75-80 Properties v. Rale, Inc.
215 A.3d 448
Md. Ct. Spec. App.2019Background
- Developers sought rezoning and related agreements (PUD, DRRA, APFO LOU) for ~400 acres (Monrovia Town Center); Planning Commission recommended approval; Board of County Commissioners approved after public hearings in April–May 2014.
- Commissioner C. Paul Smith (Board liaison to FACT) attended a FACT meeting shortly before the final hearing, spoke in favor of the project, and did not disclose that his remarks influenced a FACT letter later submitted into evidence at the hearing.
- FACT’s April 23, 2014 letter, which echoed Smith’s remarks without attribution, was read into the record hours before the final hearing; FACT later distanced itself from the letter and reported internal irregularities in its creation.
- RALE and others challenged the approvals in circuit court, alleging undisclosed ex parte communications in violation of Frederick County’s ethics statute (GP § 5-859(b)); the court found a violation and remanded to the County Council for reconsideration.
- On remand the County Council concluded the record was tainted and directed the Developers to recommence the application; the circuit court vacated the PUD, DRRA, and APFO LOU. Developers and Commissioner Smith appealed; the Court of Special Appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Smith’s statements at the FACT meeting were an ex parte communication requiring disclosure under GP § 5-859(b) | Developers: attendance/public meeting statements are not ex parte; Smith: statute applies only to communications with applicants/parties | Court/County/RALE: statute covers communications with any "individual" about a pending application; Smith’s remarks were off‑record and repackaged into evidence without attribution | Held: Smith’s conduct constituted an ex parte communication under § 5-859(b) and required disclosure |
| Whether § 5-859(b) (as applied) violates the First Amendment | Smith/Developers: statute restricts Smith’s speech as an elected official | County/RALE: restriction applies only when acting as quasi‑judicial decisionmaker and disclosure requirement does not bar speech, only requires disclosure to preserve fairness | Held: No First Amendment violation; restriction on undisclosed ex parte communications is permissible for quasi‑judicial decisionmakers |
| Whether the circuit court had adequate factual basis to vacate approvals and remand | Developers: record does not support finding that FACT letter was procured by Smith or that it substantially affected the vote; affidavits from some former commissioners said letter did not affect their votes | RALE/County: timing, lack of attribution, link between Smith’s remarks and the FACT letter, and Smith’s refusal/invocation of privilege provide substantial evidence of taint | Held: Court’s factual findings are supported by substantial evidence; vacatur and remand were proper under GP § 5-862 |
| Whether County Council exceeded scope of remand or used remand as pretext to reverse decision (change‑of‑mind rule) | Developers: Council re‑evaluated record and required restart, amounting to an impermissible change of mind or beyond remand scope | County: remand under GP § 5-862(a)(2) required reconsideration; council had discretion how to proceed given incomplete/tainted record | Held: Council did not exceed remand scope; its decision to require restarting the process was within its discretion |
Key Cases Cited
- Public Serv. Comm’n v. Patuxent Valley Conservation League, 300 Md. 200 (discovery into decisionmaker mental processes permitted only on strong showing of fraud or extreme circumstances)
- Montgomery County v. Stevens, 337 Md. 471 (same principle limiting inquiry into decisionmaker mental processes)
- People’s Counsel for Baltimore Cnty. v. Country Ridge Shopping Ctr., 144 Md. App. 580 (remand discretion and agency reconsideration framework)
- Maryland Overpak Corp. v. Mayor & City Council of Baltimore, 395 Md. 16 (land‑use proceedings that focus on specific property may be quasi‑judicial)
- Grayned v. City of Rockford, 408 U.S. 104 (vagueness standard)
- Schoenbohm v. FCC, 204 F.3d 243 (upholding agency restriction on ex parte communications)