Kaslow v. Mayor of Rockville

Brune, C. J., delivered the opinion of the Court. The appellants, Kaslow and Rocks, as contract purchasers of 42.252 acres of land in the City of Rockville known as the Hampton Jones tract, filed an application in November, 1961, with the Mayor and Council of Rockville (the City) for the rezoning of this tract from the R-S (Residential Suburban) ¹⁶¹ classification to the R-30 (Multiple Family Residential, permitting apartment use) classification. After a hearing the City denied the application. The applicants first took an appeal to the Circuit Court for Montgomery County on the law side, but in view of the absence of any provision in the Rockville Zoning Ordinance for such an appeal the case was transferred at their request to the equity side of the Court.

They then filed a bill against the City seeking: (a) a declaration that the resolution adopted by the City denying their application was null and void; (b) a mandatory injunction commanding the City to grant their application; (c) a prohibitory injunction enjoining the City from interfering with their use of the property for such uses as are permitted under the R-30 classification; and (d) general relief. The Circuit Court (Anderson, J.) dismissed the bill and the applicants appeal. The appellants state two questions as presented by this appeal: first, whether the City’s denial of an application to rezone must be supported by competent, material and substantial evidence; and second, whether the denial of their application was not supported by such evidence and therefore was arbitrary, capricious and illegal. The appellee appears to concede that action by a zoning body not founded upon any substantial evidence is not in accordance with law and may be set aside by a court, citing Montgomery County v. Ertter, 233 Md. 414, 419 , 197 A. 2d 135, 137 , but claims that the rule of Board of County Commissioners of Prince George’s County v. Oak Hill Farms, 232 Md. 274 , 192 A. 2d 761 , which requires substantial evidence on the record as a whole to support zoning action (in that case the denial of an application) is not applicable.

We see no conflict between Ertter and Oak Hill, and the distinction sought to be drawn by the appellee seems to be of no moment here. The appellee rests its defense of its refusal of rezoning primarily on the existence of substantial evidence to sustain its action. In Montgomery County v. Kaslow, 235 Md. 45 , 200 A. 2d 184 , we reaffirmed the rule of Hedin v. Board of County Commissioners of Prince George’s County, 209 Md. 224, 236 , 120 A. 2d 663, 668 , that the Board could not base its action on the personal opinion of a member without support in the evidence for that opinion, and held that if the action of a ¹⁶² district council in denying rezoning were based, to any meaningful extent, upon evidence not before it of record, its decision would not be in accordance with law. The application here was set for hearing before the Mayor and Council on February 20, 1962, but was continued to May 21, 1962, when it was heard.

At the hearing the applicants offered the testimony of several qualified experts in support of their application. Their plan, to which they sought to bind themselves by a contract with neighboring landowners, contemplated four large, high grade apartment buildings with a total of 610 units and a suitable number of parking spaces for automobiles. They proposed to preserve many of the trees in the area and to adapt their buildings to the terrain. The only opposition to the application presented at the hearing was a report of the Rockville Planning Commission recommending that the application be denied.

The appellants’ counsel (who was a party to the agreement above mentioned) spoke as a nearby resident, as well as in his capacity as counsel, in favor of the application. One other neighboring property owner, speaking for himself and other members of his family, owning altogether about ninety-five acres, favored the application and expressed the view that the proposed apartments “might be better than other possible alternatives.” The owners of another neighboring property later submitted a letter of protest, asserting that seven-story apartments were not needed in the neighborhood and were completely out of character with single family dwellings which were predominant in West Rockville. The tract in question lies to the west of the center of Rock-ville at the intersection of State Route 28 (Montgomery Avenue) and Interstate Route 70-S (the Washington National Pike). Route 70-S is a major highway; Route 28, though important, is not wide west of Route 70-S. Route 70-S runs generally north and south (actually closer to north northwest and south southeast, or in terms of a clock face on an 11 o’clock -5 o’clock axis).

Route 28 runs generally east and west. East of the intersection it runs a little south of due east; just to the west thereof it takes a decided turn to the northwest for about a half mile until it crosses the Rockville City limits and then turns more nearly west. The result is that the “southwest quad ¹⁶³ rant” of the intersection of Routes 28 and 70-S is nearly a semicircle extending to the northwest as well as to the southwest of the intersection within the area covered by the Proposed Land Use Map dated September, 1960 included in the Master Plan Report submitted by the Planning Commission of the City of Rockville in that month. The subject property is in this quadrant or semicircle.

The Master Plan Report and its accompanying maps covered some areas in Montgomery County outside the city limits of Rockville. (See Code (3957), Art. 66B, § 15. The highly irregular outlines of the City in 1960, apparently due to annexations made from time to time at the request of individual property owners (see Master Plan Report, p. 8), doubtless made this extended projection necessary.) The existing zoning map as of January, 1960 showed all of the land within the corporate limits of Rockville and west of Route 70-S to be zoned R-S or R 90 (low or medium density residential). The Proposed Land Use Map of September, 1960 suggested only three changes in this regard.

One was to designate a fairly large area lying between a north-south road and the western edge of the city for quasi-public buildings or open spaces. This area is at a considerable distance from the subject property — rather more than half a mile. The second change was to designate areas along streams for parks, playgrounds or like uses. A third was to designate a tract shaped like a piece of pie with its apex at the intersection of Great Falls Road and Seven Locks Road for restricted industrial use.

This tract lies slightly to the west of Route 70-S and is about three-quarters of a mile south of the Hampton Jones tract. The Mayor and Council rejected this recommendation and refused to reclassify the tract from R-S to industrial use. To the east and northeast of the intersection, for about a mile or more in any direction, the existing zoning in January, 1960 was all residential, some of it R-60, and much of it, including that directly across Route 70-S from the Hampton Jones tract, R-S. The Proposed Land Use Map of September, 1960 recommended somewhat greater density for this area, some zoning for public or quasi-public buildings and open spaces and some for parks or playgrounds in a stream valley to the northeast. ¹⁶⁴ In the area to the northwest of the intersection, the new map proposed one relatively small general commercial area nearly a mile and a half to the west and outside the city limits, which seems of no significance here. Also outside the city limits of Rockville and at the next major intersection on Route 70-S north of Route 28 (being the intersection of 70-S with Shady Grove Road), this map proposed two restricted industrial areas, one in the triangle extending south or southwest of this angular intersection and the other in the southeast quadrant.

This intersection is 1.8 miles from the intersection of Routes 70-S and 28, and the nearest point recommended for restricted industrial use is over a mile away. At the time of the hearing before the Mayor and Council there had been three departures within the corporate limits of Rockville from the zoning existing in January, 1960 or from that recommended in September, 1960 in the vicinity of the Hampton Jones tract. One was the refusal to rezone for industrial use a tract to the south, which has been mentioned above. The other two are to the north of the tract, one on the west, the other on the east, side of Route 70-S. The one on the west side involves a rather large tract rezoned for industrial use, most of which appears to be outside the corporate limits of Rockville, but a part of which is inside.

Its southern tip is about 800 feet from the point on Veirs Lane where access to that road is had from the Jones tract and about 1200 feet from the nearest point of the tract for which rezoning is here sought. This industrial tract has an irregular shape. Its southeastern line