75-80 Properties v. RALE, Inc.

75-80 Properties, L.L.C., et al. v. RALE, Inc., et al., No. 59, September Term, 2019, Opinion by Booth, J. STATUTORY INTERPRETATION – FREDERICK COUNTY ETHICS ORDINANCE APPLICABLE TO ETHICS VIOLATIONS DURING DEVELOPMENT APPROVAL PROCESS. Under the plain language of the Frederick County Ethics Statute, Maryland Code, General Provisions Article (“GP”) § 5-862, the circuit court was not required to undertake a procedural due process analysis and determine whether the violation of the ethics statute denied an aggrieved party procedural due process within the underlying zoning proceeding. Under the plain language of the statute, the circuit court is required to determine, within the context of a judicial review proceeding, whether a violation of the Ethics Statute occurred. If the circuit court makes a factual determination that a violation occurred, its work is done, and the court “shall” remand the matter to the Frederick County governing body for “reconsideration.” The Ethics Statute does not provide any parameters or limitations on Frederick County’s reconsideration proceedings on remand.

Accordingly, the Frederick County Council has the authority to determine the scope of the proceeding. After the circuit court determined that a violation of the Ethics Statute occurred, and after the Frederick County Council determined that it would conduct a de novo hearing on the Developers’ application, the circuit court did not err in vacating the development approvals in connection with its remand order, given the Developers’ refusal to participate in the reconsideration proceeding. DOCTRINE OF ZONING ESTOPPEL. The Court of Appeals declined to recognize or apply equitable estoppel under the facts of this case.

Assuming (without deciding) that the Court recognizes the doctrine, the Developers did not demonstrate the elements of good faith and substantial reliance on the development approvals where the actions alleged to have been made in reliance on the development approvals consisted of either: prospective concessions or agreements negotiated in anticipation of receiving discretionary final development approval; or actions undertaken at their own risk after receiving final development approval during the pendency of a judicial review proceeding. The Court also held that there was no ambiguity in the definition of ex parte communication that would warrant the application of principles of equitable estoppel. Circuit Court for Frederick County Case No.: 10-C-14-001899 Argued: May 13, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 59 September Term, 2019 75-80 PROPERTIES, L.L.C., et al. v. RALE, INC., et al. Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Booth, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-08-24 14:51-04:00 Filed: August 24, 2020 Suzanne C. Johnson, Clerk This case requires that we examine a special provision of the Maryland Public Ethics Law, codified in the General Provisions Article (“GP”) of the Maryland Code at §§ 5-857 – 5-862, that applies when the Frederick County governing body is undertaking review of a zoning or development application. Under the statute, a member of the governing body must disclose ex parte communications with any individual concerning a pending zoning or development application during the pendency of the application. If a violation of the statute occurs, the Frederick County Ethics Commission or any aggrieved party of record has standing to raise the violation within a petition for judicial review by the circuit court. If the circuit court determines that a violation has occurred, the language of the statute mandates that the circuit court remand the proceeding to the Frederick County governing body for “reconsideration.” In this case, upon consideration of petitions for judicial review filed by a local citizens group that opposed the Developers’ application, the Circuit Court for Frederick County found that a former member of the Frederick County Board of Commissioners had violated the ethics statute by engaging in an ex parte communication, during the pendency of a proceeding to apply a floating zone to an approximately 400-acre property.

The circuit court remanded the case to the Frederick County Council for reconsideration. The Frederick County Council decided to reconsider the Developers’ rezoning and development application in a de novo proceeding. Upset with the Council’s decision that the application be considered anew, the Developers refused to participate. Having reached an impasse, the Frederick County Council requested that the circuit court enter an appropriate order which would allow the Council to proceed with a de novo reconsideration proceeding.

As part of its remand, the circuit court vacated the original development approvals. The Developers appealed to the Court of Special Appeals. In a reported opinion, the Court of Special Appeals affirmed the judgment of the circuit court. 75-80 Props., LLC v. RALE, Inc., 242 Md. App. 377 , 416–17 (2019). For the reasons set forth in this opinion, we affirm the judgment of the Court of Special Appeals.

I. Background A. The Developers’ Development Applications In November 2012, Petitioners Payne Investments, LLC and 75-80 Properties, LLC (collectively “the Developers”) filed an application to rezone approximately 450 acres of land in southeastern Frederick County from its current agricultural designation1 to allow for a planned unit development (“PUD”), 2 to be called the “Monrovia Town Center.” The 1 The Developers’ property is zoned in the Agricultural District (A) under the Frederick County Zoning Ordinance. The Zoning Ordinance describes the purpose of the Agricultural District (A) as preserving “productive agricultural land and the character and quality of the rural environment and to prevent urbanization where roads and other public facilities are scaled to meet only rural needs.” Frederick County Code, § 1-19-5.220. 2 The PUD District is a floating zone under the Frederick County Zoning Ordinance. For a discussion of floating zones generally, see County Council of Prince George’s County v. Zimmer Development Co., 444 Md. 490 , 514–17 (2015). Floating zones are often used to allow the development of specialized or mixed uses.

Id. at 515 (citations omitted). As part of the approval process for a floating zone, the local zoning authority “must find generally that the legislative prerequisites for the zone are met and the rezoning is compatible with the surrounding neighborhood[.]” Id. (citations omitted). According to the Frederick County Zoning Ordinance, the purpose and intent of the floating zones is to “provide new development and redevelopment within identified growth areas that result in an integrated mixture of commercial, employment, residential, recreational, civil and/or 2 application sought approval for the construction of 1,510 residential units.

Along with the PUD rezoning application, the Developers filed an application for a development rights and responsibilities agreement (“DRRA”), to contractually secure the zoning and development approvals for a term of years, pursuant to Maryland Code, Land Use Article (“LU”) § 7-304(a). Additionally, the Developers requested an Adequate Public Facility Ordinance Letter of Understanding (“APFO LOU”) which would define the public facilities (such as road improvements and sewer facilities) that would be required to be constructed to satisfy the County’s Adequate Public Facilities Ordinance (the PUD, DRRA, and APFO LOU are sometimes collectively referred to as the “Development Approvals”). In November 2013, the Frederick County Planning Commission (“the Planning Commission”) voted to recommend that the Board of County Commissioners approve the PUD and found that the draft DRRA was consistent with the County’s Comprehensive Plan. After holding three public hearings in January 2014, the Board of County Commissioners approved the PUD, subject to a number of conditions.

The Developers accepted the conditions. In March 2014, the Planning Commission recommended approval of a revised plan. In April 2014, the Board of County Commissioners held a total of four public hearings concerning the Development Approvals for the Monrovia Town Center. The public hearings were well-attended, and there was considerable public opposition to the proposed development.

Much of the public opposition focused on traffic safety and adequacy of public cultural land uses as provided within the appropriate Frederick County Comprehensive, Community, or Corridor Plan.” Frederick County Code, § 1-19-10.500.1. 3 roads. Throughout the approval process, a local citizens opposition group, Residents Against Landsdale Expansion (“RALE”), actively participated in the public hearings. B. The Ex Parte Communications: Commissioner Smith, the FACT Meeting, and FACT Letter On April 14, 2014, before the Board’s final public meeting, Commissioner C. Paul Smith attended a public meeting of the Frederick Area Committee for Transportation (“FACT”). FACT is composed of representatives of the business community and the local government who have training or expertise in transportation issues.

FACT’s mission is to analyze the efficacy of and promote the development of transportation improvements in the County. Commissioner Smith was the Board of County Commissioners’ representative on the FACT advisory board. FACT’s advisory board also included Michael Smariga, a retired principal in the engineering firm engaged by the Developers to process the rezoning application. Michael Smariga’s son, Christopher Smariga, was the lead engineer in creating and processing the application.

At the FACT meeting on April 14, 2014, Commissioner Smith spoke in favor of the proposed development, and argued that the improvements the Developers proposed to make to the nearby highways (MD Routes 75 and 80) would substantially upgrade the regional transportation network and benefit all the residents in that area of the County. The arguments that Commissioner Smith articulated in favor of the Developers’ application ultimately were included in a letter purportedly from FACT to the Board of County Commissioners in support of the Developers’ application. The FACT letter was sent to the Board of County Commissioners via electronic mail at 2:41 p.m. on April 23, 2014—a 4 little more than three hours prior to the beginning of the final public hearing on the Developers’ application. Although Commissioner Smith’s arguments were included in the letter, the arguments were not attributed to Commissioner Smith.

C. Final Board of County Commissioners’ Hearing on the Developers’ Application At the public hearing on April 23, the Board of County Commissioners considered public comment from numerous witnesses, including the county staff, the Developers, RALE representatives, and the public. Like the other public hearings concerning the Developers’ application, testimony from the public again focused overwhelmingly on traffic safety and road adequacy concerns. One of the witnesses was RALE’s traffic consulting engineer, who testified that the Developers’ traffic study was flawed. At the conclusion of all of the evidence, the Board of County Commissioners President, Blaine Young, introduced and read the entire FACT letter into the record, stating that the development of the Monrovia Town Center would provide “significant funding for improvements” in the Monrovia area, and that this “public-private partnership is the only likely scenario for any significant improvement at this point.” After reading the FACT letter into the record and naming its signatory (FACT’s secretary, Michael Proffitt), President Young then read the names of each of the FACT directors (though not the names of the advisory board members, which included Commissioner Smith).

When Commissioner David Gray asked whether each of FACT’s directors had signed the letter, President Young responded that they had not, but that they had given their authority for the letter to be signed. Counsel for RALE asked for an opportunity to cross-examine a representative of FACT on the letter. President Young responded that FACT was submitting a letter, not 5 testifying, and accepted the letter into evidence over RALE’s objection. President Young then called upon the Developers to rebut RALE’s case.

Counsel for the Developers emphasized the importance of the FACT letter and its contents, stating that “FACT might be the most apolitical organization in Frederick County,” that “FACT doesn’t care where or when land gets developed,” and that “FACT cares strictly and solely about funding for transportation.” At the end of the meeting, the Board voted to approve the PUD, the DRRA, and the APFO LOU by a vote of 4-1. The Commissioners signed the operative documents on May 29, 2014. Even though the effect of the proposed Monrovia Town Center on regional transportation facilities, and in particular MD Route 75, was a hotly contested issue, Commissioner Smith did not disclose prior to the Board of County Commissioners’ vote on April 23, 2014 that he attended the FACT meeting on April 14 and that he provided detailed arguments to FACT in support of the Developers’ application, which were then included in the FACT letter. On June 3, 2014, a few days after the PUD, the DRRA, and the APFO LOU took effect, a local newspaper reported that most of the FACT members, including its president, had not seen the letter before it was sent, nor had the members voted on the correspondence or discussed its contents as a group.

The newspaper reported that two FACT directors, Michael Proffitt and Michael Smariga, collaborated to draft the letter at Commissioner Smith’s request, and that Commissioner Smith had stayed after the FACT meeting to discuss his arguments with Mr. Smariga. Around the same time as the publication of the 6 newspaper article, FACT submitted a second letter, characterizing its first letter’s contents as “public comment” and stating that it was “not to be considered evidence.” II. Proceedings Below A. Petition for Judicial Review RALE and certain neighboring landowners filed timely petitions in the Circuit Court for Frederick County, seeking judicial review of the approval of the PUD rezoning, the DRRA, and the APFO LOU. The circuit court scheduled a hearing on the petitions for January 26, 2015.

Prior to the hearing, RALE learned of Commissioner Smith’s discussions with FACT representatives about the Developers’ application. On January 15, 2015, RALE issued trial subpoenas for Commissioner Smith, FACT’s secretary, Michael Proffitt, and Ronald Burns (FACT member and County traffic engineer) to appear at the hearing. The County and the Developers filed motions to quash the subpoenas. During the January 26, 2015 hearing, the circuit court heard arguments on the motions to quash the subpoenas.

RALE argued that, under Public Service Commission v. Patuxent Valley Conservation League, 300 Md. 200, 214 (1984), it may take testimony about an administrative decisionmaker’s mental process if it can make a strong showing of fraud or extreme circumstances that occurred outside the scope of the administrative record. RALE also argued, among other things, that Commissioner Smith had “orchestrated” the creation of the FACT letter, i.e., that he had participated in the creation of evidence in an administrative proceeding in which he was one of the quasi-judicial decisionmakers. 7 The circuit court issued an order dated January 27, 2015, quashing the subpoenas issued to the two FACT representatives. The court denied the motion to quash the subpoena issued to Commissioner Smith and ruled that Commissioner Smith could be examined regarding fraud, arbitrariness, capriciousness, and exceptional circumstances in connection with the FACT letter. The County, the Developers, and former Commissioner Smith all filed motions to reconsider the January 27 order.

In addition, on February 23, 2015, RALE filed a motion to remand the Developers’ PUD rezoning application to the newly constituted County Council.3 In support of its motion to remand, RALE relied upon the Frederick County Ethics Statute, GP §§ 5-857 – 5-862. Specifically, RALE argued that Commissioner Smith had engaged in undisclosed ex parte communications concerning the Developers’ application, in violation of GP § 5-859(b). Consequently, RALE argued that the circuit court was required to “remand the case to the governing body for reconsideration” in accordance with the requirements set forth in GP § 5-862(a)(2). 1. Circuit Court’s March 10, 2015 Remand Order On March 10, 2015, the circuit court held a hearing on the pending motions and issued an opinion and order remanding the PUD application, and related approvals, to the County Council.

The court based its order on the following findings of fact: (1) That Commissioner Smith attended the April 14, 2014 FACT Committee meeting; 3 On December 1, 2014, Frederick County became a charter county, with a County Executive and a County Council, rather than a Board of County Commissioners. 8 (2) That Commissioner Smith commented on [the Developers’] pending zoning application, as reflected in the April 14, 2014 FACT Committee Meeting Minutes; (3) That [GP § 5-859(b)] states: “A member of the governing body who communicates ex parte with an individual concerning a pending application during the pendency of the application shall file with the Chief Administrative Officer a separate disclosure for each communication within the later of 7 days after the communication was made or received,” and therefore requires disclosure of such communications; (4) That pursuant to the Public Ethics 2014 Annual Report to the Frederick County Ethics Commission, wherein the [Board of County Commissioners] discloses ex parte communications, Commissioner Smith’s comments were not disclosed; (5) That the FACT Committee incorporated the information from Commissioner Smith into its April 23, 2014 letter to the [Board of County Commissioners]; (6) That the FACT letter was presented to the Commissioners with the intent to influence the pending vote; (7) That the FACT letter was read into the record at the end of testimony by [the Board of County Commissioners] President, Blaine Young, which is highly suggestive that the [Board] relied upon it. The court further stated that it could not make a judgment about whether the record supported the decision to approve the PUD because the FACT letter, its timing, and the potential that the Board members had relied on it “form[ed] an integral part of the record.” Additionally, the circuit court “found the facts and circumstances to be extreme and [] therefore Petitioners have met their burden of making a strong showing as to an extreme circumstance.” Based on these findings, the court ordered a remand “to the County for further proceedings, including testimony, to resolve the issues raised in [its] Opinion.” At the same time, the circuit court quashed the subpoena served on Commissioner Smith, 9 presumably because of the remand for further proceedings, including testimony. The court did not dismiss the case. 2. Remand Proceedings Before the Frederick County Council In conformance with the circuit court’s opinion and order, the County Council held public hearings on June 9 and 16, and September 1, 2015.

The County Council requested affidavits from former Commissioners Smith, Young, and Gray regarding “their position on the significance of the FACT correspondence on the case.” Commissioner Gray, the sole vote against the application, stated that the letter had no effect on his vote and that “[i]ts source was suspect and its validity in question.” Commissioner Young, who had voted in favor of the application, stated that he would have voted to approve even if the FACT letter had not been introduced. Similarly, two councilmembers who had been County Commissioners in 2014 told their new colleagues that the FACT letter did not affect their decision. Commissioner Smith declined to submit an affidavit. Citing the threat of criminal prosecution,4 Commissioner Smith submitted a five-page letter in which he did not deny that the discussion with FACT representatives had occurred or that he had participated in drafting the FACT letter.

Instead, he argued, among other things, that the prohibition on undisclosed ex parte communications by a quasi-judicial decisionmaker would violate his First Amendment right to freedom of speech. 4 Under GP § 5-862(b)(1), a knowing and willful violation of the restriction on ex parte communications is a misdemeanor. 10 In connection with the hearing, the Council received lengthy written submissions from RALE and from attorneys for the Developers. Additionally, the Council heard from members of the public, some of whom repeated what they had read in the newspaper that former Commissioner Smith had asked one or more of the FACT board members to submit a letter on FACT’s behalf and that the directors of FACT had not authorized the letter. Perhaps because of the limitations on the Council’s subpoena power,5 it did not compel testimony from former Commissioner Smith, Mr. Smariga, Mr. Proffitt, FACT’s president, or other persons who may have had personal knowledge concerning the FACT letter. No one testified concerning how Commissioner Smith’s arguments made at the April 14 FACT meeting ended up in the FACT letter as FACT’s opinion or provided an explanation as to why FACT appeared to distance itself from the first letter after the PUD was approved by sending a second letter in which FACT attempted to qualify its first letter as “public comment” and not as “evidence.” At the conclusion of the September 1 hearing, the County Council approved a motion, which found that as a result of the undisclosed ex parte communications, reconsideration by the County Council should be de novo, starting with a new hearing 5 Section 211 of the Frederick County Charter states that, in investigating “the affairs of the County and the conduct and performance of any Agency,” the Council may issue a subpoena to “any current County employee, County agency or department, or contractor doing business with the County upon the affirmative vote of at least six council members.” Assuming a remand would be considered an investigation “of the affairs of the County,” the Council still could not issue a subpoena without the approval of a supermajority of its members.

Even then, it appears that the Council’s subpoena powers only extended to current employees, agencies, departments, or contractors doing business with the County. 11 before the Planning Commission on the Developers’ PUD rezoning application. The motion approved by the Council was as follows: Council Member Keegan-Ayer moved to send the entire matter back to the Frederick County Planning Commission (FcPc) to begin again, because at this time it is not possible to reconcile the affidavits and statements made and submitted to the Council with respect to this letter and its alleged influence on the previous Board of County Commissioners[’] decision with the actions, statements, and behavior surrounding the letter; its inception; its creation; its phraseology; its timing and its introduction and handling once it was introduced[.] The motion also contemplated that the Planning Commission would report back in six months or less, and that if possible, the Developers’ fees would be waived. The motion passed by a vote of 4-3. Following the Council’s directive, Frederick County proceeded to send the matter to the Frederick County Planning Commission.

However, the Developers informed the County that they would not return to the Planning Commission, contending that they had vested rights in the prior approvals. Without the applicant present for consideration of the application, the Planning Commission and the Council were unable to proceed. The County Council subsequently adopted formal findings of fact in connection with the remand proceeding in Resolution 17-04, titled “County Council Post Remand Conclusions,” effective on February 7, 2017 (“Remand Conclusions”). Based upon the testimony and other evidence presented at the remand hearings, the Council concurred with the circuit court’s findings of fact that Commissioner Smith had engaged in undisclosed ex parte communications by consulting with FACT about the Developers’ PUD rezoning 12 application and providing input culminating in the creation of the FACT letter.

The Council found: Other than the statements submitted by the former County Commissioners, the testimony and exhibits presented to the County Council during the hearings were consistent with [the circuit court’s] findings regarding former Commissioner Smith’s ex parte activities: attending the April 14, 2014, Frederick Area Committee for Transportation (FACT) Committee meeting; commenting during that meeting about the [Monrovia Town Center] pending applications; [and] failing to disclose those ex parte communications as required by law; which led to the preparation of the FACT letter dated April 23, 2014, and its presentation to the Board of County Commissioners (BOCC) near the conclusion of its hearing with the intent to influence the upcoming vote; [and] the reading into the record of the letter by the then Board President at the end of the testimony. In the Remand Conclusions, the Council determined that “[t]he aggregate of the information reveals extreme irregularity surrounding the FACT letter, including the timing of its presentation, handling by the [Board] President during the hearing, and the emphasis placed on this ‘last minute’ document during the applicant’s rebuttal were extremely irregular.” The Council commented on what it viewed as inconsistencies between comments by the Board President at the hearing, and the information that it later discovered. Specifically, the Council pointed out that the Board President represented that the entire FACT board had approved the letter, when in fact, testimony and documentation later revealed that only two FACT members generated the letter. Additionally, one of the FACT members generating the letter was a retired principal of the engineering firm representing the Developers and the father of an individual who had been a lead engineer for the Developers before and during the approval process.

The Council also observed that 13 Commissioner Smith “did not testify during the Council hearings nor did he submit sworn testimony,” as he had been requested to do. Because the Developers declined to return to the Planning Commission and said they would oppose any effort to reconsider the PUD, DRRA, and the APFO LOU, the Council recognized that they were at an impasse, concluding that it had “done what it can to fully comply with the Remand Order.” In its Remand Conclusions, the County Council requested “that the Court take such action as it deems necessary and appropriate so that the County Council may rehear the [Monrovia Town Center] application.” 3. Circuit Court’s September 29, 2017 Opinion and Order After hearing legal arguments, the circuit court issued an opinion and order on September 29, 2017, in which it vacated the approval of the PUD, DRRA, and APFO LOU (the latter two documents being dependent upon the Developers successfully obtaining PUD zoning approval).6 In its opinion, the circuit court found, again, that Commissioner Smith had engaged in an undisclosed ex parte communication, in violation of GP § 5-859(b). The court also found that “because of its timing,” the ex parte communication was “deceitful to the Government as well as the public.” The court stated under these circumstances, Commissioner Smith’s “breach of ethics” could “not be overlooked.” 6 The DRRA gave the Developer contractual rights to develop the property consistent with the PUD zoning at a maximum density of 1,250 residential dwelling units for a term of 18 years.

Without PUD zoning approval, the property cannot be developed at the same scale and density under the current agricultural zoning designation. Accordingly, the DRRA and APFO LOU are contingent upon the Developer receiving PUD approval. 14 The court also determined that the FACT letter, which was generated as a result of Commissioner Smith’s ex parte communications, was a “substantial factor” in the Board of Commissioners’ approval of the Developers’ PUD rezoning application: In analyzing the FACT letter’s significance, it is necessary to discuss the mission of FACT as well as the contents and timing of the letter. FACT is devoted to advocating for major transportation issues in Frederick County. FACT’s opinion is relied upon by various governing bodies in Frederick County, including the Board of Commissioners as a neutral, unbiased entity.

Commissioner Smith inserted his opinion into FACT’s decision[-]making process and subsequently failed to disclose his involvement. FACT’s use of Commissioner Smith’s opinion without attribution tainted its assessment. Furthermore, transportation concerns remained a major issue during various meetings pending approval of the [PUD]. The FACT letter, as read into the Board of Commissioners’ hearing record, addresses the potential traffic issues.

The letter also argues [for] the “large benefits from the approval of the [PUD].” By citing only positive outcomes of approval of the project, the FACT letter was introduced to sway the Commissioners’ votes toward approval of the project and to dissuade the community’s fears of the pending project.” The court also concluded that the timing of the letter “increase[d] its propensity to influence a Commissioner’s vote.” The court stated that “the lack of attribution in the FACT letter was intended to deceive not only members of the Board, but the public at large.” Because the court concluded that it was unable to determine whether the Commissioners acted properly in approving the PUD, the court relied upon People’s Counsel for Baltimore County v. Country Ridge Shopping Center, 144 Md. App. 580, 593 (2002), for the proposition that it “should remand to the agency for further proceedings.” 15 The court rejected the Developers’ argument that they had vested rights in the DRRA which prevented a remand, reasoning that the governing body’s violation of the ethics provisions set forth in GP § 5-859 “prevents the enforcement of the DRRA.” In a separate order, the circuit court remanded the case to the County Council and vacated the PUD, the DRRA, and the APFO LOU. The Developers and Commissioner Smith appealed.7 B. The Court of Special Appeals In a reported opinion, the Court of Special Appeals affirmed the judgment of the circuit court. 75-80 Props., LLC, v. RALE, Inc., 242 Md. App. 377 , 416–17 (2019). The Developers and Commissioner Smith argued that Commissioner Smith’s communications were not ex parte communications under GP § 5-859. Id. at 397.

The Court of Special 7 In its opinion, the Court of Special Appeals stated that “[i]t is unclear how Commissioner Smith has a right to be heard in this appeal.” 75-80 Props., LLC v. RALE, Inc., 242 Md. App. 377 , 396 n.9 (2019). The intermediate appellate court pointed out that Commissioner Smith was never a party to the circuit court proceeding, and that he did not file a notice of appeal until 34 days after the entry of final judgment. Id. Under these circumstances, the Court of Special Appeals considered Commissioner Smith’s arguments “as if they were those of an amicus.” Id.

The Court of Special Appeals rejected Commissioner Smith’s argument that the statute violates his First Amendment rights. The court explained that Commissioner Smith was a quasi-judicial decisionmaker and restrictions on ex parte communications with judges and quasi-judicial decisionmakers are common. Id. at 403–05. The Court of Special Appeals also explained that the statute does not “prohibit the Commissioner from speaking about anything; it merely required him to disclose ex parte communications concerning certain land-use disputes that were pending before him as a quasi-judicial decisionmaker.” Id. at 404 .

The intermediate appellate court also rejected Commissioner Smith’s argument that the Ethics Statute was unconstitutionally vague, stating that “[i]n our judgment, persons of ordinary intelligence could discern that [GP] § 5-859(b) required them to disclose that they had engaged in such communications.” Id. at 406. Commissioner Smith filed a petition for writ of certiorari, which this Court denied. 16 Appeals rejected this argument, concluding that by its plain terms, the statute requires the disclosure of ex parte communications “with an individual concerning a pending application.” Id. at 400 (emphasis in original). The intermediate appellate court reasoned that if the General Assembly “intended to confine the statute’s scope to communications with an ‘applicant’ or a ‘party’” (the interpretation taken by the Developers and Commissioner Smith), “it could have done so . . . .” Id. Accordingly, the Court of Special Appeals held that the circuit court correctly found that the Ethics Statute applied to Commissioner Smith’s communications with FACT.

Id. at 403. Additionally, the Developers argued that the record did not support the circuit court’s findings and subsequent vacatur. Id. at 408. The intermediate appellate court disagreed, finding that there was adequate factual basis for the circuit court to conclude “that Commissioner Smith had procured evidence in a proceeding that was pending before him as a quasi-judicial decisionmaker.” Id. at 407.

Because there was support in the record for this finding, it was not unreasonable for the court to find a violation of the ethics law. Id. The Court of Special Appeals held that under the plain and mandatory terms of GP § 5- 862(a)(2), the circuit court was required to remand the case after concluding that the ethics law was violated. Id. at 409.

Accordingly, the court affirmed the judgment of the circuit court. Id. at 416–17. The Developers petitioned for a writ of certiorari, which we granted to consider the following questions, which we have rephrased:8 8 The questions presented in the writ of certiorari were: 17 1. When a circuit court considers whether a member of the Frederick County governing body violated the Frederick County Ethics Statute during the pendency of a zoning approval, does the Ethics Statute, GP § 5-862, require that the court determine that the petitioner suffered a procedural due process violation prior to remanding the matter to the Frederick County governing body for reconsideration? 2.

Did the circuit court err in entering an order vacating the development approvals obtained by the Developers after making a factual determination that a member of the Frederick County governing body violated the Ethics Statute, and after the County Council determined on remand that it would conduct a de novo review of the development application, but the Developers refused to participate in the reconsideration proceeding? 3. Whether zoning estoppel should be applied under the facts of this case? For the reasons set forth below, we answer each of these questions in the negative and affirm the judgment of the Court of Special Appeals. 1. On a petition for judicial review of land use approvals, must the reviewing court evaluate an ex parte violation through the narrow lens of “procedural error,” as expressly prescribed by Md. Code (2014) §§ 5-859 and 5-862 of the General Provisions (“GP”) Article? 2.

On a petition for judicial review, may a court vacate county approvals, including an executed [DRRA], based solely on the County’s violation of GP §5-862, when the statute expressly provides that the only remedy in the land use context is remand? 3. Does zoning estoppel apply where developers, acting in good faith, substantially relied on, and partially performed under, fully-vetted county approvals and an executed DRRA, and the misconduct stems solely from the government’s actions? 18 III. Discussion In this case, we are being asked to determine whether the circuit court correctly interpreted and applied the Ethics Statute. This Court reviews issues of statutory interpretation de novo.

Bd. of Cty. Comm’rs of Washington Cty. v. Perennial Solar, LLC, 464 Md. 610, 617 (2019) (quoting Koste v. Town of Oxford, 431 Md. 14, 25 (2013) (“When an issue involves an interpretation and application of Maryland constitutional, statutory, or case law, an appellate court must determine whether the trial court’s conclusions are legally correct under a de novo standard of review.”)) (internal citations omitted). To the extent that the circuit court made findings of fact in connection with the application of the Ethics Statute, we review those findings under a clearly erroneous standard. See Md. Rule 8- 131(c). “If there is any competent material evidence to support the factual findings of the [circuit] court, those findings cannot be held to be clearly erroneous.” YIVO Inst. for Jewish Research v. Zaleski, 386 Md. 654, 663 (2005) (citations omitted).

In determining whether the findings are supported by substantial evidence, we view the evidence in the light most favorable to the prevailing party. Gen. Motors Corp. v. Schmitz, 362 Md. 229 , 233–34 (2001) (citations omitted). The Developers argue that the circuit court incorrectly interpreted and misapplied the Ethics Statute, GP § 5-862.

They contend that the statute requires that the circuit court undertake a procedural due process analysis when considering an ethics violation arising under the statute. Specifically, the Developers posit that the circuit court was required to determine whether RALE had notice and an opportunity to cross-examine or rebut the 19 FACT letter. The Developers argue that under the facts of this case, RALE suffered no procedural due process violation and therefore, the circuit court erred in remanding the matter to the Frederick County Council for reconsideration. The Developers also assert that the circuit court exceeded its authority to vacate the Development Approvals.

The Developers contend that under the language of GP § 5-862, the circuit court’s only remedy upon finding a violation of the Ethics Statute was to remand the matter to the Frederick County Council. Finally, the Developers argue that the Court should recognize and apply the doctrine of zoning estoppel under the facts of this case. In response, RALE and Frederick County (“Respondents”) contend that the Developers misconstrue the plain language of GP § 5-862, which is devoid of any requirement that the circuit court undertake a procedural due process analysis. Respondents argue that under the plain language of the statute, the court is simply required to determine whether an ethics violation occurred.

If the court makes that factual determination, Respondents assert that under the plain language of the statute, the court is required to remand the matter back to the Frederick County governing body for reconsideration. Respondents argue that the circuit court did not err in vacating the approvals in the context of its order remanding the case to Frederick County, given the Developers’ refusal to participate in the reconsideration proceeding established by the Frederick County Council. With respect to zoning estoppel, Respondents assert that, assuming that this Court recognizes the doctrine, its application is not warranted under the facts of this case. 20 A. The Developers’ Contentions Concerning the Interpretation and Application of the Frederick County Ethics Statute 1. Principles of Statutory Construction Despite the somewhat unusual and complex procedure recited above, the legal issues presented in this case require that the Court undertake a straightforward analysis of the language of a statute.

In matters involving statutory construction, the canons applied by this Court are well-settled and have been oft repeated. The predominant goal of statutory construction is to “ascertain and effectuate the intention of the legislature.” Md.- Nat’l Capital Park & Planning Comm’n v. Anderson, 395 Md. 172, 182 (2006) (citations and quotations omitted). As we have explained, “to determine that purpose or policy, we look first to the language of the statute, giving it its natural and ordinary meaning.” Id. (citations and quotations omitted); see also Chow v. State, 393 Md. 431, 443 (2006) (stating that “[s]tatutory construction begins with the plain language of the statute, and the ordinary, popular understanding of the English language dictates the interpretation of its terminology”) (citations omitted). “We do so on the tacit theory that the General Assembly is presumed to have meant what it said and said what it meant.” Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc., 456 Md. 272, 294 (2017) (“Blentlinger”) (citations omitted). “When the statutory language is clear, we need not look beyond the statutory language to determine the Legislature’s intent.” Walzer v. Osborne, 395 Md. 563, 572 (2006) (citations and quotations omitted). “If the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written.” Blentlinger, 456 Md. at 294 21 (citations omitted).

Additionally, we “neither add nor delete words to a clear and unambiguous statute to give it a meaning not reflected in the words the Legislature used or engage in forced or subtle interpretation in an attempt to extend or limit the statute’s meaning.” Walzer, 395 Md. at 572 (citations and quotations omitted). “If there is no ambiguity in the language, either inherently or by reference to other relevant laws or circumstances, the inquiry as to legislative intent ends.” Blentlinger, 456 Md. at 294 (citation omitted); Walzer, 395 Md. at 572 (citations and quotations omitted). If the language of the statute is ambiguous, “then courts consider not only the literal or usual meaning of the words, but their meaning and effect in light of the setting, the objectives and the purpose of the enactment under consideration.” Anderson, 395 Md. at 182 (citations and quotations omitted). “[A]mbiguity exists within a statute when there are two or more reasonable alternative interpretations of the statute.” Melton v. State, 379 Md. 471, 477 (2004) (citations and quotations omitted). “When a statute can be interpreted in more than one way, the job of this Court is to resolve that ambiguity in light of the legislative intent, using all of the resources and tools of statutory construction at our disposal.” Blentlinger, 456 Md. at 295 (citations omitted). In construing a statute, “we avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense.” Bellard v. State, 452 Md. 467, 482 (2017) (citations omitted). Additionally, the “meaning of the plainest language is controlled by the context in which it appears.” Md. Dep’t of the Env’t v. Cty.

Comm’rs of Carroll Cty., 465 Md. 169, 203 (2019) (citations and quotations omitted). As this Court has stated, 22 [b]ecause it is part of the context, related statutes or a statutory scheme that fairly bears on the fundamental issue of legislative purpose or goal must also be considered. Thus, not only are we required to interpret the statute as a whole, but, if appropriate, in the context of the entire statutory scheme of which it is a part. Id.

(citations omitted). We apply these principles of statutory construction to the Ethics Statute. 2. The Frederick County Ethics Statute – General Legislative Framework The Frederick County Ethics Statute is codified at GP § 5-857, et seq. It was adopted by the General Assembly in 2007. 2007 Md. Laws, Chap. 474.9 The purpose of the legislation was to establish “certain ethics requirements that relate to planning and zoning proceedings and apply to members” of the County’s governing body, then the Frederick County Board of Commissioners.

Id. The Frederick County Ethics Statute generally describes three types of prohibited conduct: (1) certain campaign contributions by persons pursuing zoning applications before the Frederick County Board of County Commissioners (see GP § 5-858(a)); (2) a member of the governing body participating in zoning proceedings if the member 9 As originally enacted in 2007, the statute was codified at Md. Code (1984, 2009 Repl. Vol.), § 15-855(b) of the State Government Article, which provided that “[a] Board member who communicates ex parte with an individual concerning a pending application during the pendency of the application shall file with the County Manager a separate disclosure for each communication within the later of 7 days after the communication was made or received.” As of December 1, 2014, the prohibition on certain undisclosed ex parte communications, and other related measures pertaining to Frederick County, were transferred without substantive change to the General Provisions Article. 2014 Md. Laws, Chap. 645. Because the Frederick County Council has now replaced the Board of County Commissioners, GP § 5-859(b) currently requires “[a] member of the governing body” to disclose certain ex parte communications. 23 received a campaign contribution from the applicant during the pendency of the application (see GP § 5-858(b)); and (3) undisclosed ex parte communications between a County Commissioner and any individual about a pending zoning application (see GP § 5-859(b)).

This case involves the third category of prohibited conduct—undisclosed ex parte communications. GP § 5-859(b) provides: “A member of the governing body who communicates ex parte with an individual concerning a pending application during the pendency of the application shall file with the Chief Administrative Officer a separate disclosure for each communication within the later of 7 days after the communication was made or received.” As the Court of Special Appeals correctly observed, under the plain language of GP § 5-859, a member of the governing body is prohibited from engaging in an ex parte communication with “an individual” regarding a pending rezoning application, not merely an applicant or a party to the proceeding. RALE, 242 Md. App. at 400 . The language at the center of this dispute is set forth in GP § 5-862(a), which provides a right to judicial review where a violation is alleged to have occurred during the pendency of a zoning approval process.

Under that subsection, (1) The Frederick County Ethics Commission or another aggrieved party of record may assert as procedural error a violation of this part in an action for judicial review of the application. (2) If the court finds that a violation of this part occurred, the court shall remand the case to the governing body for reconsideration. 24 This section gives both the Frederick County Ethics Commission and aggrieved parties standing to raise a violation of the Frederick County Ethics in an action for judicial review of the zoning proceeding, even if the violations are unrelated to the substantive issues and the evidence presented in the