Offen v. County Council for Prince George's County, Md. Sitting as Dist. Council

• Decision Date: 01 September 1992
• Docket Number: No. 1445,1445
• Citation: 625 A.2d 424,96 Md.App. 526
• Parties: J. Allan OFFEN v. COUNTY COUNCIL FOR PRINCE GEORGE'S COUNTY, MARYLAND SITTING AS THE DISTRICT COUNCIL. ,
• Court: Court of Special Appeals of Maryland

Page 526

96 Md.App. 526

625 A.2d 424

J. Allan OFFEN v. COUNTY COUNCIL FOR PRINCE GEORGE'S COUNTY, MARYLAND SITTING AS THE DISTRICT COUNCIL.

No. 1445, Sept. Term, 1992.

Court of Special Appeals of Maryland.

May 3, 1993.

Reconsideration Denied June 29, 1993.

Russell W. Shipley (Arthur J. Horne, Jr. and Meyers, Billingsley, Shipley, Rodbell & Rosenbaum, P.A., on the brief), Riverdale, for appellant.

Joyce Birkel Nichols, Upper Marlboro, for appellee.

Argued before ALPERT, FISCHER and CATHELL, JJ.

CATHELL, Judge.

Appellant, J. Allan Offen, appeals from the decision of the Circuit Court for Prince George's County (1) affirming the comprehensive rezoning plan approved by the County Council for Prince George's County sitting as the District Council, appellee; and (2) finding that the actions of the County prior to the adoption of the comprehensive rezoning in denying a sewer upgrade permit and other actions of the County in respect to appellant's commercially-zoned property, pending rezoning, were not illegal, arbitrary or capricious; and (3) finding that no vested rights in the prior zoning exists. Offen presents two questions, which we rephrase as follows:

1. Whether the actions of the administrative and legislative officials constituted a regulatory "taking" for which appellant is entitled to compensation.

2. Whether a zoning estoppel was created by the actions of administrative officials of Prince George's County that delayed appellant's ability to procure building permits and begin construction and thus create a vested interest in the prior zoning.

The Facts

Appellant acquired the subject property ¹ in 1969 and promptly had the property rezoned to commercial in 1970. A fair interpretation of the somewhat confusing contradictory factual statements of the parties indicates that the planning staff of the County ² objected to this initial rezoning but was overruled by the District Council. This rezoning was granted upon the condition that prior to any development the property and its site plan had to be reviewed by the District Council for final approval. At that point, appellant's first serious problem began. The Washington Suburban Sanitary Commission (WSSC), due to sewage treatment capacity problems, declared a moratorium on development affecting most of Prince George's County that lasted for almost ten years.

When the moratorium was removed, appellant began the process of development by formulating various plans, which ultimately coalesced into plans for a commercial medical campus. Informal representations were made to county officials. Some of the officials publicly, but informally, commented favorably as to the conceptual use of the subject property. Thereafter, appellant undertook the normal preliminary process of planning for the development, i.e., architectural and land planning, engineering, legal preparation, marketability control, etc. Plans designed to meet the conditions attached to the 1969/70 rezoning were then formally transmitted to the Council in 1988.

Just prior to submitting his plans in 1988, appellant requested, by application to the County's Department of Environmental Services, that the County upgrade the sewer status of his property from category four to category three. For the purpose of our resolution of the issues, we assume that category three, if obtained, would have enabled appellant to apply for the required permits that would have given him the right to commence construction and perhaps vest an interest in his then existing commercial zoning. Rather than upgrade appellant's sewer status to category three, or leave it in category four, the County downgraded it to category six. Appellant argues, without challenge by appellee, that this was the first time in the history of the categorizing of sewer classifications that sewer availability was downgraded upon an upgrade request.

Appellant immediately filed suit in state court for a writ of mandamus to require the County to issue a category three designation. Three days before the mandamus hearing, the County requested removal of this manifestly state action to federal court. Upon a motion to remand, which was not opposed by the County, the federal court sometime thereafter remanded the case to the state court. Finally, on the 22nd of August 1991, the Circuit Court for Prince George's County opined:

Plaintiffs met the criteria established ... for the approval of Service Area Redesignation Requests. Therefore the denial [of the 1988 request] did not fall within the County's discretion and was arbitrary and capricious....

....

... Most significantly, Plaintiffs' property was zoned C-O ... and C-2 ... to allow Plaintiffs' proposed development. Additionally, Plaintiffs' proposed use meets the further stipulations of the 1970 Bowie Master Plan....

In the same opinion, the trial court ordered that the County "shall redesignate Plaintiff's Property from Water and Sewer Service Area Six to Service Area Three." The order related back to the County's arbitrary actions in denying the 1988 request and was an immediate order. In complete disregard of the order, the County took the cavalier attitude that, rather than obey or appeal the court order, it would wait until the next scheduled round of sewer reclassifications to reconsider appellant's sewer upgrade request. During all of these events, the County's planning staff was energetically working on the comprehensive master plan and new sectional map amendment (SMA) for the area that included appellant's property. The staff recommended, as it had in 1970 and in 1975, that the property be put into a residential classification.

The County, of course, was aware of the fact that by the time the next scheduled regulatory sewer and water designation review occurred, it was probable that a proposed SMA would be adopted by the Council and thus freeze any application to develop under the then existing sectional map. ³ When the County finally moved the property into sewer category three, the SMA had been adopted. Thus, the property became subject to the comprehensive rezoning to residential use prohibiting commercial development.

Throughout the period of the mandamus litigation, appellant continued his attempt to obtain site plan approval pursuant to the 1969/70 rezoning conditions. During this process, the planning board staff recommended denial of the site plan because of comments regarding transportation contained in a recently adopted Master Plan of an area encompassing the subject property. The Planning Board denied the site plan approval based upon the new proposed SMA, stating in part:

The Master Plan also proposes residential land use for this property ... the new Sectional Map Amendment will be adopted in early Fall 1991.

....

The Detailed Site Plan is in conformance with the applicable conditions of the previously approved Detailed Site Plan ... the previously-approved Conceptual Site Plan ... and the previously-approved Master Plan.... [It] is not in conformance with the most current Master Plan....

Even when a new master plan is adopted, until, and if, comprehensive rezoning pursuant to it occurs, the original zoning controls the uses of the subject property. The transmittal of a SMA to the enacting authority during the rezoning process may freeze applications pending its adoption. It appears that at this point the SMA had not been transmitted in the case sub judice.

As we have stated, by the time category three was granted to appellant in October of 1991, the SMA had been adopted.

Comprehensive Rezoning

It is well established, and neither party contests, that the SMA was a comprehensive rezoning, and thus it is entitled to the same presumption of validity as original zoning. Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59, 66, 254 A.2d 700 (1969). In Norbeck, the Court of Appeals stated:

The broad test of the validity of a comprehensive rezoning is whether it bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare, and such zoning enjoys a strong presumption of validity and correctness. A property owner has no vested right to the continuance of the zoning status of his or neighboring property, merely the right to rely on the rule that a change will not be made unless it is required for the public good....

.... For an individual property owner to escape the binding impact of a comprehensive rezoning he must show that the plan lacks the necessary relationship to the general public interest and welfare that is presumed or that the effect of the plan is to deprive him of any reasonable use of his property.

254 Md. at 66-67, 254 A.2d 700 (citations omitted). See also Howard County v. Dorsey, 292 Md. 351, 363, 438 A.2d 1339 (1982) ("Comprehensive zoning or rezoning must be well thought out, the product of careful consideration and extensive study, and based upon considerations concerning the common needs of a particular area."); Montgomery County v. Woodward & Lothrop, Inc., 280 Md. 686, 706, 376 A.2d 483 (1977), cert. denied, 434 U.S. 1067, 98 S.Ct. 1245, 55 L.Ed.2d 769 (1978) ("[T]he rezoning was comprehensive and bore a substantial relationship to the public health, comfort, safety ... [A]s such it enjoys a strong presumption of validity."); JMC Constr. Corp. v. Montgomery County, 54 Md.App. 1, 17, 456 A.2d 931 (1983); Montgomery County v. Horman, 46 Md.App. 491, 495, 418 A.2d 1249 (1980) ("Zoning decisions ... made during a comprehensive rezoning ... are strongly presumed to be correct. The reason ... is that ... the County Council is not considering individual properties ... it is considering the overall needs ... of the County....") (citations omitted); Stump v. Grand Lodge of Ancient, Free & Accepted Masons, 45 Md.App. 263, 269, 412 A.2d 1305 (1980) ("Zoning decisions which are made during a comprehensive rezoning process are strongly presumed to be correct.... [D]...