75-80 Props., L.L.C. v. Rale, Inc.
| Decision Date | 24 August 2020 |
| Docket Number | No. 59,59 |
| Parties | 75-80 PROPERTIES, L.L.C., et al. v. RALE, INC., et al. |
| Court | Court of Special Appeals of Maryland |
STATUTORY INTERPRETATION - FREDERICK COUNTY ETHICS ORDINANCE APPLICABLE TO ETHICS VIOLATIONS DURING DEVELOPMENT APPROVAL PROCESS. Under the plain language of the Frederick County Ethics Statute, Maryland Code, General Provisions Article ("GP") § 5-862, the circuit court was not required to undertake a procedural due process analysis and determine whether the violation of the ethics statute denied an aggrieved party procedural due process within the underlying zoning proceeding. Under the plain language of the statute, the circuit court is required to determine, within the context of a judicial review proceeding, whether a violation of the Ethics Statute occurred. If the circuit court makes a factual determination that a violation occurred, its work is done, and the court "shall" remand the matter to the Frederick County governing body for "reconsideration."
The Ethics Statute does not provide any parameters or limitations on Frederick County's reconsideration proceedings on remand. Accordingly, the Frederick County Council has the authority to determine the scope of the proceeding. After the circuit court determined that a violation of the Ethics Statute occurred, and after the Frederick County Council determined that it would conduct a de novo hearing on the Developers' application, the circuit court did not err in vacating the development approvals in connection with its remand order, given the Developers' refusal to participate in the reconsideration proceeding.
DOCTRINE OF ZONING ESTOPPEL. The Court of Appeals declined to recognize or apply equitable estoppel under the facts of this case. Assuming (without deciding) that the Court recognizes the doctrine, the Developers did not demonstrate the elements of good faith and substantial reliance on the development approvals where the actions alleged to have been made in reliance on the development approvals consisted of either: prospective concessions or agreements negotiated in anticipation of receiving discretionary final development approval; or actions undertaken at their own risk after receiving final development approval during the pendency of a judicial review proceeding. The Court also held that there was no ambiguity in the definition of ex parte communication that would warrant the application of principles of equitable estoppel.
Circuit Court for Frederick County
Case No.: 10-C-14-001899
Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ.
Opinion by Booth, J.
This case requires that we examine a special provision of the Maryland Public Ethics Law, codified in the General Provisions Article ("GP") of the Maryland Code at §§ 5-857 - 5-862, that applies when the Frederick County governing body is undertaking review of a zoning or development application. Under the statute, a member of the governing body must disclose ex parte communications with any individual concerning a pending zoning or development application during the pendency of the application. If a violation of the statute occurs, the Frederick County Ethics Commission or any aggrieved party of record has standing to raise the violation within a petition for judicial review by the circuit court. If the circuit court determines that a violation has occurred, the language of the statute mandates that the circuit court remand the proceeding to the Frederick County governing body for "reconsideration."
In this case, upon consideration of petitions for judicial review filed by a local citizens group that opposed the Developers' application, the Circuit Court for Frederick County found that a former member of the Frederick County Board of Commissioners had violated the ethics statute by engaging in an ex parte communication, during the pendency of a proceeding to apply a floating zone to an approximately 400-acre property. The circuit court remanded the case to the Frederick County Council for reconsideration. The Frederick County Council decided to reconsider the Developers' rezoning and development application in a de novo proceeding. Upset with the Council's decision that the application be considered anew, the Developers refused to participate. Having reached an impasse, the Frederick County Council requested that the circuit court enter an appropriate orderwhich would allow the Council to proceed with a de novo reconsideration proceeding. As part of its remand, the circuit court vacated the original development approvals.
The Developers appealed to the Court of Special Appeals. In a reported opinion, the Court of Special Appeals affirmed the judgment of the circuit court. 75-80 Props., LLC v. RALE, Inc., 242 Md. App. 377, 416-17 (2019). For the reasons set forth in this opinion, we affirm the judgment of the Court of Special Appeals.
In November 2012, Petitioners Payne Investments, LLC and 75-80 Properties, LLC (collectively "the Developers") filed an application to rezone approximately 450 acres of land in southeastern Frederick County from its current agricultural designation1 to allow for a planned unit development ("PUD"),2 to be called the "Monrovia Town Center." Theapplication sought approval for the construction of 1,510 residential units. Along with the PUD rezoning application, the Developers filed an application for a development rights and responsibilities agreement ("DRRA"), to contractually secure the zoning and development approvals for a term of years, pursuant to Maryland Code, Land Use Article ("LU") § 7-304(a). Additionally, the Developers requested an Adequate Public Facility Ordinance Letter of Understanding ("APFO LOU") which would define the public facilities (such as road improvements and sewer facilities) that would be required to be constructed to satisfy the County's Adequate Public Facilities Ordinance (the PUD, DRRA, and APFO LOU are sometimes collectively referred to as the "Development Approvals").
In November 2013, the Frederick County Planning Commission ("the Planning Commission") voted to recommend that the Board of County Commissioners approve the PUD and found that the draft DRRA was consistent with the County's Comprehensive Plan.
After holding three public hearings in January 2014, the Board of County Commissioners approved the PUD, subject to a number of conditions. The Developers accepted the conditions. In March 2014, the Planning Commission recommended approval of a revised plan.
In April 2014, the Board of County Commissioners held a total of four public hearings concerning the Development Approvals for the Monrovia Town Center. The public hearings were well-attended, and there was considerable public opposition to the proposed development. Much of the public opposition focused on traffic safety and adequacy of publicroads. Throughout the approval process, a local citizens opposition group, Residents Against Landsdale Expansion ("RALE"), actively participated in the public hearings.
On April 14, 2014, before the Board's final public meeting, Commissioner C. Paul Smith attended a public meeting of the Frederick Area Committee for Transportation ("FACT"). FACT is composed of representatives of the business community and the local government who have training or expertise in transportation issues. FACT's mission is to analyze the efficacy of and promote the development of transportation improvements in the County. Commissioner Smith was the Board of County Commissioners' representative on the FACT advisory board. FACT's advisory board also included Michael Smariga, a retired principal in the engineering firm engaged by the Developers to process the rezoning application. Michael Smariga's son, Christopher Smariga, was the lead engineer in creating and processing the application.
At the FACT meeting on April 14, 2014, Commissioner Smith spoke in favor of the proposed development, and argued that the improvements the Developers proposed to make to the nearby highways (MD Routes 75 and 80) would substantially upgrade the regional transportation network and benefit all the residents in that area of the County. The arguments that Commissioner Smith articulated in favor of the Developers' application ultimately were included in a letter purportedly from FACT to the Board of County Commissioners in support of the Developers' application. The FACT letter was sent to the Board of County Commissioners via electronic mail at 2:41 p.m. on April 23, 2014—alittle more than three hours prior to the beginning of the final public hearing on the Developers' application. Although Commissioner Smith's arguments were included in the letter, the arguments were not attributed to Commissioner Smith.
At the public hearing on April 23, the Board of County Commissioners considered public comment from numerous witnesses, including the county staff, the Developers, RALE representatives, and the public. Like the other public hearings concerning the Developers' application, testimony from the public again focused overwhelmingly on traffic safety and road adequacy concerns. One of the witnesses was RALE's traffic consulting engineer, who testified that the Developers' traffic study was flawed.
At the conclusion of all of the evidence, the Board of County Commissioners President, Blaine Young, introduced and read the entire FACT letter into the record, stating that the development of the Monrovia Town Center would provide "significant funding for improvements" in the Monrovia area, and that this "public-private partnership is the only likely scenario for any significant improvement at this point." After reading the FACT letter into the record and naming its signatory (FACT's secretary, Michael Proffitt), President Young then...
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