Beall v. Montgomery County Council

Barnes, J., delivered the opinion of the Court. On May 28, 1962, Jack Kay, et al, as owners of 43.2579 acres of land in Montgomery County, Maryland bounded by the Washington Beltway, Colesville Road and University Boulevard East (the subject property), filed an application with the Montgomery County Council, acting as the District Council, (County Council) to rezone the subject property from ⁸⁰ an R-60 zone (one-family, detached residential, with a minimum lot area of 6000 square feet) to an R-H zone (multiple-family, high-rise planned residential). The Montgomery County Capital Park and Planning Commission (Planning Commission) and its Technical Staff recommended that the application be approved. After due notice, a public hearing was held before the County Council which approved the requested rezoning for 41.6 acres, withholding 1.6 acres for future road construction.

An appeal from the approval was perfected by various neighboring property owners to the Circuit Court for Montgomery County. That court, after a hearing, affirmed the reclassification and dismissed the petition. Judge Anderson filed a well-considered memorandum opinion in the case. The subject property was the northerly portion of the Old Indian Spring Country Club, Four Corners.

It is now unimproved by buildings and is overgrown with natural vegetation, but many evergreens and deciduous trees, which were planted when the subject property was used as a golf course, still remain. The subject property has a gently rolling terrain which slopes toward the southeast. It is triangular in shape and is entirely surrounded by three large improved dual-lane highways. On the north and east is University Boulevard East, on the south is the Capital Beltway and on the west is the Colesville Road.

At the easterly end of the subject property — the apex of the triangle — is an elaborate interchange between the Capital Beltway and University Boulevard East. At the southwesterly end of the subject property is an elaborate interchange between the Capital Beltway and the Colesville Road. To the north of the subject property, between the east and west bound lanes of University Boulevard is a large brick Methodist Church, Marvin Memorial Methodist Church, and a gasoline filling station. To the northeast of the Capital Beltway is Saint Bernadette’s Roman Catholic Church, School, Rectory and associated buildings.

Both of these churches are separated from the subject property by the roads mentioned. The other surrounding properties are, for the most part, one-family detached residences. It will be seen that the subject property is an “island” completely surrounded by major highways and completely separated from the one-family, detached residences lying to the south, west and northeast of that property. ⁸¹ The subject property for a number of years was in the R-60 zone. On February 13, 1962, the County Council created and added to the Montgomery County Code a new type of zone, known as the R-H zone. 1 The purpose of the establishment of the new R-H zones is stated in the ordinance as follows : “The purpose of the R-H Zone is to provide suitable sites for relatively high density residential development, to accomplish economies in the construction and operation of such public services as transportation, retail shopping facilities, and other community facilities which depend upon convenient access by residents of the area, and so as to prevent undue congestion in sections of the County where such facilities are not available or cannot be conveniently and economically provided.

These sites will provide a maximum of light, air, and open space, for the benefit of the residents of the development and for the surrounding area. Within the limits of these requirements, it is the purpose of the R-H Zone to provide the maximum possible amount of freedom in the design of residential structures and their grouping and layout within the areas classified in that zone; to prevent detrimental effects to the use or development of adjacent properties or the general neighborhood; and to promote the health, safety, morals, and welfare of the present and future inhabitants of the district and of the County as a whole.” The uses permitted as a matter of right include a business office in a multiple-family or multiple group dwelling, operated in connection with the rental, operation, service and maintenance of the dwelling; churches, convents, monasteries and other places of worship; dwellings, one family detached; dwellings, multiple-family and multiple group; farming and other agricultural uses; libraries, museums, and similar institutions ⁸² of a noncommercial nature; off-street parking of private automobiles in connection with the permitted uses; public and government operated buildings, and public parks, playgrounds and other recreational uses; and, private swimming pools as an accessory use. By a special exception, the following uses may be permitted: — apartment hotels; retail sales and consumer service establishments incidental to a multiple-family structure or apartment hotel on a site of not less than 20 acres and limited to drug stores, restaurants, beauty shops and other like uses and under certain definite limitations as to use and operation; home occupations, medical or dentist offices under definite limitations as to location, operation and parking facilities; and, public utility buildings but not including above ground transmission lines and radio and television broadcasting stations and towers. There are many restrictions in the new R-H zone and they are stringent regulations.

There must be a minimum width of 200 feet at the front building line. The minimum net lot area per dwelling unit is provided on a graduated scale with a low of 1000 square feet for 8 multi-family dwellings, or less, to 1400 square feet for more than 11 but not more than 12, but it is provided that in no case shall coverage exceed 12% nor be less than 1000 square feet of net lot area for each dwelling unit. In regard to yards, it is provided that the minimum front, side and rear yards are generally 30 feet for buildings not more than 30 feet in height with a provision for the increase by one foot for each foot the height of the building exceeds 30 feet. Between multiple-family dwellings a distance of 50 feet is required1 and this distance also increases one foot for each foot the taller building exceeds 30 feet.

Off-street parking is required as set forth in Section 104-20 of the Montgomery County Code, that is, as applied to the proposed project, 1 x/2 parking spaces for each residential unit. Not less than 55% of the net area used for multiple-family or multiple-group dwellings must be devoted to green areas as defined in the ordinance, and these green areas must be maintained in good condition. There are restrictions on lighting to protect “abutting or facing premises.” To obtain a building permit or a certificate of occupancy under the new R-H zone, the applicant must submit “a plan of ⁸³ development” to the Department of Inspection and Licenses which in addition to the usual information required:— “* * * [ S ] hall show, * * * the location and height of all buildings and structures; the area devoted to parking facilities and accessory buildings; all access roads and drives; the topography and major vegetation features now existing on the land; the proposed grading, landscaping and screening plans, recreation, outdoor living, and other green areas; and such other features necessary for the evaluation of the development plan.” The ordinance then provides: “In reviewing the application, the Department shall consider the stamdards and purposes of the R-H Zone regulations with a view to achieving a maximum of coordination between the proposed development and the surrounding uses, the conservation of woodland and the protection of water courses from erosion and siltation, and a maximum of safety, convenience and amenity for the residents of the apartments within the development. To these ends the Department shall consider the location of buildings, parking areas and other features with respect to the topography of the lot and existing natural features such as streams and large trees; the efficiency, adequacy, and safety of the proposed layout of internal streets and driveways; the adequacy and location of the green area provided, bearing in mind the possible effects of irregularly shaped lots, the adequacy, location, and screening of the parking lots; and such other matters as the Department may find to have a material bearing upon the stated standards and objectives of the R-H zone regulations.” (Emphasis supplied).

It is further provided: “All construction and development under any building permit shall be in accordance with the approved ⁸⁴ site development plan. Any departure from such plan shall be cause for revocation of a building permit or denial of an occupancy permit. Any changes in an approved plan shall be resubmitted for approval in accordance with this subsection.” The applicants in the case at bar in addition to the usual form of application filed by “Jack Kay, et al,” which gave a detailed metes and hounds description of the subject property, complied with these provisions of the new ordinance creating the R-H zone, and presented a plan of development prepared by W. L. Mayne and Associates, architect, Stein and Marcou, planners, Hammer and Company Associates, as economic consultants, and Hal Lackey as attorney. The plan is supported by a plot plan showing the location of the 7 high-rise apartments to contain a total of 1855 apartment units, and photographs indicating the general type of the proposed apartments.

All of those who produced the proposed plan are well qualified and the proposed plan and the elaborate supporting data indicating the need for the proposed apartments, traffic conditions, effect on school facilities, the availability of shopping facilities, the financial and other advantages which will result to Montgomery County, and the like, show their competence. After indicating that the proposal fits into and forwards the purposes of the R-H zone as set forth in the ordinance and a general description of the subject property, the project is described as follows: “This project is planned to provide 7 buildings of 265 units each. Each building will be 15 stories high, will rise approximately 140 feet, and total building coverage is approximately 6.1%. It is also planned so that each building will face on generous landscaped areas and in no case will less than 400 feet separate the building faces.

The windowless end walls are a minimum of 200 feet apart.” The detailed analysis of the proposed design indicates a total land area of 1,855,148 square feet. The allowed coverage of buildings under the ordinance is 8% or 148,412 square feet, ⁸⁵ but each building has an actual coverage of 16,000 square feet or a total of 112,000 square feet, or substantially less than the allowable coverage. In regard to the coverage of the land, 45% coverage (834,817 square feet) is allowed, but the actual coverage totals 829,706 square feet allocated as follows: Buildings 112,000' square feet Drives 226,380 square feet Parking 491,326 square feet The green area of 55% required by the ordinance is 1,020,331 square feet while the actual green area is 1,025,442 square feet, or more than is required. The parking spaces total 2783, the number required by the ordinance (1855 apartment units x 1.5), of which 1811 are surface and 972 are underground spaces.

At the hearing before the County Council, the Planning Commission’s report was submitted to the County Council. After reciting the nature of the application, prior applications and paany of the facts already stated above) the Technical Staff reached the following conclusions: “The previous Zoning Amendment Application C-509 involving the subject property was recommended for denial by the staff as it would have permitted a percentage of lot area to be covered by buildings, parking and other accessory uses which would not have been compatible with the surrounding single-family area. At that time the R-PI zone was not available and the requested R-10 zone would, in the view of many, permit an undesirable type of multi-family development in this area. The staff suggested an R-20 classification which would have permitted an 8-story elevator-type apartment building, as additional yard setbacks were provided for each foot of height in excess of 45 feet.

Subsequently, the Council denied the R-10 application and no further attempt was made on the part of the applicant to request R-20 zoning. “Since C-509 was reviewed the District Council has adopted the R-H zone and the Preliminary General ⁸⁶ Plan calls for multi-family classification on the subject property. The staff still believes the density permitted in this classification would add to the school problem in this area and increase traffic on local highways. However, the staff wishes to point out that the subject property is particularly well suited for multifamily use in that it is directly served by two major highways and one limited access expressway which can carry apartment traffic to all parts of the regional district without the necessity of routing this traffic through nearby single-family neighborhoods. “In view of the recommendation contained in the General Plan and for the above reasons, the staff is inclined to recommend approval of this application with the exception of that area required for the widening of Colesville Road & University Boulevard.” The Planning Board, by the unanimous vote of the 4 members present recommended that the County Council approve the application in accordance with the recommendation of the Technical Staff. Also at the hearing, Hal Lackey, attorney for the applicants; presented the architect’s rendering of the proposed plan, the study of the planners and the report of the economic consultants, all of which were made part of the record.

George Spiegel and Carl E- St. Clair testified in protest against granting the application on behalf of a number of neighboring property owners, giving their reasons in opposition to the granting of the application. These witnesses, however, were not expert witnesses and no expert testimony was produced on behalf of the protestants. In the record are two books of signatures of property owners containing a total of 4921 names and there are additional petitions and letters of protest in the files. There is a book containing photographs showing houses in the area.

The record also contains the proceedings in Application No. C-509 filed by Jack Kay and Ida Kay, his wife, and other named owners,- on November 25, 1960, to change a portion of the subject property (34.74 acres) from a R-60 zone to a R-10 zone. These-same owners'also filed Application No. C-508 at the same time, 'to'change'the remaining 8.49 acres from the ⁸⁷ R-60 zone to the C-2 zone (General Commercial). These applications were denied by the County Council in 1961. In .submitting the application, the original was signed by Jack Kay and sworn to before Muriel B. Lackey whose notarial seal was duly affixed.

Two copies were submitted by the applicant. One of these copies was submitted to the Planning Commission and contained a notarial seal of a notary public other than the one signing it. The appellants make three contentions on this appeal: 1. The failure of the applicant to affix the correct notarial seal to the duplicate copy of the application invalidates the application. 2.

The failure of the applicant to disclose fully all of the names of the owners of the subject property by using the words “Jack Kay, et al” as the owners in the application form invalidates the application. 3. There was no evidence of a mistake in original zoning or of a substantial change in the character of the neighborhood to justify rezoning under the Maryland Rule. We will consider the first two technical objections together. Section 104-33 of the Montgomery County Zoning Ordinance provides as follows: “All applications shall be subscribed by the applicant, shall state his name and address, and if the applicant is a person other than a governmental agency, shall be verified under oath by the applicant.” (Emphasis supplied).

Section 104-35 a (4) provides that the application shall include: “(4) The name and address of the owner of the land.” We think there is no merit to either of the technical objections. As to the lack of the proper seal on the copy of the application sent to the Planning Commission, it is sufficient to observe that the Montgomery County Code does not require that any copy of the application be verified or carry a notarial seal. As to the second objection, i.e., that all of the owners are ⁸⁸ not listed in the application, but only the name of one, Jack Kay followed by the notation “et al”, it should be noted that Jack Kay is one of the owners, holding a 7j4% interest in the subject property. In the appellants’ brief, the holdings in the subject property are considered and it is indicated that this information appeared in the land records of Montgomery County in Liber 2266, folio 546.

The percentages of ownership ranged from 30% to 5%, with Jack Kay holding a 7J/2% interest as above indicated’. This is a substantial interest and, as a co-owner of- the subject property Jack Kay was authorized on his own behalf and on behalf of the other co-owners to file an application for the proposed rezoning. While it is perhaps the better practice to set out fully the names and address of all of the co-owners and to give their respective percentages of ownership, the provisions of the Montgomery County Code do not specifically require this, and the failure to give the names and addresses of all owners is not jurisdictional in any sense. Section 104-31 provides: “Proposals for amendment of the Zoning Ordinance Map may be made * * * by a person with a financial, contractual or proprietary interest in the property to be affected by the proposed amendment.” (Emphasis supplied).

Mr. Kay’s 7y2% interest in the property gives him a proprietary and financial interest. Then too, zoning ordinances are concerned with the use of property, the height of buildings and the density of population. They are not concerned