Mayor and Council of Rockville v. Rylyns Enterprises, Inc., 43

CourtCourt of Appeals of Maryland
Citation372 Md. 514,814 A.2d 469
Docket NumberNo. 43,43
Decision Date31 December 2002

Paul T. Glasgow (Kristin M. Koger of Venable, Baetjer and Howard, LLP, on brief; David D. Freishtat, Cara A. Frye of Shulman, Rogers, Gandal, Pordy & Ecker, P.A., on brief), Rockville, for Petitioners.

Frederick C. Sussman, Council, Baradel, Kosmerl & Nolan, P.A., Annapolis, brief and appendix of Amicus Curiae Maryland Municipal League, Inc. filed on behalf of Petitioners.

Charles W. Thompson, Jr., County Atty., Karen F. Henry, Assoc. County Atty., Rockville, Linda M. Schuett, County Atty., Annapolis, Roger L. Fink, County Atty., LaPlata, Sean D. Wallace, County Atty., Steven M. Gilbert, Principal Counsel, Upper Marlboro, Kimberly Millender, County Atty., Timothy C. Burke, Asst. County Atty., Westminster, John S. Mathias, County Atty., Frederick, brief for Amici Curiae, Anne Arundel County, Carroll County, Charles County, Frederick County, Montgomery County, and Prince George's County filed on behalf of Petitioners.

Stephen J. Orens (Helen "Lynn" Primo of DuFour & Kohlhoss, Chtd., on brief), Bethesda, for Respondent.

Adrian R. Gardner, General Counsel, Michele M. Rosenfeld, Debra Yerg Daniel, Assoc. General Counsel, brief for Amicus Curiae, The Maryland-National Capital Park and Planning Comm. filed on behalf of Respondent.


According to Respondent, Rylyns Enterprises, Inc. (Rylyns), this case presents an unusual situation where a land use restriction demanded by Montgomery County, Maryland, during municipal annexation proceedings by the City of Rockville required the City to impose improper "conditional zoning" on the annexed property. The Court of Special Appeals, in an unreported opinion, held that the municipality's imposition, at the insistence of the County, of a condition limiting the use of the newly annexed property more restrictively than allowed by the City zoning ordinance for the zoning district in which the property was placed was tantamount to improper conditional zoning. The intermediate appellate court also held that the zoning reclassification, in light of the limitation, constituted illegal "spot zoning." We shall affirm that judgment based on the Court's holding as to impermissible conditional zoning, although we shall employ somewhat different reasoning.


The material facts of this case are not in dispute. They must be considered against the backdrop of Maryland Code (1957, 1998 Repl.Vol.), Article 23A, § 9(c), which restricts the zoning classification into which a municipality may place newly annexed property for a period of five years following annexation unless permission is obtained first from the pre-annexation county. That restriction provides, in pertinent part:

(1) ... no municipality annexing land may for a period of five years following annexation, place that land in a zoning classification which permits a land use substantially different from the use for the land specified in the current and duly adopted master plan or plans or if there is no adopted or approved master plan, the adopted or approved general plan or plans of the county or agency having planning and zoning jurisdiction over the land prior to its annexation without the express approval of the board of the county commissioners or county council of the county in which the municipality is located.
(2) If the county expressly approves, the municipality, without regard to the provisions of Article 66B, § 4.05(a) of the Code, may place the annexed land in a zoning classification that permits a land use substantially different from the use for the land specified in the current and duly adopted master plan or general plan of the county or agency having planning and zoning jurisdiction over the land prior to its annexation.

On 14 May 1997, Louis Fanaroff, Stanford Steppa, and Elaine Steppa (the "Owners"), owners of the subject property located in Montgomery County abutting the City of Rockville and situated in the northwest quadrant of the intersection of Gude Drive and Southlawn Lane, filed a Petition for Annexation (the Petition) of the property into the City. At the time the Petition was filed, the subject property was zoned I-2 (Heavy Industrial) as defined in the Montgomery County Zoning Ordinance. I-2 was the zone recommended for the property in the County's approved and adopted Upper Rock Creek Master Plan (the "County Master Plan"). The Petition requested that, upon annexation, the property be rezoned to the City's I-1 (Service Industrial) zone, consistent with the zoning of adjacent properties located within the City's boundaries. The Owners intended to erect and operate a gasoline service station on the subject property, a use allowed under the City's I-1 zone with the grant of a special exception. The County's I-2 zone did not allow a gasoline service station under any circumstances.

At a public hearing concerning the proposed annexation and rezoning, held on 17 December 1997 by the Mayor and Council of Rockville, Richard Durishin, the controlling owner of Rylyns, testified against the proposed rezoning. Mr. Durishin claimed to oppose the proposed I-1 rezoning because the loss of the I-2 classification of the subject property would reduce the "scarce stock" of I-2 zoned property in Montgomery County, a concern also expressed later by some County authorities. Mr. Durishin acknowledged that he was the operator of a gasoline filling station located across Gude Drive from the subject property.

On the day following the City's hearing, the City's Planning Staff issued a final report recommending annexation of the subject property and its placement in the City's I-1 zone. The report pointed out that the City's 1993 Master Plan recommended that the property (should it be annexed) be placed in the City's I-1 zone and that the surrounding properties within the City also were zoned I-1.

On 15 January 1998, the Montgomery County Planning Board considered the proposed rezoning of the subject property. It noted significant differences between the County's I-2 zone and the City's I-1 zone. Among other concerns, the Board fretted that a change in zoning might trigger the need to improve the intersection of Southlawn Lane and Gude Drive.

The County Council's Planning, Housing and Economic Development Committee, on 13 July 1998, recommended, by a vote of 3-0, that the full County Council disapprove the request to rezone the subject property. In a memorandum, dated 18 July 1998, to the County Council, the County Planning Board indicated, based on its review of the proposed annexation and rezoning of the property, that the proposed use of the subject property for a gasoline station was not an appropriate use for the property, as it was not allowed under the County's I-2 zone. Upon consideration of these recommendations, the County Council, on 28 July 1998, adopted Resolution No. 13-1384 disapproving the request of the Owners and the City to rezone the property to the City's I-1 zone.

Seven months later, in a 8 February 1999 memorandum to the County Council, its Planning, Housing and Economic Development Committee announced that, at the request of a County Council member, it had re-examined the Owners' petition for annexation and rezoning and concluded that it would support the rezoning of the subject property from the County's I-2 zone to the City's I-1 zone, "provided the City restrict the retail use of the site...." On 23 February 1999, the County Council adopted Resolution No. 14-57 approving the City's proposal to rezone the property on condition that "the City prohibits the retail use of the site, except for a gasoline service station."1

On 20 July 1999, the Mayor and Council of Rockville entered into a written annexation agreement with the Owners regarding the subject property. The agreement, among other things, provided that the property could not be used for any retail purpose, other than a gasoline service station. There was no mention in the agreement of the requirement in the City Zoning ordinance that a special exception was required in the City's I-1 zone in order to operate a gasoline service station. The Mayor and Council adopted Annexation Resolution No. 13-99 on 26 July 1999, enlarging and extending the boundaries of the City of Rockville by annexing the subject property.

A week later, the Mayor and Council adopted Zoning Ordinance No. 10-99, placing the property in the City's I-1 zoning classification. Zoning Ordinance No. 10-99 specifically stated that "the Mayor and Council of Rockville, having fully considered the matter, has determined to place the annexed property in the City's I-1 zone, under certain conditions to be set forth in an annexation agreement, so as to promote the health, security, and general welfare of the community of the City of Rockville." The annexation of the property and its placement in the City's I-1 zone became effective on 9 September 1999.

Upset with this result, Rylyns filed a petition with the Circuit Court for Montgomery County seeking judicial review of City Zoning Ordinance No. 10-99. No direct judicial review of Annexation Resolution No. 13-99 was sought. On 17 March 2000, the Circuit Court reversed Rockville's adoption of Zoning Ordinance 10-99, holding that the manner in which the subject property was rezoned constituted improper conditional and spot zoning, and remanded the case to the Mayor and Council. The Mayor and Council, and the Owners, appealed to the Court of Special Appeals, which affirmed the judgment of the Circuit Court. The Mayor and Council of Rockville and the Owners petitioned this Court for a writ of certiorari, which, on 22 June 2001, we granted. Rockville v. Rylyns, 364 Md. 534, 774 A.2d 408 (2001).


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