Wireless One, Inc. v. Mayor and City Council of Baltimore, et al., No. 70, September Term, 2018 MD. CODE ANN., REAL PROP. (1974, 2015 REPL. VOL.) (“RP”) § 12-205(a) – MOVING AND RELOCATION EXPENSES – RP § 12-201(e) – “DISPLACED PERSON” – Court of Appeals held that former tenant of public market in Baltimore City was not “displaced person,” as defined in RP § 12-201(e)(1)(i), because it voluntarily terminated its lease and abandoned its stall at market before action by defendants to terminate lease and before any redevelopment occurred. Tenant left market on its own accord before any action to terminate lease, other than advisement that it would not “fit in [redevelopment] plans” for market and that it should pursue other options. Thus, tenant did not qualify as “displaced person” under plain language of RP § 12-201(e)(1)(i), and it was not entitled to moving and relocation expenses under RP § 12-205(a). Moreover, tenant was not “displaced person” because it “lease[d] from [] displacing agency after [] displacing agency [took] title to [] real property[.]” RP § 12-201(e)(2)(iii). Applying plain and unambiguous language of RP § 12-201(e)(2)(iii)—that person who leases from displacing agency after displacing agency takes title to real property is not displaced person—led to inescapable conclusion that tenant was not displaced person, as it undisputedly leased property well after displacing agency took title to property. Although unnecessary to resort to review of legislative history, holding concerning plain language of RP § 12-201(e)(2)(iii) was fully supported by legislative history, and legislative history did not compel contrary interpretation.

Circuit Court for Baltimore City Case No. 24-C-17-003125 Argued: May 2, 2019 IN THE COURT OF APPEALS

OF MARYLAND No. 70

September Term, 2018 ______________________________________

WIRELESS ONE, INC. v. MAYOR AND CITY COUNCIL OF BALTIMORE, ET AL. ______________________________________

Barbera, C.J. *Greene McDonald Watts Hotten Getty Booth, JJ. ______________________________________

Opinion by Watts, J. Barbera, C.J., and McDonald, J., dissent. ______________________________________

Filed: August 23, 2019

*Greene, J., now retired, participated in the hearing and conference of this case while an Pursuant to Maryland Uniform Electronic Legal Materials Act active member of this Court; after being recalled (§§ 10-1601 et seq. of the State Government Article) this document is authentic. pursuant to the Md. Constitution, Article IV, 2019-10-01 11:29-04:00 Section 3A, he also participated in the decision and adoption of this opinion. Suzanne C. Johnson, Clerk

This case involves an action by a former tenant of a public market in Baltimore City to recover moving and relocation expenses under Md. Code Ann., Real Prop. (1974, 2015 Repl. Vol.) (“RP”) § 12-205(a) and for an alleged unconstitutional taking. Under RP § 12- 205(a), “[w]henever a program or project undertaken by a displacing agency will result in the displacement of any person, the displacing agency shall make a payment to the displaced person, on proper application as approved by the displacing agency for[,]” among other things, the “[a]ctual reasonable expenses” of moving and searching for a replacement business, and for “[a]ctual direct loss of tangible personal property as a result of moving or discontinuing a business[.]” Whether a person is entitled to moving and relocation expenses under RP § 12-205(a) depends on whether the person is a “displaced person,” as defined in RP § 12-201(e). To state the obvious, if a person is not a “displaced person,” as that term is statutorily defined, then the person seeking compensation is not entitled to moving and relocation expenses under RP § 12-205(a).

RP § 12-201(e) defines a “displaced person” as follows:

(1) “Displaced person” means:

(i) Any person who moves from real property, or moves his [or her] personal property from real property:

1. As a direct result of a written notice of intent to acquire or the acquisition of such real property in whole or in part by a displacing agency; or

2. On which that person is a residential tenant or conducts a small business, a farm operation, or a nonprofit organization, in any case in which the head of the displacing agency determines that displacement is permanent, as a direct result of rehabilitation, demolition, or other displacing activity as the lead agency may prescribe, undertaken by a displacing agency; and ***

(2) “Displaced person” does not include:

(i) Except to the extent that this exclusion conflicts with federal financial participation requirements, any person who, on the open market, without threat of condemnation, sells his [or her] real property to a displacing agency;

(ii) Unlawful occupants, or anyone occupying such dwelling for the purpose of obtaining assistance under this subtitle; or

(iii) A person who leases from the displacing agency after the displacing agency takes title to the real property, or any person other than a person who was an occupant of such property at the time it was acquired who occupies the property on a rental basis for a short term or period subject to termination when the property is needed for the program or project.

In this case, Baltimore City has owned and operated the market since 1847. From 2004 to February 2017, the tenant leased space in the market; as of 2016, the tenant’s lease was on a month-to-month basis. In late 2016, a rental agent for the market advised the tenant that its business did not “fit in the [redevelopment] plans” for the market and that it “should pursue other options[.]” In February 2017, the tenant vacated the market. In June 2017, the tenant sued, seeking compensation for moving and relocation expenses as a displaced person and for an alleged unconstitutional taking. The defendants filed a motion to dismiss, which the trial court granted, concluding that the former tenant did not qualify as a “displaced person” because of the exemption in RP § 12-201(e)(2)(iii). The Court of Special Appeals affirmed the trial court’s judgment, agreeing that the exemption in RP § 12-201(e)(2)(iii) applies and that the former tenant was not a “displaced person.” Against this backdrop, we must decide whether the former tenant is a “displaced person,” as that term is defined in RP § 12-201(e)(1)(i), whether the exemption in RP § 12-201(e)(2)(iii) applies, and whether the tenant has stated a claim for an unconstitutional taking.

We hold that the former tenant is not a “displaced person,” as that term is defined in RP § 12-201(e)(1)(i), because it voluntarily terminated its lease and abandoned its stall at the market before action by the defendants to terminate the lease and before any redevelopment occurred. The former tenant left its stall at the market on its own accord before any action to terminate the lease, other than the advisement that it would “not fit in the [redevelopment] plans” for the market and that it should pursue other options. Thus, the former tenant does not qualify as a “displaced person” under the plain language of RP § 12-201(e)(1)(i), and it was not entitled to moving and relocation expenses under RP § 12-205(a). In addition to concluding that the former tenant is not a “displaced person” under the plain language of RP § 12-201(e)(1)(i), we hold that the tenant is not a “displaced person” because it “lease[d] from the displacing agency after the displacing agency [took] title to the real property[.]” RP § 12-201(e)(2)(iii). Applying the plain and unambiguous language of RP § 12-201(e)(2)(iii)—that a person who leases from a displacing agency after the displacing agency takes title to the real property is not a displaced person— inescapably leads to the conclusion that the tenant is not a displaced person, as it undisputedly entered into its lease well after the displacing agency took title to the market. Although unnecessary to resort to a review of the legislative history, our holding concerning the plain language of RP § 12-201(e)(2)(iii) is fully supported by the legislative history, and the legislative history does not compel a contrary interpretation. As such, we hold that the tenant was not wrongfully denied moving and relocation expenses, and there was no unconstitutional taking. Accordingly, we affirm the Court of Special Appeals’s judgment.

BACKGROUND

In 1847, the Cross Street Market (“the Market”) was established in Baltimore City. At all times since 1847, the Mayor and Council of Baltimore City (“the City”), Respondent, has owned and operated the Market. In 1994, the City established the Baltimore Public Markets Corporation (“the Markets Corporation”), Respondent, to assist with the regulation, control, and maintenance of the Market and other public markets in Baltimore City. In 2004, Wireless One, Inc. (“Wireless One”), Petitioner, began leasing a stall in the Market from the City.^[1] Wireless One’s business consisted of leasing cell phones and related equipment, such as chargers. As of 2016, Wireless One’s lease was a month-to- month lease.

On November 9, 2016, through the Markets Corporation, the City entered into a management agreement with CSM Ventures, LLC (“CSM”), a subsidiary of Caves Valley Partners (“Caves”), to operate and redevelop the Market. The management agreement authorized CSM to lease portions of the Market and terminate existing tenancies. Under the management agreement, the Markets Corporation was required to pay CSM $2 million to redevelop and operate the Market.

It is undisputed that, in late 2016, Wireless One was advised that it would not fit into the plans for the redeveloped Market, and that it should pursue other options. On December 21, 2016, on behalf of CSM and Caves, a representative sent an e-mail message to Wireless One and other Market tenants concerning the redevelopment of the Market. In the e-mail, the representative stated, in pertinent part:

[O]n January 9th, most of you will receive a Letter of Intent, along with current draft space plans for the new [M]arket, for your review and consideration as prospective tenants. There are a very limited number of tenants who we know will not fit in the plans. Those tenants have been informed that they should pursue other options going forward. . . .

At the merchants[’] meeting last month, Arsh Mirmiran from CSM [] promised that the current [M]arket would continue to operate until at least April 1, 2017. I would like to reiterate that and let you know that it will likely continue for a bit longer than that. Once we know an official date, we will let you all know.

***

Regardless of whether or not we are able to reach agreement for you to be part of the redeveloped [M]arket, we will work with you and the [] Markets Corporation to provide options for temporary and/or permanent relocation spaces. These spaces would be in either Lexington Market or Hollins Market, both of which are going to be refreshed, as well. The Markets Corp[oration] has confirmed that there is adequate space to accommodate all current tenants of [the] Market, should you so choose. If neither of those options is of interest, I can work directly with you to find you space closer to Cross Street, either in currently vacant storefronts or in existing spaces that may become available.

***

As I mentioned, please let me know if you’d like any additional information. All of this is still a work in progress and we don’t have all the answers yet, but we are methodically getting there and we appreciate your continued interest and patience.

According to an affidavit from Arsh Mirmiran, a partner at Caves, on or around January 24, 2017, a Wireless One representative requested to terminate Wireless One’s month-to-month lease and to vacate the stall at the Market by February 1, 2017, with the agreement that Wireless One would not be billed for February 2017 rent. Mirmiran averred that management agreed with Wireless One’s request. On February 8, 2017, Wireless One vacated the Market. At that time, Wireless One removed all of its inventory, but left the physical stall, including counters and storage shelves, which were affixed to the stall and unable to be removed.

Circuit Court Proceedings

On June 2, 2017, in the Circuit Court for Baltimore City, Wireless One filed a complaint against Respondents, alleging that it was a “displaced person,” as defined by RP § 12-201(e)(1), that Respondents were displacing agencies as defined by RP § 12-201(f), and that it was entitled to moving and relocation expenses under RP § 12-205(a). Wireless One also alleged that there had been an unconstitutional taking of its property without compensation, in violation of the United States and Maryland Constitutions. As to the circumstances surrounding its vacating of the Market, in the complaint, Wireless One alleged that it “was informed that it would not fit in the plans for the redeveloped [M]arket and that it should pursue other options[,]” and that it “vacated the [M]arket on February 8, 2017.” Wireless One alleged that “[i]t removed the cell[ ]phone inventory but left the physical stall consisting of counters, storage shelves, etc., since they were built in and not able to be moved.”

On July 11, 2017, Respondents filed a motion to dismiss, or, in the alternative, for summary judgment, arguing, among other things, that Wireless One was not a “displaced person” because Wireless One terminated its lease voluntarily and because of the exemption in RP § 12-201(e)(2)(iii), and that there was no taking. Respondents contended that Wireless One did not meet the definition of a “displaced person” under RP § 12- 201(e)(1) because Wireless One “walked away from its month-to-month lease voluntarily.” According to Respondents, although Wireless One “may have been informed that it would not fit into some future plans for a new, redesigned [M]arket [], the threat of redevelopment alone [was] not sufficient for [Wireless One] to be considered a displaced person that [was] entitled to moving and relocation expenses.” (Citation omitted). Respondents argued that Wireless One had failed to allege that rehabilitation had occurred or been undertaken, that Respondents had “made any sort of effort to evict [Wireless One] from the Market in pursuit of [] renovation[,]” or that there had been written notice of an intent to acquire or acquisition of the real property. Respondents asserted that, moreover, Wireless One was “exempt from the definition of ‘displaced person’” under RP § 12-201(e)(2)(iii) because it leased the stall in the Market after the City acquired title to the Market. Respondents attached as an exhibit to the motion Mirmiran’s affidavit, dated July 6, 2017, in which he averred, in pertinent part:

[] On or around January 24, 2017, a representative from Wireless One[] contacted representatives of management and requested to terminate the month-to-month lease and vacate the stall by February 1, 2017, with the agreement that they would not be billed for February rent.

[] Management agreed, and Wireless One[] voluntarily vacated the premises in February 2017.

[] CSM [] did not terminate Wireless One’s lease, nor did it notify Wireless One[] that it had to leave by a date certain.

[] While CSM [] eventually plans to renovate [the] Market, it has not yet begun to do so, nor has it terminated the leases of any tenants in pursuit of this project; in fact, all remaining tenants were offered, and agreed to, lease renewals through September 5, 2017. Wireless One[] was not offered this lease renewal because it had already vacated the [M]arket at that time.

[] While the items left behind by Wireless One[] are fixtures, it is welcome to return and remove the items. CSM [] has no plans to utilize the fixtures for the public use.

On September 11, 2017, the circuit court conducted a hearing on the motion and heard argument from the parties. On the same day, the circuit court issued an order granting the motion and dismissing the complaint. In the order, the circuit court explained that it agreed with Respondents’ argument that the exemption in RP § 12-201(e)(2)(iii) applied, stating:

In the instant case, it is undisputed that the Market was established by [the] City in 1847, and has been owned and operated by [the] City since its inception. [Wireless One] cannot overcome the plain language of [RP] § 12- 201(e)(2)(iii), which specifically exempts “[a] person who leases from the displacing agency after the displacing agency takes title to the real property.” [Wireless One]’s lease was executed in 2004, many years after [the] City acquired title to the Market. Additionally, the Management Agreement between [the] City and Caves [] did not transfer title to the Market; rather, the Management Agreement merely gave Caves [] the ability to operate, manage, and redevelop the Market. Thus, [Wireless One] has failed to state a claim for relocation and moving expenses pursuant to [RP] § 12-20[5(a)]. (Emphasis and some alterations in original). The circuit court also ruled that “no taking ha[d] occurred” because Wireless One was “not within the class of persons entitled to relief under [RP] § 12-20[5(a)].” The circuit court rejected Wireless One’s argument that there was a taking because its fixtures became valueless, explaining that Mirmiran averred that Wireless One was “welcome to return and remove the items[,]” and that, “[i]t [was] quite clear, then, that [Wireless One] abandoned its property affixed to the Market.” 2

On September 20, 2017, Wireless One filed a motion to alter or amend, which the circuit court denied.

Appellate Proceedings

Wireless One appealed.^[3] On December 21, 2018, in a reported opinion, the Court of Special Appeals affirmed the circuit court’s judgment.^[4] See Wireless One, Inc. v. Mayor and City Council of Baltimore City, 239 Md. App. 687, 689, 198 A.3d 892, 893 (2018). The Court of Special Appeals quoted with approval the circuit court’s reasoning that the exemption in RP § 12-201(e)(2)(iii) applied, holding: “We agree with the [circuit] court’s analysis.” Wireless One, 239 Md. App. at 695, 198 A.3d at 896-97 (footnote omitted). The Court of Special Appeals also determined that, because “the City did not wrongfully deny Wireless [One] moving and relocation expenses, . . . the [circuit] court did not err in ruling that Wireless [One] ‘ha[d] failed to state a claim for an unconstitutional taking.’” Id. at 696, 198 A.3d at 897.

On December 27, 2018, Wireless One petitioned for a writ of certiorari, raising the following two issues:

[1.] Under [RP §] 12-201[(e)](1)(i)(2), is a person who leaves a publicly funded facility as a result of demolition or rehabilitation excluded from relocation benefits if it leased after the unit of government acquired title to the real property?

[2.] Has Wireless [One] stated a claim for an unconstitutional taking? On February 4, 2019, this Court granted the petition. See Wireless One v. Mayor and City Council of Baltimore, 462 Md. 556, 201 A.3d 1228 (2019).

On May 2, 2019, this Court heard oral argument in the case. At oral argument, questions arose concerning the statutory construction and legislative history of RP §§ 12- 201 and 12-205. On May 3, 2019, this Court issued an order authorizing the Attorney I had to leave.” The City’s reliance on alleged facts outside of the allegations of the complaint meant that the City was seeking, as its motion stated, summary judgment on this ground.^[2] See also Maryland Rule 2-322(c).

In its ruling in this case, the Circuit Court acknowledged the City’s argument on this ground, but did not grant summary judgment for that reason. Instead, it dismissed the complaint on a different ground, to be discussed in greater detail below. Under the longstanding view of this Court, an appellate court ordinarily will not approve a grant of summary judgment on a ground different from that of the Circuit Court. See, e.g., Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598-99 (2013); Henley v. Prince George’s County, 305 Md. 320, 333 (1986). Here, the Circuit Court never addressed the merits of this argument, much less determined whether the relevant facts were undisputed such that summary judgment was even feasible. If we think there might be merit in granting judgment on this ground, we should remand for the Circuit Court to consider it in the first instance.

Holding Based on Exclusion in RP §12-201(e)(2)(iii)

Second, the Majority Opinion holds that, pursuant to RP §12-201(e)(2)(iii), Wireless One is not a “displaced person” for purposes of the statute because the City acquired title to the Market before it entered into a lease in 2004 with Wireless One.

2 The Majority Opinion suggests that the affidavit submitted by the City was addressed to the issue of whether there was an unconstitutional taking. Majority slip op. at 25-26 & n.6. In fact, most of that affidavit, as well as the opposing affidavit of the owner of Wireless One, was directly addressed to whether the business had voluntarily departed from the Market – a key question for purposes of the City’s argument under RP §12- 201(e)(1).

Majority slip op. at 25-47. This was the basis for the Circuit Court’s judgment in this case and thus is properly before us for consideration. The City argued, and the Majority Opinion now agrees, that Wireless One is not entitled to relocation assistance – essentially because its tenancy began after 1847. In so ruling, the Majority Opinion relies heavily on the purported plain meaning of the text of the statute. Wireless One counters that it is entitled to relocation assistance under the statute because a contrary reading would render RP §12- 201(e)(2)(iii) inconsistent with a federal statute concerning relocation assistance – i.e., 42 U.S.C. §4601(6)(B)(ii).

The State was invited by the Court to submit an amicus brief in light of the fact that RP §12-201 et seq. concerns not only relocation assistance provided by the City but also that provided by the State and other local governments.^[3] The State provided an extensive analysis of the statute and its legislative history, which neither party had previously addressed in their briefs. Based on that analysis, the State reached a different conclusion than the City as to the breadth of the exclusion in RP §12-201(e)(2)(iii).

In my view, the Majority Opinion’s analysis of RP §12-201(e)(2)(iii) is flawed. For the reasons explained below, I believe that the State’s construction of the statute is more reasonable and consistent with the text and its history.

Origin of the Maryland Relocation Expenses Act

The City concedes that Wireless One would be entitled to relocation benefits under a federal statute known as the Uniform Relocation Assistance and Real Property

3 See Maryland Constitution, Article V, §6 (Attorney General to be notified immediately of any case “in which the State … has interest”).

Acquisition Policy Act of 1970, codified as amended at 42 U.S.C. §4601 et seq., if federal funds were involved in the redevelopment of the Market. But it argues that Wireless One is not entitled to those benefits under the State statute. However, as the history of the Maryland statute demonstrates, it was enacted to adopt the same standards as the federal statute and related regulations. See Nicole Stelle Garnett, The Neglected Political Economy of Eminent Domain, 105 Mich. L. Rev. 101, 121-24 & n.130 (2006) (noting that the Maryland statute was intended to mirror the federal statute). The intertwined history of the federal and State statutes is instructive.

In 1971, in an effort to standardize federal law concerning relocation assistance, Congress enacted the Uniform Relocation Assistance Act, Pub. L. No. 91-646. See Alexander v. United States Department of Housing & Urban Development, 441 U.S. 39,

49 (1979). Included in that statute was a provision that conditioned certain federal financial assistance on a state providing relocation assistance to persons displaced by government programs or projects to the same extent as federal law. Pub. L. No. 91-646, §210.

In response to the federal law, the Maryland General Assembly enacted the Maryland Relocation Expenses Act. Chapter 628, Laws of Maryland 1971, now codified at RP §12-201 et seq. In the preamble to that law, the General Assembly specifically cited the federal statute and the need to ensure that “State relocation assistance legislation must conform to the requirements” of that statute. The preamble further declared the Legislature’s “intent to establish a uniform policy for the fair and equitable treatment” of displaced persons. The law also contained a provision that directed agencies and local governments covered by the law to prescribe rules, regulations, and procedures consistent with both the State statute and the federal statute – a provision that remains in the statute today. See RP §12-210; see also Maryland Code, Transportation Article, §8-501 et seq. (stating General Assembly’s intent that State agencies and political subdivisions comply with the federal Uniform Relocation Assistance Act and “any rule or regulation adopted under” that Act).

The initial iteration of the federal Uniform Relocation Assistance Act had concerned persons displaced by the governmental acquisition of property. In 1987, Congress expanded the Act to include persons displaced by the rehabilitation or demolition of property with federal funding. Pub. L. No. 100-17, §402. The statute excluded certain categories of persons from those benefits, such as persons who occupied the property for the purpose of obtaining benefits under the statute. See 42 U.S.C. §4601(6)(B)(i). There is also an exclusion, in cases involving the acquisition of property, for persons who are not occupants at the time of acquisition. See 42 U.S.C. §4601(6)(B)(ii). Again, federal funding was made contingent on a state enacting an analogous state-law provision. Congress established a deadline of April 2, 1989 for states to comply.

The legislative history of the 1987 amendments indicates that Congress intended “that state laws achieve the purpose and effect of the Act, particularly with respect to the definition of displaced person.” House Conf. Rep. No. 100-27, at 250 (reprinted in 1987 U.S.C.C.A.N., v.2, at 234). The implementing regulations emphasized that the purpose of the new rules was “[t]o ensure that persons displaced as a direct result of Federal or federally-assisted projects are treated fairly, consistently, and equitably so that such displaced persons will not suffer disproportionate injuries as a result of projects designed for the benefit of the public as a whole.” 49 CFR 24.1(b). Federal funding is conditioned on state compliance with these provisions. 49 CFR 24.4(a)(1).

Maryland again responded to the incentive provided in the federal law. An inter- agency task force was established in 1987 at the direction of the Governor, which resulted in the introduction of House Bill 720 at the 1989 session of the General Assembly. The purpose paragraph of that bill recited that it was intended to revise State laws on relocation assistance and “adopt[] federal requirements relating to uniform policies and procedures for relocation assistance when permanent displacement occurs as a result of land acquisition, demolition, rehabilitation, and other activities.”

It is clear throughout the bill file for House Bill 720 that compliance with the federal standards, including with respect to the definition of “displaced person,” was the catalyst for the legislation. An analysis of House Bill 720 in the bill file notes that “several definitions [in RP §12-201] are being amended or revised to be consistent with those used in the federal legislation,” and “the definition of ‘displaced person’ is being expanded and modified to include permanent displacement resulting from rehabilitation and demolition and certain additional eligibilities for small businesses, farms and residential tenants.”

The fiscal note for the bill stated that the legislation’s purpose was to make Maryland law compliant with federal regulations. Representatives of State agencies and local governments affected by the bill expressed the same understanding of the legislation. See, e.g., Memorandum from the Maryland Association of Counties concerning House Bill 720 to the Senate Judicial Proceedings Committee (March 29, 1989) (“this emergency piece of legislation is necessary to place the State in compliance with federal regulations pertaining to relocation assistance.”); Letter from the Administrator of the Maryland State Highway Administration to the Chairman of the Senate Judicial Proceedings Committee concerning House Bill 720 (March 28, 1989) (asking for bill’s passage to be expedited to bring Maryland “into compliance with a federal mandate[.]”). Nothing in the bill file suggests any intention to deviate from the federal standards in any respect.

The General Assembly enacted House Bill 720 on an emergency basis with an effective date of April 4, 1989. Chapter 10, Laws of Maryland 1989. That law amended the definition of “displaced person” and included the language that now appears in RP §12- 201(e)(2)(iii).

Construing RP §12-201(e)(2)(iii) Consistently with the Federal Statute

In holding that the slightly different language of the Maryland statute signals a significant departure from the federal statute on which it was based, the Majority Opinion asserts that “the plain meaning of the language of the statute is obvious” and that it “could not be clearer.” Majority slip. op. at 26-27, 29, 34. However, the key provision of the statute pertinent to this case seems to contain at least some ambiguity. It states:

“Displaced person” does not include:

A person who leases from the displacing agency after the displacing agency takes title to the real property, or any person other than a person who was an occupant of such property at the time it was acquired who occupies the property on a rental basis for a short term or period subject to termination when the property is needed for the program or project. RP §12-201(e)(2)(iii). As is evident, the phrase “displacing agency” appears twice in this provision. The statute elsewhere defines a “displacing agency” as “any public or private person carrying out: (1) a program or project with federal financial assistance; (2) a public works program or project with State financial assistance; or (3) acquisition by eminent domain or negotiation.” RP §12-201(f). Notable in this definition is the use of present participle. The phrases “displacing agency” and “carrying out” both denote an actor currently effecting a displacement. Under this reading, Baltimore City did not become a “displacing agency” until it commenced the effort to rehabilitate the Market – a time at which Wireless One was already a tenant. In other words, a displaced cellphone business need not have had a market stall in 1847 to even be eligible for relocation assistance.

The Majority Opinion argues that such an interpretation reads words into the statute that do not exist, claiming “nothing in the plain language of RP § 12-201(f) includes a temporal element.” Majority slip op. at 33. This is true only if one ignores the repeated use of the present participle in the sentence (“displacing agency” and “carrying out”). It is theoretically possible, on the face of the statute, that the Majority Opinion’s interpretation could be correct and that an agency that acquired its property decades ago would never be liable for relocation assistance. But this is not unambiguously clear from the text of the statute.

There is a more significant issue with the Majority Opinion’s reading of the first clause of the provision (“A person who leases from the displacing agency after the displacing agency takes title to the real property”). If it means that no person who leases property from the government (after the government takes title to the property) can be eligible for relocation expenses, then very few tenants will be eligible for relocation expenses under Maryland law. Moreover, such a reading of the first clause renders superfluous the second clause of the provision (“or any person other than a person who was an occupant of such property at the time it was acquired …”). This Court has long explained that “whenever possible, the statute should be read so that no word, sentence, clause or phrase is rendered superfluous or nugatory.” See Whiting-Turner Contracting Co. v. Fitzpatrick, 366 Md. 295, 302 (2001).

There is a different reasonable reading of the first clause. Large public works projects often suffer from time lags and delays for numerous reasons, including litigation. This means that existing facilities may continue to operate without change for months or years before a rehabilitation or demolition project begins (as has been the case with the Market project). As a result, someone might try to game the system by leasing a property after an agency acquires title for a project and then, even though fully on notice about the timeline of the project, demand compensation when the rehabilitation or demolition project eventually commences. The first clause of RP §12-201(e)(2)(iii) can be read as simply discouraging such behavior and thereby fulfilling the same function as 42 U.S.C. §4601(6)(B).

In my view, this narrower reading of the first clause makes more sense. Importantly, it addresses a real concern without being overbroad, in a way that is completely consistent with the federal statute and regulations. The standards included in the federal statute were intended to counteract the “‘violent unfairness’ of tenants’ forced displacement” by government projects and the “substantial financial hardship” suffered by individuals displaced from their residences. Garnett, supra, 105 Mich. L. Rev. at 107, 121-23. The standards of the federal Uniform Relocation Assistance Act apply, with some exceptions,

- 10 - to public housing programs of the federal Department of Housing and Urban Development. See https://perma.cc/GK8C-EDD3. There is no blanket exclusion under that law simply because a housing agency had title to a property before a tenant moved in. Under the Majority Opinion’s interpretation of the State statute, similar relocation assistance would not be available under the State statute on the happenstance that an agency owned a residential property before a tenancy began, even if the displacement occurred years or decades hence. As this Court has frequently said, “[o]ur interpretation should avoid illogical, absurd, or anomalous results.” Blackburn Ltd. Partnership v. Paul, 438 Md. 100, 122 (2014).

At the very least, the language of the exclusion from the definition of displaced person is ambiguous and that text should be considered in light of the legislative history of the statute and the parallel federal exclusion. As outlined above, the legislative history of the 1989 amendment that resulted in this language is quite clear on the Legislature’s intent. Accordingly, I would not decide this case on an interpretation of a particular “plain meaning” of RP §12-201(e)(2)(iii) that happens to be contrary to that intent.

Chief Judge Barbera has advised that she joins this opinion.

- 11 - WIRELESS ONE, INC. * IN THE * COURT OF APPEALS Petitioner * OF MARYLAND v. * No. 70 MAYOR AND CITY COUNCIL OF * September Term, 2018 BALTIMORE, ET AL. Respondents ORDER The Court having considered Wireless One, Inc.’s Motion for Reconsideration filed in the above-captioned case, it is this 30th day of September, 2019, ORDERED, by the Court of Appeals of Maryland, a majority of the Court concurring, that the Motion for Reconsideration be, and is hereby, DENIED; and it is further ORDERED, that footnote 7 on pages 30 and 31 is hereby deleted from the opinion as it was originally filed in the above-captioned case on August 23, 2019. /s/ Mary Ellen Barbera Chief Judge