GLENN T. HARRELL, JR., J. (Retired, Specially Assigned).
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.
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."
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
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.
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:
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.
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 Department
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 defendants
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 appealed to the Court of Special Appeals
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 to state an inverse condemnation claim against the State
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, 113 A.3d 624 (2015), to consider four questions, which we have reordered for organizational convenience:
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.
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, 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).
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 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
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[
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, 141 L.Ed.2d 451 (1998). Significant factors in the analysis include: "the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the governmental action." Eastern Enters., 524 U.S. at 523-24, 118 S.Ct. at 2146 (citations omitted). Accordingly, an inverse condemnation
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 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, 358 S.C. 280, 594 S.E.2d 557, 560 (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 requirement is more specific than found in Maryland case law and, thus, is not persuasive in our analysis of the present case.
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, 99 Cal.App.4th 722, 122 Cal.Rptr.2d 38, 55 (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 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
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.
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 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
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:
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.
The LGTCA was created "to limit the designated local governments' financial
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.
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:
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)).
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 complaint alleged
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 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 1985
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.
The notice requirement of the LGTCA is "intended to apprise a local government 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
BATTAGLIA, McDONALD and WATTS, JJ., concur and dissent.
Concurring and Dissenting Opinion by WATTS, J., which BATTAGLIA and McDONALD, JJ., join.
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. Op. at 264, 131 A.3d at 929.
Maj. Op. at 267, 131 A.3d at 930 (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. Op. at 267-71, 131 A.3d at 930-33.
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 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
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 condemn the plaintiff's property, thus allegedly scaring off the plaintiff's existing
In Coll. Bowl, 394 Md. at 489, 907 A.2d at 157, this Court offered even more examples of inverse condemnation, stating:
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 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
To me, this is essentially the equivalent of creating a private right of action
(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 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.
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").
Maryland Code (1974, 2003 Repl.Vol.), Real Property Article, § 12-105(b) ("RP").
Lee, 384 Md. at 255, 863 A.2d at 303.
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. Op. at 263, 131 A.3d at 928. In a footnote, the Majority notes that this issue "was not briefed fully by all sides[,]" Maj. Op. at 263 n. 9, 131 A.3d at 928 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. Op. at 264 n. 9, 131 A.3d at 929 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.
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. Op. at 279-80, 131 A.3d at 938-39. 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.
