Clayland Farm Enterprises, LLC v. Talbot County, Maryland , 672 F. App'x 240 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1755
CLAYLAND FARM ENTERPRISES, LLC,
Plaintiff – Appellant,
v.
TALBOT COUNTY, MARYLAND; TALBOT COUNTY PLANNING & ZONING
COMMISSION; TALBOT COUNTY DEPARTMENT OF PUBLIC WORKS
ADVISORY BOARD; THOMAS HUGHES, in his individual and
official capacity; MICHAEL SULLIVAN, in his individual and
official capacity; JOHN WOLFE, in his individual and
official capacity; JACK FISCHER, in his individual and
official capacity; MARYLAND DEPARTMENT OF PLANNING,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:14-cv-03412-JFM)
Argued: September 23, 2016 Decided: December 2, 2016
Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
Reversed by unpublished opinion. Judge Shedd wrote the opinion,
in which Judge Traxler joined. Judge Floyd wrote an opinion
concurring in part and dissenting in part.
ARGUED: Mark Frederick Gabler, RICH AND HENDERSON, P.C.,
Annapolis, Maryland, for Appellant. Paul J. Cucuzzella, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland;
Victoria M. Shearer, KARPINSKI, COLARESI & KARP, P.A.,
Baltimore, Maryland, for Appellees. ON BRIEF: Warren K. Rich,
Aminah Famili, RICH AND HENDERSON, P.C., Annapolis, Maryland,
for Appellant. Brian E. Frosh, Attorney General of Maryland,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellee Maryland Department of Planning.
Unpublished opinions are not binding precedent in this circuit.
2
SHEDD, Circuit Judge:
Clayland Farm Enterprises, LLC appeals the district court’s
order dismissing its claims against Talbot County, Maryland, and
other defendants for lack of ripeness. Because Clayland Farm’s
claims are ripe, we reverse.
I.
Clayland Farm is a 106 acre property located in Talbot
County, Maryland. At all relevant times, Clayland Farm has been
zoned as a “Village Center,” which is generally the “preferred
location” in rural areas for “single and multi-family
residential development.” J.A. 15–16. 1
The owners of Clayland Farm cannot pursue their land use
goals, however, because of three Talbot County ordinances, two
that are moratoriums on development, and one that limits sewer
availability. Bill Nos. 1214 and 1257, enacted in 2012 and 2014,
have indefinitely prohibited certain types of development in
areas zoned as Village Centers, including Clayland Farm. The
moratoriums prohibit owners from seeking or obtaining approval
to subdivide their property. They also impose more restrictive
zoning density rules by prohibiting subdivision of properties
1
Because we are reviewing a motion to dismiss, we describe
the facts as alleged in Clayland Farm’s complaint. See Aziz v.
Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
3
zoned as “Village Centers” into more than two lots. The affected
property owners, including Clayland Farm, have no ability to
seek a variance from, or a waiver to, the moratoriums and are
otherwise unable to challenge them outside of court.
The third challenged ordinance established a classification
method that determines the availability, if any, and type of
sewer system for a property. The Talbot County Council adopted
Bill No. 1229 in 2012, pursuant to the Maryland Sustainable
Growth and Agricultural Preservation Act of 2012 that required
each county to map existing property and designate it in one of
seven “tiers.” A property’s tier designation determines the
property’s allowed type of subdivision and allowed wastewater
treatment system. J.A. 26. Talbot County placed all but six
acres of Clayland Farm in Tier IV, which is property intended
for natural resources protection and without sewer access. The
County took this action even though Clayland Farm had sewer
access prior to this new designation and despite the advice of
the Maryland Department of Planning, 2 which informed Talbot
County in a private letter that Clayland Farm had been
2
The Maryland Department of Planning is a state agency that
serves as “an advisory, consultative, and coordinating agency”
on a variety of issues related to land use and planning. See Md.
Code Ann., State Fin. & Proc. § § 5-201, 5-302.
4
improperly designated as a Tier IV area. Talbot County did not
take any action in response to the department’s advice. 3
In response to these ordinances, Clayland Farm filed suit
in state court against Talbot County, various county officials,
and the Maryland Department of Planning. Clayland Farm’s
complaint asserted seven claims, arising under state and federal
law. Counts I–III assert federal claims against Talbot County
for violations of Clayland Farm’s Fifth and Fourteenth Amendment
rights under the United States Constitution, pursuant to 42
U.S.C. § 1983. Count I asserts a regulatory takings claim that
the moratorium is facially unconstitutional. Count II alleges
that Talbot County deprived Clayland Farm of their procedural
due process rights by enacting the moratoriums with no post-
deprivation remedies, and Count III alleges that Talbot County
deprived Clayland Farm of its substantive due process rights by
enacting the ordinances.
Count IV asserts a § 1983 conspiracy claim against Talbot
County and its officials for violating Clayland Farm’s Fifth and
Fourteenth Amendment rights. Counts V and VI assert state
declaratory judgment claims against various defendants, and
3Had the Maryland Department of Planning sent a formal,
rather than informal, letter, Talbot County would have been
required to hold a public hearing on this issue.
5
Count VII seeks injunctive relief against various defendants to
enjoin the violations alleged in the other counts.
Talbot County removed the case and then moved to dismiss.
The district court granted the motion “on the ground that the
issues raised by [Clayland Farm] are not yet ripe for
adjudication. It is beyond the province and competence of this
court to make zoning decisions . . . . The record does not
suggest that the Talbot County Council has yet denied any of
[Clayland Farm’s] constitutional rights.” J.A. 72. Clayland Farm
timely appealed.
II.
We review de novo the district court’s grant of a motion to
dismiss, Lebron v. Rumsfeld, 670 F.3d 540, 547 (4th Cir. 2012),
accepting the facts as alleged in Clayland Farm’s complaint. See
Aziz, 658 F.3d at 390. For the following reasons, we reverse the
district court’s dismissal of Clayland Farm’s complaint because
all of these claims are ripe.
Ripeness is a justiciability doctrine intended to prevent
the courts from entangling themselves in premature disputes.
See, e.g., National Park Hospitality Ass’n v. Department of
Interior, 538 U.S. 803, 807–08 (2003). “The ripeness doctrine is
drawn both from Article III limitations on judicial power and
from prudential reasons for refusing to exercise jurisdiction.”
Id. (internal quotations and citations omitted). A claim should
6
be dismissed for lack of ripeness if the plaintiff has not yet
suffered injury and any future impact “remains wholly
speculative.” Gasner v. Bd. of Supervisors, 103 F.3d 351, 361
(4th Cir. 1996). In determining ripeness, “[a] case is fit for
judicial decision when the issues are purely legal and when the
action in controversy is final and not dependent on future
uncertainties.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir.
2006) (internal citation omitted). We now address Clayland
Farm’s claims under this standard.
Count I is a facial challenge to the moratoriums and is
thus clearly ripe. See Complaint at 27, J.A. 34 (“Talbot County
has deprived and continues to deprive [Clayland Farm] of its
Fourteenth Amendment rights by enacting and perpetuating the
Village Growth Moratorium, an illegal, illegitimate and
inequitable regulatory taking.”) (emphasis added); see also
Appellant’s Br. at 22–28. 4 When an ordinance on its face is
alleged to have effected a taking, as in Count I, the claim
accrues when the ordinance interferes in a clear, concrete
fashion with the property’s primary use. National Advertising
Co. v. City of Raleigh, 947 F.2d 1158, 1163 (4th Cir. 1991).
4 Clayland Farm also made this point clear at oral argument.
Oral Argument at 3:45, Clayland Farm Enterprises, LLC v. Talbot
County, Maryland et al. (No. 15-1755), available at
http://www.ca4.uscourts.gov/oral-argument/listen-to-oral-
arguments (“These are facial challenges.”).
7
Facial takings challenges to a regulation are “generally ripe
the moment the challenged regulation or ordinance is passed . .
. .” Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725,
736, n. 10 (1997). 5
Clayland Farm suffered concrete and certain injury as soon
as the moratoriums were enacted; the ordinances prohibit
Clayland Farm from subdividing more than one additional lot from
its property and from developing more than one dwelling unit on
the lot, which had previously been allowed. The possibility that
Talbot County may enact future zoning or planning ordinances
that affect Clayland Farm’s ability to develop its property does
not call into question the finality of the three ordinances that
currently restrict Clayland Farm. Thus, Count I’s facial
challenge is ripe. 6
5 Speaking to Count I, Talbot County admitted that “[t]o the
extent it’s a facial challenge, the district court would have
jurisdiction to address it because it’s ripe.” Oral Argument at
20:52, Clayland Farm Enterprises, LLC v. Talbot County, Maryland
et al. ( No. 15-1755), available at http://www.ca4.uscourts.gov/
oral-argument/listen-to-oral-arguments (emphasis added).
6 Talbot County argues that Clayland Farm’s just
compensation claim is not ripe because Clayland Farm did not
pursue the state remedy of inverse condemnation. However, the
state-litigation requirement for takings claims “does not apply
to facial challenges to the validity of a state regulation.” See
Holliday Amusement Co. v. South Carolina, 493 F.3d 404, 407 (4th
Cir. 2007). As to any as-applied just compensation claim for an
otherwise valid regulatory taking, Clayland Farm has satisfied
the state-litigation requirement by filing this action in state
court; Maryland does not have a separate statutory or
(Continued)
8
For Count II, Clayland Farm asserts a procedural due
process claim, asserting that the enactment of an indefinite
moratorium without any post-deprivation remedies facially
“violates the Fourteenth Amendment of the U.S. Constitution.”
J.A. 37. Because Clayland Farm claims a concrete injury and has
been provided no means to address that injury, Count II is ripe.
See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (fundamental
requirement of procedural due process is the opportunity to be
heard at a meaningful time and in a meaningful manner); see also
Doe v. Virginia Dep’t of State Police, 713 F.3d 745, 758–59 (4th
Cir. 2013). Count III asserts that the moratorium and the
designation of the Clayland Farm property as Tier IV property
were so arbitrary that they facially violate the Constitutional
guarantee of substantive due process. See, e.g., Beacon Hill
Farm Assoc. v. Loudoun County Bd. of Sup’rs, 875 F.2d 1081,
1084–85 (4th Cir. 1989) (substantive due process requires that
administrative inverse condemnation remedy to challenge an
alleged regulatory taking of property. See, e.g., Duke Street
Ltd. P’ship v. Board of Cnty. Comm’rs of Calvert Cnty., 684 A.2d
40, 49 (Md. Ct. Spec. App. 1996). Thus, any claimed
noncompliance with the state-litigation requirement would be
excused because it was the County’s removal of the case that
prevented the state court from addressing Clayland Farm’s
‘inverse condemnation’ type claim contained in this case. See
Sansotta v. Town of Nags Head, 724 F.3d 533, 544 (4th Cir.
2013).
9
regulation cannot be clearly arbitrary and without substantial
relationship to general welfare). Count III is therefore ripe.
Count IV, which alleges a conspiracy to commit the
constitutional violations in Counts I-III, is ripe for the same
reason the events supporting those counts are ripe. While it may
not be necessary that the object of the alleged conspiracy has
been achieved for the claim to be ripe, the claim certainly is
ripe when the object of such conspiracy, here, the enactment of
the ordinances, has been accomplished.
Finally, Counts V, VI, and VII are ripe because they allege
state law violations or seek injunctive relief based on the
enactment of the three ordinances. While the district court
found the claims were not ripe because Talbot County had “not
yet reached any final decision,” J.A. 72, Clayland Farm suffered
concrete injury when the three ordinances were enacted, even if
the ordinances may later be modified.
III.
We therefore reverse the district court’s dismissal of
Clayland Farm’s claims for lack of ripeness and remand for
further proceedings.
REVERSED
10
FLOYD, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority’s conclusion that Counts III
through VII of Clayland Farm’s complaint are all ripe--as is
Count I to the extent that it contests the validity of Talbot
County’s alleged taking. Nonetheless, because Clayland Farm
failed to exhaust available state remedies, I would hold that
Counts I and II are unripe to the extent that they seek a just
compensation remedy. I respectfully dissent from the majority’s
contrary conclusion as to these counts.
I.
A.
The Fifth Amendment prohibits takings without just
compensation and takings for non-public use. 1 I read Count I as
presenting both a claim contesting the validity of an allegedly
non-public use taking and, in the alternative, a claim for just
compensation. See J.A. 34–35 (seeking to enjoin the contested
regulations on the theory that they “bear [no] substantial
relationship to any legitimate police power,” but also seeking
compensatory damages for an alleged taking done “without just
compensation”).
1 The Fifth Amendment of the U.S. Constitution provides:
“[N]or shall private property be taken for public use, without
just compensation.” U.S. Const. amend. V.
11
With respect to federal just compensation claims, the
Supreme Court has instructed that “if a State provides an
adequate procedure for seeking just compensation, the property
owner cannot claim a violation of the Just Compensation Clause
until it has used the procedure and been denied just
compensation.” Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). This
exhaustion requirement makes sense. “The Fifth Amendment does
not proscribe the taking of property; it proscribes taking
without just compensation,” id. at 194, and so an adequate state
remedy for a public use taking eliminates the possibility of a
Fifth Amendment violation.
Recognizing this point, we have held that when a state
“opens its courts to inverse condemnation claims arising from
regulatory takings,” and a plaintiff fails to seek just
compensation through such procedures, the plaintiff “has not
satisfied [the exhaustion] requirement.” Holliday Amusement Co.
of Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th
Cir. 2007) (discussing Williamson Cty., 473 U.S. at 195).
Maryland has, without question, opened its courts for state
inverse condemnation claims. See, e.g., Litz v. Md. Dep’t of
Env’t, 131 A.3d 923, 930-31 (Md. 2016). Nonetheless, Clayland
Farm failed to advance such a claim in its complaint. As such,
Count I’s federal just compensation claim is clearly unripe.
12
B.
The majority holds otherwise, based on a misreading of
precedent. It does so by first announcing that “Count I is a
facial challenge.” Maj. Op. at 7. Then, in response to Talbot
County’s exhaustion argument against Clayland Farm’s just
compensation claim, the majority cites Holliday Amusement for
the proposition that “the state-litigation requirement for
takings claims ‘does not apply to facial challenges to the
validity of a state regulation.’” Id. at 8 n.6 (quoting
Holliday Amusement, 493 F.3d at 407). This statement, although
true, is irrelevant. It offers no suggestion whatsoever that a
facial claim seeking just compensation for a valid taking--as
opposed to a facial claim challenging the validity of a taking--
is excused from the exhaustion requirement.
Thus, in my view, even if Count I states a facial just
compensation claim, its facial nature would not exempt it from
the exhaustion requirement. This view finds extensive support
in the case law, both within and outside this Circuit. See,
e.g., Wilkins v. Daniels, 744 F.3d 409, 417–18 (6th Cir. 2014)
(“With respect to just-compensation challenges, while Williamson
County’s first requirement may not apply to facial challenges,
its second requirement--that plaintiffs must seek just
compensation through state procedures--does.” (citations
omitted)); Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d
13
1170, 1176-77 (10th Cir. 2011) (“Courts considering claims
alleging a . . . taking without just compensation, even when
characterized as facial claims, have applied the second
Williamson County requirement [of exhaustion.]” (citing Equity
Lifestyle Props., Inc. v. Cty. of San Luis Obispo, 548 F.3d
1184, 1190 & n.13 (9th Cir. 2008); Holliday Amusement, 493 F.3d
at 407; Cty. Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159,
168 (3d Cir. 2006))).
Indeed, there is good reason to treat facial claims
challenging the validity of a taking and facial claims for just
compensation differently in the exhaustion context. It is
sensible to exempt the former category from any exhaustion
requirement, because “no amount of compensation would render the
taking constitutional [when] it was in excess of the
government’s authority to take private property.” Alto
Eldorado, 634 F.3d at 1176 n.3. In contrast, this justification
does not apply to the latter category, because a state remedy
can obviate the need for a facial, federal just compensation
claim in the same way that it can obviate the need for an as-
applied one. Thus, it is entirely proper to require Clayland
Farm to exhaust its state remedies before allowing it to proceed
with its federal just compensation claim--regardless of whether
the claim is labeled facial or as-applied.
14
C.
The majority attempts to further side-step the exhaustion
requirement by asserting that if it does apply, Talbot County
has waived its right to invoke it by removing this case to
federal court. According to the majority, Clayland Farm did
what it needed to do by filing its complaint in state court.
Therefore, “any claimed noncompliance with the state-litigation
requirement would be excused because it was the County’s removal
of the case that prevented the state court from addressing
Clayland Farm’s ‘inverse condemnation’ type claim contained in
this case.” Maj. Op. at 8 n.6 (citing Sansotta v. Town of Nags
Head, 724 F.3d 533, 544 (4th Cir. 2013)).
With respect to my colleagues in the majority, the waiver
principle that we recognized in Sansotta is inapplicable here.
In Sansotta, we waived the exhaustion requirement following the
removal of a suit that alleged both a state inverse condemnation
claim and a federal just compensation claim. 724 F.3d at 544-
47. We reasoned that because the filing of such joint suits in
state court was “exactly what San Remo Hotel[, L.P. v. City &
Cty. of San Francisco, Cal., 545 U.S. 323 (2005)] permits,” we
would be “judicially condon[ing] manipulation of litigation” if
we subjected such suits to the exhaustion requirement post-
removal. Sansotta, 724 F.3d at 544-45.
15
The complaint in this case, however, falls outside the
scope of Sansotta’s waiver reasoning. It alleges no state
inverse condemnation claim, and is thus not the type of joint
suit authorized by San Remo Hotel. Whereas the plaintiff in
Sansotta alleged a state inverse condemnation claim that could
have obviated the need for a court (federal or state) to reach
its federal just compensation claim, Clayland Farm failed to do
so. Thus, Clayland Farm’s federal just compensation claim is
just as unripe in federal court as it was in state court, and so
Clayland Farm should not be entitled to a waiver defense.
D.
Although I conclude that the just compensation claim of
Count I is unripe, I agree with the majority that the
alternative claim in Count I--a public use claim contesting the
alleged taking’s facial validity--is ripe. See Holliday
Amusement, 493 F.3d at 407 (“[T]he state procedures requirement
does not apply to facial challenges to the validity of a state
regulation.” (citations omitted)).
As explained above, there is no need to attach an
exhaustion requirement to a claim that a taking was not for
public use, because no amount of state compensation can cure the
illegality of such a taking. With this understanding in mind,
at least three circuits have classified a public use claim as
ripe even while classifying an adjoined just compensation claim
16
as unripe for failure to exhaust. See Carole Media LLC v. N.J.
Transit Corp., 550 F.3d 302, 308 n.3 (3d Cir. 2008); Rumber v.
District of Columbia, 487 F.3d 941, 943–45 (D.C. Cir. 2007);
Montgomery v. Carter Cty., Tenn., 226 F.3d 758, 768 (6th Cir.
2000). I would follow these courts’ approach here. 2
II.
Next, I would dispose of Clayland Farm’s two due process
claims in a manner similar to my recommended disposition of
Count I.
A.
To elaborate, the substantive due process claim in Count
III is analogous to the public use claim in Count I, in that
both contest the validity of Talbot County’s regulations.
Therefore, the former is exempt from the exhaustion requirement
to the same extent that the latter is. See Kurtz v. Verizon
N.Y., Inc., 758 F.3d 506, 514 (2d Cir. 2014) (“Substantive due
process claims of arbitrary and capricious conduct, however,
require only a showing of finality--there is no exhaustion
requirement.” (citations omitted)). As such, I agree with the
2
Although the typical remedy for a non-public use taking is
an injunction, Kelo v. City of New London, 545 U.S. 469, 475-76
(2005), I would also approve compensatory relief designed to
remedy any past injuries resulting from such a taking. See
Theodorou v. Measel, 53 F. App’x 640, 642 (3d Cir. 2002)
(affirming award of compensatory damages for property damage and
emotional distress flowing from a township’s completed private
taking).
17
majority that Count III is ripe, notwithstanding Clayland Farm’s
failure to exhaust its state remedies.
B.
In contrast, I would hold that the procedural due process
claim in Count II is unripe.
Indeed, I am “persuaded by those courts holding that
Williamson County”--including its exhaustion requirement--
“applies to due process claims arising from the same nucleus of
facts as a takings claim.” Kurtz, 758 F.3d at 515–16 (citing,
inter alia, B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d
1282, 1299 n.19 (10th Cir. 2008); Greenfield Mills, Inc. v.
Macklin, 361 F.3d 934, 961 (7th Cir. 2004)). “Such a rule finds
support in Williamson County itself: if the only process
guaranteed to one whose property is taken is a post-deprivation
remedy, a federal court cannot determine whether the state’s
process is constitutionally deficient until the owner has
pursued the available state remedy.” Id. at 516 (citation
omitted). Additionally, this rule prevents plaintiffs from
“circumvent[ing] the ripeness requirement for takings claims
simply by attaching a procedural due process claim to their
complaint.” Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154,
160 (6th Cir. 1992).
In this case, the procedural due process claim in Count II
mirrors the just compensation claim in Count I, in that both
18
seek identical compensation for Clayland Farm’s deprivation of
development rights. Thus, applying the rule discussed above, I
would hold that the exhaustion requirement governing the just
compensation claim in Count I should likewise govern the
procedural due process claim in Count II. Therefore, Clayland
Farm’s non-compliance with the exhaustion requirement renders
Count II unripe.
III.
Despite my disagreement with the majority on the above-
described points, I am happy to concur in their holding that
Counts V and VI--Clayland Farm’s state law claims--are ripe.
I also agree that Count IV’s conspiracy claim and
Count VII’s injunctive relief claim are ripe, albeit only to the
extent that they are premised on remedying legal violations that
underlie claims that are themselves ripe.
IV.
The majority today remands to the district court just
compensation and procedural due process claims premised on
alleged government takings for which Maryland has had no
opportunity to offer redress. In doing so, the majority leaves
the district court with the unenviable task of entertaining
claims premised on incomplete government action. See Williamson
Cty., 473 U.S. at 195 (explaining, in the just compensation
context, that “the State’s action is not ‘complete’ in the sense
19
of causing a constitutional injury ‘unless or until the State
fails to provide an adequate postdeprivation remedy for the
property loss’” (quoting Hudson v. Palmer, 468 U.S. 517, 532
n.12 (1984))). Because I cannot agree that such claims are
ripe, I respectfully dissent from the majority’s disposition of
Clayland Farm’s just compensation and procedural due process
claims.
20