Maryland Supreme Court explains data center referendum ruling

By ERIK ANDERSON

eanderson@newspost.com

The Supreme Court of Maryland has released its full opinion explaining its decision on June 30 to not allow a voter referendum on the ordinance that created Frederick County’s new data center zone.

The order, which was issued unanimously by five sitting justices and three specially assigned senior justices, upholds a Frederick County Circuit Court ruling that the zoning ordinance at issue is not legally subject to referendum and that the forms used to collect signatures for the referendum were deficient. The opinion was authored by Chief Justice Matthew Fader. It notes that Justice Glenn Harrell Jr. concurs with the court’s opinion about the petition forms and therefore did not feel the need to decide whether the zoning ordinance in question is subject to referendum.

The opinion is the final word on the Frederick County Data Center Referendum Committee’s effort to secure a general election voter referendum on the 2,615acre data center zone (Critical Digital Infrastructure overlay) that was enacted by a County Council ordinance in January.

Over 21,000 signatures collected by the committee were certified in April by the Frederick County Board of Elections as representing significantly more than 7% of registered county voters — the threshold for referendum as defined in the county’s charter.

Several companies owning land in the CDI and a few individual Frederick County voters sued to block the referendum in Frederick County Circuit Court and won. The referendum committee appealed that ruling to the state Supreme Court and lost on June 30.

Laws vs. ordinances

The Supreme Court’s full decision, released on Friday, acknowledges the validity of certain points made by the referendum committee.

For example, a key contention of the referendum’s opponents was that the county charter allows only for “laws” to be put to referendum, not “ordinances,” but the committee argued that the charter’s language doesn’t draw a distinction between the two.

The court wrote “the Charter references laws, ordinances and legislation, but does not define any of those terms.”

Further, it points to many areas of the Charter’s Article 3, which defines the County Council’s authorities, in which the terms “Bills,” “laws,” “ordinances” and “legislation” seem to have significant overlap with each other.

“If we viewed Article 3 of the Charter in isolation, we would agree that the plain language is at least ambiguous concerning the scope of a ‘law, or part of a law’ that is subject to referendum,” the opinion reads.

However, the court found that the county charter section handling land use (See OPINION A10)

A transformer station being erected at the data center site near Adamstown.

Staff photo by Ric Dugan

(OPINION from A1) and zoning is not at all ambiguous, clearly adopting the same standards that were used by the county’s commission government prior to the Charter’s enactment in 2014.

The old form of government clearly did not allow for any zoning referendums, according to the opinion, because it was operating wholly under a state code that did not allow for them, and that code was then moved into the new charter.

“[T]he plain language of the Charter states unequivocally that the provisions and procedures governing land use in the County were not going to change under the Charter ...,” the opinion reads. “And as the circuit court found, and as no party has disputed, before adoption of the Charter, zoning ordinances in the County were adopted by ordinance, subject to judicial review as provided in the Land Use Article, and not subject to referendum.”

The opinion notes that the referendum had argued that the charter only adopted parts of the state Land Use Article that apply directly to charter counties. But the court calls that argument “a misconception” that “ignores the plain language” of the charter’s land use section.

Further, the court agreed with the circuit court’s findings that discussions held during the charter’s drafting process indicate that its framers intended to exempt zoning ordinances from referendums.

Petition forms

The court also agreed with the circuit court that the referendum committee’s petition forms did not provide a “full and accurate” reproduction of the zoning ordinance as required by the county charter.

It wrote that rendering the zoning ordinance’s two maps on the back of the petition forms in black and white obscured the boundaries of the CDI overlay zone and other relevant zones in the area.

The referendum committee argued that the court owed deference to Barbara Wagner, the county’s election director, who issued a determination in January stating that “the Petition is sufficient as to format only” and arrived at that conclusion again in April when the signatures were validated.

But the court wrote that Wagner — referenced only as “The Election Director” — “made no factual findings about the maps and provided no explanation of her conclusion that they were sufficient.”

The opinion states that an agency decision, such as the one made by Wagner, requires evidence “that a reasoning mind reasonably could have reached the factual conclusion the agency reached.” The court concluded, “No such evidence exists here.”

However, the court wrote in a footnote that, because it had made a determination about the map quality, it would not reach a conclusion about whether the text of the ordinance was adequately reproduced on the petition forms.

Judge James A. Bonifant had ruled in circuit court that the referendum committee had “inappropriately reduced the font” size of the ordinance text on the petition forms.

The Supreme Court opinion also says the Frederick County Council should consider whether the requirement to print a full copy of every law referred to referendum on “every paper” of the petition should be changed. It notes that summaries of laws for state-level referendums can be used in lieu of the full text, but not Frederick County laws.

“[I]t is not difficult to imagine a law so lengthy that reproducing a full and accurate version on the back of a reasonably sized sheet of paper would be impossible ...,” the opinion states. “But it cannot be the case that the length of a law insulates it from referendum review.”

Construction continues this month on a data center near Adamstown.

Staff photo by Ric Dugan