Judge to rule on whether Westbard lawsuit can proceed in coming weeks

A Montgomery County Circuit Court judge found enough to consider in residents' lawsuit against the County over the Westbard sector plan, that he did not dismiss any of the three counts Wednesday. Judge Richard Jordan pushed back against attorneys for the County and developer Regency Centers, who asserted the suit's claims were "much ado about nothing."

Jordan felt otherwise. County attorney Clifford Royalty, who raised his voice and frequently shifted between exasperated and snarky in tone, claimed the fact that the County Council didn't sit as the District Council when holding February 2016 public hearings on the plan was merely a technicality.

"It might be a technicality," Jordan replied, "but it's the District Council that makes these decisions." The judge noted that he himself in the same docket may sit as the Orphans' Court in the Circuit Court. "It may be nomenclature," he said, "but it's also got substantive importance." Residents could only be aware the District Council was considering the plan if that fact was stated on all of the announcements, he said.

The defense team is counting strongly on what they termed their "ace in the hole," a safe harbor provision passed by the state legislature that conveniently shields sector plans from most challenges in court. They challenged the plaintiffs' taxpayer standing in the case, suggested that the only legal remedy was to have asked for judicial review of the Westbard plan's Sectional Map Amendment, and said the case should be dismissed because the Planning Board should have been a defendant from the beginning. Defense attorneys also claimed the amended complaint had changed too much over recent months. Of course the details would change, as new information revealed during discovery came to light, but the three claims have remained constant over the life span of the case.

For some context, Royalty has indirectly lost to plaintiffs' attorney Michele Rosenfeld in the past. Representing residents of Kensington Heights, Rosenfeld was successful in stopping a 16-pump gas station residents felt was too close to their homes around Wheaton Plaza. It was Royalty who issued an opinion as the County's top development lawyer which said a proposed bill to block the station was unconstitutional. Royalty also lost in Circuit Court when he represented the County in its bizarre high priority of banning fortune telling in 2010. He did tell the judge he was not on the County's team in the disastrous recent legal action over the Silver Spring Transit Center. "Lucky you," Jordan responded dryly.

Jordan seemed to find merit in Count 1's assertion that the Planning Board never conducted the required analysis of greenhouse gas emissions and reduction of vehicle miles traveled in either the plan itself, nor in the appendix. The defense made the most novel assertion of the day on that count, claiming that the phrase in the County law which says the Planning Board "must" assess those environmental impacts didn't mean it had to. "The word, 'must,' doesn't mean it's mandatory," said Regency Centers attorney Gerald Heller, as many in the courtroom shook their heads in disbelief.

"So what's the purpose of the law?" Jordan asked. "What would an apartment dweller's remedy be, if emissions were not assessed?" The judge said the word "assess" is "considerably stronger than 'consider.' What does 'assessment' mean, if it doesn't mean to measure?" "Fair point, your honor," Royalty replied. "Your point is valid [but] I fall back on my ace in the hole. Case law hasn't allowed for a sector plan challenge, so I don't know what the remedy is."

Counts 1 and 2 are very straightforward, but Count 3, alleging illegal contract zoning, will likely be the most complicated to sort out.

The judge did seem to agree at one point that the Planning Board should be added as a defendant. Defense attorneys asserted the same, but said it would be too prejudicial to their clients to add the board at this point, and that Jordan should dismiss the suit on those grounds alone. But he did not.

Jordan did not tip his hand either way as to how he might rule. He said the issues brought up over the 150 minute session in front of a packed gallery of residents were too complex to make that ruling yesterday, however - clearly indicating he felt the claims were valid enough to at least require detailed study. That was encouraging short-term news for the plaintiffs.

Jordan's decision will be announced in the coming weeks. If Jordan rules a trial is warranted on any of the three claims, the tentative date would be October 2. Rosenfeld yesterday withdrew a request for a jury trial.