Dustin v. Mayor of Rockville

Menchine, J., delivered the opinion of the Court. Although this “case of the eternal triangle” does not involve domestic relations, it has engendered discussion, heat and litigation of equal or greater intensity than such cases. At issue here is the zoning fate of a roughly triangular parcel of land (65,296 square feet) that had been zoned 1-2 (Light Industrial) from 1957 until rezoned to R-75 (Single Family Residential) on May 21, 1973. It was the last remaining unused, undeveloped part of industrial land of substantial acreage adjoining the residential development known as “Twin Brook,” in the City of Rockville.

At the time of initial zoning, the triangle was attached to and formed an integral part of the larger industrially zoned parcel. When originally zoned, that parcel had a limited actual industrial use. One portion then was in use by a propane gas company; a second by a plant manufacturing wooden screens. The latter facility was destroyed by fire and not replaced.

Although the industrial area developed slowly in the course of years following 1957, by 1973 it had become substantially fully utilized for industrial purposes, principally in warehousing enterprises. When annexed to the City of Rockville in 1957, the residential development of Twin Brook was substantially complete as a community of moderate cost homes. Fifteen dwellings have been added since 1957, so that few, if any, lots remain undeveloped within it. In short, from the time of ³⁹¹ original zoning actual development within the neighborhood overwhelmingly has been, both in the residential and industrial zones, in accord with the zoning originally applied to it.

The single exception was the zoning change of a small lot from 1-2 to R-75. That lot lay to the south of the subject property across Rockdale Avenue but on the same side of Lewis Avenue as the subject. The uncontradicted evidence, however, showed that the extension of those two streets made the last mentioned lot incapable of industrial use because of its size and shape. At the time of initial zoning Lewis Avenue came to a dead end at the northern boundary of the industrially zoned land.

Principal access to that land then was provided by Halpine Road, a street forming its southern boundary. At the western boundary of the industrially zoned land were the tracks of the Baltimore and Ohio Railroad. The zoning of the land lying west of those tracks was 1-1 (Heavy Industrial). Further to the west, the land was zoned for commercial use.

In the course of the years two changes in the road pattern occurred. First, Lewis Avenue, extended to intersect Halpine Road, was constructed as an industrial road substantially wider than its counterpart to the north; secondly, Halpine Road was terminated at the point where formerly it had crossed the tracks of the railroad, apparently because of train-motor vehicle collisions at that grade crossing. The latter change had a twofold effect: (a) it prevented the movement of industrial traffic to the west across the railroad tracks toward arterial highways existent in that direction, and (b) it compelled the movement of such traffic through the roads of the Twin Brook residential community. These changes were brought about in 1965 or earlier, substantially prior to completion of the new industrial expansion taking place on the west side of Lewis Avenue as extended.

Exhibit B showed the nature of the neighborhood as it existed in 1957 when initially zoned. Exhibit A showed the substantially complete development of the area on the date of the last hearing on May 15, 1973. We reproduce parts of those Exhibits for clearer focus upon the issues presented here. ³⁹² Hatched area indicates 1-2 zoning and street pattern existent at time of hearing in May, 1973. Subject tract shown as in other exhibit.

Cross-hatched area indicates 1-2 area rezoned to R-75 by an owner’s prior petition. ³⁹³ Hatched area indicates 1-2 zoning and street patterns existent in 1957. (Subject parcel, roughly triangular, shown within broad lines at upper right of 1-2 tract.) Unhatched areas north of Halpine Road and East of railroad tracks indicate R-60 zoning. ³⁹⁴ The extension of Lewis Avenue had caused the subject property to be severed from the larger industrial tract. The coupling of an extension of Rockland Avenue into Lewis Avenue created a second parcel separation from the 1-2 zone. The latter (shown cross-hatched on Exhibit A) was the subject of the only reclassification made in the entire neighborhood in the years between 1957 and 1973.

Two dwellings facing the center of the industrial area on the other side of Lewis Avenue were constructed on that lot. The years following the extension of Lewis Avenue and the closing of Halpine Drive found the subject land lying idle, serving only as a place of play for the children of the community. Many residents of Twin Brook made clear that it was their desire that the subject tract continue to serve the community as a small park. Indeed, the record shows that the residents urged the city fathers to negotiate attempts to acquire the tract for park purposes.

Negotiations were undertaken but failed to achieve that result. Such was the background of the subject tract in July, 1972 when its owner, Ronald B. Dustin, a co-partner on behalf of Rockland Partners, a partnership, entered into a contract with Berger/Berman Buildings, Inc. for its sale. The sale price of $134,000 was made contingent upon: (a) issuance of a use permit for the construction of a warehouse facility; and (b) grant of a building permit for such construction. Residents of the community quickly gained knowledge of the proposed use of the land.

Immediate efforts were taken by resident associations to effect a zoning change that would prevent use of the land for industrial purposes. Letters of protest were written by aggrieved residents. One, written by Richard R. Haight as chairman of the Twin Brook-Rockcrest Neighborhood Advisory Council, was addressed to the Mayor and Council of Rockville, dated August 21, 1972, advising the municipal corporation that the citizens association desired to apply for rezoning. He requested waiver of the filing fee generally required.

On September 14, 1972 the municipal corporation responded as follows: ³⁹⁵ “The Mayor and Council, at its meeting on September 11, 1972, discussed the request of the Twinbrook-Rockcrest Neighborhood Advisory Council for the waiver of the fee in connection with application for rezoning of a plot of ground known as lot 1, block C, Halpine subdivision. Councilman Northway reported that the Planning Commission had considered this particular rezoning and had decided to delay action until the results of the down zoning case 1 now before the courts is known. “It was the consensus of the Council that it would be unwise to wait for the pending case to be decided and that action should be taken on the rezoning in Halpine as soon as possible. The Planning Commission is being requested, therefore, to move ahead on this matter and file the rezoning application on the behalf of the Twinbrook-Rockcrest Neighborhood Advisory Council. With the Planning Commission as applicant, there would be no fee involved.” On September 19, 1972 the City of Rockville Planning Commission filed Application M-226-72, seeking reclassification of the subject property from the 1-2 (Light Industrial) zone to the R-75 (One-Family Detached Residential) zone.

The application stated inter alia: “This reclassification is sought by reason of — mistake in the original zoning 2 — other reasons set forth below. “The following is a concise statement of the facts and circumstances upon which the Applicant relies to justify the reason(s) set forth above for this reclassification: The subject property was vacant and sur ³⁹⁶ rounded on three sides by residentially-zoned and used land at the time of the adoption of the existing zoning classification. Such action was contrary to the preservation and promotion of the public health, safety and welfare and detrimental to the use and enjoyment of the surrounding residential land.” Although the application for rezoning had been instituted by the Planning Commission, its rejection was recommended by the planning staff. The planning staff on November 14, 1972 directed a memorandum to the Planning Commission that declared inter alia: “The recommendation of the Planning Commission: The existing zoning on the subject property resulted from the comprehensive Zoning Map and Ordinance adoption of 1957 and was a carry-over from the previous zoning map. There may have been an error in the placement of this and other properties on the industrial zone.

Little justification can be found, in retrospect, for an action placing this area in an industrial zone, particularly since the only industrial use, at this time, was at Halpine Avenue, and no additional access was contemplated. However, the substantial change in the developed character of the industrially-zoned portion of the neighborhood since that date, i.e.: construction of an industrial access road and total industrial development of the southeast side of Lewis Avenue, militates very strongly against changing the zone classification at this point in time. “Another area of concern here, particularly for those living in the area, is that of further change in the neighborhood, if the subject parcel develops industrially; this is seen by residents as leading to additional industrial zoning requests on adjacent residential lots; a situation that has existed and been difficult to check in the Stonestreet Avenue area. The Stonestreet Avenue area was likewise ³⁹⁷ probably a ‘mistake’ in zoning; however, the ‘change in character’ of that area has been the overriding factor in judgments leading to industrial zoning changes. Rezoning the subject property to residential, of course, wTould not guarantee that pressures could not still develop for zoning changes in the Lewis Avenue area in the future; other properties, presently developed residentially, may become attractive to industrial speculators. “It appears that any argument for granting the reclassification as requested will necessarily be a weak one, given the zoning and development history of the area.

Industrial use of the subject property, with the controls placed upon it by the Ordinance and additional amenities added at the Planning Commission’s discretion, can assure a development that will not, in our judgment be detrimental to the neighborhood, nor create a condition greater than currently exists as argument for further industrial encroachment in the area. We cannot conclude, or advise the Commission, that the available evidence supports reclassification as sought by M-226-72.” The adverse recommendation of the planning staff did not dissuade the Planning Commission. At its meeting on November 15, 1972, the Planning Commission, by a divided three to one vote, 3 thus stated the conclusions of its majority: “1. The original zoning, dating from the time of annexation prior to 1957, and restated at the time of Zoning Ordinance and Zoning Map adoption (October 1, 1957) was a mistake; this property, and others in the City at the south end of Lewis ³⁹⁸ Avenue, should have been originally classified as residential, not industrial land. “2.

The subject property is the only part of the original industrially-zoned land, described in #1 above, which is east of Lewis Avenue and has remained in the 1-2 zone since that time (another, smaller parcel east of Lewis Avenue was rezoned from 1-2 to R-75 by its owner, several years ago, for residential development). Because it is therefore the single most intrusive segment, into the existing developed residential neighborhood, of that which was originally mistakenly classified it represents the most severe threat to that neighborhood if developed in its present zone. The threat is not, in the Commission’s judgment, only that of the intrusion into the neighborhood of a dissimilar and incompatible use, but also of the risk and incentive it would present for speculative transfer of developed residential properties, diminution of property maintenance, pressures for residential-to-industrial reclassification, and subsequent further industrial encroachment into the neighborhood. This would be to the detriment of that neighborhood, and would represent the loss of existing moderate-income housing, a valuable and largely irreplaceable commodity.” In the meantime, the property owner’s application for a use permit for the property under its 1-2 zoning had run into stormy weather.

The planning staff on November 1, 1972 recommended its grant. The use permit was withheld by the Planning Commission, however, with the property owner being advised on November 30, 1972, “ * * * that the Planning Commission will not take action on the referenced application, for an industrial use of Lewis Avenue and Rockland Avenue, pending a decision by the Mayor and Council on map amendment application M-226-72 affecting the same property.” With the stage so set, the public hearing began on ³⁹⁹ December 5, 1972. 4 It became apparent at the outset that the dispute between the planning staff and the Planning Commission had not been resolved. The proceedings were opened with a statement of Michael J. Bathke, Acting Director of Planning for the City of Rockville, making it crystal clear that although he was acting as spokesman for the Planning Commission and was attempting as best he could to present the Commission’s viewpoint that the reclassification should be granted, his professional views were to the contrary. As a planning expert he declared that he shared the views expressed in the staff recommendation that reclassification should be denied.

Because we have detailed the staff recommendation we believe it unnecessary to set forth at length his testimony supporting his personal views, beyond a summary that he felt that the available evidence did not support reclassification. Sixteen community residents testified as proponents of the Planning Commission’s application. Their testimony in large measure consisted of expressed desires that the subject land continue to serve community uses as a park or playground for children and of generalized expressions of fear that industrial use of the property would harmfully affect traffic conditions and endanger the safety of their children. A former Mayor of Rockville contended that industrial use of the subject property would thrust a wedge-like intrusion into the residential community.

Other witnesses stressed the severance of the subject tract by the extension of Lewis Avenue, pointing out that a smaller separated tract lying to the south of the subject had been reclassified from 1-2 to R-75 zoning, and suggesting that this was a change in the character of the neighborhood such as would justify the proposed reclassification (although applicant had not sought ⁴⁰⁰ reclassification on that ground). Acting Director of Planning Bathke countered these contentions by saying: “* * * since it has been our position for a very long time that the least objectionable relationship between dissimilar uses, physical relationship, is a back or side to side or rear to rear relationship, not a fronting relationship across a street serving dissimilar uses, it was our judgment that on balance, the rigorous application of the laws which now obtain in the community would present at least the possibility of lesser intrusion in the development of this property in its present zoning than would be visited on residential use of this same property by the fact of existing industrial development across the street that cannot serve as a buffer.” The former mayor declared that he could not honestly recommend R-75 rezoning, suggesting as an alternative a higher density zone for residential use such as R-40 or R-60. Numerous witnesses urged that the traffic engendered by industrial use of the subject property would so affect the public welfare as to justify the requested rezoning. None supplied figures supporting that generalized opinion.

The property owner, opposing proposed reclassification of the land, offered Thomas G. Oyster as a witness. He had been engaged for many years in development and planning activities. He had qualified as an expert in the courts of Montgomery and Prince George’s Counties, and before the Mayor and Council of Rockville and other zoning bodies in cases involving zoning and planning. He expressed the professional opinion that the property could be well-developed in harmony with the community within its 1-2 zoning.

He declared that restrictions required to be imposed by the Planning Commission before the grant of a use permit would compel such screening of the property as would furnish adequate protection to the single family residences facing it. He countered the witness Ontko’s opposition to utilization of the subject tract for industrial ⁴⁰¹ purposes by pointing out that Ontko conducted a “semi-commercial” enterprise in the operation of a swimming pool on his lot and declared that the required screening would also “cut out Mr. Ontko’s dog pen and any runs, and any activities he may have in his swimming pool.” The traffic question was the subject of but three specific official or expert comments, namely: 1. The comment of the planning staff: “Present and future transportation patterns: Lewis Avenue is classified as a ‘secondary industrial’ road between this lot and Halpine Road to the southeast. It was constructed to that standard during the 1960’s to service this parcel and other industrial lots across the street.

Rockland Avenue is a ‘secondary residential’ road, and access is not permitted to the subject property via Rockland in its present zone. The existing streets are adequate to serve development in the R-75 zone.” 2. The report of the Traffic Engineer of the Planning Department: “There are no legal means whereby we could prohibit this traffic from using Lewis Avenue, since it will have Lewis Avenue as its destination. There are only two possible routes for the industrial traffic to use to reach this location: Lewis Avenue from the north, or Ardennes Avenue, Hal-pine Road, and Lewis Avenue from the south.

If we discourage this traffic from using Lewis Avenue from the north, we will possibly overburden Halpine Road and Ardennes Avenue, both of which are also residential streets. In fact, the only way we could discourage truck traffic from using Lewis Avenue north of Rockland Avenue would be to post ‘No Thru Trucks’ signs. These signs would not be enforceable, and would only serve to lure the residents into a false sense of security, increase complaints to the County Police regarding ⁴⁰² violations of the signs, and antagonize the owners and drivers of the industrial traffic. “If it is so important that no additional industrial traffic be allowed on Lewis Avenue, then perhaps the subject building should not be authorized.” (Emphasis added.) 3. The opinion of Oyster: “* * * I think it would be reasonable to anticipate 100 vehicles a day, and on a 10% maximum basis, it would be 10-12 vehicles at peak load, which would be infinitesimal in adding to the roads, particularly to a 48 foot industrial road.

I would suggest that the traffic could be directed southeasterly down Lewis Avenue to Halpine Road and then out to the other road.” 5 We find that there was, quite literally, no evidence whatever of a mistake in original zoning — the only ground asserted as justifying the proposed reclassification. The extension of Lewis Avenue and the closing of Halpine Road plainly did not establish a mistake in original zoning. There was no showing that either action had been proposed or planned — but overlooked — by the zoning authorities at the time of original zoning. In Pattey v. Board of Co. Commrs., 271 Md. 352 , 317 A. 2d 142 , it was said at 361 [147]: “As we have indicated, the conclusions of the trial judge on the issue of ‘mistake’ were unsupported by evidence of any kind presented at the zoning hearing, much less by any expert testimony.

To support a zoning reclassification, there must be evidence before the legislative body which establishes that the ‘mistake’ was ‘basic and actual’; and that it was made ‘at the time’ the property was zoned, which in this case would have ⁴⁰³ been at the time of the original zoning in 1965. Surkovich v. Doub, 258 Md. 263, 271 , 265 A. 2d 447 (1970); Miller v. Abrahams, 239 Md. 263, 266 , 211 A. 2d 309 (1965) (emphasis in original). Furthermore, the ‘mistake’ alleged to have occurred must relate to the specific property for which the rezoning is sought, and may not consist of generalities, see Surkovich v. Doub, supra at 272.” It is plain that the totality of the evidence presented in connection with application M-226-72 would not sustain the requested reclassification upon the ground of mistake. The case does not, however, end at this point.

After testimony at the hearing on December 5, 1972 had been concluded, a question was raised as to whether the property had been properly posted prior to hearing. At that point the Mayor declared, “I would like to have the City Attorney review the facts with regard to the alleged defects in the posting and let the Mayor and Council know what, if any, legal effect that ought to have on our deliberations.” On January 19, 1973 the City Attorney forwarded to the Mayor and Council a memorandum declaring, inter alia, “* * * it is the opinion of this office that the inability of the applicant to make the required affidavit [as to posting] is a jurisdictional defect that deprives you of jurisdiction to further consider this application. It will be the recommendation of this office that the applicant be allowed to withdraw the pending application without prejudice, and to file it over again.” At its meeting on February 21 the City of Rockville Planning Commission voted to withdraw M-226-72. The application was in fact withdrawn on February 22, 1973.

On the same date a new application bearing No. M-233-73 was filed by the City of Rockville Planning Commission. The new application for reclassification from 1-2 to R-75 was identical to the former in every respect save the ground asserted for the grant of reclassification. The new application thus declared the reason: “This reclassification is sought by reason of — ⁴⁰⁴ change in character of the neighborhood — other reasons set forth below. “The following is a concise statement of the facts and circumstances upon which the Applicant relies to justify the reason(s) set forth above for this reclassification: At the time this property was placed in the 1-2 Zone it, and surrounding land was vacant. All surrounding land on the east side of Lewis Avenue has subsequently changed to be developed for single-family detached residential uses such as permitted in the requested zone classification (R-75).” 6 It quickly became apparent that the dispute between the Planning Commission and the planning staff had been resolved.

On March 9, 1973 the planning staff sent to the Planning Commission a memorandum including, inter alia, the following: “3. Present and future transportation patterns: Lewis Avenue is constructed as a ‘secondary industrial’ road between this lot and Halpine Road to the southeast, a distance of approximately 1200'. It was constructed to that standard during the 1960’s to service this parcel and other industrial zoned lots across the street. Rockland Avenue is a ‘secondary residential’ road, and access is not permitted to the subject property via Rockland in its present zone.

The existing streets are adequate to serve development in the R-75 Zone, however, Lewis Avenue west on this lot is not constructed to industrial standard or intended for industrial use. ⁴⁰⁵ “4. Compatibility with existing and proposed development in the area: The subject parcel is the only undeveloped property in the area. A Use Permit Application is now pending however for construction of a 32,400 square foot speculative industrial building on this lot. Such use would be compatible with the existing industrial development directly across Lewis Avenue, but would be incompatible with the most proximate uses which are single family detached residences. “Reclassification to R-75 would allow use of the subject property in a manner fully compatible with the surrounding residential area. “5.

The relationship of the proposed Map Amendment to the adopted Master Plan: The subject property is shown on the proposed land use plan of the adopted Master Plan as ‘general industrial’. This reflected the existing zoning in effect at the time the Plan was prepared. Reclassification to R-75 would permit uses on the property which are not consistent with the designation on the land use plan. Reclassification to R-75 would be consistent, however, with the stated goals and objectives of the Master Plan, particularly the ‘preservation of established neighborhoods’. “6.

The recommendation of the Planning Commission: The Commission should forward a recommendation to the Mayor and Council for reclassification of the subject property to the R-75 Zone.” On March 15, 1973 the Planning Commission 7 forwarded to the Mayor and Council of Rockville its recommendation for ⁴⁰⁶ approval of the requested rezoning. That recommendation included, inter alia, the following: “3. Present and Future Transportation Patterns: Lewis Avenue is constructed as a ‘secondary industrial’ road between this lot and Halpine Road to the southeast, a distance of approximately 1200 feet. It was constructed to that standard during the 1960’s to service this parcel and other industrial zoned lots across the street.

Rockland Avenue is a ‘secondary residential’ road, and access is not permitted to the subject property via Rockland in its present zone. The existing streets are adequate to serve development in the R-75 Zone, however, Lewis Avenue west on this lot is not constructed to industrial standard or intended for industrial use. “4. Compatibility with Existing and Proposed Development in the Area: The subject parcel is the only undeveloped property in the area. A Use Permit Application is now pending however for construction of a 32,400 square foot speculative industrial building on this lot.

Such use would be compatible with the existing industrial development directly across Lewis Avenue, but would be incompatible with the most proximate uses which are single family detached residences. “Reclassification to R-75 would allow use of the surrounding property in a manner fully compatible with the surrounding residential area. “5. The Relationship of the Proposed Map Amendment to the Adopted Master Plan: The subject property is shown on the proposed land use plan of the adopted Master Plan as ‘general industrial’. This reflected the existing zoning in effect at the time the Plan was prepared. Reclassification to R-75 would permit uses on the property which are not consistent with the designation on the land use plan.

Reclassification to ⁴⁰⁷ R-75 would be consistent, however, with the stated goals and objectives of the Master Plan, particularly the ‘preservation of established neighborhoods.’ “Therefore, on motion by Mr. Northway, duly seconded and carried, with Mr. Humphrey voting in the negative, the Commission forwards to the Mayor and Council its recommendation for approval of Map Amendment Application M-233-73. Mr. Humphrey favored postponement of the public hearing on this matter until the prospects of a land-swap were brought to a final determination.” Hearing on the new application opened on March 20, 1973 with Commissioner Ecker, Chairman of the Planning Commission, explaining to the Mayor and Council that the Commission was not trying to show error but was relying upon changes in the character of the neighborhood. He declared: “Originally, this land was zoned industrial before it was ever brought.into the city. In fact, and when it was brought into the city there was nothing but an open field around it.

Since that time, the area surrounding it has developed into residential, single family houses. So, that now you have a piece of property which is rimmed on three sides by residences, single family residences, clearly the character of the neighborhood. So it has changed.” He then said, “ * * * I would like to ask Mr. Hillman, 8 the Planning Director to expand on the thoughts that I have just presented.” Mr. Hillman described terrain features of the subject property, stating that it “slopes into the residential area” with a corresponding slope toward the railroad tracks from the other side of Lewis Avenue. He said that the Planning Commission felt that the neighborhood had changed with the development of the streets and residential areas, so that the subject property had become more importantly a part of ⁴⁰⁸ the residential community.

He made reference to the single zoning reclassification of the small parcel from 1-2 to R-75. Mr. Hillman testified that when the area was originally zoned there was one owner of the entire industrial site to which access was provided by Halpine Road, commenting that “it was a logical use of his property for that one year. Later, Lewis Avenue was cut through and the residential development came in, 9 and the land was sub-divided down. * * * It is now many different pieces of property. There are now roads through it so that access is coming off more than one point and that now there is residential belt completely surrounding this particular piece of land.” (Emphasis added.) The witness acknowledged that he knew of no change in the neighborhood since the adoption of the Master Plan for the City of Rockville, and conceded it showed the property “just exactly the way it is now [before reclassification].” He conceded, in short, that the entire 10.5 acre tract of industrial land (including the subject property shown undeveloped) bore 1-2 zoning in the most recent Master Plan.

He acknowledged that the Planning Commission on September 13, 1972 had recommended and the Mayor and Council of Rockville had thereafter adopted it without changes. Mr. Hillman, a professional planner, declared that he thought that the mere fact of a population increase in the residentially zoned portion of the neighborhood, itself constituted a change in the character of the neighborhood. Eight residents of the community testified at the March 20th hearing. Their combined evidence in summary pointed out: the single zoning reclassification; language contained in the Master Plan that one of its purposes was to preserve residential neighborhoods; that the proposed use of the subject property for industrial purposes “has crystalized the neighborhood, as you can see, in total opposition of this case.” Some expressed unbuttressed general opinions that the safety of school children from traffic dangers was increased.

Some asserted that before the introduction of the ⁴⁰⁹ industrial portion of Lewis Avenue there was no commercial traffic coming down it from north to south and that the closing of Halpine Road had altered the traffic pattern. They pointed out that since 1957 thirteen dwellings had been constructed on lots formerly affording green space and stressed that the subject property had been utilized by community children for