Amended Complaint Siena v. Rockville

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 1 of 87
SECOND AMENDED COMPLAINT

Introduction
Pursuant to Maryland Rule 2-341 (a), Plaintiffs Siena Corporation, a Maryland corporation,
and Rockville North Land LLI.P, a Maryland limited liability limited partnership (together,
Plaintiffs or Siena), by and thi'ough their undersigned counsel, file this Second Amended
Complaint against the Mayor and Council of Rockville, Maryland (the Mayor and Council),
Rockville Mayor Bridget Newton, Rockville City Councilmember Beryl Feinberg, Rockville City
Councilmember Virginia Onley and a currently unnamed Jane Doe (collectively, all the
aforementioned are referred to herein as the Defendants, and Rockville Mayor Bridget Newton,
Rockville City Councilmember Beryl Feinberg, Rockville City Councilmember Virginia Onley
are, collectively, referred to as the
Councilmember Defendants). The Councilmember
Defendants and Jane Doe are sued in their official and individual capacities.
Siena filed this lawsuit because it was wronged. Initially, Siena filed its Complaint only
against the Mayor and Council acting as an official body. A cardinal claim in the original
Complaint was that the Mayor and Council, acting under the color of law, deprived Siena of its
Constitutional rights in passing a zoning text amendment that targeted Siena and prohibited Siena
from building a self-storage facility on its property in Rockville, in violation of 42 U.S.C. 1983.
Siena did not take lightly the decision to sue the individual Councilmember Defendants
and to make allegations against unsued co-conspirator non-Councilmembers and/or Defendant
Jane Doe. Since the filing of its initial Complaint, Siena has obtained discovery, which now
necessitates the filing of this Second Amended Complaint due to outrageous and perhaps
unprecedented misconduct by the individual Defendants and their co-conspirators. The discovery,
as illustrated below, reveals that the Councilmembers Defendants and (perhaps) Defendant Jane
Doe as well as the unsued co-conspirator non-Councilmembers acted with malice, fraudulently,
and with intentionality, and with the knowledge that they were violating Sienas constitutional
rights under the United States Constitution, the Constitution of the State of Maryland and the
Maryland Declaration of Rights, which makes them personally liable for their actions.
The
discovery also reveals an unlawful conspiracy under 42 U.S.C. 1983 between and among the
Councilmember Defendants and private citizens, who are unsued in this Second Amended
Complaint, as well as another likely co-conspirator, Defendant Jane Doe, to be specifically named
if and as appropriate after further discovery.
Freedom of thought and freedom of speech are enshrined in both the United States and the
Maryland Constitutions, and Siena has no interest in trying to squelch these freedoms. This case.
however, is not about First Amendment rights. It is, instead, about the deprivation of Sienas
constitutional and other related rights. It is of paramount impoitance for the courts to ensure that
fair and lawful processes are applied by elected officials, that they act appropriately and not subvert
settled procedures and that they not be improperly influenced by the illegal tactics of others. The
private citizens who were co-conspirators with the individual Defendants were not exercising a
right to speech; rather, they were acting jointly and in concert with City of Roclcville officials, who
themselves acted with malice and outside of the normal process, in order to illegally deprive Siena
of its desired and lawful use of its property. It is for this reason that Siena is amending its
Complaint.
Had these private citizens merely met with the Councilmember Defendants to air or lobby
their views, provided the City of Rockville with factually accurate presentations, and spoken
honestly at public meetings, they likely would have been within their rights. Unfortunately, the
Councilmember Defendants and the private citizen co-conspirators crossed a line. They entered
into an agreement, positive or tacit, to deprive Siena of its constitutional rights, acting in unlawful
concert with each other to intentionally adopt a zoning text amendment which they knew was
targeted, unconstitutional and illegal.
Among other things, the private citizens conducted a propaganda and smear campaign
against Siena, while the Councilmember Defendants leaked internal Mayor and Council
information and attorney-client privileged information to the private citizens; coached the private
citizen co-conspirators as to what to say and do at public hearings, with which the private citizen
co-conspirators complied; and lied - along with their private citizen co-conspirators - at public
hearings in order to downplay or entirely cover up the true, targeted nature of the zoning text
amendment.
In furtherance of the conspiracy, the Councilmember Defendants, the co-conspirator
private citizens (and likely Defendant Jane Doe) masked the targeted nature of the zoning text
amendment by crafting it ostensibly to apply city-wide, while in truth, and purposefully, having it
only affect Siena and its property. The documents and testimony described below show how the
Councilmember Defendants - along with the unsued co-conspirators (and, likely, Defendant Jane
Doe) - twisted the law to adopt an unlawful and unconstitutional zoning text amendment that has
a veneer of lawfulness but is nothing more than pretext, which conceals the discriminatory nature
and intent of targeting Siena and its property through spot zoning.
At all times with respect to each action by the Councilmember Defendants, as well as
Defendant Jane Doe and the unsued co-conspirators, all as described herein, such actions were
taken under the color of state law. However, their actions were knowingly and intentionally
improper, illegal and unconstitutional.
At all times with respect to each action by the Councilmember Defendants, all as described
herein, such actions were not traditional legislative activities, and were talcen maliciously and with
improper motivation. These actions of the Councilmember Defendants (and Defendant Jane Doe)
and the improper motivation for their actions as described herein, deprive them of whatever
possible immunities they may have had and make them personally liable.
Based on the substantiated allegations in this Second Amended Complaint, Siena is seeking
declaratory judgments and injunctive relief as well as compensatory and punitive damages.
attorneys fees, and costs from the Defendants, all as may be appropriate.
In support of its claims, Siena alleges as follows:
The Parties
1.
Plaintiff Siena Corporation is a Maryland corporation with its principal place of
business in Howard County, Maryland.

2.
Plaintiff Rockville North Land LLLP is a Maryland limited liability limited
partnership with its principal place of business in I-Ioward County, Maryland. Siena Corporation
is Rockville North Land LLLPs general partner.
3.
Plaintiff Siena Corporation is the developer and Plaintiff Rockville North Land
LLLP is the owner of certain real property occupying approximately 1.39 acres of land located in
the southwest quadrant of the intersection of Taft Street and First Street, within the city limits of
Rockville, Maryland (the Property). The address for the Property is 1175 Taft Street.
Rockville, Maryland.
4.
The City of Rockville (the City) is a municipal corporation authorized by the
State of Maryland to implement zoning controls within its municipal boundaries.

5.
Defendant the Mayor and Council is the governing body of the City.
6.
Defendant Bridget Newton is currently, and was throughout the events described
in this Complaint, the Mayor of the City.

7.
Defendant Beryl Feinberg is currently, and was throughout the events described in
this Complaint, a member of the Mayor and Council.

8.
Defendant Virginia Onley is currently, and was throughout the events described in
this Complaint, a member of the Mayor and Council.

9.
Defendant Jane Doe is an individual to be specifically named if and as appropriate
after further discovery.

10.
At all times with respect to each action by the Councilmember Defendants, as
well as Jane Doe, all as described herein, such actions were taken under the color of state law.
However, the actions of these Defendants were laiowingly and intentionally improper, illegal and
unconstitutional.
Co-Conspirators
11.
The Councilmember Defendants (and Defendant Jane Doe) engaged in the actions
alleged not only in their individual and official capacities, but ifom time to time while acting in
concert with unsued co-conspirators, including Kashi Way, Diane Ferguson, Melissa McKenna,
Peter Witzler and Patrick Schoof (collectively, the Activists).
12.
Because the Activists jointly engaged with the Defendant Councilmembers and
Defendant Jane Doe in the challenged actions as described herein, they too were acting under
color of state law for purposes of 42 USC 1983, and are liable thereunder irrespective of any
immunity that may be or may have been available to the Defendant Councilmembers (or
Defendant Jane Doe). Although Siena reserves the right to join the Activists as defendants in
this lawsuit, or to sue them independently in the future, Siena is not suing them at this time.
Jurisdiction and Venue

13.
This Court has subject matter jurisdiction over this matter pursuant to Md. Code
Ann., Cts. & Jud. Proc. 1-501. Jurisdiction is proper under Md. Code Ann., Cts. & Jud. Proc.
3-403, 3-405, 3-406, 3-409, 6-102, 6-103 and the Courts inherent equitable powers, and
venue is proper pursuant to Md. Code Ann., Cts. & Jud. Proc. 6-201.
FACTS COMMON TO ALL COUNTS
Siena Purchases the Property With the Mayor and Councils Encouragement and Support
14.
In or about October, 2013, Hackman Capital Acquisition Corporation (Hackman)
acquired the Property out of a bankruptcy liquidation. The Property, on which an empty building
had been found, had previously been abandoned and fallen into ill-repair, and had no security
protocols in place. Hackman marketed the vacant Property for sale. Siena participated in the
competitive bid process, and ultimately entered into a contract to purchase the Property (the
Contact).
15.
Although the Contract only allowed for limited due diligence (since Hackman
acquired the Property out of bankruptcy, without any representations or warranties), Siena
nevertheless 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. Specifically, Siena
needed to ensure that it would be able to develop the Property as a self-storage facility.
16.
In or about October, 2013, representatives of Siena met with staff members of the
Citys Planning Commission (the Planning Commission) as part of due diligence efforts to
identify potential land use and zoning issues related to the development of an ezStorage (the name
brand under which Siena-related entities operate self-storage sites) self-storage facility on the
Property. At that time, the Planning Commission staff was made aware of the proposed size and
scope of Plaintiffs building plans (i.e., a 109,808 square-foot facility with 900 storage units, a
1,100 square foot office and a dwelling unit for a full-time resident manager at the Property) (the
Project). As a result of these meetings. Plaintiffs discovered that the required parking for the
Property (based on general warehouse use) was far in excess of what was needed for a self-storage
facility - so much so that it would make the Propertys redevelopment as a self-storage facility
unfeasible.
17.
Siena alerted the City to its concerns regarding the Property. Additionally, Siena
sought and obtained multiple extensions of the diligence period from Hackman under the Contract
in order to obtain additional time to resolve the parking issues. The extensions of the diligence
period specifically referenced that Siena would only purchase the Property under the condition
that development of the Property is feasible under the City of Rockville parking requirements.
18.
Siena submitted an application for Zoning Text Amendment TXT2014-00237
(ZTA TXT2014-00237) to amend Chapter 25 of the Rockville City Code (the Roclcville City
Code) for the purpose of adding a new off-street parking standard for self-storage facilities. The
effect of ZTA TXT2014-00237 would be to make it feasible for Siena to construct a self-storage
facility on the Property.
19.
On Januaiy 8,2014, the Planning Commission reviewed ZTATXT2014-00237 and
recommended that it be approved and adopted. On February 10, 2014, the Mayor and Council
adopted ZTA TXT2014-00237, finding that it would would promote the health, safety and
welfare of the citizens of the City of Rockville.
20.
The Mayor and Councils adoption of ZTA TXT2014-00237 allowed Siena to
purchase the Property. Defendants were aware of this fact. Had Defendants not adopted ZTA
TXT2014-00237, Siena would not have purchased the Property.
21.
On or about March 5, 2014, Rockville North Land LLLP purchased the Property
for millions of dollars, generating substantial transfer and recordation taxes for the City,
Montgomery County, and the State of Maryland. At the time Rockville North Land LLLP
purchased the Property, there were no impediments to constructing an ezStorage self-storage
facility on the Property.
A Few Vocal Opponents Join Together to Block Sienas Project
22.
In order for the Project to be constructed, the Planning Commission needed to
approve the Projects site plan (the Site Plan). Therefore, shortly after purchasing the Property,
Siena began its Site Plan approval process for the Project. Siena engaged engineers, architects.
and other related professionals in order to develop designs and plans for the Property. Siena then
submitted the Site Plan to the City for approval.
23.
On or about February 19, 2014, Siena sent notices of a Pre-Application Area
Meeting regarding the Project to property owners and residents within a 1,250 foot radius of the
Property. The meeting took place on March 6, 2014. Only five people - including Activists Way
and Ferguson - attended the Pre-Application Area Meeting.
24.
Following the Pre-Application Area Meeting, Ferguson sent an email to Activists
McKenna and Schoof, in which she stated:

Kashi did some online research, which indicated that newer self
storage facilities with advanced security features are not
accompanied by an increase in the crime rate. One interesting thing
the developer mentioned is that local jurisdictions are starting to use
self-storage facilities as a buffer between industrial and residential
zones because such facilities tend not to cause as many conflicts
(e.g., they have less ti'afflc and noise impact).
Thus, the Activists knew as early as March, 2014 that there were no legitimate health or safety
concerns regarding the operation of the self-storage facility intended to be built and operated by
Siena on the Property.
25.
Nevertheless, in or around April, 2014, the Activists began to conduct a propaganda
and smear campaign against Siena, trying to build citizen contempt for the Project and to use this
public contempt to illegally pressure the Planning Commission and/or the Mayor and Council to
disapprove the Project.
26.
On April 7, 2014, Melissa McKenna sent an email to the members of the Maryvale
Elementary School PTA Yahoo group. In this email, McKenna stated, as explanation for her
opposition to the Project: There are storage facilities in the general industrial areas nearby, but
this facility would directly abut the school.' (Emphasis added). As McKenna was well aware,
this statement is patently false.
27.
Maryvale Elementary School (Maryvale) is a public elementary school located
in Roclcville, Maryland. There is a distance of approximately 600 feet between the Maryvale
school building and the Property. There is a distance of approximately between 210 and 220 feet
between the Property and the closest boundary of the lot on which Maryvale is located. The
Property does not abut the lot on which Maryvale is located at any point.
28.
Upon information and belief, the following businesses currently do abut the lot on
which Maryvale resides: (1) Happy Motors Inc., a fuel oil and petroleum products company; (2)
Romero Auto Repair, a car repair and maintenance facility; (3) EMCOR Services Combustioneer,
an HVAC company; and (4) Bel Pre Glassworks, Inc., a glass shop. Additionally, Bio Sciences
Limited, RX, a biochemical company, is located approximately 190 feet from the lot on which
Maryvale is located (i.e., it is closer to Maryvale than the Property).
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29.
Following receipt of the false information disseminated by McKenna regarding the
claimed abutment of the Property and Maryvale, Maryvale PTAs general membership voted to
approve a resolution stating that the PTA opposed the proposal to construct an ezStorage facility
on the Property.
30.
On or around April 10, 2014, Activist Witzler began to circulate a MoveOn.org'
Petition, titled Keep the Maryvale Elementary School Neighborhood Safe.

Witzler stated,
In this petition,
1 oppose the construction of a 4-level, 900-unit storage facility in our
neighborhood, that will be only 100 feetfrom Maryvale Elementary School'' (Emphasis added).
This statement is patently false.
31.
On May 15, 2014, Siena held a second Post-Application Area Meeting regarding
the Project. Only five people attended the second Post-Application Area Meeting - four of those
five people were Activists Way, Ferguson, McKenna and Schoof.
The Activists Conspire With Councilmember Defendants Newton and Feinberg to Illegally
Block Sienas Project by Way of a Targeted Zoning Text Amendment
32.
On June 18, 2014, Craig Pittinger, Sienas Senior Vice-President, emailed
McKenna to see if there is any interest from you or other members of the community to meet and
review our proposed development for the Property. McKenna circulated the email to Ferguson
and Schoof. Ferguson responded: I don't feel I need to take Craig up on the offer . . .
Instead,
the Activists suggested that Pittinger meet with representatives of the East Rockville Civic
Association (ERCA). Pittinger agreed, and a meeting was scheduled for August 12, 2014.
33.
On June 25, 2014, Witzler wrote a letter to the Rockville Gazette, in which he
stated, inter alia: Over 120 people have signed the petition opposing the storage facility. So far.
the city has completely disregarded our concerns saying that developer can do whatever they want
within the zoning. It would appear that the voice of an out-of-town developer is more important
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than the voice of residents who will be affected by a development. 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. Siena, on the other hand, pays property taxes to the City and
paid thousands of dollars to the City at the time it acquired the Property.
34.
Following the publication of Witzlers letter, Defendant Newton reached out to him
to talk about Sienas planned storage facility. According to Witzlers account of their discussion
which he later shared with Activists Schoof and McKenna - Mayor Newton had told Witzler
that she is on our side and wants to help.
35.
In discussing in early July, 2014, how to prevent Siena from building a self-storage
facility on its Property, Witzler and co-conspirator Mayor Newton jointly came up with the idea
of introducing a zoning text amendment at an upcoming council meeting that would add a
restriction on permitted uses of Light Industrial zone within a radius of a school zone.
36.
Over the next month, the Activists began plotting to create a zoning text amendment
that would specifically (and illegally) target the planned self-storage facility on Sienas Property.
37.
On July 28, 2014, Witzler circulated a zoning text amendment that he had drafted,
which would not permit a self-storage facility in a Light Industrial Zone within 200 ft of a School
Zone. Recognizing that Sienas proposed self-storage facility would fall outside of 200 feet from
Maryvale and wanting to ensure that Siena was targeted by and included in the scope of the zoning
text amendment, McKenna stated: Are we positive about the 200 feet distance?! Should it be 250
feet so someone else doesn't gave [sic] to go through all this again because they [i.e. Maryvale]
are 210 feet? This shows that the Activists were drafting a zoning text amendment specifically
to target Siena and its Property.
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38.
On July 29, 2014, Witzler wrote an email to Schoof and McKenna. In the email,
Witzler told Schoof and McKenna that he had discovered that filing a zoning text amendment in
Rockville costs $3,000. Because he did not want to spend his own money on the zoning text
amendment, Witzler suggested that the Activists tell this story in front of Mayor and council and
ask them to introduce during the amendment as it is written by us. That way our version of it-the
most restrictive/best possible option-becomes a matter of public record. (Emphasis added).
39.
On August 11,2014, at a meeting of the Mayor and Council, Witzler and McKenna
followed through with Witzlers plan to try to get the Mayor and Council to introduce the zoning
text amendment targeting Siena and its Property. At the meeting, Witzler stated: So I thinlc the
solution is actually a pretty easy one. Its a zoning text amendment.
40.
In preparation for the meeting August 12, 2014 ERCA meeting with Pittinger,
Witzler sent a mass email to everyone who signed his MoveOn.org petition. In the email, he
disparaged Siena as an out-of-town developer and urged his supporters to attend the meeting to
prevent the construction of the Storage Facility.
41.
On August 12, 2014, representatives of Siena, including Pittinger, attended the
ERCA meeting to present and answer questions about Sienas Site Plan Application. Despite
Witziers strenuous push to get Rockville residents upset about the Project, only about twenty
people attended the meeting. Among those in attendance at the ERCA meeting were McKenna,
Schoof and Defendant Mayor Newton.
42.
On August 15, 2014, McKenna emailed Mayor Newton to discuss preventing
Sienas Project. In the email, McKenna noted the continued struggle along in our attempts to
malce Siena Corp. withdraw their [Site Plan] application, and [t]o that effect, she call[ed] on
Newton to introduce a zoning text amendment... to prohibit self-storage facilities from within a
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school zone or within 250 feet of the end of a school zone.
This direct linlcage in the email
message demonstrates that the zoning text amendment was aimed specifically at Sienas Property.
43.
Extensive email correspondence from that point and on between and among the
Activists explicitly showed that the purpose of any zoning text amendment was to specifically
target and stymie the Project and to prevent Siena from building a self-storage facility on its
Property, as detailed in the paragraphs below.
44.
In an August 21, 2014 email to her co-conspirators Witzler and Schoof, McKenna
stated: As for the amendment wording itself, Patrick wondered today about adding warehouse,
but a quick drive down Taft this afternoon showed me that the lease signs primarily tout warehouse
space available. So I think sticking specifically to self-storage facilities would be best. Witzler
responded: I think sticking to self storage is good idea. [A different text amendment in a different
municipality] included things like dry cleaning companies with noxious fumes, or other things
with legal, but unhealthy public health impacts. So may want to consider including that
There would need to be a way to grandfather in the existing stuff AND exclude EZ Storage.
(Emphasis added). This email exchange shows that the Activists were illegally conspiring to target
Siena and its Project.
45.
In an August 27, 2014 email to Witzler and Schoof, McKenna detailed her prior
correspondence with Mayor Newton focused on preventing Siena from pursuing its Project.
McKenna then stated clearly and plainly what the goal of the conspiracy between the Activists and
Defendant Newton was in drafting a zoning text amendment to ban self-storage warehouse: 'And
yes, ours is blatantly obvious that we are trying to exclude ezStorage ... (Emphasis added).
This email shows that the Activists and Defendant Mayor Newton were illegally targeting Siena
and its Project as early as August, 2014.
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46.
On September 1, 2014, Councilmember Feinberg visited Sienas Property and the
surrounding neighborhood. Also on September 1, Defendant Feinberg wrote to Schoof: . . .

clearly, you and your neighbors have done a significant amount of research on this subject.
47.
On September 8, 2014, McKenna wrote: Off the record, we have convinced
several decision makers at different levels that the Project is not a good idea.
On information
and belief, the several decision malcers at different levels McKenna was referring to were
Defendant Newton and Planning Commissioner Charles Littlefield.
Despite the Opposition of the Activists and Defendant Newton,
the Planning Commission Approves the Project
48.
On September 10, 2014, after holding a public hearing on the matter, the Planning
Commission approved the Site Plan, conditioned on a unit on the Property being maintained for
the self-storage facilitys manager. Many of the Activists were present at the hearing and had an
opportunity to comment for the record. Defendant Newton also attended the hearing. At the
hearing, Pittinger, Sienas Senior Vice-President, stated for the record that in 25 years of operating
45 self-storage facilities in the region, two of which are very close to schools (one within 100 feet
of a school), Siena had never encountered any situations that would compromise the safety of a
school facility or any of the surrounding neighborhoods.
49.
At the hearing, Planning Commissioner Littlefield stated: On this particular
application, I just wanted to disclose that I have two daughters that go to Maryville, and I live in
the neighborhood and I know some of the people who have provided public testimony. In fact,
Commissioner Littlefield had been providing Witzler with advice about their opposition to the
Project from behind the scenes. However, Commissioner Littlefield did not disclose these private
communications. While the Planning Commission voted to approve the Projects Site Plan,
Commissioner Littlefield voted against the Site Plan.
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50.
Consistent with the Citys long-standing procedures, following the September 10,
2014 public hearing at which the Planning Commission approved the Site Plan, the City issued a
Site Plan approval letter to Siena on September 17, 2014 (the Site Plan Approval).
51.
The Site Plan Approval found, in relevant part, that the Site Plan will not adversely
affect the health and safety of persons residing or working in or adjacent to this development. The
applicant has shown that the nearby residential area will not be negatively affected by this
industrial use, nor will it affect their health or safety'' (Emphasis added).
The Planning
Commission further found that the Site Plan was consistent with the Citys Master Plan (the
'Master Plan), because Sienas plans included 10 to 25 feet of landscaping surrounding the
building, even though the property is not adjacent to residential properties to really make an
impact. Finally, the Site Plan Approval included factual findings that the Site Plan decreases
the industrial impact on surrounding properties by removing a manufacturing use and replacing it
with a warehouse use to be used mainly by residents.
The Activists Unsuccessfully Try to Manipulate the Planning Commission
to Reverse Its Decision
52.
Despite an extensive and prolonged process leading to the Site Plan Approval,
including the above-described public hearing and written findings by the Planning Commission,
the Activists sought to upend the process by seeking reconsideration of the Planning Commissions
Site Plan Approval.
McKenna submitted a Reconsideration Request (the Reconsideration
Request) on behalf of herself and the other Activists on September 26, 2014. Although the basis
for the Reconsideration Request was the purported failure to properly notify residents of the David
Scull Courts, a public housing project located at 1200 First Street in Rockville, which is
approximately 600 feet from the Property (David Scull), the Reconsideration Request was not
made on behalf of, or joined by, David Scull or any of its residents.
16
53.
Before the Planning Commission acted on the Reconsideration Motion, Witzler
informed the other Activists that I think our allied [sic] on PC [the Planning Commission] will
give us opportunity to be heard again, referring to the Activists ally, Commissioner Littlefield.
And indeed, the Planning Commission reviewed and granted the Reconsideration Request on
October 8, 2014.
54.
A formal reconsideration healing on the Site Plan Approval was held on November
12, 2014. At the reconsideration hearing, the Planning Commission reaffirmed the Site Plan by a
4-2 vote. Commissioner Littlefield was once again in the minority of Commissioners voting
against approval of the Site Plan.
The Activists Conspire With Defendant Mayor Newton, Councilmember Defendant
Feinberg and Councilmember Defendant Onley to Introduce a Zoning Text Amendment
Targeting the Property or to Pass a Moratorium Motion
55.
On September 11,2014 (after the Planning Commission approved the Site Plan for
the first time), Way wrote to McKenna and the other Activists: Now that the Planning
Commission has made its decision, and given how close the vote was and the fact that the Rockville
mayor was in attendance the entire time, is it possible to raise the zoning issue at the next Rockville
Mayor and Council Meeting? McKenna responded, on September 13: As for a zoning change.
or Zoning Text Amendment, I don't think its very likely. You'll see that our first appeal was for a
zoning text amendment to specifically exclude self-storage facilities. We backed off that because
it was putting them on the spot making it all too obvious that we specifically wanted to exclude
Siena/Rockville North Land.'' (Emphasis added).
56.
On October 13,2014, the Activists regrouped and analyzed their options. Realizing
that the Planning Commission likely would reapprove the Site Plan for a second time (as in fact
was the case), the Activists had no legal way to prevent Siena from building the Project on its
17
Property. Therefore, the Activists focused on two illegal methods to target Sienas Property.
McKenna explained that they would try to convince the Mayor and Council to adopt either
zoning text amendment to the effect of no light industrial use in/near a school zone, or to place a
[mjoratorium on [building] applications in the Southlawn/Redgate area [ie., the area in which
Sienas Property is located] xmtil [a feasibility] study is completed (the Moratorium Motion).
57.
On October 13, 2014, Way met with Councilmember Onley to try to convince her
to target Siena. In an email to the other Activists, Way explained that he and Defendant Onley
only spoke for 10 minutes but she seemed interested in the issue and gave me her card. She invited
me to call and set up a follow-up meeting. On October 20, 2014, Schoof explained: We need
Onley, yet it has been advised we do not push, and instead get her immediately talking to [David]
Scull Park Court residents with children who will sell her on the concern they have for the safety
of their children and neighborhood, with such a structure at the only path into or out of their
neighborhood [sic]. (Emphasis added). On information and belief, Witzler was advised in this
regard by Councilmember Defendants Newton and Feinberg.
58.
While working to bring a third Councilmember on board with their illegitimate plan
to prevent Sienas Project, Witzler impressed upon the other Activists the conspiratorial nature of
their scheme. In an October 20,2014 email to the other Activists, Witzler explained: FYI - Please
do not share emails or strategy with Planning Department staff. Also, please do not share strategy
with Council members, unless you know we have their support. It is recommended that they
share their ideas with us, and we help to develop and request those ideas in our public
statements.' (Emphasis added).
59.
On October 27, 2014, at a regular meeting of the Mayor and Council, Way
recommended that the Mayor and Council impose a moratorium on any site plan application in
18
the East Rockville buffer zone (which included Sienas Property). The effect of the Moratorium
Motion would have been to prevent Siena from building the Project on its Property. Way argued
in his public testimony that his proposed moratorium is both legally and morally justified.
In
fact, the Moratorium Motion was neither legal nor moral, as the proposed moratorium would have
clearly been illegally targeting Siena and its Property.
60.
Despite the fact that the Moratorium Motion would have been per se illegal,
following Ways comments, Councilmember Feinberg chose to move forward with the
Moratorium Motion, moving for a moratorium on the receipt, filing, processing and approval of
any applications for use permits, for development in non-residential zones that share a common
property line with residential zones that contain single-family detached or attached or multi-family
residences, excluding mixed-use developments approved pursuant to a special development
procedure.
Councilmember Onley seconded Defendant Feinbergs call for a vote on the
Moratorium Motion. Mayor Newton also voiced her support for the Moratorium Motion.
The Defendants and City Attorney Daniel Enter a Closed, Executive Session
61.
Debra Daniel, Rockvilles City Attorney, was appai'ently not aware that the
Moratorium Motion would be brought up at the October 27,2014 meeting. Daniel stated: I would
appreciate an opportunity to give legal advice to the Mayor and Coimcil... in private, before the
Mayor and Council voted on the Moratorium Motion.
62.
Defendant Newton protested, saying: I will just say I think that because this is a
public process, this is a public issue, legal advice should be given in public. Nevertheless, Daniel
persisted, stating: Id appreciate having the opportunity to speak to the Mayor and Council and
be able to give you legal advice confidentially ... I dont think its in the Citys best interest to
19
[pursue the Moratorium Motion].
The Mayor and Council ultimately agreed to hear Daniels
advice at a closed. Executive Session.

63.
Before moving into the closed, Executive Session, Daniel invoked the Maryland
Open Meetings Act, Md. Code, General Provisions Article 3-305, stating: And just to be clear,
we would be doing it under Section 3-305 B7 of the General Provisions Article of the annotated
code of Maryland to go into closed session to obtain legal advice. This statement demonstrates
that Daniel and the Mayor and Council had loiowledge of the requirements and provisions of the
Maryland Open Meetings Act. Following Daniels statement, the motion to move into the closed
Executive Session passed unanimously.
64.
Following the Executive Session, Defendant Feinberg withdrew the Moratorium
Motion, stating: Based on some of the guidance that we have received in our executive session, I
would like to withdraw my motion ... .
65.
Beyond Defendant Feinbergs brief statement withdrawing the Moratorium
Motion, the Mayor and Council did not engage in any public discussions during the open session
of the October 27 meeting pertaining to the policy implications of the purported legal advice it
received in the closed. Executive Session.
66.
On information and belief, at the Executive Session, Daniel explained to the Mayor
and Council that the Moratorium Motion was per se illegal, as it was clearly being passed to
prevent Siena from constructing a self-storage facility on its Property.
67.
On information and belief, at the Executive Session, Daniel advised the Mayor and
Council that they could secretly target Siena and its Property by passing a zoning text amendment.
20
68.
On information and belief, Daniels advice exceeded the scope of the legal advice'
exception that permitted the Mayor and Council to move for the Executive Session under 3-305
of the Open Meetings Act.
Having Discovered That the Moratorium Motion is Per Se Illegal, Defendants
Turn Their Attention to Passing a Zoning Text Amendment
Which Would Accomplish the Same End Goal
69.
Following the withdrawal of the Moratorium Motion, the Activists regrouped. On
October 28, 2014, Way (who is an attorney) wrote to McKenna: Fyi, I have a taken a quick look
at the law on this issue, and the City Attorney may actually have had some good reasons to be
concerned about the legal exposure a moratorium would create. Later that same day, McKenna
wrote; I would rather be better aware of the potential risks before advocating for a moratorium,
even though that's what we really want and need.
70.
Also on October 28, 2014, Schoof wrote to Witzler: Pushing the moratorium, or
another solution of equal affect, is a good idea. The only out they [i.e., the Mayor and Council]
should have is finding an option of equal affect [sic]. (Emphasis added). The focus of the
Activists - and of the Mayor and Council - thereby shifted to create another vehicle, one that
would effectively block Sienas proposed self-storage facility in the same manner as the illegal
Moratorium Motion would have, as Defendant Feinberg later confirmed in an email to McKenna
dated October 31, 2014. See f 71, below.
71.
On October 28, 2014, McKenna wrote an email to co-conspirator Defendant
Feinberg, in which she stated: My hope is that the city attorney [Daniel] will be helping you all
craft some language that make a moratorium possible without it looking like you are singling out
this one application [i.e., Sienas] or possibly adversely affecting other applications in the city.
(Emphasis added). On October 29,2014, Feinberg responded, Melissa, yes, I spoke with the City
21
Attorney yesterday to re craft some language and specifically to make sure it does not appear to
target this neighborhood. (Emphasis added). In this email, Defendant Feinberg admits that she
was conspiring (apparently with City Attorney Daniel) to draft language for a zoning text
amendment in such a way that it would not appear to target Siena, but would, in fact, do so.
72.
Also on October 29,2014, McKenna wrote an email to the other Activists, in which
she stated: On the QT, and not for public dissemination: beryl [Feinberg] met with attorney
[Daniel] yesterday and Bridget [Newton] did today. They are working on necessary language.
Trouble is that beryl mentioned ezStorage which then brings in the whole spot zoning threat. This
email shows that Defendants Newton and Feinberg - along with Daniel and McKenna - were
crafting a zoning text amendment in order to target Siena, while at the same time trying to craft
the language of the text amendment so that it did not appear to explicitly target Siena. This is
illegal
73.
On October 31, 2014, Defendant Feinberg wrote to McKenna. In her email, she
told McKenna what had been discussed between City Attorney Daniel and the Mayor and Council
in Executive Session, thereby waiving any privilege the Executive Session may have once retained.
Particularly, Defendant Feinberg explained that, pursuant to Daniels advice, the Moratorium
Motion likely would not be pursued, because it was per se illegal. Instead, Feinberg continued,
[t]here are other alternatives under discussion. Will not be resolved by 11/12 Planning
Commission date, but will still be strategy to achieve same end 2oal. Suggest you speak to zoning
text amendment in school zone for entire City, do NOT spealc just to this proposal in your
neighborhoods, but safety for all school zones. Try to limit conversation about this project, so as
to minimize other folks saying any of us are doing 'spot zoning' or only concerned about this
project, keep it at a 'higher broader' level of conversation. (Emphasis added).
22
74.
By pursuing the adoption of a zoning text amendment, Defendant Feinberg and the
Activists were conspiring to target Siena in the same manner as the aborted Moratorium Motion
had attempted to do. Indeed, on November 2, 2014, Defendant Feinberg wrote to McKenna: I
am really doing what I believe is the coiTect public policy on this issue. Really don^t want to
create an artificial barrier for David Scull community.
(Emphasis added). This shows that
Feinberg was using the zoning text amendment to target the area of the David Scull community,'
i.e., the area in which Sienas Property is located. This is inappropriate, as a covertly illegal
targeted zoning text amendment is nothing more than a substitute for the facially illegal
Moratorium Motion.
Defendants and the Activists Conspire to Craft a Zoning Text Amendment to Target Siena
75.
Near the end of the November 3, 2014 Mayor and Council Meeting, Defendant
Feinberg introduced a proposed item for the November 10,2014 agenda: a zoning text amendment.
At the conclusion of the discussion, Defendant Feinberg directed City Staff to draft the zoning text
amendment. The Activists had advance knowledge of what Defendant Feinberg was going to do;
however, Siena was not provided with any advance knowledge about this.
76.
Between November 3,2014-when Defendant Feinberg directed City Staff to draft
a zoning text amendment - and November 10,2014 - when the draft of the zoning text amendment
was authorized for filing by the Mayor and Council - the Activists, Defendant Newton and
Defendant Feinberg conspired to make sure the zoning text amendment specifically targeted Siena
and its Property, as described in the following paragraphs.
77.
On November 4,2014, Witzler emailed the other Activists, saying: I think it would
be good for us to send a private note of thanks to Beryl [Feinberg] thanldng her for staying strong
23
last night and moving forward. We may want to distribute our press release to them directly so
they can see we are on record giving them cover.'' (Emphasis added).
78.
On November 7, 2014, Schoof wrote to the other Activists: While I am sure they
[the Mayor and Council] worked out the language with the attorney [Daniel], this [Sienas]
property is approximately 220 feet from the school property, so 200 feet would not help us at all.
Way responded Beryl [Feinberg] said 250 feet.
79.
situation.
McKenna explained: The 250 feet is to make sure it applies to our specific
(Emphasis added). By our specific situation, McKenna was referring to her
understanding of the distance between Maryvale and Sienas Property. This demonstrates that the
conspirators were drafting the zoning text amendment specifically to target Sienas Property.
80.
The Councilmember Defendants (and Defendant Jane Doe) knew that the actions
they were taking against Siena were illegal and unconstitutional. On information and belief they
were so advised by the City Attorney, Debra Daniel.
81.
On November 7, 2014, Councilmember Tom Moore wrote an email to the
Councilmember Defendants and City Attorney Daniel in which he stated: As we begin the process
of considering a zoning text amendment in the East Rockville area to block the building of the
proposed EZ Storage facility . . . [Emphasis added.] This email demonstrates that the
Councilmember Defendants (and perhaps Defendant Jane Doe) had knowledge that their actions
were to illegally target Siena and its property in violation of Sienas constitutional rights under
both the U.S. Constitution and the Constitution of the State of Maryland and the Maryland
Declaration of Rights. Nevertheless, the Councilmember Defendants (and perhaps Defendant Jane
Doe) knowingly, fraudulently and intentionally continued to take their illegal and unconstitutional
24
actions against Siena. Furthermore, they took these actions in agreement and joint concert with
the Activists.
82.
Councilmember Moore did not share his November 7, 2014 email with the
Activists, or with any other private citizens.

83.
Defendants
Feinberg
and
Newton
ultimately
and
improperly
shared
Councilmember Moores November 7, 2014 email with Activists Way, Schoof, Witzler and
McKenna. However, Defendants Feinberg and Newton did not share Councilmember Moores
email with Siena, or with any other private citizens. On information and belief, Ferguson also
obtained access to Councilmember Moores email.
84.
At some point on or before November 19, 2014, Defendant Feinberg told Schoof
that City Attorney Daniel had provided the 250 foot distance for the zoning text amendment in
order to camouflage it to malce it look like the zoning text amendment was not, in fact, targeting
Siena. Schoof explained to the other Activists: ''The 250^ distance was suggested by the attorney
[Debra Daniel]. It was never stated why that distance was selected. Beryl [Feinberg] simply said
the attorney [Daniel] helped them select it for an undisclosed reason to avoid litigation.
(Emphasis added). On information and belief, this discussion between Daniel and the Mayor and
Council occurred in an Executive Session on November 3, 2014, and is a violation of the Open
Meetings Act. Furthermore, this discussion was never disclosed in written minutes, also in
violation of the Open Meetings Act.
85.
On the evening of November 7, 2014, Defendant Feinberg wrote to Witzler. In her
email. Defendant Feinberg once again stated that her concern was paiticularly about Maryvale and
Sienas Property. Defendant Feinberg wi'ote: One [thing] that also plagues me is that with the
construction of such a behemoth site, in effect the David Scull Community will become physically
25
isolated from the rest of the residential area, and an artificial barrier will become a de facto barrier
for community sharing, interactions, and mingling. There are other words to describe what I fear
could happen, but because out of context they seem inflammatory, I won't use them .. . Hope this
helps. Feelfree to share with Melissa and Kashi and others active in this struggle to do the right
thing for your community.(Emphasis added).
86.
Later in the evening of November 7, 2014, Witzler wrote to the other Activists: if
we are serious about suggesting expanding beyond School Zone that Beryl [Feinberg] talked about,
someone needs to check in with her on it this weekend, (she seemed very busy when we spoke).
This also makes it better to avoid spot zoning, because there are other things than schools we
want storage facilities away from, at least I think it helps. .. because Siena could say they are
being singled out because they are only owner with this proposed use near a school. (Emphasis
added).
87.
On November 10,2014, Way wrote to his fellow co-conspirator Activists: Patrick:
are you available to attend the drop in hours and talk to the Mayor? In particular, we need the
scoop on what she needs from us re the zoning text amendment.'' (Emphasis added). This email
shows that the Activists were working together with Defendant Newton in order to craft and
ultimately adopt a zoning text amendment targeting Siena and its Property.
88.
The Mayor and Council planned to authorize the filing of the zoning text
amendment on the evening of November 10, 2014. On information and belief, much of the work
between the Activists, Defendant Newton and Defendant Feinberg in directing City Staff as to how
the zoning text amendment should be drafted was done over the phone or in person. Late on the
afternoon of November 10, 2014, McKenna wrote to Councilmember Defendants Newton and
26
Feinberg an email titled 1Hour School Zone Thought. In the email, McKenna stated: Should
the language in the ZTA [zoning text amendment] include nonpublic schools as well?'
89.
Defendant Feinberg replied to McKennas email at 7:39 pm on the evening of
November 10, 2014, saying: Melissa, I actually had a similar thought re parochial and private
schools as this adds to the generic concern. Unsure how I think re broadening to coincide with
drug free school zones. I want this to pass and not overly complicate"' (Emphasis added). At
7:44 pm that same evening, McKenna responded: Beryl, Great minds think alike! And I certainly
felt like I read your messages carefully enough and thankfully provided you just what you
needed last week." (Emphasis added). Later that evening, Defendant Feinberg wrote to McKenna
and Defendant Newton: Bridget and Melissa, However, we could mention that would apply to all
schools, public and private and parochial this evening. It affirms the broader school safety issue
for all children. McKenna replied: Beryl, Consider it done. This correspondence shows that
Defendant Feinberg was coaching co-conspirator McKenna as to what to say at the upcoming
Mayor and Council meeting later that evening, in order to give the zoning text amendment a veneer
of legality.
90.
Also on the night of November 10, 2014, McKenna wrote to the other Activists,
saying: Dont sweat it
the distance or language. Fd keep remarks general, thanlcful and
supportive. I have confirmation that all will be well as far as the ZTA." (Emphasis added). On
information and belief, such confirmation came from Councilmember Defendants Newton
and/or Feinberg, and shows that the outcome of the November 10, 2014 Mayor and Council
meeting was predetermined.
27
Unbeknownst to Defendants, the Zoning Text Amendment Drafted

By City Staff Did Not Affect Siena or its Project
91.
25.06.02(a)(1) of the Rockville City Code states: Except as otherwise provided,
no provision of this Chapter which directly affects property can be amended except in compliance
with the procedures set forth in this Article and any other applicable law.
92.
25.06.02(d)(1) of the Rockville City Code states: Within five (5) days after
acceptance of any text amendment application, the Clerk must transmit a copy of the application
to the Planning Commission. The Commission may submit a written recommendation to the
Mayor and Council, which will be placed in the application file by the Clerk and become a part of
the record on the application. (Emphasis added).
93.
Following the Mayor and Councils order to do so at the November 3, 2014 Mayor
and Council Meeting, City Staff drafted the specific language of zoning text amendment
TXT2015-00239 (the ZTA) and the accompanying application for it. On information and belief.
City staff drafted the ZTA based on substantive input from Councilmember Defendants Feinberg
and Newton and City Attorney Daniel. 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.
94.
At the Mayor and Council Meeting of November 10,2014, the Mayor and Council
authorized the filing of this version of the ZTA with the City Clerks office and Planning
Commission. On information and belief, as of November 10, 2014, Defendants did not recognize
that this version of the ZTA would not apply to Siena.
28
95.
Pursuant to 25.06.02(d)(1) of the Rockville City Code, the City Clerk transmitted
a copy of the ZTA, which would not have adversely affected Siena, to the Planning Commission.
No other version of the ZTA was ever reviewed by the Planning Commission.
96.
Any different version from the ZTA containing substantive differences from the
version reviewed by the Planning Commission could not be adopted legally pursuant to
25.06.02(d)(1) of the Rockville City Code.
97.
Ultimately, someone tampered with the Citys website by illicitly removing the
version of the ZTA drafted by City Staff and authorized for filing with the City Clerks office and
Planning Commission by the Mayor and Council at the November 10, 2014 Mayor and Council
meeting. That version was replaced with a version more favorable to Defendants (/, e., one which
would prevent Siena from building a self-storage facility on its Property).^ This latter, revised
language - see
145-149, infra - is not the language attached to the Mayor and Councils actual
ZTA application that was approved at the November 10, 2014 meeting of the Mayor and Council,
and it is not the language received by the Planning Commission.^ On information and belief, this
tampering of the record was carried out and/or approved by the Councilmember Defendants and/or
Defendant Jane Doe. Siena has attached a copy of the legitimate ZTA application that the Mayor
and Council actually authorized for filing on November 10, 2014 as Exhibit A. At no time ever
was there any advance notice given, public hearings held or public comment concerning the
language revisions or why the language was changed.
See
https;//roclcmail.rockvilleTnd.gov/clerl-c/egenda.nsfd5c6a2Q3Q7650f4a852572f9004d38b8/90484cd51041cf7a85257d
870Q5ea988/$FILE/Attachment%20A-Proposed%2QText%2QAmendment%20Application%201anguage.pdf.
^
The ZTA application which the Planning Commission received can, as of December 27, 2015, be found
here: bttp://rockvillemd.gov/DocumentCenter/View/10Q19.
29
The Planning Commission Recommends Rejection of the ZTA

98.
Pursuant to 25.06.02(d)(1) of the Rockville City Code, the Planning Commission
may submit a written recommendation to the Mayor and Council [on the proposed zoning text
amendment], which will be placed in the application file by the Clerk and become a part of the
record on the application.
99.
Between November 10,2014 and December 10,2014, the ZTA was pending before
the Planning Commission.

100.
On December 3, 2014, the Planning Commission issued a staff report on the ZTA
in advance of its meeting (the Staff Report). The Staff Report explains that the Mayor and
Council authorized the filing of this text amendment in response to concerns raised by citizens that
development of a proposed self-storage warehouse would create a danger to children attending
Maryvale Elementary School.
(Emphasis added).
This unambiguous statement, from an
impartial arm of a governmental authority, reflects clear and convincing evidence that the ZTA
was intended to be illegal targeted zoning by attempting to impose rules with respect to only a
single site.
101.
On December 7, 2014, Defendant Feinberg emailed Way to discuss the status of
the ZTA. Defendant Feinberg wrote: Ladtly [sic], I have been checking in with Planning
[Commission] re progress of Sienna since the zta I proposed will have its first of two public
hearings. Please always emphasize this is for all of Rockville for obvious reasons."' (Emphasis
added). Defendant Feinberg here counsels an Activist to lie about the nature of the ZTA - which
was crafted specifically to target Siena and its Property - and to claim that the ZTA was for all
of Rockville. This claim was nothing more than a pretext. The Staff Report and correspondence
30
between the Activists and co-conspirator Councilmember Defendants Newton and Feinberg make
clear that the ZTA was targeted against Siena and its Property.
102.
On December 10, 2014, the Planning Commission exercised its discretion to hold
a full hearing and provide a recommendation regarding the ZTA to the Mayor and Council. Deane
Mellander, the Citys Zoning Administrator, provided substantial staff input on the ZTA.
Chairman Don Hadley attended, along with Commissioners Hill, Goodman, Littlefield, Tyner and
Liederman. During the hearing, members of the Planning Commission repeatedly questioned the
arbitrary nature of both the 250-foot distance and the targeted effect of the ZTA.
103.
Perry Berman, a land planner with Scheer Partners, who previously was Chief of
the Community Planning division and had 28 years of experience with the Maryland-National
Capital Park and Planning Commission, testified on behalf of Plaintiffs, and submitted a written
report to the Planning Commission. Mr. Berman testified, in pertinent part, that there were at
least five self-storage facilities in Montgomeiy County and at least nine such facilities in the
Baltimore/Washington area, all within 250 feet of a school. Mr. Beiman also testified that there
was no rational basis for the 250-foot distance in the ZTA.
104.
Activist Way also testified at the December 10 hearing, and was questioned by
Commissioner Hill on how the 250-foot distance was decided. In response, Way stated, in
pertinent part:
[Tjhere was originally a [moratorium] motion that was proposed by
Councilmember Feinberg, and she said, T want to do this thing and
I want this lot And she pointed to the EZ Storage lot. And the city
attorney [Debra Daniel] said, Can we please talk in Executive
Session? You know, thats maybe not such a good idea. So they
all went away. The members came back after some time and the
motion was withdrawn.
Then, before the next Council meeting one week later there was
another Executive Session. I was not in attendance, and I believe
31
staff was not in attendance at either one of these Executive Sessions.

And they were specifically called so that the Mayor and Council
would get advice from the city attorney [Daniel]. And then after
that a zoning text amendment was proposed during that Mayor and
Council meeting about 250 feet.
105.
Ways public testimony confirms what Defendant Feinberg had told him and the
other Activists in private: Namely, the ZTA was simply the Moratorium Motion in sheeps
clothing. Both the Moratorium Motion and the ZTA were directed at Sienas proposed ezStorage
self-storage facility - specifically because Councilmember Feinberg want[ed] to do this thing
[stop Sienas proposed ezStorage self-storage Project from being built on the Property] and 1 want
this [i.e., Sienas] lot.
106.
Just as the Moratorium Motion was per se illegal, Ways testimony confirms that
the targeted ZTA was per se illegal.

107.
The members of the Planning Commission were greatly concerned with the Staff
Report and body of testimony before them, all of which showed that the ZTA was meant to illegally
target Sienas Property.
108.
Planning Commissioner Hill noted: I do have trouble establishing the nexus for
this proposed Ordinance, both in terms of the distance. I have yet to identify anything but an
arbitrary choice in 250 feet. And I think theres also a very arbitrary nature in picking this
particular use out of the list of industrial uses to have special treatment for.
stated that the ZTA amounted to flat out spot zoning.
Commissioner Tyner
Commissioner Tyner further noted that
the ZTA was very badly intended ... to take care of a situation that some people found
distasteful.
Commissioner Goodman explained that the amendment as written is targeted, and I
have some trouble supporting something like that. Commissioner Goodman further noted that a
zoning text amendment should not just target one kind of facility in one particular location, which
32
this is doing. Commissioner Liederman found that there was no rational basis for the ZTA: What
we have in this suggestion is that a self-storage warehouse would create a danger to children and
it doesnt, I mean, it doesnt specify that anybody has actually studied that or made any findings
that should result in any greater regulation.
109.
Following its review of the ZTA at the December 10, 2014 public hearing, the
Planning Commission passed, by a 5-1 vote, a motion to recommend that the Text Amendment be
disapproved (the Planning Commission Opposition). The lone dissenting vote belonged to
Planning Commissioner Littlefield, who had earlier provided shategic advice regarding Siena and
the Site Plan to Witzler, who had then circulated such advice to the other co-conspirator Activists.
no.
On December 12, 2014, the Planning Commission sent a formal Memorandum to
the Mayor and Council (the Memorandum). In the Memorandum, the Planning Commission
recommended to the Mayor and Council that the ZTA be rejected for the following reasons:
This is a targeted zoning action;
There has been an inadequate process in generating the proposed amendment; and
The arbitrary nature of the 250 foot separation and isolation of this one particular use.
Defendants and the Activists, Ignoring the Planning Commissions Recommendation,
Prepare for a Public Hearing on the ZTA
111.
Pursuant to 25.06.02(f) of the Rockville City Code, No application made under
this Section may be granted unless a public hearing has been held on the application by the Mayor
and Council in accordance with the requirements of State law.
112.
Pursuant to the Rockville City Code, the public hearing on the ZTA at which
proponents and opponents of the ZTA would give testimony on the ZTA, was scheduled to take
place at the Mayor and Council meeting on Monday, December 15, 2014.
33
113.
On Friday, December 12, 2014, Jennifer Kimball, the Citys Deputy City Manager,
sent an email with attachments to the members of the Mayor and Coimcil. The attachments
included information about the proposed text amendment [the ZTA] for which you have a public
hearing scheduled on Monday evening [December 15,2014]. It includes a letter from the Planning
Commission and testimony that was not available in time for the preparation of your binders.
Please let us know if you have any questions. Kimballs email was not circulated to the general
public, or to Siena.
114.
Nonetheless, on Saturday, December 13, 2014, Defendant Feinberg forwarded
Kimballs email, with attachments, to Way and Schoof, along with the message just printing out
now and want to read/digest. Defendant Feinberg did not provide this email or the attachments
it contained to Siena.
115.
Defendant Feinberg sent Way and Schoof an accompanying email, in which she
stated: Want to meet this afternoon, Saturday? Unsure of your family commitments. Looks as if
the other side is pulling out all the stops to try and defeat this, claiming is targeted.
116.
That same day, Activist Way and co-conspirator Defendant Feinberg met in order
to prepare for the Monday meeting of the Mayor and Council and the public hearing on the ZTA
that was going to take place at that time.
117.
Late that Saturday night, Way wrote to Ferguson and the other Activists about his
meeting with Councilmember Feinberg. Way stated:

.. .here is what I learnedfrom Feinberg:
1. She is not backing down, even though she recognizes that the
opponents to the ZTA are pulling out all the stops.
2. She is fairly confident she retains the support of the mayor, but
was not as sure about Virginia Onley.
34
3. She would really like it if someone from David Scull Courts

could present at the public hearing. She specifically asked about
Sade 'le Belliel, who spoke at the Planning Commission
reconsideration (with her two cute kids running around the
podium). She feels it will add a human interest element to the
hearing. I explained my reservations that bringing someone
from David Scull Courts makes this look more like spot
zoning. She said that she would view testimony by Sadele as an
example of why this is an important issue. I told Beryl [Feinberg]
I would try to get in touch with Sade^le, and Diane [Ferguson]
has agreed to help me out with this tomorrow. I have asked
Diane to explain to Sade'le that the ZTA should not be perceived
as directly targeting the EZstorage site. What we really need
Sade'le to say is that she is testifying so other parents near other
schools won't have to in thefuture.
(Emphasis added). In this email, Way explained how he and Defendant Feinberg colluded to mask
the nature of the ZTA as applying city-wide. Defendant Feinberg instructed Way and the other
Activists to bring individuals to the public hearing who would elicit public sympathy.
118.
Despite Ways concerns that having someone from David Scull testify would
illustrate the targeted nature of the ZTA, Ferguson followed Defendant Feinbergs instructions. In
an email to the other Activists dated Monday, December 15, 2014, Ferguson explained: I
intercepted Sadele at school dismissal today and begged her to come speak tonight (with the boys).
She isn't a firm yes, but she is going to call me at 5:00 today so I can help her figure out what she
wants to say. I already explained to her that we need to emphasize the citywide nature of the
ZTA'' (Emphasis added).
119.
On the afternoon of December 15, 2014, McKenna sent an email to the members
of the Maryvale PTA Yahoo Group, in which she was again explicit that the purpose of the ZTA
was to target Siena:
Tonight at 7 pm the Rockville Mayor and Council will hold a public
hearing on a zoning text amendment to keep self-storage warehouse
away from schools by maldng it a conditional use that it NOT be
located within 250 feet of a school.
35
This amendment came about as we fought to keep the, now

approved, ezStorage away from Maryvale.
(Emphasis added).
At the Public Hearing on the ZTA, the Activists Knowingly Give False Testimony
120.
Pursuant to 25.06.02(f) of the Rockville City Code, on the evening of December
15, 2014, the Mayor and Council held a public hearing on the ZTA. The version of the ZTA
discussed that evening would have changed 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.
121.
be
found,
The version of the ZTA discussed at the December 15, 2014 public hearing could
as
of
December
27,
2015,
at
the
following
linlc:
https://rockmail.rockvillemd.gOv/clerk/egenda.nsf/d5c6a20307650f4a852572f9004d38b8/a52d8
2ada2448d4485257d8e007dcb6f/$FILE/ZTA%20application%20AttachA.pdf. In the event that
this version of the ZTA mysteriously disappears or is modified, it is attached to this Second
Amended Complaint as Exhibit A.
122.
At the December 15, 2014 public hearing on the ZTA, counsel for Siena testified:
Siena has been pursuing [the project] in good faith. As youre
aware, they purchased this property only upon this Mayor and
Council approving a zoning text amendment to right-size the
parking requirements for self-storage in this zone . . . Upon the
enactment of that zoning text amendment, Siena did purchase the
property and has since that time been pursuing entitlements in good
faith through the Citys processes. Any attempts to disguise this
zoning text amendment [the ZTA] as anything other than a targeted
spot zoning are ineffective . . . The Planning Commission and the
staff have I think appropriately identified this for what it is, which
is a targeted use of your zoning powers to stop a property owner
36
from pursuing a permitted use that they have been pursuing in good
faith all along.
123.
Pittinger, the Siena Senior Vice-President, testified that:

Nothing has changed since the revised zoning ordinance of last year
and the recent Planning Commission [Site Plan] approvals of last
month, all of which before approving must find that the proposed
development to be in conformance with the Master Plan and not be
detrimental to the public welfare or adversely affect the health or
safety of those in the neighborhood.
124.
Berman, the land planner, testified that:

As you know, there has to be a rationale before the government takes
an action. What is the nexus between your proposal and whaf s the
impact youre trying to deal with? In an examination of this issue,
we have not found any hard facts or viable evidence in the record to
support this type of proposal. Theres no national standard and
theres no example that we have found of difficulties of a school and
a self-storage facility being located together.
125.
Following this testimony, Activist Way knowingly gave false public testimony, in
which he claimed that this proposal is not about a single development project. It affects numerous
properties surrounding Maryvale Elementary School as well as numerous zones throughout the
city.
This is false, and Way was aware of this falsehood. In fact, the ZTA was about a single
development project, and was only intended to affect one property: Sienas. Because no other
properties in Rockville had self-storage facilities located within 250 feet of a school, no other
properties in Rockville would have been affected by the ZTA.
126.
Activist Witzler then gave testimony, in which he stated:

Youve heard claims tonight that [Siena is] being targeted and
singled out by this zoning text amendment. I find that pretty hard to
believe that someone could claim to get in the minds of the Council.
My understanding is that the zoning text was designed under
advisement horn the city attorney in Executive Session. So unless
someone of coimsel waived that Executive Session privilege or
unless we have mind readers here, Im not sure how they imderstood
that this text amendment was designed specifically to apply to them.
37
As Siena is now aware, the ZTA was in fact designed to apply specifically to Sienas Property.
Defendant Feinberg revealed those secret Executive Session discussions when she wi'ote to co
conspirator Activist McKenna, on October 31, that the ZTA will
strategy to achieve same end
goar as the per se illegal Moratorium Motion. See ^ 73, supra (emphasis added). City Attorney
Daniel colluded with the Mayor and Council to provide this strategy. Defendant Feinberg shared
this strategy with McKenna, who circulated it to her co-conspirator Activists. Therefore, at the
very moment that Witzler stated unless someone of counsel waived that Executive Session
privilege . . . Im not sure how [Siena] understood that this text amendment was designed
specifically to apply to them he knew that: (a) The Executive Privilege had indeed been waived,
by Defendant Feinberg, and (b) the ZTA was designed specifically to apply to Siena. Witzler thus
lied in his public testimony, Icnowingly conspiring with Defendant Feinberg in order to deceive
the public and Siena and facilitating the adoption of the ZTA.
Defendants and the Activists Shepherd the ZTA to Adoption
127.
On Thursday, December 18,2014 (three days after the public hearing on the ZTA),
Ferguson emailed McKenna, copying the other Activists: Melissa (or someone), can you please
enlighten me on the rest of the legislative process for the ZTA? In response, McKenna provided
Ferguson and the Activists with the inside information she had received from Defendant
Feinberg. McKenna wrote: ''From notes I tookfrom Beryl [Feinberg] when she first instructed
staff Full schedule is already set. The 1/5 date is just to discuss and instruct staff on what to
revise, add, etc. 1/12 introduction by Virginia [Onley], not Beryl [Feinberg]. They agreed on
that way back when . . . The January 5th meeting is gonna be brutal, what with APFO public
hearing and ZTA discussion. Fll be there and can address ZTA in public forum. IfBeryl thinks
it would be helpful"' (Emphasis added). This correspondence shows that Defendant Feinberg
38
was: (1) providing McKenna with confidential City information, and also (2) coaching McKenna
and, thi'ough McKenna, the other Activists - as to how to shepherd the ZTA to adoption. This
is illegal and subversive of the process. The email chain also shows that Defendant Onley was an
active participant in the conspiracy.
128.
On the afternoon of January 5, 2015 (as McKenna had informed Ferguson), the
Mayor and Council met to provide instructions to City Staff regarding the ZTA. Before the
meeting, Defendant Feinberg forwarded the Activists an email containing internal confidential
information that City Manager Barbara Matthews had put together for the Mayor and Council in
response to fact-finding questions regarding the ZTA issued by Councilmember Tom Moore.
Defendant Feinberg thereby destroyed any privilege this correspondence may have once retained.
Along with the confidential information she disclosed to the Activists, Defendant Feinberg sent a
short message: Look what I just received ... Hope to see/hear you tonight.
129.
City Manager Matthews response to Councilmember Moores fact-finding
requests that she sent to the Mayor and Council regarding the ZTA stated, in pertinent part: From
a police public safety perspective, there is no past history or evidence that would indicate there
is a higher level of danger walking past a selfstorage facility than walking past any commercial
properties.
(Emphasis added). Matthews also informed the Mayor and Council that, even
without implementation of the ZTA, there is no concern about traffic safety in this area..This
authorized Mayor and Council fact-finding thus found that there would be no health, safety, or
welfare benefits to be gained by the citizens of Rockville from passage of the ZTA.
130.
At the January 5, 2015 Mayor and Council meeting discussing the ZTA,
Councilmember Moore referenced the email he sent to City Manager Matthews, and reaffirmed
that all of the findings made by the Mayor and Council - and by the City Staff, at the Mayor and
39
Councils behest - found that there would be no health, safety, or welfare benefits to be gained by
the Citizens of Rockville from passage of the ZTA.
131.
Councilmember Palakovich-Carr, who also spoke out against the ZTA, referenced
the fact-finding performed by the Planning Commission pursuant to the Rockville City Code.
Palakovich-Carr stated: the Planning Commission found that the EZ Storage [Project] will not
adversely affect the health and safety of persons residing or working in or adjacent to this
development.
132.
Palakovich-Carr also pointed out that the ZTA was inconsistent with the Master
Plan, stating: If we as a body have concerns about the types of allowed uses in the light industrial
area in East Rockville, we should take a holistic and comprehensive look at the zoning in this area
and not engage in spot zoning.
133.
Despite having actual Icnowledge of the fact-finding which unequivocally found
that the ZTA would not benefit the health and safety of the citizens of Rockville, at the January 5
meeting. Defendant Feinberg publicly and knowingly misrepresented that the ZTA is really about
the health and safety and welfare of children across the city.
In response to the fact-finding
conducted by City Staff at the request of the Mayor and Council, Defendant Feinberg stated:
..
you have been asking for facts. In many cases, there arent statistics and facts that have been kept
. . . We cant make them up.
134.
Defendant Newton also prevaricated at the January 5 meeting, saying that the ZTA
comes down to a safety issue. Of course, all of the fact-finding on the issue found to the contrary,
that there was no health or safety issue to necessitate the ZTA. Defendant Newton had actual
knowledge of this fact when she made her false statement.
40
135.
Defendant Onley also distorted the evidence at the January 5 meeting, ignoring the
fact-finding of the City Staff and the Plarming Commission. She stated, contrary to the facts: this
is - you loiow, for the public health and welfare and safety of our children.
136.
Despite the pretext that the ZTA would apply City-wide, Defendant Onley (who
would ultimately cast the tie-breaking vote in favor of the ZTA) had a Freudian slip when she
stated: Theres just too much data that has come up, that maybe this is not exactly what we want
in that area.
(Emphasis added). Defendant Onley was, of course, referring to the area (that
area) of Maryvale, and the plebiscite of neighbors who had risen up in opposition to the Project
(/,e., the Activists and their supporters.). See Mears v. Towm of Oxford, 52 Md. App. 407, 416,
449 A.2d 1165, 1172 (1982) (a plebiscite of neighbors . .. refers to instances where the action of
an administrative body which effects a change in zoning and deprives an individual of a property
right is predicated on the pleasure of the owners of nearby property rather than on a comprehensive
plan, which imposes mutual restrictions and confers mutual benefits on all.).
137.
The Court of Appeals has found: in restricting individual rights by exercise of the
police power neither a municipal corporation nor the state legislature itself can deprive an
individual of property rights by a plebiscite of neighbors or for their benefit. Such action is
arbitrary and unlawful, i.e., contrary to Art. 23 of the Declaration of Rights and beyond the
delegated power of the town of Denton to pass reasonable ordinances. Benner v. Tribbitt, 190
Md. 6, 20, 57 A.2d 346, 353 (1948) (emphasis added). Defendant Onleys comments - made on
the public record
show that the ZTA was introduced and adopted precisely because of this
prohibited reason: A plebiscite of neighbors did not want a self-storage facility near their school.
This is contrary to the Maryland Constitution and is per se illegal.
41
138.
Following discussion of the ZTA at the January 5, 2015 meeting of the Mayor and
Council, Defendant Onley made a motion to direct staff to bring back the ZTA as drafted for
introduction and approval, just as Defendant Feinberg had told McKenna that she would do. See
^ 127, supra. Also as Defendant Feinberg had told McKenna, see ^ 127, supra. Defendant
Feinberg seconded the motion, evidencing that the entire outcome had been scripted and
predetermined. Councilmember Defendants Feinberg, Onley and Newton voted for the motion.
Councilmembers Moore and Palalcovich-Carr voted against the motion.
139.
Before voting on the motion, Councilmember Moore exhorted his co-
Councilmembers to grandfather Siena and its Property so that Siena could complete the Project
in the event of the ZTAs passage. Jim Wasilalc, the Citys Chief of Planning, explained that, in
Rockville, pending or approved applications were specifically called out, if it was a policy
decision, to specifically grandfather those projects that were either in process or were already
approved, and that was specifically laid out in the code. And they were grandfathered.
140.
Based on this information, Councilmember Moore moved that Sienas project be
grandfathered. Councilmember Palakovich-CaiT seconded the grandfathering motion. Despite the

fact that grandfathering pending projects was custom and practice in Rockville, Councilmember
Defendants Newton, Feinberg and Onley voted against the grandfathering motion.
Following the January 5, 2015 Meeting, the Activists and
Defendants Solidify Their Positions
141.
On January 8, 2015, Activist McKenna wrote to her co-conspirator, Defendant
Feinberg, copying the other Activists, stating: Beryl, Thank you so much for keeping us up to
date on whaf s going on ... It was only after I got home Monday night that I realized we all forgot
about broadening the ZTA language to include public, private and parochial schools.
Defendant
Feinberg responded, stating: I consciously did not open this up. Issues surrounding what is a
42
school. . . does it include a summer bible class in a place of worship? Does it include a child care
center in a home with an educational component? It becomes very messy and didn't want to
postpone this any further.
142.
In this exchange, Defendant Feinberg clarified that she did not care about the larger
effect of the ZTA - or whether it was legal or constitutional that the ZTA as written affected only
public schools, and not private or parochial schools. Indeed, Defendant Feinbergs sole interest
was to adopt the ZTA in order to target Siena and its Property.
143.
McKenna agreed with Defendant Feinbergs approach, responding Fair enough.
144.
The Mayor and Council was scheduled to vote on introducing the ZTA for adoption
on January 26, 2015. On January 23, 2015, Defendant Feinberg emailed the Activists, saying:
Assume I will be seepng] your faces on Monday evening .. . Siena asked that I meet them at the
site to see if there are any traffic measures, etc. which could be employed such that I would agree
to Siena being grandfathered out of the zta. FYI, I have told [Sienas representative] that I decline
any such meeting. Although Councilmember Feinberg met and regularly communicated with the
Activists (including non-constituent McKenna) she purposefully and willfully refused to meet with
constituent and Rockville resident Siena.
Prior to the January 26,2015 Meeting, Defendants Realize the ZTA Would Not Affect
Sienas Property and Illegally Scramble to Change the Language
145.
On information and belief, sometime between January 5, 2015 and January 26,
2015, Defendants and/or City Attorney Daniel recognized that the ZTA as drafted would not affect
Sienas Property. See
91-97, supra. Therefore, at the January 26, 2015 meeting, a revised
version of the ZTA was introduced, specifically in order that Sienas Property be included in what
was intended to be prohibited by the ZTA (the Revised ZTA). The Revised ZTA substantively
43
changed the language of the ZTA. Where the language of the ZTA stated that a self-storage facility
was not permitted in a light industrial zone within 250 feet of o. school, the language of the Revised
ZTA stated that a self-storage facility was not permitted in a light industrial zone within 250 feet
of ''any lot on which a public school is located.'' (Emphasis added). The Revised ZTA also
substantively changed the original ZTA in a second manner by adding another conditional
limitation to the Rockville City Codes Land Use Tables relating to self-storage: Namely, that self
storage warehouses in a mixed-use business zone must not adjoin or confront single-unit
residential dwellings. This conditional limitation did not appear in the original ZTA at all.
146.
It is unclear whether notice of the Revised ZTA was provided to the public at any
time prior to February 2, 2015. What is clear is that the individual Defendants did not make
reference to the changes in the language of the Revised ZTA at the January 26, 2015 Mayor and
Council meeting. On information and belief, they did not do so because they did not want to alert
Siena of the changes.
147.
These substantive changes of language in the Revised ZTA were material: While
the ZTA would not have affected Sienas Property, the Revised ZTA effectively prevented Siena
from constructing a self-storage facility on its Property.
148.
The Planning Commission did not review the Revised ZTA pursuant to
25.06.02(d) of the Rockville City Code.

149.
The Mayor and Council did not hold a hearing on the Revised ZTA pursuant to
25.06.02(f) of the Rockville City Code. The Revised ZTA was not adopted pursuant to or in
compliance with the Rockville City Code.
44
The Mayor and Council Illegally Adopt the Revised ZTA

150.
The Mayor and Council vote on whether to adopt the Revised ZTA was scheduled
for the evening of February 2, 2015.

151.
Around that time, Defendants had heard rumors that Siena would ask that the vote
be delayed. On the afternoon of February 2, 2015, Activist Witzler wrote to his co-conspirator
Defendants Newton and Feinberg, stating; I vaguely remember you saying something about
getting a shovel in the ground/vesting the ZTA. I dont want to sound alarmist or conspiratorial but would a delay allow [Siena] to start and therefor [sic] give more grounds to their legal
argument? Or even allow them to automatically [be] exempted? Defendant Newton replied: you
got it. This email exchange shows that Defendant Newton conspired with the Activists to adopt
the ZTA specifically to target Siena and stop it from being able to build the Project on its Property.
152.
Just before the vote, McKerma wrote to the other Activists: 1 talked with Virginia
[Onley] and Beryl [Feinberg] twice last week. They are solid. And sick of hearing from Siena.
This email shows that Defendants Onley and Feinberg conspired with the Activists to adopt the
ZTA specifically to target Siena and its Property and shows Defendants discrimination against
Siena, and in favor of the Activists.
153.
On February 2, 2015, Defendants Newton, Feinberg and Onley - the same
Councilmembers who had conspired with the Activists to target Siena - voted to adopt the Revised
ZTA. Councilmembers Moore and Palakovich-Carr voted not to adopt the Revised ZTA.
The Mayor and Council Post the Original ZTA
154.
On February 2, 2015, Acting City Clerk Sara Taylor-Ferrell executed the original
ZTA. Thereafter, the ZTA was posted in the Rockville City Code found on the internet. As noted,
the original ZTA would not affect Siena or its Property, because the ZTA states a self-storage
45
facility is [n]ot permitted on a lot within 250 feet of a public school, and Sienas Property is
more than 250 feet away from the Maryvale school building. See Exhibit B.
155.
On information and belief, at some point after February 2, 2015 (i.e., after the
original ZTA was executed and included in the Rockville City Code), and after Siena had filed its
original Complaint, Defendants discovered that the executed zoning text amendment was the
original ZTA, and not the Revised ZTA. At that time, on information and belief, without informing
the public or holding any further hearings to correct the record. Defendants caused the language
of the original ZTA to be replaced in the Rockville City Code with the language of the Revised
ZTA, thus adversely affecting Siena.
156.
On information and belief, Defendants either had Taylor-Ferrell, the Acting City
Clerk, sign the Revised ZTA and (mis)date it February 2, 2015, or caused the signature of TaylorFerrell to be impressed (and misdated) on the Revised ZTA by someone other than Taylor-Ferrell.
See Exhibit C.^
157.
On information and belief, the Revised ZTA was not executed by Taylor-Ferrell or
anybody else on February 2, 2015.

The Cover-Up of the Conspiracy
158.
In the discovery that has taken place in this case thus far. Defendants have alleged
or caused to be alleged (through City Attorney Daniel and her office) a legislative privilege for
scores of documents that have no cognizable legislative privilege, and have redacted and/or
withheld many such documents. These documents include correspondence between the Activists
and the individual Defendants regarding how to target Siena and its Property. Upon information
^
Siena suggests that the Court review the two signatui-es of the Acting City Clerk in Exhibits B and C,
attached hereto, Siena submits that, on infoimation and belief, the two signatures were not made with the same
hand. Additionally, the fact that the date February 2, 2015 was typed into the Revised ZTA using a different font
also suggests that this occurred after February 2, 2015.
46
and belief, Defendants have knowingly and intentionally withheld or caused to be withheld these
documents not because they retain any privilege (they do not), but because they show that the
individual Defendants (and perhaps Defendant Jane Doe) were conspiring with the Activists to
target Siena and its Property, and that they had zeroed in on the ZTAs as the most convenient and
sly way to do so.
Defendants (and perhaps Defendant Jane Doe) have acted with unclean hands; they
159.
continue to do so. They have: (1) fraudulently concealed documents showing that the ZTAs were
targeted at Siena, (2) fraudulently meddled with documents to make the ZTAs targeted at Siena,
and (3) continued to try to cover up this bad behavior.
Compliance with the Local Government Tort Claims Act (LGTCA)
160.
Following Sienas diligent investigation into the facts and circumstances first
alleged in its initial Complaint ~ an investigation which Defendants have continually tried to
stymie and impede, see supra,
158-159 - Siena first learned of the extent and nature of the new
claims made in this Second Amended Complaint - including claims against the individual
Councilmember Defendants and (and possibly against Defendant Jane Doe) and claims for
compensatory and punitive damages against all Defendants - in or around December, 2015.
161.
Based on this newly acquired knowledge and pursuant to the LGTCA, Siena
provided written notice to the City of Rockville of its intent to pmsue unliquidated damages claims
against all Defendants - including the individual Councilmember Defendants and Defendant Jane
Doe (who is an employee of the City of Rockville) - on January 8, 2016. See Exhibit D attached
hereto.
162.
Siena originally provided Defendants with constructive written notice of its claims
pursuant to the LGTCA by filing their initial Complaint, on February 26,2015, and their Amended
47
Complaint on December 29,2015. See Md. Courts and Judicial Proceedings Code 5-304; Moore
V.
Norouzi, 371 Md. 154, 171-79, 807 A.2d 632, 643-47 (2002). Previously, Councilmember
Moore had introduced a resolution at the Mayor and City Council meeting of January 5, 2015 to
cover costs of the anticipated lawsuit by Siena based on the ill advised actions being taken at
that meeting by the Defendants. That resolution did not pass because the Councilmember
Defendants voted against Moores resolution.
163.
It was not prudent for Siena to give the LGTCA notice that it gave on January 8,
2016 earlier.
164.
If Siena had given the January 8, 2016 LGTCA notice earlier, it would have been
making unsubstantiated allegations.

165.
Siena has always ensured that this action was proceeding in a timely manner.
166.
Since February 26,2015 (the date of Sienas initial Complaint), if not since January
5, 2015 (when Councilmember Moore introduced his resolution), the City of Rockville has had
sufficient actual notice to perform a proper and timely investigation regarding the factual issues
alleged herein.
167.
Siena had good cause to wait to give, or otherwise to waive, the January 8, 2016
LGTCA notice.
168.
Siena has substantially complied with the LGTCA notice requirements.
169.
Siena has been injured and damaged by all the actions of Defendants, as pled herein.
48
COUNT I
DECLARATORY JUDGMENT THAT THE REVISED ZTA IS INVALID AND VOIDAB
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)
170.
Siena incorporates herein by reference the allegations contained in the Introduction
and paragraphs 1 through 169.

171.
On January 26, 2015, the Defendants intentionally introduced for adoption the
Revised ZTA. The Defendants knew that the Revised ZTA had not been sent to the Planning
Commission for review pursuant to 25.06.02(d) of the Rockville City Code, and had not been
given a public hearing pursuant to 25.06.02(f) of the Rockville City Code.
172.
Siena is entitled to a declaratory judgment that the Revised ZTA is invalid and void
ab initio because the Revised ZTA introduced at the January 26, 2015 meeting of the Mayor and
Council of Rockville did not comply with the procedures set out in the Rockville City Code.
COUNT H
DECLARATORY JUDGMENT THAT THE ZTA AND REVISED ZTA VIOLATE
MARYLAND LAND USE CODE S 4-102 AND IS THEREFORE INVALID
173.
Siena incoiporates herein by reference the allegations contained in the Introduction

174.
The ZTA and Revised ZTA (together, the ZTAs) are not rationally related to the
general public interest for the promotion of health, safety or the general welfare of the community.
175.
Instead, the ZTAs ai'e arbitrary and capricious.
176.
It is improper for a legislature to pass a law discriminating against a business based
on a plebiscite of neighbors who may find the business noxious or insulting. [PJublic sentiment
cannot support the imposition of arbitrary restrictions on the property rights of individuals. Mears
V. Town of Oxford, 52 Md. App. 407, 416, 449 A.2d 1165, 1172 (1982).
49
177.
The ZTAs were adopted only because a plebiscite of neighbors, i. e., the Activists,
conspired with the Councilmember Defendants to target Siena.

178.
The ZTAs are an invalid exercise of Defendant the Mayor and Councils zoning
authority pursuant to Maryland Land Use Code Ann. 4-102.

179.
Siena is entitled to a declaratory judgment by this Court stating that because the
ZTAs are an invalid exercise of Defendant the Mayor and Councils zoning authority pursuant to
Maryland Land Use Code 4-102, the ZTAs are invalid, null, void and of no force and effect.
COUNT in
DECLARATORY JUDGMENT THAT THE lUEVISED ZTA VIOLATES MARYLAND
LAND USE CODE S 4-201(bV2)(i) AND IS THEIHIFORE INVALID
180.

181.
The Maryland Land Use Code requires that zoning regulations shall be uniform
for each class or kind of development throughout each district or zone. Md. Land Use Code 4201(b)(2)(i) (the Uniformity Requirement).
182.
The Uniformity Requirement was promulgated to ensure[] that similarly situated
properties would be subject to similar regulation. In other words, the uniformity requirement
springs less from pure legal necessity, but more from a policy desire to give notice to property
owners that ad hoc zoning discriminations will not be tolerated by the law.
Anderson House,
LLC V. Mayor & City Council of Rockville, 402 Md. 689, 714, 939 A.2d 116, 131 (2008).
183.
The purpose of the Uniformity Requirement is to protect landowners from
favoritism by a partial municipal government:

[T]he requirement that there be uniformity within each zone
throughout the district is an important safeguard of the right to fair
and equal treatment of the landowners at the hands of the local
50
zoning authority. Frankly put, the requirement of uniformity

serves to protect the landowner from favoritism towards certain
landowners within a zone by the grant of less onerous restrictions
than are applied to others within the same zone elsewhere in the
district, and also serves to prevent the use of zoning as a form of
leverage by the local government seeking land concession, transfers,
or other consideration in return for more favorable zoning treatment.
Mayor & Council of Rockville v. Rylyns Enterprises, Inc., 372 Md. 514, 536, 814 A.2d 469, 482
(2002) (emphasis added).
184.
The Revised ZTA violates the Uniformity Requirement. It is an act of municipal
favoritism, toward the Activists and against Siena and its Property. The effect of the Revised ZTA
is that more onerous restrictions are placed on Sienas Property - and, in particular, on Sienas
proposed use of its Property - than on other properties in Rockvilles light industrial zone, and in
particular on other properties in the immediate vicinity of Maryvale. It is particularly ironic - and
unjust - for a fuel and petroleum products company, a car repair and maintenance facility and a
biochemical company (among others) - all ventures that arguably present risks to the safety and
health to the school community and its children that are at least as great, if not substantially greater,
than a self-storage facility - to be located even closer to Maryvale than Sienas Project would be!
The Revised ZTA thus represents an invalid exercise of Defendant the Mayor and Councils
zoning authority.
185.
Siena is entitled to a declaratory judgment by this Court stating that, because the
Revised ZTA is an invalid exercise of Defendant the Mayor and Councils zoning authority
pursuant to Maryland Land Use Code 4-201, the Revised ZTA is invalid, null, void and of no
force and effect.
51
COUNT IV
DECLARATORY JUDGMENT THAT THE ZTAS
VIOLATE THE FOURTEENTH AMENDMENT OF THE
UNITED STATES CONSTITUTION AND ARE INVALID
186.

187.
The ZTAs were drafted specifically to prevent Sienas Project from being built. No
other clause of the Rockville City Code bars any kind of industrial or non-industrial use near a
school. The Revised ZTA was revised to state: the use cannot be located on a lot within 250 feet
of any lot on which a public school is located (emphasis added) in order to specifically target
Siena.
188.
Although the ZTAs may appear to apply City-wide, this is nothing more than a
pretext. The ZTAs were intentionally drafted, and the original ZTA was revised, to discriminate
against and affect only Siena and its Property. The Revised ZTA affects only Siena and its
Property.
189.
The ZTAs are arbitrary, capricious, discriminatory and individually targeted at
blocking construction of a self-storage facility on Sienas Property. As pointed out in the Staff
Report and various public hearings, there is no rational basis for discriminating against Siena in
this manner.
190.
The 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.
52
191.
ZTAs violate the Fourteenth Amendment to the United States Constitution, the ZTAs are invalid,
null, void and of no force and effect.
COUNT V
DECLARATORY JUDGMENT THAT THE ZTAS ARE AN INVALID SPECIAL LAW
IN VIOLATION OF ARTICLE HI OF THE MARYLAND CONSTITUTION
192.

193.
Article III, 33 of the Maryland Constitution states, in pertinent part: the General
Assembly shall pass no special Law, for any case, for which provision has been made, by an
existing General Law.
Special laws relate to particular persons or things of a class, as
distinguished from a general law which applies to all persons or things of a class, and are enacted
for the relief of paiticulai* named parties, or providing for individual cases. Jones v. Anne Arundel
C/y,, 432 Md. 386, 403, 69 A.3d 426, 436 (2013) (quotations omitted).
194.
If the General Assembly cannot enact a special law when a general law applies,
then under the Express Powers Act, [a local municipality] cannot be empowered to enact a special
law where an applicable local law exists. Id.
195.
In this case, the one practical effect of the ZTAs is to target Siena, and the Revised
ZTA unreasonably burdens Sienas Property. This effect makes the passage of the ZTAs a special
law, inconsistent with the Maryland Constitution. See Beauchamp v. Somerset Cty. Sanitary
Commn, 256 Md. 541, 549, 261 A.2d 461, 464-65 (1970) (^Jhepractical effect and the effect
intended by the sponsors of the Act was to exempt [the property at issue] from any assessment or
charge by the Sanitary Commission. The Act thus, in effect, applies to one taxpayer only and to
53
the lands of that one taxpayer. In our opinion, it is a ^special act which is unconstitutional under
the provisions ofArticle III, Section 33 of the Maryland Constitution"" (Emphasis added))
196.
Because the ZTAs are a special law pursuant to the Maryland Constitution, Siena
is entitled to a declaratory judgment by this Court stating that the ZTAs are invalid, null, void and
of no force and effect.
COUNT VI
DECLARATORY JUDGMENT THAT THE ZTAS VIOLATE ARTICLE 24 OF THE
MARYLAND DECLARATION OF RIGHTS
197.
Siena incoiporates herein by reference the allegations contained in the Introduction

198.
The ZTAs were drafted specifically to prevent Sienas Project from being built. No
other clause of the Rockville City Code bars any kind of industrial or non-industrial use neai' a
school. The original ZTA was revised to state; "the use cannot be located on a lot within 250 feet
of any lot on which a public school is located (emphasis added) in order to specifically target
Siena.
199.
Although the ZTAs may appear to apply City-wide, this is nothing more than a
pretext. The ZTAs were intentionally drafted to discriminate against and affect Siena and its
Property. The Revised ZTA affects only Siena and its Property.
200.
The ZTAs are arbitrary, capricious, discriminatory, and individually targeted at
blocking construction of a self-storage facility on Sienas Property. There is no rational basis for
discriminating against Siena in this manner.
201.
The arbitrary, capricious and individually targeted nature of the ZTAs constitute a
violation of equal protection and due process pursuant to Article 24 of the Maryland Declaration
of Rights.
54
202.
ZTAs violate Article 24 of the Maryland Declaration of Rights, the ZTAs are invalid, null, void
and of no force and effect.
COUNT VII
DECLARATORY JUDGMENT THAT THE ZTAS
ARE AN ILLEGAL TARGETED ZONING ORDINANCE
203.

204.
Defendant the Mayor and Councils adoption of the ZTAs was arbitraiy,
unreasonable and discriminatory.

205.
Because the ZTAs were drafted specifically to prevent Sienas Project from being
built on Sienas Property, they constitute an illegal targeted conditional zoning ordinance,
generally referred to as spot zoning, and cannot be legally enforced.
206.
If Defendant the Mayor and Council wished to change the zoning nature of Sienas
Property, they could only have done so through comprehensive rezoning, not piecemeal zoning or
conditional zoning, and certainly not through targeted spot zoning. See Anne Arundel Cty. v.
Bell 442 Md. 539, 113 A.3d 639 (2015).
207.
Siena is entitled to a declaiutory judgment by this Court stating that, because the
ZTAs constitute an illegal targeted zoning ordinance, the ZTAs are invalid, null, void and of no
force and effect.
COUNT VIII
INJUNCTIVE RELIEF AS TO THE REVISED ZTA
208.
and pai'agraphs 1 through 207.

55
209.
Siena will likely succeed in its claims for declaratory relief against Defendant the
Mayor and Council.

210.
Siena will suffer great and potentially irreparable harm if the Revised ZTA is
enforced.
211.
The balancing between the harms to Siena of not issuing an injunction barring
enforcement of the Revised ZTA, and the harms to Defendant the Mayor and Council of issuing
such an injunction, weigh heavily in favor of issuing the injunction.
212.
Siena is entitled to an injunction prohibiting the Revised ZTA from being enforced.
COUNT IX
INJUNCTIVE RELIEF AS TO SIENAS PROPERTY
213.

214.
Defendants prior actions have shown that they will resort to any means - including
multiple illegitimate strategies, such as the Moratorium Motion, the illegal ZTAs, and changing or
otherwise muddying the record - in order to prevent Siena from constructing and operating the
Project on its Property.
215.
The Mayor and Councils refusal to apply the custom and practice of the City of
Rockville to grandfather Siena was unreasonable, arbitrary, capricious and discriminatory.

216.
Defendants have unclean hands in relation to Siena and its Property.
217.
This Court should issue a peimanent injunction, enjoining the Mayor and Council
from preventing Siena from constructing and operating the Project on its Property.
56
COUNT X
FRAUDULENT MISREPRESENTATION
(Against All Defendants in their Official and Individual Capacities)
218.

219.
In order to prevail in a tort of false misrepresentation, Siena must show: [1] that a
false representation was made, [2] that its falsity was either known to the maker or that the
representation was made with such reckless indifference to the truth as to be equivalent to actual
knowledge of falsity, [3] that the representation was made for the purpose of defrauding the
plaintiff, [4] that the plaintiff not only relied on the representation but had a right to rely on it and
would not have done the thing from which the injury arose had the misrepresentation not been
made, and [5] that the plaintiff actually suffered damage directly resulting from the
misrepresentation. Swinson v. Lords Landing Vill. Condo., 360 Md. 462, 476, 758 A.2d 1008,
1016(2000).
220.
Siena clearly has met the Swinson standard. Defendants knew that the ZTAs were
created specifically to target Siena and its Property. Yet Defendants Newton, Feinberg and Onley
all stated in public hearings on the ZTAs that the ZTAs were not targeted. These Defendants knew
that the only way that the ZTAs would withstand scrutiny was if they would lie by claiming it
applied City-wide. But they also knew that the ZTAs were crafted with the pui-pose of targeting
only Siena.
221.
When it was discovered, late in the ZTA adoption process, that the ZTA would not,
in fact, affect Siena (because it applied only to properties lying within 250 feet of a school building,
and Sienas Property is further than 250 feet from the Maryvale school building), the Defendants
57
replaced the ZTA with the Revised ZTA without following the proper procedures as detailed in
the Rockville City Code.
222.
Specifically, Defendants did not submit the Revised ZTA to the Planning
Commission, pursuant to 25.06.02(d)(1) of the Rockville City Code, and did not hold a public
hearing on the Revised ZTA pursuant to 25.06.02(f) of the Rockville City Code.
223.
Defendants then claimed that the differences between the ZTA and the Revised
ZTA were only clarifications and were technical in nature.
This was false, and these
Defendants knew it was false, as such technical clarifications were so substantive as to make the
Revised ZTA applicable to Sienas Property, whereas the original ZTA was not.
224.
The ZTA that was executed on February 2, 2015 and originally inserted into the
Rockville City Code was the original ZTA, which would not have affected Sienas Property. This
ZTA was signed on February 2, 2015 by the Acting City Clerk.
225.
On information and belief, someone acting with malice on behalf of one or more of
the Defendants replaced the original ZTA with the Revised ZTA in the Rockville City Code, and
either forged the Acting City Clerks signature or had the Acting City Clerk sign a version of the
Revised ZTA - which is (mis)dated February 2, 2015 - sometime after that date.
226.
Siena, relying on the misinformation perpetuated by Defendants, was prevented
from pui-suing the construction of its Project on its Property, and was thereby harmed.
COUNT XI
42 U.S.C. S 1983
(Against All Defendants in their Official and Individual Capacities)
227.
58
228.
Siena has been deprived of its rights under the Fourteenth Amendment to the United
States Constitution by actions taken under the color of state law, as described in this Second
Amended Complaint.
229.
Siena has been damaged and injured by those actions of the unsued co-conspirators,
the Councilmember Defendants, Defendant Jane Doe and the Mayor and Council, all as described
in this Second Amended Complaint.
230.
The overt actions talcen by the unsued co-conspirators, the Councilmember
Defendants, Defendant Jane Doe and the Mayor and Council, all as described in this Second
Amended Complaint, were outside the sphere of any legitimate legislative activity, and were taken
jointly, in concert and by agreement between and among all the individual Defendants and the
unsued co-conspirators with unlawful intent, in furtherance of a conspiracy that resulted in Sienas
deprivation of its constitutional rights.
231.
Specifically, Defendants Mayor Bridget Newton, Councilmember Beryl Feinberg
and Councilmember Virginia Onley knowingly and intentionally conspired among themselves and
with the Activists in order to wrongfully deprive Siena of the full use of its Property. The Activists
did not want Siena to construct a self-storage facility in close proximity to Marjwale. They tried
to stop the construction of the self-storage facility via legal means {i.e., by opposing Sienas Site
Plan application before the Planning Commission). They failed in that regard. However, at the
same time, the Activists and Councilmember Defendants Newton, Feinberg and Onley acted
illegally to stop Siena from being able to construct its ezStorage Project on its Property.
232.
The Activists had full knowledge that the ZTAs were created in order to stop Siena
from building the Project on its Property. They knew that a zoning text amendment targeted
59
against Siena was unconstitutionally illegal. Yet, even with this knowledge, the Activists still
conspired with Defendants Newton, Feinberg, and Onley to craft and adopt the target ZTAs.
233.
In this Second Amended Complaint, Siena has shown that the Activists and the
individual Defendants willfully acted jointly and in concert, and in agreement among themselves,
sharing the same conspiratorial objective: To wit, to pass an illegal unconstitutional zoning text
amendment targeting Siena and its Property in order to block the construction of the Project on
Sienas Property.
234.
Among other things, the Activists reported to Defendants Feinberg and Newton for
instructions as to how to narrate the story of the ZTAs to a public audience, crafted testimony with
the active input of Feinberg and Newton in order to further the ZTAs, and lied about the true nature
of the ZTAs at public hearings. They did all this with the knowledge that the purpose of the ZTAs
was to illegally and unconstitutionally target Siena and its Property and deprive Siena of its rights
under the Fourteenth Amendment to the U.S. Constitution.
235.
On information and belief, Defendants then extended the length and nature of their
wrongful actions by knowingly and intentionally withholding or causing to be withheld

unprivileged documents showing that the individual Defendants (and perhaps Defendant Jane Doe)
were conspiring with the Activists to target Siena and its Property, and that they had zeroed in on
the ZTAs as the most convenient and sly way to do so.
236.
In this regard. Defendants (through City Attorney Daniel) intentionally and
wi'ongfully picked and chose which documents to produce to Siena in discovery and which to
withhold or redact under a bogus claim of legislative privilege based only on the fact that those
latter documents were unhelpful to Defendants and would expose the constitutional violations and
conspiracy against Siena.
60
237.
As a result of the Defendants wrongful actions, Siena was forced to subpoena
documents from the Activists, which documents exposed the conspiracy.

238.
The doctrine of absolute immunity, as it pertains to local legislators, does not
shield executive officials from liability for a course of conduct taken prior to and independent of
legislative action, even if those officials were simultaneously members of the local legislative body
that ratified the conduct. Moxley v. Walkersville, 601 F. Supp. 2d 648, 662 (D. Maryland 2009).
239.
The actions taken, or caused to be taken, by the Councilmember Defendants that
are described herein, are not legitimate legislative actions.

240.
The Councilmember Defendants have lost any potential legislative immunity that
they may have had.

241.
Section 5-507(b)(l) ofthe Courts and Judicial Proceedings Article ofthe Maryland
Code provides that [a]n official of a mimicipal corporation, while acting in a discretionary
capacity, without malice, and within the scope of the official's employment or authority shall be
immune as an official or individual from any civil liability for the performance ofthe action. Md.
Code, Cts. & Jud. Proc. 5-507(b)(l) (emphasis added).
242.
The Court of Special Appeals has held that a government employee or officer loses
her governmental immunity when acting with malice. Mandersv. Brown, 101 Md. App. 191,216217, 643 A.2d 931, 943 (1994). ThQManders court found that, Malice consists of the intentional
doing of a wrongful act without legal justification or excuse. An act is malicious if it is done
knowingly and deliberately, for an improper motive and without legal justification. Id. at 216
(quotation omitted). Specifically, the court in Manders mled that [pj'urposefully modifying an
existing urban renewal planfor a corrupt orfraudulent motive to benefit oneselfor an influential
constituent is a malicious act. (Emphasis added).
61
243.
The ZTAs were drafted and adopted out of malice, and evil motive and intent.
Defendants Newton, Feinberg and Onley fraudulently had the ZTAs drafted and adopted with
malice toward Siena, and in order to favor and benefit the Activists to Sienas injury. Therefore,
Defendants Newton, Feinberg and Onley have no immunity with respect to the allegations and
claims in this lawsuit.
244.
Siena is entitled to a judgment against Defendants Newton, Feinberg and Onley,
as well as Defendant the Mayor and Council and Defendant Jane Doe, pursuant to 42 U.S.C.
1983.
COUNT XII
CIVIL CONSPIRACY UNDER AND IN VIOLATION OF 42 U.S.C. 1983
(Against the Individual Defendants in their Individual Capacities)
245.

246.
'An independent cause of action does exist for civil conspiracy to violate federal
constitutional rights. McDaniel v. Maryland, 2010 WL 3260007 at * 11 (D. Maryland 2010).

247.
As demonstrated herein, Siena has properly alleged a civil conspiracy under
1983, [by having presented] evidence that the [individual Defendants] acted jointly in concert and
that some overt act was done in furtherance of the conspiracy which resulted in ... deprivation of
[Sienas] constitutional right[s]. Id.
248.
In a civil case not involving a criminal act, conspiracy may be shown by a
preponderance of the evidence and may be proved by circumstantial evidence since almost never
is direct evidence available. Conspiracy may be shown by inferences drawn from the nature of the
acts complained of, the individual and collective interests of the alleged conspirators, the situation
and relation of the parties, their motives and all the surrounding circumstances preceding and
62
attending the culmination of the common design. In essence the rule is that the plaintiff may
prevail if men of sound mind may reasoningly and reasonably deduce from the facts and
circumstances presented to them that there was a conspiracy. Daugherty v. Kessler, 264 Md. 281,
292,286 A.2d 95,101 (1972) (citation omitted) (finding that the limited facts alleged were enough
to sustain aprimafacie conspiracy action).
249.
Specifically, the overt actions taken by the unsued co-conspirators, the
Councilmember Defendants, Defendant Jane Doe and the Mayor and Council, all as described
herein, were outside the sphere of any legitimate legislative activity, and were taken jointly, in
concert and by agreement between and among all the individual Defendants and unsued
coconspirators with unlawful intent, in furtherance of a conspiracy that resulted in Sienas
deprivation of its rights under the Fourteenth Amendment to the U.S. Constitution.
250.
The Activists and the individual Defendants engaged in a months-long conspiracy
in order to deprive Siena of the full use of its Property.

251.
Among other things, Defendant Newton and her co-conspirators the Activists
originally hatched the idea of a ZTA targeting Siena, but abandoned it in favor of the Moratorium
Motion. On information and belief, at the Executive Session that took place during the October
27, 2014 meeting of the Mayor and Council, Daniel advised Defendant the Mayor and Council
that the Moratorium Motion was per se illegal, but that they could achieve the same end goal by
crafting a ZTA targeting Siena. This end goal was illegal, and, on information and belief, Daniel
assisted the Mayor and Council in crafting the ZTA in a manner to avoid litigation but to actually
target Sienas Property.
252.
Once the ZTA was drafted, the Activists and the individual Defendants conspired
to make public statements to the effect that the ZTA was not targeted at Siena, all the while having
63
actual knowledge that the ZTA was in fact targeted at Siena, and that Sienas Property was the
only property that would be affected by the ZTA.
253.
Moreover, after the Defendants realized that the ZTA as drafted would not apply to
Siena and its Property, the individual Defendants improperly and unlawfully replaced the ZTA
with the Revised ZTA.
254.
Defendants did not submit the Revised ZTA to the Planning Commission, pursuant
to 25.06.02(d)(1) of the Rockville City Code, and did not hold a public hearing on the Revised
ZTA pursuant to 25.06.02(f) of the Rockville City Code.
255.
Defendants then claimed that the differences between the ZTA and the Revised
ZTA were only clarifications and were technical in nature.
This was false, and these
Defendants knew it was false, as such technical clarifications were so substantive as to make the
Revised ZTA applicable to Sienas Property, whereas the original ZTA was not.
256.
The ZTA that was executed on February 2, 2015 and originally inserted into the
Rockville City Code was the original ZTA, which would not have affected Sienas Property. This
ZTA was signed on February 2, 2015 by the Acting City Clerk.
257.
On information and belief, someone acting with malice on behalf of one or more of
the Defendants replaced the original ZTA with the Revised ZTA in the Rockville City Code, and
either forged the Acting City Clerks signature or had the Acting City Clerk sign a version of the
Revised ZTA which is (mis)dated February 2, 2015 - sometime after that date.
258.
On information and belief, Defendants then extended the length and nature of the
conspiracy by knowingly and intentionally withholding or causing to be withheld unprivileged

documents showing that the individual Defendants were conspiring with the Activists to target
64
Siena and its Property, and that they had zeroed in on the ZTAs as the most convenient and sly
way to do so.
259.
It is reasonable to deduce from the facts presented in this Second Amended
Complaint that the individual Defendants along with the Activists all actively participated in an
unconstitutional and discriminatory conspiracy to deprive Siena of the full use and value of its
Property in a pretextual manner. Therefore, Siena is entitled to entry of a judgment against
Defendants Newton, Feinberg and Onley in their individual capacities, as well as against
Defendant Jane Doe in her individual capacity, for personal liability and damages, including
punitive damages, for civil conspiracy under and in violation of 42 U.S.C.
1983.
COUNT XIII
VIOLATION OF THE MARYLAND OPEN MEETINGS ACT
260.

261.
Marylands Open Meetings Act is codified in Md. Code. 3-101, et seq., of the
General Provisions Article. The Act embodies the philosophy that public business should be
performed in a public manner, accessible to all interested citizens, and that this type of open
government is essential to the maintenance of a democratic society,
3-102(a). Such open
government ensures the accountability of government to the citizens and increases the faith of
the public in government and enhances the effectiveness of the public in fulfilling its role in a
democratic society. See 3-102(b)(2).
262.
Consistent with these principles, the Maryland Open Meetings Act mandates that
a public body shall meet in open session subject only to several narrow exceptions. See 3-301.
One exception, which must be strictly construed in favor of open meetings of public bodies, see
65
3305(b), permits a public body to meet in closed session or to adjourn an open session into a
closed session only to consult with counsel to obtain legal advice. 3-305(b)(7). This exception
is commonly referred to as the legal advice exception.
263.
As explained by the State Open Meetings Law Compliance Board, the legal advice
exception must be narrowly construed to cover only the interchange between the client public
body and its lawyer in which the client seeks advice and the lawyer provides it. See Compliance
Board (OMCB) Opinions 1, 5 (1992) (No. 92-1). The exception does not allow for closed
discussion among members of the public body merely because an issue has legal ramifications.
1 OMCB Opinions 53, 54 (1993) (No. 93-1). The Compliance Board also has instructed that once
legal advice has been sought and provided, the body must return to open session to discuss the
policy implications of the advice it received or anything else about the proposed legislation. 1
OMCB Opinions 145, 149 (1995).
264.
Defendant the Mayor and Council violated the legal advice exception by willfully
moving into a closed Executive Session at the October 27, 2014 meeting and receiving purported
legal advice in the closed session that went beyond issues relating to the proposed Moratorium
Motion.
265.
Moreover, Defendant the Mayor and Council failed to follow guidance from the
State Open Meetings Act Compliance Board, as the Mayor and Council resumed the open session
at the October 27 meeting without engaging in any public discussion of the policy implications of
the advice received during the closed Executive Session.
266.
Section 3-306(c)(2) of the Open Meetings Act states that if a public body meets in
a closed session, the written minutes for its next open session shall include (i) a statement of time,
place and purpose of the closed session; (ii) a record of the vote of each member as to closing the
66
session; (iii) a citation of the authority under 3-305 for closing the session; and (iv) a listing of
the topics of discussion, persons present, and each action taken during the closed session.
267.
Defendant the Mayor and Council willfully violated 3-306(c)(2)(iii) because the
written minutes released during the November 3, 2014 meeting (the next open session) failed to
provide a citation of the authority for closing the (prior open) session.
268.
Defendant the Mayor and Council willfully violated 3-306(c)(2)(iv) because the
written minutes released during the November 3, 2014 meeting (the next open session) failed to
include a listing of the topics of discussion, persons present, and each action taken during the
closed Executive Session held on October 27.
269.
Siena is entitled to a judgment against Defendant the Mayor and Council pursuant
to the Maryland Open Meetings Act.

PRAYER FOR RELIEF
WHEREFORE, based upon these allegations and claims, Siena prays the Court to:
(a)
Enter a declaratory judgment that the ZTAs are invalid and void ah initio because
the Mayor and Council failed to properly, follow the procedures set out in 25.06.02 of the
Rockville City Code,
(b)
Enter a declaratory judgment that the ZTAs are an invalid exercise of the Mayor
and Councils zoning authority pursuant to Md. Land Use Code Ann. 4-102,
(c)
Enter a declaratory judgment that the ZTAs are invalid because they violate the
requirements of Md. Land Use Code Ann. 4-201,

(d)
Enter a declaratory judgment that the ZTAs are invalid because they violate the
Fourteenth Amendment to the United States Constitution,
67
(e)
Enter a declaratory judgment that the ZTAs are an invalid special law in violation
of Article III of the Maryland Constitution,

(f)
Enter a declaratory judgment that the ZTAs are an invalid violation of equal
protection and due process pursuant to Article 24 of the Maryland Declaration of Rights,
(g)
Enter a declaratory judgment that the ZTAs are invalid because they are an illegal
targeted zoning ordinance,

(h)
Issue a permanent injunction preventing the Revised ZTA from being enforced,
(i)
Issue a permanent injunction estopping the Mayor and Council from preventing
Siena from constructing and operating a self-storage facility on its Property,
0)
Grant Siena for violation of 42 U.S.C. 1983 (i) as to all the Defendants:
compensatory damages and attorneys fees, in an amount over and above $75,000, the precise
amount to be determined by the Court or at trial, and additionally (ii) as to the Councilmember
Defendants (and, as may be appropriate. Defendant Jane Doe): punitive damages, the precise
amount also to be determined by the Court or at trial,
(k)
Grant Siena damages, including compensatory and punitive damages and attorneys
fees in an amount over and above $75,000, as to Councilmember Defendants Newton, Feinberg and
Onley (and, as may be appropriate. Defendant Jane Doe) for civil conspiracy under and in violation
of 42 U.S.C.
(1)
1983, in an amount which shall be determined by the Court or at trial.

Grant Siena damages, including compensatory and punitive damages, for the tort
of fraudulent misrepresentation, in an amount which shall be determined by the Court or at trial,

(m)
Enter a declaratory judgment stating that the Mayor and Council has failed to
comply with the Maryland Open Meetings Act and must comply with Sections 3-305(b)(7), 3306(c)(2)(iii) and 3-306(c)(2)(iv) of the Act,
68
(n)
Enter a declaratory judgment stating that the ZTAs are invalid, null, void and of no
force and effect as they were unlawfully discussed during a closed Executive Session in violation
of the provisions of the Maryland Open Meetings Act, pursuant to this Courts authority xmder
Section 3-401(b)(l)(iii) of the Act,
(0)
Grant Siena costs of the litigation, including interest, attorneys fees, and court
costs,
and
(P)
Grant such other relief as this Court may deem just and proper.
Respectfully submitted,
By:
- Cc
Ira T. Kasdan
Dated: January 14, 2016
Bezalel A. Stem (admitted pro hac vice)

KELLEY DRYE & WARREN LLP
3050 K Street, N.W., Suite 400
Washington, D.C. 20007
(202) 342-8400 (phone)
(202) 342-8451 (facsimile)
Email: ikasdan@kellevdrve.com
bstern@kellevdrve.com
Counselfor Plaintiffs
69
CERTIFICATE OF SERVICE
I hereby certily that on this 14th day of January, 2016, a true and accurate copy of the Second
Amended Complaint was served by first class mail on the following:
Debra Yerg Daniel
City Attorney
Rockville City Hall
111 Maryland Avenue
Rockville, Maryland 20850
Kevin Karpinski
120 East Baltimore Street
Suite 1850
Baltimore, Maryland 21202
Counselfor Defendant the Mayor and Council ofRocJmlle

The Honorable Brian E. Frosh
Attorney General of Maryland
200 St. Paul Place
Baltimore, Maryland 21202
Ira T. Kasdan
70
EXHIBIT A

!jf
V,Si
ATTACHMENT 1
Application for
rText Amendment
TXT
2/09
city of Rockville
Department of Community Planning and Development Services
111 Maryland Avenue, Rockville, Maryland 20850
Phone: 240-'3148200 Faxi 240-314-8210 E-maSi: Gpds@rockvlliemcl.gov * Web site: www.rockvill8mcl.gov
Application Information;
Is this an Amendment to Existing Text ?
Add New Zone Glasses: DYES
Number of new uses: i_,_______
YES
NO
Add New Uses;
fO
ONO
c=
-c2:
. j
Ordinance#
n
Please Print Clearly or Type
ii,n
Property Address information N/A_____ ____________________
. ___________ ______
Project Description Amend the l-l, l-H, MXE and MXB zones to allow self-storage warehouses as a conditional use
Applicant Information;
Please supply Name, Address, Phone Number and E-mail Address
Applicant Mayor and Council of Rockville, 111 Maryland Avenue, Rockville, MD 20850
Property Owner
Architect.
Engineer,
Attorney
Application is hereby made with the Rockville Mayor and Council for Approval of a change in the text of the Zoning and Planning
Ordinance of Rockville, Maryland.
Article 12,13
Page.
Section
FROM; Which reads as follows SeaA1tachment.tQ Application
TO: Reads as follows See Attachment to Application
By;
iturs of ADDlicantt
Subscribed and sworn before this
My Commission Expires
day of
20 }j
0-0 IS
Notary Poblio
The following documents are furnished as pari of the application:

^ A Complete Application
Filing Fee
Comments on Submittal; (For Staff Use Only)
TXT
Page 2
2/09
November 10,2014
ATTACHMENT TO APPLICATION
TO THE crry of rockyille for a
TEXT AMENDMENT TO THE ZONING ORDINANCE
Applicant: Mayor and Council of the City of Rockville
The applicant proposes to amend the zoning ordinance adopted on December 15,2008, and with
an effective date of March 16,2009, by inserting and replacing the foEowing text ('underlining
indicates text to be added; [brackets] indicate text to be deleted; * * indicates text not affected
by the proposed amendment). Further amendments maybe made following citizen input,
Planning Commission review and Mayor and Council review.
Amend Article 3, Definitions; Terms of Measurements and Calculations, as follows:
^
Indmtrialf Service - Services intended to serve residents of the City and surrounding areas,
including retailing facilities for certain commodities appropriate in an industrial zone. Such
uses include, but are not limited to, assembly of electrical and electronic appliances and
equipment and precision instruments; photographic processing; self- ster-agwar^ôuaet radio
and television recording studios; research laboratories; home improvement services; and.
similar types of uses. Items separately regulated in this Chapter are not included in this
definition.
^ it! it!
General Warehousing - The storage of goods, wares, and merchandise which will be
processed, sold, transferred, or otherwise disposed of for ultimate consumption off the
premises.
Amend Article 12, Industrial Zones., as follows:
4! Sf: sj:
25,12.03-Land Use Tables

The nses permitted in the Industrial zones are shown in the table below. Uses are subject to
applicable conditions of site plan approval. All special exceptions are subject to the
requirements of Article 15.
Conditional requirements
or related regulations
Zones
Uses
Light
Industrial
I-L
Heavy
Industrial
I-H
)(C tH *
Heavy industcial use

Light indastria! use
g. Industrial
and service
uses
N
P
P
P
Lumberyard
Service industrial use
Warehouse, self-storage
Conditional Use shall not

adjoin a Single Unit
Development Residential
Zone
Not -permitted on a lot
within 25Q feet of a public
school
Amend Article 13, Mixed-Use Zones, as follows:

4* *1^
25,13,03-Land Use Tables

The uses permitted in the Mixed-Use Zones are shown in the table below. Uses are subject to
Zones
Uses
Light industrial
use
jIndustrial
and
service
uses
Mlxcd-XJso
Transit
District
(MXTD)
MixedUsc
Corridor
District
(MXCD)
Mixed-Use Mixed-Use Mixed-Use Mixed-Use Mixed-Use

Employment Business Ndghborhood Coimnercial Transition
Commercial
(MXE9
(MXB)
(MXQ
(^D5:T)
(MXNC)
Service
industrial use
Warehouse.
s&lf-stoiage
Key: P = Permitted Use; S - Special Exception; C - Conditional Use; N ~ Not Permitted
Conditional
requirements or
related
regulations
Conditional use
must not adjoin
or confront
single-unit
dwelling^
Not permitted on
a lot within 250
feet of a public
school
EXHIBIT B
3/2/2015
Case 8:16-cv-00243-RWT Document

5 Filed 01/27/16 Page 77 of 87
Munlcode Library
Ordinance No.
02-15
ORDINANCE:
To grant Text Amea<lmen1

ApplicaiiouNo. TTCnOlS"
0D239, Mayor and Couneii of
Rookville, Appiioaut
WHEREAS, the Mayor and Counoil of Rodcviae, 113 Mmyland Avenue, Rockville,
Maryland, filed Text Amendment Application TXT20I5-00239 for tbe purpose of amending
Chapter 25 of the- Rockville City Code, Zoning/' so as to revise Chapter 25 tor the pmpose of
maldng a seif-stotage wardtouse a conditionaj use in the T-L, I-H, MXB and MXB zones, vdth liie
condition, being that tlie use cannot be located on a lot wi.thm 250 feet of a pnbHc school; ami
'WHEREAS, the .Plaiining Commission teviewed the proposed text amendment at its
meeting of December 10,2014, and recommended that the text amendment be disappioved; and
WHEREAS, pursuant to the Land Use Article of the Annotated Code of Maryland, the
Mayor and Council of Rochtdlle gave notice that a hearing on said application would be held by
the Mayor and Council in the Coim.cil Chambers at Rockville City Hal! on December 15,2014, at
7:00 p,m., or as soon titereafter as it maybe heard; and
WHEREAS, on December 15, 201.4, said applica.tion came on for hearing at the time and
place provided for in said adtêrtisement; and
WTiEREAS, the Mayor and Comucll, having considered the text amendment application
and tie entire file pertaining thereto, sai,d Mayor and Council having decided diat the granting of
this application, in the form, set forth below, would promote the health, salcty and welfare of the
citiz:ens of the City of Rockvdilc,
UCW, THEREFORE, B.E IT OR'DAINED BY THE MAYOR AND COUNaL OF
ROCRkULLE, MARYLAND, as follows:
Amend Article 3, Dermitions; Tenns of Measurement and Calculations, as follows:

A-1
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1/3

5 Filed 01/27/16 Page 78 of 87
Muni code Library
3/2/201B
-2-
Oi'dinance No. 02-15

H< if
Industrial, Sm-\4ce - Semcos mcended to scive residents of tlte City and snrroimdijtg aj-eas,
including retailing facilities for certain commodities appropiiale i,n an industrial zone. Such
uses inoliide, but are not' limited to, assembly of electrical and electronic- appliances and
equipment and preciK-ion instruments; photograph ic processing; {self-storage warobouse;| radio
and television recording studios; researcii laboratories; home improvement services; and
.similar types of uses, Item.? separately regulated in tbis Cliapter are not included in this
definition,
^ If
Geimml Warshousiug-- The storage of goods, wares, andmereliandise which will be

processed, sold, transferred, or-otherR'ise disposed offer \dtimate consumption off the
premises.
Amend Ajticle 12, Industrial Zones, as follows:
* '(>
25.12.03-LtmdUso Tables
The uses permitted in the Industrial zones arc shown in (he table below, Uses are subjeef to
applicable conditions of site plan appro\'al. All special exceptions are subject to the
CeBdirional requirements
or related rogwiations
Zones
Uses
Ltglit
Heavy
i-t.
iHitiiimiftl
i-P]
tuaslrW
m * IV
N
P
Lumb^-yai'd
Soivioe industrial uso
Waichmâe, sciiLstornsQ
Heavy indu-^triaJ
Ligiit iadustfiai use
g. Industrial
Und service
lEseS
Coiidirioiia] Use aliall siot

tnôin a Single Unit
Devetepment 'Residential
Zone
Conditional use must aot
adloiii or cfiatroni smgle
unit dwellings.
[01
within 250 feel' of a public

schoo!.
Amend Article 13, M;ixed-Use Zones', as follows:
%
https://www.municode.com/llbrary/md/rockviIle/codes/code_ot.ordlnanc0S
2/3

5 Filed 01/27/16 Page 79 of 87
Munlcode Library
3/2/2015
-3>
Ordinaiw^: No. 02-15

2S.13J3-Usd
Tables
The Xfses permitted isi (he Mixed-Use Zones are as shown in Use table below. Uses are- snbject
to applicable conditions of site jjlaii apis'oval. All special exceptions are subject to the
ffitûfreincnls of Article 15,
CoHtHtloiml
Z0Hf
Pses
teivnsU
District
!VUxi;?Hise
CuW'Wiir
nistricf
Mbivsl-Ose
Mixud-Usc ftrm'flvUsc NoîlWHiUfn! SJIxed-Dsis Mked-Usn
Einjiloynicnt business Conimf-rcial Comumvclal frniisfcinn
(M.XT)
(MXC)
(MXB)
(IVJXt?)
(MXMQ
rcqiuJremeptser
rotated
regulations
* S'
Light iudwiitrial
use
].
Service
iHclustrial use
CondiuoMl use
Must' ftoi adjein
or confrORt
siiigte-anK
dwelliflgs
iBdustrisl
and
service
u$ei>
Earstose,
'N
Conditional uiie
musUKH aclluiri.
01' confroRi
aunils^mh^
dwelUnes,
Mot permitted on
MoUiaUiiniAQ
feataMiilis
school
P PeLitiittBclUse;G CendationalU se;S SpecdalExcaptka'ifN iKMofcPecra ittaad

NOTE:
[Brackets) indicate material deleted

Underlining indicates material added
Asterisks
indicate material tmchairgcd by this ordinance
! hereby certify that tlie tbregoing is a true and correct copy of an ordinance
adopted by the Mayor and Council at its meeting of Febimy 2, 201.5.
Sara Taylor-Ferrell, Acting City Clerk
https ://www,municodB.com/Hbrary/md/rockville/codes/code_ofjDrdinances
3/3
EXHIBIT C
Ordinance No.
15
ORDINANCE:
To grant Text Amendment

Application No. TXT201500239, Mayor and Council of
Rockville, Applicant
WHEREAS, the Mayor and Coxmcil of Rockville, 111 Maryland Avenue, Rockville,
Maryland, filed Text Amendment Application TXT2015-00239 for the purpose of amending
Chapter 25 of the Rockville City Code, Zoning, so as to revise Chapter 25 for the purpose of
TTiaking a self-storage warehouse a conditional use in the I-L, I-H, MXB and MXE zones, with
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; and
WHEREAS, the Planning Commission reviewed the proposed text amendment at its
meeting of December 10,2014, and recommended that the text amendment be disapproved; and
WHEREAS, pursuant to the Land Use Article of the Annotated Cods of Maryland, the
Mayor and Council of Rockville gave notice that a hearing on said application would be held by
the Mayor and Council in the Council Chambers at Rockville City Hall on December 15,2014,
at 7:00 p.m., or as soon thereafter as it may be heard; and
WHEREAS, on December 15,2014, said application came on forbearing at the time
and place provided for in said advertisement; and
WHEREAS, the Mayor and Council, having considered the text amendment application
and the entire file pertaming thereto, said Mayor and Council having decided that the granting of
this application, in the form set forth below, would promote the health, safety and welfare of the
oitizem of the City of Rockville.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND COUNCH OF
ROCKVtLLB, MARYLAND, as follows:
Ordinance No.
-2-
02-15
Amend Artide 3, Definitions; Terms of Measurement and Calculations, as follows:

*
Industrial^ Service - Services intended to serve residents of the City and surrounding areas,
including retailing facilities for certain commodities appropriate in an todustrial zone. Such
uses include, but are not limited to, assembly of electrical and electronic appliances and
equipment and precision instruments; photographic processing; [self-storage warehouse;!
radio and television recording studios; research laboratories; home improvement services;
and similar types of uses. Items separately regulated in this Chapter are not included in this
deSnition.
*
General Warehousing - The storage of goods, wares, and merchandise which will be
processed, sold, transferred, or otherwise disposed of for ultimate consumption off the
premises.
Amend Article 12, Industrial Zones, as follows:
*
25.12.03 - Land Use Tables

The uses permitted in the Industrial zones are shown in the table below. Uses are subject to
requirements of Article 15,
Zones
Uses
Ught
Induitrhi]
l-L
g. Industrial
and sendee
uses
Heavy
Induetrlel
Condiiiooal repiremeots
or rotated rogulaUans
I-H
Heavy induslrial uso

tight industrial use
P
P
Lumberyard
Service industrial use
3J
S.
Cooditionui Usa shall not

adjoin a Single Unit
Development Residential
______ Zone______
Not permitted on a lot
witiiln 250 feet of anv lot oo
located.
-3-
Ordinance No. 02--15
Amend Article 13, Mixed-Use Zones, as follows;

#
25.13,03 - Land Use Tables

The uses permitted in the Mixed-Use Zones are as shown in the table below, Uses are
subject to applicable conditions of site plan approval. All special exceptions are subject to
the requirements of Article 15.
Uses
Light industrial
use
Service
industrial use
Mlsed-Use
Tnmsn
PUtriet
(MOTD)
Zones
Conditional
Mlxed'lJse Mlxed-Uie Mixed-llje MiXDd-UH MIxed-UsB Mbed-Uae requiroments or
CorrSdoi' Bmploymont Businui NetjMiO^hood ComiDcrcUl TraBiltbn
related
Distrfcf
(MXT)
regulations
(MXE)
(MXB) CoDimwrlal (MXCg
(MXCD)
Industrial
and
service
uses
Conditional use
must not adjoin
or confront
single-unit
dwellings
a lot within 25Q
Warehouse.
,?gif:fltftrags
Key- p = Permitted Use; 0 = Conditional Use; S e Special Exception; N = Not Permitted
NOTE: {Brackets} indicate material deleted

Underlining indicates material added
Asterisks * * indicate material unchanged by this ordinance
whicha Dublio
school is locatetL
IntheMXB
2one. must not
adjoin DC
confront sineleunitdwelHaes
Ordinanoe No. 02-15
4-
I hereby certify that the foregoing is a true and correct copy of an ordinance
adopted by the Mayor and Council at its meeting of February 2, 2 015,
. ct
SamTaylor-l^Û, Acting City Clerk
EXHIBIT D
mt^DEBr&oMp&fem
SfPTfO/y, 0
Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 A.Page

86 of 87
Signature
a Complete Items 1,2, and 3, Also complete
Item 4 If Restricted Delivery is desired.
M Print your name and address on the reverse
so that we can return the card to you.
I a Attach thia card to the back of the mailpieco,
or on ths^ront If space permits.

i
1. Article Addressed to;
B. Recelvi
>yM
tame)
Agent
Addres
C. Date of Dell
V,
D. Is deliwry address different from Item 1? DYes

No
If YES, enter delivery address below:
t
NEW YORK,NY
LOS ANOELES.CA
ohioaoo.il
IW
STAMFORD,CT
'i/>A
aoiWt,
PAR8)'PPANY,NJ
BRUSSELS. OELOlUM
3. Service Type
^ Certified Mall
Q Registered
Insured Mall
Express Mall
Refrrm Receipt for Merchani
O.O.D.
4. Restricted Delivery? (Extra Fee)

AFFILIATE OFFICE
2. Article Number
(Pansfer from service label)
MUMBAI, INDIA
I
PS Form 3811, February 2904
Yes
7DD4 D7SD DDD3 4LE1 ItHt,

Domestic Return Receipt
January 8,2016
By Certified MaiiVI^turn Receipt Requested
Rockville Mayor and Council
111 Maryland Avenue
Rockville, Maryland 20850
Re; Notice Pursuant to Maryland Courts and Judicial Procecdinas Code ^ 5-304
Dear Sir and Madams:
o.
This letter is being sent to you on behalf of our clients Siena Coiporation, a Maryland
corporation, and Rockville North Land LLLP, a Maryland limited liability limited partnership
(together, Siena). The puipose of this letter is to provide you with notice, pursuant to
Maryland Courts and Judicial Proceedings Code 5-304 (the Notice Provision), that Siena
intends to file a claim in its Second Amended Complaint for unliquidated damages against the
Mayor and Council of Rockville, as well as against Mayor Bridget Newton in her individual
capacity, Councilmember Beryl Feinberg in her individual capacity, Councilmember Virginia
Onley in her individual capacity, and Jane Doe, an employee of the City of Rockville who is not
currently being named (together, the Defendants).
Specifically, Siena intends to file a Second Amended Complaint in Case No. 401759-V,
currently pending in Montgomery County Circuit Court. This Second Amended Complaint will
allege, inter alia, that Siena has been injured by the actions of the Defendants in their individual
and official capacities, as follows:
(a) Mayor Bridget Newton, Councilmember Beryl Feinberg and Councilmember Virginia
Onley, conspired with private citizens and made fraudulent misrepresentations in order to pass,
with the assistance of Jane Doe, an unconstitutional targeted zoning text amendment, the puipose
and intent of which was to deprive Siena of the use of its property in the manner it desired,
(b) On February 2, 2015, Defendant the Mayor and Council of Roclcville adopted Zoning
Text Amendment TXT2015-00239, the puipose and intent of which was to deprive Siena of the
102595-02-M-

KELLEY DRYE & WARREN LLP
Rockville Mayor and Council

Page Two
use of its property in the manner it desired contrary to the United States Constitution, the
Maryland Constitution and the Maryland Declaration of Rights, and
(c) Since that time, and continuing to the present day, the Defendants have conspired and
made fraudulent misrepresentations to cover-up the targeted nature of their initial injurious
actions toward Siena.
Due to its injuries, Siena is seeking unliquidated damages from the Defendants.
Please do not hesitate to contact me if you have any questions regarding the above.
Sincerely,
Ira T, Kasdan
cc:
Debra Daniel, Esq. ,

Kevin Karpinsky, Esq.

Amended Complaint Siena v. Rockville

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Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 1 of 87

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 2 of 87

SECOND AMENDED COMPLAINT

Councilmember Defendants). The Councilmember

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 3 of 87

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 4 of 87

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 5 of 87

Plaintiff Siena Corporation is a Maryland corporation with its principal place of

business in Howard County, Maryland.

Plaintiff Rockville North Land LLLP is a Maryland limited liability limited

The City of Rockville (the City) is a municipal corporation authorized by the

State of Maryland to implement zoning controls within its municipal boundaries.

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 6 of 87

in this Complaint, the Mayor of the City.

this Complaint, a member of the Mayor and Council.

this Complaint, a member of the Mayor and Council.

Defendant Jane Doe is an individual to be specifically named if and as appropriate

after further discovery.

At all times with respect to each action by the Councilmember Defendants, as

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 7 of 87

Jurisdiction and Venue

In or about October, 2013, Hackman Capital Acquisition Corporation (Hackman)

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 8 of 87

Siena submitted an application for Zoning Text Amendment TXT2014-00237

On Januaiy 8,2014, the Planning Commission reviewed ZTATXT2014-00237 and

The Mayor and Councils adoption of ZTA TXT2014-00237 allowed Siena to

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 9 of 87

In order for the Project to be constructed, the Planning Commission needed to

On or about February 19, 2014, Siena sent notices of a Pre-Application Area

Following the Pre-Application Area Meeting, Ferguson sent an email to Activists

McKenna and Schoof, in which she stated:

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 10 of 87

Nevertheless, in or around April, 2014, the Activists began to conduct a propaganda

Maryvale Elementary School (Maryvale) is a public elementary school located

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 11 of 87

Following receipt of the false information disseminated by McKenna regarding the

On or around April 10, 2014, Activist Witzler began to circulate a MoveOn.org'

Petition, titled Keep the Maryvale Elementary School Neighborhood Safe.

1 oppose the construction of a 4-level, 900-unit storage facility in our

On June 18, 2014, Craig Pittinger, Sienas Senior Vice-President, emailed

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 12 of 87

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 13 of 87

On August 12, 2014, representatives of Siena, including Pittinger, attended the

On August 15, 2014, McKenna emailed Mayor Newton to discuss preventing

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 14 of 87

school zone or within 250 feet of the end of a school zone.

This direct linlcage in the email

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 15 of 87

On September 1, 2014, Councilmember Feinberg visited Sienas Property and the

surrounding neighborhood. Also on September 1, Defendant Feinberg wrote to Schoof: . . .

On September 8, 2014, McKenna wrote: Off the record, we have convinced

At the hearing, Planning Commissioner Littlefield stated: On this particular

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 16 of 87

McKenna submitted a Reconsideration Request (the Reconsideration

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 17 of 87

Before the Planning Commission acted on the Reconsideration Motion, Witzler

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 18 of 87

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 19 of 87

Councilmember Onley seconded Defendant Feinbergs call for a vote on the

Case 8:16-cv-00243-RWT Document 5 Filed 01/27/16 Page 20 of 87

[pursue the Moratorium Motion].

The Mayor and Council ultimately agreed to hear Daniels

advice at a closed. Executive Session.

Following the Executive Session, Defendant Feinberg withdrew the Moratorium