Templeton v. County Council of Prince George's County

• Decision Date: 19 June 1974
• Docket Number: No. 696,696
• Parties: Mollie v. TEMPLETON v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland.
• Court: Court of Special Appeals of Maryland

Page 636

21 Md.App. 636

321 A.2d 778

Mollie v. TEMPLETON v. COUNTY COUNCIL OF PRINCE GEORGE'S COUNTY, Maryland.

No. 696.

Court of Special Appeals of Maryland.

June 19, 1974.

Heiskell R. Gray, Mount Rainier, with whom were Smith, Finley, Gray & Ahalt, Mount Rainier, on the brief, for appellant.

Ellis J. Koch, Associate County Atty., with whom was Joseph S. Casula, County Atty., on the brief, for appellee.

Argued before ORTH, C. J., and DAVIDSON and MOORE, JJ.

MOORE, Judge.

In June 1970 appellant was cited by the zoning authorities of Prince George's County for conducting a commercial roofing business in a residential zone. On July 31, 1970 she filed an application for a map amendment to reclassify her property in the Town of Rentwood consisting of 25,000 square feet, from the R-55 (residential) to C-2 (commercial) zone. The matter, for reasons not apparent, did not proceed expeditiously to public hearing and final decision. In May 1971, the technical staff of the Maryland-National Capital Park and Planning Commission recommended denial of the application and in July 1971 the Prince George's County Planning Board adopted a resolution of disapproval. In May and September 1972 public hearings were held before the zoning hearing examiner whose findings of fact and conclusions of law were filed on November 27, 1972. On February 28, 1973 the County Council for Prince George's County met as the District Council, seven of the eleven members being present, and adopted a resolution of disapproval in accordance with the zoning hearing examiner's findings, the full text of which was incorporated in the Council's resolution.

The Circuit Court (Meloy, J.) affimed the District Council in an oral opinion on September 26, 1973 and in her appeal to this Court the judgment of the Circuit Court is assailed on three grounds: (1) that the District Council's decision should not have been affirmed because it failed to make its own findings of fact and because there was no finding whatsoever as to what reasonably constituted the neighborhood of the subject property; (2) that because it was necessary for appellant to receive the affirmative vote of eight members of the eleven member council for approval and only seven members were present when the resolution of disapproval was adopted, appellant was denied due process; (3) that appellant was denied the opportunity for consideration of 'conditional zoning' prohibited by the Prince George's County Charter, a restriction held inapplicable to the Regional District within Prince George's County in a case decided by the Court of Appeals of Maryland while her appeal was pending before the Circuit Court. ¹

We conclude that the assignments of error are without foundation and affirm the judgment of the Circuit Court.

The factual background, essentially undisputed, reflects that zoning was first applied in Prince George's County in 1927 and appellant's property, located at 3500 Varnum Street, Bretwood, was then classified residential. Appellant and her husband, now deceased, acquired the property in the late 30's and, in 1939, established a roofing business on the rear of their lot, a business which was operated by them uninterrutedly until Mr. Templeton's demise in 1969 and was thereafter continued by his widow. In the 1949 amendment to the Prince George's County Zoning Ordinance, the property was classified R-55 (residential). It comprises approximately one-half acre located on the north side of Varnum Street, improved by two dwellings and several sheds as well as a large enclosed work and storage area in the rear. On the west side of the property is an unpaved alley which intersects Webster Street, one block to the north. Varnum Street, a residential thoroughfare, intersects 37th Street on the east but dead-ends short of 34th Street on the west, with no turn-around. The Templeton property is surrounded by private residences. Photographs received in evidence depict them as modest but attactively and neatly maintained. Two blocks to the north there is an area of commercial (C-2) activity and to the west along 34th Street are scattered multi-family dwellings in the R-18 and R-35 (higher-density residential) classifications.

During the course of the proceedings before the zoning hearing examiner, the appellant was afforded an opportunity to establish a non-conforming use of the property by filing a use and occupancy application with the Park and Planning Commission. This application was made on June 1, 1972 and denied on July 8, 1972.

It thus appears that the commercial use of the property has been in violation of the Prince George's County zoning laws for approximately thirty-five years. ²

I

Appellant's first contention is based upon Chapter 426, § 59-104 of the 1966 Acts of the General Assembly of Maryland which was interpreted by the Court of Appeals in Montgomery et al. v. Board of County Commissioners for Prince George's County et al., 256 Md. 597, 261 A.2d 447 (1970). The statute reads as follows: ³

'59-104. In Prince George's County, no application for a map amendment or special exception, which is contested, shall be granted or denied except upon written findings of basic facts and written conclusions.'

The basic facts and conclusions which the District Council must find and set forth in writing in connection with the grant or denial of a map amendment based upon 'change' were listed by Judge Barnes in the Montgomery case as follows: (a) what area reasonably constituted the 'neighborhood' of the subject property; (b) the changes which occurred in that neighborhood since the comprehensive rezoning; and (c) that these changes resulted in a change in the character of the neighborhood.

In the proceedings below, the technical staff in its report to the Planning Board defined the 'neighborhood' as the area bounded by 37th Street on the east, Upshur Street on the south, 34th Street to the west and, to the north, the rear lot lines of the property fronting on the north side of Webster Street. The appellant agreed with the staff's definition except for the northern boundary. ⁴ The latter, she claimed, sould not stop at Webster Street but sould be extended to include all of the area up to the Windom Road containing C-2 and R-18 zoning and defelopment. ⁵

The staff's justification for its definition of 'neighborhood' was based upon a sharp change in topography on Varnum Street east of 34th Street and the enclave of C-2 and higher density residential activity to the north of appellant's property. The opposition to the application ⁶ agreed with the staff's definition of the neighborhood and maintained that the 'neighborhood' had always been residential in character.

Curiously, the zoning hearing examiner made no factual determination as to the area that reasonably constituted the neighborhood but found rather that the issue of 'change in the character of the neighborhood is fairly debatable.'

'In the assessment of the record we believe that there is sufficient evidence which a reasonable mind might accept as adequate to support either definition (of neighborhood). Cf. Board of County Commissioners v. Brown, 253 Md. 632 (253 A.2d 883). Hence, we conclude that this issue is fairly debatable.'

From the quoted language it is quite evident that the zoning examiner misconstrued his role and function. The 'fairly debatable' rule is, of course, commonly applied by courts on appeal from administrative findings. It is axiomatic, however, that the rule presupposes the making of such findings. It was an error of omission for the hearing examiner and in turn for the District Council to avoid a factual determination of 'what area reasonably constituted the neighborhood' in this case. ⁷ This error, however, is not of such dimension as to require a reversal, as urged upon us by appellant's counsel. It is abundantly clear from a reading of the examiner's findings, adopted by the Council, that in the view taken by him of all the evidence and the applicable law, the issue of change vel non in the character of the neighborhood was not determinative. Adverting to the established principle that change permits but does not require the legislative body to grant the requested zoning, Messenger v. Board of County Commissioners, 259 Md. 693, 271 A.2d 166 (1970); Chapman v. Montgomery County, 259 Md. 641, 271 A.2d 156 (1970), the examiner stated the narrow basis for his adverse recommendation in the following language:

'It is at this juncture that the issue of whether the proposed reclassification would or would not adversely affect the surrounding neighborhood or create traffic congestion, must be resolved. Plant v. Board of County Commissioners for Prince George's County, 262 Md. 120, 277 A.2d 77. The evidence in this case on this issue makes it abundantly clear that an adverse impact upon the neighborhood would occur from the requested rezoning. We are persuaded that a significant impact upon traffic in this quiet residential neighborhood will result. Streets are too narrow to accommodate heavy vehicles which would be generated by the commercial rezoning (Finding pg. 4 para. 10). Because of this we recommend denial of the subject request.' (Emphasis added.)

The appellant contends, without citation of authority, that traffic impact is not a sufficient basis to deny a zoning application. The Court of Appeals has ruled otherwise. Temmink v. Board of Zoning Appeals, 212 Md. 6, 128 A.2d 256 (1957), citing Hardesty v. Board of Zoning Appeals,211 Md. 172, 126 A.2d 621 (1956).

Furthermore, in appraising the Council's fact finding performance, it is important to distinguish, as did the Court of Appeals in Messenger, supra, between cases where the legislative body has granted the requested rezoning and those where it has been denied. In the former situation, the three 'basic facts' and 'conclusions' must be found before the District Council may act favorably. Where, however, there is a denial of the...