Help Aaron to compel the City of Gaithersburg to follow Annexation rules

Update posted by Steve Lawrence On Jan 18, 2018

The Gaithersburg City Council voted Tuesday night (3-1-1) to approve the CalAtlantic – Johnson development plan, no surprise. Rob Wu voted against, the new Council member voted for it, while the other votes remained the same. A video recording will be available shortly.

Other quick notes:

We await the Courts response to the our ruling reconsideration request. Until then the CalAtlantic continues at risk.

District 39 Senator Nancy King and Delegate Barkley have agreed to meet to discuss for future law changes.

The State Highway Administration is analyzing traffic flow and patterns. No major change expected though.

- Steve

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Update posted by Steve Lawrence On Jan 10, 2018

We sent the letter below to the city and copied 150 plus people living in Orchard Hills, The Orchards, Willow Ridge, Hidden Ponds, Quince Haven Communities. City Email addresses are included in case anyone else wants to send their own message.We are still talking to the State about a no U Turn sign out front and asked for a traffic review on the Johnson plan. No word back from Aaron and Ficker’s reconsideration request to the Court. We will continue to let them know we disapprove of the plan and are not going away. We contacted our District 39 and 17 elected officials which will be a longer term solution but more of that in a future update.

'CityHall External Mail' ; 'Jud Ashman' ; 'Yvette Monroe' ; 'Michael Sesma' ; 'Ryan Spiegel' ; 'Robert Wu' ; 'Neil Harris'

Dear Mayor and City Council Members,

I wanted to follow up on CalAtlantic’s December 15, 2017 Schematic Development Plan Application SDP-7716-2017 and suggest we ask the surrounding communities to comment once again on this latest update. http://www.gaithersburgmd.gov/~/media/city/documen...

Surrounding the proposed area has mature neighborhoods with many residents living here since this area was developed 30 years ago. It has developed into a tight-knit caring community that offers a good quality of life to a group of very diverse people who have come from all over the World. We all need to remain vigilant so that the trend of local over development with its negative impact on resources and quality of life, does not get ignored and this becomes just the latest causality of poor planning and worse execution.

We want to remind everyone that this tract of land has been designated for 25 - 30 single family homes for at least the last 30 years. An increase of 4X is very significant without increasing infrastructure support. The local Community has voiced its disapproval for the last 3 years and will continue so to ensure that any final plan will result in a positive addition to the Community.

I would like to respond to a few specific points from CalAtlantic’s update and invite others in the community to do the same.

  • CalAtlantic states “The project will create homes in an area that distinctly lacks new single-family detached housing. The property is very convenient to jobs in the Life Sciences Center and the I-270 Technology Corridor, including those in both the cities of Gaithersburg and Rockville.”

Many of us are surprised at this comment since 2.5 miles away, a very significant new development on the 400-acre Hanson Farm property (Quince Orchard Road) is planned. Toll Brothers Builders will start next summer in building 187 Homes. Their MDPU housing unit’s costs will range from $180K to $200K. This much larger development has the support of the Community and is just as close in proximity to Gaithersburg and Rockville. http://northpotomacnews.org/?p=784 We all recognize there are numerous small and large area developments in process including Crown and multiple condo developments on Key West Highway near shady Grove.

  • The refenced Traffic study (Johnson Nursery Property - 17APMO011XX) does not mention CalAtlantic’s Development Main Entrance / Exit, which is a “Right In & Right Out”. This is very concerning since we have major issues in the amount of Traffic making U Turns already, within 500 feet of this Developments Main Entrance / Exit. This development will now exacerbate the problems since vehicles exiting the Development will turn right, immediately cross over Route 28 / Darnestown Road to the fast lane, and get in the left turn lane a Copen Meadow to make a U turn -- All within 475 feet! Residences from this new development will take the least path of resistance and cross over to the Darnestown Road’s fast lane to make a U Turn in front of an existing development (see attached map). Here is a video of what transpires on a normal typical work day morning . This must be addressed today, forget adding another 106 homes with multiple commuters and drivers being added to the mix.
  • Lennar is in the process of acquiring CalAtlantic so we need to investigate the timing and impact. All Developers seem to have Customer satisfaction issues which is clearly documented with Consumer Affairs, Yelp and others. These projects are complex, and history is not on our side, we will all live with the results so it’s imperative that any plan be sound and then managed and measured through success.

CalAtlantic = One Star Rating Average

Lennar = Two Star Rating Average

  • Proposed Sound Wall – CalAtlantic proposes a sound wall that is to be similar to the development across the street (Quince Haven). They propose a brick entrance which one must assume that this is the entrance West of the Safeway on Darnestown Road. They propose a wall for the length of the Development which would be of wood (last 5 times less than other high-quality materials) or synthetic material. None of these walls would exceed 8 feet. A few notes and comments:
    • The Development referenced, Quince Haven, has a common very short length wall highlighting their Community entrance but it ranges from 3 to 4 feet tall.
    • The Development (Willow Ridge) on the same side of the street has a similar very short in length and height entrance wall which is almost standard for every community.
    • In both cases there is no high 8 feet and long sound barrier wall, thus even with a name change it will cosmetically be different, or be an Enclave.
    • Some re-work, creative thinking and/or investment is required to reach the goal of having this project blend into the surrounding community or it needs to be dramatically reduced in height or better eliminated.
  • Pedestrians Safety should not be determined by not having any recent accidents since 2002. None of us want that on our conscious, especially for any of the 385 students who cross Quince Orchard Road for Quince Orchard High School (QOHS). We do not want what happened at Northwest High School (NWHS) to happen here at QOHS. Today we need an authorized Crossing Guard and install better school zone flashing markings. Any future Johnson and/or Hanson farm property development will further decrease safety and increase risk. This needs to be a priority in the planning process and not after the fact like at NWHS.
  • We have talked about School overcrowding so many times and how the City impacts the County Residences by ruling that 150% of over capacity is not over capacity under their failed AFBO policy. I will save us all from cutting and pasting this long argument into this doc but invite any readers to reference the many many exhibits provided on this link, or to find any resident that has children attending any of the local schools and have a discussion. Pressures for increasing the number of portables at QOHS and Rachel Carson Elementary continues.

We are not against development here or anywhere. But for the last 3 years plus we have been trying to persuade all for a quality and complementing development plan. Ask yourself, why is the nearby Hanson Farm development have the support of the community, while we continue to voice our concerns and objections?

Best Regards,

- Steve

Cc: Orchard Hills, The Orchards, Willow Ridge, Hidden Ponds, Quince Haven Communities

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Update posted by Steve Lawrence On Dec 26, 2017

Thank you thank you for the additional contributions and we continue to meet our funding goals! Also, here are three letters that have been sent to Judge Boynton in addition to the formal reconsideration request sent by Counsel, Robin Ficker.

Letter One

My first inclination was to just give up; That is to concede that I must simply accept the fact of life that the officials we elect on their promise of improving the quality of life for all, can do anything they please to benefit the few, at the expense of the many. Zoning and planning? Just tools for fools, that matter not if you have enough money, so “turn a blind eye”, I tell myself. It is what it is, regardless of how obviously detrimental this will be to the people who live there, live on the same street, who live in the surrounding community, and even those, or especially those, who live farther up North of this disaster that doesn’t have to be.

I tried; my neighbors tried; we failed. Swallow that this must happen, not because it makes sense, not because it improves safety, or quality of life overall. Swallow it, because there’s always a way to work around the systems, the rules, the protections that have been established, if you have enough influence. We attended the public meetings. We voiced our objections. We listened to expressions of concern by scores of other residents. We witnessed not a single positive public comment in favor of annexation at either of the two meetings we attended.

However here I am, on Christmas morning, unable to turn a blind eye, unable to accept that despite all the above, and the egregious conflicting interests of councilman Spiegel and actions that make for a documentary on corruption of the public trust, I cannot accept that one man - on the Gaithersburg City Council - can decide to benefit one other man, at the expense of so many.

Your honor, please see this decision for annexation for what it is: an attempt to end-run long-established planning and zoning processes that for so many prior years has been regarded as a model by many.

Letter two

Dear Honorable Judge Boynton,

I was born in Montgomery County, grew up in Gaithersburg, went to Ridge View Middle School and Quince Orchard High School, and graduated from the University of Maryland. Even though I work in the District of Columbia, when I began a search of homes to purchase with the intention of starting a family, I looked in the City of Gaithersburg, so my children would have the opportunity to attend the same middle and high school that I did. I found a house in the area I could afford, bought it, moved in, got married, and my wife moved into the house all in the same year. The house I purchased is only a mile from the house I lived in from the day I was born. I purchased in this location based on the premise my children would be able to attend those same schools that I did, and have the same excellent opportunities I experienced growing up in this community.

Now that my wife and I have settled into the house and are working to make it our home, I learn that children who live in this neighborhood may not be able to attend the schools we bought the house for in the first place. The rate of growth in this area since my parents moved here in 1990 has been tremendous pushing the schools in the area to over-capacity. I can’t afford to move at this point and am deeply disturbed over this situation.

At the same time, there is a new community planned for Route 28, just north of the intersection with Quince Orchard Road, currently named The Enclave, that can further impact the overcrowding of local schools and eliminate any chance my children would have at attending Quince Orchard High School. Along with that new development comes significantly increased traffic and other influences on an already stretched infrastructure in our community.

If The Enclave would stick to the original Montgomery County zoning of R-200, the impact would be significantly reduced. R-200 would result in approximately 30 single family houses instead of the 110 houses planned for this development. The annexation of the subject land by the City of Gaithersburg in December 2016 included the allowance of the development to go well beyond the R-200 zoning limits. Many of us in the community around the planned development are deeply concerned of the plan to build 110 homes in an area that should only hold 30. Unfortunately many of those that will suffer the impacts of this development are not able to register formal complaints since they are not residents of Gaithersburg like my wife and I are.

The City of Gaithersburg annexed the land for the subject development under very questionable, if not illegal, circumstances. I ask that you reconsider the legal decision you rendered on December 4, 2017, and provide those impacted by this planned development an opportunity to continue in their battle to have the City of Gaithersburg to fully consider the impact of a decision to allow the development to place more homes than is reasonable in our area.

Thank you reviewing my letter and I hope and pray you reconsider and overturn your previous decision.

Letter three

Your Honor Judge Boynton,

Many of us are still troubled by the steps and events of the City of Gaithersburg attempt to annex property outlined in Civil Case 429811-V.The series of events wreak of questionable methods, circumventing rules, all to accomplish something that the public is clearly against.

Here are the facts:

§One Council member purposely leaves a meeting to prevent a publicly unpopular annexation vote so that a quorum does not exist.

§The City then calls a Council Member who has already recused themselves to come to the meeting to participate and vote.

§According to the City’s own rules and charter, a Council Member recusing themselves from a vote, shall disclose the nature and circumstances -- This did not occur.

§The whole premise of one recusing themselves is to prevent any potential unethical influence to occur. As a side note, the City of Gaithersburg remains deficient from a State law 3 years ago requiring the City to create and implement ethic behavioral procedures.

§By allowing the participation of this Council Member it accomplished the outcome desired by a minority of Council Members, thus circumventing the purpose of the vote and law. Again, to date no public announcement was or has been made as to why the Council Member needed to recuse themselves.

§How could this be ruled as a lawful act when the City did not follow their laws and disclose the reason for the recusal? How could this be ruled lawful when the City’s efforts in creating a quorum was circumventing the law?

§It is very perplexing to everyone when the City enables legislation through simple resolutions that impact non-City residents? This annexation attempt if allowed, will bring City Ordinances that impact non-City residents hugely. One example of just a few, allows The City to impact County school capacities to be 150% of designed number of students. That is over one-half more of the recommended number of attending students!

§Some would argue this is how the City has always done things while many argue that no one has ever contested their methods.If this is what the State had in mind with their legislation, then why doesn’t the State just use simple resolutions? It’s because this was not their intent!

Many of us hope you will reconsider your position and rule in the favor of the public.

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Update posted by Steve Lawrence On Dec 16, 2017

Pamela called Judge Boynton's Administrative Assistant, Lisa Hyatt. She informed her that anyone interested in writing letters to Judge Boynton, will be attached to the “Motion to Reconsider” submitted by Robin Ficker. The motion will remain open for 17 days from the submittal date of December 11th. She recommended anyone wishing to show support for the appeal write, post mark their letters before December 27th and to the following address.

Montgomery County Circuit Court
50 Maryland Avenue
Room 6010 (Judge David A. Boynton's Chambers)
Rockville, MD 20850

Thank you for your recent contributions. Any amount is appreciated. This will help ensure our Appeal is scrubbed and best positioned for consideration. https://gogetfunding.com/help-aaron-to-compel-the-...

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Update posted by Steve Lawrence On Dec 13, 2017

A Re-Consideration letter (see attached) was sent but we need to assume the District Judge won’t change his mind to dismiss our case. It’s amazing the interpretation variance from one Judge to another.

Next Step – The Appeal. We need to take the attached and run it through our legal experts, tweak and ensure we have a clear and strong argument, which will cost $1,000 plus. Our Counsel (Ficker) gets none of this, he is supporting this pro bono. As in the past, this is only for the paralegals and Court Appeals costs.

If you think it’s worthwhile you can donate any small amount to help us continue. The attached website accepts every and any amounts ($1, 10, 25, 50 or greater).

https://gogetfunding.com/help-aaron-to-compel-the-...

Our strong argument is that our local Government is not following their own rules. It needs to be leveled up to a higher court.

We all have obligations and we realize it’s a busy time of the year. Aaron, and all of us, appreciate your continued support.

MOTION TO RECONSIDER

Rockville, Maryland

Civil No. 429811-V

Come now plaintiffs to ask Judge David Boynton to reconsider his decision of December 4, 2017 and state as follows.

  1. December 19, 2016 with only two council members present, council member Ryan Spiegel arrived to be the third.
  2. Council member Spiegel participated in the decision to annex the Johnson property, not by voting, but by attempting to constitute a quorum.
  3. The mayor had stated, on the record on December 19, 2016, that Spiegel would recuse himself from the vote on the Johnson Property “I’ll just say he recently discovered that his law firm has a relationship with one of the applicants” video: https://tinyurl.com/mayor-explains-conflict
  4. While a Maryland Judge “may” give reasons for recusal (MD Code of Judicial Conduct Rule 2.11. Disqualification attachment 1); however, under the City Charter of Gaithersburg a city councilman shall disclose the nature and circumstances, or the conflict City Charter requires Sec. 7A-4 0 - Conflicts of interest (attachment 2): a council member “shall disclose the nature and circumstances or the conflict and may participate or act if: (i) The disqualification leaves a body with less than a quorum capable of acting.”
  5. By coming in and recusing himself councilman Spiegel participated in the annexation approval even though he did not vote; however, he did not lawfully participate.
  6. While at the meeting council member Spiegel said only “Before we proceed I want to make a statement that I am recusing myself from consideration from voting on this issue” video: https://tinyurl.com/spiegel-self-recusal
  7. Spiegel did not disclose the nature and circumstances or the conflict as the City Charter requires.
  8. The Honorable Judge Boynton's point that annexing land is merely “transaction of business” (Charter Sec. 9) but allowable because two votes are required is contradicted by the Honorable Judge Rubin.
  9. The Honorable Judge Boynton said on December 4, 2017 “ordinarily, in transacting business, you have to have a quorum, and it’s a majority of the quorum that binds action. So, if you have three, and two people abstain, and there’s only one vote, that would not be a majority of the quorum. So, you could never have land annexed by only one vote.”
  10. The Honorable Judge Rubin previously stated on September 25, 2017 (attachment 3) “what's surprising to me is, given the importance to a municipal government of annexation, very important, why they're going with this sort of oral tradition, and nobody for the last 400 years wrote it down. They've written everything else down.Parking tickets, red light cameras, but annexation policy, nobody's wrote down this is how we're doing it folks? If citizens don't like it, we'll hear from you. It's sort of this private rule?... I guess where I'm troubled is the absence of its written down anywhere, because if it's not written down, it's not readily publicly available. It's sort of this oral tradition, which could change in 10 minutes, right?... But couldn't this, based on where the state of play, not that they would do this, because they probably wouldn't, but if Gaithersburg decided tomorrow, orally, it just takes the vote of one Council member, it's not violating anything, because that's what our procedure is. They could change it to say one-person vote. It's not written down. It's not set in stone. There's no notice, no, I mean it's... No, but that's what your colleague says is based on their sort of oral tradition.What if they change the oral tradition?It says whoever's willing to vote for it, okay. Not that they would do that, but I'm saying it's, since it's not in the charter, it's not written down anywhere, it could be changed in two seconds... Why not?... What would stop them? It's not written down. It's not an ordinance. It's not nothing. It's not COMAR. It's not a reg. It's just what they do... They could say oh, the new normal is this. All in favor, aye. Great, the new normal is this... Okay.Thank you. Why isn't it written down?... I don't question that. I just wonder why it's not written down where it's therefore clear, publicly available... We wrote stuff down in the '50s... “

Wherefore plaintiffs request that the Honorable Judge Boynton rule that Spiegel’s participation in the Johnson Annexation was not lawful and that the quorum was not lawfully constituted.

Wherefore plaintiffs request that the Honorable Judge Boynton rule that the annexation of land by the Gaithersburg City Government is too significant to be allowed as a mere “transaction of business” because as the Honorable Judge Rubin has said this could have been accomplished with only one vote.


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Update posted by Steve Lawrence On Nov 02, 2017

Montgomery County Court posted that they are sending a notice to all concerned that December 4th, 2017 is our next Hearing date. More information will be mailed out, but it is expected to be 10:00 am at the County Courthouse Rockville. Remember they have all the up to minute details on the monitors as you walk into the building. Everyone is invited and appreciated. Here is a link and the case number if you want to monitor status.

http://www.montgomerycountymd.gov/cct/

http://casesearch.courts.state.md.us/casesearch//p...

Case Number 429811-V

We have had additional people come forward to join our effort and we are looking forward to having our next day in Court!

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Update posted by Steve Lawrence On Nov 02, 2017

Montgomery County Court posted that they are sending a notice to all concerned that December 4th, 2017 is our next Hearing date. More information will be mailed out, but it is expected to be 10:00 am at the County Courthouse Rockville. Remember they have all the up to minute details on the monitors as you walk into the building. Here is a link and the case number if you want to monitor status.

http://www.montgomerycountymd.gov/cct/

http://casesearch.courts.state.md.us/casesearch//p...

Case Number 429811-V

We have had additional people come forward to join our effort and we are looking forward to having our next day in Court!

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Update posted by Steve Lawrence On Sep 26, 2017

Thank you to everyone who came to court today - it was nice to see a room full of friendly faces.

We won today's hearing! That’s a big step but we aren’t done.

Honorable Judge Rubin presided:

http://msa.maryland.gov/msa/mdmanual/31cc/html/msa...

The city asked the courts for two things: 1) dismissal, 2) judgement — the Judge said no to both.

A lawsuit is dismissed when there is no injury. For example if you saw someone got hurt on the news you couldn’t sue for damages because it didn’t happen to you. In this case we have people who live right next to the annexation who are obviously affected by a change of jurisdiction if the land is annexed.

A lawsuit can have a summary judgement where the Judge finds the complaint so silly that they decide on the spot to not let the case go to trial to save everyone’s time and effort. The Judge feels this is not frivolous so declined to provide summary judgement today.

The City setup a paradox and the judge saw right through it. A catch 22 or “chicken and the egg” problem.

The City claimed no wrongdoing because they passed the annexation as a resolution. They argue it does not require the formalities of a legislative act. They claim it is merely a formal expression of opinion so 2 votes is enough and doesn’t violate city charter. But if that’s the case, if this is not a legislative act, case law allows for property owner standing which is what county residents have.

The land in question touches the city only with a “pin prick” meaning it’s a bit like gerrymandering. No city residents live close to the annexation but plenty of county residents do. If the annexation happens the county elementary school of Thurgood Marshal ES will have a large influx of students but they have 5 portable classrooms already. It is also possible that they would be redistricted to Rachel Carson ES but that school has 11 portables right now. So here is where the City gets really dirty and tried to pull a fast one. The city claims that legislative acts require “taxpayer standing” so only city taxpayers may raise a case against them. This is terrible because first the city claimed annexation is NOT a legislative act. If it were a legislative act then 3 favorable votes would be required to annex land.

Is annexation a legislative act or not? The City cannot have it both ways.

Judge Rubin rightly questioned the City asking “What would stop you from passing with 1 vote tomorrow?” he also asserted “Why is it easier to annex land than place a traffic light?” All the city could say is that this was all oral and how they’ve always operated, there are no written rules and nobody has ever challenged them before. The developer’s lawyer was allowed to intervene and speak. When he was questioned he said “It might take less votes to annex land than to put a traffic light but it’s not easier because we do have to petition and file paperwork to start the annexation request.”

The night of the vote Mayor Jud Ashman phoned the council member who had a conflict of interest, Ryan Spiegel, to come from home to make a quorum. This was after Righteous Rob Wu said “happy holidays” and went home to break quorum out of disgust for being led on by Ryan who directed conversations for months and because he wanted to have a vote only when we selected another council member to take the seat of Henry Marraffa who had succumbed to cancer. After Rob went home the council proceeded to bad mouth him in public and asked for him to resign.

I had asked the city to discuss the legality of the vote BEFORE filing the lawsuit. The city made it clear, in writing, that they refused to discuss. We had no choice but to file with the county courts.

The city council is operating in direct violation of state ethics laws and they don’t care:

http://ethics.maryland.gov/wp-content/uploads/file...

They can receive gifts and not have to report ownership interests from property that was outside the city limits. City staff has provided the council with a body of ethics law that is compliant but the council chooses to live in direct violation of state law. We are left to wonder why, what is it that they are benefiting from to live outside the law?

Generally municipal governments in America are expected to operate lawfully with dignity and respect for everyone. They are supposed to advocate for our interests, pool our resources, and give us a better life. On it’s face, anyone who brings a city to court you have to wonder why. It’s presumed that the local government is acting justly so it’s a large hill to overcome. I did not know what the outcome of today’s trial would be but I knew we had to try. My faith in our system of laws has been restored. I am especially thankful to Robin Ficker who represented us in court and helped us get where we are today. 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.

We have ordered a typed transcript from the courts of everything that was said. We should get it in a few days.

Peter Rouleau is a reporter for the Sentinel, the last Montgomery County newspaper. He is running a story. I know he’d like to hear your thoughts:

[email protected]

Thank you,

Aaron

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Update posted by Steve Lawrence On Sep 25, 2017

The City of Gaithersburg two requests for dismissal was rejected and denied, so we move on in the process. I am sure Aaron will broadcast out an update once we all catch up on our day jobs but wanted to relay our success in this round and we get to move on. The Judge thought we had a valid reason (which is called Standing) and our case was not frivolous. He was pretty hard on the City for their lack of written processes. Remember though this is not a final ruling but allows us to proceed.

Many many thanks to Robin Ficker for being our Attorney, to the neighbors who attended today’s court session, and to everyone who has supported the effort.

- Steve

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Update posted by Steve Lawrence On Sep 18, 2017

It appears we are on for our hearing next Monday (9-25) as described below and everyone is invited to attend. There are local parking garages and lots of seating room in the court room. Please attend if at possible and don’t worry if you are early or late, the Court is very accommodating.

As always, we appreciate your support and look forward to seeing everyone who can attend.

- Steve

District Court

50 Maryland Avenue

Rockville, Maryland 20850

10:00 – 12:00

Room 1003

Judge Albright

Case# 429811V

240-777-9000

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