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Preserving Our Neighborhood FOR IMMEDIATE RELEASE
Contact: Ginny Barnes 301‐762‐6423 Email: firstname.lastname@example.org Ted Duncan 301‐785‐7966 Email: email@example.com
CITIZENS FILE EXTENSIVE LAWSUIT AGAINST MONTGOMERY COUNTY, BOARD OF EDUCATION AND MSI REGARDING BRICKYARD LEASE
Potomac, MD, November 13, 2012—The West Montgomery County Citizens Association, Inc. and a number of private plaintiffs, all members of the Brickyard Coalition, today filed a legal complaint against defendants Montgomery County, County Executive Isaiah Leggett, the Board of Education (BOE), and Montgomery Soccer, Inc. (MSI). The Brickyard Coalition and its members had recently made a proposal to the Board of Education to end the Brickyard controversy and stop wasting hundreds of thousands of our tax money for attorneys. The settlement offer was rejected by the Board of Education in a letter from their attorney. "It is outrageous when County citizens are forced to seek legal recourse for what they should have had by right in the first place," said Ginny Barnes of the West Montgomery County Citizens Association. "We've worked for eighteen long months to restart a process that took place in secret and without any public knowledge. We are simply asking that the BOE and the County obey the law. By consistently and even arrogantly refusing to do so, they've left us no other recourse than to turn to the courts." The 48‐page, nine‐count lawsuit filed today in the Circuit Court of Montgomery County alleges, among other things, that the County Executive unlawfully conspired with the BOE to deliver the Brickyard public school land to a private corporation, MSI, at little or no cost. Additionally, the lawsuit alleges that: • The Board of Education breached their fiduciary duties as trustees of the Brickyard property. • The County violated the Maryland Express Powers Act. • The County violated County code 11B‐46 regarding leasing of property • The County violated County Code 11B‐45 regarding the disposition of the property • The County defendants violated the County procurement laws
• The Brickyard site is public land belonging to the citizens of Montgomery County—but it will not be used for Montgomery County public school children. A private organization, MSI, intends to build a commercial soccerplex in a quiet residential neighborhood of Potomac on the public site. Only MSI members who pay dues to MSI will be allowed to use the soccerplex—it will not be offered to the public. A summary of the complaint follows. The Brickyard Coalition is separately appealing the decision of the Board of Education to lease the Brickyard site to a private corporation to build a commercial soccerplex. In that action the court has issued a stay until the case is heard on the merits, now scheduled for February 8, 2013. All of the legal actions seek to hold the County, the County Executive, and the BOE accountable to the citizens of Montgomery County. The Brickyard Coalition is an umbrella organization of civic groups and private citizens joined together to require our public officials comply with the Master Plan; obey Zoning regulations and follow a transparent decision making process. The Coalition opposes to the proposed private soccer complex in a residential neighborhood. Participating organizations include the West Montgomery County Citizens Association (WMCCA); the Civic Association of River Falls (CARF); and the Brickyard Road Citizens’ Association.
BOE and County violated state laws regarding mandatory referral by failing to seek the approval of the Montgomery County Planning Board before a change of use was authorized for the Brickyard site. The BOE violated the Maryland Open Meeting Act
SUMMARY OF LEGAL COMPLAINT
COUNT I ‐ BREACH OF FIDUCIARY DUTY (DECLARATORY RELIEF ‐‐ AGAINST THE BOE) Pursuant to Maryland Code Education Article, Section 4‐114, the BOE holds the Brickyard Road School Site in trust for the benefit of the school system. The beneficiaries of the charitable trust created by Section 4‐114 include the parents of children attending Montgomery County public schools and the taxpayers of Montgomery County who fund the school system. As trustee of the Brickyard Road School Site, the BOE is charged with fiduciary duties that include (i) a duty of prudence that requires the BOE to administer the site as a prudent person would and to exercise reasonable care, skill and caution; (ii) a duty of loyalty that requires the BOE to administer the site solely in furtherance of the charitable purpose of the trust; and (iii) a duty to furnish information to beneficiaries that requires the BOE to keep fairly representative beneficiaries reasonably informed of changes involving the trusteeship and about other significant developments concerning the trust and its administration. The BOE violated each of those fiduciary duties when it decided to approve the lease of the Brickyard Road School Site to Montgomery County. COUNT II ‐ CIVIL CONSPIRACY (DECLARATORY RELIEF ‐ AGAINST THE BOE AND COUNTY DEFENDANTS) On a date to be determined in late 2009 or early 2010, but no later than June 8, 2010, Defendants knowingly and purposefully agreed to cause the BOE to breach its fiduciary duties, and thereby to violate Maryland Code Education Article, Section 4‐114, by approving a lease of the Brickyard Road School Site to Montgomery County for use as soccer fields without independent inquiry of its own, without considering how best the property could be used to serve the educational needs of Montgomery County residents, and following a secret decision‐ making process. Defendants committed numerous overt acts in furtherance of that agreement, including communicating with each other over the content of the lease and withholding information about those communications from Montgomery County taxpayers and parents of school‐age children. Plaintiffs have been injured by Defendants’ unlawful conspiracy which has (i) reduced the value of properties in the vicinity of the Brickyard Road School Site; (ii) caused additional expenditure by the County Executive and BOE which will need to be funded from Plaintiffs’ taxes; and (iii) denied them their right as citizens and as beneficiaries of the Section 4‐114 trust to be informed 3
in advance and able to influence decisions of the BOE and County effecting a change of use of the Brickyard Road School Site. COUNT III ‐‐ VIOLATION OF EXPRESS POWERS ACT, MARYLAND CODE ARTICLE 25A (DECLARATORY RELIEF ‐ AGAINST COUNTY DEFENDANTS) The Express Powers Act authorizes Montgomery County to acquire property by lease only when such property is required for public purposes. The Express Powers Act authorizes Montgomery County to lease property belonging to the County to other persons only when such lease is in furtherance of the public purposes of the County. The County Defendants entered into the lease of April 19, 2011 with the BOE for the Brickyard Road School Site intending subsequently to transfer control of the site to a private organization, for the purpose of constructing and operating ballfields reserved for the exclusive use of that organization. The proposal submitted by MSI in response to the County Executive’s RFQ‐DP for the Brickyard Road School Site provides for the public to be excluded from a large portion of the site, which will be enclosed within a fenced perimeter “to ensure that the use is controlled.” COUNT IV ‐ VIOLATION OF SECTION 11B‐46 OF MONTGOMERY COUNTY CODE (DECLARATORY RELIEF ‐ AGAINST COUNTY DEFENDANTS) The County’s acquisition of a lease to the Brickyard Road School Site was governed by Section 11B‐46 of the Montgomery County Code. Section 11B‐46 requires the County to publicize its intention to lease property so as to permit public comment. The County is required to advertise the lease and, unless the property owner refuses to consent, “post a sign on the property for at least 10 days before the deadline for receiving public comment in a manner that can be most readily seen by the public.” At no time prior to entering into the lease of the Brickyard Road School Site did the County comply with its obligation under Section 11B‐46 to post the property. COUNT V ‐ VIOLATION OF MONTGOMERY COUNTY CODE, CHAPTER 11B‐45 (DECLARATORY RELIEF ‐ AGAINST COUNTY DEFENDANTS) The County’s disposition of the Brickyard Road School Site by means of a sub‐lease to MSI exceeding five years in duration was governed by Section 11B‐45 of the Montgomery County Code. The County Defendants did not consult with the County Council on its plan to sub‐lease the Brickyard Road School Site to MSI, as required by the regulations issued pursuant to Section 11B‐45.
The County Defendants failed to issue a Request for Proposals or Bids identifying the criteria and procedures for selecting the successful proposal for development of the Brickyard Road School Site, as required by the regulations issued pursuant to Section 11B‐45. COUNT VI ‐ VIOLATION OF MONTGOMERY COUNTY PROCUREMENT CODE (DECLARATORY RELIEF ‐ AGAINST COUNTY DEFENDANTS) The County Defendants expressly chose not to apply the Procurement Regulations to the solicitation for construction services at the Brickyard Road School Site. As a result, the solicitation was not conducted under one of the formats authorized by the Procurement Regulations to ensure a competitive bidding process, but rather by means of a so‐called Request for Qualifications and Development Proposals that failed to state the criteria by which the winning bid would be selected. The only qualifying bid received as a result of this solicitation was that submitted by MSI. COUNT VII ‐ VIOLATION OF MARYLAND CODE, LAND USE ARTICLE 20‐301 ET SEQ (DECLARATORY RELIEF ‐ AGAINST THE BOE AND COUNTY DEFENDANTS) The Board of Education and the County have authorized a change in use of the Brickyard property without complying with the mandatory referral statute. Under Maryland law, land use decisions by the federal, state and county governments are subject to the “mandatory referral” process described in the Regional District Act, codified at Article 20‐301 et seq. of the Maryland Code. Under that process, both the BOE and County are under a legal obligation to seek the approval of the Montgomery County Planning Board before they authorize a change of use of any park, or other public way or ground or the acquisition or sale of any land by any public board, body of official. COUNT VIII ‐ VIOLATION OF MARYLAND OPEN MEETINGS ACT (DECLARATORY RELIEF ‐ AGAINST BOE DEFENDANTS) The Open Meetings Act (the “OMA”) requires that public bodies meet in open session. OMA Sec. 10‐505. Meetings may only be closed for the limited reasons set forth in the OMA. See id. 10‐508, 10‐509. Before a meeting of a public body can be closed to the public, the body’s presiding officer must provide a citation to the legal authority relied on for the closing, a listing of the topics to be discussed, and a statement of the reason for the closing. Id. at 10‐508(d)(3). On June 8, 2010, the BOE met in a public session and adopted a written closing resolution. The closing resolution cited Sec. 10‐508(a)(3) of the OMA and Section 4‐107(d) of the Education Article as legal authority for the closing. The minutes of the June 8, 2010 meeting demonstrate that the BOE discussed the Brickyard Road School Site during its closed session. Both OMA Sec. 10‐508(a)(3) and Sec. 4‐107(d) of the Education Article apply only to acquisition of real
property, rather than divestment of real property, which was the subject of the closed session. As such, the BOE’s discussion of the Brickyard Road School Site in closed session on June 8, 2010 violated the OMA. On March 8, 2011, the day the BOE approved the lease to Montgomery County of the Brickyard Road School Site, the BOE met twice in closed session. The Report of Closed Sessions filed subsequently by the BOE described the purpose of those closed sessions as being to discuss “matters relating to the use of real property for a public purpose.” The BOE discussed the lease of the Brickyard Road School Site during the closed sessions. The only legal authority cited by the BOE for holding closed‐session meetings was once again, OMA Sec. 10‐508(a)(3) and Section 4‐107(d) of the Education Article, both of which apply to the acquisition of real property but not its divestment. As such, the BOE’s discussion of the Brickyard Road School Site in the two closed sessions violated the OMA. Opinions of the State Attorney’s Open Meetings Compliance Board dated June 27, 2011 and July 13, 2011, 7 Official Opinions of the Compliance Board 208 (2011) and 7 Official Opinions of the Compliance Board 245 (2011). COUNT IX ‐ PERMANENT INJUNCTIVE RELIEF (AGAINST ALL DEFENDANTS) This is an action for permanent injunctive relief pursuant to Maryland Rules 15‐501 through 15‐ 505, seeking to enjoin Defendants from engaging in any action at the Brickyard Road School Site predicated on either the lease between the BOE and County or the Sublease and Development Agreement between the County and MSI, including: i. Permitting MSI to occupy or operate the site. ii. Any construction or other alteration to the site related to the development of soccer or other ballfields.
Defendants have been on notice that the lease is unlawful since April 5, 2011, the date on which appeals were filed against the lease decision with the State Board of Education. There exists a strong likelihood that Plaintiffs will succeed on the merits of their claims. Unless Defendants are enjoined from continuing with their unlawful scheme to turn the Brickyard Road School Site over to a private corporation to operate as soccer fields, Plaintiffs will suffer immediate, substantial, and irreparable harm as neighboring property owners, taxpayers of Montgomery County and beneficiaries of the trust created by Maryland Education Article § 4‐114. The lease authorizes the building of ballfields that will permanently alter the nature of the Brickyard Road Site and the Plaintiffs’ community. A third‐party contractor, MSI, has already been obtained to begin construction—the start of which will immediately and irreparably damage the organic farm located on the site. Further, no remedy at law exists for Defendants’ circumvention of statutory and regulatory requirements designed to obtain public input.
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