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Quinn v. Board of County Commissioners for Queen Anne's County

United States District Court, D. Maryland

August 13, 2015

KEVIN QUINN, et al., Plaintiffs,

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[Copyrighted Material Omitted]

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          For Kevin Quinn, Queen Anne's Research and Development Corporation, Plaintiffs: David G Sommer, LEAD ATTORNEY, Anatoly Smolkin, Gallagher Evelius and Jones LLP, Baltimore, MD.

         For The Board of County Commissioners for Queen Anne's County, Marylan, Queen Anne's County Sanitary Commission, Defendants: Kurt J Fischer, LEAD ATTORNEY, Lucas John Polcyn, Venable LLP, Baltimore, MD.

         For PH.D Robert M. Summers, Maryland Department of the Environment, Defendants: Nancy W Young, Office of the Attorney General, Maryland Department of Environment, Baltimore, MD.

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         George L. Russell, III, United States District Judge.

         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 use in unincorporated communities such as South Kent Island. The Sanitary Commission is the public authority created pursuant to Md. Code Ann., Envir. § 9-607 (West 2015) to " exercise[] public and essential government functions, for the public health and welfare." The sanitary district consisting of Queen Anne's County (the " 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

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soil for disposing of sewage in septic systems. At least eighty percent of the septic systems in two South Kent Island subdivisions meet the State of Maryland's definition of a failed septic system. Failed septic systems discharge untreated or undertreated sewage onto the surface or into groundwater polluting the ground and surface waters and increasing the risk of disease caused by human contact with bacteria and viruses in human fecal matter. To address the public 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 to proceed with the construction of sewerage infrastructure. 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.

         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 approval of the Smart Growth Coordinating Committee (" SGCC" ); and (2) it required a funding agreement 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 funding to improve those properties. Specifically, stricter zoning and percolation requirements have 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 available to serve new development, vacant lots, or other properties along the path of the sewerage system. State 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.

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          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 and Smart Growth statutes, the County implemented several measures. First, the County amended its comprehensive Water and Sewer Plan to exclude large blocks of contiguous vacant lots from the " Service Area" and to only include vacant lots 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 created by failing septic systems and not financially justifiable or feasible in light of the 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. These two steps had the effect of reducing the number of vacant lots to receive municipal sewer service from approximately 1600 to 632. (MDE's Motion Ex. 2, at 6, ECF No. 14-3). 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.

         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. Each of the individual and separate lots provided an 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 development on a number of the properties. Several years later, however, the percolation test requirements changed, forcing Quinn to wait on his development plans until municipal sewer service was available on South Kent Island.

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          Many of the lots constituting the Quinn Properties are contiguous and undeveloped such that they form a large tract of undeveloped land. As a result, most of the Quinn Properties are excluded from the County's Service Area, even while many are contiguous to and surrounded by lots that are included. Quinn contends that by drawing and approving a sewer service area that excludes his parcels, his parcels become permanently ineligible for sewer service, effectively rendering his lots undevelopable and denying him all economically viable use of his property. 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, Quinn alleges the County's Grandfather/Merger Provision, forcing the merger of his separately recorded and platted lots as a condition to obtaining a building 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 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.


         A. ...

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