75-80 Props., L.L.C. v. Rale, Inc.

Decision Date24 August 2020
Docket NumberNo. 59, Sept. Term, 2019,59, Sept. Term, 2019
Citation236 A.3d 545,470 Md. 598
Parties 75-80 PROPERTIES, L.L.C., et al. v. RALE, INC., et al.
CourtCourt of Special Appeals of Maryland

Argued by Louis J. Rouleau (Ana L. Jara, Womble Bond Dickinson (US) LLP Washington, DC), on brief, for Petitioners.

Argued by Michele McDaniel Rosenfeld (The Law Office of Michele Rosenfeld, LLC Rockville, MD) and Kurt J. Fischer (Christine E. White, Venable LLP Baltimore, MD; John S. Mathias, County Atty. and Kathy L. Mitchell, Asst. County Atty. Frederick, MD), on briefs, for Respondents.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

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 order which 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, 215 A.3d 448 (2019). For the reasons set forth in this opinion, we affirm the judgment of the Court of Special Appeals.

I.Background
A. The Developers’ Development Applications

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." The application 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 public roads. Throughout the approval process, a local citizens opposition group, Residents Against Landsdale Expansion ("RALE"), actively participated in the public hearings.

B. The Ex Parte Communications: Commissioner Smith, the FACT Meeting, and FACT Letter

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—a little 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.

C. Final Board of County Commissioners’ Hearing on the Developers’ Application

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 read the names of each of the FACT directors (though not the names of the advisory board members, which included Commissioner Smith). When Commissioner David Gray asked whether each of FACT's directors had signed the letter, President Young responded that they had not, but that they had given their authority for the letter to be signed.

Counsel for RALE asked for an opportunity to cross-examine a representative of FACT on the letter. President Young responded that FACT was submitting a letter, not testifying, and accepted the letter into evidence over RALE's objection. President Young then called upon the Developers to rebut RALE's case. Counsel for the Developers emphasized the importance of the FACT letter and its contents, stating that "FACT might be the most apolitical organization in Frederick County," that "FACT doesn't care where or when land gets developed," and that "FACT cares strictly and solely about funding for transportation."

At the end of the meeting, the Board voted to approve the PUD, the DRRA, and the APFO LOU by a vote of 4-1. The Commissioners signed the operative documents on May 29, 2014.

Even though the effect of the proposed Monrovia Town Center on regional transportation facilities, and in particular MD Route 75, was a hotly contested issue, Commissioner Smith did not disclose prior to the Board of County Commissioners’ vote on April 23, 2014 that he attended the FACT meeting on April 14 and that he provided detailed arguments to FACT in support of the Developers’ application, which were then included in the FACT letter.

On June 3, 2014, a few days after the PUD, the DRRA, and the APFO LOU took effect, a local newspaper reported that most of the FACT members, including its president, had not seen the letter before it was sent, nor had the members voted on the correspondence or discussed its contents as a group. The newspaper reported that two FACT directors, Michael Proffitt and Michael Smariga, collaborated to...

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