Norbeck Village Joint Venture v. Montgomery County Council, 270

CourtCourt of Appeals of Maryland
Citation254 A.2d 700,254 Md. 59
Docket NumberNo. 270,270
Decision Date03 June 1969

Norman M. Glasgow, Washington, D. C., (Whayne S. Quin and Wilkes & Artis, Washington, D. C., on the brief) for appellant.

Paul A. McGuckian and Philip J. Tierney, Asst. County Attys. (David L. Cahoon, County Atty. and Alfred H. Carter, Deputy County Atty., on the brief) for appellee.


HAMMOND, Chief Judge.

The appeal is from the action of Judge Pugh in affirming the reclassification of the appellants' land under a sectional map amendment of the Olney area (a comprehensive rezoning of almost 50 square miles), adopted by the Montgomery County Council, sitting as a district council, on the proposal of the Maryland-National Capital Park and Planning Commission (MNCPPC).

In 1966 all the members of the Montgomery County Council save one were denied reelection by the voters of the County. By its actions taken on November 9, 10 and 1 the lame-duck Council granted a great number of rezonings. The new Council moved to reconsider some 75 of these and appointed an ad hoc committee of County legal officers, other lawyers and zoning experts to recommend further procedures and proceedings. The ad hoc committee reported in part:

'In the rezoning decisions of November 9, 10 and 11, 1966, before the old District Council was halted by Court order, it rezoned approximately 2,000 acres of land. Virtually all of these rezonings were contrary to a master plan, either proposed, adopted, or approved. Some, such as those in the Olney area, were contrary to a Master Plan which the District Council itself had approved only a few months before. Most of the decisions were also contrary to the recommendations of the staff of the Planning Commission and the Montgomery County Planning Board, whereas, in the years prior to the time the Council took office in 1962, the District Council, year in and year out, followed the recommendation of the Montgomery County Planning Board in approximately 80% of the cases.

'These actions, and the manner in which they were made, have attracted widespread notoriety to the point that the trust and confidence of the public in the zoning and planning policies of the County have been seriously undermined.

'By letter dated November 22, 1966, the Department of Housing and Urban Development suspended federal grants for open space land and sewer and water facilities because of the rezoning decisions in question, characterizing them as major revisions of land use and contrary to the comprehensive plans of the County. A true copy of said letter is attached hereto and made a part hereof.

'In addition to the foregoing general considerations, the Committee in its review of the individual cases has found substantial reasons to reconsider some zoning applications as follows: the attorney for several applicants had suggested that it is in the pubic interest to have rehearings; in some instances, there were failures to incorporate in the record of the proceedings adopted or approved plans and rezonings in the immediate area; some opinions accompanying the rezoning reflect errors in fact, material contradictions of inconsistencies, or findings based upon insubstantial evidence.'

Included in the specified midnight rezonings moved to be reconsidered by the new Council was application E-928, a proposal by MNCPPC for sectional map amendment of the Olney region, filed on July 28, 1966, to implement a General Plan for the Maryland-Washington Regional District which the MNCPPC had adopted in early 1964, and a Master Plan approved by the District Council on August 31, 1966, both envisioning Olney as a satellite low density community ultimately to have 19,000 people at the core and 10,000 on the fringe. The Plans contemplated a green belt of open spaces and parks to shield the Olney area from the ever-lengthening and overcrowding suburban sprawl coming out of Washington, and changed the zoning designation of appellants's land, some 183 acres in the southeast quadrant along the east side of Georgia Avenue, from R-R (half acre lots) to R-A (two acre lots), as it did some 12,000 other acres. A public hearing was held on October 17, 1966 on E-928. Officials of MNCPPC and of the County Citizens Planning Association offered extensive testimony in support of the application and it also was supported by the technical staff of the Planning Commission and the Commission. The appellants presented several experts to refute the concepts of the Master Plan urging in essence that the prior policy of allowing all the small houses that the ever-increasing population of the County would buy or rent be allowed in the Olney area, which would lead to a population of some 200,000 despite the conceded inadequacy of sewerage and roads. The old Council rejected the Master Plan it had approved a few months earlier by denying application E-928.

The new Council, on December 6, 1966, extended until March 7, 1967, some three weeks after it had resolved to reconsider the various cases, the time for final action on its reconsideration of E-928. On December 29, 1966, the Planning Commission filed a comprehensive rezoning plan, application E-998, encompassing 49.5 square miles-some 30,000 acres, including those of appellants-to implement the Olney and vicinity Master Plan. By Resolution No. 6-221 of February 21, 1967, the Council allowed the withdrawal of E-928 without prejudice, having taken no action whatever on the merits of E-928. The appellants who had prevailed on E-928 before the old Council did not appeal from the action of the new Council in permitting its withdrawal.

The Planning Commission adopted the recommendation of its technical staff to the District Council that E-998 be approved. A public hearing was held on E-998 on April 21, 1967. MNCPPC's director, Hewins, testified in favor of the application as an implementation of the joint purposes of the Master Plan: the preservation of open spaces and the protection of the watershed area. He described the background of the Olney community plan as a result of the General Plan-Year 2000 Plan-which provided for the development of wedges and corridors throughout the county. Satellite corridors included plans for corridor cities such as Gaithersburg and Germantown with planned population in excess of 100,000. Olney as a self-identifiable community with its own hospital, schools, commercial area, and theater was qualified and selected as a satellite community. The Olney area was selected above other possible locations in the County for this development because of its georgraphical setting and natural amenties which encouraged the planned growth concept. No other area was found to possess the assets of the Olney community. Hewins further testified that this plan was in accordance with sound planning principles. According to Hewins, the plan promoted a land use pattern within which an integrated cultural-social-community service complex can develop around a 75-acre shopping district. Also, he said that the Plan's highway network provides convenient access to residents of the community and fits into the broader transportation needs of the region.

A purpose of the Plan was described as promoting the physical isolation of Olney from suburban sprawl. Low density residential zoning was recommended to break the development pattern from the suburbs. The proposed zoning in the plan is in accordance with existing development. It was stated that a serious deficiency of public services would exist if the Master Plan was not adopted. The plan was to accomplish a staged development using the tools of zoning and sewer access to avoid the excess costs of public services. A critical element of the Plan was to encourage earlier growth along the 70S corridor rather than on the Patuxent River Watershed thereby protecting the basin from pollution. Hewins did point out that cluster development of the R-A zone could be served by sewers, but the District Council reserved the power to approve these applications separately as a tool to guide growth within the desired limits.

Appellants presented several experts to challenge the credibility of the Master Plan. The appellants pointed to the need for R-R development of middle income housing and the natural development of the 'Georgia Avenue corridor.'

Appellants make three arguments: 1-the newly elected Council illegally nullified the decision of the previous Council on E-928, thereby denying appellants due process of law; 2-the granting of E-998 resulted in an unconstitutional taking of appellants' property by substitution zoning for eminent domain and depriving appellants of all reasonable use of their property; 3-the decision in E-998 was not in accordance with the public health,...

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