Maryland-National Capital Park & Planning Commission v. Rosenberg

McWilliams, J., delivered the opinion of the Court. In this appeal, stemming from the confrontation of a landowner and the appellant (the Commission), we are asked to consider what is known in Prince George’s County as the “Adequate Public Facilities Ordinance.” In- some jurisdictions similar enactments have been called “timing and sequential control” ordinances. They are said by professional planners to be the most important advance in planning and zoning law since Village of Euclid v. Ambler Realty Co., 272 U. S. 365 (1926). The Commission makes much of the fact that a similar ordinance has received the guarded approval of the Court of Appeals of New York.

Golden v. Planning Board of the Town of Ramapo, 334 N.Y.S.2d 138 (1972). While we think the Prince George’s County ordinance may have an inherent deficiency which the New York court would have frowned upon, we shall assume its validity, but only in aid of resolving the difference of opinion here presented. As we see this case the single issue is whether the action of the Commission was arbitrary and capricious. We think it was.

However, before we undertake to relate the facts, we shall set forth the ⁵²² pertinent parts of both the enabling act (Code of Public Local Laws of Prince George’s County, § 59-76 (1963)), and the ordinance (Code of Ordinances and Resolutions of Prince George’s County, § 3 (a) 16 (1967)): “ . . . The regulations may provide for (1) the harmonious development of the district; (2) the coordination of roads within the subdivision with other existing, planned or platted roads or with other features of the district or with the commission’s general plan or with any road plan adopted or approved by the commission as part of the commission’s general plan; (3) adequate open spaces for traffic, recreation, light, and air by dedication or otherwise, and the dedication to public use or conveyance of areas designated for such dedication under the provisions of zoning regulations relating to average lot size or planned community subdivision and for the payment of a monetary fee, in lieu of dedication, not to exceed five percent of the total assessed value of the land, to be used by the commission to purchase such open spaces for the use and benefit of the subdivision in cases where dedication would be impractical; (4) the reservation of lands for schools and other public buildings and for parks, playgrounds, and other public purposes, provided no reservation of land for traffic, recreation or any other public purposes as herein provided shall continue for longer than three (3) years without the written approval of all persons holding or otherwise owning any legal or equitable interest in said property; and provided further that such properties so reserved for public use as hereinbefore provided shall be exempt from all state, county and local taxes during such period; (5) the conservation of or production of adequate transportation, water, drainage and sanitary facilities; (6) the preservation of the location of and the volume and flow of water in and other characteristics of natural streams and other ⁵²³ waterways; (7) the avoidance of population congestion; (8) the avoidance of such scattered or premature subdivision of land as would involve danger or injury to health, safety or welfare by reason of the lack of water supply, drainage, transportation or other public services or necessitate an excessive expenditure of public funds for the supply of such services; (9) conformity of resubdivided lots to the character of lots within the existing subdivision with respect to area, frontage and alignment to existing lots and streets; (10) control of subdivision or building (except for agricultural or recreational purposes) in flood plain areas or streams and drainage courses, and on unsafe land areas; (11) preservation of outstanding natural or cultural features and historic sites or structures; or (12) other benefits to the health, comfort, safety or welfare of the present and future population of the regional district.” “16. Before preliminary approval may be granted for any subdivision plat the Planning Board must find that: sufficient public facilities and services exist or are programmed for the area. It is the intent of this section that public facilities and services should be adequate to preclude danger or injury to the health, safety and welfare and excessive expenditure of public funds. “i.

The Planning Board shall give due weight to the potential of the proposed subdivision in relation to the surroundings, including the nature, extent and size of the proposed subdivision; the estimated increase in population; the anticipated timing of the development of the land proposed for subdivision; and the degree of urbanization or development within a reasonable distance of the subject property; and the following factors: “The availability of existing or programmed sewerage or water mains. ⁵²⁴ “The, potential effect of the proposed subdivision on the efficient and economic operation of existing or programmed public facilities. “The distance of any necessary extension of sewerage and water facilities through unsubdivided lands which are indicated for eventual development on an approved plan. “The location of the proposed subdivision in respect to the approved Ten Year Water and Sewerage Plan, or in any future plan which designated the timing of construction of facilities. “The availability of access roads adequate to serve traffic which would be generated by the subdivision, or the presence of a proposal for such road(s) on an adopted Master Plan and in the current Capital Improvement Program or the State Roads Commission program. “The availability within a reasonable distance, and the adequacy of school, fire, police, -utility, and park and recreation services.” The 31 acre tract of land (the property) with which we shall be concerned abuts the northwest side of the Pennsylvania Railroad which at that point serves also as one side of an equilateral triangle; the northeast side is the Capital Beltway (Interstate Rte 495); the south side is the John Hanson Highway (U.S. Rte 50). The property lies within the development known as West Lanham Hills which is about four miles northeast of the District line. Except for the land .inside the triangle one can safely say the area surrounding the property is fully developed. Since 1964 the zoning classification of the property has been R-18 (Multiple Family, Medium Density, Residential), a classification with which the owner (appellee) seems content.

It is said that a six acre strip has been or will be acquired to serve as the site for the Metro’s Ardmore station. In June 1971 the appellee submitted to the Commission for its approval, as required by the subdivision regulations, a ⁵²⁵ preliminary plan for the subdivision of two parcels of the property. The Commission referred the application to its staff which, in turn, sent it to various county agencies for review and comment. The Board of Education was one of the agencies whose comment was solicited.

It referred the matter to its Office of Population Analysis. On 16 June the Office of Population Analysis sent a memorandum to F. Harris Allen, Principal Development Coordinator of the Commission. The memorandum indicated a “Projected Pupil Yield” of 134 for the West Lanham Hills Elementary School, the capacity of which was 640 and which, at the time, had an actual enrollment of 657. Several weeks later there came into existence an “adequate public facilities check sheet” apparently prepared by someone on the Commission’s technical staff.

Allen said he used this “in the course of the review of preliminary plans.” This check sheet, dated 6 July 1971, indicates that the property had a “potential” of 651 units and that, fully developed and occupied, it would yield 175.8 pupils. The Office of Population Analysis, it will be recalled, developed a figure of 134. The September 1970 enrollment at the West Lanham Hills Elementary School was stated, in the check sheet, to be 668 pupils or 11 more than the enrollment reported by the Office of Population Analysis. There appears also, in the check sheet, the following notation: “There are no additions in the CIP [Capital Improvements Program] which would increase the capacity of this school or any other elementary schools in the vicinity. ’’(Emphasis added.) It is conceded that the technical staff of the Commission recommended approval of the appellee’s application.

It was considered by the Prince George’s County Planning Board of the Commission on 9 August and disapproved the same day. A letter from Allen to the appellee, dated 13 August, states, in part: “ ... West Lanham Hills Elementary School which would serve this property is currently ⁵²⁶ operating over its listed capacity and there are no plans for any elementary schools in the Capital Improvements Program which would relieve this situation. The property, if developed in accordance with the allowable density, would generate approximately 134 elementary school children which would further overload the existing school. “It was therefore the opinion of the Planning Board that since adequate public facilities are neither existing or programmed to serve the area the proposed subdivision should be denied.” The record seems to suggest that during the next six or eight months counsel for the appellee tried, in vain as it turned out, to persuade the Commission to recede from the position it had taken in August.

In March 1972 the Commission reaffirmed its unwillingness to approve the preliminary plan. On 26 May the appellee filed her petition praying the issuance of the writ of mandamus and a mandatory injunction commanding the Commission to approve her preliminary plan. The Commission answered