Little v. Mayor, Civil Action No. ELH-18-360

CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)
Writing for the CourtEllen Lipton Hollander United States District Judge
PartiesROBERT C. LITTLE et al., Plaintiff, v. MAYOR AND CITY COUNCIL OF OCEAN CITY, et al., Defendants.
Decision Date26 September 2019
Docket NumberCivil Action No. ELH-18-360

ROBERT C. LITTLE et al., Plaintiff,
v.
MAYOR AND CITY COUNCIL OF OCEAN CITY, et al., Defendants.

Civil Action No. ELH-18-360

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

September 26, 2019


MEMORANDUM OPINION

In this land use case, plaintiffs Robert and Pamela Little (together, the "Littles") filed a First Amended Complaint against a host of defendants: the Mayor and City Council for the Town of Ocean City, Maryland (the "City" or "Ocean City"); Blaine Smith, the City's former Assistant Director of Planning and Zoning; City engineer Terrance McGean (collectively, the "City Defendants"); Mark Belton, the former Secretary of the Maryland Department of Natural Resources ("DNR")1; Jordan R. Loran, DNR Director of Engineering and Construction; and Emily Wilson, former DNR Director of Land Acquisition and Planning (collectively, the "DNR Defendants"). ECF 37. The City Defendants and the DNR Defendants were sued in their individual and official capacities. In sum, the Littles contend that the defendants have violated their rights to substantive and procedural due process, and have effected an unconstitutional taking of their property, under both federal and Maryland law, by thwarting their efforts to expand their oceanfront townhouse in Ocean City.

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The First Amended Complaint, which is supported by two exhibits (ECF 37-1; ECF 37-2), contains eight counts. Plaintiffs seek declaratory relief, compensatory and punitive damages, as well as equitable remedies. ECF 37 at 33-37.

The suit is not a model of clarity. Count One appears to be lodged only against the City, based on the title, although the text makes reference to the individual City Defendants. The count asserts violations of substantive and procedural due process and the Takings Clause under the Fifth and Fourteenth Amendments to the Constitution, pursuant to 42 U.S.C. § 1983; Article 24 of the Maryland Declaration of Rights; and Article III, § 40 of the Maryland Constitution. ECF 37, ¶¶ 103-07. Because these claims are framed under Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978), I conclude that Count One is lodged only against the City. ECF 37, ¶ 105.

Count Two is brought against the DNR Defendants in their individual and official capacities under the Fifth and Fourteenth Amendments to the Constitution, pursuant to § 1983, and Article 24 of the Maryland Declaration of Rights. Id. ¶¶ 108-12.2 Counts Three and Four lodge "Inverse Condemnation" claims against Ocean City under Maryland law. Id. ¶¶ 113-22. Count Five, lodged against Ocean City and Smith, asserts a claim of negligence under Maryland's Local Government Tort Claims Act ("LGTCA"), Md. Code (2013 Repl. Vol., 2018 Supp.), §§ 5-301 et seq. of the Courts and Judicial Proceedings Article ("C.J."). Id. ¶¶ 123-27. In Count Six, plaintiffs present a claim of negligence against the City and McGean under the LGTCA. Id. ¶¶ 128-33. Count Seven, styled as a claim against Belton for "Specific Performance," seeks

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injunctive relief. Id. ¶¶ 134-36. Finally, Count Eight contains an inverse condemnation claim against Ocean City, under both federal and State law. Id. ¶¶ 137-41.

Three motions are now pending. The City Defendants have moved to dismiss Counts One, Three, Four, Five, Six, and Eight, for lack of subject matter jurisdiction and for failure to state a claim, pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). ECF 38. The motion is supported by a memorandum of law. ECF 38-1 (collectively, "City Motion"). The City Defendants assert, inter alia, that plaintiffs' takings claims fail because plaintiffs lack a constitutionally protected property interest; the LGTCA claims are time-barred; and the individual defendants are entitled to qualified immunity. See ECF 38-1.

The DNR Defendants have moved to dismiss Counts Two and Seven (ECF 40), under Rules 12(b)(1) and 12(b)(6), supported by a memorandum of law (ECF 40-1) (collectively, "DNR Motion"), and an exhibit. ECF 40-2. The DNR Defendants invoke the Pullman and Burford abstention doctrines. They also contend that plaintiffs' claims are barred by the Eleventh Amendment; the individual defendants are immune from suit; and plaintiffs have not identified a cognizable property interest. See ECF 40-1. Further, pursuant to Fed. R. Civ. P. 12(f), the DNR Defendants have moved to strike portions of plaintiffs' First Amended Complaint as well as plaintiffs' Exhibit A (ECF 37-1). ECF 39. The motion is supported by a memorandum of law. ECF 39-1 (collectively, "Motion to Strike").

The Littles oppose each motion. ECF 44; ECF 45; ECF 46. The DNR Defendants replied to plaintiffs' opposition to their Motion to Strike (ECF 49), and to plaintiffs' opposition to their motion to dismiss. ECF50. The City Defendants have also filed a reply. ECF 52.

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No hearing is necessary to resolve these motions. See Local Rule 105.6. For the reasons that follow, I shall deny the Motion to Strike (ECF 39), and I shall grant in part and deny in part the City Motion (ECF 38) and the DNR Motion (ECF 40).

I. Factual Background3

The Littles own a beachfront townhouse in Ocean City, Maryland. ECF 37, ¶ 9. The property, located on Atlantic Avenue, is part of the Surf Village residential development complex. Id. Plaintiffs' unit lies at the end of a row of condominiums, with one side abutting 32nd Street. Id. ¶¶ 31-32; see ECF 37-2. A side lot, roughly ten feet wide, referred to by the parties as "Parcel A," separates plaintiffs' property from the 32nd Street sidewalk. ECF 37, ¶ 21; ECF 37-2.

Surf Village was built in or about 1966. ECF 37, ¶ 20. Upon completion, the developer, Charles Lynch, retained ownership over small, unbuildable plots of land scattered throughout Surf Village, including Parcel A. Id. On September 15, 1975, Lynch gifted Parcel A to the City. Id. ¶ 24. Plaintiffs aver that Lynch transferred Parcel A "without giving proper notice of the conveyance to the adjacent property owner . . . ." Id.

In 1985, a fire totally destroyed Surf Village. Id. ¶ 28. Although the condominiums were originally three stories, they were rebuilt as four-floor units. Id. According to plaintiffs, this violated the City's Comprehensive Zoning Ordinance ("Ordinance"), which mandates that four-story buildings must be set back at least ten feet from City property. Id. ¶¶ 22, 29-30. Despite the violation, the City did not block the construction of new units. Id. ¶ 29.

The Littles purchased their townhouse on May 18, 1994. Id. ¶ 18. In May 2005, the City extended 32nd Street towards the ocean. Id. ¶ 31. Soon thereafter, plaintiffs contacted McGean to request that the City slope the portion of the sidewalk near their house to make it level with 32nd

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Street. Id. ¶32. Plaintiffs hoped to then build a "short driveway" over Parcel A to connect their property to the road. Id. ¶ 33. They sought to install a "concrete pad" at the end of the driveway to function as a parking space and patio. Id.

On April 26, 2005, the Littles filed a building permit application for the driveway and parking pad. Id. ¶ 34. The City granted their application on May 3, 2005, and they began construction shortly thereafter. Id. ¶ 35.

The City conveyed its fee simple interest in Parcel A to DNR on June 1, 2005. Id. ¶ 37. DNR acquired Parcel A in furtherance of the Replenishment and Hurricane Protection Project, a joint initiative between DNR and the Army Corp of Engineers. Id. DNR recorded a deed to Parcel A on July 13, 2005. Id. The deed makes no mention of plaintiffs or any easements burdening the land. See id.

In the spring of 2014, plaintiffs decided to build a 1,700 square-foot, four-story addition to their home, and hired an architect to draw up plans. Id. ¶ 40. The architect reviewed the designs with Smith, who, plaintiffs allege, "represented that he saw no impediments to building the addition." Id. ¶¶ 42-43. In light of the meeting, the Littles hired a construction company. Id. ¶¶ 44, 46.

On January 2, 2015, plaintiffs applied for a building permit for the expansion. Id. ¶ 46. The City granted the permit on January 29, 2015. Id. ¶ 47.

According to plaintiffs, several of their neighbors contacted DNR in February 2015, with the goal of blocking the renovation. They assert that the President of the Surf Village Homeowners Association sent a letter to Loran, informing him that plaintiffs were using Parcel A as a driveway. Id. ¶ 48. Plaintiffs contend that another resident relayed the same information to Loran. Id. ¶49.

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These complaints led Loran to ask McGean for information about plaintiffs' use of Parcel A. Id. ¶ 50.

On February 11, 2015, Loran told McGean and Smith that DNR did not approve of plaintiffs' use of Parcel A. Id. ¶ 51. The next day, McGean informed plaintiffs that their renovation did not comply with the City's Ordinance because they lacked the requisite number of parking spaces for their expansion. Id. ¶¶ 51, 54.

Undeterred, the Littles submitted a new permit application to the City, reducing the number of bedrooms in the proposed renovation to comply with the parking-space zoning requirement. Id. ¶ 56. The City reissued the building permit on February 24, 2015. Id. ¶ 57.

Plaintiffs began construction "almost immediately." Id. ¶ 58. The oceanside deck and concrete pad were demolished; the contractor began to lay a foundation; and they purchased structural steel and other materials. Id. ¶¶ 58-59. During the construction, plaintiffs decided to add a fourth-floor balcony to their house. Id. ¶ 60. The balcony required a variance from the City's ten-foot setback requirement. Id.

On March 26, 2015, the City's Board of Zoning Appeals ("BZA") held a hearing in regard to the request for a variance. Id. ¶¶ 60-61. It did not go well for plaintiffs. A lawyer representing two Surf Village residents challenged the building permit for the Littles' expansion. Id. ¶ 62. The attorney confronted Smith "with the fact that the 1975 conveyance of Parcel A by Lynch to the...

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