UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1755

CLAYLAND FARM ENTERPRISES, LLC,

Plaintiff – Appellant,

v.

TALBOT COUNTY, MARYLAND; TALBOT COUNTY PLANNING & ZONING 

COMMISSION; TALBOT COUNTY DEPARTMENT OF PUBLIC WORKS

ADVISORY BOARD; THOMAS HUGHES, in his individual and 

official capacity; MICHAEL SULLIVAN, in his individual and 

official capacity; JOHN WOLFE, in his individual and 

official capacity; JACK FISCHER, in his individual and 

official capacity; MARYLAND DEPARTMENT OF PLANNING,

Defendants – Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. J. Frederick Motz, Senior District 

Judge. (1:14-cv-03412-JFM)

Argued: September 23, 2016 Decided: December 2, 2016

Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.

Reversed by unpublished opinion. Judge Shedd wrote the opinion,

in which Judge Traxler joined. Judge Floyd wrote an opinion 

concurring in part and dissenting in part.

ARGUED: Mark Frederick Gabler, RICH AND HENDERSON, P.C., 

Annapolis, Maryland, for Appellant. Paul J. Cucuzzella, OFFICE 

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland; 

Victoria M. Shearer, KARPINSKI, COLARESI & KARP, P.A., 
2

Baltimore, Maryland, for Appellees. ON BRIEF: Warren K. Rich, 

Aminah Famili, RICH AND HENDERSON, P.C., Annapolis, Maryland, 

for Appellant. Brian E. Frosh, Attorney General of Maryland, 

OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, 

for Appellee Maryland Department of Planning.

Unpublished opinions are not binding precedent in this circuit.
3

SHEDD, Circuit Judge:

Clayland Farm Enterprises, LLC appeals the district court’s 

order dismissing its claims against Talbot County, Maryland, and 

other defendants for lack of ripeness. Because Clayland Farm’s 

claims are ripe, we reverse. 

I.

Clayland Farm is a 106 acre property located in Talbot 

County, Maryland. At all relevant times, Clayland Farm has been 

zoned as a “Village Center,” which is generally the “preferred 

location” in rural areas for “single and multi-family 

residential development.” J.A. 15–16.1

The owners of Clayland Farm cannot pursue their land use 

goals, however, because of three Talbot County ordinances, two 

that are moratoriums on development, and one that limits sewer 

availability. Bill Nos. 1214 and 1257, enacted in 2012 and 2014, 

have indefinitely prohibited certain types of development in 

areas zoned as Village Centers, including Clayland Farm. The 

moratoriums prohibit owners from seeking or obtaining approval 

to subdivide their property. They also impose more restrictive 

zoning density rules by prohibiting subdivision of properties 

 1 Because we are reviewing a motion to dismiss, we describe

the facts as alleged in Clayland Farm’s complaint. See Aziz v. 

Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011).
4

zoned as “Village Centers” into more than two lots. The affected 

property owners, including Clayland Farm, have no ability to 

seek a variance from, or a waiver to, the moratoriums and are

otherwise unable to challenge them outside of court.

The third challenged ordinance established a classification 

method that determines the availability, if any, and type of 

sewer system for a property. The Talbot County Council adopted 

Bill No. 1229 in 2012, pursuant to the Maryland Sustainable 

Growth and Agricultural Preservation Act of 2012 that required 

each county to map existing property and designate it in one of 

seven “tiers.” A property’s tier designation determines the 

property’s allowed type of subdivision and allowed wastewater 

treatment system. J.A. 26. Talbot County placed all but six 

acres of Clayland Farm in Tier IV, which is property intended 

for natural resources protection and without sewer access. The 

County took this action even though Clayland Farm had sewer 

access prior to this new designation and despite the advice of 

the Maryland Department of Planning,2 which informed Talbot 

County in a private letter that Clayland Farm had been 

 2 The Maryland Department of Planning is a state agency that 

serves as “an advisory, consultative, and coordinating agency” 

on a variety of issues related to land use and planning. See Md. 

Code Ann., State Fin. & Proc. § § 5-201, 5-302.
5

improperly designated as a Tier IV area. Talbot County did not 

take any action in response to the department’s advice.3

In response to these ordinances, Clayland Farm filed suit 

in state court against Talbot County, various county officials, 

and the Maryland Department of Planning. Clayland Farm’s 

complaint asserted seven claims, arising under state and federal 

law. Counts I–III assert federal claims against Talbot County 

for violations of Clayland Farm’s Fifth and Fourteenth Amendment 

rights under the United States Constitution, pursuant to 42 

U.S.C. § 1983. Count I asserts a regulatory takings claim that 

the moratorium is facially unconstitutional. Count II alleges 

that Talbot County deprived Clayland Farm of their procedural 

due process rights by enacting the moratoriums with no postdeprivation remedies, and Count III alleges that Talbot County 

deprived Clayland Farm of its substantive due process rights by 

enacting the ordinances. 

Count IV asserts a § 1983 conspiracy claim against Talbot 

County and its officials for violating Clayland Farm’s Fifth and 

Fourteenth Amendment rights. Counts V and VI assert state 

declaratory judgment claims against various defendants, and 

 3 Had the Maryland Department of Planning sent a formal, 

rather than informal, letter, Talbot County would have been 

required to hold a public hearing on this issue.
6

Count VII seeks injunctive relief against various defendants to 

enjoin the violations alleged in the other counts. 

Talbot County removed the case and then moved to dismiss. 

The district court granted the motion “on the ground that the 

issues raised by [Clayland Farm] are not yet ripe for 

adjudication. It is beyond the province and competence of this 

court to make zoning decisions . . . . The record does not 

suggest that the Talbot County Council has yet denied any of 

[Clayland Farm’s] constitutional rights.” J.A. 72. Clayland Farm 

timely appealed.

II.

We review de novo the district court’s grant of a motion to 

dismiss, Lebron v. Rumsfeld, 670 F.3d 540, 547 (4th Cir. 2012),

accepting the facts as alleged in Clayland Farm’s complaint. See

Aziz, 658 F.3d at 390. For the following reasons, we reverse the 

district court’s dismissal of Clayland Farm’s complaint because 

all of these claims are ripe. 

Ripeness is a justiciability doctrine intended to prevent 

the courts from entangling themselves in premature disputes.

See, e.g., National Park Hospitality Ass’n v. Department of 

Interior, 538 U.S. 803, 807–08 (2003). “The ripeness doctrine is 

drawn both from Article III limitations on judicial power and 

from prudential reasons for refusing to exercise jurisdiction.” 

Id. (internal quotations and citations omitted). A claim should 
7

be dismissed for lack of ripeness if the plaintiff has not yet 

suffered injury and any future impact “remains wholly 

speculative.” Gasner v. Bd. of Supervisors, 103 F.3d 351, 361 

(4th Cir. 1996). In determining ripeness, “[a] case is fit for 

judicial decision when the issues are purely legal and when the 

action in controversy is final and not dependent on future 

uncertainties.” Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 

2006) (internal citation omitted). We now address Clayland 

Farm’s claims under this standard.

Count I is a facial challenge to the moratoriums and is 

thus clearly ripe. See Complaint at 27, J.A. 34 (“Talbot County 

has deprived and continues to deprive [Clayland Farm] of its 

Fourteenth Amendment rights by enacting and perpetuating the 

Village Growth Moratorium, an illegal, illegitimate and 

inequitable regulatory taking.”) (emphasis added); see also

Appellant’s Br. at 22–28.4 When an ordinance on its face is 

alleged to have effected a taking, as in Count I, the claim 

accrues when the ordinance interferes in a clear, concrete 

fashion with the property’s primary use. National Advertising 

Co. v. City of Raleigh, 947 F.2d 1158, 1163 (4th Cir. 1991). 

 4 Clayland Farm also made this point clear at oral argument. 

Oral Argument at 3:45, Clayland Farm Enterprises, LLC v. Talbot 

County, Maryland et al. (No. 15-1755), available at 

http://www.ca4.uscourts.gov/oral-argument/listen-to-oralarguments (“These are facial challenges.”).
8

Facial takings challenges to a regulation are “generally ripe 

the moment the challenged regulation or ordinance is passed . . 

. .” Suitum v. Tahoe Regional Planning Agency, 520 U.S. 725, 

736, n. 10 (1997).5

Clayland Farm suffered concrete and certain injury as soon 

as the moratoriums were enacted; the ordinances prohibit

Clayland Farm from subdividing more than one additional lot from 

its property and from developing more than one dwelling unit on 

the lot, which had previously been allowed. The possibility that 

Talbot County may enact future zoning or planning ordinances 

that affect Clayland Farm’s ability to develop its property does 

not call into question the finality of the three ordinances that 

currently restrict Clayland Farm. Thus, Count I’s facial 

challenge is ripe.6

 5 Speaking to Count I, Talbot County admitted that “[t]o the 

extent it’s a facial challenge, the district court would have 

jurisdiction to address it because it’s ripe.” Oral Argument at 

20:52, Clayland Farm Enterprises, LLC v. Talbot County, Maryland 

et al. ( No. 15-1755), available at http://www.ca4.uscourts.gov/

oral-argument/listen-to-oral-arguments (emphasis added). 

6 Talbot County argues that Clayland Farm’s just 

compensation claim is not ripe because Clayland Farm did not 

pursue the state remedy of inverse condemnation. However, the 

state-litigation requirement for takings claims “does not apply 

to facial challenges to the validity of a state regulation.” See

Holliday Amusement Co. v. South Carolina, 493 F.3d 404, 407 (4th 

Cir. 2007). As to any as-applied just compensation claim for an 

otherwise valid regulatory taking, Clayland Farm has satisfied 

the state-litigation requirement by filing this action in state 

court; Maryland does not have a separate statutory or 

(Continued)
9

For Count II, Clayland Farm asserts a procedural due 

process claim, asserting that the enactment of an indefinite 

moratorium without any post-deprivation remedies facially 

“violates the Fourteenth Amendment of the U.S. Constitution.”

J.A. 37. Because Clayland Farm claims a concrete injury and has 

been provided no means to address that injury, Count II is ripe. 

See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (fundamental 

requirement of procedural due process is the opportunity to be 

heard at a meaningful time and in a meaningful manner); see also

Doe v. Virginia Dep’t of State Police, 713 F.3d 745, 758–59 (4th 

Cir. 2013). Count III asserts that the moratorium and the 

designation of the Clayland Farm property as Tier IV property 

were so arbitrary that they facially violate the Constitutional 

guarantee of substantive due process. See, e.g., Beacon Hill 

Farm Assoc. v. Loudoun County Bd. of Sup’rs, 875 F.2d 1081, 

1084–85 (4th Cir. 1989) (substantive due process requires that 

 

administrative inverse condemnation remedy to challenge an

alleged regulatory taking of property. See, e.g., Duke Street 

Ltd. P’ship v. Board of Cnty. Comm’rs of Calvert Cnty., 684 A.2d 

40, 49 (Md. Ct. Spec. App. 1996). Thus, any claimed

noncompliance with the state-litigation requirement would be 

excused because it was the County’s removal of the case that 

prevented the state court from addressing Clayland Farm’s

‘inverse condemnation’ type claim contained in this case. See

Sansotta v. Town of Nags Head, 724 F.3d 533, 544 (4th Cir. 

2013).
10

regulation cannot be clearly arbitrary and without substantial 

relationship to general welfare). Count III is therefore ripe.

Count IV, which alleges a conspiracy to commit the 

constitutional violations in Counts I-III, is ripe for the same 

reason the events supporting those counts are ripe. While it may 

not be necessary that the object of the alleged conspiracy has 

been achieved for the claim to be ripe, the claim certainly is 

ripe when the object of such conspiracy, here, the enactment of 

the ordinances, has been accomplished.

Finally, Counts V, VI, and VII are ripe because they allege 

state law violations or seek injunctive relief based on the 

enactment of the three ordinances. While the district court 

found the claims were not ripe because Talbot County had “not 

yet reached any final decision,” J.A. 72, Clayland Farm suffered 

concrete injury when the three ordinances were enacted, even if 

the ordinances may later be modified. 

III.

We therefore reverse the district court’s dismissal of 

Clayland Farm’s claims for lack of ripeness and remand for 

further proceedings. 

REVERSED
11

FLOYD, Circuit Judge, concurring in part and dissenting in part:

I agree with the majority’s conclusion that Counts III 

through VII of Clayland Farm’s complaint are all ripe--as is 

Count I to the extent that it contests the validity of Talbot 

County’s alleged taking. Nonetheless, because Clayland Farm

failed to exhaust available state remedies, I would hold that 

Counts I and II are unripe to the extent that they seek a just 

compensation remedy. I respectfully dissent from the majority’s 

contrary conclusion as to these counts. 

I.

A.

The Fifth Amendment prohibits takings without just 

compensation and takings for non-public use.1 I read Count I as 

presenting both a claim contesting the validity of an allegedly 

non-public use taking and, in the alternative, a claim for just 

compensation. See J.A. 34–35 (seeking to enjoin the contested 

regulations on the theory that they “bear [no] substantial 

relationship to any legitimate police power,” but also seeking 

compensatory damages for an alleged taking done “without just 

compensation”). 

 1 The Fifth Amendment of the U.S. Constitution provides: 

“[N]or shall private property be taken for public use, without 

just compensation.” U.S. Const. amend. V. 
12

With respect to federal just compensation claims, the 

Supreme Court has instructed that “if a State provides an 

adequate procedure for seeking just compensation, the property 

owner cannot claim a violation of the Just Compensation Clause 

until it has used the procedure and been denied just 

compensation.” Williamson Cty. Reg’l Planning Comm’n v. 

Hamilton Bank of Johnson City, 473 U.S. 172, 195 (1985). This 

exhaustion requirement makes sense. “The Fifth Amendment does 

not proscribe the taking of property; it proscribes taking 

without just compensation,” id. at 194, and so an adequate state 

remedy for a public use taking eliminates the possibility of a 

Fifth Amendment violation. 

Recognizing this point, we have held that when a state 

“opens its courts to inverse condemnation claims arising from 

regulatory takings,” and a plaintiff fails to seek just 

compensation through such procedures, the plaintiff “has not 

satisfied [the exhaustion] requirement.” Holliday Amusement Co.

of Charleston, Inc. v. South Carolina, 493 F.3d 404, 407 (4th 

Cir. 2007) (discussing Williamson Cty., 473 U.S. at 195). 

Maryland has, without question, opened its courts for state 

inverse condemnation claims. See, e.g., Litz v. Md. Dep’t of 

Env’t, 131 A.3d 923, 930-31 (Md. 2016). Nonetheless, Clayland 

Farm failed to advance such a claim in its complaint. As such, 

Count I’s federal just compensation claim is clearly unripe.
13

B.

The majority holds otherwise, based on a misreading of 

precedent. It does so by first announcing that “Count I is a 

facial challenge.” Maj. Op. at 7. Then, in response to Talbot 

County’s exhaustion argument against Clayland Farm’s just 

compensation claim, the majority cites Holliday Amusement for 

the proposition that “the state-litigation requirement for 

takings claims ‘does not apply to facial challenges to the 

validity of a state regulation.’” Id. at 8 n.6 (quoting 

Holliday Amusement, 493 F.3d at 407). This statement, although 

true, is irrelevant. It offers no suggestion whatsoever that a 

facial claim seeking just compensation for a valid taking--as 

opposed to a facial claim challenging the validity of a taking--

is excused from the exhaustion requirement. 

Thus, in my view, even if Count I states a facial just 

compensation claim, its facial nature would not exempt it from 

the exhaustion requirement. This view finds extensive support 

in the case law, both within and outside this Circuit. See, 

e.g., Wilkins v. Daniels, 744 F.3d 409, 417–18 (6th Cir. 2014) 

(“With respect to just-compensation challenges, while Williamson 

County’s first requirement may not apply to facial challenges, 

its second requirement--that plaintiffs must seek just 

compensation through state procedures--does.” (citations 

omitted)); Alto Eldorado P’ship v. Cty. of Santa Fe, 634 F.3d
14

1170, 1176-77 (10th Cir. 2011) (“Courts considering claims 

alleging a . . . taking without just compensation, even when 

characterized as facial claims, have applied the second

Williamson County requirement [of exhaustion.]” (citing Equity 

Lifestyle Props., Inc. v. Cty. of San Luis Obispo, 548 F.3d 

1184, 1190 & n.13 (9th Cir. 2008); Holliday Amusement, 493 F.3d 

at 407; Cty. Concrete Corp. v. Twp. of Roxbury, 442 F.3d 159, 

168 (3d Cir. 2006))). 

Indeed, there is good reason to treat facial claims 

challenging the validity of a taking and facial claims for just 

compensation differently in the exhaustion context. It is 

sensible to exempt the former category from any exhaustion 

requirement, because “no amount of compensation would render the 

taking constitutional [when] it was in excess of the 

government’s authority to take private property.” Alto

Eldorado, 634 F.3d at 1176 n.3. In contrast, this justification 

does not apply to the latter category, because a state remedy 

can obviate the need for a facial, federal just compensation 

claim in the same way that it can obviate the need for an asapplied one. Thus, it is entirely proper to require Clayland

Farm to exhaust its state remedies before allowing it to proceed 

with its federal just compensation claim--regardless of whether 

the claim is labeled facial or as-applied. 
15

C.

The majority attempts to further side-step the exhaustion 

requirement by asserting that if it does apply, Talbot County 

has waived its right to invoke it by removing this case to 

federal court. According to the majority, Clayland Farm did 

what it needed to do by filing its complaint in state court. 

Therefore, “any claimed noncompliance with the state-litigation 

requirement would be excused because it was the County’s removal 

of the case that prevented the state court from addressing 

Clayland Farm’s ‘inverse condemnation’ type claim contained in 

this case.” Maj. Op. at 8 n.6 (citing Sansotta v. Town of Nags 

Head, 724 F.3d 533, 544 (4th Cir. 2013)).

With respect to my colleagues in the majority, the waiver 

principle that we recognized in Sansotta is inapplicable here. 

In Sansotta, we waived the exhaustion requirement following the 

removal of a suit that alleged both a state inverse condemnation 

claim and a federal just compensation claim. 724 F.3d at 544-

47. We reasoned that because the filing of such joint suits in 

state court was “exactly what San Remo Hotel[, L.P. v. City & 

Cty. of San Francisco, Cal., 545 U.S. 323 (2005)] permits,” we 

would be “judicially condon[ing] manipulation of litigation” if 

we subjected such suits to the exhaustion requirement postremoval. Sansotta, 724 F.3d at 544-45. 
16

The complaint in this case, however, falls outside the 

scope of Sansotta’s waiver reasoning. It alleges no state 

inverse condemnation claim, and is thus not the type of joint 

suit authorized by San Remo Hotel. Whereas the plaintiff in 

Sansotta alleged a state inverse condemnation claim that could 

have obviated the need for a court (federal or state) to reach 

its federal just compensation claim, Clayland Farm failed to do 

so. Thus, Clayland Farm’s federal just compensation claim is 

just as unripe in federal court as it was in state court, and so 

Clayland Farm should not be entitled to a waiver defense. 

D.

Although I conclude that the just compensation claim of 

Count I is unripe, I agree with the majority that the

alternative claim in Count I--a public use claim contesting the 

alleged taking’s facial validity--is ripe. See Holliday 

Amusement, 493 F.3d at 407 (“[T]he state procedures requirement 

does not apply to facial challenges to the validity of a state 

regulation.” (citations omitted)). 

As explained above, there is no need to attach an 

exhaustion requirement to a claim that a taking was not for 

public use, because no amount of state compensation can cure the 

illegality of such a taking. With this understanding in mind, 

at least three circuits have classified a public use claim as 

ripe even while classifying an adjoined just compensation claim 
17

as unripe for failure to exhaust. See Carole Media LLC v. N.J. 

Transit Corp., 550 F.3d 302, 308 n.3 (3d Cir. 2008); Rumber v. 

District of Columbia, 487 F.3d 941, 943–45 (D.C. Cir. 2007); 

Montgomery v. Carter Cty., Tenn., 226 F.3d 758, 768 (6th Cir. 

2000). I would follow these courts’ approach here.2

II.

Next, I would dispose of Clayland Farm’s two due process 

claims in a manner similar to my recommended disposition of 

Count I. 

A.

To elaborate, the substantive due process claim in Count 

III is analogous to the public use claim in Count I, in that 

both contest the validity of Talbot County’s regulations. 

Therefore, the former is exempt from the exhaustion requirement 

to the same extent that the latter is. See Kurtz v. Verizon 

N.Y., Inc., 758 F.3d 506, 514 (2d Cir. 2014) (“Substantive due 

process claims of arbitrary and capricious conduct, however, 

require only a showing of finality--there is no exhaustion 

requirement.” (citations omitted)). As such, I agree with the 

 2 Although the typical remedy for a non-public use taking is 

an injunction, Kelo v. City of New London, 545 U.S. 469, 475-76 

(2005), I would also approve compensatory relief designed to 

remedy any past injuries resulting from such a taking. See

Theodorou v. Measel, 53 F. App’x 640, 642 (3d Cir. 2002) 

(affirming award of compensatory damages for property damage and 

emotional distress flowing from a township’s completed private 

taking). 
18

majority that Count III is ripe, notwithstanding Clayland Farm’s 

failure to exhaust its state remedies.

B.

In contrast, I would hold that the procedural due process 

claim in Count II is unripe. 

Indeed, I am “persuaded by those courts holding that 

Williamson County”--including its exhaustion requirement--

“applies to due process claims arising from the same nucleus of 

facts as a takings claim.” Kurtz, 758 F.3d at 515–16 (citing, 

inter alia, B. Willis, C.P.A., Inc. v. BNSF Ry. Corp., 531 F.3d 

1282, 1299 n.19 (10th Cir. 2008); Greenfield Mills, Inc. v. 

Macklin, 361 F.3d 934, 961 (7th Cir. 2004)). “Such a rule finds 

support in Williamson County itself: if the only process 

guaranteed to one whose property is taken is a post-deprivation 

remedy, a federal court cannot determine whether the state’s 

process is constitutionally deficient until the owner has 

pursued the available state remedy.” Id. at 516 (citation 

omitted). Additionally, this rule prevents plaintiffs from 

“circumvent[ing] the ripeness requirement for takings claims 

simply by attaching a procedural due process claim to their 

complaint.” Bigelow v. Mich. Dep’t of Nat. Res., 970 F.2d 154, 

160 (6th Cir. 1992). 

In this case, the procedural due process claim in Count II 

mirrors the just compensation claim in Count I, in that both 
19

seek identical compensation for Clayland Farm’s deprivation of 

development rights. Thus, applying the rule discussed above, I 

would hold that the exhaustion requirement governing the just 

compensation claim in Count I should likewise govern the 

procedural due process claim in Count II. Therefore, Clayland

Farm’s non-compliance with the exhaustion requirement renders 

Count II unripe.

III.

Despite my disagreement with the majority on the abovedescribed points, I am happy to concur in their holding that 

Counts V and VI--Clayland Farm’s state law claims--are ripe.

I also agree that Count IV’s conspiracy claim and 

Count VII’s injunctive relief claim are ripe, albeit only to the 

extent that they are premised on remedying legal violations that 

underlie claims that are themselves ripe. 

IV.

The majority today remands to the district court just 

compensation and procedural due process claims premised on 

alleged government takings for which Maryland has had no 

opportunity to offer redress. In doing so, the majority leaves 

the district court with the unenviable task of entertaining 

claims premised on incomplete government action. See Williamson 

Cty., 473 U.S. at 195 (explaining, in the just compensation 

context, that “the State’s action is not ‘complete’ in the sense 
20

of causing a constitutional injury ‘unless or until the State 

fails to provide an adequate postdeprivation remedy for the 

property loss’” (quoting Hudson v. Palmer, 468 U.S. 517, 532 

n.12 (1984))). Because I cannot agree that such claims are 

ripe, I respectfully dissent from the majority’s disposition of 

Clayland Farm’s just compensation and procedural due process 

claims.