall deposit into Court simultaneously with the filing of 

said Petition the amount of said estimate of the fair value of the property to 

be acquired. 

In Valsamaki, 397 Md. 222, 916 A.2d 324, we had occasion to interpret Section 21-16. 

The City had filed a “quick-take” petition, seeking to condemn Valsamaki’s property, 

asserting, only, that immediate possession was necessary to “assist in business expansion.” 

The Circuit Court, after a hearing, denied the City’s petition and we affirmed. In so doing, 

we reasoned that, in enacting Section 21-16, the City Council had required “the City to 

establish under oath the immediacy of the need for quick-take condemnation”, and 

therefore, imposed a “burden of proof on the City to establish that immediate need.” Id. at 

246, 916 A.2d at 338. We concluded, then, that to prevail in a quick-take condemnation, 

the City must prove that the property is being condemned for a public use and that it has an 

immediate need to acquire the property, which it had not done.21 

 

21 In Valsamaki, we distinguished between the City’s burden in a quick-take 

condemnation, as opposed to a traditional condemnation: 

In the case of regular condemnation, once the City establishes at least 

a minimal level of public use or purpose, judicial review may be thereafter 

limited to determining that the agency’s decision is not so oppressive, 

arbitrary or unreasonable as to suggest bad faith; that, however, is not the 

case in assessing immediacy in a quick-take condemnation action in 
22 

Less than two months after issuing our decision in Valsamaki, we decided Sapero, 

398 Md. 317, 920 A.2d 1061, in which we reversed the Circuit Court’s decision to grant 

Baltimore City’s quick-take petition after the City had, again, asserted only that acquisition 

of the subject property was necessary at “the earliest possible time in order to assist in 

business expansion.” Id. at 327, 920 A.2d at 1066-67 (quotations omitted). We 

concluded that the City had failed to meet its burden of proving an immediate need for the 

property, emphasizing that the City must provide specific evidence of an immediate need, 

not merely a bald assertion that one exists. We did acknowledge, however, in both 

Valsamaki and Sapero, that there were cases in which the immediacy requirement had been 

satisfied under Section 21-16—when the subject property posed a health risk to the public, 

Free State Realty Co., Inc. v. Mayor and City Council of Baltimore, 279 Md. 550, 369 A.2d 

1030 (1977), and in “hold out situations”. Segall v. Mayor and City Council of Baltimore, 

273 Md. 647, 331 A.2d 298 (1975). 

A “hold-out” occurs in projects involving property assemblages, i.e., when multiple 

properties are assembled for a single project, where “one or more property owners resist 

selling, wanting to be the last owner of a parcel or among the last, in order to be able to 

 

Baltimore City under § 21–16. Rather, the court must also determine 

whether there is a necessity to justify an immediate taking and, in that 

determination, must be able to assess the reasons for the immediacy. Section 

21–16 expressly requires the City to state reasons relating to immediacy, 

thus the City has the burden not only to present a prima facie case of public 

use, but, additionally, in a quick-take action, the burden to establish the 

necessity for an immediate taking. 

Id. at 254, 916 A.2d at 343. 
23 

demand higher prices for their property because they are holding up a large project.” 

Valsamaki, 397 Md. at 257 n.18, 916 A.2d at 344-45 n.18. Segall was our seminal 

hold-out case, in which, in a per curiam opinion, we concluded that an affidavit by the City 

alleging “‘[t]hat all other property interests in the ten disposition lot areas aforesaid ha[d] 

been acquired, and demolition and sale of the entire site areas [could] not be completed 

until possession and title of the subject property interests [were] granted to the City” was 

adequate to justify a quick-take under Section 21-16. Segall, 273 Md. at 648, 331 A.2d at 

298-99 (alterations in original). In both Valsamaki and Sapero we iterated that the facts of 

Segall presented a “hold-out” situation under which a “quick-take” is warranted. See 

Valsamaki, 397 Md. at 256, 916 A.2d at 344 (noting that “[t]he City needs a more concrete, 

immediate necessity for an exercise of such power” and citing Segall as such an example); 

Sapero, 398 Md. at 347, 920 A.2d at 1079 (“These quick-take condemnations deal with the 

fundamental right to property, and any resulting deprivation of process—that which is 

normally provided under regular condemnation proceedings—should not occur unless 

warranted by extreme circumstances. Such extreme circumstances can arise . . . possibly in 

extreme cases of ‘hold-outs,’ Segall, 273 Md. at 648, 331 A.2d at 298-99.”). 

Hold-outs pose a significant problem in public projects; when the government seeks 

to address a problem such as community blight on a comprehensive basis, it, necessarily, 

needs to acquire multiple properties. Because of the democratic process and “the nature 

of public scrutiny”, the need to acquire properties within a given area becomes public 

knowledge. Daniel B. Kelly, The “Public Use” Requirement in Eminent Domain Law: A 
24 

Rationale Based on Secret Purchases and Private Influence, 92 Cornell L. Rev. 1, 5 

(2006). Because the public, and particularly, the owners of the properties the government 

seeks to acquire, have knowledge of the government’s plans, the sovereign is placed at a 

“severe disadvantage” when it attempts to negotiate for the property’s acquisition. Steve 

P. Calandrillo, Eminent Domain Economics: Should “Just Compensation” Be Abolished, 

and Would “Takings Insurance” Work Instead?, 64 Ohio St. L. J. 451, 468-69 (2003). 

The problem is exacerbated when the government acquires a significant portion of the 

needed properties and the remaining owners are unwilling to sell. These owners, or 

“hold-outs”, become “monopoly suppliers of the assembled land”, and thus, obtain a 

significant bargaining advantage, as they may seek to sell the property to the government 

for an inflated price, because they know about the government’s need. Michael Heller & 

Rick Hills, Land Assembly Districts, 121 Harv. L. Rev. 1465, 1472-75 (2008). 

Accordingly, “quick-take actions . . . are available to address the situation.” Valsamaki, 

397 Md. at 257 n.18, 916 A.2d at 345 n.18; cf. also Cottonwood Christian Ctr. v. Cypress 

Redevelopment Agency, 218 F. Supp. 2d 1203, 1231 (C.D. Cal. 2002) (“Eminent domain 

can even be an effective tool against free-riders who hold-out for exorbitant prices when 

private developers are attempting to assemble parcels for public places . . . .”).22

 

22 Private developers often avoid the “hold-out” problem by utilizing “buying agents” to 

conceal the fact that they are seeking to acquire multiple properties to avoid paying a 

higher price. As one commentator has explained: 

Private companies frequently deal with the potential holdout problem by 

creating various facades behind which they can hide. Rather than disclose 
25 

In Segall, Baltimore City had filed a Petition for Immediate Possession and Title, 

pursuant to Section 21-16, and sought to condemn Segall’s property for “urban renewal 

purposes” as part of an urban renewal plan entitled the “Upton Project”. In support of its 

Petition, the City had attached an affidavit of Mr. Jerome M. Katz, the City’s Land 

Acquisition Officer of the Department of Housing and Community Development, alleging 

that it was necessary to acquire title and possession to ten separate lots as part of the urban 

renewal plan and that Segall’s property was the only property to which it had not yet 

acquired, thereby preventing demolition:

1. That it is necessary for the Mayor and City Council of Baltimore to acquire 

title to and possession of the following listed property interests which form 

portions of ten separate disposition lots in accordance with the master plan 

for the Upton Redevelopment area.

2. That owner-occupants or tenants of the affected leasehold and fee simple 

areas will have the right to 90 days of continued occupancy under federal 

regulations dating from the time that possession of the subject property 

interests is granted to the Mayor and City Council of Baltimore. 

3. That all other property interests in the ten disposition lot areas 

aforesaid have been acquired, and demolition and sale of the entire site 

areas cannot be completed until possession and title of the subject 

property interests are granted to the City.

(emphasis added). Segall answered, alleging that the City did not have an immediate need 

 

their large commercial construction plans and negotiate with all the 

landowners openly, they hire many different individuals or property 

management companies to approach each landowner separately. The 

property owners never become suspicious that a large scale project is in the 

works, and therefore, do not attempt to exact an artificially inflated price 

from the buyers. 

Steve P. Calandrillo, Eminent Domain Economics: Should “Just Compensation” Be 

Abolished, and Would “Takings Insurance” Work Instead?, 64 Ohio St. L. J. 451, 469 n.78 

(2003). 
26 

to acquire the property. The Circuit Court granted the Petition for Immediate Possession 

and Segall moved to set aside the order, which was denied; we affirmed. 

As in Segall, the City’s inability in the present case to acquire the Property 

prevented it from engaging in demolition in furtherance of an urban renewal plan. Indeed, 

Mr. Makowski’s property, one of almost 150 other properties in totality, inhibited further 

development to a greater degree than did any one of the Segall properties, because his was 

the only property on Block 1587 that was left. Mr. Makowksi, thus, retained leverage to 

hold a hammer over the City in order to gain financial advantage, and accordingly, was a 

“hold-out” within the meaning of Segall. 

Mr. Makowski’s attempt to distinguish Segall is unavailing. He asserts that, unlike 

Segall, the City, in the present case, had not acquired all of the properties on Block 1587, 

based, primarily, on Mr. Burgee’s testimony that, at the time of filing the Petition, the City 

had not acquired the church property.23 Judge Carrion, however, concluded otherwise, 

finding that, “the subject property is the only hold-out—in other words, the only property 

out of nearly 150 individual properties found in Block 1587 to which Baltimore City has 

 

23 Mr. Makowski also challenges the propriety of the quick-take on the basis that the City 

failed to act in good faith in valuing the property, referring us to his motion for 

reconsideration in which he attached deeds indicating that two nearby properties had been 

conveyed to the City for a higher price than was offered for Mr. Makowski’s property. He 

asserts, first, that he could not be considered a “hold-out” because the City never extended 

a good-faith offer for the property, and second, that the offer of compensation failed to 

comply with the Constitutional requirement that he be awarded “just compensation.” The 

right-to-take hearing, however, is “only for the purpose of contesting the right or power of 

the City to condemn title to the property.” Section 21-16(c). Issues with regard to 

compensation, therefore, are not before us. 
27 

not acquired title” and the evidence adduced at trial clearly supports Judge Carrion’s 

finding. Mr. Burgee testified that, despite formal conveyance having not been completed 

due to title insurance issues, the owners of the church were under contract to convey 

2028-2030 Ashland Avenue to the City and had indeed done so two weeks prior to the 

hearing. He, likewise, testified that demolition of the Property and the “whole square 

block” needed to occur, and that the City could not do so until acquiring the Property. Mr. 

Makowski relies solely on the fact that formal conveyance of the church had not been 

effectuated at the time the quick-take petition was filed. A “hold-out” occurs, however, 

when the remaining property-owners are unwilling to sell; because the owners of the 

church were willing to sell, as indicated by the auction contract Mr. Burgee testified the 

church owners had executed, Judge Carrion correctly recognized that Mr. Makowski was 

the sole “hold-out” on Block 1587.24 We conclude, therefore, that the quick-take action 

was warranted. 25

 

24 Mr. Makowski also argues that Judge Carrion’s finding was erroneous because of a 

vague reference by Mr. Burgee to an “outlier” property: 

[MR. BURGEE]: And then the other outlier, if you will, property is not as 

compelling to acquire because it’s already been demolished and its vacant 

land so there is no demolition activity associated with a vacant property. 

Aside from this one reference there was no evidence adduced with respect to an alleged 

“outlier” that inhibited development. 

25 In his Brief, Mr. Makowski raises the issue of, “[w]hat burden of proof should be 

required of the Petitioner when taking property via quick take proceeding?” Although 

Mr. Makowski does not contend that Judge Carrion applied the wrong burden, he asserts 

that “the burden of proof should be that the necessity for immediate taking be shown by at 
28 

We address, now, a number of other issues raised by Mr. Makowski. The first 

issue is an alleged evidentiary error pertaining to Judge Carrion’s decision to exclude 

evidence regarding whether the demolition of the Property was consistent with the Urban 

Renewal Ordinance’s references to preserving the historic character of East Baltimore. 

Specifically, Mr. Makowski sought to question Mr. Burgee on the stand regarding a map 

 

the very least: Clear and Convincing evidence,” which, he argues was not met, relying on 

language from Sapero in which we stated: 

Concerning the immediate necessity for quick-take condemnation, 

Mr. Sapero asserts that § 21–16 “specifically require[s] that some justifiable, 

readily apparent and irrefutable evidence [must] exist that a taking is 

necessary, not just a bald assertion that a necessary reason exists.” And 

furthermore, that “[t]he quick-take law’s plain language initially places the 

burden of proof upon the Petitioner requesting immediate possession, that is, 

[the City], to provide reasons for the necessity for immediate possession, not 

just some general assertions that a reason exists.” We agree with the gist 

of Mr. Sapero’s contentions. They are in accord with our decision 

in Valsamaki, 397 Md. 222, 916 A.2d 324.

Sapero v. Mayor and City Council of Baltimore, 398 Md. 317, 335-36, 920 A.2d 1061, 

1072 (2007). The language quoted above from Sapero merely iterates that the City must 

offer evidence of an immediate need, rather than a bald assertion that one exists. In the 

instant case, as we have explained, the City provided undisputed testimony that Mr. 

Makowski was the only property owner on Block 1587 who had not yet agreed to convey 

his property to the City, thereby satisfying the dictates of Sapero. 

Nothing from Valsamaki or Sapero, however, requires that the City bear a burden 

higher than what is traditionally required in civil cases—a preponderance of the evidence. 

See generally Coleman v. Anne Arundel Cnty. Police Dep’t, 369 Md. 108, 134, 797 A.2d 

770, 786 (2002) (“The most widely applied measure of the ultimate burden of persuasion 

in civil cases is by a preponderance of the evidence . . . .”). As one oft-quoted 

commentator on the Maryland Rules of Evidence has observed, the clear and convincing 

standard “is applied when a particular claim or defense is disfavored for policy reasons, or 

the act alleged is one of moral turpitude or that would otherwise have stigmatic impact.” 

Lynn McLain, Maryland Evidence State and Federal § 300:4 (Vol. 5, 2013 Supp.), neither 

of which is applicable to quick-take condemnations. 
29 

that he proffered would have shown that the Property was in an area of Baltimore 

designated as “historic.” The City objected on the grounds that Mr. Burgee testified that 

he did not recognize the map, and asserted, therefore, that Mr. Makowski had failed to 

properly authenticate it: 

[COUNSEL FOR THE CITY]: Well, Mr. Burgee first testified that he 

doesn’t know, that he’s not familiar with the document. He doesn’t know 

what it is. Mr. Makowski has instructed him that there are certain 

nomenclature at the bottom of the document - - document seeming to 

indicate what it is but there’s nothing to verify what it is. It’s a one-page 

printed document. I’m not sure how it’s pertinent or relevant or - - and 

certainly not authenticated. 

Mr. Makowski responded that he had received the map from the City: 

[MR. MAKOWSKI]: Your Honor, I got that from the City of Baltimore in 

the same building that [the Assistant City Solicitor] works in on the eighth 

floor. I sent copies of it to [the Assistant City Solicitor]. I attached it to my 

response in a colored copy I attached to the response I filed to their motion 

for quick take. 

So it’s not that it’s coming here also for the first time. It’s a 

document that has the City of Baltimore’s logo at the bottom where it was 

issued from. 

Judge Carrion sustained the objection. 

Authentication of a document is governed by Rule 5-901, which states, “[t]he 

requirement of authentication or identification as a condition precedent to admissibility is 

satisfied by evidence sufficient to support a finding that the matter in question is what its 

proponent claims.” The Rule further elucidates a myriad of ways to authenticate 

evidence; the most pertinent to the instant matter is Rule 5-901(b)(1), which provides that 

evidence may be authenticated through “[t]estimony of a witness with knowledge that the 
30 

offered evidence is what it is claimed to be.” Mr. Burgee, however, testified that he had 

never seen the document before nor recognized it. Accordingly, Mr. Makowski failed to 

authenticate the document. 

Mr. Makowski argues, next, that the Circuit Court erred in denying his “Motion for 

Leave to Perpetuate Evidence and Motion for Order to Compel Plaintiff to Produce 

Documents that were Subpoenaed” pursuant to Rule 2-404,26 as well as in granting the 

City’s “Motion to Quash Subpoenas.” These orders were issued after Mr. Makowski 

noted his appeal in this case and are not appropriate for our review. See, e.g., Lazenby v. 

Asher, Jr. & Sons, Inc., 266 Md. 679, 688, 296 A.2d 699, 704 (1972); Silverberg v. 

 

26 Rule 2-404 provides, in relevant part: 

(b) Pending Appeal. After an appeal has been taken or before an appeal is 

taken if the appeal period has not expired, the circuit court in which the 

judgment or appealable order was entered may allow perpetuation of 

evidence for use in the event of further proceedings in that court. A motion 

for leave to perpetuate evidence shall be filed and served as if the action were 

pending in the circuit court. The motion shall identify (1) the reasons for 

perpetuating evidence, (2) the persons to be examined and the substance of 

the testimony expected from each, and (3) the documents or things to be 

inspected and preserved, if any. If the court finds that perpetuation of the 

evidence is proper to avoid a failure or delay of justice, it may enter an order 

allowing depositions to be taken, permitting documents and tangible things 

to be inspected or copied as provided by Rule 2-422, or requiring submission 

to a mental or physical examination as provided by Rule 2-423. The court's 

order may include any provision which justice requires to protect a party or 

person from annoyance, embarrassment, oppression, or undue burden or 

expense. Testimony perpetuated in accordance with this section may be used 

to the extent permitted by Rule 2-419. Use of evidence perpetuated in 

accordance with this section shall be subject to the court's order permitting it 

to be perpetuated. 
31 

Silverberg, 148 Md. 682, 687-89,130 A. 325, 327 (1925), disapproved of on other grounds 

by Lewis v. Lewis, 219 Md. 313, 149 A.2d 403 (1959); Baltimore Skate Mfg. Co. v. 

Randall, 112 Md. 411, 414, 76 A. 491, 493 (1910).27

Mr. Makowski, finally, argues that the City provided him with “eleventh hour 

cursory, superficial evasive and incomplete discovery responses”, contending, generally, 

that “[d]ocuments requested were not produced”, the City did not “provide any specific 

response as to each of the document requests”, and that “the [i]nterrogatory [a]nswers were 

deficient, evasive and non responsive”. Mr. Makowski did not file a motion to compel 

discovery pursuant to Rule 2-432(b), which permits “[a] discovering party, upon 

reasonable notice to other parties and all persons affected” to “move for an order 

compelling discovery if”, inter alia, “a party fails to answer an interrogatory submitted 

under Rule 2-421” or “a party fails to comply with a request for production or inspection 

under Rule 2-422,” Rule 2-432(b),28 so that the trial court did not decide the discovery 

 

27 Even were Mr. Makowski’s arguments with respect to his Motion For Leave to 

Perpetuate properly before us, they would be unavailing, because the motion itself was 

insufficient. Although we have not yet had occasion to interpret Rule 2-404, Judge Glenn 

Harrell, then-writing for the Court of Special Appeals, has explained, “the very function of 

a rule permitting perpetuation of evidence is to preserve evidence that would otherwise be 

in danger of later becoming unavailable”, and therefore, a motion to perpetuate the 

evidence should not be granted without a showing that “a person seeking to perpetuate 

testimony or other evidence pursuant to Rule 2-404 [has] set forth sufficient facts to 

demonstrate that the immediate taking of testimony is made necessary because there exists 

some actual risk that the evidence sought might be lost by delay.” Allen v. Allen, 105 Md. 

App. 359, 373, 659 A.2d 411, 417 (1995) (footnoted omitted). 

28 Rule 2-432(b), provides, in its entirety, that: 
32 

issue. The issue, therefore, is not properly before us, pursuant to Rule 8-131(a), providing 

that, “[o]rdinarily, the appellate court will not decide any other issue unless it plainly 

appears by the record to have been raised in or decided by the trial court”. Rule 8-131(a). 

We have explained that the purpose of Rule 8-131 is to allow “trial courts to 

explicate, to some degree, just what they are deciding or finding so that we may perform 

our tasks.” Wilkerson v. State, 420 Md. 573, 597, 24 A.3d 703, 717 (2011). Rule 8-131, 

likewise, serves the “interests of fairness . . . by ‘requir[ing] counsel to bring the position of 

 

(b) For Order Compelling Discovery.

(1) When Available. A discovering party, upon reasonable notice to other 

parties and all persons affected, may move for an order compelling discovery 

if 

(A) there is a failure of discovery as described in section (a) of this Rule, 

(B) a deponent fails to answer a question asked in an oral or written 

deposition, 

(C) a corporation or other entity fails to make a designation under Rule 2-412 

(d), 

(D) a party fails to answer an interrogatory submitted under Rule 2-421, 

(E) a party fails to comply with a request for production or inspection 

under Rule 2-422, 

(F) a party fails to supplement a response under Rule 2-401 (e), or 

(G) a nonparty deponent fails to produce tangible evidence without having 

filed written objection under Rule 2-510 (f). 

(2) Contents of Motion. A motion for an order compelling discovery shall set 

forth: the question, interrogatory, or request; and the answer or objection; 

and the reasons why discovery should be compelled. Instead of setting forth 

the questions and the answers or objections from a deposition, the relevant 

part of the transcript may be attached to the motion. The motion need not set 

forth the set of interrogatories or requests when no response has been served. 

If the court denies the motion in whole or in part, it may enter any protective 

order it could have entered on a motion pursuant to Rule 2-403. For purposes 

of this section, an evasive or incomplete answer is to be treated as a failure to 

answer. 
33 

their client to the attention of the lower court at the trial so that the trial court can pass upon, 

and possibly correct any errors in the proceedings.’” Conyers v. State, 354 Md. 132, 149, 

729 A.2d 910, 918-19 (1999) (alterations in original). In this case, the trial court never 

had an opportunity to address the alleged omissions; we do not, therefore, address the 

adequacy of the City’s discovery responses. 

For all of the foregoing reasons, we affirm the decision of the Circuit Court. 

JUDGMENT OF THE CIRCUIT 

COURT FOR BALTIMORE CITY 

AFFIRMED. COSTS TO BE PAID 

BY APPELLANT.