Md. top court: Development accords need not provide ‘enhanced benefits’

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In a victory for developers over environmentalists, Maryland’s top court has unanimously held that county-approved property-development agreements need not contain provisions ensuring enhanced benefits for the community, such as new schools or better roads.

Nothing in Maryland law or in legislative history governing Development Rights and Responsibilities Agreements compel developers or counties to provide public enhancements, the Court of Appeals said in its 7-0 decision last week. Specifically, the Land Use Article calls for ensuring the preservation of “necessary public facilities” but does not address “enhanced public benefits,” the court added.

“Tellingly, LU Section 7-303(a)(9) does not require that a local governing body determine that any specifically identified condition, term, restriction, or other requirement to ensure the public health, safety, or welfare constitutes an enhanced public benefit, or even a public benefit,” Judge Shirley M. Watts wrote for the court. “Presumably, had the General Assembly intended to include the requirement that a DRRA be supported by enhanced public benefits, the General Assembly would have taken care to define the term ‘enhanced public benefit,’ or otherwise delineate what would constitute an enhanced public benefit. Absent any indication in the relevant statutory language or the legislative history that the General Assembly intended that a DRRA be supported by enhanced public benefits, we decline to construe the DRRA statute to reach such a strained result.”

The court’s ruling marked a defeat for Cleanwater Linganore, which has sought to block the rezoning of nearly 280 acres of Frederick County farmland for residential use. The county, though having approved the rezoning, sided with the environmental group in arguing unsuccessfully on appeal that DRRAs must provide for enhanced public benefits.

“We decline to read into the DRRA statute, and, specifically, LU Section 7-303(a)(9), a requirement that is not evidenced by the clear language and plain meaning of the statute – i.e., we will not add words to the unambiguous DRRA statute to reach the strained result that Cleanwater and the county advocate,” Watts wrote. “What we discern from the legislative history is that the DRRA statue has never required, and was not intended to require, a DRRA to confer enhanced public benefits to the county to be valid. In other words, the DRRA statute’s legislative history fails to demonstrate that the provision of enhanced public benefits by the developer to the county is a requirement of a DRRA.”

New Market development

The change in Frederick County’s position toward DRRAs followed the election of Jan H. Gardner as Frederick’s first county executive in late 2014, as well as the election of the first county council. Frederick had been led by a board of county commissioners, which had approved the DRRA.

Lillian and William Blentlinger’s 2014 DRRA with Frederick County permits them to develop single-family and townhomes on their 279 acres of farmland near New Market. The agreement, as recorded in the county’s land records, limits to 675 the number of residential units permitted and calls for the Blentlingers to pay for any necessary road and sewer improvements but does not call for enhanced public benefits, which prompted Cleanwater to seek judicial review.

The environmental group lost in the first round, as the Frederick County Circuit Court agreed with the Blentlingers in holding that enhanced public benefits are not required.

Cleanwater won the second round, however, when the Court of Special Appeals held the DRRA void because it did not provide for an enhanced benefit for the county.

A DRRA “requires the applicant to provide some public benefit beyond complying with statutory land use standards and otherwise satisfy infrastructure requirements,” the intermediate court stated in a reported opinion last February.

But the Court of Appeals found no such requirement in either the Land Use Article or its legislative history.

“We reiterate the obvious point that, had it desired to do so, the General Assembly could have required a DRRA to be supported by enhanced public benefits,” Watts wrote.

Cleanwater’s attorney, Michele M. Rosenfeld, voiced disappointment with the court’s decision.

“It would appear that the next approach would be to seek a legislative amendment and that could occur at the state level or the county level,” said Rosenfeld, a Rockville solo practitioner.

Negotiation, not legislation

A change in Frederick County law to require DRRAs have an enhanced-benefit provision is a possibility, much as the county altered its position to side with Cleanwater as the case proceeded through the courts, said John S. Mathias, the county attorney.

“The court leaves open the possibility for the county law to be changed,” Mathias added. “That will be evaluated and that would apply to future DRRAs.”

The Blentlingers’ attorney, Thomas E. Lynch III, hailed the court’s decision and said negotiation – not new legislation – is all that counties need to include enhanced-benefits provisions in DRRAs, which by definition are negotiated accords.

“It is entirely a process of negotiation,” said Lynch, of Miles & Stockbridge P.C. in Frederick. “The counties can seek to obtain what commitments they think they need. The existing legislation creates flexibility for both sides.”

The high court rendered its decision in Lillian C. Blentlinger LLC and William L. Blentlinger LLC v. Cleanwater Linganore Inc. et al., No. 13, September Term 2017.