In the next few months, Maryland's highest court will decide whether the case of an Eastern Shore woman who lost her home and business as a result of septic tank pollution from a nearby town will go to trial.
Gail B. Litz, a Caroline County native who now lives in Florida, owned and operated Lake Bonnie Campgrounds, a family vacation destination on a 28-acre lake about two miles south of Goldsboro. In 1995, the county health department ordered the lake closed to swimming because of contamination from fecal coliform that was entering the lake through two public drainage ditches that captured Goldsboro residents' waste and stormwater. The following year, The Maryland Department of the Environment and Goldsboro entered into a consent order with the state. In that order, the state asserted the septic systems were failing and outlined a schedule for the town to construct and connect residents to a public sewer system.
But Goldsboro never built the plant, nor took any action to correct the failing septic systems, claiming it was too expensive for residents of the town's 84 homes. The MDE, despite having the power to levy fines of $100 a day if Goldsboro did not comply, never fined or otherwise took enforcement action against the town or its residents.
In 2010, as she faced foreclosure on her family's beloved property, Litz filed a lawsuit against the town and the state. Her complaint alleged that the town and the county created a nuisance that condemned her property, and that the MDE could have stopped the pollution, but didn't. She asked for $7 million in damages — enough, she said, to leave something to her grandchildren.
Attorneys for the state and the town never disputed that the septic tank pollution fouled the lake and contributed to Litz losing property that had been in her family since the 1950s. They simply argued that Litz had waited too long to file her action. The statute of limitations on permanent nuisance claims is three years; the state and the town said the nuisance was created in 1996, when the town entered into its consent decree.
Two lower courts agreed with that argument. But Litz's lawyers, Phil Hoon of Chestertown and Macy Nelson of Towson, have argued that the pollution is ongoing. They implored the highest court to review Litz's case so she could have a trial in circuit court based on the case's merits. The court only hears about 7 percent of the cases it receives; it elected to hear Litz's.
On May 7, Maryland's Court of Appeals heard arguments on why the case should go to trial. Seven judges wearing red robes questioned the lawyers on whether the pollution that ruined Litz's lake could have been abated and was thus a temporary nuisance or killed the lake for good and was a permanent one. If the nuisance is considered temporary, under the law Litz is entitled to go back three years. She could seek damages from 2007 until 2010, when she filed the suit.
"If this nuisance is a permanent nuisance, and it was created in 1996, then she's done, no question," Nelson said. "But it is most certainly a temporary nuisance."
A judge asked Nelson what he would consider a permanent nuisance if one stretching back more than two decades was still temporary. The lake's problems and the septic pollution were known to both the family and county officials for years before the parties signed the consent order.
Nelson responded: "Is it abatable? Can it be stopped? The consent order with the state is proof that it can be abated."
A new sewage plant, Nelson said, would have stopped the pollution from the septics. With no more bacteria entering the lake, it would flush out over time. Had the state enforced its agreement, he said, the lake would have gotten cleaned up.
Nicole Nesbitt, who represented Goldsboro, disagreed. "The likelihood of abatability was nil," she told the judges.
Nesbitt also said it was "private people" who caused the pollution to Litz's lake, not the town as an entity. The town's only duty under the consent order, she said, was to "go study" its pollution problem. When it concluded it couldn't afford a system, she said, that was the end of its responsibility.
Steve Johnson, the assistant attorney general representing the MDE, said Litz was simply trying an end-run around the statute of limitations by claiming her damage began in 2010, when she lost her home, instead of in 1996, when the state entered into the consent order.
A judge asked if Litz had a reasonable belief that the department would enforce the consent order. Johnson responded that the department had "discretion" on what orders it decided to enforce.
"Aren't those factual issues with respect to the good faith of the state?" the judge asked. Johnson answered: "There was no promise to the defendant that we would solve the problem."
The judge persisted, asking if the state had the authority to enforce the agreement. Johnson responded that it did.
Litz told the Bay Journal that she waited to sue because she believed the state would enforce the order. She and her father both looked for attorneys to take the case in the years after the lake's closure, but couldn't find any. They also approached several environmental groups, who declined to become involved. Determined to address the problem, Litz became involved with the push to bring sewer to the community, serving on a local committee. She did everything possible to keep the campground open, she said, but eventually people stopped coming to a lake where they couldn't swim or fish.
After the court hearing, Johnson said he felt sorry for Litz, just as he did for children in Baltimore city who were poisoned by lead paint violations and fishermen on the Eastern Shore who lost their livelihood because of dirty rivers. But, he said, the state can't be expected to compensate those people, and neither should it have to pay Litz.
"As a matter of law, that just can't be. MDE cannot be held responsible," he said. "We have to have the discretion to enforce our agreements. We can't have private parties suing us for compensation."
The judges have no schedule for making a decision. Hoon said he hopes to hear something by Labor Day.
For Litz, the highest court's ruling is her last chance for justice in a case that has shaken her faith in the government's role to protect its citizens from pollution.
"The state and the county just dropped the ball, and they allowed this to happen. Why do you say you're going to fine somebody, and not do it?" she said. "They cannot tell me that money couldn't have been found. If this had been St. Michael's, or some town on the Western Shore, and not Goldsboro, they would have found the money."