This is to provide an update on this story from earlier this year, where we successfully defended a property owner’s right to deny the State Highway Administration’s efforts to gain access to his property for environmental testing, and actually had the statute in question declared unconstitutional. As matters turned out, the State Highway Administration did not appeal this ruling. Some observers argued that SHA had no choice but to appeal, as this statute was essential to their condemnation powers.
Perhaps, however, SHA determined that it would rather lose the ability to gain access to this one piece of property than risk an unfavorable opinion from the appellate courts of Maryland, which would have effectively invalidated the statute for all prospective eminent domain actions throughout the state.
Relatedly, the California Supreme Court is reviewing a lower appeals court’s finding that California’s similar pre-condemnation exploration — or, as the Maryland court called it, “test drive” — statute was also unconstitutional. The parties are currently in the process of submitting their briefs and oral argument likely will be held next year. We certainly will be watching.