RALE subpoenas Paul Smith and two others about unauthorized “FACT” letter

PRESS RELEASE EXCERPT: “RALE has served subpoenas calling on former Frederick County Commissioner Paul Smith, Frederick Area Committee on Transportation (FACT) Secretary Michael Proffitt and Frederick County staff transportation expert Ron Burns to appear and testify in the upcoming Circuit Court hearing on the Monrovia Town Center (MTC) appeal.”

EDITORS NOTE: The message immediately below was sent to the Frederick County Executive, the seven members of the Frederick County Council and a number of media outlets that cover Frederick County.


Please find enclosed a Press Release from RALE describing our most recent efforts to shine a light on the manner in which the Monrovia Town Center PUD was approved by the former Board of County Commissioners. I believe in good government. I believe that good government includes a fair and transparent process. What we witnessed during that last night of the Monrovia Town Center hearings when the “FACT letter” was introduced and the development was approved, was the opposite of “fair and transparent.” It was the antithesis of good government. You might assume that after the Frederick News-Post investigation unearthed who really authored the letter, including former Commissioner Paul Smith’s role, that this is no longer an issue. You would be wrong in that assumption. In the case record for Monrovia Town Center, the letter stands as it was presented – as unchallenged evidence in support of the proposed development. Through these subpoenas, we hope to finally get to the truth of the “FACT letter” and to have that truth on the record during the upcoming Circuit Court proceedings.

In addition to the Press Release, I am also including copies of the subpoenas served last Thursday, the “FACT letter,” a FNP story on the approval of the Monrovia Town Center, and the FNP investigative story describing how the “FACT letter” came to be.


Steve McKay
President, RALE


Steve McKay, RALE president
Phone: 301-788-7423
E-mail: RALEMonrovia@gmail.com

Michele Rosenfeld, RALE legal counsel
Phone: 301-204-0913
E-mail: rosenfeldlaw@mail.com

Date: January 19, 2015



FREDERICK COUNTY, MD — RALE has served subpoenas calling on former Frederick County Commissioner Paul Smith, Frederick Area Committee on Transportation (FACT) Secretary Michael Proffitt and Frederick County staff transportation expert Ron Burns to appear and testify in the upcoming Circuit Court hearing on the Monrovia Town Center (MTC) appeal. The subpoenas were served on Thursday, January 15.

“RALE has taken the extraordinary step of seeking sworn testimony to uncover the truth surrounding the last-minute production of a letter submitted on FACT letterhead during the MTC hearings. Information not disclosed at the hearings has since come to light raising serious questions about the legitimacy of the letter and the manipulation of evidence,” said RALE President Steve McKay. “Mr. Smith and all of the commissioners had a duty to impartially consider the evidence. With these subpoenas, RALE seeks to uncover the truth about the letter, how it was produced, who knew about it, and how it was used to influence the commissioners’ decision.”

On April 23, 2014, the Board of County Commissioners (BOCC) voted to rezone the MTC property to allow 1,250 new homes, as well as approve a Development Rights and Responsibilities Agreement (DRRA) and an Adequate Public Facilities Ordinance Letter of Understanding (APFO LOU). After all public testimony was over and shortly before the BOCC voted, then-BOCC President Blaine Young read aloud a letter received that same day — purportedly from FACT and signed by FACT Secretary Michael Proffitt — urging approval of the MTC project. When asked whether FACT board members had signed the letter Mr. Young stated “No, they gave authority for this letter to be signed.”

But a June 3, 2014, Frederick News-Post article states that FACT “didn’t vote on the correspondence and didn’t discuss its contents as a group.” Instead, according to the same article, the letter was crafted “at the request of Commissioner Paul Smith, a liaison to the [FACT] group.”

“How could Mr. Smith be impartial with respect to evidence that he helped create?” asked RALE Vice President Matt Seubert. “Did he influence any other BOCC members with it?”

The News-Post also reported the reaction of FACT President Carol Krimm, who said “I was really baffled by why [the letter] was given so much weight, and when it came to light that it was considered evidence, I was like, ‘Oh, no, no, that is not our role in this discussion.’ ”

At the MTC hearing Mr. Smith did not disclose his role in producing the letter. Mr. Smith also did not disclose that he reviewed at least one draft of the FACT letter before it was sent to the BOCC, and he did not disclose who wrote the letter: Michael Proffitt, secretary of FACT, and Michael Smariga, cofounder of the landscape design firm Harris, Smariga & Associates (HSA), whose son Chris Smariga works for HSA and was a witness on behalf of MTC during the BOCC hearings. At the close of the MTC hearing, Mr. Smith voted to approve each of the three actions (the rezoning, the DRRA, and the APFO LOU). The following day the News-Post reported that MTC attorney Rand Weinberg called the FACT letter “a significant piece of evidence” in the case.

Craig Hicks, a RALE board member and founder of Republicans for Jan Gardner, said “I testified during the MTC hearings that public trust is the cornerstone of effective government and that the people have a right to be assured of the impartiality and independent judgment of their public officials. We now must rely on the courts to judge the impartiality of the public officials involved in the MTC case.”

RALE is a coalition of residents in and around Monrovia, Maryland, that supports
responsible growth and responsible fiscal management of growth by the Frederick
County government.


You can also download the original press release here.

EXHIBIT 1 (FACT letter)


You can also download the original letter here.

EXHIBIT 2 (Frederick News Post article, April 24, 2014)

<County OKs Monrovia Town Center

Frederick News Post
Thursday, April 24, 2014

By Bethany Rodgers

A plan to build 1,250 homes in Monrovia got final approval from Frederick County commissioners Wednesday despite months of appeals from area residents opposed to the development proposal.

Four county commissioners voted to rezone about 392 acres from agricultural to planned unit development, a change necessary to advance the Monrovia Town Center project. Commissioner David Gray was the only board member to oppose the measure. The same four commissioners also voted to enter into an 18-year agreement with developers. Gray made an unsuccessful motion to deny the rezoning measure and agreement.

Near the end of the hearing but before the vote, several Monrovia residents stormed out of the hearing as Commissioner Billy Shreve read judicial opinions supporting the county’s decisions on past development cases. One of the residents, Amy Reyes, shouted, “We’ll still see you in court,” as she left.

The project would roughly triple the population of its U.S. Census block, with the total number of residents skyrocketing from 1,350 to 4,082, according to county estimates. Spending dozens of hours at public hearings on the Town Center, local residents have objected to the project because of the potential strain on county services and safety issues arising from adding more cars to the road.

However, Commissioners President Blaine Young argued against the idea that Town Center residents wouldn’t be paying for their own impact on the community. By his calculation, each home would generate $40,000 for infrastructure improvements such as road or school expansion.

“So how in the world are you going to tell me these folks aren’t paying for themselves? They are, and they’re helping make up for the mistakes in the past,” Young said.

The Frederick Area Committee for Transportation sent a letter Wednesday indicating that the Town Center development would supply a significant amount of funding for road projects. The money could support improvements at Md. 75 and ease congestion at Md. 80 and Md. 75.

“While some residents may oppose development of the Monrovia Town Center which has been on land use plans for 40 years, FACT would be remiss if we didn’t take this opportunity to point out that the county at large benefits from approval of the project,” the letter stated.

The letter indicated that the committee does not normally weigh in on land-use issues unless they relate to transportation improvements.

Rand Weinberg, an attorney for the developer, said the letter was a significant piece of evidence that spoke to residents’ concerns about road safety.

“FACT cares strictly and solely about funding for transportation,” Weinberg said. “If you want to fix … the existing problems in this corridor, it’s got to happen by way of private sector contribution.”

Monrovia residents noted that some members of FACT are part of the building and development industry.

In their comments Wednesday, residents continued their strong opposition to the project but expressed little hope that commissioners would side with them.

“You’ve heard from the community again and again. I suppose you’ll ignore us,” said Steve McKay, a Monrovia resident.

While residents said they were at the commissioners’ mercy for the Monrovia Town Center decision, voters will have the power in this year’s elections.

“(Y)ou, Mr. Young, have created a monster. And that monster is me, and all these other insignificant Monrovians. You have turned us all into political activists, and we are now very organized,” said Teddy Kroll, of Monrovia.

Speakers on Wednesday argued against a long-term agreement between developers and the county. The proposed 18-year development rights and responsibilities agreement commits the developer to make a range of infrastructure improvements. It also protects the project against changes in zoning and freezes certain county rules and requirements for the development.

Earlier this year, commissioners downsized the Town Center development plan from its original form in what they considered a nod to the concerned citizens who had rallied, petitioned and testified against the project. The revisions to the Town Center proposal cut 260 homes from the plan and placed a 55-and-older restriction on half of the community.

Commissioners also opted to decrease the total area for the project by about 66 acres, removing land east of a power-line corridor and areas of the old drag strip. The duration of the agreement between the county and developers was shortened from 25 to 18 years.

Though commissioners scaled back the plan, local residents said the changes didn’t address their central concerns.

EXHIBIT 3 (Frederick News Post article, June 3, 2014)

FACT letter on Monrovia Town Center sent without group vote

Frederick News Post
Tuesday, June 3, 2014

By Bethany Rodgers

A local transportation committee plans to review its letter-writing process after a couple of members acted alone to send correspondence supporting the Monrovia Town Center development.

The message printed on Frederick Area Committee for Transportation letterhead focused on road upgrades, addressing the crux of the debate about the controversial 1,250-home project. Commissioners received the letter the day they voted to approve the Town Center plan, and developer representatives held up the correspondence as affirmation from a bipartisan group whose sole interest is enhancing the county’s transportation networks

Except that most of the committee, including its president, never saw the letter before it was sent.

Though the letterhead lists the names of all FACT directors, the committee didn’t vote on the correspondence and didn’t discuss its contents as a group, members said. Instead, two of the 17 committee directors collaborated to craft the letter at the request of Commissioner Paul Smith, a liaison to the group.

In light of the correspondence, FACT President Carol Krimm has suggested that her group discuss a letter-writing policy during its next meeting Monday. The group’s executive committee has also decided to clarify that the letter signed solely by Michael Proffitt, FACT secretary, was submitted as public comment and not as evidence.

“I was really baffled by why public comment was given so much weight, and when it came to light that it was considered evidence, I was like, ‘Oh, no, no, that is not our role in this discussion,’” Krimm said in a Monday phone interview.

Residents who opposed the Town Center development have called for the state prosecutor to investigate the circumstances surrounding the FACT letter.

Matt Seubert is vice president of Residents Against Landsdale Expansion, or RALE, a citizens group known for its vocal opposition to the Town Center development.

“In my view, the last-minute submission of this letter was a deliberate ploy to alter the weight of the evidence presented by the opposition — that transportation infrastructure is inadequate and will remain that way for the foreseeable future if this project is approved,” Seubert said in a statement.

Town Center opponents have argued that the development would add traffic without generating enough money for expensive road expansion projects.

Smith acknowledged that during an April 14 FACT meeting, he advised that the group comment on the Town Center proposal. After the meeting, he continued discussing the suggestion with Michael Smariga, the FACT member who heads up the local roads subcommittee.

Steve McKay, RALE president, noted that Smariga is a now-retired founder of Harris, Smariga & Associates, a civil engineering and land planning firm that is working on the Monrovia Town Center project.

Proffitt said he and Smariga worked together to craft the letter that went to county commissioners. Smith said he saw a drafted version of the letter. Krimm said she was occupied with family issues at the time and did not review the correspondence before it went to commissioners.

Smith said he doesn’t think the letter played a significant role in persuading four commissioners to vote for the Town Center plan. However, he said it did explain that developments such as the Town Center will play a key role in paying for upgrades along the Md. 75 corridor.

Krimm said she agrees with Proffitt that public-private partnerships are important in paying for highway improvements, though she believes other parts of the letter went beyond FACT’s mission. Proffitt conceded that the letter overstepped where he wrote that FACT would “be remiss if we didn’t take this opportunity to point out that the county at large benefits from approval of the project.”

“I’ll acknowledge a mistake and acknowledge that we should have a cleaner method of doing this,” he said.

Up to this point, Krimm said, FACT hasn’t had a formal process for writing correspondence.

Frederick County Commissioners President Blaine Young said he had no involvement in the creation of the FACT letter. He said he thinks RALE’s request for an investigation is preposterous.

“The state prosecutor has no role in someone sending a letter and stating their opinion. … What are they going to do next, ask the U.N. to come in and sanction us?” Young said. “It’s the most absurd thing I’ve ever heard.”

Young said the letter didn’t influence his vote in support of the Town Center.

Smariga did not return calls requesting comment.

Stay tuned for more about this story.

Monrovia Town Center – When is a FACT NOT a Fact?
By Steve McKay
June 5, 2014

FACT meeting ignores the elephant in the room
By Kai Hagen
June 9, 2014