Gaithersburg moves to dismiss lawsuit

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GAITHERSBURG – The City of Gaithersburg has filed a motion to dismiss a lawsuit brought by a resident who believes a vote to annex land into the city was carried out illegally.

On Dec. 19 of last year, Mayor Jud Ashman and the City Council took up resolutions approving the annexation of the Johnson Property, an area of land near the intersection of Darnestown Road and Quince Orchard Boulevard, authorizing City Manager Tony Tomasello to execute an agreement to develop the area, which has been slated for mixed-zone commercial and residential use.

The council at the time was operating at reduced capacity following the death of longtime Council member Henry F. Marraffa two months prior. The Council appointed Yvette D. Monroe to serve the balance of Marraffa’s term earlier this year. Council member Ryan Spiegel, who was suffering from strep throat, was also absent from the meeting. Moreover, Spiegel had indicated that he would recuse himself from the vote after learning that his employer, the Bethesda law firm Paley Rothman, had a business relationship with one of the prospective property developers.

Council member Robert Wu noted that numerous residents had voiced objections to the development, citing concerns about density and other quality-of-life issues. He argued that the matter was too important to pass with a weak majority of the council and suggested tabling the discussion until Maraffa’s replacement was selected and sworn in. After this proposal received no support, Wu left the council meeting, depriving the council of the necessary quorum to conduct its business.

Spiegel, who had been watching the meeting on television at his home, drove to City Hall and formally announced that he would recuse himself from the discussion and vote on the annexation resolutions. According to City Attorney N. Lynn Board, Spiegel’s presence re-established a quorum, and City Council Vice President Neil H. Harris and Council member Michael A. Sesma voted in favor of both resolutions, passing them 2-0. (Ashman does not cast a vote or break ties on the council.)

Aaron Rosenzweig, a Gaithersburg resident who has testified before Jud Ashman and the council and founded the website as a means of increasing public involvement in city affairs, argued that the resolutions passed illegally. In a letter dated Jan. 26 addressed to Attorney General Brian E. Frosh, 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.” Rosenzweig argued that under this statute, the resolution would have been invalid even had Wu remained at the Oct. 19 meeting and the annexation resolutions passed 2-1.

On Feb. 1, Rosenzweig filed suit in Montgomery County Circuit Court seeking a writ of mandamus to declare the annexation invalid.

Board has defended the vote, stating in a Jan. 9 memo, “Resolutions are not subject to the same formalities for approval as are ordinances as they do not create laws. State law, §§4-401 et seq. of the Local Government Article of the Annotated Code of Maryland, provides that annexations by municipalities are to be to be approved via an annexation resolution. Annexation resolutions are subject to introduction and public hearing after notice requirements, which are delineated by state law instead of the City Code.

Annexation resolutions are not subject to the Mayor’s veto powers.

The City Code, at Sec. 9, does address what constitutes a quorum of the Council, stating, ‘A majority of the members of the council shall constitute a quorum for the transaction of business. . . .’ This definition is in accordance with Robert’s Rules of Order, which provide that a quorum is a majority of the entire membership of a body. As a result, a quorum of the Council is present when 3 or more of the Council members are present. Robert’s Rules further clarifies that a quorum refers to the number of members present, not the number actually voting on a particular question. As a result, for the City Council, the quorum requirement is met if three Councilmembers are present, regardless of how many Councilmembers vote on particular agenda items.

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 exits, a resolution may be approved by a majority of the Councilmembers present.

Robert’s Rules is also very clear that members of a body cannot be compelled to vote on any item and may abstain or recuse themselves from voting. Based on the above analysis, it is my opinion that a quorum of the Council was present when the City Council considered the two Resolutions related to the Johnson Annexation as three Councilmembers were present. It is also my opinion that the votes on the Resolutions were conducted in accordance with the requirements of the City Charter and state law as two Councilmembers voted for approval, and, as such, constituted a majority of the quorum present.”

On March 20, Gaithersburg filed a motion to dismiss the suit. “The City of Gaithersburg continues to aggressively defend this lawsuit and firmly believes that its approval of the Johnson annexation was procedurally correct,” Board said.

“Concisely, the city wants to dismiss the case because:  1,  I don’t live close enough to the annexation so I cannot possibly be injured. I don’t have ‘standing.’ 2, I did not provide anything for the Judge to sign so there is nothing actionable,” Rosenzweig said.  “With respect to number one there are now 30 signatures (most from different households) in the Willow Ridge community adjacent to the annexation. They have signed on as “intervenors” which makes the case have standing. With respect to number two, I have now provided a document for the judge to sign. Not only does it say that the annexation is invalid, but that there will be no re-vote since they had a quorum but it failed to get the minimum number of votes to pass. Because 3 affirmative votes were not obtained, the annexation failed to gain momentum.” 

Rosenzweig said that this week he intended to file a proposed action order for a judge to sign declaring the annexation invalid, as well as a response to the city’s motion to dismiss the suit. The court has not set a hearing date for the lawsuit.



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