Litz v. Maryland Department of the Environment , 446 Md. 254 ( 2016 )

Gail B. Litz v. Maryland Department of the
Environment, et al., No. 23, September Term,
2015. Opinion by Harrell, J.
EMINENT DOMAIN – INVERSE CONDEMNATION
“Inverse condemnation” is a shorthand description of an action by which a landowner
seeks just compensation for a taking of his or her property in the absence of formal
condemnation proceedings. See Coll. Bowl, Inc. v. Mayor & City Council Of Baltimore,
394 Md. 482, 489, 907 A.2d 153, 157 (2006). It is possible for a plaintiff to state a claim
for inverse condemnation by pleading governmental inaction in the face of an affirmative
duty to act.
EMINENT DOMAIN – INVERSE CONDEMNATION – MARYLAND AND
LOCAL GOVERNMENT TORT CLAIMS ACTS
Inverse condemnation is a constitutional claim requiring just compensation as a remedy.
It is not covered under the Local Government Tort Claims or Maryland Tort Claims Acts.
Similar to the eminent domain provisions under the Fifth and Fourteenth Amendments to
the United States Constitution, Article III, section 40 of the Maryland Constitution does
not provide sovereign immunity to state or local governments for an unconstitutional
taking.
TORTS – TRESPASS – LOCAL GOVERNMENT TORT CLAIMS ACT
Trespass is a tort covered by the Local Government Tort Claims Act and subject to the
LGTCA’s notice requirements.
Circuit Court for Caroline County
Case No. 05-C-10-013616
Argued: November 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 23
SEPTEMBER TERM, 2015
GAIL B. LITZ
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT, et al.,
Barbera, C.J.,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
Harrell, Glenn T., Jr. (Retired, Specially
Assigned),
JJ.
Opinion by Harrell, J.
Battaglia, McDonald and Watts, JJ.,
concur and dissent.
Filed: January 22, 2016
“The nine most terrifying words in the English language are,
‘I’m from the government and I’m here to help.’”
-Ronald Reagan, 40th President of the United States,
News Conference (12 August 1986).
Petitioner, Gail B. Litz, might have welcomed hearing those nine words spoken to
her, but, according to her Third Amended Complaint, they were not forthcoming. In this
litigation, Ms. Litz makes a second appearance before this Court regarding a parcel of
real property (containing a lake) in Caroline County, Maryland, that was contaminated
allegedly by run-off from failed septic systems serving homes and businesses in the
Town of Goldsboro. The human sewage seeped out of the septic fields into ground and
surface water flowing into drainage swales, which drained into streams flowing into Ms.
Litz’s lake. Ms. Litz operated a popular lake-front recreational campground on her
property in Goldsboro. Unable to operate the campground because of the pollution to her
lake, Ms. Litz lost the property through foreclosure by the bank holding the mortgage.
She filed a complaint in the Circuit Court for Caroline County. After two prior
trips to the Court of Special Appeals and one to this Court, Ms. Litz’s remaining claims
against Respondents, the State of Maryland, the Maryland Department of the
Environment (“MDE”), the Department of Health and Mental Hygiene (in the guise of
the Caroline County Health Department) (collectively referred to in this opinion
sometimes as the “State” or the “State Respondents”), and the Town of Goldsboro, the
case reaches us for the second time regarding her claims of inverse condemnation against
all Respondents and trespass against the Town. We issued a writ of certiorari to consider
questions regarding Ms. Litz’s relative success in stating these claims and the
applicability of the Local Government Tort Claims Act and the Maryland Tort Claims
Act. After determining in our first encounter with this litigation that Ms. Litz filed suit
within applicable statutes of limitations, we hold now that, at the preliminary motion
stage of the litigation, Ms. Litz provided sufficient factual averments to state claims for
inverse condemnation against Respondents.1
ALLEGATIONS IN THE THIRD AMENDED COMPLAINT2
The 140 acre Litz property is located in the Town of Goldsboro in Caroline
County, Maryland. When Ms. Litz’s parents purchased the property in 1948, it contained
a pond and grist mill. The Litz family constructed a dam in the mid-1950s to create
originally a 28-acre lake, known as “Lake Bonnie,” to assist with irrigation of the fields.
The Litz family opened also a recreational campground business on the property, which
had campsites, swimming, fishing, and boating – centered around Lake Bonnie. Ms. Litz
inherited the property in 2001 and became the owner of the campground business. It was
her “intention and expectation that she would continue to own and operate the
Campground as her primary occupation and source of income.”
1
The issue of whether Ms. Litz stated adequately a claim for trespass against the
Town is not at issue before this Court. The issue was raised only in the Town of
Goldsboro’s Petition for a Writ of Certiorari, which this Court denied.
2
Our recitation of the “facts” (and reasonable inferences drawn therefrom
favorable to Ms. Litz) come purely from Ms. Litz’s Third Amended Complaint. We will
focus exclusively on those allegations that relate to the questions for which we granted
certiorari.
2
Lake Bonnie “receives its water from two local streams, the Oldtown Branch and
the Broadway Branch, and [the lake] discharges a constant overflow of water [through a
spillway] directly into the Choptank River,” a tributary of the Chesapeake Bay. Because
Goldsboro was a small town3, there was no public water or sewer service available. The
residents and businesses in the Town relied on individual wells and septic systems. Both
of the local streams receive groundwater and surface water from roads maintained by the
Maryland State Highway Administration and flow into Lake Bonnie. Two local drainage
associations4 were created along these streams. The municipal surface water open
drainage collection system flows also into the streams and ultimately into Lake Bonnie.
As time passed, the septic systems within the Town began to fail, the septic fields
overflowed into the open drainage system, and contaminated the two streams, which led
to the contamination of Lake Bonnie. Following failed attempts to fix the problem in the
1970s, the Caroline County Health Department conducted studies in the 1980s.5 A study
conducted in 1985 by Lester A. Coble, Jr., then Director of the Caroline County
3
According to the Third Amended Complaint, the population of Goldsboro in
2000, was 216 people.
4
Drainage associations “are networks of drainage ditches that drain the local
fields, and are funded by a mixture of federal, state, and local money. The PDAs have
also been informally used as storm water drainage systems for the Town, and have been
used to remove waste water from the Town.”
5
According to Ms. Litz’s allegations, the Caroline County Health Department, a
State agency for present purposes, “had the legal responsibility to review applications for
septic systems, where appropriate issue permits for septic systems, and conduct
inspections of the septic systems.”
3
Department of Health, “found that between 70% and 80% of the Town had at least one of
the three following problems: (1) confirmed sewage pits; (2) raw sewage or waste water;
or (3) shallow wells less than one hundred feet or deep wells less than fifty feet from a
source of contamination.”
By 1988, the Caroline County Health Department reported to the Maryland
Department of the Environment that the shallow wells tested in Goldsboro contained
“elevated levels of fecal coliform,” i.e., pathogens found in human bodily waste. On 18
September 1995, the Caroline County Health Department concluded that the “use of the
stormwater management system in the Town as a sewage system has gotten to crisis
proportions.” A 1 December 1995 letter from the Maryland Department of the
Environment stated that “[t]here are actual water quality impacts on Lake Bonnie. . . It
now appears that the situation has deteriorated and created environmental concerns that
will need to be addressed.”
On 8 August 1996, MDE and Goldsboro’s then-Mayor William H. Bartin signed
an administrative consent order which “explain[ed] the problems, order[ed] Goldsboro to
take certain actions, impose[d] mandatory reporting obligations and specifie[d] penalties
for non-compliance.” Some of the specific requirements of the agreement between MDE
and Goldsboro included:
1. Within 60 days . . . (Goldsboro will) identify the private sewage disposal
systems located in and around Goldsboro which are discharging pollutants
to surface or ground water . . .
2. By October 30, 1996, complete a study to identify and characterize the
construction of a public sewer system. . .
4
3. By January 1, 1997, submit (to MDE) for review and approval a plan and
schedule. . . for construction of a public sewer system (the “Compliance
Plan”)
4. Within 30 days of approval of the Compliance Plan, begin
implementation of the Compliance Plan.
Meeting the timetable and remedies contemplated by this Consent Order did not come to
pass.
In 2004, the Caroline County Health Department issued warnings to multiple
towns, including Goldsboro, about issuing additional building permits for areas with
water and sewage concerns. Even with these warnings, “the Town has failed to comply
with any of the material terms of the Consent Order and MDE has enforced no part of it.”
Because Lake Bonnie was being polluted continually by the pollutants in the water
flowing through the drainage system into the Oldtown Branch and the Broadway Branch
and then into Lake Bonnie, Ms. Litz alleges that “the campground has been destroyed,
and Litz’s property has been substantially devalued,” which left her “unable to pay the
mortgage on the Litz property because the campground was generating no income.” A
foreclosure action resulted and the property was sold to Provident State Bank on 14 May
2010 for $364,000.
PROCEDURAL HISTORY
Ms. Litz’s original complaint, filed on 8 March 2010, sought a permanent
injunction and alleged negligence, trespass, private and public nuisance, and inverse
condemnation against the Town of Goldsboro and Caroline County (the Health
5
Department6) and negligence and inverse condemnation against MDE. An amendment
later added a count for mandamus or equitable relief under the Environmental Standing
Act. Ms. Litz’s second amended complaint added the Department of Health and Mental
Hygiene (“DHMH”) and the State of Maryland as defendants, seeking a permanent
injunction and alleging negligence, trespass, private and public nuisance, and inverse
condemnation against the newly added defendants.
On 13 September 2010, a hearing was conducted in the Circuit Court on motions
to dismiss (based on a host of defenses, including applicable statutes of limitation) filed
by MDE, DHMH, the State, the County, and Goldsboro. The Circuit Court granted the
motions to dismiss as to all defendants7, save the Town, reserving ruling as to the Town
to allow for a response to be filed. On 22 September 2010, Ms. Litz filed a Motion for
Reconsideration in the Circuit Court and, a few days later, filed her opposition to
Goldsboro’s Motion to Dismiss. On the same day, Ms. Litz filed her Third Amended
Complaint, which added some factual allegations, but stated no additional claims.
The trial judge denied Ms. Litz’s Motion for Reconsideration and dismissed her
claims against all of the defendants, with prejudice and without leave to amend. Ms. Litz
6
“[A]ny claim against the County would be against the County Health
Department, which was for the purposes of the present case a State agency.” Litz v.
Maryland Dep’t of Env’t, 434 Md. 623, 634, 76 A.3d 1076, 1082 (2013) (hereinafter
“Litz I”).
7
On the record, the Circuit Court “dismissed all counts against the State
defendants on the ground that the State was protected by sovereign immunity and [Ms.]
Litz failed to comply with the requirements of the Maryland Tort Claims Act.” Litz I,
434 Md. at 634, 76 A.3d at 1082.
6
appealed to the Court of Special Appeals8, which affirmed, in an unreported opinion, the
Circuit Court’s dismissal based on its narrow conclusion that Ms. Litz’s claims were
barred by the relevant statutes of limitation.
We granted Ms. Litz’s first Petition for Certiorari, Litz v. Maryland Dep’t of Env’t,
429 Md. 81, 54 A.3d 759 (2012). We concluded ultimately that “it was error to affirm
the grant of the motions to dismiss Litz’s causes of action for negligence, trespass, and
inverse condemnation on the grounds of limitations, but we affirm the judgments of the
Circuit Court and the intermediate appellate court in dismissing Litz’s nuisance counts.”
Litz v. Maryland Dep’t of Env’t, 434 Md. 623, 642, 76 A.3d 1076, 1087 (2013)
(hereinafter “Litz I”). We remanded the case to the Court of Special Appeals to conduct a
review of the other arguments advanced by the governmental defendants for why Ms.
Litz’s suit should be dismissed totally.
On remand, the Court of Special Appeals reviewed the legal sufficiency of Ms.
Litz’s remaining tort and inverse condemnation claims, the applicability and satisfaction
of the notice requirements under the Maryland Tort Claims Act (“MTCA”) and Local
Government Tort Claims Act (“LGTCA”), and the defense of governmental immunity.
In an unreported opinion, the intermediate appellate court concluded that Ms. Litz failed
8
In her brief filed with the Court of Special Appeals, Ms. Litz did not appeal the
dismissal of her tort claims (trespass and negligence) against the State or the
Environmental Standing Act claim against the MDE, leaving only the inverse
condemnation claims against these defendants. She appealed the dismissal of her claims
for negligence, nuisance, trespass, and inverse condemnation against the Town.
7
to state an inverse condemnation claim against the State9, reasoning that “[a]t most, MDE
[and the other State entities] can be charged with discretionary inaction, which would not
support a taking claim.” Ultimately, the Court of Special Appeals held “that the circuit
court properly dismissed the State and its agencies from the case,” but that it was “error
to dismiss the negligence, trespass and inverse condemnation claims against the Town.”
At the conclusion of the intermediate appellate court’s second review, Ms. Litz’s
remaining causes of actions included only those three claims against the Town.
Ms. Litz filed her second Petition for Writ of Certiorari with this Court, which we
granted, Litz v. Maryland Dep’t of the Env’t, et al., 442 Md. 515 (2015), to consider four
questions, which we have reordered for organizational convenience:
1) Whether the Court of Special Appeals erred when it held that Petitioner failed
to state a cause of action for inverse condemnation against the State government
Respondents?
2) Whether an inverse condemnation claim comes within the notice requirements
of the Maryland Tort Claims Act and the Local Government Tort Claims Act?
3) Whether the Court of Special Appeals exceeded the scope of this Court’s
remand order when it considered an issue disavowed expressly by Respondents, to
wit, Petitioner’s claim for inverse condemnation against the State government
Respondents was subject to the Maryland Tort Claims Act?10
9
As described previously, the State includes: the State of Maryland, DHMH,
MDE, and the Caroline County Health Department, the latter acting as a State agency for
purposes of this case.
10
In our opinion, Litz I, 434 Md. at 657, 76 A.3d at 1095, we remanded the case to
the Court of Special Appeals for further proceedings: “On remand, the intermediate
appellate court shall have the opportunity to entertain any other arguments properly
before the court.” The question of whether the Court of Special Appeals exceeded the
scope of our remand order was not briefed fully by all sides and we note that, under
(Continued…)
8
4) Whether a trespass claim is covered by the notice requirement of the Local
Government Tort Claims Act?
We conclude that Ms. Litz stated adequately in her Third Amended Complaint a facial
claim for inverse condemnation against Respondents. Moreover, a claim for inverse
condemnation is not covered by the notice provisions of either tort claims act. We agree,
however, with the intermediate appellate court’s holding that the tort of trespass is
covered by the notice requirement of the LGTCA. Thus, we reverse in part and affirm in
part the judgment of the Court of Special Appeals, and remand with instructions to
remand the case to the Circuit Court for Caroline County for further proceedings.
STANDARD OF REVIEW
Because this case was disposed of by the Circuit Court through the grant of
motions to dismiss, pursuant to Maryland Rule 2-322, our review of the sufficiency of the
facts alleged is limited to the four corners of the relevant complaint, the Third Amended
Complaint. We “accept all well-pled facts in the complaint, and reasonable inferences
drawn from them, in a light most favorable to the non-moving party.” Converge Servs.
Grp., LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 878-79 (2004). Thus, dismissal
of a complaint “is proper only if the alleged facts and permissible inferences, so viewed,
(…continued)
Maryland Rule 8-131(a), it is within our discretion to decide an issue not raised below “if
necessary or desirable to guide the trial court or to avoid the expense and delay of another
appeal.” Thus, we will exercise our discretion to decide the issues, which we have
determined are before us properly.
9
would, if proven, nonetheless fail to afford relief to the plaintiff.” Ricketts v. Ricketts,
393 Md. 479, 492, 903 A.2d 857, 864 (2006) (citations omitted). We determine “whether
the trial court was legally correct, examining solely the sufficiency of the pleading.”
Ricketts, 393 Md. at 492, 903 A.2d at 865 (citation omitted).
DISCUSSION
I. Inverse Condemnation
a. Contentions
Ms. Litz contends that she alleged sufficiently a cause of action for inverse
condemnation by alleging that the failure of Respondents to address the pollution and
sewage problems led directly to the substantial devaluing of her property and its ultimate
loss. She highlights this Court’s prior opinion in which we stated that “a reasonable trier
of fact could infer that Litz alleges two distinct takings: 1) the loss of the use and
enjoyment of Lake Bonnie and the Campground; and (2) the foreclosure of her property
in May 2010.” Litz I, 434 Md. at 656, 76 A.3d at 1095. Ms. Litz argues further that these
claims are not covered by the MTCA or the LGTCA because the claims are not torts, but
rather unconstitutional takings. Because unconstitutional takings are pleaded, Ms. Litz
maintains that the State (and its agencies) and the Town should not be able to avail
themselves of the defense of governmental immunity.
The State Respondents posit that the lower courts dismissed properly Ms. Litz’s
inverse condemnation claim against them because her allegations did not reveal any
affirmative act (regulatory or otherwise) by the State which led to a taking. Additionally,
the State Respondents argue that any injury Ms. Litz suffered was the result of acts
10
caused by private third parties, i.e., the property owners in Goldsboro whose septic fields
failed. Because Ms. Litz did not state sufficiently a claim for inverse condemnation, the
State sees the issue of the applicability of the MTCA and the LGTCA as effectively
moot. The Town takes a similar position on this issue, responding that Ms. Litz
complained only that the Town had not enacted any regulation or taken effective action to
stop the contamination caused by private citizens and, therefore, there was no
governmental taking.
b. Sufficiency of the Third Amended Complaint
Article III, Section 40 of the Maryland Constitution provides: “The General
Assembly shall enact no Law authorizing private property, to be taken for public use,
without just compensation, as agreed upon between the parties, or awarded by a Jury,
being first paid or tendered to the party entitled to such compensation.” Section 40 has
been determined to “have the same meaning and effect in reference to an exaction of
property, and that the decisions of the Supreme Court on the Fourteenth Amendment[11]
are practically direct authorities.” Bureau of Mines of Maryland v. George’s Creek Coal
& Land Co., 272 Md. 143, 156, 321 A.2d 748, 755 (1974). Although this constitutional
provision covers specifically eminent domain actions, it also grounds a cause of action
that has come to be known as an inverse condemnation.
11
“No State shall make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
11
An inverse condemnation claim is characterized as “a shorthand description of the
manner in which a landowner recovers just compensation for a taking of his property
when condemnation proceedings have not been instituted.” Coll. Bowl, Inc. v. Mayor &
City Council Of Baltimore, 394 Md. 482, 489, 907 A.2d 153, 157 (2006) (citing United
States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373, 377 (1980)).
Essentially, a plaintiff may “recover the value of property which has been taken in fact by
the governmental defendant, even though no formal exercise of the power of eminent
domain has been attempted by the taking agency.” Coll. Bowl, Inc., 394 Md. at 489, 907
A.2d at 157 (quoting D. Hagman, Urban Planning and Land Development Control Law
328 (1971)). The Supreme Court explains that a government is liable for inverse
condemnation if it “forc[es] some people alone to bear public burdens which, in all
fairness and justice, should be borne by the public as a whole.” Coll. Bowl, Inc., 394 Md.
at 489, 907 A.2d at 157 (citing PruneYard Shopping Center v. Robins, 447 U.S. 74, 83,
100 S.Ct. 2035, 2041, 64 L.Ed.2d 741, 753 (1980)).
To state a claim for inverse condemnation, a plaintiff must allege facts showing
ordinarily that the government action constituted a taking. Defining a “taking” for
purposes of an inverse condemnation claim is a “fact-intensive” inquiry. The Supreme
Court has explained that a plaintiff seeking to state a claim for inverse condemnation
“bears a substantial burden” and must be able to show that “justice and fairness” entitle
him or her to compensation. Eastern Enters. v. Apfel, 524 U.S. 498, 523, 118 S. Ct.
2131, 2146 (1998). Significant factors in the analysis include: “the economic impact of
the regulation, its interference with reasonable investment backed expectations, and the
12
character of the governmental action.” Eastern Enters., 524 U.S. at 523-24, 118 S. Ct. at
2146 (citations omitted). Accordingly, an inverse condemnation claim may arise
ordinarily in multiple ways:
[T]he denial by a governmental agency of access to one’s property,
regulatory actions that effectively deny an owner the physical or
economically viable use of the property, conduct that causes a physical
invasion of the property, hanging a credible and prolonged threat of
condemnation over the property in a way that significantly diminishes its
value, or, closer in point here, conduct that effectively forces an owner to
sell.
Coll. Bowl, Inc., 394 Md. at 489, 907 A.2d at 157.
A difficulty with Ms. Litz’s claim of a “taking” fitting neatly within conventional
thinking about inverse condemnation is that her allegations focus predominantly on the
inaction of Respondents, rather than any affirmative action by those parties. There is no
controlling Maryland law that we could find that sheds light on this wrinkle. Thus, we
look outside our borders for guidance. Upon this review, it seems appropriate (and, in
this case, fair and equitable, at least at the pleading stage of litigation) to recognize an
inverse condemnation claim based on alleged “inaction” when one or more of the
defendants has an affirmative duty to act under the circumstances. Therefore, we hold, as
a matter of Maryland law, that an inverse condemnation claim is pleaded adequately
where a plaintiff alleges a taking caused by a governmental entity’s or entities’ failure to
act, in the face of an affirmative duty to act.
Our survey revealed that, in some states, unalloyed allegations of government
inaction alone may suffice to plead adequately an inverse condemnation claim. For
example, the language of the Minnesota Constitution provides that “[p]rivate property
13
shall not be taken, destroyed or damaged for public use without just compensation
therefor, first paid or secured.” Minn. Const. Art. I, § 13. In application of this
provision, the Minnesota courts follow a standard that “[a]n unconstitutional taking is a
governmental action or inaction that deprives a landowner of all reasonable uses of its
land.” Evenson v. City of St. Paul Bd. of Appeals, 467 N.W.2d 363, 365 (Minn. Ct. App.
1991) (emphasis added).
In contrast, in South Carolina, a plaintiff brought a cause of action against the City
of Greenville alleging that the city “improperly and negligently designed and maintained
its municipal drainage system in the area where his business was located,” which led to
substantial damage to his business and property after heavy rains resulted in flooding.
Hawkins v. City of Greenville, 594 S.E.2d 557, 560 (S.C. Ct. App. 2004). The South
Carolina Court of Appeals concluded that the plaintiff could not state a claim for inverse
condemnation by alleging only “failures to act.” Hawkins, 594 S.E.2d at 562. The
failure to act would not sustain a claim for inverse condemnation because the case law in
South Carolina held: “To establish an inverse condemnation, a plaintiff must show: ‘(1)
an affirmative, positive, aggressive act on the part of the governmental agency; (2) a
taking; (3) the taking is for a public use; and (4) the taking has some degree of
permanence.’” Id. (emphasis added). Of course, the major distinction between the
Minnesota and South Carolina approaches is the specific requirement of the South
Carolina case law requiring an “affirmative” act on the part of the government. This
14
requirement is more specific than found in Maryland case law and, thus, is not persuasive
in our analysis of the present case.12
We find more persuasive cases which sanction a plaintiff advancing an inverse
condemnation claim in the face of government inaction where the governmental agency
had an affirmative duty to act under the particular circumstances. A case from a Florida
District Court found that when a county failed to “reasonably maintain and repair Old
A1A [a county-owned road] that it has effectively abandoned it, thereby depriving [the
appellants] of access to their property without compensation[, it was] a cognizable
claim.” Jordan v. St. Johns Cnty., 63 So. 3d 835, 839 (Fla. Dist. Ct. App. 2011). Old
A1A had been subject over the years to considerable damage from storms and erosion.
Jordan, 63 So. 3d at 837. The appellants owned property located in a subdivision
accessible only by Old A1A because the subdivision was located on a barrier island.
Jordan, 63 So. 3d at 836. The court concluded that “governmental inaction—in the face
of an affirmative duty to act—can support a claim for inverse condemnation.” Jordan, 63
So. 3d at 839. Because it was the county’s responsibility to maintain this road and it
failed to do so, the pleaded inaction supported maintenance of an inverse condemnation
cause of action against the county.
12
Similar to the Minnesota Constitution, the language of Maryland’s eminent
domain provision of the Maryland Constitution is general and broad: “The General
Assembly shall enact no Law authorizing private property, to be taken for public use,
without just compensation, as agreed upon between the parties, or awarded by a Jury,
being first paid or tendered to the party entitled to such compensation.” Md. Const. Art.
III, § 40.
15
The California appellate courts have held also that “in order to prove the type of
governmental conduct that will support liability in inverse condemnation it is enough to
show that the entity was aware of the risk posed by its public improvement and
deliberately chose a course of action—or inaction—in the face of that known risk.”
Arreola v. Cnty. of Monterey, 122 Cal. Rptr. 2d 38, 55 (Cal. Ct. App. 2002), as modified
on denial of reh’g (July 23, 2002). In Arreola, the county had been alerted by concerned
property owners starting in 1977 about the potential failure of a river levee due to the
weakening effects of a build-up of vegetation and the increased risk of resultant flooding.
Arreola, 122 Cal. Rptr. 2d at 56. Monterey’s actual knowledge of the maintenance
problems and its ability to control the project, made it immaterial whether the county had
“responsibility for operation of the project.” Arreola, 122 Cal. Rptr. 2d at 69-72. In spite
of its knowledge of the problem, the County “did not take any action to correct the
situation until 1991 or later [and the] knowing failure to clear the Project channel, in the
face of repeated warnings and complaints was” enough for an inverse condemnation
claim after floods damaged the plaintiff’s property. Id.We find persuasive these cases. Within the Third Amended Complaint, Ms. Litz
alleges that the Town had “undertaken [since at least 1973] the task of correcting its
failing community sewage system.” Her complaint includes allegations that, by 1985, the
Town was informed of the results of a study conducted by the Caroline County
Department of Health, which concluded that immediate action was necessary. These
warnings continued between 1985 and 1996 before any purported affirmative “action”
was taken, to wit, the Consent Order was executed. Additionally, Ms. Litz was notified
16
by a 12 June 1996 letter from the Caroline County Health Department that, because the
sewage discharges had not been eliminated, Lake Bonnie continued to be a health threat.
Even after the 1996 Consent Order was signed between MDE and the Town,
Respondents failed to effect any changes to the sewage treatment or drainage systems in
the Town. In 2004, the Caroline County Health Department distributed a warning to the
Town regarding additional septic or building permits being approved.
The Court of Special Appeals referred to this situation as an overall “failure to
regulate.” The cases cited by the intermediate appellate court to support this
characterization focused on interference with various types of property rights by third
parties, which government failed to avert, mitigate, or cure.13 Those cases are not
persuasive here. Two of those cases involved assertions that the Federal Government had
committed a taking because it failed to regulate conduct by third parties; however, the
property interest at issue for each plaintiff was not a traditional in-fee property interest.
See Georgia Power Co. v. United States, 633 F.2d 554, 555 (Ct. Cl. 1980) (company
claimed a taking of its electrical powerline easement); Alves v. United States, 133 F.3d
1454, 1455-56 (Fed. Cir. 1998) (plaintiff “argued that the [Bureau of Land
Management’s] failure to contain the trespass [by others] constituted a Fifth Amendment
taking and a breach of contract based on his interpretation of his grazing permits and/or
an exchange-of-use agreement as contracts”). Neither of these cases resulted in a
13
This endorsed the theory put forth by the State that any damage to Lake Bonnie
and Ms. Litz’s property was attributable to third-party, private property owners, not
Respondents.
17
“taking” because the regulations imposed by the Federal Government were not meant to
act as an “insurer that private citizens will act lawfully with respect to property subject to
governmental regulation.” Alves, 133 F.3d at 1458. Additionally, the courts determined
that both of these situations were more like private tort actions, as opposed to an
unconstitutional taking, because of the nature of the implicated property rights and the
allegations advanced by the plaintiff.
The Town of Goldsboro relies on Casey v. Mayor & City Council of Rockville,
400 Md. 259, 929 A.2d 74 (2007), for the proposition that “[e]ssential to the successful
assertion of any regulatory takings claim is a final and authoritative determination of the
permitted and prohibited uses of a particular piece of property.” Casey, 400 Md. at 308,
929 A.2d at 103-04; but see Falls Rd. Cmty. Ass’n, Inc. v. Baltimore Cnty., 437 Md. 115,
142-44, 85 A.3d 185, 201-02 (2014) (even after there was a final administrative order and
the county has the general duty and responsibility “to enforce land use and zoning
requirements, it clearly does not pursue enforcement on every arguable violation”).
Certainly we do not disagree with this statement from Casey in the context of the zoning
action involved there, but we disagree with the Town’s characterization of Ms. Litz’s
claim as being analogous. Our intermediate appellate court colleagues viewed Ms. Litz’s
claim as a “failure to regulate.” Her claim was not expressed as a regulatory taking, such
as a “down-zoning,” which might require analysis under the Casey precedent.
Although the sewage was flowing from the failed septic systems of private citizens
and/or businesses (which governmental entity approved the installation of the systems
and whether the approvals were proper has yet to be explored in this case because
18
discovery has yet to occur), Ms. Litz alleges that the Town and the State were aware of
the failure of the community sewage systems, the contamination of the surface and
groundwater, and the conveyance of the sewage to Lake Bonnie via the community
drainage system. It is not merely a case of a property right being affected adversely by
private third parties solely and exclusively. Ms. Litz’s property was alleged to have been
“condemned” by the failure of the State and Town in the face of an affirmative duty to
abate a known and longstanding public health hazard. Although questions of which
Respondents had statutory or legal duties with regard to abatement of the contamination
are open in the proceeding as far as it has advanced, it is not frivolous to hypothesize that
state, county, and municipal agencies may have duties to step in to protect the public
health, as illustrated by the execution of the 1996 Consent Order.
In State Dep’t of Env’t v. Showell, 316 Md. 259, 264, 558 A.2d 391, 393 (1989),
this Court held that it was within the broad powers of the State Department of Health and
Mental Hygiene to execute a consent order to protect the public health when it was
clearly a “‘reasonable remedial measure’ executed within the authority of the Department
to promote a legitimate governmental objective.” These powers afforded to the
Department to protect public health included:
In respect to the scope of the Department’s powers, § 9-204(a) of the
Health-Environmental Article provides that “[t]he Secretary has general
supervision and control over the waters of the State, insofar as their sanitary
and physical condition affect the public health or comfort and may make
and enforce rules and regulations and order works to be executed to correct
and prevent their pollution.” As to existing sewerage systems, the Secretary
may “[c]ompel their operation in a manner that will protect the public
health and comfort.” § 9-204(b)(1).
19
Showell, 316 Md. at 270, 558 A.2d at 396 (alterations in original). Under the current
version of the Environment Article of the Maryland Code, the State is empowered to
step-in to ensure the enforcement of the Federal Water Pollution Control Act. See
Maryland Code (1984, 2013 Repl. Vol.), Environment Article, § 9-253 (“Env’t”).
Even if, however, it is determined on remand that the State Respondents and the
Town did not have a general or specific statutory duty to act to abate this public health
hazard, Ms. Litz’s allegations may be read to assert that execution of the Consent Order
created an affirmative duty to act. Without discovery regarding the origins of and
seeming failure to enforce the Consent Order and its terms, it was premature to resolve
Ms. Litz’s claim for inverse condemnation by the grant of the motions to dismiss.
Moreover, at the current stage of these proceedings and given our holding here regarding
governmental inaction as a basis for an inverse condemnation claim, the parties have not
briefed or argued the applicable law under these circumstances.
Although we agree that Ms. Litz stated adequately a claim for inverse
condemnation, we caution that our decision should not be seen by any party as either an
unqualified victory or calamity. Ms. Litz may not succeed ultimately on her inverse
condemnation claim against any or all of the Respondents. We conclude only that it was
improper to decide as a matter of law, at the present stage of the litigation, that Ms. Litz
failed to state a claim for inverse condemnation. Her entitlement to relief may become
clearer or blurred after the respective sides have the opportunity to conduct discovery and
argue the law of liability.
c. Application of the LGTCA and the MTCA to an Inverse Condemnation Claim
20
The LGTCA was created “to limit the designated local governments’ financial
liability as well as to provide the employees of local governments certain protections
from damages.” Rounds v. Maryland-Nat. Capital Park & Planning Comm’n, 441 Md.
621, 638, 109 A.3d 639, 648-49 (2015), reconsideration denied (Mar. 27, 2015). We
conclude that the General Assembly did not intend to include a claim for inverse
condemnation to come within the ambit of the provisions of either tort claims act.14
A claim for inverse condemnation is not a tort in a traditional sense and has been
treated routinely and differently than torts. In Reichs Ford Rd. Joint Venture v. State
Roads Comm’n of the State Highway Admin., 388 Md. 500, 506 n.2, 880 A.2d 307, 310
n.2 (2005), the circuit court dismissed all of the plaintiff’s tort claims for failure to follow
the notice requirements of the MTCA. The plaintiff’s inverse condemnation claim,
however, was allowed to move forward, without the necessity of proof of compliance
with the notice provision of the MTCA. Id.14
In Rounds v. Maryland-Nat. Capital Park & Planning Comm’n, 441 Md. 621,
643, 109 A.3d 639, 651-52 (2015), we explained:
Nothing in the statute’s language or its legislative history indicates that the
General Assembly intended to exclude any category of tortious conduct
committed by a local government or its employees, from the scope of the
LGTCA notice requirement. As we have previously indicated, “[t]his Court
has been most reluctant to recognize exceptions in a statute when there is
no basis for the exceptions in the statutory language.”
See also Lee v. Cline, 384 Md. 245, 256, 863 A.2d 297, 304 (2004) (holding that “[t]here
are no exceptions in the statute for intentional torts or torts based upon violations of the
Maryland Constitution. This Court has been most reluctant to recognize exceptions in a
statute when there is no basis for the exceptions in the statutory language”).
21
Additionally, it is well-established that “that agents of the State do not enjoy
immunity with respect to a wrongful taking of property without just compensation.”
Dep’t of Nat. Res. v. Welsh, 308 Md. 54, 60, 521 A.2d 313, 316 (1986). We have
explained:
. . . it would be strange indeed, in the face of the solemn constitutional
guarantees, which place private property among the fundamental and
indestructible rights of the citizen, if this principle could be extended and
applied so as to preclude him from prosecuting an action. . . against a State
Official unjustly and wrongfully withholding property.
Lee v. Cline, 384 Md. 245, 263, 863 A.2d 297, 308 (2004) (citation and quotations
omitted). These constitutional guarantees require that state officials not be immune from
suit because, as “expressed in Article 19 of the Maryland Declaration of Rights, that a
plaintiff injured by unconstitutional state action should have a remedy to redress the
wrong.” Lee, 384 Md. at 264, 863 A.2d at 308. It is only logical that courts would treat
eminent domain and inverse condemnation claims differently from common law or
statutory torts because the remedy afforded to the respective plaintiff is different.
We have explained that “constitutionally speaking, fair market value is usually the
only measure of damages in an eminent domain condemnation.” Reichs Ford Rd. Joint
Venture, 388 Md. at 513, 880 A.2d at 314 (citing Kimball Laundry Co. v. United States,
338 U.S. 1, 5–6, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765(1949)).15 We have recognized “that
15
Within the context of eminent domain and inverse condemnation proceedings,
fair market value is defined as:
(Continued…)
22
applying the LGTCA damages cap to a constitutionally based taking, or inverse
condemnation could conflict with a vested right to just compensation.” Espina v.
Jackson, 442 Md. 311, 332-33, 112 A.3d 442, 455 (2015) (citations and quotations
omitted). This conflict arises because the eminent domain provision of the Maryland
Constitution16 creates “an implied contract between the government and a private
landowner.” Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 531, 479 A.2d 921, 926
(1984). This implied contract differs from the duty element of Maryland tort law.
Because the remedy afforded to a plaintiff in the case of a taking is fair market value, the
damages “cap” associated with the LGTCA and the MTCA should not apply. By parity
of reasoning, the notice requirements of each tort claims act would not apply either.
(…continued)
(b) The fair market value of property in a condemnation proceeding is the
price as of the valuation date for the highest and best use of the property
which a vendor, willing but not obligated to sell, would accept for the
property, and which a purchaser, willing but not obligated to buy, would
pay, excluding any increment in value proximately caused by the public
project for which the property condemned is needed. In addition, fair
market value includes any amount by which the price reflects a diminution
in value occurring between the effective date of legislative authority for the
acquisition of the property and the date of actual taking if the trier of facts
finds that the diminution in value was proximately caused by the public
project for which the property condemned is needed, or by announcements
or acts of the plaintiff or its officials concerning the public project, and was
beyond the reasonable control of the property owner.
Maryland Code (1974, 2003 Repl. Vol.), Real Property Article, § 12-105(b) (“RP”).
16
“The General Assembly shall enact no Law authorizing private property, to be
taken for public use, without just compensation, as agreed upon between the parties, or
awarded by a Jury, being first paid or tendered to the party entitled to such
compensation.” Md. Constitution, Art III, § 40.
23
Therefore, we conclude that Ms. Litz’s claim for inverse condemnation is not covered by
the LGTCA or the MTCA, and especially their respective notice requirements.
II. Trespass Claim against the Town of Goldsboro
Ms. Litz contends that the Court of Special Appeals erred by deciding that her
trespass claim against Goldsboro was a tort subject to the LGTCA and its notice
requirement. She relies on Maryland common law to argue that local governments
should not be afforded immunity from a trespass claim. She contends further that the
adoption of the LGTCA did not change the common law standard and, therefore, her
trespass claim should not be subject to the LGTCA.
The Town responds that Ms. Litz did not assert an actual trespass claim against it,
alleging only that the Town failed to stop a trespass by others. Because Ms. Litz did not
allege that the Town committed a trespass, according to the Town, the issue of whether
this claim is covered by the LGTCA is moot.
Under common law, a trespass claim is generally “an intentional or negligent
intrusion upon or to the possessory interest in property of another.” Schuman v.
Greenbelt Homes, Inc., 212 Md. App. 451, 475, 69 A.3d 512, 526 cert. denied sub nom.
Schuman v. Greenbelt Homes, 435 Md. 269, 77 A.3d 1086 (2013) (citation and quotation
marks omitted). In Ms. Litz’s Third Amended Complaint, she alleged that the “Town,
County, DHMH and the State are invading and have invaded Litz’s property by
approving residential septic systems in the Town that channel polluted ground water and
discharge those waters in unnatural and harmful quantities, qualities, and rates of flow
onto Litz’s property.” In our earlier opinion in this litigation, we found that the
24
complaint alleged a continuing cause of action on this score because, in the light most
favorable to Ms. Litz, “a trier of fact could conclude that the Town’s duties were ongoing
and continuous.” Litz I, 434 Md. at 648-49, 76 A.3d at 1091. In specific reference to the
trespass claim, we concluded that
Although her cause of action for trespass appears to be in reference to the
ongoing effects from the approval of the septic systems, drawing
reasonable inferences in the light most favorable to [Ms.] Litz, we do not
construe this allegation to assert that the Town on a single occasion
approved a septic system in Goldsboro that has channeled polluted water
onto her property. Additionally, there is nothing in the Complaint that
indicates that the Town did not approve any septic systems within three
years of [Ms.] Litz filing a claim in 2010. From the earlier allegations that
the private septic systems all penetrated the groundwater, that they were
contributing to contamination of the ground and surface water, that such
water was channeled eventually into Lake Bonnie, and that the
contamination problems continued over a long period of time, one could
infer reasonably that approval of septic systems by the Town contributed to
the continual flow of effluent from the Town to Lake Bonnie.
Litz I, 434 Md. at 650, 76 A.3d at 1091. Thus, Ms. Litz’s trespass claim was not barred
by the relevant statute of limitations. We are tasked here, however, with determining
whether the LGTCA’s notice requirement applies to the trespass claim. The Court of
Special Appeals determined that a trespass claim is considered a tort subject to the
LGTCA. We agree.
The Court of Special Appeals relied on our decision in Lee v. Cline to conclude
that the LGTCA embraced trespass claims. In Lee¸ our focus was on the language of the
MTCA, which “plainly appear[ed] to cover intentional torts and constitutional torts as
long as they were committed within the scope of state employment and without malice or
gross negligence.” Lee, 384 Md. at 256, 863 A.2d at 304. Because the “term ‘tort’ as
25
defined by Blacks encompasses all ‘civil wrong,’ not just wrongs that were recognized as
a civil wrong at common law,” it would follow necessarily that a trespass claim is
included within this definition. Espina, 442 Md. at 325, 112 A.3d at 450.
Ms. Litz takes issue with the intermediate appellate court’s reliance on Lee
because Lee involved an interpretation of the MTCA, not the LGTCA. The MTCA was
amended in 198517 to broaden the coverage “to include tort actions generally, with certain
specified exceptions and limitations. Section 12-104(a)(1) of the State Government
Article now provides that . . . [n]either intentional torts (in the absence of malice), nor
torts based upon constitutional violations, are excluded.” Lee, 384 Md. at 255, 863 A.2d
at 303. Therefore, under this statute, as long as the intentional tort or constitutional
violation was “committed within the scope of state employment and without malice or
gross negligence,” it is subject to the MTCA. Lee, 384 Md. at 256, 863 A.2d at 304.
Because “the purpose of the [Maryland] Tort Claims Act’s immunity is to insulate state
employees generally from tort liability if their actions are within the scope of
17
When the General Assembly enacted the Maryland Tort Claims Act in 1981, the
wavier of the State’s governmental immunity was limited to six distinct categories of
claims:
These six categories were limited to specific types of negligence actions
such as the negligent operation or maintenance of a motor vehicle,
negligence by a state health care employee, defective conditions in state
structures or property, and negligent actions by state employees in state
parks or recreation facilities. These six categories would not have
encompassed intentional torts or tort actions based upon constitutional
violations.
Lee, 384 Md. at 255, 863 A.2d at 303.
26
employment and without malice or gross negligence,” it would be reasonable for this
“broader purpose” to apply fully to non-malicious intentional torts and covered
constitutional violations. Lee, 384 Md. at 261, 863 A.2d at 307.
There is not a vast chasm between the language of the two statutory tort claim
schemes as to the tortious conduct covered. The LGTCA was enacted for a purpose
similar to the MTCA, to “provide a remedy for those injured by local government
officers and employees, acting without malice in the scope of their employment, while
ensuring that the financial burden of compensation is carried by the local government
ultimately responsible for the public officials’ acts.” Ashton v. Brown, 339 Md. 70, 108,
660 A.2d 447, 465-66 (1995). Consequentially, the analysis for which tortious conduct is
covered would be largely identical.18 The LGTCA “covers municipalities and counties
and applies to ‘employees,’ as distinguished from the common law concept of public
officials, and it applies to all torts without distinction, including intentional and
constitutional torts.” Thomas v. City of Annapolis, 113 Md. App. 440, 457, 688 A.2d
448, 456 (1997). Because the language of the LGTCA makes no distinction between
intentional and non-intentional torts, Ms. Litz’s trespass claim against the Town of
Goldsboro would be subject to the LGTCA and its notice requirement.
The notice requirement of the LGTCA is “intended to apprise a local government
18
The only major difference between the two statutes for present analytical
purposes is the protection that each affords the state employees – the MTCA provides
state employees with direct immunity from suit, whereas the LGTCA grants to local
government employees only immunity from damages, not from suit.
27
of its possible liability at a time when it could conduct its own investigation, i.e., while
the evidence was still fresh and the recollection of the witnesses was undiminished by
time, sufficient to ascertain the character and extent of the injury and its responsibility in
connection with it.” Prince George’s Cnty. v. Longtin, 419 Md. 450, 466-67, 19 A.3d
859, 869 (2011) (citing Rios v. Montgomery County, 386 Md. 104, 126–27, 872 A.2d 1,
14 (2005)). Under the LGTCA, “an action for unliquidated damages may not be brought
against a local government or its employees unless the notice of the claim required by
this section is given within 1 year after the injury.” Maryland Code (1974, 2013 Repl.
Vol.), Courts & Judicial Proceedings Article § 5-304(b)(1) (“CJP”). It further requires a
plaintiff to provide notice in writing and “shall state the time, place, and cause of the
injury.” CJP § 5-304(b)(2).
We concluded previously that Ms. Litz’s trespass claim was a continuing tort
based on the “ongoing effects from the approval of the septic systems.” See Litz I, 434
Md. at 650, 76 A.3d at 1091-92. Because we were not asked in the earlier case to
determine whether Ms. Litz’s notice under the LGTCA was timely, we affirm now the
judgment of the Court of Special Appeals, which concluded that Ms. Litz may be able to
show that her notice to the Town under the LGTCA was timely, and hold that it was
improper for the Circuit Court to grant the Town’s motion to dismiss Ms. Litz’s trespass
claim at this preliminary stage of litigation. Discovery will reveal likely the answer to
this asserted defense.
Thus, Ms. Litz is entitled to continue to litigate her tort claims (negligence and
trespass) against the Town, but must show compliance with the notice requirements of
28
the LGTCA. We conclude further that her inverse condemnation claims against the State
Respondents and the Town may proceed, without regard to the notice provisions of the
MTCA or the LGTCA.
JUDGMENT OF THE COURT OF SPECIAL APPEALS
AFFIRMED IN PART AND REVERSED IN PART.
CASE REMANDED TO THE COURT OF SPECIAL
APPEALS WITH INSTRUCTIONS TO REMAND THE
CASE TO THE CIRCUIT COURT FOR CAROLINE
COUNTY FOR FURTHER PROCEEDINGS. COSTS IN
THIS COURT AND THE COURT OF SPECIAL
APPEALS TO BE PAID BY RESPONDENTS.
29
Circuit Court for Caroline County
Case No. 05-C-10-013616
Argued: November 9, 2015
IN THE COURT OF APPEALS
OF MARYLAND
No. 23
September Term, 2015
______________________________________
GAIL B. LITZ
v.
MARYLAND DEPARTMENT OF THE
ENVIRONMENT, ET AL.
______________________________________
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T. (Retired,
Specially Assigned),
JJ.
______________________________________
Concurring and Dissenting Opinion by Watts,
J., which Battaglia and McDonald, JJ., join
______________________________________
Filed: January 22, 2016
Respectfully, I concur in part and dissent in part. I agree with the Majority that “the
tort of trespass is covered by the notice requirement of the” Local Government Tort Claims
Act (“the LGTCA”). Maj. Slip Op. at 9.1 Assuming that we reach the issue, I also agree
with the Majority that “a claim for inverse condemnation is not covered by the notice
provisions of” the LGTCA and the Maryland Tort Claims Act (“the MTCA”). Maj. Slip
Op. at 9. I, however, would not reach that issue because I agree with the Court of Special
Appeals that Gail B. Litz (“Litz”), Petitioner, failed to state a claim for inverse
condemnation against the State and its agencies (together, “the State”). Accordingly, I
would affirm the judgment of the Court of Special Appeals.2
1
As the Majority notes, in its petition for a writ of certiorari, the Town contended
that Litz failed to state a claim for trespass. This Court denied the Town’s petition for a
writ of certiorari, and granted only Litz’s petition for a writ of certiorari, which did not
present a question as to whether Litz stated a claim for trespass. Thus, like the Majority, I
express no opinion on whether Litz adequately stated a claim for trespass, as that issue is
not before this Court.
On a related note, the Majority lists, as one of the questions presented in Litz’s
petition for a writ of certiorari, the issue of “[w]hether the Court of Special Appeals
exceeded the scope of this Court’s remand order[.]” Maj. Slip Op. at 8. In a footnote, the
Majority notes that this issue “was not briefed fully by all sides[,]” Maj. Slip Op. at 8 n.9,
but the Majority states: “[W]e will exercise our discretion to decide the issues, which we
have determined are before us properly[,]” Maj. Slip Op. at 9 n.9. The Majority, however,
does not address the issue of whether the Court of Special Appeals exceeded the scope of
this Court’s remand order. Given that the Majority expresses no opinion on this issue,
neither do I.
2
The Circuit Court for Caroline County (“the circuit court”) dismissed all of Litz’s
claims against all of the defendants. Litz appealed, and the Court of Special Appeals
affirmed. Litz filed a petition for a writ of certiorari, which this Court granted. See Litz
v. Md. Dep’t of the Env’t, 429 Md. 81, 54 A.3d 759 (2012). This Court affirmed in part,
reversed in part, and remanded to the Court of Special Appeals. See Litz v. Md. Dep’t of
Env’t, 434 Md. 623, 657, 76 A.3d 1076, 1096 (2013). On remand, the Court of Special
Appeals, among other things: (1) affirmed the circuit court’s dismissal of Litz’s claim for
inverse condemnation against the State; (2) reversed the circuit court’s dismissal of Litz’s
The Majority candidly acknowledges that it is writing on a blank slate. Specifically,
the Majority states:
A difficulty with [] Litz’s claim of a “taking” fitting neatly within
conventional thinking about inverse condemnation is that her allegations
focus predominantly on the inaction of Respondents, rather than any
affirmative action by those parties. There is no controlling Maryland law
that we could find that sheds light on this wrinkle.
Maj. Slip Op. at 13 (emphasis added). The Majority proceeds to discuss out-of-State cases,
and ultimately holds that Litz stated a claim for inverse condemnation based on
Respondents’ inaction. See Maj. Slip Op. at 13-17.
I would write on the blank slate differently. Specifically, I would hold that, to state
a claim for inverse condemnation, a plaintiff must allege that some kind of affirmative
action by a governmental entity constituted a taking; I would not hold that an omission by
claims for inverse condemnation and trespass against the Town; and (3) remanded to the
circuit court.
The Majority: (1) reverses the Court of Special Appeals’s affirmance of the circuit
court’s dismissal of Litz’s claims for inverse condemnation against the State; (2) affirms
the Court of Special Appeals’s reversal of the circuit court’s dismissal of Litz’s claims for
inverse condemnation and trespass against the Town; and (3) remands to the Court of
Special Appeals with instructions to remand to the circuit court. See Maj. Slip Op. at 28-
29. In other words, on remand in the circuit court, Litz’s claim for inverse condemnation
against the State, and her claims for inverse condemnation and trespass against the Town,
will remain.
As the Majority does, I would affirm the Court of Special Appeals’s reversal of the
circuit court’s dismissal of Litz’s claims for inverse condemnation and trespass against the
Town; however, unlike the Majority, I would also affirm the Court of Special Appeals’s
affirmance of the circuit court’s dismissal of Litz’s claims for inverse condemnation
against the State. In other words, under my position, on remand in the circuit court, Litz’s
claims for inverse condemnation and trespass against the Town would remain, but Litz’s
claim for inverse condemnation against the State would not. As noted above in Footnote
1, this Court denied the Town’s petition for a writ of certiorari; thus, the issue of whether
Litz stated claims for trespass or inverse condemnation against the Town is not before this
Court.
-2-
a governmental entity can constitute a taking. The definition of “inverse condemnation,”
examples of claims for inverse condemnation, and judicial restraint lead me to this result.
Earlier in this litigation, in Litz v. Md. Dep’t of Env’t, 434 Md. 623, 652, 76 A.3d
1076, 1093 (2013), we noted that an “[i]nverse condemnation is a taking without just
compensation.” (Citation omitted). In other words, a claim for inverse condemnation is
“a cause of action against a governmental defendant to recover the value of property which
has been taken in fact by the governmental defendant, even though no formal exercise of
the power of eminent domain has been attempted by the taking agency[.]” Id. at 653, 76
A.3d at 1093 (some emphasis added) (citation and internal quotation marks omitted).
Implicit in the definition of “inverse condemnation” is the principle that, to engage in an
inverse condemnation, a governmental entity must, in fact, “take” property through some
kind of affirmative action, as opposed to an omission.
This Court’s precedent offers examples of claims for inverse condemnation, and it
appears that every single one of them was based a governmental entity’s alleged active
taking of property through some kind of affirmative action, as opposed to an omission. For
example, in MacLeod v. City of Takoma Park, 257 Md. 477, 481, 478, 263 A.2d 581, 584,
582 (1970), a plaintiff raised a claim for inverse condemnation where a city demolished
the plaintiff’s fire-damaged building. In Reichs Ford Rd. Joint Venture v. State Roads
Comm’n of the State Highway Admin., 388 Md. 500, 506, 505, 504, 880 A.2d 307, 310,
309 (2005), a plaintiff raised a claim for inverse condemnation where, without “formally
exercis[ing] its eminent domain powers[,]” the State Roads Commission of the State
Highway Administration of the Maryland Department of Transportation took steps to
-3-
condemn the plaintiff’s property, thus allegedly scaring off the plaintiff’s existing tenant
and future tenants.3 Similarly, in Coll. Bowl, Inc. v. Mayor & City Council of Balt., 394
Md. 482, 489, 907 A.2d 153, 157 (2006), a plaintiff raised a claim for inverse
condemnation where a city allegedly “us[ed] the threat of condemnation to force the
[plaintiff’s landlord] to undertake its own redevelopment of the [plaintiff’s] building.”4
In Coll. Bowl, 394 Md. at 489, 907 A.2d at 157, this Court offered even more
examples of inverse condemnation, stating:
[A]n inverse condemnation can take many different forms[: ]the denial by a
governmental agency of access to one’s property, regulatory actions that
effectively deny an owner [of] the physical or economically viable use of the
property, conduct that causes a physical invasion of the property, hanging a
credible and prolonged threat of condemnation over the property in a way
that significantly diminishes its value, or . . . conduct that effectively forces
an owner to sell.
One of these types of inverse condemnation, a “regulatory taking,” occurs where a
governmental entity adopts a “regulation [that] deprives the property owner of all viable
economic use of the entire property at issue[.]” City of Annapolis v. Waterman, 357 Md.
484, 507, 745 A.2d 1000, 1012 (2000) (citation and footnote omitted); see also Muskin v.
State Dep’t of Assessments & Taxation, 422 Md. 544, 566, 30 A.3d 962, 974 (2011) (“To
3
Specifically, in Reichs Ford Rd. Joint Venture, 388 Md. at 504, 880 A.2d at 309, a
lessee operated a gas station on the plaintiff’s property. The State Roads Commission “met
with . . . the lessee . . . to inform it of the intended condemnation[.]” Id. at 505, 880 A.2d
at 309. The lessee “elected not to exercise its option to extend the lease term with [the
plaintiff], apparently due to the looming specter of condemnation.” Id. at 505, 880 A.2d at
309. The plaintiff “claim[ed] that it was unable to lease the property as a gas station or for
any other economically viable use due to the [State Roads Commission]’s plans.” Id. at
505, 880 A.2d at 310.
4
In Coll. Bowl, 394 Md. at 491, 907 A.2d at 158, this Court concluded that “[t]here
was no taking.”
-4-
determine whether a regulatory taking occurred, the Court must look to the facts of the
individual case and consider the following factors: (1) the economic impact of the
regulation on the claimant, (2) the extent to which the regulation has interfered with distinct
investment-backed expectations, and (3) the character of the governmental action.”
(Citation and internal quotation marks omitted)).
In each of these scenarios, a plaintiff attempts to hold a governmental entity
responsible for something that the governmental entity did, not something that the
governmental entity did not do. By contrast, here, Litz advances the novel legal theory
that governmental entities “took” her property by omission or inaction. The Majority
endorses Litz’s theory by “recogniz[ing] an inverse condemnation claim based on alleged
‘inaction’ when one or more of the defendants has an affirmative duty to act under the
circumstances.” Maj. Slip Op. at 13.
To me, this is essentially the equivalent of creating a private right of action5 anytime
that a plaintiff’s property decreases in value as a result of a governmental entity’s
noncompliance with a statute—even if nothing in the statute’s language or legislative
history indicates that the General Assembly intended to create a private right of action. As
the Majority notes, “[u]nder the current version of the Environment Article of the Maryland
Code, the State is empowered to step-in to ensure the enforcement of the Federal Water
5
“A private right of action is a basis upon which a claimant may bring a claim.”
State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 517, 92 A.3d 400, 439
(2014); see also Private Right of Action, Black’s Law Dictionary (10th ed. 2014) (“private
right of action An individual’s right to sue in a personal capacity to enforce a legal claim.”
(Bolding in original)).
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Pollution Control Act.” Maj. Slip Op. at 19-20 (citing Md. Code Ann., Envir. (1984, 2013
Repl. Vol.) (“EN”) § 9-253). In turn, EN § 9-253 states in its entirety:
(a) In general. — For purposes of the Federal Water Pollution Control Act,
the Secretary [of the Environment] is the State water pollution control agency
in this State. (b) Granting of powers to Secretary. — The Secretary [of the
Environment] has all powers that are necessary to comply with and represent
this State under the Federal Water Pollution Control Act. (c) Other units of
State government prohibited from exercising powers. — Another unit of the
State government may not exercise any power given to the Secretary [of the
Environment] under this section.
(Paragraph breaks omitted). Nothing in EN § 9-253’s language indicates that the General
Assembly intended to create a private right of action anytime that a plaintiff’s property
decreases in value as a result of the Secretary of the Environment’s noncompliance with
the Federal Water Pollution Control Act.
Respectfully, the Majority neither mentions EN § 9-253’s legislative history nor
addresses whether EN § 9-253’s legislative history indicates that the General Assembly
intended to create a private right of action. Accordingly, there is no basis for affording the
equivalent of a private right of action based on a governmental entity’s noncompliance
with EN § 9-253. See Walton v. Mariner Health of Md., Inc., 391 Md. 643, 669, 894 A.2d
584, 599 (2006) (“Where the legislative history does not indicate any discussion
whatsoever as to whether a statute gives rise to [] a[n implied private] right [of action], the
fact that the [statute] is silent would weigh heavily against an intent by the [General
Assembly] to create a private cause of action.”).
Simply stated, I would hold that an affirmative action by a governmental entity—
i.e., a “taking”—is essential to a claim for inverse condemnation. Alleging an omission or
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inaction by the governmental entity is insufficient to state a claim for inverse
condemnation. By holding otherwise, the Majority greatly expands the definition of
inverse condemnation, the consequences of which are yet to be seen.
For the above reasons, respectfully, I concur in part and dissent in part.
Judge Battaglia and Judge McDonald have authorized me to state that they join in
this opinion.
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