Maryland Reclamation Associates v. Harford County V: Herein of Litigant Fallibility, Judicial Infallibility, and the Demise of a $45 Million Judgment

By Alan B. Sternstein

The odyssey of Maryland Reclamation Associates (“MRA”) to construct and operate a rubble landfill in Harford County began in August 1989. It shortly ran into legislative, regulatory and judicial hurdles, leading to 30 years of administrative and judicial litigation. MRA’s 30 year saga continued with a recent and now fifth Court of Appeals decision in this story. In “MRA V” (Opinion, Maryland Reclamation Assocs. v. Harford C’ty, No. 52, September Term 2019 (Md. decided Apr. 24, 2020)), in an 80 page opinion, the Court of Appeals nullified a $45,076,420 verdict for MRA in an inverse condemnation action that MRA brought after being unable to secure zoning variances required for the landfill. The court rejected the Court of Special Appeals’ own determination that MRA had exhausted its administrative remedies before bringing its action and ruled that MRA’s action should be dismissed for failure to exhaust administrative remedies. Though MRA did stumble some over the last 30 years, the Court of Appeals in MRA V reached an arguably justified prospective rule of procedure in condemnation cases but questionably did so in applying that rule to MRA.

The 30 Year Odyssey – In Four Minutes

Previously, in MRA II, Maryland Reclamation Assocs. v. Harford C’ty, 342 Md. 575, 677 A.2d 567 (1996), the Court of Appeals heard challenges to the validity of Harford County legislation that had become an impediment to MRA’s landfill. The court ultimately ruled that the Circuit Court should have declined to entertain MRA’s action because, in part, MRA had failed to exhaust administrative remedies. Specifically, the court determined in MRA II that MRA had failed to seek from the County’s Board of Appeals a zoning variance or exception that would have allowed a landfill. Id. at 491-94, 677 A.2d at 575-76.

The court based its exhaustion requirement on two principles. First, the court stated that “[w]here a legislature has provided an administrative remedy for a particular matter, even without specifying that the administrative remedy is primary or exclusive, this Court has ‘ordinarily construed the pertinent [legislative] enactments to require that the administrative remedy be first invoked and followed’ before resort to the courts.” Id. at 493, 677 A.2d at 576 (emphasis added). Second, the court stated that “[w]hen the legislative body expressly states that the administrative remedy is primary or exclusive or must be exhausted, the mandatory nature of the exhaustion requirement is underscored.” Id. (emphasis added).

The Court of Appeals also noted that, in connection with the required administrative proceedings, the Board of Appeals “would be authorized and required to consider any of the constitutional and other issues raised by Maryland Reclamation to the extent that those issues would be pertinent in the particular proceeding before the Board.” Id. at 491-92, 677 A.2d at 575 (emphasis added). The court did not elaborate by specifying any such issues or explaining what sort of constitutional issues should be considered pertinent to a variance or exception proceeding. The court did note that it had clarified with MRA’s counsel during oral argument that, in addition to other constitutional arguments MRA was making, MRA was not making a takings argument and noted that, according to counsel, that argument was “a viable option later.” Id. at 489, 677 A.2d at 574. The court, however, did not suggest that a takings argument would be pertinent to proceedings before the Board of Appeals. The court also did not suggest that there was an administrative, rather than judicial, remedy by which MRA could have obtained damages for any inverse condemnation of its property. Nor was there.[1]

Following MRA II, MRA sought from Harford County certain interpretations of its zoning ordinance and other administrative relief that would have eliminated the obstacles it was continuing to encounter for its landfill. MRA, however, did not seek a zoning variance or exception, as the court had advised was necessary in MRA II. The Board of Appeals affirmed denials of the relief MRA did seek, and MRA again sought judicial review of the administrative ruling, leading to the Court of Appeals’ decision in MRA III.

In MRA III, Maryland Reclamation Assocs. v. Harford C’ty, 382 Md. 348, 855 A.2d 351 (2004), the Court of Appeals admonished:

Before it may prosecute its petition for judicial review in this matter, MRA must apply for the zoning variances assertedly needed to obtain relief from Bill 91-10. When final administrative action is taken on variance applications, MRA, if still aggrieved, may seek additional judicial review of Harford County’s actions on the variances and prosecute the present matter. Failure to prosecute variance applications within a reasonable time could result in dismissal of the present petition.

Id. at ___, 855 A.2d at 358 (emphasis added).

Although the MRA III court repeatedly referenced its opinion in MRA II, its direction to MRA did not include making a takings argument before the Board of Appeals before filing a takings action, although the MRA III court had every reason to know, like the MRA II court, that MRA fully contemplated a future takings claim, if it could not obtain the administrative relief it sought. Specifically, the MRA III court’s opinion repeatedly references and relies upon its MRA II opinion, where the court took pains to note that, quoting from the transcript of oral argument. Id. at ___, 855 A.2d at 354-56, 358-61. Indeed, the Court of Appeals itself explicitly noted that “federal constitutional issues” also would not be ripe for consideration until MRA had exhausted the administrative remedies that the court had specified. See id. at ___, 855 A.2d at 362.

Justifying its exhaustion instruction to MRA, the MRA III court, citing and quoting its precedents, stated:

A fundamental precept of administrative law is the requirement that exclusive or primary administrative remedies ordinarily be exhausted before bringing an action in court. “[W]here the Legislature has provided an administrative remedy for a particular matter or matters, there is a presumption that the Legislature intended such remedy to be primary and intended that the administrative remedy must be … exhausted before resort to the courts.” [W]hen administrative remedies exist in zoning cases, they must be exhausted before other actions, including requests for declaratory judgments, mandamus, and injunctive relief, may be brought.

Id. at ___, 855 A.2d at 358-59 (citations omitted; emphasis added). Likewise, the court thusly elaborated:

The right to request zoning interpretations and a zoning certificate and, if denied, the right to seek variances are two parallel or successive remedies to be exhausted, not optional selections on an a la carte menu of administrative entrees from which MRA may select as it pleases. Once both administrative remedies are pursued to completion, MRA, if still feeling itself aggrieved, may pursue judicial review of the County agencies’ adverse actions.

Id. at ___, 855 A.2d at 361 (citation omitted; emphasis added). Indisputably, in both MRA II and MRA III, the focus of the Court of Appeals with respect to what needed to be exhausted before judicial actions could be prosecuted was “remedies”, not “claims”, in the sense of a judicial action for damages.

The Court of Appeals did not dismiss MRA’s judicial review action. Instead, after a lengthy discussion of the proper disposition of a judicial action brought before available administrative remedies had been exhausted, it vacated the judgment in the action before it and remanded the action to the Circuit Court, with the direction to stay proceedings, pending MRA’s exhaustion of the administrative remedies the court had specified. Specifically, the court stated:

When a litigant is entitled to bring two separate legal proceedings in an effort to obtain relief in a particular matter, when the litigant institutes the first of those proceedings and the case is pending in a trial court, and when the trial court is unable to decide the merits of that case because of primary jurisdiction or exhaustion principles associated with the second proceeding, the trial court ordinarily should stay the first proceeding for a reasonable period of time.

During that period, the litigant may pursue and obtain a final administrative decision in the second proceeding.

Id. at ___, 855 A.2d at 362. The court went so far as to observe, with citations, that [o]ther cases in the Supreme Court and in other jurisdictions also supported a stay, rather than a dismissal, under circumstances similar to those in the case at bar. Id. at ___, 855 A.2d at 363.

After MRA III, MRA did just as the MRA III court directed. It applied for and prosecuted a proceeding before Harford County for a variance, and when the County denied a variance, it again sought judicial review, ultimately resulting in the court’s decision in MRA IV, Maryland Reclamation Assocs. v. Harford C’ty, 414 Md. 1, 994 A.2d 842 (2010), which affirmed the denial.

After that affirmance, MRA, as it had told the MRA II court it planned, brought an action for inverse condemnation in the Circuit Court for Harford County, seeking the remedy of damages. The action resulted in a judgment in favor of MRA in the amount of $45,420, 076. Not only did MRA believe it had exhausted its administrative remedies when it instituted its inverse condemnation action but also Harford County apparently believed it had. Although, the County did move in the Circuit Court to dismiss MRA’s action, exhaustion was not among its grounds for dismissal. See Harford C’ty v. Maryland Reclamation Assocs., 242 Md. App. 123, 213 A.3d 757, 759-60 (Md. App 2019), aff’d on other grounds, MRA V.

So did the Court of Special Appeals, when the County finally got around to raising the exhaustion defense before that court as a jurisdictional matter. The Court of Special Appeals, however, was explicit in its view that MRA had exhausted all “remedies” available to it: “In our view, MRA did not fail to exhaust its administrative remedies. To the extent that an administrative remedy was available, MRA clearly pursued it.” Id. at 144, 213 A.3d at 769. The Court of Special Appeals did rule, however, that the applicable statute of limitations barred MRA’s action. Id. at 145-60, 213 A.3d at 770-79. It therefore vacated MRA’s judgment and remanded for entry of judgment in favor of the County. The statute of limitations aspect of the court’s decision was the subject of a previous post on this blog.

The Denouement – MRA V

MRA appealed the Court of Special Appeals’ limitations decision, and in MRA V, the Court of Appeals reversed the lower court’s decision on exhaustion and ruled that MRA had failed to exhaust its administrative remedies. According to the Court of Appeals, the primary issue before it was whether, “under our exhaustion of administrative remedies jurisprudence, a landowner may withhold a claim alleging an unconstitutional taking arising from the application of a zoning regulation from the administrative agency’s consideration and present the claim to a jury in a separate action invoking the court’s original jurisdiction.” MRA V, Slip Op. at 2 (emphasis added). The court determined that the “County Board of Appeals had original jurisdiction to make the initial factual determination of whether there were any other beneficial uses that could be made of the Property, and to grant relief in the form of a variance to avoid an unconstitutional taking . Id. What should be noted here is the court’s switch from use of the term “remedy” to the term “claim”, to mean administrative relief, rather than a cause of action for takings damages, while, at the same time, ambiguously suggesting that it had always required causes of action for takings, like MRA’s inverse condemnation claim, to first be pursued administratively.

Accordingly, the Court of Appeals concluded that MRA had failed to exhaust its administrative remedies and that this “required” dismissal of its inverse condemnation action. Id. at 3. The court did not explain why, contrary to its holding in MRA III, dismissal was required or appropriate. Nor did the court charge, as it had in its previous decisions in this controversy, that it had instructed or even put MRA on notice that MRA needed first to pursue its takings claim with the County, before it brought a an inverse condemnation action in court. Indeed, given the court’s previous specific instructions about what MRA needed to do to exhaust administrative remedies, it may certainly be questioned whether the court, albeit unintentionally, misled MRA about what was required of it.

MRA did have respected company in its view that it had exhausted administrative remedies in accordance with the court’s prior rulings: first, Harford County itself initially, as noted, and, second, a unanimous panel of the Court of Special Appeals, which, holding that MRA had exhausted its administrative remedies, noted that there was “no authority compelling a party to bring a claim for just compensation in an administrative forum before resorting to the courts.” 242 Md. at 144, 213 A.3d 769.

Nor, significantly, did the Court of Appeals lack notice that MRA seriously contemplated a judicial takings claim, which would have explained the court’s not advising MRA in MRA III that exhaustion also required agency consideration of the claim first, especially, as the court said in MRA V, that “under our abundance of case law,” that step was required. MRA V, Slip Op. at 20 (emphasis added). Similarly acknowledging notice, the court itself noted in MRA V that MRA’s takings claim was “conspicuously absent” from agency proceedings. MRA V, Slip. Op. at 2.[2] Indeed, the court noted that, as far back as MRA II, it had “clarified that MRA was not alleging in the context of this case that the ordinances were unconstitutional as applied to its Property.” Id. at 9.

Nevertheless, the court explained that although MRA did seek a variance from the County, it “did not allege or assert before either the Hearing Examiner, or the Board of Appeals, that the application of Bill 91-10 to its Property, and the denial of a variance, would deprive [MRA] of all beneficial uses of the Property, thereby creating an unconstitutional taking of its Property without just compensation.” Id. at 19-20. For this reason, according to the Court of Appeals, MRA had failed to exhaust its administrative remedies and its inverse condemnation action would be dismissed. The court’s reasoning and actions are questionable in two respects.

First, MRA sought before the Board of Appeals variances it considered necessary to allowing the construction and operation of its landfill. Like most zoning codes, the criteria that the Harford County Zoning Code requires to be satisfied for the grant of a variance are intended, by their express terms and in every instance, to assure protection of both land adjacent to that property and the public interest.[3] That granting a variance will avoid an inverse taking of property is, therefore, not in itself controlling for granting a variance. If the grant of a variance would be “substantially detrimental” to adjacent land or “materially impair” the public interest, it cannot be granted,[4] even if granting a variance is the only way to avoid an inverse taking of property.[5]

Given the zoning code requirements for granting a variance, the first thing to be considered in any proceeding seeking that remedy would sensibly, if not necessarily, be whether the variance can be granted without impermissible impacts on adjacent landowners and the public interest. In this case, the Board of Appeals found that of the six variances MRA needed, three would have resulted in adverse or severely adverse impacts to adjacent properties. The Court of Appeals itself affirmed those findings in MRA IV, under a de novo judicial review of the Board’s decision. The requirement, therefore, that, before bringing an inverse condemnation action, it was essential for MRA to make an argument before the Board of Appeals that a taking of its property would be effected without a grant of the variances MRA needed seems unwarranted.

To require, as opposed to allowing, a landowner to obtain a determination whether there remain beneficial uses for property when a variance cannot be granted (regardless of a potential inverse condemnation action) would be pointless and premature before the landowner finally decides there has been a taking and decides to institute a judicial action for a taking. Indeed, a landowner may not have considered, fully considered or finally decided there are no other beneficial uses for land before seeking a variance for a particular use.

Surely, moreover, the Court of Appeals did not intend that the Board of Appeals may, nor should the Board, in order just to avoid a takings action, alter what would otherwise be findings that granting a variance would impermissibly impact adjacent landowners or the public interest. Were the Board’s doing so the court’s intention and should the Board do so, the Board would act without objectivity and unlawfully, in disregard of the interests of adjacent landowners and the public interest. Once the Board determined that granting MRA’s variances would impermissibly impact adjacent landowners and the public interest, MRA had fully exhausted its administrative remedies, just as the court required in MRA III.

The second respect in which the Court of Appeals’ decision is subject to question is the court’s requiring exhaustion of administrative remedies for causes of action that have not yet accrued. MRA did not have an inverse condemnation takings “claim,” in the sense of an accrued and actionable cause of action, at least until the Board of Appeals denied MRA its variances or, arguably, until the Court’s affirmance of that denial. That MRA did not have a claim on which suit could be brought until the Board of Appeals denied MRA’s variances is what the Court of Special Appeals ruled in holding that MRA’s action was time barred. 242 Md. App. 149-55, 213 A.3d at 772-75 (“MRA’s Inverse Condemnation Claim Accrued on the Date of the County’s Final Administrative Decision.”).

Indeed, not just the Court of Special Appeals but also the Court of Appeals, in a brief footnote in MRA V, said as much, agreeing but, curiously, not holding that MRA’s takings claim was barred by limitations.[6] That being so, MRA did not have any takings claim as to which administrative remedies needed to be exhausted, at least until its variances were denied. In effect, according to the reasoning of both courts, MRA had exhausted the administrative remedies for all the accrued causes of action it had when MRA III directed it to exhaust. Before the Board denied MRA’s variances, however, MRA did not have an inverse condemnation action. Nor did it have a “claim”, unless like the court in MRA V, “claim” is confusingly and opaquely used to mean both a cause of action and a legal argument.

After MRA III, MRA followed the direction of the Court of Appeals. It pursued variances to remedy, in effect, what would otherwise have been a taking, avoiding a lawsuit for inverse condemnation. When MRA was denied variances because of their impermissible impacts on adjacent landowners and then brought its accrued inverse condemnation action in Circuit Court, what should have happened, consistent with the court’s extensive discussion in MRA III about the use of stays in takings actions, was a stay of that action, until MRA sought a determination from the Board of Appeals that, without the variances, MRA had no beneficial uses of its property. It would then have been MRA’s burden to show that it had no beneficial uses of its land without the variances, with the determination in the hands of the body with the institutional expertise to do so.[7]

To be sure, this manner of proceeding is subject to the immediate response that it is inefficient or wasteful of administrative resources. Although it may be inefficient, depending on one’s perspective, it will not necessarily or even always be the case that administrative resources will be wasted. They are as much as likely to be saved, for it may well be that, faced with the high burden of showing no other beneficial land uses in order to prevail in an inverse condemnation action, landowners would not bother with trying to make the showing before the relevant zoning authority.

At any rate, regardless of how the long run risk of inefficiency or agency resource waste is assessed, what is most questionable about the Court of Appeals decision is not efficiency or resource conservation concerns but that the court announced in MRA V, without due notice, a new procedural rule requiring not that administrative remedies for takings claims had to be exhausted but that takings arguments had to be exhausted administratively, before an inverse condemnation action accrued and could be maintained in court. Apparently, moreover, this procedural step is required regardless whether the argument would have had any necessary bearing on granting the relief being sought (as, in MRA’s variance request, where

it did not) and even though the a landowner did not then have an accrued inverse condemnation action or, at least, had not then considered, much less decided upon, such an action.[8]

Until MRA V, that was never law or procedure, at least, the reasonably clear law and procedure. Not even a unanimous panel of the Court of Special Appeals in its opinion below understood that the Court of Appeals, when it previously required that MRA first make all of its “claims” to the Board, was using the term “claim” to mean not an accrued action whose administrative remedies needed to exhausted but an available “argument” supporting a variance that needed to be exhausted. Instead, therefore, the Court of Special Appeals ruled that “[t]o the extent that an administrative remedy was available, MRA clearly pursued it.” 242 Md. App. 144, 213 A.3d at 769.

In fact, in MRA III and MRA IV, the court never speaks of exhausting “claims” but of exhausting “remedies” or administrative proceedings. The only administrative remedies specified for exhaustion in MRA III were not a takings “claim,” in the sense of a cause of action, but an interpretative ruling by the Board of Appeals and, if that were denied, a variance from the Board of Appeals. 382 Md. at ___, 855 A.2d at 360. Nor did the court specify in MRA III and, thereby, alert MRA to each of the specific arguments in favor of a variance, including avoiding a taking, that MRA was required to make before the Board.

Similarly, the Court of Special Appeals noted below that “the County presents us with no authority compelling a party to bring a claim for just compensation in an administrative forum before resorting to the courts.” 242 Md. App. 144, 213 A.3d 769 (emphasis added). Certainly the Court of Specials Appeals and, apparently, even the County did not believe that MRA III was such authority. Not until MRA V does the Court of Appeals, indulging the ambiguity in the meaning of the word “claim”, assert that it was always the law that takings “claims”, meaning “takings arguments,” needed to be administratively exhausted.

Would it have been prudent for MRA, after MRA III, to have argued to the Board of Appeals in the alternative? That is, should MRA have argued to the Board (i) that it should have been granted a variance for its reasons other than it would suffer a taking if it were not granted a variance and (ii) that if it were denied a variance for those reasons, it would have no beneficial use for its land and would, thereby, suffer a taking? Perhaps. After MRA V, that is now plainly the law, but even the Court of Special Appeals did not believe that was the law procedurally before then. Harford C’ty v. MRA, 242 Md. at 144, 213 A.3d 769 (“no authority compelling a party to bring a claim for just compensation in an administrative forum before resorting to the courts”). Moreover, as the Court of Appeals carefully and repeatedly noted in MRA II, MRA “clarified somewhat” in oral argument MRA’s understanding that it would have a takings action that could be judicially maintained, if it were denied a variance on the grounds that were then before the Board of Appeals. MRA V, Slip Op. at 9-10. Yet the court never told MRA otherwise in MRA III and never told MRA that, before bringing a takings action, it was required to argue to the Board that it would suffer a taking if it were denied variances, in addition to the grounds for a variance that the Harford Zoning Code specified.

MRA certainly did misstep in its 30 year odyssey before Harford County zoning agencies and the Maryland courts. Its experience demonstrates that litigants are forever fallible. For its part, however, the Court of Appeals dismissed MRA’s takings action, instead of remanding it to the Circuit Court, with direction to stay proceedings and allow MRA to obtain from the Board of Appeals a determination that it has no beneficial use for its property other than a landfill, without the variances it previously requested.[9] The court did so, despite what has only now, with MRA V, been revealed to be the lack of clarity in its prior decisions. The court’s doing so illustrates thereby a corollary of Supreme Court Justice Robert H. Jackson’s well known aphorism.[10] Courts, unlike litigants, are infallible, but only because they are final.

[1] Unlike a judicial condemnation or eminent domain proceeding, which a sovereign brings to effect a physical taking of property, inverse condemnation occurs when a zoning or other regulation deprives a landowner owner of all beneficial use of property. See Cider Barrel Mobile Home Court v. Eader, 287 Md. 570, 580, 414 A.2d 1246, 1251 (1980) (“Regulations generally constitute a ‘taking’ only if the owner affirmatively demonstrates that the restrictions imposed deprive him of essentially all beneficial use of the property.”).

[2] Of what legal significance the “conspicuous” absence of MRA’s claim was, the Court of Appeals never explained. As to any other significance the “conspicuous absence” was, the court was unclear. The court did characterize MRA as “circumvent[ing] the Board of Appeals’ original jurisdiction by withholding its takings claim and presenting such a claim to a jury in a separate judicial proceeding.” MRA V, Slip Op. at 80-81. The court’s suggestion, however, that MRA had acted in bad faith is unwarranted. As the court recounted in MRA V, MRA advised in MRA II, where exhaustion was also very much at issue, that it had a takings “claim[]” as “a viable option later,” MRA V, Slip Op. 2, 10, and the court had, well prior to MRA II, held that such claims required exhaustion. See Gingell v. C’ty Comm’rs, 249 Md. 374, 376. 239 A.2d 903, 904 (1968), quoting Poe v. Baltimore, 241 Md. 303, 308, 216 A.2d 707, 709 (1966) (exhaustion “generally applies where the constitutional issue raised goes, not to the validity of the zoning ordinance as a whole, but to its application in a particular case, and where the administrative remedy is adequate”). Yet in neither MRA II nor MRA III, did the court tell MRA to pursue its “as applied” claim before the Board of Appeals, along with a variance request.

[3] In connection with variances, Harford County’s Zoning Code provides, in pertinent part:

  • 267-11. Variances.

  1. Except as provided in §267-63H (Chesapeake Bay Critical Area Overlay District, variances), variances from the provisions or requirements of this Part 1 may be granted if the Board finds that:

(1) By reason of the uniqueness of the property or topographical conditions, the literal enforcement of this Part 1 would result in practical difficulty or unreasonable hardship.

(2) The variance will not be substantially detrimental to adjacent properties or will not materially impair the purpose of this Part 1 or the public interest.

  1. In authorizing a variance, the Board may impose such conditions regarding the location, character and other features of the proposed structure or use as it may deem necessary, consistent with the purposes of the Part 1 and the laws of the State applicable thereto. No variance shall exceed the minimum adjustment necessary to relieve the hardship imposed by literal enforcement of this Part 1. The Board may require such guaranty or bond as it may deem necessary to insure compliance with conditions imposed.
  2. If an application for a variance is denied, the Board shall take no further action on another application for substantially the same relief until after 2 years from the date of such disapproval.

* * * *

[4] See id. § 267-11(A)(2).

[5] Surely, it was an unintended overstatement of the law, when the Court of Appeals observed:

Had MRA presented substantial evidence to the Board that a variance was required because a rubble landfill was the only beneficial use that could be made of its Property under the Harford County Code, and the Board agreed, the Board had the authority to grant relief from a potential unconstitutional taking by granting a variance to enable the Property to be used as a rubble landfill.

MRA V, Slip Op. at 77.

[6] Slip Op. at 80 n.22. In so agreeing with the analysis of the Court of Special Appeals, the Court of Appeals cited only its decision in Arroyo v. Bd. of Educ., 381 Md. 646, 851 A.2d 576 (2004). Arroyo’s application to MRA is hardly clear, as discussed in the previous post on this blog concerning MRA. Arroyo is not a takings case. There, instead, the Court of Appeals held that a guidance counselor had exhausted his administrative remedies when a county board of education affirmed a termination that the local school board had already effected. In Arroyo, therefore, unlike with MRA, there was no question that the guidance counselor had suffered palpable injury before the board of education ruled.

[7] Because the Circuit Court had ruled that MRA’s takings action was not time barred, from that court’s then point of view, a stay pending further administrative proceedings, as opposed to a dismissal, was an option open to the court. Further, the County’s Zoning Code provides with respect to variances (§ 267-11(C)) that “[i]f an application for a variance is denied, the Board shall take no further action on another application for substantially the same relief until after 2 years from the date of such disapproval.” Because the last administrative action at that point had occurred in 2007, it would have been open for MRA, while its takings action were stayed, to petition for a zoning change or exception on grounds that, without such relief, it would suffer an unconstitutional taking. The Court of Special Appeals seemingly tied its hand to remand to the Circuit Court with directions to stay for proceedings before the Board of Appeals, because it held that MRA’s action was time barred, reversing the Circuit Court on this ground. The Court of Appeals tightened the knot by noting that it “agree[d]” with the Court of Special Appeals’ reasoning. See discussion, text & n.6, supra. Regardless of limitations, however, it would seem that, then or even now, it was and is open to MRA to seek the administrative relief identified here. Upon the denial, if any, of that relief, a new takings action would accrue.

[8] The Court of Appeals’ opinion cited its decision in Prince George’s C’ty v. Blumberg, 288 Md. 275, 293, 418 A.2d 1155, 1165 (1980), for the proposition that “our case law requires that takings claims be raised in the administrative proceeding.” Slip Op. at 71 (emphasis added). What the courts’ prior decisions required, however, was, more accurately and clearly, that remedies for relief from inchoate takings claims first be sought administratively. In Blumberg the landowners had not sought administrative relief that could have avoided a takings action, were the relief grantable. Here, however, MRA did seek such relief, specifically, variances, as the court directed in MRA III, but the Board of Appeals determined thereafter that it could not grant that relief, regardless of whether a takings action would be avoided by granting that relief. For the same reason, none of the cases that Blumberg cites and that the court also invoked was on point either. In each of those cases, as in Blumberg, the landowner, at the point the landowner instituted a judicial action (not for inverse condemnation damages, by the way), the landowner did unquestionably have available viable administrative relief for avoiding any asserted taking at the time the property owner first sought judicial takings relief. See Arnold v. Prince George’s C’ty, 270 Md. 285, 311 A.2d 223 (1973); Gingell v. C’ty Comm’rs, 249 Md. 374, 239 A.2d 903 (1968); Poe v. Baltimore, 241 Md. 303, 216 A.2d 707 (1966); Bogley v. Barber, 194 Md. 632, 642, 72 A.2d 17, 21 (1950) (affirming ‘without prejudice” to further administrative relief). In other words, Blumberg and the cases it cites stand for the established and uncontroversial proposition that available remedies for a taking had to be administratively exhausted, not that takings claims (using “claims” in the sense of a legal action) had first to be brought administratively.

[9] See discussion, supra, n.7. The Court of Appeals in MRA V took issue with the inverse condemnation case that MRA was allowed to make in the Circuit Court. This post expresses no opinion whether MRA, if it had chosen to obtain and did obtain a Board of Appeals determination that it had no beneficial uses for its property other than landfill, could, upon thereafter bringing an inverse condemnation action in the Circuit Court, put on the same inverse condemnation case it actually did, without risking a directed verdict or other challenge to its case, or would be entitled to use the measure of damages it previously did. Nor does this post express any opinion on MRA’s case were it now to seek a determination from the Board of Appeals that it has no beneficial use for its property and, were to obtain that determination, bring a new takings action in Circuit Court. See discussion, supra, n.7.

[10] “We are not final because we are infallible, but we are infallible only because we are final.” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring opinion).

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