After losing her campground business to decades of raw sewage contamination, the Maryland Court of Appeals has ruled 4-3 that Gail Litz of Goldsboro can finally sue Maryland Department of the Environment for not enforcing a consent order that could have saved it.
“This is a major decision as it relates to the duties and liabilities of state and local government to take responsibility for their actions, and their inactions, when they are so obligated by the rule of law,” said a statement from Chestertown attorney, Phil Hoon, who has represented Litz in her six-year struggle to get a jury trial. “Ms. Litz will finally have her day in court. The matter will now proceed to a jury trial in the Caroline County Circuit Court.”
Hoon hopes a victory for his client at trial can set a precedent that mandates MDE to enforce its consent orders.
“How can the State effectively enforce environmental laws and regulation against farmers, industry and other property owners if it cannot diligently and effectively pursue its own enforcement actions against well-known sources of municipal pollution,” Hoon said in statement in 2010 before the case was initially thrown out of Caroline County Circuit Court.
Litz is seeking $7 million in damages for the loss of her 140-acre campground after MDE and the Town of Goldsboro failed to execute a 1996 consent order to stop failing septic systems in the town from dumping into Lake Bonnie, a 28-acre lake on the campground that was the center of activity, and Litz’s livelihood, since the 1950s.
Lake Bonnie empties into the Choptank River, considered one of the most polluted rivers on the Chesapeake Bay.
The 1996 consent order, 20 years ago, came a year after the Caroline County Health Department closed Lake Bonnie for swimming – and it remains closed today due to the high levels of fecal coliform (human waste).
Under the consent order MDE ordered the Town of Goldsboro to approve a plan and start construction of a public sewer system by 1997. But no sewer system was built and MDE failed to take any enforcement action against Goldsboro, which included a $100 per day fine for non-compliance. By now fines would have exceeded $700,000, Hoon said in a brief interview with the Spy.
In the 29-page decision on Jan. 22, the Maryland Court of Appeals ruled in Gail B. Litz v. Maryland Department of the Environment that Litz’s claim of inverse condemnation, the taking of her property by the government without adequate compensation, has merit and can now go to trial in Caroline County Circuit Court on constitutional grounds, which means MDE cannot seek protection under government immunity.
“Maryland Constitution does not provide sovereign immunity to state or local governments for an unconstitutional taking,” the opinion said.
The Town of Goldsboro will also be a defendant in the case.
Litz put full faith in MDE to enforce the consent order against Goldsboro that would have restored her lake and saved her business, Hoon said. “She trusted the government to do what it said it was going to do [and] she lost everything.”
The campground went to foreclosure in 2010, 14 years after MDE ordered the Town of Goldsboro to take immediate measures stop the septic runoff.
Since it was initially dismissed by Caroline County Circuit Court in 2010, Litz’s case has been twice before the Maryland Court of Special Appeals (the lower court) and the Maryland Court of Appeals (the higher court) before it was remanded back to Caroline County Circuit Court for trial in the recent ruling. Hoon said it was extremely rare for the Maryland Court of Appeals to hear a case twice.
The case is groundbreaking in Maryland because it challenges the government’s “inaction” rather than the intentional “action” in condemning, or taking, of a property.
Normally inverse condemnation occurs when the government uses an official act or regulatory action that takes (condemns) private property without compensation, giving cause for the property owner to sue. In 2010 MDE successfully argued this in motions before the Caroline Circuit Court that the condemnation of Litz’s property was not from an official or regulatory act by MDE to take her property. The Maryland Court of Special Appeals later sided with the Circuit Court that “discretionary inaction” did not rise to the level of an inverse condemnation claim; the Maryland Court of Appeals struck down this argument in their latest ruling.
In hearing the case for a second time, both the majority and dissenting opinions in the Maryland Court of Appeals agreed that a claim of “taking” of property due to “inaction” is outside the historical lane of inverse condemnation claims. The court then looked at cases in California, Florida, and Minnesota for precedent and found cases applicable in Maryland law. The court found that an inverse condemnation claim had merit when a government entity failed “in the face of an affirmative duty to act.”
“…It is not frivolous to hypothesize that state, county, and municipal agencies may have duties to step in to protect the public health, as illustrated by the execution of the 1996 Consent Order,” the opinion said.
The Appeals Court found persuasive the history of “inaction” by MDE as a cause of action to sue. The septic pollution had been known to health officials since 1973 and in 1985 Caroline County Health Department said “immediate action was necessary,” the opinion said.
By 1988 the health department reported they were “elevated levels of fecal coliform” in shallow drinking wells.
In 1995 the health department reported that the “use of the stormwater management system in the Town as a sewage system has gotten to crisis proportions.”
That same year MDE acknowledged there were “actual water quality impacts on Lake Bonnie… It now appears that the situation has deteriorated and created environmental concerns that will need to be addressed.”
Nine months later in 1996 MDE signed a consent order with the Town of Goldsboro, requiring the town to draw up plans and begin construction of a sewer system – clearly stating that fines would be assessed for non-compliance.
In 2004, with no sewer system in place, the health department warned against issuing more septic permits in areas with known problems and lamented that MDE and the town were ignoring the consent order.
“The Town has failed to comply with any of the material terms of the Consent Order and MDE has enforced no part of it,” the health department wrote.
Dan Menefee is the publisher of the Kent Guardian
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David Lloyd says
As a new resident of the state of Maryland, I am continually disappointed by the failure of the MDE to do its job!! This is not the first time that the Department has simply not done its job! Let’s hope this decision will prompt some major changes — although with Governor Hogan…… not likely!