Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 111717 MDCA, 13

Docket Nº:13
Opinion Judge:Watts, J.
Judge Panel:Barbera, C.J.Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.
Case Date:November 17, 2017
Court:Court of Appeals of Maryland




No. 13

Court of Appeals of Maryland

November 17, 2017

          Argued: October 10, 2017

         Circuit Court for Frederick County Case No. 10-C-14-003828 AA

          Barbera, C.J.Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.


          Watts, J.

         This case involves a Development Rights and Responsibilities Agreement ("DRRA"), which is governed by Md. Code Ann., Land Use (2012) ("LU") §§ 7-301 to 7-306 ("the DRRA statute"), and is defined as "an agreement between a local governing body and a person having a legal or equitable interest in real property to establish conditions under which development may proceed for a specified time." LU § 7-301(b). A "local governing body, " in turn, "means the legislative body, the local executive, or other elected governmental body that has zoning powers under this division." LU § 7-301(c). The purpose of a DRRA is to allow developers and local governing bodies, such as a county, to negotiate terms and conditions under which development may occur. A DRRA serves to streamline the various approval processes that must occur for a complex development project. To that end, one of the key aspects of a DRRA is controlled by the "freeze provision" of the DRRA statute, LU § 7-304(a), which permits parties to agree to freeze certain laws, rules, regulations, and policies as of the time of the execution of the DRRA. LU § 7-304(a) provides: "Except as provided in subsection (b) of this section, the local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to an agreement shall be the local laws, rules, regulations, and policies in force at the time the parties execute the agreement."1 The effect of the freeze provision is that developers are able to move forward, with certainty regarding the applicable laws, with development projects that may extend over a long period of time.

         Importantly, pursuant to LU § 7-303(a), to be valid a DRRA must contain certain requirements. And, like any other contract, a DRRA must be supported by consideration. In this case, we decide whether a DRRA must be supported by "enhanced public benefits" to be valid-i.e., whether a DRRA must confer an enhanced public benefit to the county, and whether the DRRA at issue is supported by adequate consideration.2 We hold that, based on the plain language and legislative history of the DRRA statute, as well as relevant case law, to be valid a DRRA is not required to confer an enhanced public benefit3 on a county. In other words, there is no evidence in the DRRA statute, its legislative history, or case law demonstrating an intent to require an enhanced public benefit as part of a DRRA. And, we hold that the DRRA at issue in this case is not required to confer any enhanced public benefit to the county, and is supported by sufficient consideration. Accordingly, we reverse the judgment of the Court of Special Appeals.


         This case arose under the following circumstances. Lillian C. Blentlinger, LLC and William L. Blentlinger, LLC, Petitioners, own two parcels of land ("the Property") in Frederick County, Maryland ("the County"), Respondent, totaling approximately 279 acres. The Blentlinger family farmed the Property for generations before deciding to explore the possibility of developing the Property for other uses. Since 1959, the Property had been zoned for agricultural use. In 2006, for the first time, the Property was designated for Low Density Residential ("LDR") land use as part of the 2006 New Market Region Plan. Being designated for LDR land use permits a property owner to apply for a Planned Unit Development ("PUD"). Frederick County Code (2014) ("FCC") § 1-19-10.500.2(A) provides, in pertinent part, that a "PUD District may only be established where the tract of land receiving the PUD District has a County Comprehensive Plan Land Use designation of [LDR], Medium Density Residential, or High Density Residential[.]" A PUD is a "floating zone[] established to provide for new development and redevelopment within identified growth areas that result in an integrated mixture of commercial, employment, residential, recreational, civic and/or cultural land uses as provided within the appropriate Frederick County Comprehensive, Community, or Corridor Plan." FCC § 1-19-10.500.1.

         Sometime in 2007, however, the Frederick County Board of County Commissioners ("the BOCC")4 removed the Property's designation for LDR land use. During the 2008 update of the New Market Region Plan, the Property's designation was changed to agricultural/rural. During the 2010 Comprehensive Plan update, the Property's designation remained agricultural/rural. With the 2012 Comprehensive Plan, the Property's designation was changed back to LDR, and the Property was included in the Linganore Community Growth Area. Since 2012, the Property has been designated for LDR land use.

         On February 25, 2014, after the Property had been re-designated for LDR land use, Petitioners filed an application to rezone the Property from agricultural to PUD zoning as well as a Phase I Concept Plan. Petitioners proposed developing the Property to have 720 residential dwelling units, including a mix of single-family homes and townhomes, and included an approximately twenty-five-acre site for a future middle school. On March 11, 2014, Petitioners filed an application or petition for a DRRA, and included a draft DRRA to be entered into between Petitioners and the BOCC. The DRRA petition incorporated by reference the PUD application and the Phase I Concept Plan. In a letter dated May 5, 2014, Jim Gugel ("Gugel"), the Planning Director for the Frederick County Planning and Development Review Department, advised Petitioners that, on April 15, 2014, the BOCC "accepted" the DRRA petition.

         On July 30, 2014, at a public hearing, the Frederick County Planning Commission ("the Planning Commission") unanimously voted (five to zero, with two members absent) to recommend the approval of the application to rezone the Property from agricultural to PUD. On October 8, 2014, Planning Commission staff recommended that the "Planning Commission find that the location, character, and extent of the proposed [DRRA] for the [] Property are consistent with the County Comprehensive Plan." Also on October 8, 2014, at a public hearing, the Planning Commission reviewed the draft DRRA, and, in accordance with its staff's recommendation, voted to find the draft DRRA consistent with the Frederick County Comprehensive Plan. On October 22, 2014, Gugel and an Assistant County Attorney issued a staff report recommending that the BOCC review the proposed DRRA "and any conditions related thereto in deciding whether to approve or deny the [] DRRA."

         On November 6, 2014, the BOCC conducted a public hearing on the PUD application and the DRRA, and witnesses testified and were subject to cross-examination. At the hearing, members of the public and counsel for Cleanwater Linganore, Inc., RALE Inc., Nikki Chauvin, Jimmy D. Duffy, Joyce A. Duffy, Paul D. Garcia, Tracy E. Garcia, Dang Mindte, Carrie Payne, Pamela Pennington, Carol Swandby, Reggie Wade, and Patricia Wells (collectively, "Cleanwater"), Respondents, cross-examined witnesses and provided public comment. During the hearing, the BOCC voted four-to-one to approve the PUD rezoning application, but limited the total unit count to 675 residential dwelling units, including 500 single-family homes and 175 townhomes, 5 on the condition that no building permit for the construction of a residence could be obtained before January 1, 2020.

         As to the DRRA, during the hearing, Cleanwater's counsel questioned Petitioners' counsel about any "greater public benefits" that the DRRA offered, and the following exchange occurred: [CLEANWATER'S COUNSEL]: [W]ould the applicant please explain what greater public benefits the DRRA provides above and beyond those that would be otherwise obtainable absent the DRRA?

[PETITIONERS' COUNSEL]: A certainty that the project would not lose zoning, wouldn't lose density, wouldn't lose its comprehensive plan, a certainty as to what -- how the development will proceed in terms of the laws that are in effect when it goes to Phase I and in subsequent years.

You know, all of that is certainly public benefit, and that's the whole reason why, or one of the main reasons why these DRRAs are available to localities within the state.

[CLEANWATER'S COUNSEL]: And what you described certainly would reflect the certainty that the property owner would achieve as a result of the DRRA, but what are the greater public benefits in terms of infrastructure or other --

[PETITIONERS' COUNSEL]: I mean, it's one and the same. That's the argument. I mean, how is it to the greater good or how is it to public benefit, and by public meaning not just a property...

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