Maryland Reclamation Associates, Inc. v. Harford County

Dissenting Opinion by HARRELL, Judge, which BELL, C.J., joins.

The Court of Appeals again wimps-out on adopting the doctrine of zoning estoppel, the contours of which are well-established in a number of our sister states. In this latest missed opportunity, Appellant, Maryland Reclamation Associates, Inc. (“MRA”), contends compellingly that we should embrace the principles of zoning estoppel and hold that Appellee, Harford County, is estopped from applying the provisions of Harford County Bill 91-101 to Appellant’s proposed operation of a rubble landfill on Appellant’s property. The Majority opinion rebuffs Appellant’s argument. I disagree with the Majority opinion in this regard and would hold, under zoning estoppel principles, that Appellee is estopped from applying the provisions of Bill 91-10 to Appellant’s proposed rubble landfill, based on Appellee’s prior approvals of Appellant’s Site Plan, its inclusion of Appellant’s rubble landfill in the County’s Solid Waste Management Plan (“SWMP”), the official assurances it gave to Appellant that construction could proceed, and Appellant’s substantial expenditures made in good faith reliance upon such assurances. Thus, I would reverse the judgment of the Circuit Court for Harford County.

I. Facts

In the late summer or early fall of 1989, Richard Schafer, the President of MRA, met with Thomas Smith, then the Director of Public Works for Harford County, to discuss amending the Harford County SWMP to include certain property on Gravel Hill Road which Appellant intended to pur*66chase and on which it would establish a proposed rubble landfill. MRA submitted site plans for the proposed landfill, which were reviewed by Harford County’s Department of Public Works, Department of Planning and Zoning, and Department of Environmental Affairs. The plans also were discussed with then County Executive Habern Freeman, who indicated that he would like to see the project proceed.

At the time MRA filed its rubble landfill permit application with the Maryland Department of the Environment (“MDE”) on 22 September 1989, Harford County maintained a stated policy of its County Council approving or disapproving proposed rubble landfills concurrent with Phase I of MDE’s three stage permit review process. According to Director Smith, the purpose of this policy was “to save the owner/applicant[ ] a lot of time and money that would be expended on a project if the Council elected not to approve it.” The policy was adopted in the aftermath of an experience involving the review of another rubble landfill application for a different Harford County rubble landfill, Oak Avenue, which underwent County review during Phase III of MDE’s permit review process.

When Harford County officials, including the County Executive, indicated a positive response to MRA’s landfill proposal, MRA hired engineers and hydrogeologists to prepare Phase II and III plans, as required by state statute. The Phase I engineering fees were approximately $25,000. According to the record, at this time, Harford County encouraged MRA to go forward with the project.

In the fall of 1989, the Harford County Council held public hearings to consider MRA’s proposed rubble landfill. At the 7 November 1989 hearing regarding the proposal to amend the County SWMP to include MRA’s proposed Gravel Hill property and to consider zoning approval of the Site Plan, Council member Barbara Risacher stated:

We’ve made the decision in the past as a policy decision that we would either accept or deny rubble fills at stage one; so this one, if it has gotten approval for stage one by the State, *67is at the level that we agreed that we would entertain these things.

At the continued hearing on 14 November 1989, Council President John Hardwicke announced that the County’s role in the permitting process was not a technical, scientific review, but was a political decision-making process:

We are sitting here as your local political board, and it is our duty to try and determine what is best politically with respect to this precise location. We are more or less your neighbors and local elected officials. We are here to deal with it more or less as a political and policy matter affecting Harford County. If this Council approves the petition, then the State holds hearings which deal with scientific features, safety and geology, underground water problems and those scientific questions. This is not a scientific hearing. This is more or less a political situation to determine the matter of location.

After the conclusion of the 14 November hearing, the County Council approved the zoning Site Plan, including required buffers and landscaping, and the inclusion of the Gravel Hill property in the County SWMP.2 The Department of Public Works and the County Council imposed twenty-seven separate conditions on the SWMP approval, including that a grading permit be issued for the site. Public Works Director Smith testified that, apart from obtaining a grading permit, there were no other County approvals of any kind contemplated or required after the Council included MRA’s facility in the SWMP and approved MRA’s Site Plan. Smith further testified that the County policy was, at this point, to turn the balance of the rubble landfill permitting process over to the State be*68cause the County’s planning process was finished at the time of SWMP approval.

On 16 November 1989, the County Council transmitted to MDE its 14 November 1989 decision to include MRA’s site in the County’s SWMP. MDE gave Phase I approval for MRA’s rubble landfill on 20 November 1989. MRA filed subsequently its Phase II and III plans with the MDE. The Phase II and III engineering fees were in excess of $300,000.

MRA purchased the Gravel Hill property on 9 February 1990. According to MRA, it would not have purchased the property if the County Council had not voted to include the site within the SWMP, approved the Site Plan, and encouraged the project otherwise because MRA would not have been able to obtain financing for the purchase.

On 13 February 1990, four days after MRA closed on its acquisition of the Gravel Hill property, a re-constituted County Council3 attempted to rescind the prior SWMP approval through the enactment of Council Resolution 4-90.4 According to MRA, this action was part of a calculated process by the County Council designed to prevent MRA from proceeding with its plans to establish a rubble landfill on the land it had just purchased. As a result of the County Council’s approval of Resolution 4-90, MDE interrupted processing MRA’s Phase II and III rubble landfill permit application in May 1990.

In response, MRA sued Harford County in the Circuit Court for Harford County, seeking a determination that Reso*69lution 4-90 was invalid. The Circuit Court, on 10 October 1990, found in favor of MRA, holding expressly that MRA’s rights in the SWMP approval vested upon the 14 November 1989 County Council decision. Following the Circuit Court’s decision, MDE resumed processing of MRA’s state permit application, notifying the County Council of this fact in a letter dated 18 January 1991.

At this point, the County Council,5 shifting gears in pursuit of its new agenda, jettisoned the prevailing policy that local zoning approval or disapproval took place during Phase I of MDE’s permit review, introducing on 12 February 1991 and enacting as emergency legislation Council Bill 91-10 on 19 March 1991. Bill 91-10 contained new minimum lot sizes and setback requirements which, according to MRA, the Council knew MRA’s Gravel Hill property and approved site plan could not meet. James Yannoy, staff to the Harford County Council and draftsman of Bill 91-10, testified that he was instructed by the Council to draft Bill 91-10 as emergency legislation so that it could take effect before MDE issued a final State permit to MRA.

Following enactment of Bill 91-10, the County Council began to pressure MDE to halt again the State permitting process. Council President Wilson sent a copy of Bill 91-10 to MDE on 25 April 1991. MDE responded by stating that it would continue processing MRA’s application. On the same day, William G. Carroll, Harford County’s Director of Planning and Zoning since September 1986, told MRA that it was the County’s position that MRA’s property did not comply with the new requirements imposed by Bill 91-10. On 7 May 1991, Assistant County Attorney Jeffrey Blomquist advised *70MDE that MRA’s property no longer met County zoning requirements. Nevertheless, MDE granted MRA’s Gravel Hill property Phase II and Phase III approval, and, on 28 February 1992, MDE issued to MRA a permit to operate a rubble landfill at Gravel Hill, expressly conditioning the permit upon MRA’s compliance with all local land use requirements, thus leaving MRA to battle with the County in the present litigation.

MRA challenged administratively Harford County’s application of Bill 91-10 to MRA’s Gravel Hill property, claiming that effectively the Bill prevented MRA from operating a rubble landfill on the site and that, due to the property’s status as an industrial waste disposal facility and the fact that it had been mined extensively for natural resources deposits by a prior owner, MRA could not use the property for any purpose other than a rubble landfill and receive a reasonable economic return. Rejecting all of MRA’s claims, including zoning estoppel, the County Zoning Administrator and the County Zoning Board found that Harford County was not precluded from applying Bill 91-10 to the Gravel Hill property because the inclusion of a proposed rubble landfill in the SWMP, by itself, did not grant the applicant the final authority to operate that use at that site without the additional acquisition of a State permit. On judicial review sought by MRA of that decision sought by MRA, the Circuit Court for Harford County held, among other things, (1) that the evidence required to support a zoning estoppel claim is the same as that required to meet the vested rights test applied in Maryland, and (2) that, applying the vested rights test, MRA had no basis upon which to rely for its expenditures until after the permit was issued by MDE.

Prior to the Court of Special Appeals consideration of MRA’s appeal in the present case, we issued a writ of certiorari, 406 Md. 743, 962 A.2d 370 (2008), on our initiative, to consider, inter alia, whether the County is estopped, under principles of zoning estoppel, from applying the provisions of Bill 91-10 to MRA’s proposed operation of the rubble landfill on its property pursuant to its State-issued permit when, *71according to MRA, it purchased the property and expended considerable sums on engineering fees in justifiable reliance on the County’s approval of the Site Plan and SWMP approval during Phase I of MDE’s rubble landfill permitting process.

II. The Doctrine of Zoning Estoppel Generally

The most widely-accepted statement of the doctrine of zoning estoppel may be traced to a 1971 article, in which the following principle appears: “A local government exercising its zoning powers will be estopped when a property owner, (1) relying in good faith, (2) upon some act or omission of the government, (3) has made such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust to destroy the rights which he ostensibly had acquired.” David G. Heeter, Zoning Estoppel: Application of the Principles of Equitable Estoppel and Vested Rights to Zoning Disputes, 1971 Urb. L. Ann. 63, 66 (1971); Robert M. Rhodes, et al., Vested Rights: Establishing Predictability in a Changing Regulatory System, 13 Stetson L.Rev. 1, 3 (1983). See also Walter F. Witt, Jr., Vested Rights in Land Uses—A View from the Practitioner’s Perspective, 21 Real Prop. Prob. & Tr. J. 317, 319 (1986) (“The doctrine of equitable estoppel provides that the right to use or develop land cannot be infringed by legislative action when the owner or developer of such land has in good faith relied upon some act or failure to act by a governmental body and made a substantial change in position.”).

Where zoning estoppel is recognized and applied, the government “is prevented from applying any future incompatible, albeit legal, regulations to the property.” Kenneth R. Kupchak, et al., Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawai% 27 Hawaii L.Rev. 17, 18 (2004). See also 4 Arden H. Rathkopf, The Law of Zoning and Planning § 70.9 (2009) (“State courts may apply the principles of equitable estoppel to prevent the enforcement of otherwise applicable regulations where, under the specific facts of the cases involved, it would be inequitable for the restriction to be enforced.”); Lynn Ackerman, Comment: *72Searching for a Standard for Regulatory Takings Based on Investmentr-Backed Expectations: A Survey of State Court Decisions in the Vested Rights and Zoning Estoppel Areas, 36 Emory L.J. 1219,1256 (1987) (“When a city or county passes a zoning ordinance that invalidates a landowner’s intended use of his property, he may argue that the city or county should be estopped from enforcing the ordinance because of substantial expenditures he has made in reliance on the existing zoning of the property.”).

Regarding the underlying policy rationale for the doctrine of zoning estoppel, Heeter notes that “[t]he cases allowing zoning estoppel hold, in effect, that local governments while exercising their zoning powers are accountable for their actions if they lead reasonable men astray.” Heeter, supra, at 84. See also Ackerman, supra, at 1275 n. 22 (“The defense of estoppel is derived from equity and ‘focuses upon whether it would be inequitable to allow the government to repudiate its prior conduct.”) (quoting Heeter, supra, at 64-65). As stated by another commentator, “the policy underlying zoning estoppel is two-fold: hold the government to its commitments, and treat property owners who rely fairly.” Kupchak, supra, at 24.

Heeter identifies four categories of cases in which a zoning estoppel claim may arise, the second of which is pertinent to the instant case, namely, those cases in which “a property owner applies for a permit and initiates development before it is issued, relying on circumstances indicating a probability that it will be issued.” Heeter, supra, at 70. Such reliance may include a situation where the use or structure is permitted of right under the zoning ordinance or where a government official has assured the developer that he or she will be granted a permit. Id. at 70, 83.

In his article, Heeter explains the distinction between the doctrine of vested rights, which requires generally that a developer first obtain a permit before acquiring constitutionally protected rights in the property, and the doctrine of zoning *73estoppel, as well as the confusion of many courts (such as in Maryland) regarding the two principles and their terminology:

The defense of estoppel is derived from equity, but the defense of vested rights reflects principles of common and constitutional law. Similarly, their elements are different. Estoppel focuses upon whether it would be inequitable to allow the government to repudiate its prior conduct; vested rights upon whether the owner acquired real property rights which cannot be taken away by governmental regulation. Nevertheless, the courts seem to reach the same results when applying these defenses to identical factual situations.

Heeter, supra, at 64-65 (internal citations omitted). See also Kupchak, supra, at 20 (“Although usually treated by courts and many commentators as interchangeable, the theories of vested rights and zoning estoppel are doctrinally distinct.”) (internal citation omitted); Rhodes, supra, at 2 (“Although the doctrines of equitable estoppel and vested rights arise from distinct theoretical bases, Florida courts have employed these concepts interchangeably.”); Grayson P. Hanes and J. Randall Michew, On Vested Rights to Land Use and Development, 46 Wash. & Lee L.Rev. 373, 383 (1989) (“Zoning estoppel, like other forms of estoppel, arises out of equity and is derived from fundamental concepts of justice and fairness.”). Both “closely-related principles permit the government to retain flexibility in land use planning only if a property owner has not proceeded sufficiently along the development path that it would be unconstitutional or unfair to prevent it from completion.” Kupchak, supra, at 18. See also Ackerman, supra, at 1256 (“The primary purpose of the doctrine of zoning estoppel is to prevent a city or county from creating a situation in which it would be inequitable or unjust to permit it to negate what it has done or permitted to be done.”). Vested rights and zoning estoppel thus “counterbalance the government’s unfettered ability to use its police power to regulate land uses, providing some insulation of the land development process from shifting political winds” and “the vagaries of vindictive officials.” Kupchak, supra, at 18, 63. See also Ackerman, *74supra, at 1272 (noting that zoning estoppel “particularly applies when a municipality attempts to negate action that it has taken or permitted to be taken”).

Although key elements are roughly similar,6 important differences exist between the vested rights doctrine, in which the court must determine whether an owner has a “legitimate claim of entitlement” based on an “affirmative governmental act,” such as the issuance of a permit, and the doctrine of zoning estoppel, which concerns instead “whether the government has given official assurance” to the developer that construction has been approved and may proceed. Kupchak, supra, at 24-25 (noting that the courts’ tendency to collapse the “significantly different” doctrines of vested rights and zoning estoppel into one by “rationalizing that the two analyses rarely produce a different result” is a “gross oversimplification”). See also Hanes, supra, at 388 (noting that zoning estoppel depends on the “existence of a governmental act or omission,” while vested rights requires an “affirmative governmental act” such as the issuance of a permit).

Unlike the doctrine of vested rights, zoning estoppel “shifts the focus from the owner’s irrevocable commitments to the government’s process and whether it would be unfair to permit the government to exercise its regulatory power to change regulation after its act or omission has induced a property owner to alter its position in reliance.” Kupchak, *75supra, at 23-25 (“In a vested rights determination the focus is on the property owner’s expectations and fundamental rights, while in analyzing zoning estoppel the focus is on the government’s process and whether it induced the owner’s reliance.”). See also Ackerman, supra, at 1272 (“Although the vested rights doctrine emphasizes what the landowner has done, zoning estoppel examines the actions of both the landowner and the municipality.”). Thus, when considering a zoning estoppel claim, a court must first determine “whether the government has given official assurance to the developer that the proposed project may proceed, and whether the owner relied on the official assurance to its detriment.” Kupchak, supra, at 24. The key difference between the vested rights and zoning estoppel approaches then is one of timing, namely, determining “what government action in the development approval process gives a property owner the green light.” Id. at 25. See also, Ackerman, supra, at 1256 (“Although there are apparent similarities in the requirements of vested rights and zoning estoppel, the latter is really a more flexible test that emphasizes principles of equity, rather than specific points in time that trigger vesting.”). Once the government provides official assurances to the developer that construction may proceed, “the property owner is entitled as a matter of law to rely on that approval in making expenditures.” Kupchak, supra, at 48.

Commentators argue that strict reliance on the vested rights doctrine, under which a developer first must obtain a building permit and commence meaningful construction under the permit, “has been widely criticized, even by courts that apply it, because it provides for certainty too late in the process, does not forestall litigation, and maximizes the owner’s exposure to regulatory risk.” Id. at 26. Instead, allowing room for both vested rights and zoning estoppel claims “inject[s] a measure of certainty in an otherwise uncertain process and attempt[s] to minimize the risk that the rug can be pulled out unexpectedly from a property owner after the government has given the green light to a use and the owner has started down the path in reliance.” Id. at 63. On the *76desirability of recognizing the doctrine of zoning estoppel, Rathkopf notes:

Some states, notably Illinois, recognizing that some expenses, even very substantial ones, may necessarily be incurred in the prebuilding permit state of a land development project, have refused to follow the majority rule that expenditures incurred prior to the issuance of a building permit are of no avail. Those states have expressed the rule that to achieve a vested right which will be unaffected by the amendment of an ordinance, a landowner must have experienced a substantial change of position, expenditure, or increase of obligation either pursuant to a building permit or in reliance upon the probability of its issuance.

Rathkopf, supra, at § 70-19 (emphasis in original).

Regarding the question of good faith, Heeter notes that the court’s focus is upon “the mental attitude of the owner when he acted.” Heeter, supra, at 77. Thus, “the courts will find that a property owner acted in good faith if, knowing that rezoning was at least possible, he did not accelerate his development or increase his investment or obligations in an effort to establish such an apparent degree or amount of reliance as to prevent the rezoning.” Id. at 78. In other words, the owner must “act with honest intentions” and refrain from “deliberately [trying] to increase his equities in some way.” Id. at 78, 81. If the developer “has good reason to believe, before or while acting to his detriment, that the officials’ mind may soon change, estoppel may not be justified.” Rhodes, supra, at 4. See also Hanes, supra, at 398-99 (“Good faith ... means that the landowner proceeds with his proposed development plans in accordance with a governmental approval without knowledge of a pending change in the zoning ordinance.”).

In order to claim zoning estoppel, a plaintiffs reliance must be of a “substantial” nature. Heeter, supra, at 84. “Concern is for the economic hardship which the owner would suffer were the government allowed to have its way.” Id. Specifically) “[t]he substantial change in position element involves ex*77penditures of money, the irrevocable commitment of resources, and the acceptance of liabilities in reliance upon the governmental act.” Hanes, supra, at 400. In discussing what may constitute “substantial” expenditures, one commentator notes the numerous preparatory actions that developers must undertake before beginning construction:

As a practical matter, a landowner who seeks to develop his land incurs expense even in preparing to apply for a permit. Then, too, the larger the development project proposed, the greater the expense in conforming to the requirements for making an application. Even an application for a permit to build a structure conforming to all regulations and intended for a permitted use on an established lot must be accompanied by a plot plan and architectural plans and specification. Large-scale projects may require a change of zone or an application for a special permit, the preparation of an environmental impact statement, and public hearings. They can also involve the services of attorneys, planners, engineers, appraisers, and environmentalists, and can require approvals from various agencies before a building permit for the first structure can be applied for.

Rathkopf, supra, at § 70.19.

Heeter’s definition of zoning estoppel, or a definition that is substantially similar to Heeter’s definition, has been adopted by courts in Connecticut,7 Florida,8 Georgia,9 Hawaii,10 Illinois,*7911 South Dakota,12 and Utah.13

*80 III. Prior Consideration of the Doctrine of Zoning Estoppel in Maryland

In general, Maryland courts have utilized exclusively the doctrine of vested rights in analyzing allegations of local government reneging on prior approvals of land use proposals such as the present one. See, e.g., Rockville Fuel & Feed Co. v. City of Gaithersburg, 266 Md. 117, 124, 291 A.2d 672, 675-76 (1972) (noting that, under the traditional vested rights test, which would have the effect of constitutionally protecting a property owner against subsequent changes in the zoning laws “prohibiting or limiting [a particular] use, the owner must (1) obtain a permit or occupancy certificate where required by applicable ordinance and (2) must proceed under that permit or certificate to exercise it on the land involved so that the neighborhood may be advised that the land is being devoted to that use”) (quoting Richmond Corp. v. Bd. of County Commr’s, 254 Md. 244, 255-56, 255 A.2d 398, 404 (1969)).

Although we have not adopted previously the doctrine of zoning estoppel, the principles of equitable estoppel have been considered and applied by both Maryland appellate courts in claims brought against local governments in land use contexts. See Permanent Fin. Corp. v. Montgomery County, 308 Md. 239, 251-53, 518 A.2d 123, 129-130 (1986) (holding that, where a contractor relied on Montgomery County’s prior reasonable and debatable interpretation of the statutory phrase “nonhabitable structures” and constructed its building based on that interpretation and with a valid permit, it would be inequitable for the County Board of Appeals to apply a changed interpretation to require removal of the building’s fourth floor); Bd. of County Comm’rs v. East Prince Frederick Corp., 80 Md.App. 78, 88, 559 A.2d 822, 827 (1989) (noting that, in order to demonstrate the reliance element of an equitable estoppel claim against a municipality, the party relying must be “misled *81and change his or her position for the worse, believing and relying on the representations of the party sought to be estopped”); Biser v. Town of Bel Air, 991 F.2d 100, 104 (4th Cir.1993) (“Under Maryland law, equitable estoppel of a municipal corporation requires (1) an official act taken within the scope of authority; (2) an ambiguous statute or ordinance; and (3) detrimental reliance by a third party.”). At least one Maryland case recognized the “significant” distinction between the law of vested rights and the “related but clearly distinct law of zoning estoppel.” Town of Sykesville v. West Shore Commc’ns, Inc., 110 Md.App. 300, 330, 677 A.2d 102, 116 (1996).

Without adopting the doctrine of zoning estoppel, this Court nonetheless acknowledged a possible definition of the concept. In County Council of Prince George’s County v. Offen, 334 Md. 499, 639 A.2d 1070 (1994), we stated in a footnote:

“Zoning estoppel” is a doctrine under which, according to the jurisdictions that have embraced it, a local government will be estopped from exercising its zoning powers over subject property when a property owner, (1) relying in good faith, (2) upon some act or omission of the government, (3) has made such a substantial change in position or incurred such extensive expenses that it would be manifestly unjust to permit the government to destroy the rights of the property owner by subsequent regulation. We have never considered whether the doctrine should be applied in Maryland, and because of the limited scope of review of this case, we need not do so today.

Id. at 506 n. 4, 639 A.2d at 1073 (internal citation omitted). In Offen, we held that the Court of Special Appeals abused its discretion in raising, sua sponte, the doctrine of zoning estoppel (then an issue of first impression in Maryland), where it neither had been briefed nor argued in the trial or intermediate appellate court. Id. at 511, 639 A.2d at 1076. Thus, we did not reject for all time the doctrine of zoning estoppel in Maryland; rather, we stated that reaching a decision on its merits was inappropriate in the procedural posture of that case.

*82One year after Offen, the Court of Special Appeals attempted to resuscitate the doctrine of zoning estoppel as part of Maryland’s land use law. In Relay Improvement Assoc. v. Sycamore Realty Co., 105 Md.App. 701, 661 A.2d 182 (1995), the intermediate appellate court held that “the doctrine of zoning estoppel is applicable in Maryland” and adopted a “narrow version of the zoning estoppel doctrine ... best ... understood as a ‘bad faith’ exception to the vested rights rule.” Id. at 716, 721, 661 A.2d at 189, 192. In articulating its conceptualization of the doctrine, the court held that “a zoning estoppel may not be found unless (1) the local government acts, or fails to act, in an arbitrary and unreasonable manner, (2) with deliberate intent to delay construction, and (3) the conduct at issue is the primary and proximate cause of the landowner’s inability to vest his or her rights before a change in zoning occurs.” Id. at 736, 661 A.2d at 199. Regarding the first two elements, the panel noted that the fact finder “must conclude that the actor omissions of government officials were deliberately calculated ‘to deny a property owner his [or her] right to use this land in a currently lawful manner.’” Id. (quoting Pokoik v. Silsdorf, 40 N.Y.2d 769, 390 N.Y.S.2d 49, 358 N.E.2d 874, 876 (1976)).

In explaining its decision to adopt this particular rationale in Sycamore Realty, the intermediate appellate court posited that Heeter’s definition of zoning estoppel conflicted with Maryland’s stringent vested rights rule, which provides that “a landowner may rely on nothing less than a properly-issued permit, and that a substantial change in circumstances will not be found unless the landowner begins actual, above-ground construction.” Id. at 725, 661 A.2d at 194. The court, however, also observed that strict application of the vested rights rule “may sometimes be unjust or unreasonable.” Id. at 727, 661 A.2d at 194. Thus, the court explained it would adopt, as a supplemént to the vested rights doctrine, a narrow zoning estoppel doctrine which would focus not on the landowner’s good faith reliance, but on “the government’s arbitrary and unreasonable conduct, as well as the causal relationship be*83tween the government’s conduct and the landowner’s inability to proceed to actual construction.” Id.

Regretfully, in my judgment, this Court reversed, rejecting the narrow theory of zoning estoppel announced by the Court of Special Appeals. See Sycamore Realty Co., Inc. v. People’s Counsel of Baltimore County, 344 Md. 57, 684 A.2d 1331 (1996). The Court noted that “[a]ny decision whether we should enunciate some, still narrower theory of zoning estoppel need not be decided in the instant case.” Id. at 63, 684 A.2d at 1334. We stated that “we, like all of the other courts that have declined to adopt zoning estoppel ‘recognize a legal defense cast in terms of whether the property owner acquired ‘vested rights’ to use his land without governmental interference.’ ” Id. at 66-67, 684 A.2d at 1336 (quoting Heeter, supra, at 64). The zoning estoppel rule announced by the Court of Special Appeals, despite being narrower than the broader definition posited by Heeter, was not compatible, in the Court’s opinion, with Maryland’s vested rights rule. Id. at 69, 684 A.2d at 1337. The door was left ajar, however, for future consideration of zoning estoppel when we stated that “[wjhile there may be some, still narrower theory of zoning estoppel that may be compatible with our vested rights rule, we need not decide that issue today because the facts in this case do not raise any form of zoning estoppel that this Court would recognize.” Id.

In the next most recent consideration before the present one by a Maryland court of a zoning estoppel argument, the Court of Special Appeals (perhaps dis-spirited by this Court’s earlier rebuffs) noted simply, in a footnote, that zoning estoppel is not recognized in Maryland. P Overlook, LLLP v. Board of County Comm’rs, 183 Md.App. 233, 255 n. 4, 960 A.2d 1241, 1253 (2008). Rather, the court found, citing our decision in Sycamore Realty, that “Maryland courts analyze such issues in terms of vested rights, not zoning estoppel.” P Overlook, 183 Md.App. at 255 n. 4, 960 A.2d at 1253. The court nonetheless noted the earlier possible definition of zoning estoppel in Ojfen when it observed that:

*84“[ujnder the doctrine of zoning estoppel, a local government, acting in a governmental capacity, will be estopped to exercise its zoning powers over property when the property owner relied in good faith upon an act or omission of the local government and made ‘such a substantial change in position or incurred such extensive expenses that it would be manifestly unjust to permit the government to destroy the rights of the property owners by subsequent regulation.’ ”

Id. (quoting Offen, 334 Md. at 505 n. 4, 639 A.2d at 1073).

TV. The Right Time and the Right Case—The Present Case

MRA contends that the County should be estopped from applying its “newly” enacted zoning regulation, Bill 91-10, to MRA’s property and the intended rubble fill on Gravel Hill Road, based on the doctrine of zoning estoppel. It argues that the County reversed its stated policy that the County’s zoning approval was given coincident with Phase I of the State permit process, and that MRA relied upon this clear, succinct, and publicly-stated policy, along with the approval of its Site Plan and inclusion in the SWMP, to its detriment in purchasing the Gravel Hill property and expending substantial sums on engineering fees after it received County zoning approval. MRA also maintains that its reliance on the Site Plan and SWMP approvals was reasonable and in good faith, and that it would be unfair to require MRA to have foreseen, prior to the time it purchased the Gravel Hill property, that Council President Hardwicke would resign from the Council, that Mr. Wilson would be appointed to take his place as President, that President Wilson would be opposed to MRA’s rubble landfill, and that Council members Wilson and Parrott would join him in actions to reverse the County’s policy and effectively revoke MRA’s Site Plan approval though the enactment (and attempted application to MRA’s property) of Bill 91-10. Finally, MRA claims that, based upon this reliance, it proceeded to undertake “substantial” obligations, namely, spending over a million dollars on the purchase of the Gravel Hill property and *85on engineering fees required to proceed through the State permitting process.

As a threshold matter, I believe that this Court should adopt in this case the principles of zoning estoppel expressed by Heeter and as followed in a number of our sister states. I maintain that our decision in Sycamore Realty, where we rejected the Court of Special Appeals’s proposed narrower definition of zoning estoppel and held that Heeter’s definition of zoning estoppel conflicted inherently with our strict doctrine of vested rights, misunderstood the key doctrinal distinctions between zoning estoppel and vested rights. As noted supra, the doctrine of vested rights has its foundations in common law and constitutional law and is designed to address situations where a property owner seeks constitutional protection from the local government’s attempts to revoke a previously issued permit or approval. The central question in such a case concerns whether the holder of the permit or approval acquired a “legitimate claim of entitlement” to the permit or approval, based on its justifiable reliance and expenditures, such that its rights to the permit or approval are constitutionally protected. On the other hand, where the local government or authorities expressed specifically their approval of a proposed project and gave their “official assurances” that construction may proceed, the doctrine of zoning estoppel, with its foundations in notions of equity and fairness, should be available to the plaintiff who relies upon such affirmative actions by the government in undertaking substantial expenses and obligations necessary to a separate state permitting process. The two doctrines can co-exist in Maryland.

Zoning estoppel relieves the occasional otherwise harsh and unfair results that the strict application of the vested rights doctrine would tolerate. Here, MRA was required, as part of the State permitting process, to obtain County zoning approval and expend significant sums on the land purchase price and engineering fees, prior to proceeding to MDE’s Phases II and III. Once MRA undertook those significant obligations, relying in good faith on the affirmative assurances of the County and its officials, it should be afforded some protection against *86abrupt political shifts and resultant mere change of heart that seeks to prevent the development of its property in accordance with the State-issued permit. Requiring MRA first to obtain a permit, which, by State statute, could not be issued until attendant expenses were undertaken, as a prerequisite to protection under the vested rights rule is unfair. This case demonstrates the necessity and desirability of adopting the doctrine of zoning estoppel for Maryland to protect plaintiffs who must obtain approval at the County level as a preliminary to the State permitting process. As such, I would adopt Heeter’s definition of zoning estoppel in Maryland.

Applying Heeter’s definition to the present case, in order to estop the County from applying the provisions of Bill 91-10 to its Gravel Hill property, MRA must demonstrate that it relied in good faith upon some act or omission of the County and made “such a substantial change in position or incurred such extensive obligations and expenses that it would be highly inequitable and unjust” to frustrate its plan. Concerning the “act or omission” element, the County indeed appears to have had a well-established and publicly-stated policy of approving zoning compliance at the County level during Phase I of the MDE permitting process in order to save the applicant the time and expense of proceeding too deeply into the expensive and time-consuming State-issued permit process only to discover that the proposed use would not be acceptable under County land use regulations. In addition, MRA notes that the County Council voted to include the Gravel Hill property in the County’s SWMP, subject only to fulfillment ultimately of the stated conditions, to approve the rubble fill Site Plan for the property, and that Harford County officials encouraged otherwise MRA to proceed with construction of the landfill. Such actions certainly constitute “official assurances” by the County to MRA, that MRA fulfilled the requirements for County approval of its landfill, and that it could proceed to undertake the expenses and obligations necessary to advance through Phase II and III of the MDE permitting process, assuming that it could meet the State’s technical requirements.

*87Regarding good faith, there exists no evidence in the record to suggest that MRA “deliberately tried to increase its equities in some way.” It incurred the expenses it alleges after it received approval of the Site Plan and following inclusion of the Gravel Hill property in the SWMP, and apparently undertook the obligations and costs only as necessary to proceed to Phase II and III of the state permitting process. As such, MRA relied in good faith upon the assurances given by the County when it expended the money to purchase the Gravel Hill property and for the engineering fees required in order to complete the State permitting process.

It is clear that MRA’s reliance in this case was of a substantial and extensive nature. Although there are no hard and fast rules about what amount constitutes a “substantial” expenditure, it is clear to me that MRA’s purchase of the property and the incurring of significant engineering fees was “substantial.”

Finally, because zoning estoppel is grounded in equity, I would conclude that it would be “highly inequitable and unjust” to allow the County to apply Bill 91-10 to MRA’s property and proposed rubble landfill, essentially preventing it from operating the landfill at all. Only the change in the makeup of the County Council (and attendant change of political mind), and the Council’s concerted efforts to reverse its previously stated policy of giving local zoning approval during Phase I, prevented MRA from proceeding with establishment of the intended use. I agree with MRA that it would be “highly inequitable and unjust” to require it to have foreseen, when it undertook to purchase the property and incur the engineering fees, the subsequent chain of events that lead it to the position in which it found itself.

V. Conclusion

The doctrines of vested rights, as applied in Maryland, and zoning estoppel, as envisioned by Heeter, are not, in my opinion, mutually exclusive or incompatible. The two doctrines may exist in tandem and apply to different types of situations. Where a plaintiff seeks constitutional protection *88against a local government’s attempt to revoke a permit and construction commenced under the permit, analysis under the vested rights doctrine is appropriate. Where, however, the local authorities have provided express and official assurances to a plaintiff regarding approval of its plans, zoning estoppel prevents a later purely political change of heart and frustration of the approved activity by the local government, so long as the plaintiff relied in good faith and incurred significant expenses or obligations in reliance on the officials’ assurances. The present case is a strong example of the necessity for the doctrine of zoning estoppel in Maryland to protect property owners and others who rely on the affirmative assurances of local government. Thus, I disagree with the Majority opinion and would hold, in reversing the judgment of the Circuit Court for Harford County, that (1) the doctrine of zoning estoppel, as expressed by Heeter, is viable in Maryland, and (2) under the principles of zoning estoppel, the County should be es-topped from applying the provisions of Bill 91-10 to MRA’s Gravel Hill property and the proposed rubble landfill to be established there. Accordingly, I dissent.

Chief Judge BELL authorizes me to state that he joins in this dissenting opinion.

Opinion by

ADKINS, Judge.

On Motion For Reconsideration

Maryland Reclamation Associates (“MRA”), has filed a Motion for Reconsideration requesting that we reconsider that portion of our decision relating to zoning estoppel, which has been opposed by Harford County. MRA argues that we ignored evidence showing that it substantially relied in good faith on Harford County’s vote to include the subject site in the County’s Solid Waste Management Plan. MRA claims that there “was substantial evidence of the dates field work was performed, reports and addenda were submitted, and meetings with [the Maryland Department of the Environment] were held.”

In support of this contention, MRA offers new citation to record extracts from previous appeals, which were not in the *89record extracts for this case, and were not mentioned in the briefs, contending: “References were consistently made in the Joint Record Extract in this case to various documents referring back to the record extracts from the prior two cases with the designation E-l and E-2.” As support for this latter assertion, MRA cites to E. 515-16. These two extract pages simply contain statements by counsel that they were entering into evidence seven volumes of the record extracts from earlier appeals, known as “MRA F and “MRA II.” Counsel did not say, on these pages, that the records from these cases were introduced into evidence to show detrimental reliance. Indeed, these pages say nothing about why the record extracts were introduced. Accordingly, even if MRA had pointed in the briefs to E. 515-16 of this case, which it did not, careful review of those pages would give us no hint that these other record extracts had evidence pertaining to MRA’s claim of reliance.

As we said in the opinion, “MRA has the responsibility to support its factual assertions by citing pages of the record extract. See Md. Rule 8-504(a)(4).” Op. at 61 n. 13, 994 A.2d at 878 n. 13. In ACandS, Inc. v. Asner, 344 Md. 155, 192, 686 A.2d 250, 268 (1996), Judge Rodowsky, writing for the Court, refused, on a Motion for Reconsideration, testimony contained in depositions which were not contained in the five volume, 2,437 page, joint record extract, explaining

The liberalizing provision ... in Rule 8-501(c) does not excuse the failure to furnish in the brief references to factual material in support of a party’s argument as required by Rule 8-504(a)(4). Nor does the liberalization in Rule 8-501(c) alter the fundamental rule of appellate practice under which the appellate court has no duty independently to search through the record for error.

Id. (footnote deleted); see also State Roads Comm’n v. Halle, 228 Md. 24, 26-27, 178 A.2d 319, 320 (1962) (holding that the Court had no obligation to search large record extract);1 *90Pulte Home Corp. v. Parex, Inc., 174 Md.App. 681, 760, 923 A.2d 971, 1016 (2007) (stating “We decline to comb through the eight-volume, 3,876-page record extract to ascertain information that Parex should have provided[.]”).

Here, MRA apparently expected that the Court would have searched six volumes of record extracts from previous cases, in addition to the four volumes in the current cases (Nos. 143 and 144), to find evidence that was not referred to in its brief. This is not a realistic expectation, and we decline to consider the evidence from these other records at this late date. We hasten to say, however, that in declining to consider this newly proffered evidence, we do not suggest that, had we considered that evidence, our conclusion on the zoning estoppel issue would be different. As we state in the opinion, “Maryland has maintained a stricter stance than most other states in protecting government’s right to downzone in the face of planned construction[,]” and we approach zoning estoppel with “utmost caution.” Op. at 57-58, 994 A.2d at 875-76.

The other contentions advanced by MRA in its Motion for Consideration are already addressed in our original Opinion.

The Court will correct its majority opinion on page 63-64, 994 A.2d at 879, to say that it searched the “record extract,” not the entire “record.”

For these reasons, Petitioner’s Motion for Reconsideration is denied.

Chief Judge BELL and Judge HARRELL did not participate in the consideration of this opinion.

. Harford County Bill 91-10 imposes certain minimum lot size and setback requirements that Appellant contends its property and proposed use cannot meet.

. According to the record, Council members Hardwicke, G. Edward Fielder, J. Robert Hooper, and Frederick Hatem voted to include Gravel Hill in the SWMP and ihe Site Plan. Council members Risacher and Joanne Parrott abstained, citing the need for more information on asbestos disposal and the presence of three rubble landfills competing in operation at one time. Council member John Schafer abstained because his son is MRA’s President.

. The record reflects that, in January 1990, Council President Hardwicke resigned to accept a position as the first Chief Administrative Law Judge of the newly formed State Office of Administrative Hearings. The Council appointed Jeffrey Wilson to fill the vacancy left by Council President Hardwicke's departure. Council President Wilson retained his position by winning the November 1990 general election for Council President.

. At the final vote on Resolution 4-90, Council members Schafer, Fielder, and Hooper abstained, the latter on advice from the Ethics Board because he was a principal in Harford Sanitation, a trash collection business. Council members Hatem, Risacher, Parrott, and Wilson voted to adopt the resolution.

. By this point, the makeup of the Council had shifted considerably from those persons who served when the 14 November 1989 approvals were given. Apparently, the fact that the prior County Council members voted to include the Gravel Hill proposal in the SWMP contributed to the outcome in the November 1990 election. Following that election, the County Council consisted of Council President Wilson and Council members Parrott, Susan Heselton, Theresa Pierno, Barry Glassman, Robert Wagner, and Philip Barker.

. One commentator explains that the "common factors considered by courts in applying either the doctrine of equitable estoppel or the rule of vested rights" include the following:

1. The existence of a governmental act, such as approval of a zoning request or the granting of a building permit;
2. Whether the property owner or developer acted in good faith without knowledge that new or changed regulations would affect his expectations or plans;
3. Whether the property owner or developer made substantial investments or incurred obligations in pursuing the development in reasonable reliance upon a governmental act; and
4. Whether any rights acquired by the owner or developer were so substantial that it would be fundamentally unfair to allow the government to prohibit or infringe on these rights.

Witt, supra, at 320-21.

. See West Hartford v. Rechel, 190 Conn. 114, 459 A.2d 1015, 1019 (1983) (noting that a municipality may be estopped from enforcing its zoning regulations when two elements are present: “the party against whom estoppel is claimed must do or say something calculated or intended to induce another party to believe that certain facts exist and to act on that belief; and the other party must change its position in reliance on those facts, thereby incurring some injury”) (quoting Zoning Comm’n v. Lescynski, 188 Conn. 724, 453 A.2d 1144, 1148 (1982)).

. See Villas of Lake Jackson, Ltd. v. Leon County, 796 F.Supp. 1477, 1489 (N.D.Fla.1992) (holding that “equitable estoppel may create rights to obtain permits if the owner expends significant sums of money in reliance upon existing Zoning and Preliminary approvals obtained from the regulatory governmental body even though final approvals have not yet been obtained”); Hollywood Beach Hotel Co. v. City of Hollywood, *78329 So.2d 10, 15-16 (Fla.1976) (adopting Heeter’s definition of zoning estoppel and rejecting the defendant’s "contention that the doctrine [of equitable estoppel] is inapplicable where actual physical construction has not yet begun”); Jones v. First Virginia Mortgage and. Real Estate Investment Trust, 399 So.2d 1068, 1074 (Fla.Dist.Ct.App.1981) (holding that a claim of zoning estoppel may be viable "where one with a legally recognizable interest in property (1) has made such a substantial change in his position, (2) in good faith reliance upon some act or omission of the government, that it would be highly inequitable and unjust to destroy (3) the rights he has acquired” and noting that a municipal government may be estopped "if the change of position is induced by an official act performed under circumstances giving rise to a reasonable conclusion that the government knew or should have known that its act would be relied upon in that very manner”); Town of Largo v. Imperial Homes Corp., 309 So.2d 571, 573 (Fla.Dist.Ct.App.1975) (suggesting that neither obtaining a building permit nor making physical changes in the land in reliance on the existing zoning is a condition precedent to a claim of zoning estoppel, acknowledging that "[a] citizen is entitled to rely on the assurances and commitments of a zoning authority and if he does, the zoning authority is bound by its representations, whether they be in the form of words or deeds,” and noting that "the theory of [zoning] estoppel amounts to nothing more than an application of the rules of fair play”).

. See Barker v. County of Forsyth, 248 Ga. 73, 281 S.E.2d 549, 552 (1981) ("Where a landowner makes a substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon an existing zoning ordinance and the assurances of zoning officials, he acquires vested rights and is entitled to have the permit issued despite a change in the zoning ordinance which would otherwise preclude the issuance of a permit.”); North Georgia Mountain Crisis Network, Inc. v. City of Blue Ridge, 248 Ga.App. 450, 546 S.E.2d 850, 852 (2001) ("The principle of equitable estoppel is applied to determine whether ‘the landowner, relying in good faith upon some act or omission of the government, has made a substantial change in position or incurred such extensive obligation and expenses that it would be highly inequitable and unjust to destroy the rights he has acquired.’ ”) (quoting Cohn Cmtys. v. Clayton County, 257 Ga. 357, 359 S.E.2d 887, 889 (1987)).

. See County of Kauai v. Pac. Standard Life Ins. Co., 65 Haw. 318, 653 P.2d 766, 772 (1982) (noting the distinction between zoning estoppel and vested rights rules and stating that "[e]stoppel focuses on whether it would be inequitable to allow the government to repudiate its prior conduct; vested rights upon whether the owner acquired real property rights which cannot be taken away by government regulation”) (quoting Allen v. City and County of Honolulu, 58 Haw. 432, 571 P.2d 328, 329 (1977)); Life of the Land, Inc. v. City Council of City & County of Honolulu, 61 Haw. 390, 606 P.2d 866, 902 (1980) ("The doctrine of equitable estoppel is based on a change of position on the part of a land developer by substantial expenditure of money in connection with his project in reliance, not solely on existing zoning laws or on good faith *79expectancy that his development will be permitted, but on official assurance on which he has a right to rely that his project has met zoning requirements, that necessary approvals will be forthcoming in due course, and he may safely proceed with the project.”); Denning v. County of Maui, 52 Haw. 653, 485 P.2d 1048, 1051 (1971) (holding that a zoning estoppel plaintiff "must show that [he or she] ha[s] been given assurances of some form by [the County] that [his or her] proposed construction met zoning requirements” and that he or she “had a right lo rely on such assurances”).

. See Pioneer Trust and Savings Bank v. County of Cook, 71 Ill.2d 510, 17 Ill.Dec. 831, 377 N.E.2d 21, 26 (1978) (observing the general rule that, "where there has been a substantial change of position, expenditures or incurrence of obligations made in good faith by an innocent party under a building permit or in reliance upon the probability of its issuance, such party has a vested property right and he may complete the construction and use the premises for the purposes originally authorized, irrespective of subsequent zoning or a change in zoning classifications”) (quoting People ex rel. Skokie Town House Builders, Inc. v. Village of Morton Grove, 16 Ill.2d 183, 157 N.E.2d 33, 37 (1959)); Cos Corp. v. City of Evanston, 27 Ill.2d 570, 190 N.E.2d 364, 367-68 (1963) (stating the "well-followed rule” that "plaintiff’s substantial change in position by expenditures in reliance upon the probability of the issuance of a building permit, based upon the existing zoning ordinance and the assurances of the city officials, entitles it to issuance of the permit”). In Cos Corp., the Supreme Court of Illinois explained the rationale behind its recognition of the doctrine of zoning estoppel:

Where an individual or corporation expends substantial sums relying on the then existing zoning and zoning ordinances and proceeds to seek a permit in compliance with them, it would be a grave injustice to allow municipal officials to hold up action on issuance of a building permit until an amendatory ordinance could be passed changing the standards to be met so that a permit formerly lawful would now not be issued due to an abrupt change in the law.

Cos Corp., 190 N.E.2d at 368.

. See Even v. City of Parker, 597 N.W.2d 670, 675 (S.D.1999) (holding, based on equitable estoppel principles, that a municipality "may not, through its agents, affirmatively create an objectively reasonable impression in an applicant that he has fully complied with all zoning requirements and then proceed to withdraw permission after the applicant has taken steps towards construction which result in a substantial detriment to the applicant").

. See Fox v. Park City, 200 P.3d 182, 191 (Utah 2008) (noting the "well-established” doctrine of zoning estoppel and holding that the doctrine "estops a government entity from exercising its zoning powers to prohibit a proposed land use when a property owner, relying reasonably and in good faith on some governmental act or omission, has made *80a substantial change in position or incurred such extensive obligations or expenses that it would be highly inequitable to deprive the owner of his right to complete his proposed development”) (quoting Western Land Equities, Inc. v. City of Logan, 617 P.2d 388, 391 (Utah 1980)).

. In State Roads Comm’n v. Halle, 228 Md. 24, 26-27, 178 A.2d 319, 320 (1962), this Court said

*90In its statement of facts and in its argument, when referring to facts and/or objections to evidence, sometimes the location thereof in the record extract is given and at other times not, with little, if any, attempt being made to pin point in the record extract where and in what mode objections were properly reserved for decision on appeal. With a record extract of more than 300 pages, this places an undue burden upon the Court (and also violates Maryland Rule 831(c)(3)) by necessitating, if the questions are to be answered, an attempt to piece together, from the whole record extract, what the questions are, and whether they have been sufficiently reserved for decision.