Montgomery County Council v. Pleasants

Singley, J., delivered the opinion of the Court. Mr. Pleasants and his father (the Owners) having failed to persuade the Maryland-National Capital Park and Planning Commission’s technical staff, the Montgomery County Planning Board and the Montgomery County Council, sitting as the District Council (the Council), that the Owners’ application for the reclassification of a 2.32 acre tract near Clarksburg from R-R (rural residential) to C-2 (general commercial) was meritorious, appealed to the Circuit Court for Montgomery County. That court concluded that the Council’s denial of the requested reclassification was arbitrary and capricious, vacated the order of the County Council and granted the reclassification. From this order the Council has appealed.

The tract which is the subject of the controversy lies generally in the northwest quadrant of the intersection of Maryland Routes 355 and 121 and had been classified R-R in the comprehensive rezoning of 1958. Thereafter, properties immediately to the north, east and southeast of the Owners’ tract had been rezoned C-2, the last reclassification having taken place in 1969. The Owners, positing their case on a change in the character of the neighborhood, sought rezoning in order ⁴⁶⁴ to use the tract as an office for their contracting business, and for the storage of earth moving equipment. The hearing examiner found that there had been sufficient change to justify rezoning, but that rezoning was not compelled, citing Hardesty v. Dunphy, 259 Md. 718, 725, 271 A. 2d 152 (1970).

The hearing examiner also noted that although C-2 zoning had been recommended for the Owners’ tract by the 1968 Clarksburg Master Plan, public water and sewer facilities were not available, nor had they been projected in the county’s ten year water and sewer program and that, for this reason, both the technical staff and the planning board had recommended denial of the application. Although he recognized that the proposed use of the property might involve no greater demand for water and sewer facilities than would residential use, he found' lack of such facilities would hardly be compatible with the various other uses permitted in a C-2 zone. Consequently, he recommended denial of the reclassification. The Council adopted the report and recommendation of the hearing examiner, and rejected the application as premature, because of the lack of water and sewer facilities.

What troubled the lower court was that five nearby properties had been reclassified from R-R to C-2: (i) In June 1965, 37,948 square feet diagonally across Route 355 from the Owners’ tract (now improved by a branch bank) ; (ii) In July 1965, 10.5 acres, adjacent to the Owners’ tract at the rear; (iii) In July 1965, 1.4 acres in the same quadrant as is the Owners’ tract; (iv) In September 1965, a triangular tract containing 14,360 square feet, at the northwest corner of Routes 355 and 121; (v) In April 1969, 1.60 acres adjacent to the Owners’ tract on the east side. In granting the two most recent reclassifications, the ⁴⁶⁵ Council had talked of “rounding out” the commercial quadrant recommended by the Clarksburg Master Plan, had rejected any contention of prematurity, and had referred to the changes which had resulted from the 1965 rezonings. It was the Council’s abrupt change of course which the lower court regarded as arbitrary and capricious. The ground rules governing the disposition of this sort of case have been laid out time and again.

A court may not substitute its judgment for that of the zoning authority if the issue is fairly debatable, Bosley v. Hospital for Consumptives, 246 Md. 197, 204 , 227 A. 2d 746 (1967) ; Board of County Comm’rs v. Farr, 242 Md. 315, 322 , 218 A. 2d 923 (1966) ; Montgomery County v. Merlands Club, 202 Md. 279, 292 , 96 A. 2d 261 (1953). An adverse report of the planning board or of the technical staff, supported by sufficient facts and reasons, of itself, is enough to raise a fairly debatable issue, Yewell v. Board of County Comm’rs, 260 Md. 42, 49 , 271 A. 2d 360 (1970) ; Montgomery County Council v. Shiental, 249 Md. 194, 199 , 238 A. 2d 912 (1968), and cases there cited. Change in the character of a neighborhood may justify a reclassification, but does not compel it,