State Will Pay Extra $3 Million For 405 Acres

By Katherine Shaver
Washington Post Staff Writer
Sunday, June 8, 2008

Maryland highway officials have agreed to pay the philanthropic Eugene B. Casey Foundation an additional $3 million for 405 acres of its land that was seized to build the intercounty connector seven miles away, officials said.

The foundation and state reached a court settlement last month, with the state agreeing to increase its offer to $6.4 million, said Robert Park, a Bethesda lawyer who represented the foundation. It had fought the state's initial purchase offer of $3.44 million, arguing in Montgomery County Circuit Court that the land in Boyds was not necessary to build the highway between Gaithersburg and Laurel.

The state seized the foundation's wooded, rolling hills along Schaeffer Road in May 2007 as part of a plan that helped the highway project win federal approval on environmental grounds. The Casey property will make up some of the 777 acres of parkland that the state is buying to replace the 88 acres being bulldozed to build the six-lane, 18.8-mile tollway.

However, the foundation argued in court papers that the seizure was illegal because the property was not necessary for the highway's planned route. The state's powers of eminent domain, which allow it to seize private land for public use, did not extend to taking property to mitigate a highway's environmental harm, the foundation argued.

The additional $3 million that the state agreed to pay went toward buying the transfer of development rights attached to the property, Park said.

To preserve farmland, Montgomery grants some property owners transfer of development rights in exchange for rezoning their land with low densities. As compensation for any losses in their property value, the owners may sell those rights to developers who may then use them to build at higher densities in more populated areas, such as southern Montgomery.

Joseph M. Miklochik, director of real estate for the Maryland State Highway Administration, said the state will transfer the land to Montgomery's park system. He said the state will probably attempt to recoup most of the additional $3 million by selling the transfer of development rights.

Even without that, he said, the state can cover the extra cost through the funds set aside to acquire property for the intercounty connector project. With that budget at about $390 million, an extra $3 million "is not a big drop in the bucket," Miklochik said.

The highway, which is scheduled to fully open by 2012, has a total estimated cost of $2.4 billion.

Miklochik said he believes this is the first time the state has bought development rights as part of a property acquired for a project.

However, with the case settled, the question of whether the state has the right to condemn and seize land that lies outside a highway project's path remains unanswered, Park and Miklochik agreed.

"That's still an open issue," Park said.

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