Kramer v. Board of County Commissioners for Prince George's County

Barnes, J., delivered the opinion of the Court. This appeal involves a requested rezoning of 44.9139 acres of land in Prince George’s County from the R-R zone (rural residential) to the R-H zone (multiple-family high rise residential — a “floating zone”). The subject property is owned by the appellants and is located east of Livingston Road and the innermost part of Broad Creek off the Potomac River, between Fort Washington Road and Oxon Hill Road. It is located northeast of Harmony Hall and west of Indian Head Highway.

It is approximately 1.75 miles from the north shore of the Potomac River and .75 mile from the most northerly part of Broad Creek. It abuts Livingston Road for a distance of 433.85 feet. The ground abutting Livingston Road has an elevation of 24 feet. This level continues eastward for approximately 70 feet and then rises sharply to an elevation of 124 feet where the land is then comparatively flat.

South of the subject property and in the northeast quadrant of the intersection of Fort Washington Road and Livingston Road are 29 single-family dwellings. Immediately to the northwest of the subject property are four dwellings. To the north of the subject property, south of the intersection of Old Fort Road and Livingston Road, are 14 dwellings, the Broad Creek Riding Stables, the Mills Lumber Company, and an electrical sub-station. Both sides of Indian Head Highway from Old Fort ²⁹ Road to Eort Washington Road are vacant for the most part and wooded with the exception of a gasoline service station in the northwest quadrant of the intersection of Fort Washington Road and Indian Head Highway.

To the east of that intersection there is a church and several single-family dwellings; in the southwest quadrant of that intersection there is a hardware store. On the west side of Livingston Road at Fort Washington Road and south of the intersection is a tavern, and in the northwest quadrant of that intersection there is a building materials, groceries and feed store. Farther north on the west side of Livingston Road is Harmony Hall, 1 built around 1750 by Enoch Magruder. To the west and northwest of the subject property, along the west side of Livingston Road, are seven more single-family dwellings.

In general, the areas north of Livingston Road ■and Old Fort Road and the areas south of Fort Washington are occupied by scattered single-family dwellings. The subject property and the surrounding area are for the most part zoned R-R. There is a small area of C-2 zoning (more intensive commercial than C-l) in the northwest corner of Indian Head Highway and Fort Washington Road that is presently occupied by a gasoline service station. There is a small area of C-2 zoning along the east side of Livingston Road to the north in the vicinity of Mills Lumber Company, some 2000 feet from the subject property. The owners of the subject property filed their application on October 30, 1962, to rezone the property from R-R to R-10 (multiple family — high density residential).

After the Board of County Commissioners of Prince George’s County, sitting as the District Council for that portion of the County lying within the Maryland-Washington District (District Council), passed District Council Resolution No. 325-1962 on November 30, 1962, creating the R-H zone, the owners amended their application to request R-H zoning for the subject property. ³⁰ The Technical Staff of the Maryland-National Capital Park and Planning Commission originally prepared a Staff Report and submitted it to the Planning Board on July 10, 1963. At that time the application was held without action. An Amended Technical Staff Report was prepared for the meeting of the Planning Board on September 18, 1963, and at the Planning Board’s meeting on October 2, 1963, the application was-again held without action at the request of the applicants. The applicants, on July 8, 1964, requested that the matter be reconsidered by the Technical Staff.

This was done and on August 12, 1964, the Technical Staff filed an Amended Technical Staff Report with the Planning Board. This comprehensive and carefully considered report pointed out that the Master Plan of Rand Use for the Henson Creek Watershed, adopted May 15, 1963, and the General Plan for Montgomery and Prince George’s-Counties, adopted January 22, 1964, both recommended that the subject property and adjoining area would be restricted to single-family use, so that the application was not in accordance with the Master Plan for the area. It was further set forth in the Amended Report that the subject property was located in an area whose character was in fact basically rural and that approval of the application “would permit the instrusion of high density development into this basically single-family development in the area and the existing single-family development.” It appeared from the Amended Report that approval of the application “could generate 1760 dwelling units, 4400 people, 176 elementary school pupils, 88 junior high pupils, 88 senior high pupils and 8800 vehicle trips per day.” In the opinion of the Technical Staff the approval of the application would have an adverse effect on the historical dwelling, Harmony Hall, and the park area that is proposed to be acquired along the west side of Rivingston Road. The Amended Report then quoted part of Section 17A.0 of the ordinance creating the R-H zone, which states the purpose in the creation of that zone, as follows: “The purpose of the R-H zone is to provide suitable sites for relatively high density residential development at locations recommended in the General Plan or at such other locations as are found to be suitable by ³¹ the District Council, and which are selected so as best to accomplish economies in the construction and operation of such public services as transportation, retail shopping facilities, and other community facilities, which depend upon convenient access by residents of the area, and so as to prevent undue congestion in sections of the County where such facilities are not available or cannot be conveniently or economically provided.

It is further the purpose to provide on the sites a maximum open space for the benefit of the residents of the development together with a minimum of obstruction to the view of those who live in the surrounding area.” The Amended Report then continued as follows: “It is the staff’s opinion that the request does not satisfy the majority of the criteria set forth in the Ordinance with respect to the establishment of the RH Zone. “In summary, the recommendation is based on the following reasons: “1. The request is not in conformance with the adopted Master Plan for the Henson Creek Watershed, adopted May IS, 1963. “2. The request is not in conformance with the General Plan for Montgomery and Prince George’s. Counties, adopted January 22, 1964. “3.

There is no evidence of an error in the original zoning of the subject tract. “4. There has been an insufficient change in the character of the area to justify the request. “5. If approved, the request would be spot zoning. “6. The request does not satisfy the majority of the requirements as set forth in the Ordinance with respect to the purpose of the R-H Zone. “7.

The request is not in keeping with the established character of the area and it would have an adverse effect on the existing single-family development in the area. “Recommendaton: Denial for the R-H Zone.” ³² The Amended Report was submitted to the Planning Board which, at its meeting of October 28, 1964, disapproved the application stating as its reasons all of the reasons given by the Technical Staff except Reason No. 6, supra. At the hearing before the District Council on March 9, 1966, the applicants produced evidence to show what the proposed project would be and that the project was compatible with the surrounding area. Both the urban planning and zoning consultant and the architect who testified for the applicants were well qualified. Briefly stated, the proposal is for a super block concept, allowing for the development of an area in terms of open land contemplated in the R-H zone.

On the highest portion of the subject property there would be a 30-story tower and two adjoining 22-story high-rise apartments in an “S” shape. There would also be six 12-story high-rise apartments at somewhat lower elevations and toward the lower portion of the subject property there would be town houses. Applicant’s exhibit 10 (which is in the record, but was not reproduced in the record extract) shows the number of housing units in the tower and high-rise apartments to be 2017 and the number of parking areas (many underground) to be 2522, or parking for 1.25 automobiles per housing unit. The land coverage is limited to 7per cent of the subject property.

There was also testimony on behalf of the applicants that the proposal was based upon the suggestions contained in a South Potomac Sector Plan 2 which had been considered by the Technical Staff and which would indicate that the subject property would be located in an area in which the granting of an application for R-H zoning would be appropriate. There is no dispute, however, that the South Potomac Sector Plan has not yet been promulgated by the Technical Staff or the Planning Board and has not been adopted by the District Council. The applicants also produced evidence that there would be adequate water and sewer facilities for the project. ³³ The evidence oí those protesting against the granting of the application indicated that the proposal would completely change the character of the single-family residential neighborhood. The proposal would increase the population of the area by 92% and this increase would create a traffic hazard. 3 ³⁴ The District Council admitted into evidence a letter from T. Sutton Jett, Regional Director of the United States Department of Interior, in which the Department indicated its support of the action of the Planning Board on October 28, 1964, recommending a denial of the application and stating the reasons for that support.

The principal reason was that the increased density would in the Department’s opinion, “allow construction adversely affecting the National Park Service proposals in this area as well as the scenic values of the Potomac Valley.” The District Council took the application under advisement and on April 6, 1966, passed a resolution in which it disapproved the application “in accordance with the recommendation of the Park and Planning Commission” and stated: “The District Council believes this request should be disapproved based on the Park and Planning Commission’s recommendations; and further, on the fact that there is no evidence in the record showing error, or sufficient changes to grant this zoning. It appears that the only evidence in the record is based on a future plan which has not been, and may never be, approved in its present state.” An appeal to the Circuit Court for Prince George’s County was duly perfected by the applicants. That court affirmed the action of the District Council and after an appeal was timely taken to this Court, filed an opinion stating the court’s reasons for its ruling. The principal question in the case is whether or not on the record before us the action of the District Council in refusing the application was arbitrary, unreasonable and capricious.

The resolution of this determinative question depends on whether the action of the legislative body, in refusing to find that the project was to be erected at a suitable location compatible with the surrounding area, was fairly debatable. We have concluded that it was