JUL IN THE COURT OF APPEALS OF MARYLAND ~''~~ SEPTEMBER TERM, No COA-PET LILLIAN C. BLENTLINGER, LLC, et al.

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1 IN THE COURT OF APPEALS OF MARYLAND SEPTEMBER TERM, 2017 No COA-PET ~''~~ JUL Bessie IVi. Decker, Cferk Court of Appeals of Maryland LILLIAN C. BLENTLINGER, LLC, et al., Appellants v. CLEANWATER LINGANORE, INC., et al., Appellees ON PETITION FOR CERTIORARI FROM TIC COURT OF SPECIAL APPEALS BRIEF OF APPELLEE FREDERICK COUNTY, MARYLAND Jour S. MaTxras, Couly~ Arrox~Y (JMATHIAS ~FREDERICKCOUNTYMD. GOV~ KATHY L. MITCHELL, ASSISTANT COUNTY ATTORNEY WINCHESTER HALL 12 EAST CHURCH STREET F1tEDExICK, MARYLAl~m TEL: (301) KURT J. FISCHER (KJFISCHER~a,VENABLE.COM) c~nustnre E. wxi~ (CEWHITE~a VENABLE.COM) VEN~LE LLP 210 W. PENNSYi,vANiA AvE1~luE Sui`rE 500 TowsoN, MAx~,arr~ 'TEL: (410) FAx: (410) i Y. COUNSEL FOR APPELLEES FREDERICS COUNTY, MARYLAND JULY 31, 2017

2 TABLE OF CONTENTS Page STATEMENT OF THE CASE... 1 QiJESTIONS PRESENTED... 1 STATEMENT OF THE FACTS THE COUNTY' S PUD ZONING PROCESS TIE COUNTY' S IMPLEMENTATION OF THE MARYLAND DRRA STATUTE... S 3. THE ZONING HISTORY OF THE PROPERTY THE BLENTLINGERS' APPLICATION FOR, AND THE COUNTY' S APPROVAL OF, PUD ZOIVING... 8 S. THE BLENTLINGERS' PETITION FOR, AND THE COUNTY' S APPROVAL OF, A DRRA T~ C~cu1T CotrRT DEclsiorr THE COURT OF SPECIAL APPEALS DECISION T~ Cou~vTY'S CHANGE OF POLICY REGARDING LONG-TERM DRRAS, WHICH FREEZE INTENSE DEVELOPMENT RIGHTS AND FORESTALL THE ADOPTION OF NEW LAWS AND POLICIES GOVERNING IMPACT FEES, TAXES, ENVIRONMENTAL PROTECTION, AND AFFORDABLE HOUSING STANDARD OF REVIEW ARGUIV~NT A DRRA MUST BE SUPPORTED BY ENHANCED PUBLIC BENEFITS THE BLENTLINGERS' DRRA IS NOT SUPPORTED BY AN ENHANCED PUBLIC BENEFIT: THE DRRA IMPOSES NO OBLIGATION ON THE BENTLINGERS NOT ALREADY IMPOSED BY THE PUD ORDINANCE, OR ANOTHER SOURCE OF LAW i

3 A. The Zoning Regulations Applicable to a Property in a PUD District are the Regulations Established in the PUD Ordinance Through the Zoning Process, Not the General Boundaries Set Forth in the County Code B. The Blentlingers' DRR.A Lacks an Enhanced Public Benefit: The DRRA Does Not Impose an Obligation on Them that Is Not Otherwise Required by Law '1~~E ABSENCE OF AN ENHANCED PUBLIC BENEFIT H~45 A PARTICULARLY ACUTE IMPACT ON THE RESERVED LEGISLATIVE POWERS OF THE COUNTY IN THE PRESENT CASE BECAUSE THE SCOPE OF THE BLENTLINGERS' DRRA EXCEEDS THAT AUTHORIZED BY OF THE LAND USE ARTICLE CONCLUSION ii

4 TABLE OF AUTHORITIES Pa e s Cases A Helping Hand, LLC v. Baltimore Ct~, 515 F.3d 356 (4th Cir. 2008)... 43, 44 Blentlin~er, LLC v. Cleanwater Lin~anore, 160 A.3d 546 (Md. 2017) Bollech v. Charles County, Maryland, 166 F. Supp. 2d 443 (D. Md. 2001)... 19, 20, 21, 22 Brandywine Enterprises v. County Council for Prince George's County, 117 Md. App. 525 (1997) Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129 (2000) Cleanwater Lin~anore, Inc. (Blentlinger) v. Frederick County, 231 Md. App. 620 (2017)...passim Cleanwater Linganore, Inc. (Casey) v. Frederick County, 231 Md. App. 373 (2016)... 17, 18 Hayford Ctv. People's Counsel v. Bel Air Realty Assocs. Ltd. P'shi~, 148 Md. App. 244 (2002) Hartford Fire Ins. Co. v. Estate of Sanders, 232 Md. App. 24 (2017)... 16, 17 Home Bldg. &Loan Assn v. Blaisdell, 290 U.S. 398 (1934) Horsey v. Horsey, 329 Md. 392 (1993) Howard Research &Development v. Howard County, 46 Md. App. 498 (1980)... 30, 31, 32 Inlet Associates v. Assatea~ue House Condominium, Assn., 313 Md. 413 (1988) iii

5 Kirk Corp. v. Village of Buffalo Grove, 618 N.E.2d 789 (Ill. App. Ct. 1993) Mayor and City Council of Balto. v. Crane, 277 Md. 198 (1976) Mayor and Council of Rockville et al. v. Rylyns Enterp., Inc., 372 Md. 514 (2002)... 25, 43 Mossbur~ v. Mont gofinery County, 107 Md. App. 1 (1995) O'Donnell v. Basler, 289 Md. 501 (1981) Powell v. Calvert' CountX, 368 Md. 400 (2002) Prince Geor ge s Cnty., Md. v. Sunrise Dev. Ltd. P'shi~, 330 Md. 297 (1993)... 5, 43 Queen Anne's Conservation Inc. v. Ct. Commis of Queen Anne's Cty., 382 Md. 306 (2004)...passim Riverwallc Alts., LLC v. Twigg, 396 Md. 527 (2007)... 44, 45, 46 Rouse-Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments for Prince Geor ge's Ct~, 138 Md. App. 589 (2001)... 25, 26, 32 Santa Margarita Area Residents Together v. San Luis Obispo County Board, 100 Cal. Rptr. 2d 740 (Cal. Ct. App. 2000)... 22, 23 United States v. Winstar Corp., 518 U.S. 839 (1996) Wheaton Moose Lode No v. Mont _ ~ofinery CountX, 41 Md. App. 401 (1979)... 26, 27 Statutes and Rules Frederick County Charter 305(~ Frederick County Code 1-6A-5.1(G) iv

6 Frederick County Code , 5, 25 Frederick County Code et ~c se.... passij~z Frederick County Code, Adequate Public Facilities Ordinance, 1-20 et sec... 11, 36 Frederick County Code 1-22 et ~c se Frederick County Code 1-25 et ~c se... 7, 12, 40, 41 Frederick County Code , 46 Md. Code Ann., Land Use ("DRRA Act") to passim U.S. Const., Art. I, Other Authorities 3 Ain. Law. Zoning (5th ed.)... 27, 28, 29 Bethany Rodgers, "Gardner to Lead County as First Executive," The Frederick-News Post, Nov. 5, 2014, https ://www. fredericknewspost. com/news/p olitics_and_government/ele ctions/gardner-to-lead-county-as-first-executive/article_bd4cd927-f404-58b2-8e08-bad52fa90ce2.htinl... 14, 15 u

7 STATEMENT OF THE CASE On November 24, 2014, the Board of County Commissioners of Frederick County ("BOCC"): (1) enacted Ordinance No , which rezoned approximately 279 acres owned by Petitioners Lillian C. Bentlinger, LLC, and William L. Blentlinger, LLC (collectively, the "Blentlingers") to Planned Unit Development ("PUD") pursuant to delineated conditions and requirements, and (2) approved Development Rights and Responsibilities Agreement ("DRRA") No. 14-OS for the 279 acres. Respondents, Cleanwater Linganore, Inc., BALE, Inc., Nikki Chauvin, Jimmy and Joyce Duff, Paul and Tracy Garcia, Dang Mindte, Carrie Payne, Pamela Pennington, Patricia Wells, Carol, Swandby, and Reggie Wade (collectively "Cleanwater") filed a Petition for Judicial Review of these decisions in the Circuit Court for Frederick County, which affirmed the BOCC actions in a November 4, 2015 Opinion and Order. Cleanwater filed an appeal of the Circuit Court's decision regarding the DRRA to the Court of Special Appeals which reversed the Circuit Court in Cleanwater Linganore, Inc., (Blentlinger) v. Frederick County, 231 Md. App. 620 (2017), on grounds that the DRRA was invalid because the applicant had failed to provide enhanced public benefits to support the agreement. On May 9, 2017, this Court issued a writ of certiorari to review the Court of Special Appeals' decision. QUESTIONS PRESENTED 1. Is a DRRA adopted pursuant to to -307 of the Land Use Article required to include enhanced public benefits to the local governing body? 2. Did the DRRA for the Blentlinger property include enhanced public benefits, or

8 even adequate consideration, where each and ~ every commitment of the Blentlingers, including public infrastructure construction or dedication commitments, was required by the PUD Ordinance for the property or otherwise required by law? STATEMENT OF THE FACTS 1. THE COUNTY'S PUD ZONING PROCESS The provisions governing the County's Planned Development Districts are codified in Chapter 19 (Zoning), Division 5 (Planned Development Districts) of the Frederick County Code.l These provisions were amended, effective December 1, 2014, to reflect the form and structure of Charter goverrunent. The Planned Development District zoning procedures and substantive requirements were not changed. The County has two Planned Development Districts: Planned Unit Development ("PUD") and Mixed Use Development. The PUD District is a "floating zone" that can be established by the BOCC (now County Council) in designated growth areas. The purpose of the PUD District is to allow innovative community design through flexibility in the location and type of units on the property. PUD zoning affords much greater flexibility in the planning of a community than is permitted in traditional Euclidian zoning districts. The goal of the PUD District is to encourage a mixture of housing types and commercial and institutional uses and to promote continuity with existing development in the area and the integration and preservation of natural features and historic resources. The PUD District also provides flexibility to respond to inarlcet demands. See (Apx.9) 1 Hereinafter, unless otherwise indicated, all citations are to the County Code. 2

9 Sections and set forth general boundaries within which land use regulations may be developed for a PUD District. The PUD District inay be established only where the receiving land has a County Comprehensive Plan Land Use designation of Low, Medium, or High Density Residential (A). (Apx.9-10) Further, the receiving land must have a category of Planned Service or higher in the County Water and Sewerage Plan (C). (Apx.9) Additionally, under (A)(2), commercial uses are limited to "[t]hose uses permitted within the Village Center zoning district, and funeral homes." (Apx.12) Section (A)(3) provides that employment uses are limited to those permitted within the Office/Research Industrial zoning district. (Apx.13) Under (D)(1), the minimum open space and green area required is 30% for PUDs with a gross density of 3-6 dwelling units per acre, 35% for a PUD with a gross density of 6-12 dwelling units per acre, and 40% for a density of dwelling units per acre. (Apx.13) Section (H)(1) states that the maximum permitted density in the PUD District for land in which the receiving parcel is designated Low Density Residential ("LDR") in the Comprehensive Plan is 3-6 dwelling units per acre. (Apx.14) Setbacks and building height must be at least as stringent as provided in , but maybe established as more stringent in the development process. (Apx.14) Finally, under , as part of the PUD zoning process, the BOCC (now County Council) may require the developer to dedicate additional sites for parks, recreation facilities, and "other public facilities including schools, library services, or a fire and emergency medical service site to serve the proposed development." (Apx.16) 3

10 Although and establish general boundaries for the development of zoning regulations applicable in a parcel zoned PUD, the actual zoning regulations, including the location of uses, required open space or green space, and permitted density are established by the zoning process in which the County reviews Phase I Concept Plans for approval. Sections , , and set forth the zoning process for establishing the zoning regulations applicable to a PUD. This process culminates in the BOCC adopting a PUD ordinance codifying the zoning regulations applicable to the property. The initial steps of the PUD zoning process under (A)-(B) require the applicant to hold apre-application conference with the County staff and a neighborhood meeting. (Apx.10-11) After completing these tasks, the applicant must submit a Phase I Concept Plan that meets the requirements of (Apx.l l- 12) The Phase I concept plan must show the proposed location and types of uses, density, the location of roads, the location and amount of open space or green space and public infrastructure, and recreational amenities. Further, in the Phase I Concept Plan the developer must propose the public improvements and amenities including schools, fire and emergency facilities, parks, recreation facilities, and open or green space so that the determination of these requirements is made in the PUD approval process. See (Apx.11-12) Following submittal of the PUD application, the Community Development Division staff reviews it and submits a report to the Planning Commission (A)(1). (Apx.7) The Planning Commission holds a hearing and makes a 0

11 recommendation to the BOCC (now County Council) (A)(2). (Apx.7) The BOCC then holds a public hearing on the application and issues a decision denying or approving it with changes, requirements or conditions (B). (Apx.7) If the PUD District is approved, the BOCC adopts an ordinance in which the zoning regulations applicable to the PUD are established. The zoning regulations set forth in the PUD ordinance and approved Phase I Concept Plan include the location and nature of uses, density requirements, public facility dedication and construction requirements, recreational amenities, and open space or green space. In short, the approval of the PUD application and Phase I Concept Plan in the PUD ordinance for the property establishes zoning regulations applicable to the PUD. 2. THE COUNTY'S IMPLEMENTATION OF THE MARYLAND DRR.A STATUTE In Maryland, a property owner ordinarily does not obtain a vested right to a land use pursuant to the existing zoning on a property unless the property owner has begun substantial construction on an improvement in reliance on a valid building permit. Prince George's Cntv., Md. v. Sunrise Dev. Ltd. P'ship, 330 Md. 297, (1993). Under this vesting rule, a developer can make substantial investments on a major project only to have the local government change the zoning and prohibit the intended development. To address this situation, the General Assembly enacted the DRRA Act, Md. Code Ann. Land. Use ("LU") to -307, and authorized local governments to enter into DRRAs with property owners for the purpose of awarding early vested rights to developers to complete their projects under existing zoning. Cleanwater Linganore, Inc. (Blentlinger) v. Frederick Cnty., Md., (`Blentlinger"), 231 Md. App. 620, (2017)

12 (citing Maryland legislative history regarding the DRRA Act). From the government's perspective, although it is ceding reserved legislative powers, it has an opportunity to serve the public good by obtaining greater benefits than could otherwise be obtained under the traditional land development process. Relying on this Court's Opinion in Queen Anne's Conservation Inc. v. Ct. Corrnn'rs of Queen Anne's Ct~, 382 Md. 306 (2004), the Court of Special Appeals in Blentlinger, 231 Md. App. at , explained the purpose and effect of the DRRA statute as follows: DRRAs are attempts to balance "developers' and property owners' desires for a larger measure of certainty than that offered by proceeding to market through the traditional development processes, while risking the monetary investment to develop their property, against local governments' desire to receive greater public benefits on a snore predictable schedule than might otherwise be attainable through the traditional processes." Queen Anne's Conservation, Inc. v. Cty. Corrun'rs of Queen Anne's Cty;, 382 Md. 306, , 85 A.2d 325 (2004). The central provision of the DRRA statute, which authorizes local governments to vest zoning rights early (that is, freeze the applicable zoning and forestall future changes) in a DRR.A, is LU 7-304(a), which provides: (Apx. l ) 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. Under LU 7-303(a), a DRRA is required to state, among other things, the permissible uses of the property, the density or intensity of use, and the maximum height

13 and size of structures. (A-17) Further, under LU 7-303(a)(10)(i)-(iv), a DRRA inay provide for the dedication of property for a public use and for the "construction or financing of public facilities." (A-17) In Chapter 1-25 of the County Code, the County implemented the DRRA Act by authorizing County officials to negotiate, execute, and enforce DRRAs within the legal boundaries authorized by State law. (Apx.30-35) The County did not limit the scope of DRRAs authorized by State law. 3. THE ZONING HISTORY OF THE PROPERTY The Blentlinger family has owned and fanned two parcels of land in Frederick County (the "Property") for many generations. In the past decade, the Comprehensive Plan designation and zoning of the Property has varied with the composition of the BOCC. As of 2007, the Property had received an LDR land use designation in the County Comprehensive Plan, which allows the property owner to apply for rezoning to the PUD District. As of 2007, the Property was zoned Agricultural. In 2007, the BOCC reclassified the Property on the County Comprehensive Plan to Agricultural as part of a countywide update. That is, the BOCC removed the LDR designation and rendered the Property ineligible for a rezoning to PUD. Blentlin~, 231 Md. App. at 625. The Property continued to be zoned Agricultural. During the 2010 election, four of the five successful candidates for the BOCC, including President Blaine Young, ran on a promise to restore land development rights to property owners who had been downzoned by the prior BOCC. In 2012, the Young BOCC, reclassified the Property as LDR on the Comprehensive Plan. Id. Thus, the 7

14 Property again became eligible for PUD zoning. Rezoning to PUD would afford the developer the ability to seep dense and intense residential development with commercial and institutional components. 4. THE BLENTLINGERS' APPLICATION FOR, AND THE COUNTY'S APPROVAL OF, PUD ZoNnvG On February 25, 2014, the Blentlingers filed an application for rezoning to PUD and a Phase I Concept Plan. The Concept Plan delineated four distinct residential bays, a school site, and an open space corridor. (E ) The bays planned for development were located on land with minimal environmental and physical obstructions. The basic layout of the land uses was governed by the existing environmental features. Further, a central stream valley included a trail network, dwellings with fronts facing the stream valley, and open space area. The residential bays were connected by an arterial road running east and west on the property. The Blentlinger PUD application also included a middle school site near the proposed main entrance. The school site included recreation and open space areas surrounded by higher density residential units. (E ) The detailed land use proposal in Blentlingers' PUD application was as follows: :~

15 Land Use Proposal Total Site Area Total Proposed PUD Zone Area Proposed Land Use Residential Area School Site Area (middle school) Floodplain Area Non Floodplain Open Space Area TOTAL Total Proposed Dwellings *mix of single family, townhouse, and 2 over 2's Gross Project Density X279 acres X279 acres acres 25 acres 13.8 acres 75 acres 279 acres 720 dwellings* 720/279 = 2.6 dwellings per acre Net Project Densit~Residential Land Only) 720/165.2 = 4.4 dwellings per acre The proposed unit mix of the 720 dwellings was as follows: (E.035, 037, ) Single-Family 324 dwellings (45%) Townhouses 192 dwellings (27%) 2 over 2's 204 dwellings (28%) The BOCC held a public hearing on the PUD rezoning application two days after the November 4, 2014 election. At that election, Jan Gardner, a former County Commissioner, was elected County Executive, defeating Blaine Young on a platform that favored snore controlled and regulated growth. On November 6, 2016, the now-lame duck Young BOCC approved the Blentlinger's application for PUD zoning. (E ) On November 24, 2014, during its last meeting (just seven days before December 1, 2014, when the Frederick County Charter took effect and Jan Gardner took office), and as one of the last acts of the Frederick County BOCC, the Young BOCC approved the PUD

16 Rezoning Ordinance No ("PUD Ordinance"). (E ) The PUD Ordinance contained eight conditions that allowed a maximum of 675 residential dwelling units, consisting of as many as 500 single-family units and as many as 175 townhomes. (E.O55-056) The PUD Ordinance required that no residential building permits would be issued before January 1, (E.056) Condition #5 required the Blentlingers to dedicate land for a middle school: (E.056) The developer shall dedicate and convey to the County a 24.5+/- acre middle school site to the BOE [Board of Education], in fee simple, upon i) the recordation of the subdivision plat for the 100th lot in the Project or within two (2) years of the recordation of the subdivision plat for the 1st lot in the Project, whichever occurs first; and ii) BOE's acceptance of the conveyance of land for the Public School Site. The Applicant and BOE shall enter into a Memorandum of Understanding ("MOU"), which shall set forth the rights and responsibilities of the parties in connection with development of the school site, prior to final, unconditional approval of the Phase II (Execution) Plan for the portion of the Project that contains the school site. Further the PUD Ordinance stated: 6. [The Blentlingers must provide two (2) neighborhood parks of at least 20,000 square feet each to be centrally located, with one on the northern land bay, and the other in the central land bay. 7. [The Blentlingers must p]ovide a diversity of single family lot sizes. 8. With the exception of structures on the Public School Site and models for the Project, neither Frederick County, nor any agency, department, division and/or branch thereof 10

17 shall issue any structural building permits, prior to January 1, (E.056) 5. THE BLENTLINGERS' PETITION FOR, AND THE COUNTY'S APPROVAL OF, A DRR_A On March 11, 2014, the Blentlingers petitioned the BOCC for the approval of a DRRA. (E.001) Their petition for a DRR.A included a draft DRRA and incorporated by reference the PUD application and Phase I Concept Plan. (E ) Indeed, all commitments for public infrastructure construction and dedication in the DRRA simply incorporated and mirrored the PUD application and Phase I Concept Plan. The DRRA petition did not offer any enhanced public benefits apart from those necessary to achieve the proposed PUD zoning for the Property or otherwise required by law. "The BOCC...executed the final DRRA on November 24, 2014." Blentlin~er, 231 Md. App. at 627. In Article III, entitled Community Facilities and Infrastructure Improvements, the Blentlingers listed proposed road improvements, sewer and water improvements, school construction fees, school impact fees, the middle school site dedication, and property acquisition for public infrastructure. (E ) In the DRRA, however, the Blentlingers simply agreed to comply with the road, sewer, and water improvements required by the Adequate Public Facilities Ordinance (Chapter 1-20, Articles III, IV, and V). (Apx.23-27) Indeed, the DRRA did not contain any required dedications, financial contributions, or construction requirements that were not already included in the PUD Ordinance, the Adequate Public Facilities Ordinance, or otherwise required by law. 11

18 The Blentlinger DRRA, however, included a local law "freeze" provision that the County now believes exceeded the scope of the vesting authorized by the Maryland DRRA Act (LU 7-304) and the County Code ( (A)). (Apx.l, 34) The freeze provision in 8.1 of the. DRRA provided: (E.O11) (emphasis added). 8.1 Ef ect of Agreement. A. Except as otherwise specifically provided herein, the local laws, rules, regulations and policies governing the use, density or intensity of the Property, including but not limited to those governing development, subdivision, growth management, impact fee laws, water, sewer, stormwater management, environmental protection, land planning and design, and adequate public facilities (hereinafter collectively the "Development Laws") shall be the laws, rules, regulations and policies, if any in force on the Effective Date of the Agreement, and the Developer shall comply with all Development Laws. Finally, the DRRA provided in Article IV that it would govern the property for 25 years. (E ) 6. THE CIltCUIT COURT DECISION Cleanwater filed a Petition for Judicial Review of the PUD Ordinance and the DRRA with the Frederick County Circuit Court on December 24, (E.517) The Circuit Court issued an Opinion and Order on November 4, 2015, affirming both of the BOCC decisions. (E ) 12

19 7. THE COURT OF SPECIAL APPEALS DECISION Cleanwater appealed to the Court of Special Appeals only that portion of the Circuit Court decision that upheld the DRRA. The intermediate appellate court reversed the Circuit Court. Blentlinger, 231 Md. App. at 625. Before the Court of Special Appeals, Cleanwater argued, among other things, that the DRRA was invalid because (1) it violated LU 7-304, which authorized the BOCC to freeze only local laws,. regulations, and policies relating to land use, density, and intensity, and the Blentlinger DRRA prohibited the County from amending or enacting laws that relate to a broad range of areas, including impact fees or taxes, affordable housing, and environmental protection, and (2) it failed to include any enhanced public benefits or consideration to support the BOCC's agreement to freeze a broad range of local laws. Id. at The Court of Special Appeals rejected Cleanwater's first argument, but accepted its second. The Court ruled that is "`ambiguous on its face"' as to the scope of laws that may be frozen, and the General Assembly intended the permissible scope of the freeze to include a broad range of laws, including local fees, taxes, and subdivision and environmental protection laws. Blentlin~, 231 Md. App The intermediate appellate court accepted Cleanwater's second argument. The Court of Special Appeals ruled that under this Court's decision in Queen Anne's Conservation, Inc., 382 Md. at , a developer must provide enhanced public benefits that are not otherwise required by law. Blentlin~er, 231 Md. App. at

20 The Blentlingers filed a Petition for Writ of Certiorari, and on May 9, 2017, this Court granted the petition. Blentlin~er, LLC v. Cleanwater Lin_a~, 160 A.3d 546 (Md. 2017). 8. THE COUNTY'S CHANGE OF POLICY REGARDING LONG-TERM DRRAS, WHICH FREEZE INTENSE DEVELOPMENT RIGHTS AND FORESTALL THE ADOPTION OF NEW LAWS AND POLICIES GOVERNING IMPACT FEES, TAXES, ENVIRONMENTAL PROTECTION, AND AFFORDABLE HOUSING As described above, on November 4, 2014, Frederick County held its first election under the newly-adopted Charter form of government. The Charter form of government became fully effective on December 1, One of the key issues in the 2014 election for the new positions of County Executive and the seven County Council seats was the extent to which residential land development should be regulated in the County. The two candidates for County Executive held diametrically opposite views on this subject. Republican candidate Blaine Young, the outgoing BOCC President, favored an ambitious pro-growth policy with few constraints on residential development in terms of affordable housing requirements, environmental protection or impact fees, or taxes which would shift the financial burden of new development to developers. Jan Gardner, the Democratic candidate, and a former BOCC member, favored managing residential development and tuning the pace of residential development with the County's ability to provide and equate schools, roads, and other facilities and infrastructure. Further, Ms. Gardner favored growth in and around municipal corporations and other growth areas. See Bethany Rodgers, "Gardner to Lead County as First Executive," The Fredericic-News Post, Nov. 5, 2014, and government 14

21 /elections/gardner-to-lead-county-as-first-executive/article bd4cd927-f404-58b2-8e08- bad52fa90ce2.htm1. Ms. Gardner was elected County Executive, and only two of the five members of the Young BOCC returned to office as Council members in the Charter goverrunent. On November 6, 2014, two days after the election, the lame duck Young BOCC held a public hearing on the Blentlingers' (1) application for rezoning of the Property to the PUD, and (2) petition to enter into a DRRA freezing a wide array of local laws for 25 years. (E.262, , ) That night, the BOCC voted 4-1 to approve both the PUD rezoning, with conditions, and the DRRA. (E , ). On November 24, 2014, at the very last meeting of the Frederick County BOCC, the BOCC signed Ordinance No , granting the rezoning to PUD, and executed the DRRA for the Property.2 (E.001, 018, 034) As a result of the election and changes to the composition and structure of the County government, the County has changed its underlying policy in connection with DRRAs and its position in this case. The important legal question presented in this case is: whether the County government has the authority to abdicate for 25 years its power to enact a wide array of laws without receiving any demonstrable public benefit in return. The DRRA under review in this case does not provide the County with any benefit that the developer was not already required. to supply under the PUD Ordinance, Adequate Public Facilities Ordinance, or any other source of law. Further, the DRRA exceeds the 2 The Frederick County Charter now prevents such midnight activity by a government by declaring void any legislation not enacted before November of the election year. Frederick County Charter (Apx.S) 15

22 County's authority under and purports to bargain away for 25 years the County's ability to enact a wide array of laws including impact fees, excise taxes, environmental protection and affordable housing laws. The prior BOCC approved 14 other DRR.As, which are similar in scope. The effect of these DRRAs is to exempt a large part of the County from future laws and policies in a wide range of areas. For example, the County has recently received an extensive housing study containing multiple recorrunendations as to how to better plan for and address affordable housing shortages by requiring additional moderately priced housing units or by obtaining additional fees in lieu. Further, all regional roads in the area of the Blentlingers' property fail, and many are State roads. The fact that such a large portion of the County is supposedly exempt from a wide range of new laws makes it difficult and less effective to legislate and regulate the remainder of the County. It is particularly troubling that the action at issue in this case took place in a last minute, lame duck session after voters had elected a new government promising a different policy. For this reason, the County has changed its position in this case from that which it argued before the Circuit Court and Court of Special Appeals. STANDARD OF REVIEW The issues presented in this appeal as to whether (1) enhanced public benefits are required for a DRRA to be valid, and (2) whether the DRRA at issue in the present case is supported by enhanced public benefits are questions of law. This Court reviews questions of law de novo and is not required to defer to the decisions of either the BOCC or the Circuit Court. Hartford Fire Ins. Co. v. Estate of Sanders, 232 Md. App. 24, 39 16

23 (2017)("When a pure question of law comes before either this Court or the Court of Appeals, the standard of review is de novo, that is, neither Court gives any deference to the trial court's interpretation of the law."); Harford Cty. People's Counsel v. Bel Air Realty Assocs. Ltd. P'shi~, 148 Md. App. 244, 259 (2002)("We owe no deference when the agency's conclusions are premised on an error of law.") ARGUMENT 1. A DRRA MUST BE SUPPORTED BY ENHANCED PUBLIC BENEFITS A DRRA presents an opportunity for a developer to obtain vested rights earlier in the development process and for a local government to secure public infrastructure or benefits in addition to those that would be otherwise required by State or local laws. As the Court of Special Appeals explained in this case: DRRAs are attempts to balance "developers' and property owners' desires for a larger measure of certainty than that offered by proceeding to market through the traditional development processes, while risking the monetary investment to develop their property, against local governments' desire to receive greater public benefits on a more predictable schedule than might otherwise be attainable through the traditional processes." Blentlin~er, 231 Md. App (quoting Queen Anne's Conservation, Inc., 382 Md. at ). In Queen Anne's Conservation, Inc., this Court explained that a DRR.A "is a contract whose purpose is to vest rights under zoning laws and regulations, in consideration of enhanced public benefits." 382 Md. at 322 (emphasis added). The Court of Special Appeals has followed this rule in two cases: Cleanwater Linganore, Inc. 17

24 ~CaseY) v. Frederick County, ("Casey"), 231 Md. App. 373, (2016) and in the present case, Blentlinger, 231 Md. App. at In Casev, 231 Md. at 379, the Court of Special Appeals, explained that a DRRA must provide local governments with public benefits that exceed those that could otherwise be obtained in the development process: Obtaining forbearance of the application of subsequent changes in relevant local laws provides certainty and stability to developers, whose projects may take many years to complete and/or sell-off or lease. Local governments derive, in return negotiated greater public benefits than may be attained through typical governmental exactions or conditions of development approvals. Likewise, in the present case, the Court of Special Appeals ruled that a DIZRA must be supported by enhanced public benefits and found that such benefits were not present: In our view, these provisions of the DRRA do not reflect enhanced obligations of the developer. Rather, they reflect the obligations the developer would otherwise be required to satisfy during the course of the development of the property if no DRRA were in place. Indeed, the benefits relied upon by the developer (specifically those relating to road, sewer, water improvements, and tap fees are required of the developer under the County's Adequate Public Facilities Ordinance. Blentlinger, 231 Md. at 639. This Court's statement in Queen Anne's Conservation, Inc.., 382 Md. at 322, that a DRRA must be supported by enhanced public benefits provided to the local government was consistent with settled Maryland law. Courts interpreting and applying Maryland law have traditionally approved development agreements that bargain away the reserved legislative powers of a local government only upon a finding that the agreements are for 18

25 the public good, that is, that the agreements constitute an exercise of the police power and not an abdication of it. See, sme., Bollech v. Charles County, Mar., 166 F. Supp. 2d 443 (D. Md. 2001) (citing Mayor and City Council of Balto. v. Crane, 277 Md. 198 (1976)); Brandywine Enterprises v. County Council for Prince George's County, 117 Md. App. 525 (1997); Mossbur~ v. Montgomery County, 107 Md. App. 1 (1995). The reserved powers doctrine is one of the "distinct limitations developed to protect state regulatory powers" and "holds that a state goverrunent inay not contract away `an essential attribute of its sovereignty. "' United States v. Winstar Corn., 518 U. S. 839, 874, 888 (1996). It arose out of the Contracts Clause of the U.S. Constitution, which states: "No State shall enter into any...law impairing the OUligation of Contracts...." U.S. Const., Art. I, 10. A state cannot, however, "`bargain away the public health or the public morals."' Hoine Bldg. &Loan Assn v. Blaisdell, 290 U.S. 398, 436 (1934) (citation omitted). As the Supreme Court has explained, it is settled law throughout the United States that: "[T]he interdiction of statutes impairing the obligation of contracts does not prevent the state from exercising such powers as are vested in it for the promotion of the corrunon weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which, in its various ramifications, is known as the police dower, is an exercise of the sovereign right of the government to protect the lives, health, morals, comfort, and general welfare of the people, and is paramount to any rights under contracts between individuals." Id. at 437 (citation omitted). 19

26 The enactment of the Maryland DRRA Act (now codified in LU 301 to 307) in 1995 codified the practice of local governments entering into development agreements to vest development rights, which had been recognized as legal in Maryland prior to the passage of the DRRA Act. Bollech, 166 F. Supp. 2d at 454 & n.3. In Bollech, the United States District Court for the District of Maryland explained the history of development agreements in Maryland and the basis on which they have been upheld. Id. at The district court found that Maryland courts have upheld development agreements only if the agreements constitute an exercise of legislative power for the purpose of obtaining public benefits, not an abdication of reserved powers. See id. In Bollech, the district court addressed the validity of a development agreement between Charles County and a developer under which the County agreed to freeze the applicable zoning, including the permitted density, on a property on the Potomac River in exchange for the developer inalcing certain public improvements, including the construction of a regional wastewater treatment plant. Id. at 448. Initially, the district court observed that, while the DRRA Act was not applicable to the case before it, the Act codified the Maryland rule that such agreements are legal if certain prerequisites were satisfied: Development agreements are defined as "agreements between a municipality and a developer under which site specific conditions may be imposed but the right to develop in compliance therewith is `vested' at least for a certain period of time." Rathkopf, 29A.02, 29A-3, 4. Maryland codified the use of development agreements in 1995 when it enacted a Development Rights &Responsibilities Act, codified at Md. Code Ann., Art. 66B (1995). While this act is inapplicable to the Agreement at issue which was made in 1989, the Maryland Code recognized that such agreements were legal prior to the act's passage. 20

27 Id. at 454 (footnote omitted). The district court explained that development agreements, have sometimes been found illegal where the agreements bargain away the police or reserved legislative powers of the local government: Id. at 453. According to Rathlcopf, 29A.03 at 29A-33, 34, courts generally have held that rezoning agreements that protect land from future rezonings are void as "illegal contract zoning" because those agreements bargain away the state's police powers. However, this prohibition is not absolute.. The district court then explained that, under settled Maryland law, development agreements are permissible provided they constitute an exercise of the police power as opposed to an abdication of that power: In Brandywine Enterprises v. County Council for Prince George's County, 117 Md. App. 525, 700 A. 2d 1216 (1997), the court found that the placement of conditions upon a special exception use did not constitute illegal contract zoning because it was "an appropriate exercise of, rather than an abdication of, a local government's police powers." Brandwine, 117 Md. App. At , 700 A. 2d 1216, citing Mossbur~ v. Montgomery County, 107 Md. App. 1, 30, 666 A.2d 1253 (1995). The Maryland court also rejected the application of [the prohibition on] contract zoning in Mayor and City Council of Baltimore v. Crane, 277 Md. 198, 352 A.2d 786 (1976), when it sustained a development agreement preserving the development capacity on a parcel of land in exchange for the dedication of a highway right of way. The court upheld the use of development agreements, stating: "It is the law of this State that a municipality, acting through its duly elected or appointed officials, becomes bound by its agreements so long 21

28 as those agreements are for the public good." Crane, 277 Md. at 210, 352 A.2d 786. Id. at 453. On the basis of this authority, the district court ruled that under Maryland law, development agreements are valid only if they are an exercise of the police power that promotes the public good, rather than merely an abdication of the police power: Id. at 454. Crane and Brandywine focus the contract zoning analysis on whether the agreement made by the governing authority was for the public good or not. The real test, then, is not whether the County entered into a contract preserving zoning in exchange for promises from Developers, but whether the arrangement it did make is an exercise of or limitation on the government's police powers. Rather than merely a semantic distinction, this tests looks to the more general proposition of whether an agreement was made to benefit the general welfare. Consistent with the Maryland rule, the California Court of Appeal in Santa Margarita Area Residents Together v. San Luis Obispo County Board, 100 Cal. Rptr. 2d 740, (Cal. Ct. App. 2000), ruled that to be valid under a similar California law, a development agreement must provide for benefits to the public, not merely an abdication of reserved legislative powers. The Court initially explained: One of the purposes of development agreements is to obtain benefits for the public, and the record shows that the County believed that an agreement was required as an incentive to the developer to engage in the comprehensive planning desired by the County, and also as an incentive to expand the public facilities and benefits included in the Project. Id. at 747. The Court concluded: 22

29 The Agreement conforms to this construction of the statute. Because it focuses on the planning stage of the Project, the Agreement meets, rather than evades, the purpose of the statute. The Agreement maximizes the public's role in the final development and control over the inclusion of public facilities and benefits in the project. Id. at 745. The Maryland DRRA Act, consistent with Maryland case law stating that the basis on which development agreements will be upheld, requires that the decision to enter into a DRRA be an exercise of the police power that benefits the public as opposed to an abdication of that power. LU 7-303(c)(9) requires that the local govermnent find that "the conditions, terms, restrictions or other requirements [are] necessary to ensure the public health, safety or welfare." (A-17) Further, LU 7-303(a)(10) requires that a DRRA include "to the extent applicable, provisions for the: (i) dedication of a portion of the real property for public use; (ii) protection of sensitive areas; (iii) preservation and restoration of historic structures; and (iv) construction or financing of public facilities." (A-17) Furthermore, the legislative history of the DRRA Act supports the existence of a requirement that a DRRA include enhanced public benefits. The Court of Special Appeals in the present case found support for this conclusion in the Maryland House Commerce and Government Committee Bill Analysis and Senate Economic Affairs Committee Bill Analysis, which provided the following background regarding the enactment of the DRRA: "Development agreements can provide benefits for both developers and local governments. For the developer, a 23

30 development agreement establishes the rules and regulations which will govern the project throughout its construction, and perhaps beyond. For the local government, the development agreement provides for greater certainty in the comprehensive planning process, as well as an opportunity to ensure the provision of necessary public facilities." Blentlin~er, 231 Md. App. at 639 (citation omitted). Accordingly, this Court's observation in Queen Anne's Conservation, Inc., 382 Md. at 322, that a DRRA must include enhanced public benefits for the public good and cannot constitute a mere abdication of reserved legislative powers was consistent with the language of the DRRA Act and judicial decisions analyzing the circumstances under which development agreements will be upheld. 2. THE BLENTLINGERS' DRRA IS NOT SUPPORTED BY AN ENHANCED PUBLIC BENEFIT: THE DRRA IMPOSES NO OBLIGATION ON THE BENTLINGERS NOT ALREADY IMPOSED BY THE PUD ORDINANCE, OR ANOTHER SOURCE OF LAW. The Court of Special Appeals in the instant case followed the analysis articulated by this Court in Queen Anne's Conservation, Inc., 382 Md. at 322, and correctly concluded that the Blentlinger DRRA was not supported by enhanced public benefits (or by even adequate consideration to support a contract). Blentlinger, 231 Md. App. at 643. The Court of Special Appeals correctly found that the only benefits this DRRA conferred to the County were already required by the PUD Ordinance, the Adequate Public Facilities Ordinance, or other sources of law. 24

31 A. The Zoning Regulations Applicable to a Property in a PUD District are the Regulations Established in the PUD Ordinance Through the Zoning Process, Not the General Boundaries Set Forth in the County Code. Sections , , and of the County Code set forth the zoning process for establishing the zoning regulations applicable to a PUD. (Apx.7-8, 10-12) Although and of the County Code states general, substantive boundaries governing the zoning regulations that may be adopted for a PUD, (Apx.9-10, 12-14) the actual zoning regulations that apply to a property zoned PUD are those set forth in the PUD ordinance adopted at the end of the zoning process. Zoning regulations establish the permitted uses (e.g. commercial, industrial, residential), density restrictions, bulk regulations, minimum lot size, and setbacks applicable to a parcel of property. In a Euclidean ordinance, the local legislature sets forth in the text of the zoning ordinance itself the permitted uses, density restrictions, bulk regulations, etc., applicable in a given zone.3 The local legislature enacts a zoning map that shows each property in the jurisdiction and the zone in which the property is located. The property owner then ascertains the zoning regulations applicable to his or her property by consulting the ordinance text. See Rouse-Fairwood Dev. Ltd. P'ship v. Supervisor of Assessments for Prince Geor ge's Ct~, 138 Md. App. 589, 623 (2001). In a PUD zone, however, the ordinance text does not set forth the regulations 3 "Euclidean Zoning is a fairly static and rigid form of zoning named after the basic zoning ordinance upheld in Village of Euclid v. Amber Realty Co, 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 303 (1926)." Mayor and Council of Rockville et al. v. R~yns Enterp., Inc., 372 Md. 514, 534 (2002). 25

32 applicable to a particular property, but rather sets forth a process for establishing the zoning regulations and general boundaries within which the regulations may be established in that process. The permitted land uses, density restrictions, bulls regulations, etc., are developed in the zoning process. The zoning regulations actually applicable to the property are those established in the process, not the general boundaries in the County Code section. Cf. id. at Accordingly, the two types of zoning, Euclidean and PUD, are analytically distinct. This distinction is crucial to present case. Below, we review the differences between these two types of zoning as explained in treatises on the law of zoning and in judicial opinions. Conventional, or Euclidean, zoning "divides the community into specific territorial districts and prescribes the uses that are permitted (or not permitted) in each district." Wheaton Moose Lode No v. Montgomery County, 41 Md. App. 401, 403 (1979). "The boundaries of these districts are fixed by law, usually by reference to a snap. Thus, in comprehensive zoning, every square foot of the community is within some fixed zone and is subject to the predetermined set of land use restrictions applicable to that zone." Id. at 403 (footnotes omitted). In a Euclidean zone, the text of the zoning ordinance sets forth the permitted and special uses, bulls requirements, setbacks, minimum lot size, and other pertinent land use regulations. Accordingly, if a property is zoned in a Euclidean zone, the land use regulations governing the property are set forth in the text of the zoning ordinance itself, 26

33 and, if a subdivision or site plan is not required, the property owner ordinarily need not do anything more than obtain a building permit to begin development.4 The first Euclidean zoning ordinances were enacted in the 1920s. In the development boom that occurred in the years following World War II, however, traditional Euclidean zoning was found to be too infle~ble. Accordingly, local governments turned to the use of PUD zones as a means of regulating land use. Id. at ; 3 Am. Law. Zoning 24:7 (5th ed.). "A planned unit development (PUD) is a district in which a planned infix of residential, commercial, and even industrial uses is sanctioned subject to restrictions calculated to achieve compatible and efficient use of the land." 3 Am. Law. Zoning 24:7 (5th ed.); see also id. 24:1. With use of a PUD zone, "it became possible to insure against conflicts in the use of land while permitting a mix of uses in a single district. It was practical to take a flexible approach to the regulation of land use without sacrificing the values which zoning was intended to preserve." Id. 24:7. "Unlike Euclidean zoning which forces land development into a preconceived pattern, planned unit development permits the inclusion of a variety of housing types, lot sizes, and even nonresidential uses on a single tract." Id. 24:9. "Generally, the common planned unit development ordinance authorizes the creation by the legislative authority of a planned unit development district. In the usual case, such a district is a floating zone...." Id. at 24:10; see also id. 24:11. A 4 The zoning process in both PUD and Euclidean zones is entirely distinct from the subdivision process. In the zoning process, permitted land uses, density requirements, and bulls regulations are established. Land is not subdivided in this process and dedications are not ordinarily required. In the subdivision process, land is subdivided and frequently dedications are required. 27

34 floating zone is a zone that might be established anywhere in the jurisdiction, provided that the required land is assembled by a developer, a plan for development is prepared and approved by the legislative authority of the jurisdiction, and the zoning snap is amended by the legislative authority so that the zone is located on a particular property, subject to development pursuant to the approved plan. Id. 24:10. The floating zone mechanism is used to locate many types of zones, including PUD zones such as the County's PUD zone. Id. 9:80. Unlike a Euclidean zone, where zoning regulations are set forth in the text of the zoning ordinance and are applicable to every property zoned in that particular classification throughout the jurisdiction, in a PUD zone the zoning regulations actually applicable to a property are not set forth in the jurisdiction's zoning ordinance, but rather, are developed through amulti-step zoning process. The text of the zoning ordinance sets forth only: (1) general boundaries governing the land use regulations that can be adopted in the PUD zoning process and (2) the PUD zoning process for establishing the land use regulations that will be applicable to a particular property. Id. 24:11. This process ordinarily requires the local government to approve a specific master plan or development plan for the property that sets forth the permitted land uses, density requirements, bulk requirements, minimum lot size, setbacks, and other land use restrictions. Id. Accordingly, the actual zoning regulations applicable to a PUD property are the land use regulations approved by the local government in a development plan. The American Law of Zoning, a treatise on which this Court has placed frequent, confident reliance, has explained the zoning process in a PUD as follows: 28

35 While planned unit development ordinances vary, the most common type provides for the creation of a planned unit development district through a two step legislative process. The initial ordinance describes a planned unit development district, and outlines the enactment procedure, but it does not locate the district on the zoning snap of the municipality. Actual creation of such a district must be accomplished by a second legislative act an amendment to the zoning ordinance. The final legislative step is preceded by a full dress review of the plans by a planning board, and a recommendation by that agency. * * ~ These features appear in essentially all planned unit development legislation. Planned unit development districts commonly are not authorized unless the applicant has assembled a large tract of land. This size element takes the planned unit development beyond reach of a challenge as spot zoning. In addition, planned unit development ordinances mandate e~ctensive preliminary planning, planning board review, and public scrutiny at open hearings. The permitted uses are defined; where nonresidential uses are permitted they are limited in kind and intensity. "Density restrictions are intentionally flexible, but they are subject to prior review and alteration by the legislative authority." Density restrictions are intentionally flexible, but they are subject to prior review and alteration by the legislative authority. Detailed provision is made for the location of uses, roadway systems, types of residential structures, drainage systems, water and sewerage services,. community services, and open space. Id. (internal footnotes omitted). Thus, when a local legislative authority approves an application to locate a PUD zone at a certain location, it also approves a development plan for the property at the same time. The development plan sets forth the zoning requirements for the property. Id. This is entirely different from a_euclidean zone, in which the zoning regulations for all properties in a particular classification are set forth in the ordinance text. 29

36 In Kirk Corp. v. Village of Buffalo Grove, 618 N.E.2d 789 (Ill. App. Ct. 1993), the Appellate Court of Illinois explained that an approved development plan for a PUD property constitutes the zoning applicable to it. In that case, the PUD ordinance had been in existence but unused for afourteen-year period. Id. at The court held: "Based upon the evidence presented, we find that [the ordinance approving the PUD development plan for the property] is still the valid zoning ordinance governing parcel A." Id. at 793. Likewise, in Howard Research &Development v. Howard County, 46 Md. App. 498 (1980), the Court of Special Appeals ruled that an approved development plan for a PUD constitutes the zoning of the property. That case involved a PUD/floating zone in the Howard County Zoning Regulations known as the New Town ("NT") District, which governs the development of Columbia. Id. at The owner of any tract of land in Howard County containing a total area of at least 2,500 contiguous acres and satisfying certain other requirements could petition the Zoning Board (formerly the County Commissioners, now the County Council) to rezone the property to an NT District. Id. at 500 & n.2. A preliminary development plan ("PDP") had to accompany the petition. Id. at 500. The PDP text and accompanying map were required to show, among other things, the various land uses to be permitted in the NT District, the number of acres devoted to these uses and the location of the various uses in relation to one another. The local government had to approve the PDP, and subsequently a final development plan ("FDP") for the property. Id. at 501. The PDP and FDP (each of which had to be accompanied by a map) constituted the zoning for the property in that they showed the permitted uses, the 30

37 location and size of the various permitted uses, bulk requirements, setbacks, and other land use regulations that are normally set forth in a Euclidean zoning ordinance. Id. at The question presented in Howard Research &Development was whether a special exception was required from the Howard County Board of Appeals in order to locate a gasoline service station in the NT District. Id. at An approved FDP for a portion of Columbia's NT District showed a gasoline station at the location in question. This Court ruled that a special exception was not required for the gasoline station because the approved FDP showed the station as a permitted use and, once approved, the FDP constituted the zoning of the property: Preliminarily we note that FDP Phase 36 endured rigorous oversight before finding its way into the land records of Howard County. The proposed use for the land was first submitted under the 1961 regulations as a preliminary development plan to the Planning Commission and then to the County Commissioners who rezoned the area to a New Town District. The PDP under the provisions of c (1961) was required to show the general location of both residential and employment uses. Under the County Commissioners were required to hold a public hearing on the PDP and examine the PDP in detail. Following the approval of the PDP all prior existing zoning controls over property within the NT District which were inconsistent with the PDP ceased. Howard County Zoning Regulations, 119 B.6.c. (1977). The PDP then became the controlling blueprint for the NT District but actual development could not begin until the FDP gained approval from the Planning Commission.... ~ ~ ~ The most important consideration, however, is the fact that the FDP Phase 36 criteria which bas been promulgated according to the NT regulations and now bas 31

38 the full force and effect of a zoning regulation states that a gasoline service station is a permitted use for FDP Phase 36. Id. at , 512 (emphasis added). Likewise, Rouse-Fairwood Dev. Ltd. P'ship, 13 8 Md. App. at , the Court of Special Appeals ruled that, in a PUD zone, the zoning regulations applicable to a property are the regulations adopted in the development plan in the zoning process, not the general boundaries for zoning regulations set forth in the zoning ordinance. There, the Maryland Tax Court ruled that Rouse-Fairwood owed an agricultural transfer tax on a property in Prince George's County as a result of the rezoning of its property to "a more intensive use." Id. at 597, 612. The property had been rezoned from R-R, a Euclidean zone, to M- X-C, a PUD zone. Id. at The Court of Special Appeals ruled that in determining whether the property was rezoned for a more intensive use, the density of the R-R zone must be compared to the density permitted in the Final Development Plan adopted as part of the zoning process, not the general boundaries for regulations in the County Code: Id. at 626. Ultimately, (c) requires that "[t]he use of land within the M-X-C zone shall be limited to those uses specified in the Final Development Plan." (Emphasis added). In addition, (e)(6) provides that an approved FDP shall be recorded in the Land Records of the County, and the provisions "as to land use shall bind the property covered thereby as provided... with the full force and effect of specific zoning regulations." After the FDP is recorded, "no change in primary use... from that permitted" in the FDP is allowed, except by an amendment. Zoning Ordinance (e)(6). 32

39 Accordingly, in comparing the terms of the DRRA to the PUD zoning to determine whether the DRRA provides an enhanced public benefit, it is necessary to compare the DRRA to the zoning regulations actually adopted by the BOCC in the PUD Ordinance, not the general boundaries for regulations set forth in the PUD District in the County Code. In attempting to establish the existence of an enhanced public benefit in the DRRA, the Blentlingers have committed an analytical error. The Blentlingers have compared the DRRA to the general boundaries for the PUD District in of the County Code. For example, at page 26 of the Brief of Appellants, the Blentlingers argue that they provided an enhanced public benefit to the County because the County Code permits up to 1,674 dwelling units on the Property, and they agreed in the DRRA to limit this number to 675 units. This argument is incorrect. The PUD Ordinance, which sets forth the actual zoning regulations applicable to the Property, limits the development of the Property to 675 units. Thus, the agreement in the DRRA to so limit development provides no benefit to the County. In short, the actual zoning regulations governing the Blentlinger Property are those set forth in the PUD Ordinance adopted pursuant to the zoning process. When the correct comparison is made between the DRRA, on the one hand, and the PUD Ordinance, Adequate Public Facilities Ordinance, and other applicable sources of law, on the other hand, the DRRA provides nothing, and certainly no benefit to the public that is not otherwise mandated by applicable law. Thus, the Court of Special Appeals correctly ruled that no enhanced public benefit exists to support this DRRA. 33

40 B. The Blentlingers' DRRA Lacks an Enhanced Public Benefit: The DRRA Does Not Impose an Obligation on Them that Is Not Otherwise Required by Law. In their Brief of Appellants, the Blentlingers insist that their DRRA provided enhanced public benefits to the County. The Blentlingers primarily focus on 3.4.C. of the DRRA in which they conditionally commit to dedicating a middle school site to the County. The Blentlingers also present a laundry list of commitments in the DRRA that they claim constitute benefits to the County. The school site proffer in the DRRA is not an enhanced public benefit. The school site was required by the zoning regulations applicable to the Property as reflected in the PUD Ordinance, which required dedication of the site if certain conditions were satisfied. The PUD Ordinance includes Condition # 5 which states: (E.056) The developer shall dedicate and convey to the County a 24.5+/- acre middle school site to the BOE, in fee simple, upon i) the recordation of the subdivision plat for the 100th lot in the Project or within two (2) years of the recordation of the subdivision plat for the 1st lot in the Project, whichever occurs first; and ii) BOE's acceptance of the conveyance of land for the Public School Site. The Applicant and BOE shall enter into a Memorandum of Understanding ("MOU"), which shall set forth the rights and responsibilities of the parties in connection with development of the school site, prior to final, unconditional approval of the Phase II (Execution) Plan for the portion of the Project that contains the school site. The school site proffered in the DRRA does nothing more than mirror the school 34

41 site requirement already in the PUD Ordinance and, therefore, provides no enhanced public benefit, or even consideration, for the DRRA. Indeed, the County has, for many years, required in ordinances rezoning properties to planned development districts that the developer dedicate sites for schools, fire stations, parks, libraries, and recreation facilities. The Appendix to this Brief contains a list of such ordinances with citations to where the ordinances can be found on the county's website. (Apx.44-91) The Court of Special Appeals expressly found that the developer's proffer of a school site was not an enhanced benefit. In addition to the school site dedication already required by the PUD Ordinance, the Court noted that the Frederick County Board of Education ("BOE") could accept or decline this offer, in its sole discretion. The BOE is a separate state entity not part of and not controlled by the County. See Chesapeake Charter, Inc. v. Anne Arundel County Board of Education, 358 Md. 129, 136 (2000). ("[T]he county school boards have consistently been regarded as State, rather than county, agencies."). The BOE is also not a party to the DRRA. Should the BOE exercise its discretion and reject the school site, the developer would retain fee ownership of the site. Further, the DRRA provides that the BOE and Blentlingers would attempt to agree on a Memorandum of Understanding in connection with the development of the school site. Agreements to agree are not enforceable in Maryland. See Horsey v. Horsey, 329 Md. 392, (1993). Thus, the Court of Special Appeals found the school dedication to be both a "conditional promise and potentially an illusory one to boot." Blentlinger, 231 Md. App. at 622. Accordingly, for all these reasons, the school dedication 35

42 requirement in the DRRA did not constitute an enhanced public benefit. In an effort to identify some appreciable additional benefit provided to the County, the Blentlingers have created a "laundry list" of what they termed "significant commitments" included in the DRR.A. (Appellants' Br. at 5-8) As the Court of Special Appeals decided, the obligations of the developer in the Blentlinger DRRA do not create enhanced public benefits, but instead are obligations that the developer would be required to comply with regardless of whether a DRRA existed. "Indeed, the benefits relied upon by the developer (specifically those relating to road, sewer, water improvements, and tap fees) are required of the developer under the County's Adequate Public Facilities Ordinance." Blentlinger, 231 Md. App. at 640. The County's Adequate Public Facilities Ordinance (Chapter 1-20, Articles II-V) requires developers to dedicate and construct public water and sewer facilities and roads necessary to accoininodate the burden imposed by new development. (Apx.21-27) A close analysis of each of the items cited by the Blentlingers leads to the conclusion that none of them creates public benefits in addition to, or of a greater scope than, those required by the PUD Ordinance or by any other source of law. The following chart demonstrates that the DRRA contains no contributions to the County that are not otherwise required by law: 36

43 Blentlingers' Claimed "Significant Commitments in the DRRA" PUD Ordinance Appellants' Br. at 5-8 (Numberin added 1. The Appellants agreed to Condition #1 A limit the overall density and maximum of 675 intensity of the Project so as dwelling units may be not to exceed 675 dwelling constructed, comprised of units. (E.004, 2.2A) no more than 175 townhoines, with the remaining units being single-family detached. State law or Frederick County Code ("FCC") Requirements 2. The Appellants agreed to Applicable development laws comply with applicable in State or County law. development laws in the event of any revision of residential unit types in the Project. (E.004, 2.2C) 3. The Appellants agreed not Condition #8 With the to apply for any structural exception of structures on building permits prior to the Public School Site January 1, (E.004, and models for the 2.2E) Project, neither Frederick County, nor any agency, department, division and/or branch thereof shall issue any structural building permits, prior to January 1, (E.056, #8) 4. The Appellants agreed to This is an option offered to make a payment to Frederick all developments subject to County in lieu of building the MPDU requirements. moderately priced dwelling See 1-6A-5.1(G). (A-5) units ("N1PDU"), as permitted by Section 1-6A- 5.1(G) of the Frederick County Code. (E,006, 2.4) 37

44 Blentlingers' Claimed "Significant Commitments in the DRRA" Appellants' Br. at 5-8 (Numberin added PUD Ordinance State law or Frederick County Code ("FCC") Requirements 5. The Appellants agreed In fact, the point of this that in the event some of the section of the DRRA is a significant public benefit, not a burden, to infrastructure improvements Developers. The County has required of the Appellants as agreed to consider obtaining part of the DRRA require the third party easements if the acquisition of public right-of- Developer has made goodways from third-party faith efforts and failed. property owners, the Subsection C allows the Appellants would secure Developer to simply pay and such right-of-ways without move on after two years, any assistance from even if the easements have Frederick County. (E.008, not been secured. 3.SA) 6. Under the circumstances Condition #5 The described in Section 3.4C of developer shall dedicate the DRRA, the Appellants and convey to the County agreed to be responsible for a 24.5+/- acre middle bonding and construction school site to the BOE, in related to improvements to fee simple, upon serve the 24.5-acre public school site and to revise the i) the recordation of the Rezoning Ordinance to the subdivision plat for the extent necessary as a result 100th lot in the Project or of required regulatory within two (2) years of approvals for the school site. the recordation of the (E , 3.4C) subdivision plat for the 1st lot in the Project, whichever occurs first; and ii) BOE's acceptance of the conveyance of land for the Public School Site. The Applicant and BOE shall enter into a Memorandum of 38

45 Blentlingers' Claimed "Significant Commitments in the DRRA" Appellants' Br. at 5-8 Numberin added PUD Ordinance Understanding ("MOU"), which shall set forth the rights and responsibilities of the parties in connection with development of the school site, prior to final, unconditional approval of the Phase II (Execution) Plan for the portion of the Project that contains the school site. (E.056) State law or Frederick County Code ("FCC") Requirements 7. The Appellants agreed to The very long term of the a term of the DRRA of DRRA is not a burden on the twenty-five (25) years. Developer, nor is it a public (E ) benefit. The County is also bound by the same 25-year term. (E , Art. IV) 8. The Appellants agreed This provision restates rights that in the event of a breach enjoyed by the BOCC under of the DRRA on the part of law. the Appellants and a failure to cure, the BOCC "may seek and obtain equitable relief to enforce the terms and conditions of this Agreement either through a decree of specific performance or an injunction." Further, if those equitable remedies are unavailable, the Appellants agreed that the BOCC is entitled to bring a legal action for damages. (E.O10, 39

46 Blentlingers' Claimed "Significant Commitments in the DRRA" Appellants' Br. at 5-8 (Numberin added) 7.1A) PUD Ordinance State law or Frederick County Code ("FCC") Requirements 9. The Appellants waived This agreement regarding a their right to a jury trial in future trier of fact cannot be connection with any characterized as an enhanced proceedings brought to public benefit that would enforce the terms of the support a development DRRA. (E.O10, 7.1B) enhancement or DRRA under Maryland law. 10. The Appellants agreed This section is simply a that, notwithstanding the restatement of State and terms of the DRRA; the County law. LU 7-304(b) BOCC inay impose changes (Apx.l); County Code, 1- in laws, rules, regulations 25-9(B) (Apx.34) and policies and their effect on the Property in order to ensure the public health, safety or welfare. In other words, the Appellants agreed that Frederick County would retain its police powers despite the "freeze" of development laws provided for by the DRRA. (E.O11, 8.1B) 11. The Appellants agreed to Applicable law requires that pay all fees (for example, fees be paid. See, sme., impact fees, school County Code Ch. 1-22, mitigation fees and water and Impact Fees. (Apx.28-29) sewer connection fees) at the rate in effect at the time the fee is due to Frederick County and not "freeze" the fees as of the date of execution of the DRRA. (E.O11, 8.3),~

47 Blentlingers' Claimed "Significant Commitments in the DRRA" Appellants' Br. at 5-8 (Numberin added) PUD Ordinance State law or Frederick County Code ("FCC") Requirements 12. The Appellants agreed This agreement regarding a not to challenge the DRRA future trier of fact cannot be or any of the obligations characterized as an enhanced created by the DRRA on the public benefit that would grounds of any "procedural support a development infirmity" or any "denial of enhancement or DRRA under any procedural right." Maryland law. (E ,. 9.7) 13. The Appellants agreed County Code (A) that in the event a petition for states that the parties to an judicial review to the Circuit agreement may terminate the Court has the effect of agreement by mutual revising the DRRA in any consent. This is an example material way, then either of mutual consent related to party has the right to material changes in the terminate the DRRA. DRRA. (Apx.34) (E.O15, 9.12) Accordingly, the Blentlingers cannot point to any enhanced public benefit that they provided to the County that would demonstrate this DRRA is anything other than a 25-year abdication of the County's reserved legislative powers in a broad range of areas related to impact fees and taxes, affordable housing, enviromnental protection, and adequate public school facilities.5 5 The Blentlinger DRRA, in Section 3.4.A, discusses the right to pay school construction fees in lieu of providing adequate school facilities or waiting for school facilities to become adequate. The option to pay school construction fees was removed from the County Code by Bill No , effective (Apx.39-43) The Blentlinger DRRA purports to preserve this option for the Property for 25 years from the effective date. 41

48 3. TAE ABSENCE OF AN ENHANCED PUBLIC BENEFIT HAS A PARTICULARLY ACUTE IMPACT ON THE RESERVED LEGISLATIVE POWERS OF THE COUNTY IN THE PRESENT CASE BECAUSE THE SCOPE OF THE BLENTLINGERS' DRRA EXCEEDS THAT AUTHORIZED BY OF TFIE LAND USE ARTICLE. LU 7-304(a) which authorizes local government to bargain away some of their reserved powers by freezing current laws in place provides: (Apx.l) (emphasis added). In general 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 tune the parties execute the agreement. The provisions in the Blentlinger DRRA governing the scope of the "freeze" of local laws, however, state: 8.1 Effect o~g~eement. A. Except as otherwise specifically provided herein, the local laws, rules, regulations and policies governing the use, density or intensity of the Property, including but not limited to those governing development, subdivision, growth management, impact fee laws, water, sewer, stormwater management, environmental protection, land planning and design, and adequate public facilities (hereinafter collectively the "Development Laws") shall be the laws, rules, regulations and policies, if any in force on the Effective Date of the Agreement, and the Developer shall comply with all Development Laws. (E.O 11) (emphasis added). Under LU 7-304, the only local laws that can be fixed or frozen as of the date of the DRRA are zoning laws: those relating to the "use, density or intensity of real 42

49 property." The terms "use, density and intensity" are terms that have well-defined meanings and applications in zoning law. Indeed, these terms are the essence of the authority exercised by local government under zoning laws. See, ~; Mavor &Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 531 (2002). The Court of Special Appeals construed these terms to authorize a local government to bargain away virtually all of its legislative authority. This construction is not only inconsistent with the established meaning of these terms, but it is also inconsistent with the purpose of the Maryland DRRA Act. The purpose of the DRRA Act was to address the fact that Maryland zoning law provides for late vesting. See Blentlinger, 231 Md. App. at Under Maryland law, a property owner does not have a vested right to proceed under existing zoning unless the property owner has begun substantial construction in reliance on a valid building permit. Sunrise Dev. Ltd. P'ship, 330 Md. at A vested right under Maryland law, however, protects a property owner only from changes in zoning, not from changes in tax law, environmental protection law, affordable housing mandates, and other legal requirements that may be imposed from time to time by local government. For example, in A Helping Hand, LLC v. Baltimore Ct~, 515 F.3d 356 (4th Cir. 2008), the Fourth Circuit explained that under Maryland law: "It is established that in order to obtain a `vested right' in the existing zoning use which will be constitutionally protected against a subsequent change in the zoning ordinance prohibiting or limiting that use, the owner must (1) obtain a permit or occupancy certificate where required by the applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood inay be advised that the land is being devoted to that use." 43

50 Id. at (emphasis added) (quoting Powell v. Calvert County, 368 Md. 400, 411 (2002)). Likewise, in O'Donnell v. Bassler, 289 Md. 501 (1981) this Court ruled: "Generally, in order to obtain a vested right in an existing zoning use that will be protected against a subsequent change in a zoning ordinance prohibiting that use, the owner must initially obtain a valid permit." Id. at 508 (emphasis supplied). Accordingly, the Court of Special Appeals' interpretation of LU 7-304(a) was not only contrary to the plain language of this section, but also far exceeded the purpose of the DRRA Act. The Court erred by construing the DRRA Act to authorize local governments to abdicate their reserved legislative powers in a host of areas not related to zoning. Furthermore, the Court of Special Appeals' ruling that the County could waive all excise taxes in a DRR.A was contrary to the public local law authorizing the County to impose a building excise tax and this Court's decision in Riverwall~ Apts., LLC v. Twi~~, 396 Md. 527, (2007). In the present case, the County agreed in 3.1 of the DRRA that it would waive all building excise taxes for the 25-year duration of the agreement. (E.006) In negotiating and executing the DRRA, however, the BOCC was acting in an executive capacity not a legislative capacity. Queen Anne's County Conservation, Inc., 382 Md. at 321. Because it attempted to waive future excise taxes by executive action in the DRRA, the BOCC action was invalid. In order to create or waive impact fees, however, the BOCC could not take action in executive capacity, but was required to do so by legislative act. The General assembly authorized the BOCC to :~

51 impose a building excise tax in a Public Local Law codified in of the County Code. Section (A) requires that the BOCC act by ordinance to impose the building excise tax: (Apx ) Subject to subsection (B) of this section, the County Commissioner of Frederick County, by ordinance, may fix, impose, and collect a building excise tax. "An ordinance is distinctly a legislative act; it prescribes `some sort of permanent rule of conduct or government, to continue in force until the ordinance is repealed. "' Inlet Associates v. Assatea~ue House Condominium, Assn., 313 Md. 413, 428 (1988) (citation omitted). Accordingly, the BOCC could not through an executive action, the execution of a DRRA, waive all future building excise taxes, an action that must be accompanied by legislation. (Apx.37) This Court's decision in River Wallc Apts., LLC is on point. There, the City of Frederick sought to waive future impact fees for a property in an agreement that was executed by the Mayor in an executive capacity. 396 Md. at This Court ruled that the attempted waiver was invalid because, under the Express Powers Act applicable to municipal corporations, the legislative body was required to enact legislation in order to waive future impact fees: Exercising the power enumerated in Section 166-A, the Aldermen of the City of Frederick passed Ordinance G-02-19, 1, which imposes impact fees in the City of Frederick for the stated purpose of "requir[ing] that new residential, commercial, institutional and industrial development pay for its appropriate share of capital improvements to the City's water and sewer treatment and distribution systems." Under '."

52 our cases, these fees, unposed to raise revenue for the City, may be created only by legislative act and therefore, by implication, may be waived only by legislative act. Thus, neither Mayor Grimes nor Mayor Dougherty possessed the requisite authority to levy the "special fee" created in the November and the Deferral Agreements, or to waive the impact fees created by Ordinance G-02-19, 1. Id. at 547 (alteration in original). In the present case, because the BOCC did not act as a legislative body and enact an ordinance pursuant to a Public Local Law, (A) of the County Code, to waive impact fees, the DRRA's waiver of future impact fees is invalid. Accordingly, the relinquishment of the County's reserved legislative powers in the present case is far beyond that authorized by LU This fact snake the BOCC's decision to bargain away the County's legislative authority without any appreciable public benefit inuring to the County even more damaging to the public interest. CONCLUSION For the reasons stated, the County requests that the Opinion of the Court of Special Appeals be affirmed.,~

53 Respectfully submitted, John S. Mathias, County Attorney gov) Kathy L. Mitchell, Assistant County Attorney Winchester Hall 12 East Church Street Frederick, Maryland Tel: (301) Kurt J. Fischer (kj com) Christine E. White Venable LLP 210 W. Pennsylvania Avenue Suite 500 Towson, Maryland Tel: (410) Fax: (410) point, Times New Roman Attorneys for Appellee F~ede~ick County, Maryland 47

54 CERTIFICATION OF WORD COUNT AND COMPLIANCE WITH RULE This brief contains 11,926 words, excluding parts of the brief exempted from the word count by Rule This brief complies with the font, spacing and type size requirements of Rule i, '~ ristine E. Wh t,

55 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 31st day of July, 2017, two (2) copies of the foregoing Brief of Appellee were mailed first class, postage prepaid, to: Michele M. Rosenfeld, Esquire Law Offices of Michele Rosenfeld, LLC Ambleside Drive Potomac, Maryland Thomas E. Lynch, III, Esquire Paul D. Rose, Esquire Miles &Stockbridge, PC 30 West Patrick Street Suite 600 Frederick, Maryland Kurt J. Fischer,.

56 50

57 APPENDIX TABLE OF CONTENTS Page Md. Code Ann., Land Use Apx.1 Frederick County Charter...Apx.3 Frederick County Code 1-19 (relevant excerpts)...apx.6 Frederick County Code 1-20 (relevant excerpts)...apx.20 Frederick County Code 1-22 (relevant excerpts)...apx.28 Frederick County Code 1-25 (relevant excerpts)...apx.30 Frederick County Code 2-7 (relevant excerpts)...apx.36 Bill No , County Council for Frederick County...Apx.39 Frederick County Division of Planning &Permitting, PUD and MXD Developments, Rezoning Conditions for Public Use Sites, July 31, Apx.44 Ordinance No (effective Oct. 4, 2012), Frederick County, Maryland, Re: Application of Monocacy Ventures, LLC et al., Rezoning Case No. R-02-1A...Apx.47 Ordinance No (effective July 11, 2013), Frederick County, Maryland, Re: Linganore PUD...Apx.65 51