Gail B. Litz, the former owner of polluted Lake Bonnie, is getting another chance to argue for relief from the state of Maryland and Caroline County.
In September, Maryland’s highest court ruled unanimously that the lower courts erred when they refused to hear the merits of the case Litz vs. the Department of the Environment et al. on the grounds that it had been filed too late, and remanded the case to the Court of Special Appeals for continued argument on other issues.
It has yet to be determined if the case will go back to circuit court for trial.
The case began in 2010 when Litz sued the state and the town of Goldsboro seeking $7 million in damages after she lost her farm, campground and the 28-acre lake to foreclosure. The lake, once a popular feature at the campground, had been closed since 1995, when the health department deemed it unsafe for swimming because of pollution from failing septic tanks in nearby Goldsboro. The following year, the Maryland Department of the Environment entered into a consent agreement with Goldsboro. Under the order, Goldsboro committed to build a sewage treatment plant or face fines of $100 per day.
But Goldsboro never built the plant, and the state never fined the town. Only now, 18 years after Lake Bonnie was closed, is the town beginning to hook up to a sewage plant in Greensboro.
In Litz’s suit, her attorneys, Phil Hoon and G. Macy Nelson, filed claims against the town and the county — for trespassing and nuisances and the inverse condemnation of Litz’s land. They argued the failure to end the pollution of Lake Bonnie, which resulted in the loss of the entire property, amounted to the government taking, or condemning, the value of the entire property.
The arguments were never heard in court. Attorneys for the state persuaded the lower courts not to consider Litz’s suit, saying she had waited too long to file it.
The state and the county successfully argued in the lower courts that Litz knew, or should have known, that the lake was in dire straits as far back as 1995, and should have filed any actions then, within three years of suffering a loss.
The Court of Appeals rejected that argument. It ruled that the clock had not run out on her claims of inverse condemnation, negligence and trespass. Losing her property to foreclosure, the court ruled, was a new taking, one that started the three-year clock anew.
“There may have been a time before the three years prior to the filing of Litz’s Complaint when it became clear that the first taking caused by the pollution became permanent or stabilized,” the judges wrote. “Even if this initial partial taking is time-barred, however, a reasonable trier of fact could conclude that the final, complete taking of Litz’s property occurred in May 2010, and is not time-barred by the three-year statutory period.”
The court agreed that the clock had run out for a nuisance claim.
The state never disputed that the failing septics caused Litz’s problems, but it said it wasn’t responsible, that it had no mechanism to force the town to pay for improvements it could not afford.
Goldsboro’s attorneys also argued that the town wasn’t responsible, because private residents owned the failing septics, not the town. Wastewater and stormwater flowed from the homes into two drainage ditches, which connected to two public streams and then flowed into Lake Bonnie. The lake flows into the Choptank River near its headwaters.
For Litz, who has since moved in with her grandchildren in Florida, the news was the answer to many prayers.
“I’m relieved, I’m happy, I’m overjoyed, I’m thankful. All of those things. I finally get my day,” she said.
But Steve Johnson, the assistant attorney general for the MDE, said the victory was a narrow one, and he has no plans to settle.
“As far as the state is concerned, there will not be any settlement discussions. It would bankrupt the state if there were a viable claim here,” he said. “There are a lot of people who suffer from the affects of pollution. The state can’t pay all those people harmed by pollution. It just can’t do it.”
Johnson said the department has discretion over which consent orders it chooses to enforce, and it could not force Goldsboro to pay for upgrades. It was, he said, an “impossible situation.”
Still, he said, “maybe you don’t enter into a consent order with a town that you know can’t afford to build a sewage treatment plant.”
Whatever happens, Litz can never get back what she lost. A local man bought the lake after the bank foreclosed, paying just $364,000 for a 140-acre property. On the recently created Lake Bonnie Facebook page, Litz has posted a photo of her at the lake on her last day, gazing at the trees and the water. Her son took it as he went to say goodbye.
But Litz holds out hope that the case does force changes at the MDE — not just for her sake, but for her former neighbors and all of the many good friends who spent summers on her beloved lake and may have been exposed to harmful elements.
“I hope they are required to follow through on protecting the people, and if they put an order in, they have to enforce it,” Litz said. “They’ve done the town of Goldsboro a terrible disservice.”