South Kent Island developer urges Supreme Court to revive takings claim
By: Steve Lash
Daily Record Legal Affairs Writer
January 4, 2018
A South Kent Island developer has urged the U.S. Supreme Court to revive his claim that Queen Anne's County must provide compensation for essentially compelling him by ordinance to combine his separate land parcels, substantially reducing the property's marketability.
Kevin Quinn, through counsel, claims the reduction in value due to the 2014 ordinance amounts to a governmental "taking" of his property for which he is owed "just compensation" under the federal Constitution. But that argument has failed in the U.S. District Court in Baltimore and the 4th U.S. Circuit Court of Appeals, which said the county's ordinance was needed to enable construction of a sewer system and did not financially harm Quinn because he retains marketable land.
Seeking the Supreme Court's review, Quinn's attorney David G. Sommer said the 4th Circuit erroneously regarded Quinn's property as a single unit and not as separate parcels of land, as the developer had intended them to be when he bought them nearly 30 years before the ordinance was enacted.
Thus, the appeals court failed to consider Quinn's "reasonable expectations" in rejecting his Takings Clause claim under the Constitution, Sommer wrote in papers filed with the justices last week.
The Supreme Court "should use this opportunity to reaffirm that courts must identify the relevant parcel affected by governmental regulation before proceeding to a takings analysis and in doing so, courts must consider the property owner's reasonable expectations as shaped by the treatment of the owner's parcels under state and local law," Sommer added in his request for high-court review.
The county and Maryland Department of the Environment have until Feb. 2 to reply to Quinn's request. The justices have not set a date for their consideration of whether to hear Quinn's appeal. The case is docketed at the Supreme Court as Kevin Quinn et al. v. Board of County Commissioners for Queen Anne's County, Md., et a, l.No. 17-945.
Quinn bought the undeveloped parcels of land on South Kent Island between 1984 and 1987 for residential development. The parcels, most of which were contiguous, ranged in size from 5,000 to 70,200 square feet, according to court papers.
Quinn's purchases predated a 1987 county ordinance barring residential development on lots smaller than 20,000 square feet. But in 2014, Queen Anne's adopted an ordinance prohibiting the approval of all building permits on lots smaller than 20,000 square feet so as not to interfere with the county's ability to build a sewer system on the island.
The ordinance essentially forced Quinn to merge his contiguous lots to meet the 20,000 square feet requirement for construction and "destroyed the separate character of each individual parcel" he had bought, Sommer wrote in arguing that Quinn's property was "taken."
"As a result of the ordinance, a resident dwelling can no longer be built on each of Quinn's individual lots and the lots cannot be sold individually," added Sommer, of Gallagher Evelius & Jones LLP in Baltimore. "The ordinance eliminates the expectations Quinn acquired when he purchased each of the individual lots."
The 4th Circuit, in ruling against the developer, said the 2014 ordinance did "not interfere with Quinn's reasonable investment-backed expectations because his investment in the land was highly speculative" at the time of purchase.
The ordinance did not amount to a regulatory taking but was "a standard zoning provision designed to manage the density of development, a crucial part of land-use planning," the 4th Circuit held in its published July 7 decision. "To find a taking here would revolutionize zoning law and severely constrict local governments' ability to direct democratically the very nature and character of the community."