Kanfer v. Montgomery County Council

Moore, J., delivered the opinion of the Court. This unusual zoning case involves a controversial five-acre enclave located among the 1700 acres comprising ⁷¹⁷ Montgomery Village, a Town Sector Zone in Montgomery County. Appellant, Morris Kanfer, received a favorable report and recommendation by the hearing examiner, following an unfavorable report by the Montgomery County Planning Board and its Technical Staff, in connection with his application for a zoning reclassification of the property from R-R (one-half acre) to R-T (Town House). The Montgomery County Council, sitting as a District Council, rejected the recommendations contáined in an exhaustive analysis of the application by the hearing examiner and adopted a resolution denying the rezoning.

Mr. Kanfer thereupon appealed to the Circuit Court for Montgomery County and in a Memorandum Opinion and Order filed on March 15, 1976, the action of the District Council was affirmed. From that Order this appeal has been taken. Appellant contends (a) that the record is devoid of any legally sufficient evidence which would render the Council’s denial “fairly debatable” and (b) that the decision of the Council was not in accordance, with legally promulgated procedural requirements. We sustain the first contention and reverse.

I The facts are essentially undisputed. Historically, the subject property has been in the R-R, or one-half acre zone, since 1958. It was part of a 300-acre dairy farm, the major portion of which was sold to Kettler Bros., Inc., the owners and developers of Montgomery Village, a new town established after the adoption in 1966 of the Town Sector Zone, 1 and consisting of some 1700 acres. The record discloses that the appellant retained this five-acre parcel because of the presence within its boundaries of a well affording pure drinking water for his late wife.

In the Master Plan for Gaithersburg and Vicinity, adopted by the Maryland-National Capital Park and Planning Commission in January 1971, the subject land was recommended for R-90, a one-family, detached, restricted ⁷¹⁸ (one-half acre) residential category. Mr. Kanfer did not participate in the hearings in connection with the adoption of the Gaithersburg Master Plan held before the Planning Commission in July, 1968 and before the County Council in September and November, 1970. Over the years, the developer of Montgomery Village, with required approvals of the Planning Board and the Council, has constructed an extraordinarily attractive town with a mixture of single and multiple family residential classifications, as well as office and shopping amenities, lakes, a golf course, tennis courts and recreational areas. The following improvements abut the Kanfer property. 1) Maryland Place This is a town house community located immediately north of the subject tract, consisting of 33.6 acres with 270 dwelling units (approximately eight dwelling units per acre) and with an average of 24 persons per acre.

The southerly end of this development is approximately 35 feet from the northern boundary of the Kanfer property. 2) Thomas Choice This is a combination of garden-type apartments and town houses located to the immediate west and north of the subject property consisting of 39 acres and 589 dwelling units (103 town houses and 486 garden apartments). There are between 15.1 and 17.6 dwelling units per acre and a population of between 45 and 53 persons per acre. Thomas Choice is divided into three sections, the first, immediately west of the Kanfer property, consists of 300 apartments; north and west of the first section, there is another area accommodating 186 apartment units, while to the north of the second section there is a development of 103 town houses. 3) Centerway Road This is an 80-foot divided four-lane arterial highway which the subject property abuts along its southern ⁷¹⁹ boundary. The property has approximately 470 feet of frontage along this road.

There is a median break opposite its intersection with Thomas Farm Road. 4) Thomas Farm Road This is a 70-foot arterial roadway along which the eastern part of the subject property has approximately 370 feet of frontage. Thomas Farm Road intersects Centerway Road at the southeastern corner of the property and extends north and west, serving the Maryland Place town house development, from Centerway Road to the southern boundary of the golf course property. The instant application was filed by the appellant in May 1973, requesting reclassification to either the R-20 (multiple family, medium-density residential) or R-T (town house) zone. (Prior to the hearing before the examiner, the alternative R-20 request was withdrawn.) In October, 1973 the Montgomery County Planning Board adopted the recommendation of its Technical Staff and recommended denial of the application. 2 The basis for the adverse recommendations were: (a) that the requested rezoning was not in conformity with the 1971 Gaithersburg Master Plan; (b) that the property did not meet the purpose intended for the utilization of the R-T zone; and, (c) although there had been change in the character of the area, such change had been “in strict conformity” with the Master Plan.

The Planning Board also cited information provided by one of the opponents to the application, the Montgomery Village Foundation, Inc., and concluded that certain “social implications” militated against the application. These “social” factors related primarily to the recreational and community facilities in the Town Sector Zone which it was believed would “in all probability” not be available to the residents of the Kanfer property for their use. In early January 1974, a public hearing on the application was held by the hearing examiner for Montgomery County, ⁷²⁰ Stanley D. Abrams. Testimony in support of the application was given by Mr. Kanfer and by a qualified land planner, Werner Kloetzli, Jr. The site plan received in evidence showed a proposed development of 50 town house dwellings (10 units per acre) but the expert’s report and testimony with respect to compatibility, compliance with the purpose clause of the R-T zone, impact on traffic and public utilities and related issues, was premised upon maximum development under R-T zoning, namely 12.5 dwelling units per acre.

He defined the “neighborhood” of the subject property, a definition which was thereafter adopted by both the hearing examiner and the District Council. Appearing in opposition to the application were the Citizens Association of Montgomery Village, the Montgomery Village Foundation, and the residents of the abutting Maryland Place town house community. The former contested the application because of its nonconformity with the Master Plan and its alleged incompatibility with adjacent uses. The members of the Maryland Place town house community were opposed on grounds of alleged overcrowding of school facilities and traffic.

At the conclusion of the hearing, the record was kept open by the examiner for a substantial period to permit inquiries by him to the Planning Board, concerning various aspects of its recommendation. These inquiries were dispatched by the examiner under date of January 10, 1974 and on April 16 following, the Planning Board submitted a lengthy reply. In the course of its communication, the Board made the statement: “If the subject property had been part of the Town Sector, it would probably have been reasonable to assume that the property would have been developed similarly in nature and density to surrounding development.” And also: “The existing density of the Thomas Choice, Maryland Place, and Court of Whetstone facilities ⁷²¹ are probably closer to the R-T Zone than to the R-90 Zone.” 3 Thereafter, on June 12, 1974, the examiner inquired in writing of the Planning Board concerning its conclusion that existing school facilities in the Montgomery Village area were overcrowded, another basis for its adverse recommendation. In reply, by letter dated July 2, 1974, the Board conceded that its earlier conclusion with respect to school impact was erroneous and that “the requested R-T zoning would not seriously impact the school at the elementary, junior or senior high school levels, since new schools will be built in the near future and boundary areas are constantly being adjusted.” Hearing Examiner Abrams filed a comprehensive report on July 22, 1974 recommending approval of the application.

In the record extract this report is 28 pages in length and contains a discussion and analysis of the following aspects of the application: I — Compatibility and Compliance with the Purposes and the Requirements of the R-T Zone (15 pages) II — The Master Plan (5 pages) III — The Public Interest (7 pages) IV — Conclusions and Recommendations Representative of the extreme thoroughness of the examiner’s report is the following description of the subject property: 4 “The subject tract is rectangular in shape, approximately five acres in size and located at the intersection of Centerway Road and Thomas Farm Road within Montgomery Village. The property is ⁷²² undeveloped with a 10 to 12 foot high elevation above Centerway Road while sloping towards and approximately level with Thomas Farm Road. As previously indicated the site is an undeveloped island of R-R zoned property surrounded by land developed in the town sector zone as part of Montgomery Village. It is the only area within the circumferential confines of Montgomery Village that is not zoned in the town sector classification.

Immediately to the north of the property is the Maryland Place town house development consisting of 276 town house units of a modern two-story variety. The impact of these town house units upon the subject property is somewhat pronounced in view of the fact that the rear of the closest town house units are only 35 feet (or the distance of the units’ back yards) from the subject property without any large intervening open space between the two tracts. “North of the Maryland Place town house development is the Montgomery Village Golf Course and Country Club. Bordering the Maryland Place town houses to the west is a long, somewhat narrow area encompassing approximately 10 acres between the subject property and the Montgomery Village Golf Course which is utilized as a storm drain swale area. This swale area separates the Maryland Place town houses from the Thomas Choice apartments and another town house development. “Bordering the western boundary of the subject property is a portion of the Thomas Choice apartment project located on approximately 27 acres of land wherein 300 garden type apartment units (three stories high) have been constructed and occupied with an additional 186 units fronting on Montgomery Village Avenue having received preliminary plan approval from the Montgomery County Planning Board.

Directly north of the ⁷²³ undeveloped area which has received approval for 186 garden apartment units there are approximately 11 acres of land wherein 103 town house rental units have been constructed. This town house area also borders the southern edge of the Montgomery Village Golf Course. Three-story apartment units also have an impact on this site due to the close proximity of the apartment units to the subject property (approximately 60'), again without significant buffer areas between the units and this property. “Directly west of the existing Thomas Choice apartment project bordering on the northeast quadrant of Montgomery Village Avenue and Centerway Road there is a large undeveloped area which is proposed for development as a church site. To the west of the church site across Montgomery Village Avenue there exist two service stations which form the northernmost portion of the Montgomery Village Community Shopping Center which houses a variety of convenience and service commercial uses and sizable off-street parking areas.

This community commercial facility is approximately one quarter of a mile west of the subject property. “Directly to the east of the applicant’s tract across Thomas Farm Road is the newly constructed Whetstone Elementary School on approximately 8.8 acres of ground. Also on the east side of Thomas Farm Road is a portion of the dwelling units within the Maryland Place town house community. To the east of the Whetstone Elementary School and also on the north side of Centerway Road is the future site of the proposed Stewartown Junior High School which is physically outside of the confines of Montgomery Village and is currently zoned R-R. “South of the subject property and immediately across Centerway Road is a part of the Courts of Whetstone residential community containing in ⁷²⁴ this section 65 unusual court houses which resemble detached homes on completely walled lots fronting on parking court areas. The rear yards of these homes abut Centerway Road and face the subject property as well as the Thomas Choice garden apartments.

The residents of these homes are somewhat buffered from the effects of traffic on Centerway Road as well as visibility of the subject property and the adjoining garden apartment area by virtue of a sizable earthen mound bordering the southern perimeter of the road which is further improved with large substantial pine trees planted at the top of -this mound area. In addition, the walls which appear to be at least six feet high provide a further sight and sound barrier and insure privacy within each individual unit. These court type houses, while somewhat resembling large town houses, are not attached in a common row fashion but are generally separated by the patio or garden walls surrounding each individual property. To the west of this portion of the Courts of Whetstone community is the Whetstone Professional Center which is an attractive area of two-story professional office buildings sited somewhat below road grade to minimize visual impact. “To the immediate west of the above described section of the Courts of Whetstone and also fronting on the south side of Centerway Road is the Whetstone Community Recreation Center consisting of several tennis courts, community swimming pool, playground area, club house and parking lot.

The Whetstone Community Recreation Center and its facilities are available only to those residents of the Courts of Whetstone as well as the larger Whetstone community of single-family detached homes to the south to approximately the vicinity of the Lake Whetstone. To the east of the Whetstone Community Recreation Center are [sic] ⁷²⁵ an 40 units within the Courts of Whetstone community consisting of the same types of homes, location and layout as described previously.” With respect to “neighborhood”, the examiner rejected the suggestion of the opponents that the entire 1700-acre Montgomery Village Town Sector constituted the appropriate definition. Instead, he agreed with appellant’s land planning consultant who had defined the neighborhood of the property as an area bordered on the north by the southern perimeter of the Montgomery Village Golf Course, on the west by Montgomery Village Avenue, on the south by the southern boundaries of the Whetstone Professional Center, the Courts of Whetstone, and the Whetstone Community Center, and on the east by the eastern boundary of the proposed Stewartown Junior High School site. (This constitutes generally the areas involved in the examiner’s above quoted description.) The examiner rejected the contention of the opponents that there were problems of “social implications” involved in connection with the use of recreational facilities by residents of the Kanfer tract and agreed with the applicant that the matter was one of appropriate policing by the private community recreational facilities involved.

The ultimate conclusions and recommendations made by the examiner were threefold: 1. “The requested reclassification would result in a form of development compatible with existing and planned land uses in the surrounding area and would comply with the purposes of the R-T Zone as stated in the Zoning Ordinance. 2. “The requested reclassification to the R-T Zone, although not in strict accord with the land use recommendations contained within the Gaithersburg and Vicinity Master Plan, is not antithetical to the purposes of that Plan and would provide a more logical land use proposal considering present and proposed development ⁷²⁶ within the neighborhood than the zoning category currently recommended in the Plan. 3. “The grant of the subject application would not be adverse to the public interest.” On October 29, 1974, the Council adopted a resolution denying the application. In an opinion which accompanied the resolution, the Council adopted the examiner’s (and appellant’s) definition of “neighborhood” but disagreed with the examiner’s conclusions and recommendations. The Council rested its decision upon the following statements: (a) the proposed R-T development would cause density increases in the neighborhood not anticipated or planned for at the time of the approval of the surrounding Town Sector Zone; (b) approval could establish the undesirable precedent of permitting enclaves located within Town Sector neighborhoods to develop at increased densities over that designated and planned for the enclave property; (c) the application was not in conformity with Gaithersburg and Vicinity Master Plan which recommends the R-90 classification. The population generated by the recommended R-90 development would be compatible with the surrounding Town Sector densities; (d) The Technical Staff of the Planning Board of the Maryland National Capital Park and Planning Commission recommended denial, and the Council agreed with their recommendations and further agreed that the application would not further the purposes of the R-T zone; (e) there is a current sewer moratorium in the area and therefore the subject property could not presently be serviced by public sewer; (f) it appears from the evidence that the senior high school servicing the area is presently ⁷²⁷ overcrowded and that the pupils generated by R-T zoning on the site could be absorbed only when the new schools, then only in the planning stages, were constructed; (g) the grant of the application would be adverse to the public interest because the public facilities proposed were planned on the basis of the applicable density in the zoning category recommended for properties in the area.

The action of the County Council, sitting as a District Council, was thereafter affirmed by the Circuit Court in a Memorandum Opinion and Order filed on March 11, 1976. In its Memorandum Opinion, the court (McAuliffe, J.) noted that the case involved a request for a reclassification to a “floating” zone and that although the traditional “change-mistake” standard was not applicable, appellant nevertheless had the burden of proving to the District Council that: “1. The reclassification complied with the express purpose provisions of the [zoning] ordinance [Montgomery County Code, (Sec. 5944)], and 2. The proposed use was compatible with the existing and planned land uses in the surrounding area, and 3.

That the proposed reclassification was not adverse to the public interest.” With respect to these issues, the court observed: “If the record discloses legally sufficient evidence which generates a fairly debatable issue as to any of the three elements, the decision of the District Council must be sustained for zoning is a legislative, and not a judicial function. Our review of the record convinces us that fairly debatable issues are generated as to at least the first and second elements, and we shall therefore affirm the action of the District Court. ⁷²⁸ “Plaintiff and the zoning hearing examiner make a very persuasive case for the grant of this application, and we find the evidence of record would certainly have supported such action. Unfortunately for Plaintiff it does not follow that because zoning could lawfully be granted, it must be granted. Nor is it of any significance that this member of the Court may be persuaded that the better course would be to grant the application, for the Court' is not permitted to substitute its judgment for that of the District Council.” As for the adjacent uses, the court found: