Offen v. County Council for Prince George's County

CATHELL, Judge. Appellant, J. Allan Qffen, appeals from the decision of the Circuit Court for Prince George’s County (1) affirming the comprehensive rezoning plan approved by the County Council for Prince George’s County sitting as the District Council, appellee; and (2) finding that the actions of the County prior to the adoption of the comprehensive rezoning in denying a sewer upgrade permit and other actions of the County in respect to appellant’s commercially-zoned property, pending rezoning, were not illegal, arbitrary or capricious; and (3) ⁵³⁰ finding that no vested rights in the prior zoning exists. Often presents two questions, which we rephrase as follows: 1. Whether the actions of the administrative and legislative officials constituted a regulatory “taking” for which appellant is entitled to compensation.- 2.

Whether a zoning estoppel was created by the actions of administrative officials of Prince George’s County that delayed appellant’s ability to procure building permits and begin construction and thus create a vested interest in the prior zoning. The Facts Appellant acquired the subject property 1 in 1969 and promptly had the property rezoned to commercial in 1970. A fair interpretation of the somewhat confusing contradictory factual statements of the parties indicates that the planning staff of the County 2 objected to this initial rezoning but was overruled by the District Council. This rezoning was granted upon the condition that prior to any development the property and its site plan had to be reviewed by the District Council for final approval.

At that point, appellant’s first serious problem began. The Washington Suburban Sanitary Commission (WSSC), due to sewage treatment capacity problems, declared a moratorium on development affecting most- of Prince George’s County that lasted for almost ten years. When the moratorium was removed, appellant began the process of development by formulating various plans, which ultimately coalesced into plans for a commercial medical campus. Informal representations were made to county officials.

Some of the officials publicly, but informally, commented favorably as to the conceptual use of the subject property. ⁵³¹ Thereafter, appellant undertook the normal preliminary process of planning for the development, ie., architectural and land planning, engineering, legal preparation, marketability control, etc. Plans designed to meet the conditions attached to the 1969/70 rezoning were then formally transmitted to the Council in 1988. Just prior to submitting his plans in 1988, appellant requested, by application to the County’s Department of Environmental Services, that the County upgrade the sewer status of his property from category four to category three. For the purpose of our resolution of the issues, we assume that category three, if obtained, would have enabled appellant to apply for the required permits that would have given him the right to commence construction and perhaps vest an interest in his then existing commercial zoning. Rather than upgrade appellant’s sewer status to category three, or leave it in category four, the County downgraded it to category six.

Appellant argues, without challenge by appellee, that this was the first time in the history of the categorizing of sewer classifications that sewer availability was downgraded upon an upgrade request. Appellant immediately filed suit in state court for a writ of mandamus to require the County to issue a category three designation. Three days before the mandamus hearing, the County requested removal of this manifestly state action to federal court. Upon a motion to remand, which was not opposed by the County, the federal court sometime thereafter remanded the case to the state court.

Finally, on the 22nd of August 1991, the Circuit Court for Prince George’s County opined: Plaintiffs met the criteria established ... for the approval of Service Area Redesignation Requests. Therefore the denial [of the 1988 request] did not fall within the County’s discretion and was arbitrary and capricious.... ... Most significantly, Plaintiffs’ property was zoned G-0 ... and C-2 ... to allow Plaintiffs’ proposed development. ⁵³² Additionally, Plaintiffs’ proposed use meets the further stipulations of the 1970 Bowie Master Plan____ In the same opinion, the trial court ordered that the County “shall redesignate Plaintiffs Property from Water and Sewer Service Area Six to Service Area Three.” The order related back to the County’s arbitrary actions in denying the 1988 request and was an immediate order. In complete disregard of the order, the County took the cavalier attitude that, rather than obey or appeal the court order, it would wait until the next scheduled round of sewer reclassifications to reconsider appellant’s sewer upgrade request.

During all of these events, the County’s planning staff was energetically working on the comprehensive master plan and new sectional map amendment (SMA) for the area that included appellant’s property. The staff recommended, as it had in 1970 and in 1975, that the property be put into a residential classification. The County, of course, was aware of the fact that by the time the next scheduled regulatory sewer and water designation review occurred, it was probable that a proposed SMA would be adopted by the Council and thus freeze any application to develop under the then existing sectional map. 3 When the County finally moved the property into sewer category three, the SMA had been adopted. Thus, the property became subject to the comprehensive rezoning to residential use prohibiting commercial development.

Throughout the period of the mandamus litigation, appellant continued his attempt to obtain site plan approval pursuant to the 1969/70 rezoning conditions. During this process, the planning board staff recommended denial of the site plan because of comments regarding transportation contained in a recently adopted Master Plan of an area encompassing the ⁵³³ subject property. The Planning Board denied the site plan approval based upon the new proposed SMA, stating in part: The Master Plan also proposes residential land use for this property ... the new Sectional Map Amendment will be adopted in early Fall 1991. The Detailed Site Plan is in conformance with the applicable conditions of the previously approved Detailed Site Plan ... the previously-approved Conceptual Site Plan ... and the previously-approved Master Plan---- [It] is not in conformance with the most current Master Plan....

Even when a new master plan is adopted, until, and if, comprehensive rezoning pursuant to it occurs, the original zoning controls the uses of the subject property. The transmittal of a SMA to the enacting authority during the rezoning process may freeze applications pending its adoption. It appears that at this point the SMA had not been transmitted in the case sub judice. As we have stated, by the time category three was granted to appellant in October of 1991, the SMA had been adopted.

Comprehensive Rezoning It is well established, and neither party contests, that the SMA was a comprehensive rezoning, and thus it is entitled to the same presumption of validity as original zoning. Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66 , 254 A.2d 700 (1969). In Norbeck, the Court of Appeals stated: The broad test of the validity of a comprehensive rezoning is whether it bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare, and such zoning enjoys a strong presumption of validity and correctness. A property owner has no vested right to the continuance of the zoning status of his or neighboring property, merely the right to rely on the rule that a change will not be made unless it is required for the public good.... ⁵³⁴ ...

For an individual property owner to escape the binding impact of a comprehensive rezoning he must show that the plan lacks the necessary relationship to the general public interest and welfare that is presumed or that the effect of the plan is to deprive him of any reasonable use of his property. 254 Md. at 66-67 , 254 A.2d 700 (citations omitted). See also Howard County v. Dorsey, 292 Md. 351, 363 , 438 A.2d 1339 (1982) (“Comprehensive zoning or rezoning must be well thought out, the product of careful consideration and extensive study, and based upon considerations concerning the common needs of a particular area.”); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706 , 376 A.2d 483 (1977), cert. denied, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 L.Ed.2d 769 (1978) (“[T]he rezoning was comprehensive and bore a substantial relationship to the public health, comfort, safety ... [A]s such it enjoys a strong presumption of validity.”); JMC Constr. Corp. v. Montgomery County, 54 Md.App. 1, 17 , 456 A.2d 931 (1983); Montgomery County v. Horman, 46 Md.App. 491, 495 , 418 A.2d 1249 (1980) (“Zoning decisions ... made during a comprehensive rezoning ... are strongly presumed to be correct. The reason ... is that ... the County Council is not considering individual properties ... it is considering the overall needs ... of the County....”) (citations omitted); Stump v. Grand Lodge of Ancient, Free & Accepted Masons, 45 Md.App. 263, 269 , 412 A.2d 1305 (1980) (“Zoning decisions which are made during a comprehensive rezoning process are strongly presumed to be correct.... [D]uring comprehensive rezoning ... a County Council is exercising ... its ‘plenary’ legislative power.

The power ... is limited only by the constitutional restriction that [it] ‘bears a substantial relationship to the public health____’ ”). In County Council v. District Land Corp., 274 Md. 691, 701-02 , 337 A.2d 712 (1975), the Court was faced with a similar factual scenario and opined: [W]e turn to the question whether the rezoning bore a substantial relationship to the public health, comfort.... If ⁵³⁵ it did, the rezoning enjoys a strong presumption of validity and correctness, Montgomery County Council v. Leizman, supra, 268 Md. [621] at 622 [ 303 A.2d 374 (1973) ]; Norbeck Village Joint Venture v. Montgomery County Council, supra, 254 Md. [59] at 66 [ 254 A.2d 700 (1973) ]. Indeed it is entitled to the same presumption of correctness as that enjoyed by an original zoning, and persons attacking the correctness of the classification have a heavy burden in overcoming the presumption of its validity, Scull v. Coleman, supra, 251 Md. [6] at 10 [ 246 A.2d 223 (1968)].

Compare Carl M. Freeman Associates, Inc. v. State Roads Comm’n, 252 Md. 319, 329 , 250 A.2d 250 (1969). See also Mandel and S. Properties, Inc. v. Board of County Comm’rs, 238 Md. 208, 219 , 208 A.2d 710 (1965); Town of Somerset v. County Council, 229 Md. 42, 47-48 , 181 A.2d 671 (1962). The Court in District Land, quoting C. Ryhne, Municipal Law § 9-4 (1957), at 229-30, stated: “As a general rule, the motives, wisdom or propriety of a municipal governing body in passing an ordinance are not subject to judicial inquiry.” 274 Md. at 705 , 337 A.2d 712 . The Court then opined that “[t]he same principle applies to zoning ordinances, which are presumed to be valid.” 274 Md. at 705 , 337 A.2d 712 .

We shall not further address the presumption of validity issue other than to hold that the presumption of validity has not been rebutted. Appellant’s primary complaint, however, alleges that it was the administrative actions leading up to the comprehensive rezoning which wrongfully interfered with his rights under the pre-existing commercial zoning. He maintains that appellee should be estopped from denying him a permit under the pre-existing zoning. In combination, he asserts that his constitutional rights against a confiscatory taking have been violated.

I Whether the adoption of the rezoning plan constituted a regulatory taking for which appellant is entitled to compensation. ⁵³⁶ Before reviewing the applicable law, we must first address a preliminary matter raised by appellee. Appellee argues that appellant’s Fifth Amendment claim is premature because he has not exhausted his administrative remedies. Appellee, however, fails to further inform the court of the factual specifics of this argument. As we have said, this appeal arises from (1) the circuit court’s decision to affirm the District Council’s enactment of a Sectional Map Amendment (SMA) that downzoned appellant’s property, and (2) the trial court’s decision that the County’s actions prior to the rezoning in denying appellant the use of his property under the pre-existing zoning were not improper.

It is unclear from appellee’s brief whether it argues that appellant must first file for a rezoning of his property or apply for variances and then appeal the anticipated denial in order to exhaust his administrative remedies. As we view the process undertaken below by the County, it left only this avenue of judicial review available to appellant. Appellee cites Williamson Co. Regional Planning Commission v. Hamilton Bank, 478 U.S. 172 , 105 S.Ct. 3108 , 87 L.Ed.2d 126 (1985), as support for its argument that appellant has not exhausted his administrative remedies. It is true that the Williamson Court stated that certain exhaustion theories were applicable in that case. 473 U.S. at 186-97 , 105 S.Ct. at 3116-22 .

Nevertheless, there are important distinctions between Williamson and the case sub judiee. Williamson was a civil claim filed pursuant to 42 U.S.C. section 1983 for damages against the Planning Commission, its members, and its staff. The instant case is a comprehensive complaint as to the administrative and legislative actions taken by appellee. No claim for damages remains.

Appellee utilized its administrative powers to stymie permitted development until it could use its legislative powers to prohibit development. Appellant attacked that process in the circuit court and further attacks it here. Additionally, the Williamson Court opined that the action was not ripe because the property owner there had “not yet ⁵³⁷ obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property [4] nor utilized the procedures Tennessee provides for obtaining just compensation....” 473 U.S. at 186 , 105 S.Ct. at 3116 . This holding, however, has virtually no applicability in our case.

Appellant in the case sub judice is appealing the District Council’s final decision regarding the application of the rezoning and SMA to his property and its prior activities in denying him the opportunity to vest in the previous zoning. Through this suit, he is raising the taking and just compensation claims in the only available forum provided by Maryland law in these types of zoning cases. Our decision, absent certiorari to a higher court, will exhaust appellant’s remedies and render a final decision on appellee’s legislative activities as well. The District Council’s activities throughout the process were, for the most part, primarily administrative in nature.

Only the final activity of approving the comprehensive rezoning plan was legislative. Additionally, the trial judge noted that the case was a B Rule appeal and that as finally presented, appellant was seeking “reversal of the decision of the ... District Council and ... remand ... with instructions to reconsider its decision with reference to the subject property.” While the defense of failure to exhaust administrative remedies may be raised at any time, we note that appellee did not raise this issue at the trial court. Appellee chose, instead, to address appellant’s issues directly, rather than peripherally, by attempting to force appellant to apply for variances, etc., when it was preordained he would not get them. ⁵³⁸ If an agency’s pattern of administrative delay and obstruction, conducted for the purpose of forestalling development until legislative activity can prohibit it, were to be approved, property owners would be left with no remedy.

The subsequent legislative activity would terminate the administrative remedies available under the pre-existing zoning because the statutes in effect at the time of permit denial would require that the new zoning be applied. A property owner would not be able to obtain judicial review of a future legislative action until its final enactment. When finally enacted, property owners could not attack the legislative action because they would have failed to exhaust administrative remedies under statutes that no longer exist. Whether appellee should be estopped from applying the new ordinance is a matter largely independent of whether there are variances or exceptions available under the new ordinance.

One of appellant’s contentions below and on appeal, that appellee should be estopped from applying the new ordinance, necessarily includes all of its provisions. Under the ordinance appellant contends is applicable, he was not required to obtain variances or special exceptions. The use he seeks was permitted. He claims that the County’s actions denied him that to which he had a preexisting right.

In the context of whether he now has a right via zoning estoppel to a permit under the old ordinance, the special exception and variance provisions of the new ordinance are irrelevant. As we have said, the trial court decided that the County’s actions prior to the rezoning were not improper, but it based its decision solely on the fact that under Maryland’s “vesting” law the new zoning applied. Thus, appellant had to comply with its provisions. The trial court failed to perceive the possible applicability of the zoning estoppel theory.

Thus, its decision may not have been based on the appropriate legal theory. As we have said, the trial court found that the actions of the Council were not arbitrary, capricious or illegal, in part, because appellant had not vested under Maryland’s vesting law. In making that determination, the trial court missed the ⁵³⁹ point. The issue before it was that the County’s actions had improperly stopped appellant from vesting.

Even had the trial court failed to address the issue, we could, though we would not be required to, consider it. Md. Rule 8-131; Atlantic Mut. Ins. Co. v. Kenney, 323 Md. 116, 122 , 591 A.2d 507 (1991) (“[W]e have recognized that an appellate court has discretion ... to consider and decide questions not tried and decided in the trial court.”): Crown Oil and Wax Co. v. Glen Constr.

Co., 320 Md. 546, 561 , 578 A.2d 1184 (1990) (“Even if the ... argument were a new issue, raised for the first time on appeal, this Court has discretion under Rule 8-131(a) to consider it____”); Taub v. State, 296 Md. 439, 441 , 463 A.2d 819 (1983) (“[0]ur scope of review is ‘ordinarily’ limited to questions raised and decided by the trial court____ [T]he rule ... permits exceptions and we have occasionally decided cases on issues not previously raised.”); Coffey v. Derby Steel Co., 291 Md. 241, 256 , 434 A.2d 564 (1981); Panamerican Consulting Co. v. Broun, 238 Md. 438, 447 , 209 A.2d 575 (1965); Cavalier Mobile Homes, Inc. v. Liberty Homes, Inc., 53 Md.App. 379, 394 , 454 A.2d 367 , cert. denied, 295 Md. 736 (1983) (“Assuming ... that the issue was not decided below, this Court could still consider it under the circumstances of the instant case.”); Tuxedo Cheverly Volunteer Fire Co. v. Prince George’s County, 39 Md.App. 322, 327 , 385 A.2d 819 (1978) (“[A]ppellate courts exercise a measure of discretion in considering issues tried but not decided below. ...”). See Heat Exchangers, Inc. v. Map Constr. Corp., 34 Md.App. 679, 681 , 368 A.2d 1088 (1977). Accordingly, we reject the Council’s argument that the “taking” issue is not ripe for consideration.

A. General Zoning Authority In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922), the United States Supreme Court stated the general law of takings as it relates to the regulation of private property: ⁵⁴⁰ The protection of private property in the Fifth Amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation .... The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it .will be recognized as a taking. 260 U.S. at 415 , 43 S.Ct. at 160 . 5 The seminal case regarding the constitutionality of zoning ordinances is Village of Euclid v. Ambler Realty Co., 272 U.S. 365 , 47 S.Ct. 114 , 71 L.Ed. 303 (1926). The Supreme Court first noted that zoning ordinances were, at that time, of recent vintage predating the case by approximately twenty-five years. 272 U.S. at 386 , 47 S.Ct. at 117 . See Hadacheck v. Sebastian, 239 U.S. 394 , 36 S.Ct. 143 , 60 L.Ed. 348 (1915).

The Euclid Court, reiterating the well-established standard of review in zoning cases, opined: The ordinance ... and all similar laws and regulations, must find their justification in some aspect of the police power, asserted for the public welfare.... ... [I]t must be said before the ordinance can be declared unconstitutional, that such provisions are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals, or general welfare. 272 U.S. at 387-95 , 47 S.Ct. at 118-21 (emphasis added). See also Brend v. Confederated Tribes and Bans of Yakima Indian Nations, 492 U.S. 408 , 109 S.Ct. 2994 , 106 L.Ed.2d 343 (1989); Midnight Sessions Ltd. v. City of Philadelphia, 945 ⁵⁴¹ F.2d 667, 676 (3d Cir.1991), cert. denied, — U.S. ——, 112 S.Ct. 1668 , 118 L.Ed.2d 389 (1992) (holding that “[i]n instances in which a state ‘reasonably concludefs] that the “health, safety, morals, or general welfare” would be promoted by prohibiting particular contemplated uses of land,’ does not require compensation until the adverse affect on the real property interests reaches a certain magnitude.”); Elias v. Town of Brookhaven, 783 F.Supp. 758, 760 (E.D.N.Y.1992) (holding that cases claiming that government action requires just compensation must be determined on an “ad hoc ” basis); Kasdon v. G.W. Zierden Landscaping, Inc., 541 F.Supp. 991, 997-99 (D.Md.1982) (holding that plaintiffs’ claim that cloud was cast upon their title coupled with sovereign immunity asserted by the government gave rise to an unconstitutional taking was without merit because plaintiffs did not allege any harm other than to “future, speculative, opportunities.”); Barrett v. Poinsett County, 306 Ark. 270 , 811 S.W.2d 324, 325 (Ark.1991) (“[E’legulations affecting less than all of the use or all of the value of property, remain to be considered on the particular circumstances of each case.”); Wilson v. Commonwealth, 31 Mass.App.Ct. 757 , 583 N.E.2d 894, 899 (1992), aff'd, 413 Mass. 352 , 597 N.E.2d 43 (1992) (“[A] taking may still occur if the State regulates property in such a way that it ‘does not substantially advance legitimate state interests, or denies an owner economically viable use of his land.’ ”) (quoting Agins v. Tiburon, 447 U.S. 255, 260 , 100 S.Ct. 2138, 2141 , 65 L.Ed.2d 106 (1980) (footnote omitted)). Additionally, mere diminution in value, absent zoning ordinances that are clearly arbitrary and capricious or that create a denial of all reasonable use, will not constitute a taking. Steel Hill Dev., Inc. v. Town of Sanbornton, 469 F.2d 956, 963 (1st Cir.1972) (“The estimated worth, had Steel Hill’s original plans been approved, is irrelevant.

Though the value ... has been decreased considerably, it is not worthless or useless so as to constitute a taking.”) See also Scott v. Greenville County, 716 F.2d 1409, 1421-22 (4th Cir.1988) (holding that while the right to a building permit prior to issuance may be entitled to protection under the Due Process ⁵⁴² Clause, non-issuance of a permit does not destroy the value of the underlying property and thus there is no taking claim); Hagerstown Kitchens, Inc. v. Board of County Comm’rs, 547 F.Supp. 46, 48 (D.Md.1982), aff'd, 707 F.2d 506 (4th Cir.1983), cert. denied, 464 U.S. 847 , 104 S.Ct. 152 , 78 L.Ed.2d 141 (1983) (“Before a court can conclude that there has been an unconstitutional taking of property, the government regulation must deprive the landowner of all reasonable uses of his land.”); Kent Island Joint Venture v. Smith, 452 F.Supp. 455, 460 (D.Md.1978) (holding that the regulation must “render the property worthless or useless. It is not enough ... that the regulation causes a severe decline in the property’s value.”) (citations omitted). In Mayor of Rockville v. Stone, 271 Md. 655, 663 , 319 A.2d 536 (1974), the trial court found that rezoning had dispossessed the owners of “two-thirds of their original investment” and the diminution in value destroyed the greater part of the property’s value; thus, the rezoning was an unconstitutional confiscation. The Court of Appeals, however, held: The record is devoid of evidence which would demonstrate that the owners were denied all reasonable use.... [W]e hear only that infamous incantation of “financial hardship” so often disavowed by this Court.

It is not with a deaf or a totally unsympathetic ear that we listen to the details of the financial disaster which may result____ Nevertheless ... we do not find that this property has been unconstitutionally confiscated. 271 Md. at 664 , 319 A.2d 536 (citation omitted). See also Howard County v. Dorsey, 292 Md. 351 , 365 n. 6, 438 A.2d 1339 (1982) (rejecting the contention that fifteen acres of residential property contained “in a sea of hundreds and hundreds of acres of industrially zoned land” had no viable value because a single family home had already been constructed, the fifteen acres were abutted on at least two sides by residentially-zoned property, and three units per acre could be developed under its present classification); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 724 , 376 A.2d 483 (1977), cert. denied, 434 U.S. 1067 , 98 S.Ct. 1245 , 55 ⁵⁴³ L.Ed.2d 769 (1978) (“[Ojnly that permissible densities ... have been significantly decreased; that showing is ... insufficient to demonstrate a confiscatory exercise____”); Governor of Maryland v. Exxon Corp., 279 Md. 410, 437 , 370 A.2d 1102 (1977), aff'd, 437 U.S. 117 , 98 S.Ct. 2207 , 57 L.Ed.2d 91 (1978) (holding that a statute that prohibited producers and refiners from directly operating retail service stations did not constitute a taking because they were not deprived of all beneficial uses of their property); Stratakis v. Beauchamp, 268 Md. 643, 654 , 304 A.2d 244 (1973) (“In order to obtain a rezoning on the basis of an unconstitutional confiscation, an applicant must show that he has been deprived of all reasonable use of his property and that it cannot be used for any of the permitted uses in the existing zone.”); Krieger v. Planning Comm’n, 224 Md. 320, 323 , 167 A.2d 885 (1961) (holding that restrictions for the public welfare were permissible even though the restrictions resulted in serious financial loss to the owner.); Greenberg v. State, 66 Md.App. 24, 34-36 , 502 A.2d 522 , cert. denied, 305 Md. 621, 505 A.2d 1342 (1986) (holding that airport noise regulations and county zoning ordinances which restricted certain development and adversely affected the value of property did not constitute a taking because the owner was not deprived of all beneficial use of the property considering the fact that there were a number of permitted uses consistent with the noise zone regulations and county zoning ordinances); Anne Arundel County v. Maryland Nat’l Bank, 32 Md.App. 437, 444 , 361 A.2d 134 (1976) (“Suitability and feasibility ... are not the criteria for establishing confiscation.... ”); Rockshire Civic Ass’n v. Mayor of Rockville, 32 Md.App. 22, 38 , 358 A.2d 570 , cert. denied, 278 Md. 732 (1976) (“Reduction of the initially approved commercial areas would clearly result in financial detriment to the owner of the property, but unless it would deprive the owner of all reasonable use of his property, such action may not be unconstitutionally impermissible.”); Dustin v. Mayor of Rockville, 23 Md.App. 389, 415 , 328 A.2d 748 (1974), vacated on other grounds, 276 Md. 232 , 346 A.2d 447 (1975) (“Rezoning in such a case would be impermissible only when the owner was deprived of all beneficial use of the ⁵⁴⁴ property.”). But see Carl M. Freeman Assocs. v. State Rds. Comm’n, 252 Md. 319, 329 , 250 A.2d 250 (1968) (holding that where the sole purpose of the ordinance was to freeze property values so that the property could be subsequently acquired for a public purpose, “the Walls of Jericho must fall----”).

Thus, the standard has been that for there to be an unconstitutional taking there must be a physical invasion or a regulation that denies the owner all economically viable use of his property. B. First English Evangelical Lutheran Church v. County of Los Angeles, Nollan v. California Coastal Commission, and Lucas v. South Carolina Coastal Council Appellant asserts that the traditional zoning maxims we have briefly discussed above regarding constitutional taking that have remained relatively unchanged over the last sixty years, have been affected by the decisions in First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304 , 107 S.Ct. 2378 , 96 L.Ed.2d 250 (1987), and Nollan v. California Coastal Commission, 483 U.S. 825 , 107 S.Ct. 3141 , 97 L.Ed.2d 677 (1987). The appellee incongruously cites Lucas v. South Carolina Coastal Council, — U.S. — , 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992), as general support for the actions it has taken. We shall address these cases, but we first note that appellant cites an article apparently for the proposition that the Supreme Court’s trend in this area is away from its earlier, long-standing rulings on “taking” and confiscation.

Appellant quoted in his brief from that article: Both the Nollan and the First Lutheran Church [6] decisions are true to the underlying purpose of the Just Compensation Clause to ensure a fair distribution of the burdens of governmental activities.... ... The question presented almost always is, Who is going to pay? ... Neither the Nollan nor the First Lu ⁵⁴⁵ theran Church opinion restricts the range of regulatory options.... Severe restrictions on use can still be imposed, and extensive deductions can still be required.

The clear intent of both decisions is ... to focus more light on the question of who is to bear the burdens of the costs associated with harsh land use regulation.... The teaching of these two cases is that a guiding principle of land use regulation must be a fair and just distribution of costs among the community as a whole.... [T]he courts will hence forth look more closely to ensure that the results of land use regulation reflect a reasonable accommodation of the individual rights of the owner with public concerns and that justice and fairness have been achieved. The tone of these two decisions clearly suggests that a number of years of profligate regulatory conduct has dissipated the credibility of land use regulators with the United States Supreme Court. The message ... is that unreasonable regulatory conduct which fails to consider individual rights and does not distribute the economic burdens of a land use regulation ... will be called to account....

Roland K. Best, “New Constitutional Standards for Land Use Regulation: Portents of Nollan and First Lutheran Church, ” Chapter Six, Institute on Planning, Zoning, and Eminent Domain (1988). We disagree with Professor Best’s interpretations, and we hold that the well-established law on takings and confiscation remains unchanged. We shall explain. The property owner in Nollan, 483 U.S. 825 , 107 S.Ct. 3141 , sought a writ of mandamus to require the issuance of an unconditional rebuilding permit.

The Commission had issued the permit with a condition that the land owners grant to it a public easement across their beach front property parallel to the ocean, extending from one public beach to another public beach. The Supreme Court, by a majority, first opined: Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the ⁵⁴⁶ beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner’s premises does not constitute the taking of a property interest but rather (as Justice BRENNAN contends) “a mere restriction on its use” post, at 834,1-07 S.Ct. at 3155, n. 3, is to use words in a manner that deprives them of all their ordinary meaning. 483 U.S. at 831 , 107 S.Ct. at 3145. Later, the Court, after discussing various potential scenarios relating to the Commission’s purposes, then framed the issue before it as follows: The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation.

Whatever may be the outer limits of “legitimate state interests” in the takings and land-use context, this is not one of them.... ... That is simply an expression of the Commission’s belief that the public interest will be served by a continuous strip of publicly accessible beach.... The Commission may well be right ... but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its “comprehensive program,” if it wishes, ... but if it wants an easement across the Nollans’ property, it must pay for it. 483 U.S. at 837-41 , 107 S.Ct. at 3148-51.

As we perceive Nollan , it merely restates the law that if a governmental entity desires to acquire property for itself, it must pay for it. The governmental action in Nollan did not just create a regulatory taking, it actually confiscated property. It was a physical invasion. What the Nollan Court did was to forbid California from acquiring property rights for itself without compensating the property owners. 483 U.S. at 842 , 107 S.Ct. at 3151.

That has been the law almost since the advent of zoning. ⁵⁴⁷ In First English Church, 482 U.S. 304 , 107 S.Ct. 2378 , a flood destroyed a church campground and retreat center along the banks of a California creek. The county adopted an interim ordinance which prohibited the construction or reconstruction of any structures in an area that included the church’s property. The church filed an inverse condemnation case for damages, alleging that the ordinance denied it all use for the temporary period and it was, therefore, a taking. The California Court of Appeals had previously held that a landowner may not recover damages until it is finally determined that the regulation constitutes a “taking.” 482 U.S. at 306-07 , 107 S.Ct. at 2381.

Relying on the California Supreme Court’s holding in Agins v. Tiburon, 24 Cal.3d 266 , 157 Cal.Rptr. 372, 376-78 , 598 P.2d 25, 29-31 (1979), the California Court of Appeals held that temporary regulatory takings do not require compensation even for the temporary period when all use is prohibited. 482 U.S. at 309-10 , 107 S.Ct. at 2383. The United States Supreme Court reversed the Agins rule, and in a majority opinion held that in the factual scenarios previously presented, the “California courts have decided the compensation question inconsistently with the requirements of the Fifth Amendment.” 482 U.S. at 311 , 107 S.Ct. at 2383. It is important to note that the United States Supreme Court carefully limited its holding to “whether the Just Compensation Clause requires the government to pay for ‘temporary’ regulatory takings.” 482 U.S. at 313 , 107 S.Ct. at 2885 (footnote omitted). The Court, like the California Court, assumed that all use was taken.

The issue was thus limited to whether a denial of any and all uses for a temporary period constituted a taking. The focus was not on the extent of use limitation but, on the period of the prohibition. It was conceded that all use was prohibited. The Court, in noting the thrust of the issue it chose to resolve, said: [A] governmental body may acquiesce in a judicial declaration that one of its ordinances has effected an unconstitutional taking of property; the landowner has no right under the Just Compensation Clause to insist that a “temporary” ⁵⁴⁸ taking be deemed a permanent taking.

But we have not resolved whether abandonment by the government [of the regulations] requires payment of compensation for the period of time during which regulations deny a landowner all use of his land. First English Church, 482 U.S. at 317-18 , 107 S.Ct. at 2387 (emphasis added). The Court concluded: We merely hold that where the government’s activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective. 482 U.S. at 321 , 107 S.Ct. at 2389 (emphasis added). As we perceive the majority opinion in First English Church , it was limited to the requirement that temporary prohibitions of all uses require compensation.

The United States Supreme Court and the Maryland courts have held since the advent of the regulation of uses that a prohibition of all uses constitutes a taking. 7 In that regard, First English ⁵⁴⁹ Church offers no new law or substantial change in the Court’s prior position. See also McDougal v. County of Imperial, 942 F.2d 668, 676 (9th Cir.1991) (“We cannot agree that any legitimate purpose automatically trumps the deprivation of all economically viable use ... [W]e do not read either First English opinion as holding that any legitimate state interest insulates the state from takings exposure.”). See also Midnight Sessions Ltd v. City of Philadelphia, 945 F.2d 667, 675-77 (3d Cir.1991), cert. denied, —— U.S. ——, 112 S.Ct. 1668 , 118 L.Ed.2d 389 (1992); Cornish Town v. Koller, 817 P.2d 305, 312 (Utah 1991) (“Even a ‘temporary’ regulatory taking would require a denial of ‘all uses’ of their property.”) In Lucas v. South Carolina Coastal Council, — U.S. ——, 112 S.Ct. 2886 , 120 L.Ed.2d 798 (1992), Lucas purchased two oceanfront lots on a barrier island off the South Carolina coast in 1986. He intended to construct single-family homes on the property.

At the time he purchased the lots, there were no regulations establishing a complete prohibition on the construction of homes. Subsequent thereto, South Carolina passed the Beachfront Management Act (Act). The Act prohibited Lucas from constructing any permanent habitable structures on the lots. He initiated suit, alleging that the Act constituted an unconstitutional “taking of his property without just compensation.” — U.S. at-, 112 S.Ct. at 2890 .

The trial court determined that the Act rendered the lots valueless and was thus an impermissible confiscation. The South Carolina Supreme Court, reversing, held that when a regulation is designed “to prevent serious public harm, no compensation is necessary under the taking clause, regardless of the Act’s effect on the value of the property.” 8 — U.S. at — , 112 S.Ct. at 2890 . ⁵⁵⁰ Lucas did not challenge the validity of the Act as a legitimate exercise of the police power but claimed that: [T]he Act’s complete extinguishment of his property’s value entitled him to compensation regardless of whether the legislature had acted in furtherance of legitimate police power objectives. — U.S. at — , 112 S.Ct. at 2890 (emphasis added). The South Carolina Supreme Court based its holding on Mugler v. Kansas, 123 U.S. 623 , 8 S.Ct. 273 , 31 L.Ed. 205 (1887), and its progeny, 9 which the Court interpreted to mean that regulations preventing public nuisances, ie., harmful or noxious uses, do not create compensable takings under the Takings Clause. In delivering the Supreme Court’s majority opinion, Justice Scalia began by noting that in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 , 43 S.Ct. 158 , 67 L.Ed. 322 (1922), 10 the Supreme Court had first recognized: ⁵⁵¹ If ... the uses of private property were subject to unbridled, uncompensated qualification under the police power, “the natural tendency of human nature [would be] to extend the qualification more and more until at last private property disappeared].” These considerations gave birth in that case to the oft-cited maxim that, “while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking.” — U.S. at — , 112 S.Ct. at 2892-93 (citations omitted).

He then noted, that in seventy years of jurisprudence, the question of “too far” had been decided on an ad hoc basis, 11 except that the Court had in the process carved out two categories of “regulatory action as compensable without case-specific inquiry into the public interest advanced in support of the re ⁵⁵² straint.” — U.S. at — , 112 S.Ct. at 2893 . The first category is physical invasion of an owner’s property “no matter how minute the intrusion, and no matter how weighty the public purpose behind it” — U.S. at — , 112 S.Ct. at 2893 . The second category is where the “regulation denies all economically beneficial or productive use of land.” — U.S. at — , 112 S.Ct. at 2893 . In a footnote caustically criticizing Justice Blackmun’s dissent, the majority noted, in part, that: [t]he cases say, repeatedly and unmistakably, that “[t]he test to be applied in considering [a] facial [takings] challenge is fairly straightforward.

A statute regulating the uses that can be made of property effects a taking if it ‘denies an owner economically viable use of his land.’” — U.S. at — , n. 6, 112 S.Ct. at 2893 n. 6. Speaking of the rule as extant, Justice Scalia again commented that “the Fifth Amendment is violated when ... [a land use regulation] denies an oumer economically viable use of his land.” — U.S. at — , 112 S.Ct. at 2894 . He then stated that the Supreme Court had never set forth the justification for the rule because “[p]erhaps it is simply ... that total deprivation of beneficial use is, from the landowner’s point of view, the equivalent of a physical appropriation.” — U.S. at — , 112 S.Ct. at 2894 (emphasis added). Interestingly, again in a footnote, during this particular dispute between Justices Scalia and Blackmun, Justice Scalia noted: Justice BLACKMUN describes that rule (which we do not invent but merely apply today)....

Justice BLACK-MUN’s real quarrel is with the substantive standard of liability we apply in this case, a long-established standard we see no need to repudiate. — U.S. at — n. 6, 112 S.Ct. at 2893 -94 n. 6 (citations omitted, emphasis added). The Lucas majority, as we have indicated, repeatedly tells us that it is not adopting a new rule. The South Carolina Legislature in Lucas attempted to create legislation that would permit the State to deny a landowner all viable and ⁵⁵³ economical use of his property. In essence, the South Carolina Legislature’s attempt was based on the creative and unique theory that any economically viable use of coastal property was harmful and noxious and thus regulatorily enjoinable.

The United States Supreme Court acknowledged that the “harmful or noxious uses” principle was the Court’s early method of ascribing a reason for permitting regulation that incidentally devalued property without requiring compensation under the Takings Clause. —— U.S. at — , 112 S.Ct. at 2897 . After discussing the subsequent evolution of the concept, the Court stated: [N]oxious-use logic cannot serve as a touchstone to distinguish regulatory “takings” — which require compensation— from regulatory deprivations that do not require compensation. A fortiori the legislature’s recitation of a noxious-use justification cannot be the basis for departing from our categorical rule that total regulatory takings must be compensated. If it were, departure would virtually always be allowed.

The South Carolina Supreme Court’s approach would essentially nullify Mahon’s affirmation of limits to the noncompensable exercise of the police power. Our cases provide no support for this: None of them ... employed the logic of “harmful use” prevention to sustain a regulation ... that ... wholly eliminated the value of claimant’s land. -U.S. at-, 112 S.Ct. at 2899 (emphasis added, citations omitted, footnote omitted). The Court, however, went on to acknowledge that when all use is prohibited, the State might be able to avoid payment of compensation if the status of the title prohibited a use, i.e., that which is prohibited could not be done in any event under the particular title. 12 The Supreme Court “reasoned that ⁵⁵⁴ under common-law ... no owner of land had any right to use his land in a manner harmful to others. Accordingly, a regulation ... preventing or abating such an unlawful use took nothing at all.... ” Washburn, Land Use Control, supra at 193 (footnote omitted).

The Lucas court, however, clearly refused to allow regulations that destroy all economic use to be “newly legislated or decreed.” Id. at 197. Justice Scalia concluded: Any limitation [regulations prohibiting all economical use of land] so severe cannot be newly legislated or decreed (witlu out compensation) but must inhere in the title itself, in the restrictions that background principles of the State’s law of property and nuisance already place upon land ownership. A law or decree with such an effect, must ... do no more than duplicate the result that could have been achieved ... under the State’s law of private nuisance____ [13] ⁵⁵⁵ — U.S. at — , 112 S.Ct. at 2899 (citations omitted, emphasis added). As we perceive the majority opinion in Lucas , it thwarted an attempt by South Carolina to circumvent the long-established rule that generally, governmental regulation pursuant to the police power cannot regulate property to the extent that it destroys all economically viable uses without compensation.

When discussing the development of land use and regulatory takings jurisprudence in Lucas , Professor Washburn in Land Use Control, supra at 188 (footnote omitted), noted that the Lucas majority “apparently created no new scheme or rule,” and, commenting on Justice Blackmun’s dissent which opined otherwise, stated, “As ... persuasive as Justice Blackmun’s dissent appears, its logic is not convincing.” Id. at 191. We agree. Lucas made no change in the law. Lucas blocked an attempt to change the law.

The pervasive image in the legal and environmental communities that Lucas somehow expanded the ability of landowners to avoid non-confiscatory regulation is, simply stated, just that — imagery, not substance. 14 Distinct Investment-Backed Expectations We shall briefly distinguish the concept of investment-backed expectations as it relates to taking of real property. 15 The modern flirtation with the never defined 16 concept of “investment-backed expectations” began as dicta in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 , 98 S.Ct. 2646 , 57 L.Ed.2d 631 (1978). That case involved the ⁵⁵⁶ application of New York’s Landmark Law to the landowners’ attempt to build a fifty-story tower in the air space over Grand Central Station. The property owners brought suit claiming that the application of the law to their property constituted a taking of their property interests without compensation. Specifically, they contended that the landmark law was different from zoning laws because zoning laws applied generally, whereas the landmark law only applied to specific properties.

The Supreme Court responded: It is, of course, true that the Landmark’s Law has a more severe impact on some landowners than on others, but that in itself does not mean that the law effects a “taking.” Legislation designed to promote the general welfare commonly burdens some more than others.... Similarly, zoning laws often affect some property owners more severely than others but have not been held to be invalid on that account. 438 U.S. at 134 , 98 S.Ct. at 2665. The Court discussed investment-backed expectations by unnecessarily separating it from the traditional “taking of all viable economic use” concept by stating that it was considering “[t]he economic impact of the regulation on the claimant ... the extent to which the regulation has interfered with distinct investment-backed expectations----” 438 U.S. at 124 , 98 S.Ct. at 2659. See also Land Use Control, supra at 170 (footnote omitted).

The Court, citing Goldblatt v. Hempstead, 369 U.S. 590, 594 , 82 S.Ct. 987, 990 , 8 L.Ed.2d 130 (1962), noted again that interference with investment-backed expectations was a relevant consideration. 438 U.S. at 124 , 98 S.Ct. at 2659. Distinct investment-backed expectations, however, are not mentioned in Goldblatt . The only statement in Goldblatt even remotely similar was that Court’s statement that “[ajlthough a comparison of values before and after is relevant ... it is by no means conclusive____” 369 U.S. at 594 , 82 S.Ct. at 990 . The Penn Central Court declined to separate the segments of the incidents of ownership to be compared under investment-backed expectation theories but merely noted, again as dicta, that the remainder of the property in any event permitted the owner ⁵⁵⁷ “to obtain a ‘reasonable return’ on its investment.” 438 U.S. at 136 , 98 S.Ct. at 2665.

Justice Rehnquist, now Chief Justice, dissenting, noted that the Penn Central majority was confusing different concepts: The Court does little to resolve these questions in its opinion. Thus, at one point, the Court implies that the question is whether the restrictions have “an unduly harsh impact upon the owner’s use of the property,” ... at another point the question is phrased as whether Penn Central can obtain “a ‘reasonable return’ on its investment,” ... and, at yet another point, the question becomes whether the landmark is “economically viable.” 438 U.S. at 149 n. 13, 98 S.Ct. at 2672 n. 13. The Court concluded that, in any event, even if the concept applied, the landowner’s remaining surface operations were sufficient to meet those expectations. 438 U.S. at 124-38 , 98 S.Ct. at 2659-66. The inclusion of “investment-backed expectations” language in traditional “taking” law was somewhat compounded by the use of its terms in Kaiser Aetna v. United States, 444 U.S. 164 , 100 S.Ct. 383 , 62 L.Ed.2d 332 (1979).

Kaiser Aetna involved the government’s attempt to require a private marina owner to afford public access because he had opened a channel to navigable waters. At one point, the Court, in its discussion, opined: “[T]he consent [of governmental officials to the dredging] ... can lead to the fruition of a number of expectancies embodied in the concept of “property” — ecpectancies that, if sufficiently important, the Government must condemn and pay for____” 444 U.S. at 179 , 100 S.Ct. at 393 (emphasis added). The “expectancy,” however, the Court referred to in Kaiser Aetna was not related to investment. As the Court held, it was the owner’s expectancy that as one of the incidents of ownership of real property, it had the right to exclude others from the property.

The Court held that to interfere with that right to exclude was a physical taking. 444 U.S. at 178-80 , 100 S.Ct. at 392-93. Thus, Kaiser Aetna is in no way an “investment-backed expectations” holding. ⁵⁵⁸ In Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434-35 , 102 S.Ct. 3164, 3175 , 73 L.Ed.2d 868 (1982), the Court held that the conduct there was an actual physical taking, as opposed to a regulation improperly affecting economic use. It noted, however, that “economic impact ... especially the degree of interference with investment-backed expectations, is of particular significance.” 458 U.S. at 426 , 102 S.Ct. at 3171 . Again, however, the Court found an actual physical taking, not an interference with investment rights in the absence of a physical taking. 458 U.S. at 434-35 , 102 S.Ct. at 3175 .

There have been several other cases where the Court has intermingled the terms “all viable economic use” and “investment-backed expectations” or has used them interchangeably. Among those cases is Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 493-99 , 107 S.Ct. 1232, 1246-49 , 94 L.Ed.2d 472 (1987), where the Court referred to the concepts of “economic use” and “investment-backed expectations.” The Court declined to find a taking under any theory but mentioned investment-backed expectations as a theory, distinguishing Keystone from Mahon . It noted that in Ma-hon, the entire bundle of mineral rights • had been extinguished, whereas the petitioners in Keystone were only required to leave less than 2% of their coal in place while at the same time they were permitted to mine virtually all of the coal in their mineral estates. 480 U.S. at 492-502 , 107 S.Ct. at 1245-51. In the often-cited case of Agins v. City of Tiburon, 447 U.S. at 255, 260 , 100 S.Ct. at 2138, 2141 , 65 L.Ed.2d 106 (1980), the Court decided the case on traditional taking