Cabin John Ltd. Partnership v. Montgomery County Council

Smith, J., delivered the opinion of the Court. We shall here affirm the action of a trial judge (Moore,. J.) who affirmed a denial by a District Council of a request for rezoning. Appellant Cabin John Limited Partnership (Cabin John) is the owner of a parcel of land said to comprise, three-quarters of an acre located at the northwest corner of the intersection of Tuckerman Lane and Seven Locks.

Road in Montgomery County in the Cabin John Planning Area. The master plan for Cabin John Watershed, was adopted in 1957. By a sectional map amendment in 1958 subject property was placed in a R-90 zone (One-Family, Detached, Strictly Residential, 9,000 square foot, minimum lot size). It was continued in that classification when an amended zoning ordinance and map was adopted on May 31, 1958, which is the most recent comprehensive rezoning applicable to the property.

What was here sought was a change to a C-l zone (Local Commercial). Cabin John presents three basic questions to us. The-first two deal with whether Cabin John established an error in the original zoning or a change of conditions. The other one has to do with the hearing examiner’s refusal to admit testimony relative to a market survey.

The land in question is improved by a two-story frame dwelling. It is a lot with a frontage of 215.36 feet on Tuckerman Lane, a depth back from Tuckerman Lane of 180.06 feet, a frontage on Seven Locks Road of 155.73 feet and a depth running back from Seven Locks Road of 194 feet. Dubbéd as “totally irrelevant” by Cabin John is the fact that it also owns the land adjoining on the west as well as two other corners of the intersection. To the west of the immediately adjoining land owned; ⁶⁶³ by Cabin John there is an extensive area zoned R-90' known as Regency Estates with a number of homes in the $35,000.00 to $45,000.00 price range.

The land owned by applicant between subject property and Regency Estates is said to comprise approximately 8.2 acres. It has been zoned R-90 since 1958. The land on Seven Locks Road north of subject land and the adjoining parcel owned by Cabin John, said to be “of relatively level topography”, is undeveloped and has been zoned R-90 since 1958. It in turn is abutted by a 10 acre parcel owned by Cabin John and zoned R-90 since 1958, upon which approximately 31 single-family homes are being developed.

In the northeast quadrant there is a tract of five acres zoned C-l since 1958. At the time of the hearing three and a half acres of that were under development by Cabin John as a modern shopping facility. Although in the northeast quadrant, this land did not abut on the intersection, but was set back approximately 300 feet. The remaining one and a half acres were not being developed at the time of the hearing.

One-half of it is owned by Cabin John; the other half (or three-quarters of an acre) is owned by a third party. Surrounding all but the north-westernmost portion of this commercial land is a tract of approximately 12 acres zoned R-90 since 1958 upon which an off-street parking lot to be utilized in connection with the adjoining commercial use was in the process of development at the time of hearing. This tract also is owned by Cabin John, whose land in the northeast quadrant totals approximately 80 acres. Cabin John owns approximately 170 acres of land in the southwest quadrant of the intersection, most of which has been zoned R-90 since 1958 and is undeveloped.

In the southeast of the intersection all of the land has been zoned R-90 since 1958. Certain of the witnesses produced by Cabin John were concerned with the possibility of erection of a service station on the property since it was stated that if the rezoning were granted an application would be made for a ⁶⁶⁴ special exception to permit a service station. Their testimony is not relevant to the issue of whether the rezoning should have been granted since their testimony was not concerned with whether there had been an error in the original zoning nor did it bear upon the issue of change. On the issue of change or mistake there were two witnesses, Page F. Hopkins and Robert B. Friedman, the latter of whom was also an officer in a company which was a partner in Cabin John.

Hopkins pointed out that the topography of the lot is extremely precipitous, having “a difference in elevation in excess of 40 feet”. 1 He said in part: “In reviewing both the topography and the land use as set forth in the Cabin John master plan, it is our considered opinion that a mistake occurred in leaving that land in the northwest quadrant in the single family residential category because of two factors. “One, it has the worst topography of the four corners of the intersection. Secondly and just as important, the ownership is fragmented. And it has been proven time and time again that it is virtually impossible to combine fragmented ownerships. The specific piece of ground that we are working with because of its small size and because of the 40 feet of topographic relief on the subject property makes it completely unusable in its existing zoning category.” He admitted that it might be possible to build two homes ⁶⁶⁵ on the land but said that two possible homes on 38,000 square feet of R-90 land was not reasonable yield for the land and that the continuation of R-90 was in effect a confiscation of the land.

On the issue of change, Hopkins said there had been a substantial increase in the number of dwelling units in the neighborhood, although the neighborhood did not appear to be defined with precision. He estimated that there had been an increase of 2,017 dwelling units in the area, which he thought “would produce 7,080 additional people over and above what the plan originally contemplated”. He also pointed out that 96.2 acres of 1-3 (Industrial Park) and .2 of an acre of C-0 (Commercial Office Building) zoning, both within the Cabin John Plan, would “produce 100 people per acre from the standpoint of buying power”, providing “a total increase in buying power within the area not contemplated when the plan was developed of 16,700 people”. He estimated “that there are going to be approximately 9,000 plus people employed in the area.” He said that since 1958 a total of 10.7 acres in the Cabin John Master Plan area had been “rezoned to either the C-l or the C-2”, although he qualified that by pointing out “that the bulk of that was in the Village of Potomac which is now covered by the Potomac-Travilah Plan.

But there were a total of seven separate applications granted since 1960”. As Cabin John puts it in its brief: “These increases of residential units and their consequent increase in population were used by Hopkins to demonstrate a change in conditions which would warrant additional local commercial zoning. He did not use all the other zoning changes in the Plan for justification. He noted that the planning commission’s guideline for this type of commercial is one acre per 1,000 population, and that, thus, additional commercial clearly was called for. “Hopkins also pointed out that the commer ⁶⁶⁶ cial zoning planned for this location in 1957 had not been increased despite zoning changes and increases in residential units.” Hopkins claimed it was impossible to obtain the “highest and best use” of subject property if it were retained in the present R-90 classification.

Friedman was actually called as a witness by the opposition. He said that there had been a proposal for a .fire station on subject property which would have been ■a use permitted in a R-90 zone. This plan did not materialize. Various studies were then made to determine an appropriate use for the property.

He thought it unsuitable for development in the R-90 classification because of its shape, size and location, and believed that ■only two R-90 lots could be achieved. He said development costs would be about $11,000.00 a lot, that a finished lot (including cost of land) would cost about $23,-000.00, and that, in his opinion, a house selling for “four to five times that” or $100,000.00 would have to be built, ■“which is way out of range of that neighborhood” of $35,-000.00 to $45,000.00 houses. Extensive evidence was presented to the hearing examiner who recommended rejection, of the application. Her excellent and very comprehensive opinion included ■the following: “The only reclassifications which have occurred in this general area since 1958, the date of the last comprehensive rezoning applicable to the subject property, lie approximately % of a mile, or more, away from the subject property.

Approximately % of a mile to the west of the subject property, and lying south of the Regency Estates Subdivision, in excess of 160 acres of land' have been reclassified from the RR zone (Rural Residential, 20,000 square foot minimum lot size) to the R-150 zone (Density Control Development, One-Family, Detached, Restricted, Residential, 15,000 square foot mini ⁶⁶⁷ mum average net lot area) by the grant of Application Nos. E-110 in 1965; E-709 in 1966; and E-979 and E-980 in 1967. A substantial R-150 subdivision, known as Fox Hills, containing several hundred homes has been developing on much of this property. Approximately % of a mile to a mile to the south of the subject property, and lying along the east side of Seven Locks Road, approximately 25 acres of land have been reclassified from the R-90 zone to the R-T zone (Town houses, 3,500 square foot minimum net lot area per town house) by the grant of Application Nos. E-276 in 1965; E-605 in 1966; and E-1016 in 1967. No construction has yet taken place on any of this R-T zoned land.

Other re-classifications from less dense to more dense residential zones have occurred in areas more than a mile distant from the subject property. Indeed, since 1958, there have been in excess of 30 zoning reclassifications in the entire Cabin John Planning Area. “There are presently a number of shopping facilities available to service the area herein involved. All of the property within a one mile radius of the subject property falls within the trading area which the 3.5 acre neighborhood shopping center, recently completed in the northeast quadrant of the intersection herein involved, is designed to service. This same area also falls within the 4-mile trading area radius which the recently completed, 60 acre regional shopping center, known as Montgomery Mall, located at the intersection of Bells Mill Road and I-70S, approximately 2 miles to the southeast of the subject property, is designed to serve.

The Wildwood Shopping Center, located at the intersection of Bells Mill Road and Old Georgetown Road, and the 15-acre Potomac Shopping Center, located at the intersection of River Road and ⁶⁶⁸ Falls Road, each lie approximately 3 miles to the southeast and southwest respectively, of the subject property. There are extensive shopping-facilities, including Congressional Plaza, a Super Giant, and Korvette’s located to the north of the subject property on the Rockville Pike. In- addition, Application No. E-914, a request for the reclassification from the R-R zone to the C-1 zone of a 15' acre tract of land, lying on the west side of Falls Road, south of the proposed Outer Circumferential Freeway, approximately % miles to the northwest of the subject property, is presently pending before the Hearing Examiner. “In addition to these commercial facilities, there are in excess of 20 automobile filling stations with a total of in excess of 160 pumps located within a 3 mile radius of the subject property. The closest of these stations are two located at Montgomery Mall, approximately 2 miles from the subject property.” At another point she said: “There have been a number of reclassifications of land lying % of a mile or more from the subject property.

All of these reclassifications have been from the R-R zone to the R-150 zone or from the R-90 zone to the R-T zone. The Fox Hills Subdivision, a subdivision of substantial, high quality homes, has been developing on a portion of the land reclassified to the R-150 zone. No development has yet taken place on any of the land reclassified to the R-T zone. “The applicant contends that these changes are sufficient to justify the requested reclassification in the instant case. I do not agree.

All of the reclassifications relied upon are too remote from the subject property to have any significant impact on the neighborhood as a whole ⁶⁶⁹ or the subject property in particular. Moreover, because the reclassifications from the RR zone to the R-150 zone resulted in development less dense than that resulting from the R-90 zoning of the subject property and its environs, such reclassifications and development are too minimal in effect to constitute evidence of a substantial change in the character of the