County Council v. District Land Corp.

Singley, J., delivered the opinion of the Court. In July, 1972, the Montgomery County Council (the Council) sitting as the District Council, enacted Resolution 7-797 which adopted a sectional map amendment affecting approximately 3,903 acres in those parts of the Darnestown and Gaithersburg Election Districts of the County which lay within the boundaries of the Master Plan for Gaithersburg and Vicinity planning area. Approximately 207.9 acres were rezoned by the resolution, including 73.5 acres (the Anderson Tract) theretofore classified R-20 (multiple-family, medium density residential], owned by the appellant District Land Corporation (District Land), which were reclassified as R-R (rural residential), and 35 acres (the Kunlo Tract) which had been classified 1-1 (light industrial), owned by Charles H. Ligón, Steven O. Beebe and A. Dement Bonifant, trustees for Gaithersburg Associates, a partnership (the Trustees), which were also reclassified R-R. District Land and the Trustees had opposed the adoption of the resolution as it affected their properties. They appealed to the Circuit Court for Montgomery County which entered an order reversing the action of the Council insofar as it affected the Anderson Tract and the Kunlo Tract.

This appeal followed. As is typical of zoning controversies involving valuable tracts of undeveloped land, this case has produced a massive record. What is atypical, however, is the narrowness of the only real issue: whether the sectional map amendment adopted by Resolution 7-797 constituted comprehensive rezoning. For a resolution of this question, additional facts must be considered.

When District Land purchased the Anderson Tract in 1967, some 69 acres had already been rezoned R-20. District Land proceeded with its plan to develop the R-20 parcel with apartment buildings, which were permitted in an area so ⁶⁹⁴ classified, despite the fact that there was being developed a Master Plan for Gaithersburg and Vicinity (the Master Plan) during the years 1968-1970 which recommended an R-R classification for the parcel. The Master Plan was finally approved by the Council on 8 January 1971 and by Maryland-National Capital Park and Planning Commission on 14 January. A building permit for the construction of 420 apartment units was issued in August of 1971, but construction could not proceed because of the refusal of Washington Suburban Sanitary Commission to issue water and sewer connection permits, a refusal based on the fact that the proposed development was not in compliance with the Master Plan.

This controversy ultimately reached us in District Land Corp. v. Washington Suburban Sanitary Comm’n, 266 Md. 301 , 292 A. 2d 695 , decided 5 July 1972, in which we remanded the case to the Circuit Court for Prince George’s County for the issuance of a writ of mandamus directing the Sanitary Commission to issue the connection permits. On 11 July 1972, Resolution 7-797 was enacted by the Council. The Trustees acquired the Kunlo Tract in 1965. In 1966, it was reclassified from R-R to 1-1 by the District Council.

We upheld the reclassification in Kirkman v. Montgomery County Council, 251 Md. 273 , 247 A. 2d 255 (1968). A five-acre portion of the property has since been cleared and fenced and is used for the storage of motor vehicles and boats. The Master Plan had been the subject of extended consideration. Public hearings had been held as early as 1968 and the plan was ultimately published in final draft form in June, 1970 and adopted by the Council in January, 1971.

Application F-805, which proposed the sectional map amendment at issue here, was introduced by the Council itself in March, 1972. It was approved by the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission in April and was the subject of an extensive public hearing in June, before Resolution 7-797 was enacted in July. ⁶⁹⁵ The court below, in reversing the action of the Council, concluded that Resolution 7-797 in the contemplation of the County’s zoning ordinance, Montgomery County Code (1972, 1973 Cum. Supp.) § 59-195, was a local map amendment in that it down-zoned two properties and was not, as it purported to be, a sectional map amendment effecting comprehensive rezoning. 1 The court concluded that as a local map amendment, it failed because there had been no showing of change or mistake. See Wells v. Pierpont, 253 Md. 554 , 253 A. 2d 749 (1969).

We simply do not share the trial court’s view. To us, this case seems strangely reminiscent of Montgomery County Council v. Leizman, 268 Md. 621 , 303 A. 2d 374 (1973). There, the property owners held two small parcels, one of which had been reclassified from R-R to C-l in 1966. A little later, the Maryland-National Capital Park and Planning Commission adopted the Master Plan for the Rock Creek Planning Area, which recommended the reclassification of both parcels to R-T (residential-town houses).

In 1971, the District Council approved a sectional map amendment to bring some 30 properties into conformity with that Master Plan. What Judge McWilliams, for the Court, said there at 622 of 268 Md. is a nutshell description of this case: “It turns out, however, that there is really only one question to be resolved, i.e., whether the zoning application . . . filed by The Maryland-National Capital Park and Planning Commission . . . proposes a comprehensive rezoning bearing a ⁶⁹⁶ -substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare. If there is such a relationship then the comprehensive rezoning, which was granted by the Montgomery County Council sitting as the District Council for the Maryland-Washington Regional District in Montgomery County . . . enjoys a strong presumption of validity and correctness, Norbeck, supra, [Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59 , 254 A. 2d 700 (1969)] and the cases therein cited.” In a preamble to Resolution 7-797 the Council stated: “This application is a sectional map amendment filed by the County Council for Montgomery County, Maryland, sitting as a District Council for that portion of the Maryland-Washington Regional District located within Montgomery County, for the purpose of bringing the properties involved into conformance with the Master Plan for Gaithersburg and Vicinity which was adopted by the Maryland-National Capital Park and Planning Commission on January 14, 1971, and approved by the County Council for Montgomery County, Maryland, sitting as a District Council, on January 8, 1971. The purpose of this sectional map amendment is to bring the zoning of all of the lands within the regional district adjacent to the Seneca Creek Park (involving 207.9 ± acres) into conformity with the Master Plan for Gaithersburg and Vicinity.

The total acreage which is the subject'of this application is 3,903 acres. “The application proposes to rezone eight separate parcels as set forth in the application. By memorandum dated April 27, 1972, the Technical Staff of the Maryland-National Capital Park and Planning Commission recommended that this application be approved by the District Council. In ⁶⁹⁷ its report and in its testimony at the public hearing on this application held on June 15,1972, a member of the Technical Staff described the individual parcels and discussed the reasons for the conclusions of the Staff regarding the application. The Staff noted as follows: * * J* The eight parcels were then described, f ive were to be up-zoned; the two at issue here down-zoned, and no action was taken as regards a .64-acre parcel, which had been included in the application in error.

The preamble continued: “Both in its report and its testimony at the hearing, the Technical Staff stated that the most dominant open-space feature shown in the Master Plan for Gaithersburg and Vicinity is the Great Seneca Park which follows Great Seneca Creek and extends throughout the Gaithersburg Planning Area from a point north of the planning area to the Potomac River. The portion of Great Seneca Park south of Maryland Route 355 is to be acquired by the State, and the remaining portion of the park north of Route 355 is to be acquired by the Maryland-National Capital Park and Planning Commission. The subject parcels, therefore, were segregated from the remaining portion of the Gaithersburg Planning Area and made a part of this application so as to bring those lands within the regional district adjacent to the Great Seneca Park into conformity with the Master Plan. The Technical Staff noted that for the most part, the classifications requested are a decrease in intensity to allow the preservation of the Great Seneca Park by establishing only low-intensity development nearby.

Additionally, the parkland is the only wedge between the two-corridor cities of Gaithersburg and Germantown. Thus, the Staff felt ⁶⁹⁸ that the only way to preserve the ‘corridor city concept’ would be to prohibit the encroachment of high-density uses between Gaithersburg and Germantown by low-intensity development near the Park so that the two ‘cities’ could not merge. “On May 11, 1972, the Montgomery County Planning Board and the Maryland-National Capital Park and Planning Commission unanimously, by a 4-0 vote, one member abstaining, recommended to the District Council that this application be approved for the reasons set forth in the Technical Staff report which the Planning Board approved and incorporated by reference into its recommendation. At the public hearing, in addition to testimony by the Technical Staff, numerous citizens testified in favor of the application and indicated that low-density zoning along Great Seneca Park is essential for the protection of the Park and the Seneca watershed. Further, there was testimony that higher density zoning and development should be located in the larger cities, i.e., Gaithersburg and Germantown, and that the intensity of development should be progressively lowered for land moving in the way of the corridor cities.

The Great Seneca Creek represents the natural dividing line between the corridor cities of Gaithersburg and Germantown, and there was testimony that the application, if granted, would be an appropriate manner of preserving the wedge between the two corridor cities.” * * * “The District Council, after thorough consideration and evaluation of the transcript and exhibits of record, agrees with the Planning Board and Technical Staff and finds that this application with a single exception detailed below should be approved as a comprehensive rezoning to bring the zoning of the lands within the regional district that ⁶⁹⁹ are adjacent to the Seneca Creek Park into conformity with the Master Plan for Gaithersburg and Vicinity. The District Council reiterates its agreement with the stated purposes and goals of the Master Plan for Gaithersburg and Vicinity. To achieve these purposes and goals, the District Council deems it necessary to grant the comprehensive rezoning of the several parcels to provide for a coordinated, planned and orderly development of the Planning Area with low density development to preserve the Great Seneca Park as an open-space wedge between Gaithersburg and Germantown and to prevent an urban spread which would merge Gaithersburg with Germantown. Further, the District Council finds that the land use pattern that will result is that which the District Council and Planning Commission have established as County policy by their adoption and approval of the Master Plan, and which is supported by the road network, the sewerage plan, the school locations and other elements of the Plan.” What Chief Judge Hammond, writing for the Court, said in Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59 , 254 A. 2d 700 (1969), is pertinent here: “The appellants argue that for the County to decrease the permissible density of their land and that of other similarly zoned land and to refuse to furnish sewerage to their land in order to control the growth of population and to continue the present open space in the Olney region was to use zoning and planning impermissibly as a substitute for eminent domain and to reduce so substantially the value of their land as to amount to confiscation. “If these contentions are sound, no zoning would ever have been allowed or sustained and all comprehensive rezoning would have to continue or increase permissible density, not reduce it.

All original zoning decreases the right to use property ⁷⁰⁰ as the owner pleases. Zoning places restrictions on property that was free of any restriction and the value of some if not most of that property necessarily is going to be lessened. None of this as such invalidates comprehensive zoning, original or subsequent. Euclid v. Ambler Realty Company, 272 U. S. 365 , 71 L. Ed. 303 [(1926)]; Ark Readi-Mix v. Smith, 251 Md. 1 [, 246 A. 2d 220 (1968)].

The broad test of the validity of a comprehensive rezoning is whether it bears a substantial relationship to the public health, comfort, order, safety, convenience, morals and general welfare, and such zoning enjoys a strong presumption of validity and correctness. Scull v. Coleman, 251 Md. 6 [, 246 A. 2d 223 (1968)]; Stevens v. City of Salisbury, 240 Md. 556 [, 214 A. 2d 775 (1965)]. A property owner has no vested right to the continuance of the zoning status of his or neighboring property, merely the right to rely on the rule that a change will not be made unless it is required for the public good. Wakefield v. Kraft, 202 Md. 136, 144 [, 96 A. 2d 27, 30 (1953)]....” 254 Md. at 65-66 .

Scull v. Coleman, 251 Md. 6 , 246 A. 2d 223 (1968) involved a similar issue: “On September 21, 1966, the Maryland-National Capital Park and Planning Commission (Planning Commission) adopted a Master Plan for Kemp Mill-Four Comers and [V]icinity of Montgomery County. The area covered by the plan consisted of 4,263 acres in southeastern Montgomery County, of which approximately eighty-nine per cent was developed at the time of the adoption. The Planning Commission filed zoning application No. E-955, a sectional map amendment, with the District Council on December 2, 1966, for the purpose of rezoning