Chesapeake Bay Village, Inc. v. Costle

No. M-79-1543 (502 F. Supp. 213, 15 ERC 1194) (D. Md. October 29, 1980)

ELR Digest

In a suit challenging a federal grant for a sewage treatment plant under §§ 201-217 of the Federal Water Pollution Control Act (FWPCA), 33 U.S.C. §§ 1281-1297, the court rules that (1) the FWPCA provides no private cause of action against defendants, (2) plaintiff stated a cognizable claim regarding denial of substantive, although not procedural, due process, and (3) there has been no taking of property. Plaintiff, a land development corporation owning a large tract of land in Anne Arundel County, Maryland, initiated suit for declaratory and injunctive relief against the Environmental Protection Agency (EPA), the Maryland Department of Health and Mental Hygiene, and a county official. Plaintiff contends that the federal government's failure to award the county a grant for a sewage treatment plant large enough to meet the county's anticipated needs was in violation of the FWPCA. This in turn allegedly injured plaintiff because without the plant it cannot develop or use its property as intended. Initially, the court rules that (1) to avoid dismissing the case for lack of an indispensable party, the Maryland Department of Natural Resources will be joined as a party defendant, (2) plaintiff has standing to maintain this action, and (3) the state defendants were given fair notice of the claim. Turning to a substantive analysis of the complaint, the court determines that plaintiff's FWPCA claims are not so patently without merit as to justify the court's dismissal for want of jurisdiction. However, because the construction grant provisions of the FWPCA neither create an express nor implied private cause of action, the court finds that plaintiff has no cognizable claim against defendants to challenge the award of the grant. The court also dismisses plaintiff's procedural due process claim, ruling that the plaintiff has no recognized property interest in the approval of a sewage treatment facility. Further, the court dismisses plaintiff's claim that the inability to develop and fully utilize its property as intended amounts to a de facto taking for which it is entitled to just compensation. The court concludes that plaintiff's allegations regarding denial of substantive due process and equal protection state a cognizable claim for declaratory and injunctive relief because of defendants' actions regarding the sewage facilities. In addition, plaintiff may invoke the doctrine of equitable estoppel against the county and county official in his official capacity and the court will exercise pendent jurisdiction because the claim arises out of the same operative facts as plaintiff's substantive due process and equal protection claims. However, the court declines to exercise pendent jurisdiction in order to rule on plaintiff's independent state law claims pertaining to the state's failure to order construction of the treatment facilities where the absence of such facilities is likely to cause water pollution.

The full text of this opinion is available from ELR (16 pp. $2.50, ELR Order No. C-1236).

Counsel for Plaintiff
J. Michael McWilliams
Tydings & Rosenberg
Suite 2600, 201 N. Charles St., Baltimore MD 21201
(301) 752-6100

Warren K. Rich
Niles, Barton & Wilmer
48 Randall St., Annapolis MD 21401
(301) 268-3090

Counsel for Defendants
Russell T. Baker Jr., U.S. Attorney; Edward M. Norton Jr., Ass't U.S. Attorney
101 W. Lombard St., Baltimore MD 21201
(301) 539-2940

Stephen H. Sachs, Attorney General; Marc K. Cohen, Susan K. Gauvey, Ass't Attorneys General
Department of Law, One S. Calvert St., Baltimore MD 21202
(301) 383-3737

Thomas G. Redman, Ass't Cty. Solicitor
Office of Law, Arundel Center, P.O. Box 1831, Annapolis MD 21404
(301) 224-1316

John Henry Lewin Jr., Sally Spencer Lazzara
Venable, Baetjer & Howard
1800 Mercantile Bank & Trust Bldg., 2 Hopkins Plaza, Baltimore MD 21201
(301) 752-6780

Miller, J.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]