Montgomery County v. Woodward & Lothrop, Inc.

• Decision Date: 15 July 1977
• Docket Number: No. 104,104
• Citation: 376 A.2d 483,280 Md. 686
• Parties: MONTGOMERY COUNTY, Maryland, et al. v. WOODWARD & LOTHROP, INC., et al.
• Court: Maryland Court of Appeals

Page 686

280 Md. 686

376 A.2d 483

MONTGOMERY COUNTY, Maryland, et al. v. WOODWARD & LOTHROP, INC., et al.

No. 104.

Court of Appeals of Maryland.

July 15, 1977.

Richard E. Frederick, Asst. County Atty., Rockville (Richard S. McKernon, County Atty., Rockville, on the brief), for Montgomery County, Maryland.

Roger W. Titus, Rockville, for Citizens Coordinating Committee on Friendship Heights, Inc. et al.

William S. Green, Washington, D.C. (Pierson, Ball & Dowd and Richard M. Singer, Washington, D.C., on the brief), for Sp. Taxing Dist. of Friendship Heights and the Hills and the Friendship Heights Village Council.

Norman M. Glasgow, Washington, D.C. (John F. McCabe, Jr., Washington, D.C., on the brief), for Morton Funger et al.

Stephen Z. Kaufman, Silver Spring (Joseph P. Blocher, Silver Spring, on the brief), for Sidney S. Zlotnick et al., Homer S. Gudelsky, Trustee and The Marina Apartments, Inc.

David N. Webster, Washington, D.C. (Paul R. Connolly, Washington, D.C., on the brief), for Milton A. Barlow et al.

Howard J. Thomas, Silver Spring, Charles R. Donnenfeld, Arent, Fox, Kintner, Plotkin & Kahn, Washington, D.C., on brief, for Woodward & Lothrop, Inc. et al.

George H. Beuchert, Jr., Washington, D.C., on brief, for The Chevy Chase Land Co. of Montgomery County, Md.

William M. Canby, Rockville, on brief, for Gevco Company, Inc. et al.

Prince George's County, Maryland by James C. Chapin, County Atty., Michael O. Connaughton, Deputy County Atty., and Steven M. Gilbert, Assoc. County Atty., Upper Marlboro, on the brief, for amicus curiae.

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

MURPHY, Chief Judge.

These appeals draw into question the validity of a rezoning by sectional map amendment of all properties within the Central Business District of Friendship Heights, Montgomery County, Maryland.

The Regional District Act, Maryland Code (1957, 1976 Cum.Supp.) Art. 66D, § 8-101(b) grants zoning power to the Montgomery County Council, sitting as a District Council (the Council) for that portion of the Maryland-Washington Regional District lying within the county, to regulate by ordinance, inter alia (1) the location, height, bulk, and size of buildings, (2) the size of lots and other open spaces, (3) the density and distribution of population, and (4) the location and uses of buildings and land. ¹ In the exercise of this power, the Council is authorized to divide the Regional District within the county "into districts and zones of whatever number, shape or area it may determine." Art. 66D, § 8-102. The zoning powers vested in the Council have been implemented by enactment of the Montgomery County zoning ordinance (the zoning ordinance), Montgomery County Code (1972), ch. 59, §§ 59-1 through 59-209. In addition to the text provisions of the zoning ordinance, the adopted zoning map for that portion of the Regional District located in Montgomery County is expressly made a part of the ordinance by § 59-33. Section 59-205 authorizes amendments to the text of the zoning ordinance. Section 59-195 authorizes amendments to the zoning map; it provides that an application for amendment of the zoning map may be in the form of:

"(a) A local (piecemeal) amendment covering a single tract, all portions of which are proposed to be classified in the same zone; or all portions of which are proposed to be classified in one of two alternative zones.

"(b) A sectional plan amendment covering a section of the Maryland-Washington Regional District, portions of which may be proposed to be classified in different zones.

"(c) A district plan amendment covering the entire Maryland-Washington Regional District within the county."

Section 59-196 provides that proposals for a sectional or district plan map amendment may be made only by the Maryland-National Capital Park and Planning Commission (the Planning Commission) or by the Council.

(1)

The Central Business District (CBD) of Friendship Heights is one of five such districts in Montgomery County authorized by § 59-50(b)(1) of the Montgomery County Code (1972). It encompasses the entire political subdivision known as the Special Taxing Districts of Friendship Heights and The Hills. ² Located on the boundary line between the county and the District of Columbia, it is bordered by Wisconsin and Western Avenues and lies generally north of the District of Columbia, west of the Village of Chevy Chase, and south of the Town of Somerset. The Friendship Heights CBD is compact and intensely developed; within its borders is a mixture of residential, office, and commercial development consisting of a number of high-rise, high-density apartment houses and hotels, office buildings, retail shopping centers, including several department stores, and some single family residences. It has been aptly described as an urban crossroad, a business center both local and regional in scope, with buildings of "Manhattan-like" proportions. It is a major transportation center in the county and a rapid rail (Metro) transit station is scheduled for construction at the intersection of Wisconsin and Western Avenues by late 1980. The Friendship Heights CBD is virtually surrounded by single family residential neighborhoods located immediately outside of its eastern, western and northern boundaries. Population in 1972 within the CBD was almost 3,000 persons. Prior to May 28, 1974, the Friendship Heights CBD was comprised of a land area totalling 62 acres. Existing zoning within the CBD at that time was primarily high density commercial, C-2 (General commercial), with some R-CBD (Multi-family, residential). No floor area ratio (FAR) limits were imposed by this zoning, which allowed a maximum height of 110 feet with provision for additional floors, upon compliance with certain conditions, up to 143 feet.

On May 28, 1974, the Council amended the text of § 59-50(b)(1) of the zoning ordinance by reducing the size of the Friendship Heights CBD to 37.51 acres and realigning its boundaries. Thereafter, on July 16, 1974, the Council adopted Resolution 7-1849 granting Sectional Map Amendment Application F-947 to the zoning ordinance, which implemented an adopted "Sector Plan" for the Friendship Heights CBD. The sectional map amendment rezoned a total of 41.01 acres of land, comprising all property within the revised CBD and a 3.50-acre parcel of land immediately outside its boundaries. It assigned new zoning classifications to all properties within the CBD which regulated the height, area and use of permissible development and thereby sharply reduced the densities and floor areas that could be built.

Ten aggrieved property owners whose properties had been downzoned by the sectional map amendment appealed to the Circuit Court for Montgomery County, as authorized by Maryland Code, Art. 66D, § 8-105. The issues being similar, the cases were consolidated for hearing and oral argument extended over a four-day period. On July 15, 1976, Judge H. Ralph Miller, in a thorough and studious memorandum opinion and order, reversed the Council's resolution granting the sectional map amendment on the ground that the procedural rights of the property owners to cross-examine witnesses at the sectional map amendment hearings before the Council, and to be afforded sufficient time to present evidence at those hearings, had been violated. Appeals were filed from this judgment to the Court of Special Appeals by Montgomery County, the Citizens Coordinating Committee of Friendship Heights, the Special Taxing Districts of Friendship Heights and The Hills, and the Friendship Heights Village Council, all parties to the proceedings below (hereinafter the appellants). The property owners (hereinafter the appellees) filed cross-appeals, contending that the lower court erred in concluding (1) that the sectional map amendment constituted comprehensive, rather than local or piecemeal, rezoning; (2) that the Council and the Planning Commission had acted within their statutory authority in adopting the Sector Plan for the Friendship Heights CBD upon which the sectional map amendment was based; and (3) that the sectional map amendment did not constitute either conditional zoning, a "confiscation" of property, or a violation of the uniformity requirements of the zoning ordinance. We granted certiorari prior to decision in the cases by the Court of Special Appeals. See Maryland Code (1974) Courts and Judicial Proceedings Article § 12-201.

(2)

The appeals have spawned a massive 12-volume record extract totalling almost 5,000 pages. Briefs filed by the parties collectively exceed 365 pages. A review of matters underlying adoption of the Sector Plan for the Friendship Heights CBD, upon which the sectional map amendment is based, is essential to a proper understanding of the issues raised by the parties.

Maryland Code, Art. 66D, § 7-108 authorizes the Planning Commission, with the approval of the Montgomery County Council, to adopt both a General Plan for the physical development of the Regional District and a local Master Plan for each planning area in the county. Pursuant to this authority, a General Plan was adopted on January 22, 1964 for Montgomery and Prince George's Counties entitled "On Wedges and Corridors." It called for high density urban development along major transportation corridors in Montgomery County and preservation of the areas between the corridors (the wedge area) for low density development, buffers, parks and recreational areas. It envisioned the creation of five central business districts in Montgomery County, one to be located in Friendship Heights the urbanized base of the northwest corridor in the county. The General Plan recognized that existing commercial zones were inadequate, particularly for complex business centers and it warned against too intensive development within urban areas. It noted that the presence or absence of utilities can determine where urban growth will occur and...