Chevy Chase Village v. Montgomery County Council

Barnes, J., delivered the opinion of the Court. The two principal questions involved in this zoning appeal are whether or not the Circuit Court for Montgomery County (Shure, J.) erred by passing its order of November 10, 1969, affirming the order of February 25, 1969, of the Montgomery County Council, sitting as the District Council for the Maryland-Washington Regional District in Montgomery County (District Council), affirming a reclassification of 82,500 square feet of land located on the north side of Western Avenue and Kirkside ²⁹ Drive in Chevy Chase, Montgomery County, from the R-60 (one-family, detached residential) zone to the R-150 (density control development, one-family, detached, restricted residential, average lot size) zone upon the application of the contract purchasers of the land, W. R. Frank Hines and Michael J. Rinaldi, two of the appellees, because (1) the District Council in its opinion failed to set forth any conclusions or reasons in regard to either mistake in original zoning or change in the character of the neighborhood and (2) the evidence before the Board did not establish that any mistake in original zoning or change in the character of the neighborhood had occurred. The subject property, as indicated, contains 82,500 square feet of unimproved land. It is rectangular in shape and located on the north side of Western Avenue between Wisconsin Avenue, Kirkside Drive and Grove Street in Chevy Chase.

There is frontage on both Western Avenue and Grove Street which is parallel to Western Avenue on the north side of the property. Immediately adjoining the property to the northeast is the Church of Jesus Christ of Latter Day Saints erected in 1955. The church parking lot is located on the Grove Street side of the property. Adjoining the subject property on the southwest is the off-street parking lot for the Chevy Chase Shopping Center, beyond which is the shopping center, itself, in a C-2 (general commercial) zone.

To the south, across Western Avenue, in the District of Columbia and opposite the subject property, is the Lisner Home, a home for retired ladies. South of the Lisner Home is the Washington Medical Clinic and to the north is the Chevy Chase Playground. To the south of the Washington Medical Clinic are single-family residential dwellings under the jurisdiction of the Government of the District of Columbia. To the north and northeast of the subject property is an area of well-maintained, single-family homes developed in the R-60 zone.

The area of the intersection of Wisconsin Avenue and Western Avenue is a major commercial center occupied not only by the shopping center but also by Saks Fifth ³⁰ Avenue, Raleigh Haberdasher, Woodward & Lothrop, Lord and Taylor and others. The Barlow Office Building, the Highland House and the Willoughby and Irene Apartment Hotels lie to the northwest of the commercial center (zoned C-2) at this intersection. The commercial shopping area is buffered from the residential uses to the northeast by the off-street parking lots which operate as special exceptions in the R-80 zone. The shopping center’s off-street parking lot, which adjoins the subject property on the west side, is separated from it by a retaining wall and screen planting.

There is a substantial change in grade between the parking lot and the subject property ranging from two feet at Western Avenue to 16 feet at the rear portion of the subject property adjacent or in close proximity to Grove Street. The applicants admitted at the hearing before the hearing examiner — and it is conceded in the case — that if their application for the R-150 zoning were to be granted, they intended to petition the Board for a special exception for a funeral home. Although the single-family residential uses permitted in an R-60 and an R-150 zone are the same, funeral homes and riding stables are permitted as special exceptions in the R-150 zone but are not permitted in the R-60 zone. A. Morton Thomas, Jr., a qualified land planning expert, testified for the applicants that the R-150 zone would be compatible with the area, would complement the existing uses and would not damage the existing development of surrounding properties.

He testified that the “down zoning” of the subject property from R-60 to the R-150 zone would reduce the potential single-family building lots from ten to four and, in his opinion, the rezoning to the R-150 zone was justified because property had been developed and assembled in large tracts up and down on both sides of Western Avenue. He concurred with the conclusion of the Technical Staff of the Maryland-National Capital Park and Planning Commission (Planning Commission) that the requested C-l (local commercial) zoning would not be compatible with the de ³¹ velopment in the area, but that the requested R-150 zoning would be compatible. Mr. Thomas was also of the opinion that if and when the applicants applied for a permit to use the subject property as a funeral home as a special exception, such a use would not be injurious to the surrounding and neighboring properties, but, on the contrary, would be an appropriate use for the subject property as a “problem piece of property.” James M. Hunnicutt, a qualified traffic and parking expert testified that there would be no traffic problem if the rezoning to an R-150 zone were granted or if ultimately a special exception for a funeral home use were granted. He stated facts and reasons sustaining his opinion.

W. R. Frank Hines, one of the applicants, testified that for 52 years he has been a licensed funeral director in the District of Columbia at 14th Street and Harvard Street. As a result of the deterioration of that neighborhood and the riots in April 1968, he testified that his clients were afraid to go to his District of Columbia establishment. He has been operating his business at a loss and must remove his business from the District of Columbia. Michael J. Rinaldi, the other applicant, is also a licensed funeral director in the District of Columbia.

He testified that he operated his business at 7400 Georgia Avenue, N.W., some two blocks north of Walter Reed Hospital. Although the conditions surrounding his location are not as aggravated as those surrounding the location of Mr. Hines, there have been “a number of problems” in the surrounding area that require him to remove his business from the District of Columbia. He estimated that 60 % of his business came from residents of Maryland. Both Mr. Hines and Mr. Rinaldi testified in regard to their efforts to locate suitable sites for their business in Maryland.

Both agreed that the subject property was ideal for this purpose, would not injure the surrounding properties in anyway, create any traffic or other hazards, and that the proposed funeral home would be a modern, well-located, well-operated and screened established. The applicants’ architect, Marvin J. Cantor, practicing ³² in both the District of Columbia and Maryland, had prepared plans showing the location and nature of the proposed funeral home on the subject property. These plans were introduced into evidence before the hearing examiner, showing that the structure would cover approximately 8,000 square feet (of the entire 82,500 square feet), that the porte-cochere would set back some 75 feet and the main building some 100 feet from the property line on Western Avenue. The rear set back is almost 90 feet from the property lines.

There would be 155 or 158 parking spaces, more than sufficient to meet code requirements and more than ample to meet all practical needs. The only entrances and exits would be on Western Avenue. The proposed funeral home is shown as well screened and planted; the applicants “expect to save virtually every tree intact on both side lot lines.” For the protestants, Algernon S. Gardner, Jr., a qualified real estate broker and expert, was of the opinion that a funeral home in the location would “be an intrusion” into a high class residential neighborhood in which homes were selling from $52,000 to $73,000. He admitted, however, that if the funeral home could not be seen from Grove Street, it would have no effect upon the residential properties and that the church would buffer the homes on Western Avenue from the subject property.

James D. Pammel, a real estate expert from Virginia, also testified for the protestants. It was his opinion that the proposed R-150 zone was not appropriate for the subject property, pointing out that on all sides of the property within Montgomery County the zoning was R-60 and that across Western Avenue in the District of Columbia the zoning was R-2 (single-family residential detached housing). He also observed that the subject property had been zoned R-60 in the comprehensive zoning in 1954; and that prior to that for many years it had been zoned R-A, a comparable zone to the R-60 zone. He also pointed out that in 1955 the District Council had declined to rezone the subject property from R-60 to C-l, observing that the proposed reclassification to a commercial use ³³ would be an unwarranted intrusion into an area composed mainly of single-family residences; and, further that in 1960 the District Council had declined to permit funeral home uses in intense residential zones in Montgomery County, including the R-60 zone.

In his opinion a funeral home use was essentially a commercial use which would have a depressing effect upon the surrounding residential users. Two nearby residents in the area, George Collins and Dr. Hewitt Varney, also testified in opposition to the granting of the application. It is uncontested that they had status to challenge the granting of the application as “parties aggrieved” in view of the location of their properties. They stated their reasons for the opposition, principally directed at any funeral home use, and why the proposed use would depreciate the value of their properties.

Both the Technical Staff and the Montgomery County Planning Board (the Planning Board) of the Planning Commission pointed out that the requested rezoning does not conform to the zoning and highway plan for “West Chevy Chase and Vicinity,” adopted February 5, 1964, as amended; that the present R-60 zoning had been in effect since the 1954 Comprehensive Zoning Ordinance; that prior to that ordinance the land had been zoned Residential “A”, and, that the present application was the fourth request for more intensive use of the subject property than the R-60 zone permits. Both the Technical Staff and the Planning Board, however, recommended denial of the requested C-l zoning, but recommended that the District Council grant the R-150 zoning alternatively. The Technical Staff and the Board were of the opinion that the rezoning to R-150 and the ultimate granting of a special exception for a funeral home would solve a difficult land use problem for the undeveloped subject property in that (1) such a use was compatible with the surrounding area; (2) would stabilize the neighborhood and act as a transitional area between the commercial and the residential areas; and (3) if the subject property were not used for ³⁴ a funeral home, the R-150 zone only permitted as a right the same type of residential use as was permitted in the R-60 zone. It is significant to observe that neither the Technical Staff nor the Planning Board were of the opinion or found that there had been any mistake in original zoning or any change in conditions which changed the character of the neighborhood justifying the recommended rezoning to R-150.

In so far as the requested C-l rezoning was concerned, they stated that this should be denied because “an effective termination of the commercial area has been established, and * * * there has been insufficient change in the surrounding area to allow further encroachment of commercial zoning into the single-family neighborhood to the northeast.” (Emphasis supplied.) The Hearing Examiner, Charles G. Dalrymple, in a comprehensive and well-considered opinion, filed December 12, 1968, recommended that the application be denied for both C-l and R-150 rezoning. After reviewing the above-mentioned facts in detail, he observed the previous action of the District Council in permitting funeral homes as special exceptions in the R-A, R-R and R-150 zones, but declining to permit the same use in the R-60 and R-90 zones on the basis of density of development. He was of the opinion that “to grant this application for the R-150 zone would be providing indirectly that which the [District] Council declined to provide when it refused to amend the Ordinance to include funeral parlors as a special exception in the R-60 areas.” His conclusions were: “1. There has been no change in the character of the surrounding neighborhood to the extent necessary to justify either the C-l or the R-150 zoning of the subject property. “2.

The granting of either of the requested reclassifications would be contrary to the existing zoning in the area and the recommended zoning for the West Chevy Chase Planning Area. ³⁵ “3. The subject property lies within an R-80 type community and thus is inappropriate even for consideration to rezoning to a classification which would permit the filing of a special exception for a use which was precluded in the R-60 zone by the District Council under Application No. C-1235.” The District Council after considering the Hearing Examiner’s Report remanded the case to him to supplement his Report in order “to more fully acquaint the [District] Council with the testimony relating to the impact of funeral homes on residential life. . .” Thereafter, on February 13, 1869, the Hearing Examiner filed his Supplemental Report and Recommendations reviewing the evidence on the subject matter of the referral, but made no attempt “to evaluate the evidence to determine whether, in fact, a funeral home on the subject property would be compatible with the surrounding development or would have an adverse impact thereon.” He indicated that the latter evaluation was more properly the function of the County Board of Appeals. The Hearing Examiner, however, reaffirmed his conclusions in the original Report that “the neighborhood in which the subject property is located is an R-6Q type neighborhood and no change in character or mistake has been demonstrated to warrant either of the requested reclassifications.” The District Council on February 25, 1969, by a vote of four to three, disagreed with the Hearing Examiner. It adopted a resolution granting the requested rezoning to R-150 and denying it for the C-l zone.

The majority of the District Council adopted in substance the reasoning of the Technical Staff and Planning Board and stated in relevant part: “Without attempting to determine the suitability of a funeral home at this location, that being a function of our Board of Appeals, the Council concludes that the subject property lies in an area where the pattern of development has ³⁶ been on tracts larger than normally associated with R-60 zoning. The use proposed appears to be compatible with the surrounding area, in that it lies near a major concentration of C-2 zoning at the intersection of Wisconsin and Western Avenues, directly to the northeast of the subject property there is presently the Church of the Latter Day Saints and its parking area, directly to the southwest there being the Chevy Chase shopping center and its parking lot, to the southeast and across Western Avenue we find the Lisner Home for the elderly and the Washington Medical Clinic, and on the north side of Grove Street, opposite the subject tract are four R-60 lots resubdivided into two 10,000 square foot lots and one 8,750 square foot lot. This application is consistent with the pattern of development in this area on tracts larger than those