A judge has ordered Frederick County to reconsider its agreements with the developers of the Monrovia Town Center.
The opinion, filed Tuesday, vacates the agreement between the former Board of County Commissioners and the developers, 75-80 Properties, Payne Investments and Monrovia Town Center PUD, that paved the way for the 1,250-home development.
The order came in the wake of a lawsuit from land-use activists Residents Against Landsdale Expansion that challenged the previous Board of County Commissioners’ decision to enter the agreement. The group argued that a letter written by transportation advocates Frederick Area Committee for Transportation, which supported the project, tainted the approval process because Paul Smith, a county commissioner at the time, helped write the letter as the board’s liaison to the group.
Circuit Judge William R. Nicklas Jr. agreed in his written opinion, citing a section of the state code that requires officials to disclose private communications about pending applications to the chief administrative officer.
Since Smith did not disclose his comments on the Town Center at the April 14, 2014, FACT meeting, and his remarks were incorporated into a committee letter to the Board of County Commissioners, the judge found “a breach of ethics that cannot be overlooked.”
Steve McKay, president of RALE, said he was pleased with the ruling.
“This really was a community win yesterday on this decision,” he said Wednesday, noting the support his group had received over the past four years at public hearings on the town center.
The court had yet to consider some of RALE’s more substantive concerns, he added. The judge’s decision focused on ethics, but RALE also objected to what it characterized as a lack of public record on transportation issues surrounding the project.
“The FACT letter was a direct expression of [the board’s] hubris and it was their undoing,” McKay said.
Deborah Israel, an attorney for the Monrovia Town Center developers, responded theatrically in oral arguments by showing Nicklas five boxes of traffic impact documents and then holding up the single-page FACT letter.
Nicklas found that, contrary to the developers’ arguments, the letter could have influenced the board’s vote and he was particularly concerned by the timing of it. He noted that then-Commissioner Blaine Young read the letter into the record just a week before the Monrovia Town Center got its final approval.
“The lack of attribution in the FACT letter was intended to deceive not only members of the Board, but the public at large,” Nicklas wrote.
While Young and former Commissioner David Gray submitted affidavits that the letter didn’t affect their vote, that did not make up for the deception, Nicklas concluded.
Smith’s ethics violation, Nicklas continued, invalidated the Developers Rights and Responsibilities Agreement with the county, meaning the current County Council will be allowed to reconsider it, essentially starting “from scratch.”
County Executive Jan Gardner said she appreciated and respected the judge’s decision, which was the outcome the county had hoped for.
The prior government failed to follow its own rules of ethics, Gardner said, and restarting the process will offer the chance to ensure transparent government processes.
Israel argued that the agreements with the county should be upheld because, among other issues, Gardner proposed a draft bill limiting DRRAs to developments with more than 1,500 homes. That, Israel said in oral argument last month, would preclude the Monrovia Town Center from entering such an agreement and was evidence that the current county government was looking to kill the project using the courts.
Israel did not return calls for comment Wednesday.
Gardner said her bill on DRRAs would go to workshop next week and may undergo changes. She added that the bill was not relevant to the issues before Nicklas.
The Development Rights and Responsibilities Agreement keeps the current government from changing the policies of previous boards. The agreements are designed to offer developers stability by locking in zoning policy as well as road and school fees.
RALE has fought the development out of concerns that it will lead to traffic jams and crowded schools.