Prince George's County Council v. Prestwick, Inc.

• Decision Date: 19 October 1971
• Docket Number: No. 12,12
• Citation: 263 Md. 217,282 A.2d 491
• Parties: PRINCE GEORGE'S COUNTY COUNCIL et al. v. PRESTWICK, INC.
• Court: Maryland Court of Appeals

Page 217

263 Md. 217

282 A.2d 491

PRINCE GEORGE'S COUNTY COUNCIL et al. v. PRESTWICK, INC.

No. 12.

Court of Appeals of Maryland.

Oct. 19, 1971.

Barry S. Cramp, Associate County Atty. (Walter H. Maloney, Jr., County Atty., and Jes J. Smith, Associate County Atty., Upper Marlboro, on the brief), for Prince George's County Council.

James F. Vance, Oxon Hill (Donald B. W. Messenger, Beltsville, on the brief), for Richard H. Ichord and others.

Blair H. Smith, Mt. Rainier (Smith, Finley, Gray & Ahalt, Mt. Rainier, on the brief), and Russell W. Shipley, Hillcrest Heights (Kahler, Shipley & O'Malley, Hillcrest Heights, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

FINAN, Judge.

This appeal is taken from an order of the Circuit Court for Prince George's County which reversed a decision of the District Council denying the appellee's application for a zoning map amendment from R-R (Rural-Residential) to R-10 (multi-family high density residential) of the subject property. The appellants are the County Council for Prince George's County as well as certain residents and property owners in the neighborhood who oppose the change in zoning.

The original comprehensive zoning of the area, of which the subject property is a part, was accomplished in 1957. There has been no comprehensive rezoning since that date.

The appellee, Prestwick, Inc., filed an application for the rezoning of the property on July 1, 1966. Previously, an attempt to rezone the same property to R-H (multiple family high rise residential) had met with defeat in this Court in the case of MacDonald v. Board of County Subsequent to the MadDonald case in May of 1965, the Planning Commission made a study of a large area of Prince George's County and a master plan for the South Potomac Sector, in which this property lies, was adopted November 1, 1967. The master plan called for 1235 multi-family density units for the 26 acre tract. The District Council, however, deleted this multi-family zoning proposed by the Planning Commission, and this action became the subject of litigation which was resolved in favor of the County Council in Prestwick v. Bd. of County Com'rs, in the Circuit Court for Prince George's County, Equity No. D-3009, October, 1968.

Com'rs, 238 Md. 549, 210 A.2d 325 (1965). The property consists of 26.05 acres located on the north side of Tantallon Drive and on the south side of Swan Creek, in the 560 acre planned community known as Tantallon, Prince George's County. It is isolated from other residential areas by Swan Creek and a marina, the Tantallon Golf Course, and the 341 acres of Fort Washington National Park. Once a part of it, it is now completely surrounded by the Tantallon subdivision, characterized primarily as a single-home residential area. One of the witnesses, Congressman Richard H. Ichord, described its 'rural-aesthetic' ambience as, 'an area, a neighborhood of peace, of quiet, of seclusion, of beautiful wooded lots, safe streets with diversified recreational activities, consisting of the golf course, the marina and the tennis courts.'

When the Planning Commission was given the present application for R-10 zoning for its review, it recommended approval relying on the classification proposed for the area in the master plan in 1967 showing multi-family use. On September 19, 1969, the District Council of Prince George's County declined to follow the recommendations of the Technical Staff and Planning Commission and denied the application for the R-10 zoning. On appeal to the circuit court, it initially remanded the case to the District Council, for the sole purpose of considering 'any conditions which should be imposed on the R-10 The lower court held that there had been a mistake in the original comprehensive zoning of the property in 1957, that there had been substantial change in the character of the neighborhood and therefore the District Council erred in denying the requested R-10 rezoning. The appellee also urged that the R-10 zone was actually a floating zone but the lower court held that it was not. We agree with the lower court on this latter issue but reverse its holdings, regarding 'mistake and change,' for reasons which become evident in our discussion of the issues raised by this appeal.

zoning application * * * in the event that said application was granted.' A reconsideration was given by the District Council which imposed certain conditions on [282 A.2d 493] the application (which we do not find material to this appeal). The case returned to the circuit court and a hearing was held in December of 1970, with the resulting decision and order which reversed the District Council's denial of the application. Those opposing the granting of the rezoning have brought the present appeal.

ISSUE OF MISTAKE IN ORIGINAL ZONING

The appellee is most emphatic that we are not here presented with a reargument of the 1965 case of MacDonald v. Board of County Commissioners of Prince George's County, supra, however, if this case is not an instant replay of MacDonald, it is at least MacDonald revisited.

In the instant case the District Council, properly addressing itself to the application of the test of 'mistake or change' to the facts at hand and by a vote of 4 to 1 found neither mistake in the original zoning nor substantial change in the character of the neighborhood, either of which is necessary to support a rezoning amendment to an existing comprehensive plan. Messenger v. Board of County Commissioners, 259 Md. 693, 703, 271 A.2d 166 (1970), Chapman v. Montgomery County, 259 Md. 641, 645, 271 A.2d 156 (1970); Chevy Chase Village The record is not as replete as one might desire regarding evidence bearing on the issue of mistake in the comprehensive zoning, pershaps for the very logical reason that in the court below the appellee abandoned its contention that there had been a mistake in the original zoning. Nonetheless, the lower court deemed it incumbent upon it to make the issue of mistake an integral part of its opinion. It is likewise of interest to note that in MacDonald, supra, a case in which the same property was the subject of an attempt at rezoning from R-R to R-H, the applicants also failed to challenge the correctness of the original zoning of 1957. See MacDonald at 238 Md. p. 553, 210 A.2d 325.

v. Montgomery County, 258 Md. 27, 39, 264 A.2d 861 (1970); Montgomery v. Board of County Com'rs, 256 Md. 597, 601, 261 A.2d 447 (1970); Wells v. Pierpont, 253 Md. 554, 557, 253 A.2d 749 (1969).

The lower court in the present case, summarizing its conclusions, characterized the original zoning of the property as it appears on the 1957 comprehensive map as:

'(N)ot the result of a plan, study or the application of any attention or expertise to the property or its immediate area. It was a pragmatic solution to a pressing problem. The action of the Council in directing deletion of the high density zone from this property from a plan which was made after careful study, public hearings and the application of qualified, objective expertise was a mistake and was arbitrary and capricious as a matter of law when unsupported by a valid reason.'

It must be immediately noted that the lower court was in error in its implication or statement that the District Council had directed the deletion of a high density classification for this property from the original comprehensive zoning map of 1957. The deletion which the District Council made of the proposed high density zoning for this property was from the master plan for the South Potomac However, out of fairness, we must comment that the lower court elsewhere in its opinion did refer, by indirection, to the 1957 comprehensive zoning map and noted that upon the enactment of Chapter 698 of the Laws of 1957, whereby the subject property and thousands of other acres came under the jurisdiction of the Maryland National Capital Park and Planning Commission, it became necessary to establish a comprehensive zoning plan between the date of the enactment of Chapter 698 on April 10, 1957, and its effective date of June 1, 1957. The court further stated:

Sector, which was proposed in November of 1965 and adopted on November 1, 1967. In fact, the action of the District Council in deleting this high density zone, contrary to the recommendations of the Planning Commission, was the [282 A.2d 494] subject of the equity suit in 1968, Prestwick v. Board of County Commissioners, previously mentioned. It is revelant to note that it is within the discretionary powers of the District Council to disapprove any master plan submitted by the National Park and Planning Commission. Section 59-68(e), Code of Public Local Laws of Prince George's County, 1963 Ed. (1967 Supp.) This Court has on other occasions emphasized the need of not confusing a master plan proposed or adopted for a certain area with that of a comprehensive zoning plan, as the lower court has done in this instance. Chapman v. Montgomery Council, supra, 259 Md. at 644, 271 A.2d 156; and Board of County Com'rs for Prince George's County v. Edmonds, 240 Md. 680, 684, 215 A.2d 209 (1965).

'No comprehensive study or considered plan was possible. To meet this situation and to establish zoning control, the entire area was zoned R-R. Thus the original zoning was not the result of study or planning applied to this specific property but was an expedient made necessary by limitations inherent in a situation created by the explosive growth of this entire Washington Suburban area.'

However, in point of fact, the comprehensive zoning for the subject property was not adopted until November 20, 1957, some 7 months after the passage of Chapter 698 and it is significant that the applicable law at that time required a public hearing to be held before the adoption of a comprehensive zoning plan. (Chapter 992 of the Laws of 1943). There is little in the record which would support the...