County Attorney Urges Judge to Scrap Westbard Lawsuit

Plaintiffs claim county didn't follow public process when crafting growth plan


SaveWestbard protesters hold a sign at a protest outside the County Council Office Building when the council approved the plan in 2016.

Aaron Kraut

Attorneys clashed in Montgomery County Circuit Court on Wednesday in a case aimed at overturning the county's growth plan for the Westbard community in Bethesda. 

The lawsuit, filed in September by 33 plaintiffs who live in the Westbard area, charges the County Council with failing to hold a required hearing and bargaining with developers out of public view. It also claims that the planning board didn't evaluate greenhouse emissions while crafting the plan.

Michele Rosenfeld, an attorney representing the community members, asked a judge on Wednesday to void the plan, which sets the stage for redevelopment of the aging Westwood Shopping Center and the construction of apartments and a high-rise in the neighborhood. Clifford Royalty, a county lawyer, asked the court to toss out the case.

As the afternoon hearing wound down, Judge Richard Jordan said he'd need time to consider the arguments.

"This is not a simplistic set of events that have to be considered," he said.

However, he said he'd try to issue his decision quickly to give all parties time to prepare for the October trial date.

The hearing came almost a month after plaintiffs submitted their third version of the lawsuit, this one adding the Montgomery County Housing Opportunities Commission as a defendant.

Royalty and the attorney for the Westbard developer, Equity One, objected to the way the complaint has evolved. While the basic charges have remained the same, the underlying arguments and facts have shifted, Royalty said.

"I'm not sure what their legal theory is at any given time," he said. "It's a moving target."

Equity One's attorney, Gerald Heller, said the latest complaint is about 150 paragraphs longer than the initial filing.

Rosenfeld stressed that the allegations against the county and Equity One have remained consistent throughout.

The first count in the complaint deals with laws directing planning boards to consider greenhouse emissions while crafting growth plans. Rosenfeld alleged the planning board dropped the ball and didn't conduct an analysis.

Royalty said Rosenfeld was interpreting the word "consider" too rigidly and argued the plan encourages bike-riding and addresses other ways of reducing the carbon footprint. 

Answering the claim about lack of public process, Royalty said the council took public comments at two meetings in February 2016. At least one of the plaintiffs attended, he said.

Rosenfeld said the hearings weren't sufficient because the council didn't hold them in the role of "district council," the body with authority over planning and zoning.

Royalty recognized the distinction, but said it only applies when officials are making decisions. The rules are different for public hearings, when a quorum isn't required and the council doesn't vote, he said. The hearings simply provide a chance for people to give input, he added.

Rosenfeld said the statement that council members don't have to attend public hearings betrays a "cavalier attitude" that "kind of sums up the whole process of this plan."

"Excuse me. What we're talking about is the law," Royalty later retorted.

Finally, the two sides clashed over a claim that the county engaged in "contract zoning," an improper arrangement to trade zoning privileges for some concession by the property owner.

In this case, the zoning deal was made to advance an affordable housing project, Rosenfeld said. 

The plaintiffs also accuse county officials of trying to cover up the existence of a historic African-American burial ground at the project site near the Housing Opportunities Commission apartments.

Royalty dismissed the cemetery allegations as off-topic, saying they didn't relate to the plaintiffs’ legal arguments.

He continued his rebuttal by contending that the Westbard plan is a non-binding, visionary document and does not establish zoning.

"It can't implement an illegal zoning scheme because it doesn't zone," he said.

Officials zoned the Westbard area through a separate document, called a sectional map amendment, he said.

Heller added that the county's attempt to encourage construction of moderately priced housing in Westbard far from illegal; in fact, it's in keeping with county laws and policies.

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