source: Caselaw Access Project

author: Reed, J.

license: Public Domain

text:
    151 A.3d 32
    YOUNG ELECTRICAL CONTRACTORS, INC., v. DUSTIN CONSTRUCTION, INC.
    No. 226,
    Sept. Term, 2014
    Court of Special Appeals of Maryland.
    December 28, 2016

      Leonard A. Sacks (Leonard A. Sacks & Associates PC on the brief) of Rockville, MD., for Appellant
    David B. Hamilton (Harrison M. Trammell, Womble, Carlyle, Sandridge & Rice, LLP on the brief) all of Baltimore, MD., for Appellee
    Deborah S. Eyler, Reed, James P. Salmon (Senior Judge, Specially Assigned), JJ.
   Reed, J.

Appellant, Young Electrical Contractors, Inc. (“Young”), entered into a subcontractor agreement with appellee, Dustin Construction, Inc. (“Dustin”) to perform all required electrical work for a prime contract Dustin entered into with George Mason University in Virginia. Due to a number of delays in the project, Young was unable to meet the agreed-upon date for substantial completion of the work. As a result, Young experienced a number of cost overruns and sought payment for those overages via a number of change requests. When Young did not receive those payments from the university via Dustin, Young sued Dustin in the Circuit Court for Montgomery County for breach of the subcontract.

Dustin’s defense of the suit centered on the subcontract’s “pay-when-paid” clauses, a set of clauses that provided Young would be paid when Dustin received payment from the university. The circuit court agreed with Dustin and granted summary judgment on Young’s breach of contract claim, explaining that, under the pay-when-paid clauses, Dustin was not liable to Young for the change requests because George Mason had not yet paid Dustin for those amounts.

We are asked to review the trial court’s grant of summary judgment to Dustin. Appellant poses four questions for our consideration, which we have consolidated and rephrased in three questions below:

I. Whether the circuit court erred in its determination of the validity of the “pay-when-paid” clauses of the parties’ agreement;
II. Whether the circuit court erred where it determined the “pay-when-paid” clauses applied to the present dispute;
III. Whether the circuit court erred where it did not find a genuine dispute of material fact that the changes to the project were owner-initiated.

We hold the circuit court committed no error in finding the pay-when-paid clauses applied to the present dispute, which allowed for the entry of summary judgment on the breach of contract claim in favor of Dustin. Accordingly, we affirm the judgment of the circuit court and shall explain.

Factual and Procedural Background

Appellant, Young Electrical Contractors, Inc., is an electrical contracting firm based in Laurel, Maryland, which specializes in the installation of electrical equipment for construction projects. Appellee, Dustin Construction, Inc., is a construction firm based in Ijamsville, Maryland, and is primarily engaged in the construction industry as a general contractor.

George Mason University (“George Mason” or “Owner”), is a public university located in Fairfax County, Virginia. George Mason sought to renovate and construct an addition to Building Two of its Student Union (the “Project”). Dustin bid on and was awarded the contract for the Project as general contractor. Dustin and George Mason executed this contract (the “Prime Contract”) on or about July 20, 2010. Needing a subcontractor for the electrical work required under the Prime Contract, Dustin entered into a subcontract with Young on or about October 15, 2010 (the “Subcontract”) for this work.

Per George Mason’s Notice to Proceed, work on the Project commenced on July 30, 2010. Although the Prime Contract set November 15, 2010, as the date for substantial completion of the Project, the Notice to Proceed extended the substantial completion date to November 30, 2010. Young, however, achieved substantial completion on March 8, 2011—more than three months after the date set by George Mason.

The delays in completion of the work prompted Young to submit three Change Requests; two of those three requests— Nos. 1066 and 1067—are at issue in this appeal. Young submitted Change Request No. 1066 to Dustin on September 14, 2011, which sought $259,034.99 for “extended overhead costs associated with [George Masonj’s extension of the contract.” Dustin then submitted Change Request No. 1066 along with its own delay claim to George Mason on November 16, 2012. Per George Mason’s request, Dustin separated Change Request No. 1066 from its own claim, and also reduced the amount requested in No. 1066 to $180,010.21. That amount reflected the removal of costs that were not covered under the Subcontract. No. 1066 was then resubmitted to George Mason on March 4, 2013.

About a year-and-a-half later, on February 15, 2013, Young submitted Change Request No. 1067, which sought $274,812.33 because of “owner initiated ... design changes, design errors, unforeseen conditions and additions/deletions of the work originally required.” Young explained that it experienced an “overrun of hours” because it was “forced to accelerate the electrical activities by adding additional manpower, supervision, tools, equipment, overtime and shift work.”

Young filed its Complaint in the Circuit Court for Montgomery County on September 3, 2013, alleging a single count of breach of contract against Dustin. The complaint alleged that Young was not responsible for the three month delay in achieving substantial completion of its work. It further alleged that, because of the delays to the Project, it had to work overtime and, as a result, incurred additional costs. Young contended that it submitted its claims arising from the additional work, but that Dustin failed to provide Young with any information or documentation demonstrating that Young’s claims were submitted to George Mason. Young further contended that Dustin failed to process its claims, and that Dustin had not paid and pursued Young’s claims against George Mason. Young alleged that Dustin committed a breach of contract where it directed Young to perform the additional overtime work, but failed and refused to pay for that work and its associated costs,

George Mason denied both Change Request No. 1066 and Change Request No. 1067 on September 17, 2013. These requests implicated the “pay-when-paid” provisions of the Subcontract, which explained that Young’s payment was contingent upon, as a condition precedent, Dustin’s receipt of payment from George Mason. Because George Mason denied both Change Requests, Dustin was not paid the requested amounts and, in turn, pursuant to the pay-when-paid provisions, Dustin did not pay Young its requested amounts.

Dustin filed its Answer to the Complaint, along with a motion for summary judgment (the “Motion”), on October 21, 2013. The Motion argued, among other things, that Dustin was not liable to Young for the requested amounts because of the pay-when-paid provisions of the Subcontract.

The circuit court heard the parties on the Motion on January 22, 2014, and delivered its oral opinion on February 11, 2014. The court explained that its review of the record demonstrated that Dustin had, in fact, submitted both Change Requests to George Mason. In addition, the court held that summary judgment was appropriate because George Mason refused both of the requests and did not pay Dustin, making the pay-when-paid provision of the Subcontract applicable to the present dispute.

The circuit court entered summary judgment by Order dated February 18, 2014. Young moved the court for reconsideration on February 21, 2014, but the court denied the motion on April 7, 2014.

Young timely noted its appeal on April 11, 2014.

Discussion

(i) Validity of Pay-When-Paid Clauses

A. Parties’ Contentions

Young argues that the circuit court misinterpreted the Subcontract to grant summary judgment in favor of Dustin. It explains that the court cabined its analysis solely within Section 2(c) of the Subcontract, which, it claims, applies only to amounts found due and owing and not to disputed claims as in the present case. The circuit court’s interpretation of the contract, Young contends, ignores other applicable paragraphs, including but not limited to Sections 13(d), 27, 28, and 39, in contravention of principles of contract interpretation.

Dustin responds that there are several provisions within the Subcontract that would act to bar Young’s claim. Specifically, Sections 2(c), 13(c), and 27(1) each contain a condition precedent that requires payment from George Mason before Young is paid. Therefore, according to Dustin, because each of these three potentially applicable Sections contains the same condition precedent, Young’s claim under the Subcontract is barred.

B. Standard of Review

The interpretation of written contractual terms is a question of law we review de novo. Nova Research, Inc. v. Penske Truck Leasing Co., 405 Md. 435, 448, 952 A.2d 275 (2008). Unlike the factual determinations of a circuit court, its legal determinations are not afforded deference on appeal. Thomas v. Capital Med. Mgmt. Assocs., LLC, 189 Md.App. 439, 453, 985 A.2d 51 (2009). Such legal determinations, ie., determination based on Maryland statutory or case law, are reviewed de novo for legal correctness. See id. at 454, 985 A.2d 51.

Maryland courts apply an objective interpretation of contracts. Id. If the terms of a contract are unambiguous, the plain meaning of the agreement will prevail and the court will not consider the parties’ subjective intent at the time of formation. Id. If a reasonably prudent person finds that the contract is susceptible of more than one meaning, the court will determine the contract is ambiguous. Id. The terms of the contract are interpreted in context, each of them interpreted together with contract’s other provisions. Atlantic Contracting & Material Co., Inc. v. Ulico Cas. Co., 380 Md. 285, 301, 844 A.2d 460 (2004) (Ulico); Jones v. Hubbard, 356 Md. 513, 534-35, 740 A.2d 1004 (1999). We give the terms of the contract their customary, ordinary, and accepted meaning. See Ulico, 380 Md. at 301, 844 A.2d 460.

C. Analysis

The pay-when-paid clauses in the Subcontract are valid contractual provisions, and we will consider their applicability in turn. We note initially that the present dispute is governed by Virginia law per the choice of law provision in Section 31 of the Subcontract.

In Virginia, as in Maryland, issues of contract interpretation are reviewed de novo. Bailey v. Loudoun Cnty. Sheriff’s Office, 288 Va. 159, 762 S.E.2d 763, 766 (2014); accord Ocean Petroleum, Co., Inc. v. Yanek, 416 Md. 74, 86, 5 A.3d 683 (2010).

The seminal case on pay-when-paid clauses is a 1962 opinion of the U.S. Court of Appeals for the Sixth Circuit. In Thos. J. Dyer Co. v. Bishop International Engineering Co., 303 F.2d 665 (6th Cir. 1962), the Sixth Circuit considered the enforceability of a pay-when-paid clause in a subcontracting agreement. In the ordinary course, a general contractor assumes a degree of credit risk related to the owner’s solvency, and there exist protections against this risk that a general contractor may employ, e.g., mechanic’s liens or installment payments. See id. at 660. The subcontractor need not incur that credit risk unless the parties agree to it. See id. at 660-61. The Sixth Circuit explained that, in order for that risk to be shifted from the general contractor to the subcontractor, the parties must agree to an express condition in their subcontract that demonstrates their intent. Id. at 661. That Court ultimately held that the pay-when-paid provision at issue did not shift the credit risk to the subcontractor, and that the language of the provision afforded the general contractor a period of time to receive payment from the owner in order to pay the subcontractor. See id.

The Supreme Court of Virginia first considered pay-when-paid clauses and the associated defense in Galloway Corp. v. S.B. Ballard Construction Co., 250 Va. 493, 464 S.E.2d 349 (1995). The Court held that pay-when-paid clauses will be upheld as valid if the contract “on its face reasonably contemplates eventual payment by the general contractor to the subcontractor” or the parties clearly intended that a condition precedent be fulfilled before the general contractor pays the subcontractor. Id. at 501, 464 S.E.2d 349.

To reach its holding on conditions precedent, the Galloway Court relied on our opinion in Gilbane Building Co. v. Brisk Waterproofing Co., Inc., 86 Md.App. 21, 585 A.2d 248 (1991). There, we held that for a valid condition precedent to exist within a pay-when-paid clause, courts will look to the unambiguous language of the contract to see whether such a condition is established. See id. at 27-28, 585 A.2d 248. We explained that the inclusion of conditions precedent in a subcontracting agreement involves a shift in the credit risk from the general contractor to subcontractor:

A provision that makes receipt of payment by the general contractor a condition precedent to its obligation to pay the subcontractor transfers from the general contractor to the subcontractor the credit risk of non-payment by the owner for any reason (at least for any reason other than the general contractor’s own fault), including insolvency of the owner.

Id. at 28-29, 585 A.2d 248 (emphasis in original). This shift in risk accordingly demands an express reference in the subcontract to a condition precedent. See id. (explaining that Atlantic States Constr. Co. v. Drummond & Co., Inc., 251 Md. 77, 81-84, 246 A.2d 251 (1968) (Drummond) and its consideration of the Dyer opinion is construed to require a subcontract to make an express reference to a condition precedent, regardless of reason for the condition, as long as subcontractor understands there is a shift in credit risk). We determined the condition precedent in the parties’ contract was unambiguous and allowed for the objective interpretation that the subcontractor would not receive payment from the general contractor “unless and until” the owner paid the general contractor. Id. at 28, 585 A.2d 248.

Section 2(c) is a valid pay-when-paid clause under Virginia law, as it comports with the Galloway Court’s acceptance of our holding in Gilbane. Section 2(c) is the subsection of the “Payments to Subcontractor” section that is relevant to this dispute. Section 2 sets forth the understandings between the parties and the procedures for Dustin’s payments to Young for the electrical work under the Subcontract. The clause in Section 2(c) states, in relevant part:

It is specifically understood and agreed that the Contractor’s obligation to pay all or any portion of the Subcontract Sum to Subcontractor, whether as a progress payment, retainage, or a final payment, is contingent, as a condition precedent, upon the contractor’s receipt of payment from the Owner of all amounts due Contractor on account of the portion of the Work for which the Subcontractor is seeking payment.

(Emphasis added).

The Subcontract explicitly establishes that George Mason’s payment to Dustin is the condition precedent to Dustin’s payment of Young. This contract language is virtually the same as the language in Gilbane that we found to constitute a valid condition precedent within a pay-when-paid clause. Id. at 25, 28, 585 A.2d 248. (holding that the following language established a condition precedent to the subcontractor’s payment: “It is specifically understood and agreed that the payment to the trade contractor is dependent, as a condition precedent, upon the construction manager receiving contract payments, including retainer from the owner.” (emphasis added)). The Galloway Court accepted our reasoning on conditions precedent, which permits us to determine that Section 2(c) is a valid pay-when-paid clause under Virginia law. See Galloway, 464 S.E.2d at 354 (“If ... as in Gilbane, the parties clearly intend there to be a condition precedent fulfilled before payment comes due, the contract will be construed as written ....”).

Section 13(c) is most relevant to the present dispute, as it addresses payments arising from owner-initiated changes. That subsection provides, in relevant part:

In the event a change is made to this Contract as a result of the Owner’s change to the Prime Contract and such change causes an increase or decrease in the cost of and/or the time required for performance under this Subcontract, Subcontractor may submit to Contractor in writing in accordance with the requirements of the Changes Clause of the General Contract a request for an equitable adjustment in the Subcontract Sum and/or the Subcontract Time, or both .... Contractor shall pay to Subcontractor that amount paid by the Owner to Contractor on account of any such change to this Subcontract, less any markup and other amounts due Contractor on account of such change. Contractor shall have no liability to Subcontractor on account of any such Owner initiated change except for such amount, if any.

(Emphasis added).

Section 13(c) is similar to the pay-when-paid provision in Dyer in that it does not contain an express condition precedent, but rather simply explains that Dustin “shall pay” to Young the amount Young incurred because of an Owner-initiated change. Dustin is made liable to Young only for the change amounts that Young requested from George Mason and that George Mason paid. There is no timeframe, however, attached to Dustin’s payment of Young under this clause. See Gilbane, 86 Md.App. at 25, 585 A.2d 248 (explaining that, without an express condition, a pay-when-paid clause “postpones the time for payment until the happening of a certain event or for a reasonable period of time if such event does not occur.”). Also, there is no apparent shift in the credit risk arising from this Section because of the lack of express conditional language. Accordingly, Section 13(c) by itself operates as a standard pay-when-paid clause because of the lack of conditional language. See id. at 25-26, 585 A.2d 248 (citing Drummond, 251 Md. at 79, 82-83, 246 A.2d 251 for proposition that for standard pay-when-paid clause to shift normal credit risk and provide for payment at specific time or occurrence, there must be an express condition in the clause).

We cannot, however, review Section 13(e) in isolation. See Ulico, 380 Md. at 301, 844 A.2d 460 (explaining that the terms of the contract are interpreted in context, with each of them interpreted together with contract’s other provisions). To do so would ignore the effect of Section 2(c), which is a payments clause of general applicability. Although Section 13(c) does not contain an express condition precedent, it does contemplate payments to Young where George Mason has initiated a change in the Project. As Section 2(e) sets forth the procedure for payments to Young, its applicability to 13(c) should not be ignored. Accordingly, when both sections are read together, Dustin’s receipt of a change payment from George Mason is the condition precedent that must be met if Young is to receive that payment. By consenting to Section 2(c), Young has accepted the credit risk and cannot hold Dustin liable for non-payment if it does not receive its change payment. See Gilbane, 86 Md.App. at 28-29, 585 A.2d 248.

Because the Galloway Court adopted the reasoning of the Dyer court, we think that Dyer's, reasoning is applicable to the present case. See Galloway, 464 S.E.2d at 353-54. Section 13(c) is enforceable as a pay-when-paid clause subject to a condition precedent in Section 2(c) because Young agreed, by operation of Section 2(c), that all payments were subject to the condition of George Mason’s payment of Dustin. Read together, Young agrees to the shift in credit risk when it seeks payment arising from change orders.

Section 27(f) is similar to Section 13(c) insofar as it contemplates payments arising from certain scenarios. Section 27 applies to the resolution of disputes involving George Mason, and subsection (f) places limits on Dustin’s liability to Young for Owner-involved disputes. Section 27(f) provides:

Contractor shall have no liability to Subcontractor on account of any claim, suit or appeal arising under or relating to the Prime Contract, or the Owner’s conduct thereunder except that recovered by Contractor from, the Owner on Subcontractor’s behalf, if any, less any markups and other amounts due Contractor on account of such claim, suit or appeal.

(Emphasis added).

(ii) Applicability of Pay-When-Paid Clauses

A. Parties’ Contentions

Young further argues that the circuit court erred in applying Section 2(c) of the Subcontract to dismiss its claim. It explains that Section 2(c) was not relied on by either of the parties and that Dustin chose to rely on Section 13(c) in support of its Motion. Young further explains that the differences between the Sections are critical because they each apply to distinct sections. It contends that Section 13(c)— rather than Section 2(c)—is the provision appropriate to the present scenario because it concerns changes to the Subcontract.

Dustin contends that Sections 2(c), 13(c), and 27(f) are each applicable to the present case and each serve to bar Young’s claim. Dustin argues that Section 2(c)’s pay-when-paid provision applies because 2(c) governs the payment of “all or any portion of the Subcontract Sum,” which is what Young’s Change Requests sought. It further argues that Section 13(c) applies because that section of the Subcontract governs owner-initiated changes, which were at issue here. Last, Dustin argues that Section 27(f) is potentially applicable because that provision governs claims arising from a dispute. If Young’s claims are characterized as arising from a dispute, Dustin explains, then the pay-when-paid provision of Section 27(f) should apply.

B. Standard of Review

A party may seek summary judgment on all or part of an action, provided there is no genuine dispute as to any material fact and that party is entitled to judgment as a matter of law, Md. Rule 2-501(a). Whether the trial court properly granted summary judgment is a question of law. Boland v. Boland, 423 Md. 296, 366, 31 A.3d 529 (2011) (internal quotation marks and citations omitted). Accordingly, we conduct a de novo review of the trial court’s grant of summary judgment. Id. We engage in an independent review of the record to determine whether there existed a genuine dispute of material fact and, if not, whether judgment as a matter of law was appropriate. Id. The record is reviewed in the light most favorable to the non-moving party, and any reasonable inferences drawn from the facts are construed against the moving party. Id.

C. Analysis

The circuit court properly granted summary judgment on Young’s claims to the amounts owed for the Change Requests. Sections 2(c), 13(c), and 27(f) of the Subcontract are each applicable to the instant dispute. Because Dustin received no payments from George Mason for the Change Requests, Dustin was unable to pay Young under any applicable Section of the Subcontract.

Section 37 of the Prime Contract provides the requirements and procedures for payments made by Dustin to subcontractors or suppliers. In relevant part, Section 37(a) provides:

[T]he Contractor is obligated to:

(a) Within seven (7) days after receipt of amounts paid to the Contractor by the Owner for Work performed by the Subcontractor or Supplier under this Contract,
(1) Pay the Subcontractor or Supplier for the proportionate share of the total payment received from the Owner attributable to the Work performed by the Subcontractor or the materials furnished by the Supplier under this contract ....

(Emphasis added).

This section of the Prime Contract clearly envisions a conditional pay-when-paid scheme for all subcontractor or supplier payments by George Mason. Although we do not require certain language to create a condition precedent in a contract, “words and phrases such as ‘if,’ ‘provided that,’ ‘when,’ ‘after,’ ‘as soon as’ and ‘subject to’ ” are often associated with the establishment of conditions. Richard F. Kline, Inc. v. Shook Excavating & Hauling, Inc., 165 Md.App. 262, 274, 885 A.2d 381 (2005). Section 37(a) sets forth a discrete time period in which payments must be made to the subcontractor or supplier, and the condition is denoted by the word “after,” indicating that Dustin’s receipt of payment is the applicable condition. Furthermore, Section 37(b) contemplates an incentive scheme to encourage prompt payments to a subcontractor when the Owner has paid Dustin. That section requires Dustin to pay interest to a subcontractor for any payment made more than seven days after receipt of payment from George Mason. These provisions demonstrate a clear intent of the parties to the Prime Contract to pay subcontractors upon Dustin’s receipt of payment from George Mason. See Kline, 165 Md.App. at 273, 885 A.2d 381 (“[Wjhen the language is clear and unambiguous we must presume that the parties meant what they expressed, leaving no room for construction.” (internal quotation marks omitted)); see also Gilbane, 86 Md.App. at 25, 585 A.2d 248 (pay-when-paid clauses postpone time for payment “until the happening of a certain event or for a reasonable period of time.”). This intent is underscored by the fact that there is no language in Section 37 that Dustin may pay a subcontractor at any point, regardless of whether it receives payment from George .Mason or not.

Section 2(c) establishes a pay-when-paid clause with a condition precedent that is applicable to all subcontractor payments. Nevertheless, we need not conduct an examination of the relevant clause within Section 2(c) for conditional language because, as explained in section (i).C of our discussion supra, that part of the Subcontract expressly mentioned payment by George Mason to Dustin as a condition precedent to Dustin’s payment of Young. This makes clear Section 2(c)’s objective meaning—that Dustin is under no obligation to pay Young until Dustin receives payment from George Mason. See Gilbane, 86 Md.App. at 28, 585 A.2d 248 (holding that unambiguous language in subcontractor agreement established condition precedent indicating general contractor was not obligated to pay subcontractor until general contractor received payment from owner).

The placement of this language near the beginning of the agreement is additionally persuasive. Section 2 immediately follows the description of the scope of the agreement and the work to be performed, and the Section’s title is general in nature. Section 2 does not provide payment instructions for any specific factual scenarios. Rather, by virtue of its placement in the agreement and non-specific language, we think that Section 2 contemplates general applicability to performance of the Subcontract. Accordingly, because George Mason did not pay Dustin for the Change Requests, it is impossible for Dustin to follow the letter of the agreement. It did not receive the money from George Mason, which is the necessary condition precedent in Section 2(c). Therefore, the circuit court’s grant of summary judgment was entirely appropriate.

The general applicability of Section 2(c) to the agreement means that it applies to the scenarios encompassed by Sections IB and 27. Section 13 sets forth the parties’ understanding regarding changes to the scope and progress of the work. Specifically, Section 13(c) discusses Owner-initiated changes and explains that, as long as Young follows the procedure for seeking an equitable adjustment for Owner-initiated changes, George Mason will pay Dustin that adjusted sum and Dustin will, in turn, pay Young the requested amount. Although Section 13(c) does not possess an explicit reference to conditions precedent, the subsection’s language makes clear the procedure envisioned for the payment of change requests. Dustin and Young agreed that “[Dustin] shall pay to [Young] that amount paid by [George Mason] to [Dustin] on account of any such change to this Subcontract^]” (emphasis added). Reading just that clause in isolation, we think it difficult to envision a payment scheme under this subsection where Young would receive payment from Dustin regardless of whether Dustin received payment from George Mason. The clause’s language conveys a temporal sequence where Dustin will pay Young once it receives payment from George Mason.

Nevertheless, the general payment procedure in Section 2(c) applies to the change payment procedure in Section 13(c) because we must construe contractual provisions in such a way that no part of the agreement is rendered meaningless. Ulico, 380 Md. at 301, 844 A.2d 460; see also DIRECTV, Inc. v. Mattingly, 376 Md. 302, 320, 829 A.2d 626 (2003). The temporal sequence for payments arising from Owner-initiated changes in Section 13(c) mirrors the general payment procedure in Section 2(c)—change payments must be made to Dustin by George Mason before the former can pay Young for that same amount. Without any change payments received from George Mason, Dustin could not pay Young per their agreed-upon payment arrangement. To hold Dustin liable to Young for the Change Requests absent any payment from George Mason would contravene the parties’ contractual intent and render the pay-when-paid clauses meaningless.

Section 27(f) of the Subcontract operates as a pay-when-paid clause only to the extent that Young has a claim against George Mason arising from the latter’s conduct under the Prime Contract. Section 47 of the Prime Contract, entitled “Contractual Disputes,” explains that claims under that agreement include either money or other relief. Per Section 27(b), Young’s claims against George Mason entail monetary claims. Therefore, whether Section 27(f) operates as a pay-when-paid clause depends on whether Young’s claims are considered Owner-involved disputes.

We think the claims to Change Requests 1066 and 1067 are indeed Owner-involved disputes. Both of the Change Requests cite George Mason’s changes as the cause for submission of the requests. It is George Mason’s denial of the Change Requests, however, that is at the heart of the present dispute. Young’s claims are ultimately against George Mason. As stated supra, Section 27(f) limits Dustin’s exposure to those amounts it recovers on behalf of Young for Owner-involved claims. The circuit court made findings that Dustin had indeed submitted the Change Requests to George Mason. Dustin followed the requisite procedures and is not liable for George Mason’s declination of the Change Requests. Section 27(f) states that Dustin will only be liable to Young for amounts recovered from George Mason in any Owner-involved dispute. Without that recovery, however, Young cannot seek payment from Dustin in those amounts.

We hold that summary judgment was appropriate in this case. Sections 2(c), 13(c), and 27(f) operate to preclude Young’s recovery of the Change Request amounts from Dustin because they are pay-when-paid clauses subject to an enforceable condition precedent of payment from George Mason to Dustin. Without satisfaction of this condition, Young is unable to hold Dustin liable for those amounts.

(Hi) Existence of Factual Dispute Regarding Owner-Initiated Changes

A. Parties’ Contentions

Young contends that there were several factual disputes preventing the entry of summary judgment. It argues that there was a genuine dispute as to whether the Change Requests were the product of Owner-initiated changes. Young considers the characterization of the changes as an attempt to rely on the pay-when-paid language in Section 13(c). It contends that it disputed this characterization of the changes and, accordingly, summary judgment was not appropriate.

Dustin argues that Young attempts to construct an alternate theory of events from allegations in the Complaint and statements made by its counsel. Dustin contends that in so doing, however, Young has not met its burden of production to demonstrate that there was a dispute of fact, necessitating our reversal of the grant of summary judgment. Dustin argues the evidence and affidavits it submitted supported the grant of summary judgment and, furthermore, the Change Requests themselves demonstrate Young stated that the claims were the result of owner-initiated actions.

B. Standard of Review

As discussed in section (ii).B supra, we review the trial court’s record to discern whether there was a genuine dispute of material fact that would preclude the entry of summary judgment. We shall review the record in a light most favorable to the non-moving party and shall construe any reasonable inferences from the facts against the moving party.

C. Analysis

Young’s contention that the Change Requests were not the product of Owner-initiated changes does not comport with the record in this case. The body of evidence presented to the circuit court cannot support a factual dispute that would preclude the operation of the pay-when-paid clauses.

The Change Requests were the result of Owner-initiated changes, which Young fully recognized. Young explains in Change Request 1066 that its request for additional payment was for “extended overhead costs associated with the oimer’s extension of the contract.” In Change Request 1067, Young provides an extended narrative regarding its request for additional payment. Young attributed the overrun in hours to “unforeseen problems and design related issues” as well as “numerous owner initiated changes which were issued that redesigned the work as the project proceeded.” (emphasis added).

Nowhere else in the record is it demonstrated with any degree of persuasion that Dustin was responsible for the overages. Young’s Change Requests remain the best explanation of the change orders. Young, therefore, is unable to demonstrate that there exists a genuine factual dispute as to whether the change orders were not owner-initiated.

It was undisputed that the Change Requests were the result of Owner-initiated changes. As a result, Sections 2(c), 13(c), and 27(f) operate to bar Young’s claims against Dustin. All costs Young incurred were the result of Owner-initiated changes, and the Subcontract requires Young to seek payment for these claims from George Mason via Dustin. Dustin is not liable to Young for the Change Requests.

APPELLANT’S MOTION TO STRIKE SUGGESTION OF BANKRUPTCY GRANTED. JUDGMENT OF THE CIRCUIT COURT FOR MONTGOMERY COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

      .Appellant originally presented the following four questions in its brief:
      I. Did the lower court err when it entered its summary judgment in favor of a defendant general contractor pursuant to a "pay-when-paid” clause, prior to any discovery in the case, in reliance on the wrong "pay-when-paid” language of the subcontract?
      II. If appellate review were not limited to the reasons relied upon in the lower court, and the lower court had applied the potentially applicable "pay-when-paid” language advanced by the defendant general contractor in its Motion for Summary Judgment, was summary judgment precluded by material factual disputes over whether all of the claims underlying Plaintiff's breach of contract action were limited to owner-initiated changes?
      III. If appellate review were not limited to the reasons relied upon by the lower court, did the prevention doctrine preclude the entry of summary judgment prior to the opportunity for discovery in the case on the basis that the general contractor did not make the administrative procedure for disputes available to the subcontractor?
      IV. Did the lower court err when it interpreted the "pay-when-paid” clause as equivalent to a “paid-if-paid” clause?

      . On August 11, 2016, the appellee (Dustin Construction) filed a Suggestion of Bankruptcy with this Court, arguing that the present appeal should be stayed pursuant to 11 U.S.C. § 362 based on a pending involuntary bankruptcy case against the appellant (Young Electrical) that was filed in the United States Bankruptcy Court for the District of Maryland on October 23, 2014, by certain alleged, non-party creditors.
      On August 19, 2016, the appellant filed a Motion to Strike and/or Disregard the Suggestion of Bankruptcy filed by the Appellee. Among other things, the appellant asserts that "the statute providing for an automatic stay following the filing of a bankruptcy petition [ (11 U.S.C. § 362)] applies only to actions 'against the debtor.’” Because the present case involves an action brought by the bankruptcy debtor, not against it, the appellant contends that an automatic stay would be improper.
      Upon consideration of 11 U.S.C. § 362 and the relevant case law, we agree with the appellant’s argument that the automatic stay does not apply because this case does not involve an action against the bankruptcy debtor. Moreover, Dustin did not argue that because of the bankruptcy filing, the right to assert Young’s claims belongs to a bankruptcy trustee rather than to Young itself. See Morton v. Schlotzhauer, 449 Md. 217, 224, 144 A.3d 592 (2016). Therefore, we hereby grant the appellant's Motion to Strike the Suggestion of Bankruptcy filed by the Appellee.

      . The first of the three change requests, No. 1046, was resolved on February 5, 2014, when Dustin paid Young the requested amount of $23,843.00.

      . The subcontract provides a mechanism by which Young could have gone after the Owner for the additional payment. That mechanism, which is delineated in Section 27 of the subcontract and, by incorporation, Section 47 of the general contract, is to first have the general contractor submit a claim to the Owner for the Owner’s approval. Then, if the Owner has denied the subcontractor's claim (which the general contractor would have brought on its behalf), the subcontractor can take legal action against the Owner as permitted under Section 47 of the general contract. Unfortunately for Young, the first sentence of the third paragraph of Section 47 reads: "The decision of the agency head or other signatory on the Contract shall be final and conclusive unless the Contractor within six (6) months of the date of the final decision on a claim, initiates legal action as provided in § 2.2-4364 of the Code of Virginia.” (Emphasis added). Thus, Young could have gone after the Owner within six months of the final decision on its claim, but instead chose to pursue an action against the general contractor.


author: Harrell, J.

text:
    151 A.3d 44
    CLEANWATER LINGANORE, INC., et al. v. FREDERICK COUNTY, Maryland, et al.
    No. 1917,
    Sept. Term, 2015
    Court of Special Appeals of Maryland.
    December 28, 2016

      Michele McDaniel Rosenfeld of Rockville, MD, for Appellant
    Kathy L. Mitchell (John S. Mathias, County Attorney of Frederick, MD) C. Robert Dalrymple (Justin M. Baylor, Li-nowes and Blocher, LLP of Frederick, MD) on the briefs, for Appellee
    Meredith, Nazarian, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.
   Opinion by

Harrell, J.

How many angels can dance on the head of a pin? This ancient metaphor, conceived originally as a mock example used to discredit medieval scholastic philosophy, but deployed here with non-satirical intent, is an apt segue into this opinion. Based on the parties’ positions regarding the flagship question in the present case, we imagine the answer Appellants would give to the philosophical query would be “one,” while Appel-lees would respond likely with “a lot more than that.”

Appellees, Eugene B. Casey Foundation (Casey) and Frederick County, Maryland (the County), entered into a Development Rights and Responsibilities Agreement (DRRA) in October 2014, following its approval by the Board of County Commissioners for Frederick County (BOCC), to facilitate the development of Casey’s 634 acre property in Frederick County. Concurrent with the approval and execution of the DRRA, the BOCC approved Casey’s rezoning application, changing the zoning of the property from agricultural to planned unit development (PUD).

Appellants, led by Cleanwater Linganore, Inc. (CLI), appeal these BOCC actions. CLI argues first that the DRRA includes unlawfully broad language that purports to “freeze” local laws beyond those authorized by Md. Code, Land Use Art. (LU), § 7-304 (2012, 2016 Supp.), which describes the field as “the local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to an agreement.” Second, CLI contends that the BOCC approved erroneously Casey’s rezoning application because it failed to make certain of the supporting factual findings required for the PUD zone by the Frederick County Code (FCC). We conclude that the General Assembly intended a broader interpretation of the DRRA Act’s “freeze” provision than CLI imagines and that the BOCC made all required factual findings to justify granting the rezoning. Accordingly, we hold that the BOCC’s approval, and the County’s execution, of the DRRA, and the BOCC’s grant of the rezoning, are supported by substantial evidence and free of legal error.

Facts and Legal Proceedings

The Casey property consists of 634 acres located in Frederick County’s New Market Planning Region (NMPR). From 1972 to 2008, the property was zoned for Planned Unit Development (PUD), designated for low density residential (LDR) development, and located in a community growth area (CGA). In 2008, the then-members of the BOCC downzoned much of the NMPR, including the Casey property, to the Agricultural Zoning District. Additionally, it removed the Casey property’s CGA status as well as its recommended LDR designation on the County’s Comprehensive Plan Land Use Map, replacing the latter with a designation for agricultural land use.

In 2012, as a part of a Comprehensive Planning and Zoning Review, a newly-constituted BOCC restored the Casey property’s CGA status and amended the Land Use Map to reinstate its recommended LDR designation. Because a PUD is a floating zone for which no individual rezoning application had been filed or prosecuted yet to the degree required by the zoning ordinance, the BOCC could not approve at that time Casey’s desired rezoning during its Comprehensive Plan and rezoning process. Accordingly, Casey submitted a piecemeal rezoning application for the PUD zone, pursuant to FCC §§ 1-19-3.110, Zoning Map Amendments, and 1-19-10.500, Planned Development Districts.

The County Planning Commission reviewed Casey’s rezoning application and recommended approval to the BOCC, The BOCC considered the application at a public hearing on 15 July 2014. The Planning Staff Report (Staff Report) opined that, in the staffs view, the application conformed to all applicable legal standards. Casey presented several expert witnesses who testified to the rezoning application’s consistency with the Staff Report and the Comprehensive Plan. During the hearing, Appellants’ counsel argued that the rezoning application relied on land use maps adopted improperly and that the BOCC failed to contemplate adequately population projections. The BOCC rejected these arguments and approved the rezoning by Ordinance No. 14-20-675 on 23 October 2014.

As a companion matter, Casey petitioned the BOCC, anticipating hoped-for favorable action on its rezoning application, for the negotiation of a DRRA between itself and Frederick County. 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.” Obtaining forbearance of the application of subsequent changes in relevant local laws provides certainty and stability to developers, whose projects may take many years to complete and/or sell-off or lease. Local governments derive, in return, negotiated greater public benefits than may be attained through typical governmental exactions or conditions of development approvals. To determine whether to approve the Casey-County DRRA, the BOCC held a public hearing on 21 August 2014. Casey presented expert testimony in support of the DRRA. The Board voted to approve of the DRRA, which was executed on 23 October 2014 and recorded in the County land records.

CLI petitioned the Circuit Court for Frederick County for judicial review of the BOCC’s approval, and the County’s execution, of the DRRA and the rezoning. Finding both actions legal and supported by substantial evidence in the record, the court affirmed the actions on 9 October 2015. CLI appealed timely to the Court of Special Appeals.

Questions Presented

Appellants present essentially two questions for appellate review:

1. Did the Casey DRRA freeze a broader scope of local laws than permitted legally, thereby rendering the BOCC’s approval and the County’s execution unlawful in whole or in part?
2. Did the BOCC fail to make certain factual findings required to rezone lawfully the Casey property for the PUD zone?

Standard of Review

When reviewing the piecemeal zoning decision of a local zoning body, “[o]ur role is ‘limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’ ” Grasslands Plantation, Inc. v. Frizz-King Enterprises, LLC, 410 Md. 191, 203, 978 A.2d 622, 629 (2009) (quoting United Parcel Serv. v. People’s Counsel for Baltimore Cnty., 336 Md. 569, 577, 650 A.2d 226, 230 (1994)).

“The scope of judicial review of administrative fact-finding is a narrow and highly deferential one.” Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore Cnty., 407 Md. 53, 78, 962 A.2d 404, 418 (2008). We do not substitute our judgment for that of the BOCC, but rather, determine whether “ ‘a reasonable mind might accept as adequate’ the evidence supporting it.” Id. (quoting People’s Counsel for Baltimore Cnty. v. Loyola College in Md., 406 Md. 54, 67, 956 A.2d 166, 174 (2008)). “ ‘Even with regard to some legal issues, a degree of deference should often be accorded the position of the administrative agency. Thus, an administrative agency’s interpretation and application of the statute which the agency administers should ordinarily be given considerable weight by reviewing courts.’ ” Grasslands Plantation, Inc., 410 Md. at 204, 978 A.2d at 629 (quoting Bd. of Physician Quality Assurance v. Banks, 354 Md. 59, 69, 729 A.2d 376, 381 (1999)).

We shall recount at the appropriate point in this opinion the principles governing judicial consideration of statutory interpretation questions.

Discussion

CLI mounts several arguments with respect to the DRRA: the statutory interpretation of the DRRA legislation, as applied to the relevant provision in the Agreement in this ease, is ripe for appellate review because Frederick County amended several implicated laws since the execution of the DRRA in this case; the freeze provision of the Casey DRRA expands unlawfully the breadth of laws that may be frozen; and, Maryland’s DRRA enabling statute does not authorize parties to a DRRA to expand by negotiation the legally permissible scope of laws to be frozen. Regarding the BOCC’s rezoning of the Casey property, CLI argues that the BOCC failed to make requisite factual findings regarding design and building siting, compatibility with neighboring land use and plans, and population growth. Appellee Casey answers, regarding the DRRA, that: State and Frederick County laws permit DRRAs to freeze the range of local laws provided in the Casey DRRA; parties to a DRRA may negotiate which local laws governing “use, density, or intensity” will be frozen; and, execution of the DRRA, in light of recent amendments to implicated County laws, does not operate to usurp County police powers as reflected in the amended laws. On the rezoning question, Casey contends that the BOCC made all of the factual findings necessary to rezone the Casey property.

I. The BOCC approved, and the County executed, the Casey DRRA based on substantial evidence and without legal error.

A. The statutory interpretation question regarding the DRRA’s freeze provision is ripe for judicial review.

CLI contends that its statutory interpretation contention vis-a-vis the scope of the “freeze” provision of the DRRA is ripe for judicial review because the County amended the substantive requirements, since the execution of the DRRA, of several local laws implicated by the freeze provision in this case.

A controversy is ripe 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. The declaratory judgment process is not available to decide purely theoretical questions or questions that may never arise, or questions which have become moot, or merely abstract questions. Nor should it be employed where a declaration would not serve a useful purpose or terminate a controversy. To address issues which are non-justiciable because they are not ripe would place courts in the position of rendering purely advisory opinions, a long forbidden practice in this State.

Hickory Point P’ship v. Anne Arundel Cnty., 316 Md. 118, 129-30, 557 A.2d 626 (1989) (quotation marks and citations omitted).

As discussed in greater depth infra, the Casey-County DRRA purported to freeze a variety of specific Frederick County local ordinances or fields of regulation, i.e., laws, rules, regulations, and policies related to “development, subdivision, zoning, comprehensive planning, moderately priced dwelling units, growth management, impact fees, water, sewer, storm-water management, environmental protection, land planning and design, adequate public facilities laws[,] and architecture.” Casey DRRA, Art. VIII § 8.I.B. Because, since the Casey DRRA’s execution, the County amended, among other laws, its ordinance regulating developments near waterbodies, CLI argues that its challenge to the scope of the freeze provision is ripe for judicial review:

Frederick County has amended a number of County laws that are directly implicated by the DRRA’s freeze provision, including an amendment to the County’s Waterbody law limiting imper[v]ious development within the waterbody buffers. ... [T]he Waterbody amendments would be directly applicable to the impervious structures allowed on the Casey property, which is heavily traversed by waterbodies. Several tributaries to Linganore Creek and Lake Linganore originate or flow through the Casey Property. Lake Linga-nore provides drinking water to Frederick County and Frederick City Residents.

FCC § 1-19-9.400, amended in 2015, mandates' waterbody buffer requirements for “[a] parcel, lot, or tract of land submitted to Frederick County for subdivision or resubdivision review and approval,” and applies “to applications for subdivision or resubdivision approved after November 10, 2013.” The ordinance regulates generally the development activities that may transpire permissibly in proximity to a waterbody, and the amended portion, § 1-19-9.400(D), governs specifically the construction of “buildings, structures, or impervious surfaces” and other “activities requiring clearing or grading over 5,000 square feet” in waterbody buffers. Home to “stream corridors” and “stream valleys designated as Natural Resources,” Ordinance No. 14-20-675 at 4, 6, the Casey property contains “[s]everal tributaries to Linganore Creek / Lake Linganore [that] originate or flow through the Casey Foundation ... property].” Envirens Inc., Assessment op Potential Occurrence—Rare, Threatened and Endangered Species 4 (Aug. 20, 2014). The presence of streams and tributaries on the property catalyzes the need for Casey to consider and meet the requirements of FCC § 1-19-9.400 as amended, unless the DRRA in this case “freezes” this area of regulation as of the effective date of the DRRA.

We agree with CLI that its challenge to the scope of the freeze provision of the Casey DRRA is ripe for review. The amendment of the aforementioned local provision constitutes an accrued state of facts, beyond the theoretical, that bears directly on the justiciable question of whether the DRRA froze properly a wide range of laws, implicating, at a minimum, the ordinance regulating developments near waterbodies that was amended subsequent to the execution of the DRRA and would otherwise apply to development of the Casey property.

B. The DRRA Act’s legislative history and purpose suggest an intent to freeze a broader range of local laws than merely the local zoning ordinance.

Each side posits facially reasonable arguments regarding interpretation of the scope of “local laws, rules, regulations, and policies governing the use, density, or intensity of the real property subject to [a DRRA].” LU § 7-804. Appellants read “use,” “density,” and “intensity” as zoning terms of art (not science) and advocate a narrow interpretation that limits a DRRA’s freeze provision to the local zoning ordinance. Appellees Casey and the County urge, on the other hand, a broader reading that encompasses the several regulatory domains listed in its DRRA: “[cjontrary to Appellants’ assertions, the laws, rules, regulations, and policies ‘frozen’ in § 8.1.B of the Casey DRRA do affect the use, density[,] or intensity of the project. For example, subdivision regulations necessarily affect the density of a development because platting and other requirements determine the number of lots that can be created on any given parcel. The same is true for stormwater regulations, since these requirements can affect where the development is ultimately located.”

LU § 7-304 reads as follows:

(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.

Article VIII § 8.1 of the Casey-County DRRA identifies the local laws, rules, regulations, and policies subject to its freeze provision as follows:

8.1 Effect of Agreement

B. Except as otherwise provided in Sections 2,5, 3.4[,] and 8.8 of this Agreement, 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, regula-tionst,] and policies, if any, in force on the Effective Date of the Agreement.
C. If the BOCC determines that compliance with County Development Laws enacted or adopted after the Effective Date of this Agreement is essential to ensure the health, safety!,] or welfare of residents of all or part of Frederick County, the BOCC may impose the change in laws, rules, regulations!,] and policies and the effect thereof upon the Property.

(emphasis added).

Courts are guided by a number of principles when confronting cases calling upon them to discern the intended meaning of contested statutory text:

We look first to the language of [the statute]. We apply the well settled rules of statutory construction in interpreting the statute before us. The cardinal rule of statutory construction is to ascertain and effectuate the intent of the Legislature. In ascertaining legislative intent, we first examine the plain language of the statute, and if the plain language of the statute is unambiguous and consistent with the statute’s apparent purpose, we give effect to the statute as it is written. If the language of the statute is ambiguous, we resolve the ambiguity in light of the legislative intent, considering the legislative history, case law, and statutory purpose. We consider both the ordinary meaning of the language of the statute and how that language relates to the overall meaning, setting, and purpose of the act. We avoid a construction of the statute that is unreasonable, illogical, or inconsistent with common sense. We construe a statute as a whole so that no word, clause, sentence, or phrase is rendered surplusage, superfluous, meaningless, or nugatory.

Jamison v. State, 450 Md. 387, 396 n.9, 148 A.3d 1267, 1273 n.9, 2016 WL 6755922, at *4 n.9 (2016) (quoting Blake v. State, 395 Md. 213, 224, 909 A.2d 1020, 1026 (2006)) (citations omitted).

We conclude to be ambiguous on its face the intended scope of “the local laws, rules, regulations, and policies” that “govern[] the use, density, or intensity” of real property. “Govern,” according to Black’s Law Dictionary, means “to control a point in issue.” Black’s Law Dictionary 810 (10th ed. 2014). Zoning laws control unmistakably the use, density, or intensity of real property, but laws regulating, for example, subdivision, architecture, public utility requirements, and environmental protection may do so as well. Somewhat more attenuated in their potential for “control” of “use, density, or intensity” are impact fees and stormwater management requirements. We turn, therefore, to the legislative history and purpose of the DRRA Act to seek aid in pursuit of identifying the Legislature’s intent.

1. The DRRA Act’s legislative history indicates that the Maryland General Assembly contemplated that DRRAs may freeze a broader range of local laws than just zoning ordinances.

Our review of the DRRA Act’s legislative history unearthed two significant documents. First, the Fiscal Note for HB 700, the original bill that became the Act in 1995, discussed some of the types of local laws implicated by the DRRA in dispute here. With specific reference to local revenues, the Fiscal Note stated that “[a] local jurisdiction opting to enact such an [implementing] ordinance and enter into agreements could be affected to the extent that during the period of an agreement it could not effect changes in impact fees, permit fees, water and sewer hookup fees, etc. applicable to development. Thus, there could be a loss in revenues, of an indeterminate amount, to the local governments.” Md. Gen. Assemb. Dep’t of Fiscal Servs., Fiscal Note, H.B. 700, at 1 (1995) (emphasis added). Moreover, regarding local expenditures, “[t]he Department of Fiscal Services points out that increases in the costs of paving, storm drains, water and sewer hookups, etc. would have to be absorbed by the local jurisdiction unless an agreement accounts for cost increases otherwise (depending on applicable development policies).” Fiscal Note at 2 (emphasis added). Similarly, the Senate Economic and Environmental Affairs Committee Floor Report for HB 700 stated, in reference to the bill’s local fiscal impact, “[r]evenues may decrease by an indeterminate amount due to the inability of a local jurisdiction to make changes to development fees, for example, impact fees, permit fees, water and sewer hookup fees, during the period of an agreement.” S. Econ. and Envtl, Affairs Comm,, Floor Report, H.B. 700, at 2 (Md. 1995) (emphasis added).

These statements 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. The use of “etc.” in both passages from the Fiscal Note, and “for example” in the Floor Report, suggest that the General Assembly anticipated that the freeze provision would impact fiscally local jurisdictions via the suspended application of increases in existing fees or the creation of new kinds of fees, and even more kinds of laws than fee schemes.

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.

2. Restricting the DRRA Act’s freeze provision to only zoning laws would undermine its statutory purpose.

However fictional the notion of institutional intent may sometimes be, it is fair to say that legislation usually has some objective, goal, or purpose. It seeks to remedy some evil, to advance some interest, to attain some end. If we characterize the search for legislative intent as an effort to seek to discern some general purpose, aim, or policy reflected in the statute, we state the concept more accurately and avoid the fiction.

Kaczorowski v. Mayor & City Council of Baltimore, 309 Md. 505, 513, 525 A.2d 628, 632 (1987) (quotation marks and citation omitted).

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.

We 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 the local laws and regulations falling into the categories listed in the Casey-County DRRA. Accordingly, the BOCC’s approval (and the County’s execution) of the DRRA, including its expansive and specific freeze enumeration in Article VIII § 8.1.B, does not expand impermissibly the statutorily-allowed scope of local laws, rules, regulations, and policies governing use, density, or intensity beyond that contemplated by LU § 7-804(a),

C. The parties to the Casey DRRA did not negotiate impermissibly the freeze provision, nor does the DRRA interfere with local police powers.

Because we find permissible the BOCC’s and the County’s interpretation and application of the DRRA Act’s freeze provision as reflected in the Casey-County DRRA, we reject also CLI’s argument that the parties to the agreement attempted to negotiate the freeze of local laws beyond those governing “use, density, or intensity.” Certainly the Casey-County DRRA freezes a panoply of laws beyond zoning, but the DRRA Act’s legislative history and purpose support a broader interpretation of what provisions govern use, density, or intensity beyond zoning alone. We reject further CLI’s contention that the Casey-County DRRA’s expansive manifestation of the freeze provision interferes with the proper exercise of local police powers. Regardless of the scope of laws a given DRRA freezes, LU § 7—304(b) allows a local government to enforce any “local laws, rules, regulations, and policies enacted or adopted after the effective date of an agreement” if compliance with the new laws “is essential to ensure the public health, safety, or welfare.” Article VIII § 8.1.C of the Casey DRRA provides exactly for that potentiality.

II. The BOCC’s rezoning decision is supported by substantial evidence.

Appellants argue that the BOCC rezoned the Casey property without making the factual findings required by the Frederick County Code and State law regarding design and building siting, compatibility with neighboring land uses, and population growth.

A. Zoning Ordinance No. 14-20-675 satisfies FCC § 1—19— 10.500.3(B)’s requirement of a finding that design and building siting accord with the Comprehensive Plan.

In Zoning Ordinance No. 14-20-676, the BOCC set-out its factual findings with respect to the requirements of the FCC. FCC § 1-19-10.500.3(B) requires a finding that “[t]he proposed development design and building siting are in accordance with the County Comprehensive Plan, and any applicable community and corridor plans[.]” CLI argues that the BOCC made no findings relative to this provision, and that, in any event, such factual findings could not possibly be made because “the 2010 Comprehensive Plan Map did not contemplate that the Casey Property would be eligible for PUD zoning.” Casey counters that the BOCC made indeed the requisite factual findings regarding the compatibility of its property’s design and building siting with the Comprehensive Plan, albeit scattered throughout the Zoning Ordinance.

It must be conceded that the BOCC listed no factual findings pursuant to FCC § 1-19-10.500.3(B) on the page of the Rezoning Ordinance where such a heading appears. Ordinance No. 14-20-675 at 17. According to Casey, however, a more nuanced reading of the entire Rezoning Ordinance is required because of the overlap of findings required by State and County law. The BOCC, according to Casey, structured intentionally the Ordinance to address FCC § 1—19— 10.500.3(B) in a piecemeal fashion scattered throughout the document under other headings, Casey notes that the Court of Appeals condoned such an approach. Critical Area Comm’n for Chesapeake & Atl. Coastal Bays v. Moreland, LLC, 418 Md. 111, 134, 12 A.3d 1223, 1237 (2011) (“We can discern no statutory or jurisprudential basis for the conclusion that summarizing the evidence in a separate section deprived the Board’s conclusory findings of adequate evidentiary support. Semantically, on this record, to find the organizational structure of the Board’s written decision defective or incomprehensible would be to elevate form over substance.”).

With respect to design and the siting of buildings, the BOCC described the development as follows:

The overall plan for the development delineates six distinct residential land bays, a school site, and a commercial site. These areas are located on land with minimal environmental and physical obstructions. The lands outside of these areas include stream corridors, forested land, steep slopes, and floodplains. The concept for development of this property is to allow the existing environmental features of the property to establish the overall layout.
A proposed arterial road runs continuously through the Site from south to north, connecting the various land bays. Frontage along this central spine road alternates between development bays and natural open space areas, creating a system of access that intertwines the natural environment and the built environment. A hiking and biking trail along the spine road provides an additional access network between the open space and the development bays and enhances interconnection between them by branching into the open space areas.

Ordinance No. 14-20-675 at 4.

In a subsequent section of the Ordinance entitled “Consistency with the Comprehensive Plan,” the BOCC stated that, because of the Casey property’s LDR designation and location in the Linganore CGA, “it is identified as an area that has been targeted for growth and development and is therefore consistent with the general policy in the Comprehensive Plan that supports the location of growth within growth areas.” Ordinance No. 14-20-675 at 6. The BOCC found also that rezoning the Casey property to PUD “is consistent with the current County Comprehensive Plan,” and that the proposed development accords with the Plan’s “overall community development principles such as encouraging higher density development, a mix of land uses, providing distinctive design that contributes to a distinctive community character, efficiency of layout relative to public infrastructure, and general accessibility through multiple modes of transport as well as interconnectedness of the transportation network.” Ordinance No. 14-20-675 at 6-7.

It appears to us that the BOCC made adequate findings supporting a favorable conclusion relative to the factors in FCC § 1-19-10.500.3(B).

B. Zoning Ordinance No. 14-20-675 satisfies FCC § 1-19-10.500.3(C)’s requirement of a finding that the proposed development is compatible with surrounding land uses.

FCC § 1-19-10.500.3(C) requires factual findings that:

The proposed development is compatible with existing or anticipated surrounding land uses with regard to size, building scale, intensity, setbacks, and landscaping, or the proposal provides for mitigation of differences in appearance or scale through such means as setbacks, screening, and landscaping; or other design features in accordance with the County Comprehensive Plan, and any applicable community or corridor plans[.]

CLI argues that “[wjhile the BOCC makes compatibility findings in connection with land uses that abut the outer perimeter of the Casey Property, it entirely omits any findings in connection with Hall[’]s Choice Farm.” As with the BOCC’s design and siting findings discussed supra, here, the BOCC appears to have addressed appropriately Hall’s Choice Farm elsewhere in the Ordinance. First, the BOCC described the property: “[t]he Site surrounds an existing horse farm, Hall’s Choice Farm, which is a 35 acre sales, breeding, and training facility for Hanoverian horses. This property is not a part of this PUD application, though it is designated Low Density Residential and is part of the growth area.” Ordinance No. 14-20-675 at 14. Further along in the Ordinance, the BOCC examined the Casey developments’ compatibility with the use of the farm: “[ljandscape buffers between the project and Hall[’]s Choice Farm, the Audubon Property, and the Swanby Property will effectively mitigate potential inconsistencies between the project and the existing uses on those properties.” Ordinance No. 14-20-675 at 23.

C. Zoning Ordinance No. 14-20-675 includes the requisite finding regarding population growth.

CLI maintains that, even if rezoning the Casey property accords with the Comprehensive Plan, the BOCC failed to engage in new population growth studies, necessitated by the fact that the Plan’s “policies, visions[,] and goals (not to mention the land use and zoning maps) were predicated upon” now-outdated population projections. In the Rezoning Ordinance, however, the BOCC calculated the population increase expected to result from developing the Casey property, based on 2010 U.S. Census data, finding that “[t]he potential additional population change as a result of the proposed 1,017 units equates to 2,746 persons, based on 2.7 persons per household.” Ordinance No. 14-20-675 at 15. Speculating that, “[a]s a matter of public policy,” LU § 4-204(b)(l)(i)’s requirement that a population finding accompany a zoning-changing map amendment must entail more than “a mere mathematical equation devoid of any planning or growth analysis,” CLI asserts that the BOCC “fail[ed] to make a meaningful finding in connection with ‘population.’ ”

As to the BOCC’s approach to addressing the findings regarding design and the siting of buildings, compatibility with neighboring land uses, and population growth, we must defer to the expertise of the BOCC. “The scope of judicial review of administrative fact-finding is a narrow and highly deferential one,” and we do not substitute our judgment for that of the BOCC. Trinity Assembly of God of Baltimore City, Inc. v. People’s Counsel for Baltimore Cnty., 407 Md. 53, 78, 962 A.2d 404, 418 (2008). Accordingly, for all three instances of allegedly missing or defective findings, we hold that the BOCC had before it substantial evidence upon which it based its findings and ultimate rezoning decision.

JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANTS.

      . Appellants include Cleanwater Linganore, Inc., Mary E, Smith, Stephanie Cacopardo, Betty Ward, and Jerry Ward. We may refer collectively to Appellants as "CLI” on occasion.

      . For a primer in the meaning of a number of the technical planning and zoning terms and processes mentioned in this opinion, see Cnty. Council of Prince George's Cnty. v. Zimmer Dev. Co., 444 Md. 490, 120 A.3d 677 (2015).

      . Maryland enacted its development rights and responsibilities agreement (DRRA) statute in 1995. Md. Code, Art. 66B, § 13.01. After several non-substantive revisions, including recodification in 2012, the law remains substantially the same today. Md. Code, Land Use Art. (LU), §§ 7-301-7-307 (2012, 2016 Supp.). LU § 7-301(b) defines a DRRA as "an agreement between a local governing body and a person having a legal or equitable interest in real property to establish conditions under which development may proceed for a specified time.”

      . The circuit court reviewed also the BOCC’s approval of the Casey Adequate Public Facilities Ordinance Letter of Understanding, an action not contested in this appeal.

      . We shall condense and paraphrase CLI's questions for clarity and brevity. In full, CLI presented originally six questions, one of which was withdrawn before the case was heard by this Court:

        A. Is the freeze provision of the DRRA overly broad given the sworn testimony of the County's Expert Planning Director establishing that most of the County laws referenced in the DRRA's "freeze” provision do not "govern” use, density!,] or intensity?
      B. Is the scope of the freeze provision now ripe for judicial review given Frederick County’s recent amendments to its waterbody law, its MPDU law, and its building, electrical, and plumbing laws, all of which explicitly or implicitly fall within the DRRA's definition of “development laws” and thereby fall within the "freeze”?
      C. Does a statutory analysis of the DRRA law confirm that the freeze is limited to laws governing use, density!,] or intensity?
      D. Is the BOCC’s rezoning action ultra vires and void because the 2012 Land Use Map provides no legal basis for the PUD floating zone application? [Appellants filed a “Notice of Appellants' Withdrawal of Question D” on 11 July 2016.]
      E. Is Rezoning Ordinance No. 13-14-642 unsustainable because it lacks any finding that the proposed development design and building site are in accordance with the County Comprehensive Plan under Zoning Ordinance Section 10-19-10.500.3(B)? [CLI intended presumably to refer to Ordinance No. 14-20-675 because Ordinance No. 13-14-642 pertains to an irrelevant property-]
      F. Should the rezoning action be reversed because it is not consistent with the County's Comprehensive Plan?

      . CLI advances pre-emptively this argument because, in a 2015 unreported opinion involving a similar appellant and the County as one of the appellees, this Court declined to consider fully, as unripe, the scope of laws frozen by an unrelated DRRA because, at the time of judicial review, no implicated local laws changed since the contested DRRA’s execution.

      . CLI points also to amendments in the County's electrical, building, and plumbing codes that became effective after the execution of the Casey DRRA. It is debatable whether these ordinances were frozen under § 8.1.B of the Agreement or that they govern use, density, or intensity, as that phrase is understood according to our statutory analysis infra. Because amendment of the local ordinance regulating developments near waterbodies implicated clearly several of the regulatory fields embraced by § 8.l.B of the DRRA (e.g., water, environmental protection, and land planning and design), we need go no further in overcoming the ripeness threshold.
      We note in passing that, even if post-Agreement amendments to the building, electrical, and plumbing codes were considered in the analysis of whether the ripeness requirements are satisfied here, these sorts of highly technical codes are amended frequently to conform to evolving national, State, or industry standards, some of which amendments are relatively mundane and others may reflect significant public safety considerations (e.g., requiring sprinklers in dwellings). It is problematic whether the more mundane changes in such codes, which may fall outside the intended scope of the "freeze” provision in the DRRA enabling statute and/or the Casey Agreement in any event, would satisfy the common law ripeness standards.

      . Although the opposing reasonable interpretations advanced by the parties here would be sufficient alone for us to conclude the statute to be ambiguous on its face, we shall delve further into why we are persuaded to that end. Montgomery Cnty. v. Phillips, 445 Md. 55, 62, 124 A.3d 188, 192 (2015) (quoting Stoddard v. State, 395 Md. 653, 662, 911 A.2d 1245, 1250 (2006)) (" ‘We have said that there is an ambiguity within [a] statute when there exists two or more reasonable alternative interpretations of the statute. When a statute can be interpreted in more than one way, the job of this Court is to resolve that ambiguity in light of the legislative intent, using all the resources and tools of statutory construction at our disposal.’ ”).

      . The " 'recognized indicia’ ” of legislative intent include " 'the general purpose behind the statute’ ” as well as " ‘the legislative history, including the derivation of the statute, comments and explanations regarding it by authoritative sources during the legislative process, and amendments proposed or added to it.’ ” Wagner v. State, 445 Md. 404, 418, 128 A.3d 1, 10 (2015), reconsideration denied (Jan. 22, 2016) (quoting Stoddard v. State, 395 Md. 653, 662, 911 A.2d 1245, 1250 (2006)). The legislative documents discussed infra constitute authoritative "comments and explanations.”

      . 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).

      . We do not decide here whether local legislative fields of regulation, other than those listed specifically in Art. VIII, § 8.1.B of the Casey Agreement, might fall within or without the intent of the Legislature in describing in LU § 7-3 04(a) “local laws, rules, regulations, and policies governing ... use, density, or intensity.” Nor do we decide whether any specific local law, rule, regulation, or policy not discussed in this opinion fits into any specific category in the Agreement. Moreover, we do not consider the scope (if any) of the catch-all description in § 8.1.B of the Casey DRRA, "including but not limited to,” that precedes the enumeration of the regulatory fields intended to be frozen by the Agreement.
      Although they forebode further litigation, there will be further opportunities to test the ultimate boundaries of any freeze provision in a DRRA. Casey (or its successors/assigns), for example, will confront many additional and necessary governmental development processes, at which times the appropriate governmental body may confront questions regarding whether a law, regulation, or policy is frozen or not. Even if the specific regulatory rule then under examination is deemed covered by the Agreement (and comes within the intent of LU § 7-304(a)), the local government may unfreeze the rule by exercising its prerogative under Art. VIII, § 8.1.C of the Agreement, for public safety, health, and welfare reasons, as noted infra at 394, 151 A.3d at 56.

      . Given our conclusion as to the General Assembly's intent in enacting Art. 66B, § 13.01 and LU § 7-304(a), no purpose is served by considering CLI's arguments regarding how other States and localities have enacted or interpreted their DRRA legislation.