Chapman v. Montgomery County Council

271 A.2d 156, 259 Md. 641

• Court: Court of Appeals of Maryland
• Decided: December 16, 1970
• Docket: [No. 56, September Term, 1970.]
• Status: Published

Opinions

Finan, J.,-

delivered the opinion of the Court. Barnes, J., dissents. Dissenting opinion at page 650 infra.

This appeal is from an order of the Circuit Court for Montgomery County, Maryland, affirming the Resolution of the County Council of Montgomery County, Maryland, sitting as the District Council, rezoning 6.8 acres of land from R-R (Rural Residential) to C-l (Local Commercial) . The subject property is a part of a 15 acre triangular shaped, undeveloped and partially wooded tract. It is-located, in the- Fourth- and Tenth Election Districts, west of the proposed relocation of Falls Road between. Liberty Lane and Victory Lane, immediately south of the proposed Outer Beltway and approximately 350 feet south of' the Pepeo transmission line. The subject property is completely surrounded by property zoned R-R. However, nearby there is R-90 zoning.¹ We are of the opinion that the record fails to reveal sufficient facts to render the issue of substantial change in the character of the neighborhood fairly debatable, and that the order of the lower court should be reversed.

In the hearing examiner’s report, which obviously formed the basis for the action taken by the County Council, much weight was attributed to the fact that the Master Plan for Potomac-Travilah and Vicinity, adopted by the Maryland-National Capital Park and Planning Commission on February 16, 1966, and approved by the District Council on January 25, 1967, recommends a commercial center for the subject property. This would have been a valid factor in determining whether the proposed rezoning should have been adopted, if other pertinent elements, such as the question of mistake in original zoning or a substantial change in the character of the neighborhood had been present. See Town of Somerset v. County Council, 229 Md. 42, 47 (with particular attention to note 2), 181 A. 2d 671 (1962). Cf. also, Wells v. Pierpont,, 253 Md. 554, 557, 253 A. 2d 749 (1969); Kirkman v. Montgomery County Council, 251 Md. 273, 275, 247 A. 2d 255 (1968); Helfrich v. Mongelli, 248 Md. 498, 501-503, 237 A. 2d 454 (1968); Shadynook Imp. Assn. v. Molloy, 232 Md. 265, 269, 270, 192 A. 2d 502 (1963). However, absent the dynamics of mistake or change, are we not here once again confronted with the basic principle that the classification assigned the subject property in the comprehensive zoning plan, as distinguished from the Master Plan, must prevail? We think so.

A “Master Plan” is not to be confused as a substitute for a comprehensive zoning or rezoning map, nor may it be equated with it in legal significance. Nonetheless,, a reading of the appellees’ brief leads one to believe that they would have us do just that. In their brief they state r “[T]he Master Plan for Potomac-Travilah and Vicinity adopted * * * and approved by the District Council on January 25, 1967, is the presently existing comprehensive plan for the area.” If, by this statement, the appellees are intending to convey the idea that the Master-plan for this area is also the existing zoning map, they are overreaching. The zoning as recommended or proposed in the Master Plan may well become incorporated in a comprehensive zoning map for this area, but this will not be so until it is officially adopted and designated as such by the District Council. The comprehensive zoning map applicable to this area, as stated in the hearing examiner’s recommendation, was adopted by the District Council May 31, 1958, is still in effect, and shows the subject property to be zoned R-R.²

A case which clearly illustrates the difference in the legal significance attached to a master plan as contrasted with comprehensive zoning is that of Board of County Commissioners for Prince George’s County v. Edmonds, 240 Md. 680, 215 A. 2d 209 (1965). In that case, the gravamen of the decision in the lower court was that a master plan for an area, when approved and adopted, which recommended zoning different from that existing, gave rise to the presumption that there was either mistake in the original zoning or that a change in the character of the neighborhood had occurred. Judge Oppenheimer writing for this Court disagreed and stated :

“Rezoning by comprehensive plan is a legislative function * * * and cannot be delegated except upon express authority * * *. Here, the Council is the legislative body in zoning matters designated by the General Assembly. * *

“The master plan * * * was adopted pursuant to Laws of Maryland, 1959, ch. 780 § 1, subsec. 63 as amended * * * The Act authorizes the Commission [The Maryland-National Capital Park and Planning Commission] to adopt a general plan for the district, after study and a public hearing * * *.

“* * * [T]hat plan was only a guide for the Council for the long-range future; its adoption did not supplant, the Council’s responsibility to make its own decisions. Nor did the master plan take the place of the comprehensive zoning previously adopted by the [District] Council.”

240 Md. at 684-685.

The appellees, perhaps recognizing the weakness in their gratuitous assumption that they should prevail because of the designation of the subject property as a commercial location on the Master Plan, pressed more seriously the argument that there has been such a substantial change in the character of the neighborhood as to render that question “fairly debatable.” ³ Wells v. Pierpont, supra, at 557, Kirkman v. Montgomery County Council, supra, at 276; Helfrich v. Mongelli, supra, at 505; and Agneslane, Inc. v. Lucas, 247 Md. 612, 620, 233 A. 2d 757 (1967).

Inasmuch as this Court is of the opinion that our decision in this case turns on the issue of whether or not the question of substantial change in the character of the neighborhood was fairly debatable, it is essential to an understanding of the conclusion which we reach that a review be made of the hearing examiner’s analysis and finding on this point which we set forth in pertinent part:

“This record clearly establishes that since 1958, the date of the last comprehensive rezoning applicable to the subject property and its environs, there have been numerous reclassifications of land from the R-R zone to the R-150 and R-90 zones. Extensive development has resulted therefrom in recent years and continues at the present time. The rate of growth in this area has been enormous and the neighborhood is rapidly and consistently moving toward the achievement of its ultimate anticipated population. Public facilities such as schools, water service and sewer service, have already been provided, and an adequate road network is planned. Other amenities such as churches and recreational facilities are in existence. While there are some recently completed shopping facilities within a radius of between 2 and 3 miles of the subject property, there are no shopping facilities. within a radius of 1 mile of the subject property. * * *

“[T] here was also uncontradicted expert testimony presented to show that between 1960 and 1968 the Potomac Planning Area had the highest percentage of population growth of any area in the County; that the growth of the area herein involved, namely that area within a IV2 to 2 mile radius of the subject property has been many times faster than that occurring elsewhere in the Potomac-Travilah area; that at the present time there is an existing population adequate to sustain 115,000 square feet of commercial space; that rapid growth is continuing; and that projecting this rate of growth the. area herein involved will reach its ultimate population in 3-5 years and will be able to sustain 150,000 square feet of commercial space. While there was evidence to show that there are several shopping facilities within a 2-3 mile radius of the subject property, some of which have been fairly recently expanded or developed, there was no evidence to show that there was any commercially zoned land available fdr development at any of these locations or any other locations in close proximity to the subject property. I am persuaded by the record that in terms of existing population and development there is a present and future need for commercially zoned land at the instant location. On the basis of the evidence'-presented I find and conclude that there has been a substantial change in the 'character of the neighborhood from a 'relatively, low-density single-family detached rural. residential community to a medium-density single-family detached suburban community with a present and future need for a local convenience shopping facility. I further find and conclude that this change in the character of the neighborhood is sufficient to justify reclassification in the instant case.” [Emphasis supplied.]

The hearing examiner in her report demonstrated commendable expertise in assembling the facts and winnowing out of the 490 pages of testimony some very pithy conclusions. Her exploration of the need for such a facility in this area was supported by an impressive array of statistics on population growth. However, this is not a case in which the question of need evolves as a critical factor. Cf. Wakefield v. Kraft, 202 Md. 136, 146, 96 A. 2d 27 (1953); Ellicott v. City of Baltimore, 180 Md. 176, 184, 23 A. 2d 649 (1942). See also Springloch Citizens’ Group v. Montgomery County Board, 252 Md. 717, 722, 251 A. 2d 357 (1969), and Neuman v. City of Baltimore, 251 Md. 92, 96, 246 A. 2d 583 (1968), wherein special exceptions were involved and under local ordinances need had to be demonstrated.

Unquestionably, much of the testimony in the transcript was devoted to the question of need because the appellees were fully aware that even if substantial change in the character of the neighborhood were established, this, of itself, would not necessarily compel rezoning but merely lay the foundation for it. Furnace Branch Land Co. v. Bd. of Co. Comm., 232 Md. 536, 539, 194 A. 2d 640 (1963). On the other hand, change, buttressed by a need for the facility, might well have resulted in need being the persuasive factor. Wakefield v. Kraft, supra.

The record also contains a plethora of evidence regarding the impact which the rezoning may have on the generation, flow and density of traffic.⁴ Again, this would be most vital to a review of the action taken by the District Council, if we were to pass beyond the key issue of change. However, as previously stated, we are convinced' that our consideration must be confined to the rather narrow issue of the question of the debatability of a substantial change in the character of the neighborhood.

The main thrust of the examiner’s report is that the-substantial change in the character of the neighborhood, consists of its transition from “a relatively low density-single-family detached rural residential community to a medium-density single-family detached suburban community * * That is to say, over the years, there has. been an intensification of the same use. It is true that in Meginniss v. Sheppard-Pratt, 246 Md. 704, 710, 229 A. 2d 417 (1967), we took cognizance of the fact that an intensification of institutional use in a low-density residential area, together with the advent of additional sewer facilities, constituted such a substantial change In the character of the neighborhood as would render reclassification for apartment use reasonably debatable. However, this Court has recognized in the past that there was a. difference to be observed in the treatment of “reclassification from one residential sub-category to another,” as-distinguished from “the removal of the land from the use-category in which it was placed when originally zoned * * *. In this respect, the situation is, to a certain degree, different from the application to reclassify property zoned as residential to commercial or Industrial * * Missouri Realty, Inc. v. Ramer, 216 Md. 442, 449, 140 A. 2d 655 (1958). To the same effect see Judge Prescott’s restatement of his dictum in Ramer, supra, in Hyson v. Montgomery County, 242 Md. 55, 76, 217 A. 2d 578 (1966). See also 26 Md. L. Rev. 48, at 51 (1966), wherein the author concludes, “Thus, the Court seems to adopt a more liberal attitude when reviewing amendments from-, one use to a similar use,” citing Ramer.

It must also be noted that there has been no inroad of a business nature into the neighborhood in which the subject property lies so as to give it a “commercial flavor,”” to paraphrase Kirkman, supra, at 275.⁵ Nor has there yet been any dramatic change wrought by highway construction in the neighborhood as was the case in Beth Tfiloh Congregation v. Blum, 242 Md. 84, 89, 218 A. 2d 29 (1966), and Finney v. Halle, 241 Md. 224, 237, 216 A. 2d 530 (1966).

We are left then with the question of the significance to be attributed to a substantial growth of population in the neighborhood. The answer to this is not elusive. This Court has repeatedly stated that an increase in population per se does not prove a substantial change in the character of the neighborhood. Miller v. Abrahams, 257 Md. 126, 262 A. 2d 524 (1970); Wells v. Pierpont, supra, at 559; County Commissioners v. Fairwinds, 230 Md. 569, 572, 187 A. 2d 845 (1963); Didlake v. Poteet, 228 Md. 588, 591, 180 A. 2d 828 (1962). Also cf. Goucher College v. DeWolfe, 251 Md. 638, 641, 248 A. 2d 379 (1968); Board of County Commissioners v. Kines, 239 Md. 119, 123, 210 A. 2d 367 (1965).

Since the rationale of this opinion is predicated on the need of the appellees to establish that the question of substantial change in the character of the neighborhood was reasonably debatable, and we hold that the record fails to support this, it becomes unnecessary for us to consider what may eventually be the impact on this area of the location of the Outer Beltway, the relocation of Falls Road, or the question of whether the qualifications attendant to the granting of the proposed rezoning by the District •Council amounted to conditional zoning. With regard to the question of the proposed highway improvements, these may well have been pertinent to the issue of change were they “reasonably probable of fruition in the foreseeable future.” Jobar Corp. v. Rodgers Forge, 236 Md. 106, 112, 202 A. 2d 612 (1964); Rohde v. County Board, 234 Md. 259, 264, 199 A. 2d 216 (1964); Trustees of McDonogh, etc. v. Baltimore County, 221 Md. 550, 570-71, 158 A. 2d 637 (1960). However, the record discloses that the improvements to Falls Road, which the examiner readily agrees should be made, were not included in any currently funded state highway construction program and according to her findings “a definite determination as to the location of the proposed Outer Circumferential Beltway will not be made for at least two years.”

Were we to do other than reverse the order of the court below, we would be abetting an impermissible type of “spot zoning” or piecemeal zoning looked upon with disfavor by our predecessors many years ago in Cassel v. City of Baltimore, 195 Md. 348, 357, 73 A. 2d 486 (1950) 26 Md. L. Rev. 48, at 56-57 (1966).

Order reversed, appellees to pay costs.

1 . A Vicinity Map showing in detail the zoning for a much larger area extending over 3,000 feet from the subject property-may be found with the Examiner’s report filed with application No. E-914, Before The County Council For Montgomery County, Sitting as the District Council.

2 . Counsel for appellees volunteered the information that the only area in Montgomery County^ in which a Master Plan has by ordinance become the comprehensive rezoning map is in the Cabin John Watershed Area.

3 . The appellees, and we think correctly so, raise no issue regarding mistake in original zoning. Cf. Bosley v. Hospital, 246 Md. 197, 201, 227 A.2d 746 (1967).

4 . See Temmink v. Board of Zoning Appeals, 212 Md. 6, 13, 128 A. 2d 256 (1957) for illustration where the impact of rezoning on the traffic pattern was a vital factor.

5 . See also Town of Somerset v. County Council, 229 Md. 42, 48, 49, 181 A. 2d 671 (1962).