Constitutional -Challenges to county inaction fail

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The district court correctly granted the motion for judgment on the pleadings filed by Montgomery County, Maryland, and the planning commission because the commercial developer had no constitutional property interest to develop its land.


Pulte is a residential real estate developer. Between November 2004 and January 2006, Pulte purchased or contracted to purchase 540 acres of real property in Clarksburg, Maryland, which is located in Montgomery County.

Pulte submitted its water and sewer category change request application for review by the county and the Maryland-National Capital Park and Planning Commission in May 2009, along with a required filing fee. The county, however, has never acted on Pulte’s applicatio

In December 2012, Pulte submitted a Pre-Application Concept Plan to the commission as required by the County Subdivision Ordinance. The county and commission refused to meet with Pulte to discuss the plan and stopped responding to Pulte’s detailed letters and other communications.

In October 2013, the commission’s Montgomery County Planning Board submitted to the county a draft amendment that implemented a variety of regulatory changes which severely reduced the number of dwellings Pulte could build on its land and placed additional costly burdens on Pulte.

Following additional actions it perceived as an arbitrary and capricious targeting of its land, Pulte commenced a suit against the county and commission in state court in November 2014. The county removed the action to federal district court. After the parties had engaged in some discovery, but before any depositions had been taken or experts identified, the county and commission moved for entry of judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and the district court granted their motion. Pulte now asks us to reverse.


The district court held that Pulte could not prevail on its substantive or procedural due process claims because it had no constitutional property interest to develop its land under the 1994 master plan or to have its water and sewer category change request processed in light of the discretion reserved to the local authorities under the 1994 master plan. We agree.

We turn next to Pulte’s equal protection claim. Pulte has not alleged it was deprived of a fundamental right or subjected to discrimination based on a suspect classification. Therefore, we will uphold the distinctions drawn by the county and commission if they were “rationally related to a legitimate state interest.” Here, the county and commission provided rational reasons for treating Pulte’s land differently, and that is the end of our inquiry.

The district court also concluded that Pulte could not demonstrate that the actions of the County and Commission amounted to a compensable regulatory taking of Pulte’s property under the Fifth Amendment to the United States Constitution. The district court properly applied the applicable factors and concluded, in accord with past decisions of this court, that Pulte was unable to establish that the regulatory actions of the County and Commission amounted to a taking of Pulte’s property under the Fifth Amendment. We agree with the district court’s analysis and will affirm its ruling.

Finally, Pulte complains that the lower court erred in dismissing its claim under Article 19 of the Declaration of Rights of the Maryland Constitution. Pulte has alleged that the County and Commission violated Article 19 by actively preventing Pulte’s rights from vesting, thereby thwarting its due process claims. By delaying to act on Pulte’s water and sewer change application, Pulte argues that the appellees essentially immunized themselves from suit. Pulte contends that Article 19 is broader than the Due Process Clause, and that the lack of a constitutional property interest is irrelevant to an Article 19 claim. We can find no support for Pulte’s claim in Maryland jurisprudence. The district court correctly dismissed Pulte’s Article 19 claim.


Pulte Home Corporation v. Montgomery County, Maryland (Lawyers Weekly No. 001-172-18, 21 pp.) (James Jones, J.) Case No. 17-2112. Nov. 29, 2018. From D.Md. (Hazel, J.) Deborah Jean Israel for Appellants, Howard Ross Feldman for Appellees.

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