Judge Rules Against Bethesda Plaintiffs in Lawsuit Over Westbard Growth Plan

Plaintiffs are in talks about whether to appeal


Published:

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

AARON KRAUT

A judge has tossed out a lawsuit filed by Westbard residents who wanted to overturn Montgomery County’s growth plan for their Bethesda community.

Parties in the Montgomery County Circuit Court case have been waiting for months for the judge’s decision. The lawsuit filed against the county by more than 30 residents in the Westbard neighborhood claimed the Montgomery County Planning Board didn’t adequately consider greenhouse gas emissions when writing the plan and that the County Council failed to hold a required public hearing on the proposal before approving it. The plaintiffs also charged the county with illegally negotiating with developers over property zoning.

Judge Richard E. Jordan disagreed with the plaintiffs on each count in a ruling issued Friday.

“We’re happy with this ruling. We think it’s correct and in compliance with the law, and we intend to move forward just like we did before,” said Erin Girard, an attorney representing the developer for the Westwood Shopping Center in Westbard.

Patricia Kolesar, founder of the community group SaveWestbard, said residents are disappointed, but already talking about next steps.

“It was shocking that [the judge] ruled against us on three counts. We obviously think he’s wrong,” she said. “We’re going to regroup, and our plaintiffs and donors are going to decide if we’re going to appeal this or not.”

Girard said her client, Regency Centers, is moving ahead with its plans to redevelop the shopping center in Westbard, as allowed under the new zoning. In November, Regency unveiled a proposal that drastically scaled back an earlier redevelopment plan that had stirred strong community pushback. The new redevelopment plan is about half the size of the original proposal and would offer residents a larger civic green.

In his opinion, Jordan wrote county law does not require growth plans to lay out specific steps for reducing greenhouse gases, based on a carbon footprint analysis. The law does ask officials to consider environmental impact when crafting these plans, and Jordan said it appears county planners did so in this case.

“[F]or example, a bicycle network and related options were contained in the plan,” he wrote.

Girard pointed to a draft of the Westbard plan that included measures to encourage walking and cut down the number of vehicle miles traveled.  

Residents argue the law clearly requires planners to conduct a carbon footprint analysis, citing a Gaithersburg West Master Plan that states the law “requires the Planning Board to estimate the carbon footprint of areas being master planned.”

“The court decided that the County’s Planning Board and elected officials do not need to follow County law,” the plaintiffs’ attorney, Michele Rosenfeld, said in a prepared statement.

A SaveWestbard press release calls on county leaders to strengthen the requirement for a greenhouse gas analysis in light of the judge’s ruling.

“If nothing else, this ruling shows that the greenhouse gas emissions law has no teeth,” Kolesar said in the release.

The plaintiffs also complained about a lack of public process. County attorneys said the council received public testimony on the plan over two days in February 2016. However, the defendants said this wasn’t sufficient because the council wasn’t acting in the role of “district council,” the body with authority over planning and zoning.

Jordan ruled the plaintiffs were quibbling over semantics.

“Hearings were held and the public was heard on the Westbard issues before the members of the District Council,” Jordan wrote in his opinion after noting that members of the County Council and District Council are the same.

Jordan also opined that the county did not violate a prohibition against “contract zoning,” or an improper arrangement to trade zoning privileges for a concession by the property owner. The judge wrote the plaintiffs’ argument was flawed because the Westbard growth plan did not zone any properties; rather, the zoning that conformed with the plan was approved in a separate document.

Bethany Rodgers can be reached at bethany.rodgers@bethesdamagazine.com.

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