Litz v. Maryland Department of the Environment: Maryland’s Decision That Inaction Can Support an Inverse Condemnation Claim

Kerri Morrison

In Litz v. Maryland Department of the Environment, the Court of Appeals of Maryland recognized a new basis for inverse condemnation claims. The case arose following the contamination of the petitioner's lake, allegedly due to the failure of local septic systems. The Court of Appeals held that a governmental entity's inaction, when that governmental entity had an affirmative duty to act, can serve as a basis for an inverse condemnation claim. This holding is somewhat controversial because only a few states have recognized that inaction can form the basis of an inverse condemnation claim. In contrast, some states have expressly held that an inverse condemnation claim requires government action. The holding of the Court of Appeals of Maryland, however, is justified as it: (1) conforms with the reasoning used by some courts in other jurisdictions; (2) supports the policy objectives underlying takings jurisprudence; and (3) can be limited in the future to avoid potentially harmful consequences, such as increasing litigation against government entities or increasing government liability for failures to act.