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Emergency Legislation Could Impact Brickyard

County executive and council authority on land disposition to be discussed at Tuesday’s public hearing.

County Council President Roger Berliner faced an angry crowd in Potomac last week, in contrast to the banners behind him.

County Council President Roger Berliner faced an angry crowd in Potomac last week, in contrast to the banners behind him. Photo by Ken Moore.

Council President Roger Berliner faced more than 100 angry citizens in January, the day before County Executive Isiah "Ike" Leggett and the county issued a request for proposals to build soccer fields on Brickyard Road.

Dennis Kelleher asked Berliner what he would do to help. "Here we are trying to fight the county executive on our own, and what you’re telling us is you don’t have the ability to help us with anything," Kelleher said. "We’d like to know anything, anything that our representative is going to do to help us stop this."

Berliner told West Montgomery County Citizens Association in January that the County Executive had the legal authority to proceed forward with his intentions.

"That was a community I represent, and my community said, ‘Councilmember Berliner, what can you do about this?’ I said, ‘I can’t do anything about it. The County Executive has that authority,’" Berliner said at Council headquarters Monday, March 19.

"At the end of the day, I looked at myself in the mirror and I wasn’t happy with that conversation," he said.

BERLINER AND FIVE other councilmembers introduced emergency legislation last week that would require the Council to approve any sale or lease of County property before it becomes final.

"The purpose of this requirement is to avoid a situation where [a County] Executive gains approval to dispose of a property and then modifies the term in a way that … might not be in the County’s best interest," according to Michael Faden, the Council’s senior legislative attorney.

The proposal was filed the week of the one-year anniversary of the Board of Education’s vote on March 8, 2011 to lease the 20-acre property to Montgomery County.

County Executive Ike Leggett wants to rent the land to Montgomery Soccer Incorporated or another soccer club to construct soccer fields on the property that has been leased to Nick Maravell to operate an organic farm there the last 30 years.

The County Executive has that authority and function, says the County Attorney, Marc P. Hansen.

"The negotiation and execution of agreements and legal instruments disposing of County-owned interests in real property is an executive function. The County Charter vests executive functions in the County Executive," according to Hansen.

THE EXPEDITED BILL would modify the procedures for disposition of county property and would require the Council to approve disposition of certain properties.

"Specifically, Bill 11-12 would modify County Code by: tightening up the current property disposition process (which includes an opportunity for Council comments but not approval) so as to preclude the broad exemptions found in current County regulations," according to documents filed with the bill.

Currently, Council legal staff and the County Attorney disagree over the Council’s ability to approve terms of land disposition, according to council documents.

According to the County Attorney, the expedited bill violates the County Charter by "authorizing the County Council to unilaterally veto a disposition of property."

A public hearing was held Tuesday, March 20, after the Almanac’s press deadline.

THERE IS ROOM for negotiation, according to both sides.

"Although we conclude that Bill 11-12 violates the separation of powers mandated by the County Charter, we do not mean to imply that the Council is without the authority to exert control over how the Executive effects a disposition of County-owned property," according to the County Attorney.

Monday, Berliner said both parties should enter a partnership where neither has unilateral decision-making authority.

"When we talk about a county asset, it seems as if the Council has a role to play," he said.

In its memorandum, the County Attorney suggested ways the Council could share in legal power.

"The Council could enact legislation to require the Executive to provide the Council with an opportunity to comment on the terms of any proposed property disposition, including the sale price," according to Hansen. "The Council could require that the Executive must dispose of surplus property at fair market value. Finally, the Council could require the Executive to obtain Council approval before declaring County-owned property as surplus."

"At the end of the day, I looked at myself in the mirror, and I wasn’t happy with that conversation."

— Council President Roger Berliner

LOCAL RESIDENTS learned about the Executive’s intent to lease the Brickyard Road farm to a soccer organization in March 2011, just a few days before the Board of Education voted to turn the land over to the county for soccer fields.

"The County Charter vests executive functions in the

County Executive."

— Marc P. Hansen, County Attorney

At January’s West Montgomery County Citizens Association meeting, Ginny Barnes asked for the process to be rewound, restarted and redone, with transparency this time around.

"The fact is there was no transparent process and all we have been asking all along is that we back up and rewind the tape and start over with a process that includes the community. The real issue is a transparent process that we were promised when Mr. Leggett ran for office."

At the meeting at Potomac Presbyterian Church, Berliner told Barnes, "I couldn’t agree with you more."