Agenda Item 4
March 13,2012
Introduction
MEMORANDUM
TO:
FROM:
County Council
~
Michael Faden, Senior Legislative Attorney
Introduction:
Expedited Bill 11-12, County Property - Disposition
SUBJECT:
Expedited Bill 11-12, County Property - Disposition, sponsored by Councilmembers
Leventhal and EIrich, Council President Berliner, and Councilmembers Andrews, Riemer, and
Navarro, is scheduled to be introd.uced on March 13, 2012. A public hearing is tentatively
scheduled for March 20 at 1:30 p.m.
Summary of Bill
Expedited Bill 11-12 would modify the procedures for disposition of County property
and require the County Council to approve disposition of certain County properties. As defined
in this Bill, "disposition" of property which the County owns or controls
l
includes any sale, lease
or license for a term of at least 3 years, or lease or other document which includes an option to
buy (see ©2, lines 6-8).
Specifically, Bill 11-12 would modify County Code §11B-45 by:
• tightening up the current property disposition process (which includes an opportunity
for Council comments but not approval) so as to preclude the broad exemptions found
in current County regulations (see COM COR § I1B.45.01.02A-D). See amended
subsection (a) on ©2, lines 3-19. This would be done by only allowing property "or
nominal value" to be exempted from the current process (see ©2, lines 4-6);
• requiring Council approval before any disposition of County property (with certain
minor exceptions; see ©2, lines 21-22) becomes final. See new subsection (b) on ©2,
lines 20-27. Council approval would take the form of a resolution, adopted after the
Council holds a public hearing with at least 15 days advance notice.
The Council would also approve the material terms of each property disposition,
particularly the price or rent to be paid and any associated economic incentives (see ©2, lines 26­
27. The purpose of this requirement is to avoid a situation where an Executive gains approval to
l"Property which the County "controls" would include property leased or licensed to the County government, as
well as any property deeded to the County.
 PDF to HTML - Convert PDF files to HTML files
dispose of a property and then modifies the terms of disposition in a way that (in the Council's or
the public's view) might not be in the County's best interest. The Council's ability to approve
the terms, as well as the disposition itself, is the crux of the disagreement (discussed further
below) between Council legal staff and the County Attorney regarding this Bill.
State
la~
requires the County to advertise the sale or other disposition of "any property
belonging to the county or any agency thereof ... upon such terms and compensation as said
county may deem proper" for 3 weeks in a newspaper circulated in the county "and giving
opportunity for objections thereto." Council staff does not read this requirement as precluding
the County from enacting a law providing for other public notice and opportunities to comment
before the disposition is finalized. State law does not otherwise regulate the procedures for
disposing of County property.
Summary of Legal Issues
The County Attorney, in reviewing a previous (and essentially identical) draft of this Bill,
concluded that under the County Charter's division of legislative and Executive authority, the
Council could reserve to itself the power to approve the sale or other disposition of County
property, but not the terms on which that property would be sold or disposed of. See Hansen
email on
©S.
Council legal staff disagrees.
The constitutional doctrine of separation of powers is generally not applicable to local
government.
3
Rather, Maryland courts look to the county charter and local law to identify
governmental functions as legislative or executive at the local level.
In the case of
Prince George's County v. Silverman
(see ©6-13), the Court of Special
Appeals confirmed that the Council can enact a law that requires Council approval before the
County can sell or dispose of any County property. The Court affirmed a Circuit Court holding
that the Prince George's County law requiring Council approval of the Executive's declaration
that a property is surplus is
"a necessary and proper exercise of legislative checks and
balances on the executive determination to dispose of County property.
To hold otherwise
could result in the County Executive's declaration that all the county-owned property is
surplus.''"' The Court explained that "the procedure for disposing of surplus property ... is
designed to
insure fairness and to prevent arbitrary and discriminatory dispositions."
The Court in
Silverman
went on to say:
"It
is important to note that the [Prince George's]
code requires council approval only of the County Executive's determination that the property is
surplus; not approval of the prospective grantee." Bill 11-12 conforms to this judicial guideline;
it
would authorize the Council to approve the material terms of any sale or lease (including the
price or rent to be paid and any associated economic incentives), but
not
the identity of the buyer
or lessee. In other words, if the Council approves a sale to one party on certain terms, it could
not then disapprove the sale of the same property on the same terms to any other party.
2Maryland Code, Article 25A §5(B).
3County Council ofMontgomery County
v.
Investors Funding Corporation,
270 Md. 403.
4See 58 Md. App. at 53-54.
2
 PDF to HTML - Convert PDF files to HTML files
To respond to the heart of the County Attorney's argument, the Council would not have a
governing interest in the identity of the prospective grantee, but
it clearly does have a fiscal
interest in the amount of the proceeds.
A below-market sale is effectively an expenditure of
County resources, and the Council has the same interest in that kind of transaction as it has for
any expenditure. Just as any Executive's authority to buy property for the County is always
subject to appropriation, his or her authority to sell property should (in our view) be subject to
the Council's fiscal authority under the Charter. Otherwise, as the Court in
Silverman
implied,
the Executive could effectively give away County property without receiving full value.
This packet contains:
Expedited Bill 11-12
Legislative Request Report
County Attorney email
Prince George's County
v.
Silverman
­
CSA opinion
Circle #
1
4
5
6
F;\LAWIBILLS\l2 I I County Property\intro Memo.Doc
3
 PDF to HTML - Convert PDF files to HTML files
Expedited Bill No.
...:..1.!-1.....;-1...,.2'--_ _ __
Concerning:
County
Property
Disposition
Revised:
3-9-12
Draft No.4
Introduced:
March
13,2012
Expires:
September
13. 2013
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-'-'-No:.:n~e'__~:__--_-
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Leventhal and Eirich, Council President Berliner,
and Councilmembers Andrews, Riemer, and Navarro
AN EXPEDITED ACT
to:
(1)
(2)
(3)
modify the procedures to dispose of County property;
require the County Council to approve certain dispositions of certain County
properties; and
generally amend the County law regarding disposition of County property.
By amending
Montgomery County Code
- Chapter 11 B, Contracts and Procurement
Section 11
BAS
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
EXPEDITED BILL
No. 11-12
1
2
3
Sec. 1. Section
I1B-45
is amended as follows:
IlB-45.
(a)
Disposition of real property.
The County Executive must adopt regulations to establish a process for
the disposition of any real property owned or controlled
Qy
the County,
other than surplus school facilities and [other] property of nominal value
identified in the regulation. As used in this Section, "disposition" means
£!
sale,
£!
lease or license for
£!
term of
J
years or longer, or
£!
lease or
4
5
6
7
8
other document which includes an option to buy. The regulations must
provide for:
(1)
coordination among public agencies, including any [municipal
corporation] municipality in which the real property is located;
(2)
(3)
opportunity to reserve property for alternative public use;
comparative analysis of reuse proposals before any disposition
actions; and
(4) public notice and hearing on possible dispositions before fmal
decision on disposition, except that the County Executive may
waive the public hearing requirement for any real property that:
(A) has nominal value; or
(B) is recommended to be reused by the County government.
(hl
Before the disposition of any real property owned or controlled
Qy
the
9
10
11
12
13
14
15
16
17
18
19
20
21
22
County (other than
£!
property which has either nominal value or an
appraised value lower than $100,000) becomes final, the County
Council,
Qy
resolution adopted after the Council holds
£!
public hearing
with at least
12
days advance notice, must approve:
23
24
25
26
27
ill
ill
the disposition; and
all material terms of the disposition, including the price or rent to
be paid and any associated economic incentives.
f:\Iaw\bills\1211 county property\1211 bill4.doc
 PDF to HTML - Convert PDF files to HTML files
EXPEDITED BILL
No. 11-12
28
29
30
31
32
33
34
[(b)]
W
*
*
*
[(c)]
@
The Executive must adopt regulations to establish a process for
disposition of surplus schools. As used in this Section, "surplus school"
means any building used at any time as a public school and later
conveyed to the County and all or part of the land which constitutes the
school site[, and "disposition" means a sale or a lease with an option to
buy]. The regulations must provide for:
35
36
37
38
39
40
*
[(d)]
*
*
W
*
*
*
Sec. 2. Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date when it becomes
law.
Approved:
41
42
Roger Berliner, President, County Council
43
Approved:
Date
44
Isiah Leggett, County Executive
45
46
Date
This is a correct copy o/Council action.
Linda M. Lauer, Clerk of the Council
Date
t\law\bills\1211 county property\1211 bill4.doc
 PDF to HTML - Convert PDF files to HTML files
LEGISLA"nVE REQUEST REPORT
Expedited Bill 11-12
County Property
-
Disposition
DESCRlPTION:
Modifies the current procedures for disposition of County properties
to remove certain exemptions. Requires County Council approval of
certain property dispositions.
Apparently unrestricted Executive authority to dispose of County
property on any terms after minimal advertisement and without
public or legislative input.
To require the County Council, after public hearing, to approve the
disposition of certain County properties and the terms of disposition.
Department of General Services
To be requested.
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
Applies only to property owned or controlled by the County. Would
apply to County property located in a municipality.
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERlENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
f:\law\bills\1211 county property\legislative request report.doc
 PDF to HTML - Convert PDF files to HTML files
Page 10f2
Faden, Michael
From:
Sent:
To:
Hansen, Marc P.
Thursday, March 08, 2012 10:48 AM
Faden, Michael
Subject:
FW: Bill 11-12, County property disposition
Mike-
I have reviewed the attached drat! bill. I want to let you know that I believe that the bill inappropriately
assigns executive functions to the Council. As I discJlssed in my email about Bill 4-12, a copy of which
I sent to you,
I
believe the Council can approve on a case by case basis a decision by the Executive to
surplus property, and the Council by law can set out the general rules under which the Executive may
dispose of County property. But the Council cannot exercise a "legislative veto" over the terms and
conditions of a contract negotiated by the Executive.
See
AG LEXIS 19,25-27.
In my email on Bill 4-12, I vvTote:
Generally, government action that establishes a new plan or policy that is one of general application or
to establish some permanent code of conduct must be adopted by a legislative act-i.
e
by enacting an
law.
Inlet Associates v. Assateague House,
313 Md. 413 (1988). An Executive act "merely looks to or
facilitates the administration, execution of implementation of a law already in force."
Silverman
at 50.
Other plain language amendments to
§
56-10 appear to put into the Council's hands the implementation
of the urban renewal law. For example, Bill 4-12 states that the Council may place covenants and
restrictions on the conveyance of property "to prevent the development or spread of future slums."
56-10 (s) (3), lines 54-59) The COLU1Cil could more specifically define
in
the law what those conditions
might be or require the Executive to adopt regulations to implement this provision, but the Council itself
crumot exercise this function on a case by case basis. For the srune reason, I have identical concerns
regarding the other amendments made by Bill 4-12 to pru'agraphs (4) and (6) of
§
56-10.
I would be happy to review any authority you have relied on in drafting this bill before OCA prepares its
bill review memorandum.
Marc P. Hansen
COLmty Attorney
Montgomery County, Maryland
240-777 -6740
 PDF to HTML - Convert PDF files to HTML files
Page I
LexisNexis®
PRINCE GEORGE'S COUNTY, Maryland v. Marc SILVERMAN
No.
682,
September Term,
1983
Court of Special Appeals of Maryland
58 Md. App.
41; 472
A.2d 104;
1984
Md. App. LEXIS 301
March
8, 1984
PRIOR HISTORY:
[***1]
APPEAL FROM THE
CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY
AUDREY E. MELBOURNE, JUDGE.
DISPOSITION:
JUDGMENT AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
Executive of Prince George's County to execute a deed of
conveyance
to
Silverman.
On appeal the County raises three issues for our
consideration:
I.
Whether the court erred in holding that
the County Council's action regarding
Resolution CR-120-1981,
[***2)
which
pertained to the "Marton Tract", was
illegal and improper.
COUNSEL: Ralph E. Grutzmacher, Associate County
Attorney for Prince George's County, with whom were
Thomas P. Smith, County Attorney for Prince George's
County tmd Michael O. Connaughton, Deputy County
Attorney for Prince George's County on the brief, for
appellant.
Russell W. Shipley, with whom were Steven
R.
Smith
and Shipley, Curry
&
Taub, P.A., Landover on the brief,
for appellee.
JUDGES: Moylan, Liss and Bell,
n.
OPINION BY: BELL
OPINION
II. Whether the court erred in holding
that a contract for the sale of the "Marton
Tract" existed between the County and
Silverman.
III. Whether the County Executive
has the capacity to contract to convey the
"Marton Tract" in the absence of approval
by the County Council.
FACTS
In 1980, the Board of Education conveyed the
Marton Tract to Prince George's County. The Board of
Education had acquired the tract in 1958 from the Marton
family. The
[*47]
tract consists of approximately four
acres of land and is part of Lot 7 in the Richard S. Hills
Subdivision. The property lies north of Maryland Route
198 near the intersection of Route 198 and Interstate 95.
[*46]
[**106]
Marc Silverman (Silverman),
Appellee, sought a Declaratory Judgment and a Writ of
Mandamus to have Prince George's Connty (County),
Appellant, convey the "Marton Tract" to him as the
highest qualified bidder. The Circuit Court for Prince
George's County ordered that the sale be ratified and that
a Writ of Mandamus issue commanding the County
 PDF to HTML - Convert PDF files to HTML files
Page 2
58 Md. App. 41, *47; 472 A.2d lO4, **106;
1984 Md. App. LEXIS 301, ***2
Since March of 1977, the County has disposed of
some 40 to 50 "major surplus properties" (property
containing improvements or property valued in excess of
$
25,000). Although Section 2-111.1 of the Prince
[**107]
George's County Code requires the County
Executive to inventory surplus property for approval by
the County Council
before
he disposes of it, in all of the
40 to 50 surplus property dispositions, the County
a bona fide
Executive first secured
[***3}
transferee/purchaser and
thereafter
submitted the matter
to the council for approval. In all cases
except
the
Marton Tract, the council approved the sale of the surplus
property.
The Marton Tract was advertised for sale in January
of 1981 as surplus property of the County. Silverman
contacted Raymond Austin of the County's Bureau of
Property Management in response to the advertisement.
He received a "bid package" from that office. Silverman
submitted a sealed bid, on a form entitled "Bid and
Option to Acquire Real Property", in the amount of
$
50,000 with a cashier's check for
$
5,000 payable to the
County.
The sealed bids were opened on February 27, 1981,
and Silverman qualified to participate in the oral auction.
At the auction, Silverman was declared the successful
bidder at
$
71,605. Silverman certified his bid on that
same day. The only other competing bidders were Eileen
and Wayne Updike, daughter and- son-in-law of Clara
Marton, at
$
70,000. On March 11, 1981, the County
cashed Silverman's check for
$
5,000.
During April of 1981, the County Executive
prepared the proposed list of surplus property
dispositions, designated as Resolution CR-63-1981,
[***4]
and submitted the list to the County Council for
approval. The Marton Tract was "deleted" from the list
with no explanation.
On August 11, 1981, Austin informed Silverman that
his bid for the Marton Tract had been accepted but that
because
[*48]
the period for notification of acceptance
of the option by the County had expired, the option was
null and void. A tender ofa check in return of the deposit
accompanied that notification.
In
response to the letter
from Austin, Silverman met with County officials in an
attempt to ascertain the problem.
On August 28, 1981, the County informed Silverman
that the County Executive intended to resubmit the
Marton Tract for approval as surplus property as
Resolution CR-120-1981. When the council first
considered CR-120-1981 on October 13, 1981, it voted 6
to 5 in favor of approval; then one councilman changed
his vote to defeat the resolution 6 to 5. Following that
action the council approved, by a vote of 6 to 5, a motion
to table consideration of the resolution indefinitely. At
no point during their consideration did the council make
any reference to whether the subject property was needed
for a public purpose. The transcript of the
[***5]
council
proceedings indicated that some council members felt the
prior owners, the Martons, had been unfairly forced to
sell their land.
At the time CR-120-1981 was under consideration
by the County Council, legislation was pending which
would have. amended the provision in the Code regarding
the prior owners rights to reacquire surplus property. On
October 13, 1981, when the council considered the sale
of the Marton Tract, the Code provided:
Notwithstanding the foregoing
provisions of this subsection (d), a person
from whom property was acquired by the
County, or the person's successor in
interest, shall have first right over
municipality, any government entity or
agency other than Prince George's County,
or any other person to reacquire the
property (or such portion of
it
which is
declared surplus) if all the following
conditions are met:
(3) The determination of the County
Executive that the property is surplus
occurs within
ten (10)
years after County
acquisition. (Emphasis added).
[*49]
Prince George's County Code
Section 2-III.l(d).
The pending legislation would have changed the period
during which the prior owners had a right
[***6}
to
reacquire the property from 10 to 15, 25, or 40 years.
(Note -- Section 2-111.1 was in fact amended on
(**108}
June 23, 1982 to extend the period to 25 years.)
When Silverman filed the instant action to enforce
 PDF to HTML - Convert PDF files to HTML files
Page 3
58 Md. App. 41, *49; 472 A.2d 104, **108;
1984 Md. App. LEXIS 301, ***6
his option to purchase the Marton Tract, Clara Marton
intervened. The court found Clara Marton would be
entitled to reacquire the property only if the following
two conditions were met: (1) The Council's action on
CR
~ 120~
1981 was legal and proper, and (2) Amended
Section 2-111.1 applied to this case. After a thorough
and well reasoned discussion, the court found:
the County Executive's determination
that the Marton Tract is no longer needed
for a public purpose was correct, there
being no evidence to the contrary; that the
Council's failure to approve -- the "Marton
Tract" as surplus was motivated by legally
unauthorized
considerations,
i.e.,
prolonging a sale of county property until
a Code Amendment could be enacted that
would enure to the benefit of a special
interest; that the purchaser [Silverman]
met all the procedural requirements made
known to him by the County; and that
Petitioner, Marc Silverman, should be
granted the relief he seeks in these
proceedings [***7] for the reasons herein
set forth.
The court further found that under the law in effect at the
time the matter was before the County Council, Clara
Marton had no right of reacquisition because the 10 year
period had expired.
municipal governing body in passing an ordinance are not
subject [***8J to judicial inquiry.
Our discussion ofthis issue is addressed in two parts:
(A) whether the court had authority to address the matter;
(B) whether the court erred in finding the council's action
improper.
A.
The standard of review by the circuit court when the
County Councilor another administrative body is acting
in a quasi-judicial or administrative capacity is whether
the action was arbitrary, capricious, or discriminatory.
County Council v. Carl M Freeman Assoc.,
281
Md. 70,
74, 376
A.2d 860
(1977);
See also; Montgomery County
v.
Woodward and Lothrop, 280 Md.
686,
706,
376
A.2d
483 (1977);
Stratakis
v.
Beauchamp,
268
Md.
643, 652,
304 A.2d
244 (1973). The test to determine whether
action is legislative or administrative is whether the
action is one making new law, i.e. an enactment of
general application prescribing a new plan or policy, or is
one which merely looks to or facilitates the
administration, execution or implementation of a law
already in force.
City of Bowie
v.
County Comm'r for
Prince George's County,
258
Md.
454, 463, 267
A.2d 172
(1970).
In considering CR-120-1981 on October 13 1981
the council was not functioning in a purely legislativ;
[***9] capacity.
[*51]
Rather, it operated in a
quasi-judicial or administrative capacity. The council
dealt with the disposition of one isolated parcel of
property. The effect of its decision was restricted to the
individuals who had an interest in the property and had
no effect on the general safety or welfare. The council
essentially adjudicated Silverman's rights in the property.
Thus the trial court did not invade (**109] the province
of the council because it did not attack the validity of a
legislative enactment; rather it simply determined
whether the council's action on Resolution CR-120-198l
,
pursuant to a
prior
legislative enactment (Section 2-111.1
ofP.G.Co. Code), was arbitrary and discriminatory.
, The County's reliance on
District Land Corp., supra,
for the proposition that the court invaded the legislative
province of the council is misplaced. The Court of
Appeals held in that case that a comprehensive rezoning
plan bearing a substantial relationship to the public health
and welfare enjoys a strong presumption of validity, and
that the motives, wisdom, or propriety of a municipal
1.
Whether the Council's action regarding the
Marton Tract was illegal and improper.
The lower court found that the council's sole function
in considering CR-120-198l was to determine whether
the [*50] Marton Tract was needed for a public purpose.
Since the council indefinitely tabled the resolution to
allow Section 2-111.1 to be amended so that a prior
owner could reacquire the property, the court held the
council acted improperly and arbitrarily.
The County contends that based on the applicable
statutory provisions, which require the council to approve
the Executive's determinations, the trial court invaded the
province of the County Council in determining that it
considered impermissible factors. The County cites
County Council for Montgomery County v. District Land
Corp.,
274
Md.
691, 337
A.2d
712 (1975) in support,
which holds that the motives, wisdom or propriety of a
 PDF to HTML - Convert PDF files to HTML files
Page 4
58 Md. App. 41, *51; 472 A.2d 104, **109;
1984 Md. App. LEXIS 301, ***9
body in passing the ordinance effectuating the
comprehensive rezoning are [***10) not subject to
judicial inquiry. The adoption of a sectional zoning map
in that case, was deemed a "legislative" act because it
concerned legislative facts, e.g. zoning of a large area and
impact on general welfare of the county.
In
the case at
bar, however, the consideration of the Marton Tract
involved the council in a quasi-judicial capacity.
B.
The trial court did not err in holding that the
council's failure to approve CR-120-1981 was improper
and arbitrary.
The initial question we must address, for purposes of
the instant case, is within which branch of the
government does the power to dispose of surplus property
lie.
Division 2, Section 2-111.1 sets forth a framework for the
declaration of county owned property as surplus and the
disposal of the property. It provides in pertinent part:
The County Executive shall be
authorized to sell, lease or otherwise
dispose of any County owned real
property, no longer needed for public use
or in furtherance [***12) of the public
purpose, in accordance with the foHowing
provisions:
(a) The County Executive shall
establish an inventory of all real property
and improvements titled in the name of
Prince George's County ...
(b) The County Executive, at least
once annually, shall review the inventory
of all real property and improvements held
in fee by Prince George's County and shall
[*531
transmit, for the approval by
resolution of the County Council, a list of
all properties to be leased, offered for sale,
or otherwise disposed of ....
Executive Branch
Article Xl-A of the Maryland Constitution
(Home
Rule Amendment) sets forth the steps to be taken at the
local level to establish a charter local government.
Section 1 of
[*52)
Article XI-A the Home Rule
Amendment authorizes the counties to choose a charter
form of government, which if adopted by the voters of
the county, becomes the law or "constitution" of the
county. Section 2 mandates the adoption by the
Maryland General Assembly of a grant of express powers
for those counties choosing a charter form of
government. Pursuant [***11] to the mandate, the
General Assembly enacted the "Express Powers Act",
codified in
Article 25A of the Annotated Code of
Maryland.
Article 25A,
Section 5(B)
of the Maryland
Code permits the disposition by the County of "any real
or leasehold property belonging to the County, provided
the same is no longer needed for public use."
The Prince George's County Charter, Article IV,
Section 402 enumerates the specific powers of the
executive branch of the county government. It provides
that all those specific powers vested in Prince George's
County by the Constitution shall be vested in the County
Executive. Among the enumerated powers is the power to
"sign or cause to be signed on the county's behalf all
deeds, contracts, and other instruments . . ." Prince
George's County Charter, Article IV, Section 402(8).
Prince George's County Code, Subtitle Two,
Pursuant to the above, we agree with the trial court
that the County Executive was empowered to dispose of
county [**110] owned surplus property in accordance
with the requirements of Section 2-111.1.
Legislative Branch
Subsection (S) of the Express Powers Act,
Article
25A, ofthe Maryland Code
provides:
The foregoing or other enumeration of
powers in this article shall not be held to
limit the power of the county council, in
addition thereto, to pass all ordinances,
resolutions, or by-laws, not inconsistent
with the provisions of this article or the
laws of the State, as may be proper in
executing and enforcing any of the powers
[***13) enumerated in this section ... as
may be deemed expedient in maintaining
the peace, good government, health and
welfare of the county.
This section contains a general grant of power to pass
 PDF to HTML - Convert PDF files to HTML files
Page 5
58 Md. App. 41, *53; 472 A.2d 104, **110;
1984 Md App. LEXIS 301, ***13
laws for the peace, good government, health and welfare
of the County. Pursuant to this grant of power, measures
may be passed which are necessary and beneficial, and
will be adjudged valid by the courts, provided they are
reasonable and consistent with the laws and policy of the
State.
Montgomery Citizens League v. Greenhalgh, 253
Md.
151, 161, 252
A.2d
242 (1969). Thus where council
legislation bears a reasonable relationship to the
implementation of an enumerated power, the legislation
will be upheld.
Applying the above analysis to the County Code we
agree with the trial court that:
(1) The requirement that the County
Executive annually inventory all County
owned property no longer needed for a
public purpose is necessary for the
Council to be apprised of the County's
surplus land holdings and proper to return
to the tax rolls or other governmental
agencies; and
(*54] (2) The prOVlSlon requiring
Council approval that properties are in fact
surplus is likewise a necessary [***14]
and proper exercise of legislative checks
and
balances
on
the
executive
determination to dispose of County
property: To hold otherwise could result in
the County Executive's declaration that all
the county-owned property is surplus.
auctions were held and bona fide deposits were cashed
prior to council approval by resolution. [***15] The
reason for ignoring the specifics of Section 2-111.1 was
obviously to enable the council to know the identity of
the grantee and his proposed use of the property. This
procedure contravenes the legislative intent of Section
2-111.1 which is to prevent discrimination and arbitrary
action.
Pursuant to the code, the council's sole duty was to
consider factors directly related to whether the property
was no longer needed for public use.
It
was not
authorized to table the matter until a code amendment
could be enacted that would enable the Marton family to
repurchase the property. In its answers to Interrogatories
propounded by Silverman, the County admitted that the
property was in fact surplus property. Since it is
undisputed that the property was surplus, it is clear that
the council acted arbitrarily in failing to approve
CR-120-1981. The court did not err.
1*55] [**111] II.
Whether a contract for sale of
the "Marton Tract" existed.
By ratifying the sale of the Marton Tract, the trial
court implicitly found that a contract existed between
Silverman and the County. Prince George's County
contends that there never was a contract between the two
parties because [***16] the County never accepted the
Bid and Option Agreement submitted by Silverman. The
County asserts that the option became null and void by
the terms of the agreement itself when the 45 day period
for acceptance set forth in paragraph lIB of the agreement
expired. The County cites
American Medicinal Spirits
Company
v.
Mayor and City Council of Baltimore,
165
Md.
128, 166
A. 407
(1933)
in support, which states at p.
133,
166A. 407:
Since the offeror was at liberty to make
no offer,
it
was free to determine and
impose whatever terms
it
might choose,
and among these it might require that its
offer be accepted within a designated time
and in a specific manner. If no acceptance
is made in the manner and within the
period fixed by the offer, the offer
v.
necessarily
expires.
Williston
Contracts,
Sections 53, 61, 76.
The County further urges that the 45 day provision
The problem in this case, however, is not whether
Section 2-111.1 is valid, but whether Section 2-111.1 was
properly followed. Section 2-111.1 sets forth the
procedure for disposing of surplus property. It is
designed to insure fairness and to prevent arbitrary and
discriminatory dispositions.
It
is important to note that
the code requires council approval only of the County
Executive's determination that the property is surplus; not
approval of the prospective grantee.
Prince George's County has been disposing of its
surplus property in contravention of the code. Despite
the code's requirement of obtaining approval before a
grantee has been selected, the County has condoned the
Executive's procurement of the grantee first. In the 40 to
50 surplus property cases, the property was advertised as
surplusage in newspapers, sealed bids were accepted, oral
@
 PDF to HTML - Convert PDF files to HTML files
Page 6
58 Md. App.
41,
*55;
472
A.2d
104,
**111;
1984 Md. App. LEXIS 301, ***16
the option is exercised and a binding bilateral contract of
sale is created.
Straley v. Osborne,
262
Md.
514, 278
A.2d
64 (1971).
Paragraph lIB of the agreement between Silverman
and the County provides:
within 45 days after
[***19]
Optionee
has been notified that his bid was
accepted, Optioner shall notify Optionee
in writing that his Option was accepted. If
notice is
[**112]
not given to Optionee
within the allotted time, this Option shall
become null and void.
amounted to a right to terminate the contract, and in the
absence of fraud, undue influence, or mistake, such a
reservation is valid and enforceable.
Acme Markets, Inc.
v. Dawson Enterprises, Inc.,
253
Md
76, 251
A.2d 839
(1969); Kahn v. Janowski,
191
Md.
279,
60 A.2d 519
(1948).
At the outset
[***17]
we note that although the facts
of
American Medicinal Spirits, supra,
appear similar to
those of this case, we find the reliance by the County
thereon misplaced. In
American Medicinal Spirits,
a
company contracted to purchase land from the city
conditioned on the city passing an ordinance within one
year. The city failed to pass the ordinance within the
specified period. The Court held the contract amounted
to a unilateral offer to purchase by the company and that
one term of the offer was not met. Therefore, the
purchaser/company could opt to declare the
[*56]
contract null and void. The rationale behind this holding
was obviously to prevent the city from procrastinating
and to assure the company that an effort would be made
to fulfill the terms of the contract in a timely manner.
The Court did not address the issue before us -- whether
the city/seller (or in this case the County) could
purposefully avoid passing the ordinance and then
declare the contract null and void.
Silverman posits that the County did in fact approve
his bid by negotiating his check of
$
5,000; by
acknowledging in an informal memorandum that the bid
for the property was ratified and by Austin's
[***18]
letter of August 11, 1981, stating the County accepted his
bid. Additionally, Silverman asserts that he had the sole
right to exercise the option; therefore it was not even
necessary for the County to accept. As to the allegations
concerning the 45 day provision in the agreement,
Silverman contends the provision was an illegal and
unenforceable provision.
Before we address the parties' contentions, we must
determine exactly what the agreement entitled "Bid and
Option to Acquire Real Property" represents.
An option to purchase property is a continuing offer
to sell by the optionor which is irrevocable during the
stated period.
Beall v. Beall,
291
Md.
224, 434
A.2d
1015
(1981). An option is not a mere offer to sell, but is a
binding agreement if supported by consideration.
Blondell v. Turover,
195
Md.
251, 72
A.2d
697 (1949).
The optionee has what is termed a power of acceptance,
and when he accepts the offer in the prescribed manner,
[*57]
This provision implies that the County retains
the power to revoke its "offer" and thereby prevent the
formation of a binding contract. Since by definition, an
option cannot be revoked, this agreement, despite its title,
cannot be deemed an option contract. Accordingly, we
must analyze the parties' positions under general contract
principles.
A contract is formed when an unrevoked offer made
by one person is accepted by another. An "offer" is the
"manifestation of willingness to enter into a bargain, so
made as to justify another person in understanding that
his assent to that bargain is invited and will conclude it."
I .
Restatement Contracts (2d)
§
24 (1979). A
manifestation of willingness to enter into a bargain is not
an offer if the person to whom it is addressed knows that
the person making it does not intend to conclude a
bargain until he has made a further manifestation of
consent.
Foster
&
Kleiser v. Baltimore County,
[***20]
Md.,
57
MdApp.
531,
470 A.2d
1322 (1983)
citing 1
Restatement Contracts (2d)
§
26 (1979). By the same
token, an invitation to bid is not an offer, but the bid or
tender is an offer which creates no right until accepted.
Rofra, Inc. v. Board of Education,
28
MdApp.
538, 346
A.2d
458 (1978). Acceptance of an offer can be
accomplished by acts as well as words; no formal
acceptance is required.
Porter v. General Boiler Casing
Co.,
284
Md 402, 409,
396
A.2d 1090
(1979);
Duplex
Envelope Co. v. Baltimore Post Co.,
163
Md
596,
605,
163 A.
688 (1933).
Judge Adkins, writing for this Court in
Foster
&
Kleiser, supra,
espoused the principle that a provision in
a contract requiring council approval amounts to a
condition of acceptance; and therefore, there can be no
 PDF to HTML - Convert PDF files to HTML files
Page 7
58 Md. App. 41, *57; 472 A.2d 104, ** 112;
1984 Md. App. LEXIS 301, ***20
binding contract until such approval is forthcoming.
In
addition, the requisite approval must comply with the
applicable laws. In that case, Foster
&
Kleiser leased a
tract of land in Baltimore County owned by County
Mutual Acceptance Corp. The lease was terminable upon
60 days prior written notice from either party. Baltimore
County offered to purchase the property. The agreement
between Baltimore County
[***21
J
and County Mutual
stated:
1*58J
In the event that this Agreement
is not approved by the Baltimore County
Council, this Agreement shall become null
and void ...
County Mutual terminated Foster
&
Kleiser's lease, and
the contract of sale was approved by the County Council.
Foster
&
Kleiser brought suit, alleging among other
things, that the submission of the contract of sale by
Baltimore County to County Mutual was an offer to
purchase the land; that the offer was accepted when
County Mutual executed the contract; and that there was
a binding contract subject to approval of the County
Council. We held at p. 538 of 57
Md.App., 470
A.2d
1322:
there could be no binding or enforceable
contract until approval by the County
Council had occurred. Therefore, what
Foster
&
Kleiser claims was an offer
submitted to County Mutual by Baltimore
County was not an offer, but merely part
of preliminary negotiations. County
Mutual could not have accepted this
"offer" without further action by the
County, that
action being approval by the
County Council, as required by the County
Charter.
(Emphasis supplied).
The Baltimore County Charter
§
715 stated in
[***22]
pertinent part:
... Any contract ... must be approved
by the County Council before it is
executed if the contract is
(1) For the purpose of
real or leasehold property
where the purchase price of
the property is in excess of
$
5,000 ... Balto.Co.Code
1978
(1982 Cum.Supp.)
Applying the above principles to the sequence of
events in this case, we hold that· a binding contract did
exist between Silverman and the County. The
advertisement for sale of the Marton Tract by the
(**113J
County did not constitute an offer.
Rofra, Inc.,
supra.
Rather, Silverman's bid, initially at
$
50,000 and
finally at
$
71,605, constituted his offer to purchase the
property. There is no Statute of Frauds problem because
Silverman certified his bid in writing on the same day.
The County accepted Silverman's offer when
[*59]
it
declared Silverman the successful bidder.
The
negotiation of Silverman's
$
5,000 check by the County,
on March
II,
further confirmed its acceptance.
By -the terms of the agreement, however, this
acceptance was conditioned on "notice [being] given to
the Optionee within 45 days." This provision enabled the
council to approve or disapprove
(***231
the sale. Had
this provision stated that the entire agreement requfred­
approval by the council and the applicable statute
reinforced such a requirement, as in
Foster
&
Kleiser,
we
would have to hold that a binding bilateral contract was
not formed for lack of acceptance.
In
this case, however,
the applicable statute, Section 2-111.1 of the Prince
George's County Code, mandated that the Council only
approve the determination that the property was surplus,
and no more. If the council had in fact determined that
the property was needed for a public purpose, the County
could then declare the agreement void. As we discussed
in Issue I,
supra,
however, the council conceded that the
property was surplus. Therefore, the condition in the
contract requiring council approval was fulfilled and the
County is deemed to have accepted Silverman's offer.
Moreover, the County's subsequent action in this
case constituted a waiver of its right to invoke the 45 day
provision. The right to rescind may be waived by
"continuing to treat the contract as a subsisting
obligation."
Michael
v.
Towers,
253
Md.
114, 117, 251
A.2d
878 (1969), quoting
Kemp
v.
Weber, 180 Md. 362,
24 A.2d
779
(***24]
(1942). "If a party ... does any act
which recognizes the continued validity of the contract or
indicates that he still feels bound under
it,
he will be held
to have waived his right to rescind."
Lazorcak
v.
Feuerstein,
273
Md.
69, 76, 327
A.2d
477-481 (1974).
See also, Bagel Enterprises, Inc.
v.
Baskin and Sears, 56
®
 PDF to HTML - Convert PDF files to HTML files
Page 8
58 Md. App. 41, *59; 472 A.2d 104, **113;
1984 Md. App. LEXIS 301, ***24
Md.App.
184, 467
A.2d
533 (1983). The Court of Appeals
in
Coopersmith v. Isherwood,
219
Md.
455,
150 A.2d 243
(1963) elaborated on this principle, stating at p. 462,
150
A.2d243:
A right to rescind, abrogate, or cancel a
contract must be exercised promptly on
discovery of the facts from which it
[*601
arises; it may be waived by continuing to
treat the contract as a subsisting
obligation. The general rule is that the
right to rescind must be exercised within a
reasonable time, although there is
authority to the effect that the mere
question of how much time a party to a
contract has permitted to elapse is not
necessarily determinative of the right to
rescind, the important consideration being
whether the period has been long enough
to result in prejudice to the other party.
that the county is estopped from raising this issue.
To apply estoppel, the party claiming the benefit of
estoppel must have been misled to his detriment and
[***261
must have changed his position for the worse,
having believed and relied upon the representations of the
party sought to
be
estopped.
Dorsey v. Beads,
288
Md.
161, 171, 416
A.2d
739
(1980); Neuman v. Travelers
Indemnity Co.,
271
Md.
636, 654, 319
A.2d
522 (1974);
Lusby v. First National Bank,
263
Md
492,
505,
[*61J
283 A.2d 570
(1971);
Savonis v. Burke,
241
Md. 316,
319, 216
A.2d
521 (1966). This Court in
Zimmerman v.
Summers,
24
MdApp. 100, 330 A.2d
722 (1975)
elaborated on the principle stating at p. 123,
330 A.2d
722:
[T]he rule now to be followed in
Maryland however is that equitable
estoppel may be applied not only when the
conduct of the party to be estopped has
been wrongful or unconscientious, and
relied upon by the other party to his
detriment,
but also when the conduct,
apart from it morality, has the effect of
rendering
it
inequitable
and
unconscionable to allow the rights or
claims to be asserted or enforced.
(Emphasis added).
In this case, the County continued to treat its
agreement with
[***25]
Silverman as a subsisting
obligation by reconsidering the Marton Tract under
Resolution CR-120-1981 in October of 1981, long after
the 45 days expired. Furthermore, the council's act of
"deleting" the Marton Tract from the first resolution, and
its act of indefinitely tabling the second resolution
certainly amounted to prejudice to Silverman.
In
light of
the above, the County is estopped from invoking a
defense based on the 45 day provision.
III.
Whether the County Executive has the capacity to
contract to convey the "Marton Tract" without approval
by the County Council.
The County contends the Executive lacked the
capacity to sell the "Marton Tract" to Silverman.
Sil verman asserts that this issue was not preserved for our
review.
Md.Ruie 1085.
Although this issue was not directly raised below, the
court indirectly addressed this issue when it considered
what powers the Legislature and Executive have pursuant
to Section 2-111.1. Therefore, we do
[**114]
not
dismiss by virtue of
Rule 1085.
Silverman also argues
The practice of the County Council prior to its
consideration ofCR-120-1981 and subsequent thereto has
been to have the County Executive enter into a contract.
with the prospective purchaser of surplus
[***27J
property before submitting the matter to the council for
its approval. The County cannot now deny the validity of
the procedures it created for its own benefit. Silverman
relied on representations that the Executive had the
capacity to contract.
It
certainly would be "inequitable
and unconscionable" to allow the County now to assert
this defense.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
 PDF to HTML - Convert PDF files to HTML files
Agenda Item 4
March 13,2012
Introduction
MEMORANDUM
TO:
FROM:
County Council
~
Michael Faden, Senior Legislative Attorney
Introduction:
Expedited Bill 11-12, County Property - Disposition
SUBJECT:
Expedited Bill 11-12, County Property - Disposition, sponsored by Councilmembers
Leventhal and EIrich, Council President Berliner, and Councilmembers Andrews, Riemer, and
Navarro, is scheduled to be introd.uced on March 13, 2012. A public hearing is tentatively
scheduled for March 20 at 1:30 p.m.
Summary of Bill
Expedited Bill 11-12 would modify the procedures for disposition of County property
and require the County Council to approve disposition of certain County properties. As defined
in this Bill, "disposition" of property which the County owns or controls
l
includes any sale, lease
or license for a term of at least 3 years, or lease or other document which includes an option to
buy (see ©2, lines 6-8).
Specifically, Bill 11-12 would modify County Code §11B-45 by:
• tightening up the current property disposition process (which includes an opportunity
for Council comments but not approval) so as to preclude the broad exemptions found
in current County regulations (see COM COR § I1B.45.01.02A-D). See amended
subsection (a) on ©2, lines 3-19. This would be done by only allowing property "or
nominal value" to be exempted from the current process (see ©2, lines 4-6);
• requiring Council approval before any disposition of County property (with certain
minor exceptions; see ©2, lines 21-22) becomes final. See new subsection (b) on ©2,
lines 20-27. Council approval would take the form of a resolution, adopted after the
Council holds a public hearing with at least 15 days advance notice.
The Council would also approve the material terms of each property disposition,
particularly the price or rent to be paid and any associated economic incentives (see ©2, lines 26­
27. The purpose of this requirement is to avoid a situation where an Executive gains approval to
l"Property which the County "controls" would include property leased or licensed to the County government, as
well as any property deeded to the County.
 PDF to HTML - Convert PDF files to HTML files
dispose of a property and then modifies the terms of disposition in a way that (in the Council's or
the public's view) might not be in the County's best interest. The Council's ability to approve
the terms, as well as the disposition itself, is the crux of the disagreement (discussed further
below) between Council legal staff and the County Attorney regarding this Bill.
State
la~
requires the County to advertise the sale or other disposition of "any property
belonging to the county or any agency thereof ... upon such terms and compensation as said
county may deem proper" for 3 weeks in a newspaper circulated in the county "and giving
opportunity for objections thereto." Council staff does not read this requirement as precluding
the County from enacting a law providing for other public notice and opportunities to comment
before the disposition is finalized. State law does not otherwise regulate the procedures for
disposing of County property.
Summary of Legal Issues
The County Attorney, in reviewing a previous (and essentially identical) draft of this Bill,
concluded that under the County Charter's division of legislative and Executive authority, the
Council could reserve to itself the power to approve the sale or other disposition of County
property, but not the terms on which that property would be sold or disposed of. See Hansen
email on
©S.
Council legal staff disagrees.
The constitutional doctrine of separation of powers is generally not applicable to local
government.
3
Rather, Maryland courts look to the county charter and local law to identify
governmental functions as legislative or executive at the local level.
In the case of
Prince George's County v. Silverman
(see ©6-13), the Court of Special
Appeals confirmed that the Council can enact a law that requires Council approval before the
County can sell or dispose of any County property. The Court affirmed a Circuit Court holding
that the Prince George's County law requiring Council approval of the Executive's declaration
that a property is surplus is
"a necessary and proper exercise of legislative checks and
balances on the executive determination to dispose of County property.
To hold otherwise
could result in the County Executive's declaration that all the county-owned property is
surplus.''"' The Court explained that "the procedure for disposing of surplus property ... is
designed to
insure fairness and to prevent arbitrary and discriminatory dispositions."
The Court in
Silverman
went on to say:
"It
is important to note that the [Prince George's]
code requires council approval only of the County Executive's determination that the property is
surplus; not approval of the prospective grantee." Bill 11-12 conforms to this judicial guideline;
it
would authorize the Council to approve the material terms of any sale or lease (including the
price or rent to be paid and any associated economic incentives), but
not
the identity of the buyer
or lessee. In other words, if the Council approves a sale to one party on certain terms, it could
not then disapprove the sale of the same property on the same terms to any other party.
2Maryland Code, Article 25A §5(B).
3County Council ofMontgomery County
v.
Investors Funding Corporation,
270 Md. 403.
4See 58 Md. App. at 53-54.
2
 PDF to HTML - Convert PDF files to HTML files
To respond to the heart of the County Attorney's argument, the Council would not have a
governing interest in the identity of the prospective grantee, but
it clearly does have a fiscal
interest in the amount of the proceeds.
A below-market sale is effectively an expenditure of
County resources, and the Council has the same interest in that kind of transaction as it has for
any expenditure. Just as any Executive's authority to buy property for the County is always
subject to appropriation, his or her authority to sell property should (in our view) be subject to
the Council's fiscal authority under the Charter. Otherwise, as the Court in
Silverman
implied,
the Executive could effectively give away County property without receiving full value.
This packet contains:
Expedited Bill 11-12
Legislative Request Report
County Attorney email
Prince George's County
v.
Silverman
­
CSA opinion
Circle #
1
4
5
6
F;\LAWIBILLS\l2 I I County Property\intro Memo.Doc
3
 PDF to HTML - Convert PDF files to HTML files
Expedited Bill No.
...:..1.!-1.....;-1...,.2'--_ _ __
Concerning:
County
Property
Disposition
Revised:
3-9-12
Draft No.4
Introduced:
March
13,2012
Expires:
September
13. 2013
Enacted: _ _ _ _ _ _ _ _ __
Executive: _ _ _ _ _ _ _ __
Effective: _ _ _ _ _ _ _ _ __
Sunset Date:
-'-'-No:.:n~e'__~:__--_-
Ch. _ _ Laws of Mont. Co. _ __
I
COUNTY COUNCIL
FOR MONTGOMERY COUNTY, MARYLAND
By: Councilmembers Leventhal and Eirich, Council President Berliner,
and Councilmembers Andrews, Riemer, and Navarro
AN EXPEDITED ACT
to:
(1)
(2)
(3)
modify the procedures to dispose of County property;
require the County Council to approve certain dispositions of certain County
properties; and
generally amend the County law regarding disposition of County property.
By amending
Montgomery County Code
- Chapter 11 B, Contracts and Procurement
Section 11
BAS
Boldface
Underlining
[Single boldface brackets]
Double underlining
[[Double boldface brackets]]
* * *
Heading or defined term.
Added to existing law by original bill.
Deletedfrom existing law by original bill.
Added by amendment.
Deletedfrom existing law or the bill by amendment.
Existing law unaffected by bill.
The County Council for Montgomery County, Maryland approves the following Act:
 PDF to HTML - Convert PDF files to HTML files
EXPEDITED BILL
No. 11-12
1
2
3
Sec. 1. Section
I1B-45
is amended as follows:
IlB-45.
(a)
Disposition of real property.
The County Executive must adopt regulations to establish a process for
the disposition of any real property owned or controlled
Qy
the County,
other than surplus school facilities and [other] property of nominal value
identified in the regulation. As used in this Section, "disposition" means
£!
sale,
£!
lease or license for
£!
term of
J
years or longer, or
£!
lease or
4
5
6
7
8
other document which includes an option to buy. The regulations must
provide for:
(1)
coordination among public agencies, including any [municipal
corporation] municipality in which the real property is located;
(2)
(3)
opportunity to reserve property for alternative public use;
comparative analysis of reuse proposals before any disposition
actions; and
(4) public notice and hearing on possible dispositions before fmal
decision on disposition, except that the County Executive may
waive the public hearing requirement for any real property that:
(A) has nominal value; or
(B) is recommended to be reused by the County government.
(hl
Before the disposition of any real property owned or controlled
Qy
the
9
10
11
12
13
14
15
16
17
18
19
20
21
22
County (other than
£!
property which has either nominal value or an
appraised value lower than $100,000) becomes final, the County
Council,
Qy
resolution adopted after the Council holds
£!
public hearing
with at least
12
days advance notice, must approve:
23
24
25
26
27
ill
ill
the disposition; and
all material terms of the disposition, including the price or rent to
be paid and any associated economic incentives.
f:\Iaw\bills\1211 county property\1211 bill4.doc
 PDF to HTML - Convert PDF files to HTML files
EXPEDITED BILL
No. 11-12
28
29
30
31
32
33
34
[(b)]
W
*
*
*
[(c)]
@
The Executive must adopt regulations to establish a process for
disposition of surplus schools. As used in this Section, "surplus school"
means any building used at any time as a public school and later
conveyed to the County and all or part of the land which constitutes the
school site[, and "disposition" means a sale or a lease with an option to
buy]. The regulations must provide for:
35
36
37
38
39
40
*
[(d)]
*
*
W
*
*
*
Sec. 2. Expedited Effective Date.
The Council declares that this legislation is necessary for the immediate
protection of the public interest. This Act takes effect on the date when it becomes
law.
Approved:
41
42
Roger Berliner, President, County Council
43
Approved:
Date
44
Isiah Leggett, County Executive
45
46
Date
This is a correct copy o/Council action.
Linda M. Lauer, Clerk of the Council
Date
t\law\bills\1211 county property\1211 bill4.doc
 PDF to HTML - Convert PDF files to HTML files
LEGISLA"nVE REQUEST REPORT
Expedited Bill 11-12
County Property
-
Disposition
DESCRlPTION:
Modifies the current procedures for disposition of County properties
to remove certain exemptions. Requires County Council approval of
certain property dispositions.
Apparently unrestricted Executive authority to dispose of County
property on any terms after minimal advertisement and without
public or legislative input.
To require the County Council, after public hearing, to approve the
disposition of certain County properties and the terms of disposition.
Department of General Services
To be requested.
To be requested.
To be requested.
To be researched.
Michael Faden, Senior Legislative Attorney, 240-777-7905
Applies only to property owned or controlled by the County. Would
apply to County property located in a municipality.
Not applicable.
PROBLEM:
GOALS AND
OBJECTIVES:
COORDINATION:
FISCAL IMPACT:
ECONOMIC
IMPACT:
EVALUATION:
EXPERlENCE
ELSEWHERE:
SOURCE OF
INFORMATION:
APPLICATION
WITHIN
MUNICIPALITIES:
PENALTIES:
f:\law\bills\1211 county property\legislative request report.doc
 PDF to HTML - Convert PDF files to HTML files
Page 10f2
Faden, Michael
From:
Sent:
To:
Hansen, Marc P.
Thursday, March 08, 2012 10:48 AM
Faden, Michael
Subject:
FW: Bill 11-12, County property disposition
Mike-
I have reviewed the attached drat! bill. I want to let you know that I believe that the bill inappropriately
assigns executive functions to the Council. As I discJlssed in my email about Bill 4-12, a copy of which
I sent to you,
I
believe the Council can approve on a case by case basis a decision by the Executive to
surplus property, and the Council by law can set out the general rules under which the Executive may
dispose of County property. But the Council cannot exercise a "legislative veto" over the terms and
conditions of a contract negotiated by the Executive.
See
AG LEXIS 19,25-27.
In my email on Bill 4-12, I vvTote:
Generally, government action that establishes a new plan or policy that is one of general application or
to establish some permanent code of conduct must be adopted by a legislative act-i.
e
by enacting an
law.
Inlet Associates v. Assateague House,
313 Md. 413 (1988). An Executive act "merely looks to or
facilitates the administration, execution of implementation of a law already in force."
Silverman
at 50.
Other plain language amendments to
§
56-10 appear to put into the Council's hands the implementation
of the urban renewal law. For example, Bill 4-12 states that the Council may place covenants and
restrictions on the conveyance of property "to prevent the development or spread of future slums."
56-10 (s) (3), lines 54-59) The COLU1Cil could more specifically define
in
the law what those conditions
might be or require the Executive to adopt regulations to implement this provision, but the Council itself
crumot exercise this function on a case by case basis. For the srune reason, I have identical concerns
regarding the other amendments made by Bill 4-12 to pru'agraphs (4) and (6) of
§
56-10.
I would be happy to review any authority you have relied on in drafting this bill before OCA prepares its
bill review memorandum.
Marc P. Hansen
COLmty Attorney
Montgomery County, Maryland
240-777 -6740
 PDF to HTML - Convert PDF files to HTML files
Page I
LexisNexis®
PRINCE GEORGE'S COUNTY, Maryland v. Marc SILVERMAN
No.
682,
September Term,
1983
Court of Special Appeals of Maryland
58 Md. App.
41; 472
A.2d 104;
1984
Md. App. LEXIS 301
March
8, 1984
PRIOR HISTORY:
[***1]
APPEAL FROM THE
CIRCUIT COURT FOR PRINCE GEORGE'S COUNTY
AUDREY E. MELBOURNE, JUDGE.
DISPOSITION:
JUDGMENT AFFIRMED. COSTS
TO BE PAID BY APPELLANT.
Executive of Prince George's County to execute a deed of
conveyance
to
Silverman.
On appeal the County raises three issues for our
consideration:
I.
Whether the court erred in holding that
the County Council's action regarding
Resolution CR-120-1981,
[***2)
which
pertained to the "Marton Tract", was
illegal and improper.
COUNSEL: Ralph E. Grutzmacher, Associate County
Attorney for Prince George's County, with whom were
Thomas P. Smith, County Attorney for Prince George's
County tmd Michael O. Connaughton, Deputy County
Attorney for Prince George's County on the brief, for
appellant.
Russell W. Shipley, with whom were Steven
R.
Smith
and Shipley, Curry
&
Taub, P.A., Landover on the brief,
for appellee.
JUDGES: Moylan, Liss and Bell,
n.
OPINION BY: BELL
OPINION
II. Whether the court erred in holding
that a contract for the sale of the "Marton
Tract" existed between the County and
Silverman.
III. Whether the County Executive
has the capacity to contract to convey the
"Marton Tract" in the absence of approval
by the County Council.
FACTS
In 1980, the Board of Education conveyed the
Marton Tract to Prince George's County. The Board of
Education had acquired the tract in 1958 from the Marton
family. The
[*47]
tract consists of approximately four
acres of land and is part of Lot 7 in the Richard S. Hills
Subdivision. The property lies north of Maryland Route
198 near the intersection of Route 198 and Interstate 95.
[*46]
[**106]
Marc Silverman (Silverman),
Appellee, sought a Declaratory Judgment and a Writ of
Mandamus to have Prince George's Connty (County),
Appellant, convey the "Marton Tract" to him as the
highest qualified bidder. The Circuit Court for Prince
George's County ordered that the sale be ratified and that
a Writ of Mandamus issue commanding the County
 PDF to HTML - Convert PDF files to HTML files
Page 2
58 Md. App. 41, *47; 472 A.2d lO4, **106;
1984 Md. App. LEXIS 301, ***2
Since March of 1977, the County has disposed of
some 40 to 50 "major surplus properties" (property
containing improvements or property valued in excess of
$
25,000). Although Section 2-111.1 of the Prince
[**107]
George's County Code requires the County
Executive to inventory surplus property for approval by
the County Council
before
he disposes of it, in all of the
40 to 50 surplus property dispositions, the County
a bona fide
Executive first secured
[***3}
transferee/purchaser and
thereafter
submitted the matter
to the council for approval. In all cases
except
the
Marton Tract, the council approved the sale of the surplus
property.
The Marton Tract was advertised for sale in January
of 1981 as surplus property of the County. Silverman
contacted Raymond Austin of the County's Bureau of
Property Management in response to the advertisement.
He received a "bid package" from that office. Silverman
submitted a sealed bid, on a form entitled "Bid and
Option to Acquire Real Property", in the amount of
$
50,000 with a cashier's check for
$
5,000 payable to the
County.
The sealed bids were opened on February 27, 1981,
and Silverman qualified to participate in the oral auction.
At the auction, Silverman was declared the successful
bidder at
$
71,605. Silverman certified his bid on that
same day. The only other competing bidders were Eileen
and Wayne Updike, daughter and- son-in-law of Clara
Marton, at
$
70,000. On March 11, 1981, the County
cashed Silverman's check for
$
5,000.
During April of 1981, the County Executive
prepared the proposed list of surplus property
dispositions, designated as Resolution CR-63-1981,
[***4]
and submitted the list to the County Council for
approval. The Marton Tract was "deleted" from the list
with no explanation.
On August 11, 1981, Austin informed Silverman that
his bid for the Marton Tract had been accepted but that
because
[*48]
the period for notification of acceptance
of the option by the County had expired, the option was
null and void. A tender ofa check in return of the deposit
accompanied that notification.
In
response to the letter
from Austin, Silverman met with County officials in an
attempt to ascertain the problem.
On August 28, 1981, the County informed Silverman
that the County Executive intended to resubmit the
Marton Tract for approval as surplus property as
Resolution CR-120-1981. When the council first
considered CR-120-1981 on October 13, 1981, it voted 6
to 5 in favor of approval; then one councilman changed
his vote to defeat the resolution 6 to 5. Following that
action the council approved, by a vote of 6 to 5, a motion
to table consideration of the resolution indefinitely. At
no point during their consideration did the council make
any reference to whether the subject property was needed
for a public purpose. The transcript of the
[***5]
council
proceedings indicated that some council members felt the
prior owners, the Martons, had been unfairly forced to
sell their land.
At the time CR-120-1981 was under consideration
by the County Council, legislation was pending which
would have. amended the provision in the Code regarding
the prior owners rights to reacquire surplus property. On
October 13, 1981, when the council considered the sale
of the Marton Tract, the Code provided:
Notwithstanding the foregoing
provisions of this subsection (d), a person
from whom property was acquired by the
County, or the person's successor in
interest, shall have first right over
municipality, any government entity or
agency other than Prince George's County,
or any other person to reacquire the
property (or such portion of
it
which is
declared surplus) if all the following
conditions are met:
(3) The determination of the County
Executive that the property is surplus
occurs within
ten (10)
years after County
acquisition. (Emphasis added).
[*49]
Prince George's County Code
Section 2-III.l(d).
The pending legislation would have changed the period
during which the prior owners had a right
[***6}
to
reacquire the property from 10 to 15, 25, or 40 years.
(Note -- Section 2-111.1 was in fact amended on
(**108}
June 23, 1982 to extend the period to 25 years.)
When Silverman filed the instant action to enforce
 PDF to HTML - Convert PDF files to HTML files
Page 3
58 Md. App. 41, *49; 472 A.2d 104, **108;
1984 Md. App. LEXIS 301, ***6
his option to purchase the Marton Tract, Clara Marton
intervened. The court found Clara Marton would be
entitled to reacquire the property only if the following
two conditions were met: (1) The Council's action on
CR
~ 120~
1981 was legal and proper, and (2) Amended
Section 2-111.1 applied to this case. After a thorough
and well reasoned discussion, the court found:
the County Executive's determination
that the Marton Tract is no longer needed
for a public purpose was correct, there
being no evidence to the contrary; that the
Council's failure to approve -- the "Marton
Tract" as surplus was motivated by legally
unauthorized
considerations,
i.e.,
prolonging a sale of county property until
a Code Amendment could be enacted that
would enure to the benefit of a special
interest; that the purchaser [Silverman]
met all the procedural requirements made
known to him by the County; and that
Petitioner, Marc Silverman, should be
granted the relief he seeks in these
proceedings [***7] for the reasons herein
set forth.
The court further found that under the law in effect at the
time the matter was before the County Council, Clara
Marton had no right of reacquisition because the 10 year
period had expired.
municipal governing body in passing an ordinance are not
subject [***8J to judicial inquiry.
Our discussion ofthis issue is addressed in two parts:
(A) whether the court had authority to address the matter;
(B) whether the court erred in finding the council's action
improper.
A.
The standard of review by the circuit court when the
County Councilor another administrative body is acting
in a quasi-judicial or administrative capacity is whether
the action was arbitrary, capricious, or discriminatory.
County Council v. Carl M Freeman Assoc.,
281
Md. 70,
74, 376
A.2d 860
(1977);
See also; Montgomery County
v.
Woodward and Lothrop, 280 Md.
686,
706,
376
A.2d
483 (1977);
Stratakis
v.
Beauchamp,
268
Md.
643, 652,
304 A.2d
244 (1973). The test to determine whether
action is legislative or administrative is whether the
action is one making new law, i.e. an enactment of
general application prescribing a new plan or policy, or is
one which merely looks to or facilitates the
administration, execution or implementation of a law
already in force.
City of Bowie
v.
County Comm'r for
Prince George's County,
258
Md.
454, 463, 267
A.2d 172
(1970).
In considering CR-120-1981 on October 13 1981
the council was not functioning in a purely legislativ;
[***9] capacity.
[*51]
Rather, it operated in a
quasi-judicial or administrative capacity. The council
dealt with the disposition of one isolated parcel of
property. The effect of its decision was restricted to the
individuals who had an interest in the property and had
no effect on the general safety or welfare. The council
essentially adjudicated Silverman's rights in the property.
Thus the trial court did not invade (**109] the province
of the council because it did not attack the validity of a
legislative enactment; rather it simply determined
whether the council's action on Resolution CR-120-198l
,
pursuant to a
prior
legislative enactment (Section 2-111.1
ofP.G.Co. Code), was arbitrary and discriminatory.
, The County's reliance on
District Land Corp., supra,
for the proposition that the court invaded the legislative
province of the council is misplaced. The Court of
Appeals held in that case that a comprehensive rezoning
plan bearing a substantial relationship to the public health
and welfare enjoys a strong presumption of validity, and
that the motives, wisdom, or propriety of a municipal
1.
Whether the Council's action regarding the
Marton Tract was illegal and improper.
The lower court found that the council's sole function
in considering CR-120-198l was to determine whether
the [*50] Marton Tract was needed for a public purpose.
Since the council indefinitely tabled the resolution to
allow Section 2-111.1 to be amended so that a prior
owner could reacquire the property, the court held the
council acted improperly and arbitrarily.
The County contends that based on the applicable
statutory provisions, which require the council to approve
the Executive's determinations, the trial court invaded the
province of the County Council in determining that it
considered impermissible factors. The County cites
County Council for Montgomery County v. District Land
Corp.,
274
Md.
691, 337
A.2d
712 (1975) in support,
which holds that the motives, wisdom or propriety of a
 PDF to HTML - Convert PDF files to HTML files
Page 4
58 Md. App. 41, *51; 472 A.2d 104, **109;
1984 Md. App. LEXIS 301, ***9
body in passing the ordinance effectuating the
comprehensive rezoning are [***10) not subject to
judicial inquiry. The adoption of a sectional zoning map
in that case, was deemed a "legislative" act because it
concerned legislative facts, e.g. zoning of a large area and
impact on general welfare of the county.
In
the case at
bar, however, the consideration of the Marton Tract
involved the council in a quasi-judicial capacity.
B.
The trial court did not err in holding that the
council's failure to approve CR-120-1981 was improper
and arbitrary.
The initial question we must address, for purposes of
the instant case, is within which branch of the
government does the power to dispose of surplus property
lie.
Division 2, Section 2-111.1 sets forth a framework for the
declaration of county owned property as surplus and the
disposal of the property. It provides in pertinent part:
The County Executive shall be
authorized to sell, lease or otherwise
dispose of any County owned real
property, no longer needed for public use
or in furtherance [***12) of the public
purpose, in accordance with the foHowing
provisions:
(a) The County Executive shall
establish an inventory of all real property
and improvements titled in the name of
Prince George's County ...
(b) The County Executive, at least
once annually, shall review the inventory
of all real property and improvements held
in fee by Prince George's County and shall
[*531
transmit, for the approval by
resolution of the County Council, a list of
all properties to be leased, offered for sale,
or otherwise disposed of ....
Executive Branch
Article Xl-A of the Maryland Constitution
(Home
Rule Amendment) sets forth the steps to be taken at the
local level to establish a charter local government.
Section 1 of
[*52)
Article XI-A the Home Rule
Amendment authorizes the counties to choose a charter
form of government, which if adopted by the voters of
the county, becomes the law or "constitution" of the
county. Section 2 mandates the adoption by the
Maryland General Assembly of a grant of express powers
for those counties choosing a charter form of
government. Pursuant [***11] to the mandate, the
General Assembly enacted the "Express Powers Act",
codified in
Article 25A of the Annotated Code of
Maryland.
Article 25A,
Section 5(B)
of the Maryland
Code permits the disposition by the County of "any real
or leasehold property belonging to the County, provided
the same is no longer needed for public use."
The Prince George's County Charter, Article IV,
Section 402 enumerates the specific powers of the
executive branch of the county government. It provides
that all those specific powers vested in Prince George's
County by the Constitution shall be vested in the County
Executive. Among the enumerated powers is the power to
"sign or cause to be signed on the county's behalf all
deeds, contracts, and other instruments . . ." Prince
George's County Charter, Article IV, Section 402(8).
Prince George's County Code, Subtitle Two,
Pursuant to the above, we agree with the trial court
that the County Executive was empowered to dispose of
county [**110] owned surplus property in accordance
with the requirements of Section 2-111.1.
Legislative Branch
Subsection (S) of the Express Powers Act,
Article
25A, ofthe Maryland Code
provides:
The foregoing or other enumeration of
powers in this article shall not be held to
limit the power of the county council, in
addition thereto, to pass all ordinances,
resolutions, or by-laws, not inconsistent
with the provisions of this article or the
laws of the State, as may be proper in
executing and enforcing any of the powers
[***13) enumerated in this section ... as
may be deemed expedient in maintaining
the peace, good government, health and
welfare of the county.
This section contains a general grant of power to pass
 PDF to HTML - Convert PDF files to HTML files
Page 5
58 Md. App. 41, *53; 472 A.2d 104, **110;
1984 Md App. LEXIS 301, ***13
laws for the peace, good government, health and welfare
of the County. Pursuant to this grant of power, measures
may be passed which are necessary and beneficial, and
will be adjudged valid by the courts, provided they are
reasonable and consistent with the laws and policy of the
State.
Montgomery Citizens League v. Greenhalgh, 253
Md.
151, 161, 252
A.2d
242 (1969). Thus where council
legislation bears a reasonable relationship to the
implementation of an enumerated power, the legislation
will be upheld.
Applying the above analysis to the County Code we
agree with the trial court that:
(1) The requirement that the County
Executive annually inventory all County
owned property no longer needed for a
public purpose is necessary for the
Council to be apprised of the County's
surplus land holdings and proper to return
to the tax rolls or other governmental
agencies; and
(*54] (2) The prOVlSlon requiring
Council approval that properties are in fact
surplus is likewise a necessary [***14]
and proper exercise of legislative checks
and
balances
on
the
executive
determination to dispose of County
property: To hold otherwise could result in
the County Executive's declaration that all
the county-owned property is surplus.
auctions were held and bona fide deposits were cashed
prior to council approval by resolution. [***15] The
reason for ignoring the specifics of Section 2-111.1 was
obviously to enable the council to know the identity of
the grantee and his proposed use of the property. This
procedure contravenes the legislative intent of Section
2-111.1 which is to prevent discrimination and arbitrary
action.
Pursuant to the code, the council's sole duty was to
consider factors directly related to whether the property
was no longer needed for public use.
It
was not
authorized to table the matter until a code amendment
could be enacted that would enable the Marton family to
repurchase the property. In its answers to Interrogatories
propounded by Silverman, the County admitted that the
property was in fact surplus property. Since it is
undisputed that the property was surplus, it is clear that
the council acted arbitrarily in failing to approve
CR-120-1981. The court did not err.
1*55] [**111] II.
Whether a contract for sale of
the "Marton Tract" existed.
By ratifying the sale of the Marton Tract, the trial
court implicitly found that a contract existed between
Silverman and the County. Prince George's County
contends that there never was a contract between the two
parties because [***16] the County never accepted the
Bid and Option Agreement submitted by Silverman. The
County asserts that the option became null and void by
the terms of the agreement itself when the 45 day period
for acceptance set forth in paragraph lIB of the agreement
expired. The County cites
American Medicinal Spirits
Company
v.
Mayor and City Council of Baltimore,
165
Md.
128, 166
A. 407
(1933)
in support, which states at p.
133,
166A. 407:
Since the offeror was at liberty to make
no offer,
it
was free to determine and
impose whatever terms
it
might choose,
and among these it might require that its
offer be accepted within a designated time
and in a specific manner. If no acceptance
is made in the manner and within the
period fixed by the offer, the offer
v.
necessarily
expires.
Williston
Contracts,
Sections 53, 61, 76.
The County further urges that the 45 day provision
The problem in this case, however, is not whether
Section 2-111.1 is valid, but whether Section 2-111.1 was
properly followed. Section 2-111.1 sets forth the
procedure for disposing of surplus property. It is
designed to insure fairness and to prevent arbitrary and
discriminatory dispositions.
It
is important to note that
the code requires council approval only of the County
Executive's determination that the property is surplus; not
approval of the prospective grantee.
Prince George's County has been disposing of its
surplus property in contravention of the code. Despite
the code's requirement of obtaining approval before a
grantee has been selected, the County has condoned the
Executive's procurement of the grantee first. In the 40 to
50 surplus property cases, the property was advertised as
surplusage in newspapers, sealed bids were accepted, oral
@
 PDF to HTML - Convert PDF files to HTML files
Page 6
58 Md. App.
41,
*55;
472
A.2d
104,
**111;
1984 Md. App. LEXIS 301, ***16
the option is exercised and a binding bilateral contract of
sale is created.
Straley v. Osborne,
262
Md.
514, 278
A.2d
64 (1971).
Paragraph lIB of the agreement between Silverman
and the County provides:
within 45 days after
[***19]
Optionee
has been notified that his bid was
accepted, Optioner shall notify Optionee
in writing that his Option was accepted. If
notice is
[**112]
not given to Optionee
within the allotted time, this Option shall
become null and void.
amounted to a right to terminate the contract, and in the
absence of fraud, undue influence, or mistake, such a
reservation is valid and enforceable.
Acme Markets, Inc.
v. Dawson Enterprises, Inc.,
253
Md
76, 251
A.2d 839
(1969); Kahn v. Janowski,
191
Md.
279,
60 A.2d 519
(1948).
At the outset
[***17]
we note that although the facts
of
American Medicinal Spirits, supra,
appear similar to
those of this case, we find the reliance by the County
thereon misplaced. In
American Medicinal Spirits,
a
company contracted to purchase land from the city
conditioned on the city passing an ordinance within one
year. The city failed to pass the ordinance within the
specified period. The Court held the contract amounted
to a unilateral offer to purchase by the company and that
one term of the offer was not met. Therefore, the
purchaser/company could opt to declare the
[*56]
contract null and void. The rationale behind this holding
was obviously to prevent the city from procrastinating
and to assure the company that an effort would be made
to fulfill the terms of the contract in a timely manner.
The Court did not address the issue before us -- whether
the city/seller (or in this case the County) could
purposefully avoid passing the ordinance and then
declare the contract null and void.
Silverman posits that the County did in fact approve
his bid by negotiating his check of
$
5,000; by
acknowledging in an informal memorandum that the bid
for the property was ratified and by Austin's
[***18]
letter of August 11, 1981, stating the County accepted his
bid. Additionally, Silverman asserts that he had the sole
right to exercise the option; therefore it was not even
necessary for the County to accept. As to the allegations
concerning the 45 day provision in the agreement,
Silverman contends the provision was an illegal and
unenforceable provision.
Before we address the parties' contentions, we must
determine exactly what the agreement entitled "Bid and
Option to Acquire Real Property" represents.
An option to purchase property is a continuing offer
to sell by the optionor which is irrevocable during the
stated period.
Beall v. Beall,
291
Md.
224, 434
A.2d
1015
(1981). An option is not a mere offer to sell, but is a
binding agreement if supported by consideration.
Blondell v. Turover,
195
Md.
251, 72
A.2d
697 (1949).
The optionee has what is termed a power of acceptance,
and when he accepts the offer in the prescribed manner,
[*57]
This provision implies that the County retains
the power to revoke its "offer" and thereby prevent the
formation of a binding contract. Since by definition, an
option cannot be revoked, this agreement, despite its title,
cannot be deemed an option contract. Accordingly, we
must analyze the parties' positions under general contract
principles.
A contract is formed when an unrevoked offer made
by one person is accepted by another. An "offer" is the
"manifestation of willingness to enter into a bargain, so
made as to justify another person in understanding that
his assent to that bargain is invited and will conclude it."
I .
Restatement Contracts (2d)
§
24 (1979). A
manifestation of willingness to enter into a bargain is not
an offer if the person to whom it is addressed knows that
the person making it does not intend to conclude a
bargain until he has made a further manifestation of
consent.
Foster
&
Kleiser v. Baltimore County,
[***20]
Md.,
57
MdApp.
531,
470 A.2d
1322 (1983)
citing 1
Restatement Contracts (2d)
§
26 (1979). By the same
token, an invitation to bid is not an offer, but the bid or
tender is an offer which creates no right until accepted.
Rofra, Inc. v. Board of Education,
28
MdApp.
538, 346
A.2d
458 (1978). Acceptance of an offer can be
accomplished by acts as well as words; no formal
acceptance is required.
Porter v. General Boiler Casing
Co.,
284
Md 402, 409,
396
A.2d 1090
(1979);
Duplex
Envelope Co. v. Baltimore Post Co.,
163
Md
596,
605,
163 A.
688 (1933).
Judge Adkins, writing for this Court in
Foster
&
Kleiser, supra,
espoused the principle that a provision in
a contract requiring council approval amounts to a
condition of acceptance; and therefore, there can be no
 PDF to HTML - Convert PDF files to HTML files
Page 7
58 Md. App. 41, *57; 472 A.2d 104, ** 112;
1984 Md. App. LEXIS 301, ***20
binding contract until such approval is forthcoming.
In
addition, the requisite approval must comply with the
applicable laws. In that case, Foster
&
Kleiser leased a
tract of land in Baltimore County owned by County
Mutual Acceptance Corp. The lease was terminable upon
60 days prior written notice from either party. Baltimore
County offered to purchase the property. The agreement
between Baltimore County
[***21
J
and County Mutual
stated:
1*58J
In the event that this Agreement
is not approved by the Baltimore County
Council, this Agreement shall become null
and void ...
County Mutual terminated Foster
&
Kleiser's lease, and
the contract of sale was approved by the County Council.
Foster
&
Kleiser brought suit, alleging among other
things, that the submission of the contract of sale by
Baltimore County to County Mutual was an offer to
purchase the land; that the offer was accepted when
County Mutual executed the contract; and that there was
a binding contract subject to approval of the County
Council. We held at p. 538 of 57
Md.App., 470
A.2d
1322:
there could be no binding or enforceable
contract until approval by the County
Council had occurred. Therefore, what
Foster
&
Kleiser claims was an offer
submitted to County Mutual by Baltimore
County was not an offer, but merely part
of preliminary negotiations. County
Mutual could not have accepted this
"offer" without further action by the
County, that
action being approval by the
County Council, as required by the County
Charter.
(Emphasis supplied).
The Baltimore County Charter
§
715 stated in
[***22]
pertinent part:
... Any contract ... must be approved
by the County Council before it is
executed if the contract is
(1) For the purpose of
real or leasehold property
where the purchase price of
the property is in excess of
$
5,000 ... Balto.Co.Code
1978
(1982 Cum.Supp.)
Applying the above principles to the sequence of
events in this case, we hold that· a binding contract did
exist between Silverman and the County. The
advertisement for sale of the Marton Tract by the
(**113J
County did not constitute an offer.
Rofra, Inc.,
supra.
Rather, Silverman's bid, initially at
$
50,000 and
finally at
$
71,605, constituted his offer to purchase the
property. There is no Statute of Frauds problem because
Silverman certified his bid in writing on the same day.
The County accepted Silverman's offer when
[*59]
it
declared Silverman the successful bidder.
The
negotiation of Silverman's
$
5,000 check by the County,
on March
II,
further confirmed its acceptance.
By -the terms of the agreement, however, this
acceptance was conditioned on "notice [being] given to
the Optionee within 45 days." This provision enabled the
council to approve or disapprove
(***231
the sale. Had
this provision stated that the entire agreement requfred­
approval by the council and the applicable statute
reinforced such a requirement, as in
Foster
&
Kleiser,
we
would have to hold that a binding bilateral contract was
not formed for lack of acceptance.
In
this case, however,
the applicable statute, Section 2-111.1 of the Prince
George's County Code, mandated that the Council only
approve the determination that the property was surplus,
and no more. If the council had in fact determined that
the property was needed for a public purpose, the County
could then declare the agreement void. As we discussed
in Issue I,
supra,
however, the council conceded that the
property was surplus. Therefore, the condition in the
contract requiring council approval was fulfilled and the
County is deemed to have accepted Silverman's offer.
Moreover, the County's subsequent action in this
case constituted a waiver of its right to invoke the 45 day
provision. The right to rescind may be waived by
"continuing to treat the contract as a subsisting
obligation."
Michael
v.
Towers,
253
Md.
114, 117, 251
A.2d
878 (1969), quoting
Kemp
v.
Weber, 180 Md. 362,
24 A.2d
779
(***24]
(1942). "If a party ... does any act
which recognizes the continued validity of the contract or
indicates that he still feels bound under
it,
he will be held
to have waived his right to rescind."
Lazorcak
v.
Feuerstein,
273
Md.
69, 76, 327
A.2d
477-481 (1974).
See also, Bagel Enterprises, Inc.
v.
Baskin and Sears, 56
®
 PDF to HTML - Convert PDF files to HTML files
Page 8
58 Md. App. 41, *59; 472 A.2d 104, **113;
1984 Md. App. LEXIS 301, ***24
Md.App.
184, 467
A.2d
533 (1983). The Court of Appeals
in
Coopersmith v. Isherwood,
219
Md.
455,
150 A.2d 243
(1963) elaborated on this principle, stating at p. 462,
150
A.2d243:
A right to rescind, abrogate, or cancel a
contract must be exercised promptly on
discovery of the facts from which it
[*601
arises; it may be waived by continuing to
treat the contract as a subsisting
obligation. The general rule is that the
right to rescind must be exercised within a
reasonable time, although there is
authority to the effect that the mere
question of how much time a party to a
contract has permitted to elapse is not
necessarily determinative of the right to
rescind, the important consideration being
whether the period has been long enough
to result in prejudice to the other party.
that the county is estopped from raising this issue.
To apply estoppel, the party claiming the benefit of
estoppel must have been misled to his detriment and
[***261
must have changed his position for the worse,
having believed and relied upon the representations of the
party sought to
be
estopped.
Dorsey v. Beads,
288
Md.
161, 171, 416
A.2d
739
(1980); Neuman v. Travelers
Indemnity Co.,
271
Md.
636, 654, 319
A.2d
522 (1974);
Lusby v. First National Bank,
263
Md
492,
505,
[*61J
283 A.2d 570
(1971);
Savonis v. Burke,
241
Md. 316,
319, 216
A.2d
521 (1966). This Court in
Zimmerman v.
Summers,
24
MdApp. 100, 330 A.2d
722 (1975)
elaborated on the principle stating at p. 123,
330 A.2d
722:
[T]he rule now to be followed in
Maryland however is that equitable
estoppel may be applied not only when the
conduct of the party to be estopped has
been wrongful or unconscientious, and
relied upon by the other party to his
detriment,
but also when the conduct,
apart from it morality, has the effect of
rendering
it
inequitable
and
unconscionable to allow the rights or
claims to be asserted or enforced.
(Emphasis added).
In this case, the County continued to treat its
agreement with
[***25]
Silverman as a subsisting
obligation by reconsidering the Marton Tract under
Resolution CR-120-1981 in October of 1981, long after
the 45 days expired. Furthermore, the council's act of
"deleting" the Marton Tract from the first resolution, and
its act of indefinitely tabling the second resolution
certainly amounted to prejudice to Silverman.
In
light of
the above, the County is estopped from invoking a
defense based on the 45 day provision.
III.
Whether the County Executive has the capacity to
contract to convey the "Marton Tract" without approval
by the County Council.
The County contends the Executive lacked the
capacity to sell the "Marton Tract" to Silverman.
Sil verman asserts that this issue was not preserved for our
review.
Md.Ruie 1085.
Although this issue was not directly raised below, the
court indirectly addressed this issue when it considered
what powers the Legislature and Executive have pursuant
to Section 2-111.1. Therefore, we do
[**114]
not
dismiss by virtue of
Rule 1085.
Silverman also argues
The practice of the County Council prior to its
consideration ofCR-120-1981 and subsequent thereto has
been to have the County Executive enter into a contract.
with the prospective purchaser of surplus
[***27J
property before submitting the matter to the council for
its approval. The County cannot now deny the validity of
the procedures it created for its own benefit. Silverman
relied on representations that the Executive had the
capacity to contract.
It
certainly would be "inequitable
and unconscionable" to allow the County now to assert
this defense.
JUDGMENT AFFIRMED.
COSTS TO BE PAID BY APPELLANT.