Bigenho v. Montgomery County Council

Marbury, J., delivered the opinion of the Court. The subject of these appeals is the rezoning of an approximately 270 acre tract of land in Montgomery County, known as the “Floyd Davis” (Davis) Tract. In November of 1965 the owners of this tract filed, with the Montgomery County Council, five separate requests for the rezoning of the subject property as follows: 1 E-642 for 10 acres of C-l or C-2 E-643 for 57 acres of C-P or 1-3 E-644 for 27 acres of R-20 or 1-3 ³⁸⁹ E-645 for 118 acres of 1-1 or 1-3 E-646 for 54 acres of R-20 or R-H At the time these applications were filed the Davis tract was zoned R-90 (one-family, detached, restricted residential) pursuant to the Master Plan of the Cabin John Watershed. Prior to the adoption in 1957 of this Master Plan the subject property was zoned R-60 (one-family, detached residential) and R-A (agricultural residential).

By its report, dated January 18, 1966, the technical staff of the Maryland-National Capital Park and Planning Commission, acting in its advisory capacity, recommended as follows: E-642 denial of the C-2 and C-l zones E-643 approval of the C-P zone E-644 approval of the 1-3 zone, denial of the R-20 zone E-645 denial of the 1-1 zone, approval of the 1-3 zone E-646 denial of the R-H zone and R-20 zone The Planning board itself, after making minor adjustments, approved the recommendations of the technical staff, with slight reductions in acreage. On February 17 and 18, 1966, the five applications came before the Montgomery County Council sitting as the District Council for that portion of the Maryland-Washington Regional District located in Montgomery County, Maryland, where they were consolidated and heard as one application. On April 26, 1966, the Montgomery County Council, by formal resolution, acted on the five applications as follows: E-642 — granted C-l E-643 — granted C-P E-644 — granted 1-3 E-645 — granted 1-3 E-646 — granted R-H The protestants-appellants duly noted timely appeals to the Circuit Court for Montgomery County and on September 2, 1966, these appeals were argued together before Judge Shure, who rendered a memorandum opinion and order on December 6, 1966, in which the action of the Council in granting the requested zoning in E-642, E-643, E-644, and E-645 was affirmed, and the granting of the requested zoning in E-646 was ³⁹⁰ reversed. The protestants filed timely notice of appeal of the action of the lower court to this Court on E-642, E-643, E-644, and E-645 alleging that they were aggrieved persons, and the applicants duly appealed as to E-646.

These two appeals, Nos. 24 and 25 respectively, September Term, 1967, were consolidated and argued together before this Court as one case. The Davis property is a single tract, roughly rectangular in shape, in the midst of a heavily populated suburban section of Montgomery County. At the time of these applications it was undeveloped and was being used as a farm. It is bounded on all four sides by heavily travelled public ways, two of them interstate highways.

Walter Johnson High School and the proposed site of an elementary school are situated within the boundaries of the subject property. There are also several single-family dwellings and farm buildings located on the Davis property. In the immediate vicinity there are churches, a library, shopping centers, a radio station, an electric power company substation, a tract zoned for high-rise apartments to the west across Interstate Route 270, and a 2.7 acre tract to the east across Old Georgetown Road ordered rezoned R-H, which is now pending on appeal before us in case No. 221, September Term, 1967. With these exceptions the property is surrounded by single family residences.

To the north across Interstate Route 70-S the land is zoned R-R (rural residential); to the east across Old Georgetown Road most of the land is zoned R-90, except two small parcels zoned C-l and the above mentioned 2.70 acre parcel ordered rezoned R-H. Across Democracy Boulevard to the south the land is zoned R-60 and R-90. To the west of Interstate Route 270 is a large area zoned C-2, R-20, R-30 (multiple-family, low density residential) and R-H. The remaining area is zoned R-90. • The protestants below (Bigenho, et al.) contend that there was insufficient evidence of mistake or change to warrant the rezoning of the subject property. We find it unnecessary to consider this contention as, in our opinion, the “mistake — change” rule does not govern here as to E-643, E-644, E-645, and E-646. In regard to the property covered by applications numbered E-643, E-644, E-645 and E-646, we think that these parcels in ³⁹¹ volve “floating zones,” analogous to special exceptions.

See Tauber v. Montgomery County, 244 Md. 332 , 223 A. 2d 615 ; Knudsen v. Montgomery County, 241 Md. 436 , 217 A. 2d 97 ; Beall v. Montgomery County, 240 Md. 77 , 212 A. 2d 751 ; Costello v. Sieling, 223 Md. 24 , 161 A. 2d 824 ; Huff v. Bd. of Zoning Appeals, 214 Md. 48 , 133 A. 2d 83 . A floating zone is differentiated from a so-called “Euclidean” zone, in that while the latter is a specific area defined by boundaries previously determined by the zoning authority, the former has no such defined boundaries and is said to “float” over the entire area of the district or zone where it may eventually be established. The floating zone is different from the establishment of an Euclidean zone in that it is initiated on the instigation of a land owner within the district rather than that of the legislative body. While this opens an avenue of attack on the basis that the action is taken for the benefit of an individual land owner rather than for the good of the community as a whole, this criticism is blunted by the fact that the floating zone is subject to the same conditions that apply to safeguard the granting of special exceptions, i.e., the use must be compatible with the surrounding neighborhood, it must further the purposes of the proposed reclassification, and special precautions are to be applied to insure that there will be no discordance with existing uses.

These precautions include such restrictions as building location and style, the percentage of the area covered by the building, minimum green area, minimum and maximum area of the use, minimum setback from streets and other uses, requirement that a site plan be approved, and a provision for revocation of the classification if the specified restrictions are not complied with. Here, the Master Plan, Cabin John Watershed, zoning that part of the Maryland-Washington Regional District in Montgomery County, was adopted in 1957. The classifications involved in E-643, E-644, E-645 and E-646 were all created after 1957 — 1-3 in 1959, R-H in 1962 and C-P in 1963. Thus the only means of effectuating the new classifications short of adopting a new master plan would be to change existing classifications.

The parcels involved in the above mentioned applications fall within the definition of a floating zone. It remains necessary ³⁹² only to examine the three classifications to ascertain if the requisite safeguards are present. In considering these safeguards it is to be borne in mind that the area affected was not a developed integrated portion of the existing community. Rather, it was an undeveloped tract insulated from the surrounding neighborhood by heavily travelled major thoroughfares.

Therefore, the use of the entire tract will have a minimal impact on the community as a whole. Also to be considered is the size of the subject property. When a tract as large as this is reclassified there is little possibility of its being invidious spot zoning. The Davis tract embraces an area large enough to be considered a community in itself and when it is zoned into several classifications it is as important to consider whether the permitted uses are in harmony with each other as it is to ascertain if the entire proposed development is compatible with the surrounding neighborhood.

As to the granting of the C-P classification for E-643 and the 1-3 classification in E-644 and E-645 we find that the evidence before the Council was at least fairly debatable and accordingly, that Judge Shure was correct in affirming the Council’s action. The 1957 Master Plan showed a symbol on the south west portion of the Davis tract indicating that an employment center was to be located there. The uses permitted under 1-3 and C-P are especially keyed to fulfill the anticipations of the planners with respect to such an employment center. The uses permitted by the C-P zone could have reasonably been found not in conflict with existing uses in the community and their effect was minimized by their location at the juncture of two interstate highways and the fact that the remainder of the parcel is contiguous to the 1-3 and R-H zones that are parts of the subject tract.

Ordinarily an industrial use is thought to be at variance with the maintenance of the standards usually associated with a residential community. Thus the purposes and restrictions provided for in the 1-3 classifications must be specifically scrutinized. Montgomery County Code (1965), Section 111-24 establishing the 1-3 zone states as follows: “The purpose of the industrial park (1-3) zone is to provide a protective zone for a park-like development ³⁹³ of industry that is based on the performance of an industry as well as on the type of industry. In order to secure this type of development, the various regulations herein described must be met.

These regulations have been established so as to provide a healthful operating environment for industry, for the protection of industry from the