Montgomery County Council v. Leizman

• Decision Date: 25 April 1973
• Docket Number: No. 266,266
• Parties: MONTGOMERY COUNTY COUNCIL v. Theodore LEIZMAN et al.
• Court: Maryland Court of Appeals

Page 621

268 Md. 621

303 A.2d 374

MONTGOMERY COUNTY COUNCIL v. Theodore LEIZMAN et al.

No. 266.

Court of Appeals of Maryland.

April 25, 1973.

H. Christopher Malone, Asst. County Atty. (Richard S. McKernon, County Atty. and Alfred H. Carter, Deputy County Atty., Rockville, on the brief), for appellant.

Robert H. Metz, Silver Spring (R. Robert Linowes & Linowes & Blocher, Silver Spring, on the brief), for appellees.

Argued before MURPHY, C. J., and McWILLIAMS, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

We are confronted here with variations on a familiar theme. Malasky v. Montgomery County Council, 258 Md. 612, 267 A.2d 182 (1970); Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 254 A.2d 700 (1969); Scull v. Coleman, 251 Md. 6, 246 A.2d 223 (1968); Hunt v. Montgomery County, 248 Md. 403, 237 A.2d 35 (1968). It turns out, however, that there is really only one question to be resolved, i. e., whether the zoning application (No. F-657) filed by The Maryland-National Capital Park and Planning Commission (Commission) proposes a comprehensive rezoning bearing a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare. If there is such a relationship then the comprehensive rezoning, which was granted by the Montgomery County Council sitting as the District Council for the Maryland-Washington Regional District in Montgomery County (Council) enjoys a strong presumption of validity and correctness, Norbeck, supra, and the cases therein cited. The trial judge, Shure, J. (now C. J.), reversed, in respect of the appellees' property, the action of the Council; this is the Council's appeal. We shall hold to a minimum our recital of the factual background.

The appellees own two parcels of land ¹ in the southern quadrant of the intersection of Muncaster Mill Road and Redland Road in the Rock Creek Planning Area of Montgomery County. Parcel 26 contains 3.1 acres; Parcel 28, 0.2 acres. Both parcels were in the R-R (Rural Residential) classification when the appellees became the contract purchasers. The contract for Parcel 26 was dated 26 October 1965 subject, of course, to its reclassification to C-1 (Local Commercial) or C-2 (General Commercial). For convenience we shall call both parcels the property except when it is necessary to refer to one or the other separately.

On 29 November 1965 the appellees applied for the reclassification of Parcel 26 from R-R to C-1 of C-2. The technical staff of the Commission's Planning Board (Board) thought the application 'should await (the) adoption of the soon-to-be-published revised Master Plan.' It recommended denial of the application unless the appellees chose to withdraw their application. The Board (on 7 June 1966) agreed with the staff, recommending disapproval 'in the event the District Council' elected to take action thereon rather than defer action pending the adoption of the revised Master Plan. The application for the reclassification of Parcel 28 was filed in May 1966 but, so we were told by counsel, action thereon is still pending.

The Rock Creek Planning Area, about 18 square miles, is north of Rockville, south of Laytonsville, west of the Olney Planning Area and east of the Gaithersburg Planning Area. The General Plan for Montgomery and Prince George's counties adopted by the Commission in January 1964 suggested that the area now known as the Rock Creek Planning Area be devoted to the maintenance of open spaces and to 'low density' residential uses. Intense study of the area continued and by September 1966 the Preliminary Rock Creek Master Plan had been completed. The uses indicated for the land in the southern quadrant of Muncaster Mill Road and Redland Road (including Parcel 26 and Parcel 28) were a library, a post office, and uses permitted in R-R areas.

On 27 October 1966 the Commission held a public hearing on the proposed plan, beginning at 8:00 p. m. and ending at 1:30 a. m. Discussion was both lively and partisan. Then came Election Day, 8 November.

When the votes had been counted it became dismally apparent that six of the seven members of the Council had been given the old heave-ho. Within 48 hours the 'lame ducks,' it is said, held an unscheduled 'midnight' meeting to act on all pending zoning applications. Among those granted was the appellees' application to reclassify Parcel 26 from R-R to C-1.

A month or so later, on 14 December, the Commission adopted, unanimously, the Master Plan for the Rock Creek Planning Area. One of the Commission's 34 amendments thereto recommended the reclassification of Parcel 26 from R-R to R-T (Residential-Town Houses).

The (new) Council held a public hearing on 22 February 1967. Some 20 persons made statements during the four hour proceeding. The appellees did not attend, either in person or by attorney. In April the Council asked the Board for additional information and in the fall of 1967 it participated in 'work sessions' with the Board and the staff. In November 1967 the Council returned the plan to the Commission with a recommendation for amendments; the Commission and the Board adopted the Council's recommendation. On 13 December the Council held a public hearing on the Commission's application (No. E-1009) for a sectional map amendment designed to implement the recommendations of the proposed Master Plan.

Another hearing on Application E-1009 was held on 14 February 1968. Counsel for the appellees emphasized the reclassification of Parcel 26 to C-1 on 10 November 1966 by the 'midnight' Council. He complained that the granting of Application E-1009 would reclassify Parcel 26 from C-1 to R-T. Several days thereafter the Council asked the Board to provide more information in this regard. The Board responded at length. It said that its review of the Master Plan after the public hearing had led it to the conclusion that Parcel 26 should not be allowed to remain in the C-1 classification, mainly because a proposed community center about one-half mile to the west would be 'more centrally located in the area of high density' and because it would have better access to major highways. The Board said also that 'the 12.04 acres of land (Parcel 26 not included) proposed for convenience type commercial purposes at the Redland intersection was sufficient' and that leaving Parcel 26 in the C-1 classification 'would prejudice the single-family residential area directly north across Muncaster Mill Road.'

It seems reasonable to assume that during the succeeding months the Master Plan was the subject of continued discussion and study. On 28 December 1970 the Commission applied (Application F-657) for a sectional map amendment in respect of all of the 17.9 square miles within the boundaries of the Rock Creek Planning Area. The reclassification of nearly 9,000 acres not in conformance with the Plan was requested. The classification requested for parcels 26 and 28 was R-T; the same classification had been requested in E-1009. On 4 February 1971 the Board unanimously recommended to the Council the approval of F-657.

Counsel makes much of a letter, dated 11 February 1971, from the chairman of the Board to the president of the Council. At the public hearing on No. F-657 held by the Council on the same day, 11 February, the letter which is set forth below was read into the record:

'The Montgomery County Planning Board, at its regular meeting today, upon request of Mr. Robert Metz, reconsidered its action on February 4, 1971 in approving the Sectional Map Amendment F-657, as submitted. Mr. Metz pointed out to the Planning Board that Parcels 26 and 28, as identified in the sectional map amendment submission, should be deleted from reclassification to the R-T Zone. As the result of action by the prior Council on November 1, 1966, Parcel 26 was reclassified to the C-1 Zone. Subsequently the applicants filed for a record plat and obtained a building permit for the construction of a food store on Lot 12.

'Although the adopted plan recommends these parcels for the R-T classification, the fact that the property owner, based upon the rezoning process, proceeded in accordance with the regulations of the C-1 Zone and has ocmmitted himself to the development of that land, the Board recommends that Parcel 26, containing three (3) acres, and Parcel 28, containing 0.2 acre, both of which were recommended to be reclassified to the R-T Zone, be deleted from the application and be allowed to remain in their existing zoning classification. This alteration to our prior recommendation, upon the recommendation of the technical staff, was passed by a unanimous vote with all four members being present.

'With the exception of this change, our prior recommendation of adoption of the sectional map amendment remains in effect.'

At the conclusion of the hearing the president of the Council announced that the record would remain open until 18 February. On 14 February there was placed in the record a letter from James G. Early on behalf of several neighboring communities. His letter is as follows:

'I had not planned to add to my testimony and submitted statement of February 11, 1971, but after listening to the discussion by several speakers concerning parcel 26, I felt I should include in the record this supplemental statement. There are several points which I was unable to develop on the 11th which I think are relevant to parcel 26 which we feel very strongly should be placed in the R-T zone . . ..

'2) Our communities were advised in 1969, when E-1009 was again brought before the Council, that the developers had a signed contract with Safeway for the food store. At that time, a foundation permit, not the usual building permit, was issued which would allow the foundation of one store to be started. To this date, construction has not been initiated. Further, this foundation permit was issued to the developer with the understanding that a full building permit might not be...