Here's the latest development in a case out of Maryland that we've been following for a while.This is the one where Maryland Reclamation Association bought land back in 1990 to operate a rubble landfill. But after the purchase, the County changed its regs to prohibit (guess what) ... rubble landfills. Mesne litigation ensued in various tribunals over the years. Eventually, MRA filed a regulatory takings claim under the Maryland Constitution's takings clause in 2013, and the jury awarded a whopping $45 million in just compensation and interest. Hartford County asserted that MRA should have exhausted its administrative remedies by seeking a variance, and the claim was barred by the three-year statute of limitations because the takings claim accrued in 2007 when the Board of Appeals administratively denied MRA's variance request.
The Maryland Court of Special Appeals concluded that the "final decision" for purposes of both ripeness and statutes of limitation was the Board's denial of the variance. On discretionary review (watch and listen to the oral arguments here), the Maryland Court of Appeal held that Maryland agencies have jurisdiction to consider and rule on state constitutional issues including takings. And a property owner must raise their Maryland Constitution takings claim and present it for adjudication to very agency accused of taking property without compensation.
The court concluded the property owner must seek a "variance" from the agency -- not just to ripen the claim (see, e.g., Williamson County), but "where the application of a zoning regulation will deny the landowner of all beneficial use of its property, the Board of Appeals has the authority to grant an administrative remedy in the form of a variance—a constitutional “relief valve”—to avoid a takings claim." In other words, if the agency is accused of regulating property "too far," the owner is obligated to ask the agency itself to bend its regulations to that they don't go "too far." That to us seems like a huge case of the agency being both the judge and the jury of its own conduct.
Next stop, SCOTUS.
Here are the Questions Presented:
After a quarter century of continued litigation and a 2018 adjudication on the merits, a Maryland jury awarded petitioner $45,420,076. in damages for a regulatory taking that occurred under this Court’s Penn Central analysis. The Maryland Court of Appeals vacated the jury’s verdict holding that the landowner was required, decades prior, to raise that identical Takings Clause claim in an administrative variance proceeding, before resorting to a court. That variance proceeding asks only whether the regulatory action “substantially advances” a legitimate governmental interest and the administrative agency has no authority to award just compensation. Therefore, Maryland law determines whether there is a taking under the abandoned standard of Agins v. Tiburon, 447 U.S. 255 (1980) and denies the property owner access to a court to pursue an independent takings lawsuit in a court and before a jury. However, in Lingle v. Chevron, 544 U.S. 528 (2005), the “substantially advances” test was unanimously held not to be a valid method of identifying compensable regulatory takings and that it has no proper place in this Court’s takings jurisprudence.1. The question here is whether an administrative variance decision, that a regulation advances a legitimate government interest, precludes a subsequent independent Takings Clause lawsuit before a court pursuant to this Court’s Penn Central three prong ad hoc factual inquiry. If so, are Maryland residents denied access to a court, by accident of their residence,because of the preclusive effect of the underlying facts determined in the administrative variance proceeding. There is a split between courts of last resort on this significant Fifth Amendment question.2. The corollary Fifth Amendment query, to question one, is once a court adjudication on the merits, thru a jury’s verdict, has established a Penn Central taking has occurred, by an ad hoc factual inquiry into a government’s conduct, can an expiration date be put on the Constitution’s Takings Clause and its self executing demand that once a court establishes a taking occurred just compensation is required. If so, has the government taken private property by a shorter cut than the constitutional way of paying for it.
The Agency declined to respond to the petition, so the Court has scheduled the petition for the Court's October 9, 2020 Conference.
Follow along on the docket, or stay tuned here.
