Gaithersburg residents vow to continue suit

GAITHERSBURG – The plaintiff in a lawsuit against the Gaithersburg city government has pledged to modify and refile his suit after being dealt a legal setback last week.

Aaron Rosenzweig, a Gaithersburg resident who has testified several times before Mayor Jud Ashman and the City Council and founded the website with the goal of increasing civic involvement, filed suit on Feb. 1 against Gaithersburg with regard to a vote taken by the Council on Dec. 19. On that date, the council passed two resolutions authorizing the annexation of the Johnson Property, an area near the intersection of Darnestown Road and Quince Orchard Boulevard and authorizing City Manager Tony Tomasello to execute an agreement to develop the property for mixed-zone commercial and residential development. Because of the absence or recusal of most of the five-member council, Council Vice President Neil Harris and Council member Michael Sesma passed both resolutions with a 2-0 vote.

Rosenzweig’s suit sought a writ of mandamus compelling the city to annul the vote. Arguing that the vote was taken illegally, Rosenzweig cited Section 9 of the City charter, which states:  “A majority of the council shall constitute a quorum for the transaction of business, but no ordinance shall be passed, except an ordinance adopting the annual budget, without a majority of the whole number of members elected to the council.”

Gaithersburg City Attorney N. Lynn Board has defended the vote, stating in a memo dated Jan. 9: “Sec. 9 of the Charter does further provide that no ordinance, with the exception of the budget ordinance, may be approved without the favorable votes of a majority of the whole number of the members elected to the council, or, in other words, without 3 favorable votes. While this provision absolutely applies to ordinances, it does not apply to resolutions. Therefore, if a quorum exists, a resolution may be approved by a majority of the Councilmembers present.”

On March 20, the city filed a motion to dismiss the lawsuit, which Judge Anne K. Albright heard arguments on on May 10.

Albright stated at the beginning of the hearing that she would not consider the motions to intervene on Rosenzweig’s behalf filed by several Gaithersburg residents living near the property who have cited density and quality-of-life concerns or the motion to intervene on the city’s behalf filed by Johnson Family Enterprises and Three Amigos Real Estate. Albright concurred with board that Rosenzweig, who lives some two miles away from the development site, had not demonstrated in his complaint why he had standing to bring the suit and whether a writ of mandamus was appropriate. She granted the city’s motion to dismiss but did so without prejudice, allowing Rosenzweig the maximum 30 days under law to amend the lawsuit.

“My mistake was not going to my neighbors first to ask if they would be co-plaintiffs,” Rosenzweig said after the ruling. “We are actively engaging expert legal advice ... An ordinance is defined as either a piece of legislation that changes the laws of the land or an authoritative order. Because this annexation takes jurisdiction of land away from Montgomery County and places it into the authority of the City of Gaithersburg, it effectively changes the laws of the land. The county has a different body of rules and law than the city, which is why it appears obvious to us that an annexation is an ordinance. Likewise, the annexation brings with it a change in zoning which would change the number of homes that could be built from 30 to 180 on roughly 14 acres. During the first hearing of this case, the city said that an annexation is not an ordinance but didn’t go into any detail as to why they feel this way. According to the city charter, even the approval of the annual budget is considered an ordinance and that is the only ordinance that does not require three votes of the council via an explicit exception in the city charter.”

Since we thought our argument was so sound and we have so many people and communities involved, that this alone would carry the day,” said Steve Lawrence, a Gaithersburg resident who testified against the annexation before the City Council several times and wrote a letter to the State’s Open Meeting Compliance Board in protest of the Dec.19 vote. “We were in error, and so we need to do a better job of having legal counsel review and provide the Court an amended argument. We are not frustrated.  We feel bad that we are such novices at doing this and appreciate the Court’s and the Defense’s patience. We are also vigilant and want to do all the right things and see this through for the betterment and quality of life for all involved.”

“We will wait and see what their amended complaint looks like and then decide if we will file another motion to dismiss,” Board said. “We can’t comment on it until we see the new suit.”



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