Quinn et al v. The Board of County Commissioners for Queen Anne's County, Maryland et al
Filing
22
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/13/2015. (ca2s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEVIN QUINN, et al.,
:
Plaintiffs,
:
v.
:
THE BOARD OF COUNTY
COMMISSIONERS FOR QUEEN ANNE’S
COUNTY, MARYLAND, et al.,
:
Civil Action No. GLR-14-3529
:
Defendants.
:
MEMORANDUM OPINION
Pending before the Court are Defendants’, the Board of County
Commissioners for Queen Anne’s County, Maryland, (“Commissioners”)
and
the
Queen
Anne’s
County
Sanitary
Commission
(“Sanitary
Commission” – collectively, the “County”), Motion to Dismiss or, in
the Alternative, for Summary Judgment (ECF No. 13) and Defendants’,
the Maryland Department of Environment (“MDE”) and Robert Summers,
in his official capacity as Secretary of the MDE (collectively
“MDE”), Motion to Dismiss Count IV of the Complaint (ECF No. 14).
Having reviewed the pleadings and supporting documents, the Court
finds no hearing necessary.
See Local Rule 105.6 (D.Md. 2014).
For the reasons outlined below, the Motions will be granted.
I. BACKGROUND
Queen Anne’s County is a political subdivision of the State of
Maryland.
It
is
governed
by
the
Commissioners,
who
have
—
among other police powers to protect the public health, safety, and
welfare
—
the
power
to
regulate
land
communities such as South Kent Island.
use
in
unincorporated
The Sanitary Commission is
the public authority created pursuant to Md. Code Ann., Envir. § 9607
(West
functions,
district
2015)
to
for
the
consisting
“exercise[]
public
of
public
health
Queen
and
Anne’s
and
essential
welfare.”
County
The
(the
government
sanitary
“Sanitary
District”) is under the jurisdiction and control of the County
Commissioners, who sit as the Sanitary Commission. Queen Anne’s
County Code §§ 24-1, 24-4.
The opening of the initial span of the Chesapeake Bay Bridge
brought with it widespread residential development on South Kent
Island, an area with abundant waterfront, prior to Queen Anne’s
County’s
adoption
of
zoning
and
subdivision
regulations.
Developers were able to create thousands of small lots simply by
recording a plat among the land records. Most residential lots
platted during that time were relatively small, and all of the
developed lots exclusively rely on wells and septic systems.
It
became clear over time, however, that the land is unsuited for
intense residential development that relies on septic systems.
Environmental and practical concerns related to and arising
from the Chesapeake Bay watershed shape the County’s regulation of
land use and administration of the Sanitary District, particularly
in the South Kent Island area.
This area is low-lying, and has a
high water table and poor soil for disposing of sewage in septic
2
systems.
South
At least eighty percent of the septic systems in two
Kent
definition
Island
of
a
subdivisions
failed
meet
septic
the
system.
State
Failed
of
Maryland’s
septic
systems
discharge untreated or undertreated sewage onto the surface or into
groundwater polluting the ground and surface waters and increasing
the
risk
viruses
of
in
disease
human
caused
fecal
by
human
contact
with
To
address
the
matter.
bacteria
public
and
health
problems presented by failing septic systems, the County seeks to
extend municipal sewerage service to certain areas of South Kent
Island.
The availability of funding has been a key factor in the
County’s
ability
infrastructure.
to
proceed
with
the
construction
of
sewerage
Thus, the County has undertaken this program in
cooperation with the State of Maryland by entering into a funding
agreement in anticipation of a grant.
The State’s Bay Restoration
Fund, which awards grants to counties and municipalities for the
purpose
of
connecting
developed
properties
with
failing
septic
systems to a wastewater treatment plant, was initially restricted
to certain properties located within the State’s “priority funding
areas” (“PFA”). Md. Code Ann., Envir. § 9-1605.2 (West 2015).
This
restriction on funding is premised on Maryland’s Smart Growth Law,
codified primarily in Md. Code Ann., State Finance and Procurement
§§ 5-7B-01 et seq. (West 2015), which limits State funding for
growth-related projects outside PFAs.
3
South Kent Island is located outside the State’s PFA and,
thus, was not eligible for State funding.
In 2014, however, the
Legislature amended Envir. § 9-1605.2(h)(5) in order to allow the
MDE to subsidize a sewerage system that serves areas outside of a
PFA
if
certain
requirements
were
satisfied.
The
Legislature
imposed two conditions that are relevant here: (1) it required a
PFA exception under State Fin. & Proc. § 5-7B-06 (West 2015), which
required
(“SGCC”);
approval
and
(2)
of
the
Smart
it
required
a
Growth
funding
Coordinating
agreement
Committee
to
include
provisions to ensure denial of access to future connections outside
the
service
area.
Envir.
§
9-1605.2(h)(5)(iv)2
to
(v).
The
funding agreement at the center of this dispute incorporated the
restrictions required by this amendment.
To proceed with the construction of sewerage infrastructure,
the County was required to reconcile its obligations under State
law to serve certain properties with municipal sewer service once
the line was constructed with the limitations on the availability
of
State
stricter
funding
zoning
to
and
improve
those
percolation
properties.
requirements
have
Specifically,
resulted
in
numerous small and unimproved lots contiguous with improved lots
with existing homes being barred from employing individual septic
systems.1
Under Maryland’s Smart Growth Law, State funding is not
1
The County imposed strict percolation requirements in the
late 1980s, preventing residential improvement using septic systems
on many of the undeveloped lots in South Kent Island.
Moreover in
1987, the County enacted a zoning ordinance which included
4
available
to
serve
properties
along
new
the
development,
path
of
the
vacant
sewerage
lots,
other
State
system.
or
law,
however, requires a county sanitary commission to provide services
to abutting property owners with the “Service Area.”2
Md. Code
Ann., Envir. § 9-661.
The County and SGCC are also concerned with the potential
overdevelopment caused by providing sewer service to existing, but
currently unbuildable, vacant lots within the planned Service Area.
(MDE’s Mot. to Dismiss Count IV of the Complaint [“MDE’s Motion”]
Ex.
1,
at
7-8,
ECF
No.
14-2).
The
County
is
concerned
that
continued overdevelopment of the NC-20 District would negatively
impact its ability to evacuate Kent Island in the event of an
emergency and provide adequate roads, schools, and other public
facilities to serve an increased population.
Id. at 8.
SGCC also
found that restricting the number of lots eligible to receive sewer
service was necessary because of the limited sewage capacity at the
wastewater treatment plant.
Id. at 9.
To minimize development while also complying with the State’s
environmental
several
and
measures.
Smart
Growth
First,
the
statutes,
County
the
amended
County
its
implemented
comprehensive
Water and Sewer Plan to exclude large blocks of contiguous vacant
lots
from
the
“Service
Area”
and
to
only
include
vacant
lots
provisions prohibiting any property within the NC-20 District
platted and recorded after 1987 from being used for residential
development unless the lot size is 20,000 square feet or greater.
2
The “Service Area” sets forth the geographical boundaries of
an area to be provided with sewer service.
5
interspersed among existing homes.3
Streets and blocks with only
vacant lots along with fully undeveloped streets were generally
excluded from the Service Area because the extension of service to
those areas was deemed unnecessary to correct the existing public
health
problems
financially
created
justifiable
by
or
failing
feasible
septic
in
systems
light
of
the
and
not
limited
resources available.
Second, the County reduced the number of potential vacant lots
by
passing
Ordinance
No.
13-24
(the
“Grandfather/Merger
Provision”), which essentially requires unimproved lots to merge
with contiguous unimproved or improved lots that were under the
same
ownership
on
November
12,
2013,
as
needed
to
achieve
conformity with the NC-20 District’s 20,000-square foot minimum lot
size requirement or to prevent leaving a contiguous substandard
“orphan” lot that is under the same ownership.
the
effect
of
reducing
the
number
to
receive
municipal sewer service from approximately 1600 to 632.
(MDE’s
Motion Ex. 2, at 6, ECF No. 14-3).
of
These two steps had
vacant
lots
Moreover, as a condition of
funding and a requirement of the 2014 Legislative Amendment, the
final funding agreement included a “Denied-Access Provision,” which
denies
all
future
connections
outside
the
project’s
proposed
service area.
3
Although the Complaint alleges that Resolution No. 14-07
creates the geographic boundaries of the Service Area, it merely
imposes the benefit assessments within the Wastewater Subdistrict
to help finance the sewer project.
6
Plaintiffs Kevin Quinn and Queen Anne Research and Development
Corporation (collectively “Quinn”) purchased no fewer than 232 lots
on South Kent Island (the “Quinn Properties”), ranging in size from
5,000 to 70,200 square feet, between 1984 and 2002.
individual
and
separate
lots
provided
an
Each of the
unrestricted
right
of
access to a private beachfront on the Chesapeake Bay and certain
Transferrable Development Rights under the local County Code.
At
the time of acquisition, many of the lots were exempt from zoning
restrictions
and
Quinn
was
entitled
to
develop
and
build
residential housing on each of the individual lots irrespective of
its area or frontage.
Further, the soil condition on most of the
Quinn Properties satisfied the percolation testing requirements to
permit
residential
Several
years
changed,
development
later,
forcing
however,
Quinn
to
on
the
wait
a
number
of
percolation
on
his
the
test
development
properties.
requirements
plans
until
municipal sewer service was available on South Kent Island.
Many
of
the
lots
constituting
the
Quinn
Properties
are
contiguous and undeveloped such that they form a large tract of
undeveloped land.
excluded
from
As a result, most of the Quinn Properties are
the
County’s
Service
Area,
even
while
many
contiguous to and surrounded by lots that are included.
are
Quinn
contends that by drawing and approving a sewer service area that
excludes his parcels, his parcels become permanently ineligible for
sewer
service,
denying
him
effectively
all
rendering
economically
viable
7
his
lots
use
of
undevelopable
his
property.
and
He
alleges
this
government
action
constitutes
an
unconstitutional
taking under the Fifth Amendment and a violation of his substantive
and procedural due process rights under the Fourteenth Amendment.
Moreover,
Provision,
platted
Quinn
forcing
lots
as
a
alleges
the
merger
condition
the
County’s
of
to
his
Grandfather/Merger
separately
obtaining
a
recorded
building
and
permit,
unconstitutionally interferes with his distinct investment-backed
expectations when he purchased each of the lots separately and
individually.
As the owner of the largest number of contiguous,
non-conforming, and undeveloped lots in the Kentmorr subdivision of
South Kent Island, Quinn alleges he has been disproportionately
affected by the Ordinance which deprives him of all economically
viable use of his land.
On November 11, 2014, Quinn filed a Complaint for declaratory
and
injunctive
relief
and
damages
alleging
the
County’s
Grandfather/Merger Provision and Water and Sewer Plan, separately
and
together,
constitute:
(1)
a
taking
of
his
unimproved
lots
without just compensation in violation of the Fifth Amendment to
the United States Constitution (Count I) and Article 24 of the
Maryland
Constitution
(Count
V)
–
(collectively
the
“Takings
Claim”); (2) violations of equal protection under the Fourteenth
Amendment to the United States Constitution (Count II) and Article
24 of the Maryland Constitution (Count VI) – (collectively the
“Equal Protection Claim”); and (3) violations of substantive and
procedural due process under the Fourteenth Amendment to the United
8
States Constitution (Count III).
Quinn also alleges the MDE acted
in violation of his substantive and procedural due process under
the Fourteenth Amendment to the United States Constitution (Count
IV) by approving the 2011 Queen Anne’s County comprehensive Water
and Sewer Plan excluding his parcels.
II. DISCUSSION
A.
Standards of Review
A Federal Rule of Civil Procedure 12(b)(6) motion should be
granted unless an adequately stated claim is “supported by showing
any set of facts consistent with the allegations in the complaint.”
Bell
Atl.
Corp.
v.
Twombly,
550
U.S.
544,
563
(2007);
see
Fed.R.Civ.P. 12(b)(6).
“‘[T]he purpose of Rule 12(b)(6) is to test
the
complaint’
sufficiency
of
a
and
not
to
‘resolve
contests
surrounding the facts, the merits of a claim, or the applicability
of defenses.’”
Presley v. City of Charlottesville, 464 F.3d 480,
483 (4th Cir. 2006) (alterations omitted)(quoting Edwards v. City
of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999)).
“A pleading that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the
elements of a cause of action will not do.’”
Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555.
complaint
is
also
insufficient
if
it
relies
upon
assertion[s]’ devoid of ‘further factual enhancement.’”
A
“‘naked
Iqbal, 556
U.S. at 678 (alteration in the original) (quoting Twombly, 550 U.S.
at 557).
9
To survive a Rule 12(b)(6) motion to dismiss, a complaint must
set forth “a claim for relief that is plausible on its face.”
Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 570.
A claim is
facially plausible “when the plaintiff pleads factual content that
allows
the
court
to
draw
the
reasonable
inference
defendant is liable for the misconduct alleged.”
at 678; Twombly, 550 U.S. at 556.
dismiss,
the
court
should
accept
that
the
Iqbal, 556 U.S.
“In considering a motion to
as
true
all
well-pleaded
allegations and should view the complaint in a light most favorable
to the plaintiff.”
Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134
(4th Cir. 1993).
“When ‘matters outside the pleading are presented to and not
excluded by the court, the [12(b)(6)] motion shall be treated as
one for summary judgment and disposed of as provided in Rule 56.’”4
4
The United States Court of Appeals for the Fourth Circuit
has articulated two requirements for proper conversion of a Rule
12(b)(6) motion.
First, the “parties [must] be given some
indication by the court that it is treating the 12(b)(6) motion as
a motion for summary judgment” and, second, “the parties [must]
first be afforded a reasonable opportunity for discovery.” Greater
Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor & City Council of
Balt., 721 F.3d 264, 281 (4th Cir. 2013) (quoting Gay v. Wall, 761
F.2d 175, 177 (4th Cir. 1985)).
The alternative caption of the
County’s Motion and the attached exhibits are sufficient indicia
that the Motion might be treated as one for summary judgment. See
Moret v. Harvey, 381 F.Supp.2d 458, 464 (D.Md. 2005).
Once notified, “summary judgment is appropriate only after
‘adequate time for discovery.’”
Evans v. Techs. Applications &
Serv. Co., 80 F.3d 954, 961 (4th Cir. 1996) (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)).
The failure to file an
affidavit specifying legitimate needs for discovery “is itself
sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.” Nguyen v. CNA Corp., 44 F.3d 234, 242
(4th Cir. 1995) (quoting Paddington Partners v. Bouchard, 34 F.3d
10
Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th
Cir. 1998) (alteration in original) (quoting Fed.R.Civ.P. 12(b)).
Under Federal Rule of Civil Procedure 56, the Court must grant
summary
judgment
if
the
moving
party
demonstrates
there
is
no
genuine issue as to any material fact, and the moving party is
entitled to judgment as a matter of law.
Fed.R.Civ.P. 56(a).
In reviewing a motion for summary judgment, the Court views
the
facts
in
a
light
most
favorable
to
the
non-moving
party.
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)).
Once a
motion for summary judgment is properly made and supported, the
opposing party has the burden of showing that a genuine dispute
exists.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986).
“[T]he mere existence of some alleged
factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.”
Anderson, 477
U.S. at 247-48 (alteration in original).
A “material fact” is one that might affect the outcome of a
party’s case.
Id. at 248; see also JKC Holding Co. v. Wash. Sports
Ventures, Inc., 264 F.3d 459, 465 (4th Cir. 2001) (citing HoovenLewis v. Caldera, 249 F.3d 259, 265 (4th Cir. 2001)).
fact
is
considered
to
be
“material”
is
determined
Whether a
by
the
1132, 1137 (2d Cir. 1994)).
Here, because Quinn has failed to
specify a need for discovery, construing the County’s Motion as one
for summary judgment is appropriate.
11
substantive law, and “[o]nly disputes over facts that might affect
the
outcome
of
the
suit
under
the
governing
preclude the entry of summary judgment.”
law
will
properly
Anderson, 477 U.S. at
248; accord Hooven-Lewis, 249 F.3d at 265.
B.
Analysis
1.
Due Process Claims
Quinn
claims
he
was
denied
substantive
due
process
by
Defendants failure to extend sewer service to his parcels, which
effectively has rendered his lots undevelopable and denied him all
economically viable use of his property.
Because Queen Anne’s
County land-use regulations confer upon the Sanitary Commission and
the MDE significant discretion to define the County’s sewer Service
Area, however, Quinn has failed to demonstrate a constitutionally
protected property interest in public sewer access.
In considering any due process claim, the starting point is
identifying
a
constitutionally
protected
property
interest.
Gardner v. City of Balt. Mayor & City Council, 969 F.2d 63, 68 (4th
Cir. 1992); see also Frall Developers, Inc. v. Bd. of Cty. Comm’rs
for Frederick Cty., No. CCB-07-2731, 2008 WL 4533910, at *8 (D.Md.
Sept.
30,
2008)
(“[T]he
“starting
point”
for
analyzing
any
procedural due process claim is to determine whether the plaintiff
has a protected property interest ‘sufficient to trigger federal
due process guarantees.’” (quoting Scott v. Greenville Cty., 716
F.2d 1409, 1418 (4th Cir. 1983))).
Property interests under the
Fourteenth Amendment “are created and their dimensions are defined
12
by existing rules or understandings that stem from an independent
source such as state law . . . .” Id. (alteration in the original)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).
In
Roth, the Supreme Court of the United States explained that “[t]o
have a property interest in a benefit, a person clearly must have
more than an abstract need or desire for it. He must have more than
a
unilateral
expectation
of
it.
He
legitimate claim of entitlement to it.”
The
Fourth
Circuit
applies
must,
instead,
have
a
408 U.S. at 577.
Roth’s
“claim
of
entitlement”
standard to municipal land-use decisions such as the one at issue
here.
Gardner,
969
F.2d
at
68.
Under
this
approach,
any
significant discretion conferred upon the Sanitary Commission and
the MDE to define the County’s sewer Service Area defeats Quinn’s
claim of a property interest in being included in the Service Area.
See id.
Thus, Quinn’s interest in public sewer access-if he has
any at all-is created and defined by Md. Code Ann., Envir. §§ 9-601
et seq.
Under Maryland law, a sanitary commission may create or alter
individual service areas and service subareas within the district
without any qualifying criteria, Md. Code Ann., Envir. §§ 9-647,
648, 652; and MDE may approve, disapprove, approve in part, or
modify the proposal without any qualifying criteria, Md. Code Ann.,
Envir. § 9-507(a).
Thus, Maryland’s Environment Article confers
significant discretion upon the Sanitary Commission and the MDE to
define and approve the service areas within the county.
13
Nevertheless, Quinn argues that Md. Code Ann., Envir. § 9-661
creates an independent obligation by the Sanitary Commission to
construct a connector to the property line of each parcel that
abuts the sewer line.
Thus, Quinn argues, Md. Code Ann., Envir. §
9-661 establishes a legitimate claim of entitlement to a sewer-line
connector under State law.
The obligation created by Envir. § 9-
661, however, extends only to properties within the defined Service
Area.
In
require
isolation,
a
Envir.
connector
for
§
9-661(a)(1)
any
abutting
may
be
interpreted
to
however,
the
property;
sections of the statute must be read together to ascertain the true
intention of the Legislature.
U.S. 455, 464 (1934).
the
discretion
to
See Helvering v. N.Y. Trust Co., 292
Envir. § 9-666 gives the Sanitary Commission
extend
a
contiguous to a service area.
project
to
properties
that
are
Moreover, a sanitary commission’s
significant discretion to define service areas would be undermined
if it were required to provide sewage service to every property
that
is
either
interceptor
lines
contiguous
to
transporting
area to a treatment plant.
a
service
sewage
from
area
a
or
that
designated
abuts
service
Thus, the Court concludes that Md. Code
Ann., Envir. § 9-661 does not create an “entitlement” to public
sewer access.
Accordingly, Quinn’s due process claim fails as a
matter of law.5
5
Because Quinn has failed to demonstrate a constitutionally
protected property interest, there is no need to reach the question
14
2.
Takings Claim
Quinn
alleges
the
Grandfather/Merger
Provision
and
the
County’s Water and Sewer Plan, separately and collectively, deprive
him of all economically viable use of his property constituting an
unconstitutional taking under the Fifth Amendment.
The Takings Clause of the Fifth Amendment does not bar the
taking of private property, but rather requires compensation in the
event
an
“otherwise
proper
amount[s] to a taking.”
interference
[with
private
property]
First English Evangelical Lutheran Church
of Glendale v. L.A. Cty., Cal., 482 U.S. 304, 314-15 (1987); U.S.
Const.
Amend.
V.
Thus,
to
the
extent
Quinn
does
not
seek
compensation for a taking of his property, but rather an injunction
against
the
enforcement
of
the
County’s
regulatory
scheme
that
Quinn alleges to be arbitrary and irrational, his claim sounds in
due process and has been addressed above.
To the extent Quinn
seeks declaratory relief, “property may be regulated to a certain
extent,
if
regulation
goes
recognized as a taking.”
too
far[,
however,]
it
will
be
Lingle v. Chevron U.S.A. Inc., 544 U.S.
528, 537 (2005) (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415
(1922)).
Regulations
that
deny
a
property
owner
all
“economically
viable use of his land” constitute one of the discrete categories
of regulatory deprivations that require compensation without the
of whether excluding his properties from the County’s Water and
Sewer Plan was arbitrary or capricious.
See Gardner, 969 F.2d at
68.
15
usual case-specific inquiry into the public interest advanced in
support of the restraint.
1003, 1015 (1992).
Lucas v. S.C. Coastal Council, 505 U.S.
In Lucas, the Supreme Court held that where a
regulation completely deprives a property owner of all economically
beneficial use, the government must pay compensation “except to the
extent that ‘background principles of nuisance and property law’
independently restrict the owner’s intended use of the property.”
Id. at 1004.
First,
Quinn
contends
that
because
the
Grandfather/Merger
Provision independently prohibits a residential dwelling from being
built upon an individual non-conforming lot, no market exists for
the
sale
of
his
individual
non-conforming
lots;
therein
wholly
depriving him of the value of each individual non-conforming lot
including the value of each individual lot’s unrestricted right of
access
to
the
private
beachfront
and
certain
Transferrable
Development Rights. The Grandfather/Merger Provision, however, does
not deprive Quinn of all economically viable use of his property.
The Grandfather/Merger Provision merely merges the individual lots
to form a larger residential lot.
does
cause
some
economic
harm
While the challenged action
associated
with
the
loss
of
individual unrestricted rights of access to the private beachfront
and
certain
lot,6
the
Transferrable
Court
finds
Development
that
the
6
lots
Rights
are
of
not
each
individual
stripped
of
all
See discussion infra (addressing Quinn’s Taking Claim with
respect to the diminished value of his property).
16
beneficial
use
because
they
are
simply
developable
as
larger
residential lots.
Next, Quinn contends that collectively the County’s Water and
Sewer Plan and the Grandfather/Merger Provision deprives him of all
economically
scheme
viable
permanently
use
of
denies
his
him
property
sewer
service,
renders his merger lots undevelopable.
sustain
regulation
that
deprives
because
the
which
regulatory
effectively
“Where the State seeks to
land
of
all
economically
beneficial use” without compensation, Lucas, 505 U.S. at 1027, the
limitation “must inhere in the title itself, in the restrictions
that
background
principles
of
the
State’s
law
of
property
and
nuisance already place upon land ownership,” id. at 1029.
Here, Quinn has not demonstrated that his exclusion from the
County’s Water and Sewer Plan is the proximate cause of his lots
being
undevelopable.
In
fact,
Quinn
concedes
that
the
implementation of stricter percolation test requirements left his
lots undevelopable until the possibility of sewer service came to
fruition.
(Quinn Aff. ¶5, ECF No. 17-1).
Quinn never gained
eligibility for municipal sewer access and has alleged no facts to
support a legitimate expectation that his undeveloped parcels would
ever be eligible for municipal sewer service.
the
title
when
Quinn
invested
in
his
Indeed, inherent in
properties
on
South
Kent
Island was the implied limitation that he would have to provide his
own water and sanitary waste disposal.
All developed properties on
South Kent Island are currently, and have always been, serviced by
17
septic
tanks
and
the
County
service to any property.
does
not
provide
municipal
sewer
(Quinn Aff. ¶13).
Further, while Quinn contends that the Sanitary Commission
adopted
a
2006
Water
Service
Area
for
South
Kent
Island
that
outlines areas that were expected to receive sewer service in the
future, he does not allege that his properties were included in the
2006 geographic Service Area.
(See Quinn Aff. ¶14).
Even assuming
his properties were identified in 2006 for potential future sewer
service,
Quinn
purchased
his
properties
between
(See Quinn Aff. ¶5); (see also Compl. ¶ 9).
failed
to
allege
his
investment
was
1984
and
2002.
Quinn, therefore, has
backed
by
any
legitimate
expectation that his parcels would be provided with public sewer
service.
Moreover, even assuming Quinn’s lots were ever included in the
County’s Water and Sewer Plan, eligibility for a sewer connector
does not necessarily guarantee a right to sewer service.
Other
lawful restrictions may result in the further denial of service.
See Neifert v. Dep’t of Env’t, 910 A.2d 1100, 1119 (Md. 2006)
(finding, under facts very similar to those in the instant dispute,
that the denials of plaintiffs’ sewer permits did not constitute a
taking because they fell within the nuisance exception recognized
by the Supreme Court in Lucas).
To the extent the challenged action does diminish the value of
Quinn’s
property
with
respect
to
the
loss
associated
with
the
unrestricted rights of access to the private beachfront and certain
18
Transferrable
Development
Rights
of
each
individual
lot,
“regulatory takings challenges are governed by the standards set
forth in Penn Cent. Transp. Co. v. N.Y. City, 438 U.S. 104 (1978).
Lingle, 544 U.S. at 538 (explaining that outside of the discrete
category of regulatory deprivation governed by Lucas, Penn Central
analysis applies).
Although the Court in Penn Central did not develop a set
formula
for
evaluating
regulatory
takings
claims,
several factors of particular significance.
Co., 438 U.S. at 124.
of
the
regulation,
interferes
with
it
identified
Penn Cent. Transp.
Among those factors are the economic impacts
particularly
the
to
the
claimant’s
extent
distinct
the
regulation
investment-back
expectations, and the character of the governmental action.
Id.
A
“taking,” however, is less likely to be found when interference
with
property
“arises
from
some
public
program
adjusting
the
benefits and burdens of economic life to promote the common good.”
Id.
Indeed, zoning laws are the classic example of permissible
governmental action even where they prohibit “a beneficial use to
which
individual
parcels
had
previously
caused substantial individualized harm.”
been
devoted
and
thus
Id. at 125.
Here, the Court finds that the County’s Grandfather/Merger
Provision is substantially related to the promotion of the general
welfare
by
(1)
overdevelopment
regulating
on
the
land
use
environment
to
reduce
and
the
limited
impact
of
municipal
facilities; and (2) achieving minimum lot sizes consistent with
19
modern land use principles and necessary to maximize its limited
financial resources in addressing the public health crisis facing
the
fully-developed
and
partially-developed
Island with failing septic tanks.
areas
of
South
Kent
“[W]here the public interest is
involved[,] preferment of that interest over the property interest
of the individual, to the extent even of its destruction, is one of
the distinguishing characteristics of every exercise of the police
power which affects property.”
279-80
(1928).
Accordingly,
Miller v. Schoene, 276 U.S. 272,
the
Court
concludes
that
the
Grandfather/Merger Provision and the County’s Water and Sewer Plan,
separately7 and collectively, do not constitute an unconstitutional
taking as a matter law.
3.
Equal Protection Claim
Quinn generally alleges that the geographical boundaries of
the Service Area and the Grandfather/Merger Provision are targeted
measures undertaken by the County Commissioners to prevent him from
developing his property.
Quinn contends that because he owns a
majority of the contiguous, nonconforming, and undeveloped lots in
7
The Court will not consider whether exclusion from the
County’s Water and Sewer Plan constitutes a taking independent of
the Grandfather/Merger Provision because the Court has already
concluded that Quinn has failed to demonstrate a constitutionally
protected property interest in public sewer access. See Frall
Developers, Inc. v. Bd. of Cty. Comm’rs for Frederick Cty., No.
CCB-07-2731, 2008 WL 4533910, at *8 (D.Md. Sept. 30, 2008) (“To
make a successful claim under the Takings Clause, a plaintiff must
establish that it possesses a constitutionally protected property
interest before the court will examine whether governmental use or
regulation of that property constitutes a taking.” (citing
Washlefske v. Winston, 234 F.3d 179, 184–86 (4th Cir. 2000))).
20
the
Kentmorr
subdivision
of
South
Kent
Island,
the
Grandfather/Merger Provision will disproportionately deprive him of
a
significant
number
residential building.
Service
Area
of
his
lots
previously
eligible
for
He further alleges the boundaries of the
are
arbitrarily
defined
in
a
manner
that
disproportionately affects his property and excludes them from the
geographical area that would be served with public sewer access,
although it provides for sewer service to properties contiguous
with and adjacent to his.
Quinn, however, has failed to allege any
facts
he
demonstrating
similarly-situated
that
property
is
being
owners
and
treated
differently
demonstrate
either
than
the
County’s decision to exclude large tracts of undeveloped land from
its Water and Sewer Plan or the Grandfather/Merger Provision are
not rationally related to a legitimate state interest.
The Fourteenth Amendment’s Equal Protection Clause prohibits
state action that denies a person equal protection “through the
enactment,
administration,
regulations.”
or
enforcement
of
its
laws
and
Sylvia Dev. Corp. v. Calvert Cty., Md., 48 F.3d 810,
818 (4th Cir. 1995).
The Supreme Court of the United States has
also recognized an equal protection claim as a “class of one” where
a plaintiff alleges it has “been intentionally treated differently
from others similarly situated and that there is no rational basis
for the difference in treatment.”
Cty.,
281
F.3d
430,
439
(4th
Tri Cty. Paving, Inc. v. Ashe
Cir.
2002)
Willowbrook v. Olech, 528 U.S. 562, 564 (2000)).
21
(quoting
Vill.
of
The County argues that Quinn has failed to allege he has been
treated differently because other owners of undeveloped lots are
subject
to
both
the
Grandfather/Merger
excluded from the Service Area.
Provision
and
have
been
Indeed, the Grandfather/Merger
Provision is a zoning ordinance of general application and applies
to all unimproved lots in the NC-20 District.
least
thirty-nine
similarly-situated
Additionally, at
properties
Island have been excluded from the Service Area.
on
South
Kent
Moreover, not all
of Quinn’s Properties have been excluded from the Service Area.
Thus, Quinn has failed to allege any facts demonstrating that he is
being treated differently than similarly-situated property owners.
Even assuming Quinn did allege sufficient facts demonstrating
that
he
property
is
being
owners,
demonstrate
that
treated
he
has
such
differently
failed
to
than
allege
differential
similarly-situated
facts
treatment
sufficient
resulted
purposeful discrimination under the “class of one” theory.8
therefore,
has
failed
to
state
a
claim
for
relief
to
from
Quinn,
under
the
traditional9 or “class of one” equal protection analysis.
8
While Quinn argues Olech merely requires a showing of
differential treatment, Olech actually requires a showing that
differential treatment resulted from purposeful discrimination.
Olech, 528 U.S. at 564-65 (requiring factual allegations showing an
element of “subjective ill will” to state a claim for relief under
a “class of one” equal protection analysis).
9
Under the traditional equal protection analysis, “[t]o prove
that a statute has been administered or enforced discriminatorily,
more must be shown than the fact that a benefit was denied to one
person while conferred on another. A violation is established only
if
the
plaintiff
can
prove
that
the
state
intended
to
22
Additionally, “[o]rdinarily, when a state regulation or policy
is challenged under the Equal Protection Clause, unless it involves
a fundamental right or a suspect class, it is presumed to be valid
and will be sustained ‘if there is a rational relationship between
the
disparity
purpose.’”
(quoting
of
treatment
and
some
legitimate
governmental
Veney v. Wyche, 293 F.3d 726, 731 (4th Cir. 2002)
Heller
v.
Doe,
509
U.S.
312,
319–20
(1993)).
Here,
neither a “fundamental right” nor a “suspect” classification is at
issue.
Rather, Quinn alleges the Grandfather/Merger Provision and
the geographical boundaries of the Service Area, separately and
collectively, disproportionately targeted and arbitrarily affected
his property.
Regardless of the actual motivation for the County’s action,
“the pertinent question for determining whether the governmental
action violated the Equal Protection Clause is whether [County]
officials
reasonably
could
have
believed
that
the
action
rationally related to a legitimate governmental interest.”
was
Front
Royal & Warren Cty. Indus. Park Corp. v. Town of Front Royal, Va.,
135 F.3d 275, 290 (4th Cir. 1998); see also id. (setting aside
actual motivation for an objectively-reasonable analysis).
It
is
undisputed
that
the
County
has
a
legitimate
state
interest in preserving and enhancing the public health, safety, and
discriminate.” Sylvia Dev. Corp., 48 F.3d at 819 (emphasis in the
original) (citation omitted).
23
welfare of fully-developed and partially-developed areas of South
Kent Island with failing septic tanks.
To ensure that it devised a
regulatory scheme in accordance with State law, the County sought
the
advice
of
the
Attorney
General
of
Maryland
(the
“Attorney
General”) concerning the law governing the County’s extension of
sewerage service.
The
Attorney
See generally 90 Op. Att’y 60 (April 13, 2005).
General
concluded
that
under
State
law,
the
County is required to provide a sewer “connector for each vacant
lot within a service area that is interspersed among developed lots
along a right-of-way in which the sewer line is laid.”
Id. at 61.
If it is feasible to design a sewer system without including a
street with vacant lots, however, the County is not obligated to
provide service to that street.
Id.
Further, the County is not
required to provide sewerage service outside the defined service
area.
Id. at 62.
Because the availability of funding has been a key factor in
the
County’s
ability
to
address
the
public
health
problems
presented by the failing septic systems, it entered into a funding
agreement
Maryland’s
in
anticipation
Smart
available
to
properties
along
Growth
serve
the
new
path
of
Law,
a
grant
however,
development,
of
the
from
the
State
vacant
sewerage
State.
funding
lots,
system.
Under
is
or
not
other
Thus,
the
State’s funding restrictions, combined with the County’s interest
in reducing the impact of overdevelopment, required it to devise a
24
regulatory scheme that limited the eligibility of sewer service to
a minimum number of lots.
The Court concludes the County reasonably believed that both
its
Water
and
separately
Sewer
and
obligations
municipal
Plan
and
collectively,
under
sewer
State
law
service
the
Grandfather/Merger
were
to
while
rationally
serve
related
certain
establishing
Provision,
to
properties
a
its
with
mechanism
for
financing a waste disposal service appropriate for the conditions
on South Kent Island.
Moreover, the County has an independent
legitimate governmental interest in regulating land use to reduce
the impact of overdevelopment on the environment and limited public
facilities.
that
the
The Court concludes the County reasonably believed
Grandfather/Merger
achieving
minimum
principles.
lot
Provision
sizes
advances
consistent
with
that
interest
modern
land
by
use
Accordingly, Quinn’s Equal Protection Claim fails as a
matter of law.
III. CONCLUSION
For the reasons given above, the County’s Motion to Dismiss
or, in the Alternative, for Summary Judgment (ECF No. 13) and the
MDE’s Motion to Dismiss Count IV of the Complaint (ECF No. 14) are
GRANTED.
A separate Order will follow.
Entered this 13th day of August, 2015
/s/
_____________________________
George L. Russell, III
United States District Judge
25
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