|Attorney Michele Rosenfeld|
outlines the case against
A crowd of about 100 residents passed up NFL football to hear the complaint Rosenfeld will file, which hinges on three arguments. First, the Planning Board violated a 2008 County law that requires it to measure whether a master plan will help reduce carbon and greenhouse gas emissions, and vehicle miles traveled. The board did study that in several other plans it approved since 2008, Rosenfeld said. For Westbard, however, "they didn't do it at all," she noted.
Despite Councilmember Roger Berliner being the lead sponsor of that law, he and his Council colleagues did not call out the Board on its failure to follow that law when its members appeared during Westbard worksessions before the Council. Why was the requirement ignored? Rosenfeld suggested that due to the lack of transit at Westbard, and it not being within walking distance of Metro, the Board knew the study results would show the development would increase, rather than decrease, emissions and VMT.
As a result, the zoning approved by the Council was "impermissibly dense," Rosenfeld said.
The Council itself violated a second County law, Rosenfeld alleged, which requires it to hold a public hearing when the Council makes amendments or revisions to a plan forwarded to it by the Planning Board. Rosenfeld said the Council unanimously agreed to modify the Planning Board draft in a March 22 straw vote. Entire new sections about topics like public schools and affordable housing were added to the plan text. In doing so, the Council was required to then hold a public hearing on the revised plan as the District Council. It did not, and thereby "failed to follow its own law in the timeframe leading up to the adoption" of the plan, Rosenfeld said.
Finally, the complaint will allege that the Council "engaged in illegal contract zoning," predicating increased density and height in exchange for something from the property owner. While incentives can be offered to all property owners within a sector plan area, Rosenfeld said, the Council is not permitted to negotiate such terms with an individual property owner. The complaint will allege that the Council did so with two property owners, Equity One and Capital Properties.
However, the defendant in the case will be the County, not Equity One or any other property owner.
Rosenfeld said the immediate, short-term goal of the suit will be to get a temporary restraining order that will enjoin the Council from adopting the Westbard sector plan Sectional Map Amendment. No development can go forward under the zoning adopted in the plan until that map amendment is passed. The Council has a public hearing on the map amendment scheduled for September 20. Plaintiffs are seeking a declaratory judgement and injunctive relief.
In the long-term, opponents of the Westbard plan are hopeful that the court will remand the plan back to the Council, and "give us another bite at the apple," Rosenfeld said. The vast majority of residents strongly opposed the plan, and want the density and heights reduced.
Rosenfeld, who led a successful court fight on behalf of Kensington Heights residents to stop a 16-pump gas station from being built at nearby Wheaton Plaza, was optimistic about the chances of success at Westbard. "I think they're strong claims," she said of the 3-part complaint. "I am confident that the County will fight...tooth and nail. It will be hotly contested. I'm confident of that."
She cited a legal precedent set in the County on the question of holding a public hearing when a draft plan is modified. The Boyds Civic Association sued the County in the same circumstance, she said, and the court determined a public hearing had to be held.