Suburban Properties, Inc. v. Mayor and Council of Rockville

• Decision Date: 17 December 1965
• Docket Number: No. 401,401
• Citation: Suburban Properties, Inc. v. Mayor and Council of Rockville, 241 Md. 1, 215 A.2d 200 (Md. 1965)
• Parties: SUBURBAN PROPERTIES, INC. v. MAYOR AND COUNCIL OF ROCKVILLE.
• Court: Maryland Court of Appeals

Page 1

241 Md. 1

215 A.2d 200

SUBURBAN PROPERTIES, INC. v.MAYOR AND COUNCIL OF ROCKVILLE.

No. 401.

Court of Appeals of Maryland.

Dec. 17, 1965.

James R. Miller, Jr., Rockville (Earl C. Hill, Jr. and Miller, Miller & Canby, Rockville, on the brief), for appellant.

George W. Shadoan, Rockville, for appellee.

Before PRESCOTT, C. J., and HAMMOND, MARBURY, OPPENHEIMER and BARNES, JJ.

OPPENHEIMER, Judge.

Suburban Properties, Inc.(Suburban) appeals from an order of the Circuit Court for Montgomery County dismissing Suburban's bill of complaint to vacate an action of the Mayor and Council of Rockville(the Council) denying Suburban's application for a zoning reclassification of property from the R-60 single family residential zone to the I-2 light industrial zone or the I-1 service industrial zone under Rockville's zoning ordinance.

The property in question consists of three contiguous lots with a total area of about 48,500 square feet.The northern boundary of the property is conterminous with Rockville's northwestern boundary adjoining the intersection of Ashley Avenue with Stonestreet Avenue.The area to the north of the Rockville city limits is zoned I-1 industrial; there is a radio tower and transmitting station immediately north of the property here involved.The property's western boundary line abuts the main line of the Baltimore and Ohio Railroad; the area across the railroad track to the west is zoned for commercial and industrial use.On the east, the property has 150 feet frontage facing Stonestreet Avenue, with a depth of approximately 300 feet.The areas to the east and south of the property are zoned residential, with the exception of one industrial enclave at the intersection of Frederick and Stonestreet Avenues.These residential areas are improved by homes, some of which, at the time of the hearing before the Council, were substandard.

In 1957, the Rockville Planning Commission in a proposed master plan for the Stonestreet Avenue area recommended that the property here involved be put in an industrial zone.However, when the master plan was adopted in September 1960, the 1957 proposal was rejected and the city zoned the area in question R-60 residential.

Suburban's application requesting the reclassification of the property was filed in 1961, less than a year after the adoption of the 1960 master plan.The city Planning Commission unanimously recommended dismissal of the application and recommended that the 1960 plan be upheld.The Commission found, inter alia, that the indications were the area would develop residentially, that any change in the zoning in the area should be part of a comprehensive change reflecting changing character and need, and that the existence of more than 100 acres of industrially zoned land in the vicinity was sufficient to satisfy the public need.

The Council held a hearing on the application on August 21, 1961.Suburban presented testimony that there was need for additional industrially zoned property in Rockville; Suburban's president, Mr. England, testified that because the logical zoning was industrial it was unreasonable to spend money to improve the property for residential use.Suburban offered no expert testimony at the hearing but subsequently, within the grace period of ten days permitted by local zoning procedure, submitted for the records letters from a realtor, a land planner and a banker.The land planner's report of his examination of the property was also submitted.The realtor was of the opinion that the property should be zoned industrial; the land planner believed the application to be reasonable and meritorious.Each gave reasons to support his opinion.The banker, the president of a montgomery County bank, stated that the property had been inspected and '[w]e regret that this property, due to its proximity to the B and O Railroad tracks and the adjoining industrial property, does not meet our requirements for eligibility for conventional home loans.'Each of the letters was dated after the date of the hearing.

At the hearing, residents of the area testified that houses in the vicinity of the property were well maintained.One of the residents testified that a loan had been obtained and a house built within the last two months on Stonestreet Avenue.Another resident stated that he did not know of anyone who wanted to build a house on that street who had been refused a loan.Suburban's president testified that the company had built a house which did not have a bathroom or modern heating plant, hoping and expecting that it would be able to use the property for industrial purposes.The tenants had been put out because the Rockville inspectors, after inspection, had told the president, Mr. England, that, unless a modern heating plant and kitchen and a satisfactory bathroom were installed, the tenants would have to be ejected.

On October 9, 1961, the Council adopted a resolution denying Suburban's application.On March 21, 1962, Suburban filed a bill of complaint for a declaratory judgment and injunction in the Circuit Court for Montgomery County asking that the Council's action denying the application be vacated and set aside.As we noted in England v. Mayor and Council of Rockville, 230 Md. 43, 185 A.2d 378(1962), the Rockville ordinance does not provide any remedy by way of appeal and accordingly the bill in equity was a proper remedy for a review of the Council's action.

The hearing in the court below did not take place until September 1, 1964, almost three years after the action of the Council.At the court hearing, Suburban contended, as it contends here, that the Council's action in denying its application was unreasonable and arbitrary and that it was unconstitutional because it denied Suburban any reasonable use of its property.The Chancellor admitted, over Suburban's objection, additional testimony of Mr. William Hussmann, Rockville's Planning Director, to substantiate the findings of the Council.Mr. Hussmann testified, inter alia, as to the building of additional residences between the date of the Council's resolution and the court hearing.At the conclusion of the hearing, the Chancellor said that, while he thought he was familiar with the property, he would take a look at it; no objection was made to his doing so.In his opinion, the Chancellor stated that the east side of Stonestreet Avenue, from the south side of Ashley, 'are all now improved properties with single family residence dwellings, in the main being attractive low-income homes.'The Chancellor observed that there was only one vacant house in the area and that most of the homes had modern plumbing facilities.He found that there was no mistake in the original zoning, that the denial of the application was not confiscatory, that he could not say the action of the Council was arbitrary or capricious, and that, because the evidence presented a clearly debatable issue, the court could not substitute its judgment for that of the Council.

Suburban contends that the Chancellor erred when he admitted, over objection, the testimony of Mr. Hussmann as to the developments since the date of the Council's resolution and that the Chancellor should not have viewed the property.It argues that the Chancellor's reliance in his opinion upon the developments since the date of the Council's resolution vitiated his findings.We agree that there was prejudicial error in the admission of testimony, over objection, as to events or changes in circumstances occurring after the hearing before the Council.

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