Town of Somerset v. County Council for Montgomery County

• Decision Date: 07 June 1962
• Docket Number: No. 294,294
• Citation: 229 Md. 42,181 A.2d 671
• Parties: TOWN OF SOMERSET et al. v. COUNTY COUNCIL FOR MONTGOMERY COUNTY et al.
• Court: Maryland Court of Appeals

Page 42

229 Md. 42

181 A.2d 671

TOWN OF SOMERSET et al. v. COUNTY COUNCIL FOR MONTGOMERY COUNTY et al.

No. 294.

Court of Appeals of Maryland.

June 7, 1962.

R. Robert Linowes, Silver Spring (William M. Cave, Silver Spring, on the brief), for appellants.

Richard J. Sincoff, Asst. County Atty. Rockville (Alfred H. Carter, County Atty., Rockville, on the brief), for Montgomery County Council, part of appellees.

Norman M. Glasgow, Washington, D. C. (Wilkes & Artis, Washington, D. C., and William A. Linthicum, Jr., Rockville, on the brief), for Chevy Chase Land Co. of Montgomery Co., other appellee.

Before HAMMOND, PRESCOTT, HORNEY, MARBURY and SYBERT, JJ.

HAMMOND, Judge.

The zoning reclassification of land in rapidly growing Montgomery County which is challenged in this appeal was supported and opposed with equal vigor and earnestness before the County Council, the Circuit Court and this Court. The applicant for the rezoning prevailed before the Council and the lower court and will prevail here.

Since 1890 The Chevy Chase Land Company has owned a block of land (Block 11) with a frontage of 1,000 feet along the east side of Wisconsin Avenue and a depth of 250 feet to Belmont Street, between Montgomery Street to the south and Oliver Street to the north.

The tract has been zoned residential (R-60, for detached houses), and has the adjacent land, since zoning began in the County in 1928, although it is apparent the company long has been holding the land for commercial development. ¹ In late 1960 the Land Company leased Block 11 for twenty-five years, with rights to renewals, to Saks Fifth Avenue, a specialty department store company. Saks proposed to erect an attractive structure with off-street parking and appropriate landscaping and screening, if the required rezoning, to which the lease was subject, was granted.

The Land Company applied to the County Council to have 250 feet of its Wisconsin Avenue frontage in Block 11, with a depth of 200 feet, changed from its residential classification to C-2, which is general commercial. It proposed to utilize a customary and accepted technique of Montgomery County zoning by having only the area to be covered by the commercial building zoned commercial, with the adjacent land remaining residential, subject to a special exception for off-street parking being granted by the Board of Appeals, which can impose conditions as to ways of ingress and egress, screening and landscaping, all for the protection of the surrounding area and property owners.

The Technical Staff and the Planning Board of the Maryland-National Capital Parks and Planning Commission recommended approval of the application (with a 10-foot setback), stating that the rezoning would be a logical extension of the extensive existing commercial development at Wisconsin Circle, based upon the premise that all of the block not rezoned commercial would be the subject of an application to the Board of Appeals for a special exception for off-street parking.

After a full hearing at which lay and expert witnesses appeared for the applicant and for the protestants (including the Town of Somerset and a number of aggrieved individual property owners), and presented conflicting opinions as to the propriety of the rezoning and the effect on traffic and congestion in the streets, the County Council, by a vote of four to two, approved the rezoning, and on petition for reconsideration affirmed its action.

On appeal the Circuit Court found from the voluminous record that the finding of the County Council, sitting as a District Council, was fairly debatable and therefore not arbitrary, discriminatory or illegal.

The appellants contend that the evidence of change in the neighborhood was insufficient to overcome the strong presumption of validity of original zoning, that the rezoning was illegal spot zoning, that the rezoning would increase traffic congestion, and that the County Council's action in rezoning violated Sec. 107-39 c of the Montgomery County Zoning Ordinance (which prohibits zoning action which is conditional or for a particular use or for a particular user).

It is agreed by all parties that there was no mistake in zoning Block 11 residential in the original zoning in Montgomery County in 1927. In 1954 a new comprehensive zoning ordinance and zoning map were adopted which again classified the property as single family, detached residential. In 1957 the Maryland-National Capital Parks and Planning Commission promulgated 'A General Plan for Development of the Maryland-Washington Regional District,' which put the property in a residential classification. ² Change in the neighborhood is relied on by the Land Company to support the rezoning sought.

The appealing protestants answer that under our decisions in Trustees, etc. v. Baltimore County, 221 Md. 550, 561, 158 A.2d 637, and McBee v. Baltimore County, 221 Md. 312, 317, 157 A.2d 258, a comprehensive rezoning is entitled to the same presumption of correctness as an original zoning and the so-called 'change or mistake' rule applicable to piecemeal zoning is not controlling, and that therefore, only changes in the area since 1954 are significant.

We reaffirm the rule that comprehensive rezoning is entitled to the same presumption of correctness as is original comprehensive zoning, but we think the appellants seek to press their argument based thereon further than our decisions dealing with the problem warrant. Changes which may have occurred prior to the last comprehensive rezoning need not be wholly disregarded when a change from that zoning is under consideration. It may be--as was the case here--that it was a rather close question in the minds of the officials concerned whether a change in the zoning of the land involved should not have been made at the time of the last comprehensive zoning, and additional changes thereafter may bring the zoning status of the land as to which action is sought over the line dividing different zones.

We said in Muhly v. County Council, 218 Md. 543, 546, 147 A.2d 735, 737 (in referring to the 1928 and 1954 Montgomery County general zoning ordinances):

'It is true that the readoption of a map and plan, without change as to a particular property, is entitled to the presumption that it was a deliberate confirmation of the earlier decision, but since it is the cumulative effect that may be decisive, we think changes between the time of the initial zoning and the confirmation should not be wholly disregarded.'

In Muhly we referred also to the case of Nelson v. County Council for Montgomery County, 214 Md. 587, 594, 136 A.2d 373, in which there were taken into account a number of changes which had occurred between the time of the original zoning under the 1928 law and 1955, the date of the hearing. The County Council was entitled, as we see it, in deciding whether the neighborhood had changed significantly since 1954, to take into consideration the changes between 1928 and 1954.

There was testimony that after 1928 and before 1954 there had been many changes to commercial (often with adjacent residential land being given a special exception for off-street parking in connection with the commercial use) 'in the neighborhood a short distance south on Wisconsin Avenue,' to use the words of the findings of the County Council. These included a bus interchange and terminal of the Capital Transit Company, a Howard Johnson...