Zoning – Court Upholds Zoning Limitation Provision

Quinn v. Board of County Comm’rs for Queen Anne’s County, Md. (Lawyers Weekly No. 001-153-17, 19 pp.) (Wilkinson, J.) No. 16-1890, July 7, 2017; USDC at Baltimore, Md. (Russell, J.) 4th Cir.

Holding: A district court did not err in dismissing a landowner’s suit challenging a county’s comprehensive plan to extend sewer service, including a grandfather/merger provision designed to limit overdevelopment; finding a regulatory taking or constitutional violation in this situation would invalidate a standard zoning tool recently upheld by the Supreme Court, the 4th Circuit says.

Land Investment

The landowner asks us to protect a speculative land investment by finding a regulatory taking as well as violations of his due process and equal protection rights. Doing so would invalidate a standard zoning tool whose legitimacy was upheld by the Supreme Court in Murr v. Wisconsin, No. 15-214, June 23, 2017. It would also revolutionize zoning law and frustrate municipalities’ ability to undertake basic land use planning.

Plaintiff owned 200 small undeveloped lots on South Kent Island in Queen Anne’s County, Md. Septic systems on developed lots were failing and the county undertook to extend sewer service, but sought to control development. The county planned to extend sewer service to all streets with failing septic systems, to include developed and undeveloped lots, but not to extend service to streets with only vacant lots that did not abut a sewer line.

In order to control excessive new development, the county enacted a grandfather/merger clause, under which the county would not grant a building permit for a lot smaller than the minimum size under zoning regulations unless that lot was merged with any contiguous lots under common ownership. Grandfather/merger clauses are a common means of balancing the legitimate goals of regulation with the reasonable expectations of landowners by limiting building on lots that do not meet the current minimum lot size while ensuring that all property owners can still build on their land. Plaintiff owned a large tract of vacant lots that would not receive sewer service. He sued the county, and the district court dismissed his suit.

No Taking

Plaintiff has not shown a taking of his property. He made a speculative investment in land that had no sewer service, and the grandfather/merger provision he attacks is a “classic way” for local governments to accomplish the important goal of preserving open space while still allowing orderly development. Plaintiff has failed to show that either the extension of sewer service or the grandfather/merger provision goes too far in interfering with his property so as to require compensation.

Plaintiff’s Takings Clause claim based on his lack of sewer service fails because he never had a property interest in obtaining that service. He bought the land knowing that development would depend on septic systems. Maryland law does not create a property right in the access to a sewer system.

His Takings Clause claim based on the grandfather/merger clause also fails, as the county’s use of this standard zoning tool does not unacceptably interfere with plaintiff’s existing property interests under the regulatory takings framework. Nor is the provision a taking under the test in Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104 (1978).

Plaintiff’s substantive due process challenge to the sewer extension fails because he never had an entitlement to receive sewer service. And the county plainly has a rational basis for the difference in treatment here, so there was no equal protection violation.

Dismissal of the suit affirmed.