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Lillian C. Blentlinger, LLC v. Cleanwater Linganore, Inc.

Court of Appeals of Maryland

November 17, 2017

LILLIAN C. BLENTLINGER, LLC WILLIAM L. BLENTLINGER, LLC
v.
CLEANWATER LINGANORE, INC. et al.

          Argued: October 10, 2017

         Circuit Court for Frederick County Case No. 10-C-14-003828 AA

          Barbera, C.J.Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          Watts, J.

         This case involves a Development Rights and Responsibilities Agreement ("DRRA"), which is governed by Md. Code Ann., Land Use (2012) ("LU") §§ 7-301 to 7-306 ("the DRRA statute"), and is defined as "an agreement between a local governing body and a person having a legal or equitable interest in real property to establish conditions under which development may proceed for a specified time." LU § 7-301(b). A "local governing body, " in turn, "means the legislative body, the local executive, or other elected governmental body that has zoning powers under this division." LU § 7-301(c). The purpose of a DRRA is to allow developers and local governing bodies, such as a county, to negotiate terms and conditions under which development may occur. A DRRA serves to streamline the various approval processes that must occur for a complex development project. To that end, one of the key aspects of a DRRA is controlled by the "freeze provision" of the DRRA statute, LU § 7-304(a), which permits parties to agree to freeze certain laws, rules, regulations, and policies as of the time of the execution of the DRRA. LU § 7-304(a) provides: "Except as provided in subsection (b) of this section, the local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to an agreement shall be the local laws, rules, regulations, and policies in force at the time the parties execute the agreement."[1] The effect of the freeze provision is that developers are able to move forward, with certainty regarding the applicable laws, with development projects that may extend over a long period of time.

         Importantly, pursuant to LU § 7-303(a), to be valid a DRRA must contain certain requirements. And, like any other contract, a DRRA must be supported by consideration. In this case, we decide whether a DRRA must be supported by "enhanced public benefits" to be valid-i.e., whether a DRRA must confer an enhanced public benefit to the county, and whether the DRRA at issue is supported by adequate consideration.[2] We hold that, based on the plain language and legislative history of the DRRA statute, as well as relevant case law, to be valid a DRRA is not required to confer an enhanced public benefit[3] on a county. In other words, there is no evidence in the DRRA statute, its legislative history, or case law demonstrating an intent to require an enhanced public benefit as part of a DRRA. And, we hold that the DRRA at issue in this case is not required to confer any enhanced public benefit to the county, and is supported by sufficient consideration. Accordingly, we reverse the judgment of the Court of Special Appeals.

          BACKGROUND

         This case arose under the following circumstances. Lillian C. Blentlinger, LLC and William L. Blentlinger, LLC, Petitioners, own two parcels of land ("the Property") in Frederick County, Maryland ("the County"), Respondent, totaling approximately 279 acres. The Blentlinger family farmed the Property for generations before deciding to explore the possibility of developing the Property for other uses. Since 1959, the Property had been zoned for agricultural use. In 2006, for the first time, the Property was designated for Low Density Residential ("LDR") land use as part of the 2006 New Market Region Plan. Being designated for LDR land use permits a property owner to apply for a Planned Unit Development ("PUD"). Frederick County Code (2014) ("FCC") § 1-19-10.500.2(A) provides, in pertinent part, that a "PUD District may only be established where the tract of land receiving the PUD District has a County Comprehensive Plan Land Use designation of [LDR], Medium Density Residential, or High Density Residential[.]" A PUD is a "floating zone[] established to provide for new development and redevelopment within identified growth areas that result in an integrated mixture of commercial, employment, residential, recreational, civic and/or cultural land uses as provided within the appropriate Frederick County Comprehensive, Community, or Corridor Plan." FCC § 1-19-10.500.1.

         Sometime in 2007, however, the Frederick County Board of County Commissioners ("the BOCC")[4] removed the Property's designation for LDR land use. During the 2008 update of the New Market Region Plan, the Property's designation was changed to agricultural/rural. During the 2010 Comprehensive Plan update, the Property's designation remained agricultural/rural. With the 2012 Comprehensive Plan, the Property's designation was changed back to LDR, and the Property was included in the Linganore Community Growth Area. Since 2012, the Property has been designated for LDR land use.

         On February 25, 2014, after the Property had been re-designated for LDR land use, Petitioners filed an application to rezone the Property from agricultural to PUD zoning as well as a Phase I Concept Plan. Petitioners proposed developing the Property to have 720 residential dwelling units, including a mix of single-family homes and townhomes, and included an approximately twenty-five-acre site for a future middle school. On March 11, 2014, Petitioners filed an application or petition for a DRRA, and included a draft DRRA to be entered into between Petitioners and the BOCC. The DRRA petition incorporated by reference the PUD application and the Phase I Concept Plan. In a letter dated May 5, 2014, Jim Gugel ("Gugel"), the Planning Director for the Frederick County Planning and Development Review Department, advised Petitioners that, on April 15, 2014, the BOCC "accepted" the DRRA petition.

         On July 30, 2014, at a public hearing, the Frederick County Planning Commission ("the Planning Commission") unanimously voted (five to zero, with two members absent) to recommend the approval of the application to rezone the Property from agricultural to PUD. On October 8, 2014, Planning Commission staff recommended that the "Planning Commission find that the location, character, and extent of the proposed [DRRA] for the [] Property are consistent with the County Comprehensive Plan." Also on October 8, 2014, at a public hearing, the Planning Commission reviewed the draft DRRA, and, in accordance with its staff's recommendation, voted to find the draft DRRA consistent with the Frederick County Comprehensive Plan. On October 22, 2014, Gugel and an Assistant County Attorney issued a staff report recommending that the BOCC review the proposed DRRA "and any conditions related thereto in deciding whether to approve or deny the [] DRRA."

         On November 6, 2014, the BOCC conducted a public hearing on the PUD application and the DRRA, and witnesses testified and were subject to cross-examination. At the hearing, members of the public and counsel for Cleanwater Linganore, Inc., RALE Inc., Nikki Chauvin, Jimmy D. Duffy, Joyce A. Duffy, Paul D. Garcia, Tracy E. Garcia, Dang Mindte, Carrie Payne, Pamela Pennington, Carol Swandby, Reggie Wade, and Patricia Wells (collectively, "Cleanwater"), Respondents, cross-examined witnesses and provided public comment. During the hearing, the BOCC voted four-to-one to approve the PUD rezoning application, but limited the total unit count to 675 residential dwelling units, including 500 single-family homes and 175 townhomes, [5] on the condition that no building permit for the construction of a residence could be obtained before January 1, 2020.

         As to the DRRA, during the hearing, Cleanwater's counsel questioned Petitioners' counsel about any "greater public benefits" that the DRRA offered, and the following exchange occurred:

[CLEANWATER'S COUNSEL]: [W]ould the applicant please explain what greater public benefits the DRRA provides above and beyond those that would be otherwise obtainable absent the DRRA?
[PETITIONERS' COUNSEL]: A certainty that the project would not lose zoning, wouldn't lose density, wouldn't lose its comprehensive plan, a certainty as to what -- how the development will proceed in terms of the laws that are in effect when it goes to Phase I and in subsequent years.
You know, all of that is certainly public benefit, and that's the whole reason why, or one of the main reasons why these DRRAs are available to localities within the state.
[CLEANWATER'S COUNSEL]: And what you described certainly would reflect the certainty that the property owner would achieve as a result of the DRRA, but what are the greater public benefits in terms of infrastructure or other --
[PETITIONERS' COUNSEL]: I mean, it's one and the same. That's the argument. I mean, how is it to the greater good or how is it to public benefit, and by public meaning not just a property owner if the -- if the zoning can change willy-nilly, if property rights can be given and taken away based on, you know, whatever, you know, however the winds change.
I mean, it's Maryland law. I mean, obviously it's -- the way common law in Maryland has developed it's that zoning is up for grabs unless there's valid -- unless there's recognizable vertical construction based on a validly issued building permit, and all the parties have tried to address this through legislation at the state in terms of vesting and this was the compromise.
And so obviously by virtue of there being a DRRA available to folks in the state it's -- to the public in the state it's to the greater public good. Otherwise, the state wouldn't have passed the law. As my co[-]counsel . . . is referencing, I mean, the school site, the roads, the representations as to making all of the improvements that are required under the [Adequate Public Facilities Ordinance], I mean, it's all right here. It's all spelled out in the DRRA.

         Cleanwater's counsel also cross-examined Gugel about the DRRA and the following exchange occurred:

[CLEANWATER'S COUNSEL]: Under the DRRA is there anything in the -- what are [Petitioners'] responsibilities under the DRRA with respect to transportation improvements?
[] GUGEL: Nothing specific. It defers to what would be identified as part of a subsequent [Adequate Public Facilities Ordinance Letter of Understanding].

         At different points during the hearing, Cleanwater's counsel questioned Gugel about the middle school site, and the following exchanges occurred:

[CLEANWATER'S COUNSEL]: Would this property owner be required to proffer the [] middle school site whether or not there is a DRRA in this case?
[] GUGEL: Well, the PUD, I mean it -- the new PUD regulations do give that discretion on requiring public site dedication. The old regulations were kind of on a per acre basis. But given the symbol on the site and the rezoning request, it would have been conditioned even without a DRRA.
* * *
[CLEANWATER'S COUNSEL]: And under the school dedication requirement I just would like to confirm that there is no guarantee that the school site will be dedicated, it's contingent on acceptance by the Board of Education; is that correct?
[] GUGEL: Yeah, the site itself. I mean, the Phase I PUD does establish thresholds, timing thresholds of when that dedication and conveyance must occur.
[CLEANWATER'S COUNSEL]: But acceptance depends on the Board of Education?
[] GUGEL: Correct. Gugel also testified that, "in the event that the Board of Ed[ucation] does not approve the public school site or determines not to accept conveyance then [Petitioners] shall retain fee simple ownership of the public school site and may use the public school site in a manner consistent with other uses in the project." At the conclusion of the hearing, the BOCC voted four-to-one to approve the DRRA.

         On November 24, 2014, the BOCC enacted Ordinance No. 14-27-682, approving Petitioners' PUD application and the Phase I Concept Plan for the development, subject to certain conditions ("the PUD Ordinance"). As discussed at the hearing before the BOCC, one of the conditions of the PUD Ordinance limited the number of dwelling units to be constructed in the development. Specifically, the PUD Ordinance provided that "[a] maximum of 675 dwelling units may be constructed, comprised of no more than 175 townhomes, and the remaining units being single-family detached." Another condition stated that the development needed to "[p]rovide a diversity of single[-]family lot sizes." Yet another condition concerned the middle school site, stating:

[Petitioners] shall dedicate and convey to the County a 24.5 acre middle school site to the [Board of Education ("the BOE")], in fee simple, upon
i) the recordation of the subdivision plat for the 100th lot in the Project or within two (2) years of the recordation of the subdivision plat for the 1st lot in the Project, whichever occurs first; and
ii) [the] BOE's acceptance of the conveyance of land for the Public School Site. [Petitioners] and [the] BOE shall enter into a Memorandum of Understanding [], which shall set forth the rights and responsibilities of the parties in connection with development of the school site, prior to final, unconditional approval of the Phase II (Execution) Plan for the portion of the Project that contains the school site.

In the PUD Ordinance, another condition stated that Petitioners were to "[p]rovide two (2) neighborhood parks of at least 20, 000 square feet each to be centrally located, with one in the northern land bay, and the other in the central land bay." And, consistent with the BOCC's vote at the hearing, the last condition of the ordinance provided that, "[w]ith the exception of structures on the Public School Site and models for the Project, neither Frederick County, nor any agency, department, division and/or branch thereof shall issue any structural building permits, prior to January 1, 2020."

         On the same day, November 24, 2014, the final DRRA executed by Petitioners and the BOCC was recorded among the Land Records of Frederick County ("the Blentlinger DRRA"). We briefly summarize some of the Blentlinger DRRA's relevant provisions. Section 2.2A of the Blentlinger DRRA, concerning permissible uses and density, provides that the development shall be developed as a PUD in accordance with the provisions of the Frederick County Code, so long as the overall density and intensity of the development is not increased, and a maximum of 675 residential dwelling units are permitted pursuant to the PUD Ordinance. In Section 2.2C, Petitioners agree to comply with applicable laws should they revise the mix of residential unit types, subject to the cap of 675 residential dwelling units, and to pay any adjusted school construction fees resulting from a change in the unit types. In Section 2.2E, concerning limitation on building permit issuance, Petitioners "acknowledge[] and agree[] that[, ]" "with the exception of structures on the Public School Site and models for the Project, " "neither Frederick County, nor any agency, department, division and/or branch thereof shall issue any structural building permits, prior to January 1, 2020." In Section 2.4, Petitioners agree to make a payment to the County in lieu of building moderately priced dwelling units, as permitted by the Frederick County Code.

         Article III of the Blentlinger DRRA sets forth the parties' agreement with respect to community facilities and infrastructure improvements. Section 3.1, concerning road improvements, provides that, to fulfill the Adequate Public Facilities Ordinance ("the APFO") requirements, [6] Petitioners will either construct or fund construction of road improvements or contribute to escrow funds for road improvements. In Sections 3.2 and 3.3, Petitioners agree to comply with the sewer and water improvements as required by the APFO Letter of Understanding, and to pay tap fees in accordance with the fee schedule in effect at the time of building permit application.

         Section 3.4 concerns schools. And, in Section 3.4A, Petitioners agree to pay the school construction fee as a condition of the APFO, notwithstanding the sunset of a school construction fee ordinance. Pursuant to Section 3.4B, all "[a]pplicable [s]chool [i]mpact [f]ees shall be paid at the time of the issuance of building permits in accordance with the fee schedule in effect at the time of the issuance of building permits." Section 3.4C concerns "[s]chool [s]ite [d]edication, " and provides, in relevant part, as follows:

[Petitioners] shall convey in fee simple to the Frederick County Board of Education ("BOE"), with no monetary consideration paid, the Public School Site shown on EXHIBIT 6, totaling a minimum of 24.5 ± buildable acres, to serve the Project and the surrounding region. The Public School Site will be conveyed to the BOE upon: i) the recordation of the first subdivision plat for lots in the Project; and ii) BOE's acceptance of the conveyance of land for the Public School Site. . . . A separate Memorandum of Understanding ("BOE MOU") between the BOE and [Petitioners] shall be executed prior to unconditional Phase II approval for residential dwelling units in the Project (assuming commercially reasonable efforts by both parties), which MOU shall establish and control other aspects of the Public School Site and the rights and responsibilities of the parties relative to the Public School Site, and the construction of a public school. . . . In the event that the BOE does not approve the Public School Site or determines not to accept conveyance of the Public School Site, then [Petitioners] shall retain fee simple ownership of the Public School Site, and may use the Public School Site in a manner consistent with other uses with the Project. [Petitioners] acknowledge[] that use of the Public School Site may require regulatory approvals, including but not limited to, revision of the [PUD] Ordinance.

(Emphasis in original).

As to property acquisition for public infrastructure, Section 3.5A provides:
In the event that some of the public infrastructure improvements, at the collector road or higher facility level, required by this DRRA or the APFO to be made by [Petitioners] will require the acquisition of public right-of-way from third-party property owners, [Petitioners] shall exercise commercially reasonable efforts to secure such right-of-way without the assistance of the County.

         Section 3.5B provides that, if Petitioners demonstrate to the County that they are unable to secure a public right-of-way through commercially reasonable efforts, then Petitioners may request that the County or the State Highway Administration assist in such acquisition at Petitioners' "sole cost and expense." Section 3.5B further provides that, should the County approve Petitioners' request for assistance, then the County or the State Highway Administration "shall have two years to acquire the needed right-of-way." And, Section 3.5C provides that, if the County decides not to acquire the right-of-way, or the two-year time period of assistance has passed, then Petitioners "may be permitted to make a contribution to the County equal to the entire anticipated project development costs, which shall include but not be limited to costs for: design, engineering, right-of-way acquisition, management, inspection, etc. in lieu of constructing the public infrastructure improvements[, ]" unless the applicable APFO letter of understanding provides otherwise.

         Article IV of the Blentlinger DRRA, concerning the terms of the agreement, provides:

This Agreement shall constitute covenants running with the land and shall run with and bind the Property so long as the Project is under development, provided that this Agreement shall terminate and be void twenty-five (25) years after the Effective Date of this Agreement unless extended by an amendment complying with all procedures required in this Agreement, the County Ordinance and the State law. The parties acknowledge and agree that the Term of this Agreement is justified by the: (1) substantial economic investment made and/or to be made by [Petitioners] for the development of the Project; (2) substantial investment in, and construction of, extensive public and private infrastructure by the parties; (3) public purposes to be advanced by development of the Project in accordance with the Development Laws; (4) uncertainty of future market demands and political pressures; and (5) expectations of the parties.

         Article V of the Blentlinger DRRA concerns development review and Article VI concerns survival and transfer of obligations.

         Article VII deals with breach of the Blentlinger DRRA and the parties' respective remedies. Section 7.1 concerns breach by Petitioners, and Section 7.1A provides that, if Petitioners fail or refuse to perform obligations under the Blentlinger DRRA, and fail to cure that default within a certain period of time, then the BOCC "may seek and obtain equitable relief to enforce the terms and conditions of th[e] Agreement[, ] either through a decree for specific performance or an injunction." Section 7.1A further states that, if specific performance or an injunction is not available due to actions taken by Petitioners, "then the BOCC shall be entitled to bring a legal action for damages." In Section 7.1B, Petitioners waive the right to a "trial by jury in connection with any proceedings brought to enforce the terms of" the Blentlinger DRRA. Section 7.2A provides that the same remedies are available to Petitioners in the event of a breach by the BOCC. And, in Section 7.2B, the BOCC also waives the right to a jury trial.

         Section 8.1A provides that Petitioners "shall comply with all Development Laws" as defined in the Blentlinger DRRA, stating:

Except as otherwise specifically provided herein, the local laws, rules, regulations and policies governing the use, density or intensity of the Property, including but not limited to, those governing development, subdivision, growth management, impact fee laws, water, sewer, stormwater management, environmental protection, land planning and design, and adequate public facilities (hereafter collectively the "Development Laws"), shall be the local laws, rules, regulations and policies, if any, in force on the Effective Date of the Agreement, and [Petitioners] shall comply with all Development Laws.

And, Section 8.1B provides:

If the BOCC determines that compliance with Development Laws enacted or adopted after the Effective Date of this Agreement is essential to ensure the health, safety or welfare of residents of all or part of Frederick County, the BOCC may impose the change in laws, rule, regulations and policies and the effect thereof upon the Property.

Section 8.3, concerning fees, states that, except as otherwise provided in the Blentlinger DRRA, Petitioners "shall pay all fees (specifically including but not limited to impact fees, school mitigation fees[, ] and water and sewer connection fees) required by Frederick County at the rate in effect at the time the fee is due." Section 8.3 further states that, in the event that any of the fees are eliminated due to a change in the law and "replaced with a procedure or requirement that would impose some other burden on" Petitioners, then Petitioners "may elect to pay the impact fee in effect prior to the change in the law."

Section 9.7 of the Blentlinger DRRA, titled "Authority to Execute, " states:
The BOCC hereby acknowledges and agrees that all required notices, meetings, and hearings have been properly given and held by the County with respect to the approval of this Agreement, and [Petitioners] agree[] not to challenge this Agreement or any of the obligations created by this Agreement on the grounds of any procedural infirmity or any denial of any procedural right. The BOCC hereby warrants and represents to [Petitioners] that the person(s) executing this Agreement on its behalf have been properly authorized to do so. [Petitioners] hereby warrant[] and represent[] to the BOCC (1) that [they are] the fee simple, record owner[s] of the Property, (2) that [they have] the right, power and authority to enter into this Agreement and to agree to the terms, provisions, and conditions set forth herein and to bind the Property as set forth herein, and (3) that all legal actions needed to authorize the execution, delivery and performance of this Agreement have been taken.
Finally, Section 9.12 of the Blentlinger DRRA, addressing appeals, states:
The County DRRA Ordinance allows any person aggrieved by this Agreement to file an appeal to the Circuit Court for Frederick County within 30 days of the date on which the parties execute the Agreement. If the effect of the decision of the Circuit Court revises this Agreement in any material way, then either party to this Agreement may terminate the Agreement by providing notice to all parties to this Agreement within 30 days of the date the Circuit Court decision becomes final and all appeals thereof have been finally determined, and, in this event, the other party so notified hereby agrees to mutually consent to the termination and to comply with all applicable laws concerning termination of a DRRA. Any such termination of this Agreement pursuant to this Section 9.12, shall not in any way affect the validity of any Development Approvals which have been obtained for the Project at the time of termination, including, but not limited to, APFO approvals.

         Exactly thirty days after the Blentlinger DRRA was recorded, on December 24, 2014, Cleanwater filed in the Circuit Court for Frederick County ("the circuit court") a petition for judicial review, challenging, among other things, the validity of the PUD Ordinance and the Blentlinger DRRA. On June 8, 2015, Cleanwater filed a memorandum in support of the petition for judicial review. In relevant part, Cleanwater contended that the Blentlinger DRRA was void for lack of consideration because Petitioners had failed to provide "any 'enhanced public benefits' as consideration[.]" Cleanwater further argued that the middle school site was subject to BOE approval, which was uncertain, and that, as such, "[t]here is no guarantee that the school site will be dedicated." (Emphasis omitted).

         On August 21, 2015, Petitioners filed a memorandum in opposition to the petition for judicial review. Petitioners contended, in pertinent part, that the Blentlinger DRRA was supported by "adequate consideration." Also on August 21, 2015, the County filed a memorandum in response to Cleanwater's memorandum, arguing that substantial evidence supported the BOCC's approval of the PUD Ordinance, and that such approval fulfilled the requirements of State and County law. Although the County did not specifically address whether the Blentlinger DRRA was supported by adequate consideration, the County asserted that "[t]he decisions challenged by [Cleanwater, i.e., the PUD Ordinance and the Blentlinger DRRA, ] were approved by the BOCC based upon substantial evidence in the record and in accordance with applicable requirements of State and County law."

         On September 14, 2015, Petitioners filed a reply memorandum, again contending that the Blentlinger DRRA was not supported by adequate consideration because there was no evidence in the agreement showing that the County provided vested rights in exchange for enhanced public benefits.

         On September 28, 2015, the circuit court conducted a hearing on the petition for judicial review. On November 4, 2015, the circuit court entered an opinion and order affirming the BOCC's adoption of the PUD Ordinance and approval of the Blentlinger DRRA. The circuit court rejected the argument that the Blentlinger DRRA was not supported by adequate consideration, and concluded that the Blentlinger "DRRA imposes both binding obligations and legal detriment to" Petitioners.

         On December 1, 2015, Cleanwater filed a notice of appeal. On February 3, 2017, in a reported opinion, the Court of Special Appeals reversed the judgment of the circuit court and remanded the case to the circuit court with instructions to vacate the Blentlinger DRRA. See Cleanwater Linganore, Inc. v. Frederick Cty., 231 Md.App. 620, 625, 643, 153 A.3d 874, 877, 888 (2017). In pertinent part, the Court of Special Appeals held that the Blentlinger DRRA was void for lack of consideration because it lacked any enhanced public benefits to the County. See id. at 625, 637, 153 A.3d at 877, 884. According to the Court of Special Appeals, many of the provisions of the Blentlinger DRRA

do not reflect enhanced obligations of the developer. Rather, they reflect the obligations the developer would otherwise be required to satisfy during the course of the development of the property if no DRRA were in place. Indeed, the benefits relied upon by the developer (specifically those relating to road, sewer, water improvements, and tap fees) are required of the developer under the County's [APFO].

Id. at 639-40, 153 A.3d at 886. As to the middle school site, the Court of Special Appeals stated that it did not need to "decide whether the conveyance of a middle school site constitutes an enhanced public benefit to" the County, and explained:

Because [Petitioners] retain[] fee simple ownership of the middle school site if the BOE "does not approve the Public School site or determines not to accept conveyance of the site, " this "benefit, " at the time of execution and recordation of the DRRA, was a conditional promise and potentially an illusory one to boot. Indeed, the offer by [Petitioners] to proffer the property in fee simple is not a definitive compulsory obligation to do anything other than offer the site for a middle school contingent on acceptance by the Board of Education.

Id. at 641, 642, 153 A.3d at 886, 887 (brackets omitted). The Court of Special Appeals ultimately determined that the Blentlinger DRRA conferred no enhanced public benefit to the County, and concluded:

As the developer's testimony and its counsel's argument reflects, the public benefit conferred by the [Blentlinger] DRRA consists of the developer's vested rights in the project and the applicant's obligations to satisfy . . . APFO[] infrastructure requirements. Clearly, every development must satisfy APFO requirements regardless of whether a DRRA is executed. A DRRA, in contrast, requires the applicant to provide some public benefit beyond complying with statutory land use standards and otherwise satisfy [APFO] infrastructure requirements. The [Blentlinger] DRRA [] does not require the applicant to unconditionally convey property for a middle school or otherwise provide any extra or enhanced benefit to Frederick County or its citizens. Accordingly, under the circumstances of this case, the [Blentlinger] DRRA is void for lack of consideration.

Id. at 643, 153 A.3d at 888.

         Thereafter, Petitioners filed in this Court a petition for a writ of certiorari, raising the following two issues:

1. Did the Court of Special Appeals err by holding that a DRRA, in order to be valid, must include "enhanced public benefits" to the local governing body?
2. Did the Court of Special Appeals err by holding that Petitioners' proffer of a 24.5 acre school site did not constitute adequate consideration for the DRRA, concluding instead that the proffer of the school site was a "conditional promise and potentially an illusory one to boot?"

On May 9, 2017, this Court granted the petition. See Blentlinger, LLC v. Cleanwater Linganore, 453 Md. 7, 160 A.3d 546 (2017).

         STANDARD OF REVIEW

         In Grasslands Plantation, Inc. v. Frizz-King Enters., LLC, 410 Md. 191, 203-04, 978 A.2d 622, 629 (2009), this Court set forth the standard of review that applies to an administrative agency's decision, stating:

When reviewing the decision of a local zoning body, . . . we evaluate directly the agency decision, and, in so doing, we apply the same standards of review as the circuit court and intermediate appellate court. Our role is limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law. In applying the substantial evidence test, we have emphasized that a court should not substitute its judgment for the expertise of those persons who constitute the administrative agency from which the appeal is taken. Our obligation is to review the agency's decision in the light most favorable to the agency, since their decisions are prima facie correct and carry with them the presumption of validity.
Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency's interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts. We are under no constraint, however, to affirm an agency decision premised solely upon an erroneous conclusion of law.

(Citations, brackets, and internal quotation marks omitted). See also Cty. Council of Prince George's Cty. v. Chaney Enters. Ltd. P'ship, 454 Md. 514, 528, 165 A.3d 379, 387 (2017) ("Judicial review of an administrative agency action is typically limited to determining if there is substantial evidence in the record as a whole to support the agency's findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law." (Citation and internal quotation marks omitted)). And, in Attar v.DMS Tollgate, LLC, 451 Md. 272, 279, 152 A.3d 765, 769 (2017), we explained that "we may not substitute our judgment for that of [the administrative ...


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