Malasky v. Montgomery County Council

Barnes, J., delivered the opinion of the'Court. We were advised at the argument in this appeal that it represents the final appeal involving a number of applications for rezoning in Montgomery County which were originally granted on November 10, 1966, by the Montgomery County Council, sitting as a District Council (Council), subsequent to the general election of November 8, 1966, at which six of the seven members of the Council were defeated, and prior to the assumption of office by their newly elected successors in office. The applications were reconsidered by the newly constituted Council on November 19, 1966. After a full rehearing on the merits on February 3, 1967, the newly constituted Council denied the subject applications on April 11, 1967.

On appeal to the Circuit Court for Montgomery County (Shearin, J.), the action of the Council on April 11, 1967, was affirmed by the Circuit Court by its order of October 21, 1969. A timely appeal was taken to this Court from that order of the Circuit Court. We passed upon various aspects of the question presented in this appeal in Hunt v. Montgomery County, 248 Md. 403 , 237 A. 2d 35 (1968) and in Norbeck Village Joint Venture v. Montgomery County Council, 254 Md. 59 , 254 A. 2d 700 (1969). In the present case, there are two principal questions: ⁶¹⁴ (1) Did the Circuit Court err in holding that under the applicable law the Council could, on its own motion, without assigning “good cause” proceed within thirty days after the prior action of the Council on November 10, 1966, to reconsider the granting of the applications and (2) in holding that the action of the Council on April 11, 1967, denying the applications was in accordance with the applicable law and supported by legally sufficient evidence ?

We have concluded that the Circuit Court did not err in either regard and shall affirm its order of October 21, 1969, affirming the Council’s action of April 11,1967. The subject property is owned by the appellants, Harry Malasky and Joseph Kaufmann. It consists of 25.8184 acres of land lying in the northeast quadrant of the White Oak Interchange between Columbia Pike (U.S. Route 29) and New Hampshire Avenue in an area known as White Oak, Montgomery County. The subject property is vacant and zoned R-90.

It is bounded on the north by a single-family subdivision also zoned R-90. On all other sides, the property is enclosed by major highways — on the west by New Hampshire Avenue, on the east by U.S. Route 29 (the Columbia Pike) and on the south by the interchange of the two highways. It overlooks the large White Oak Regional Shopping Center located directly across U.S. Route 29 in the southeast quadrant of the interchange. On November 30, 1965, the applicants filed three applications for rezoning the subject property, as follows: 1.

E-671 for the requested reclassification of 2.0704 acres from the R-90 (One-Family, Detached, Strictly Residential) zone to either the C-2 (General Commercial) zone or the R-20 (Multiple-Family, Medium Density Residential) zone. (The request for the C-2 rezoning was withdrawn by the applicants at the original hearing.) 2. E-672 for the requested reclassification of 7.1460 acres from the R-90 zone to the R-T (Town House) zone. 3. E-673 for the requested reclassification of 16.602 acres from the R-90 zone to the R-20 zone. ⁶¹⁵ Under the existing R-90 zoning, 77 dwelling units could be erected.

Under the proposed zoning the maximum number of dwelling units which could be erected would be 460. The three applications proposed 404 dwelling units — 66 town houses in Application E-672 (with 102 parking spaces) and 338 apartment units in application Nos. E-671 and E-673 (with 510 parking spaces). The Technical Staff of the Montgomery County Planning Board in its report of February 15, 1966, recommended denial of the three applications as well as two other applications (Nos. E-624 and E-639) in the same quadrant indicating that none of the applications complied with the White Oak and Vicinity Master Plan (which it saw no reason to overrule), the northeast quadrant was logically a part of the extensive single-family detached residential area extending to the north on both sides of New Hampshire Avenue and the shopping center and more intensive uses should remain to the south of U.S. Route 29. The Planning Board adopted the report of its Technical Staff and recommended denial of the applications to the Council.

The original hearing was held by the Council on March 30, 1966. There was expert testimony offered by the applicants to the effect that there was a change in the character of the neighborhood, a mistake in original zoning and the Master Plan was obsolete. The zoning changes relied on were south of Route 29, primarily in the southeast quadrant; there were no zoning changes in the northeast quadrant. It was conceded by the applicants that the subject property could be developed under the R-90 zoning, but this type of development would not be logical or desirable.

Some 197 property owners residing immediately to the north of the subject property appeared and testified in opposition to granting the applications. Their testimony indicated that no additional apartments were needed, that the erection of the apartments and town houses would result in the overcrowding of the schools, and that the proposed development would depreciate the value of their properties. They further testified that the ⁶¹⁶ town houses would dominate the single-family houses below, and that Route 29 and New Hampshire Avenue form substantial physical barriers between the commercial and industrial property lying to the south and east of Route 29 and the residential neighborhood. A general election was held on November 8, 1966.

Only one of the seven incumbent members of the Council was reelected. The six members of the Council who were not reelected met in an unscheduled meeting before their successors could assume office; and on Thursday, November 10, 1966 (the meeting extended into the early morning hours of Friday, November 11), the “lame duck” Council attempted to act upon all pending zoning applications. In the process it hastily adopted numerous resolutions which reclassified some 2,000 acres of land, substantially all contrary to a master plan and including applications E-671, E-672. and E-673. This action was subsequently halted by an order of court.

The “lame duck” Council in granting the reclassification in E-671 and E-673 for R-20 zoning and in E-672 for the R-T zoning, by a 5 to 1 vote, recited in its resolution of November 10,1966: The Council “disagrees with the Planning Board and Staff, finding that the application should be granted. The existing land uses at the New Hampshire Avenue — U.S. Route 29 interchange are of a high degree of intensification rather than of a single-family nature. The number of changes in the character of the area warrants the reclassification of the subject property.” It will be observed that there was no finding that application E-672 complied with the purposes of the R-T zone or was compatible with the neighborhood.' See Sections 111-12, 111-49, Montgomery County Code (1965) and O.F. Smith Brothers Development Corp. v. Montgomery County Council, 246 Md. 1 , 227 A. 2d 1 (1967). The one incumbent councilman' who was reelected and the six newly elected councilmen took their oath of office and entered into their duties on November 15, 1966.

On ⁶¹⁷ November 19, the newly constituted Council adopted Resolutions Nos. 6-4 and 6-5 whereby “on its own motion,” it reconsidered Applications E-671, E-672 and E-673 and some 71 other applications decided on November 10-11. By Resolution 6-6 the newly constituted Council appointed an Ad Hoc Committee of the County legal officers, other lawyers and other experts to review and make recommendations to it in regard to the reconsidered applications and to report its findings to the Council within 10 days. The Report of the Ad Hoc Committee was filed on November 29 and pointed out that virtually all of the rezonings subject to reconsideration were contrary to a master plan (one recently adopted) ; most of the rezonings were contrary to the recommendations of the Planning Commission and Planning Board, when prior to the time the “old” Council took office in 1962, the Council had followed the recommendations of the Planning Board in approximately 80% of the cases. The Report stated in substance that in reviewing individual cases it had found substantial reasons to reconsider some of the appeals in that “some opinions accompanying the rezoning reflect errors in fact, material contradictions or inconsistencies, or findings based upon insubstantial evidence.” On the following December 6, the Committee submitted a report on all 74 cases and recommended that they be reheard.

It reported that the Planning Board and Staff recommended that all applications in the White Oak Planing Area (including the three subject applications) be denied for various reasons including inconsistency with the Master Plan, that Route 29 provided an adequate buffer from intensive uses to the south, and there were no sufficient changes in the northeastern and northwestern quadrants to justify the rezoning. After a hearing the Circuit Court for Montgomery County passed a decree on February 2, 1967, in Hunt v. Montgomery County, Law No. 20665, sustaining the authority of the Council to reconsider the prior zoning orders and declaring that Resolution 6-4 vacated the prior grant of zoning appeals inasmuch as that action was ⁶¹⁸ taken within 30 days in accordance with Section 111-50 of the Montgomery County Charter and there was no applicable provision of law that required the showing of “good cause” as a prerequisite to take such action to reconsider. This decree was affirmed by us in Hunt v. Montgomery County, supra, 248 Md. 403 , 237 A. 2d 35 (1968). The three subject applications were reheard by the Council on February 3 and February 10, 1967.

At the rehearing an expert planner testified for the applicants that the subject property was a logical location for the requested R-20 and R-T rezoning. He admitted on cross-examination that although there had been a number of petitions filed for rezoning of land in the northeast quadrant subsequent to the adoption of the White Oak Master Plan, none of the petitions had been granted. He stated, however, that he did not consider this to be “a significant planning factor.” He also testified that the Master Plan in his opinion comprised several neighborhoods and that he was “not at all sure that there had been a decision on the part of the Court of Appeals that says there has to be a change in the neighborhood.” He also stated that in his opinion it made no difference that there was vacant land, a dual highway or a street in between the proposed rezoning and the land to the south across the interchange. He admitted that single-family houses could be built on the subject property but it would be a waste to build them there.

A traffic expert also testified for the applicants. In his opinion, Route 29 and New Hampshire Avenue could handle the increased traffic which would be generated from the proposed rezoning, if granted, and there would be no adverse effect upon the residential development in the area. However, he did not know how many apartment units had been zoned, but not developed, or the traffic those units would generate as and when developed. Furthermore, he had made his traffic counts at only the p.m. peak hours, showing only the effect of the three subject applications and no others.

A real estate expert testified that in his opinion the ⁶¹⁹ proposed