B-142807, OCT. 12, 1960

B-142807, OCT. 12, 1960

TO MR. MALLAN REA:

FURTHER REFERENCE IS MADE TO YOUR REQUEST FOR REVIEW OF SETTLEMENT OF MARCH 29, 1960, WHICH DISALLOWED $6,700 OF YOUR CLAIM FOR $7,200 FOR USE AND OCCUPANCY OF LOTS 32 AND 33, BLOCK 28, KROPPS ADDITION TO COLLEGE PARK, MARYLAND, FORMERLY OCCUPIED AS PART OF THE SITE FOR AN AAA GUN POSITION.

THE FACTS AS ADMINISTRATIVELY REPORTED ARE TO THE EFFECT THAT WHEN THE ARMY FIRST OCCUPIED THE GUN SITE NO FORMAL AUTHORIZATION WAS OBTAINED FROM YOU FOR USE OF THE LOTS BECAUSE OF DIFFICULTIES OF ESTABLISHING OWNERSHIP; THAT AT THE BEGINNING OF ARMY'S OCCUPANCY OF THE SITE IT ERECTED A SIX- FOOT CHAIN LINK FENCE TOPPED BY ONE FOOT OF BARBED WIRE COMPLETELY SURROUNDING THE GUN SITE; THAT THIS FENCE ENCLOSED THE MAJOR PART OF YOUR LOTS LEAVING ONLY A SMALL AREA ACCESSIBLE BETWEEN THE FENCE AND CALVERT ROAD; AND THAT THE ARMY PLACED SIGNS, AT INTERVALS ALONG THE FENCE READING ,NO TRESPASSING.'

PURSUANT TO AN AGREEMENT ENTERED INTO ON OCTOBER 8, 1959, BETWEEN THE UNITED STATES AND THE MARYLAND NATIONAL CAPITAL PARK AND PLANNING COMMISSION THE GUN SITE WHICH INCLUDED YOUR LOTS, CERTAIN LOTS OWNED BY THE COMMISSION AND OTHERS, WAS TRANSFERRED TO THE COMMISSION EFFECTIVE AS OF OCTOBER 17, 1958, IN LIEU OF THE GOVERNMENT'S RESTORATION OBLIGATION, UNDER LETTER PERMITS OF JUNE 6, 1951, AND NOVEMBER 5, 1952. PARAGRAPH 6 OF THIS AGREEMENT PROVIDES,

"THAT THE PERMITTER (MARYLAND NATIONAL BANK AND PLANNING COMMISSION) SHALL SAVE, INDEMNIFY AND HOLD THE GOVERNMENT HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DIFFERENCE, ACTIONS OR CAUSES OF ACTION, LOSS, DAMAGE OR EXPENSE IN CONNECTION WITH (1) THE OBLIGATION OF THE GOVERNMENT, IF ANY, FOR THE REMOVAL OF THE FIXTURES, ADDITIONS, STRUCTURES AND FACILITIES INSTALLED BY THE GOVERNMENT ON LANDS OWNED BY OTHERS THAN THE PERMITTER, AND LOCATED WITHIN THE AREA USED FOR ESTABLISHMENT OF THE AFORESAID GUN POSITION, AND (2) THE USE AND OCCUPANCY BY THE PERMITTER, AFTER THE DATE HEREOF, OF THE AFORESAID LANDS AND FACILITIES, OR FOR THE REMOVAL OF SAID FACILITIES FROM THE LANDS.'

THE GOVERNMENT'S "NO TRESPASSING" SIGNS WERE REMOVED FROM THE FENCE ON OCTOBER 17, 1958, AND IT IS REPORTED THAT THE COMMISSION IMMEDIATELY PLACED ITS OWN "NO TRESPASSING" SIGNS ON THE FENCE ALONG CALVERT ROAD AND THAT THE SITE HAS BEEN USED AS A MAINTENANCE AND STORAGE AREA BY THE COMMISSION SINCE DECEMBER 1958.

ON MARCH 28, 1959, YOU FILED A CLAIM FOR $7,200 AS RENT FOR USE AND OCCUPANCY OF LOTS 32 AND 33 FROM DECEMBER 1952, TO DECEMBER 1958, INCLUSIVE. BY SETTLEMENT OF MARCH 29, 1960, THE CLAIM WAS ALLOWED IN THE AMOUNT OF $500 AS THE ESTIMATED FAIR RENTAL VALUE OF THE TWO LOTS FROM DECEMBER 1, 1952, TO OCTOBER 31, 1958. THE BALANCE OF $6,700WAS DISALLOWED ON THE GROUND THAT THE AMOUNT ALLOWED REPRESENTED THE FAIR RENTAL VALUE AS DETERMINED BY A QUALIFIED APPRAISER AND FOR THE FURTHER REASON THAT THE AMOUNT ALLOWED WAS SUBSTANTIALLY THE SAME RENTAL RATE AS PAID TO OTHER OWNERS OF LAND COMPRISING THE SITE FOR THE AAA GUN POSITION SOME OF WHOM LEASED THEIR LOTS TO THE GOVERNMENT.

IN YOUR LETTER OF APRIL 22, 1960, YOU REQUESTED REVIEW OF THE SETTLEMENT. IN SUPPORT OF SUCH REQUEST YOU FORWARDED A COPY OF YOUR LETTER OF APRIL 9, 1960, TO THE CHIEF, MANAGEMENT AND DISPOSAL REAL ESTATE, OFFICE OF THE CHIEF OF ENGINEERS, WHEREIN IT IS STATED THE WIRE FENCE AND ,NO TRESPASSING" SIGNS STILL REMAIN ON THE PROPERTY AND THAT YOUR LOTS HAVE NEVER BEEN RETURNED TO YOU. YOU REASSERTED YOUR CLAIM FOR $6,700, DISALLOWED IN THE SETTLEMENT OF MARCH 29, 1960, AND FILED AN ADDITIONAL CLAIM FOR RENT AT THE RATE OF $100 PER MONTH UNTIL SUCH TIME AS LOTS 32 AND 33 ARE RETURNED TO YOU.

WITH REFERENCE TO THAT PART OF YOUR CLAIM FOR THE PERIOD FROM OCTOBER 8, 1958, UNTIL THE RETURN OF YOUR LOTS THE COMMISSION BY LETTER OF SEPTEMBER 22, 1960, HAS INFORMED THIS OFFICE THAT IT WILL BE RESPONSIBLE FOR ANY CLAIM YOU MAY HAVE FOR USE AND OCCUPANCY OF YOUR LOTS FROM AND AFTER OCTOBER 8, 1958, AND THAT YOU HAVE BEEN SO NOTIFIED. ACCORDINGLY, ANY FURTHER CORRESPONDENCE CONCERNING THAT PORTION OF YOUR CLAIM SHOULD BE ADDRESSED TO THE COMMISSION.

WITH RESPECT TO THE BALANCE OF YOUR CLAIM FOR THE PERIOD BEGINNING DECEMBER 1, 1952, THERE WERE SUBMITTED IN SUPPORT OF YOUR CLAIM FOR RENTAL THREE APPRAISALS MADE IN JUNE AND JULY 1959, WHEREIN THE FAIR MARKET VALUE OF BOTH LOTS WAS ESTIMATED AT THAT TIME AS BETWEEN $5,000 AND $6,000 AND AS JUSTIFYING A REASONABLE RENTAL VALUE OF $600 TO $1,320 PER ANNUM. THE OTHER HAND, IN AN APPRAISAL DATED FEBRUARY 17, 1960, MADE AS OF DECEMBER 1, 1952, BY WALTER J. LOCKE, STAFF APPRAISER, WASHINGTON DISTRICT, CORPS OF ENGINEERS, UNITED STATES ARMY, THE FEE VALUE OF BOTH LOTS WAS ESTIMATED AS $1,000 AND THE ESTIMATED ANNUAL RENTAL VALUE AS $80; AND THE ESTIMATED RENTAL VALUE FOR FIVE YEARS AND ELEVEN MONTHS AS $500. IN SUPPORT OF THIS APPRAISAL IT IS STATED THAT YOUR LOTS ARE ZONED RURAL RESIDENTIAL, BUT THAT THEIR TOTAL AREA IS INADEQUATE TO PERMIT THEIR USE FOR SUCH PURPOSE; THAT BY REASON OF THE INCLUSION OF THE LOTS WITHIN THE BOUNDARIES OF THE ,TAKING LINE" OF AN AREA DESIGNATED BY PUBLIC RECORD FOR INTENDED ACQUISITION BY THE MARYLAND NATIONAL CAPITAL PARK AND PLANNING COMMISSION IT IS NOT BELIEVED THAT THE ZONING COULD BE CHANGED TO INDUSTRIAL; AND THAT SALES FROM 1952 THROUGH 1958 OF OTHER VACANT LOTS IN KROPP'S ADDITION, NOT WITHIN THE "TAKING LINE" AND AVAILABLE FOR INDUSTRIAL USE, RANGED FROM $300 TO $750 PER LOT. THE APPRAISAL BY THE ARMY STAFF APPRAISER IS FURTHER SUPPORTED BY AN APPRAISAL OF LOTS 2 AND 3 (LOCATED IN THE SAME CLOCK AND THE SAME SIZE AS YOUR TWO LOTS) MADE BY BEASLEY AND BEASLEY, VALUATION ENGINEERS, OF WASHINGTON, D.C., ON MAY 17, 1957, WHEREIN THE FAIR RENTAL VALUE OF LOTS 2 AND 3 WAS APPRAISED AT $88 PER YEAR. IT IS ALSO OF RECORD THAT YOUR TWO LOTS WERE ASSESSED FOR TAX PURPOSES IN 1953 AT $500 FOR BOTH LOTS AND THAT PROPERTY IN PRINCE GEORGES COUNTY, WAS IN 1953, AND STILL IS, GENERALLY ASSESSED AT BETWEEN 50 AND 60 PERCENT OF THE FAIR MARKET VALUE, THUS INDICATING THE FAIR MARKET VALUE OF YOUR PROPERTY AT THAT TIME TO HAVE BEEN APPROXIMATELY $1,000 OR LESS.

IN A SOMEWHAT SIMILAR CASE WHERE THE ARMY OCCUPIED LAND WITHOUT THE FORMAL CONSENT OF THE OWNER THE COURT OF CLAIMS HELD THAT HE WAS ENTITLED TO THE FAIR RENTAL VALUE AS OF THE DATE OF THE ARMY'S ENTRY AS THOUGH HE HAD CONSENTED TO SUCH OCCUPANCY BUT NEGLECTED TO FIX THE AMOUNT. POPE V. UNITED STATES, 26 CT.CL. 11.

WHILE THERE IS CONFLICTING EVIDENCE AS TO THE FAIR RENTAL VALUE OF YOUR TWO LOTS AT THE BEGINNING OF THE GOVERNMENT'S OCCUPANCY, WE DO NOT FEEL JUSTIFIED IN ACCEPTING THE APPRAISALS SUBMITTED BY YOU TO OVERCOME THE APPRAISAL MADE BY THE ARMY STAFF APPRAISER, BASED AS IT WAS UPON ACTUAL SALES OF COMPARABLE LAND IN KROPPS ADDITION, ZONING REGULATIONS WHICH PRECLUDED THE ISSUANCE OF BUILDING PERMITS FOR IMPROVEMENTS, AND THE FACT THAT YOUR LOTS ARE RESTRICTED AND LIMITED IN UTILITY BECAUSE OF THE PUBLISHED PLANS OF THE MARYLAND NATIONAL CAPITAL PARK AND PLANNING COMMISSION.