ROCKVILLE – A circuit court judge has agreed that the plaintiffs in a suit against the City of Gaithersburg, residents of the city, have standing to bring the case.
On Monday, Circuit Court Judge Ronald Rubin dismissed City Attorney N. Lynn Board’s motions for dismissal and summary judgment from earlier this year, setting the stage for a court hearing on the propriety of the annexation, finding that the plaintiffs did have standing and setting the stage for a court hearing on the legality of the annexation itself.
Aaron Rosenzweig, a Gaithersburg resident who has testified numerous times before Mayor Jud Ashman and the Council and founded the website teamgaithersburg.org to increase civic involvement in the city, filed suit in Montgomery County Circuit Court Feb. 1 against the city after two of the five-member city council approved two resolutions pertaining to land use in December.
“The City will continue to aggressively defend its action in approving the annexation of the Johnson property as it remains our position that this action complied with the requirements of both state law and the City Charter,” City Attorney Board said after Rubin’s decisions Monday.
Rosenzweig seemed ecstatic following the Rubin’s decision.
“I did not know what the outcome of today’s trial would be but I knew we had to try,” Rosenzweig said. “My faith in our system of laws has been restored.”
Board said the judge still has more to rule on. “The Court’s ruling today only addressed the issue of whether the plaintiffs had standing to pursue the litigation and not the merits of the case,” Board said. “The Court deferred the hearing and ruling on the City’s pending Motion for Summary Judgment to a future date.”
Meanwhile, Rosenzweig said he was grateful for Robin Ficker, a Boyds-based attorney and activist who is seeking the Republican nomination for next year’s race for County Executive, who represented Rosenzweig and his co-plaintiffs in the suit.
“I am especially thankful to Robin Ficker who represented us in court and helped us get where we are today,” Rosenzweig said. “I kissed Robin (on the forehead) and I liked it! Robin delivered for us in a big way. This is just the first step but it’s a big one. Next time in court we have to discuss if annexation is a legislative act which would make it an ordinance and require 3 votes.”
Rosenzweig argued in his suit that while the necessary quorum to transact business was present, the vote was taken illegally because it violated 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 in the suit sought a writ of mandamus compelling the city to annul the vote.
The legal saga began on Dec. 19 when Ashman and the City Council was scheduled to discuss and vote on the annexation of the Johnson Property, an area near the intersection of Darnestown Road and Quince Orchard Boulevard which has been slated for mixed-zone residential and commercial development. Because of the absence or recusal of most of the five-member Council, the two resolutions up for consideration, one authorizing the annexation of the land and a second authorizing City Manager Tony Tomasello to execute an agreement to develop the property, were passed 2-0 by Council Vice President Neil Harris and Council Member Michael A. Sesma.
Gaithersburg City attorney N. Lynn Board however defended the vote, quoting the same portion of section 9 of the City Charter that Rozenweig did, in a memo dated Jan. 9.
“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,” Board said. “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.”
She concluded the Council met the quorum requirement as long as three Council members were in the room, even if fewer than three voted on the agenda items.