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| Attorney Michele Rosenfeld outlines the case against Montgomery County |
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.
67 comments:
I'm in favor of the Westbard redevelopment, but I also believe the proper procedures should be followed.
I also would not be surprised if Council or Planning staff did _not_ follow procedure. Seems like in hearings, some of them were confused about basic things like where Westbard is even located in relation to the Metro, so I can see it highly likely they were sloppy about following procedure too.
It's 8:40am EDT right now. Expect the Other Website to report on this in an hour or two. Dyer scooped them again.
Thank you for keeping the public informed, Robert.
Transit WILL be coming to Westbard when the Purple Line extends to Georgetown. Years and Years away. But, it's coming...
I wonder how long the county will take to settle this. There is no way they are going to miss out on expanding Bethesda Row. Because as you know, we are in desperate need of more nail salons, kiddie gyms, yoga pants and Fro-Yo over here in the 20816.
5:58: You are correct in that there is a "secret" plan to extend the Purple Line through Westbard and Sumner Place to Tysons in the future. That was part of the calculating rationale for postponing the River Road part of the sector plan, and the reason non-conforming high-rises were made conforming in the final plan (so that they can be replaced with 290' buildings later). However, a future pipe dream doesn't give you legal authority for that Purple Line density now.
Look carefully at the existing County ownership of a right-of-way alongside the CCT off River Road, and their plans to acquire a Purple Line facility-size piece of property via this plan adjacent to that for an "urban park" for which no schematics were shown prior to the Council approving it. Put 2 and 2 together.
Is it for a station? A Purple Line transformer? A switching yard? You figure it out.
Look out! There is a diabolical conspiracy to improve transit in your neighborhood!
6:18: Actually there isn't. There's nothing in the plan that mandates additional bus services or shuttles of any kind, and the Council deleted the small transit center that was supposed to be on Westbard Avenue in the draft plan. #Facts
This, and multiple other current battles around the county that are being waged against the secrecy and corruption of the County Council are incredibly reminiscent of The Belt Line in the 1920s !! Read the history on Montgomery Civic Federation website:
http://montgomerycivic.org/files/History_of_MCCF.pdf
What a waste of tax payer dollars...this is the real reason the County has to raise taxes. Jerk-Off residents pitching a tantrum and suing them. How many millions of dollars is this suite going to waste?
6:54: More like $72 million tax cut for developers in White Flint, going $90 million over the maintenance of effort required amount for MCPS without a substantive plan to reduce the achievement gap justifying the amount - "little" things like that have far more to do with your taxes going up.
Do you support the Council and Board breaking the law in 3 cases? Are there any other laws you feel shouldn't be followed? Maybe residents don't feel like mailing in their taxes anymore? Do tell.
Wait a minute... Did Dyer @ 6:36 AM just admit that buses are indeed "transit", after denying such for many months?
7:18: Transit is not the same as rapid transit, which is required for TOD density. Under your uneducated definition, you could build 290' buildings in Damascus because they have a Ride On bus that goes through 5 days a week. WRONG.
Thanks for summarizing the legal arguments. It's been hard for those of us who don't live in Westbard to fully appreciate that community's anger. But everyone in MoCo is subject to the County Council, and we're all struggling with local zoning issues.
I'm sorry Westbard has to be the point on the arrow, and appreciative that they've chosen to be it. What the Council has been doing (and not doing) is clearly wrong and doesn't serve our communities. I'm starting to see why so many smart people can't understand proposals for our own neighborhoods.
Oh, and almost all Council members blatantly have no clue about our communities. Their lack of preparation for community meetings is appalling.
Go Westbard! Proud that someone has the organization, guts and resources to demand that our government is accountable.
@6:54, yes, the suit will use YOUR tax dollars - but don't blame Westbard. The Developer-Political complex violated the rules.
Unbelievable. The self-centered and selfish attitudes in this county are out of control. People move to an area with no concern of their impact on traffic, schools, or the existing neighborhood, but once they get here they want to shut the door behind them:
"No more new houses/apartments, since I already have one!"
"And especially no new young/minority/lower-income residents!!!"
"No more office buildings, since I already have a job!"
"No new retail (unless I'll shop there)!"
"No new transit lines (since I won't ride it)!
^This is pretty much what's going through the head of every single downcounty NIMBY and their parrot Dyer.
just a bunch of wealthy white folks fearing the required low income housing requirements in THEIR neighborhoods... if it was expensive luxury high rise without low income it might be a different story.
Prior developments were planned with infrastructure enhancements to support them. New developments require the same. If the infrastructure exists, great. If there's not, we have to build it, not just for the people who live here now, but for the people who will move in. That takes time and real planning. You can't just throw up a few buildings and claim goodness. Development has consequences. It's really hard work, and the MoCo Council isn't doing it.
8:53: Wrong. There is no office planned for this project. And the Council were the ones who said, "no new transit lines," requiring none to support the thousands of new residents.
@6:18 AM; 6:54 AM; 7:18 AM; 8:53 AM; 8:56 AM are classics: Insults, uninformed-misleading-inaccurate assertions, hatred . . . . The POINT is to correct the lawlessness of a County Council whose duty is to lawfully protect and promote the quality of life for all Montgomery County residents.
A complaint aimed at forcing the County Council to obey the law cannot rationally be viewed as selfish. All Montgomery County communities will benefit from a Council that respects and obeys the law.
@7:32 AM (downtowner), thank you for your comments, and, particularly, "I'm sorry Westbard has to be the point on the arrow, and appreciative that they've chosen to be it."
@ 8:53 #2: The problem with Westbard is excessive density and building heights immediately adjacent to single-family neighborhoods that are not served by mass transit.
1.8 million square feet of new development is proposed by Eqiity One and its partner EYA. Add development at Westbard proposed by Capital Properties and the Housing Opportunities Commission, and proposed new development exceeds 2 million square feet. Retail building heights are at 60 feet (apprimately 6 stories) and apartment building heights range from 75 feet to 122 feet (7-12 stories).
Redevelopment of Westbard is needed urgently, but not at the urban heights and densities approved by the Council.
The apartment housing at Westbard will be largely luxury, with a 15% setaside for affordable and workforce units.
Mixed income housing (most of which will be luxury) is not the problem. Excessive height and density is.
@8:56: You should know-- as Westbard residents do-- that Montgomery County requires that new residential developments reserve 12.5% of new housing as moderately-priced dwelling units (MPDUs). In the case of Westbard, the MPDU requirement was raised slightly to 15%.
As 10:16 said, Westbard will be mixed income housing, predominantly luxury/upper end. Residents aren't objecting to this. What they are upset about is density and building heights,
Westbard has very limited mass transit access and the new development will contain parking for roughly 2,000-4,000 new cars, according to the developer's site plan application. Traffic, densities and building heights are the key issues at Westbard.
County just needs to pay for free Lyft and Uber rides to the Metro. Not hard folks.
@10:42 AM, why don't you take that idea to the Council to implement.
Let us know how it goes.
10:42 AM The county wants Barwood. I doubt they'd help Uber or Lyft.
A Denver suburb is trying it.
http://www.denverpost.com/2016/08/15/lyft-centennial-team-up-for-free-rides-light-rail-station/
I think it's great that Bethesda residents are holding the County's (and the Councilman's) feet to the fire. Clear signal that you can't ignore residents in favor of the developers that are lining your campaign coffers.
No, using Uber and Lyft (or Barwood) just increases auto congestion. Buses and shuttles are better solutions.
@ 10:42 AM - Rich white NIMBYs just want free stuff from the gubmint.
This lawsuit is as asinine as Moore's lawsuit.
5:40's comments were solid until the unprovoked obsessed with the other website comment at the end.
Definitely a place for all news sites and blogs.
Funny how the complaints roll in about Moore filing a lawsuit but cheers for this lawsuit. Ha. Hypocrites.
Metro averages like 30mph. Is that rapid? What's the barrier for rapid in your opinion?
7:18 said no such thing about 290 buildings in Damascus. Simply discussing your wavering definitions of transit.
Thanks for summarizing your perspective of the legal arguments!
Dyer answers one of several points of 8:53 and avoids the rest he has no answer for. Typical.
#DodgingDyer
8:48: I never wavered. You're just lying in your Saul Alinsky way. Yes, 7:18's claim that Ride On counts as rapid transit would indeed allow a 290' building in Damascus.
8:50: 8:53's red herring arguments are typical of the Dan Reed/GGW crowd. I'm sorry, but trying to bulldoze established neighborhoods is not remotely similar to a greenfield development in Clarksburg. Being anti-resident won't win you many supporters in Bethesda.
11:03
1) So... Metro averages like 30mph. Is that rapid? What's the barrier for rapid in your opinion?
2) 7:18 asked if Ridr On counts as transit and you said yes, but not as rapid transit (see question 1). Any claim of allowing a 290' building in Damascus is something you said and no one else anywhere else.
3) Sinply calling an argument a red herring does not necessarily make it so.
4) who said anything about bulldozing established neighborhoods?
5) who said anything about bulldozing established neighborhoods being remotely similar to a greenfield development in Clarksburg?
6) what was the anti-resident statement made by the commentor you are referring to?
7) does calling someone an idiot or dumas or moron or rejecting their opinion or perspective win many supporters in Bethesda?
Also what's your response to 8:50's position here?
"Unbelievable. The self-centered and selfish attitudes in this county are out of control. People move to an area with no concern of their impact on traffic, schools, or the existing neighborhood, but once they get here they want to shut the door behind them"
Neither the County Executive nor the Council seems to take laws the Council passes seriously, especially as they pertain to developers.
'Because as you know, we are in desperate need of more nail salons, kiddie gyms, yoga pants and Fro-Yo over here in the 20816.'
You're twisting things to trivialize the importance of the redevelopment of Westbard into responsible, upscale shopping. We do not need more of what you mention, but we DO need more convenient access to smart casual wear (Vineyard Vines), access to essential foodstuffs (artisan truffle and other culinary oils), and proper hydration (Coffee Bean and Tea Leaf).
I trust this lawsuit will be thrown out as the nuisance that it is. The greater good should always prevail.
@5:33 AM (Poppy ) wants "this lawsuit . . . thrown out as the nuisance that it is. The greater good should always prevail."
Translation: A complaint aimed at forcing the County Council to obey the law should be thrown out as a "nuisance", because the "greater good" is served by a County Council free of any constraints on its power.
Question: When has tyranny ever served the "greater good"?
All Montgomery County communities will benefit from a Council that respects and obeys the law.
I don't disagree, but what happens if you have no choice with a growing population?
come on 6:22, you're not going to make an artisan truffle oil souffle without breaking a few eggs.
"Tyranny"
LOL, what a nutcase.
So, let me see if I get this straight.
Lawsuit against development that may not have followed the letter of the law = good.
Lawsuits against mass transit that may be endangering an animal species = good.
Lawsuit against petition that may not have followed the letter of the law = bad.
Did I get that right?
Law
It's really funny how Dyer's claim of a "red herring" is both preceded and followed by actual red herrings - "Alinsky" and "bulldozing neighborhoods".
Why deny residents the opportunity to vote on term limits? If it's a terrible idea, I'm sure they'll vote it down.
@6:48 (Anonymous) laughs out loud at the use of the word "Tyranny".
Okay, let’s rephrase the POINT. Tyranny is "absolute rule unrestrained by law or constitution".
When has "absolute rule unrestrained by law or constitution" (tyranny) ever served the "greater good"?
@6:39 (Anonymous): "[Y]ou're not going to make an artisan truffle oil souffle without breaking a few eggs."
Walter Duranty, foreign correspondent for the New York Times in the 1930’s, dismissed Stalin’s killing of millions of people by stating that, "You can't make an omelet without breaking eggs."
Again: When has "absolute rule unrestrained by law or constitution" (tyranny) ever served the "greater good"?
@9:33 - 6:39 was making fun of you with the breaking a few eggs quote, as you are coming off as some hysterical housewife who would compare someone putting up some apartments for poor people in your neighborhood to Stalin's murderous purges.
The fact that you caught the reference and didn't budge an inch just shows people that you're an over-educated hysterical housewife.
10:09am "apartments for poor people"
I doubt EYA will be using that tagline for their $2 million townhomes at the new Westbard.
It's not really about poor folks though. The landowner wants to maximize their ROI. Great, but residents have a say in what happens in their community too.
Pointy head - Your insinuation that Montgomery County has "absolute rule, unconstrained by law" is idiotic, especially since you are the one who wants to tell property owners what they can and cannot do with property that you don't own.
@10:09 AM & 2:28 PM -- more classics: Insults, name-calling . . . "over-educated hysterical housewife" "Pointy head", false insinuations that are then labeled "idiotic", ascribing motivations out of thin air, making false comparisons, . . . . The "breaking a few eggs quote" will never be funny in any context. Anyone using it is laughing at the millions of victims of Stalin’s purges. What kind of thinking would lead a person to use such a quote to make fun of someone?
But of course, its all about distraction from the POINT. The purpose of the lawsuit is to correct the lawlessness of a County Council whose duty is to lawfully protect and promote the quality of life for all Montgomery County residents. The Council "tell[s] property owners what they can and cannot do with property that . . . [the Council does not] own." The complaint is aimed at forcing the County Council to obey the law in how makes determinations on the use of other people’s property. All Montgomery County communities will benefit from a Council that respects and obeys the law.
@9:35 (Anonymous) -- the classics are inexhaustible: Change the subject from the why of the lawsuit to a snarky comment about "incredible pretentiousness".
The POINT is that the complaint is directed at the Montgomery County Council (acting as the District Council) for failing to follow statutory procedures in its determination of the land use within the Westbard Sector. That failure needs to be corrected.
I don't even know if 9:35 was a legitimate or troll comment, but I accidentally hit the delete button while scrolling past it. Sounds like it was a troll comment.
I admire that you guys are trying everything you can, but these lawsuits accusing the county of not dotting every i and crossing every t really smack of third and long. I guess that makes sense though, because that is about where you guys are in preventing Westbard from happening.
The most you're going to accomplish with the lawsuits is delay the inevitable. If you guys really want to stop this thing you need to get yourselves into the right Sommerset dinner parties and try to enlist the likes of Poppy's husband. They're the only ones who really have the level of pull around here that you need. Otherwise, once your lawsuits are all settled and the county has filed all their paperwork, you're just going to be looking at 4th and long a couple years from now.
Oh yes, let's get the "husband" of the fictitious and allegedly sarcastic character of Poppy to help.
Love the football analogy. I think it's more we gave away all our future draft picks
years ago and are now dealing with paying the pri8ce.
Poppy may be fictional, but powerful people living in Somerset are not. Let's be blunt about this. As the world operates currently, you're not going to get anywhere without the help of people like that.
Thanks, @9:19AM. Didn't realize I had that much power. Thank you mom and dad for picking this neighborhood!
This and Moore's lawsuit and the purple line lawsuit. All frivolous waste of taxpayer dollars.
Pennies compared to the 70 million the council already wasted on the bus lot
Yes good point what a frivolous lawsuit to block the bus stop too!!!
6:48, if the lawsuit/delay finally forces the Council to at least look at things like carbon emissions, that will hopefully lead them to have to finally look at the ridiculous traffic impacts of this completely overblown development. If that in turn leads to better revisions to density and building heights, we'll all be fine. Love the development at Westbard, let's just not pretend we can shoehorn Gotham into a small stretch of Bethesda that it would overwhelm. It's clear that's all anyone here is asking for. And somehow that Council won't listen. It's a shame.
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