The Rockville Planning Commission violated Maryland’s Open Meeting Act four times over the course of two meetings in 2018 and 2019, a state board has found.
Now, the mayor and City Council are figuring out how to respond — but their discussions have kicked off in private, at the insistence of their attorney.
The underlying issue is the Planning Commission’s approval in September 2018 of a site plan for a four-car parking garage behind 107 W. Jefferson St. — the site of a historic Italianate villa registered as the Cooke Luckett House on the Maryland Historic Sites Inventory.
Two community organizations opposed the decision, arguing that the Planning Commission failed to consider a historic overlay zone over the property. Both Peerless Rockville and the West End Citizens Association (WECA) sent separate letters to commissioners within a week of the approval, asking them to reconsider.
Noreen Bryan, the vice president of WECA, said the commission didn’t discuss either of the requests at its next two meetings on Sept. 26 and Oct. 10. That forced her and Jacques Gelin, another member of WECA, to ask the Montgomery County Circuit Court to review the decision, she said.
The planning commission later held two closed meetings with city attorneys to discuss the litigation and the requests for reconsideration. But the state’s Open Meetings Act Compliance Board recently ruled that the closed-door sessions violated sections of a law that requires government agencies to meet in public, with limited exceptions.
WECA withdrew its request for a review by Montgomery County Circuit Court last February.
Mayor Bridget Donnell Newton wanted to respond to the opinion at a City Council meeting on Jan. 6, and to discuss whether the Planning Commission appropriately interpreted local zoning codes when issuing a decision on the garage site plan.
But Debra Yerg Daniel, the head of the City Attorney’s Office in Rockville, sent the mayor and council a confidential memo responding to the state board’s findings before the meeting. She warned that the office’s legal advice was confidential, and that any discussion involving her staff was a personnel matter that couldn’t be discussed in public.
The Planning Commission’s approval of the garage and subsequent decision to hold two closed-door discussions came after the guidance of city attorneys. That left Donnell Newton and council members struggling to speak openly about the matter at their meeting on Monday.
“The big problem we have this evening is that we all know something we can’t discuss,” said Council Member Mark Pierzchala, who made a failed motion as the meeting started to remove the discussion from the council’s public agenda.
City leaders ultimately voted to move the discussion to a closed session. In a phone interview after the Jan. 6 meeting, Donnell Newton called it a “baffling” decision driven by Daniel’s frequent requests for confidentiality.
“I think that’s one of the frustrations — that legal advice is always considered privileged and confidential and that ties our hands,” Donnell Newton said.
“My goal is to get the city to a place where we’re not constantly in a state of friction between our community partners and the city attorney’s office,” she added later.
Daniel declined to comment on the Open Meetings Act violations or Donnell Newton’s statements about meeting in closed session.
For the two civic groups, the decision was especially frustrating after nearly a year and a half of back-and-forth with the Planning Commission over the initial site plan approval.
Nancy Pickard, the executive director for Peerless Rockville, said at the Jan. 6 meeting that neither organization is currently interested in reopening the decision or continuing to fight the garage. The final building permit for the structure was approved in March 2019, and it was completed in September — exactly two years after her organization submitted its request to the city for reconsideration.
But Pickard added there were ongoing concerns over transparency within the Planning Commission. Both groups were troubled that commissioners met behind closed doors to decide whether to reconsider the site plan approval.
When the commission held a closed session on Nov. 5, 2018, it cited a “legal advice” exception in the Open Meetings Act that allows public agencies to receive confidential guidance from attorneys. But the exception should be “narrowly construed to cover only the interchange between the client public body and its lawyer in which the client seeks advice and the lawyer provides it,” according to a letter from the state compliance board.
According to minutes from the meeting, commissioners discussed WECA’s judicial petition, but also voted on a motion to reject the group’s reconsideration request. That violated the legal advice exception and a broader section of the law that requires public bodies to meet openly.
Pickard said Peerless Rockville was also troubled that its own reconsideration request to the city was never discussed publicly.
In May 2019, months after the initial closed session, she discovered that WECA had withdrawn its petition against the Planning Commission. After she found out, Peerless Rockville sent another letter to commissioners, asking them to address the second request in open session.
On August 7, the commission held another closed session to discuss the letter, again receiving advice from a city attorney and ultimately voting not to reconsider the site plan approval. That violated the same sections of the Open Meetings Act as the Nov. 5 session, the state board found.
Both Pickard and Bryan said the groups were hoping for an open conversation about the violations and the city’s zoning ordinances, especially as they applied to historic properties.
But Pierzchala and other council members said it would be impossible to discuss the issues without going into what their attorney considers confidential personnel issues.
Council Member Monique Ashton ultimately made a motion to discuss the violations — and possible responses by the city — during another closed session. Ashton, Pierzchala, Donnell Newton and Council Members Beryl Feinberg and David Myles voted yes.
Donnell Newton said the closed session would let them discuss the zoning ordinance and advice from city attorneys without confidentiality concerns. City leaders were also likely to discuss a request from the Planning Commission for an independent review of their decision to close the meetings and disregard the historic overlay over the property, she added.
If the council reached a resolution with the city attorney’s office, the issue could be reintroduced in an open meeting, she added.
“The community has made it very clear that they’re not looking to overturn the case. They just want to understand the advice that was given,” Donnell Newton said.