Anne Arundel County v. McDonough

• Decision Date: 09 March 1976
• Docket Number: No. 4,4
• Citation: 277 Md. 271,354 A.2d 788
• Parties: ANNE ARUNDEL COUNTY, Maryland, et al. v. Thomas J. McDONOUGH et al.
• Court: Maryland Court of Appeals

Page 271

277 Md. 271

354 A.2d 788

ANNE ARUNDEL COUNTY, Maryland, et al. v. Thomas J. McDONOUGH et al.

No. 4.

Court of Appeals of Maryland.

March 9, 1976.

Jay I. Morstein and Stephen H. Sachs, Baltimore (Elizabeth Logan Nilson, Baltimore, Michael R. Roblyer and John M. Court, Annapolis, and Emile J. Henault, Jr., Severna Park, on the brief), for appellants.

Francis B. Burch, Atty. Gen., and George A. Nilson, Asst. Atty. Gen., Baltimore, on the brief amicus curiae.

Wilson K. Barnes, Baltimore, and Marvin H. Anderson, Annapolis, for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE and O'DONNELL, JJ.

O'DONNELL, Judge.

The issues before us in this case pertain to the legality and regularity of a referendum, submitted to the electorate of Anne Arundel County on 41 amendments, adopted by the County Council, when it enacted a comprehensive zoning ordinance for the County's Fourth Tax Assessment District, affecting in particular acreage located within the median of Maryland Route 3, and properties abutting each side of that highway.

Maryland Route 3, running through the County from north to south, traverses portions of the Second, Third and Fourth Tax Assessment Districts. In the early 1950's, the State Roads Commission converted what was originally a two-land road to a four-lane separated thoroughfare. In this dualizing process the present southbound lanes were constructed some distance west ward of the original highway, thus creating a median area, ranging in width from 50 to 500 feet-with a fairly typical width of 300 feet-which extends from property occupied by a Howard Johnson's Restaurant (on the north), in the vicinity of New Cut Road, near Glen Burnie, to the county line (on the south), at the Patuxent River.

Since the highway construction, older residences within the median have continued to be occupied; although several 'sample' homes, used to advertise and sell prefabricated dwellings have been therein erected, no new residential construction has taken place in the median. From the very nature of this enclave, there had been substantial commercial development within the median up until 1973, and the properties herein came to enjoy commercial zoning classifications.

On May 24, 1973, Bill No. 59-73 was submitted to the County Council, proposing a comprehensive rezoning for the Fourth Tax Assessment District and the adoption and application of new zoning maps to the Alternate Zoning Regulations contained in the Anne Arundel County Code. The import of the Bill, as submitted, basically 'down-zoned' the commercial properties located within the median to R1 (Residential) classifications; it proposed as well the down-grading of the commercial properties, along the eastern and western boundaries of Route 3 to R1 and RA (Residential Agricultural) classifications. ¹

Prior to the submission of the Bill, and prior to the release of the proposed legislation to the public on April 3, 1973, the County's Office of Planning and Zoning, the sponsor of the legislation and the originators of the map revisions, conducted three public hearings within the affected district. Announcements of such meetings were placed in three local newspapers, the Villager, the Maryland Gazette and the Anne Arundel Times, all having a general circulation within the county. Mrs. Marian J. McCoy, the County Planning and Zoning officer, in the lower court, gave testimony that a general announcement had as well been sent out

'(t)o as many people that we could find from the tax records (so) that, if their property was affected, . . . they would basically know, at least as far as the suggested maps were concerned that they should take some interest in the process. . . . Basically, a notice went out advising (that) the property was being suggested from such-and-such a classification to such-and-such a classification, and that information was available at our office, including, if they wished, a list of what the permitted uses were in that particular classification.' (emphasis added).

The reason for the proposed 'down-zoning' of the properties, within the median, and along the Route 3 corridor, from commercial to residential, according to the testimony of Mrs. McCoy, was because 'in the light of dangerous traffic conditions along Route 3, it would be in the best interests of the health, safety and general welfare of the County.' She further testified that the Planning Board 'wanted to certainly not see any further commercialization along the Highway until something was done in order to correct what they considered to be a very dangerous condition due to the traffic and the accident rates that they became familiar with.' (emphasis added).

After the public hearings conducted by the Office of Planning and Zoning, the comprehensive zoning ordinance, with accompanying maps-apparently unchanged as a result of the hearings-was submitted to the County Council. The Council conducted eight public hearings on the proposed legislation. As a result of those hearings, various councilmen proposed a total of 145 amendments to the Bill and its accompanying maps. Four additional public hearings were held by the Council on the proposed amendments, and on August 6, 1973, those 145 amendments to the comprehensive zoning plan and accompanying maps were adopted. As amended, Bill No. 59-73 was passed by the Anne Arundel County Council on August 20, 1973 and submitted to the then County Executive Joseph Alton.

Pursuant to § 405(h) of the Anne Arundel County Charter, granting the county executive the right 'to veto, in his discretion, ordinances of the County Council . . . and to return the same to the Council . . .,' Mr. Alton, on August 30, exercised his veto prerogative as to 87 of the proposed 145 amendments, concurred in the remaining 58, and on August 31, 1973, returned Bill No. 59-73 to the Council. The Council sustained the executive's veto as to 31 of the amendments it had adopted, and overrode the veto of the remaining 56. Thus, the proposed comprehensive zoning ordinance, as proposed in Bill No. 59-73, was finally enacted by the County Council on September 4, 1973, with 114 amendments and map changes.

Disagreeing with the Council's legislative wisdom, certain citizen groups and civic associations, undertaking to act pursuant to Section 308 of Article III of the Anne Arundel County Charter and Article XVI of the Constitution of Maryland, circulated petitions in the form required by Maryland Code (1957, 1971 Repl.Vol.) Art. 33, § 23-3, and obtained the signatures of the requisite number of registered voters to bring to referendum 41 specifically selected amendments of the 114 adopted by the Council. ²

The 41 amendments petitioned to referendum affected the zoning on 42 tracts of land. Twenty-six of the amendments (Nos. 39, 40, 41, 43, 44, 45, 46, 58, 80, 85, 86, 87, 88, 90, 91, 92, 96, 97, 100, 113, 136, 137, 140, 141, 143 and 145) related to properties wholly within the median strip between the roadways of Route 3; one amendment (No. 86) involved two properties, with the same ownership, one lying within the median strip and the other, opposite thereto, fronting on the westernmost side of the highway's southbound lanes; nine amendments (Nos. 34, 42, 56, 59, 68, 72, 105, 106 and 144) pertained to properties fronting entirely on the westernmost right-of-way line of the southbound lanes and five of the amendments (Nos. 49, 55, 75, 77 and 79) had to do with properties fronting entirely on the easternmost right-of-way line of the highway's northbound lanes. The last amendment on referendum (No. 73) involved the zoning of two contiguous properties-10 miles distant from Route 3-located on Brockridge Road, near Maryland City, in Laurel, but within the Fourth Tax Assessment District of Anne Arundel County.

As introduced, the ordinance undertook to 'down-zone' every commercially used property within the median to that of R1 (Residential). Amendment No. 44 changed that proposed residential use to C2 (Commercial, office); amendments Nos. 46 and 140 changed such proposed use to a classification of C3 (General Commercial), as did amendment No. 80, for a portion of the tract covered by it. All the remainder of the amendments, as to properties within the median, changed the proposed residential classification to C4 (Highway Commercial). Thus, the amendments, as affecting the properties within the median, retained the zoning uses in effect prior to the introduction of the legislation.

Pursuant to amendment No. 56, property on the west side of the highway, proposed for an RA (Residential Agricultural) classification, was changed to a W1-B (Industrial Development) use; a W1-B classification, proposed for another of the parcels on the west side of the highway, by amendment No. 144, was changed to C2 (General Commercial). Under amendments Nos. 34 and 72, a proposed R1 (Residential) classification was changed to R5 (Residential), for other lands abutting the westernmost side of the southbound highway lanes. The five properties fronting on the easternmost northbound lane of Route 3, proposed for RA (Residential Agricultural) classifications, by amendments Nos. 49, 55, 75, 77 and 79, were changed to that of C4 (Highway Commercial). The property in Laurel-10 miles distant from Route 3-classified as R5 (Residential) in the original ordinance, was changed by amendment No. 73 to that of C1-A (Neighborhood Commercial), These amendments, as to properties outside the median, undertook as well to retain substantially the same zoning uses to which they had theretofore zeen entitled.

It must here be observed that both amendments Nos. 96 and 36 undertook to classify as C4 the property of the J. F. Johnson Lumber Co., located within the median. While amendment No. 96, which was petitioned to referendum, embraced as well four or five properties contiguous to the lumber company, amendment No. 36, not on referendum, related solely to that company's...