75-80 Props., LLC v. Rale, Inc.

• Decision Date: 29 August 2019
• Docket Number: No. 1689, Sept. Term, 2017,1689, Sept. Term, 2017
• Citation: 215 A.3d 448,242 Md.App. 377
• Parties: 75-80 PROPERTIES, LLC, et al. v. RALE, INC., et al.
• Court: Court of Special Appeals of Maryland

242 Md.App. 377

215 A.3d 448

75-80 PROPERTIES, LLC, et al.

v.RALE, INC., et al.

No. 1689, Sept. Term, 2017

Court of Special Appeals of Maryland.

August 29, 2019

Argued by: Deborah J. Israel (Paul A. Kaplan, Louis J. Rouleau, Ana L. Jara, Womble, Bond, Dickinson, LLP, on the brief, Washington, D.C., and C. Gregory Abney, Rockville, MD, on the brief), for Appellant.

Argued by: Michele McDaniel Rosenfeld, Rockville, MD (Kurt J. Fischer, Christine E. White, Venable, LLP, Baltimore, MD and John S. Mathias, County Attorney, Kathy L. Mitchell, Frederick, MD), on the brief, for Appellee.

Panel: Meredith, Arthur, Beachley, JJ.^*

Arthur, J.

Under a special statutory regime that governs certain administrative decisions affecting land use in Frederick County, a member of the County's governing body must disclose ex parte communications with any "individual" concerning a pending application, during the pendency of the application. If a court finds that a member of the governing body failed to disclose such a communication, the court must remand the case to the governing body for reconsideration.

In this complex and unusual case, the Circuit Court for Frederick County found that a former member of the Board of County Commissioners had engaged in an undisclosed ex parte communication regarding a pending application to rezone approximately 400 acres of land during the pendency of the application. The court remanded the case to the governing body, the new Frederick County Council, for reconsideration. On reconsideration, the County Council decided to require the applicants to recommence the process of applying for a change in zoning. When the applicants refused to submit a new application, the County Council asked the court to take such action as it deemed necessary to permit a new application to be heard. The court granted the Council's request, vacated the prior approvals, and remanded the case to the Council.

The applicants appealed. We shall affirm.

BACKGROUND FACTS

In November 2012, Payne Investments LLC and 75-80 Properties LLC (collectively, the "Developers") filed an application for a zoning map amendment for more than 400 acres of land near the community of Monrovia in southeastern Frederick County. The application requested that the land, which was zoned for agricultural purposes, be rezoned to permit a planned unit development or "PUD" with 1500 residential units. The development was to be called "Monrovia Town Center."

When they applied for the zoning map amendment, the Developers filed an application for a Development Rights and Responsibilities Agreement or "DRRA," under which the PUD zoning would remain in place notwithstanding any subsequent changes in the laws, regulations, or policies regarding the use of the real property or the density or intensity of the development on it. See Maryland Code (2012), § 7-304(a) of the Land Use Article. In addition, the Developers requested an Adequate Public Facilities Ordinance Letter of Understanding ("APFO LOU"), which would define the public facilities (such as road improvements and sewer facilities) that they would be required to construct to satisfy the requirements of Frederick County's Adequate Public Facilities Ordinance.

In November 2013, the Frederick County Planning Commission recommended the approval of the PUD and found that the draft DRRA was consistent with the County's Comprehensive Plan.

After 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, and on March 28, 2014, the Planning Commission recommended the approval of a revised plan.

In April 2014, the Board of County Commissioners held a total of four public hearings concerning the PUD, the DRRA, and the APFO LOU for Monrovia Town Center. There was considerable public opposition to the proposed development, much of it focused on traffic safety and the adequacy of the local roadways.

On April 14, 2014, before the fourth and final hearing, Commissioner C. Paul Smith attended a public meeting of an organization called Frederick Area Committee for Transportation or "FACT." FACT was composed of members of the Frederick County business community and representatives of local government. It was formed to facilitate, support, and encourage transportation improvements in Frederick County. Commissioner Smith was the Board of County Commissioners' representative on FACT's Advisory Board. FACT's directors included Michael Smariga, a retired principal of the civil engineering firm that the Developers had engaged to pursue the application; Mr. Smariga's son was involved in pursuing the Developers' application.

At the FACT meeting, Commissioner Smith argued that the Developers' proposed improvements to the nearby highways (Routes 75 and 80) would benefit all residents in that area of the County. The Commissioner's arguments later reappeared, without attribution, in a letter, on FACT letterhead, that was signed by FACT's secretary and sent to the Board of County Commissioners.

The Board of County Commissioners received the FACT letter by email at 2:41 p.m. on April 23, 2014, a little more than three hours before the beginning of the final public hearing on the Developers' application. The email, from an employee of the Office of the County Manager, described the letter as "FACT's opinion."

Toward the end of the ensuing hearing, after 140 pages of testimony, the President of the Board of County Commissioners, Blaine Young, read the FACT letter into the record and named its signatory (FACT's secretary, Michael Proffitt). The President then read the names of each of the FACT directors (though not the names of the members of the Advisory Board, which included Commissioner Smith). When Commissioner David Gray asked whether each of FACT's directors had signed the letter, the President responded that they had not, but that they had given their authority for the letter to be signed.

Although the FACT letter reiterated the arguments that Commissioner Smith had made at the FACT meeting nine days earlier, the Commissioner did not disclose that those arguments had originated with him.

Counsel for RALE, Inc., an organization that opposed the Developers' application, asked for an opportunity to cross-examine a representative of FACT. The President responded that FACT was "not testifying," but was "submitting a letter." He accepted the letter into evidence over RALE's objection.

When the hearing continued, the Developers presented their rebuttal case. As part of that case, the Developers argued 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 hearing, the Board of County Commissioners 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.

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; that Commissioner Smith had continued to discuss his arguments with Mr. Smariga after the FACT meeting ended; that two of FACT's directors drafted the letter at Commissioner Smith's request; that Commissioner Smith said that he had seen a draft version of the letter; and that the members of FACT did not vote on the correspondence or discuss its contents as a group. At about the same time, FACT submitted a second letter in which it backed away from the earlier letter, labelling it "public comment" that was "not to be considered evidence."

RALE and others filed a petition for judicial review of the approval of the PUD. In one argument in support of its petition, RALE pointed to some of the reported irregularities surrounding the FACT letter. In addition, RALE subpoenaed Commissioner Smith, Mr. Proffitt (the signatory of the FACT letter), and Ronald Burns (the County's traffic engineer) to testify at the hearing on the petition. The County and the Developers moved to quash the subpoenas.

At a hearing on the motion to quash on January 26, 2015, RALE argued that under Public Service Comm'n v. Patuxent Valley Conservation League , 300 Md. 200, 214, 477 A.2d 759 (1984), it may take testimony about an administrative decisionmaker's mental processes if it can make a strong showing of fraud or extreme circumstances that occurred outside the scope of the administrative record. RALE also argued, among other things, that Commissioner Smith had "orchestrated" the creation of the FACT letter – i.e., that he had participated in the creation of evidence in an administrative proceeding in which he was one of the quasi-judicial decisionmakers. In an order dated January 27, 2015, the circuit court granted the motion to quash the subpoenas on Mr. Proffitt and Mr. Burns, but denied the motion to quash the subpoena on Commissioner Smith.

The County, the Developers, and Commissioner Smith moved the court to reconsider the order denying the motion to quash, while RALE moved the court to remand the case to the newly constituted Frederick County Council.¹ In support of its motion to remand, RALE relied on Md. Code (2014), §§ 5-857 to - 862 of the General Provisions Article ("GP"), the special provisions for Frederick County in the Maryland Public Ethics Law. In particular, RALE argued that Commissioner Smith had engaged in undisclosed ex parte communications concerning the Developers' application, in violation of GP § 5-859(b).² Consequently, RALE argued, the court was required to "remand the case to the governing body for reconsideration." GP § 5-862(b).

After a hearing on March 10, 2015, the circuit court issued an order in which it remanded the Developers' application and the related approvals to the County Council. The court based its order on the following...