Aspen Hill Venture v. Montgomery County Council

• Decision Date: 10 April 1972
• Docket Number: No. 288,288
• Citation: Aspen Hill Venture v. Montgomery County Council, 265 Md. 303, 289 A.2d 303 (Md. 1972)
• Parties: ASPEN HILL VENTURE v. MONTGOMERY COUNTY COUNCIL.
• Court: Maryland Court of Appeals

Page 303

265 Md. 303

289 A.2d 303

ASPEN HILL VENTURE v.MONTGOMERY COUNTY COUNCIL.

No. 288.

Court of Appeals of Maryland.

April 10, 1972.

Joseph P. Blocher and Charles G. Dalrymple, Silver Spring (Linowes & Blocher, Silver Spring, on the brief), for appellant.

William J. Chen, Jr., Asst. County Atty.(Richard S. McKernon, Acting County Atty., Alfred H. Carter, Deputy County Atty. and John B. Walsh, Jr., Asst. County Atty., Rockville, on the brief), for appellee.

Argued before HAMMOND, C. J., and FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

The appellant in this zoning appeal, Aspen Hill Venture (Aspen), in 1961, acquired some 15.5 acres of land zoned R-60 (One Family, Detached, Residential) located in Montgomery County, Maryland on which they planned the construction of the Aspen Hill Shopping Center (Center).The plan of construction necessitated the rezoning of approximately 8 of the original 15.5 acres to commercial use, on which the first phase of the Center was developed.In 1968, the remainder of the original acreage was paved and devoted to parking use pursuant to a special exception granted by the Montgomery County Board of Zoning Appeals.In order to accommodate a 30,000 square foot expansion of the Center, Aspen, on June 1, 1970, filed a zoning application with the District Council seeking the reclassification of the remainder of the 15.5 acres from R-60 to C-1 (Local Commercial).At a public hearing before the Hearing Examiner, Aspen reduced the area sought to be reclassified to 4.1041 acres, and it is this parcel (the subject property) with which we are concerned on appeal.

The location of the subject property and the nature of the surrounding property are accurately set forth in the following description from the appellee's brief:

'* * * The subject property is part of * * * Wheaton Woods, located at Aspen Hill, on the easterly side of Connecticut Avenue (Maryland Route 183), approximately 700 feet south of the intersection of Connecticut Avenue and Aspen Hill Road, in Wheaton, Maryland, and lies within that area of Montgomery County designated as the Aspen Hill and Vicinity Planning Area, and west of Georgia Avenue.The subject property * * * lies immediately south of and contiguous with the existing Aspen Hill Shopping Center, a local shopping center originally constructed about 1961, with subsequent additions thereto, abutting Aspen Hill Road, a four-lane, divided, arterial highway.To the east and Southeast of the subject property is a large area of single-family homes, zoned R-60, known as the Harmony Hillssubdivision.The western boundary is Connecticut Avenue, a six-lane, divided, major highway with * * * (a) median strip and access to the property.Bounding Connecticut Avenue on its western edge is the Wheaton Woodssubdivision of single-family homes zoned R-60.'

In augmentation of this description, we would note that all of the quadrants at the intersection of Aspen Hill Road and Connecticut Avenue are currently zoned and occupied by a variety of commercial uses.

Upon completion of the public hearing before the Hearing Examiner ¹ a report and recommendation was given to the District Council setting forth the findings of fact that; (1) there was sufficient change in the character of the neighborhood to justify rezoning, (2) the proposed reclassification was in accordance with 'the recently adopted Aspen Hill and Vicinity Master Plan,' and (3) the proposed reclassification would not have an adverse effect upon the surrounding residential property or create traffic circulation problems or an additional nuisance factor in the area.Nevertheless, the Hearing Examiner's report and recommendation advised the District Council to deny Aspen's application, as it 'would not be in the public interest in light of a demonstrated lack of public need for additional commercial facilities at the subject site to service residents of the area.'

On May 4, 1971, the District Council, after consideration of the appellant's application, rendered a written opinion in which it confirmed the Hearing Examiner's assessment of a substantial change in the character of the neighborhood and its effect on the surrounding area.The opinion further recognized the conformity of the proposed use with the Master Plan but proceeded to delimit this usually felicitous circumstance by stating:

'The subject application is in accord with the land use designation recommended for the property on the recently adopted Aspen Hill and Vicinity Master Plan (approved by the District Council on December 3, 1970).The District Council recognizes that Master Plans are guides for its utilization in specified areas, sometimes long range guides, and therefore making hasty implementation of their recommendations in a piecemeal fashion (for the sake of conformity with the plan) may well be action to the detriment of the public interest.'

In view of the favorable findings of the District Council on the issues of change, effect on surrounding properties and conformity with the Master Plan, all of with which the appellant agrees, we do not deem it necessary to review the testimony adduced at the public hearing relative to these determinations.It suffices to say, that despite these elements favorable to Aspen, the District Council followed the recommendations of the Hearing Examiner and in concluding that Aspen's application should be denied, stated:

'The evidence of record includes studies by the Technical Staff as to the existing and proposed local commercial facilities within the Aspen Hill Planning Area, testimony of lack of need for additional commercial facilities from residents of the area of the subject property, the text, maps, and tables contained within the aforementioned Master Plan, and the lack of any affirmative, compelling evidence from the applicant to show a need for additional commercial zoning; we therefore conclude that a surplusage of local commercial shopping facilities to service residents of the neighborhood presently exists and that the granting of the subject application as a prelude to creating additional commercial facilities is not at the present time in the public interest.* * *.

'Though the evidence of record at most may justify or permit us to reclassify the subject property, we do not feel under the zoning law of this State either compelled or required to do so.Accordingly, we exercise our legislative prerogative and decline to grant the subject application.'

The study of the Technical Staff and Planning Board, while prepared with reference to a petition for the reclassification to C-1 of a tract of land, the Faller tract, some 1,500 feet removed from the subject property, nevertheless analyzed convenience shopping facility needs in the entire Aspen Hill Planning Area.The study, based on computations of existing and proposed shopping center facilities and estimates of population growth in the area, concluded that the Faller tract should not be rezoned C-1 as 'The Master Plan already provides ample shopping facilities.'It is interesting to note that in arriving at this conclusion, the study's computations took in account the 30,000 square feet of the Aspen Hill Center as a 'proposed shopping center,' representing the expansion of the Center as planned to occur on the subject property, and also that the Faller tract was then (as it is presently) shown as C-1 on the Master Plan.

On appeal to the Circuit Court for Montgomery County, Aspen contended that the District Council, in denying its application, had acted in an arbitrary, illegal and capricious manner and for reasons unrelated to the public health, safety and welfare.Aspen, understandably, attempted to introduce into evidence in the lower court, the zoning decisions rendered by the District Council some two months after the decision on their application, which subsequent decisions granted C-1 zoning to approximately 10 acres of the nearby Faller tract.Judge Mathias, however, granted the appellee's motion to strike the evidence relating to the Faller decisions, and on the merits of the case held:

'The law is clear that municipalities have the right to determine whether the public interest demands the exercise of the zoning power.* * *

'Therefore, the issue which the Court must decide is whether or not the District Council acted arbitrarily and capriciously and without supporting evidence in reaching its conclusion that there was no public need for the requested rezoning.* *

'It would appear from the record before us that the applicant adduced no affirmative evidence to show a public need; on the other hand, the record discloses that there was what we regard as substantial evidence to support a finding that there was no public need.'

On this basis, the decision of the District Council was affirmed, and Aspen now appeals.

The appellant raises several questions on appeal; however the issues as we view them are: (1) was the decision of the District Council in refusing to rezone the subject property without substantial relation to the public welfare, and (2) was the legislative action of the District Council in refusing to grant the requested rezoning based on its administrative finding that there was no need for additional commercial facilities in Aspen Hill Planning Area arbitrary and capricious in light of its subsequent decisions in rezoning applications for the Faller tract.We will discuss these issues in the order stated.

However, before discussing these issues, we think it helpful to bear in mind that the position taken by the District Council is based upon the principle of law recognized in this State that, even when substantial change in the character of the neighborhood is established by an applicant for rezoning, rezoning is not necessarily compelled.SeeChapman v. Montgomery County, 259 Md. 641, 647, 271 A.2d 156(1970);andFurnace Branch Land Co. v. Board of County Commissioners, 232 Md. 536, 539, 194 A.2d...