GAITHERSBURG – A legal battle in Gaithersburg has entered its latest chapter now that the man who challenged the City Council’s vote on annexing the Johnson property has refiled his lawsuit.
“My mistake was not going to my neighbors first and asking them to be co-plaintiffs,” Aaron Rosenzweig said in the aftermath of a ruling against his initial efforts. On Monday, he filed an amended version of the lawsuit and said that 13 city residents had signed on as co-plaintiffs.
“This annexation is not merely a business deal; it changes the law of the land,” Rosenzweig said. “By this land moving from county to city jurisdiction, a different set of laws must be obeyed. This is permanent. The City charter says that only ordinary business can be carried out by a mere quorum.
“Anything permanent, with the exception of approving the annual budget, requires more than a quorum, it requires three “yes” votes from the council to enact.”
On May 12, Judge Anne K. Albright heard arguments from Rozenzweig and the board.
She ultimately concurred with the board that Rosenzweig had not demonstrated why he had standing to bring the complaint, as he lives more than two miles from the development site, or why a writ of mandamus nullifying the vote was appropriate. She agreed to dismiss the complaint without prejudice, allowing Rosenzweig the maximum 30 days under the law to amend and refile the suit.
The controversy began on Dec. 19 when Mayor Jud Ashman and the City Council took up the annexation of the Johnson property, an area near the intersection of Darnestown Road and Quince Orchard Boulevard that has been slated for mixed-zone commercial and residential development.
“Our neighbors who live next to the annexed land would prefer that if it is to be developed, it should retain the same zoning as their neighborhood,” said Rosenzweig.
“They don’t want to see things overdeveloped with such close proximity especially since the two nearest elementary schools are already overcrowded. Thurgood Marshall and Rachel Carson already have many temporary classrooms and they are the two closest schools to this land.”
The council was scheduled to discuss the project and vote on two resolutions on Dec. 19, one authorizing the annexation of the land and another authorizing City Manager Tony Tomasello to execute an agreement to develop the property.
The council was operating at reduced capacity, with the absence of Council Member Henry F. Marraffa Jr., who had died two months prior, and Council member Ryan Spiegel, who was suffering from a strep throat infection. Moreover, Spiegel had indicated that he would recuse himself from the discussion and vote on the resolutions because he had discovered that his employer, the Bethesda based law firm Paley Rothman, had a business relationship with one of the developers.
Council member Robert Wu, citing numerous concerns from area residents about density and quality of life, suggested tabling the discussion until after Marraffa’s replacement had been selected and sworn in.
He argued that the issue was too important to be decided by a weak majority of the council. When this proposal received no support, Wu walked out of the meeting, leaving Ashman, who does not cast a vote or break ties on the council, Council Vice President Neil Harris and Council member Michael Sesma without the necessary quorum to conduct business.
Spiegel, who had been watching the meeting on Gaithersburg’s public access television channel, drove to City Hall and formally announced that he was recusing himself. According to City Attorney N. Lynn Board, Spiegel’s presence re-established the quorum, and Harris and Sesma passed the resolutions 2-0.
Aaron Rosenzweig, a Gaithersburg reisdent filed a lawsuit in Montgomery County Circuit Court on Feb. 1, arguing that the Dec. 19 vote was taken illegally