GAITHERSBURG – A lawsuit concerning a controversial annexation will have its day in court. On December 19 last year, Mayor Jud Ashman and the City Council took up two resolutions concerning 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 use.
Council Member Robert Wu, citing public concern over density and other factors, argued that the vote should be taken by a majority of the Council. He suggested tabling the discussion and vote until the Council had chosen a successor to serve the balance of late Council Member Henry F. Marraffa’s term. When this proposal received no support, Wu walked out of the council meeting, leaving Ashman, who does not cast a vote, Council Vice President Neil Harris and Council member Michael Sesma without the necessary quorum to conduct city business. Council Member Ryan Spiegel, who was absent due to illness, drove to City Hall and formally announced that he was recusing himself from the discussion because his employer, the Bethesda-based law firm Paley Rothman, had a business relationship with one of the prospective developers. According to City Attorney N. Lynn Board, Spiegel’s presence re-established a quorum and Harris and Sesma passed the resolutions 2-0.
Aaron Rosenzweig, a civic activist in Gaithersburg who founded the website teamgaithersburg.org, filed a lawsuit in Montgomery County Circuit Court on February 1alleging that the vote was taken illegally. Rosenzweig’s suit argues that the vote violated Article 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.” The suit seeks a writ of mandamus requiring the city to annul the vote.
On March 20, Gaithersburg filed a motion to dismiss the suit. Board has defended the December 19 vote, stating in a January 9 memo: “Resolutions are not subject to the same formalities for approval as are ordinances as they do not create laws… [I]t 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 April 3, Rosenzweig filed a motion opposing the city’s motion to dismiss the suit and sent the court a written response.
“I have a right to be concerned about the character of my city. I think small cities are better than large ones,” Rosenzweig wrote. “I have a right to be concerned about traffic. The roads were designed with a certain capacity. If this is exceeded, the system itself may need to have its scale changed. Scale is not a matter of adding a street or a turn lane, it is a matter of enlarging the overall structure. Doing this could increase my taxes and change the character of my city. I have a right to be concerned about the character of the infrastructure of my city, the police department, the fire department, the facilities offered to citizens, the services offered, the utilities, and the personal treatment I get. If things enlarge, the infrastructure may have to be enlarged. This could increase my taxes in substantial degree. Further, a larger city could lead to arguments that city employees should be paid more, leading to even more increases in taxes. I have a right to be concerned about any bureaucratic characteristics of my city becoming larger. I think bureaucracies are generally inefficient and unresponsive. These are negatives for the whole city. I have a right to be concerned about precedent. If the city can ride roughshod over this rule now, then it can do the same again and for other rules, some of which I may not know about. This is a bad message to send to the city officials.”
On April 10, Johnson Family Enterprises and Three Amigos Real Estate, through attorney Michael J. Goecke of the Bethesda law firm Lerch, Early & Brewer, filed a motion to intervene. Steve Lawrence, a Gaithersburg resident who testified against the annexation before Ashman and the Council and wrote a letter protesting the vote to the state Open Meetings Compliance Board, filed a motion to intervene on Monday.
A hearing has been set for Wednesday, May 10 at 10:00 a.m. before Judge Anne Albright.