Malmar Associates v. Board of County Commissioners

Barnes, J., delivered the opinion of the Court. In this appeal in a zoning case, the appellant, Malmar Associates (Malmar or Applicant) challenges the Order of February 26, 1970, of the Circuit Court for Prince George’s County (DeBlasis, J.) sustaining the findings and resolution of the appellee, Board of County Commissioners for Prince George’s County, sitting as a District Council (District Council) denying the applicant a Spe ²⁹⁵ cial Exception to the Zoning Ordinance of Prince George’s County as amended by Ordinance No. 380, approved October 1, 1968, in regard to maximum percentages of two, three or more bedrooms per apartment unit in various multiple-family, residential zones. The principal questions presented to us are whether the District Council’s action (1) was in accordance with the provisions of the zoning ordinance itself; (2) was arbitrary and capricious; (3) Ordinance No. 380, itself, is unconstitutional and void as being (a) an impairment of a vested right by retroactive application, (b) based on an unreasonable restriction of private property, unrelated to the general welfare and (c) a denial of equal protection of the laws? Malmar owned a parcel of land in the Thirteenth Election District of Prince George’s County in Glenarden which was in the R-18 (Multiple-Family, Medium-Density Residential) zone.

It planned to develop the land by erecting apartment buildings on three sections. Section 1 was fully developed before the passage of Ordinance No. 380. For the erection of the apartment buildings on Section 2, a special exception under Ordinance No. 380 was needed. Malmar applied for this special exception for Section 2 and it was granted by the District Council.

The apartment buildings were under construction in Section 2 at the time of one of the hearings before the District Council on July 16,1969. Malmar applied for the special exception for Section 3 (“Parcel C”) — the special exception involved in the present case ■— on April 14, 1969. Section 3 consists of 10.276 - acres (447,622.56 square feet) and is in Glenarden, north of Hamlin Street and approximately 300 feet west of Brightseat Road. Under the applicable zoning, 223 apartment units are permitted and the applicant proposed to have that number in 19 apartment buildings, made up of 12 four bedroom units, 28 three bedroom units, 127 two bedroom units, and 56 one bedroom units.

Under Ordinance No. 380, however, only 367 bedrooms are permitted; the applicant proposed to have 442 bed ²⁹⁶ rooms and for this reason needed to request a special exception. The proposed apartment construction on Section 3 complied with the zoning requirements in regard to building coverage, green area and parking spaces. The expected rental range was from $112.00 to $267.00 per month. At the hearing of July 16, 1969, Algis Pabarcius, representing the contract purchaser, National Health Foundation, and the prospective project manager, testified that the application “only covers section three.” He produced the site plan for Section 3 which was offered and received in evidence.

He also testified that the preliminary plan of the subdivision had been “approved by the Park and Planning Commission June 10, 1968” and that the site plan for Section 3 had been prepared “approximately in May 1968.” His employers “had expended $118,542.20” on Section 3, consisting of costs for surveys, soil tests, architecture and engineering work, and another item for premium cost of Sections 1 and 2. After giving the type of bedroom units making up the 223 apartment units in Section 3, he estimated that the number of bedroom units contemplated exceeded the ordinance requirements by 25%. He estimated that using his percentage of increase with other data supplied by the School Board, there would be an increase of 27 pupils resulting from the granting of the requested special exception. In regard to the average projected increase of persons in the project, Mr. Pabarcius testified: “In the first section we did a survey and we found that it was approximately $5,600 per family and in the second and the third section, the project is going under the new FHA program, and there is no upper income limit for people living in the apartments, such as existed in the first.

If the person is not making enough, the Government picks up part of his rent and he is supposed to only pay 25 percent of his income. At the same time, if 25 percent of his income ²⁹⁷ exceeds the rent of the apartment, he is supposed to pay more. In other words, they figure that a person should be able to afford to pay 25 percent of his income towards apartments. There is also an upper limit on the rents.” The Mayor of Glenarden testified in opposition to the granting of the application.

He indicated that the Town Council was unanimously opposed to granting the special exception. The town was principally concerned with the crowding of the schools if the application were granted. A member of the Town Council also testified in opposition to granting the application, stating that he thought there were already too many apartments in the area. The District Council thereafter recessed the hearing until July 25, 1969, to permit a representative of the Board of Education to testify in regard to the impact the granting of the application would have upon the school enrollment.

At the July 25 hearing, Blair Overton of the Board of Education presented that Board’s findings in regard to the impact the granting of the application would have on the schools. He stated that there would be an increase of 36 elementary pupils when considering the special exception for Section 3 alone. Since the bedroom mix in Section 3 was decreased from the original estimate, the overall increase for the whole project — Sections 1, 2 and 3— would be nine students. A letter dated June 17, 1969, from the Board of Education to the Chairman of the Board of County Commissioners stated in regard to the subject application : “It is anticipated that the increase in school enrollment from this special exception request and other zoning changes that have taken place in this area of Master Plan 72 North could overcrowd the existing and planned school facilities indicated for this area.” In a letter dated July 23, 1969, from the Board of Education to the Chairman of the Board of County Commis ²⁹⁸ sioners, which included a Statistical Analysis Regarding Special Exception, Case Number 2020 (the subject application), it appeared that the existing zoning pupil yield would be 62 elementary pupils, 27 junior high pupils and 20 senior high pupils.

If the special exception were granted, the pupil yield would be elementary pupils, 98 (an increase of 36), junior high pupils, 41 (an increase of 14) and senior high pupils, 31 (an increase of 11). Both of the letters of June 17 and July 23, 1969, were made part of the record in the case. On August 12, 1969, the District Council disapproved the application. After describing the application and the location of the 10.276 acre tract, the Resolution was in relevant part as follows: “FINDINGS OF FACT” “1.

The application is for a special exception from the bedroom unit percentage of the R-18 zone, from 367 bedrooms allowable to 442 bedrooms allowable. Only Section III was under consideration. Applicant sought an excess of units for three and four bedrooms by about 7.9 and two bedrooms by about 17. “2. The hearing began on July 18, 1969, and was recessed and further hearings held on July 25,1969, in order to hear further from the Board of Education. “3.

By the granting of the special exception, it would mean in Section III a projected increase of students of approximately 36 elementary students. By the granting of S.E. No. 1894, the increase in mix of bedroom units, and the granting of this application there would be a total increase of elementary pupils for the whole project of 312 pupils over that projected for the master plan. The projection of elementary pupil yield for the whole project in January, 1969, was 523 but has been revised to 532 elementary students.” ²⁹⁹ “CONCLUSIONS” “1. The applicant has failed to show that the proposed use is in harmony with the purpose and intent of the Master Plan for the physical development of the district, particularly as to the planned elementary school enrollment. “2.

The applicant has not shown [that] the proposed development of Section III would not affect adversely the health and safety of the residents in the area or that it will not be detrimental to the development of the general neighborhood.” The applicant perfected an appeal to the Circuit Court for Prince George’s County; and after the submission of legal memoranda and argument by counsel, Judge De-Blasis, in a well considered written opinion, indicated that the findings of the District Council would be sustained. An order of February 26, 1970 affirmed the action of the District Council and from that order the applicant took a timely appeal to this Court. 1. The applicant Malmar earnestly contends that the District Council’s action was not in accordance with the provisions of the zoning ordinance in regard to special exceptions. § 28.2, General Provisions of the Prince George’s County Zoning Ordinance provides: “A special exception may be granted when the council finds that: “ (a) The proposed use is in harmony with the purpose and intent of the General Plan for the physical development of the district, as embodied in this ordinance and in any Master Plan or portion thereof adopted or proposed as part of said General Plan. ³⁰⁰ “(b) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use and/or development of adjacent properties or the general neighborhood.” Ordinance No. 380, approved October 1, 1968, amends various sections and subsections of the zoning ordinance in regard to various zones and stated that it was: “. . . to amend Section 28.0 relating to special exception uses; all for the purpose of prescribing in multiple-family zones percentage limitations on the number of bedroom units within a multiple-family apartment building or complex, or both, and providing for special exceptions in excess of stated percentages under specified conditions; and for related density-control purposes.” The ordinance then sets out four “WHEREAS” clauses as follows: “WHEREAS, it has been found and determined that the health, safety, morals and general welfare of the present and future inhabitants of the Maryland-Washington Regional District in Prince George’s County will be better served, and the overcrowding of land development and structures now and in the future for multiple-family occupation will1 be avoided if the density of occupation by family units or persons residing in such dwelling units and projects is further limited; and “WHEREAS, for the purpose of lessening congestion in the streets; securing safety from fire, panic and other dangers; promoting health and the general welfare; providing for adequate light and air; avoiding undue concentration of ³⁰¹ populations; and freeing from difficulty or impediment adequate provisions for transportation, water, sewerage, schools, parks and other public requirements, facilities and services; and “WHEREAS, there had been duly advertised for public hearing on August 30, 1968, a proposed ordinance which endeavored to accomplish the aforegoing purpose of avoiding the overcrowding of land development and structures in multiple-family zones by the proposed adoption of a redefinition of a ‘Dwelling Unit’ as it applied in such zones by requiring such units to be counted according to a formula which would have added one-half (V2) unit for each additional bedroom in excess of one (1) bedroom; and by other means related to density control; and “WHEREAS, upon, and after such public hearing it has been determined that a more effectual method and formula may be utilized to accomplish the same stated purpose.” After amending certain sections and subsections in regard to Definitions, Uses Permitted, Special Exceptions, etc., Section 4 of Ordinance No. 380 amended Section 16A.0, titled “ ‘R-30 Zone (Multiple-Family, Low-Density Residential) ’ ” as follows: “ ‘16A.8 Bedroom Unit Percentages “(a) The maximum percentages of two, three or more bedrooms per apartment unit in a separate apartment building or complex, or both, are as follows: For two bedroom apartments, forty percent; for three or more bedroom apartments, ten percent; provided, however, that unused percentages for three or more bedroom apartment units may be added to the maximum allowable percentages for two bedroom apartment units. Percentage limitations shall apply solely to ac ³⁰² tual dwelling units constructed within the building or complex, or both. “(b) Within the meaning of this subsection, the term ‘bedroom’ shall be construed to mean any habitable room or enclosed floor space, other than one living room for each apartment unit used for the common social activities of the occupants; and shall be construed as being exclusive of a room(s) or enclosed floor space(s) arranged for eating, dining or cooking purposes; and shall be construed as being exclusive of accessory floor spaces such as foyers, hallways, pantries and bathrooms. “(c) Consistent with the aforegoing, it is the intent and purpose of this subsection to include within the meaning of the term ‘bedroom’ any habitable room which is, or could be used for sleeping purposes, and irrespective of its being assigned a different name, such as, a ‘study,’ ‘den,’ ‘recreation room’ and the like. “(d) Percentage limitations do not apply with respect to efficiency and one bedroom apartment units.’ ” By Section 8 of Ordinance No. 380, it was provided that Section 17.0, titled the R-18 zone (Multiple-Family, Medium-Density Residential) — in which the subject property is located — was amended to add a new subsection: “ ‘17.9 Bedroom Unit Percentages Same as specified for the R-30 Zone (See Section 16A.8).’ ” Section 15 of Ordinance No. 380 provides: “ ‘Section 28.0, titled “Special Exceptions” is hereby amended in part by the addition of a new subsection, numbered and titled as follows: “ ‘28.352 Multiple-Family Dioellings; Bedroom Unit Percentages in the R-30, R-18, R-H and R-10 Zones maximum percentages of bedroom units per apartment unit in a separate building ³⁰³ or complex, or both, may be increased to the extent determined by the District Council upon a finding that such increase would be consistent with surrounding land-use, zoning, and the availability of adequate public facilities and services.’ ” Section 16 of Ordinance No. 380 then provides: “All previously issued building permits for the erection of dwelling units which: (a) do not meet the requirements of this ordinance upon its effective date, and (b) where actual construction thereunder has not progressed to and including the point of pouring footings as of the effective date of this ordinance, are hereby revoked.

Pending applications for building permits shall meet the requirements herein contained. New permits will be issued in both instances upon compliance with the requirements herein contained.” Section 17 makes Ordinance No. 380 an emergency measure going into immediate effect upon its adoption. In Board of County Commissioners for Prince George’s County v. Luria, 249 Md. 1 , 238 A. 2d 108 (1968), the Court held that in a zoning case involving a special exception in Prince George’s County, the applicant has the burden of proof in establishing both requirements of Section 28.2 already set forth, i.e., that (a) the proposed use is in harmony with the general plan and (b) that the proposed use will not have an adverse effect on health and safety nor be detrimental to adjacent properties or to the general neighborhood. We cited Luria with approval and followed it in Board of County Commissioners for Prince George’s County v. Lightman, 251 Md. 86, 90 , 246 A. 2d 261, 263 (1968) and in Richmond Corp. v. Board of County Commissioners for Prince George’s County, 254 Md. 244, 263 , 255 A. 2d 398, 408 (1969). ³⁰⁴ Although conceding that in the usual special exception case the applicant would carry the burden of establishing these requirements by testimony, the applicant contends in the present case that the type of special exception involved is an unusual and quite different type of special exception governed by Section 28.352,