A self-storage warehouse company’s lawsuit over a City of Rockville zoning change that blocked it from building a facility near an elementary school is set for a May hearing in federal court.
The lawsuit from ezStorage alleges that Rockville Mayor Bridget Donnell Newton and Council members Beryl Feinberg and Virginia Onley conspired with a group of activists to craft an illegal zoning text amendment to block the building of a self-storage warehouse.
The zoning change, which was formally approved by the council in February 2015, prohibits self-storage warehouses from being built within 250 feet of a public school property line.
Newton, Feinberg and Onley voted to approve the change over the objections of two other council members and the city’s Planning Commission.
The three were backed in public hearings and council meetings by a group of residents concerned about safety issues they said the storage facility could cause for students at nearby Maryvale Elementary School. Howard County-based Siena Corporation, which owns ezStorage, planned a four-story, 900-storage unit facility about 210 feet from the school’s property line.
Last week, the office of U.S. District Court of Maryland Judge Roger Titus advised all parties involved in the lawsuit that a hearing on the City of Rockville’s motion to dismiss the case is set for May 26.
In the lawsuit that was originally filed last year in Montgomery County Circuit Court, Siena alleged that “Among other things, the private citizens conducted a propaganda and smear campaign against Siena, while the Councilmember Defendants leaked internal Mayor and Council information and attorney-client privileged information to the private citizens; coached the private citizen co-conspirators as to what to say and do at public hearings, with which the private citizen co-conspirators complied; and lied—along with their private citizen co-conspirators—at public hearings.”
While the activists opposed to the self-storage facility—Kashi Way, Diane Ferguson, Melissa McKenna, Peter Witzler and Patrick Schoof—are named in the lawsuit, so far Siena has sued only Newton, Feinberg, Onley, the “Mayor and City Council of Rockville Maryland” and an unnamed defendant it claims assisted in the conspiracy.
In a motion to dismiss the lawsuit filed in February, lawyers for the City of Rockville said the zoning text amendment was a legal action by a legislative body that is protected from judicial review.
The city’s lawyers also said Siena doesn’t have standing to sue over the zoning change, in large part because it hadn’t yet acquired building permits for the project or started construction.
But Siena, which got site plan approval for the project from the city’s Planning Commission, says the zoning text amendment is an example of illegal “spot zoning,” meaning it was targeted specifically at the company’s project, violating the company’s Constitutional rights and Maryland land use law.
It’s asking for at least $75,000 in damages and for the court to invalidate the zoning text amendment.
The company also provided emails, acquired through the discovery process, between Newton and Feinberg and the five activists who opposed the storage facility that its says prove the group knew it had to “downplay or entirely cover up the true, targeted nature of the zoning text amendment.”
“Since the filing of its initial Complaint, Siena has obtained discovery, which now necessitates the filing of this Second Amended Complaint due to outrageous and perhaps unprecedented misconduct by the individual Defendants and their co-conspirators,” reads the lawsuit.
Attorneys for Siena claimed the emails show Witzler and Newton “jointly came up with the idea” of proposing a zoning text amendment at an upcoming council meeting in early July 2014, at which point the company’s site plan application process was underway.
Siena’s attorneys pointed to a July 29, 2014 email from Witzler to Schoof and McKenna in which Witzler said he discovered it costs $3,000 for a resident to file a zoning text amendment. He suggested the group “tell this story in front of Mayor and council and ask them to introduce during the amendment as it is written by us. That way our version of it—the most restrictive/best possible option—becomes a matter of public record.”
At the mayor and council’s Aug. 11, 2014 meeting, Witzler suggested a zoning text amendment.
In its original lawsuit, Siena claimed company representatives met with Newton on or about Aug. 26, 2014 to discuss the project and Newton brought up concerns the storage facility could harbor terrorist activities.
“At that time, the Mayor identified herself as a ‘community activist,’ and referenced a novel she had read in which, as part of the plot, terrorists stored bomb-making equipment in self-storage facilities,” reads the complaint. “Although the Mayor acknowledged that the novel was a work of fiction, she repeatedly referenced the plot of the fictional work as a potential ‘danger’ to the City.”
The city’s Planning Commission, finding the self-storage facility wouldn’t add significant traffic to the area or pose danger to the nearby school, approved Siena’s site plan application in September 2014.
Siena claimed the emails laid out in the lawsuit show the activists stayed in regular communication with Feinberg and Newton as the process continued into February 2015.
In their motion to dismiss the lawsuit, attorneys for the city said Siena provided “no factual basis” behind the idea it was unconstitutionally targeted by the zoning change. They also said the emails between city officials and the activists weren’t illegal.
A city spokesperson told Bethesda Beat it is the policy of the city not to speak on matters that are currently in litigation.
Schoof, one of the activisits who fought the self-storage facility, ran and lost for a spot on the city’s council last fall. His efforts against the construction of the self-storage facility were a prominent part of his campaign.
In an October 2015 candidates’ forum, Feinberg touted her role in creating the zoning text amendment and said if she was reelected, she’d work to enact other laws to ban liquor stores, pawn shops and gun stores from being within school zones.
Feinberg, Onley and Newton were reelected, along with Julie Palakovich Carr, one of the council members who opposed the zoning text amendment. Tom Moore, the other council member who opposed the zoning change, didn’t run for reelection.
