Montgomery v. Board of County Com'rs for Prince George's County

• Decision Date: 04 February 1970
• Docket Number: No. 206,206
• Court: Maryland Court of Appeals
• Parties: John A. MONTGOMERY et al., v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.

Page 597

256 Md. 597

261 A.2d 447

John A. MONTGOMERY et al., v. BOARD OF COUNTY COMMISSIONERS FOR PRINCE GEORGE'S COUNTY et al.

No. 206.

Court of Appeals of Maryland.

Feb. 4, 1970.

James F. Vance, Oxon Hill and William J. Avrutis, Takoma Park, for appellants.

James J. Lombardi, Upper Marlboro (Lionell M. Lockhart, Harry L. Durity, Martin Hertz, Albert J. Lochte, Barry S. Cramp and Emil A. Nichols, Upper Marlboro, James F. Sharkey, Hyattsville, on the brief) for appellee Board of County Commissioners.

Paul M. Nussbaum, Mt. Rainier (Herbert W. Reichelt and Reichelt, Nussbaum & Brown, Mt. Rainier, on the brief) for appellees Samuel E. Hungerford, and others.

Before HAMMOND, C. J., and BARNES, FINAN, SMITH and DIGGES, JJ.

BARNES, Judge.

The appeal in this zoning case involves the rezoning of approximately 2.2 acres of land owned by Samuel E. Hungerford, Holden A. Hungerford and Samuel E. Hungerford, Jr., three of the appellees (owners or applicants) by the Board of County Commissioners for Prince George's County, sitting as a District Council (District Council), the remaning appellee, from the R-R (rural-residential) zone to the C-2 (general commercial) zone and the C-0 (commercial office building) zone. The subject property is an irregularly shaped parcel of land located on the west side of Oxon Hill Road approximately 200 feet south of Arthur Drive and approximately 700 feet north of Notley Road in Prince George's County. Rezoning to the C-2 zone was recommended to the District Council by both the Technical Staff and by the Prince George's County Planning Board (Planning Board). The appellants, John A. Montgomery, et al. are nearby property owners who protested the granting of the rezoning. The Circuit Court for Prince george's County (Bowie, J.) declined to grant the motion of the protestants to remand the case to the District Council in order to make written findings of fact and conclusion, and, on June 25, 1969, finding that a fairly debatable issue existed before the District Council, affirmed the action of the District Council. The protestants perfected a timely appeal from the Circuit Court's decision of June 25, 1969.

For about 23 years approximately one-half acre of the subject property was the site of a non-conforming gasoline station, garage and machine shop. The applicants also maintain on the one-half acre portion of the subject property and automobile parts jobbing business, the parts being stored in an adjoining shed, in a former cattle van truck and in the basement of the home of one of the applicants.

In the Technical Staff Report of January 16, 1968, in regard to the subject property, the Summary of Reasons for the recommended approval of the rezoning from the R-R zone to the C-2 zone was as follows:

'1. The C-2 Zone for the subject parcel is in conformance with the proposals of the Plan for the South Potomac Sector, adopted November 1, 1967.

'2. The subject parcel is located on a proposed arterial highway which, when completed, should diminish any traffic problems which might exist as a result of the present non-conforming commercial usage on the parcel.

'3. In order to achieve orderly and harmonious growth in the South Potomac Sector, the adopted Plan is being used by the staff as the criterion for zoning recommendations in the area.'

The results of the field inspection by the Technical Staff were as follows:

'The subject property is occupied by a Sinclair service station, a single-family dwelling, a barn, a shed, several used cars, old tires and assorted junk. Abutting land to the north is cleared and occupied by the Wisor Plumbing and Heating Corporation. East of the subject parcel across Oxon Hill Road, the land is vacant and wooded. Abutting the subject parcel to the south is a large single-family residence followed by a cleared area containing three stumps and a few oak trees.

'Southwest and west of the subject parcel, the land is cleared and bordered on the west by trees and on the south by single-family dwellings.

'Single-family dwellings of the J. O. Davis Subdivision are located northwest of the subject parcel. The character of the area is single-family residential except for the commercial usage on the subject property to the north.'

The Planning Board, on February 14, 1968, unanimously adopted a resolution recommending the rezoning to the C-2 zone for the identical three reasons given by the Technical Staff Report of January 16, 1968, supra.

After a substantial hearing, the District Council on December 6, 1968, ordered that the C-2 zoning be approved for '71,498 square feet (being that portion of the property described as acreage not including Lot 6 of the J. O. Davis Subdivision), with 6,474 square feet having been withheld to provide for an 80-foot right-of-way for Oxon Hill Road'; and that C-0 zoning be approved for '23,168 square feet (being that portion of the property described as Lot 6 of the J. O. Davis Subdivision), with 1,661 square feet having been withheld to provide for an 80-foot right-of-way for Oxon Hill Road.'

The order then recited that in support of the motion made by Commissioner Brooke (the motion was seconded by Commissioner Francois and unanimously passed), Commissioner Brooke made the following statement which was adopted by the District Council:

'We feel that the part we are recommending for C-2 would be in accordance with the reasons given by the Park and Planning Commission, and it is recommended as part of the South Potomac Sector Plan; but in deleting Lot 6 from the C-2 and suggesting this be C-0, we feel this would be a step-down and a buffer that would offer the residential subdivision which abuts this property the necessary protection.'

It will be observed that there were no findings of fact or conclusions in regard to any mistake in original zoning or changes in the neighborhood which changed its character in the report of the Technical Staff, the recommendation of the Planning Commission or the order of the District Council.

The substantial testimony before the District Council involved evidence given by expert witnesses for the applicants, various letters and oral testimony of property owners in the neighborhood opposing the proposed rezoning, and of letters and oral testimony of nearby property owners and improvement associations opposing the proposed rezoning. Because of the necessity to remand the case for written findings of basic facts and written conclusions by the District Council, we need not set forth in detail the nature and scope of the testimony before the District Council. It suffices to state that the applicants contend that the testimony indicates that there are 17 changes in the character of their 'neighborhood' as they would define it geographically while the protestants contend that there are no changes in the character of the 'neighborhood' as they define it.

The applicable statutory law in Prince...