GAITHERSBURG – A controversial vote to annex property in the city is now a case before the county courts.
Aaron Rosenzweig, a Gaithersburg resident who has testified about various issues many times before Mayor Jud Ashman and the City Council and founded the website teamgaithersburg.org, filed a complaint in Montgomery County Circuit Court on Feb. 1 alleging that a vote to annex new property into the city was carried out illegally and asking that the vote be rescinded.
On Dec. 19, the City Council took up resolutions approving the long-planned 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, which has been slated for mixed-zone commercial and residential use.
The council at the time was operating at reduced capacity, with the absence of Council members Henry F. Marraffa, Jr., who died on Oct. 18, and Ryan Spiegel, who was suffering from strepthroat. Spiegel had indicated that he would recuse himself from the final discussions and vote on the project after learning that his employer, the Bethesda-based law firm Paley Rothman, had a business relationship with one of the applicant developers.
Council member Robert Wu expressed misgivings about the proposed development, noting that many residents living near the area had conveyed concerns about density and other matters. He argued that the issue was too important to be settled by a weak majority vote and suggested tabling the discussion until Marraffa’s replacement was chosen and sworn in. When this proposal received no support, Wu walked out of the meeting, denying the council the necessary quorum – or majority of total members – to conduct business.
Spiegel, who had been watching the meeting on television at home, drove to City Hall and formally announced that he was, in fact, recusing himself from the discussion and vote. According to City Attorney Lynn Board, his presence re-established the quorum, and Council Vice President Neil Harris and Council member Michael Sesma voted in favor of the resolutions, passing them 2-0.
Rosenzweig’s suit alleges that even though the council had the necessary quorum of three voting members present, the vote nonetheless violated 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.”
“The City Council has been skirting the law for a long time,” Rosenzweig said. “As the years go by they are getting more flagrant in their abuse of power and process. Right now, they don’t even care that they are violating the city charter! This is an all new low. By slapping their wrists hard, maybe the council will start taking citizens more seriously.”
Rosenzweig has also written to County Executive Ike Leggett and Attorney General Brian E. Frosh and consulted with Robin Ficker, an attorney and activist who successfully sponsored a term limits ballot initiative in last fall’s election.
Other residents have also questioned the legality of the vote. Steve Lawrence, who testified against the project repeatedly, wrote a letter to state’s Open Meetings Compliance Board, arguing that the Dec. 19 vote was carried out in violation of city and state law. Lawrence said he supports Rosenzweig’s efforts and that the suit will be worthwhile even if it results in the annexation’s passage with a clear majority of the council.
“I think the city should start thinking about their citizens and the people who voted them into their offices by starting to abide by their own rules.” Heck maybe they will even start to listen to the 600-plus families near this property being annexed who have been communicating that they are not in favor. Yes, a small victory but maybe, just maybe, this will set a precedent and a path for going forward.”
The board has defended the vote and issued a memo last month stating that resolutions are not subject to the same formalities as ordinances as they do not create laws and that Spiegel’s presence provided the necessary quorum for the resolution’s passage.
“The City of Gaithersburg is confident that its approval of the Johnson Annexation complied with Maryland law as well as the City Code and will aggressively defend its actions in court if suit is filed,” Board said.
If the vote is rescinded and reconsidered, with council members holding to their original positions, Harris and Sesma in favor, Wu opposed, and Spiegel recused, the decisive vote would fall to Yvette Monroe, who was chosen by the council to serve the balance of Marraffa’s final term and will be sworn in this week. (Ashman does not cast a vote or break ties on the council.)
“Should the Johnson Annexation issue come before the Mayor and City council again, I would need to study the matter prior to taking a position,” Monroe said.