Scull v. Coleman

• Decision Date: 07 October 1968
• Docket Number: No. 348,348
• Citation: 251 Md. 6,246 A.2d 223
• Parties: David SCULL et al. v. Tracy C. COLEMAN et al.
• Court: Maryland Court of Appeals

Page 6

251 Md. 6

246 A.2d 223

David SCULL et al. v. Tracy C. COLEMAN et al.

No. 348.

Court of Appeals of Maryland.

Oct. 7, 1968.

Paul A. McGuckian, Asst. County Atty., Rockville (David L. Cahoon, County Atty. and Charles G. Dalrymple, Asst. County Atty., Rockville, on the brief) for appellants.

Joe M. Kyle, Silver Spring, (Heise, Kyle & Jorgensen, Silver Spring, on the brief) for appellees.

Before HAMMOND, C. J., and MARBURY, McWILLIAMS, FINAN and SMITH, JJ.

MARBURY, Judge.

On April 18, 1967, the Montgomery County Council, sitting as the District Council for that portion of the Maryland-Washington Regional District located in Montgomery County, adopted resolution No. 6-380 granting the rezoning requested in zoning application No. E-955. An appeal from this action was taken to the Circuit Court for Montgomery County by the appellees here, and on September 21, 1967, Judge James H. Pugh of that court issued an opinion and order reversing the District Council's action, from which the District Council has appealed.

On September 21, 1966, the Maryland-National Capital Park and Planning Commission (Planning Commission) adopted a Master Plan for Kemp Mill-Four Corners and vicinity of Montgomery County. The area covered by the plan consisted of 4,263 acres in southeastern Montgomery County, of which approximately eighty-nine per cent was developed at the time of the adoption. The Planning Commission filed zoning application No. E-955, a sectional map amendment, with the District Council on December 2, 1966, for the purpose of rezoning all of the land within the planning area to conform with the Master Plan's recommended classifications. This application proposed to rezone approximately 128 acres, including the appellees' 3.5 acres which is located at the southwesterly side of University Boulevard near the intersection of Arcola Avenue in Wheaton, Maryland, from C-1 (Local Commercial) to the R-60 (One-Family, Detached Residential) zone. Appellee, Randolph Hills, Inc., is the owner of the subject property, and appellee Tracy C. Coleman, is the contract purchaser.

Appellees' property is an undeveloped tract which fronts for 700 feet on University Boulevard, a six-lane divided state highway, and is surrounded on the west, south, and southeast by land zoned R-60. It has been the subject of a previous zoning application, No. E-630, which has some importance in the instant case. On April 12, 1966, the District Council, then in office reclassified the subject tract from R-60 to C-1. However, at that time the Council had in effect an expressed moratorium on zoning applications in areas for which master plans were pending. When it realized that it had inadvertently violated its moratorium, the Council voted to reconsider its action. No further steps were taken until November 10, 1966, when the Council affirmed the granting of the C-1 zoning. Although the master plan had been adopted by the Council by this time, it was not made a part of the record of application No. E-630. On December 6, 1966, the newly elected Council voted to reconsider the granting of this C-1 classification, but the appellees here brought suit and were successful in having this last reconsideration declared invalid by Judge Robert E. Clapp, Jr. on January 26, 1967.

Returning to zoning application No. E-955, which is the center of this dispute, the Council conducted a public hearing and received testimony on February 27, 1967, concerning its merits. The District Council adopted resolution No. 6-380 granting application No. E-955 which rezoned the appellees' property from C-1 to R-60 on April 18, 1967. After Judge Pugh reversed the Council's action in regard to the subject property, the Council brought this appeal.

In the case of Ark Readi-Mix Concrete Corporation v. Smith et al., Md. 246 A.2d 220, this Court noted the narrow and restrictive scope of judicial review in zoning cases:

'Zoning is a legislative function, and when, reviewing the acts of the zoning authorities, the duty of the courts is to decide whether such action was arbitrary, discriminatory or illegal. Trustees of McDonogh Educational Fund & Institute v. Baltimore County, 221 Md. 550, 158 A.2d 637; Mont. County Council v. Scrimgeour, 211 Md. 306, 127 A.2d 528; Kroen v. Board of Zoning Appeals, 209 Md. 420, 121 A.2d 181. A court cannot substitute its judgment for that of the zoning authorities if their decision is supported by substantial evidence and the issue before them is fairly debatable. Bosley v. Hospital, 246 Md. 197, 227 A.2d 746; Missouri Realty, Inc. v. Ramer, 216 Md 442, 140 A.2d 655; Offutt v. Bd. of Zoning Appeals, 204 Md. 551, 105 A.2d 219. When a comprehensive map designed to cover a substantial area is adopted, it is entitled to the same presumption of correctness as an original zoning. Mandel v. Bd. of County Com'rs, 238 Md. 208, 208 A.2d 710; Town of Somerset v. County Council, 229 Md. 42, 181 A.2d 671; McBee v. Baltimore County, 221 Md. 312, 157 A.2d 258. Thus, persons attacking the correctness of the map's classifications have a heavy burden of overcoming the presumption of their validity. This burden is heavier in the case of comprehensive zoning than in the case of piecemeal reclassification. Reese v. Mandel, 224 Md. 121, 167 A.2d 111; City of Baltimore v. N.A.A.C.P., 221 Md. 329, 157 A.2d 443.'

The appellees contend that the zoning action involved in this case cannot be regarded as comprehensive and that it was the result of a mere change of mind by the Council. Only 128.21 acres out of a total area of 4,263 acres were considered for reclassification, and appellees urge that the Council acted on twenty-eight individual zoning cases simultaneously under the guise of a sectional map amendment. In addition, they argue that there had been no change in the neighborhood in the five months which elapsed between the time of the rezoning of the property to C-1 and the time of the claimed comprehensive zoning. The...