Clayland Farm Enterprises, LLC v. Talbot County, Maryland et al
Filing
174
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/29/2019. (kw2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
CLAYLAND FARM ENTERPRISES,
LLC,
:
:
Plaintiff,
:
Civil Action No. GLR-14-3412
v.
:
TALBOT COUNTY, MARYLAND, et al.,
:
Defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Plaintiff Clayland Farm Enterprises, LLC’s
(“Clayland”) Motion for Partial Summary Judgment (ECF No. 148) and Defendants Talbot
County (the “County”), Talbot County Planning and Zoning Commission, Talbot County
Department of Public Works Advisory Board (the “Advisory Board”), Thomas Hughes,
Michael Sullivan, John Wolfe, and Jack Fisher’s Motion for Summary Judgment (ECF No.
156). This local zoning dispute arises out of three Talbot County Bills—Bill Nos. 1214,
1257, and 1229—two of which functioned as moratoria, and one of which adopted a tier
map aimed at minimizing the environmental impacts of subdivision and sewer system
expansion. The Motions are ripe for disposition, and no hearing is necessary. See Local
Rule 105.6 (D.Md. 2018). For the reasons outlined below, the Court will deny Clayland’s
Motion and grant in part and deny as moot in part Defendants’ Motion.
I.
A.
BACKGROUND1
Factual Background
1.
The Property
Clayland owns a 106.37-acre, waterfront property in the Village of Royal Oak in
Talbot County, Maryland (the “Property”). (Compl. ¶ 28, ECF No. 2; Pl.’s Mot. Partial
Summ. J. [“Pl.’s Mot.”] Ex. 1 [“Map”], ECF No. 148-3). The Property consists of seven
smaller plots and one larger plot. (Defs.’ Mot. Summ. J. [“Defs.’ Mot.”] Ex. 19 [“Defs.’
Appraisal Report”] at 1, ECF No. 156-21; see also Defs.’ Mot. Ex. 18 [“Pl.’s Appraisal
Report”] at 39, ECF No. 158-21).2 The seven smaller plots are 2.019 acres, 2.008 acres,
2.005 acres, 3.243 acres, 3.905 acres, 2.371 acres, and 2.271 acres, respectively. (Defs.’
Appraisal Report at 1). The larger remainder plot is 88.548 acres. (Id.).
The Camper family acquired the Property in 1969. (Pl.’s Appraisal Report at 4).
Since then, the Property has been used for farming and for leasing residential rental
properties. (Bryan Dep. 25:9–14; 52:4–15; 74:12–20, Feb. 15, 2018, ECF No. 158-7). In
Unless otherwise noted, the facts outlined here are set forth in Clayland’s
Complaint in this case, (ECF No. 2), and Clayland’s Complaint in, Clayland Farm
Enterprises, LLC v. Talbot County, Maryland (Clayland II), No. JFM-15-2410 (D.Md.
removed Aug. 13, 2015), ECF No. 2, which the Court consolidated with this case on May
5, 2017, (May 5, 2017 Order, ECF No. 62). To the extent the Court discusses facts that
Clayland does not allege in its Complaints, they are uncontroverted and the Court views
them in the light most favorable to the non-moving party. The Court will address additional
facts when discussing applicable law.
2
Clayland’s appraisal report identifies only six smaller plots and one remainder
plot, (Pl.’s Appraisal Report at 39), while Defendants’ appraisal report identifies seven
smaller plots and one remainder plot. This discrepancy, however, has no bearing on the
resolution of any of Clayland’s claims. Accordingly, for the sake of simplicity, the Court
will describe the Property as containing seven smaller plots and one larger remainder plot.
1
2
1991, the Camper family received approval to build a six-lot development called “Darby
Farm.” (See Pl.’s Appraisal Report at 1; Defs.’ Appraisal Report at ii, 22, 31).
In January 2002, Mrs. Camper passed away and left the Property to her children,
Jeanne Bryan and John Camper, III (collectively, “the Campers”).3 (Pl.’s Appraisal Report
at 4). The same month, the Campers elected to value the Property under Internal Revenue
Service (“IRS”) Special Use Valuation 2032A for the purposes of estate tax assessment.4
(Id.). As a result, the IRS placed a $500,000.00 tax lien on the Property in exchange for the
Campers agreeing to continue the agricultural use of the Property for ten years. (Id.). The
IRS released the tax lien in January 2012. (Id. at 4, 105).
Also in 2002, the Campers established Clayland Farm Enterprises, LLC to oversee
the Property. (Id. at 4). Clayland earns approximately $5,000.00 to $10,000.00 per year
through sharecropping. (Bryan Dep. 144:14–146:17). Clayland also leases three residential
properties on the Property, as well as an eight-acre nursery. (Id. 76:1–2; 149:19–150:2).
Between 2006 and 2018, the rental properties have generated monthly rents of $1,050.00
For simplicity’s sake, the Court refers to Jeanne Bryan and John Camper, III as
“the Campers”; it means no disrespect towards Ms. Bryan.
4
Special Use Valuation 2032A requires that a qualified heir of an estate certify,
among other things, that: (1) the decedent or a member of decedent’s family was using
50% or more of the real property as a farm at the time of the decedent’s death; (2) during
the eight-year period leading up to the decedent’s death, the decedent or a member of the
decedent’s family was using the real property as a farm for an aggregate of five years; and
(3) he or she will use the real property as a farm for ten years following the decedent’s
death. 26 U.S.C. § 2032A (b)(1)(A)(i)–(ii), (C)(i)–(ii), (c)(1)(A)–(B) (2018). If the
qualified heir sells any of his or her interest in the real property in the ten-year period or
fails to use the real property as a farm for the full ten years, the IRS will impose an
additional estate tax. 26 U.S.C. § 2032A(c)(1)(A)–(B). To secure repayment of the
additional tax in case the qualifying heir fails to comply with § 2032A’s provisions, the
IRS places a tax lien on the real property. 26 CFR § 20.6324B-1 (2019).
3
3
to $1,340.00. (Id. 150:3–11). Clayland leases the nursery to a relative for $1.00 per year.5
(Id. 149:10–13).
Prior to the inception of this suit, the Property was zoned as a “Village Center”
zoning district; the Property was and still is designated an S-1 sewer service area.
(Compl. ¶¶ 29, 36; Pl.’s Mot. Ex. 2, ECF No. 148-4; Pl.’s Mot. Ex. 7, ECF No. 149-1).
Under Talbot County’s 2005 Comprehensive Plan, which was in place at the start of this
litigation, Village Center zoning districts were defined as areas of “low or moderate
intensity residential communities,” and were “the preferred location for single and multifamily residential development.” (Compl. ¶¶ 30, 33). S-1 sewer service areas are “‘served
or to be served’ by a system of sanitary sewer connected to a treatment plant.” (Id. ¶ 36
(citing COMAR 26.03.01.01S)). With its Village Center and S-1 zoning, the Property could
be developed for residential housing. (Id. ¶¶ 30, 33, 36). Clayland has not, however, taken
any steps to begin developing the Property, including the approved development, Darby
Farm.
2.
Talbot County Planning & Zoning
a.
Resolution 180
On March 22, 2011, Talbot County adopted Resolution 180, which became effective
on May 24, 2011. (Pl.’s Mot. Ex. 16 [“Resolution 180”] at 7, ECF No. 149-10; see also
Defs.’ Resp. Opp’n Pl.’s Partial Mot. Summ. J. [“Defs.’ Opp’n”] Ex. 11, ECF No. 158-12).
5
Clayland is also applying to the County for approval of a cell tower on the
Property, which would be leased for $950.00 a month. (Defs.’ Opp’n Ex. 8, ECF No. 1589).
4
Resolution 180 implemented a nine-month moratorium on “processing, consideration,
review, or approval of any application” for a new subdivision received after March 22,
2011, in six Villages in Talbot County, including Royal Oak, the Village where the
Property is located. (Resolution 180 at 2). The County enacted Resolution 180 to, among
other things, allow sufficient time to “make the comprehensive sewer plan consistent with
the comprehensive land-use plan.” (Id. at 6). On January 10, 2012, the County extended
Resolution 180 for an additional seventy days. (Pl.’s Mot. Ex. 20 [“Resolution 191”], ECF
No. 149-14).
b.
Bill No. 1229
In 2012, the Maryland General Assembly passed the Sustainable Growth and
Agricultural Preservation Act (the “Septics Law”), which aimed to minimize the
environmental impact of large subdivisions and the concomitant expansion of septic
systems. (Compl. ¶ 8); Md. Code Ann., Land Use [“LU”] § 1-508 (West 2019). The
Septics Law established a “four tier map designation system,” (Compl. ¶ 9), and required
local jurisdictions to adopt corollary growth tier maps, (id. ¶ 13). Pursuant to this mandate,
Talbot County adopted Bill No. 1229 on December 11, 2012. (Id. ¶ 95; Pl.’s Mot. Ex. 24
[“Bill 1229”], ECF No. 150-3). Bill No. 1229 “classif[ied] land in the [C]ounty into one of
seven tier classifications that establish[ed] the type of subdivision and the kind of
wastewater treatment system planned for each subdivision type.” (Compl. ¶ 83; Bill 1229
5
at 3–5). As a result, six acres of the Property were designated Tier III.B, and the remaining
acres were designated Tier IV. (Compl. ¶ 84). 6
c.
Comprehensive Plan Review
In 2013, the Maryland General Assembly amended laws regarding the timing of
local planning commissions’ review, and revision or amendment of, county comprehensive
plans. 2013 Md. Laws ch. 520, 1; see also LU § 1-416. Prior to this amendment, local
jurisdictions were required to review their comprehensive plans at least once every six
years. 2012 Md. Laws ch. 426, 1. After this amendment, local jurisdictions were required
to review their comprehensive plans at least once every ten years. See LU § 1-416. Talbot
County initially anticipated revising its 2005 Comprehensive Plan in 2011. (Defs.’ Suppl.
Answer Interrogs. 4, ECF No. 158-5). As a result of the change in state law, however,
Talbot County changed its target date for enacting a revised comprehensive plan to 2015.
(Id.).
d.
Bill Nos. 1214 & 1257
On February 28, 2012, prior to the change in state law regarding the frequency of
comprehensive plan review, Talbot County adopted Bill No. 1214. (Compl. ¶ 70; Pl.’s
Mot. Ex. 22 [“Bill 1214”], ECF No. 150-1). Bill No. 1214 applied to all Village Center
zoning districts within the County’s twenty-two Villages. (Bill 1214 at 2). It reduced the
6
The County later designated approximately 29.8 acres of the Property as Tier III.B.
See Comprehensive Plan 2016, Talbot Cty. (Aug. 31, 2018, 12:51 PM),
http://www.talbotcountymd.gov/index.php?page=Comprehensive_Plan [https://perma.cc/
H7EZ-XDHB]. The Tier III.B portion of the Property includes Darby Farm, and retains its
Village Center zoning designation. (Id.). The County designated the remaining 76 acres of
the Property as Tier IV. (Id.).
6
permissible density of properties in Village Center zoning districts from four dwellings per
acre to one dwelling per two acres, increased the minimum lot size from 10,000 square feet
to one acre, and prohibited subdividing any existing parcel into more than one additional
lot. (Bill 1214 at 2; Compl. ¶ 62). Bill No. 1214 was originally drafted to expire in three
years but was subsequently amended to expire two years after its enactment. (Bill 1214 at
4; Compl. ¶¶ 63, 68).
On February 25, 2014, Talbot County approved Bill No. 1257. (Compl. ¶ 78; Pl.’s
Mot. Ex. 28 [“Bill 1257”], ECF No. 150-7). Bill No. 1257 extended Bill No. 1214’s
restrictions until the “adoption of comprehensive rezoning and land use regulations
regarding density in the [Village Center], VC1, and VC2 zoning districts pursuant to the
County’s comprehensive plan.” (Bill 1257 at 3; Compl. ¶ 76).
e.
2016 Comprehensive Plan & 2018 Comprehensive Rezoning
On June 7, 2016, Talbot County enacted its 2016 Comprehensive Plan. (Pl.’s Mot.
Ex. 30 [“2016 Comprehensive Plan Excerpt”], ECF No. 150-9; Defs.’ Opp’n Ex. 16 [“Bill
No. 1329”], ECF No. 158-18). The 2016 Comprehensive Plan incorporated the tier map
established in Bill No. 1229. (2016 Comprehensive Plan Excerpt at 3–4). On July 10, 2018,
the County adopted Bill Nos. 1401 and 1402 (the “2018 Comprehensive Rezoning”), which
were enacted sixty days later on September 11, 2018. Bill No. 1401 at 2 (repealing and
replacing Chapter 190 of the Talbot County Code);7 Bill No. 1401 Ex. A (Chapter 190 of
A Bill to Repeal and Replace Talbot County Code Chapter 190, Entitled “Zoning,
Subdivision, and Land Development,” in its Entirety, and to Enact an Entire New Chapter
190 of the Talbot County Code to Implement Zoning Controls and Regulations Consistent
with and Pursuant to the 2016 Talbot County Comprehensive Plan, Bill No. 1401, Cty.
7
7
the Talbot County Code);8 Bill No. 1402 (Zoning Map Amendment).9 These Bills
implemented the comprehensive rezoning contemplated in the 2016 Comprehensive Plan,
which became effective November 10, 2018. (Bill No. 1401 Ex. A at 1). Bill No. 1402
rezoned the Property from a Village Center zoning district to a Resource Conservation
(“RC”) zoning district. (See Bill No. 1402 at Map 40; see also Pl.’s Mot. at 6 n.3, 19).
B.
Procedural Background
On September 16, 2014, Clayland sued Defendants in the Circuit Court for Talbot
County, Maryland (the “Original Complaint”). (ECF No. 2). On October 30, 2014,
Defendants removed the case to this Court. (Not. of Removal ¶ 2, ECF No. 1). On April
30, 2015, this Court dismissed the Original Complaint on ripeness grounds. (Apr. 30, 2015
Order, ECF No. 22). The U.S. Court of Appeals for the Fourth Circuit reversed, holding
that Clayland’s claims were ripe. Clayland Farm Enters., LLC v. Talbot Cty., 672 F.App’x
240, 244–45 (4th Cir. 2016). While the appeal to the Fourth Circuit was pending, Clayland
Council
of
Talbot
Cty.,
Md.
(2018),
http://www.talbotcountymd.gov/uploads/File/council/Bill%201401%20%20Next%20Step%20190%20(Zoning%20Text)%20as%20amended,%20enacted,%20a
nd%20enrolled.pdf [https://perma.cc/DVX9-RE2V].
8
Next Step 190, Chapter 190 of the Talbot County Code (Sept. 11, 2018)
http://www.talbotcountymd.gov/uploads/File/council/Bill%201401%20%20Next%20Step%20190%20(Zoning%20Text%20Document),%20as%20amended,%2
0enacted%20and%20enrolled.pdf [https://perma.cc/CJ96-95AB].
9
A Bill to Amend the Official Zoning Maps of Talbot County, Maryland
(Specifically, Maps 1, 4, 5, 6, 10, 11, 12, 14, 16, 22, 24, 30, 31, 32, 33, 38, 39, 40, 40A,
41, 42, 43, 44, 44A, 45, 46, 47, 48, 49, 51, 55, and 56) and to Rezone the Affected Lands
Consistent with the 2016 Talbot County Comprehensive Plan, Bill No. 1402, Cty. Council
of
Talbot
Cty.,
Md.
(July
10,
2018)
http://www.talbotcountymd.gov/uploads/File/council/Bill%201402%20%20Zoning%20Maps.pdf [https://perma.cc/3UJ6-6XEL].
8
filed a new lawsuit against the County and the Maryland Department of Planning (the
“Second Complaint”) in the Circuit Court for Talbot County, Clayland Farm Enterprises,
LLC v. Talbot County, Maryland (Clayland II), No. JFM-15-2410, (D.Md. removed Aug.
13, 2015), which was removed to this Court, (Clayland II, ECF No. 1). On May 5, 2017,
the Court consolidated the two cases. (See May 5, 2017 Order, ECF No. 62).
Clayland’s Original Complaint alleges: Bill Nos. 1214 and 1257 constitute an
unconstitutional taking of property in violation of the Fourteenth Amendment to the U.S.
Constitution (Count I);10 Bill Nos. 1214 and 1257 constitute a deprivation of procedural
due process in violation of the Fourteenth Amendment (Count II); Bill Nos. 1214, 1257,
and 1229 constitute a deprivation of substantive due process in violation of the Fourteenth
Amendment (Count III); and a civil conspiracy to violate the constitutional rights secured
by the Fourteenth Amendment (Count IV). (Compl. ¶¶ 123–59). The Original Complaint
also seeks: a declaratory judgment that Bill No. 1229 is invalid under state law (Count V);
a declaratory judgment that Bill Nos. 1214 and 1257 are invalid under state law (Count
VI); and injunctive relief enjoining Bill Nos. 1214, 1229, and 1257 (Count VII).
(Id. ¶¶ 160–80). Clayland brings its federal claims—Counts I, II, III, and IV—under 42
U.S.C. § 1983. (Id. ¶¶ 123–59).
Clayland’s Second Complaint seeks: a declaratory judgment that Bill Nos. 1214 and
1257 are invalid under state law and under the Fourteenth Amendment (Count I); a
10
The Court notes that Clayland brings its takings claim only under the Fourteenth
Amendment, not the Fifth Amendment. (See Compl. at 26–29). Because the parties briefed
Count I of the Original Complaint as though Clayland brought it under the Fifth
Amendment, the Court applies Fifth Amendment case law to Clayland’s claim.
9
declaratory judgment that Bill No. 1229 is invalid under state law (Count II); and an
injunction against the enforcement of Bill Nos. 1214, 1229, 1257 (Count IV). (Compl.,
Clayland II, [“2d Compl.”] ¶¶ 121–36, 145–50, ECF No. 2). The Second Complaint also
alleges an inverse condemnation claim, asserting that Bill Nos. 1214 and 1257 constituted
an impermissible taking of property under the Fifth Amendment, Article 24 of the
Maryland Declaration of Rights, and § 40 of the Maryland Constitution (Count III).
(Id. ¶¶ 137–44).
Clayland seeks equitable relief and monetary damages. (Compl. ¶¶ 133, 138, 149,
159, 165, 174, 180; 2d Compl. ¶¶ 130, 136, 144, 150).
On October 26, 2018, Clayland filed its Motion for Partial Summary Judgment.
(ECF No. 148). On October 30, 2018, Defendants filed their Motion for Summary
Judgment. (ECF No. 156). Defendants filed an Opposition to Clayland’s Motion on
November 8, 2018. (ECF No. 158). Clayland filed a combined Reply and Opposition to
Defendants’ Motion on November 13, 2018. (ECF No. 161). On December 14, 2018,
Defendants filed a Reply. (ECF No. 167).
On June 4, 2019, the Court ordered the parties to submit supplemental briefing on:
(1) whether Counts V, VI, and VII11 are moot because the County’s 2016 Comprehensive
Plan and 2018 Comprehensive Rezoning appear to have superseded them; (2) if Bill Nos.
1214 and 1257 are characterized as legislative actions, what procedural due process rights
apply to them; and (3) information on the plots of the Property that Bill Nos. 1214 and
11
Unless otherwise indicated, the Court refers to the Counts in the Original
Complaint.
10
1257 directly affected. (June 4, 2019 Order, ECF No. 169). On June 14, 2019, Clayland
and Defendants filed their supplemental briefs. (ECF No. 170; ECF No. 171).
II.
A.
DISCUSSION
Mootness
A federal court may raise the issue of mootness sua sponte at any stage in the
proceedings because it is a jurisdictional question. United States v. Springer, 715 F.3d 535,
540 (4th Cir. 2013) (citing North Carolina v. Rice, 404 U.S. 244, 246 (1971)). The
mootness doctrine arises out of Article III of the U.S. Constitution and limits federal courts
to deciding ongoing cases or controversies. U.S. Const. art III, § 2; see Porter v. Clarke,
852 F.3d 358, 363 (4th Cir. 2017). “A case is moot when it has ‘lost its character as a
present, live controversy of the kind that must exist if we are to avoid advisory opinions on
abstract propositions of law.’” Md. Highways Contractors Ass’n, Inc. v. Maryland, 933
F.2d 1246, 1249 (4th Cir. 1991) (citing Diffenderfer v. Cent. Baptist Church of Miami,
Inc., 404 U.S. 412, 414 (1972)). A controversy must remain live throughout the duration
of the litigation. Porter, 852 F.3d at 363 (quoting Arizonans for Official English v. Arizona,
520 U.S. 43, 68 n.22 (1997)). “When a law no longer remains in effect, cases challenging
that law and requesting only prospective equitable relief ordinarily become moot.” Cox v.
Phillips, No. 97-2207, 1998 WL 231229, at *2 (4th Cir. May 5, 1998) (first citing Burke
v. Barnes, 479 U.S. 361, 363 (1987); and then citing Diffenderfer, 404 U.S. at 414); see
Jordahl v. Democratic Party of Virginia, 122 F.3d 192, 198 (4th Cir. 1997); Md. Highways,
933 F.2d at 1249–50.
11
Here, Counts V, VI, and VII of the Original Complaint seek only prospective
equitable relief. Count V seeks a declaratory judgment that Bill No. 1229 is void under
Maryland law. Count VI seeks a declaratory judgment that Bill Nos. 1214 and 1257 are
void under Maryland law. Count VII seeks injunctive relief, in part, against the
enforcement of Bill Nos. 1214, 1257, and 1229. Talbot County’s 2016 Comprehensive
Plan and 2018 Comprehensive Rezoning superseded all three of these Bills. The
declaratory judgments that Clayland seeks would, therefore, be impermissible advisory
opinions. Md. Highways, 933 F.2d at 1249. Further, there would be no utility in enjoining
statutes that are no longer in effect. See Kremens v. Bartley, 431 U.S. 119, 129 (1977)
(concluding the enactment of a new statute “clearly moots the claims”); Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 911 F.2d 1331, 1335 (9th Cir. 1990)
(holding that enactment of superseding legislation mooted claims for prospective equitable
relief flowing from a moratorium on development).
Nevertheless, in its supplemental briefing, Clayland argues that Counts V, VI, and
VII are not moot for three reasons. None of Clayland’s arguments are persuasive.
First, Clayland argues that Count VI is not moot because Clayland could seek
ancillary relief under the Declaratory Judgment Act, 28 U.S.C. § 2201 (2018). But this
argument puts the cart before the horse. Ancillary relief may flow from the Court’s issuance
of a declaratory judgment, but the Court must first determine that a declaratory judgment
is appropriate. The Declaratory Judgment Act grants federal district courts discretion to
entertain declaratory judgment actions. See Wilton v. Seven Falls Co., 515 U.S. 277, 282
(1995). The Act provides that district courts “may declare the rights and other legal
12
relations of any interested party seeking such declaration” provided that an “actual
controversy” exists. § 2201(a); see also Icarom, PLC v. Howard Cty., 904 F.Supp. 454,
457 (D.Md. 1995). Here, Count VI no longer presents a live controversy because
subsequent legislation superseded Bill Nos. 1214 and 1257. Cox, 1998 WL 231229, at *2.
The Court, therefore, declines to issue what would amount to an advisory opinion on the
validity of Bill Nos. 1214 and 1257.
Second, Clayland argues that Count VII is not moot because the Complaint requests
equitable relief. Count VII requests, among other things, that Clayland be permitted to
develop the Property under the zoning scheme as it existed prior to the County’s adoption
of Bill Nos. 1214 and 1257. As noted above, the passage of the 2016 Comprehensive Plan
and 2018 Comprehensive Rezoning moots Clayland’s claim for prospective equitable relief
because the Bills it seeks to enjoin in Count VII—Bill Nos. 1214, 1257, and 1229—are no
longer in force. Cox, 1998 WL 231229, at *2.
Third, Clayland argues that Count V is not moot because Bill No. 1229 was
incorporated into the County’s 2016 Comprehensive Plan with “minor corrections.” (Pl.’s
Supp. Br. at 4, ECF No. 170). But Clayland did not challenge the 2016 Comprehensive
Plan in its Original Complaint or the Second Complaint and may not amend its pleadings
through its briefs. Murray Energy Corp. v. Admin’r of Envtl. Prot. Agency, 861 F.3d 529,
537 n.5 (4th Cir. 2017) (quoting S. Walk at Broadlands Homeowner’s Ass’n, Inc. v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 184 (4th Cir. 2013) (“It is well-established
that parties cannot amend their complaint through briefing.”)). Accordingly, the Court
declines to consider this argument.
13
In short, the Court concludes that Counts V, VI, and VII are moot because the 2016
Comprehensive Plan and 2018 Comprehensive Rezoning superseded them.12 Accordingly,
the Court will dismiss these Counts for lack of subject-matter jurisdiction.13
B.
Cross-Motions for Summary Judgment
1.
Standards of Review
a.
Rule 56
In reviewing a motion for summary judgment, the Court views the facts in a light
most favorable to the nonmovant, drawing all justifiable inferences in that party’s favor.
Ricci v. DeStefano, 557 U.S. 557, 586 (2009); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)).
Summary judgment is proper when the movant demonstrates, through “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . . admissions, interrogatory answers,
12
For the same reasons Counts V, VI, and VII of the Original Complaint are moot,
the Court further concludes that Counts I, II, and VI of the Second Complaint, which seek
declaratory and injunctive relief, are also moot. Accordingly, the Court will dismiss these
Counts for lack of subject-matter jurisdiction and deny as moot Defendants’ Motion as to
these Counts.
13
The passage of superseding legislation does not moot claims that allege
continuing harm and seek monetary damages. See McDoogal’s East, Inc. v. Cty. Comm’rs
of Caroline Cty., 341 F.App’x 918, 922 n.3 (4th Cir. 2009); Covenant Media of S.C., LLC
v. City of North Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007); see also Henson v.
Honor Comm. of U. Va., 719 F.2d 69, 72 n.5 (4th Cir. 1983). Here, Counts I, II, III, and
IV of the Original Complaint allege continuing harm from a facial regulatory taking,
procedural due process violation, substantive due process violation, and civil conspiracy,
respectively, and seek monetary damages. Accordingly, Counts I, II, III, and IV of the
Original Complaint remain live controversies. In addition, to the extent that it seeks
monetary damages, Count III of the Second Complaint also is not moot.
14
or other materials,” that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c)(1)(A). Significantly, a
party must be able to present the materials it cites in “a form that would be admissible in
evidence,” Fed.R.Civ.P. 56(c)(2), and supporting affidavits and declarations “must be
made on personal knowledge” and “set out facts that would be admissible in evidence,”
Fed.R.Civ.P. 56(c)(4).
Once a motion for summary judgment is properly made and supported, the burden
shifts to the nonmovant to identify evidence showing there is genuine dispute of material
fact. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
The nonmovant cannot create a genuine dispute of material fact “through mere speculation
or the building of one inference upon another.” Othentec Ltd. v. Phelan, 526 F.3d 135, 141
(4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985)).
A “material fact” is one that might affect the outcome of a party’s case. Anderson,
477 U.S. at 248; see also JKC Holding Co. v. Wash. Sports Ventures, Inc., 264 F.3d 459,
465 (4th Cir. 2001) (citing Hooven-Lewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
Whether a fact is considered to be “material” is determined by the substantive law, and
“[o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248;
accord Hooven-Lewis, 249 F.3d at 265. A “genuine” dispute concerning a “material” fact
arises when the evidence is sufficient to allow a reasonable jury to return a verdict in the
nonmoving party’s favor. Anderson, 477 U.S. at 248. If the nonmovant has failed to make
a sufficient showing on an essential element of her case where she has the burden of proof,
15
“there can be ‘no genuine [dispute] as to any material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
b.
Cross-Motions for Summary Judgment
When the parties have filed cross-motions for summary judgment, the court must
“review each motion separately on its own merits to ‘determine whether either of the
parties deserves judgment as a matter of law.’” Rossignol v. Voorhaar, 316 F.3d 516, 523
(4th Cir. 2003) (quoting Philip Morris Inc. v. Harshbarger, 122 F.3d 58, 62 n.4 (1st Cir.
1997)). Moreover, “[w]hen considering each individual motion, the court must take care to
‘resolve all factual disputes and any competing, rational inferences in the light most
favorable’ to the party opposing that motion.” Id. (quoting Wightman v. Springfield
Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)). The Court, however, must also abide
by its affirmative obligation to prevent factually unsupported claims and defenses from
going to trial. Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993). If the evidence
presented by the nonmovant is merely colorable, or is not significantly probative, summary
judgment must be granted. Anderson, 477 U.S. at 249–50.
3.
Analysis
Clayland asks the Court to grant summary judgment in its favor as to its facial
regulatory takings claim and procedural due process claim, Counts I and II of the Original
Complaint, and as to its state inverse condemnation claim, Count III of the Second
Complaint. Defendants move for summary judgment in their favor on all of Clayland’s
Counts.
16
a.
Facial Regulatory Takings Claim
Clayland argues that Bill Nos. 1214 and 1257 are illegitimate moratoria on
development that constitute a facial regulatory taking. Defendants counter that Clayland
cannot establish a facial regulatory taking because the Bills are permissible moratoria and
they do not rise to the level of a taking.14 The Court agrees with Defendants.
The Fifth Amendment to the U.S. Constitution “prohibits the taking of private
property without just compensation.” Pulte Home Corp. v. Montgomery Cty., 909 F.3d
685, 695 (4th Cir. 2018) (quoting Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 536
(2005)). The Takings Clause of the Fifth Amendment “‘requires the payment of
compensation whenever the government acquires private property for a public purpose,’
but it does not address in specific terms the imposition of regulatory burdens on private
property.” Murr v. Wisconsin, 137 S.Ct. 1933, 1942 (2017) (quoting Tahoe-Sierra Pres.
Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 321 (2002)). The U.S.
Supreme Court has held, however, that “while property may be regulated to a certain
14
Defendants also contend that Clayland must have a vested right to establish all of
its constitutional claims, including its regulatory takings claim. Defendants are mistaken.
Under Maryland law, a plaintiff only needs to have a vested right in an existing zoning use
to be constitutionally protected against a subsequent change in a zoning ordinance
prohibiting or limiting that use. A Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356,
370–71 (4th Cir. 2008) (quoting Powell v. Calvert Cty., 795 A.2d 96, 102 (Md. 2002)). A
plaintiff does not need to have a vested right, however, for a takings claim. See Pulte Home
Corp. v. Montgomery Cty., 909 F.3d 685, 691–93, 695–97 (4th Cir. 2018) (conducting a
facial regulatory takings analysis even though the court concluded that the landowner
lacked a vested right in the unamended zoning ordinance). Further, the Bills at issue in this
case did not alter the zoning designation for the Property, but rather placed temporary
limitations on the density of development.
17
extent, if regulation goes too far it will be recognized as a taking.” Id. (quoting Pa. Coal
Co. v. Mahon, 260 U.S. 393, 415 (1922)).
The Supreme Court has identified two circumstances under which a regulation may
go “too far.” First, “with certain qualifications . . . a regulation which denies all
economically beneficial or productive use of land will require compensation under the
Takings Clause.” Id. at 1942–43 (alteration in original) (internal quotation marks omitted)
(quoting Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001)). Second, “when a regulation
impedes the use of property without depriving the owner of all economically beneficial
use, a taking still may be found based on ‘a complex of factors,’” known as the Penn
Central15 test. Id. at 1943. These factors include: “(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.” Id.
(citing Palazzolo, 533 U.S. at 617 (citing Penn Cent. Transp. Co. v. City of New York, 438
U.S. 104, 124 (1978))). In applying the Penn Central test, the Court focuses on “the parcel
as a whole,” Tahoe-Sierra, 535 U.S. at 326 (quoting Penn Cent., 438 U.S. at 130–31), and
the first two factors—economic effects and investment-backed expectations—are
“primary” among the Penn Central factors, see Lingle, 544 U.S. at 538–39. Because
Clayland does not allege a total deprivation of all economically beneficial use, the Court
will apply the Penn Central test.16 See Clayland Farm, 672 F.App’x at 244.
15
16
Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 124 (1978).
Neither Clayland nor Defendants dispute that the Penn Central test applies.
18
i.
Economic effects
With regard to the first factor, Clayland puts forth evidence that Bill Nos. 1214 and
1257 resulted in a roughly 40% decrease17 in the value of the Property. (See Pl.’s Appraisal
Report at 70). As the Fourth Circuit has noted, courts have found no regulatory taking when
presented with diminutions in value of 75% and 92.5%. Henry v. Jefferson Cty. Comm’n,
637 F.3d 269, 277 (4th Cir. 2011) (first citing Tenn. Scrap Recyclers Ass’n, LLC v.
Bredesen, 556 F.3d 442, 456 & n.6 (6th Cir. 2009); and then citing Iowa Coal Mining Co.,
Inc. v. Monroe Cty., 257 F.3d 846, 853 (8th Cir. 2001)). Similarly, in Pulte, the Fourth
Circuit held that a hypothetical 83% diminution in value was insufficient to establish a
regulatory taking. 909 F.3d at 696. Moreover, Clayland can still build homes on the
Property; Bill Nos. 1214 and 1257 only dictate that development on the Property be less
dense than Clayland contemplated. This is not sufficient to establish a taking. See Quinn
v. Bd. of Cty. Comm’rs for Queen Anne’s Cty., 862 F.3d 433, 442 (4th Cir. 2017) (“A
regulation is not a taking merely because it ‘prohibit[s] the most beneficial use of the
property.’” (alteration in original) (quoting Penn Cent., 438 U.S. at 125). Thus, the first
factor weighs in Defendants’ favor.
17
Prior to the enactment of Bill Nos. 1214 and 1257, the Property was valued at
$3,250,000.00. (Pl.’s Appraisal Report at 77). After the Bills’ enactment, the Property was
valued at $1,950,000.00, resulting in a diminution in value of $1,300,000.00. (Id.).
Defendants’ produce evidence of a much lower diminution in value—$125,000.00. (Defs.’
Appraisal Report at ii). The Court notes that Clayland erroneously asserts that the Property
was valued at $3,800,000.00 prior to the enactment of Bill Nos. 1214 and 1257 and that
the Bills resulted in a “roughly 50%” diminution in value. (See Pl.’s Mot. at 34). In any
event, this difference is not material, because, as the Court explains above, courts have held
that diminutions in value of as much as 92.5% do not constitute a regulatory taking.
19
ii.
Investment-backed expectations
As to the second factor, Defendants highlight that Clayland had not taken any steps
to develop the Property. While this is not dispositive, see Tahoe-Sierra, 535 U.S. at 313
(noting that a portion of the petitioners had purchased their property with the intention to
develop, but had not yet begun development), it weighs heavily against Clayland in the
Penn Central analysis, see Lingle, 544 U.S. at 538–39. Clayland, for its part, asserts that
“the Camper family invested in and reasonably expected to develop the Property in
accordance with its zoning and other development rights.” (Pl.’s Mot. at 33).18 Clayland
18
In making this argument, Clayland relies on an Affidavit from Ms. Bryan (the
“Bryan Affidavit”). (Bryan Aff., ECF No. 149-9). Defendants contend that the Bryan
Affidavit is a sham affidavit because she asserts that Clayland planned to develop the
Property with “affordable housing.” (Bryan Aff. ¶ 9). Specifically, Defendants maintain
that this claim was never asserted in the Complaint, in Clayland’s Answers to
Interrogatories, by Bryan at her deposition, in Clayland’s expert reports, or “in any prior
pleading or submission of [Clayland] during the pendency of this four-plus years’ long
rolling lawsuit.” (Defs.’ Opp’n at 8). Clayland counters that the Bryan Affidavit and Ms.
Bryan’s deposition testimony are “obviously and indisputably consistent with each other.”
(Pl.’s Opp’n & Reply at 10 n.6, ECF No. 161).
Under the sham affidavit doctrine, a “party cannot create a genuine issue of fact
sufficient to survive summary judgment simply by contradicting his or her own previous
sworn statement (by, say, filing a later affidavit that flatly contradicts that party’s earlier
sworn deposition) without explaining the contradiction or attempting to resolve the
disparity.” Ervin v. JP Morgan Chase Bank NA, No. GLR-13-2080, 2014 WL 4052895, at
*2 (D.Md. Aug. 13, 2014) (quoting Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795,
806 (1999)). “Application of the sham affidavit rule at the summary judgment stage ‘must
be carefully limited to situations involving flat contradictions of material fact.’”
Zimmerman v. Novartis Pharm. Corp., 287 F.R.D. 357, 362 (D.Md. 2012) (quoting
Mandengue v. ADT Sec. Sys., Inc., No. ELH–09–3103, 2012 WL 892621, at *18 (D.Md.
Mar. 14, 2012)). The Court declines to apply the sham affidavit doctrine in this case.
Although the Bryan Affidavit appears to be the first time Clayland asserts that it intended
to develop affordable housing on the Property, this assertion merely specifies the type of
residential development Clayland intended to pursue. Such an assertion is consistent with
Clayland’s general statements that it desired to residentially develop the Property. Further,
20
specifically notes that the Property was zoned Village Center, was in a priority funding
area, and is within an S-1 sewer area. As a result, Clayland posits, it “had all necessary
designations and rights for development to occur,” which was an “inherently reasonable
expectation.” (Id.). The Court does not find Clayland’s argument persuasive for at least
three reasons.
First, Clayland’s argument contemplates that the Property’s zoning would not
change. Yet, under state law, the County was tasked with reviewing and possibly revising
its Comprehensive Plan—and enacting comprehensive rezoning in conformance with that
plan—at least every six years and now every ten years. Indeed, the County had initially
planned to propose a new Comprehensive Plan in 2011, but then changed its target date to
2015 due to a change in state law. Thus, conceivably, Clayland’s zoning designation and
concomitant development rights could have changed in 2011 had there not been a change
in state law. It is therefore unreasonable for Clayland to expect that its zoning and
development rights would remain unchanged.
Second, the evidence in the record reflects that Clayland did not take any steps to
develop the Property. Indeed, the Campers agreed to continue using the Property as a farm
for ten years—from 2002 to 2012—in exchange for reduced federal estate tax liability. As
part of receiving this benefit, the Campers had to establish that the Property had been used
as a farm for five out of the eight years leading up to their mother’s death and certify that
they would continue to use the Property as a farm for ten years after their mother’s death.
the particular type of development Clayland wants to pursue is immaterial to the Court’s
analysis in this case.
21
See 26 U.S.C. § 2032A (b)(1)(C)(i)–(ii), (c)(1)(A)–(B). Further, the County approved the
six-plot subdivision in 1991—almost thirty years ago—but neither the Camper family nor
Clayland has taken any steps to develop the plots. These facts undercut Clayland’s
assertions that the Camper family, and later Clayland, expected to develop the Property as
a residential subdivision.
Third, to the extent Clayland argues that it has an entitlement to develop the Property
based on its Village Center zoning, S-1 sewer, and priority funding area designations, the
Fourth Circuit has rejected this idea. See, e.g., Quinn, 862 F.3d at 442–43 (“Any hope of
developing the land thus depended on receiving sewer service—a speculative proposition
and one to which . . . [the plaintiff] had no entitlement.”); Henry, 637 F.3d at 277 (rejecting
the plaintiff’s argument that it had reasonable investment-backed expectations in a higher
density conditional use permit than what the defendant granted him because he had no
entitlement to such a permit); see also Neifert v. Dep’t of Env’t, 910 A.2d 1100, 1122 (Md.
2006) (noting that there is no state or federal constitutional right to sewer service). Further,
Clayland has no right to the most economically beneficial use of the Property. See Henry,
637 F.3d at 277 (“We . . . see no warrant for requiring the Planning Commission to exercise
its discretion so as to most profit [the plaintiff].”).
The Court’s consideration of the impact of Bill Nos. 1214 and 1257 on Clayland’s
investment-backed expectations, therefore, weighs in Defendants’ favor.
iii.
Character of the government action
Moratoria are “interim controls on the use of land that seek to maintain the status
quo with respect to land development in an area by either ‘freezing’ existing land uses or
22
by allowing the issuance of building permits for only certain land uses that would not be
inconsistent with a contemplated zoning plan or zoning change.” Tahoe-Sierra, 535 U.S.
at 352–53 (Rehnquist, J., dissenting) (quoting E. Ziegler, Rathkopf’s The Law of Zoning
and Planning § 13:3 (4th ed. 2001)). Moratoria, when reasonable, are “essential tool[s] of
successful development.” Id. at 338 (majority). Courts routinely uphold moratoria that
persist for reasonable lengths of time and serve legitimate public purposes. See, e.g., First
English Evangelical Lutheran Church v. County of Los Angeles, 258 Cal.Rptr. 893, 906
(Cal.Ct.App. 1989) (upholding the constitutionality of a two-and-a-half-year moratorium
on development while county conducted study to determine where structures could safely
be built on floodplain); S.E.W. Friel v. Triangle Oil Co., 543 A.2d 863, 866–67
(Md.Ct.Spec.App. 1988) (concluding nine-month moratorium on development while
county developed new land use regulations was not a taking); Tocco v. N.J. Council on
Affordable Hous., 576 A.2d 328, 330 (N.J.Super.Ct.App.Div. 1990) (upholding the
constitutionality of an eighteen-month freeze on the development of plots of land that are
two acres or larger while the municipality developed a plan for the construction of
affordable housing).19
19
The Court notes that most of the cases addressing whether a moratorium
constituted a taking are from state court because, until just recently, property owners had
to exhaust all state remedies before bringing a takings claim in federal court. See Knick v.
Twp. of Scott, 139 S.Ct. 2162, 2167 (2019) (“We now conclude that the state-litigation
requirement imposes an unjustifiable burden on takings plaintiffs, conflicts with the rest of
our takings jurisprudence, and must be overruled. A property owner has an actionable Fifth
Amendment takings claim when the government takes his property without paying for it.”;
overruling Williamson Cty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City,
473 U.S. 172 (1985)).
23
But when moratoria persist for long periods of time or serve no compelling purpose,
courts have viewed them with skepticism or found them invalid. See, e.g., Md.-Nat’l
Capital Park & Planning Comm’n v. Chadwick, 405 A.2d 241, 250 (Md. 1979) (holding
that ordinance that placed litigant’s land in reservation for up to three years “without any
reasonable uses permitted” was a taking); Deal Gardens, Inc. v. Bd. of Trs. of Vill. of Loch
Arbor, 226 A.2d 607, 612 (N.J. 1967) (holding that an open-ended moratorium with no end
date was invalid, and that the two years that had already elapsed should have been sufficient
to allow the municipality to develop a permanent zoning ordinance); Mitchell v. Kemp,
575 N.Y.S.2d 337, 338 (N.Y.App.Div. 1991) (concluding that a moratorium was
unconstitutional because the town “failed to offer any satisfactory reasons for the nearly
five-year delay in enacting a zoning ordinance”); Land Master Montg I, LLC v. Town of
Montgomery, 821 N.Y.S.2d 432, at *10 (N.Y.Sup.Ct. 2006) (“[T]he Court finds the
successive continuation of this moratorium for a period of some two and one-half years to
be disturbing . . . .”); Schoeller v. Bd. of Cty. Comm’rs of Park Cty., 568 P.2d 869, 874,
878–79 (Wyo. 1977) (invalidating five-year moratorium on development in the lead-up to
adoption of a new comprehensive plan); cf. Steel v. Cape Corp., 677 A.2d 634, 652
(Md.Ct.Spec.App. 1996) (holding that six-year delay in rezoning an individual’s property
was an as-applied taking).
The County argues that Bill Nos. 1214 and 1257 were necessary to forestall
development that might undercut its comprehensive plan and attendant rezoning. While
this is a reasonable purpose for a short period, the legitimacy of the Bills is undercut, to
some extent, by both their duration and the circumstances that gave rise to the Bills’
24
adoption. The Bills were in place from February 28, 2012 through November 10, 2018. By
any measure, six years is a long period of time to forestall development in the lead-up to a
zoning change.20 This is especially true because the sole justification the County has
provided for the delay is that it needed time to develop its comprehensive plan and
comprehensive rezoning, and that its planning was derailed by a change in Maryland law,
which required a review of the County’s comprehensive plan every ten years instead of
every six years. By way of comparison, courts have upheld prolonged moratoria when local
governments needed time to craft a new zoning plan to address pressing public safety
concerns, see First English Evangelical Lutheran Church of Glendale v. Los Angeles Cty.,
482 U.S. 304, 328 n.6 (1987); First English, 258 Cal.Rptr. at 906, or to conduct complex,
interstate scientific studies, see Tahoe-Sierra, 535 U.S. at 307. The public import of the
County’s justification in this case falls far short of these precedents.
The Court’s concerns with the County’s justification deepen upon closer inspection.
Talbot County, by its own admission, was already in the process of developing a
comprehensive plan and comprehensive rezoning when state law changed and moved the
County’s target date from 2011 to 2016. The state law reads: “[a]t least once every ten
years, each planning commission shall review the comprehensive plan and, if necessary,
revise or amend the comprehensive plan.” LU § 1-416. The County has not explained why
20
The delay, in fact, was longer. Prior to the passage of Bill Nos. 1214 and 1257,
Resolution 180 banned all development for nine months, and the County extended
Resolution 180 for an additional seventy days. But Clayland does not challenge Resolution
180. Accordingly, the Court’s analysis focuses solely on the six-year period during which
Bill Nos. 1214 and 1257 were in place.
25
it reads this statute as allowing for a review of the County’s comprehensive plan only once
every ten years, as opposed to at least once every ten years. But if, as the County suggests,
LU § 1-416 was intended to prevent review of the County’s comprehensive plan until 2016,
the County’s decision to impose a six-year moratorium is troubling. In changing the
timeline for review of and modification to the comprehensive plan from every six to every
ten years, LU § 1-416 implicitly granted landowners greater stability and security in the
existing zoning scheme. Rather than acknowledging this change in state law that granted
landowners four additional years to develop their land under the existing zoning scheme,
Bill Nos. 1214 and 1257 effected a workaround that prevented development that would be
inconsistent with the County’s forthcoming 2016 Comprehensive Plan.
In brief, both the length of moratoria and the unconvincing justifications Defendants
provide concern the Court. But Penn Central demands a holistic review of not only the
nature of the government action, but also the economic impact of the regulation on affected
landowners and their investment-backed expectations, Penn Cent., 438 U.S. at 124, which
are the primary factors in the analysis, see Lingle, 544 U.S. at 538–39. While undoubtedly
restricting development potential, Bill Nos. 1214 and 1257 were not wholesale prohibitions
on development. Clayland continued to enjoy preexisting economic uses of its land and
could have subdivided its remainder plot and developed one new plot of land.
Further, the Court is loath to wade into land disputes, which fall squarely within the
purview of local zoning authorities. See Pulte, 909 F.3d at 696 (noting that “‘[m]anaging
the density of development—even if it disappoints a particular developer—is a crucial goal
of land use planning’ and generally does not amount to a taking” (alteration in original)
26
(quoting Quinn, 862 F.3d at 441)). Defining the contours of acceptable moratoria is
particularly tricky given the legitimate state interests at stake, and the legislature, not the
Court, is best suited to the task.21
Thus, based on the facts in the record, Clayland fails to establish that the harm it
suffered due to Bill Nos. 1214 and 1257 rises to the level of a cognizable facial regulatory
taking. Accordingly, the Court will deny Clayland’s Motion as to Count I and grant
Defendants’ Motion as to Count I.
b.
Procedural Due Process Claim
Clayland alleges that Bill Nos. 1214 and 1257 violated its procedural due process
rights because they were enacted without adequate post-deprivation remedies and because
the Bills targeted Clayland. Defendants counter that: (1) the bills were legislative in nature;
(2) Clayland has not identified a protected property interest; and (3) the public hearings
that preceded the adoption of the Bills satisfied any constitutional due process
requirements. The Court agrees with Defendants that Bill Nos. 1214 and 1257 were
legislative in nature, and, as a result, they do not give rise to procedural due process rights.
Legislative acts generally include the “adopt[ion of] prospective” rules and the
creation of general policies that “affect[ ]the larger population.” E.E.O.C. v. Washington
Suburban Sanitary Comm’n, 631 F.3d 174, 184 (4th Cir. 2011) (first alteration in original)
(quoting Alexander v. Holden, 66 F.3d 62, 66–67 (4th Cir. 1995)). Legislative acts do not
give rise to procedural due process rights. See Bi-Metallic Inv. Co. v. State Bd. of
21
Several states set time limits on moratoria. See Tahoe-Sierra, 535 U.S. at 342 n.37
(detailing state legislative efforts to limit the length of moratoria).
27
Equalization, 239 U.S. 441, 445 (1915); Barefoot v. City of Wilmington, 306 F.3d 113,
124 (4th Cir. 2002) (“When a legislature passes a law which affects a general class of
persons, the political process provides all the process that is due.”), abrogated on other
grounds as recognized in Davani v. Va. Dep’t of Transp., 434 F.3d 712 (4th Cir.
2006); Richardson v. Town of Eastover, 922 F.2d 1152, 1158 (4th Cir. 1991) (“[I]f a
town’s action is legislative, an affected party has no right to notice and an opportunity to
be heard.”). Adjudicative acts, by contrast, “affect specific individuals rather than
formulate broad public policy.” Washington Suburban, 631 F.3d at 184 (citing Alexander,
66 F.3d at 66). As a result, adjudicative acts give rise to procedural due process rights.
Here, neither Clayland nor Defendants dispute that Bill Nos. 1214 and 1257 were
legislative in nature. Bill Nos. 1214 and 1257 applied broadly, affecting all properties
zoned Village Center within Talbot County’s twenty-two Villages. Nevertheless, Clayland
argues that Bill Nos. 1214 and 1257 targeted the Property and, therefore, it is entitled to
procedural due process. The Court is not persuaded.
The Court has identified only one case in which the Fourth Circuit conducted a
procedural due process analysis when a litigant argued that an amendment to a county’s
master zoning plan targeted his property. See Pulte, 909 F.3d at 685. But Clayland’s
procedural due process argument is narrower than the claim in Pulte. Clayland alleges
solely that its procedural due process rights were violated because Bill Nos. 1214 and 1257
were passed without any post-deprivation remedies. Specifically, because neither Bill
provided for variances or special exceptions, Clayland argues its only avenue for relief
from the Bills was through the courts. In supplemental briefing, Clayland clarified that its
28
procedural due process claim is pled in the alternative to its takings claim. Citing Presley
v. City of Charlottesville, 464 F.3d 480 (4th Cir. 2006), Clayland argues that if the Court
rejects its takings claim, it has a viable procedural due process claim to recoup damages
that it suffered in the wake of Bill Nos. 1214 and 1257. But this argument presupposes that
Clayland has in fact suffered cognizable damages as either a regulatory taking or a violation
of procedural due process. In fact, as the Court explains below, all the process that Clayland
is due is the opportunity to litigate its claims in court.
Presley dealt with a physical taking and held that an “inverse condemnation action
for just compensation . . . provides all the process” a litigant is due. Id. at 489. Analogously,
a regulatory takings action provides all the process Clayland is due in the wake of the
passage of Bill Nos. 1214 and 1257. Clayland has spent close to five years litigating its
takings claim. Both this Court and the Fourth Circuit have weighed in. It strains credulity
to suggest that, despite these years of litigation and the inherently legislative nature of Bill
Nos. 1214 and 1257, Clayland has nonetheless been denied procedural due process
protections. See Henry 637 F.3d at 278–79 (expressing skepticism that plaintiff was denied
procedural due process “[a]fter years and years of litigation”).
Thus, there are no genuine disputes of material fact, and as a matter of law, neither
Bill No. 1214 nor Bill No. 1257 violated Clayland’s procedural due process rights.
Accordingly, the Court will deny Clayland’s Motion as to Count II and grant Defendants’
Motion as to Count II.22
22
Clayland and Defendants also move for summary judgment as to Count III of the
Second Complaint. Clayland alleges that Defendants violated both Article 24 of the
29
c.
Substantive Due Process Claim
Defendants move for summary judgment on Clayland’s substantive due process
claim. Defendants argue that Bill Nos. 1214, 1257, and 1229 were rationally related to
legitimate County purposes and fell far short of violating Clayland’s substantive due
process rights. Clayland counters that Defendants violated their substantive due process
rights because the challenged bills had no legitimate purpose and targeted the Property.23
The Court agrees with Defendants.
Maryland Declaration of Rights and § 40 of the Maryland Constitution. Article 24 is
interpreted in pari materia with the Fourteenth Amendment to the U.S. Constitution. Tyler
v. City of College Park, 3 A.3d 421, 435 (Md. 2010); see also B.N.S. by Stuart v. Brito,
No. ELH-17-2670, 2018 WL 5830565, at *8–9 (D.Md. Nov. 6, 2018); Meyers v. Baltimore
Cty., 981 F.Supp.2d 422, 430 (D.Md. 2013). Similarly, § 40 has the “same meaning and
effect in reference to an exaction of property,” and “decisions of the Supreme Court on the
Fourteenth Amendment are practically direct authorities” for its interpretation. Litz v. Md.
Dep’t of Env’t, 131 A.3d 923, 930 (Md. 2016) (citing Bureau of Mines of Md. v. George’s
Creek Coal & Land Co., 321 A.2d 748, 755 (1974)). Accordingly, because the Court has
concluded that Clayland fails to establish both a procedural due process violation and a
facial regulatory taking, the Court will deny Clayland’s Motion and grant Defendants’
Motion as to Count III of the Second Complaint.
23
Clayland contends that Bill Nos. 1214 and 1257 had an “invalid and arbitrary
purpose” as “de facto and unlawful downzoning” of the Property that was in place until the
County could legally downzone the Property. (Pl.’s Mot. at 18–19). In support of its
argument, Clayland relies on Requests for Admissions that it sent to Defendants which
they refused to answer and, as a result, Clayland considers admitted. Defendants move to
strike the Requests for Admissions because they were not timely served and, therefore,
Defendants declined to respond to them. Because a motion to strike may only “strike from
a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous
matter,” Fed.R.Civ.P. 12(f) (emphasis added), the Court construes Defendants’ motion as
a motion to withdraw, see Fed.R.Civ.P. 36(b) (“A matter admitted under this rule is
conclusively established unless the court, on motion, permits the admission to be
withdrawn or amended.”).
Here, the deadline for serving Requests for Admissions was July 9, 2018. (Apr. 3,
2018 Mem. Op. at 14, ECF No. 121). On July 18, 2018, the USMJ assigned to handle
discovery in this case extended the discovery deadline to August 31, 2018 to take two
additional depositions. (July 19, 2018 Order at 4–5, ECF No. 137). Clayland served
30
To establish a substantive due process violation, a plaintiff must demonstrate: “(1)
that [he] had property or a property interest; (2) that the state deprived [him] of this property
or property interest; and (3) that the state’s action falls so far beyond the outer limits of
legitimate governmental action that no process could cure the deficiency.” Quinn, 862 F.3d
at 443 (quoting Sylvia Dev. Corp. v. Calvert Cty., 48 F.3d 810, 827 (4th Cir. 1995)). In the
zoning context, substantive due process claims face “significant hurdles” because of the
court’s “oft-repeated extreme[] reluctan[ce] to upset the delicate political balance at play
in local land-use disputes.” Id. (alterations in original) (internal quotation marks omitted)
(quoting Henry, 637 F.3d at 278). Consequently, a plaintiff only succeeds on a substantive
due process claim if “the alleged purpose behind the state action has no conceivable rational
relationship to the exercise of the state’s traditional police power through zoning.” Sylvia,
48 F.3d at 827; see MLC Auto., LLC v. Town of S. Pines, 532 F.3d 269, 281 (4th Cir.
2008) (“[I]n the context of a zoning action involving property, it must be clear that the
state’s action ‘has no foundation in reason and is a mere arbitrary or irrational exercise of
Defendants with Requests for Admissions (the “Requests”) on July 30, 2018. (Pl.’s Mot.
Ex. 5 at 6, ECF No. 148-7). Because the discovery deadline had passed, defense counsel
informed Clayland’s counsel that Defendants were not going to respond to the Requests.
(Defs.’ Opp’n Ex. 17A at 2, ECF No. 158-20). Clayland, for its part, maintains that the
Requests were timely because it served them on Defendants thirty days before the August
31, 2018 discovery deadline. Clayland misinterprets the USMJ’s July 18, 2018 Order. The
Order states that Clayland “anticipates taking up to two additional fact depositions of
third[-]party witnesses and is coordinating dates for those depositions to take place as soon
as practicable. The discovery deadline is extended until August 31, 2018 to accommodate
those.” (July 19, 2018 Order at 5) (emphasis added). Thus, the USMJ extended the
discovery deadline for the sole purpose of taking two depositions; the USMJ did not extend
the deadline for all discovery. Accordingly, because Clayland served the Requests on
Defendants after the discovery deadline had passed, the Court declines to deem them
admitted and will withdraw them.
31
power having no substantial relation to the public health . . . [or] public safety.’” (quoting
Nectow v. City of Cambridge, 277 U.S. 183, 187–88 (1928))).
To assess whether a zoning decision meets this exacting standard, the Court may
consider whether: “(1) the zoning decision is tainted with fundamental procedural
irregularity; (2) the action is targeted at a single party; and (3) the action deviates from or
is inconsistent with regular practice.” MLC Auto., 532 F.3d at 281 (citing A Helping Hand,
515 F.3d at 373 n.10). In conducting this analysis, the Court bears in mind that the Fourth
Circuit has emphasized that violations of state law often do not rise to the level of a
substantive due process violation. Sylvia, 48 F.3d at 829 (“[T]he legality of a zoning
decision under applicable state law is not determinative of whether the decision violated
federal substantive due process.”).
Here, Bill Nos. 1214, 1257, and 1229 conceivably had rational relationships to the
County’s exercise of its traditional zoning powers. Bill Nos. 1214 and 1257 were enacted
to ensure that a rush to development under the preexisting zoning scheme did not undercut
the County’s 2016 Comprehensive Plan and concomitant rezoning. The Court
acknowledges its concern with the duration of Bill Nos. 1214 and 1257 and the
justifications the County offered for a six-year delay in enacting comprehensive rezoning.
But, establishing a substantive due process violation in the zoning context is exceedingly
difficult, and the moratoria were reasonably related to the County’s exercise of its zoning
powers. The Court, therefore, cannot conclude that Bill Nos. 1214 and 1257 had “no
conceivable rational relationship” to the County’s exercise of its zoning powers. Sylvia, 48
F.3d at 827.
32
Similarly, the County enacted Bill No. 1229 to comply with Maryland’s Septics
Law. Bill No. 1229 mirrored the growth tier map the Septics Law established. Clayland
takes issue with its tier designation, but this dispute does not cast doubt on the rational
relationship between Bill No. 1229 and the County’s exercise of its traditional zoning
powers, or the County’s mandate under the Septics Law. Defendants provide a reasonable
explanation for Clayland’s tier designation: the Property did not fit neatly into any of the
tiers the Septics Law established. The County, therefore, slotted the Property in the tiers
that most closely aligned with the Septics Law’s framework and the impending 2016
Comprehensive Plan. Defendants also identified multiple comparable properties that
received the same tier designation as the Property. (Defs.’ Opp’n at 16–17; id. Exs. 4, 14,
15). Thus, like Bill Nos. 1214 and 1257, the Court cannot conclude that Bill No. 1229 had
“no conceivable rational relationship” to the County’s zoning powers. Sylvia, 48 F.3d at
827.
Clayland also argues that the Bills rose to the level of a substantive due process
violation because they targeted the Property. In support of this argument, Clayland points
to statements made during the public hearings that preceded the enactment of Bill Nos.
1214 and 1257 which suggested that the County was predominantly concerned with the
development of large parcels of land. There is no evidence in the record, however, that by
“large parcels” the County meant the Property. Even assuming this were the case, the
Fourth Circuit has explained that: “[a] single [property] may provide the impetus for a
general zoning enactment, but that does not mean the enactment is aimed solely at that
[property].” Siena Corp. v. Mayor of Rockville, 873 F.3d 456, 464 (4th Cir. 2017). A
33
zoning enactment is not targeted so long as it applies to all similarly zoned properties. Id.
Here, Bill Nos. 1214 and 1257 applied to all properties zoned Village Center in County’s
villages, and Clayland does not point to any other evidence that the Bills targeted the
Property.
In sum, the Court concludes that there is no genuine dispute of material fact Bill
Nos. 1214, 1257, and 1229 were rationally related to the County’s exercise of its traditional
zoning powers and did not target the Property. Accordingly, the Court will grant
Defendants’ Motion as to Count III of the Original Complaint.
d.
Civil Conspiracy Claim
Defendants advance four arguments for dismissing Clayland’s civil conspiracy
claim: (1) all of Clayland’s § 1983 claims fail, and therefore, Clayland cannot establish a
civil conspiracy as a matter of law; (2) the intracorporate conspiracy doctrine bars
Clayland’s claims; (3) the individual Defendants are entitled to qualified immunity; and
(4) the Talbot County Planning Commission and the Advisory Board are not legal entities
distinct from Talbot County, and therefore cannot be sued. Clayland counters that: (1)
summary judgment is premature because under the supervision of a United States
Magistrate Judge, the parties agreed to postpone all discovery on Count IV until a later
date; (2) the intracorporate conspiracy doctrine does not apply; and (3) County agencies
are routinely sued under § 1983. The Court agrees with Defendants’ first argument.
To establish a civil conspiracy under § 1983, the plaintiff must establish: (1) that the
defendants “acted jointly in concert”; and (2) that “some overt act was done in furtherance
of the conspiracy which resulted in [the plaintiff’s] deprivation of a constitutional right.”
34
Hinkle v. City of Clarksburg, 81 F.3d 416, 421 (4th Cir. 1996). Here, because Clayland
fails to establish any of its underlying constitutional claims, it cannot prove a civil
conspiracy under § 1983. Accordingly, the Court will grant Defendants’ Motion as to
Count IV.
III.
CONCLUSION
For the foregoing reasons, the Court will deny Clayland’s Motion for Partial
Summary Judgment (ECF No. 148) and grant in part and deny as moot in part Defendants’
Motion for Summary Judgment (ECF No. 156). The Court will also dismiss as moot Counts
V, VI, and VII of the Original Complaint and Counts I, II, and IV of the Second Complaint.
A separate order follows.
Entered this 29th day of August, 2019.
/s/
George L. Russell, III
United States District Judge
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