- For Challengers of Development, Sixth Time is the Charm
- August 11, 2017 | Author: Edward J. Levin
- Law Firm: Gordon Feinblatt LLC - Baltimore Office
- In the February 2017 issue of Relating to Real Estate, we discussed the December
28, 2016 decision in which the Court of Special Appeals endorsed the DRRA
between the developer and Frederick County that froze certain local laws,
rules, regulations, and policies as they were when the DRRA was signed. The
court found in December and again in the instant case that this was permitted
pursuant to §7-304 of the Land Use Article of the Maryland Code because DRRAs
are a solution to the vesting problem. The general rule in Maryland is that
rights in property do not vest until there is visible commencement of lawful
construction, so developers are typically at risk of changes in the legal
setting after they begin their planning and before they break ground for
construction of improvements.
The challengers in the instant case raised an issue that had not been previously considered – that the DRRA was void for lack of consideration because it lacked "enhanced pubic benefits" to Frederick County. The court agreed with the challengers on this point, viewing DRRAs as bargained-for agreements between developers and local governments, and as such contracts they must contain provisions that are beneficial to each of the parties. Therefore, in the court's view, DRRAs must contain benefits to the County or obligations of the developer that exceed those that would exist if there were no DRRA.
The developer argued that it was offering to convey a portion of the subject property to the County for use as a middle school. However, the court found that a typical developer would be required to grant property for one or more schools under the County's adequate public facilities ordinance, so this did not reflect enhanced obligations of the developer. Further, the developer only offered the school site to the County; the offer may not have been accepted for such purpose.
Because the developer could not point out any enhanced public benefit, the Court of Special Appeals reversed the decision of the Circuit Court for Frederick County and ordered that the DRRA be vacated.