Montgomery County Council v. Scrimgeour

Collins, J., delivered the opinion of the Court. This is an appeal from a decree granting an injunction restraining the use of property. Evelyn T. Scrimgeour, appellee, was the owner of a house and lot located at 8714 Georgia Avenue in Silver Spring, which had a frontage of 44 feet on Georgia Avenue and a depth of 175 feet. This lot at the rear abutted on a large public parking lot and was zoned in September, 1941, under the comprehensive master zoning plan, codified as Chapter 176, Montgomery County Code, 1950, by the County Council for Montgomery County, (the Council), as Residential A. By the 1947 comprehensive master plan for the central business district of Silver Spring, adopted by the Maryland-National Capital Park and Planning Commission, (the Commission), this property was recommended for Residential C Zoning, (residential-multi-family use).

On January 1, 1954, the Council completely revised the zoning laws and zoning map for the Maryland-Washington Regional District in Montgomery County, adopted under Chapter 176 of the Montgomery County Code, 1950, supra. All property was reclassified into thirteen new general classifications, Chapter 107, ³⁰⁹ Montgomery County Code, 1955. Under this new ordinance, both the appellee’s property, designated herein as B-192, and a property in the same block, 1308 Fenwick Lane, owned by Herbert H. Diamond, and designated as B-198, were classified as R-60 zone, (one-family detached residential), although both properties had been recommended for future R-10 zone, (residential-multi-family use). On January 27, 1955, the appellee filed with the Council an application for a rezoning of her property at 8714 Georgia Avenue from R-60 zone to C-2 zone, (General Commercial).

At the same time pending before the Council was the application B-198 for the rezoning of that property from R-60 zone to C-O zone, (Commercial-Office Building). Both the appellee’s property and the Diamond property abutted at the rear on the public parking lot. On March 14, 1955, a public hearing was held on both applications, B-192 and B-198, by the Council, when testimony was taken and exhibits filed. At that hearing the Commission filed an opinion with the Council recommending the denial of both applications.

As to B-192, the property before us in this case, the Commission was of opinion that, as recommended by the 1947 plan aforesaid, the R-10, (multi-family use), was the best classification for this property. It stated: “The property is not required to be used for single-family dwelling purposes. The Plan calls for multi-family zoning at this point and we are of the opinion that the uses permitted in the R-10 zone plus the additional variety of uses that may be secured through special exception offer appropriate and adequate land uses for this tract. “Attention is called to the fact that the nearest commercial use to this property is a tailor and clothes rental business occupying a structure originally built as a dwelling. This structure is set back from the street, has side and rear yards complying with residential standards and it serves as a buffer or transition between the established business concerns to the south and the residential properties to the north.” ³¹⁰ Practically the same recommendation was made as to application B-198.

On April 5, 1955, the Council granted C-0 zoning for B-198 and denied the C-2 zoning for B-192. The reason given for the denial of B-192 was: “because the subject property lies a little beyond the north limits of the Silver Spring Business District being separated from the nearest commercial zone by another 44 foot lot and in an area recommended for multi-family use as indicated on the Zoning Plan for the Central Business District and Adjacent Area, Silver Spring, Maryland, adopted January 22, 1947 by the Commission; that if this application is approved it will extend the commercial area beyond the limits of commercial zoning as shown on the Zoning Plan and by its creation predetermine the case for commercial zoning for the intervening property, and that a restudy and evaluation of the Zoning Plan for Silver Spring during the summer and fall of 1954 revealed that the current Zoning Plan is functioning very well to direct an orderly growth of Silver Spring as expressed in Technical Bulletin No. 2, ‘An Economic Analysis of Land Use and Zoning in Silver Spring.’ “The above reasons for recommending disapproval are those guiding the Council in its decision to deny this application. For these reasons and because to deny the application will aid in the accomplishment of a co-ordinated, comprehensive, adjusted and systematic development of the Maryland-Washington Regional District, the application will be denied.” In approving application B-198 the Council stated, among other things, that the unscreened lot to the north of Fenwick Lane, being used by the Woodside Methodist Church, was “hardly conducive to the maintenance of a good residential neighborhood”. B-192 does not face on that parking lot.

An application for reconsideration of B-192 was filed with the Council on April 13, 1955, which application was denied on ³¹¹ May 10, 1955. There is no provision for judicial review or other appeal under the zoning ordinance of Montgomery County, except in cases of special exceptions. On June 1, 1955, the appellee filed in the Circuit Court for Montgomery County, in equity, a petition for a mandatory injunction. This alleged the petition of January 27, 1955, filed by the appellee, the denial of the application, the filing of the petition for reconsideration, and the denial of that petition.

It stated that on April 5, 1955, the Council granted the application of Herbert H. Diamond for reclassification from R-60 zone to C-O zone of another property in the same block, also abutting on the large parking lot on which appellee’s lot abutted in the rear; that the 1947 plan of the Commission recommended petitioner’s property as suitable for multi-family residential zoning; that the character of the neighborhood had changed since the adoption in 1947 of the aforesaid zoning plan so as to render the use of her property as residential property of little value and to justify the rezoning applied for; and that the action of the Council was arbitrary, capricious and discriminatory and did not aid in the systematic development of the district. She asked that a mandatory injunction be issued directing the Council to grant the zoning application prayed for, and for other and further relief. The chancellor found, from the record before the Council, that it showed by unchallenged and uncontradicted facts, that the area immediately surrounding appellee’s property had undergone a drastic change within the past four or five years; that the County had recently acquired property upon which private dwellings were erected and had demolished these in order to build a public parking lot in the rear of appellee’s property; that the Council had granted commercial office zoning to B-198 on Fenwick Lane within one block of appellee’s property, which set a pattern for the entire block; that it appeared beyond a shadow of a doubt that appellee’s property was of comparatively little value with the limited uses permitted under multi-family zoning; that there was no valid reason why the property should be confined to residential zoning; and that the record was barren of facts which would make the question fairly debatable. She concluded in her opinion ³¹² that the application should have been granted as prayed by the appellee and that the legislative action was arbitrary, capricious, and discriminatory.

By decree on March 20, 1956, the chancellor ordered that the Council be perpetually enjoined from preventing or interfering with the use, development or enjoyment by the appellee or her successors in title for any of those uses set forth in Section 176-15, “C-2 General Commercial”, of the Montgomery County Code, 1950 Edition as amended. From that decree the appellants, the members of the Council, appeal. Of course, as stated many times .by this Court, where the legislative body has rezoned or refused to rezone property, the court cannot substitute its judgment for that of the legislative body, if the question is fairly debatable, nor can the court substitute its judgment for that of the zoning authorities as to the wisdom of the action taken. The court will reverse only where there are no grounds for reasonable debate, and where the action of the zoning authorities was arbitrary, capricious, discriminatory, or illegal.

Eckes v. Board of Zoning Appeals, 209 Md. 432, 437 , 121 A. 2d 249 ; Hardesty v. Board of Zoning Appeals, 211 Md. 172 , 126 A. 2d 621 . There is a presumption that the original zoning was reasonable and constitutional and the burden of proof is upon the petitioner to overcome that presumption. In order for the court to set aside the action of the zoning authorities, it must find that the zoning is beyond the police power and deprives the applicant of