Update 10/20/17 – The 4th U.S. Circuit Court of Appeals last week upheld the lower court’s decision to dismiss the Siena Corp. zoning-amendment lawsuit against Bethesda officials. Judges Raymond A. Jackson, Paul V. Niemeyer and J. Harvie Wilkinson III unanimously agreed that the mayor and city council acted lawfully to limit the proximity of self-storage to public schools. Siena affiliate Rockville North Land LLLP was also listed as a plaintiff.
“While Siena obviously does not relish the result, displeasure with state democratic outcomes does not ordinarily rise to the level of a federal constitutional violation,” Wilkinson wrote in his opinion.
Wilkinson also agreed with the lower court’s opinion that Siena didn’t have grounds to sue since it hadn’t obtained building permits to begin construction, the source reported. The application of the zoning amendment to all developers, not just Siena, also was a factor in the court’s decision. “What matters is that the zoning text amendment applied to all developers—both present and future—who might entertain plans similar to Siena’s,” Wilkinson wrote.
An attorney representing the plaintiffs decline to comment on if the developers would appeal the decision.
5/31/16 – U.S. District Court Judge Roger Titus last week dismissed the Siena Corp. lawsuit against the Rockville mayor and two city council members for allegedly conspiring with citizens to block an ezStorage self-storage project. Titus also denied an ezStorage claim for $75,000 in damages, according to the source.
Titus agreed with the city that municipal officials couldn’t be sued over a zoning-text amendment, ruling they have “absolute immunity” from such lawsuits. He also said allowing the litigation in federal court would set a “dangerous precedent,” the source reported. Titus is a former city attorney for Rockville.
A Montgomery County Circuit Court judge dismissed Siena’s original case last year, but the self-storage operator has appealed that decision.
3/31/16 – Siena Corp., the parent company of ezStorage, a self-storage operator with 45 facilities throughout Maryland and Virginia, has filed a lawsuit against the mayor and city council of Rockville, Md., over a zoning-text amendment that prevented it from building a self-storage facility at 1175 Taft St. The property was within two blocks of Maryvale Elementary School, and the resulting zoning amendment prevents self-storage from being built within 250 feet of a public school.
Siena maintains the text amendment was a form of “spot zoning,” and alleges in its lawsuit that mayor Bridget Donnell Newton and councilmembers Beryl Feinberg and Virginia Onley conspired with a group of community activists to write the zoning amendment to block the project, according to the source.
Rockville officials have filed a motion to dismiss the case. A hearing to discuss the motion is scheduled for May 26 in U.S. District Court.
The Siena lawsuit was originally filed last year in Montgomery County, Md., Circuit Court and alleges the mayor and councilmembers shared privileged information to private citizens who opposed the project. It also alleges the city officials named in the suit coached “private citizen co-conspirators” in what to say during public hearings.
Five citizens—Diane Ferguson, Melissa McKenna, Patrick Schoof, Kashi Way and Peter Witzler—are also named in the lawsuit, but Siena has sued only Feinberg, Newton and Onley, along with an unnamed defendant it argues assisted in the alleged conspiracy, the source reported.
In their motion to dismiss the case, city attorneys said the zoning-text amendment was a legal action protected from judicial review. The city also maintains Siena hadn’t yet acquired building permits for the project or started construction, eliminating its standing on which it can sue, according to the source.
In a subsequent filing, Siena provided the court e-mails it obtained between Feinberg, Newton and the five residents. Siena’s attorneys say the messages demonstrate that Newton and Witzler came up with the idea to propose the text amendment during a council meeting in July 2014 as a way to block the project. The suit alleges the group knew it had to “downplay or entirely cover up the true, targeted nature of the zoning-text amendment,” the source reported.
The original lawsuit also indicates Newton brought up concerns about terrorist activities that could be harbored at the self-storage facility during a meeting about the project in August 2014. “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,” according to 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 council enacted the zoning-text amendment in February 2015 despite the planning commission having approved Siena’s site plan in September 2014.
Siena is asking for at least $75,000 in damages and for a court-ordered invalidation of the zoning-text amendment, the source reported.
Based in Columbia, Md., and founded in 1987, ezStorage operates 39 self-storage facilities in Maryland and another six in Virginia.
- Bethesda Magazine: Federal Judges Side With Rockville Officials in Case Over Thwarted Proposal for Self-Storage Facility
- Bethesda Magazine: Federal Judge Throws Out Zoning Case Against Rockville Leaders
- Bethesda Magazine: Lawsuit Claims Rockville Mayor and Council Members Conspired to Craft Illegal Zoning Law to Block Self-Storage Facility