On Monday, July 14, a judge of the Montgomery County Circuit Court declared unconstitutional a long-standing law that permits the Maryland State Highway Administration (SHA) to obtain a court order allowing it to enter private property, without the landowner’s consent, and conduct intrusive drilling, soil sampling, and subsurface engineering studies. The law has been on the books for over thirty years and appears to have never before been subject to significant judicial scrutiny.
Sean T. Morris of The Morris Law Firm, LLC, successfully argued the case on behalf of a shopping center owner who objected to SHA’s demand that the landowner allow SHA engineers to drill multiple 50-foot deep holes through the shopping center’s parking lot in an effort to determine if the property is suitable for condemnation to construct a noise barrier along Interstate 270. Upon receiving such objection, SHA’s attorneys sought a court order requiring the shopping center owner to grant such access. The shopping center owner opposed the petition and the matter was set for hearing this past Monday.
During oral argument, the court characterized the relevant provision of the state’s eminent domain law as a “test drive statute” and questioned why the state should be permitted to engage in such actions without providing just compensation for the intrusion as required by the Maryland and United States Constitutions. Ultimately, the court concluded that the state should not be permitted to do so, finding that such actions amounted to a taking, even if it were only a temporary one. The court denied SHA’s petition to enter onto the shopping center property and declared the statute “clearly unconstitutional.”
In reaching its opinion, the court engaged in a detailed review of challenges to similar statutes around the country, many of which have previously been found to be unconstitutional by appellate courts around the nation. One such case appears headed for the California Supreme Court for resolution later this year or next year. Whether this case is similarly destined for Maryland’s appeals courts remains to be seen.