Gail B. Litz v. Maryland Department of the 

Environment, et al., No. 23, September Term, 

2015. Opinion by Harrell, J. 

EMINENT DOMAIN – INVERSE CONDEMNATION 

“Inverse condemnation” is a shorthand description of an action by which a landowner 

seeks just compensation for a taking of his or her property in the absence of formal 

condemnation proceedings. See Coll. Bowl, Inc. v. Mayor & City Council Of Baltimore, 

394 Md. 482, 489, 907 A.2d 153, 157 (2006). It is possible for a plaintiff to state a claim 

for inverse condemnation by pleading governmental inaction in the face of an affirmative 

duty to act. 

EMINENT DOMAIN – INVERSE CONDEMNATION – MARYLAND AND 

LOCAL GOVERNMENT TORT CLAIMS ACTS 

Inverse condemnation is a constitutional claim requiring just compensation as a remedy. 

It is not covered under the Local Government Tort Claims or Maryland Tort Claims Acts. 

Similar to the eminent domain provisions under the Fifth and Fourteenth Amendments to 

the United States Constitution, Article III, section 40 of the Maryland Constitution does 

not provide sovereign immunity to state or local governments for an unconstitutional 

taking. 

TORTS – TRESPASS – LOCAL GOVERNMENT TORT CLAIMS ACT 

Trespass is a tort covered by the Local Government Tort Claims Act and subject to the 

LGTCA’s notice requirements. 
IN THE COURT OF APPEALS

OF MARYLAND 

No. 23 

SEPTEMBER TERM, 2015 

 

GAIL B. LITZ

v. 

MARYLAND DEPARTMENT OF THE 

ENVIRONMENT, et al., 

 

 Barbera, C.J., 

 Battaglia, 

Greene,

Adkins,

McDonald,

 Watts, 

Harrell, Glenn T., Jr. (Retired, Specially

Assigned),

 JJ.

 

Opinion by Harrell, J.

Battaglia, McDonald and Watts, JJ., 

concur and dissent. 

 

Filed: January 22, 2016 

Circuit Court for Caroline County 

Case No. 05-C-10-013616 

Argued: November 9, 2015
“The nine most terrifying words in the English language are, 

‘I’m from the government and I’m here to help.’” 

-Ronald Reagan, 40th President of the United States, 

News Conference (12 August 1986). 

Petitioner, Gail B. Litz, might have welcomed hearing those nine words spoken to 

her, but, according to her Third Amended Complaint, they were not forthcoming. In this 

litigation, Ms. Litz makes a second appearance before this Court regarding a parcel of 

real property (containing a lake) in Caroline County, Maryland, that was contaminated

allegedly by run-off from failed septic systems serving homes and businesses in the 

Town of Goldsboro. The human sewage seeped out of the septic fields into ground and 

surface water flowing into drainage swales, which drained into streams flowing into Ms. 

Litz’s lake. Ms. Litz operated a popular lake-front recreational campground on her 

property in Goldsboro. Unable to operate the campground because of the pollution to her 

lake, Ms. Litz lost the property through foreclosure by the bank holding the mortgage. 

She filed a complaint in the Circuit Court for Caroline County. After two prior 

trips to the Court of Special Appeals and one to this Court, Ms. Litz’s remaining claims 

against Respondents, the State of Maryland, the Maryland Department of the 

Environment (“MDE”), the Department of Health and Mental Hygiene (in the guise of 

the Caroline County Health Department) (collectively referred to in this opinion 

sometimes as the “State” or the “State Respondents”), and the Town of Goldsboro, the 

case reaches us for the second time regarding her claims of inverse condemnation against 

all Respondents and trespass against the Town. We issued a writ of certiorari to consider 

questions regarding Ms. Litz’s relative success in stating these claims and the 
2

applicability of the Local Government Tort Claims Act and the Maryland Tort Claims 

Act. After determining in our first encounter with this litigation that Ms. Litz filed suit

within applicable statutes of limitations, we hold now that, at the preliminary motion 

stage of the litigation, Ms. Litz provided sufficient factual averments to state claims for 

inverse condemnation against Respondents.

1

 

ALLEGATIONS IN THE THIRD AMENDED COMPLAINT2

The 140 acre Litz property is located in the Town of Goldsboro in Caroline 

County, Maryland. When Ms. Litz’s parents purchased the property in 1948, it contained

a pond and grist mill. The Litz family constructed a dam in the mid-1950s to create 

originally a 28-acre lake, known as “Lake Bonnie,” to assist with irrigation of the fields. 

The Litz family opened also a recreational campground business on the property, which 

had campsites, swimming, fishing, and boating – centered around Lake Bonnie. Ms. Litz 

inherited the property in 2001 and became the owner of the campground business. It was 

her “intention and expectation that she would continue to own and operate the 

Campground as her primary occupation and source of income.” 

 

1

 The issue of whether Ms. Litz stated adequately a claim for trespass against the 

Town is not at issue before this Court. The issue was raised only in the Town of 

Goldsboro’s Petition for a Writ of Certiorari, which this Court denied.

2

 Our recitation of the “facts” (and reasonable inferences drawn therefrom 

favorable to Ms. Litz) come purely from Ms. Litz’s Third Amended Complaint. We will 

focus exclusively on those allegations that relate to the questions for which we granted 

certiorari. 
3

Lake Bonnie “receives its water from two local streams, the Oldtown Branch and 

the Broadway Branch, and [the lake] discharges a constant overflow of water [through a 

spillway] directly into the Choptank River,” a tributary of the Chesapeake Bay. Because 

Goldsboro was a small town3

, there was no public water or sewer service available. The 

residents and businesses in the Town relied on individual wells and septic systems. Both 

of the local streams receive groundwater and surface water from roads maintained by the 

Maryland State Highway Administration and flow into Lake Bonnie. Two local drainage 

associations4 were created along these streams. The municipal surface water open 

drainage collection system flows also into the streams and ultimately into Lake Bonnie. 

As time passed, the septic systems within the Town began to fail, the septic fields 

overflowed into the open drainage system, and contaminated the two streams, which led 

to the contamination of Lake Bonnie. Following failed attempts to fix the problem in the 

1970s, the Caroline County Health Department conducted studies in the 1980s.5 A study 

conducted in 1985 by Lester A. Coble, Jr., then Director of the Caroline County 

 

3 According to the Third Amended Complaint, the population of Goldsboro in 

2000, was 216 people. 

4

 Drainage associations “are networks of drainage ditches that drain the local 

fields, and are funded by a mixture of federal, state, and local money. The PDAs have 

also been informally used as storm water drainage systems for the Town, and have been 

used to remove waste water from the Town.” 

5 According to Ms. Litz’s allegations, the Caroline County Health Department, a 

State agency for present purposes, “had the legal responsibility to review applications for 

septic systems, where appropriate issue permits for septic systems, and conduct 

inspections of the septic systems.” 
4

Department of Health, “found that between 70% and 80% of the Town had at least one of 

the three following problems: (1) confirmed sewage pits; (2) raw sewage or waste water; 

or (3) shallow wells less than one hundred feet or deep wells less than fifty feet from a 

source of contamination.” 

By 1988, the Caroline County Health Department reported to the Maryland 

Department of the Environment that the shallow wells tested in Goldsboro contained 

“elevated levels of fecal coliform,” i.e., pathogens found in human bodily waste. On 18 

September 1995, the Caroline County Health Department concluded that the “use of the 

stormwater management system in the Town as a sewage system has gotten to crisis 

proportions.” A 1 December 1995 letter from the Maryland Department of the 

Environment stated that “[t]here are actual water quality impacts on Lake Bonnie. . . It 

now appears that the situation has deteriorated and created environmental concerns that 

will need to be addressed.” 

On 8 August 1996, MDE and Goldsboro’s then-Mayor William H. Bartin signed 

an administrative consent order which “explain[ed] the problems, order[ed] Goldsboro to 

take certain actions, impose[d] mandatory reporting obligations and specifie[d] penalties 

for non-compliance.” Some of the specific requirements of the agreement between MDE 

and Goldsboro included: 

1. Within 60 days . . . (Goldsboro will) identify the private sewage disposal 

systems located in and around Goldsboro which are discharging pollutants 

to surface or ground water . . . 

2. By October 30, 1996, complete a study to identify and characterize the 

construction of a public sewer system. . . 
5

3. By January 1, 1997, submit (to MDE) for review and approval a plan and 

schedule. . . for construction of a public sewer system (the “Compliance 

Plan”) 

4. Within 30 days of approval of the Compliance Plan, begin 

implementation of the Compliance Plan. 

Meeting the timetable and remedies contemplated by this Consent Order did not come to 

pass. 

In 2004, the Caroline County Health Department issued warnings to multiple

towns, including Goldsboro, about issuing additional building permits for areas with 

water and sewage concerns. Even with these warnings, “the Town has failed to comply 

with any of the material terms of the Consent Order and MDE has enforced no part of it.” 

Because Lake Bonnie was being polluted continually by the pollutants in the water 

flowing through the drainage system into the Oldtown Branch and the Broadway Branch

and then into Lake Bonnie, Ms. Litz alleges that “the campground has been destroyed, 

and Litz’s property has been substantially devalued,” which left her “unable to pay the 

mortgage on the Litz property because the campground was generating no income.” A 

foreclosure action resulted and the property was sold to Provident State Bank on 14 May 

2010 for $364,000. 

PROCEDURAL HISTORY 

Ms. Litz’s original complaint, filed on 8 March 2010, sought a permanent 

injunction and alleged negligence, trespass, private and public nuisance, and inverse 

condemnation against the Town of Goldsboro and Caroline County (the Health 
6

Department6) and negligence and inverse condemnation against MDE. An amendment 

later added a count for mandamus or equitable relief under the Environmental Standing 

Act. Ms. Litz’s second amended complaint added the Department of Health and Mental 

Hygiene (“DHMH”) and the State of Maryland as defendants, seeking a permanent 

injunction and alleging negligence, trespass, private and public nuisance, and inverse 

condemnation against the newly added defendants. 

On 13 September 2010, a hearing was conducted in the Circuit Court on motions 

to dismiss (based on a host of defenses, including applicable statutes of limitation) filed 

by MDE, DHMH, the State, the County, and Goldsboro. The Circuit Court granted the 

motions to dismiss as to all defendants7, save the Town, reserving ruling as to the Town 

to allow for a response to be filed. On 22 September 2010, Ms. Litz filed a Motion for 

Reconsideration in the Circuit Court and, a few days later, filed her opposition to 

Goldsboro’s Motion to Dismiss. On the same day, Ms. Litz filed her Third Amended 

Complaint, which added some factual allegations, but stated no additional claims. 

The trial judge denied Ms. Litz’s Motion for Reconsideration and dismissed her 

claims against all of the defendants, with prejudice and without leave to amend. Ms. Litz 

 

6

 “[A]ny claim against the County would be against the County Health 

Department, which was for the purposes of the present case a State agency.” Litz v. 

Maryland Dep’t of Env’t, 434 Md. 623, 634, 76 A.3d 1076, 1082 (2013) (hereinafter 

“Litz I”).

7

 On the record, the Circuit Court “dismissed all counts against the State 

defendants on the ground that the State was protected by sovereign immunity and [Ms.] 

Litz failed to comply with the requirements of the Maryland Tort Claims Act.” Litz I, 

434 Md. at 634, 76 A.3d at 1082. 
7

appealed to the Court of Special Appeals8, which affirmed, in an unreported opinion, the 

Circuit Court’s dismissal based on its narrow conclusion that Ms. Litz’s claims were 

barred by the relevant statutes of limitation. 

We granted Ms. Litz’s first Petition for Certiorari, Litz v. Maryland Dep’t of Env’t,

429 Md. 81, 54 A.3d 759 (2012). We concluded ultimately that “it was error to affirm 

the grant of the motions to dismiss Litz’s causes of action for negligence, trespass, and 

inverse condemnation on the grounds of limitations, but we affirm the judgments of the 

Circuit Court and the intermediate appellate court in dismissing Litz’s nuisance counts.” 

Litz v. Maryland Dep’t of Env’t, 434 Md. 623, 642, 76 A.3d 1076, 1087 (2013) 

(hereinafter “Litz I”). We remanded the case to the Court of Special Appeals to conduct a 

review of the other arguments advanced by the governmental defendants for why Ms. 

Litz’s suit should be dismissed totally. 

On remand, the Court of Special Appeals reviewed the legal sufficiency of Ms. 

Litz’s remaining tort and inverse condemnation claims, the applicability and satisfaction 

of the notice requirements under the Maryland Tort Claims Act (“MTCA”) and Local 

Government Tort Claims Act (“LGTCA”), and the defense of governmental immunity. 

In an unreported opinion, the intermediate appellate court concluded that Ms. Litz failed 

 

8

 In her brief filed with the Court of Special Appeals, Ms. Litz did not appeal the 

dismissal of her tort claims (trespass and negligence) against the State or the 

Environmental Standing Act claim against the MDE, leaving only the inverse 

condemnation claims against these defendants. She appealed the dismissal of her claims 

for negligence, nuisance, trespass, and inverse condemnation against the Town. 
8

to state an inverse condemnation claim against the State9, reasoning that “[a]t most, MDE 

[and the other State entities] can be charged with discretionary inaction, which would not 

support a taking claim.” Ultimately, the Court of Special Appeals held “that the circuit 

court properly dismissed the State and its agencies from the case,” but that it was “error 

to dismiss the negligence, trespass and inverse condemnation claims against the Town.” 

At the conclusion of the intermediate appellate court’s second review, Ms. Litz’s 

remaining causes of actions included only those three claims against the Town. 

Ms. Litz filed her second Petition for Writ of Certiorari with this Court, which we 

granted, Litz v. Maryland Dep’t of the Env’t, et al., 442 Md. 515 (2015), to consider four 

questions, which we have reordered for organizational convenience: 

1) Whether the Court of Special Appeals erred when it held that Petitioner failed 

to state a cause of action for inverse condemnation against the State government 

Respondents? 

2) Whether an inverse condemnation claim comes within the notice requirements 

of the Maryland Tort Claims Act and the Local Government Tort Claims Act? 

3) Whether the Court of Special Appeals exceeded the scope of this Court’s 

remand order when it considered an issue disavowed expressly by Respondents, to 

wit, Petitioner’s claim for inverse condemnation against the State government 

Respondents was subject to the Maryland Tort Claims Act?10

 

9

 As described previously, the State includes: the State of Maryland, DHMH, 

MDE, and the Caroline County Health Department, the latter acting as a State agency for 

purposes of this case. 

10 In our opinion, Litz I, 434 Md. at 657, 76 A.3d at 1095, we remanded the case to 

the Court of Special Appeals for further proceedings: “On remand, the intermediate 

appellate court shall have the opportunity to entertain any other arguments properly 

before the court.” The question of whether the Court of Special Appeals exceeded the 

scope of our remand order was not briefed fully by all sides and we note that, under 

 

(Continued...)
9

4) Whether a trespass claim is covered by the notice requirement of the Local 

Government Tort Claims Act? 

We conclude that Ms. Litz stated adequately in her Third Amended Complaint a facial 

claim for inverse condemnation against Respondents. Moreover, a claim for inverse 

condemnation is not covered by the notice provisions of either tort claims act. We agree, 

however, with the intermediate appellate court’s holding that the tort of trespass is 

covered by the notice requirement of the LGTCA. Thus, we reverse in part and affirm in 

part the judgment of the Court of Special Appeals, and remand with instructions to 

remand the case to the Circuit Court for Caroline County for further proceedings.

STANDARD OF REVIEW 

Because this case was disposed of by the Circuit Court through the grant of 

motions to dismiss, pursuant to Maryland Rule 2-322, our review of the sufficiency of the 

facts alleged is limited to the four corners of the relevant complaint, the Third Amended 

Complaint. We “accept all well-pled facts in the complaint, and reasonable inferences 

drawn from them, in a light most favorable to the non-moving party.” Converge Servs. 

Grp., LLC v. Curran, 383 Md. 462, 475, 860 A.2d 871, 878-79 (2004). Thus, dismissal 

of a complaint “is proper only if the alleged facts and permissible inferences, so viewed, 

 

(...continued)

Maryland Rule 8-131(a), it is within our discretion to decide an issue not raised below “if 

necessary or desirable to guide the trial court or to avoid the expense and delay of another 

appeal.” Thus, we will exercise our discretion to decide the issues, which we have 

determined are before us properly. 
10 

would, if proven, nonetheless fail to afford relief to the plaintiff.” Ricketts v. Ricketts, 

393 Md. 479, 492, 903 A.2d 857, 864 (2006) (citations omitted). We determine “whether 

the trial court was legally correct, examining solely the sufficiency of the pleading.” 

Ricketts, 393 Md. at 492, 903 A.2d at 865 (citation omitted). 

DISCUSSION 

I. Inverse Condemnation 

a. Contentions 

Ms. Litz contends that she alleged sufficiently a cause of action for inverse 

condemnation by alleging that the failure of Respondents to address the pollution and 

sewage problems led directly to the substantial devaluing of her property and its ultimate 

loss. She highlights this Court’s prior opinion in which we stated that “a reasonable trier 

of fact could infer that Litz alleges two distinct takings: 1) the loss of the use and 

enjoyment of Lake Bonnie and the Campground; and (2) the foreclosure of her property 

in May 2010.” Litz I, 434 Md. at 656, 76 A.3d at 1095. Ms. Litz argues further that these

claims are not covered by the MTCA or the LGTCA because the claims are not torts, but 

rather unconstitutional takings. Because unconstitutional takings are pleaded, Ms. Litz 

maintains that the State (and its agencies) and the Town should not be able to avail 

themselves of the defense of governmental immunity. 

The State Respondents posit that the lower courts dismissed properly Ms. Litz’s 

inverse condemnation claim against them because her allegations did not reveal any 

affirmative act (regulatory or otherwise) by the State which led to a taking. Additionally, 

the State Respondents argue that any injury Ms. Litz suffered was the result of acts 
11 

caused by private third parties, i.e., the property owners in Goldsboro whose septic fields 

failed. Because Ms. Litz did not state sufficiently a claim for inverse condemnation, the 

State sees the issue of the applicability of the MTCA and the LGTCA as effectively 

moot. The Town takes a similar position on this issue, responding that Ms. Litz 

complained only that the Town had not enacted any regulation or taken effective action to 

stop the contamination caused by private citizens and, therefore, there was no 

governmental taking. 

b. Sufficiency of the Third Amended Complaint 

Article III, Section 40 of the Maryland Constitution provides: “The General 

Assembly shall enact no Law authorizing private property, to be taken for public use, 

without just compensation, as agreed upon between the parties, or awarded by a Jury, 

being first paid or tendered to the party entitled to such compensation.” Section 40 has 

been determined to “have the same meaning and effect in reference to an exaction of 

property, and that the decisions of the Supreme Court on the Fourteenth Amendment[11] 

are practically direct authorities.” Bureau of Mines of Maryland v. George’s Creek Coal 

& Land Co., 272 Md. 143, 156, 321 A.2d 748, 755 (1974). Although this constitutional 

provision covers specifically eminent domain actions, it also grounds a cause of action 

that has come to be known as an inverse condemnation. 

 

11 “No State shall make or enforce any law which shall abridge the privileges or 

immunities of citizens of the United States; nor shall any State deprive any person of life, 

liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. 
12 

An inverse condemnation claim is characterized as “a shorthand description of the 

manner in which a landowner recovers just compensation for a taking of his property 

when condemnation proceedings have not been instituted.” Coll. Bowl, Inc. v. Mayor & 

City Council Of Baltimore, 394 Md. 482, 489, 907 A.2d 153, 157 (2006) (citing United 

States v. Clarke, 445 U.S. 253, 257, 100 S.Ct. 1127, 1130, 63 L.Ed.2d 373, 377 (1980)). 

Essentially, a plaintiff may “recover the value of property which has been taken in fact by 

the governmental defendant, even though no formal exercise of the power of eminent 

domain has been attempted by the taking agency.” Coll. Bowl, Inc., 394 Md. at 489, 907 

A.2d at 157 (quoting D. Hagman, Urban Planning and Land Development Control Law 

328 (1971)). The Supreme Court explains that a government is liable for inverse 

condemnation if it “forc[es] some people alone to bear public burdens which, in all 

fairness and justice, should be borne by the public as a whole.” Coll. Bowl, Inc., 394 Md. 

at 489, 907 A.2d at 157 (citing PruneYard Shopping Center v. Robins, 447 U.S. 74, 83, 

100 S.Ct. 2035, 2041, 64 L.Ed.2d 741, 753 (1980)). 

To state a claim for inverse condemnation, a plaintiff must allege facts showing

ordinarily that the government action constituted a taking. Defining a “taking” for 

purposes of an inverse condemnation claim is a “fact-intensive” inquiry. The Supreme 

Court has explained that a plaintiff seeking to state a claim for inverse condemnation 

“bears a substantial burden” and must be able to show that “justice and fairness” entitle 

him or her to compensation. Eastern Enters. v. Apfel, 524 U.S. 498, 523, 118 S. Ct. 

2131, 2146 (1998). Significant factors in the analysis include: “the economic impact of 

the regulation, its interference with reasonable investment backed expectations, and the 
13 

character of the governmental action.” Eastern Enters., 524 U.S. at 523-24, 118 S. Ct. at

2146 (citations omitted). Accordingly, an inverse condemnation claim may arise 

ordinarily in multiple ways: 

[T]he denial by a governmental agency of access to one’s property, 

regulatory actions that effectively deny an owner the physical or 

economically viable use of the property, conduct that causes a physical 

invasion of the property, hanging a credible and prolonged threat of 

condemnation over the property in a way that significantly diminishes its 

value, or, closer in point here, conduct that effectively forces an owner to 

sell.

Coll. Bowl, Inc., 394 Md. at 489, 907 A.2d at 157. 

A difficulty with Ms. Litz’s claim of a “taking” fitting neatly within conventional

thinking about inverse condemnation is that her allegations focus predominantly on the 

inaction of Respondents, rather than any affirmative action by those parties. There is no 

controlling Maryland law that we could find that sheds light on this wrinkle. Thus, we 

look outside our borders for guidance. Upon this review, it seems appropriate (and, in 

this case, fair and equitable, at least at the pleading stage of litigation) to recognize an 

inverse condemnation claim based on alleged “inaction” when one or more of the 

defendants has an affirmative duty to act under the circumstances. Therefore, we hold, as 

a matter of Maryland law, that an inverse condemnation claim is pleaded adequately 

where a plaintiff alleges a taking caused by a governmental entity’s or entities’ failure to 

act, in the face of an affirmative duty to act. 

Our survey revealed that, in some states, unalloyed allegations of government 

inaction alone may suffice to plead adequately an inverse condemnation claim. For 

example, the language of the Minnesota Constitution provides that “[p]rivate property 
14 

shall not be taken, destroyed or damaged for public use without just compensation 

therefor, first paid or secured.” Minn. Const. Art. I, § 13. In application of this 

provision, the Minnesota courts follow a standard that “[a]n unconstitutional taking is a 

governmental action or inaction that deprives a landowner of all reasonable uses of its 

land.” Evenson v. City of St. Paul Bd. of Appeals, 467 N.W.2d 363, 365 (Minn. Ct. App. 

1991) (emphasis added). 

In contrast, in South Carolina, a plaintiff brought a cause of action against the City 

of Greenville alleging that the city “improperly and negligently designed and maintained 

its municipal drainage system in the area where his business was located,” which led to 

substantial damage to his business and property after heavy rains resulted in flooding. 

Hawkins v. City of Greenville, 594 S.E.2d 557, 560 (S.C. Ct. App. 2004). The South 

Carolina Court of Appeals concluded that the plaintiff could not state a claim for inverse 

condemnation by alleging only “failures to act.” Hawkins, 594 S.E.2d at 562. The 

failure to act would not sustain a claim for inverse condemnation because the case law in 

South Carolina held: “To establish an inverse condemnation, a plaintiff must show: ‘(1) 

an affirmative, positive, aggressive act on the part of the governmental agency; (2) a 

taking; (3) the taking is for a public use; and (4) the taking has some degree of 

permanence.’” Id. (emphasis added). Of course, the major distinction between the 

Minnesota and South Carolina approaches is the specific requirement of the South 

Carolina case law requiring an “affirmative” act on the part of the government. This 
15 

requirement is more specific than found in Maryland case law and, thus, is not persuasive 

in our analysis of the present case.12

We find more persuasive cases which sanction a plaintiff advancing an inverse 

condemnation claim in the face of government inaction where the governmental agency 

had an affirmative duty to act under the particular circumstances. A case from a Florida 

District Court found that when a county failed to “reasonably maintain and repair Old 

A1A [a county-owned road] that it has effectively abandoned it, thereby depriving [the 

appellants] of access to their property without compensation[, it was] a cognizable 

claim.” Jordan v. St. Johns Cnty., 63 So. 3d 835, 839 (Fla. Dist. Ct. App. 2011). Old 

A1A had been subject over the years to considerable damage from storms and erosion. 

Jordan, 63 So. 3d at 837. The appellants owned property located in a subdivision 

accessible only by Old A1A because the subdivision was located on a barrier island. 

Jordan, 63 So. 3d at 836. The court concluded that “governmental inaction—in the face 

of an affirmative duty to act—can support a claim for inverse condemnation.” Jordan, 63 

So. 3d at 839. Because it was the county’s responsibility to maintain this road and it

failed to do so, the pleaded inaction supported maintenance of an inverse condemnation 

cause of action against the county. 

 

12 Similar to the Minnesota Constitution, the language of Maryland’s eminent 

domain provision of the Maryland Constitution is general and broad: “The General 

Assembly shall enact no Law authorizing private property, to be taken for public use, 

without just compensation, as agreed upon between the parties, or awarded by a Jury, 

being first paid or tendered to the party entitled to such compensation.” Md. Const. Art. 

III, § 40. 
16 

The California appellate courts have held also that “in order to prove the type of 

governmental conduct that will support liability in inverse condemnation it is enough to 

show that the entity was aware of the risk posed by its public improvement and 

deliberately chose a course of action—or inaction—in the face of that known risk.” 

Arreola v. Cnty. of Monterey, 122 Cal. Rptr. 2d 38, 55 (Cal. Ct. App. 2002), as modified 

on denial of reh’g (July 23, 2002). In Arreola, the county had been alerted by concerned 

property owners starting in 1977 about the potential failure of a river levee due to the 

weakening effects of a build-up of vegetation and the increased risk of resultant flooding. 

Arreola, 122 Cal. Rptr. 2d at 56. Monterey’s actual knowledge of the maintenance 

problems and its ability to control the project, made it immaterial whether the county had 

“responsibility for operation of the project.” Arreola, 122 Cal. Rptr. 2d at 69-72. In spite 

of its knowledge of the problem, the County “did not take any action to correct the 

situation until 1991 or later [and the] knowing failure to clear the Project channel, in the 

face of repeated warnings and complaints was” enough for an inverse condemnation 

claim after floods damaged the plaintiff’s property. Id. 

We find persuasive these cases. Within the Third Amended Complaint, Ms. Litz 

alleges that the Town had “undertaken [since at least 1973] the task of correcting its 

failing community sewage system.” Her complaint includes allegations that, by 1985, the 

Town was informed of the results of a study conducted by the Caroline County 

Department of Health, which concluded that immediate action was necessary. These 

warnings continued between 1985 and 1996 before any purported affirmative “action” 

was taken, to wit, the Consent Order was executed. Additionally, Ms. Litz was notified 
17 

by a 12 June 1996 letter from the Caroline County Health Department that, because the 

sewage discharges had not been eliminated, Lake Bonnie continued to be a health threat. 

Even after the 1996 Consent Order was signed between MDE and the Town, 

Respondents failed to effect any changes to the sewage treatment or drainage systems in 

the Town. In 2004, the Caroline County Health Department distributed a warning to the 

Town regarding additional septic or building permits being approved. 

The Court of Special Appeals referred to this situation as an overall “failure to 

regulate.” The cases cited by the intermediate appellate court to support this 

characterization focused on interference with various types of property rights by third 

parties, which government failed to avert, mitigate, or cure.13 Those cases are not 

persuasive here. Two of those cases involved assertions that the Federal Government had 

committed a taking because it failed to regulate conduct by third parties; however, the 

property interest at issue for each plaintiff was not a traditional in-fee property interest. 

See Georgia Power Co. v. United States, 633 F.2d 554, 555 (Ct. Cl. 1980) (company 

claimed a taking of its electrical powerline easement); Alves v. United States, 133 F.3d 

1454, 1455-56 (Fed. Cir. 1998) (plaintiff “argued that the [Bureau of Land 

Management’s] failure to contain the trespass [by others] constituted a Fifth Amendment 

taking and a breach of contract based on his interpretation of his grazing permits and/or 

an exchange-of-use agreement as contracts”). Neither of these cases resulted in a 

 

13 This endorsed the theory put forth by the State that any damage to Lake Bonnie 

and Ms. Litz’s property was attributable to third-party, private property owners, not 

Respondents. 
18 

“taking” because the regulations imposed by the Federal Government were not meant to 

act as an “insurer that private citizens will act lawfully with respect to property subject to 

governmental regulation.” Alves, 133 F.3d at 1458. Additionally, the courts determined 

that both of these situations were more like private tort actions, as opposed to an 

unconstitutional taking, because of the nature of the implicated property rights and the 

allegations advanced by the plaintiff. 

The Town of Goldsboro relies on Casey v. Mayor & City Council of Rockville, 

400 Md. 259, 929 A.2d 74 (2007), for the proposition that “[e]ssential to the successful 

assertion of any regulatory takings claim is a final and authoritative determination of the 

permitted and prohibited uses of a particular piece of property.” Casey, 400 Md. at 308, 

929 A.2d at 103-04; but see Falls Rd. Cmty. Ass’n, Inc. v. Baltimore Cnty., 437 Md. 115, 

142-44, 85 A.3d 185, 201-02 (2014) (even after there was a final administrative order and 

the county has the general duty and responsibility “to enforce land use and zoning 

requirements, it clearly does not pursue enforcement on every arguable violation”). 

Certainly we do not disagree with this statement from Casey in the context of the zoning 

action involved there, but we disagree with the Town’s characterization of Ms. Litz’s 

claim as being analogous. Our intermediate appellate court colleagues viewed Ms. Litz’s 

claim as a “failure to regulate.” Her claim was not expressed as a regulatory taking, such 

as a “down-zoning,” which might require analysis under the Casey precedent. 

Although the sewage was flowing from the failed septic systems of private citizens 

and/or businesses (which governmental entity approved the installation of the systems 

and whether the approvals were proper has yet to be explored in this case because 
19 

discovery has yet to occur), Ms. Litz alleges that the Town and the State were aware of 

the failure of the community sewage systems, the contamination of the surface and

groundwater, and the conveyance of the sewage to Lake Bonnie via the community 

drainage system. It is not merely a case of a property right being affected adversely by 

private third parties solely and exclusively. Ms. Litz’s property was alleged to have been 

“condemned” by the failure of the State and Town in the face of an affirmative duty to 

abate a known and longstanding public health hazard. Although questions of which 

Respondents had statutory or legal duties with regard to abatement of the contamination 

are open in the proceeding as far as it has advanced, it is not frivolous to hypothesize that 

state, county, and municipal agencies may have duties to step in to protect the public 

health, as illustrated by the execution of the 1996 Consent Order. 

In State Dep’t of Env’t v. Showell, 316 Md. 259, 264, 558 A.2d 391, 393 (1989), 

this Court held that it was within the broad powers of the State Department of Health and 

Mental Hygiene to execute a consent order to protect the public health when it was 

clearly a “‘reasonable remedial measure’ executed within the authority of the Department 

to promote a legitimate governmental objective.” These powers afforded to the 

Department to protect public health included: 

In respect to the scope of the Department’s powers, § 9-204(a) of the 

Health-Environmental Article provides that “[t]he Secretary has general 

supervision and control over the waters of the State, insofar as their sanitary 

and physical condition affect the public health or comfort and may make 

and enforce rules and regulations and order works to be executed to correct 

and prevent their pollution.” As to existing sewerage systems, the Secretary 

may “[c]ompel their operation in a manner that will protect the public 

health and comfort.” § 9-204(b)(1). 
20 

Showell, 316 Md. at 270, 558 A.2d at 396 (alterations in original). Under the current 

version of the Environment Article of the Maryland Code, the State is empowered to 

step-in to ensure the enforcement of the Federal Water Pollution Control Act. See

Maryland Code (1984, 2013 Repl. Vol.), Environment Article, § 9-253 (“Env’t”). 

Even if, however, it is determined on remand that the State Respondents and the 

Town did not have a general or specific statutory duty to act to abate this public health 

hazard, Ms. Litz’s allegations may be read to assert that execution of the Consent Order 

created an affirmative duty to act. Without discovery regarding the origins of and 

seeming failure to enforce the Consent Order and its terms, it was premature to resolve 

Ms. Litz’s claim for inverse condemnation by the grant of the motions to dismiss. 

Moreover, at the current stage of these proceedings and given our holding here regarding 

governmental inaction as a basis for an inverse condemnation claim, the parties have not 

briefed or argued the applicable law under these circumstances. 

Although we agree that Ms. Litz stated adequately a claim for inverse 

condemnation, we caution that our decision should not be seen by any party as either an 

unqualified victory or calamity. Ms. Litz may not succeed ultimately on her inverse 

condemnation claim against any or all of the Respondents. We conclude only that it was 

improper to decide as a matter of law, at the present stage of the litigation, that Ms. Litz 

failed to state a claim for inverse condemnation. Her entitlement to relief may become 

clearer or blurred after the respective sides have the opportunity to conduct discovery and 

argue the law of liability. 

c. Application of the LGTCA and the MTCA to an Inverse Condemnation Claim 
21 

The LGTCA was created “to limit the designated local governments’ financial 

liability as well as to provide the employees of local governments certain protections 

from damages.” Rounds v. Maryland-Nat. Capital Park & Planning Comm’n, 441 Md. 

621, 638, 109 A.3d 639, 648-49 (2015), reconsideration denied (Mar. 27, 2015). We 

conclude that the General Assembly did not intend to include a claim for inverse 

condemnation to come within the ambit of the provisions of either tort claims act.14

A claim for inverse condemnation is not a tort in a traditional sense and has been 

treated routinely and differently than torts. In Reichs Ford Rd. Joint Venture v. State 

Roads Comm’n of the State Highway Admin., 388 Md. 500, 506 n.2, 880 A.2d 307, 310 

n.2 (2005), the circuit court dismissed all of the plaintiff’s tort claims for failure to follow 

the notice requirements of the MTCA. The plaintiff’s inverse condemnation claim, 

however, was allowed to move forward, without the necessity of proof of compliance 

with the notice provision of the MTCA. Id. 

 

14 In Rounds v. Maryland-Nat. Capital Park & Planning Comm’n, 441 Md. 621, 

643, 109 A.3d 639, 651-52 (2015), we explained: 

Nothing in the statute’s language or its legislative history indicates that the 

General Assembly intended to exclude any category of tortious conduct 

committed by a local government or its employees, from the scope of the 

LGTCA notice requirement. As we have previously indicated, “[t]his Court 

has been most reluctant to recognize exceptions in a statute when there is 

no basis for the exceptions in the statutory language.” 

See also Lee v. Cline, 384 Md. 245, 256, 863 A.2d 297, 304 (2004) (holding that “[t]here 

are no exceptions in the statute for intentional torts or torts based upon violations of the 

Maryland Constitution. This Court has been most reluctant to recognize exceptions in a 

statute when there is no basis for the exceptions in the statutory language”). 
22 

Additionally, it is well-established that “that agents of the State do not enjoy 

immunity with respect to a wrongful taking of property without just compensation.” 

Dep’t of Nat. Res. v. Welsh, 308 Md. 54, 60, 521 A.2d 313, 316 (1986). We have 

explained: 

. . . it would be strange indeed, in the face of the solemn constitutional 

guarantees, which place private property among the fundamental and 

indestructible rights of the citizen, if this principle could be extended and 

applied so as to preclude him from prosecuting an action. . . against a State 

Official unjustly and wrongfully withholding property. 

Lee v. Cline, 384 Md. 245, 263, 863 A.2d 297, 308 (2004) (citation and quotations 

omitted). These constitutional guarantees require that state officials not be immune from 

suit because, as “expressed in Article 19 of the Maryland Declaration of Rights, that a 

plaintiff injured by unconstitutional state action should have a remedy to redress the 

wrong.” Lee, 384 Md. at 264, 863 A.2d at 308. It is only logical that courts would treat 

eminent domain and inverse condemnation claims differently from common law or 

statutory torts because the remedy afforded to the respective plaintiff is different. 

We have explained that “constitutionally speaking, fair market value is usually the 

only measure of damages in an eminent domain condemnation.” Reichs Ford Rd. Joint 

Venture, 388 Md. at 513, 880 A.2d at 314 (citing Kimball Laundry Co. v. United States, 

338 U.S. 1, 5–6, 69 S.Ct. 1434, 1438, 93 L.Ed. 1765(1949)).15 We have recognized “that 

 

15 Within the context of eminent domain and inverse condemnation proceedings, 

fair market value is defined as: 

 

(Continued...)
23 

applying the LGTCA damages cap to a constitutionally based taking, or inverse 

condemnation could conflict with a vested right to just compensation.” Espina v. 

Jackson, 442 Md. 311, 332-33, 112 A.3d 442, 455 (2015) (citations and quotations 

omitted). This conflict arises because the eminent domain provision of the Maryland 

Constitution16 creates “an implied contract between the government and a private 

landowner.” Widgeon v. E. Shore Hosp. Ctr., 300 Md. 520, 531, 479 A.2d 921, 926 

(1984). This implied contract differs from the duty element of Maryland tort law. 

Because the remedy afforded to a plaintiff in the case of a taking is fair market value, the 

damages “cap” associated with the LGTCA and the MTCA should not apply. By parity 

of reasoning, the notice requirements of each tort claims act would not apply either. 

 

(...continued)

(b) The fair market value of property in a condemnation proceeding is the 

price as of the valuation date for the highest and best use of the property 

which a vendor, willing but not obligated to sell, would accept for the 

property, and which a purchaser, willing but not obligated to buy, would 

pay, excluding any increment in value proximately caused by the public 

project for which the property condemned is needed. In addition, fair 

market value includes any amount by which the price reflects a diminution 

in value occurring between the effective date of legislative authority for the 

acquisition of the property and the date of actual taking if the trier of facts 

finds that the diminution in value was proximately caused by the public 

project for which the property condemned is needed, or by announcements 

or acts of the plaintiff or its officials concerning the public project, and was 

beyond the reasonable control of the property owner. 

Maryland Code (1974, 2003 Repl. Vol.), Real Property Article, § 12-105(b) (“RP”). 

16 “The General Assembly shall enact no Law authorizing private property, to be 

taken for public use, without just compensation, as agreed upon between the parties, or 

awarded by a Jury, being first paid or tendered to the party entitled to such 

compensation.” Md. Constitution, Art III, § 40.
24 

Therefore, we conclude that Ms. Litz’s claim for inverse condemnation is not covered by 

the LGTCA or the MTCA, and especially their respective notice requirements. 

II. Trespass Claim against the Town of Goldsboro 

Ms. Litz contends that the Court of Special Appeals erred by deciding that her 

trespass claim against Goldsboro was a tort subject to the LGTCA and its notice 

requirement. She relies on Maryland common law to argue that local governments 

should not be afforded immunity from a trespass claim. She contends further that the 

adoption of the LGTCA did not change the common law standard and, therefore, her 

trespass claim should not be subject to the LGTCA. 

The Town responds that Ms. Litz did not assert an actual trespass claim against it, 

alleging only that the Town failed to stop a trespass by others. Because Ms. Litz did not 

allege that the Town committed a trespass, according to the Town, the issue of whether 

this claim is covered by the LGTCA is moot. 

Under common law, a trespass claim is generally “an intentional or negligent 

intrusion upon or to the possessory interest in property of another.” Schuman v. 

Greenbelt Homes, Inc., 212 Md. App. 451, 475, 69 A.3d 512, 526 cert. denied sub nom.

Schuman v. Greenbelt Homes, 435 Md. 269, 77 A.3d 1086 (2013) (citation and quotation 

marks omitted). In Ms. Litz’s Third Amended Complaint, she alleged that the “Town, 

County, DHMH and the State are invading and have invaded Litz’s property by 

approving residential septic systems in the Town that channel polluted ground water and 

discharge those waters in unnatural and harmful quantities, qualities, and rates of flow 

onto Litz’s property.” In our earlier opinion in this litigation, we found that the 
25 

complaint alleged a continuing cause of action on this score because, in the light most 

favorable to Ms. Litz, “a trier of fact could conclude that the Town’s duties were ongoing 

and continuous.” Litz I, 434 Md. at 648-49, 76 A.3d at 1091. In specific reference to the 

trespass claim, we concluded that 

Although her cause of action for trespass appears to be in reference to the 

ongoing effects from the approval of the septic systems, drawing 

reasonable inferences in the light most favorable to [Ms.] Litz, we do not 

construe this allegation to assert that the Town on a single occasion 

approved a septic system in Goldsboro that has channeled polluted water 

onto her property. Additionally, there is nothing in the Complaint that 

indicates that the Town did not approve any septic systems within three 

years of [Ms.] Litz filing a claim in 2010. From the earlier allegations that 

the private septic systems all penetrated the groundwater, that they were 

contributing to contamination of the ground and surface water, that such 

water was channeled eventually into Lake Bonnie, and that the 

contamination problems continued over a long period of time, one could 

infer reasonably that approval of septic systems by the Town contributed to 

the continual flow of effluent from the Town to Lake Bonnie.

Litz I, 434 Md. at 650, 76 A.3d at 1091. Thus, Ms. Litz’s trespass claim was not barred 

by the relevant statute of limitations. We are tasked here, however, with determining 

whether the LGTCA’s notice requirement applies to the trespass claim. The Court of 

Special Appeals determined that a trespass claim is considered a tort subject to the 

LGTCA. We agree. 

The Court of Special Appeals relied on our decision in Lee v. Cline to conclude 

that the LGTCA embraced trespass claims. In Lee ̧ our focus was on the language of the 

MTCA, which “plainly appear[ed] to cover intentional torts and constitutional torts as 

long as they were committed within the scope of state employment and without malice or 

gross negligence.” Lee, 384 Md. at 256, 863 A.2d at 304. Because the “term ‘tort’ as 
26 

defined by Blacks encompasses all ‘civil wrong,’ not just wrongs that were recognized as 

a civil wrong at common law,” it would follow necessarily that a trespass claim is 

included within this definition. Espina, 442 Md. at 325, 112 A.3d at 450. 

Ms. Litz takes issue with the intermediate appellate court’s reliance on Lee

because Lee involved an interpretation of the MTCA, not the LGTCA. The MTCA was 

amended in 198517 to broaden the coverage “to include tort actions generally, with certain 

specified exceptions and limitations. Section 12-104(a)(1) of the State Government 

Article now provides that . . . [n]either intentional torts (in the absence of malice), nor 

torts based upon constitutional violations, are excluded.” Lee, 384 Md. at 255, 863 A.2d 

at 303. Therefore, under this statute, as long as the intentional tort or constitutional 

violation was “committed within the scope of state employment and without malice or 

gross negligence,” it is subject to the MTCA. Lee, 384 Md. at 256, 863 A.2d at 304. 

Because “the purpose of the [Maryland] Tort Claims Act’s immunity is to insulate state 

employees generally from tort liability if their actions are within the scope of 

 

17 When the General Assembly enacted the Maryland Tort Claims Act in 1981, the 

wavier of the State’s governmental immunity was limited to six distinct categories of 

claims: 

These six categories were limited to specific types of negligence actions 

such as the negligent operation or maintenance of a motor vehicle, 

negligence by a state health care employee, defective conditions in state 

structures or property, and negligent actions by state employees in state 

parks or recreation facilities. These six categories would not have 

encompassed intentional torts or tort actions based upon constitutional 

violations. 

Lee, 384 Md. at 255, 863 A.2d at 303. 
27 

employment and without malice or gross negligence,” it would be reasonable for this 

“broader purpose” to apply fully to non-malicious intentional torts and covered

constitutional violations. Lee, 384 Md. at 261, 863 A.2d at 307.

There is not a vast chasm between the language of the two statutory tort claim 

schemes as to the tortious conduct covered. The LGTCA was enacted for a purpose 

similar to the MTCA, to “provide a remedy for those injured by local government 

officers and employees, acting without malice in the scope of their employment, while 

ensuring that the financial burden of compensation is carried by the local government 

ultimately responsible for the public officials’ acts.” Ashton v. Brown, 339 Md. 70, 108, 

660 A.2d 447, 465-66 (1995). Consequentially, the analysis for which tortious conduct is 

covered would be largely identical.18

 The LGTCA “covers municipalities and counties 

and applies to ‘employees,’ as distinguished from the common law concept of public 

officials, and it applies to all torts without distinction, including intentional and 

constitutional torts.” Thomas v. City of Annapolis, 113 Md. App. 440, 457, 688 A.2d 

448, 456 (1997). Because the language of the LGTCA makes no distinction between 

intentional and non-intentional torts, Ms. Litz’s trespass claim against the Town of 

Goldsboro would be subject to the LGTCA and its notice requirement. 

The notice requirement of the LGTCA is “intended to apprise a local government 

 

18 The only major difference between the two statutes for present analytical 

purposes is the protection that each affords the state employees – the MTCA provides 

state employees with direct immunity from suit, whereas the LGTCA grants to local 

government employees only immunity from damages, not from suit. 
28 

of its possible liability at a time when it could conduct its own investigation, i.e., while 

the evidence was still fresh and the recollection of the witnesses was undiminished by 

time, sufficient to ascertain the character and extent of the injury and its responsibility in 

connection with it.” Prince George’s Cnty. v. Longtin, 419 Md. 450, 466-67, 19 A.3d 

859, 869 (2011) (citing Rios v. Montgomery County, 386 Md. 104, 126–27, 872 A.2d 1, 

14 (2005)). Under the LGTCA, “an action for unliquidated damages may not be brought 

against a local government or its employees unless the notice of the claim required by 

this section is given within 1 year after the injury.” Maryland Code (1974, 2013 Repl. 

Vol.), Courts & Judicial Proceedings Article § 5-304(b)(1) (“CJP”). It further requires a 

plaintiff to provide notice in writing and “shall state the time, place, and cause of the 

injury.” CJP § 5-304(b)(2). 

We concluded previously that Ms. Litz’s trespass claim was a continuing tort 

based on the “ongoing effects from the approval of the septic systems.” See Litz I, 434 

Md. at 650, 76 A.3d at 1091-92. Because we were not asked in the earlier case to 

determine whether Ms. Litz’s notice under the LGTCA was timely, we affirm now the 

judgment of the Court of Special Appeals, which concluded that Ms. Litz may be able to 

show that her notice to the Town under the LGTCA was timely, and hold that it was 

improper for the Circuit Court to grant the Town’s motion to dismiss Ms. Litz’s trespass 

claim at this preliminary stage of litigation. Discovery will reveal likely the answer to 

this asserted defense. 

Thus, Ms. Litz is entitled to continue to litigate her tort claims (negligence and 

trespass) against the Town, but must show compliance with the notice requirements of 
29 

the LGTCA. We conclude further that her inverse condemnation claims against the State 

Respondents and the Town may proceed, without regard to the notice provisions of the 

MTCA or the LGTCA.

JUDGMENT OF THE COURT OF SPECIAL APPEALS 

AFFIRMED IN PART AND REVERSED IN PART. 

CASE REMANDED TO THE COURT OF SPECIAL 

APPEALS WITH INSTRUCTIONS TO REMAND THE 

CASE TO THE CIRCUIT COURT FOR CAROLINE 

COUNTY FOR FURTHER PROCEEDINGS. COSTS IN 

THIS COURT AND THE COURT OF SPECIAL 

APPEALS TO BE PAID BY RESPONDENTS. 
IN THE COURT OF APPEALS

OF MARYLAND 

No. 23 

September Term, 2015 

______________________________________ 

GAIL B. LITZ

v. 

MARYLAND DEPARTMENT OF THE 

ENVIRONMENT, ET AL. 

______________________________________ 

Barbera, C.J. 

Battaglia 

Greene

Adkins

McDonald

Watts 

Harrell, Jr., Glenn T. (Retired, 

Specially Assigned), 

JJ.

______________________________________ 

Concurring and Dissenting Opinion by Watts, 

J., which Battaglia and McDonald, JJ., join 

______________________________________ 

Filed: January 22, 2016 

Circuit Court for Caroline County 

Case No. 05-C-10-013616 

Argued: November 9, 2015
 Respectfully, I concur in part and dissent in part. I agree with the Majority that “the 

tort of trespass is covered by the notice requirement of the” Local Government Tort Claims 

Act (“the LGTCA”). Maj. Slip Op. at 9.1

 Assuming that we reach the issue, I also agree 

with the Majority that “a claim for inverse condemnation is not covered by the notice 

provisions of” the LGTCA and the Maryland Tort Claims Act (“the MTCA”). Maj. Slip 

Op. at 9. I, however, would not reach that issue because I agree with the Court of Special 

Appeals that Gail B. Litz (“Litz”), Petitioner, failed to state a claim for inverse 

condemnation against the State and its agencies (together, “the State”). Accordingly, I 

would affirm the judgment of the Court of Special Appeals.2

 

1As the Majority notes, in its petition for a writ of certiorari, the Town contended 

that Litz failed to state a claim for trespass. This Court denied the Town’s petition for a 

writ of certiorari, and granted only Litz’s petition for a writ of certiorari, which did not 

present a question as to whether Litz stated a claim for trespass. Thus, like the Majority, I 

express no opinion on whether Litz adequately stated a claim for trespass, as that issue is 

not before this Court. 

 On a related note, the Majority lists, as one of the questions presented in Litz’s 

petition for a writ of certiorari, the issue of “[w]hether the Court of Special Appeals 

exceeded the scope of this Court’s remand order[.]” Maj. Slip Op. at 8. In a footnote, the 

Majority notes that this issue “was not briefed fully by all sides[,]” Maj. Slip Op. at 8 n.9, 

but the Majority states: “[W]e will exercise our discretion to decide the issues, which we 

have determined are before us properly[,]” Maj. Slip Op. at 9 n.9. The Majority, however, 

does not address the issue of whether the Court of Special Appeals exceeded the scope of 

this Court’s remand order. Given that the Majority expresses no opinion on this issue, 

neither do I. 

2The Circuit Court for Caroline County (“the circuit court”) dismissed all of Litz’s 

claims against all of the defendants. Litz appealed, and the Court of Special Appeals 

affirmed. Litz filed a petition for a writ of certiorari, which this Court granted. See Litz 

v. Md. Dep’t of the Env’t, 429 Md. 81, 54 A.3d 759 (2012). This Court affirmed in part, 

reversed in part, and remanded to the Court of Special Appeals. See Litz v. Md. Dep’t of 

Env’t, 434 Md. 623, 657, 76 A.3d 1076, 1096 (2013). On remand, the Court of Special 

Appeals, among other things: (1) affirmed the circuit court’s dismissal of Litz’s claim for 

inverse condemnation against the State; (2) reversed the circuit court’s dismissal of Litz’s 
- 2 - 

 The Majority candidly acknowledges that it is writing on a blank slate. Specifically, 

the Majority states:

A difficulty with [] Litz’s claim of a “taking” fitting neatly within 

conventional thinking about inverse condemnation is that her allegations 

focus predominantly on the inaction of Respondents, rather than any 

affirmative action by those parties. There is no controlling Maryland law 

that we could find that sheds light on this wrinkle. 

Maj. Slip Op. at 13 (emphasis added). The Majority proceeds to discuss out-of-State cases, 

and ultimately holds that Litz stated a claim for inverse condemnation based on 

Respondents’ inaction. See Maj. Slip Op. at 13-17. 

 I would write on the blank slate differently. Specifically, I would hold that, to state 

a claim for inverse condemnation, a plaintiff must allege that some kind of affirmative 

action by a governmental entity constituted a taking; I would not hold that an omission by

 

claims for inverse condemnation and trespass against the Town; and (3) remanded to the 

circuit court. 

The Majority: (1) reverses the Court of Special Appeals’s affirmance of the circuit 

court’s dismissal of Litz’s claims for inverse condemnation against the State; (2) affirms 

the Court of Special Appeals’s reversal of the circuit court’s dismissal of Litz’s claims for 

inverse condemnation and trespass against the Town; and (3) remands to the Court of 

Special Appeals with instructions to remand to the circuit court. See Maj. Slip Op. at 28-

29. In other words, on remand in the circuit court, Litz’s claim for inverse condemnation 

against the State, and her claims for inverse condemnation and trespass against the Town, 

will remain. 

As the Majority does, I would affirm the Court of Special Appeals’s reversal of the 

circuit court’s dismissal of Litz’s claims for inverse condemnation and trespass against the 

Town; however, unlike the Majority, I would also affirm the Court of Special Appeals’s 

affirmance of the circuit court’s dismissal of Litz’s claims for inverse condemnation 

against the State. In other words, under my position, on remand in the circuit court, Litz’s 

claims for inverse condemnation and trespass against the Town would remain, but Litz’s 

claim for inverse condemnation against the State would not. As noted above in Footnote 

1, this Court denied the Town’s petition for a writ of certiorari; thus, the issue of whether 

Litz stated claims for trespass or inverse condemnation against the Town is not before this 

Court.
- 3 - 

a governmental entity can constitute a taking. The definition of “inverse condemnation,” 

examples of claims for inverse condemnation, and judicial restraint lead me to this result. 

Earlier in this litigation, in Litz v. Md. Dep’t of Env’t, 434 Md. 623, 652, 76 A.3d 

1076, 1093 (2013), we noted that an “[i]nverse condemnation is a taking without just 

compensation.” (Citation omitted). In other words, a claim for inverse condemnation is

“a cause of action against a governmental defendant to recover the value of property which 

has been taken in fact by the governmental defendant, even though no formal exercise of 

the power of eminent domain has been attempted by the taking agency[.]” Id. at 653, 76 

A.3d at 1093 (some emphasis added) (citation and internal quotation marks omitted). 

Implicit in the definition of “inverse condemnation” is the principle that, to engage in an 

inverse condemnation, a governmental entity must, in fact, “take” property through some 

kind of affirmative action, as opposed to an omission. 

 This Court’s precedent offers examples of claims for inverse condemnation, and it 

appears that every single one of them was based a governmental entity’s alleged active 

taking of property through some kind of affirmative action, as opposed to an omission. For 

example, in MacLeod v. City of Takoma Park, 257 Md. 477, 481, 478, 263 A.2d 581, 584, 

582 (1970), a plaintiff raised a claim for inverse condemnation where a city demolished 

the plaintiff’s fire-damaged building. In Reichs Ford Rd. Joint Venture v. State Roads 

Comm’n of the State Highway Admin., 388 Md. 500, 506, 505, 504, 880 A.2d 307, 310, 

309 (2005), a plaintiff raised a claim for inverse condemnation where, without “formally 

exercis[ing] its eminent domain powers[,]” the State Roads Commission of the State 

Highway Administration of the Maryland Department of Transportation took steps to 
- 4 - 

condemn the plaintiff’s property, thus allegedly scaring off the plaintiff’s existing tenant 

and future tenants.3

 Similarly, in Coll. Bowl, Inc. v. Mayor & City Council of Balt., 394 

Md. 482, 489, 907 A.2d 153, 157 (2006), a plaintiff raised a claim for inverse 

condemnation where a city allegedly “us[ed] the threat of condemnation to force the 

[plaintiff’s landlord] to undertake its own redevelopment of the [plaintiff’s] building.”4

In Coll. Bowl, 394 Md. at 489, 907 A.2d at 157, this Court offered even more 

examples of inverse condemnation, stating: 

[A]n inverse condemnation can take many different forms[: ]the denial by a 

governmental agency of access to one’s property, regulatory actions that 

effectively deny an owner [of] the physical or economically viable use of the 

property, conduct that causes a physical invasion of the property, hanging a 

credible and prolonged threat of condemnation over the property in a way 

that significantly diminishes its value, or . . . conduct that effectively forces 

an owner to sell. 

One of these types of inverse condemnation, a “regulatory taking,” occurs where a 

governmental entity adopts a “regulation [that] deprives the property owner of all viable 

economic use of the entire property at issue[.]” City of Annapolis v. Waterman, 357 Md. 

484, 507, 745 A.2d 1000, 1012 (2000) (citation and footnote omitted); see also Muskin v. 

State Dep’t of Assessments & Taxation, 422 Md. 544, 566, 30 A.3d 962, 974 (2011) (“To 

 

3Specifically, in Reichs Ford Rd. Joint Venture, 388 Md. at 504, 880 A.2d at 309, a 

lessee operated a gas station on the plaintiff’s property. The State Roads Commission “met 

with . . . the lessee . . . to inform it of the intended condemnation[.]” Id. at 505, 880 A.2d 

at 309. The lessee “elected not to exercise its option to extend the lease term with [the 

plaintiff], apparently due to the looming specter of condemnation.” Id. at 505, 880 A.2d at 

309. The plaintiff “claim[ed] that it was unable to lease the property as a gas station or for 

any other economically viable use due to the [State Roads Commission]’s plans.” Id. at 

505, 880 A.2d at 310. 

4

In Coll. Bowl, 394 Md. at 491, 907 A.2d at 158, this Court concluded that “[t]here 

was no taking.”
- 5 - 

determine whether a regulatory taking occurred, the Court must look to the facts of the 

individual case and consider the following factors: (1) the economic impact of the 

regulation on the claimant, (2) the extent to which the regulation has interfered with distinct 

investment-backed expectations, and (3) the character of the governmental action.” 

(Citation and internal quotation marks omitted)).

 In each of these scenarios, a plaintiff attempts to hold a governmental entity 

responsible for something that the governmental entity did, not something that the 

governmental entity did not do. By contrast, here, Litz advances the novel legal theory 

that governmental entities “took” her property by omission or inaction. The Majority 

endorses Litz’s theory by “recogniz[ing] an inverse condemnation claim based on alleged 

‘inaction’ when one or more of the defendants has an affirmative duty to act under the 

circumstances.” Maj. Slip Op. at 13. 

To me, this is essentially the equivalent of creating a private right of action5

 anytime 

that a plaintiff’s property decreases in value as a result of a governmental entity’s 

noncompliance with a statute—even if nothing in the statute’s language or legislative 

history indicates that the General Assembly intended to create a private right of action. As 

the Majority notes, “[u]nder the current version of the Environment Article of the Maryland 

Code, the State is empowered to step-in to ensure the enforcement of the Federal Water 

 

5

“A private right of action is a basis upon which a claimant may bring a claim.” 

State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 517, 92 A.3d 400, 439 

(2014); see also Private Right of Action, Black’s Law Dictionary (10th ed. 2014) (“private 

right of action An individual’s right to sue in a personal capacity to enforce a legal claim.” 

(Bolding in original)).
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Pollution Control Act.” Maj. Slip Op. at 19-20 (citing Md. Code Ann., Envir. (1984, 2013 

Repl. Vol.) (“EN”) § 9-253). In turn, EN § 9-253 states in its entirety: 

(a) In general. — For purposes of the Federal Water Pollution Control Act, 

the Secretary [of the Environment] is the State water pollution control agency 

in this State. (b) Granting of powers to Secretary. — The Secretary [of the 

Environment] has all powers that are necessary to comply with and represent 

this State under the Federal Water Pollution Control Act. (c) Other units of 

State government prohibited from exercising powers. — Another unit of the 

State government may not exercise any power given to the Secretary [of the 

Environment] under this section. 

(Paragraph breaks omitted). Nothing in EN § 9-253’s language indicates that the General 

Assembly intended to create a private right of action anytime that a plaintiff’s property 

decreases in value as a result of the Secretary of the Environment’s noncompliance with 

the Federal Water Pollution Control Act.

Respectfully, the Majority neither mentions EN § 9-253’s legislative history nor 

addresses whether EN § 9-253’s legislative history indicates that the General Assembly 

intended to create a private right of action. Accordingly, there is no basis for affording the 

equivalent of a private right of action based on a governmental entity’s noncompliance 

with EN § 9-253. See Walton v. Mariner Health of Md., Inc., 391 Md. 643, 669, 894 A.2d 

584, 599 (2006) (“Where the legislative history does not indicate any discussion 

whatsoever as to whether a statute gives rise to [] a[n implied private] right [of action], the 

fact that the [statute] is silent would weigh heavily against an intent by the [General 

Assembly] to create a private cause of action.”). 

Simply stated, I would hold that an affirmative action by a governmental entity—

i.e., a “taking”—is essential to a claim for inverse condemnation. Alleging an omission or 
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inaction by the governmental entity is insufficient to state a claim for inverse 

condemnation. By holding otherwise, the Majority greatly expands the definition of 

inverse condemnation, the consequences of which are yet to be seen. 

 For the above reasons, respectfully, I concur in part and dissent in part. 

 Judge Battaglia and Judge McDonald have authorized me to state that they join in 

this opinion.