JMC CONSTR. CORP., INC. v. Montgomery County

Bishop, J., delivered the opinion of the Court. JMC Construction Corporation, Inc., and Berger/Berman Builders, Inc., appeal from an Order of the Circuit Court for Montgomery County affirming a zoning decision made by the Montgomery County Council under Article 66D, Annotated Code óf Maryland. ³ I. Background Article 66D, entitled Maryland-National Capital Park and Planning Commission (the Commission) and referred to as the Regional District Act, is basically the legislative authority for regional cooperation in land use among certain counties. It authorizes the Commission to initiate and adopt both general and local master plans proposing zoning changes in Montgomery and Prince George’s Counties. It also authorizes the county councils of the two counties (which are designated as District Councils for the Maryland-Washington Regional District) to adopt and amend zoning ordinances.

The Commission is composed of ten members, five from Montgomery County and five from Prince George’s County. Article 66D, section 2-101. In practice the five members from each county constitute the planning board of that county. For an area of land lying in only one county, the five members from that county, constituting that county’s planning board, and the county council of that county, constituting the district council, decide the content and disposition of the master plan.

Montgomery County Code, Section 33A-7. The adoption of the zoning recommendations contained in the plan as the law of the county is the exclusive prerogative of the Montgomery County District Council. Montgomery County Code Chapter 59. Appellants essentially contend that the Montgomery County District Council approved a Commission master plan, then decided, without evidential justification, not to follow the approved master plan recommendation to rezone appellants’ property from two-acre lots to one-half acre lots.

The following sub-sections of Article 66D describe the allocation of planning and zoning authority. With respect to planning authority, section 7-108, Regional District Plans and Amendments, provides: ⁴ (i) That the Commission shall initiate and adopt, and the district council shall approve and from time to time amend a map showing the entire area of that county within the regional district, divided into local planning areas. 1 ⁵ (ii) That, in accordance with the work program and budget adopted by the county council of that county, the Commission shall initiate and adopt, and from time to time may amend or revise, a local master plan for each planning area, any part thereof, or any combination of contiguous planning areas; (iii) That a local master plan may include recommendations for zoning, staging of development and public improvements, and public services relative to the implementation of the plan; With respect to zoning authority, section 8-101 provides: (a) The county councils of Montgomery County and Prince George’s County are each individually designated, for the purposes of this article, as the district council for that portion of the regional district lying within each county, respectively. (b) Grant of zoning power. — Each district council, respectively, in accordance with the conditions and procedures specified in this article, may by ordinance adopt and amend the text of the zoning ordinance and may by resolution or ordinance adopt and amend the map or maps accompanying the zoning ordinance text to regulate [land use] in the portion of the regional district lying within its county.... Section 8-104, Amendments to zoning regulations — Generally, further provides: (a) Authorized procedure. — After duly advertised public hearing each district council from time ⁶ to time may amend its regulations or any regulation, including the maps or any map, in accordance with procedures established in the respective zoning ordinances.

The relevant ordinances are contained in Montgomery County Code, Chapters 33A and 59, which pertain to the planning and zoning processes, respectively. Montgomery County Code (1977 Repl. Vol.) Chapter 33A refers to the final draft of the master plan and the duties of the district council in connection therewith: Sec. 33A-7. Final draft.

(a) Following the close of the record of the public hearing, the commission shall prepare and submit to the district council... a final draft of the [master] plan incorporating appropriate revisions and modifications to the preliminary draft. (b) Within ninety days following receipt of the final draft of the plan from the commission, the district council shall either: (i) Approve or disapprove the final draft as submitted by the commission; or (ii) Conduct a public hearing on the final draft. A public hearing shall be required whenever the district council proposes any revisions, modifications or amendments to the final draft as submitted by the commission. (Emphasis supplied.) Chapter 59 sets out the authority of the district council with reference to a sectional or district map amendment, the vehicle used to implement the zoning recommendations contained in the master plan: ⁷ Sec. 59-H-7.1.

Basis and types of action. An application for a sectional or district map amendment shall be decided on the basis of the evidence of record. It shall be approved, with or without modification in whole or in part, as the district council deems appropriate, as a map amendment with the force and effect of law, or it shall be denied. The district council may file an application for a map amendment at any time without regard to time limitations.

It is important for the purposes of this opinion to distinguish between "planning” and "zoning.” The planning and zoning functions are different. As Judge Finan pointed out for the Court in Chapman v. Montgomery County, 259 Md. 641, 643 (1970): "A 'Master Plan’ is not to be confused as a substitute for a comprehensive zoning or rezoning map, nor may it be equated with it in legal significance. ... The zoning as recommended or proposed in the Master Plan may well become incorporated in a comprehensive zoning map . .. but this will not be so until it is officially adopted and designated as such by the District Council.” In a recent case, Howard County v. Dorsey, 292 Md. 351, 361-62 (1982) the distinction between planning and zoning was further refined by Judge Davidson for the Court: "There is a distinction between a master plan and a comprehensive zoning or rezoning that results from a distinction between the planning function and zoning function. In Board of County Commissioners of Carroll County v. Stephans, 286 Md. 384, 389 , 408 A. 2d 1017, 1019 (1979), this Court said: '[S]ome confusion exists relative to the terms planning and zoning, which are not synonymous.

Zoning is concerned with the use ⁸ of property but planning is broader in its concept. 1 E. Yokley, Zoning Law and Practices § 1-2 (4th Ed. 1978) comments: "Expressing the matter in another way, let us say that zoning is almost exclusively concerned with use regulation, whereas planning is a broader term and indicates the development of a community, not only with respect to the uses of lands and buildings, but also with respect to streets, parks, civic beauty, industrial and commercial undertakings, residential developments and such other matters affecting the public convenience and welfare as may be properly embraced within the police power.’ ” The end product of the planning function is the production of a master plan that embodies recommendations for an area’s development based on predictions of needs and resources for an estimated future period. It proposes goals for orderly growth and development including the establishment of viable neighborhoods for which it delineates appropriate boundaries. In addition, it suggests methods for implementation and achievement of those goals, including proposals for future land use and zoning classifications. The end product of the comprehensive zoning function is a comprehensive zoning map that establishes, through zoning classifications, the way in which land may presently be utilized and developed.

The zoning function is essentially limited to the establishment of land use districts through the imposition of zoning classifications.” (Citations omitted). ⁹ The Facts The Commission submitted to the Montgomery County District Council the Potomac Master Plan, encompassing an area of 56 square miles, 98 percent of which is zoned residential. The Master Plan included the recommendation that the original zoning of appellants’ 12.37 acres be changed from R-2 (minimum two acres per lot) to R-200 (minimum one-half acre per lot). On April 15, 1980, the Council approved the Final Draft Master Plan, which included the above zoning change recommendation. On April 24, 1980, the Commission adopted the Master Plan and, on May 9, 1980, filed Sectional Map Amendment Application No. G-247 with the Council.

G-247 is a sectional zoning map containing the Master Plan’s zoning recommendation on that parcel of land comprising 3,418.57 acres, including the appellant’s 12.37 acres. After conducting hearings on July 8 and 17, 1980, the Council amended G-247 so that the recommended zoning change from the original two acre requirement to the one-half acre requirement was deleted. The effect of this was to continue the current 2 acre requirement on appellant’s 12.37 acres. Thereafter, on September 30, 1980, by Resolution 9-978, which passed with four affirmative votes, the Council adopted G-247 in its amended form, which conformed to the zoning recommendation of the previously approved Master Plan except for the amendment affecting appellant’s property.

For reasons unrelated to this appeal, the Circuit Court for Montgomery County remanded G-247 to the Council, which, by a seven to zero vote, readopted the comprehensive rezoning in the new resolution, Number 9-1443. 2 Appellants had already appealed on the basis of ¹⁰ Resolution 9-978 to the Circuit Court at the time Resolution 9-1443 was passed. Their appeal based on 9-1443 was consolidated with the previous appeal. Answers to the appellant’s Petition of Appeal were filed by Montgomery County and West Montgomery County Citizens Association, et al., the appellees here. By its order of April 12,1982, the Circuit Court affirmed the Council’s action retaining the two-acre zoning of the appellant’s property.

The Circuit Court found (1) that the process involved was part of a comprehensive rezoning; (2) that as such there is a presumption of validity; (3) that the appellants had failed to overcome that presumption; (4) that since the Council was acting in a legislative function, the appellant had no right to cross-examine witnesses at the sectional map amendment hearings (not an issue in this case), (5) "that the comprehensive rezoning bears a substantial relationship to the public health, safety and general welfare,” and finally (6) that "the Council did not act in an arbitrary and discriminatory manner in adopting” the two resolutions. Appellants contend, in essence, that the Council deviated from the Commission’s master plan without new evidence of record to support such a deviation. Consequently, they argue that the Council’s action with respect to their property is not part of a comprehensive rezoning, and, as such, is not entitled to the presumption of validity accorded it by the Circuit Court. Absent this presumption, they contend, we should ¹¹ find that the Sectional Map Amendment G-247 as applied to their property does not bear a substantial relationship to the public health, safety or welfare.

We agree with the lower court’s findings, however, and thus affirm its order upholding the Council’s zoning decision.

II

Comprehensive Zoning Appellants ask: "Whether the District Council can (i) adopt a master plan which is the product of years of study and public participation and which recommends a specific zoning for a given property, (ii) act on a sectional map amendment, the sole purpose of which is to implement the zoning recommendations of the master plan and which requests the master planned zoning for the property, by refusing to grant the requested rezoning for the property in question, thereby ignoring the master plan, and having no new evidence of record on which to base its action, and (iii) successfully maintain that its actions were comprehensive zoning as to the property in question.” (Emphasis supplied). They contend that: "The recommendations contained within the Potomac Subregion Master Plan cannot support the Council’s legislative action as to the 12.37-acre portion of the Subject Property because the recommendations of the Plan are contrary to the zoning action taken and because there is no evidence of record different from that presented in the master plan process to support the Council’s action. As in Horman, [ 46 Md. App. 491 (1980)] there is no basis for the District Council’s action with respect to the 12.37-acre portion of the Subject Property and the action cannot stand [as comprehensive zoning].” ¹² They further argue that because there was no new evidence adduced upon which the amendment to Sectional Map Amendment G-247 could be based, the only basis for the amendment was improper accession by the Council to a plebiscite of the residents of the affected community. Montgomery County v. Woodward and Lothrop, Inc., 280 Md. 686 (1977) holds, however, that: "There is no requirement that the area covered by a sectional map amendment coincide with the area of the relevant Master Plan ....

Nor is there any requirement, absent a statute, that the map amendment must adhere to the recommendations of the General or Master Plan. Such land use planning documents represent only a basic scheme generally outlining planning and zoning objectives in an extensive area, and are in no sense a final plan; they are continually subject to modification in the light of actual land use development and serve as a guide rather than a strait jacket.” Id. at 703-04 . In Montgomery County v. Horman, supra, the land found not to be part of the comprehensive plan was actually outside the boundaries of the plan. 46 Md. App. at 497 . That is not the situation here.

In July, 1980, the Council held public hearings on Sectional Map Amendment G-247, which contained the proposed zoning change of the subject property from two acre to one-half acre lots. During those hearings there was substantial citizen opposition to the zoning change. Council woman Crenca (apparently the council representative from the district wherein the subject property is located) was persuaded by her constituents that the zoning of the property should remain at a two acre minimum. The first resolution passed by the Council contained the following: "A great deal of attention was given by the Council in consideration of the Bedfordshire property.

The Sectional Map Amendment proposes that a 12 acre portion of this property be reclassified from ¹³ RE-2 to R-200. Extensive written and oral testimony was received in this matter to the effect that development of the property in the R-200 Zone would be incompatible with the existing residential character of the area and would require that extensive storm water management and erosion measures be taken at public expense