Litz v. Md. Dep't of the Env't

434 Md. 623

76 A.3d 1076

Gail B. LITZ

v.MARYLAND DEPARTMENT OF THE ENVIRONMENT, et al.

No. 75, Sept. Term, 2012.

Court of Appeals of Maryland.

Sept. 26, 2013.

G. Macy Nelson (David S. Lynch and Michael I. Kroopnick of Law Office of G. Macy Nelson, LLC, Towson, MD; Philip W. Hoon of Hoon & Associates, LLC, Chestertown, MD), on brief, for petitioner.

Steven R. Johnson, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for petitioner.

K. Nichole Nesbitt (Linda S. Woolf of Goodell, DeVries, Leech & Dann, LLP, Baltimore, MD), on brief, for respondents.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, and BELL ^*, JJ.

GREENE, J.

In the present case, we are asked to determine whether the Court of Special Appeals erred when it affirmed the grant of multiple defendants' motions to dismiss. Specifically, on appeal, we shall address whether the intermediate appellate court was correct that the motions to dismiss causes of action for trespass, negligence, nuisance, and inverse condemnation were properly granted because the causes of action were barred by the statute of limitations. We shall hold that the Court of Special Appeals was correct in determining that the statute of limitations barred Petitioner's nuisance counts because it is clear from the face of the Complaint that no reasonable trier of fact would infer that a temporary nuisance existed. We conclude, however, that it is unclear from the face of the Complaint (1) that Petitioner's causes of action for negligence and trespass were not for continuing tortious actions, or “a series of acts or course of conduct ... that would delay the accrual of a cause of action to a later date[,]” MacBride v. Pishvaian, 402 Md. 572, 585, 937 A.2d 233, 241 (2007) (citation omitted); and (2) whether Petitioner's cause of action for compensation for the denial of her reasonable and effective use of her property through inverse condemnation accrued more than three years before she filed a claim. We shall therefore hold that the Court of Special Appeals erred in determining that the statute of limitations barred Petitioner's causes of action for negligence, trespass, and inverse condemnation.

FACTS AND PROCEDURAL BACKGROUND

In her Third Amended Complaint, Gail B. Litz (“Litz”), Petitioner, alleges the following:

Litz formerly owned approximately 140 acres of land (“the Litz Property”) southeast of the town of Goldsboro, Maryland (the “Town” or “Goldsboro”) in Caroline County (the “County”). In approximately 1948, Litz's parents purchased the Litz Property, which included a pond and a mill. Litz's parents replaced the mill with a dam in the mid–1950s to form a lake (“Lake Bonnie”) for the irrigation of farm fields. Lake Bonnie primarily receives its water from two local streams, the Oldtown Branch and the Broadway Branch, and discharges a constant overflow of water directly into the Choptank River.

Lake Bonnie provided swimming, fishing, boating, and waterskiing opportunities, and in the 1960s, Litz's parents opened a public campsite business known as the Lake Bonnie Campsites (the “Campground”), which turned a profit for Litz's parents for many years. At some point, Litz became a partner with her father in the operation of the Campground, and in 2001, became the owner of the Litz Property. It was Litz's “intention and expectation that she would continue to own and operate the Campground as her primary occupation and source of income.”

The Broadway Branch and the Oldtown Branch, which continue to supply water to Lake Bonnie, “form the backbone of” two public drainage associations (the “PDA systems”) which were built between the 1950s and the 1970s. The PDA systems run directly up to, and in some cases into, the incorporated limits of Goldsboro and are intended to drain the local fields. The PDA systems have also, however, “been informally used as storm water drainage systems for the Town, and have been used to remove waste[-]water from the Town.” Water that enters the PDA systems eventually makes its way into the streams, and then into Lake Bonnie.

Goldsboro does not have a public water or sewer system available, and instead relies on private wells and septic systems. “Over time, [the private] septic systems in the Town contaminated the ground and surface water, which, in turn, contaminated Oldtown Branch and Broadway Branch, which, in turn, contaminated Lake Bonnie.” Goldsboro has attempted to correct its “failing community sewage system” since at least 1973 when “the Town began a sewerage feasibility study.”

In the 1980s, the Caroline County Health Department conducted studies, the results of which indicated the significant extent of the pollution and contamination problems caused by the sewage and waste-water. In both 1985 and 1988, residents of the Town rejected plans to address the problems, however, and “continued to oppose any action to improve the situation through 1996.”

“The first documented contamination of Lake Bonnie” occurred in July 1991. Later, in September 1995, the Caroline County Health Department wrote to the Commissioners of the Town and warned that “[t]he use of the storm[-]water management system in the Town as a sewage system has gotten to crisis proportions[,]” and “[t]he system and associated ditches are a health hazard to the residents, which the commissioners must address.” The letter further indicated that “[i]n particular, Lake Bonnie is not safe for swimmers as long as residents dump their waste[-]waters into the storm[-]water system.” Noting that the “residents rejected grants available [in the 1980s] to provide a resolution of this problem[,]” the County Department of Health advised Goldsboro to “investigate sources of funding for the planning stage through the construction for [remedying the problem].” Additionally, in a December 1, 1995 letter, the Maryland Department of the Environment, (“MDE”) reported that “[t]here are actual water quality impacts on Lake Bonnie due to failing septic systems in [the Town].” Additionally, the letter explained that the Town was “identified in the 1980's as a potential candidate for federal grant funds to do sewer system improvements[,]” and stated that “[i]t now appears that the situation has deteriorated and created environmental concerns that will need to be addressed.”

In a June 12, 1996 letter, the County Health Department notified Litz:

The discharges of waste[-]waters to the Oldtown Branch and Broadway Branch (the headwaters ¹ of Lake Bonnie) have not been eliminated. This continues to be a health threat for water contact recreation in the lake.... The [T]own was notified they had to eliminate all discharges. MDE was identifying all potential sources of money the [T]own could use to assist in the cost.

This information was confirmed by water samples taken from Lake Bonnie which showed that it was “severely polluted with high amounts of fecal coliform and nitrates.” Additionally, Litz's residential well was impacted, containing “elevated nitrate levels.”

On August 8, 1996, representatives from MDE and Goldsboro signed a Consent Order (the “Consent Order”). The Consent Order “explain[ed] the problems, order[ed] Goldsboro to take certain actions, impose[d] mandatory reporting obligations and specifie[d] penalties for non-compliance....”

Initially, the Town began to perform some of its obligations under the Consent Order. On January 21, 1997, Goldsboro sent MDE, among other things, “a Preliminary Engineering Report” and “the ‘Compliance Plan’ and projected schedule for construction of a public sewer system acceptable to MDE.” There was little activity regarding the Consent Order between 1998 and 2004, however. In 2004, the Caroline County Health Department issued a warning to Goldsboro, along with other towns, that “they should not issue building permits without a Water and Sewer Allocation Request being approved by the County[.]”

As of October 1, 2010, the date Litz filed her Third Amended Complaint, “the Town ha[d] failed to comply with any of the material terms of the Consent Order and MDE ha[d] [failed to] enforce[ ] [any] part of it. As a result of the failure of the Town, the County[,] and MDE to address severe pollution problems, Lake Bonnie is now polluted, the [C]ampground has been destroyed, and Litz's property has been substantially devalued.” Because the Campground was generating no income, Litz was unable to pay her mortgage on the Litz Property, and the bank foreclosed on the property and then purchased it at a foreclosure sale for $364,000.

On March 8, 2010, Litz filed a “Complaint for Compensatory Damages, Permanent Injunction, and Declaratory Judgment, and Request for Jury Trial” (“Original Complaint”). In the Original Complaint, Litz sought a permanent injunction against the Town and County. The Original Complaint further advanced causes of action for: (1) negligence, trespass, private nuisance, public nuisance, and inverse condemnation against the Town; (2) negligence, private nuisance, public nuisance, and inverse condemnation against the County; and (3) negligence and inverse condemnation against MDE.

Litz later filed an “Amended Complaint for Compensatory Damages, Permanent Injunction, and Declaratory Judgment, and Request for Jury Trial” (“Amended Complaint”), where she added one count against MDE “for mandamus or equitable relief in accordance with the Environmental Standing Act [,]” ² and then, on July 27, 2010, filed a “Second Amended Complaint for Compensatory Damages, Permanent Injunction, and Declaratory Judgment, and Request for Jury Trial” (“Second Amended Complaint”), where she added the Department of Health and Mental Hygiene (“DHMH”) and the State of Maryland (through the Treasurer of the State) as defendants in the case. In total, the Second Amended Complaint contained the following causes of action:

Count I—Permanent injunction action against the Town, County, DHMH and State

Count II—Environmental...