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Time To Wait?

New lawsuit, new proposals, new policies emerge from Brickyard controversy.

— After nearly two years of controversy concerning a 20-acre “future school” site on Brickyard Road, some new ideas emerged as Montgomery County Council held a town meeting on Nov. 7 at the Potomac Community Center.

“The way this matter has unfolded has been ugly and costly to everyone involved,” five councilmembers wrote in a letter to County Executive Isiah Leggett and Board of Education President Shirley Brandman. “We do not think this result is necessary or inevitable.”

George Leventhal (D-at large) wrote a letter of his own. “This turmoil has not only tainted our constituents’ opinion of representative government, but it has also completely shut down communication,” he said.

9 Reasons

The Brickyard Road Coalition and its member groups filed a lawsuit, claiming the following violations:

COUNT 1

Breach of Fiduciary Duty

The Board of Education holds the Brickyard Road School Site in trust for the benefit of the school system. …

As trustee of the Brickyard Road School Site, the BOE is charged with fiduciary duties that include 1) a duty of prudence that requires the Board to administer the site as a prudent person would and to exercise reasonable care, skill and caution; 2) a duty of loyalty that requires the Board to administer the site solely in furtherance of the charitable purpose of the trust and 3) a duty to furnish information to beneficiaries that requires the Board of Education to keep fairly representative beneficiaries reasonably informed of changes involving the trusteeship and about other significant developments concerning the trust and its administration.

COUNT II

Civil Conspiracy

Defendants knowingly and purposefully agreed to cause the Board of Education 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.

COUNT III

Violation of Express Powers Act

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 Board of Education 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 the organization.

COUNT IV

Section 11B-46 requires the County to publicize its intention to lease property so as to permit public comment. … At no time prior to entering into 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 11B-45

The County Defendants did not consult with the County Council on its plan to sublease the Brickyard Road School Site to MSI, as required by regulations issued pursuant to Section 11B-45.

COUNT VI

Violation of Montgomery County Procurement Code

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 of one of the formats authorized by the Procurement Regulations to ensure a competitive bidding process.

COUNT VII

Violation of Maryland Code, Land Use Article 20-301

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 that process, both the Board of Education and the County are under a legal obligation to seek 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

“On June 8, 2010 the Board of Education met in public session and adopted a written closing resolution. … The minutes of the June 8, 2010 meeting demonstrate that the Board of Education discussed the Brickyard Road School Site during its closed session. Both Open Meeting Act 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.”

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 Board of Education and County or the Sublease and Development Agreement between the County and MSI, including:

1) Permitting MSI to occupy or operate the site

2) 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 4, 2011, the date on which appeals were filed against the lease decision with the State Board of Education.

At the rare town hall meeting that featured eight of the nine members of County Council, councilmembers suggested that a current stay in one of the battles in Montgomery County Circuit Court offers a “time out” in order “to consider fresh approaches and a transparent process to meeting each of the legitimate needs of our community that has been raised by this divisive debate.”

“The court’s ‘stay’ very clearly indicates that none of the stakeholders are guaranteed a victory in this contest,” according to the letter from the councilmembers. “Bringing the best of Montgomery County to bear, we believe it may be possible to find common ground and put this matter behind us.”

DURING THE TWO weeks since the town meeting, West Montgomery County Citizens Association filed an additional law suit in Montgomery County Circuit Court, the school board has requested public input on its “Disposition of Property” policy and a neighborhood homeowners association has pleaded that it be consulted before its neighborhood is considered for an alternative solution for soccer fields.

West Montgomery County Citizens Association and members of the Brickyard Coalition filed a 48-page, nine-count lawsuit against the county, County Executive Isiah Leggett, the Montgomery County Board of Education, and Montgomery Soccer Inc. on Nov. 13 in Montgomery County Circuit Court.

"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 18 long months to restart a process that took place in secret and without any public knowledge. … They've left us no other recourse than to turn to the courts."

The Brickyard Coalition filed its allegation that “the county executive unlawfully conspired with the Board of Education to delver the Brickyard public school land to a private corporation, MSI, at little or no cost,” according to the law suit.

West Montgomery and the Coalition allege that the Board of Education breached its fiduciary duties as trustees of the Brickyard property, that the county violated Maryland law and County Code regarding mandatory referral, leasing of property and disposition of property, and that the Board of Education violated Maryland Open Meetings Act.

The civic organizations say that the public’s right to have access to information about the government’s affairs concerning the decision to convert the Brickyard Road farm site into soccer fields was violated from the beginning.

The county, Board of Education, MSI and County Executive Isiah Leggett will soon file legal opposition in response to the lawsuit in Circuit Court, and Leggett’s spokesperson replied promptly to the accusations.

“There is no change in the county’s position that public land should be used for public purposes, as called for in the Potomac Master Plan unanimously approved by the County Council. This lawsuit is mainly just a rehash of previous suits and contains assertions not supported by fact,” said Patrick Lacefield, spokesman for the county. “Especially ironic is the complaint that the county is spending public resources defending the public interest against lawsuits by — you guessed it — the coalition.

“Also ironic is that the coalition is arguing that ballfields and physical education for kids is not in keeping with an educational use of the property while they had no objection to the same land being used for 30 years by a private commercial farmer — and that lack of objection remains to the present day,” Lacefield said.

Leggett says that there is a critical need for additional soccer fields in the down county area.

"We've worked for 18 long months to restart a process that took place in secret and without any public knowledge. … They've left us no other recourse than to turn to the courts." — Ginny Barnes, West Montgomery County Citizens Association

THE SAME DAY the legal complaint was filed in Circuit Court, the Board of Education tentatively adopted Policy DNA, Disposition of Board of Education Property on Nov. 13.

The Board of Education requests community comment on revisions to the policy.

“Maryland law governs the disposal of real property by local boards of education. Subject to the approval of the state superintendent of schools, local boards of education shall transfer grounds, school sites, or buildings no longer needed for school purposes to the County Council,” according to the policy draft, available on the Board of Education website.

“In the event that any Board real property is considered to have no further use for school system purposes, the superintendent of schools shall make a recommendation to the Board for disposition. The recommendation will include the rationale for the proposal, an estimate of the market value of the property, and the identification of the amount and year of state appropriations for construction and/or improvements buildings on the site.”

The Board requests public input by Jan. 9.

The Avenel Community Association became involved after councilmembers suggested Avenel be considered as one possible alternative for placement of soccer fields.

“While we understand the desire of the county to identify areas suitable for soccer fields down county, I believe we conveyed the seriousness in which we view the prospect of adding soccer/recreational fields to the equestrian center, an amenity and centerpiece of our community,” wrote Lucy P. Wilson, general manager of the community association. “We appreciate and rely on your commitment to keep us informed and directly involved should any such site ever be identified or up for discussion or consideration.”

NICK MARAVELL has leased the 20-acre site from the Montgomery County School Board for more than 30 years, running an organic farm, which produces heirloom GMO-free corn, and soybean seed. More recently, his daughter, Sophia Maravell has run the Brickyard Educational Farm on the site as well, bringing in local school children to learn about farming.

Nearly two years ago in March 2011, Nick Maravell, neighbors and civic organizations in Potomac learned that Leggett had already decided to take control of the 20-acre school property on Brickyard Road to turn it over to a private organization for development into soccer fields. The Board of Education voted with only a few days notice to lease the property to the county for that purpose.

Local food advocates, neighbors and civic associations have expressed outrage that there was no public process for the decision, including filing several lawsuits. They have asked to turn back the decision and begin a transparent process with public input and discussion.