West Montgomery County Citizens Ass'n v. Maryland-National Capital Park and Planning Com'n, MARYLAND-NATIONAL

• Decision Date: 01 September 1985
• Docket Number: MARYLAND-NATIONAL,No. 124,124
• Citation: 309 Md. 183,522 A.2d 1328
• Parties: WEST MONTGOMERY COUNTY CITIZENS ASSOCIATION et al. v.CAPITAL PARK AND PLANNING COMMISSION et al. ,
• Court: Maryland Court of Appeals

Page 183

309 Md. 183

522 A.2d 1328

WEST MONTGOMERY COUNTY CITIZENS ASSOCIATION et al. v. MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION et al.

No. 124, Sept. Term, 1985.

Court of Appeals of Maryland.

April 1, 1987.

Motion for Reconsideration Denied June 2, 1987.

Roger W. Titus, Rockville, for appellant.

Paul A. McGuckian, Co. Atty., Rockville (Jane E. Allan Associate General Counsel and Arthur S. Drea, Jr., Gen. Counsel on the brief), Silver Spring, for appellees Maryland- Nat. Capital Park and Planning Com'n and Montgomery County.

Vincent J. Fuller (Raymond W. Bergan, Judith A. Miller and Williams & Connolly, Peter N. Kyros, Jr., Paul C. Fiduccia and Winston & Strawn, on the brief), Washington, D.C., for appellee PGA Tour, Inc.

Stephen Z. Kaufman, Larry A. Gordon and Linowes & Blocher, on the brief, Silver Spring, for appellee Rock Run Ltd. Partnership.

Argued before MURPHY SMITH ^* ELDRIDGE COLE RODOWSKY COUCH and McAULIFFE, JJ.

McAULIFFE, Judge.

We shall here invalidate a Montgomery County zoning decision concerning density of residential development because that decision was made by the District Council through the planning process, rather than through the zoning process mandated by State law.

A county enjoys no inherent power to zone or rezone, and may exercise zoning power only to the extent and in the manner directed by the State Legislature. Crozier v. Co. Comm. Pr. George's Co., 202 Md. 501, 505-07, 97 A.2d 296 (1953). The Regional District Act, Md.Code (1957, 1983 Repl.Vol.) Art. 28, § 8-101(b) grants zoning power to the Montgomery County Council sitting as a District Council. By that section, the Legislature specifically defines zoning power to include the right to regulate "the density and distribution of population" and authorizes the District Council to exercise that power by "amend[ing] the text of the zoning ordinance and ... by ... amend[ing] the map or maps accompanying the zoning ordinance text...." By using the process of amending a Master Plan to effect a significant increase in the permissible density of development of residential zones, the District Council has run afoul of the state mandate that zoning changes be made by zoning procedures. Moreover, the alternative argument, that the density decisions were not made by the District Council but were made by the Planning Board pursuant to a valid delegation of legislative power, is unavailing because of the breadth of the power involved and the failure of the District Council to establish sufficiently precise standards.

In October, 1980, the Functional Master Plan for the Preservation of Agriculture and Rural Open Space in Montgomery County ("Agricultural Preservation Plan") was approved and adopted. This plan recommended broad and innovative changes in the zoning text of Montgomery County, to be followed by dramatic zoning map changes that would directly affect one-fourth of the land in the County. The principal purpose of the plan was to preserve open space and agricultural land in the upper part of the County by restricting development of the land. An important adjunct of the plan was the recommendation that Montgomery County adopt and implement a system of transferable development rights ("TDRs"), to provide a form of compensation to owners whose rights to develop their properties would be significantly impaired by down-zoning, and to help ensure long term preservation of the agricultural use of the land.

The concept of TDRs is simple and straightforward. Ownership of land carries with it a bundle of rights, including the right to construct improvements on the land. These rights are subject to governmental regulation where reasonably required to accommodate public health, safety, or general welfare, and ordinarily these limitations of use may be imposed without the necessity of paying compensation to the land owner. There may arise situations, however, where the limitation of use imposed for the public good inflicts an economic impact on the landowner that, while not confiscatory, is so substantial as to prompt the government to provide some type of compensation. Cases involving the preservation of scenic easements and historic or architecturally valuable landmarks, preserving as they do benefits to the public that are largely cultural or aesthetic, yet concentrating the burden upon relatively few, have moved government officials to find ways to compensate the affected property owners. Maryland, recognizing the importance of agricultural land, and the efficacy of restricting the right to develop land as a means of accomplishing that objective, has developed a system for purchasing agricultural land preservation easements. See Md.Code (1974, 1985 Repl.Vol.) Agriculture Article, §§ 2-501 thru 2-515. Purchasing development rights with public funds is not the exclusive method of providing compensation, however. Other jurisdictions have accomplished the desired objective by permitting the transfer of development rights from the burdened property to certain other properties in the political subdivision, and have given value to this right by permitting a greater than normal intensity of development of the transferee or "receiving" property. See, e.g. Penn Central Transp. Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978); Fred F. French Investment Co. Inc. v. City of New York., 39 N.Y.2d 587, 385 N.Y.S.2d 5, 350 N.E.2d 381 (1976).

Montgomery County chose the latter course--the creation of a system of transferable development rights. In accordance with the recommendations of the Agricultural Preservation Plan, the District Council amended various provisions of the zoning text to provide for a new Rural Density Transfer zone ("RDT zone") having a base density of one single family dwelling unit for each 25 acres, and to create TDRs in favor of the owners of property placed in that classification. Montgomery County Code, 1984, §§ 59-C-11.2 thru 59-C-11.5. The owners of property down-zoned to the RDT zone are granted one TDR for each five acres, less one TDR for each existing dwelling unit. Other amendments to the zoning text provide that if the owners execute a covenant not to develop their land at its base density, the TDRs can be transferred to any property within a properly designated receiving zone, and under certain circumstances can be used to increase by one dwelling unit per TDR the density of development of the receiving property. The text provides that any property in six designated single family residential zones ¹ is eligible for designation as a receiving area for TDRs. The actual designation of the properties that would constitute the "receiving zone," i.e. those designated as available for more intense development through the use of TDRs, is to be made through the planning, rather than the zoning process. Section 59-C-1.39 provides:

Any property in the RE-2C, RE-2, R-200, R-150, R-90 and R-60 zones that is located in a receiving area designated in an approved and adopted general, master, sector or functional plan may be developed at an increased density by the transfer of development rights in accordance with sections 59-A-6.1, and 59-C-11....

Section 59-C-11.4 provides:

In accordance with § 59-A-6.1 and in conformance with an approved and adopted general, master, sector or functional plan, residential density may be transferred at the rate of one development right per five (5) acres less one development right for each existing dwelling unit, from the rural density transfer zone to a duly designated receiving zone, pursuant to § 59-C-1.39.

The zoning text imposes no limitation on the ultimate density of development possible for a property placed in the receiving zone, but leaves this decision to the planning process as well. Thus, by General, Master, Sector or Functional Plan, the determination is to be made as to which single family residential properties will be placed in the receiving zone, and what limit of intensification of density will be assigned to each property so designated.

Finally, the zoning text provides that an owner of a designated receiving area property who wishes to intensify development through the use of TDRs must submit a preliminary subdivision plan and site plan detailing the proposed development of the property. These individual plans must conform to the development standards of the zone permitting a density nearest to the TDR density designated by the Master Plan Amendment. Upon approval of the site plan and preliminary plan of subdivision, an easement is recorded in favor of the County, restricting development of the property or properties from which the TDRs were obtained.

In addition to making the zoning text changes recommended by the Agricultural Preservation Plan, the District Council adopted a sectional map amendment, down-zoning 88,000 acres of land to the RDT zone, and thereby creating nearly 17,000 TDRs. ² It is the attempt by Appellees to utilize some of these TDRs to achieve increased density development of their property that has generated this controversy.

The property involved in this case is a 948 acre tract in Potomac, Maryland, known as the Avenel Farm, and owned by Rock Run Limited Partnership ("Rock Run"). Recent planning for the Avenel property has been accomplished through the Master Plan for the Potomac Subregion, which constitutes an amendment to the General Plan for the County. This Master Plan was approved by the District Council in April of 1980 and adopted by the Maryland-National Capital Park and Planning Commission in May of that year. Consideration of the residential property within this subregion for inclusion in the TDR receiving zone was accomplished through the planning process generated by a proposed amendment to the Master Plan. This amendment, ultimately adopted in September of 1982, created 27 TDR receiving areas, 13 of which were within the Potomac-Cabin John planning area that embraces the Avenel...