Rockville Motion To Dismiss

Case 8:16-cv-00243-RWT Document 15-1 Filed 02/08/16 Page 1 of 53
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND
SIENA CORPORATION, et al.
Plaintiffs
v.
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THE MAYOR AND CITY COUNCIL

OF ROCKVILLE, et al.
Case No.: RWT 16cv00243
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Defendants
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT
Defendants, the Mayor and Council of Rockville (improperly named the Mayor and City Council
of Rockville) (hereinafter referred to as the Mayor and Council or the City), Rockville Mayor Bridget
Newton, Rockville City Councilmember Beryl Feinberg, and Rockville City Councilmember Virginia Onley
(collectively referred to as Defendants), by KARPINSKI, COLARESI & KARP, P.A., KEVIN
KARPINSKI, SANDRA D. LEE and DEBRA DANIEL, their attorneys, file this Memorandum in support
of their Motion to Dismiss or, in the Alternative, for Summary Judgment.
TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1.
Plaintiffs negotiated for the purchase of the Property and applied for a favorable
zoning text amendment, which was enacted without incident by the Mayor and
Council.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Residents and other interested individuals expressed health and safety concerns about
a large self-storage facility in the neighborhood of a public school, and the Mayor
and Council subsequently introduced the Zoning Text Amendment.. . . . . . . . . . . . . . . . . 5
3.
The Zoning Text Amendment was enacted pursuant to State and local law.. . . . . . . . . . . 9
STANDARD OF LAW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I.
Siena Does Not Have Standing to Bring the Instant Claims. . . . . . . . . . . . . . . . . . . . . . . 20

A.
Article III of the United States Constitution Requires, Inter Alia, that a
Plaintiff Must Have Suffered an Injury in Fact, i.e., an Invasion of a Legally
Protected Interest Which is Concrete and Particularized as well as Actual or
Imminent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B.
Siena Has Only Alleged Loss of an Expectation of a Zoning Right or Loss

of Ability to Develop the Property as a Self-Storage Facility, Which is Not
an Injury in Fact or Invasion of a Legally Protected Interest, and Therefore
Siena Does Not Have Standing to Bring the Instant Federal Constitutional
Claims Against Defendants... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
C.
Siena Does Not Have Any Protected Property Interest Based on a Mutual
Understanding or on Actions by the City.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
D.
Siena Does Not Have Standing Under Maryland Law, Either as a Property
Owner or as a Taxpayer, to Challenge the ZTA, When the ZTA is a Duly and
Properly Enacted Amendment to the City Code... . . . . . . . . . . . . . . . . . . . . . . . . 27
II.
Even if Siena Had Standing to Claim a Violation of Due Process, The Absence of a
Constitutionally Protected Property Interest or Vested Right Precludes its Due
Process Claim.... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
III.
Even if Siena Had Standing to Claim a Violation of Equal Protection, Siena Has
Alleged No Facts That Show Discriminatory Classification or Effect and Has Failed
to State a Claim for Violation of its Right to Equal Protection . . . . . . . . . . . . . . . . . . . . 33
IV.
Even if Siena Had Standing, an Alleged Improper Legislative Motive is Not a Basis
to Challenge the Zoning Text Amendment... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
V.
The Individual Defendants Have Absolute Legislative Immunity.... . . . . . . . . . . . . . . . . 36
VI.
The Mayor and Council Has No Vicarious Liability for Any Constitutional
Violations by Individual Defendants and Has Governmental Immunity from Suit for
the Common Law Tort of Fraudulent Misrepresentation... . . . . . . . . . . . . . . . . . . . . . . . 38
ii
VII.
Siena Failed to Comply with the LCGTAs Notice of Claim Requirements, and
Therefore the State Law Claims are Procedurally Barred... . . . . . . . . . . . . . . . . . . . . . . . 40
VIII.
Sienas Claim in Count I, that the Revised ZTA is Invalid and Void ab Initio for
Defendants Alleged Failure to Properly Follow the Procedures in Section 25.06.02
of the Code, is Refuted by the Record Which is Referenced and Relied Upon in the
Second Amended Complaint.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
IX.
Sienas Claim in Count II, that the ZTA and Revised ZTA Violate Land Use
Article 4-102 is Refuted by the Record.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
X.
Sienas Claims in Count III, that the ZTAs Violate Land Use Article
4-201(b)(2)(i); in Count V, that the ZTAs are an Invalid Special Law in
Violation of Article III of the Maryland Constitution; and in Count VII, that the
ZTAs are an Illegal Targeted Zoning, all Fail to State a Claim and are Refuted by
the Record.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
XI.
Sienas Claim in Count VI that the ZTAs Violate Article 24 of the Maryland
Declaration of Rights Fails, as a Matter of Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
XII.
Sienas Claims in Counts VIII and IX for Injunctive Relief Should be Dismissed.. . . . . 47
XIII.
Sienas Claim in Count XIII for Violation of the Maryland Open Meetings Act is
Barred by the 45-Day Statute of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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INTRODUCTION
On the grounds of improper motive of legislators and citizens who supported an amendment to the
Zoning Ordinance Chapter of the Rockville City Code, which was then enacted by the Mayor and
Council, Plaintiffs Siena Corporation and Rockville North Land LLLP (referred to, collectively, as
Plaintiffs or Siena) are suing the City, its Mayor, and two of its Councilmembers. Siena originally filed
two actions against the City in the Circuit Court for Montgomery County: (1) the instant suit challenging
a zoning text amendment and seeking declaratory and injunctive relief; and (2) a parallel action seeking
judicial review. The Circuit Court dismissed the action for judicial review, holding the zoning text
amendment at issue is legislation and is not subject to judicial review.
Siena appealed the dismissal of the petition for judicial review. It then amended the instant action
to bring claims against three individual Defendants as well: the City of Rockvilles Mayor Bridget Newton
and Councilmembers Beryl Feinberg and Virginia Onley. The amended complaint also added common law
and constitutional tort claims, including claims under 42 U.S.C. 1983, and added claims for compensatory
damages and punitive damages. Siena then filed the currently pending Second Amended Complaint, which
made relatively minor additions. Defendants timely removed the action.
At issue is the Citys adoption of a Zoning Text Amendment (the Zoning Text Amendment or
ZTA). The ZTA amended the City Code. Inter alia, it amended the Zoning Ordinance by adding a
condition prohibiting, in certain zones, a self-storage warehouse on a lot within 250 feet of a lot on which
a public school is located. The application for the ZTA was filed by the Mayor and Council in response to
citizens concerns that allowing self-storage warehouse use close to a school is potentially unsafe for school
children. Siena alleges Defendants deprived it of its desired use of a certain property (the Property) near
a school.
The Second Amended Complaint is replete with allegations of improper motive of the Mayor and
Councilmember Defendants and of citizens of the City. Siena alleges the ZTA was enacted specifically to
prevent Siena from developing the Property as an ezStorage facility. It is undisputed that the Property,
near the Maryvale Elementary School, was the only property within 250 feet of a lot on which a public
school was located which was proposed for use as a self-storage facility at the time of the ZTA. Siena has
not alleged it has applied for a building permit or has undertaken any construction on the Property.
The Second Amended Complaint contains the following Counts:
Count I
Declaratory Judgment That the Revised ZTA Is Invalid and Void ab Initio as
Defendants Failed to Properly Follow the Procedures Set out in 25.06.02
of the Rockville City Code (Against Defendant the Mayor and Council);
Count II
Declaratory Judgment That the ZTA and Revised ZTA Violate Maryland
Land Use Code 4-102 and Is Therefore Invalid (Against Defendant the
Mayor and Council);
Count III
Declaratory Judgment That the Revised ZTA Violates Maryland Land Use
Code 4-201(b)(2)(i) and Is Therefore Invalid (Against Defendant the
Mayor and Council);
Count IV
Declaratory Judgment That the ZTAs Violate the Fourteenth Amendment of

the United States Constitution1 and Are Invalid (Against Defendant the
Mayor and Council);
Count V
Declaratory Judgment That the ZTAs Are an Invalid Special Law In

Violation of Article III of the Maryland Constitution (Against Defendant the
Mayor and Council);
Count VI
Declaratory Judgment That the ZTAs Violate Article 24 of the Maryland

Declaration of Rights (Against Defendant the Mayor and Council);
Count VII
Declaratory Judgment That the ZTAs Are an Illegal Targeted Zoning

Ordinance (Against Defendant the Mayor and Council);
Paragraph 190 specifies that Plaintiffs Fourteenth Amendment claims in Count IV arise under
the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment.
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Count VIII
Injunctive Relief as to the Revised ZTA (Against Defendant the Mayor and
Council);
Count IX
Injunctive Relief as to Sienas Property (Against Defendant the Mayor and

Council);
Count X
Fraudulent Misrepresentation (Against All Defendants in Their Official and

Individual Capacities);
Count XI
42 U.S.C. 19832 (Against All Defendants in Their Official and Individual

Capacities);
Count XII
Civil Conspiracy Under and in Violation of 42 U.S.C. 1983 (Against the

Individual Defendants in Their Individual Capacities); and
Count XIII
Violation of the Maryland Open Meetings Act (Against Defendant the Mayor
and Council).
Sienas claims should be dismissed for several reasons, as is more completely articulated infra.
Procedurally, Siena does not have Article III standing because it has alleged no injury in fact and no
protected property interest. Under Maryland law, it has no vested property right and has no standing either
under property owner standing or taxpayer standing to challenge the legislative process of adopting the
ZTA. Substantively, the legislative motive for enacting the ZTA and the motives of the individual
Defendants are not proper subjects of judicial inquiry. The individual Defendants have absolute legislative
immunity to Sienas personal capacity claims, which all arise out of their legislative actions. The City has
governmental immunity for the common law tort claims and the individual Defendants were not given
timely notice of claim. Moreover, even if the enactment of the ZTA were a proper subject of judicial review,
the legislation was lawfully adopted in compliance with the procedure set forth in the City of Rockville
Charter, Rockville City Code (Code), and Maryland State law.
Paragraphs 228 and 234, in Count XI, state that the Section 1983 claims in Count XI are claims
that Defendants violated Sienas rights under the Fourteenth Amendment, but Count XI does not specify
whether it claims Defendants violated Sienas right to due process or to equal protection.
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STATEMENT OF FACTS
1.
Plaintiffs negotiated for the purchase of the Property and applied for a favorable zoning text
amendment, which was enacted without incident by the Mayor and Council.
For the purpose of the instant Motion, the facts alleged in Plaintiffs pleading are assumed to be true.
The Second Amended Complaint alleges that Siena Corporation is the developer and Rockville North Land
LLLP is the owner of the Property, which occupies approximately 1.39 acres of land located at1175 Taft
Street, Rockville, Maryland, at the intersection of Taft Street and First Street in the City of Rockville.
Second Amended Complaint, 3. On or about March 5, 2014, Plaintiff Rockville North Land LLLP
allegedly purchased the Property for millions of dollars. Id., 21. The lot on which the Property is situated
is less than 250 feet from the property line of the lot where Maryvale Elementary School is located. Id., 27.
Prior to the purchase of the Property, Siena . . . negotiated for, and made the Contract contingent
on, Sienas ability to ascertain the suitability of the land use and zoning for the Property for its business
purposes. Id., 15. Siena alleges its representatives met with staff members of the City of Rockvilles
Planning Commission and made them aware of the proposed size and scope of Sienas building plans for
a 109,808 square-foot self-storage facility with 900 storage units. Id., 16.
Siena allegedly discovered that under the zoning requirements for a self-storage warehouse, more
parking was required than was available at the Property, so Siena applied to the City for a zoning text
amendment to reduce the parking that was required. Id., 16-18. Sienas contract with a third person, the
seller of the Property, allegedly referenced that Siena would only purchase the Property under the condition
that development of the Property is feasible under the City of Rockville [sic] parking requirements. Id.,
17. The Mayor and Council on February 10, 2014, adopted the zoning text amendment submitted by Siena
that reduced the required parking for self-storage facilities. Id., 19. Siena alleges that it then purchased the
Property, at a time when the Zoning Ordinance contained no impediments to the construction of a selfstorage facility on the Property. Id., 21.
Over the course of the next few months, the Planning Commission held a public hearing and issued
a site plan approval for the proposed self-storage facility. Id., 48 and 50. The Planning Commission later
ordered reconsideration of the site plan approval, because some residents who were entitled to notice had
not been notified, and after a reconsideration hearing, it reaffirmed approval of the site plan. Id., 52-54.
Notably, the Second Amended Complaint contains no allegation that Siena ever filed for or was
granted a building permit in connection with the Property, or that they undertook any construction activity
on the Property.
2.
Residents and other interested individuals expressed health and safety concerns about a large
self-storage facility in the neighborhood of a public school, and the Mayor and Council
subsequently introduced the Zoning Text Amendment.
The facts relevant to this action are not in dispute. From August 2014 through January 2015, a
number of citizens of the City of Rockville and other interested individuals attended the Mayor and
Councils meetings to discuss Sienas proposal to construct a self-storage facility on the Property, near the
Maryvale Elementary School in the City of Rockville. Several individuals expressed concerns regarding the
location of a self-storage facility near a school. Of particular concern, according to individuals who spoke
at the Mayor and Council meetings and who sent correspondence and supporting documentation to the
Mayor and Council, was that traffic generated by a self-storage facility would pose a hazard and danger to
pedestrians, particularly children attending and walking to and from nearby schools.
This concern was articulated by Mr. Peter Witzler at an August 11, 2014, Mayor and Council
meeting. Mr. Witzler stated he spoke for himself and on behalf of 130 residents of Rockville who had signed
a petition opposing the construction of the self-storage facility on the Property. Mr. Witzler said his son,
who was two-and-a-half years old, would be attending Maryvale Elementary School in a few years.
Transcript of portion of August 11, 2014, Mayor and Council of Rockville Meeting No. 25-14, attached
hereto as Exhibit A, p. 3, lines 5-7. He expressed his concern that, [t]he construction of the facility would
put the safety of our neighborhood and the safety of our children at risk. Id., p. 3, lines 12-14. He stated:
Were opposed to this because the storage facility is incompatible with the safe
neighborhood environment of the Maryvale Elementary School neighborhood. We are
opposed because as homeowners in this neighborhood we are concerned about the loss in
property value we would suffer if a 900-unit storage monstrosity was built in our
neighborhood.
Id., p. 3, lines 15-22.
Mr. Witzler then proposed that the Mayor and Council enact a zoning text amendment, applicable
to all of Rockville, that would prohibit the new development of a self-storage facility within 250 feet of
a school zone:
[I]nstead of just talking about the problem, I wanted to take a minute to talk about the
solution. So I think the solution is actually a pretty easy one. Its a zoning text amendment.
. . . I did read the entire zoning ordinance in relation to this and there is a few parts where
it says that any interested party or any party with a financial interest in the property can file
[an application for] a zoning text amendment. . . . So Ive come here to ask a pretty simple
change to the zoning ordinance. Article 25, 12-4 subsection (d) . . . describes the desire to
limit the impact of industrial uses on adjacent residential neighborhoods.
So Im asking you to help East Rockville, not just East Rockville but all of Rockville,
limit the impact of further urbanization and industrialization by changing the zoning
ordinance. Adding a new restriction that within 250 feet of a school zone for new, nonresidential development within 250 feet of a school zone, the following categories of use
are prohibited: Self-storage facility.
Id., p. 5, line 9 - p. 6, line 14 (emphasis added); see also Second Amended Complaint, 39 (characterizing
Ms. McKennas and Mr. Witzlers testimony as try[ing] to get the Mayor and Council to introduce the
zoning text amendment targeting Siena and its Property).
Ms. Melissa McKenna spoke at the same public meeting as Mr. Witzler, on August 11, 2014.
Plaintiffs Second Amended Complaint protests that one of the individuals who urged the Mayor and
Council to enact the ZTA which would prevent the development of a self-storage facility on Sienas
Property is not a resident of the City of Rockville. Second Amended Complaint, 33 (It is to be noted that
one of the most vocal of the Activists -McKenna - is the out-of-towner, in that she neither owns property
nor resides in Rockville.). When Ms. McKenna spoke at the meeting, she disclosed she was a resident of
Gaithersburg. Id., p. 7, lines 8-9. She identified herself as a representative official of the Maryvale
Elementary School PTA: I am here this evening as the immediate past president and current vice-president
of advocacy for the Maryvale Elementary School PTA. Tonight, I am speaking to you on behalf of our 214
members which represent both the school parents and the staff. Id., p. 7, lines 9-15.
Ms. McKenna stated, Maryvale has almost 600 students. Some are as young as three in our Head
Start and our autistic classes. Id., p. 7, lines 15-17. She expressed the concern of school parents and staff
for the safety of the very young children who crossed the streets at the busy pedestrian intersection where
the ezStorage facility was proposed:
Our overarching concern with the ezStorage proposal is increased larger vehicular traffic on
that corner which is a busy pedestrian intersection of children walking to and from school.
With Head Start and Pre-K programs at the school, we have children as young as three being
escorted by their five to seven-year-old older siblings alone. We are, naturally, very
protective of their safety.
Id., p. 8, lines 6-14.
Additional concerns were expressed about the size of the proposed structure, with 109,000 square
feet and 900 storage units, being too large for one on-site manager to monitor. Id., p. 8, lines 15-21.
Concerns were raised about the noise and demolition process for the massive construction project and about
the potential for release of asbestos, as Siena had not made any assurances it had tested for asbestos. Id., p.
8, line 22 - p. 9, line 10. Also, in keeping with the concerns about the management of such a large storage
facility, there were concerns that the 900-unit self-storage facility could be a location for disturbing
occurrences of illegal and hazardous materials stored at these facilities and the potential attraction of
accompanying illegal activity. Not what we want for school children and not what we want for the residents
of the surrounding area. Id., p. 9, lines 12-17. Ms. McKenna referenced a report that bodies and cremated
remains were found in a self-storage unit in Massachusetts only a couple of months before the August 11,
2014, Mayor and Council meeting. Id., p. 9, line 21 - p. 10, line 2. She echoed Mr. Witzlers request that
the Mayor and Council amend the Citys Zoning Ordinance to restrict self-storage facilities within 250 of
a school zone. Id., p. 6, lines 18-20.
A few months later, at the October 27, 2014 Mayor and Council meeting, a resident named Kashi
Way, whom the Second Amended Complaint identifies as one of the unsued co-conspirators, Second
Amended Complaint, 11, requested that the Mayor and Council vote on a moratorium on any site plan
application in a particular buffer zone. Id., 59. Siena has alleged that, [t]he effect of the Moratorium
Motion would have been to prevent Siena from building the Project on its Property. Id. Defendant
Councilmember Feinberg moved for the moratorium. Id., 60. The Mayor and Council voted to go into
closed session following the request of the Citys counsel, Debra Daniel, to go into closed session for the
purpose of giving legal advice. Id., 61. Ms. Daniel stated, I would appreciate an opportunity to give legal
advice to the Mayor and Council . . . in private. Id. Before going into the closed session, Ms. Daniel, stated,
on the record: And just to be clear, we would be doing it under Section 3-305(b)(7)3 of the General
The referenced section of the Maryland Open Meetings Act provides: (b) Subject to subsection
(d) of this section, a public body may meet in closed session or adjourn an open session to a closed session
only to: . . . (7) consult with counsel to obtain legal advice. Md. Code Ann., General Provisions Art.,
3-305.
8
Provisions Article of the Annotated Code of Maryland to go into closed session to obtain legal advice. Id.,
63. Upon returning to open session, Councilmember Feinberg explained, on the record, that, based on
some of the guidance that we have received in our executive session, I would like to withdraw my motion.
Id., 64.
Subsequently, at the November 3, 2014, Mayor and Council meeting, Councilmember Feinberg
introduced a zoning text amendment application as a proposed item on the agenda for the November 10,
2014, meeting and directed City staff to draft the requested application. Id., 75.
3.
The Zoning Text Amendment was enacted pursuant to State and local law.
The State of Maryland has granted to the Mayor and Council the authority to regulate land use by
enacting zoning ordinances in the City of Rockville. State legislation formally delegates to local
governments such as the Mayor and Council the right to regulate the use of land in order to serve the public
purpose. The Maryland General Assembly has explained it is the States express policy to serve the interest
of the public by means of local government control of private owners use of real property, including of
privately owned buildings on private property. State statute grants this authority to local governments,
stating as follows:
Planning and zoning controls
(a) It is the policy of the State that:
(1) the orderly development and use of land and structures requires comprehensive
regulation through the implementation of planning and zoning controls; and
(2) planning and zoning controls shall be implemented by local government.
Md. Code Ann., Land Use Art. 4-101(a) (2012) (formerly Md. Code Ann., Art. 66B, 4.01(a)).
It is the express policy of the General Assembly that a local governments right to enact planning
and zoning controls to achieve certain public purposes will displace or limit individual interests of owners
or users of property. Section 4-101(b) states as follows:
Limitation of economic competition
(b) To achieve the public purposes of this regulatory scheme, it is the policy of the General
Assembly and the State that local government action will displace or limit economic
competition by owners and users of property through the planning and zoning controls set
forth in this division and elsewhere in the public general and public local laws.
Id.
The State has identified specific public purposes for which a local government is authorized to
regulate and restrict the use of land. A local government has the power to regulate the location and use of
buildings and land in order to promote safety, pursuant to State statute:
To promote the health, safety, and general welfare of the community, a legislative
body may regulate:
...
(6) the location and use of buildings, signs, structures, and land.
Md. Code Ann., Land Use Art., 4-102 (2012) (formerly Md. Code Ann., Art. 66B, 4.01(b)(1)).
At all relevant times, the procedure for adopting zoning text amendments was governed by the Citys
Zoning Ordinance, Chapter 25 of the Rockville City Code, in compliance with the Land Use Article of the
Maryland Code. Section 25.06.02 of the Code is entitled Zoning text amendments.4 It provides that any
interested person or governmental agency may file [a]n application for an amendment to the text of [the
Ordinance]. Code 25.06.02.b.1. The application must be submitted to the City Clerk on a form provided
by the Citys Chief of Planning. Code 25.06.02.b.2. Within five days of receipt of an application, the City
A copy of the published Code Section 25.06.02, Zoning text amendments, is attached hereto,
for the Courts convenience, as Exhibit B.
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Clerk must transmit a copy of the application to the Planning Commission. Code 25.06.02.d.1. The
Planning Commission may submit a written recommendation to the Mayor and Council. Id. (emphasis
added).
A public hearing must be held by the Mayor and Council before an application for a zoning text
amendment may be granted. Code 25.06.02.f.; see also Md. Code Ann., Land Use Art. 4-203(b)(1) (A
legislative body shall hold at least one public hearing on a proposed zoning regulation or boundary at which
parties in interest and citizens have an opportunity to be heard). Before the public hearing, notice of the
zoning text amendment application must be published in a newspaper of general circulation. Code
25.06.02.c; see also Md. Code Ann., Land Use Art. 4-203(2)(1) (The legislative body shall publish
notice of the time and place of the public hearing, together with a summary of the proposed zoning
regulation or boundary, in at least one newspaper of general circulation in the local jurisdiction once each
week for 2 successive weeks). After notice and a public hearing, the Mayor and Council may deny,
dismiss, or allow the withdrawal of the application for a zoning text amendment or may grant the application
by ordinance. Code 25.06.02.g.1.
As had been requested by citizens at the August 11, 2014, Mayor and Council meeting, an
application for a zoning text amendment was later filed to address the concerns which had been brought to
the attention of the Mayor and Council. Councilmember Beryl Feinberg, at the November 3, 2014, meeting,
instructed City staff to draft the Zoning Text Amendment. Second Amended Complaint, 75. On November
10, 2014, the Mayor and Council authorized filing the application for the ZTA. Id., 94. On the published
Agenda for the November 10, 2014, Mayor and Council meeting, attached hereto as Exhibit C5, Item
No. 15 is authorization to file the ZTA. The published Staff Report for Item No. 15, attached hereto as
Referenced information in Exhibits sometimes is highlighted, for the Courts convenience.

11
Exhibit C-1, includes the proposed text amendment application language authorized by the Mayor and
Council for filing. See id., p. 2, and Attachment A. The Attachment to Application showed a change in
the language in the Codes Land Use Tables for the Industrial Zones and two of the Mixed Use Zones which
added Warehouse self-storage as a conditional use with the proposed condition: Not permitted on a lot
within 250 feet of any lot on which a public school is located. Id., Attachment A, pp. A-2 and A-3.
On December 15, 2014, the Mayor and Council convened for the Public Hearing on the application
for the ZTA. Second Amended Complaint, 120. On the Agenda for the December 15, 2014, meeting
(attached hereto as Exhibit D), Item No. 12, the Public Hearing on the ZTA, describes the proposed text
amendment, No. TXT2015-00239, as including, inter alia, the Proposed Condition that [Self-Storage
Warehouse] Use Not Be Located on a Lot within 250 Feet of a Public School Property Line. Exhibit D,
at 2. The Staff Report for the Public Hearing, attached hereto as Exhibit D-1, also describes the proposed
text amendment as adding the condition that the use not be permitted on a lot within 250 feet of a public
school property or of a public school property line. Exhibit D-1, at 1. The Planning Commission Staff
Report, dated December 3, 2014, was added to the Staff Report, Exhibit D-1, as Attachment B thereto.
It describes the proposed amendment that was reviewed by the Planning Commission as making self-storage
warehouse a conditional use, where [t]he condition is that the self-storage warehouse is not permitted on
a lot within 250 feet of a public school property line. Exhibit D-1, Attachment B, p. B-1.6
The Agendas for all Mayor and Council meetings are published electronically prior to the
meetings, along with Staff reports for those Items on which the Agendas show a link (an icon) for a
document attachment. It is clear that the draft of the ZTA which is attached to the Staff Report for
November 10, 2014, includes the language that prohibits a self-storage warehouse use within 250 feet of
any lot on which a public school is located. Exhibit C-1, Attachment A, pp. A-2 and A-3. Although this
is the language authorized by the Mayor and Council for filing at its November 10, 2014, meeting, it differs
slightly from the language in the draft of the ZTA that was attached to the actual application that was filed
with the City Clerks Office. Exhibit D-1, the Staff Report for the Public Hearing which was held on
December 15, 2014, includes the ZTA Application as Attachment A. The proposed ZTA is attached to
12
On January 5, 2015, the Mayor and Council convened for the public Discussion and Instructions to
staff on the application for the ZTA. See Second Amended Complaint, 130. On the Agenda for the
January 5, 2015, meeting (attached hereto as Exhibit E), Item No. 10 is Discussion and Instructions on the
ZTA. The Agenda describes the proposed text amendment as including, inter alia, the Proposed Condition
that the [Self-Storage Warehouse] Use Not Be Located on a Lot Within 250 Feet of A Public School
Property Line. Exhibit E, at 1-2. The Staff Report, attached hereto as Exhibit E-1, also describes the
proposed text amendment as adding the condition that the use not be permitted on a lot within 250 feet of
a public school property or a public school property line. Exhibit E-1, at 1. Attachment D, in
Exhibit E-1, is the Planning Commission Recommendation on the ZTA, dated December 12, 2014, which
the Application in Attachment A, and contains the language, in the Land Use Tables, that a self-storage
warehouse use is [n]ot permitted on a lot within 250 feet of a public school. Exhibit D-1, Attachment
A, p. A-4; and see another copy of the same document at id., Attachment B, Planning Commission staff
report attachment, in Exhibit D-1, p. B-9.
Despite Sienas arguments to the contrary, from a practical perspective, there is no difference in the
application of the language found in either ZTA. It is clear from the Agendas and Staff Reports for the
Planning Commission and Mayor and Council meetings as well as the testimony of all parties before both
the Planning Commission and Mayor and Council that everyone understood that the version of the ZTA that
was filed with the City Clerks Office contained language that would apply to Siena. Despite this clear
understanding, and despite the clear references in the Agendas and Staff Reports to the condition that the
use not be located on a lot within 250 feet of a public school property, Exhibit D-1, at 1, the Second
Amended Complaint alleges,
The ZTA proposed to change the Rockville City Code by disallowing the use and operation
of a self-storage warehouse within 250 feet of a public school. Sienas Property is not
within 250 feet of a public school. Therefore, this version of the ZTA would not have
affected Sienas Property.
Second Amended Complaint, 93 (emphasis in original).
Any minor discrepancy in the language was formally amended in open session by the Mayor and
Council at its January 26, 2015 meeting, at which the version of the ZTA that was introduced by the Mayor
and Council and which later was adopted contains the condition that a self-storage warehouse use is
[n]ot permitted on a lot within 250 feet of any lot on which a public school is located. See infra, at 16.
13
describes the proposed condition as being that the use is prohibited within 250 feet of a public school site,
id., Attachment D, p. D-1. The Planning Commission recommended not to approve the ZTA. Id., p. D-2.
Exhibit E-1, the Staff Report, includes, as Attachment B, a summary of the testimony of eight
speakers at the Public Hearing. Three of them represented a self-storage warehouse company and testified
against the proposed text amendment. Five citizens spoke in favor of the text amendment. Exhibit E-1,
p. 2. Attachment C in Exhibit E-1 is comprised of numerous letters and emails concerning the proposed
ZTA. One of the letters is from attorneys of Linowes and Blocher LLP, opposing the ZTA on behalf of
Plaintiff Rockville North Land LLLP. See id., Attachment C, letter dated December 9, 2014, pp. C-7
through C-14. Also included are exhibits to the letter, see id., pp. C-15 through C-54; and the Staff Report
states the total written testimony from Linowes and Blocher is approximately 1300 pages long, Exhibit E-1,
p. 2. The letter describes the Property as located in the Light Industrial (I-L) Zone within 210 feet of
Maryvale Elementary School, id., p. C-7, and then details reasons for the objection to the proposed ZTA.
At the January 5, 2015, meeting, Councilmember Tom Moore identified the concerns that had been
expressed by the community and members of the Mayor and Council as: pedestrian and student safety; the
personal safety of students; security; materials stored within self-storage facilities; density near schools; and
heights of buildings near schools. Transcript of portion of January 5, 2015, Mayor and Council of
Rockville Meeting No. 01-15, attached hereto as Exhibit F, p. 4, lines 17-22. Councilmember Moore
described the proposed ZTA as flipping a proposal that has already been approved by our Planning
Commission, referring to the site plan approval for the Property. Id., p. 5, lines 6-8. Councilmember
Feinberg responded to the description of the ZTA as flipping and stated:
For me, this is not at all about that. For me, it is really about the health and safety and
welfare of children across the city. It is not just a specific area. It is not against any corporate
entity.
14
Id., p. 7, lines 14-19.

Councilmember Julie Palakovich Carr stated she did not have a concern about a self-storage facility
near the Maryvale Elementary School, id., p. 12, lines 2-7, and described the discussion among the Planning
Commissioners who had voted to reject the proposed ZTA, calling it spot zoning and targeted, id., p. 13,
line 2 - p. 14, line 11. She was troubled by the lack of data to justify a change in law. Id., p. 14, lines 12-21.
She urged the Mayor and Council not to approve the ZTA, stating, [m]oving forward with this zoning text
amendment which amounts to spot zoning will lead to a reckless and costly lawsuit that the City can ill
afford. Id., p. 15, lines 12-15.
Councilmember Onley stated she did not look at the ZTA as targeted but looked at it as for the
public health and welfare and safety of our children. Id., p. 16, line 21 - p. 17, line 2. And its across the
City. Its not just targeted at one individual or one company. So . . . this is very important for us to make
sure that we put the mechanisms in place to make sure that we do safeguard our children. Id., p. 17,
lines 3-7.
Mayor Newton also denied that the ZTA was targeted spot zoning. She described the accusations
as, people keep throwing things at you, like youre anti-business or . . . you dont like development, id.,
p. 17, lines 15-17. The Mayor stated, It has nothing to do about that. It has to do with what our job is, to
protect the citizens, to protect the employees, to protect the staff who live, work and play in the City. And
weve heard from people about walking. Weve heard from people about homeland security concerns with
storage facilities. . . . It affects all of our schools. It affects all of our children. . . . There have been pros and
cons and good comments on both sides, but it comes down to a safety issue. Id., p. 17, line 18 - p. 18,
line 14. The motion to direct staff to prepare an ordinance for adoption of the ZTA passed by a vote of 3
to 2. Id., p. 67, lines 14-18.
15
On January 26, 2015, at the Mayor and Council meeting, the proposed ZTA was again on the
Agenda, which is attached hereto as Exhibit G. Item No. 13 was the Introduction of the ordinance to grant
the ZTA application to condition self-storage warehouse use on the Use Not Being on a Lot Within 250
feet of Any Lot On Which A Public School is Located. The Staff Report, attached hereto as Exhibit G-1,
attached two variants of the proposed ZTA, Attachment B being the earlier draft version that apparently
was filed with the City Clerks Office7 and Attachment C adding clarifying language to the condition
to reflect that a self-storage warehouse may not be located on a lot within 250 feet of any lot on which a
public school is located. Exhibit G-1, p. 1. The version of the proposed ZTA which was introduced and
later voted on was the one shown in Attachment C. See Transcript of portion of January 26, 2015, Mayor
and Council meeting, attached hereto as Exhibit H, p. 3, line 20 - p. 4, line 15. The text of the final
ordinance to grant the ZTA described the condition for a self-storage warehouse as, the condition being
that the use cannot be located on a lot within 250 feet of any lot on which a public school is located.
Exhibit G-1 (Staff report), Attachment C, p. 1.
On February 2, 2015, the Mayor and Council voted to adopt the ZTA as introduced. Second
Amended Complaint, 153. The Agenda for the meeting and the Staff Report for Item No. 13, Adoption of
the ZTA, are attached hereto as Exhibit I and Exhibit I-1, respectively. Attachment A to the Staff report
was the ZTA that had been introduced at the January 26, 2015, meeting.
Councilmember Feinberg reiterated her support for the ZTA on the basis that it promotes the health,
welfare and safety of the public and in particular, focuses on safety, the safety of our children, parents and
others who walk, bicycle, skateboard and drive within the immediacy of school zones across Rockville . . .
This is an issue of the health and welfare and safety of those in close proximity of school zones. Transcript
See footnote no. 6, supra.

16
of portion of February 2, 2015, Mayor and Council Meeting, attached hereto as Exhibit J, p. 4, lines 2-6
and 14-16, p. 5, line 1- p. 6, line 9. Attorney Robert Dalrymple of Linowes and Blocher testified on behalf
of Plaintiff Siena Corporation and ezStorage. See id., pp. 24 - 30. Residents and other Councilmembers also
spoke. The Mayor and Council voted to adopt the ZTA which amends the Citys Zoning Ordinance and adds
the self-storage warehouse condition that the use cannot be located on a lot within 250 feet of any lot on
which a public school is located. See Exhibit I-1, Attachment A, Ordinance to grant the ZTA.
The City Charter, Article II, Section 2.e, provides that all ordinances passed by the Mayor and
Council, such as the ZTA, shall become effective immediately. A copy of a selection of the Charter,
including Article II, Section 2, is attached hereto, for the Courts convenience, as Exhibit K. A State statute,
Md. Code Ann., Land Use Art. 4-203(b)(3), also applied to require a time period of at least ten (10) days
after the hearing until the ZTA could become effective. That statute was satisfied because more than ten
days had passed from the date of the Public Hearing on December 15, 2014, to the date of Adoption,
February 2, 2015. Nevertheless, Siena alleges it was harmed after the final, introduced version of the ZTA
had been approved, when the Acting City Clerk allegedly certified and published an earlier draft of the ZTA.
However, pursuant to the Charter, the ZTA already had become effective. This administrative error
allegedly was corrected, and the ordinance that was adopted on February 2, 2015, the ZTA, subsequently
was certified and published in the City Code.
Siena filed a petition for judicial review, Civil Case No. 401758 in the Circuit Court for Montgomery
County. The Circuit Court, in a well-reasoned opinion by The Honorable Cheryl A. McCally, granted the
Citys motion to dismiss the petition for judicial review because the adoption of the ZTA was not a quasijudicial action or zoning action but was a legislative act. See Opinion in Civil Case No. 401758, entered
17
August 19, 2015, attached hereto, for the Courts convenience, as Exhibit L. Siena has appealed the
dismissal of the petition for judicial review to the Maryland Court of Special Appeals.
STANDARD OF LAW
When the issue of standing is asserted as a basis for lack of subject matter jurisdiction under Rule
12(b)(1) of the Federal Rules of Civil Procedure, the plaintiff bears the burden of proof. Richmond,
Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768-69 (4th Cir.1991). In assessing a
question of standing, the district court is to regard the pleadings allegations as mere evidence on the issue,
and may consider evidence outside the pleadings without converting the proceeding to one for summary
judgment. Id., 945 F.2d at 768. The elements of standing are then subjected to the same degree of proof
that governs other contested factual issues. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct.
2130 (1992). At the pleading stage, general factual allegations of injury resulting from the defendants
conduct may suffice, for on a motion to dismiss we presume that general allegations embrace those specific
facts that are necessary to support the claim. Id. (quoting Lujan v. Natl Wildlife Fedn, 497 U.S. 871, 889,
110 S.Ct. 3177 (1990)). The contention that a plaintiffs allegations are inadequate to establish the
jurisdiction of this Court raises a facial challenge which is analyzed under the same plausibility standard
of Rule 12(b)(6), Ashcroft v. Iqbal, 556 U.S. 678, 129 S.Ct. 1937 (2009), and Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S.Ct. 1955 (2007). See Davis, 367 F.Supp.2d at 799; Zander v. United States, 786
F.Supp.2d 880, 883 (D.Md.2011) (applying Iqbal/Twombly standard to motion to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1)).
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint should be dismissed if it fails to
state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion, the plaintiffs [f]actual
allegations must be enough to raise a right to relief above the speculative level, with the complaint having
18
enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 555 and 570, 127
S.Ct. at 1965 and 1974. Threadbare recitals of the elements of a cause of action, supported by mere
conclusory statements, are insufficient, as the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949
(citing Twombly, 550 U.S. at 555). The factual allegations must be sufficient to permit the court to infer
more than the mere possibility of misconduct based upon its judicial experience and common sense.
Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
In evaluating the sufficiency of a complaint in connection with a Rule 12(b)(6) motion, a court
evaluates the complaint in its entirety, as well as documents attached or incorporated into the complaint.
Secy of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir.2007); see also Anand
v. Ocwen Loan Servicing, LLC, 754 F.3d 195, 198 (4th Cir. 2014) (stating the court may properly consider
documents attached to a complaint or motion to dismiss so long as they are integral to the complaint and
authentic. (citation omitted)); Philips v. Pitt Cnty. Memorial Hosp., 572 F.3d 176, 180 (4th Cir.2009)
(stating a court may consider documents attached to the complaint or the motion to dismiss so long as they
are integral to the complaint and authentic); and Phillips v. LCI Intl Inc., 190 F.3d 609, 618 (4th Cir.1999)
(same). An integral document is a document that by its very existence, and not the mere information it
contains, gives rise to the legal rights asserted. Chesapeake Bay Found., Inc. v. Severstal Sparrows Point,
LLC, 794 F. Supp. 2d 602, 611 (D. Md. 2011) (citations omitted) (emphasis in original). In addition to
integral authentic exhibits, the court on a 12(b)(6) motion may properly take judicial notice of matters of
public record. Philips v. Pitt Cnty. Meml Hosp., 572 F.3d 176, 180 (4th Cir.2009).
Rule 56(b) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered
in favor of a moving party when there is no genuine dispute as to any material fact, and the moving party
19
is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548,
2552 (1986). Where, in a case decided on summary judgment, there have not yet been factual findings by
a judge or jury, and [one partys] version of events ... differs substantially from [the other partys,] ... courts
are required to view the facts and draw reasonable inferences in the light most favorable to the party
opposing the [summary judgment] motion. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 1774 (2007).
However, [a]t the summary judgment stage, facts must be viewed in the light most favorable to the
nonmoving party only if there is a genuine dispute as to those facts. Id. 550 U.S. at 380, 127 S.Ct. at 1776
(quoting Fed.R.Civ.P. 56(c)).
ARGUMENT
I.
Siena Does Not Have Standing to Bring the Instant Claims.

A.
Article III of the United States Constitution Requires, Inter Alia, that a Plaintiff Must
Have Suffered an Injury in Fact, i.e., an Invasion of a Legally Protected Interest Which
is Concrete and Particularized as well as Actual or Imminent.
The doctrine of standing is an essential and unchanging part of the case-or-controversy requirement
of Article III. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130 (1992). The United States
Constitution requires, at a minimum, that a plaintiff satisfy three elements. First, the plaintiff must have
suffered a concrete and particularized injury in fact that is actual or imminent, not merely conjectural
or hypothetical. Id. (citations omitted). But the injury in fact test requires more than an injury to a
cognizable interest. It requires that the party seeking review be himself among the injured. Id., 504 U.S.
at 563, 112 S. Ct. at 2137. To show an injury in fact, a plaintiff must show an invasion of a legally
protected interest which is concrete and particularized, as well as actual or imminent. Friends of the Earth,
Inc. v. Gaston Copper Recycling Corp., 204 F.3d 149, 154 (4th Cir.2000) (emphasis added).
20
Second, the plaintiff must establish that there is a causal connection between that injury and the
conduct complained of, or, in other words, the plaintiffs injury must be fairly trace[able] to the challenged
action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the
court. Lujan, 504 U.S. at 560 (citations omitted). Third, the plaintiff must demonstrate that it is likely, as
opposed to merely speculative, that the injury will be redressed by a favorable decision. Id., 504 U.S. at
561 (citations omitted).
In this action, Siena lacks Article III standing to bring its claims against Defendants because Siena
has failed to indicate any injury in fact or invasion of a legally protected interest caused by Defendants.
A party invoking the jurisdiction of the courts must be able to set forth, by affidavit or other evidence,
specific facts as opposed to mere allegations, that the constitutional elements of standing
injury-in-fact, causal connection, and redressability are satisfied. Lujan, 504 U.S. at 561 (quoting
Fed.R.Civ.P. 56(e)). The Supreme Court has consistently held that a plaintiff raising only a generally
available grievance about government claiming only harm to his and every citizens interest in proper
application of the Constitution and laws, and seeking relief that no more directly and tangibly benefits him
than it does the public at large does not state an Article III case or controversy. Lujan, 504 U.S. at
573-74. A plaintiff must demonstrate that a defendants conduct directly injures him aside from an injury
to his general interest in a particular area of governmental conduct. See Sierra Club v. Morton, 405 U.S.
727, 739-41, 92 S.Ct. 1361 (1972). As is set forth below, Sienas claims fail because Siena has not alleged
an injury in fact or a legally protected interest sufficient to give Siena standing to bring this action,
pursuant to Article III of the United States Constitution.
21
B.
Siena Has Only Alleged Loss of an Expectation of a Zoning Right or Loss of Ability to
Develop the Property as a Self-Storage Facility, Which is Not an Injury in Fact or
Invasion of a Legally Protected Interest, and Therefore Siena Does Not Have Standing
to Bring the Instant Federal Constitutional Claims Against Defendants.
Count IV, against the Mayor and Council, claims Siena is entitled to a declaratory judgment . . .
that, because the ZTAs violate the Fourteenth Amendment to the United States Constitution, the ZTAs are
invalid, null, void and of no force and effect, (Second Amended Complaint, 191). The specific
constitutional claims under the Fourteenth Amendment are that [t]he arbitrary, capricious and individually
targeted nature of the ZTAs constitute a violation of the Due Process Clause of the Fourteenth Amendment
to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution, (id., 190). Siena does not specify whether its due process claim is for an
alleged violation of substantive due process or procedural due process.
In considering any due process claim, the starting point is identifying a constitutionally protected
property interest. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538-41, 105 S. Ct. 1487 (1985);
Gardner v. City of Balt. Mayor & City Council, 969 F.2d 63, 68 (4th Cir. 1992); City of Annapolis v. Rowe,
123 Md. App. 267, 275, 717 A.2d 976, 979 (1997). In order to state a due process claim, Siena must
demonstrate that it possesses a cognizable property interest, rooted in state law in the lost benefit. Biser
v. Town of Bel Air, 991 F.2d 100, 103 (4th Cir. 1993) (quoting Scott v. Greenville County, 716 F.2d 1409,
1418 (4th Cir.1983)). Property interests under the Fourteenth Amendment are created and their dimensions
are defined by existing rules or understandings that stem from an independent source such as state law. . . .
Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709 (1972). In Roth, the United States
Supreme Court explained that [t]o have a property interest in a benefit, a person clearly must have more
than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead,
22
have a legitimate claim of entitlement to it. Id. The Fourth Circuit applies Roths claim of entitlement
standard to municipal land-use legislation such as the ZTA at issue here. Gardner, 969 F.2d at 68.
Siena has not specified in the Second Amended Complaint precisely what property interest it alleges
it is entitled to in this case. Siena allegedly was injured when the Code was amended to include a condition
for self-storage warehouse use that such use is conditioned on the property being located more than a certain
distance of a lot on which a public school was located. Specifically, Sienas alleged injury would be because
Sienas Property did not meet the condition for use as a self-storage warehouse, so Sienas allegedly lost
interest would be an interest in its Property having the potential to lawfully be developed as a self-storage
warehouse. It can be inferred that the alleged injury to Siena is the loss of Sienas expectation that it could
develop the Property as a self-storage facility, or potentially a reduction in economic value of the Property
(though no such economic loss has been alleged), due to the enactment of the amendment to the Citys
Code. The initial issue is whether such an expectation interest or economic value is a legally protected
interest.
Where, as here, a local government has discretion in determining whether a benefit can be conferred,
there is no legitimate entitlement to that benefit and no cognizable property interest. The principle has been
discussed in the context of claims by property owners or developers arising from the actions of local boards
or agencies, when zoning actions or development agency processes cause the property developers loss of
an alleged potential use of property. In Gardner, for example, the Fourth Circuit held that an owner and
developer had no cognizable property interest in the issuance of a public works agreement. Gardner, 969
F.2d at 71. Like Siena in the instant case, Gardner owned property and desired to develop it. Gardner
wished to add 10 new units to the previously developed 12 units in a subdivision. However, the development
was delayed, in part by the Baltimore City Board of Estimates delaying approval of a public works
23
agreement. During the delay, the homeowners of the existing 12 units filed suit objecting to the
development and, before Garner could begin development, he lost title to the property in bankruptcy.
Gardner brought an action under Section1983, alleging that the City and various City officials violated his
rights to procedural due process, substantive due process, and equal protection by improperly preventing
him from securing the necessary approvals for the development of his property. Gardner alleged the
defendants acted improperly under pressure from the homeowners in the 12 units.
The Fourth Circuit questioned whether the federal court had jurisdiction to review Gardeners
constitutional claims, and began its analysis by inquiring whether Gardner possessed a property interest that
was cognizable under the Fourteenth Amendment:
The first step in analyzing whether the city deprived appellants of substantive due process
is a determination of whether they possessed a property interest in the public works
agreement that is cognizable under the Fourteenth Amendments Due Process Clause. If
there is no cognizable property interest, there is no need to reach the question of whether a
purported deprivation was arbitrary or capricious.
...
The standard represents a sensitive recognition that decisions on matters of local concern
should ordinarily be made by those whom local residents select to represent them in
municipal government not by federal courts. It also recognizes that the Fourteenth
Amendments Due Process Clause does not function as a general overseer of arbitrariness
in state and local land-use decisions. In our federal system, that is the province of state
courts.
Id., 969 F.2d at 68-69 (citations omitted). As is discussed supra, the standard required by the Court in
Gardner, a cognizable property interest, is also the minimum required for Siena to have standing in the
instant case.
The Fourth Circuit held that Gardners claims of unconstitutional denial of approvals for his
development failed, because Gardner had no cognizable property interest in a benefit that was discretionary:
We now apply this standard to the case sub judice and conclude that state and
municipal law accorded the city discretion to refuse to issue a public works agreement to
Gardner. Accordingly, he had no legitimate claim of entitlement to the agreement and
24
therefore did not possess a property interest within the cognizance of the Fourteenth
Amendment.
Id., 969 F.2d at 68-69. By contrast, in Scott v. Greenville County, 716 F.2d 1409 (4th Cir.1983), a developer
claimed that the countys failure to issue him a building permit violated due process, and the Fourth Circuit
allowed the claim to go forward because it concluded that the developer had a cognizable property interest
in the permit. Id., 716 F.2d at 1418-19. That conclusion was based on the fact that the county was required
by state law to issue a building permit upon presentation of an application and plans showing a use
expressly permitted under the then-current zoning ordinance. Id., 716 F.2d at 1418. Applying the principle
that a cognizable property interest exists if the local government is required to provide the benefit at issue
to the plaintiff, but it does not exist if the local government has discretion, it is clear in the case at bar that
the City of Rockville had discretion to amend the Zoning Ordinance in the Citys Code. Accordingly, Siena
has failed to show it has a cognizable property interest8 in the desired use of its Property.
The Fourth Circuit also denied Gardners equal protection claim for the same reason. It held that
because he had stated no cognizable property claim, he could not challenge even politically motivated land
use decisions of the local council:
Because appellants possessed no cognizable property interest, appellees actions do not
constitute a constitutional violation even if their decisions were motivated solely by political
considerations. . . . Moreover, we find nothing pernicious in the actions of the [residents or
the 12 existing units] in opposing Gardners proposals. These residents were motivated to
oppose Gardners development by, among other things, the prospect of increased traffic
congestion on the streets near their homes. Those who live near proposed development have
the most significant personal stake in the outcome of land-use decisions and are entitled,
under our system of government, to organize and exert whatever political influence they
See also Argument Section II., infra, at 31-32, discussing Maryland common law that a person
does not have a vested right to develop land unless it has obtained a building permit or other required
permit and has begun construction committing the use of the land to the permitted use. Siena had taken none
of these steps toward acquiring a vested right to develop the Property as a self-storage warehouse, and
therefore had no vested right to do so.
25
might have. . . . Such give-and-take between government officials and an engaged citizenry
is what democracy is all about.
969 F.2d at 71-72 (emphasis in original). The same reasoning applies in the instant case, where the residents
and other interested individuals who had a personal stake in the development of the Property were entitled,
under our system of government, to organize and exert whatever political influence they might have. Id.
The City of Rockvilles land-use regulations confer upon the Mayor and Council significant
discretion to regulate use of land by the enactment of zoning ordinances. See Exhibit B, Code Section
25.06.02, Zoning text amendments. Siena has obtained no cognizable property interest or legally protected
interest in the specific development of the Property as a self-storage facility. Accordingly, Siena has failed
to show it has a cognizable property interest in the desired use of its Property as a self-storage facility and
has failed to demonstrate it has standing to bring its constitutional claims.
C.
Siena Does Not Have Any Protected Property Interest Based on a Mutual
Understanding or on Actions by the City.
Siena alleges, in paragraphs 15 - 21 of the Second Amended Complaint, under the heading, Siena
Purchases the Property With the Mayor and Councils Encouragement and Support, that Siena would not
have purchased the Property if the City had not adopted the parking text amendment for which Siena
applied, see id., 20, or if Siena otherwise had not been able to develop the Property as a self-storage
property, see id., 21. These assertions appear to allege that Siena relied on the actions of Defendants.
However, Siena did not obtain any legally protected property interest in a right simply on the basis of
unilateral reliance or alleged mutual understandings.
Maryland courts have held that such an alleged mutual understanding does not rise to the level of
being a cognizable property interest sufficient to provide a basis for a constitutional claim. Even a mutual
agreement based on a written contract does not afford a party to the contract any constitutionally protected
26
property interest. In Samuels v. Tschechtelin, 135 Md.App. 483, 518, 763 A.2d 209, the Court of Special
Appeals refused to recognize a constitutionally protected property right in an employment contract: [T]he
interest asserted by respondent ... is essentially a state-law contract right. It bears little resemblance to the
fundamental interests that previously have been viewed as implicitly protected by the Constitution.... I do
not think the fact that [the state] may have labeled this interest property entitles it to join those other, far
more important interests that have heretofore been afforded the protection of substantive due process. Id.,
at 53435, 763 A.2d 209.
Siena cannot claim any constitutionally protected right has arisen based on the Citys adoption of
a zoning text amendment which added a new off-street parking standard for self-storage facilities, when
Siena had applied for the zoning text amendment and the individual members of the Mayor and Council
allegedly knew that the enactment of the zoning text amendment allowed Siena to purchase the Property.
See Second Amended Complaint, 18-20. Because even an express written agreement fails to create a
constitutionally recognized property interest, no arguable mutual understanding between Siena and the City
based on the Citys actions demonstrates a protected property interest in this case.
Because Sienas allegations do not show a cognizable property interest in the zoning of its Property,
Siena does not have standing to bring its Fourteenth Amendment claims, pursuant to Article III of the
United States Constitution.
D.
Siena Does Not Have Standing Under Maryland Law, Either as a Property Owner or
as a Taxpayer, to Challenge the ZTA, When the ZTA is a Duly and Properly Enacted
Amendment to the City Code.
The Maryland Court of Appeals recently held, in Anne Arundel County, Maryland v. Bell, 442 Md.
539, 113 A.3d 639 (2015), that property owner standing only gives a property owner standing to challenge
27
non-legislative actions, and does not give a property owner standing to challenge any legislative acts
reached through legislative processes. Id., 442 Md. at 546, 113 A.3d at 643.
[T]he doctrine of property owner standing may apply to administrative land use decisions
and other land use actions undertaken as executive functions. We have not applied heretofore
the doctrine to purely legislative processes and actions, nor does our body of case law on the
subject warrant applying the doctrine to judicial challenges to legislative acts reached
through solely legislative processes.
Id., 442 Md. at 569, 113 A.3d at 657. It is beyond cavil that the ZTA, as an amendment to the City Code,
is legislation and not an administrative or quasi-judicial act.
Siena urges the view that the ZTA is an illegal targeted spot zoning, a quasi-judicial administrative
act instead of a legislative act. To the contrary, the ZTA is a legislative amendment to the City Code which
applies throughout the two industrial zones and two of the mixed use zones. The Court of Special Appeals
recently held that a similar zoning text amendment, adopted by the City of Rockville to amend the City
Code, was not a quasi-judicial act or a zoning action just because it was drafted in such a way as to affect
only one property. Mayor & Council of Rockville v. Pumphrey, 218 Md. App. 160, 192, 96 A.3d 859, 878,
cert. denied, 440 Md. 464, 103 A.3d 595 (2014). The holding in Pumphrey was based on factors in that case
that were comparable to the facts in the instant case:
[T]he Mayor and Council did not decide the use of Pumphreys property when it enacted the
2012 Text Amendment . . . . The 2012 Text Amendment did not change the zoning for the
Funeral Home property, which at all times remained R90 HD. It did not alter the site plan
for the Funeral Home. It did not grant a variance or a special exception. It did not affect the
lawfulness of the nonconforming use in existence . . . . The 2012 Text Amendment deleted
language from the Ordinance that had provided a means of expanding nonconforming uses.
Pumphrey, 218 Md. App. at 188-89, 96 A.3d at 876. As in Pumphrey, the fact that one property owner,
Siena, now complains its desired use of its property has been restricted does not bear on whether or not the
ZTA is universally applicable and does not make its enactment a quasi-judicial act..
28
Moreover, just because there were some amendments to the ZTA by the Mayor and Council between
the time it was first proposed and the time it was enacted, and Siena has alleged an administrative error in
the initial publication of the enacted legislation, there has been no failure of the required legislative process
caused by these incidental occurrences. The validity of the required legislative process was not affected
either by intended, or at least expected, developments (such as the amendment of the bill as it progressed
from introduction to adoption) or by insignificant clerical mistakes (such as the mistaken publication of an
earlier draft of the ZTA after the final version of the ZTA had been adopted and had become law).
In this case, as has been outlined above, the City followed the process set forth in its Charter and in
its City Code. Therefore, under the analysis by the Maryland Court of Appeals, the Mayor and Council
properly established the Citys land use policy through its adoption of the ZTA, under the express authority
granted by the State of Maryland in Md. Code Ann., Land Use Art. 4-101. Because the enactment of the
ZTA was in all respects a legislative act reached through solely legislative processes, Siena cannot have
property owner standing, under the holding in Bell.
Nor does Siena have taxpayer standing. In Bell, the legislative act that was at issue was not the
enactment of a citys governing legislation or city code, as in this case, but another legislative act, the
enactment of a comprehensive zoning ordinance. However, the reasoning of the Court in Bell as to the
requirements for a plaintiff to have standing, to bring a claim against a local government, does not turn on
the specific legislative act at issue and applies equally in the instant case. The Court of Appeals in Bell
established that challengers to legislative acts are required to satisfy the requirements of taxpayer standing,
rather than property owner standing. Id., 442 Md. at 575, 113 A.3d at 661.
Taxpayer standing, of course, requires that a complainant must allege two things: (1) that the
complainant is a taxpayer and (2) that the suit is brought, either expressly or implicitly, on behalf of all other
29
taxpayers. State Center, LLC v. Lexington Charles Ltd. Pship, 438 Md. 451, 547, 92 A.3d 400, 457
(2014). [U]nder the taxpayer standing doctrine, a complainants standing rests upon the theoretical concept
that the action is brought not as an individual action, but rather as a class action by a taxpayer on behalf of
other similarly situated taxpayers. Id. To have taxpayer standing, a plaintiff also must allege, however,
that the illegal action will result in a pecuniary loss or an increase in taxes. Bell, 442 Md. at 584, 113 A.3d
at 666.
As Siena has not alleged injury to a constitutionally protected property interest, Siena lacks
Article III standing to bring its Fourteenth Amendment claims. As the ZTA is not an administrative action
but a legislative act, Plaintiffs do not have standing as property owners to challenge the ZTA. And as Siena
does not allege that it brings this action on behalf not only of itself but on behalf of other taxpayers and does
not allege that it will suffer pecuniary loss or higher taxes caused by Defendants actions, Siena also does
not have taxpayer standing.
Accordingly, Sienas Federal claims and Maryland statutory, common law, and constitutional
claims, in Counts II, III, IV, V, VI, VII, VIII, IX, I, XI, and XII should be dismissed, with prejudice,
pursuant to Federal Rule of Civil Procedure 12(b)(1).
II.
Even if Siena Had Standing to Claim a Violation of Due Process, The Absence of a
Constitutionally Protected Property Interest or Vested Right Precludes its Due Process
Claim.
Siena alleges that the ZTA targeted Siena and prohibited Siena from building a self-storage facility
on its property in Rockville. Second Amended Complaint, at 2. The Second Amended Complaint alleges
that the ZTAs, referring to an earlier draft version and the final adopted version, are arbitrary, capricious,
discriminatory and individually targeted at blocking construction of a self-storage facility on Sienas
Property and that the arbitrary, capricious and individually targeted nature of the ZTAs constitute a
30
violation of the Due Process Clause of the Fourteenth Amendment. (id., 189 and 190). In essence, Siena
argues that the adoption of the ZTA deprived them of an expectation it could develop the Property as a selfstorage facility, as was permitted by the previous terms of the City of Rockvilles Zoning Ordinance. The
injury alleged, for Sienas Fourteenth Amendment claims, thus appears to be that Defendants have interfered
with and continue to interfere with a property right to build a self-storage facility on the Property.
As has been discussed, supra, Sienas Fourteenth Amendment claims fail as a matter of law because
Siena has not alleged (and cannot, under the facts of this case, allege) a legally protected right to use and
develop the Property in the particular manner they desire, as a self-storage facility. Under Maryland law,
Siena does not possess a vested right to the previous zoning of the Property. Siena has not alleged it has
obtained any building permit or has commenced any construction on the Property. It therefore has no vested
rights to any zoning action by the City. See, e.g., Baiza v. City of College Park, 192 Md. App. 321, 333-34,
994 A.2d 495, 502 (2010)(the doctrine of vested rights has a constitutional foundation, and rests upon the
legal theory that when a property owner obtains a lawful building permit, commences to build in good faith,
and completes substantial construction on the property, his right to complete and use that structure cannot
be affected by any subsequent change of the applicable building or zoning regulations).
As is discussed supra, the starting point in analyzing Sienas due process claim is to determine
whether Siena possessed a legally recognizable property interest to use and develop the Property and operate
a self-storage facility on the Property. Under established Maryland law, a property owner does not acquire
a vested right to develop his land until he has: (1) obtained a lawful permit where required by the zoning
ordinance for that use and (2) he has made a substantial beginning to construct the building and commit
the use of the land to the permission granted. Rockville Fuel & Feed Co. v. Gaithersburg, 266 Md. 117,
124, 291 A.2d 672, 675-76 (1971) (citation omitted). Siena has failed to meet any of the requirements under
31
Maryland law to assert a prima facie claim that they acquired a property interest to develop the Property.
In the Second Amended Complaint, Siena does not assert that it ever filed for or was granted a building
permit or other land use permit by the City, or that it undertook any construction activity on the Property.
Thus, Siena has met none of the requirements for establishing a vested property right to develop the
property and has not demonstrated that it was deprived of any right without due process of law. Because
Siena has failed to demonstrate a constitutionally protected property interest, there is no need to reach the
question of whether the ZTA which changed the permitted use of Sienas Property was arbitrary or
capricious. See Gardner, 969 F.2d at 68.
Even if Siena did plead a legally protected property interest, which it has not done, in order to bring
a Section 1983 action against the in Defendants, in their individual capacity, Siena must plead that each
Government-official defendant, through the officials own individual actions, has violated the Constitution.
Iqbal, 556 U.S. at 676, 129 S.Ct. at 1948. To bring a claim of a constitutional violation, in a personal or
individual capacity suit, a plaintiff must show that the official charged personally caused the claimed
deprivation of rights. Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir.1977) (it must be affirmatively shown
that the official charged acted personally in the deprivation of the plaintiffs rights). In order to bring section
1983 claims against the individual Defendants, Siena must first plead a cognizable violation of rights
secured by the Constitution by those individual Defendants own actions. Siena has not done this. Clearly,
any alleged violation of Sienas rights occasioned by the enactment of the ZTA was caused not by any, or
even all, of the individual Defendants but by the Mayor and Council as the governing body of the City.
Accordingly, for this reason as well, Sienas due process claims in Counts IV and XI against the
individual Defendants must be dismissed, with prejudice.
32
III.
Even if Siena Had Standing to Claim a Violation of Equal Protection, Siena Has
Alleged No Facts That Show Discriminatory Classification or Effect and Has Failed to
State a Claim for Violation of its Right to Equal Protection.
The Equal Protection Clause directs that local, state and the federal governments treat similarly
situated persons similarly. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). In the
absence of classification by race, alienage, or national origin, [t]he general rule is that legislation is
presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to
a legitimate state interest. Id. A plaintiff may make two types of equal protection claims. First, a plaintiff
may allege that a statute, on its face, draws discriminatory classifications and, therefore, violates the Equal
Protection Clause. Second, a plaintiff may contend that the government applies a facially neutral statute in
a discriminatory fashion. Sylvia Development Corp. v. Calvert County, 48 F.3d 810, 819 (4th Cir. 1994).
Siena has alleged in a purely conclusory fashion that Defendants discriminated against Siena, (see,
e.g., Second Amended Complaint, 152). However, the Second Amended Complaint contains no specific
allegation either that any statute violates equal protection on its face or that a facially neutral statute is
applied in a discriminatory fashion. Sienas allegations fall far short of a sufficient factual allegation of
unlawful discrimination, under either of the two types of equal protection claims. Moreover, Siena has pled
no allegation of membership in a protected racial, religious, ethnic or other class. Thus it has not sufficiently
pled that there was a violation of its equal protection rights. See Middlebrooks v. Univ. of Md. at College
Park, 980 F.Supp. 824, 831 (D.Md.1997) (In order to establish a violation of the Equal Protection Clause,
Plaintiff must prove discriminatory purpose or motive.).
Defendants therefore are entitled to the dismissal with prejudice of Plaintiffs Fourteenth
Amendment equal protection claims in Counts IV and XII.
33
IV.
Even if Siena Had Standing, an Alleged Improper Legislative Motive is Not a Basis to
Challenge the Zoning Text Amendment.
Siena asserts it was unconstitutionally targeted by the ZTA, though it asserts no factual basis for this
conclusion. Such an allegation necessarily requires an examination of Defendants motives in enacting the
ZTA. Plaintiffs have obliged by liberally sprinkling the Second Amended Complaint with allegations of
improper motivation, malice, and corrupt or fraudulent motive (Second Amended Complaint, 242) on
the part of Defendants.
However, where a plaintiff challenges a facially valid statute of general applicability, such as the
ZTA in this case, courts cannot look to legislative motive to demonstrate a constitutional violation. In
United States v. OBrien, 391 U.S. 367, 88 S.Ct. 1673 (1968), the United States Supreme Court held it was
a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive. Id., 391 U.S. at 383, 88 S.Ct. 1673. The plaintiff
in OBrien had argued that a law banning the burning of draft cards was unconstitutional because the
purpose of Congress in enacting it, as evidenced by the statements of three individual Congressmen, was
to punish draft protesters and thereby suppress freedom of speech. Id., 391 U.S. at 385, 88 S.Ct. 1673. In
OBrien, the statements of three legislators demonstrated their unconstitutional motive, but the Supreme
Court nevertheless upheld the challenged law.
The Court in OBrien explained that although legislative motives may properly be considered when
interpreting a statute, [i]t is entirely a different matter when we are asked to void a statute that is, under
well-settled criteria, constitutional on its face, on the basis of what fewer than a handful of Congressmen
said about it. Id., 391 U.S. at 383, 88 S.Ct. 1673. In such a case, inquiries into congressional motives or
purposes are a hazardous matter because [w]hat motivates one legislator to make a speech about a statute
is not necessarily what motivates scores of others to enact it. Id., 391 U.S. at 38384, 88 S.Ct. 1673.
34
Despite the apparent motive of several legislators to punish expressive conduct, the Court held that because
the statute was facially constitutional, it could not be invalidated on the basis of allegedly illicit legislative
motives.
The Fourth Circuit follows the holding of OBrien that the motive of municipal legislators is not
relevant to a challenge to legislation. Thus, in D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140
(4th Cir.1991), the Court considered a challenge to a zoning ordinance which prohibited businesses from
offering topless dancing within 500 feet of certain areas. The Court rejected the plaintiffs argument that
the true motive of the city legislators was to restrict protected expression. It held, the individual motives
of legislators . . . are rarely relevant to a courts consideration of the legitimacy of the legislation. For good
reason, courts have not as a general rule found legislation unconstitutional based on the motive of the voting
legislators when the legislation is facially constitutional. Id., 953 F.2d at 146. An alleged illicit legislative
motive, even if it is articulated by the legislators, is insufficient to invalidate an otherwise constitutional and
generally applicable statute.9 Similarly, in McDoogals East, Inc. v. Cnty. Commrs of Caroline Cnty., 341
Fed.Appx. 918, 924 (4th Cir.2009), the Court held that, a court will not strike down an otherwise
constitutional statute on the basis of an alleged illicit legislative motive.
However, the District Court in Kensington Volunteer Fire Dept, Inc. v. Montgomery Cty., 788
F. Supp. 2d 431 (D. Md. 2011), affd, 684 F.3d 462 (4th Cir. 2012), cautioned:
The Fourth Circuit has . . . noted that an inquiry into legislative motive may . . . be
appropriate in race or sex discrimination cases and in free speech cases when the challenged
legislation has on its face some content-based, direct inhibiting effect on freedom of speech.
S.C. Educ. Assn v. Campbell, 883 F.2d 1251, 1259 & n. 8 (4th Cir.1989) (emphasis in
original). Yet these exceptions apply only in rare circumstances, D.G. Rest., 953 F.2d at
147, and certainly are not implicated by [an] ordinary and general . . . enactment.
Id., 788 F. Supp. 2d at 440.
35
Therefore, as long as the ZTA is otherwise constitutional, the existence of any alleged illicit
legislative motive for enacting it is not a proper subject of judicial inquiry. The question then becomes
whether the challenged ZTA is otherwise constitutional. Although Plaintiffs assert that the enactment of the
ZTA was the product of Defendants improper motive, there is no doubt that the Mayor and Council had
the authority to pass the ZTA. Moreover, the ZTA is an unremarkable amendment to local legislation.
Nothing about the ZTA is facially unconstitutional: it makes no distinctions on the basis of race, gender,
religion, or any other protected categorization. It happened to be Sienas specific proposal to place a selfstorage facility in the vicinity of one public school that raised the awareness of residents and of the Mayor
and Council that they had concerns about locating a self-storage facility so close to a school. It apparently
was this proposal which motivated residents to push for a zoning text amendment and motivated the Mayor
and Council to do its constituents bidding and enact the requested legislation. However, the ZTA applies
broadly across the City, and therefore does not discriminate against the Plaintiffs.
Accordingly, under well-settled constitutional principles, any inquiry into the legislative motive
behind the statute is prohibited, and this Honorable Court will not strike down an otherwise constitutional
statute on the basis of an alleged illicit legislative motive. OBrien, 391 U.S. at 383, 88 S.Ct. 1673.
V.
The Individual Defendants Have Absolute Legislative Immunity.

Siena brings claims against the individual Defendants in Count X (Fraudulent Misrepresentation,
against all Defendants in their official and individual capacities10), Count XI (Section 1983, against all
Defendants in their official and individual capacities), and Count XII (Section 1983 Conspiracy, against the
individual Defendants in their individual capacities). Even if Siena could rely on alleged legislative motives
10
Maryland State common law claims do not, however, apply a distinction between an action
against an individual in his or her official capacity and in his or her individual capacity. See DiPino v.
Davis, 354 Md. 18, 51, 729 A.2d 354, 371-72 (1999).
36
to challenge the enactment of the ZTA, the individual Defendants still would possess legislative immunity
from suit in their individual capacities. Local legislators are entitled to absolute immunity from 1983
liability for their legislative activities. Bogan v. ScottHarris, 523 U.S. 44, 54, 118 S.Ct. 966 (1998).
Legislative immunity protects those engaged in legislative functions against the pressures of
litigation and the liability that may result. McCray v. Md. Dept of Transp., Md. Transit Admin., 741 F.3d
480, 484 (4th Cir.2014). Legislative immunity does not automatically attach whenever a defendant claims
the title of legislator, but rather when the action taken qualifies as legislative. Id., 741 F.3d at 485.
Legislative actions tend to be prospective, reflect broader policies that affect the electorate, and generally
bear the outward marks of public decisionmaking, including the observance of formal legislative
procedures. E.E.O.C. v. Washington Suburban Sanitary Commn, 631 F.3d 174, 184 (4th Cir.2011).
The City of Rockville Charter provides that [a]ll legislative powers of the City of Rockville shall
be vested in a council consisting of a Mayor and four Councilmembers, . . . Exhibit K, Charter selection,
Article II, Section 1.a. The individual Defendants, the Mayor and two Councilmembers, acted as members
of the legislative body. The actions by each of the individual Defendants alleged in the Second Amended
Complaint were legislative acts, i.e., discussing proposed legislation in Mayor and Council meetings,
requesting introduction of the ZTA, introducing the ZTA, and voting on the legislation. Whether a particular
act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing
it. Bogan, 523 U.S. at 54, 118 S.Ct. 966. Using this functional approach, the Bogan Court held that the
town mayor in that case was entitled to legislative immunity because his introduction of a budget and
signing into law an ordinance were formally legislative, even though he was an executive official. Id., 523
U.S. at 55, 118 S.Ct. 966. Under the functional approach of the Court in Bogan, the three individual
37
Defendants in this case have legislative immunity from liability in this action because their acts at issue
were legislative acts.
The Supreme Court has made clear that legislative immunity applies to suits for money damages and
also for declaratory or injunctive relief. Sup. Ct. of Va. v. Consumers Union of U.S., Inc., 446 U.S. 719,
73134, 100 S.Ct. 1967 (1980). Thus, absolute legislative immunity applies to all of Sienas claims against
Councilmembers Feinberg and Onley, and Mayor Newton in their individual capacities. The claims in
Count X11 and Count XI against the individual Defendants in their official capacities are essentially claims
against the governmental entity, in this case, the City. Kentucky v. Graham, 473 U.S. 159, 16566, 105
S.Ct. 3099 (1985).
Accordingly, the individual Defendants are entitled to dismissal of the claims against them in their
individual capacities in Counts X, XI, and XII.
VI.
The Mayor and Council Has No Vicarious Liability for Any Constitutional Violations by
Individual Defendants and Has Governmental Immunity from Suit for the Common Law Tort
of Fraudulent Misrepresentation.
With respect to Sienas Section 1983 claims against the Mayor and Council, a municipality such as
the Mayor and Council cannot be held liable under 42 U.S.C. 1983 under respondeat superior or vicarious
liability. City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197 (1989); and see Baker v. Lyles, 904
F.2d 925, 929 (4th Cir.1990) (The doctrine of respondeat superior generally does not apply to 1983
suits.). A plaintiff must demonstrate that the municipality itself caused the constitutional violation at issue.
Id. Although Siena has brought its Section 1983 claims directly against the Mayor and Council, it is
established that a municipality is not liable simply for actions that can be attributed to the municipality but
is only liable under Section 1983 if it deprives an individual of civil rights through an official policy or
11
Maryland does not recognize an official capacity claim, however. See footnote no. 10, supra.
38
custom. Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694, 98 S.Ct. 2018 (1978); Carter
v. Morris, 164 F.3d 215, 218 (4th Cir.1999). The plaintiff must demonstrate a direct causal link between
such policy or custom and the alleged constitutional deprivation. Harris, 489 U.S. at 385, 109 S.Ct. 1197.
The plaintiff must show that a municipal decision reflects deliberate indifference to the risk that a violation
of a particular constitutional or statutory right will follow the decision. Carter, 164 F.3d at 218. The
plaintiff can show a policy if a practice is so persistent and widespread and so permanent and well settled
as to constitute a custom or usage. Id. In order to support a Monell claim, a plaintiff must first show that
the municipality has committed a constitutional violation.
Siena neither has alleged any policy or custom on the part of the Mayor and Council that caused or
contributed to any alleged constitutional violation nor has alleged any fact that might support a finding of
such a policy or custom. No persistent, widespread, or well-settled conduct on the part of the Mayor and
Council has been alleged at all. In the absence of a policy or custom, Siena certainly has failed to show a
causal link between a policy or custom and any constitutional deprivation or deliberate indifference to the
risk of any particular constitutional deprivation. Siena accordingly has failed to state a claim for violation
of its Fourteenth Amendment rights by the municipal Defendant in this action, the Mayor and Council.
In addition, the common law tort claim of Fraudulent Misrepresentation against the Mayor and
Council, in Count X, must be dismissed on the basis of governmental immunity. The Maryland Local
Government Tort Claims Act (LGTCA), Md. Code Ann., Cts. & Jud. Proc. Art., 5301 et seq., has
partially waived the traditional governmental immunity enjoyed by local governments. See Martino v. Bell,
40 F. Supp. 2d 719, 722-23 (D. Md. 1999). The LGTCA does not, however, allow Siena to name the Mayor
and Council directly in a common law tort suit. See id. (citing Dawson v. Prince Georges County, 896
39
F.Supp. 537, 539 (D.Md.1995)). The governmental immunity of the Mayor and Council is alternative
grounds for dismissing the state common law claim in Count X against the Mayor and Council.
VII.
Siena Failed to Comply with the LCGTAs Notice of Claim Requirements, and Therefore the
State Law Claims are Procedurally Barred.
At the time of Sienas alleged injury, at the latest on the date of enactment of the ZTA, February 2,
2015, the LGTCA required a potential plaintiff to give the government a notice of claim within 180 days
of the injury as a prerequisite to filing suit against a local government or one of its employees. See Cts. &
Jud.Proc. 5304 (2012). The letter attached to Sienas Second Amended Complaint as Exhibit D is a
copy of a letter dated January 8, 2016, purporting to give notice of Sienas claims against the Mayor and
Council and the individual Defendants based on the February 2, 2015, enactment of the ZTA. Exhibit D
was the first notice of claim letter provided by or on behalf of Siena, well over 180 days after Sienas
alleged injury.12
It is evident that Siena did not comply with the LGTCAs notice provision. For this reason as well,
Sienas State law claims for damages, in Counts X (Fraudulent Misrepresentation, against all Defendants)
and XIII (Violation of the Maryland Open Meetings Act, against the Mayor and Council) are procedurally
barred.
VIII. Sienas Claim in Count I, that the Revised ZTA is Invalid and Void ab Initio for Defendants
Alleged Failure to Properly Follow the Procedures in Section 25.06.02 of the Code, is Refuted
by the Record Which is Referenced and Relied Upon in the Second Amended Complaint.
Siena claims, in Count I of the Second Amended Complaint, that the Revised ZTA is invalid and
void ab initio on the basis of Defendants alleged failure to follow the procedures set out in Section 25.06.02
12
Plaintiff first brought suit against the three individual Defendants, Mayor Bridget Newton,
Councilmember Beryl Feinberg, and Councilmember Virginia Onley, in the Amended Complaint which was
filed on December 29, 2015.
40
of the Rockville City Code. However, neither the specific factual allegations in the Second Amended
Complaint nor the undisputed facts in the documents referenced and relied upon in the Second Amended
Complaint, and attached as Exhibits hereto, show any material violation of any provision in this Section of
the Code.
Siena complains that Defendants violated Section 25.06.02(d)(1), which requires a copy of a zoning
text amendment application to be transmitted to the Planning Commission. See Second Amended
Complaint, 92, 95, and 96. Siena alleges that the application that went to the Planning Commission
prohibited a self-storage facility on a lot within 250 feet from a public school, rather from the lot on which
a public school is located or from the property line, and allegedly did not apply to Sienas Property. See id.,
93, 95, 148, and 171. Sienas Property is not within 250 feet of a public school, id., 93. However,
the Planning Commission on December 3, 2014, expressly considered the application which it received to
contain the condition that the self-storage warehouse is not permitted on a lot within 250 feet of a public
school property line. Attachment B in Exhibit D-1, Staff Report for December 15, 2014 Public Hearing,
p. B-1. See also Attachment D, Planning Commission Recommendation, dated December 12, 2014, in
Exhibit E-1, Staff report for January 5, 2015, Discussion and Instruction, at D-1 (reviewing the condition
that the use is prohibited within 250 feet of a public school site). Thus, even if Siena is correct in its
allegation as to what the application stated, any failure by the City to provide to the Planning Commission
the version of the proposed condition that ultimately was adopted was harmless.
Siena contends that the version of the ZTA discussed [on December 15, 2014, at the Public
Hearing] would not have affected Sienas Property. Second Amended Complaint, 120. However, the
published Agenda for the December 15, 2014, meeting describes the proposed text amendment as including
the Proposed Condition that Use Not Be Located on a Lot within 250 Feet of a Public School Property
41
Line. Exhibit D, at 2, Item No. 12 (emphasis added). Siena also argues that [t]he Mayor and Council did
not hold a hearing on the Revised ZTA [i.e., the ordinance that was introduced on January 26, 2015, after
approval of the application on January 5, 2015] pursuant to 25.06.02(f). Second Amended Complaint,
149; see also id., 171. There certainly is no requirement nor could there be that all of the finalized
text of an enacted ordinance must be contained in the initial application or must be subjected to further
hearings. To the contrary, Section 4-203(2)(1) of the Land Use Article provides only that the notice of the
public hearing include a summary of the proposed zoning regulation. The adopted ZTA was the same
as the version introduced on January 26, 2015.
It also defies belief that Siena did not recognize the ZTA applied to the Property when its attorneys
nevertheless testified in opposition at Mayor and Council meetings and submitted the letter dated December
9, 2014, in Attachment C in Exhibit E-1, the Staff report for the January 5, 2015, Mayor and Council
meeting, at C-7 through C-14. Sienas counsel admits in the letter that the ZTA applied to Sienas Property.
No harm was caused to Siena by the draft version of the ZTA that was initially discussed at the Mayor and
Council meetings prior to January 26, 2015.
The final Code violation alleged is the alleged administrative failure to properly certify and post the
adopted ZTA in the Rockville City Code, until some point after the date of its enactment, February 2, 2014.
The acting City clerk allegedly signed and posted a draft version of the ordinance that used the language
250 feet of a public school instead of 250 feet from any lot on which a public school is located. Siena
does not specify what harm it alleges resulted from this alleged administrative error after the ZTA was
enacted and after it became effective. Nor was there nor could there be any cognizable harm caused to Siena
by such an administrative error.
Accordingly, Count I should be dismissed, with prejudice.
42
IX.
Sienas Claim in Count II, that the ZTA and Revised ZTA Violate Land Use Article 4-102
is Refuted by the Record.
Siena claims in Count II that the ZTA and Revised ZTA, or the ZTAs are not rationally related
to the general public interest for the promotion of health, safety or the general welfare of the community,
Second Amended Complaint, 174; are arbitrary and capricious, id., 175; and are an invalid exercise
of . . . zoning authority pursuant to Maryland Land Use Code [sic] Ann. 4-102, id., 178.
Section 4-102 of the Land Use Article invests the legislature with police powers to regulate, inter
alia, the use of land in order to promote the health, safety and general welfare of the community. The
legislature exercises broad discretion in determining what the public welfare requires, what may be injurious
to the general welfare of the public and also what measures are either necessary or appropriate for the
protection and promotion of these interests. Salisbury Beauty Sch. v. State Bd. Of Cosmetologists, 268 Md.
32, 48, 300 A.2d 367, 377 (1973) (quoting A. & H. Transp., Inc. v. Mayor and City Council of Baltimore,
249 Md. 518, 240 A. 2d 601 (1968)). The exercise of the legislatures police power is justified when it
benefits public safety or health. Id. Furthermore, a statute or ordinance is presumed to be valid, and a
plaintiff attacking the validity of the statute or ordinance has the burden of affirmatively and clearly
establishing that it is invalid, arbitrary, capricious, discriminatory or illegal and a review by the court is
necessarily narrow in scope. Walker v. Bd. of Cnty. Commrs, 208 Md. 72, 93, 116 A.2d 393, 404 (1955).
The Court of Appeals has stated that [I]f any state of facts reasonably can be conceived that would
sustain a classification, the existence of that state of facts as a basis for the passage of the law must be
assumed Ginos v. Baltimore City, 250 Md. 621, 637, 244 A.2d 218, 227 (1968) (citation omitted). Based
on the concerns expressed by the individual Defendants and by the residents and other individuals who
spoke at public meetings of the Mayor and Council and sent correspondence and information to the Mayor
43
and Council, there was a conceivable legitimate government interest in the safety of school children that
would sustain the condition that the ZTA imposed on self-storage warehouses. Therefore both the
presumption of constitutionality and the facts reasonably support the ZTA.
Sienas claim fails as a matter of law because the ZTA is rationally related to a legitimate
government interest in public safety. Testimony and the record demonstrate that considerations relating to
safety of children walking near schools supported the Mayor and City Councils enactment of the ZTA.
Siena has not shown an absence of a legitimate government purpose. Consequently, it has failed to
sufficiently allege the ZTA is arbitrary or capricious rather than a legitimate exercise of the Citys police
power under 4-102 regulating the use of land to promote the health and safety of its citizens.
Consequently, Count II of Plaintiffs complaint, alleging that the ZTA violates Section 4-102 of the
Land Use Article, fails, as a matter of law.
X.
Sienas Claims in Count III, that the ZTAs Violate Land Use Article 4-201(b)(2)(i); in
Count V, that the ZTAs are an Invalid Special Law in Violation of Article III of the
Maryland Constitution; and in Count VII, that the ZTAs are an Illegal Targeted Zoning,
all Fail to State a Claim and are Refuted by the Record.
Siena claims in Count III that the ZTAs violate Section 4-201(b)(2)(i) of the Land Use Code [sic],
which requires that zoning regulations shall be uniform for each class or kind of development throughout
each district or zone. Id., 181. It claims that the effect of the ZTA is that more onerous restrictions are
placed on Sienas Property than on other similarly zoned properties in Rockville. Id., 184. Siena brings
similar claims in Count V and Count VII. Count V claims that the ZTAs are an invalid Special Law and
violate Article III of the Maryland Constitution; and Count VII claims that they are illegal targeted zoning
or spot zoning.
44
Defendants incorporate by reference the Circuit Court Opinion in Civil Case No. 401758, dismissing
Sienas petition for judicial review of the same ZTA at issue here, which is attached hereto as Exhibit L.
The Honorable Cheryl A. McCally cogently analyzed the ZTA at issue and its enactment, and held it is a
generally applicable legislative action and not a quasi-judicial action. See Exhibit L. The Court of Special
Appeals recently held that, the legislative acts of the Mayor and Council did not become adjudicative acts
merely because [one zoning text amendment] was drafted in such a way as to affect only [the plaintiffs]
properties and [another zoning text amendment] negatively affected only his properties. Pumphrey, 218
Md. App. at 192, 96 A.3d at 878. The Pumphrey Court reasoned:
In [Talbot County v.] Miles Point [Property, LLC, 415 Md. 372, 2 A.3d 344 (2010)], the
applications to amend the sewer classifications were property specific and the denial of those
applications negatively affected only those properties. Nevertheless, the Court of Appeals
held that because the County Council denied the requested reclassifications for broad,
policy-based reasons and not because it found that the particular property was not amenable
to reclassification, the acts were legislative.
Id. For the same reasons articulated in Pumphrey and in Miles Point, the alleged fact that the ZTA in this
case applies to Sienas Property and that it does not, at present, affect any other property, is irrelevant to the
ZTAs lawful legislative character.
Under Maryland law, an illegal targeted zoning or spot zoning occurs when a zoning ordinance
singles out a parcel of land within the limits of a use district and marks it off into a separate district for the
benefit of the owner, thereby permitting a use of that parcel inconsistent with the use permitted in the rest
of the district. Cassel v. Baltimore, 195 Md. 348, 355, 73 A.2d 486, 488-89 (1950). Such an ordinance is
invalid if it is not in accordance with the comprehensive zoning plan and is merely for private gain. Cassel,
195 Md. at 355, 73 A.2d at 489.The Court in Cassel held that a municipal government has no authority to
place restrictions on one persons property and by mere favor remove such restrictions from anothers
45
property, unless there is reasonable ground for the discrimination. Id. No such impermissible selective
zoning occurred in this case, however. The zoning of the Property was unchanged, and it remained zoned
in the Light Industrial (I-L) Zone. See Letter from Linowes and Blocher LLP, dated December 9, 2014, in
Attachment C to Exhibit E-1, Staff Report for January 5, 2015 Mayor and Council meeting. Therefore,
as no zoning action occurred or is at issue in this case, no spot zoning or targeted zoning occurred.
Moreover, it is undeniable that the ZTA was a change to the Citys Code that did not place
restrictions on just one persons property or single out any parcel of land. On the contrary, it applied to all
properties, in the two industrial zones and in two mixed use zones, which were within 250 feet of any lot
on which a public school is located, as is analyzed in Section I.D., supra. It is typical for legislation to have
its genesis in a specific situation that comes to the attention of the legislative body. Land use legislation that
comes into being because of need to address a land use issue in one location does not become quasi-judicial
action merely by virtue of its origin as a remedy that has to deal effectively with that initial problem
situation. Nor is a conspiracy formed when citizens talk to their elected officials and their elected officials
talk to the citizens. Sienas claims for illegal non-uniform, Special and targeted zoning, fail because
the facts alleged are not sufficient to state a claim upon which relief can be granted and because the record
refutes such claims.
Consequently, Counts III, V, and VII should be dismissed, with prejudice.
XI.
Sienas Claim in Count VI that the ZTAs Violate Article 24 of the Maryland Declaration of
Rights Fails, as a Matter of Law.
Count VI asserts a claim for Due Process and Equal Protection violations under Article 24 of the
Maryland Constitution. The Equal Protection Clause of the Fourteenth Amendment and Article 24 are
similar in their application. Hornbeck v. Somerset Cnty. Bd. of Educ., 295 Md. 597, 603, 458 A.2d 758, 761
46
(1983). Consequently, Maryland Courts have interpreted decisions of the Supreme Court on the Fourteenth
Amendment as direct authority on their considerations of the validity of actions challenged under Article 24.
Attorney Gen. of Md. v. Waldron, 289 Md. 683, 705, 425 A.2d 929, 941 (1981). Sienas Article 24 claim
should be dismissed for the same reasons that are articulated in Argument Sections I, II, III, and IV, supra,
supporting Defendants motion to dismiss Sienas Federal constitutional claims. The arguments made herein
regarding Sienas Fourteenth Amendment Due Process and Equal Protection claims apply with equal force
to the Due Process and Equal Protection claims brought under Article 24.
XII.
Sienas Claims in Counts VIII and IX for Injunctive Relief Should be Dismissed.
For the reasons expressed above, Siena is not entitled to prevail on its claims for declaratory
judgment. Accordingly, there is no sound basis for a grant of the requested injunctive relief in Counts VIII
and IX. In addition, Siena has failed to demonstrate that either of the injunctions it requests are necessary
to prevent any harm to a legally protected interest of Sienas. See Pathways Psychosocial Support Ctr., Inc.
v. Town of Leonardtown, 223 F.Supp.2d 699, 717 (D.Md.2002) (even in a case where a civil rights violation
has been found and irreparable harm can be presumed from a violation of civil rights statutes, the
plaintiffs must still demonstrate[ ] that the . . . injunction they request is necessary to prevent that harm).
XIII. Sienas Claim in Count XIII for Violation of the Maryland Open Meetings Act is Barred by
the 45-Day Statute of Limitations.
Siena has alleged that the closed session at an October 27, 2014, regular meeting of the Mayor and
Council, the Mayor and Council violated the legal advice exception of Md. Code Ann., General
Provisions Art. 3-305(b)(7) by allegedly receiving purported legal advice in the closed session that went
beyond issues related to the proposed Moratorium Motion. Second Amended Complaint, 264. Count XIII
claims violation of the Maryland Open Meetings Act.
47
Siena offers no factual allegations to support the allegation that the discussion in closed session was
anything other than permitted legal advice. This claim is based solely on speculation.
The primary defect with Sienas claim that Defendants violated the Open Meetings Act is that the
first time this claim was filed was on December 29, 2015. The Amended Complaint was filed on that date,
containing a claim in Count VIII, that Defendants violated Sections 3-305(b)(7) and 3-306(c)(2) of the
General Provisions Article on October 27, 2014, when they met in closed session, and on November 3,
2014, when they allegedly failed to include certain information in the next meetings written minutes.
Amended Complaint, 237-241. The Amended Complaint, filed on December 29, 2015, was filed more
than one (1) year after the alleged Open Meetings Act violations.
Section 3-401(b)(1) of the General Provisions Article authorizes any person to file a petition with
the Maryland State Circuit Court a if a public body fails to comply with Section 3-305, or Section 3-306(c)
of that title. However, Section 3-401(b)(2) provides that the statute of limitations for any such petition is
forty-five (45) days, stating:
(2) If a violation of 3-302, 3-305, or 3-306(c) of this title is alleged, the person shall
file the petition within 45 days after the date of the alleged violation.
Md. Code Ann., General Provisions Art. 3-401(b)(2).
Consequently, the claim in Count XIII that the Mayor and Council violated the Open Meetings Act
is barred as untimely filed, well outside the forty-five day statutory limitations period.13
13
Even if the time of filing of the Open Meetings Act claim were arguably to relate back to the
filing of the original Complaint, such claim would be untimely filed. The date on which Siena filed the
original Complaint in the Circuit Court for Montgomery County, February 26, 2015, was nearly three (3)
months after the October 27, 2014, meeting at which Siena claims the Mayor and Council violated the legal
advice exception by moving into a closed session, see Second Amended Complaint, 61-68 and 264-265.
The original Complaint was filed more than two and a half months after the November 3, 2014, meeting
at which Siena alleges the Mayor and Council violated Section 3-306(c)(2) by failing to provide information
about the October 27, 2014, closed session in the written minutes released on November 3, 2014.
48
CONCLUSION
For the foregoing reasons, Defendants Mayor and Council of Rockville, Rockville Mayor Bridget
Newton, Rockville City Councilmember Beryl Feinberg, and Rockville City Councilmember Virginia Onley
respectfully move that the Second Amended Complaint be dismissed as against them or, in the alternative,
that summary judgment be granted on their behalf.
Respectfully submitted,
KARPINSKI, COLARESI & KARP
BY:
/s/
KEVIN KARPINSKI
/s/
SANDRA D. LEE
120 East Baltimore Street
Suite 1850
Baltimore, Maryland 21202
410-727-5000
Kevin@bkcklaw.com
Slee@bkcklaw.com
CITY OF ROCKVILLE, MARYLAND
BY:
/s/
DEBRA YERG DANIEL
City Attorney
City of Rockville
111 Maryland Avenue
Rockville, Maryland 20850-2364
240-314-8150
ddaniel@rockvillemd.gov
Attorneys for Defendants
49
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of February 2016, a copy of the foregoing was electronically
filed, with notice to:
Ira T. Kasdan, Esquire
Bezalel A. Stern, Esquire
Kelley Drye & Warren, LLP
Washington Harbour, Suite 400
3050 K Street, N.W.
Washington, D.C. 20007
Attorneys for Plaintiffs
/s/ Sandra D. Lee

Of Counsel for Defendants

Rockville Motion To Dismiss

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Case 8:16-cv-00243-RWT Document 15-1 Filed 02/08/16 Page 1 of 53

IN THE UNITED STATES DISTRICT COURT

THE MAYOR AND CITY COUNCIL

Case No.: RWT 16cv00243

Case 8:16-cv-00243-RWT Document 15-1 Filed 02/08/16 Page 2 of 53

Siena Does Not Have Standing to Bring the Instant Claims. . . . . . . . . . . . . . . . . . . . . . . 20

Siena Has Only Alleged Loss of an Expectation of a Zoning Right or Loss

The Individual Defendants Have Absolute Legislative Immunity.... . . . . . . . . . . . . . . . . 36

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Declaratory Judgment That the ZTAs Violate the Fourteenth Amendment of

Declaratory Judgment That the ZTAs Are an Invalid Special Law In

Declaratory Judgment That the ZTAs Violate Article 24 of the Maryland

Declaratory Judgment That the ZTAs Are an Illegal Targeted Zoning

Case 8:16-cv-00243-RWT Document 15-1 Filed 02/08/16 Page 6 of 53

Injunctive Relief as to Sienas Property (Against Defendant the Mayor and

Fraudulent Misrepresentation (Against All Defendants in Their Official and

42 U.S.C. 19832 (Against All Defendants in Their Official and Individual

Civil Conspiracy Under and in Violation of 42 U.S.C. 1983 (Against the

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Referenced information in Exhibits sometimes is highlighted, for the Courts convenience.

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Id., p. 7, lines 14-19.

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See footnote no. 6, supra.

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Siena Does Not Have Standing to Bring the Instant Claims.

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The Individual Defendants Have Absolute Legislative Immunity.

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