Montgomery County Council v. Kacur

Barnes, J., delivered the opinion of the Court. This case involves an appeal from the decision of the Circuit Court for Montgomery County (Pugh, J.) reversing the decision of the Montgomery County Council sitting as a District Council for that portion of the Maryland-Washington Regional District located in Montgomery County, in denying the application for zoning reclassification of John C. Kacur and Leona B. Kacur, his wife, the appellees before us. The subject property consists of 1.707 acres and is located on the south side of River Road approximately 450 feet northwest of the intersection of Falls Road and River Road in Potomac, Maryland, in the Tenth Election District of Montgomery County. The property is “L” shaped, and has a frontage of 165.4 feet on River Road, with the largest part of the tract forming a rectangle extending southwest from the River Road frontage, while the projection which completes the “L” is substantially smaller, and extends from the rear of the subject property in a westerly direction to Rock Run, a small stream.

It is improved with a single-family residence. The subject property is bounded on all sides by land zoned R-R (Rural-Residential) or R-A (Agricultural-Residential). The parcel of land to the north and west of the subject property, and also bounded by River Road to the north and Rock Run to the south is zoned R-R. To the west and across Rock Run, the land is zoned R-A. To the south, in the rear of the subject property, the zoning is R-R. Farther to the south, the property lying between Falls Road and Rock Run is zoned R-R. Immediately to the east of the subject property is a narrow strip of land which is zoned R-R, and adjacent to that and farther to the east along ²²³ the south side of River Road is a parcel zoned C-l. This parcel extends to the intersection of Falls Road and River Road, with a frontage on both of those arteries.

To the north of the subject property and across River Road, the land is zoned R-R and C-l, in much the same pattern as on the south side of River Road. Thus, it may be observed that in each quadrant of the intersection of Falls and River Roads is a commercial area, extending away from the intersection no more than a few hundred feet. This commercial area is known as Potomac Village, and contains a variety of local commercial uses serving the surrounding residential and agricultural area. They are the only such uses within a radius of several miles, and the only commercially zoned land in the entire area is in the immediate and contiguous vicinity of the intersection.

The Kacurs, as contract purchasers, filed the application on November 29, 1966, to rezone the subject property from the existing R-R zoning to either C-l (Local Commercial) or C-2 (General Commercial). By deed recorded on January 9, 1967, they completed the purchase of the subject property, not contingent upon rezoning or any other factor. The property falls within the Potomac-Travilah and Vicinity Planning Area of the Maryland-National Capital Park and Planning Commission. On February 16, 1966, the Commission approved a Master Plan for this area, and on January 25, 1967, the County Council adopted the plan.

The Zoning Plan for Potomac Village, a part of the Master Plan, designates the subject property as R-R, while the complementary Land Use Plan for the same area shows most of the subject property as a “single family area suitable for special exception uses” with a small strip at the rear of the property bordering Rock Run as a “conservation” area. The Technical Staff Report of the Maryland-National Capital Park and Planning Commission, dated August 1, 1967, stated that the Master Plan contemplated only a local commercial zone consisting of relatively light retail uses to serve the immediate neighborhood. To effectuate this end, the plan attempted to create a buffer zone between the commercial area and the surrounding residential neighborhood. Thus, the bulk of the subject property was specifically excluded from the proposed commercial area, but was recommended for special excep ²²⁴ tion use, while the 0.2 acres of the subject property located within the “conservation strip” centered along Rock Run was intended to complete the buffering.

It was also pointed out by the Report of the Technical Staff that under the Master Plan, there was an additional part of the subject property which fell within the 75 feet of the centerline of River Road which was designated as required for future right-of-way purposes. The Staff Report concluded that the “proposed commercial areas [in the Master Plan] * * * are properly located and of sufficient size to adequately serve the projected future population of the area” and, accordingly, recommended that the requested C-2 and C-l zoning be denied, so that the “expansion of commercial zoning not be permitted and that development of the area [may] proceed in accordance with the adopted Master Plan for the area.” On August 10, 1967, the Montgomery County Planning Board of the Maryland-National Capital Park and Planning Commission, at a regular meeting at which 3 of its 5 members were present, unanimously recommended that the Kacurs’ application be disapproved, and approved the report of the Technical Staff “as generally stating the Board’s opinion” concerning the application. On August 31, 1967, a hearing was held before a Hearing Examiner of the “Montgomery County Council Sitting As A District Council Under The Maryland-Washington Regional District Act.” Counsel for the Kacurs first stated that the Kacurs would waive their claim for C-2 rezoning, as originally requested in their application. Mr. Kacur testified briefly in regard to the facts surrounding his purchase of the subject property.

The Kacurs then put on as their witness, Oliviero D’Aprile, a real estate expert, who testified that, in his opinion, the Kacurs’ property was unsuitable for residential development, primarily because of its proximity to the commercial area, and also because of its location on a main thoroughfare, especially in light of the proposed widening of River Road. It appears that the residential development he had in mind may have been limited to the type of homes generally being built in the Potomac area, i.e., “a fifty or sixty thousand dollar residence.” He concluded, however, “It [the subject property] would be suitable for any ²²⁵ thing else, but the residential.” In addition, he stated, “I figure it might be capable of a special exception.” The Kacurs’ only other witness was Mrs. Susie V. Watwood, the real estate broker who was the agent for the seller who had sold the property to the Kacurs. Mrs. Watwood stated that she had “handled [this] transaction” and had received her entire commission from the seller, and not from the Kacurs. She testified that the subject property had been on the market for approximately one and one-half years before it was eventually sold to the Kacurs; that the sale price as well as the price originally asked was greatly in excess of the going rate for residential property in the neighborhood, but was consistent with that normally paid for commercial property; and that no one had expressed any interest in buying the property for residential purposes.

She also stated, however, that it might be possible to build three lower-priced houses on the property and sell them, although she indicated that this would not be satisfactory to the present owner who would be unable to recapture his investment in the land with such a project. She also testified that the subject property “might be suitable for special usage.” In addition, the Kacurs submitted several “letters of consent” from neighboring property owners who expressed their “unqualified consent to the change in zoning” from R-R to C-l. On October 16, 1967, the Hearing Examiner filed an extensive and well-reasoned “Report and Recommendation” which concluded that the application should be denied. In her report, the Hearing Examiner first gave a detailed analysis of the character of the neighborhood, and then reviewed the testimony given at the hearing.

She noted that both of the appellees’ real estate experts had testified that the subject property' was capable of being utilized for a special exception, and also pointed out that Mrs. Watwood had testified that, under the existing zoning, the Kacurs could construct and sell 2 or 3 houses which would market for $25,000 to $30,000 on the subject property. She also pointed out that, in addition to the approximately 47 special exception uses available in the R-R zone, there are a number .of permitted R-R uses which do not .require a. special exception. 1 . ... ... ²²⁶ In regard to the question of an unconstitutional deprivation of property without due process of law, the report concluded that the Kacurs had failed to prove such deprivation. It was stated: “* * * the evidence further establishes that there are many permitted uses (a number of them institutional) other than single family, detached residential in the R-R zone and that a number of special exception uses are available, as well. The record is totally devoid of any evidence that the subject property is unsuitable and cannot be used for the permitted uses in the R-R zone, other than single family detached residential and is replete with ample evidence as to the suitability of the subject property for special exception usage. * * * In the absence of such evidence, there is no basis upon which to determine whether the applicants have been deprived of all reasonable use of their property or have had the value of their property seriously impaired.” On the issue of the desirability of granting the application, the Hearing Examiner also ruled against the Kacurs.

She stated that there was no credible evidence of the economic effect of a denial on the application, nor any attempt to show that the granting of the application would not have an adverse effect on the public interest. She characterized the evidence of the Kacurs as “unsupported conclusionary opinion” evidence. It was stated that “the grant of the requested reclassification, contrary to the ²²⁷ comprehensive plan for the area, would have a substantial adverse effect on the public welfare,” and, further stated that, “1 am unable to find and conclude that the denial of the requested reclassification has an adverse effect, economic or otherwise, on the applicants, the surrounding properties or the neighborhood as a whole, sufficient to justify or compel the requested reclassification.” Her conclusion was: “1 find and conclude that there is neither change in the character of the neighborhood nor error in the original zoning sufficient to justify the requested reclassification, I further find and conclude that the denial of this application and the continuation of the existing R-R classification does not constitute a confiscatory exercise of the police power by the district Council or a deprivation of property without due process of law or the payment of just compensation.” and, accordingly, the recommendation was that the application be denied. On October 31, 1967, the County Council issued an “Opinion and Resolution” in which it noted its agreement with the recommendations of the Hearing Examiner, and stated that “the applicant has failed to demonstrate that this property should not be classified R-R”, and resolved that the application be denied.

On November 30, 1967, the applicant filed an order for appeal in the Circuit Court for Montgomery County and on December 11, 1967, filed a petition for appeal, alleging that the Montgomery County Council erred in the following respects: (1) in failing to give consideration to the testimony of Mrs. Watwood; (2) in refusing to order a rehearing of the testimony of Mrs. Watwood in accordance with the previous request made by the applicants; (3) in “upholding [the Master Plan] as a lawful zoning designation, without any legislative enactment”; (4) in finding that the neighborhood of the subject property had not assumed a commercial character; (5) in concluding that the subject property should remain classified R-R, in spite of the state of transition from residential to commercial; (6) in failing to find on the record that the subject prop ²²⁸ erty was not reasonably suited for any of the permitted R-R uses; (7) in relying upon the applicants’ failure “to negative the possibility of obtaining a special exception use permission” as a basis for its decision; (8) in relying upon the lack of demonstrated public need for commercial facilities as a basis for denial of the application; (9) in passing its Resolution which was unconstitutional for lack of “essential uniformity of suitability for use between the subject property and all other property in the R-R classification”; (10) in not concluding that the R-R zoning