Letter #2 from RALE attorney to County Council about Monrovia Town Center

EDITOR’S NOTE: The letter below was sent to Frederick County Council President Bud Otis (and the rest of the council members) on June 12, 2015, after the public hearing on June 9th, and in advance of the council meeting scheduled for June 16th at Winchester Hall. It was written by attorney Michelle Rosenfeld, on behalf of RALE (Residents Against Landsdale Expansion). Click here to see the letter sent by Rosenfeld (on behalf of RALE) on June 5, 2015, in advance of the public hearing scheduled for June 9th at Winchester Hall.


Mr. Bud Otis
County Council President
Winchester Hall
12 E. Church Street
Frederick MD 21701

RE: Monrovia Town Center – June 16 Council Proceedings

Dear President Otis:

I represent Residents Against Landsdale Expansion, Inc. (“RALE”) with respect to the Monrovia Town Center (“MTC”) proceedings. I am writing to you in connection with the Circuit Court’s Opinion and Order (“Remand Order”), and the process the Council has chosen to follow in an effort to comply with its requirements. We believe that the Council’s single-minded focus on the FACT letter misses completely the point of the Remand Order. 1 The Remand Order was intended to require the Council to conduct an investigation into the circumstances surrounding the FACT letter’s creation, its introduction into the “administrative record” in the MTC proceedings, and its use by the Developer’s counsel to argue the “road adequacy” aspect of the Developer’s rezoning case. The objective of the Remand Order was to ascertain how far the “taint” represented by the FACT letter extended into the “administrative record” of this case – and to excise the “taint” before returning the matter to the Circuit Court, if it is possible to do so.

The FACT letter is the loose piece of yarn that, when pulled, unravels the whole sweater.

1 The Council’s News Release states that the purpose of the June 9, 2015 hearing was to “receive public comment as to whether it is the collective belief of the Frederick County Council that the FACT letter played a major factor in the adoption by the last Board of County Commissioners of the Monrovia Town Center project,” and the Council’s letters to Commissioners Young, Smith and Gray “invite” affidavits “regarding what impact, if any, the FACT correspondence had on the decision by the Board of County Commissioner for the Monrovia Town Center.”

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


The PUD Rezoning was approved in January 2014 by four BOCC members. As the Developer’s counsel observes in his June 4, 2015 letter, the BOCC approved the PUD Rezoning “before the FACT letter even surfaced.” Dev. Letter at 1. To be more precise, the PUD Rezoning was approved before the concept of the FACT letter (let alone the letter itself) was even a glint in Commissioner Smith’s eye.

Which begs the question: Why solicit its creation, as Commissioner Smith did? Which raises more questions: Why introduce it into the “administrative record,” as Commissioner Young did? Why use it to rebut RALE’s “road adequacy” arguments, as Developer counsel Rand Weinberg did? And what, if anything, did these three men talk about during the recess called by Commissioner Young immediately after instructing Planning Director Jim Gugel to make copies of the FACT letter for those who might want them, but before reading the letter into the record. 4-23-14 Tr. 111-12.

The Absence Of Any “Testimony” From C. Paul Smith Compels A Full Rehearing.

Without the testimony of Commissioner Smith, the Remand Order cannot even begin to be satisfied.2 His conduct was at the core of the FACT letter incident, and his role as the BOCC member most actively involved in creating a record that would survive judicial review of the BOCC decision approving the rezoning of the MTC property makes his testimony doubly important. The Circuit Court already has found that he violated the ex parte rules of the State Ethics Code that specifically pertain to rezoning proceedings.

The Circuit Court remanded the case only after RALE introduced information that showed:

• Commissioner Smith solicited the letter at a FACT meeting that occurred while the MTC hearings (in which he was serving in the role of a judge) were in process;

• The minutes of the FACT meeting regarding Commissioner Smith’s “road adequacy”- related comments, which later were reflected in the FACT letter;

• Commissioner Smith never revealed on the record that he had solicited the FACT letter;

• After the FACT meeting he had spoken about such a letter with Michael Smariga, Chairman of FACT’s local roads committee (and whose firm, Harris, Smariga & Associates, Inc., was employed by the Developer for the MTC project and provided testimony during the MTC proceedings);

• Commissioner Smith had seen a draft of the FACT letter before it was submitted in the MTC proceedings;

• Commissioner Smith (along with County transportation expert Ron Burns) was a member of FACT’s advisory board;

2 In the hearing that resulted in his Remand Order, Judge Nicklas said “I feel that the testimony of Commissioner Smith is appropriate.” March 10, 2015 Circuit Court Tr. p. 62 lines 23 – 24.

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


• Commissioner Smith had played a role in providing County funding to FACT to lobby on transportation issues for the BOCC;

• Renewal of County funding was pending when FACT provided the letter; and

• When it appeared FACT might retract the letter, Mr. Burns sent an e-mail to its signatory, FACT Secretary Michael Proffitt, advising FACT not do so because “it is largely accurate and I agree with opinions stated,” with a copy to Commissioner Smith.

Until these facts were uncovered, a reviewing court would have no reason to believe the FACT letter had been solicited and reviewed by one of the five BOCC members whose job it was to impartially weigh the evidence produced by others, or any of the other factors listed above.

If the FACT letter is such an insignificant part of the record, as the Developer’s counsel now argues (Dev. Letter at 2), why did Commissioner Smith solicit its creation in the first place? And if there was nothing improper about Commissioner Smith’s involvement with it, why did he remain silent throughout the MTC proceedings about his involvement with it? Why didn’t he read it into the record instead of Commissioner Young? Why did Mr. Burns send an email urging FACT not to retract the letter, ensuring it remained evidence in the “administrative record?” Why did he comment on the letter’s contents without referring to the letter itself, as he did immediately before voting to approve the PUD Rezoning case for the second time in April 2014?

Finally, why did Mr. Smith so vigorously resist complying with the subpoena requiring him to testify in Court? Why did he not submit an affidavit in these proceedings when invited to do so? And why has he been absent from these Council proceedings?

The Affidavit From BOCC President Blaine Young Compels A Full Rehearing.

The affidavit provided by Commissioner Young raises more questions than it answers. First and most important, it does little to allay RALE’s concerns that Commissioner Young was, and remains, too closely allied with the Developer to trust anything he says or does in connection with the MTC proceedings. A side-by-side comparison of Commissioner Young’s June 4, 2015 affidavit and the June 4, 2015 letter to the County Council from the Developer’s counsel, Paul D. Rose of Miles & Stockbridge, P.C., shows that the two are strikingly similar. It is clear that one borrowed the text of the other. It truly is unbelievable (and not credible) that Commissioner Young’s evaluation of the evidence in the MTC proceeding just happened to coincide with the Developer’s letter – paragraph by
paragraph. (Exhibit 1.)

Equally important, it appears that Commissioner Young has perjured himself. In his affidavit, he testifies: “I read the FACT Letter aloud into the administrative record. I did not otherwise make any comments regarding the FACT Letter. I simply read the FACT

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


Letter aloud verbatim.” Affidavit of Blaine R. Young” dated June 4, 2015, para. 7. But the hearing transcript is clear that this is not so. When Commissioner Young first informed the audience that the FACT letter existed, he said it showed FACT’s “support” for the “transportation improvements” and “transportation initiatives” of the MTC project. 4-23-14 Tr. 111-12. Then after he read the FACT letter aloud, he read the names of the Board of Directors (but notably, not the names of the members of the Advisory Board, which included Commissioner Smith and County transportation expert Ron Burns). Furthermore, when challenged by Commissioner David Gray as to whether all of the Directors and Advisory Board members had signed the letter, Commissioner Young responded: “No, they gave authority for this letter to be signed.” 4-23-14 Tr. 152. This statement later turned out to be untrue.

Commissioner Young’s decision to read the FACT letter into the “administrative record” figured prominently in Judge Nicklas’ decision to issue the Remand Order. Commissioner Young’s affidavit states that he read it aloud “because it addressed issues relating to the link between public/private partnerships and funding for transportation improvements, and it was relevant in that way, . . .” Affidavit para. 8. In addition, Commissioner Young read the letter into the “administrative record” after all cross-examination had ended, and immediately before the rebuttal of the Developer’s attorney Rand Weinberg, who adamantly relied upon it on the issue of “road adequacy”). But in his affidavit Commissioner Young avoids addressing this “timing” issue altogether – thus ignoring another key issue for Judge Nicklas’ decision to issue the Remand Order.

The Importance Of An “Administrative Record” In The Judicial Review Process.

This case would be a true trial by fire for any County Council, let alone one with five new members who may not have legal training. Certain fundamental legal concepts, which may be unfamiliar to some Council members, are critical to understanding the “Remand Order” as well as the significance of actions taken by the BOCC members in approving the MTC project.

The “administrative record” is the most important product of a rezoning application hearing like the PUD Rezoning hearing. The “administrative record” is the only evidence a reviewing court can rely upon in deciding whether to uphold a decision to rezone a property. A court reviewing a rezoning decision does not hear from witnesses; it only has the transcribed testimony and the documents that were presented in support of, or in opposition to, the rezoning application. Once a court finds that an “administrative record” may have been corrupted by “fraud or extreme circumstances,” it cannot do its job unless and until it is satisfied that the “administrative record” has been cured of that defect. That is the purpose of Judge Nicklas’ Remand Order.

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


Nobody understands the significance of the “administrative record” better than a lawyer. And nobody understands better than a lawyer the need to include facts in a record that support the specific legal standards that must be satisfied so a court can uphold a rezoning decision like the one at issue here. If the rezoning applicant fails to satisfy even one of the many standards required to receive a rezoning approval, a reviewing court can invalidate the approval. The FACT letter was intended to support the factual question of the adequacy of transportation infrastructure.

Similarly, when legal arguments are made in connection with a rezoning case, the decision-maker ultimately is required to resolve them before deciding the case. Commissioner Smith was the only lawyer on the BOCC. It therefore is not surprising that he, among all of the BOCC members, stood out as the most active participant in the MTC proceedings in matters relating to the “administrative record.” With his many years as a lawyer-legislator, he was well-versed in protocols relating to the creation and protection of “administrative records.”

As a general rule, with respect to legal issues, Commissioner Smith would ask the Developer’s attorney or the County Attorney to respond when RALE’s counsel or others made a legal argument. Commissioner Smith did not ask RALE’s counsel to respond to any legal assertion made by Developer’s counsel. In this way he ensured that the record contained a counter-argument to offset the legal arguments in the administrative record to increase the likelihood that a judge would uphold the PUD Rezoning approval.

Why Was The FACT Letter An Important Part Of The Administrative Record?

The issue of “road adequacy” was the most contested issue before the Frederick County Planning Commission (“Planning Commission”) during review of the MTC project, just weeks before the BOCC hearings. Certainly the County realized transportation adequacy would be the subject of substantial citizen cross-examination before the BOCC. Commissioner Young, in his capacities as BOCC president and chairman of the MTC hearings, clearly had the authority to require Mr. Burns, the County’s transportation expert, to attend the hearings on the PUD Rezoning case.

But instead, Commissioner Young left Planning Director Jim Gugel to operate as a traffic cop, directing citizen questions about roads to a later hearing on the MTC project’s compliance with the County’s Adequate Public Facilities Ordinance (“APFO”). Mr. Burns would be available to answer questions then, citizens were told, again and again – and again. As citizen frustration continued to grow over Mr. Burns’ absence from the PUD Rezoning hearings, and the unwillingness or inability of Mr. Gugel to answer questions about roads, Commissioner Young remained adamant in his refusal to require Mr. Burns’ attendance. Citizens were left to ask: Why?

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


When things do not seem to make sense, something usually is amiss. It seems to have made no sense for Commissioner Smith to solicit the FACT letter in April 2014, after the BOCC had approved the PUD Rezoning in January 2014. Nor did it seem to make sense for Mr. Burns to urge FACT not to retract the FACT letter, thereby leaving it in the “administrative record.” It certainly made no sense to those citizens who attended the January hearings that Mr. Burns was not available to answer questions. And it made even less sense to them that Commissioner Young would persist in refusing to make Mr. Burns unavailable for three consecutive nights in January 2014 despite overwhelming pressure to have him present, and despite the fact that transportation was the predominant concern of hearing attendees.

In fact, all of these occurrences made perfect sense, but only to those who knew what was really going on. Commissioners Smith and Young, with help from County staff as needed, and possibly others, were spearheading an effort to ensure the PUD Rezoning would survive judicial review on the issue of “road adequacy.” At first, they attempted to do so by ignoring (and therefore effectively denying the existence of) the second of two “road adequacy” standards, a regional, non-APFO “road adequacy” standard.

But county staff had to acknowledge on the record that APFO “road adequacy” was not the only basis for their “road adequacy” findings. On cross-examination now-County Executive Jan Gardner asked Planning Director Jim Gugel:

Q: . . . Is adequacy of existing and future transportation systems one of the
approval criteria for the rezoning?

A. Yes.

Q. And are the staff findings . . . limited to the APFO?

A. No.

4.8.2014 Tr. at 91. Despite this acknowledgement, citizens’ questions on APFO “road adequacy” were not answered – even during the second PUD Rezoning hearings in April. And when Mr. Burns finally did appear to testify about the APFO, he refused to answer questions about the regional, non-APFO “road adequacy” standard.

Instead, during the hearings staff and the Developer focused exclusively on the APFO “road adequacy” standard, and sought to draw all attention to that standard. When they realized that RALE’s counsel’s objections to approval of the PUD Rezoning on January 16, 2014 encompassed both APFO “road adequacy” and regional, non-APFO “road

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


The Law Office of Michele Rosenfeld LLC 11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913

adequacy,”3 an additional strategy emerged. This strategy was designed to ensure that the findings of the BOCC, and the evidence in the “administrative record” supporting them, would survive judicial review of “road adequacy” under both standards. This was not an easy undertaking. The Developer’s traffic expert had only evaluated the APFO standard. The County’s transportation expert, Ron Burns, had only evaluated the APFO standard.The DRRA and APFO LOU did not extend beyond the APFO standard. Worse still, the PUD Rezoning had been approved based on the findings contained in the November 25,
2013 staff report (“Original Staff Report”), and Commissioner Young had closed the
record in the that case.

Chairman Young’s Surprise, Last-Minute Introduction Of A Substitute MTC Project That Included “Age-Restricted” Housing In The January 2014 PUD Rezoning Hearings.

Citizens also were confused about the circumstances surrounding Commissioner Young’s last-minute introduction of a substitute project, one which included “age-restricted” housing (unlike the MTC project the Developer had applied for). Had Commissioner Young negotiated the deal or not? Did any of the other Commissioners know about it? If yes, why was it done behind closed doors?

Was Mr. Gugel’s statement at the beginning of the proceedings that the BOCC could approve a modified project, followed immediately by Commissioner Young’s suggestions about “age-restricted” housing, just a coincidence? Or was it designed to set up a deal that had been agreed upon, or was nearly complete, when the PUD Rezoning hearings commenced on January 14, 2014.

Had negotiations been between directly between Commissioner Young himself and Mr. Stanley (a Developer representative), or with the Developer’s attorney, Rand Weinberg of Miles & Stockbridge, P.C.? Was this a take-it-or-leave-it “approval” of the MTC project’s application, or had the Developer consented to it? Was this agreement reached before the January hearings began? Was the agreement a settlement of the lawsuit against the County that the Developers had lost in Circuit Court and appealed to the Court of Special Appeals?

The only objective evidence we have regarding these January, 2014 communications is the ex parte log from 2014, which confirms that on each day that the BOCC held ahearing on the MTC PUD Rezoning, Mr. Young had ex parte communications with

3 During closing arguments on January 16, 2014 RALE’s counsel (undersigned) said “There is no analysis in the staff report of transportation facilities, required transportation improvements or whether or not they will satisfy the APFO or any other measure of adequacy.” 1.16.2014 Tr. p. 78 lines 5 – 9 (emphasis added).

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


Developer’s counsel Rand Weinberg (January 14 and 15), or both Mr. Weinberg and one of the Developer representatives, Mr. Roy Stanley (January 16, the last day of hearings). And on January 17, while the DRRA and APFO/LOU case was still pending, he again spoke with them both. (Exhibit 2.)

Whatever the truth might be, it was not to be revealed before the PUD Rezoning was approved. On a motion made by Commissioner Young, seconded by Commissioner Smith, and joined by Commissioners Kirby Delauter and Billy Shreve, the PUD Rezoning was approved subject to a “modification” (as opposed to a “condition of approval”) that half of the housing units be age-restricted.

Reasons for Remand: “Extreme Circumstances” And Fraud

Remands like the one the Circuit Court ordered in this case are exceedingly rare. In fact, the case now before the Council is the only Maryland case that I have been able to find in which the standard of a “strong showing of fraud or extreme circumstances” has been met. The Circuit Court already has found that RALE made a “strong showing” of “extreme circumstances.” That is what placed this case back in your hands. RALE now stands ready to make a “strong showing” of “fraud” as well.

RALE believes that a comprehensive review of the transcripts and other documentary evidence both inside and outside of the administrative record in the MTC proceedings compels this unsettling conclusion.

Citizens who testified before the BOCC during the proceedings in January and April 2014 instinctively knew that something was wrong. They could not understand why County transportation expert Ron Burns was not available to answer questions in January, since “road adequacy” was a core finding that the BOCC was required to make before it could rezone the MTC property to the Planned Unit Development (“PUD”) zone. The details of this fraudulent activity will be explained in greater detail in an upcoming submission to the Circuit Court. But in summary, they are as follows:

Commissioners Young and Smith, as well as County staff, realized that the Achilles’ Heel of the PUD Rezoning case in MTC was the project’s inability to fully satisfy the “road adequacy” requirements of the County zoning code.

They knew they could satisfy the “road adequacy” requirements in the immediate area of the MTC project under the County’s Adequate Public Facilities Ordinance (APFO “road adequacy”). But based on the well-known inadequacies of MD 75 and MD 80, they knew they could not meet the other applicable standard: the regional, non-APFO “road adequacy” standard.

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


At the same time, however, both Commissioners Smith and Young were irretrievably committed to approving a project on the MTC property, a commitment which could only be achieved by rezoning the property to the PUD zone.

So Commissioners Young and Smith, with varying degrees of assistance from County staff, and perhaps others, arranged to avoid the problem presented by the regional, non-APFO “road adequacy” standard. They did so using a variety of strategies and tactics.

The first strategy was to focus attention on the APFO “road adequacy” standard alone, not even acknowledging that the other standard existed. This was the “denial strategy.” The danger of this strategy, of course, was that if opponents of the MTC project themselves identified the other standard, MTC would be undermined on judicial review by their failure to place in the record evidence necessary to support a finding that the regional, non-APFO “road adequacy” standard had been met.

Complicating matters further was the fact that Ron Burns needed to testify in support of the County’s findings that the APFO “road adequacy” standard had been satisfied. But that would leave MTC opponents able to cross-examine Mr. Burns regarding (1) the existence of the regional non-APFO “road adequacy” standard, and (2) the Developer’s inability to satisfy it.

The problem became how to “hide the expert” from cross-examination while also obtaining his testimony. To solve this problem in a previous PUD rezoning case (the Eaglehead/Linganore project), the County presented Mr. Burns’ APFO evidence through affidavit testimony, which was read into the record by County Attorney John Mathias (as Commissioner Young later did in the MTC proceeding with the FACT letter). In that way the “administrative record” would contain Mr. Burns’ testimony while sidestepping any possibility of cross-examination. This was the “affidavit tactic.”4

Undersigned counsel objected to “affidavit testimony” in the Eaglehead/Linganore case as an obvious violation of the right to reasonable cross-examination guaranteed by state law. The issue is now pending before the Court of Special Appeals. So the County abandoned the “affidavit tactic” in MTC, but not the “denial strategy.”

In MTC, the County traded in the “affidavit tactic” for the “shell game tactic” in order to obtain Mr. Burns’ testimony on the County staff report’s finding of APFO “traffic adequacy” while shielding him from cross-examination likely to reveal the existence of the regional, non-APFO “traffic adequacy” standard. The County used the existence of the two

4 This is the same approach that appears to have been recommended to this Council as a means for resolving the FACT letter issue.

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


separate hearings (i.e., the PUD Rezoning hearing and the DRRA/APFO LOU hearing)to defer Mr. Burns’ testimony until the DRRA/APFO LOU hearing. The “shell game” consisted of acknowledging that although Mr. Burns’ APFO analysis was the foundation of staff’s “traffic adequacy” finding in the PUD Rezoning case, Mr. Burns could not be cross-examined until the later DRRA/APFO LOU hearings.

What citizens were not told was that before the DRRA/APFO LOU hearing ever occurred, the PUD Rezoning would be approved based upon a new project containing “age-restricted” housing, and the record of the PUD Rezoning would be closed. What they also did not tell citizens was that Mr. Burns would be allowed to refuse to answer questions relating to regional, non-APFO “traffic adequacy” in the later hearing, which is precisely what he did in April.

Unfortunately, the County got caught. RALE’s counsel had warned, immediately before the BOCC voted to approve the PUD Rezoning on a motion made by Commissioner Young and seconded by Commissioner Smith, that the PUD Rezoning could not be approved until the BOCC applied the Zoning Code criteria applicable to “age restricted” housing. This could not be done because all testimony and evidence had concluded before the “age-restricted” housing was introduced.

For a multitude of reasons, it is impossible to believe that Commissioners Smith and Young, as well as long-term staff members Planning Director Gugel and County Attorney Mathias, all of whom were present, all were unaware of the “age-restricted” zoning ordinance requirements. The BOCC’s illegal approval of the PUD Rezoning speaks volumes about the bad faith of the BOCC in these proceedings.

It was not an “abundance of caution” that sent the Developer back to the drawing board on the project, and back to the Planning Commission and then to the BOCC. What prompted these actions was their need to comply with the very “age-restricted” laws the BOCC had ignored in approving the PUD Rezoning on January 16, 2014. The Developer had to return to the Planning Commission and had to return to the BOCC, to address the “age-restricted” criteria if the PUD rezoning approval was to survive judicial review.

The BOCC, and in particular Commissioner Smith, wanted to keep the January record closed to public testimony on the transportation issue to preclude arguments relating to the regional, non-APFO “road adequacy” standard that the Developer could not satisfy. But the record had to be reopened to address the “age-restricted” legal requirements.

The actions and comments of Commissioner Young and the Developer’s attorneys made it clear that the focus of the PUD Rezoning hearing in April 2014 would be the “changes” to the project required by the BOCC when it approved the PUD Rezoning in January. In April, the Developer’s counsel, Mr. Weinberg, was very specific in his comments that only

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


“changes” were at issue, and that the BOCC had specifically required that all the transportation infrastructure remain the same. In other words, it was made very clear to the public that the issue of “transportation” as it related to the PUD Rezoning was closed.

What no County or Developer representative bothered to inform citizens, however, was that although the record with respect to the PUD Rezoning issue of “traffic adequacy” had closed for them back in January, the County believed the record remained wide open for itself. Accordingly, the County completely overhauled the substantive “road adequacy” findings upon which the PUD Rezoning was approved in January, and introduced them into the PUD Rezoning record in the form of a March 28 staff report (“New Staff Report”).

The New Staff Report changed both the “road adequacy” findings and the factual presentations of the funding and timing of road-related projects in ways that would better support a finding of regional, non-APFO “road adequacy” standards. In this way, the New Staff Report represented the first step in an effort to “pad” the record, i.e. to provide a record with enough evidence to support a finding that the regional, non-APFO “road adequacy” standard had been satisfied. This was necessary because in denying the existence of the regional, non-APFO “road adequacy” standard, the County and Developer also had failed to present evidence and prepare findings that would enable a reviewing court to uphold the PUD Rezoning should that standard become an issue upon judicial review. The gratuitous reconstitution of the “road adequacy” evidence and findings in the New Staff Report was one step toward curing that “administrative record” deficiency.

From the point of view of anyone interested in enhancing the transportation record in the MTC proceedings, all that remained was to have evidence in the record that effectively endorsed these new “road adequacy” findings contained in the New Staff Report. For a number of reasons, Commissioner Smith could not obtain that endorsement from Mr. Burns, Mr. Gugel or any other County representative. And he could not provide such testimonial evidence himself. So he enlisted colleagues from FACT, including at least one with a direct tie to the MTC project (Michael Smariga), to craft a letter that reflected the comments Commissioner Smith had made at the FACT meeting on April 14, 2014, a point noted by Judge Nicklas in his findings.

When Commissioner Young read the letter into the record after all cross-examination had concluded, and without any FACT representative present, the FACT letter was a tacit endorsement of the new regional, non-APFO “road adequacy” findings contained in the New Staff Report. Commissioner Smith gave himself the final word before the PUD Rezoning was “approved” for the second time, highlighting the very project (the Meadow Road interchange) that the FACT letter itself had emphasized – but not referencing the FACT letter.

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


When the Developer’s attorneys filed their opposition to RALE’s petition for judicial review of the MTC rezoning, of course the findings of “road adequacy” they relied upon were those contained in the New Staff Report, which of course were also the findings in the text of the PUD Rezoning ordinance and those quoted by Developer’s counsel in his June 4, 2015 letter to the Council.

The BOCC blatantly violated the law by approving the PUD Rezoning in January 2014 without addressing the “age-restricted” housing legal standards. Then, the County took advantage of the second hearing – which was absolutely necessary because of the lack of “age-restricted” evidence in the first hearing — to enhance the “traffic adequacy” text in the Original Staff Report. Finally, without any direct testimony or cross-examination on these revised “traffic adequacy” findings — which were not part of the “changes” the hearing was designed to address — the BOCC again approved the PUD Rezoning.

Under The Totality Of The Circumstances A De Novo Hearing Is Required

In sum, the “taint” infecting the “administrative record” in the MTC proceedings has so completely overwhelmed the administrative process that it simply is not possible to separate the good from the bad. There is no way for this County Council to salvage the record of what the BOCC did in this case. Nor should it try. Given the depth and breadth of the violations of law that occurred, and the fraudulent and deceptive conduct of so many individuals, the “administrative record” in the MTC proceedings is a stain on the reputation of Frederick County government. It serves only as a reminder that no system, no matter how well-conceived, can survive the bad faith of those who oversee and participate in it. It is a travesty that the citizens of Frederick County have had to expend so much of their time and money to ensure the accountability of the government that is supposed to serve them. It may well be that Commissioner Smith, in particular, was carried away by his years-long sense of commitment to seeing the MTC project through. But while that explains his conduct, it does not excuse it. And while he may be ultimately may receive forgiveness, the product of his (and others’) misdeeds cannot be permitted to stand. It is time to adhere to the law, which can only occur by starting over. If the Developer’s hands were clean in this process, its recourse is against those whose hands were not. But as Judge Nicklas observed, the concern here has to be on the BOCC’s decision to approve the MTC project, and the purity of the “administrative record” supporting that decision.

Respectfully Submitted,


Michele Rosenfeld

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913


County Council
Ms. Jan Gardner, County Executive
Mr. John Mathias, County Attorney
Mr. Michael Chomel, Senior Assistant County Attorney
Ms. Kathy Mitchell, Assistant County Attorney
Mr. Steve Horn, Director, Community Development Division
Mr. Jim Gugel, Director, Department of Development and Planning Review
Mr. Steve McKay, President, RALE, Inc.
All individual clients

The Law Office of Michele Rosenfeld LLC
11913 Ambleside Drive Potomac MD 20854-2107
rosenfeldlaw@mail.com 301-204-0913

Click HERE to download the letter, in its original form, as a pdf file: 6.12.2015_mtc_letter.signed

The pdf file includes the additional documents referred to in footnotes.

On Tuesday, June 16th, following up on the June 9th public hearing about the FACT letter and the Monrovia Town Center.the county council will engage in a discussion about how to move forward on this controversial issue.

X. Business Items:

b. Discussion of Future Action in connection with the Frederick Area Committee for Transportation (FACT) Correspondence regarding the Monrovia Town Center (Public Hearing Held on Tuesday, June 9, 2015) – Council President Bud Otis
(Council Decision)

You can download the agenda for the council meeting here.

You can download the agenda the documents associated this agenda item here, including the court order remanding this issue to the county, the original FACT letter and the affidavit from former commissioner Blaine Young.


Please note that, although the council meeting starts at 4:30pm, this item is behind nine other agenda items. (It is usually hard to estimate how long those other items will take.)

RALE – Residents Against Landsdale Expansion on the web.

RALE – Residents Against Landsdale Expansion on Facebook.

@RALEMonrovia on Twitter.