Wahler v. Montgomery County Council

238 A.2d 266, 249 Md. 62

• Court: Court of Appeals of Maryland
• Decided: March 4, 1968
• Docket: [No. 78, September Term, 1967.]
• Status: Published

Opinions

McWilliams, J.,

delivered the opinion of the Court. Barnes, J., dissented and filed a dissenting opinion; see page 71, infra.

The folks on Jingle Lane opposed this Montgomery County rezoning. The appellee (Council) decided against them. The trial judge upheld the action of the Council. This is their appeal.

The property in question (the Artery tract¹) is rectangular in shape (200'± x 1130') and it contains (in 2 parcels) about 5 acres. It is in a neighborhood, known as Glenmont, about 5 miles north of the north corner of the District of Columbia. It fronts (190') on the northeast side of, and runs perpendicular to, Georgia Avenue, a heavily traveled main thoroughfare. The .zoning, before the Council changed it to R-20 (multiple family, medium density residential), was R-60 (one family, detached residential, 6000 sq. ft. min.). Some single family residences have been built on it. Abutting, on the southeast, is the R-30 (multiple family, low density residential) tract which was before us in Marcus v. Montgomery County, 235 Md. 535, 201 A. 2d 777 (1964). A 70 foot road, designated P-9 (not yet built), has been relocated so that instead of running through the middle of the Marcus tract it will run along and provide access to (from Georgia Avenue) the southeast side of the Artery tract. Abutting to the northeast is a tract which had been zoned R-20 when the Council, on 1 March 1965, heard the instant case. On 14 January 1966, however, we decided Baker v. Montgomery County, 241 Md. 178, 215 A. 2d 831 (1966), which nullified the R-20 zoning. Therefore, when the Council decided the instant case, on 15 February 1966, the Baker tract had reverted to its original classification, R-90 (same as R-60 except for 9000 sq. ft. min.).

The land to the northwest is zoned R-90 except for 4.2 acres lying between the Artery tract and the lots fronting on Jingle Lane. This 4.2 acre tract was rezoned from R-90 to R-T (Town Houses) later in the afternoon of the same day, 15 February 1966, the Artery tract was rezoned. Between the Artery tract and the 4.2 acre tract is a church lot containing about 3 acres. The houses on Jingle Lane are about 600' northwest of the Artery tract.²

The land to the northeast (Baker tract) is undeveloped and partially wooded. To the north and northwest there are a number of large, well-maintained, single family residences fronting on Jingle Lane and Weller Road. Across Georgia Avenue, to the west, there is some vacant land beyond which there are some single family residences. On the west side of Georgia Avenue, opposite the Artery tract, there are 2 parcels (each containing about 2 acres) zoned R-T. To the east, in the Marcus tract, some apartments were under construction at the time of the hearing in March 1965.

The technical staff, although noting that the requested reclassification was not “in conformance with the Master Plan for the Upper Northwest Branch Watershed, Part 1, Zoning and Highways, adopted April 26, 1961,” concluded that the Artery tract was “in effect surrounded by land which is zoned for multi-family use” and it recommended approval of the request for R-20 zoning. The Planning Board approved the recommendation of the technical staff and recommended to the Council that it be rezoned to R-20.

As has been said, the hearing before the Council was held on 1 March 1965. Two weeks short of a year later, 15 February 1966, the Council filed its opinion and resolution granting the R-20 rezoning. The only reasons stated in the opinion in support of its action are as follows:

“The District Council agrees with the recommendations of the Technical Staff and the Planning Board. These properties are abutting land to the southeast which is zoned for multi-family use and are located directly across Georgia Avenue from a town house development. The difficulties of access to the subject properties and liabilities of fragmented ownership described in the Staff report are additional reasons for granting these applications.

“For these reasons and because to aid in the accomplishment of a coordinated, comprehensive, adjusted and systematic development of the Mary land-Washington Regional District * * *.”

The trial judge found “from the record * * * that the issue of substantial change * * * [was] fairly debatable.” He was of the opinion that “the record of the hearing before the Council disclose [d] ample evidence of a change in the character of the neighborhood since the original zoning.” He observed also that these changes were “recognized by both the Technical Staff and the Planning Commission.” The court’s opinion does not specify any instances of the “ample evidence” of change.

We shall undertake a dissection of the Council’s opinion to see if it will lead to the discovery of any evidence which might make the issue of substantial change fairly debatable.

(i)

The Council agrees with the recommendations of the technical staff and the Planning Board.

The staff, in addition to what we have already noted, said the Artery tract was “bounded to the northeast by the R-20 [Baker tract] zone.” As has been said, this zoning reverted to, R-90 on 14 January 1966, a month before the Council’s resolution. The staff alluded to some “difficulties of access” to the Artery tract from Georgia Avenue but how this would have-been alleviated by the rezoning was not explained. Oddly enough, the staff seems to have overlooked the fact that the-proposed relocation and realignment of the 70 foot road (P-9) probably would have solved whatever “difficulties of access”' there might have been. There is no doubt the staff was aware of this proposal because about 0.7 of an acre was withheld from the recommended rezoning for the “area required for [the] right of way (if the proposed amendment is adopted).” The realignment and relocation were approved by the Planning Commission on 10 March 1965, 11 months before the Council’s resolution. Since the Planning Board did nothing more than approve the staff’s recommendation “as generally stating the-Board’s opinion” it seems clear to us that the recommendations, of the Board and its staff had lost whatever validity they may have had when the Council passed its resolution on 15 February 1966.

(H)

Abutting land to the southeast zoned for multi-family use.

The Council either forgot or chose to ignore the principal reason it gave for changing this 27 acre tract (Marcus tract) from R-90 to R-30. It said, in its opinion, (in Marcus) that the reclassification (of the Marcus tract) “would be most logical in view of the existing and planned highway pattern and the fact that the R-30 zone', as now constituted in the Ordinance, provides a nice transition between commercial and R-90 zoning.” (Emphasis supplied.) The “R-90 zoning,” of course,, refers to the Baker tract (and beyond) to the northeast and,, very likely, to the Artery tract (and beyond) to the northwest. The Artery tract, of course, was R-60.

In Baker, we said that the rezoning of abutting property does, not always warrant the rezoning of adjacent property. And we said also, in Baker, that “we have recognized the fact that apartment zoning may constitute a buffer between commercial and¹ residential zones.” Id. at 185. Moreover, in respect of this very tract (the Marcus tract), Judge Horney, for the Court, in Baker, said:

“* * * Although a buffer zone was not mentioned by this Court as a reason for affirming the action of the council in Marcus v. Montgomery County Council, supra, on which the council erroneously relied in the instant case to justify the rezoning of the subject property, the apartment zoning approved in that case was nevertheless a buffer between commercial and residential zones.” Id. at 186. (Emphasis supplied.)

It would seem to follow that if the Council, in Baker, “erro'neously relied” on the rezoning of the Marcus tract to R-30, then that same reliance in the instant case is likewise erroneous.

(iii)

Located directly across Georgia Avenue from a town house development.

In Knudsen v. Montgomery County, 241 Md. 436, 217 A. 2d 97 (1966), we held that the R-T zone, like the R-H zone, Beall v. Montgomery County, 240 Md. 77, 212 A. 2d 751 (1965), is a “Non-Euclidian” or floating zone. Accord and 'harmony with the surrounding zoning are essential to its va-lidity. Since this compatibility with the balance of the neighborhood must exist it can hardly be said that the granting of such a rezoning is evidence of a substantial change in the char-acter of the neighborhood. Indeed it would seem that any R-T rezoning, in which compatibility has been determined, would •operate to increase the stability of the neighborhood and add permanence to its character. While it is true that the Council, in its resolution creating the R-T zone opposite the Artery tract, made no mention of compatibility, finding, instead, that there had “been a sufficient change in the character of the neighborhood to warrant the classification,” we cannot say that the R-T rezoning was not, in fact, compatible with the surrounding R-60 and R-90 zoning. The recommendations of the techmical staff and the Planning Board, in that case, are not in this Tecord and, since their procedures are not in issue here, we shall assume they considered the matter of compatibility and found it to exist. Perhaps attention should be drawn to the fact that the Council’s resolution (in the R-T matter) was dated 1 December 1964, 7 months before we decided Beall, supra,. In this context what we said in Bujno v. Montgomery Co. Coun., 243 Md. 110, 220 A. 2d 126 (June 1966) takes on added significance. As Judge Barnes, for the Court, put it:

“The appellants also seek to distinguish Beall from the case at bar on the ground that in Beall the Technical Staff, the Planning Board and the Council all indicated that the application complied with the purposes of the R-H zone whereas in the case at bar, the Technical Staff and Planning Board did not indicate this and the Council sought to justify its action by a finding that there had been sufficient change in the character of the neighborhood. We point out that the order of the Council in the case at bar was filed on December 18, 1964, several months before our decision in Beall which was decided on August 27, 1965, so that the Council did not have the benefit of the Beall opinion in which we indicated there should be a finding that the proposal for R-H zoning complied with the purposes of that zone. Although it is most desirable that the Council should find specifically that the proposal does comply with the R-H zone purposes, this finding may be inferred from the Council’s opinion even though, as a matter of abundant caution perhaps, it also found that there had been a sufficient change of conditions in the neighborhood to justify the proposed reclassification.” Id. at 118-19.

It cannot be said, of course, that the creation of the R-T zone did not effect some change. Whatever change did take place, however, must be assumed, absent persuasive evidence to the contrary, to have been compatible with the residential character of the neighborhood. We do not think it can be considered as evidence which would make the issue of substantial change in the character of the neighborhood fairly debatable.

(iv)

Difficulties of access.

In addition to what has already been said in this regard it should be noted that besides fronting 190 feet on Georgia Avenue access was provided by a 15 foot right of way running northwest from Georgia Avenue through the adjoining property and along the northwestern boundary of the Artery tract. Even assuming access was difficult, that problem had already been solved by the realignment of the proposed 70 foot road (P-9) along the southeastern boundary. This had been accomplished before the adoption of the resolution by the Council. We see nothing here which has any evidentiary value.

(v)

Liabilities of fragmented ownership.

The conclusion of the technical staff was that:

“The fragmented pattern of ownership and the fact that a number of the properties have narrow frontage and access to the interior is by means of Ara Drive [the 15 foot right of way] which is extremely narrow and not dedicated to public use, makes additional single family development in the area difficult if not impossible.”

As paraphrased by the Council it becomes the “liabilities of fragmented ownership described in the Staff report.” What the staff meant by its choice of language is hard to say. What the Council meant by its paraphrase is a bit more of a problem. How it becomes evidence of a substantial change in the character of the neighborhood is utterly beyond our ken.

The Council, it will be recalled, did not make a specific finding of original mistake nor change in the character of the neighborhood. Nor did the Planning Board; nor did the technical staff. The first mention of “substantial change in the character of the neighborhood” appears in the opinion of the trial judge. We have examined the record with care but we have been unable to find any evidence, in support of the action of the Council, which had any validity, force or effect on 15 February 1965, when its resolution was adopted.

In Baker, Judge Horney, for the Court, repeated what has been said on other occasions:

“While it has been uniformly held that the court, in reviewing the action of zoning authorities, will not substitute its judgment for that of the zoning officials, Marcus v. Montgomery County Council, supra, at p. 541 (of 235 Md.), Pallace v. Inter City Land Co., 239 Md. 549, 212 A. 2d 262 (1965), a court will, where the record is so devoid of substantial supporting facts as to be incapable of raising a debatable issue, declare the legislative or administrative action invalid. Levitt and Sons v. Board of County Commissioners, 233 Md. 186, 195 A. 2d 723 (1963); Jobar Corp. v. Rodgers Forge, 236 Md. 106, 202 A. 2d 612 (1965).” Id. at 186.

Other questions were presented but in light of what has been said our consideration of them is not required. We think the trial judge should have reversed the action of the Council.

Order reversed.

Costs to be paid by the appellee, Artery Construction Company, Inc.

1 . Artery Construction Co., Inc., is the contract purchaser of the land in question and the applicant for the rezoning.

2 . Appellee in its brief concedes that the appellants have standing to pursue this appeal.