author: Berger, J.

text:
    153 A.3d 874
    CLEANWATER LINGANORE, INC. et al. v. FREDERICK COUNTY, MARYLAND et al.
    No. 2212,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    February 3, 2017

      Michele M. Rosenfeld (Law Office of Michele M. Rosenfeld, on the brief) all of Rockville, MD, for Appellant.
    Kathy L. Mitchell (John S. Mathias, County Attorney, on the brief) all of Frederick, MD. Paul D. Rose, Jr. (Miles & Stoekbridge PC, on the brief) all of Frederick, MD, for Appellee.
    Kehoe, Berger, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.
   Berger, J.

This case is the most recent in a series of cases to come before us challenging various issues related to development in the Lake Linganore area of Frederick County. In this appeal, we address a challenge by the Appellants to the Frederick County Board of County Commissioners’ (“BOCC”) approval of a Development Rights and Responsibilities Agreement (“DRRA”). The Appellants present three issues for review on appeal, which we have reordered and rephrased slightly as follows:

1. Whether the DRRA violates § 7-304 of the Land Use Article of the Maryland Code, Md. Code (2012, 2014 Repl. Vol).
2. Whether the DRRA lawfully contains a provision providing that the DRRA constitutes a covenant running with the land.
3. Whether the DRRA is void because it lacks any “enhanced public benefits” and/or consideration.

For the reasons explained herein, we shall hold that the DRRA is void for lack of enhanced public benefits and reverse the judgment of the Circuit Court for Frederick County.

FACTS AND PROCEEDINGS

This is an administrative appeal from an opinion and order of the Circuit Court for Frederick County affirming two separate actions of the BOCC, a rezoning action and the DRRA approval. Although the Appellants raised issues with respect to both actions before the circuit court, on appeal to this Court, the Appellants have raised issues only with respect to the DRRA approval. Nonetheless, we set forth certain facts and proceedings relevant to both issues in order to provide context.

This case involves two parcels of land (“the Property”) owned by the Blentlinger family. The Blentlinger family farmed the Property for multiple generations before deciding to explore development opportunities. Until 2007, the Property had a Low Density Residential (“LDR”) land use designation, pursuant to which a property owner is permitted to apply for a Planned Unit Development (“PUD”). In 2007, the BOCC reclassified the Property and removed the LDR designation, rendering the Property ineligible for PUD designation. In 2012, however, the BOCC again reclassified the Property (as well as multiple other properties in the Lake Linganore area) as LDR. The 2012 rezoning action was challenged before the circuit court in this case and was unsuccessfully challenged in various other appeals before this Court. The 2012 rezoning action is not an issue in the present appeal.

After the Property was rezoned as LDR, Lillian C. Blent-linger, LLC and William L. Blentlinger, LLC (“the Blentling-ers”), appellees, filed a PUD zone application for the Property on February 25, 2014. The Blentlingers filed a DRRA petition on March 11, 2014, which included a draft DRRA. The BOCC accepted the DRRA petition on April 15, 2014. After two public hearings before the Frederick County Planning Commission and one public hearing before the BOCC, the BOCC voted to approve the PUD rezoning application and the proposed DRRA, The PUD rezoning application was approved with conditions that limited the total unit count to 675 residential dwelling units, consisting of 500 single-family units and 175 townhomes. An additional condition required that the first building permit for the construction of a residence not be issued before January 1, 2020. The BOCC enacted the PUD rezoning ordinance and executed the final DRRA on November 24, 2014. The final DRRA (“the Blentlinger-County DRRA”) was recorded in the Land Records of Frederick County on the same date.

The Appellants filed a petition for judicial review of both the PUD and DRRA actions in the Circuit Court for Frederick County. The circuit court upheld both actions. This timely appeal followed.

STANDARD OF REVIEW

In general, although we generally defer to the factual findings of an administrative agency, “[w]e review an agency’s decisions as to matters of law de novo for correctness.” Wallace H. Campbell & Co. v. Maryland Comm’n on Human Relations, 202 Md.App. 650, 663, 33 A.3d 1042 (2011). However, “[e]ven 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.” Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 410 Md. 191, 204, 978 A.2d 622 (2009) (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376 (1999)).

DISCUSSION

I.

A DRRA is “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.” Md. Code (2012, 2014 Repl. Vol.), § 7-301(b) of the Land Use Article (“LU”). DRRAs are attempts to balance “developers’ and property owners’ desires for a larger measure of certainty than that offered by proceeding to market through the traditional development processes, while risking the monetary investment to develop their property, against local governments’ desire to receive greater public benefits on a more predictable schedule than might otherwise be attainable through the traditional processes.” Queen Anne’s Conservation, Inc. v. Cty. Comm’rs of Queen Anne’s Cty., 382 Md. 306, 308-09, 855 A.2d 325 (2004).

One feature of a DRRA is that certain local laws, rules, regulations, and policies are “frozen” at the time the DRRA is executed. This “freeze provision” permits developers to move forward with long-term development projects with certainty. The “freeze provision” is set forth in LU § 7-304, which provides:

(a) 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.
(b) If the local jurisdiction determines that compliance with local laws, rules, regulations, and policies enacted or adopted after the effective date of an agreement is essential to ensure the public health, safety, or welfare, an agreement may not prevent a local government from requiring a person to comply with those local laws, rules, regulations, and policies.

The Appellants argue that the Blentlinger-County DRRA is invalid because it violates LU § 7-304 by purporting to “freeze” certain local laws, rules, regulations, and policies beyond those specifically identified in LU § 7-304. Specifically, Section 8.1 of the Blentlinger-County DRRA provides:

8.1 Effect of Agreement

A. 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 (hereinafter collectively the “Development Laws”) shall be the laws, rules, regulations and policies, if any, in force on the Effective Date of the Agreement, and the Developer shall comply with all Development Laws.

Before turning to the merits of this issue, we comment briefly on whether this issue is ripe for our review. “A controversy is justiciable when there are interested parties asserting adverse claims upon a state of facts which must have accrued wherein a legal decision is sought or demanded.” Michael, LLC v. 8204, Assocs. Liab. Co., 207 Md.App. 666, 672, 53 A.3d 509 (2012) (quoting 1 W. Anderson, Actions for Declaratory Judgments § 17 (2d ed. 1951)). We recently found a nearly identical issue regarding the scope of a DRRA freeze provision ripe for review and addressed the merits. Cleanwater Linganore, Inc., et al. v. Frederick County, Maryland, et al., 231 Md.App. 373, 151 A.3d 44 (Ct. of Spec. App. 2016) (“Casey”).

In our view, this case presents “an accrued set of facts, beyond the merely theoretical, that bears directly on the justiciable question[s]” of whether the Blentlinger-County DRRA properly froze a wide range of laws, whether the Blentlinger-County DRRA lawfully contains a provision providing that it runs with the land, and whether the Blentlinger-County DRRA is supported by adequate consideration and/or enhanced public benefit pursuant to the DRRA Act. See id., 281 Md.App. at 385-86, 151 A.3d 44. At oral argument, neither party disputed this issue is ripe for our consideration. Further, the parties agreed at oral argument that the issues in this appeal are ripe for our consideration. Of course, the parties, by agreement, may not confer jurisdiction on a court where none exists; however, we conclude for other reasons expressed above that the questions presented here are ripe for appellate review. As such, we will address the merits in the present appeal.

We now turn to the merits of the DRRA freeze provision issue and consider whether § 8.1 of the Blentlinger-County DRRA contains an impermissibly broad range of laws. This Court recently addressed this issue at length in Casey, supra. All of the laws, regulations, and policies listed in § 8.1 of the Blentinger-County DRRA were also included in the Casey DRRA, which provided as follows:

Except as otherwise provided ... the County Development Laws, regulations!],] and policies governing the use, density!],] or intensity of the Property, including but not limited to those governing development, subdivision, zoning, comprehensive planning, moderately priced dwelling units, growth management, impact fees, water, sewer, stormwater management, environmental protection, land planning and design, adequate public facilities laws[,] and architecture shall be the laws, rules, regulations!],] and policies, if any, in force on the Effective Date of the Agreement.

Casey DRRA § 8.1.

In Casey, we concluded that “the intended scope of ‘the local laws, rules, regulations, and policies’ that ‘govem[ ] the use, density, or intensity’ of real property” was “ambiguous on its face.” 231 Md.App. at 387-88, 151 A.3d 44. Accordingly, we engaged in an exhaustive review of the legislative history of the DRRA Act. We explained that the Fiscal Note for HB 700, the original bill that became the DRRA Act in 1995, as well as the Senate Economic and Environmental Affairs Committee Floor Report, “demonstrate that the General Assembly was aware of, and contemplated presumably, the DRRA Act’s freeze provision to embrace more than merely zoning ordinances, including something as seemingly attenuated as a variety of fees related to development.” Id., at 390, 151 A.3d 44.

Having established that the legislature intended the DRRA freeze provision to apply to a wider range of laws than merely zoning laws, we turned to the specific ordinances and regulations referenced in the Casey DRRA § 8.1. We explained:

It is patent that local zoning ordinances govern most directly the “use, intensity, or density” of real property. Subdivision ordinances and regulations, as well as many environmental and public facility or utilities laws (enforced typically during the subdivision process) are to like effect. Costs and fees associated with public facilities impacts, permits, and water and sewer hookups, on the other hand, seem at first glance rather more attenuated from direct governance of a property’s “use, intensity, or density.” And yet, the DRRA Act’s legislative history demonstrates the Legislature’s contemplated inclusion of them as well as among reachable local laws for purposes of LU § 7-304(a). Viewing relevant local provisions on a continuum from the most direct governance to the least contemplated by the freeze provision, zoning and subdivision would be located at one end and fees at the other. Assuming these outer limits for purposes of the DRRA in the present case, the freeze provision must contemplate, axiomatically, local laws, rules, regulations, and policies that might fit between these poles. Local provisions related to development, comprehensive planning, moderately-priced dwelling units, growth management, environmental protection, land planning and design, adequate public facilities laws, and architecture govern more clearly “use, intensity, or density” than do, for example, impact and permit fees. We conclude, therefore, that the Maryland General Assembly intended the DRRA Act’s freeze provision to contemplate each of the genres of local laws listed in Article VIII § 8.1(B) of the Casey-County DRRA.

Id., 231 Md.App. at 390-91, 151 A.3d 44. Because all of the laws, regulations, and policies listed in § 8.1 of Blentlinger-County DRRA were also included in the Casey DRRA, the same reasoning applies to the present appeal. Accordingly, we conclude that the General Assembly intended the DRRA freeze provision to include each of the genres of local laws listed in § 8.1 of the Blentlinger-County DRRA.

In Casey, we found further support for a broad reading of the DRRA Act freeze provision by examining the purpose behind the DRRA Act. See id., 231 Md.App. at 391-93, 151 A.3d 44. We discussed the legislative purpose as follows:

In its 1995 analysis of H.B. 700, the House Commerce and Government Committee explained that State DRRA laws seek to “solve the vesting problem” by “(1) prohibiting local governments from applying new regulations to on-going projects by defining when vesting occurs, and (2) authorizing the use of development agreements.” H. Commerce and Gov’t Comm., Bill Analysis, H.B. 700, at 3 (Md. 1995). The “vesting problem” refers to the balancing of a developer’s interest in securing and consolidating its legal footing to begin and complete a development project with a local jurisdiction’s interest in governing the pertinent legal domains, including amending laws and policies as necessary. In 1993, the Court of Appeals held that a developer’s rights in the development of a property vest only upon a level of visible commencement of lawful construction. Prince George’s Cnty., Md. v. Sunrise Dev. Ltd. P’ship, 330 Md. 297, 623 A.2d 1296 (1993). This opinion recognized that local governments may “change a permissible land use ... very late in the land use approval process. In fact, a change could occur after the issuance of a building permit.” Bill Analysis at 3. The purpose of the DRRA Act, therefore, was to strike a balance between the interests of developers and local governments to “solve the vesting problem.”

The House Commerce and Government Committee explained such a balance as follows:

Development agreements can provide benefits for both developers and local governments. For the developer, a development agreement establishes the rules and regulations which will govern the project throughout its construction, and perhaps beyond. For the local government, the development agreement provides for greater certainty in the comprehensive planning process, as well as an opportunity to ensure the provision of necessary public facilities.
Bill Analysis at 3.
What would achieve best the legislative purpose of balancing a developer’s interest in legal stability against a local government’s interest in certainty and obtaining enhanced public benefits: limiting, for example, the Casey DRRA’s freeze provision to subsequent changes in the zoning code only, as urged by CLI, or allowing it to apply to the expansive list of local provisions in the negotiated DRRA as written? If the DRRA Act only allowed DRRAs to freeze the application of local zoning ordinance provisions, a local government could undermine still the legal and financial stability of an on-going development project by changing the laws related to, for example, development or site plans, subdivision, or planning compliance. Where a developer assumed that its project could be thwarted by a last-minute or mid-stream change to any of these non-zoning laws, it would be less likely to undertake a substantial development at all in a jurisdiction. This, in turn, would frustrate the local government’s interest in obtaining greater public benefits through negotiation of a DRRA’s terms.

Id., 231 Md.App. at 391-93, 151 A.3d 44. The reasoning applied in Casey compels the same conclusion in this case. As in Casey, “[w]e conclude that, like its statutory history, the purpose of the DRRA Act suggests a more expansive reading of the local laws eligible for inclusion in a DRRA’s freeze provision, beyond merely the local zoning ordinance, that includes at least the local law provisions listed in the” Blentlinger-County DRRA. Id., 231 Md.App. at 392-93, 151 A.3d 44. We, therefore, hold that the BOCC’s approval of the Blentlinger-County DRRA, including the freeze provision set forth in § 8,1, does not impermissibly expand the scope of local laws, rules, regulations, and policies governing use, density, or intensity beyond the limits of LU § 7-304.

II.

We next consider the Appellants argument that the DRRA impermissibly included a provision providing that the DRRA constitutes a covenant running with the land. The Appellants maintain that Maryland DRRA law does not authorize a DRRA to be converted into a real property interest. The Blentlingers respond that Maryland and Frederick County law require a DRRA to be recorded and thus to run with the land and that the language of the DRRA merely confirms what is already required under Maryland and Frederick County law. We agree with the Blentlingers.

First, we observe that Maryland law requires that all DRRAs be recorded in the land records of the local jurisdiction. LU § 7—305(d). With respect to the recordation requirement, LU § 7-305(d) provides:

(1) If [a DRRA] is not recorded in the land records of the local jurisdiction within 20 days after the date on which the parties execute the [DRRA], the [DRRA] is void.
(2) The parties to [a DRRA] and their successors in interest are bound to the agreement after the agreement is recorded.

Id, The statute plainly provides that a properly recorded DRRA binds not only the parties to the DRRA, but any successors in interest as well. Id, Section 1-25-10 of the Frederick County Code of Ordinances contains language identical to that in LU § 7-305(d).

Article IV of the Blentlinger DRRA provides, in relevant part:

This Agreement shall constitute covenants running with the land and shall 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.

In our view, the language of the Blentlinger DRRA simply confirms what is required by law. Furthermore, the Blentlinger DRRA satisfies the test set forth by the Court of Appeals for covenants running with the land. In Mercantile-Safe Deposit & Trust Co. v. Mayor & City Council of Baltimore, 808 Md. 627, 632, 521 A.2d 734 (1987), the Court of Appeals explained that four elements must be satisfied for a covenant to run with the land:

(1) the covenant must touch and concern the land;
(2) the original covenanting parties must intend the covenant to run with the land;
(3) there be some privity of estate; and
(4) the covenant must be in writing.

The first element, that the covenant must touch and concern the land, is easily satisfied because the entirety of the DRRA concerns the development of the Property. The second element is similarly easily satisfied. The original covenanting parties—the County and the Blentingers—clearly and unambiguously expressed in Article IV of the Blentlinger DRRA that they intended the DRRA to run with the land.

We additionally agree with the circuit court that the third element, requiring privity of estate, is satisfied. We have explained:

Privity of estate can be satisfied by proof of vertical privity, which focuses ... on the devolutional relationships. For vertical privity to be satisfied, it only is necessary that the person presently claiming the benefit, or being subjected to the burden, is a successor to the estate of the original person so benefitted or burdened.

Select Portfolio Servicing, Inc. v. Saddlebrook W. Util. Co., LLC, 229 Md.App. 241, 270, 145 A.3d 19 (2016), cert. granted, 450 Md. 663, 150 A.3d 818 (2016) (internal quotations and citations omitted). In this case, the original parties continue to hold interests in the Property. As the circuit court explained, and we agree, the Blentlingers “have a continuing interest in the Property as the owner, and the County government has continuing interest as the regulator of the development of the Property.” Finally, the fourth element, requiring the covenant to be in writing, is satisfied because the DRRA is a written document.

The Appellants cite no authority in support of their position that a DRRA cannot include a provision specifying that the DRRA is a covenant running with the land. We hold that because the DRRA satisfies the test set forth in Mercantile-Safe Deposit and Trust Co., supra, the DRRA is a covenant running with the land. The language of the DRRA confirms that which is already required under Maryland law. Accordingly, we reject Appellants’ covenant running with the land argument.

III.

The Appellants’ third contention is that the DRRA is void for lack of consideration because it lacks any “enhanced public benefits” to the County. We agree.

The local governing body of a local jurisdiction, such as Frederick County, is authorized to establish proceedings and requirements for the consideration and execution of DRRAs. LU § 7-301(b). Frederick County’s DRRA regulations mirror those regulations embodied in the Land Use Article. Those regulations are set forth in Chapter 1-25 of the Frederick County Code.

We recently noted that “DRRAs generally are bargained-for agreements between property owners/developers and local jurisdictions that, among other things, provide for ‘freezing,’ as of the date of the agreement, the application of certain extant local laws and regulations during a fixed period of time coinciding typically with the estimated build-out of the proposed development, as long as the period does not exceed the statutory ‘cap.’ ” Casey, supra, 231 Md.App. at 379-80, 151 A.3d 44.

By agreeing to enter into a DRRA in Maryland, a local government grants rights to a property owner and insulates those rights from legal changes for a minimum of five years. The consideration provided to a local government by a property owner under a DRRA is not constrained by the constitutional limitations of “nexus” and “rough proportionality.” See Dolan v. City of Tigard, 512 U.S. 374, 391, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994); Nollan v. California Coastal Commission, 483 U.S. 825, 837, 107 S.Ct. 3141, 97 L.Ed.2d 677 (1987). The voluntary nature of a DRRA allows a local government to negotiate public infrastructure improvements or other public benefit features beyond those that it may otherwise attain.

In Casey, we reviewed the purpose of DRRAs and observed that:

Obtaining forbearance of the application of subsequent changes in relevant local laws provide certainty and stability to developers, whose projects may take many years to complete and/or sell-off or lease. Local government derive, in return, negotiated greater public benefits than may be attained through typical governmental exactions or conditions of development approvals.

231 Md.App. at 380, 151 A.3d 44.

Every DRRA is required to include “a description of the conditions, terms, restrictions, or other requirements determined by the local jurisdiction to be necessary to ensure the public health, safety, or welfare.” LU § 7—303(c)(9). Section 7-303(e)(10) further requires that a DRRA shall include “to the extent applicable, provisions for the: (i) dedication of a portion of the real property for public use; (ii) protection of sensitive areas; (iii) preservation and restoration of historic structures; and (iv) construction or financing of public facilities.” The Appellants maintain that the purpose of these provisions in the Land Use Article is to require the local governing body to specifically identify the enhanced public benefits that the locality expects to receive in exchange for entering into a DRRA. Frederick County and the Blentlingers contend that they need not identify any “enhanced benefit” and that they only need to demonstrate that the DRRA is supported by adequate consideration.

In our view, this involves an issue of contract law. As the Court of Appeals observed in Queen Anne’s Conservation, Inc., supra, 382 Md. at 332, 855 A.2d 325, a DRRA “is a contract whose purpose is to vest rights under zoning laws and regulations, in consideration of enhanced public benefits.” Further, the legislative history of House Bill 700, titled “Real Property—Development Rights and Responsibilities Agreements”—which ultimately became the DRRA Act in 1995— addresses the purpose of DRRAs as providing benefits to both developers and local governments. The House Commerce and Government Committee Bill Analysis and the Senate Economic Affairs Committee Bill Analysis provides the following background regarding the bill:

Development agreements can provide benefits for both developers and local governments. For the developer, a development agreement establishes the rules and regulations which will govern the project throughout its construction, and perhaps beyond. For the local government, the development agreement provides for greater certainty in the comprehensive planning process, as well as an opportunity to ensure the provision of necessary public facilities.

In the instant case, the Blentlinger-County DRRA contained multiple binding promises which the Blentlingers and the County contend constitute consideration under Maryland law. Sections 3.1 through 3.3 of the DRRA include promises by the developer to abide by Frederick County’s Adequate Public Facilities Ordinance with respect to road, sewer, and water improvements. The DRRA provides that the Blentlingers agreed to “either construct or fund the construction of certain road improvements or contribute to escrow funds for roads improvements, all as will be comprehensively set forth in an Adequate Public Facilities Ordinance Letter of Understanding.” See § 3.1 of the DRRA, entitled “Road Improvements.” With respect to water and sewer improvements, the Blentlingers agreed to “pay tap fees in accordance with the current fee schedule in effect at the time of permit application.” See §§ 3.2 and 3,3 of the DRRA, entitled “Sewer Improvements” and “Water Improvements.” The Blentlingers further agreed to pay the applicable school construction and impact fees. See §§ 3.4 and 3.6 of the DRRA, entitled “School Construction Fee” and “School Impact Fees.”

In our view, these provisions of the 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 Adequate Public Facilities Ordinance.

The disagreement between the parties surrounds a provision in the DRRA mb judice that contains what may appear to be a promise by the developer to convey to the Frederick County Board of Education a parcel for a public school that arguably serves as an enhanced public benefit to Frederick County and its citizens. Section 3.4.C of the Blent-linger-County DRRA provides that:

The Developer 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 the BOE [Board of Education] upon i) its reconsideration of the first subdivision plan for lots in the Project; and ii) BOE’s acceptance of the conveyance of land for Public School Site.

The circuit court expressly relied on the developer’s agreement to dedicate a site for construction of a middle school in holding the DRRA in this case was supported by adequate consideration. The Appellants maintain that the circuit court erred because the dedication of the school site was not required as a condition of conferring DRRA approval to the developer. Instead, they argue that such a dedication is a standard rezoning requirement in any large Frederick County zoning project.

The Appellants further maintain that the school site must be given to obtain rezoning of the property rather than as an enhanced public benefit in exchange for a DRRA. Indeed, at the Board of County Commissioners’ meeting on November 6, 2014, Jim Gugel, Planning Director of the Frederick County Government Division of Community Development, testified that the Developer would have been required to proffer the site to build a middle school for the County even without a DRRA. The record reflects the following colloquy:

[APPELLANTS’ COUNSEL]: Would this property owner be required to proffer the—the middle school site whether or not there is a DRRA in this case?
MR. GUGEL: Well, the PUD, I mean it—the new PUD regulations do give that discretion in 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.

Emphasis added.

We need not decide whether the conveyance of a middle school site constitutes an enhanced public benefit to Frederick County. Critically, the DRRA in the instant case merely requires the developer to proffer the site, which the Board of Education, in its discretion, could accept or decline. The record before the Board of County Commissioners reflects the following testimony:

[APPELLANTS’ 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?
MR. GUGEL: Yeah, the site itself. I mean, the Phase I PUD does establish thresholds, timing thresholds of when the dedication and conveyance must occur.
[APPELLANTS’ COUNSEL]: But acceptance depends on the Board of Education?
MR. GUGEL: Correct.

Mr. Gugel further testified that if the BOE does not accept the dedication of the middle school site, the developer would then retain fee simple ownership of the land that was previously identified as totaling a minimum of 24.5 ± buildable acres. The DRRA expressly provides that:

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 Developer 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.

DRRA § 3.4.C, entitled “School Site Dedication.”

Because the Developer retains 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 the developer 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.

Absent the conditional conveyance of the site for the middle school, the developer cannot identify any legally recognizable enhanced public benefit to Frederick County in connection with the DRRA. The testimony before the Board of County Commissioners contains the following exchange:

[APPELLANTS’ COUNSEL]: [W]ould the applicant please explain what greater public benefits the DRRA provides above and beyond those that would otherwise be obtainable absent the DRRA?
[DEVELOPER’S COUNSEL]: A certainty that the project would not lose zoning, wouldn’t lose density, wouldn’t lose its comprehensive plan ... You know, all of that is certainly public benefit ....
[APPELLANTS’ 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—
[DEVELOPER’S COUNSEL]: I mean, it’s one and the same .... [H]ow is it to the greater good or how is it to [sic] public benefit, and by public meaning not just a property owner if the—if zoning can change willy-nilly, if property rights can be given and taken away based on, 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, all the parties have tried to address this through legislation at the state in terms of vesting and this was the compromise ... As my co-counsel Mr, Rose is referencing, I mean, the school site, the roads, the representations as to making all of the improvements that are required under the APFO, I mean, it’s all right here.

As the developer’s testimony and its counsel’s argument reflects, the public benefit conferred by the DRRA consists of the developer’s vested rights in the project and the applicant’s obligations to satisfy Adequate Public Facilities Ordinance (“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 Adequate Public Facilities Ordinance infrastructure requirements. The DRRA sub judice 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 DRRA is void for lack of consideration.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR FREDERICK COUNTY WITH INSTRUCTIONS TO VACATE THE BLENTLINGER-COUNTY DRRA. COSTS TO BE DIVIDED EQUALLY AMONG THE PARTIES.

      . The Appellants are Cleanwater Linganore, Inc., RALE, Inc., Nikki Chauvin, Jimmy and Joyce Duffy, Paul and Tracy Garcia, Dang Mindte, Carrie Payne, Pamela Pennington, Patricia Wells, Carol Swandby, and Reggie Wade.

      . On December 1, 2014, Frederick County became a charter county, replacing the BOCC with a County Executive and a County Council. See Frederick County Charter.

      . This is at least the sixth case to come before this Court challenging development in the Lake Linganore area of Frederick County, all of which affirmed the judgments of the Circuit Court for Frederick County and/or dismissed the appeal filed by the appellants. The previous cases before this Court were:
      • Cleanwater Linganore, Inc., et al. v. Frederick County, Maryland, et al., 231 Md. App. 373, 151 A.3d 44 (2016) (addressing the merits of an identical freeze provision issue and holding that a freeze provision in a DRRA may include a broader range of local laws titan only zoning ordinances).
      • Citizens of Linganore Opposed to Gridlock, et al. v. Board of County Commissioners of Frederick County, et al., No, 1273, Sept. Term 2014, 2015 WL 5968223 (filed July 15, 2015) (unreported opinion) (addressing identical DRRA freeze provision issue).
      • Friends of Frederick County, et al. v. County of Frederick, Maryland, No. 2159, Sept. Term 2013, 2015 WL 6112284 (filed August 11, 2015) (unreported opinion) (affirming the BOCC’s adoption of the 2012 Zoning Map and the 2012 Comprehensive Plan).
      • Citizens of Linganore Opposed to Gridlock, et al. v. Board of County Commissioners of Frederick County, et al., No. 738, Sept. Term 2014, 2015 WL 5920589 (filed August 25, 2015) (unreported opinion) (addressing 2012 Comprehensive Rezoning and BOCC approval of a PUD).
      • Friends of Frederick County, Inc., et al. v. Frederick County Board of Appeals, et al., No. 2497, Sept. Term 2013, 2015 WL 6447152 (filed October 23, 2015) (unreported opinion) (granting a motion to dismiss on the basis the appellants’ challenge to a DRRA was not authorized under a previous version of LU § 7-307).

      . Under Frederick County Code § 1-19-10.500(H)(1)(a), a maximum of 1,674 dwelling units are permitted for the Property with PUD zoning.

      . We emphasize that the DRRA Act only authorizes the freezing of local laws, LU § 7-304, and does not, by its own terms, grant the authority to freeze state or federal laws.

        . That case has the same parties listed in the case caption as the present appeal but involved a separate developer and challenged a separate DRRA. The DRRA in Case No. 1917, Sept. Term 2015 was between the Eugene B. Casey Foundation and Frederick County. For clarity, we shall refer to that case as “Casey."

      . The cited content of this Bill Analysis is mirrored in a rearranged format in S. Econ. and Envtl. Affairs Comm., Bill Analysis, H.B. 700, at 2-3 (Md. 1995). [Footnote in original.]

      , In light of our determination that § 8.1 of the Blentlinger-County DRRA is not impermissible, we need not address whether § 8.1 should be excised from the DRRA or whether it should be stricken and replaced with the precise language of the statutory freeze provision.

      . Section 1-25-10 of the Frederick County Code of Ordinances provides:
      (A) An agreement not recorded in the Land Records of Frederick County within 20 days after the day on which the county and the applicant execute the agreement is void. Either the applicant or the county may record the agreement.
      (B) The county and the applicant, and their successors in interest, are bound to the agreement after the agreement is recorded.

      . The Appellants argue that “labelling the DRRA as covenants that run with the land would materially affect the local governing body’s ability to exercise its authority under [LU § ] 7-305(g)(2),” which provides that a public principal or local governing body may suspend or terminate a DRRA after a public hearing if suspension or termination of the DRRA is essential to ensure public health, safety, or welfare. The Appellants do not, however, provide any authority that suggests that the running with the land provision is impermissible.

      . Section 1-25-12 of the Frederick County Code provides that a DRRA "shall be void 5 years after the day on which the parties execute the agreement unless the agreement provides a shorter or longer duration or unless extended by amendment .... ”


source: Caselaw Access Project

license: Public Domain

text:
    153 A.3d 888
    Marcee ZAKWIEIA v. BALTIMORE COUNTY, BOARD OF EDUCATION
    No. 2492,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    February 3, 2017

      Ari N. Larie (Charles S. Schultz, Berman, Sobin, Gross, Feldman & Darby LLP on the brief) all of Lutherville, MD, for Appellant.
    Timothy E. McLaughlin (Theresa M. Colwell, Humphreys, McLaughlin <& McAleer, LLC on the brief) all of Baltimore, MD, for Appellee.
    Wright, Berger, Nazarian, JJ.
   Berger, J.

This case is before us on appeal from an order of the Circuit Court for Baltimore County granting summary judgment in favor of the Board of Education of Baltimore County (“the Board”), appellee. The questions presented on appeal involve whether the Board was entitled to apply ordinary disability retirement benefits owed to Marcee Zakwieia (“Claimant”), appellant, as a credit to workers’ compensation benefits also owed to her. The circuit court affirmed the decisions of the Maryland Workers’ Compensation Commission (“the Commission”), ruling that the Board was entitled to the statutory offset provided in Md. Code (1991, 2008 Repl. Vol), § 9-610 of the Labor & Employment Article (“LE”). Claimant alleges that the circuit court’s ruling was erroneous and presents two questions for our consideration, which we have rephrased slightly as follows:

I. Whether LE § 9-610 applies in determining whether the Board is entitled to a statutory offset for workers’ compensation benefits owed to Claimant.
II. Whether the circuit court properly determined that the Board was entitled to an offset for Claimant’s workers’ compensation benefits pursuant to LE § 9-610.

For the reasons explained herein, we shall affirm.

FACTS AND PROCEEDINGS

On December 13, 2007, Claimant suffered an accidental injury to her back while employed by the Board. Thereafter, Claimant filed a claim with the Commission and was awarded workers’ compensation benefits for injuries to her back and right shoulder.

Following the injury, Claimant applied for accidental disability retirement benefits through the Maryland State Retirement Agency. Claimant identified December 13, 2007 as the date of the accident which caused her disability. On November 20, 2012, the Maryland State Retirement and Pension System denied Claimant’s application for accidental disability retirement benefits but awarded Claimant ordinary disability retirement benefits. Part of the ordinary disability retirement award was due to Claimant’s pre-existing back condition related to degenerative arthritis of the lumbar spine.

A hearing was held before the Commission on March 26, 2014 on, inter alia, the issue of whether the Board was entitled to an offset under LE § 9-610. The Commission issued an order on April 3, 2014 in which the Commission concluded that Claimant’s ordinary disability retirement benefits and workers’ compensation benefits were “similar benefits” under LE § 9-610(a), and, therefore, were subject to the statutory offset. Claimant filed a request for rehearing on April 18, 2014, raising the offset issue as well as other, unrelated issues that are irrelevant to this appeal. The Commission issued subsequent orders on June 2, 2014 and August 7, 2014.

Claimant appealed the Commission’s orders to the Circuit Court for Baltimore County. Claimant and the Board filed cross-motions for summary judgment. After a hearing, the circuit court upheld the decisions by the Commission and found that the statutory offset in § 9-610 was applicable to Claimant’s benefits. This appeal followed.

STANDARD OF REVIEW

The entry of summary judgment is governed by Maryland Rule 2-501, which provides:

The court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.

Md. Rule 2—501(f).

The Court of Appeals has explained the standard of review of a trial court’s grant of a motion for summary judgment as follows:

On review of an order granting summary judgment, our analysis “begins with the determination [of] whether a genuine dispute of material fact exists; only in the absence of such a dispute will we review questions of law.” D’Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (quoting Appiah v. Hall, 416 Md. 533, 546, 7 A.3d 536, 544 (2010)); O’Connor v. Balt. Cnty., 382 Md. 102, 110, 854 A.2d 1191, 1196 (2004). If no genuine dispute of material fact exists, this Court determines “whether the Circuit Court correctly entered summary judgment as a matter of law.” Anderson v. Council of Unit Owners of the Gables on Tuckerman Condo., 404 Md. 560, 571, 948 A.2d 11, 18 (2008) (citations omitted). Thus, “[t]he standard of review of a trial court’s grant of a motion for summary judgment on the law is de novo, that is, whether the trial court’s legal conclusions were legally correct.” D’Aoust, 424 Md. at 574, 36 A.3d at 955.

Koste v. Town of Oxford, 431 Md. 14, 24-25, 63 A.3d 582, 589 (2013).

In an appeal of a workers’ compensation case, when the issue presented is an issue of law, “we review the decision de novo, without deference to the decisions of either the Commission or the circuit court.” Long v. Injured Workers’ Ins. Fund, 225 Md.App. 48, 57, 123 A.3d 562 (2015) (citing Gross v. Sessinghause & Ostergaard, Inc., 331 Md. 37, 45-48, 626 A.2d 55 (1993)). Because this case presents only issues of law, we apply the de novo standard of review.

DISCUSSION

I.

Claimant's first assertion is that because she is a member of the Teachers’ Pension Union, LE § 9-610 does not apply to the instant case. Claimant asserts that, Md. Code (1993, 2015 Repl. Vol.), § 29-118 of the State Personnel & Pensions Article (“SPP”), is the only controlling statute. Claimant further argues that the circuit court “overlooked the application of SPP § 29-188 altogether and rushed to apply LE § 9-610.” As we shall explain, Claimant’s argument is both unpreserved and based upon a misreading of the relevant law.

First, we observe that this argument was not raised before the trial court or administrative agency. The transcript of the March 26, 2014 hearing before the Commission indicates that the parties focused their arguments on the issue of the offset pursuant to LE § 9-610 and did not so much as mention SPP § 29-188. Furthermore, Claimant’s motion for summary judgment clearly states that “[tjhis case involves an interpretation of § 9-610 of the Maryland Workers’ Compensation [A]ct,” which is codified at LE § 9-610. Furthermore, at the September 10, 2015 hearing before the circuit court, Claimant’s attorney argued as follows:

But now what we have to look at is: Is there an off-set under this receipt of benefits?
And the relevant statute is 9-610, which says that, if a governmental unit, the Board of Education being one of them, provides a benefit to the employee paid by the employer that is similar to any worker’s compensation benefits, then there is an off-set, and so the key word is what is similar and are the ordinary disability retirement benefits that [Claimant] is getting similar to her 50 percent disability that is related just to her work accident.

Indeed, the entirety of the argument before the circuit court was based upon the application of LE § 9-610.

Maryland Rule 8-131 governs the scope of appellate review, and provides:

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

Md. Rule 8—131(a). Our preservation requirement is equally applicable to administrative appeals. Motor Vehicle Admin. v. Shea, 415 Md. 1, 15, 997 A.2d 768 (2010) (“[A] court ordinarily may not pass upon issues presented to it for the first time on judicial review and that are not encompassed in the final decision of the administrative agency.”) (internal quotation omitted). Because this issue was not raised before the administrative agency or the circuit court, we shall not address it on appeal.

II.

We We next turn to the application of LE § 9-610 to the circumstances of the present case. The Commission found, and the circuit court affirmed, that LE § 9-610 was applicable to offset Claimant’s benefits. Section 9-610 provides in relevant part:

(a)(1) Except for benefits subject to an offset under § 29-118 of the State Personnel and Pensions Article, if a statute, charter, ordinance, resolution, regulation, or policy, regardless of whether part of a pension system, provides a benefit to a covered employee of a governmental unit or a quasi-public corporation that is subject to this title under § 9-201(2) of this title or, in case of death, to the dependents of the covered employee, payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title.

(Emphasis added.) As we discussed supra, SPP § 29-118 does not apply because this case does not involve accidental or special retirement disability.

The crux of this appeal is whether the workers’ compensation benefits awarded to Claimant for her permanent partial disability constitute “similar benefits” to the ordinary disability benefits paid by the Board. Claimant maintains that the LE § 9-610 offset applies only when the basis for both benefits is the result of the same injury. The Board responds that the term “similar” refers to the nature of the benefit awarded to the employee (i.e., disability benefits), and not the nature of the underlying injury. As we shall explain, we agree with the Board’s interpretation.

Maryland law has long provided for the offset of workers’ compensation benefits against certain other benefits. Indeed, “from the inception of the Workmen’s Compensation law, the General Assembly was concerned with, and attempted to prohibit, governmental authorities being obliged to pay benefits to an employee twice as a result of the same injury.” Nooe v. City of Baltimore, 28 Md.App. 348, 352, 345 A.2d 134 (1975). A predecessor to LE § 9-610 provided that when an employee was entitled to benefits “equal or better than that given under the” workers’ compensation law, “such employe[e]s shall not be entitled to” workers’ compensation benefits. Id. at 349, 345 A.2d 134 (quoting Acts 1914, Ch. 800, Section 34).

In Montgomery County v. Kaponin, 237 Md. 112, 205 A.2d 292 (1964), the Court of Appeals construed the statute as providing the authority for local governments to exclude themselves from the obligation to carry workers’ compensation insurance by allowing them to enact laws that would provide equal or greater benefits than those provided under the workers’ compensation law. The Kaponin Court held that an employee was entitled to receive workers’ compensation benefits and benefits from the county when the benefits provided by the county were not “equal to or greater than” benefits awarded under the workers’ compensation law. Id. at 114, 205 A.2d 292. The Court held that the statute did “not provide for offsets of workmen’s compensation benefits against the benefits received from a pension fund.” Id.

In response to the Kaponin decision, which “to a large extent circumvented” “the manifest purpose of’ the workers’ compensation statute, Nooe, supra, 28 Md.App. at 352, 345 A.2d 134, the General Assembly responded by enacting Ch. 785, Acts 1971 in 1971. Acts 1971, ch. 785 was later codified as Section 33 of Article 101, which is the predecessor to LE § 9-610. In Nooe, we discussed the legislative response to Kaponin as follows:

Acts 1971, ch. 785, clearly provides for offsets of workmen’s compensation benefits against the benefits otherwise furnished by a defined employer. It is not a qualification statute such as the Court of Appeals found the former statute to be. To the extent which, by due legislative enactment, a defined employer furnishes an employee with benefits, whether as part of a pension system or otherwise, the liability or obligation of the employer for any workmen’s compensation benefit is satisfied and discharged. If the Workmen’s Compensation Commission determines that the benefits furnished by the employer are equal to or better than the workmen’s compensation benefits, then the liability or obligation of the employer under the workmen’s compensation act is fully satisfied and discharged. The offset nature of the provisions is readily apparent also from the title to the Act which declares that it is to provide that ‘whenever benefits are furnished by an employer, as defined, equal to or better than the benefits provided under Article 101 of the Annotated Code of Maryland, such defined employer shall be released of any obligation thereunder, but should such benefits be less than those required by the said Article 101, such defined employer shall make up the difference.’

28 Md.App. 348, 352-53, 345 A.2d 134. Our examination of the history of LE § 9-610 makes clear that the legislative intent of the offset provision is to provide a single recovery for employees covered by both government pension plans and workers’ compensation. See e.g., Frank v. Baltimore County, 284 Md. 655, 659, 399 A.2d 250 (1979) (“[T]he General Assembly wished to provide only a single recovery for a single injury for government employees covered by both a pension plan and workmen’s compensation.”); Mayor & City Council of Baltimore v. Polomski, 106 Md.App. 689, 697-98, 666 A.2d 895 (1995), aff'd, 344 Md. 70, 684 A.2d 1338 (1996) (“Whether construing either statute, [LE] 9-503 or 9-610, the unmistakable intent of the Legislature since 1914 has been to provide only a single recovery for governmental employees covered by both a pension plan and workers’ compensation.”).

Having set forth the legislative history of and underlying principles behind LE § 9-610, we turn to the particulars of the present appeal. Both parties agree that the case of Reynolds v. Board of Educ. of Prince George’s County, 127 Md. App. 648, 736 A.2d 391 (1999), is the controlling case regarding the “similar benefits” issue. Unsurprisingly, each party characterizes the holding of Reynolds quite differently.

In Reynolds, a school bus driver employed by the Prince George’s County Board of Education developed headaches, respiratory difficulties, and skin irritation as a result of occupational exposure to diesel fuel and fumes. Id. at 650, 736 A.2d 391. The bus driver was awarded worker’s compensation benefits as well as ordinary disability retirement benefits from her employer. This Court held that the ordinary disability retirement benefits awarded to the bus driver were similar to the workers’ compensation permanent partial disability benefits awarded to appellant, and the offset provision applied. Id. at 655, 736 A.2d 391. We reasoned that “[t]he ordinary disability retirement benefit is tantamount to a wage loss benefit similar to a workers’ compensation award to the extent that the benefits are payable prior to a point in time when service retirement benefits would have been payable in the absence of disability or to any amount in excess of service retirement benefits.” Id. In addition, we commented that the bus driver suffered from “a single medical condition caused by ... exposure to diesel fuel” and that the bus driver “claimed the same medical condition and physical incapacity and submitted the same evidence to both the medical board and the Commission.” Id.

Claimant maintains that, under Reynolds, the LE § 9-610 offset applies only when a single medical condition forms the basis for both the ordinary disability retirement benefits and the workers’ compensation benefits. In our view, this is an incorrect interpretation of our holding in Reynolds. The critical similarity in Reynolds was based upon the benefits provided, not upon the medical condition. In this case, as in Reynolds, Claimant was awarded both ordinary disability retirement benefits and a workers’ compensation award. As in Reynolds, the retirement benefits awarded to Claimant are “tantamount to a wage loss benefit similar to a workers’ compensation award.” See id.

Permitting Claimant to receive both the workers’ compensation award and the ordinary disability retirement award would result in a windfall to Claimant, wherein Claimant would receive duplicate benefits for the same underlying basis, i.e. Claimant’s physical incapacity. This would be contrary to the purposes of LE § 9-610, which, as discussed supra, are to provide a single recovery for governmental employees covered by both a disability pension plan and workers’ compensation, to prevent double recovery to an injured worker, and to prevent double payment by the governmental employer.

In keeping with the well-established purposes of LE § 9-610, we hold that the proper interpretation of the term “similar benefits” is whether the benefits provide a similar wage loss benefit to a workers’ compensation award, not whether the benefits accrue from a similar injury. In this case, as in Reynolds, the ordinary disability retirement benefits are clearly a wage loss benefit intended to compensate a claimant due to her inability to work caused by her disability. Accordingly, we hold that that the LE § 9-610 offset applies to the present case.

Lastly, Claimant asserts that the employer—here, the Board—and the Subsequent Injury Fund cannot both receive the benefit of the LE § 6-910 offset. Claimant maintains that “there is no foundation in the law” which would permit both the Subsequent Injury Fund (“SIF”) and the Board to claim an offset for a claim resulting, in part, from a single preexisting condition. The clear and unambiguous language of the statute leads us to reject Claimant’s assertion. LE § 9-610 provides that “payment of the benefit by the employer satisfies, to the extent of the payment, the liability of the employer and the Subsequent Injury Fund for payment of similar benefits under this title.” (Emphasis added.) The SIF’s obligation to pay Claimant benefits was triggered by Claimant’s December 13, 2007 work-related injury, which exacerbated her pre-existing conditions. Absent Claimant's work-related injury, the SIF would have no obligation to pay any benefits to Claimant because the pre-existing conditions were not a com-pensable disability until Claimant’s condition was made worse by the December 13, 2007 incident. The benefits awarded, both from the employer and the SIF, are similar to Claimant’s ordinary disability retirement benefits. As such, the LE § 9-610 offset applies to both the Board and the SIF.

JUDGMENTS OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      . The subsequent orders related to apportionment of disability between the accidental injury and preexisting injury. Only the offset issue is before us in this appeal.

      . We note that, although the issue is not properly before us, it appears to be altogether without merit. Claimant asserts that no offset at all should apply in this case because SPP § 29-118 applies to members of the Teachers’ Pension System and SPP § 29-118 provides an offset only in cases involving accidental and special disability, not cases involving ordinary disability, such as this case. LE § 9-610 provides that it is the applicable statute “[e]xcept for benefits subject to an offset under § 29-118 of the State Personnel and Pensions Article[.]” SPP § 29-118 does not apply to ordinary disability retirement benefits. To the extent that Claimant asserts that State Retirement and Pension System v. Thompson, 368 Md. 53, 792 A.2d 277 (2002), supports her assertion that the LE § 9-610 offset does not apply in this case, Claimant is mistaken. In Thompson, the Court of Appeals construed an earlier version of SPP § 29-118(b)(1), which provided for the reduction of a "disability retirement benefit” without reference to "accidental or special disability retirement benefit,” the language found in the current SPP § 29-118(b)(1). Since the modification of SPP § 29-118(b)(1) in 2004, following the Thompson decision, the statute applies only to accidental or special disability. Accordingly, LE § 9-610 is tire controlling statute in this case, which involves ordinary disability retirement benefits—as the parties apparently agreed at all stages of this proceeding prior to the instant appeal.

      . Although we have not addressed this issue in a reported opinion since 1999, we note that the Court of Appeals has granted certiorari on this issue in the case of Reger v. Washington Co. Board of Education, 450 Md. 421, 149 A.3d 547 (November 22, 2016), which is scheduled for argument before the Court of Appeals on March 3, 2017.

      . Ordinary service retirement benefits, on the other hand, are not a wage loss benefit intended to compensate a disabled/injured employee, and are not subject to any type of offset under the worker’s compensation law. Reynolds, supra, 127 Md.App. at 653, 736 A.2d 391 ("Service retirement benefits are not similar to accidental disability benefits.”), citing Newman v. Subsequent Injury Fund, 311 Md. 721, 537 A.2d 274 (1988).

      . Assuming arguendo that the term "similar” referred to a similar underlying injury, we are persuaded the LE § 9-610 offset would still apply to the facts of this case. Claimant suffered pre-existing back problems prior to the December 13, 2007 accidental injury. When applying for accidental disability retirement benefits, Claimant reported the December 13, 2007 back injury as the source of her disability. Claimant submitted records of medical treatment following the December 13, 2007 work injury to the Maryland State Retirement and Pension System. Both the workers' compensation awards and the ordinary disability retirement benefits were based upon the December 13, 2007 injury and the pre-existing back problems. Although Claimant referenced her separate shoulder problems in the disability retirement application, the overwhelming majority of the application focused upon the problems caused by the December 13, 2007 accident. As in Reynolds, "the same physical incapacity on the part of [Claimant] formed the basis for the workers’ compensation award and for the ordinary disability retirement award.” 127 Md.App. at 655, 736 A.2d 391.


author: Friedman, J.

text:
    153 A.3d 895
    Vaqar CHOUDRY v. STATE of Maryland
    No. 2541,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    February 3, 2017

      Price 0. Gielen (Brian M. Boyle, Neuberger, Quinn, Gielen, Rubin & Gibber PA on the brief) all of Baltimore, MD, for Appellant.
    Ryan R. Dietrich (Brian E, Frosh, Atty. Gen. on the brief) all of Baltimore, MD, for Appellee.
    Krauser, C.J., Friedman, James P. Salmon (Senior Judge, Specially Assigned), JJ.
   Friedman, J.

The question in this case is whether the crime of sexual solicitation of a minor can be committed when there is no minor or a law enforcement officer posing as a minor involved. We conclude that it cannot.

FACTUAL BACKGROUND

In 2013, Vaqar Choudry sought the help of Corina Drury to find a prepubescent female child with whom Choudry could have sexual relations. Drury did not procure such a child for Choudry, but instead contacted the police to report Choudry’s plan. In recorded conversations, Drury spoke to Choudry on the phone and in person to discuss the logistics of procuring a minor for Choudry and what Choudry planned to do with that minor. Although Drury never contacted a minor, she made up an elaborate story about a fake 12-year old girl and called her “Chelsea.” Drury even asked the police for a picture of a “young looking girl” that she could send to Choudry as proof that she had procured a minor for him. A few weeks after Choudry’s initial request, Drury, acting on police instructions, informed Choudry that the minor was ready for him and that he should meet Drury and the minor at a motel later that day. When Choudry arrived at the motel, he was arrested by the police. There was no minor or law enforcement officer posing as a minor at the motel when Choudry was arrested.

Choudry was charged with sexual solicitation of a minor and human trafficking. After a bench trial, Choudry was found guilty of sexual solicitation of a minor and sentenced to five years, all suspended, a $1,000 fine, and a two-year period of probation.

DISCUSSION

On appeal, Choudry contends that he cannot be found guilty of the crime of sexual solicitation of a minor because, in his case, there was never a minor or a law enforcement officer posing as a minor involved in his attempts to obtain a minor through Drury. He contends that the plain language of the statute requires that there be an actual minor child or a law enforcement officer posing as a minor. The State counters that, because Choudry solicited a minor child through his agent Drury, there did not need to be an actual minor or a particular minor available. We conclude that the statute unambiguously requires that a defendant solicit a minor or a law enforcement officer posing as a minor, and, therefore, we must vacate Choudry’s conviction.

“The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature.” Stoddard v. State, 395 Md. 653, 661-62, 911 A.2d 1245 (2006). This process starts with looking at the language of the statute. Id. “[E]ven when we believe that the language of the statute renders legislative intent clear, [however,] it is appropriate to examine the legislative history as a confirmatory process.” Gomez v. Jackson Hewitt, Inc., 427 Md. 128, 160, 46 A.3d 443 (2012); see also Bourgeois v. Live Nation Entertainment, Inc., 430 Md. 14, 27, 59 A.3d 509 (2013) (“Legislative history may be considered in an effort both to confirm what appears to be a clear intent from the language itself and to discern legislative intent when that intent is not entirely clear from the statutory language.”).

The prohibition on sexual solicitation of a minor is found in Criminal Law (“CR”) § 3-324. That section reads:

(b) A person may not, with the intent to commit a violation of [various sex crime statutes], knowingly solicit a minor, or a law enforcement officer posing as a minor, to engage in activities that would be unlawful for the person to engage in under [various sex crime statutes].

Md. Code Ann., CR § 3-324(b) (emphasis added). The crime of sexual solicitation of a minor, therefore, has three elements: (1) solicitation; (2) of a minor or a law enforcement officer posing as a minor; and (3) to engage in a prohibited sex act.

Although it is difficult to reconstruct the legislative disagreement that resulted in this compromise language, it is obvious that the language selected as the second element was an intentional compromise. Prior to 2004, the predecessor to CR § 3-324 prohibited engaging in certain sexual acts with actual minors but did not apply to any non-minors. During the 2004 legislative session, SB512 was introduced in a form that would have broadened this provision to include a prohibition not only on soliciting minors, but also on soliciting any “individual the person believes to be a minor.” 2004 Sess., Senate Bill 512, First Reading (available at https://perma.cc/SJ 57-39NB). The House and Senate each amended SB512 differently and, in the waning hours of the 2004 legislative session, a conference committee proposed the compromise that became the law: rather than prohibit solicitation based on the defendant’s subjective intent to solicit a minor, or anyone the defendant thinks is a minor, the prohibition would be objective, banning the sexual solicitation of a minor or a law enforcement officer posing as a minor. 2004 Sess., Senate Bill 512, Enrolled Bill (available at: https://perma.cc/2A7N-5W4 A). Thus, we hold that the legislature intended courts to apply an objective standard to determine the second element of the crime, whether the defendant solicited a minor or a law enforcement officer.

In Choudry’s case, the parties agree that there was not an actual minor or law enforcement officer posing as a minor solicited. Because the element of “a minor” or “law enforcement officer posing as a minor” is required and was not fulfilled, Choudry did not violate CR § 3-324. As a result, we must vacate his conviction.

The State’s argument that Choudry successfully attempted to solicit a minor through an agent also must fail because attempted sexual solicitation of a minor is not a crime in Maryland. The language of the CR § 3-324 does not include a prohibition on attempted sexual solicitation of a minor, nor is there a separate statute making it unlawful to attempt sexual solicitation of a minor. Unless and until the Legislature creates such an attempt crime, Choudry’s actions, no matter how repugnant and indefensible, were not a crime.

JUDGMENT OF THE CIRCUIT COURT FOR WASHINGTON COUNTY VACATED AND REMANDED FOR FURTHER PROCEEDINGS. COSTS TO BE PAID BY WASHINGTON COUNTY.

      . Prior to the passage of CR § 3-324, engaging in certain sexual acts with a minor was prohibited through the common law. See Fiscal and Policy Note Revised, 2004 Sess., SB512; Quispe del Pino v. State, 222 Md.App. 44, 51, 112 A.3d 522 (2015) (stating that with the passage of CR § 3-324 “sexual solicitation of a minor became a crime in Maryland for the first time.”). The common law as it existed before the passage of CR § 3-324, however, did not address the use of the internet or undercover officers posing as minors for investigatory purposes. CR § 3-324 closed these loopholes so that defendants soliciting a minor through any means, such as over the internet, or a defendant soliciting a law enforcement officer posing as a minor can now be guilty of sexual solicitation of a minor. See e.g., Letter from The Maryland Sheriffs’ Association, Inc. to Hon. Brian E. Frosh, Chairman and Members, Judicial Proceedings Comm. (March 9, 2004) (on file Legislative Services Bill File SB512 (2004)).

      . The State focuses its argument on this point: that by asking Drury to solicit a minor for him, Choudry had already committed the crime of sexual solicitation of a minor even if Drury did not go on to procure a minor. The State’s argument, however, focuses only on the first element—solicitation specifically through an agent. The State’s argument does not respond to the second element, whether there still must be a minor or law enforcement officer posing as a minor involved. Of course, nothing in the language of the statute suggests that depending on the means of solicitation, the other elements of the offense are negated.

      . Choudry also argues that the rule of lenity should sway our analysis in his favor. The rule of lenity, however, has no application. The rule of lenity is a rule of construction that applies "when [a criminal statute] is open to more than one interpretation and the court is otherwise unable to determine which interpretation was intended by the Legislature.” Oglesby v. State, 441 Md. 673, 676, 109 A.3d 1147 (2015). Here, the statute is not open to more than one interpretation and, therefore, there is no need to employ the rule of lenity. See Richmond v. State, 326 Md. 257, 269, 604 A.2d 483 (1992) (stating that because the legislative intent in that case was clear, the rule of lenity was inapplicable.)