Manian v. County Council for Montgomery County

RODOWSKY, J. This Montgomery County zoning case challenges the approval of development plan amendment (DPA) 03-2 relating to the construction of six townhouses, including a dental office. Appellants, plaintiffs below, Peter G. and Samuel R. Manían (the Manians), own a single family residence adjoining the proposed development to the north. Appellee, the County Council for Montgomery County, Maryland Sitting as a District Council for that Portion of the Maryland-Washington Regional District Within Montgomery County (the Council), ⁴⁰ approved DPA 03-2. In an action for judicial review, the Circuit Court for Montgomery County affirmed the Council.

The Manians have advanced certain technical arguments in support of their contention that DPA 03-2 fails to comply with Montgomery County Code (2004), Chapter 59, “Zoning Ordinance.” The principal issue is whether these arguments should have been addressed by the Council at the development plan amendment approval stage or are to be addressed by the Planning Board at the site plan approval stage. As explained below, we shall hold that the latter is the appropriate stage. In October 1995, the Council approved Local Map Amendment (LMA) # G-720, which rezoned about 1.2 acres in Bethesda as a Transit Station-Residential (TS-R) zone, a floating zone. This land consisted of two separately owned parcels, Parcel A and Parcel B (together “the TS-R Site”).

The TS-R Site lies at the intersection of Arlington Road, a north-south street, and Edgemoor Lane, an east-west street. Parcel A is situated at the northeast corner and Parcel B at the southeast corner. Approximately three years later, townhouses were constructed on Parcel B pursuant to LMA # G~ 720. LMA # G-720 originally had provided that eight townhouses would be constructed on Parcel A. Through DPA 03-2, submitted on March 21, 2003, the project’s developers sought to amend the development plan for Parcel A to permit construction of six townhouses.

One is to include a 1,000 square foot dental office. 1 All would have rear basement garages and rooftop terraces. TS-R zoning is authorized by Article C, Division 8, of the Zoning Ordinance. See § 59-C-8.1. 2 The TS-R zone and its ⁴¹ companion, the TS-M zone, as their names imply, are intended for use in transit station development areas. § C-8.21(a). The TS-R zone “may also be used in an area adjacent to a Central Business District, within 1,500 feet of a metro transit station.” Id.

Another legislative intent in creating these zones is set forth in § C-8.21(d), as follows: “In order to facilitate and encourage innovative and creative design and the development of the most compatible and desirable pattern of land uses, some of the specific restrictions which regulate, in some other zoning categories, the height, bulk and arrangement of buildings and the location of the various land uses are eliminated and the requirement substituted that all development be in accordance with a plan of development meeting the requirements of this division.” The purposes of the TS-R zone are set forth in § C-8.22. These include providing “the maximum amount of freedom possible in the design of buildings and their grouping and layout within the areas classified in this zone[.]” § C-8.22(d). The procedures for applying for, and approval of, a reclassification to a TS-R zone are set forth in § C-8.45, which provides in relevant part: “(a) Application and development plan approval shall be in accordance with the provisions of division 59-D-l. “(b) Site plans shall be submitted and approved in accordance with the provisions of division 59-D-3.” “Development standards” for the TS-R and TS-M zones, relating to minimum area, density of development, and two types of open space, are set forth in § C-8.4. The “[mjinimum percentage of net area devoted to public use space” is ten percent, § C-8.43(a), and the “[mjinimum percentage of net area devoted to active and passive recreational purposes,” for ⁴² a project with a site area of 40,000 sq. ft. or more, is twenty-five percent. § C-8.43(b) and n. 1.

The twenty-five percent development standard applies to the TS-R Site which contains 48,799 sq. ft. In this case the Manians contend that each of the two standards relating to open space is violated in approved DPA 03-2. Article D deals with development plans. Development in certain zones, including the TS-R zone, “is permitted only in accordance with a plan approved by the [Council] at the time the land is classified in one of [these] zones[.]” § D-l.l.

In order to achieve the flexibility of design needed for the implementation of the purposes of a TS-R zone, “the applicant is required to submit a development plan as a part of the application for reclassification.” § D-1.2. A development plan that underlies a LMA may be amended. § D-1.74(a). The application is referred to the Planning Board for review and recommendation. Id.

Presumably, that Board applies the same criteria as applied to an application for original reclassification, ie., “whether the application and the accompanying development plan fulfill the purposes and requirements of the applicable zone.” § D-1.4. In the instant matter, the Planning Board recommended approval of the amendment to the development plan. Here, where there was public opposition to the requested amendment, a hearing examiner conducted a public hearing. § D-1.74(d). For purposes of the public hearing, and the examiner’s report and recommendation, the development plan amendment is considered a part of the application. § D-1.5.

In the instant matter, the hearing examiner filed a sixty-one page report recommending approval of the requested amendment to LMA # G-720, subject to certain conditions. One subject of these conditions related to the difference between illustrative elements on the development plan, which could be changed during site plan review, and binding elements which, in the examiner’s words, “cannot be changed without a separate application to the ... Council for another development plan amendment.” The report stated: ⁴³ “To avoid confusion as to what is binding and what is not, the Hearing Examiner will recommend that the Council’s Resolution require the Applicant’s position, which is clear in the record, be reflected on the face of the final Land Use Plan submitted for certification. Applicant can accomplish this by adding the following notation to the submitted plan: “ ‘The site layout shown on this Land Use Plan is illustrative, except to the extent that it shows the number, general locations, minimum setbacks and uses of the proposed structures, all of which are binding elements.

The charts showing the Development Standards for [Parcel A] alone and for the [TS-R Site] are binding to the extent they show the maximum Floor Area Ratio, the maximum Gross Floor Area, the maximum Number of Units, the minimum Public Use Space, the minimum Active/Passive Recreation Space, the minimum Total Open Space, the minimum Number of Parking Spaces and the minimum Dedication to Public Use.’ “Thus the binding elements here include the number of new residential units (6, instead of the 8 originally planned for Parcel A); ... the minimum public use space (1,185 sq. ft. which is 10% of Parcel A, and 5,393 sq. ft. which is 11% of the total G-720 land); [and] the minimum active/passive recreation space (2,963 sq. ft., which is 25% of Parcel A, and 15,392 sq. ft., which is 32% of the total G-720 land)[.]” The next step in the process was consideration by the Council. § D-1.7(e). The Manians contend, and we shall assume, that before approving a development plan amendment, the Council is required to fulfill its obligations under § D-1.61, “Findings.” That section provided: 3 “Before approving an application for classification in any of these zones [including TS-R], the [Council] must consider whether the application, including the development plan, fulfills the purposes and requirements set forth in article 59-C for the zone. In so doing, the [Council] must make ⁴⁴ the following specific findings, in addition to any other findings which may be necessary and appropriate to the evaluation of the proposed reclassification: “(a) That the zone applied for is in substantial compliance with the use and density indicated by the master plan or sector plan, and that it does not conflict with the general plan, the county capital improvements program or other applicable county plans and policies. “(b) That the proposed development would comply with the purposes, standards, and regulations of the zone as set forth in article 59-C, would provide for the maximum safety, convenience, and amenity of the residents of the development and would be compatible with adjacent development. “(c) That the proposed internal vehicular and pedestrian circulation systems and points of external access are safe, adequate, and efficient. “(d) That by its design, by minimizing grading and by other means, the proposed development would tend to prevent erosion of the soil and to preserve natural vegetation and other natural features of the site. Any applicable requirements for forest conservation under Chapter 22A and for water resource protection under Chapter 19 also must be satisfied.

The [Council] may require more detailed findings on these matters by the planning board at the time of site plan approval as provided in division 59-D-3. “(e) That any documents showing the ownership and method of assuring perpetual maintenance of any areas intended to be used for recreational or other common or quasi-public purposes are adequate and sufficient.” The Council approved the amendment to the development plan on October 12, 2004. Its opinion did not incorporate by reference the report of the hearing examiner. The most specific statement in the opinion covering the TS-R open space standards is: “Applicant’s Land Use Plan demonstrates ⁴⁵ compliance with the development standards specified in Section 59-C-8.4.” Resolution 15-787, by which the Council approved DPA 03-2, included, as a condition of the approval, that the charts on the revised “Land Use Plan” bear the notation that they are binding concerning, inter alia, the “minimum Public Use Space [and] the minimum Active/Passive Recreation Space[.]” Further, the Council noted that “[i]n addition to this zoning review, the proposed development will also be subject to the review and approval of a Preliminary Plan of Subdivision and a Site Plan by the Planning Board.” Both in oral argument before the Council, allowed by § H-6.5, and in its evidentiary case before the hearing examiner, the Manians had contended that the open space for public use and the open space for active/passive recreation had been improperly calculated so that, in fact, the applicable standards under § C-8.43 had not been met. In this Court, they submit, inter alia, that the Council approved the amendment without explaining why the Manians’ calculations were wrong and that the Council thereby violated § D-1.61(b) requiring the Council to make findings that “the proposed development would comply with the ... standards ... of the zone.” The remedy sought by appellants is a remand to the Council with directions to make more specific findings.

Approval of an amended development plan, as in the instant matter, does not exhaust the requirements for developing in a Transit Station Development Area Zone. Site plans must be submitted and approved in accordance with division D-3. § C-8.45(b). “[N]o building or use-and-occupancy permit for the construction or use of any building or structure may be issued until a site plan is approved and unless it is in accordance with an approved site plan.” § D-3.0. Site plan approvals are the province of the Planning Board. In reaching a decision whether to approve, the Board must determine whether “the site plan is consistent with an approved development plan” and “meets all of the requirements of the zone in which it is ⁴⁶ located.” § D-3.4(a)(l) & (2). 4 In the instant matter, it is the Council’s position that the Planning Board, in the process of site plan review, will determine the compliance, vel non, of the calculations underlying the percentages of the TS-R Site that are devoted to open space and determine whether the site plan complies with the development plan’s binding elements concerning open space that are a condition of the Council’s approval of the development plan.

The Manians sought judicial review in the Circuit Court for Montgomery