An ongoing case involving a proposed 1,200-unit housing and retail development near Urbana was recently argued before the state’s highest court.

The Maryland Court of Appeals heard arguments at a virtual hearing last Wednesday morning, for and against nullifying an agreement in 2014 between the then-county Board of Commissioners and developers Payne Investments and 75-80 Properties to build the proposal in a 391-acre area near Green Valley and Fingerboard roads in Monrovia.

Michele Rosenfeld, attorney for citizens group Residents Advocating for Land Use and the Environment — now known as RALE — argued the Maryland Court of Special Appeals’ decision nullifying the agreement should be upheld, citing the fact that former County Commissioner Paul Smith participated in ex parte communication.

Rosenfeld previously argued Smith unethically influenced the county’s approval process for the site by helping the Frederick Area Committee for Transportation (FACT) write a letter urging the county to enter into the agreement, The News-Post previously reported. She repeated that argument Wednesday.

Louis Rouleau, an attorney for the developers, however, argued the county commissioners and Planning Commission made a “procedural error” and that Supreme Court case law indicates the FACT letter should not factor into whether the Court of Appeals should grant the zoning approval for the development.

The FACT letter is outside the scope of what should have been considered during the approval process, they argued.

“The case law is really, really clear … that any administrative or governing body that goes beyond a mandate of a remand ... that in and of itself is an error of law that the next reviewing court need not consider,” Rouleau said Wednesday. “We submit the moment that the county council went beyond sort of the purview and the scope of the mandate, which was, tell me about the FACT letter.”

Judge Brynja Booth asked several questions of both sides during the hearing. At one point, she asked Rosenfeld about how RALE was “harmed by this 11th hour, one-page letter?” and later why that letter was relevant to the case.

Rosenfeld said the letter provided key evidence that supported the development.

“From 20,000 feet above, perhaps it looks to you as if there is evidence in the record to support this,” she said of the development being approved without the letter. “From our point of view, there was not, and from the very beginning it is our position is the FACT letter was created to influence the appellate review process.”

Neither Rosenfeld nor Rouleau could be reached for comment via phone Friday.

Last year, the Court of Special Appeals affirmed a lower court’s ruling that nullified the agreement, stating the FACT letter was indeed biased and influenced county officials’ decision to allow the development.

“Because of FACT’s failure to attribute its arguments to Commissioner Smith and because of the Commissioner’s failure to identify the arguments as his own when they reappeared in the FACT letter, the court could reasonably infer that the letter was the product of a covert effort to recast a partisan argument in the guise of a neutral, expert opinion,” part of the opinion stated.

If the Court of Appeals affirms with the Special Court of Appeals, then the developers would have to reapply to the County Council if they want to rezone the land, The Frederick News-Post previously reported.

Follow Steve Bohnel on Twitter: @Steve_Bohnel

Steve Bohnel is the county government reporter for the Frederick News-Post. He can be reached at sbohnel@newspost.com. He graduated from Temple University, with a journalism degree in May 2017, and is a die-hard Everton F.C. fan.

(5) comments

petersamuel

I can't believe the Board of County Commissioners were influenced by Paul Smith's letter under the FACT letterhead. I was a member of FACT at the time. We were a pro-transportation group and we supported everything that funded road improvements. All we needed to know was that a development would help fix an intersection or add a turning lane, and we were for it. Support for projects like this was so routine I doubt County commissioners cared, or even noticed, whether they got a letter from FACT.

rnrbug

Oh it mattered....

petersamuel

What's the evidence it mattered, mrbug? And. how did it matter?

hayduke2

Sure, that's why such a big deal was made of it and it was read into the record with such gusto. Come on man, it was intended to support a bad decision.

petersamuel

Certainly, Hayduke2 it was INTENDED to support the decision. But that says nothing about whether it actually influenced the decision. What's the evidence it changed any vote? I haven't seen any, and knowing how routine ly this group lent its support to projects where the developer was widening a road or doing other transport improvements favored by FACT it makes no sense to me to think it had influence. Surely the County Commissioners decided how to vote based on public opinion, their view of the importance of new housing, and their relationship with the developer. FACT was simply not an influential group. I enjoyed participating in it as a discussion forum but I never saw any indication it influenced anything.

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