Randolph Hills, Inc. v. Montgomery County Council, 136

• Decision Date: 11 January 1972
• Docket Number: No. 136,136
• Citation: 285 A.2d 620,264 Md. 78
• Parties: RANDOLPH HILLS, INC. v. MONTGOMERY COUNTY COUNCIL.
• Court: Maryland Court of Appeals

Page 78

264 Md. 78

285 A.2d 620

RANDOLPH HILLS, INC. v. MONTGOMERY COUNTY COUNCIL.

No. 136.

Court of Appeals of Maryland.

Jan. 11, 1972.

Hal I. Lackey, Silver Spring (Hal Lackey, and Garland E. Lowe, Silver Spring, on the brief), for appellant.

John B. Walsh, Jr., Asst. County Atty. (Richard S. McKernon, Acting County Atty., Alfred H. Carter, Deputy County Atty., and Philip J. Tierney, Asst. County Atty., Rockville, on the brief), for appellee.

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

McWILLIAMS, Judge.

Appellant (RHI) sought to have 4.96 acres (the property) of R-60 land reclassified to I-1. ¹ The gist of its complaint is that the property has no reasonable or beneficial use in its present classification, that it can be used only for outdoor storage, a use permitted in the I-1 zone, and that denial of this use is arbitrary, capricious, unreasonable and confiscatory. The Technical Staff of the Montgomery Planing Board recommended denial. The Planning Board adopted the report of the Technical Staff and recommended to the County Council, sitting as the District Council, that the application be denied. On 7 July 1970 the Council denied the application. On 6 May 1971 Judge Mathias affirmed the action of the Council and a judgment for costs was entered in favor of the appellee. RHI, understandably miffed, has looked to us to turn the tables. We shall leave things as they are.

In 1952 RHI acquired a 380 acre tract of land wedged between the Baltimore and Ohio Railroad and Rock Creek Park. The Town of Garrett Park lies to the southwest on the other side of the railroad and Rockville is a few miles to the northwest. At the time the tract was designated Residential 'A' but in 1954 it was placed in the R-60 classification. The development of the tract, now known as Randolph Hills, was begun in 1953. By 1958 all of the land (except about 17 acres reclassified from R-60 to I-1) had been subdivided, houses had been built on all of the lots, and all of the lots had been sold. Saul Perlmutter, the vice president of RHI, testified that the tract had been devolped in accordance with the wishes and under the control of the officers of RHI. The property abuts the railroad right-of-way for a distance of 1,900 feet. The northernmost 1,600 feet is between 50 and 100 feet wide. The remaining 300 feet is from 100 to 300 feet wide. The property also abuts the rear lines of 31 lots fronting on Schuylkill Road and Ashley Drive, both of which are generally parallel to the railroad. The northern end abuts the 17 acre I-1 parcel, also owned by RHI and apparently fully developed. The southern end abuts land owned by another.

The District Council, in its opinion, referred to RHI's 1969 petition for a special exception to permit the 'off-street parking of motor vehicles in connection with the industrial complex on the I-1 zoned land to the north.' The Council noted the denial of the 1969 petition by the County Board of Appeals and the affirmance of the Board's decision by the circuit court, from which no appeal was taken. The District Council went on to say:

'We agree with the decision of the Circuit Court that any hardship involved in this case was created by the applicant when it designed and constructed the Randolph Hills Subdivision in such a manner so as not to include the subject property in the subdivision. There is no merit to the applicant's contention that the subject property was created as a result of the operation of the provision of the Subdivision Regulations which require a residential street paralleling a railroad to be at a distance from the tracks sufficient to provide lots with a minimum of 160 feet depth backing to the railroad right-of-way. This provision was not added to the Subdivision Regulations until October of 1961 almost 3 years after the Randolph Hills Subdivision had been completed. In any event, there is no reason why the applicant could not have developed larger lots backing onto the railroad right-of-way than those in the remainder of the subdivision and sold them for a higher price. We are of the opinion that the instant case falls squarely within the rule enunciated by the Court of Appeals in the case of Montgomery County Council v. Kacur, 253 Md. 220, 231, 252 A.2d 832 (1969) that, '* * * a property owner may not require the Council to grant a rezoning, through the due process clauses of the State and Federal Constitutions, by creating a hardship situation of his own making in which he cannot but lose money." (Emphasis added.)

Judge Mathias, at the conclusion of the hearing before him on 6 May 1971, delivered his opinion orally from the bench. Excerpts from that opinion follow:

'This large tract has since been developed by the applicant as a subdivision of homes known as Randolph Hills.

'For engineering reasons, economic reasons, or for some other reasons the applicant, in laying out the subdivision, left as an outlot the particular ground which is the subject of this rezoning application.

'As already noted, the tract abuts Randolph Hills single family residences on the east and on the west, the B & O Railroad right-of-way, which lies between the tract in question and the Garrett Park subdivision of private homes on the west.

'There has never been any restriction in the zoning ordinance that would have prevented the applicant from using the ground in question for R-60 residences.

'Its use for R-60 residences is precluded at this time because the applicant chose to lay out its subdivision in the particular manner that it did.

'Whether the applicant thought that it was economically prudent to reserve this outlot for possible future development as commercial or industrial ground we do not know, nor is it important. What is important is that the use of the particular ground in question is restricted because the applicant chose to develop as it did.'

'It is our further view that even if it were true that the property in question could not be used for any purpose at all under R-60 zoning, the applicant would still not be entitled to prevail, because this alleged hardship was self-inflicted by the applicant.

'The applicant has said, in effect, that although it was...